Russell Kennedy recently acted for an approved provider in an appeal at the Administrative Appeals Tribunal of a decision by the Department of Social Services to downgrade the classification of a number of residents at its facility.

DLW Health Services had conducted pain management program using a contracted registered physiotherapist who would attend the facility around once a week.  This physiotherapist would assess all the residents and complete directives and care plans.  On the days the physiotherapist was not at the facility, the treatment was physically delivered by a physiotherapy assistant who had obtained a physiotherapy degree in India and was in the process of seeking registration in Australia.  The assistant worked under the supervision of the registered physiotherapist in a manner in keeping with the Physiotherapy Code of Practice, which allows for a physiotherapist to delegate certain tasks after assessing the delegatee to be competent to perform those tasks.

Following an ACFI audit in October 2013, the Department downgraded the classifications of the residents in the pain management program on the basis that the services were not “provided by” a registered physiotherapist. The Department relied on comments in the ACFI User Guide in relation to item 4b of question 12 which stated that:

Under item 4b pain management services would need to be provided by a listed allied health professional…

We asserted that the ACFI User Guide is a Departmental document, not legislation, and that it must be consistent with theAged Care Act 1997.  Here, the Department was relying on the Guide to make a decision which was inconsistent with the Act.

Deputy President Forgie agreed and upheld our client’s claim.  She noted that the Act says that residents are to be classified “according to the level of care [they] need”.  Matters relating to quality of care are dealt with separately to classification by the Act.  For this reason, the Deputy President found that “the qualifications of the staff member providing the treatment are not relevant” for the purposes of classification.  

As a result, Deputy President Forgie declared that parts of items relating to Items 4a and 4b in the Guide were invalid.  The Deputy President ordered the Department restore the classification of the provider’s residents to the higher level.

The implications of the decision are not yet clear as the decision is currently under appeal to the Federal Court.  Unless the decision is overturned on appeal, the Department may need to revise the ACFI User Guide to ensure it is consistent with the legislation and amend the offending provisions.  The decision may also be a basis for other providers to challenge other decisions by the Department to downgrade ACFI classifications. 

Regardless of the outcome of the appeal, the decision is significant.  Fundamentally, the decision is evidence of the basic legal position that Departmental documents such as the ACFI User Guide, the Home Care Packages Programme Guidelines and the Residential Care Manual are not law and they cannot be relied on to make decisions that are inconsistent with the Act.