From 1 October 2023, the aged care industry must provide a “sector-wide” average of 200 care minutes per resident per day (including 40 minutes of care from a Registered Nurse). This is a “sector-wide” requirement that applies across all aged care homes and therefore cannot be directly enforced.

However, to help achieve the sector-wide average, each aged care home is required to meet its own care minutes targets. These are calculated based on the needs of residents and may be slightly more or slightly less than the sector-wide requirements.

These “service level” care minutes must be reported quarterly and are monitored and enforced by the Aged Care Quality and Safety Commission (the Commission). What happens if you fail to meet your service-level targets?

What the Commission Can Do

The Commission will monitor your compliance with the mandatory care minutes requirements and take action to enforce compliance where necessary. This can include performance assessment and monitoring, cautioning, directing you to take specific action(s), and/or taking enforcement action such as issuing a notice or imposing sanctions.

However, this probably sounds more frightening than it is in practice, because in the context of care minutes the Commission has indicated that it will take a “fair and sensible approach”.

What the Commission Will Do: A “Fair and Sensible Approach”

In a letter to providers, the Commission said that it would “be taking a fair and sensible approach” to the regulation of the new care minutes requirements. In essence this means that the Commission will look past “technical non-compliance” to the more substantial issue of whether or not consumers are at risk.

The Commission expanded on its approach in a regulatory bulletin, saying that it “recognises that the aged care sector is affected by external pressures which may present challenges to approved providers in attracting and retaining a suitably skilled and competent workforce.” The Commission added that:

“In short, a provider that is non-compliant with a specific responsibility but can evidence its ongoing efforts to comply, its provision of safe and quality care to consumers at all times, and its effective management of risks to consumers, is unlikely to be subject to escalated enforcement action by the Commission in the absence of other concerns about compliance or performance.”

This message was supported by the Minister for Aged Care in a letter to the Commission:

“I support your message to the sector that the Commission wants to see residential aged care providers showing willingness and capacity to achieve compliance with all their obligations and demonstrated commitment to deliver high quality and safe care.

I welcome the Commission’s reassurance that failure to meet care minute targets will not be reviewed in isolation. The Commission’s response will be based on potential risk to the residents. If a provider is technically non-compliant with its care minute responsibilities but is providing quality and safe care, the Commission will work with providers while they improve their care minute compliance. Where a provider is not meeting their care minute obligations and is placing consumers at risk of harm, or is being wilfully non-compliant, proportionate compliance or enforcement action will be taken.”

That said, you should note that while the Commission will provide some leeway, it is still likely to come down hard on any provider who fails to manage a serious risk to consumers. Specifically, where there are serious risks to consumers, the Commission will:

• undertake performance assessment and monitoring, including requests for further information, interviews, site visits, and re-accreditation audits under the Quality Standards; and
• respond to non-compliance, which may include engagement with providers on their response, further monitoring or cautioning, directing a provider to take specific action/s, and/or taking enforcement action such as issuing a notice or imposing sanctions.

What Providers Should Do

In regard to care minutes, the two things that providers need to do to ensure compliance are: minimise risk to consumers and demonstrate commitment to care. In practice, things you can do to achieve this include:

• Monitor: put procedures in place to monitor for those situations (“gaps”) when you might be unable to meet care minutes targets. This may be due to a drop in staffing levels or an increase in care requirements.
• Plan: draft and implement a plan for what to do to deal with gaps.
• Record: write down your plan and make sure it’s easily accessible. Document the steps you take each time you implement the plan.

Sometimes you may feel that your care minutes targets are unfair and impossible to achieve. You may be right, and the Commission may be willing to hear your side of the story. But they won’t simply take your word for it – so think about what documents you can use to prove that there is a legitimate gap and that you’ve done all you can to minimise the impact of that gap on consumers.