As set out in the our recent summary of the Aged Care and other Legislation Amendment (Royal Commission Response) Act 2022, from 1 December 2022 approved providers are required to notify the Aged Care Quality and Safety Commission (ACQSC) of certain matters related to key personnel and to reassess the suitability of those key personnel annually.
These amendments replace the current disqualified individual arrangements. Of note, the time frame for notification has changed from 28 days to 14 days.
Who are key personnel?
Key personnel include those responsible for executive decisions and other persons who have authority, and/or significant influence over, planning, directing or controlling the activities of the entity.
For approved providers, the definition includes any appropriately qualified individual who is, or is likely to be, responsible for the provision of nursing services and any person who is, or is likely to be, responsible for the day-to-day operations of the service, irrespective of whether the person is an employee.
Responsibilities of approved providers
A. Notifications regarding new key personnel
Within 14 days, an approved provider must notify the ACQSC that an individual has become a member of key personnel. The notification must state whether the approved provider has considered the suitability matters in relation to the individual, and that the provider is reasonably satisfied that the individual is suitable to be involved in the provision of aged care.
B. Notifications regarding cessation of key personnel
When an individual ceases to be one of the key personnel, an approved provider must, within 14 days, notify the ACQSC of their cessation and include in the notification reasons why the individual ceased to be a member of key personnel.
C. Notifications regarding change of circumstances related to suitability matters
An individual who is a key personnel member must notify an approved provider within 14 days of becoming aware of a change of circumstances related their suitability. It is an offence to fail to comply with this requirement.
The approved provider, within 14 days of becoming aware of the above, must then notify the ACQSC of the following:
- details of the change of circumstances;
- whether the approved provider has considered the suitability matters;
- whether the approved provider is reasonably satisfied that the individual continues to be suitable in involved in the provision of aged care; and
- what, if any, action the provider has taken or proposes to take in relation to the person.
D. Consequences of non-compliance
It is a strict liability offence to fail to comply with the notification obligations, and puts the provider at risk of a sanction, including revocation or suspension of approved provider status.
E. Annual reviews of suitability
An approved provider is required, at least once every 12 months, to consider the suitability matters in relation to each individual key personnel member and be reasonably satisfied that the individual remains suitable to be involved in the provision of aged care.
F. Record keeping
An approved provider is to keep records related to key personnel in compliance with the Accountability Principles 2014. However, these record keeping obligations are yet to be published.
Suitability matters to be considered
The suitability matters to be considered are extensive and include:
- the individual’s experience in providing aged care or other relevant forms of care;
- whether they have been the subject of an NDIS banning order;
- whether the person has been convicted of an indictable offence or been subject to a civil penalty order;
- whether the individual is or has been at any time, insolvent under administration;
- whether the individual has been the subject of an adverse finding or enforcement action by certain entities including the ASIC and ACCC;
- whether the individual has been or may be the subject of findings related to fraud, misrepresentation or dishonesty in administrative, civil or criminal proceedings; and
- whether the person is a disqualified person under the Corporations Act 2001.
If ACQSC determines that an individual is not suitable to hold a key personnel position, it must notify both the individual and the provider that it is considering making such a determination and allow them to provide submissions in response.
If an individual or provider disagrees with the Commission’s determination, they make seek review of the decision to the Administrative Appeals Tribunal.
What can providers do to prepare?
As a start, approved providers should begin preparing a record of all key personnel in their organisation and review their suitability to hold that position. This will include seeking information from the individuals as to the suitability matters outlined above, including searches of appropriate databases such as the NDIS Quality and Safeguards Commission, which publishes banning order decisions.
Providers should also ensure that all key personnel are aware of the suitability criteria and their obligation to notify the provider in writing within 14 days of any changes to their suitability arising.
It is also important to ensure effective procedures are drafted to identify changes to key personnel from 1 December 2022 to enable notifications to be made within 14 days and avoid liability for an offence and/or sanction.
For more information, or to discuss how we may be able to assist your business, please contact Panetta McGrath Lawyers on (08) 9321 0522.
