AGED CARE AND OTHER LEGISLATION AMENDMENT (ROYAL COMMISSION RESPONSE NO. 1) BILL 2021
This is a Bill, not an Act. For current law, see the Acts databases.
AGED CARE AND OTHER LEGISLATION AMENDMENT (ROYAL COMMISSION RESPONSE NO. 1) BILL 2021
2019-2020-2021
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Aged Care and Other Legislation
Amendment (Royal Commission
Response No. 1) Bill 2021
No. , 2021
(Health)
A Bill for an Act to amend the law relating to aged
care, and for related purposes
No. , 2021
Aged Care and Other Legislation Amendment (Royal Commission
Response No. 1) Bill 2021
i
Contents
1
Short title ........................................................................................... 1
2
Commencement ................................................................................. 1
3
Schedules ........................................................................................... 2
Schedule 1--Amendments relating to restrictive practices
3
Aged Care Act 1997
3
Aged Care Quality and Safety Commission Act 2018
5
Schedule 2--Amendments relating to home care assurance
reviews
6
Aged Care Act 1997
6
Schedule 3--Amendments relating to the Aged Care Financing
Authority
11
Aged Care Act 1997
11
No. , 2021
Aged Care and Other Legislation Amendment (Royal Commission
Response No. 1) Bill 2021
1
A Bill for an Act to amend the law relating to aged
1
care, and for related purposes
2
The Parliament of Australia enacts:
3
1 Short title
4
This Act is the
Aged Care and Other Legislation Amendment
5
(Royal Commission Response No. 1) Act 2021
.
6
2 Commencement
7
(1) Each provision of this Act specified in column 1 of the table
8
commences, or is taken to have commenced, in accordance with
9
column 2 of the table. Any other statement in column 2 has effect
10
according to its terms.
11
12
2
Aged Care and Other Legislation Amendment (Royal Commission
Response No. 1) Bill 2021
No. , 2021
Commencement information
Column 1
Column 2
Column 3
Provisions
Commencement
Date/Details
1. Sections 1 to 3
and anything in
this Act not
elsewhere covered
by this table
The day this Act receives the Royal Assent.
2. Schedule 1
1 July 2021.
1 July 2021
3. Schedule 2
The day after this Act receives the Royal
Assent.
4. Schedule 3
1 July 2021.
1 July 2021
Note:
This table relates only to the provisions of this Act as originally
1
enacted. It will not be amended to deal with any later amendments of
2
this Act.
3
(2) Any information in column 3 of the table is not part of this Act.
4
Information may be inserted in this column, or information in it
5
may be edited, in any published version of this Act.
6
3 Schedules
7
Legislation that is specified in a Schedule to this Act is amended or
8
repealed as set out in the applicable items in the Schedule
9
concerned, and any other item in a Schedule to this Act has effect
10
according to its terms.
11
Amendments relating to restrictive practices
Schedule 1
No. , 2021
Aged Care and Other Legislation Amendment (Royal Commission
Response No. 1) Bill 2021
3
Schedule 1--Amendments relating to
1
restrictive practices
2
3
Aged Care Act 1997
4
1 After paragraph 54-1(1)(e)
5
Insert:
6
(f) if the provider provides aged care of a kind specified in the
7
Quality of Care Principles to care recipients--to ensure a
8
*
restrictive practice in relation to those recipients is only used
9
in the circumstances set out in those Principles;
10
2 Paragraph 54-3(2)(g)
11
Omit "physical restraint or chemical restraint", substitute "a
*
restrictive
12
practice".
13
3 At the end of Division 54
14
Add:
15
54-9 Restrictive practice in relation to a care recipient
16
(1) A
restrictive practice
in relation to a care recipient is any practice
17
or intervention that has the effect of restricting the rights or
18
freedom of movement of the care recipient.
19
(2) Without limiting subsection (1), the Quality of Care Principles may
20
provide that a practice or intervention is a
restrictive practice
in
21
relation to a care recipient.
22
54-10 Matters that Quality of Care Principles must require etc.
23
(1) The Quality of Care Principles made for the purposes of
24
paragraph 54-1(1)(f) must:
25
(a) require that a
*
restrictive practice in relation to a care
26
recipient is used only:
27
(i) as a last resort to prevent harm to the care recipient or
28
other persons; and
29
Schedule 1
Amendments relating to restrictive practices
4
Aged Care and Other Legislation Amendment (Royal Commission
Response No. 1) Bill 2021
No. , 2021
(ii) after consideration of the likely impact of the use of the
1
practice on the care recipient; and
2
(b) require that, to the extent possible, alternative strategies are
3
used before a restrictive practice in relation to a care recipient
4
is used; and
5
(c) require that alternative strategies that have been considered
6
or used in relation to a care recipient are documented; and
7
(d) require that a restrictive practice in relation to a care recipient
8
is used only to the extent that it is necessary and in
9
proportion to the risk of harm to the care recipient or other
10
persons; and
11
(e) require that, if a restrictive practice in relation to a care
12
recipient is used, it is used in the least restrictive form, and
13
for the shortest time, necessary to prevent harm to the care
14
recipient or other persons; and
15
(f) require that informed consent is given to the use of a
16
restrictive practice in relation to a care recipient; and
17
(g) require that the use of a restrictive practice in relation to a
18
care recipient is not inconsistent with any rights and
19
responsibilities of care recipients that are specified in the
20
User Rights Principles made for the purposes of
21
paragraph 56-1(m); and
22
(h) make provision for, or in relation to, the monitoring and
23
review of the use of a restrictive practice in relation to a care
24
recipient.
25
(2) The Quality of Care Principles made for the purposes of
26
paragraph 54-1(1)(f) may provide that a requirement specified in
27
those Principles does not apply if the use of a
*
restrictive practice
28
in relation to a care recipient is necessary in an emergency.
29
(3) Subsections (1) and (2) do not limit the matters that may be
30
specified in the Quality of Care Principles made for the purposes of
31
paragraph 54-1(1)(f).
32
4 Clause 1 of Schedule 1
33
Insert:
34
restrictive practice
, in relation to a care recipient, has the meaning
35
given by section 54-9.
36
Amendments relating to restrictive practices
Schedule 1
No. , 2021
Aged Care and Other Legislation Amendment (Royal Commission
Response No. 1) Bill 2021
5
Aged Care Quality and Safety Commission Act 2018
1
5 Section 7 (definition of
compliance notice
)
2
Omit "section 74EE", substitute "subsection 74EE(1) or (1A)".
3
6 Section
74A (paragraph beginning "The Commissioner may
4
give")
5
After "paragraph 54-1(1)(e)", insert "or (f)".
6
7 Before subsection 74EE(1)
7
Insert:
8
Incident management provisions
9
8 Subsection 74EE(1)
10
Omit "(a
compliance notice
)".
11
9 After subsection 74EE(1)
12
Insert:
13
Use of restrictive practices
14
(1A) The Commissioner may give to an approved provider a written
15
notice if the Commissioner:
16
(a) is satisfied that an approved provider is not complying with
17
the provider's responsibility under paragraph 54-1(1)(f) of
18
the Aged Care Act; or
19
(b) is aware of information that suggests that an approved
20
provider may not be complying with that responsibility.
21
Compliance notice
22
10 Section 74J (table item 6, column 1)
23
Omit "section 74EE", substitute "subsection 74EE(1) or (1A)".
24
Schedule 2
Amendments relating to home care assurance reviews
6
Aged Care and Other Legislation Amendment (Royal Commission
Response No. 1) Bill 2021
No. , 2021
Schedule 2--Amendments relating to home
1
care assurance reviews
2
3
Aged Care Act 1997
4
1 At the end of section 84-1
5
Add:
6
; (i)
home care assurance reviews (see Part 6.8).
7
2 After paragraph 86-9(1)(l)
8
Insert:
9
(la) information about any non-compliance with notices given to
10
the approved provider under section 95BA-5 or 95BA-6;
11
(lb) information about any failure of the approved provider to
12
comply with section 95BA-7;
13
3 At the end of Chapter 6
14
Add:
15
Part 6.8--Home care assurance reviews
16
Division 95BA--Home care assurance reviews
17
95BA-1 Home care assurance reviews
18
The Secretary may from time to time conduct reviews (
assurance
19
reviews
) for the purposes of:
20
(a) assuring that arrangements for the delivery and
21
administration of home care are effective and efficient; and
22
(b) informing development of home care policy and education of
23
approved providers in relation to home care and home care
24
services.
25
Amendments relating to home care assurance reviews
Schedule 2
No. , 2021
Aged Care and Other Legislation Amendment (Royal Commission
Response No. 1) Bill 2021
7
95BA-2 Scope of assurance reviews
1
(1) The Secretary may, in writing, specify terms of reference for an
2
*
assurance review, including:
3
(a) the approved providers, or class or classes of approved
4
providers, to which the review is to relate; and
5
(b) the subject matter of the review.
6
(2) The subject matter of the review may be any or all of the following
7
matters, so far as they relate to home care services undertaken by
8
approved providers and the home care provided through those
9
services:
10
(a) how approved providers are using
*
home care subsidy and
11
charging for home care, including justifications for amounts
12
charged to care recipients;
13
(b) how approved providers are structuring their financial
14
accounting for home care services;
15
(c) the nature and type of home care provided by approved
16
providers;
17
(d) the nature and type of approved providers' dealings with care
18
recipients to whom home care is provided;
19
(e) any other matters the Secretary considers relate to the
20
purposes set out in section 95BA-1;
21
(f) approved providers' procedures and documentation in
22
relation to matters mentioned in any of the above paragraphs.
23
95BA-3 Reports on assurance reviews
24
Reports for publication
25
(1) The Secretary may prepare and publish reports on
*
assurance
26
reviews, dealing with any findings, conclusions or
27
recommendations made as a result of the reviews.
28
(2) A report under subsection (1) must not include
*
personal
29
information.
30
Schedule 2
Amendments relating to home care assurance reviews
8
Aged Care and Other Legislation Amendment (Royal Commission
Response No. 1) Bill 2021
No. , 2021
Other reports
1
(3) The Secretary may prepare a report on any particular
*
assurance
2
review, dealing with any findings, conclusions or
3
recommendations made as a result of the review.
4
(4) If the Secretary prepares a report under subsection (3), the
5
Secretary may give a copy of the report to any approved provider
6
to which the review relates.
7
95BA-4 Assistance in conducting and reporting on assurance
8
reviews
9
(1) The Secretary may be assisted in the conduct of
*
assurance reviews
10
and the preparation of any reports on the reviews by:
11
(a) APS employees in the Department; or
12
(b) persons engaged under contract by the Secretary to assist in
13
the exercise of the power and any of their employees who are
14
providing that assistance.
15
(2) However, the power to give an approved provider a notice under
16
section 95BA-5 (notice to give information or documents) or
17
95BA-6 (notice to answer questions) may not be exercised by a
18
person assisting the Secretary under subsection (1) of this section
19
unless the power has been delegated to the person under
20
subsection 96-2(1A).
21
95BA-5 Notice to give information or documents
22
(1) If the Secretary reasonably believes that an approved provider that
23
is a
*
corporation has information or documents relevant to the
24
subject matter of an
*
assurance review, the Secretary may, by
25
written notice given to the provider, require the provider to give the
26
Secretary such information or documents (or copies of documents)
27
as are specified in the notice.
28
(2) The notice:
29
(a) must specify the period within which, and the manner in
30
which, the information or documents (or copies) are to be
31
given; and
32
(b) may specify the form in which information is to be given.
33
Amendments relating to home care assurance reviews
Schedule 2
No. , 2021
Aged Care and Other Legislation Amendment (Royal Commission
Response No. 1) Bill 2021
9
(3) The period specified under paragraph (2)(a) must not end earlier
1
than 14 days after the day the notice is given.
2
(4) The approved provider must comply with the notice.
3
Civil penalty:
30 penalty units.
4
(5) An approved provider is entitled to be paid by the Commonwealth
5
reasonable compensation for complying with a requirement of a
6
notice given to the provider under subsection (1) to give copies of
7
documents.
8
95BA-6 Notice to answer questions
9
(1) If the Secretary reasonably believes that an approved provider that
10
is a
*
corporation has information relevant to the subject matter of
11
an
*
assurance review, the Secretary may, by written notice given to
12
the provider, require the provider to make available appropriate
13
officers, employees or agents to answer questions relating to the
14
information.
15
(2) The notice must specify:
16
(a) the person or persons assisting the Secretary in the conduct of
17
the review (as mentioned in subsection 95BA-4(1)) who will
18
be asking the questions; and
19
(b) the time or times at which, and the means by which, the
20
questions are to be asked and answered.
21
(3) The time, or the earliest time, specified under paragraph (2)(b)
22
must be at least 14 days after the notice is given.
23
(4) The approved provider must comply with the notice.
24
Civil penalty:
30 penalty units.
25
95BA-7 Duty to provide all reasonable facilities and assistance
26
An approved provider that is a
*
corporation to which an
*
assurance
27
review relates must provide the person conducting the review, and
28
any individuals assisting that person, with all reasonable facilities
29
and assistance necessary for the effective exercise of the person's
30
duties in relation to the review.
31
Schedule 2
Amendments relating to home care assurance reviews
10
Aged Care and Other Legislation Amendment (Royal Commission
Response No. 1) Bill 2021
No. , 2021
Civil penalty:
30 penalty units.
1
95BA-8 Request for information or documents
2
(1) If the Secretary reasonably believes that a person (including an
3
approved provider that is not a
*
corporation) has information or
4
documents relevant to the subject matter of an
*
assurance review,
5
the Secretary may request the person to give the Secretary any such
6
information or documents (or copies of any such documents).
7
(2) The person is not required to comply with the request.
8
4 After subsection 96-2(1)
9
Insert:
10
(1A) Subsection (1) does not apply in relation to the Secretary's power
11
to give a notice under section 95BA-5 or 95BA-6. However, the
12
Secretary may, in writing, delegate the Secretary's powers under
13
either or both of those sections to an SES employee, or acting SES
14
employee, in the Department.
15
Note:
The expressions
SES employee
and
acting SES employee
are defined
16
in section 2B of the
Acts Interpretation Act 1901
.
17
5 Clause 1 of Schedule 1
18
Insert:
19
assurance review
: see section 95BA-1.
20
Amendments relating to the Aged Care Financing Authority
Schedule 3
No. , 2021
Aged Care and Other Legislation Amendment (Royal Commission
Response No. 1) Bill 2021
11
Schedule 3--Amendments relating to the
1
Aged Care Financing Authority
2
3
Aged Care Act 1997
4
1 Subsection 96-3(1)
5
Repeal the subsection, substitute:
6
(1) For the purposes of this Act and the
Aged Care (Transitional
7
Provisions) Act 1997
, the Minister may establish one or more
8
committees.
9