The reform agenda anticipated in the wake of the Aged Care Royal Commission Final Report has been halted by the election.

Last year the Aged Care and Other Legislation Amendment (Royal Commission Response No. 1) Act 2021 (Act No. 1) commenced, however this Act introduced only a few changes, some of which were problematic.

The Aged Care and Other Legislation Amendment (Royal Commission Response No. 2) Bill 2021 (Bill No. 2), which was introduced late last year and had commencement dates in March 2022 was expected to implement more significant reforms. However, the Bill is no longer proceeding.

What this means for aged care reform?

On 11 April, Bill No 2 lapsed at dissolution after being referred back to the House of Representatives from the Senate. The Bill cannot be simply re introduced and skip the process that the Bill has already gone through. A new Bill will need to be introduced and pass both houses for it to become law. Whether Bill No. 2 will be re-introduced in the same or different form or at all is simply unknown.

What this means is that there is no legal requirement for Providers to implement the changes proposed in Bill No. 2 (set out below). It also means that Providers should carefully consider whether any changes they have made in anticipation of Bill No. 2 becoming law should be implemented or continued with.

The table below is a summary of the reforms included in Bill No. 2 that have lapsed and are no longer included in any Bill before Parliament.

Proposed amendment Comment

ACFI to be replaced with AN-ACC

The Government has made progress towards implementing this new care funding model. A number of publications have been released that can be found here. The Government will need to pass another Bill for this to become law.

Screening of aged care workers, and governing persons

This proposed amendment aligned with the National Disability Insurance Scheme (NDIS). As it stands, it is not required in aged care althoughProviders must continue to ensure workers have completed Police checks and statutory declarations as required by current law.

Code of conduct and banning orders

This proposed amendment aligned with the NDIS. As it stands, it is not required in aged care as yet.

Extension of incident management and reporting to home care

The proposed amendments would extend the Serious Incident Reporting Scheme and incident management system requirements that apply in residential care to home care. The application of the laws to Home Care will not occur until another Bill is passed into law.

Governance

As these proposed provisions were due to commence 1 March this year, many Providers have already began working towards compliance with these requirements, including considering the configuration of their Board. While some of the changes could be implemented voluntarily, there is no certainty about whether a future Government would seek to pass Bill No. 2 in its current or similar form or at all.

Information sharing

The new information sharing powers currently do not apply. Note there are already strong information sharing powers under the current legislation.

Use of refundable deposits and accommodation bonds

The current permitted uses of RADs and Bonds will continue to apply until new law is passed.

Independent Health and Aged Care Pricing Authority

The proposed amendments to the National Health Reform Act 2011 are currently not going ahead.

Restrictive practices

Act No. 1 introduced changes to the restrictive practices regime including with respect to who could authorise the restraints. It quickly became apparent that there were flaws with these provisions that are the subject of discussions between the Commonwealth, States and Territories to amend local laws. Bill No. 2 was to introduce an interim measure to address the issue which became the subject of criticism and extensive legislative consideration.

Without these amendments, there is huge uncertainty surrounding who can consent to a restrictive practice on another’s behalf. For more information please refer to our related alerts.

The above are the reforms specifically mentioned in Bill No. 2. One requirement not included in the Bill but which has been the subject of an announcement by Government is the introduction of the monthly care statements. It is unclear what has been relied upon to require Providers to give monthly care statements but what is clear is that if it was in Bill No. 2, it is not a legislative requirement. Without any legislation, these reforms are currently not legal requirements.

While Bill No.2 could be re-introduced into Parliament, there is no certainty about whether a future Government would seek to pass Bill No. 2 in its current or similar form or at all. We recommend that Providers consider carefully whether any of the proposed reforms which require change to internal policies or practices can or should be implemented in anticipation, or whether you should wait to see what the actual legislated reform is.