The exposure draft for the Aged Care Bill 2023 was published on 14 December 2023. We refer to our previous Alerts in relation to the general concepts and provisions in the exposure draft. In this Alert we discuss the proposed application of the Bill to retirement villages.
Key points
- Despite referring to retirement villages, the exposure draft of the Bill does not apply generally to retirement villages. However, certain parts of a village may be covered by the Bill.
- The Bill will apply to a retirement village operator if that operator chooses to provide funded services to its residents as a registered provider.
- The introduction of tiered registration categories creates a new opportunity for retirement villages to become registered providers if they propose to deliver only some types of aged care services, for example, providing domestic assistance within their villages. Providers who are only registered in the “lower level categories” will subject a less onerous level of compliance and attract less rigorous regulation than providers registered to provide higher level, more complex services.
What does the exposure draft say about retirement villages?
The exposure draft refers to retirement villages in the definitions and key concepts section of the draft. This is in the context of where funded aged care services are delivered, including in ‘an approved residential care home’ or ‘a home and community setting’.
A retirement village as a whole, is expressly excluded from the definition of a ‘residential care home’. However, there are certain circumstances where a place within a retirement village may be a place within a ‘residential care home’. In particular, it provides that a ‘residential care home’ includes ‘a place within a retirement village that has been converted into’ a place that is fitted, furnished and staffed to provide aged care services to an individual with a continuing need for these services, including nursing services.
However, it is only if funded aged care services, that is, aged care services funded by the Commonwealth under the Aged Care Act, are provided in this setting that the Act will apply. This means that private aged care services provided in this setting will not make it a ‘residential care home’.
There are some clarifications which are required in the draft terms used in this context in the draft bill. For example, it should clarify that the place would need to be an approved place under the relevant provisions of the draft bill (that is, approved by the Commonwealth for the provision of funded aged care services); it is unclear what ‘converted to’ in this context means – does it include a place within a village which is constructed for this purpose? Or only converted once the retirement village has been completed?
In a home care setting, if care is delivered by a home care registered provider, this will fall within the provisions in relation to aged care services delivered in a home or community setting; with the obligations under the Bill sitting with the registered provider (similar to under the current Act where the approved provider has the responsibility); not the retirement village owner/operator.
Resources published by the Department of Health and Aged Care about the exposure draft are consistent with our comments set out above. They refer to capturing special arrangements in retirement villages where a particular part of the village has been converted to a facility to provide funded aged care services.
Our understanding is that this is intended to address sites where a retirement village and residential aged care service are co-located in one building, and funded aged care services are delivered to certain apartments within the building which are fitted, furnished and staffed to provide these continuing aged care services.
When could the new Aged Care Act apply to a village operator?
Generally, the provisions of the exposure draft apply to registered providers and responsible persons, which are similar to concepts under the current aged care regulatory scheme.
The exposure draft doesn’t generally apply to other persons or entities even if they are delivering services to residents who receive funded aged care services from a provider. Exceptions to this include:
- Where a person or entity otherwise comes within the definition of a ‘responsible person’, which is similar to the definition of ‘key personnel’ in the current aged care regulatory scheme.
- a person or entity who has contractually agreed to comply with the obligations as a provider under the Act in order to provide subcontracted services to funded aged care residents.
Opportunities for retirement village operators in the provision of aged care
Some of the changes to the aged care regulatory scheme that are introduced by the exposure draft for the new Aged Care Act include the introduction of registration categories for registered providers. This means that providers of aged care services will be registered within certain categories which correspond with the types of services they provide.
Resources published by the Department of Health and Aged Care provide that the categories include residential care, home or community based respite, clinical and specialised supports, social support, assistive technology and home modifications and home and community services.
Previously, to be an approved provider of residential or home care services, organisations would assume responsibility for the delivery and oversight of the full range of services required by the care recipient, including complex clinical care services. Now aged care providers can apply to be registered to deliver either the full range of services (e.g. by becoming a residential care provider) or lower level, less complex services such as assistive technology and home modifications or home and community services.
While all registered providers will be subject to some level of regulation under the draft Bill, the type of registration informs the level of regulation that the provider will be subject to.
This create opportunities for retirement village operators who may have previously been unwilling to become approved providers to apply for some aged care funding by becoming registered to deliver lower lever care, even if they are not ready to provide the full range of complex clinical services.
How we can help?
For more guidance on the interpretation of the exposure draft for the Aged Care Bill, please contact Anita Courtney, Rosemary Southgate or Victor Harcourt any other member of our Aged Care Team.
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Disclaimer
The information contained in this Alert is intended as general commentary only and should not be regarded as legal advice. Should you require specific advice on the topics discussed, please contact the firm directly.