On 31 October 2022, the Department of Health and Aged Care published an exposure draft of the Aged Care Legislation Amendment (Governance and Reporting for Approved Providers) Principles 2022 (Cth) (Principles) to assist approved providers to prepare for the increased governance obligations contained in the Aged Care and Other Legislation Amendment (Royal Commission Response) Act 2022 (Cth) (Amending Act).

A copy of the Principles and the associated Explanatory Memorandum is available.

Consistent with the governance arrangements contained in the Amending Act, the Principles commence on 1 December 2022. The extended implementation deadline of 1 December 2023, which applies to certain requirements for Existing Approved Providers, is maintained in the Principles.

The Principles provide further detail in relation to the following governance arrangements from the Amending Act:

Suitability of Key Personnel

Section 63-1A of the Amending Act requires an approved provider to, at least every 12 months consider the suitability matters in relation to its individual key personnel, be 'reasonably satisfied' that each individual is suitable to be involved in the provision of aged care. Approved providers are required to keep a record of this consideration, in a manner that complies with requirements to be included in the Accountability Principles 2014 (Cth) (Accountability Principles).

The Principles amend the Accountability Principles to specify that for the purposes of section 63-1A, a record of suitability of an individual who is a key personnel must include:

1. the name of the individual;
2. the date or dates on which the suitability matters were considered in relation to the individual;
3. the outcome of consideration of each suitability matter in relation to the individual; and
4. the reasons for reaching that outcome.

Quality Care Advisory Body

Section 63-1D(6)(a) of the Amending Act requires an approved provider to establish and continue a Quality Care Advisory Body. The Quality Care Advisory Body must comply with the membership requirements specified in the Accountability Principles.

The Principles amend the Accountability Principles to specify that the quality care advisory body must include:

1. a member who is one of the key personnel of the approved provider and has appropriate experience in the provision of aged care;
2. a member who is directly involved in the delivery of aged care, or in the event that the approved provider delivers clinical care, is involved in the delivery of clinical care; and
3. a member who represents the interests of care recipients (such as a care recipient, a member of a consumer advisory body or a member of a consumer advisory service or consumer advocate).

This is a minimum requirement for membership of the Quality Care Advisory Body, and the Body may have additional members who are concerned with the quality of care delivered by the approved provider (i.e. the Quality Care Advisory Body could include more than one member who fits into the above categories, or additional members with an interest in the approved provider's quality of care).

Additionally, the Quality Care Advisory Body is required by section 63-1D(6)(a)(ii) and 63-1D(7) to provide to the governing body of the approved provider, at least every 6 months, with a written report about the quality of aged care being provided by the approved provider, which complies with requirements specified in the Accountability Principles.

The Principles amend the Accountability Principles to specify that the report provided by the Quality Care Advisory Body must include an assessment of the quality of aged care provided by the approved provider for the period covered by the report. In preparing the report, the Quality Care Advisory Body is required to take into account:

1. feedback provided during the reporting period by care recipients and staff members of the approved provider about the quality of aged care being provided by the approved provider at the service;
2. any complaints received by the approved provider during the reporting period which relate to the quality of aged care being provided by the approved provider at the service;
3. any concerns held by the Quality Care Advisory Body about the quality of aged care being provided by the approved provider at the service during the reporting period;
4. any regulatory action taken by the Aged Care Quality and Safety Commission during the reporting period in relation to the quality of aged care being provided by the approved provider at the service;
5. any progress made by the approved provider during the reporting period in relation to the approved provider's plan for continuous improvement (if one is in place), particularly any improvements made in the provision of aged care by the approved provider at the service;
6. any performance reports given to the approved provider in the reporting period by the Aged Care Quality and Safety Commission during the reporting period which relate to the quality of aged care provided by the approved provider;
7. staffing arrangements at the service during the reporting period, including details of:

a. availability of allied health practitioners or other 'health support' at the service;

b. availability of Registered Nurses at the service;

c. staff turnover at the service;

8. any reportable incidents that occurred at the approved provider's service during the reporting period and any action taken by the approved provider; and
9. in the event that the service is a residential aged care service:

a. feedback received from care recipients about the quality of food provided by the service to care recipients;

b. changes during the reporting period in the quality of food provided, and the food preparation model used by the service;

c. menu assessments conducted by an accredited practicing dietician during the reporting period in relation to food provided by the service; and

d. any information compiled or derived from assessments made by the approved provider in accordance with section 26 of the Accountability Principles during the reporting period.

We note that many of the matters which the Quality Care Advisory Body is required to have regard to in preparing its report relates to individual aged care services. It is likely therefore, that the Quality of Care Advisory Body will need to consider each individual residential aged care facility in preparing its report(s).

Giving of Information to the Secretary of the Department of Health and Aged Care

Section 63-1G(1) requires approved providers to give the Secretary information of a kind specified in the Accountability Principles, for a particular reporting period.

The Principles amend the Accountability Principles to specify that for an approved provider who provides residential aged care or home care, the specified information is as follows:

1. details of feedback and complaints received by the approved provider during the reporting period (in respect of all of the provider's RACs or home care services);
2. details of any improvements made by the approved provider during the reporting period in relation to each of its RACs or home care services; and
3. information about:

a. the diversity of the governing body of the approved provider during the reporting period; and

b. initiatives that the approved provider has implemented in the reporting period to support a 'diverse and inclusive' environment for care recipients and staff members in relation to each RAC or home care service of the approved provider;

c. whether the approved provider was a State or Territory, State or Territory Authority or a Local Government Authority;

d. whether the approved provider complied with the requirement that the governing body have a majority of independent, non-executive members and at least one member with experience in the provision of clinical care during the reporting period;

e. whether during the reporting period the approved provider:

i. had fewer than 5 board members and delivered services to less than 40 care recipients;

ii. was an Aboriginal Community Controlled Organisation; or

iii. was subject to a determination pursuant to section 63-1E of the Amending Act, that certain governance responsibilities not apply to the approved provider.

Attestation of Compliance

Section 63-1(1)(m) of the Aged Care Act 1997 (Cth) (the Act) requires approved provider to comply with any other requirements included in the Accountability Principles.

The Principles amend the Accountability Principles to require that a provider of residential aged care or home care must, in relation to a reporting period complete a statement and provide that statement to the Secretary within 4 months of the end of the reporting period. That statement must:

1. be in the approved form; and
2. in the event that the governing body of the approved provider believes that the approved provider complied with its obligations as an approved provider under the Act and the Aged Care Quality and Safeguards Commission Act 2018 (Cth), state that fact and be signed by a member of the governing body on behalf of all members of the governing body.

In the event that the governing body is of the view that the approved provided did not comply with all of its responsibility, the statement must state that fact, and be signed by a member of the governing body on behalf of all members of the governing body and set out details of:

1. each responsibility or requirement that the governing body believes the approved provider did not meet;
2. the reasons why the approved provider failed to comply with those requirements; and
3. how the approved provider will rectify non-compliance.

Record keeping

The Principles require that the following records be maintained by an approved provider:

1. a record about the members of the approved provider's governing body, including:

a. the names of the members who are independent non-executive members;

b. the names of the members who are not independent non-executive members; and

c. the names of the members who have experience in the provision of clinical care and details of each of these member's relevant experience.

2. a record about the quality care advisory body, including:

a. the name of the members of the quality care advisory body and details of:

i. the date each member was appointed; and

ii. the date a member resigned.

b. details of how the quality care advisory body complies with the requirements in the Accountability Principles;

c. a copy of the minutes of each meeting of the quality care advisory body, including dates on which meetings were held;

d. a copy of each written report given to the governing body in accordance with the requirements in the Amending Act;

e. details of any feedback given to the governing body by the quality care advisory body;

f. a copy of any written advice given to the quality care advisory body by the governing body advising how the governing body considered any report and feedback provided by the quality care advisory body.

3. a record about the consumer advisory body including:

a. a copy of each written offer made to care recipients and their care recipients inviting them to establish a consumer advisory body;

b. the date on which each offer was made;

c. if a consumer advisory body is established:

i. a copy of meeting minutes for each meeting of the consumer advisory body;

ii. details of any feedback given to the governing body by the consumer advisory body;

iii. a copy of any written advice given to the consumer advisory body by the governing body about how it has considered any such feedback; and

4. a record of how the governing body of the approved provider has ensured that all staff members of the approved provider:

a. have appropriate qualifications, skills or experience to provide the care or other services being provided by the approved provider;

b. are given opportunities to develop their capability to provide that care or other services.

Implementation

The detail contained in the Principles is significant, and highlights the challenge that approved providers are likely to face in implementing the robust and enhanced governance requirements contained in the Amending Act, as well as meeting enhanced reporting requirements.

Any approved provider which is accredited prior to 1 December 2022 will be an 'existing provider' and these requirements will not commence for those providers until 1 December 2023. We note however that as a matter of best practice, existing providers should be implementing robust policies, procedures and systems as a matter of priority, to ensure that existing providers are ready to meet these obligations when they commence in 1 December 2023. We would recommend that existing providers treat the grace period between 1 December 2022 and 1 December 2023 as an opportunity to implement the requirements and ensure that these are being met, to avoid regulatory action and ensure the provider is in the best position possible when the requirements commence on 1 December 2023.

Please let us know if you would like to discuss this update, or we are able to assist with these ongoing reforms in any way.