On 21 November the Aged Care Quality and Safety Commission (ACQSC) presented a webinar on 'Worker responsibilities – the key to delivering a great aged care experience'. The Webinar follows the recent update to the Regulatory Bulletin, 'Workforce-related responsibilities' earlier this week.
We provide a brief summary of the legislative requirements around care minutes and 24/7 registered nurse responsibilities, as well as a summary of the key takeaways from the ACQSC's Webinar, including the action the ACQSC may take against those approved providers who demonstrates 'persistent and unexplained non-compliance' with these obligations.
Workforce responsibilities
Under the Quality of Care Principles 2014 (Cth) (Quality of Care Principles), providers of residential aged care are required to ensure that a registered nurse (RN) is rostered and on site at all times. They are also required to deliver an average of 215 minutes of direct care per resident per day, including 44 minutes of direct care by an RN (Aged Care Legislation Amendment (Subsidy and Other Measures) Instrument 2024 (Cth)).
According to the ACQSC, only 41% of residential care services met both targets (care minutes and 24/7 RN responsibilities) in Q4 of FY24. In their Webinar, the ACQSC confirmed its expectation that all providers meet their workforce responsibilities, including by utilising the extra funding being provided to them to do so. Where they fail to do so, this may result in regulatory action.
Regulatory response
The ACQSC is monitoring compliance with care minute requirements through its 'provider supervision' regulatory model. As a 'data-driven regulator', the ACQSC has to date reviewed all data pertaining to the delivery of care minutes over the three separate quarters, since the obligation was introduced, allowing it to identify those approved providers who have persistently large care minute gaps and who have made limited progress to close those gaps. The ACQSC is now focusing in particular, by way of 'targeted monitoring', on providers who have demonstrated such gaps and are in locations where 'neighbouring' providers have much smaller gaps or no shortfalls at all.
The ACQSC has reportedly communicated with all providers who have demonstrated shortfalls in their care minute requirements and, for those with 'persistent and unexplained non-compliance', the ACQSC has arranged meetings and site visits to determine what steps the provider is taking (if at all) to close the performance gap. The ACQSC has stated that there will be two options for the providers who are being closely supervised and monitored for compliance with workforce responsibilities:
1. Enforceable undertaking: The ACQSC will invite those providers who have demonstrated genuine commitment to improving compliance to provide an enforceable undertaking (EU). An EU will include a plan to address the non-compliance and a timeframe within which the action must be completed. A provider's care minute performance will thereafter be measured by the ACQSC against the EU.
According to the ACQSC, the benefit for providers in offering up an EU is that there will be no immediate impact on the provider's star ratings. The ACQSC has confirmed that it will be publishing a further Regulatory Bulletin on EUs in late November.
2. Non-compliance notice: Where an EU is not provided (either because the provider elects not to provide one, or because the ACQSC is unwilling to accept one based on its assessment of the provider's efforts to comply), the ACQSC may instead issue a Non-Compliance Notice (NCN), notifying the provider of its intention to impose a sanction as a result of the performance gap. NCNs are more serious regulatory action than an EU because if the ACQSC considers a provider's response to the NCN insufficient (as permitted under the legislation), it may thereafter require the provider to prepare a plan for improvement by way of Notice of Requirement to Give an Undertaking about Remedying the Non-Compliance (Notice to Remedy). The plan will set out the steps the provider proposes to take to remedy the non-compliance and the timeframe within which this must be achieved.
A Notice to Remedy has an impact on the provider's star ratings and, if the provider fails to satisfy the plan prepared in response to the Notice to Remedy, the ACQSC may impose sanctions.
The ACQSC has stated that if there is any evidence of a provider making business decisions to prioritise financial gain over complying with its regulatory obligations, the ACQSC may commence an investigation to identify any breaches of the Code of Conduct and may, depending on the findings of such an investigation, invoke its power to impose civil penalties (fines).
In this way, 'demonstrable effort matters' in the context of proportionate regulatory action. The disposition of the ACQSC will differ depending on whether or not the provider is able to demonstrate genuine effort to satisfy its workforce responsibilities and that improvements are being made in a 'timely way'. The timeframe will ultimately depend on the circumstances of the provider; the ACQSC will consider the totality of the provider's operation (including, for example, financial viability and workforce shortages) to ensure that its regulatory response is proportionate to the identified risk. Where genuine effort is evidenced, there will be no need for the ACQSC to intervene.
Further resources
In addition to the Webinar, a 'collection' of information and resources about care minutes and 24/7 registered nurse responsibilities has been published on the Department of Health and Aged Care's website. This collection includes a number of 'dashboards' and spreadsheets which compare the care minute targets against the actual care minutes delivered on both a provider- and service-level. The collection also includes a number of 'general information' sources.
In light of the above, and the ACQSC's apparent focus on workforce responsibilities at the moment, we remind providers to ensure they are able to evidence that they are making all reasonable efforts to comply with their legislative obligations.
Should you require any assistance with meeting these obligations or responding to any communication from the ACQSC about this issue, please do not hesitate to reach out.
