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Managing non-compliance

If we find a provider has failed to meet their responsibilities under the Aged Care Act 1997 and relevant principles, ACQSC Act, the Rules, or its funding agreement with the Australian Government, we apply a risk- based proportionate approach including monitoring and managing the compliance of approved providers to bring them back into compliance as quickly as possible. Action taken may include administrative or enforceable regulatory action.

Administrative action may be considered where risk to consumers is assessed as low or medium. This approach reflects the level of trust and confidence the Commission has in the provider’s motivation and capacity to manage the risk, and return to compliance. It signals to the provider where there has been a failure to meet responsibilities and encourages the provider to rectify the non-compliance and take action to sustain improvements.

In cases where the risk to consumers is medium to immediate and severe, where a provider has failed to remedy non- compliance, or failed to give or comply with an undertaking to remedy, the Commission may respond with enforceable regulatory action. This level of regulation reflects the Commission’s reduced confidence in the provider’s motivation or capacity to address the non-compliance.

Enforceable regulatory action is intended to oblige the provider to take action to address quality and safety risks and to comply with their responsibilities as quickly as possible. Enforceable regulatory action also acts to deter the provider from future non-compliance. In the event there is unwillingness or inability by the provider to address non- compliance, the Commission may consider revoking the provider's approval to deliver aged care. Enforceable regulatory action includes Non-compliance Notices, Notices to Agree and sanctions.

Since January 2020, when the Commission became responsible for these regulatory powers, the Commission has issued:

  • five sanctions 3
  • five Notices to Agree 4
  • 31 Non-compliance Notices 5.

Table 5: Enforceable regulatory activity

Type of enforceable regulatory activity

Jul – Dec 2019

Jan – Jun 2020

Total 2019–20

Sanctions

11

5

16

Notices to agree

0

5

5

Non-compliance notices

79

31

110

3. Sanctions: A penalty imposed by the Commission on operators of aged care services in cases of serious non-compliance with their responsibilities. Sanctions can include revocation of approved provider status, loss of Australian Government subsidies for new persons receiving care or revocation of allocated places.

4. Notice to Agree: Notice sent to an approved provider when the Commission is considering revocation of its approval to deliver aged care, after identified non-compliance.

5. Non-compliance Notice: A formal regulatory notice from the Commissioner to a provider stating the provider has been found non-compliant with the Quality Standards or Prudential Standards.

† For the period July to December 2019, the regulatory powers were a responsibility of the Department of Health.

Timetable for improvement

Prior to 1 January 2020, where there was failure by a provider of a service to comply with the Quality Standards, the Commission was required to notify the provider of any areas for improvements to ensure compliance with the Quality Standards, and the timetable for making the improvements.

From 1 January 2020, the provision has been removed from the Rules as the Commission has new powers for monitoring and enforcing compliance under the ACQSC Act.

Accordingly, no timetables for improvement were issued in the second half of 2019–20.

In relation to timetables for improvement from 1 July to 31 December 2019, the following table describes the outcomes for services placed on a timetable for improvement (TFI).

Table 6: Timetable for improvement (TFI) statistics 1 July to 31 December 2019

Residential services

Number of services on TFIs at the beginning of the period

162

Number of services placed on TFIs during the period (includes services with

not met expected outcomes that were not immediately placed on a TFI)

272

Number of services did resolve all not met expected outcomes by the end of TFI

209

Number of services did not resolve all not met expected outcomes by end of the TFI

32

Number of services with another TFI during the period

67

Number of services on continuing TFI at the end of the period

193

Home services

Number of home care services on TFIs at the beginning of the period

123

Number of services placed on TFIs during the period (includes services with

not met expected outcomes that were not immediately placed on a TFI)

47

Number of services did resolve all not met expected outcomes by the end of TFI

20

Number of services did not resolve all not met expected outcomes by end of the TFI

8

Number of services with another TFI during the period

22

Number of services on continuing TFI at the end of the period

142

Serious risk

Prior to 1 January 2020, if we found that a provider of a residential aged care service or a service delivering home care packages had failed to comply with the Quality Standards, a decision had to be made as to whether there was evidence that the failure had placed, or may have placed, the safety, health or well-being of a consumer of the service at serious risk.

The serious risk provisions have been removed from the Rules as the Commission has new powers for monitoring and enforcing compliance under the ACQSC Act. These new powers include identifying where there is immediate and severe risk to consumers and considering whether to impose sanctions. This removes duplication in considering evidence of potential harm to consumers.

Assessment teams continue to be alert to potential failure in the quality of care and services and risk of harm to consumers. Any evidence of risk to consumers is referred to a delegate of the Commissioner and may result in a risk assessment and escalation for consideration of immediate and severe risk and enforceable regulatory actions.

From 1 July 2019 to 31 December 2019, there were 64 findings of serious risk in residential aged care services and six in home services.

Table 7: Decisions of finding Serious Risks 1 July 2019 to 31 December 2019

NSW

VIC

QLD

SA

WA

TAS

NT

ACT

AUS

Residential

27

8

16

6

5

2

0

0

64

Home services

1

0

4

0

0

0

1

0

6

Strengthening home care compliance and responding to non-compliance

We continued to enhance our integrated compliance and investigation capability as an end-to-end regulator of home services. We monitor the compliance of home care approved provider responsibilities, including the requirement to provide accurate and timely information to consumers, and appropriately manage home care package funds. We take compliance action against approved providers identified through complaints, quality reviews and audits, and other external sources where information received indicates potential or actual non-compliance.

Since January 2020, we have developed an action plan of regulatory activity to target home care, which focuses on information and education to assist regulatory compliance and mitigate risk through proportionate compliance action.

Prudential compliance and non-compliance in residential aged care

The Prudential Standards outline how providers must manage the refundable accommodation payments of their residents. The Prudential Standards aim to protect the Refundable Accommodation Deposits (RAD) paid to providers by recipients of aged care services.

The four Prudential Standards (Liquidity, Records, Disclosure, and Governance) seek to reduce the risk of providers defaulting on their RAD balance refund obligations to care recipients, by requiring providers to:

  • systematically assess their future obligations with RADs and the associated funding implications to ensure that they are able to meet their refund obligations as they fall due
  • establish and maintain a register that records information about RADs and the care recipients who pay them
  • establish and document governance arrangements for the management and expenditure of RADs (only for permitted uses)
  • promote transparency of their financial management by disclosing information to care recipients, prospective care recipients and the Department of Health about their financial information and prudential compliance, and how they manage the RADs.6

Providers who have charged RADs are required to complete and submit an Annual Prudential Compliance Statement (APCS) within four months of the end of their financial year (31 October for most providers), disclosing RAD holdings and compliance with charging, managing and refunding RADs against the prudential requirements.

In 2018–19, 849 providers lodged an APCS as they held one or more RADs for the financial year. See Table 8 for a high level overview of the APCS outcomes for this period.

We apply a responsive risk-based approach to regulation of prudential compliance to focus our activities on the areas of greatest potential harm to safety, finances, health and well-being of consumers.

Table 8: 2018–19 APCS assessments 7

Annual Prudential Compliance Statement Reported Non-Compliance

2018–19

Reported instances of non-compliance with the Records Standard

8

Reported instances of non-compliance with the Disclosure Standard

55

Reported instances of non-compliance with the Liquidity Standard

12

Reported instances of non-compliance with the Governance Standard

9

Reported instances of non-compliance with the Refunding Responsibilities *

98

6. As part of its Aged Care Financial Report, an approved provider submits its Annual Prudential Compliance Statement (APCS) to the Secretary of the Department of Health. The provider’s prudential compliance is assessed by the Commission.

7. Providers are required to submit an APCS within four months of the end of the financial year, hence 2019–20 data will not be available until after 31 October 2020.

* Figures include reported instances of non-compliance with late refunds and applicable interest.

Transparency of performance

We are committed to providing transparency of performance information about providers to support consumer choice, promote continuous improvement and performance benchmarking with providers, and to give visibility to the Commission’s work.

We publish information about a provider’s performance in relation to their responsibilities as an aged care provider on our website. In addition, certain information is also published on the My Aged Care website.

The Rules require the Commission to publish certain information including site audit and review audit performance reports, accreditation and re-accreditation decisions, reconsideration decisions and Administrative Appeals Tribunal decisions.

We also publish other information about the outcomes of our regulatory and complaints functions such as:

  • regulatory actions taken in response to provider non-compliance
  • complaints directions
  • sector performance data.

Publication of the outcomes of the Commission’s regulatory and complaints functions ensures transparency and visibility to:

  • help consumers make informed choices about aged care services
  • drive improvements in the quality and safety of aged care services
  • enable providers to benchmark their performance and manage risks and continuous improvement
  • inform the public about the Commission’s work.

Refer to the Regulatory Bulletin RB 2020-11 Publication of provider performance information on our website for further information.

Performance reports

From 1 January 2020, the Commission prepares a performance report following all performance assessments. The performance report:

  • includes an assessment of the provider’s performance, in relation to a service, against the Quality Standards (compliant/ non-compliant decision for each assessed Standard and requirement level, where applicable)
  • may specify any areas in which improvements must be made to ensure the Quality Standards are complied with
  • may include any other relevant matters.

The new performance report allows for clear delineation between the report developed by the assessment team and the final performance report developed by the Commissioner.

In future years the performance reports following performance assessments will be published on the Commission’s website.

Intelligence-led regulation

The Commission’s intelligence-led regulation is based on understanding and responding to both systemic risk and individual provider risk. Sector-wide risk is identified through research, sector trend analysis, and strategic conversations with consumers and providers. We use a variety of performance information and work with other regulators and stakeholders to identify and understand individual provider risk. Referrals also inform our understanding of risks.

From 1 July 2019 to 30 June 2020, the Commission received 15,662 internal and external referrals from a variety of sources. This included case intelligence from complaints, compliance and quality activities, and referrals from the public, the media and other organisations.

In 2019–20, we received 1,260 intelligence reports from state and territory government public health units; some in relation to outbreaks of infections.

Risk-based targeting and information sharing

Leading up to 1 July 2020, the Commission supported the ‘More Choices for a Longer Life’ budget measure to strengthen regulation through risk-based targeting and information sharing. During 2019–20, the Commission worked with the Department of Health to co-develop risk profiling and information sharing tools. The tools will enable us to have a broader, integrated view of the aged care sector to improve identification of risk and protection of consumers’ health, safety and well-being. During 2020–21 we will integrate these tools into operational processes, as well undertaking further development to improve the predictive power and scope of risk areas of the targeting tools, to improve regulatory decision-making based on broader ranges of intelligence.

Table 9: Source of referrals for 2019–2

Source of referrals

Number of referrals, 2019–20

Internal (Complaints)

2,164

Internal (Quality Assessment & Monitoring) 8

7,355

Department including Compliance

874

State Government Public Health Units

1,260

Public, media, Royal Commission, other

4,009

Total

15,662

8. Includes referrals from consumer experience interviews and other surveys.

Compulsory reporting

To help protect aged care residents, the Aged Care Act 1997 has compulsory reporting provisions. The responsibility for receiving, assessing, and managing compulsory reporting transferred from the Department of Health to the Commission on 1 January 2020.

This means that approved providers of residential aged care services are responsible for ensuring that suspicions or allegations of reportable assaults occurring at their services are reported within 24 hours to both local police and the Commission.

The Act also requires approved providers to report if a consumer is absent from the service without explanation and the absence has been reported to the police. The Commission requests approved providers to advise if that consumer has returned to the service. If the consumer is still absent at the time of the report, the Commission will follow up with the provider until they have been located. In addition, the Commission may also follow up to ensure that appropriate actions have been put in place to prevent reoccurrence.

These requirements ensure that those affected receive timely help and support, and that operational and organisational strategies are put in place to prevent the situation from occurring again. Such strategies help to maintain a safe and secure environment for residents.

From 1 January 2020 to 30 June 2020, the Commission received 2,650 notifications in relation to assaults reported under the Act. There were 561 notifications of unexplained absences of residents.

In March 2020, the government provided additional funding to the Commission to expand its processes in relation to responding to compulsory reports. This has resulted in more detailed and timely risk assessments, and increased follow up with individual approved providers to determine the outcome of internal investigations and seek additional information where necessary.

† Includes three sub-categories of serious physical assault, sexual assault, and a combination of serious physical and sexual assault.

Consumer experience reporting

Consumer experience interviews are one way that the Commission seeks to understand the consumer sentiment about the aged care sector. Consumer Experience Reports (CERs) commenced in 2017 in residential aged care services during site audits. From December 2019, the Commission changed the consumer experience collection from a routine randomised sample during site audits to a risk-based approach across all visits.

Given interest in the consumer experience of the home services sector, we continued to trial consumer experience interviews for home services. The interview questions were based on work in collaboration with the Australian Institute for Primary Care and Ageing from La Trobe University with testing by Dementia Australia.

From 1 July 2019, consumers were provided the opportunity to participate in a face-to- face consumer experience interview or the same interview by telephone. An online option will be added in 2020–21.

From May 2020, a random sample of over 5,500 consumers of Home Care Packages (HCP) was invited to participate in a telephone survey about their experience of their HCP services. The telephone survey was a final trial to evaluate the feasibility of implementing an ongoing consumer survey of this kind for home services.

The Commission uses the feedback and results from these interviews with consumers to assist in gathering evidence to assess performance of the service. Accordingly, we may use the structured interview tool at any time when we have contact with service providers or consumers.

Delegation of decision-making

Under the ACQSC Act and Rules, the Commissioner may delegate functions or powers to a member of the Commission’s staff. The delegations must be in writing and the delegate must comply with any written directions of the Commissioner.

The ACQSC Act and Rules provide the framework for our statutory decisions, including matters that must be taken into account when making a decision.

When making statutory decisions, delegates outline the reasons for the decision and evidence considered in making the decision. Decisions are clearly communicated to providers and may be published on our website.

Delegated decision-makers monitor statutory and internal decision-making timeframes to ensure that all timeframes are consistently met.

Workforce

Quality assessors

Registration of quality assessors

Our performance assessments are undertaken by registered quality assessors who have:

  • completed an approved course delivered by the Commission about aged care quality assessment
  • satisfied a range of other requirements as specified in the Rules.

At 30 June 2020, there were 207 registered quality assessors nationally, where:

  • 136 (66 per cent) were employed by the Commission on a full-time, part-time or casual basis
  • 12 (six per cent) were external assessors engaged on a contract basis
  • 34 (16 per cent) were external assessors engaged on a contract basis through a labour hire agency
  • 25 (12 per cent) had current registration but may have ceased employment or were no longer contracted by the Commission to conduct assessment activities.

In 2019–20 we made two decisions to refuse re-registration of a quality assessor and cancelled the registrations of three quality assessors upon their request.

Of the 207 registered quality assessors, 92 (44 per cent) had nursing qualifications and experience.

Allied health professionals are among the other registered quality assessors.

A person whose registration as a quality assessor has been refused or cancelled may request reconsideration of the decision to refuse or cancel the registration. In 2019–2020 there were no requests for reconsideration of a registration decision.

Read more about our workforce in Management and Accountability.

Seeking provider feedback

We regularly seek feedback from providers on assessment and monitoring visits conducted by our quality assessors.

At the conclusion of a site visit, providers are invited to complete a confidential feedback form about the visit. The responses inform the Commission’s continuous improvement processes.

Collection of all feedback is completed by an independent third party, Datatime Services.

During 2019–20, the confidential site visit feedback form was revised to reflect the implementation of the Quality Standards, and to better align with our assessment methodology and quality assessor code of conduct. Data is collected from visits to residential aged care services, home services and National Aboriginal and Torres Strait Islander Flexible Aged Care Program services.

During 2019–20, 617 of the revised site visit feedback forms were received, and the summary of responses are outlined in Table 10. The majority of visits were assessment contacts (56 per cent) followed by site audits (36 per cent). Overall sentiment was positive, with 78 per cent of the core questions returning positive responses (strongly agree or agree) and 97 per cent of the focus questions returning positive responses.

Table 10: Summary of feedback received from the confidential site visit feedback form, 2019–20

Questions

% positive responses

% neutral responses

% negative responses

1. On arrival, the assessment team members introduced themselves to you and gave you a written notice about their authority for the visit

97.2%

1.0%

1.8%

2. The assessment team explained how the assessment would be conducted

97.7%

1.0%

1.3%

3. The assessment team communicated effectively with you and your staff during the visit

93.0%

2.3%

4.7%

4. The assessment team spoke with consumers and their representatives to discuss the care and services they are receiving

97.4%

1.1%

1.5%

5. The assessment team were respectful during the visit

94.3%

2.3%

3.4%

6. The assessment team took reasonable steps to minimise the impact of their visit on the operation of the service

92.0%

4.7%

3.2%

7. The assessment team helped you and your staff

to understand the information they were seeking

91.4%

4.6%

4.1%

8. The assessment team were fair in their approach

90.4%

5.1%

4.6%

9. A member of the assessment team met with you on the last day of the visit to discuss the key issues that the team identified during the visit

93.7%

3.3%

3.0%

Focus question: My service engages consumers as partners in the design and delivery of care

97.2%

1.8%

1.0%

Continuing professional development

Quality assessors are required to undertake a minimum of 15 hours of relevant training each year they are registered. At least 10 of the 15 hours must be training developed, delivered or approved by the Commission.

The Continuing Professional Development (CPD) program aims to:

  • develop quality assessor skills and knowledge, and maintain currency related to the industry environment and government policy agenda
  • contribute to the annual 15 hours of professional development required to be undertaken by all quality assessors to maintain their registration.

In 2019–20, we made available six hours of face-to-face training to each quality assessor through CPD workshops held in October and November 2019. Further training and reading options identified as suitable CPD by other providers were also approved by the Commission and made available to quality assessors to contribute towards the CPD requirements to maintain their registration.