New legislation passed in Aged Care

Last week the government introduced two new aged care bills to the House of Representatives, which together respond to a number of recommendations from the Aged Care Royal Commission’s final report.  

Royal Commission Response Bill

Just a week later, the first bill, the Aged Care and Other Legislation Amendment (Royal Commission Response) Bill 2022, has now passed through both houses. Some of the key changes that this bill introduces include:

  • Introducing the new AN-ACC funding model which will replace the existing ACFI model.
  • A Code of Conduct that will apply to approved providers, their aged care workers and governing bodies. It will be based on the NDIS Code of Conduct and will be implemented from 1 December 2022.
  • Extending the Serious Incident Reporting Scheme (SIRS) to include home care by 1 December 2022.
  • From 1 December 2022 there will be new governance responsibilities around suitability requirements for key personnel and other requirements including:
    • The requirement to notify the Commission of changes to key personnel or changes to the suitability of key personnel;
    • At least every 12 months the provider must consider the suitability of all key personnel and be reasonably satisfied that they are suitable to be involved in the provision of aged care;
    • The provider must ensure that a majority of the members of the governing body are independent non-executive members, and at least one member of the governing body has experience in the provision of clinical care. (This does not apply if the governing body has fewer than 5 members or provides aged care service to less than 40 recipients, or is an Aboriginal Community Controlled Organisation).
    • Providers must establish a quality care advisory body that:
      • Complies with the requirements specified in the Accountability Principles; and
      • Gives the governing body a written report about the quality of care being delivered at least once every 6 months.
    • The governing body must respond in writing to those reports and other feedback from the advisory body.
  • Changes to restrictive practices arrangements to address unintended outcomes due to the interaction with state and territory guardianship and consent laws.
  • A requirement for the Department of Health and Aged Care to publish information about the quality of aged care provided through an aged care service, and the performance of the approved provider in relation to responsibilities and standards under the Aged Care Act by the end of 2022.

Implementing Care Reform Bill

The second bill, the Aged Care Amendment (Implementing Care Reform) Bill 2022, has been referred to the Senate Community Affairs Legislation Committee, with an expected report date of 31 August 2022, and includes:

  • mandatory requirements for there to be a registered nurse on site 24 hours a day at all residential aged care facilities starting from 1 July 2023;
  • caps on home care charges from 1 January 2023; and
  • improvements to transparency of information from 1 December 2022.

Stay in the loop

Providers are encouraged to stay across these changes as a number of the reforms are expected to come into place soon, with many being implemented before the end of the year. We will keep you updated!

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Royal Commission Series: the Government’s response

On the 11th of May, the Australian Government published its response to the final report of the Royal Commission into Aged Care Quality and Safety. The government accepted 126 of the 148 recommendations and rejected six of the recommendations, including the independent aged care commission model.

We’ve looked at a number of the key recommendations throughout this series and we will now provide an overview of the government’s response to those recommendations.

Dementia and palliative care - Recommendation 80: Accepted

The government has flagged dementia and palliative care as something that it will begin to address immediately. Starting this year, the government will target improvements to the quality of dementia care, including increased support when a person is first diagnosed, improved connection between services and an increase in the number of care minutes provided to people in residential aged care. Some of the government’s targeted funding includes:

  • $7.3 million to build dementia care capacity in residential aged care;
  • $67.5 million for the Dementia Behaviour Management Advisory Service and the Severe Behaviour Response Teams to reduce use of restraints; and
  • dementia training for an additional 1000 GPs and GP registrars per year.

The government’s review of the Aged Care Quality Standards will consider regulations that require:

  • providers to ensure that staff are appropriately trained in dementia and palliative care; and
  • that the Certificate III in Individual Support include units of study on dementia and palliative care.

For more information, see aged care – reforms to support people living with dementia and their carers.

Our previous blog post on dementia and palliative care outlines Recommendation 80.

Culturally safe service delivery – Recommendations 30 and 21: Accepted

The government has highlighted a number of initiatives targeting improved outcomes for the culturally safe delivery of services, including:

  • by 2023, the establishment of a network of 500 local Community Care Finders to engage with vulnerable Australians and provide face-to-face assistance to help them access aged care and other health and social supports;
  • increased funding for translating and interpreting services for diverse older Australians; and
  • the introduction of a specialisations verification framework and audit process by June 2022, to ensure that providers have demonstrated their capability to provide specialised services for people with diverse backgrounds.

We expect the government will consider the priority issues contained in recommendation 21, including potentially making mandatory the Aged Care Diversity Framework and underlying Action Plans, as part of their review of the Aged Care Quality Standards, to be completed by December 2022. 

For more information see: aged care – reforms to support people from diverse backgrounds

Our previous blog post on culturally safe delivery outlines Recommendation 30 and 21.

Aboriginal and Torres Strait Islander aged care – Recommendations 47, 48, 49, 50, 51: Accepted

The government will immediately begin addressing these recommendations, with the 2021-22 budget investing in targeted measures to improve the experience of Aboriginal and Torres Strait Islander people in aged care. In 2022, the government aims to establish a new workforce of 250 Indigenous people to provide face-to-face support for Aboriginal and Torres Strait Islander people to navigate and access care. Other reforms include upgrading existing buildings and constructing purpose-built residential facilities to connect people with communities on Country, improved access to translation and interpreting services and assistance to Indigenous organisations with governance, business training and leadership.

For more information see: aged care – reforms to support Aboriginal and Torres Strait Islander people and governance – more equitable access to aged care for First Nations people and special needs groups

Our previous blog post on Aboriginal and Torres Strait Islander care outlines Recommendations 47, 48, 49, 50 and 51.

Protection for whistleblowers – Recommendation 99: Accepted

The government has accepted this recommendation and referenced the new Aged Care Legislation Amendment (Serious Incident Response Scheme and Other Measures) Act 2021  which creates protections for providers, staff members, volunteers, family members, carers or representatives who make disclosures of information relating to reportable incidents. These changes came into effect on 1 April 2021.

Our previous blog post on whistleblowers outlines Recommendation 99.

New governance standard – Recommendation 90: Accepted

The government has outlined that it will introduce measures to strengthen the accountability of aged care providers including:

  • new governance obligations from 2022 requiring improvements to the composition and accountability of aged care boards;
  • a review of the Aged Care Quality Standards, focusing on areas of governance, dementia and food and nutrition (scheduled to be introduced in 2023); and
  • the appointment of an assistant commissioner for Sector Capability and Education to the Aged Care Quality and Safety Commission.

For more info see: governance – strengthening provider governance and governance – a new Aged Care Act

Our previous blog post on a new governance standard outlines Recommendation 90.

Restraints – Recommendations 17 and 65: Accepted

The government has indicated that strengthened legislative provisions to regulate restraints will commence from 1 July 2021. This will include clearer regulations on the use of restraint, clearer definitions of restraint and ensuring that restraint is only used as a last resort following deployment of alternative behaviour management strategies. The government has also indicated that it will appoint a Senior Practitioner to the Aged Care Quality and Safety Commission to lead education of aged care providers and General Practitioners in the use of restraints.

Additionally the government highlighted that the ACQSC, the Australian Commission on Safety and Quality in Health Care and the NDIS Quality and Safeguarding Commission are collaborating to align regulatory approaches to the use of restraints.

Our previous blog post on restraints outlines Recommendations 17 and 65.

Other areas of significance

Serious Incident Response Scheme (SIRS)

The government has outlined that $14 million will be spent on expanding the SIRS from residential aged care into home and community care from 1 July 2022. The government has also highlighted that dementia specialists will provide further training to representatives from all aged care providers on preventing the use of restraint.

Mandatory care time standards and reporting

From July 2021, providers will be required to report on care staffing minutes at the facility level as part of their annual reporting. From July 2022, providers will also be required to provide a monthly care statement to residents, outlining the care they have received and any significant changes. From December 2022, this information will inform a staffing star rating allowing clients to compare staffing levels between homes. The government is forecasting that by October 2023, providers will be required to meet a mandatory care time standard of 200 minutes per day for each resident.

Expanding the National Mandatory Quality Indicator Program

By July 2021, two new quality indicators relating to falls and fractures and medication management will be introduced alongside the existing domains of pressure injuries, physical restraint and unplanned weight loss. Additional quality indicators including indicators around quality of life in residential aged care and home care will be introduced by the end of 2022.

Subject to further consideration…

The news of the $18 billion to be invested in the aged care system has been welcomed by the sector, however there remain some significant areas that have been flagged by the government as subject to further consideration, or that have not been addressed in the government’s response:

  • the recommendation to increase supports to older people with disability to the equivalent level as a participant under the NDIS would receive;
  • a mandatory minimum qualification for personal care workers; and
  • the recommendation that by July 2024 the minimum staff standard should require at least one registered nurse on site at a residential aged care facility at all times.

It seems that the government will take a more moderate pathway to addressing these issues, or that it will consider the issues further before deciding to act.

We will be monitoring the changes closely and will be developing resources and tools to assist providers to meet any additional obligations under the changes.

Make sure to get in touch if you have any requests around resources, templates or self-assessments to assist you to meet your requirements. 

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You can access all of our aged care resources in the SPP platform. 

Royal Commission Series: recommendation 99 calls for ‘protection for whistleblowers’

An issue highlighted by the recent Royal Commission into Aged Care Quality and Safety is the lack of systemic support for whistleblowers within the aged care system. In her overview of the Royal Commission’s Final Report: Care, Dignity and Respect, Commissioner Lynelle Briggs AO states:

It is a sad fact that many older people, their families and care workers are reluctant to speak up about the quality and safety of care because of the fear of reprisal from providers or their staff members”.

Current problems in the sector

Commissioner Briggs speaks of the need to make more transparent the complaints process and to strengthen whistleblower protections, using the following witness statement from Gwenda Darling, who gave evidence at the Brisbane Hearing, as an example:

After my first experience of having my service cut off by the provider after complaining, I’ve been a bit fearful that I could lose my package if I complain. The providers have a lot of power. I had to really fight hard to get my package reinstated. I felt hopeless and disempowered after that experience and it felt like there was no point raising issues or complaining.”

Similarly, an aged care nurse shared in a public submission to the Royal Commission that she had “learned over the years not to say anything for fear of repercussions from management”. Staff and consumers within an organisation may worry that they are in a vulnerable position, and therefore feel afraid to voice any concerns they have.

The Australian Medical Association submitted to the Royal Commission that legislated safeguards may help employees to speak up, which may “lead to earlier identification of concerns and to the improvement of services provided to older people in aged care”.

The Royal Commission, in its final report, ultimately recommends that a new Act be introduced, containing comprehensive whistleblower protections for all involved parties.

Recommendation 99 reads:

The new Act should contain comprehensive whistleblower protections for:

a)    a person receiving aged care, their family, carer, independent advocate or significant other

b)    an employee, officer, contractor, or member of the governing body of an approved provider

who makes a complaint or reports a suspected breach of the Quality Standards or another requirement of or under the Act.

What can providers do now?

Since the publication of the Royal Commission’s final report, the Aged Care Legislation Amendment (Serious Incident Response
Scheme and Other Measures) Act 2021
(Cth) has commenced. This legislation amends section 54 of the Aged Care Act 1997 (Cth), to add protections for disclosures of information related to reportable incidents.

Providers are advised to implement an internal whistleblowing policy in compliance with the Aged Care Legislation Amendment (Serious Incident Response Scheme and Other Measures) Act , which protects consumers, staff and families from reprisal when voicing concerns.

Such a policy should:

  • articulate protections for whistleblowers from criminal prosecution, administrative action or civil litigation, such as breach of employment contract or duty of confidentiality; and
  • formalise that staff or representatives of the provider will not be permitted to cause or threaten detriment to someone who has made or wishes to make a whistleblower disclosure.

Separately, providers should ensure their complaints management policies and processes are consumer-centred, and clearly state the protections in place for consumers, staff and family who seek to report concerns. There should be clear expectations that managerial staff will act ethically and will not target consumers, staff or family who make a complaint.

In addition, whistleblowing policies and procedures should comply with the Corporations Act 2001 (Cth), which contains certain protections for ‘eligible whistleblowers’. It is important that providers familiarise themselves with the Act, and are aware of their obligations under the Act. More information is available on the ASIC website.

Resources

We have a number of whistleblowing resources on SPP that can assist you to achieve best practice in this space.

  • Info: Whistleblower protection – This info sheet provides an introduction to the concept of whistleblowing and an overview of key rules under the legislation.
  • Policy: Whistleblower protection (public companies) – This is a policy most suitable for larger organisations who are obliged to comply with corporate whistleblowing laws, or for organisations who voluntarily follow the corporate regime.
  • Policy: Whistleblower protection (small organisations) – This is a simpler policy, which still covers key steps in the whistleblowing process. It is a more approachable resource for providers who are not currently required to implement a policy, but still wish to do so.

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You can access these resources and many more in the SPP platform. 

Royal Commission Series: dementia and palliative care

In its Final Report, titled Care, Dignity and Respect, the Royal Commission into Aged Care Quality and Safety made 148 recommendations for action and improvements in response to the problems it identified in the aged care system. 

We’ve gone through the recommendations in detail, and over the next couple of weeks we will be providing a number of updates on how SPP can help you to get ahead with many of the recommendations. 

Our focus today is around dementia and palliative care. Dementia care is one of the four concerns that were singled out by the Royal Commission as requiring immediate attention:

“It is estimated that more than half of the people living in permanent residential aged care in 2019 had a diagnosis of one of the forms of dementia. The real percentage is likely higher, given the prevalence of undetected dementia.

“Despite this, our inquiry has revealed that the quality of aged care that people living with dementia receive is, at times, abysmal. We heard time and time again that staff members do not have the time or the skills to deliver the care that is needed. The quality of dementia care in the aged care system needs significant and immediate improvement.” 

To address the above identified issue, the Royal Commission has made Recommendation 80: Dementia and palliative care training for workers.

“By 1 July 2022, the Australian Government should implement as a condition of approval of aged care providers, that all workers engaged by providers who are involved in direct contact with people seeking or receiving services in the aged care system undertake regular training about dementia care and palliative care.”

We have several resources that can assist your organisation to get ahead in training workers in dementia and palliative care. 

Towards Best Practice Self-assessment: Dementia Australia’s Quality Care Recommendations (2019)

This self-assessment is available in SPP’s “Aged Care – towards best practice” group, and is based on Dementia Australia’s Quality Care Recommendations, which were developed in consultation with people living with dementia, their families, carers and advocates. 

Working through the self-assessment will assist your organisation to appreciate how it can work to support greater inclusion, respect and ultimately improved quality of life for people living with dementia. In particular, Recommendation 7 of the Quality Care Recommendations “Dementia trained staff” takes you through worker training regarding dementia. 

Dementia Australia’s Centre for Dementia Learning provides a range of resources, foundation learning modules and consultancy services that can assist providers who wish to access more detailed material or training for their workers. 

Resources

In SPP’s Reading Room, you can find Policy: End of Life Care and Palliative Care, which can help your organisation to embed advance care and end of life planning into your delivery of care. The resource addresses recognising end of life, assessing palliative care needs, responding to deterioration, and managing dying and bereavement. 

In addition to this resource, SPP also has these advance care resources:

  • Info: Advance care planning; and
  • Policy: Advance care planning.

We also have some other resources that address supporting clients with dementia, including:

  • Policy: Safety and security in residential aged care facilities
  • Policy: Intimacy and sexuality in aged care
  • Info: Intimacy and sexuality in aged care

You can find these resources by searching for key words in the SPP Reading Room. 

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You can access these resources and many more in the SPP platform. 

Preventing and responding to abuse

The Royal Commission into Aged Care Quality and Safety  hearings to date have highlighted that many older Australians experience serious instances of abuse and neglect. Similarly, people with a disability are 10 times more likely to experience violence than people without a disability, and the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability  has been established in response to the seriousness and prevalence of these incidents.

With these Royal Commissions bringing the issues of abuse and neglect to the fore, now is a landmark period for organisations to re-assess how they are protecting human rights within their operations.

It is paramount that organisations are working to prevent abuse wherever possible, and have effective policies and procedures in place to respond to instances of abuse.

Some important elements of preventing abuse include:

  • Policies and guidelines that protect an individual’s rights
  • Empowering the elderly and people with a disability
    • Informing them about the rights that they possess
    • Ensuring that clients feel respected and valued in the organisation
  • The organisational culture
    • Ensuring that the staff screening process is thorough
    • Ensuring that workers undertake training in abuse prevention and client rights
    • Ensuring that there is a positive culture of feedback and complaints, encouraging people to speak up

It is essential that in cases where incidents do occur, the organisation responds appropriately. We have developed some new resources to help organisations implement processes to prevent and respond appropriately to abuse.

Find our policy and information sheets in SPP’s Reading Room:

  • Policy: Safeguarding
  • Info: Safeguarding (Responding to Abuse)

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