Composition of approved provider’s governing body
An approved provider must ensure that a majority of members of the governing body are independent non-executive members (the majority requirement) and at least one member of the governing body has experience in the provision of clinical care (the clinical care requirement).
This is not applicable to approved providers who have a governing body of less than 5 members and only offer aged care services to fewer than 40 care recipients (except when that provider is known as an Aboriginal Community Controlled Organisation). Nor do these responsibilities apply to approved providers that are a State or Territory, a State or Territory authority or a local government authority.
Approved providers may seek an exemption from the majority and clinical care requirements by applying to the Aged Care Quality and Safety Commissioner (ACQSC) in writing. The ACQSC may take into account the following:
- the number of aged care services through which the provider provides aged care and the location of those services;
- the number of care recipients;
- the membership of the governing body of the provider and the annual turnover in the provider’s key personnel;
- any arrangements the provider has made or proposes to make to assist:
- the governing body members to act objectively and independently and in the best interests of the provider; or
- the governing body of the provider to seek, when it considers it necessary to do so, advice from a person with experience in the provision of clinical care; and
- any other matter specified in the Accountability Principles.
Notice of the determination will be provided to the approved provider, and in the event that the exemption is not granted, the ACQSC is required to give written notice of the decision, the reasons for the decision and the process for reconsideration of the decision.
Advisory bodies
- Quality Care Advisory Body
An approved provider must establish, and continue to operate, a quality care advisory body (QCAB) to give the governing body a written report at least once every 6 months about the quality of the aged care that is provided through their service. The QCAB is also empowered at any time to give feedback to the governing body about the quality of care provided.
The governing body of the provider is required to consider any written report or feedback which is given, when making decision in relation to the quality of the aged care provided and to advise in writing how the report and/or feedback was considered. Additionally, if requested to do so by the QCAB, the governing body must provide information about the quality of aged care provided.
Membership of the QCAB and the written report must comply with the requirements specified in the Accountability Principles, which are yet to be published.
- Consumer Advisory Bodies
An approved provider must offer to care recipients and their representatives the opportunity to establish a consumer advisory board (CAB) to give the governing body of the provider feedback about the quality of care provided. This offer must be made in writing at least once every 12 months.
Where one or more CAB’s are established, the governing body of the provider must consider any feedback that is given when making decisions in relation to the quality of service and advise in writing how such feedback was considered.
Requirements of Staff members
An approved provider must require the governing body to ensure that staff members, including employees and contractors, whether employed directly or through a labour hire company:
- have appropriate qualifications, skills or experience to provide the care or other services that are provided to care recipients; and
- are given opportunities to develop their capability to provide that care or other services.
Reporting requirements
Approved providers will be required, within 3 months of the end of a reporting period, to give the Secretary information as specified in the Accountability Principles.
This information is yet to be published, but in accordance with the Royal Commission recommendations will likely include information regarding key personnel, finances and complaints.
Ordinarily the reporting period will be the period of 12 months starting on 1 July of each year, unless it is otherwise determined for the provider to be the first day of a different month of a year.
Constitutions of wholly-owned subsidiaries
If an approved provider is a body incorporated under the Corporations Act 2001, which has a constitution and the approved provider is a wholly owned subsidiary of another body corporate (the holding company) which is not an approved provider, it is a responsibility of the approved provider to ensure that the constitution does not authorise a director to act in good faith in the best interests of the holding company.
What can providers do to prepare?
We anticipate that further information as to reporting requirements and membership of the QCAB will be published in the Accountability Principles within the coming months. For now, approved providers should review the composition of their governing bodies and ensure compliance with the majority and clinical care requirements by 1 December 2022 and/or consider whether it is appropriate to seek an exemption.
For more information, or to discuss how we may be able to assist your business, please contact Panetta McGrath Lawyers on (08) 9321 0522.
