Four Practical Things Aged Care Providers Can Do Right Now in Response to the Royal Commission’s Interim Report

Unless you’ve been living under a rock for the past few weeks, you would have heard something about the Interim Report of the Royal Commission into Aged Care Quality and Safety. And it probably wasn’t good news.

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What Happens if You Do Not Comply with the New Aged Care Quality Standards?

The new Aged Care Quality Standards (the Standards) came into force on 1 July 2019, and the Aged Care Quality and Safety Commission (the Commission) has confirmed in no uncertain terms that it expects aged care services to comply with the Standards from that date.

But, given the scale, complexity and sheer unfamiliarity of the new Standards, some residential aged care services may not be able to comply. What happens then?

That question was put to Christina Bolder from the Commission during a Department of Health webinar on 6 June 2019. We’ve quoted and summarised the key points of her answer below, supplemented by information from the Aged Care Quality and Safety Commission’s website.

 

What Happens If You Do Not Comply with the Aged Care Quality Standards: An Overview

In a previous article we summarised the Commission’s process for assessing compliance with the Standards. This article is concerned with what happens after a residential care service has been assessed and found to be non-compliant.

If a quality assessor finds that a service has not complied with the Standards, the assessor will record this in a performance assessment report. When the Commission receives this report, it will make a finding of non-compliance. This initiates a four-stage process:

  1. Determination of “Serious Risk”
  2. Notification
  3. Timetable for Improvement
  4. Assessment

If, at the end of the Timetable for Improvement stage, the Commission is not satisfied that the necessary improvements have been made, the matter will progress to a fifth stage:

  1. Sanctions and Other Measures

 

Stage 1: Determination of “Serious Risk”

If the Commission finds that a service hasn’t complied with the Standards, it must determine if the non-compliance “places safety, health or well‑being of aged care consumer at serious risk.”

 

Stage 2: Notification

 If the Commission finds that a service hasn’t complied with the Standards, it will notify the provider of the service. It will also notify the Commonwealth Department of Health. The notification will give the Commission’s reasons for the decision and will state whether the non-compliance involves Serious Risk. The provider will have a chance to respond to the Notification.

If there is a finding of Serious Risk the Commission and/or the Department of Health may decide to skip the Timetable for Improvement (Stages 3 and 4) and jump straight to imposing sanctions (Stage 5).

 

Stage 3: Timetable for Improvement

Around the time that it issues the Notification, the Commission may also issue a Timetable for Improvement (TFI). During the Department of Health Webinar, Christina Bolder said that a TFI is “the instrument that the Commission uses to set and monitor the improvements that are necessary in order for Standards to be met.”

In compiling the TFI the Commission will consider:

  • the extent of the non-compliance
  • the severity of the findings of non-compliance at the service
  • the consequence for care recipients in terms of actual or potential harm
  • the capacity of the provider themselves to address the non-compliance
  • the history of the service in terms of past quality and safety performance, and
  • how satisfied the Commission is that the provider will undertake continuous improvement of the service and sustain those improvements over time.

The Commission may also seek further information from the provider before issuing the TFI:

“We will tailor the Timetables for Improvement based on the risk, and be proportionate in the setting of these timetables. So we can tailor the scope and the nature of the Timetable for Improvement, we may seek further information from the provider about their performance. We can differentiate the way we monitor the return to compliance and we can determine the form and frequency of further contact with the service.”

The particular improvements a provider will have to make under the TFI will vary. However, the Commission will always require the provider to amend its Plan for Continuous Improvement (PCI) to incorporate the requirements of the TFI. See the Commission’s website for more information on PCIs as well as a PCI template.

 

Stage 4: Assessment

At the end of the TFI, the Commission will assess whether the necessary improvements have been made. If the Commission is satisfied that the improvements have been made, the matter will be closed and the provider will return to the normal cycle of assessment. However, the TFI and its outcome will now form part of the provider’s history and may be one of the factors that the Commission considers as part of the re-accreditation process or if the provider is found to be non-compliant again.

If, at the end of the TFI, the Commission is not satisfied that the necessary improvements have been made, the process proceeds to Stage 5.

 

Stage 5: Sanctions and Other Measures

“If we’re not satisfied at the end of the timetable that the necessary improvements have been made, the Commission will make a referral to the Department of Health who may consider a range of sanctions that are available under the Aged Care Act.”

Division 66 of the Aged Care Act 1997 (Cth) sets out the Department of Health’s extensive powers to impose sanctions on non-compliant providers. These include the power to:

  • revoke, suspend or restrict a provider’s approval
  • restrict payment of subsidies
  • revoke or suspend the places allocated to a provider
  • vary the conditions that apply to some or all of the places allocated to the provider
  • prohibit further allocation of places to the provider
  • prohibit the provider charging certain fees
  • require the provider to refund certain fees charged to care recipients
  • require the provider to repay certain grants received from the government.

The Commission may also impose its own sanctions by revoking accreditation or increasing the level of its compliance monitoring. Increased compliance monitoring might involve requesting more information from the provider and increasing site visits.

 

Opportunities to Respond and Appeal

The Commission’s website says “Where a finding of non-compliance is likely to be made, the provider will be offered the opportunity to respond to the report or information being considered by the Commissioner.” In practice this opportunity will occur at the point of Notification (Stage 2 above) or after an Assessment (Stage 4). Providers will have a limited time period in which to respond, usually 14 days. For more information, see our previous article.

The powers and responsibilities of the Commission are governed by the Aged Care Quality and Safety Commission Rules 2018 (Cth). Under Part 7 of these Rules, providers may to apply to the Commission for reconsideration of certain types of decisions. And, if they are still not satisfied, providers may apply to the Administrative Appeals Tribunal to review certain types of “reconsideration decisions” made by the Commission.

 

Conclusion: Should Providers be Worried?

The commencement of the Standards is pushing residential aged care providers into uncharted territory. Faced with a barrage of new requirements, some providers may not meet some aspect of the Standards and will be found non-compliant. But this isn’t necessarily cause for panic.

During the Department of Health Webinar, Christina Bolder encouraged providers to see the TFI not as a threat but as “an opportunity” to “have a further conversation with staff and consumers at the service about how they can improve these outcomes.”

This signals that the Commission is moving away from a sporadic box-ticking assessment process towards a process of ongoing dialogue between Commission, provider and consumer for the purpose of continuous improvement. As part of this process, the Commission won’t just assess whether a provider has complied with this or that particular rule; they will assess whether a provider has adequate systems in place to continuously provide good outcomes for a diverse and dynamic group of consumers.   

Aged care providers seeking to ease their compliance worries should embrace this change and expand their focus accordingly. In practice, this begins with reframing the task from “how do we comply with the Standards?” to “how do we build a system that engages consumers and staff and makes ongoing compliance with the Standards an easy and normal part of our workplace culture?”

Mark Bryan
ABOUT THE AUTHOR | Mark Bryan
Mark is a Legal Research Consultant at CompliSpace. Mark has worked as a Legal Policy Officer for the Commonwealth Attorney-General’s Department and the NSW Department of Justice. He also spent three years as lead editor for the private sessions narratives team at the Royal Commission into Institutional Responses to Child Sexual Abuse. Mark holds a bachelor’s degree in Arts/Law from the Australian National University with First Class Honours in Law, a Graduate Diploma in Writing from UTS and a Graduate Certificate in Film Directing from the Australian Film Television and Radio School.

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