Introduction
The government’s Aged Care and Other Legislation Amendment (Royal Commission Response) Act 2022 passed on 2 August 2022. This legislation implements 9 measures to improve accountability and transparency and responds to 17 recommendations of the Royal Commission into Aged Care Quality and Safety.
From 1 December 2022, there are new governance responsibilities for all approved providers.
Additional responsibilities will commence on 1 December 2023 for providers approved before 1 December 2022.
Effective governance and leadership are vital for ensuring the safety and quality of aged care and positive consumer experiences. The Aged Care Act and Aged Care Quality and Safety Commission Act have been amended to strengthen the governance arrangements of approved providers. These introduce specific changes aimed at:
- improving leadership and culture
- increasing transparency and accountability.
The new responsibilities align with (and are in addition to) the organisational requirements in Standard 8 of the Quality Standards as well as elements of Standards 6 and 7. They apply to approved providers of residential, home and flexible care including short-term restorative care, multi-purpose services and transition care.
If you operate under a grant agreement, such as the Commonwealth Home Support Programme (CHSP) and National Aboriginal and Torres Strait Islander Flexible Aged Care Program (NATSIFACP), these new responsibilities do not apply to your service.
Membership of governing bodies
This requirement does not apply to state or territory approved providers or authorities or to local government authorities and other certain providers as specified below.
Commencement
Existing approved providers: 1 December 2023
Providers that apply for approval on or after 1 December 2022: must comply from the day they become an approved provider.
Your governing body has ultimate responsibility and influence over the care and service provided to consumers. It must have a mix of members with diverse skills, experience and expertise.
Your governing body must have a majority of independent non-executive members and at least one member with experience in providing clinical care.
The following approved providers are not required to meet the governing body composition requirements:
- state or territory approved provider (including a state or territory authority), or a local government authority
- providers with a governing body with fewer than 5 members and who provide care to fewer than 40 recipients
- providers that are an approved Aboriginal Community Controlled Organisation (ACCO).
If you are required to meet the governing body membership requirements but are unable to do so, you can apply to the Commission for a determination that one or both of the requirements do not apply.
Advisory Bodies
This requirement does not apply to state or territory approved providers or authorities or to local government authorities.
Commencement
Existing approved providers: 1 December 2023
Providers that apply for approval on or after 1 December 2022: must comply from the day they become an approved provider.
Quality care advisory body
There is an obligation to establish a quality care advisory body to support and inform the governing body. Members of your advisory body should be appropriately skilled and experienced to assist with problem-solving and identifying areas for improvement within your service.
You can decide how to attract, engage and appoint members and how the quality care advisory body will operate within your governance structure. You do need to make sure the body meets the membership responsibilities and fulfils its obligations.
Consumer advisory body
The consumer advisory body provides valuable feedback to the governing body. They can also assist leaders to build a person-centred culture committed to providing safe and high-quality aged care.
At least once every 12 months, you must offer to establish a consumer advisory body in your service. You can have more than one consumer advisory body depending on consumer interest and your organisational needs.
You may already have advisory bodies in your organisation. You can use these existing bodies for this purpose, providing they meet the new requirements.
Suitability of key personnel
Commencement
All providers: from 1 December 2022
Key personnel play a vital role in your organisation and ensure the delivery of safe, quality care and services. Due diligence in gathering information and assessing your staffs’ ongoing suitability is essential.
To safeguard your organisation and consumers, you must ensure that your key personnel are suitable to provide aged care. You need to assess key personnel suitability at least every 12 months against the ‘suitability matters’ specified in the Aged Care Quality and Safety Commission Act 2018.
Notifying the Commission of certain matters
Commencement
All providers: from 1 December 2022
You need to notify the Commission about changes that relate to key personnel and anything that may materially impact your suitability as an approved provider. It is important that the Commission is aware of these changes to support you manage any related risks.
Changes that impact your suitability, and any changes to key personnel, must be reported to the Commission within 14 days of the change.
Key personnel who work for organisations which are corporations, also have a responsibility to notify the provider of any change in their suitability within 14 days of that change.
Staff qualifications, skills and experience
This requirement does not apply to state or territory approved providers or authorities or to local government authorities.
Commencement
Existing approved providers: 1 December 2023
Providers that apply for approval on or after 1 December 2022: must comply from the day they become an approved provider.
Competent, experienced staff are central to the quality of care and services provided by your organisation. The Royal Commission noted that investments in workplace development are rewarded with higher staff performance, commitment and retention which benefits you and consumers.
Your governing body needs to make sure staff members have the appropriate skills, qualifications and experience necessary to fulfil their duties. It must also ensure that staff have development opportunities that support and build provider capability.
Provider’s constitution
This requirement only applies to a limited number of providers as described below.
Commencement
Existing approved providers that are wholly owned subsidiaries: 1 December 2023
Providers that apply for approval on or after 1 December 2022 that are wholly owned subsidiaries: must comply from the day they become an approved provider.
A constitution is a legally binding set of rules controlling the operations of an organisation. It outlines the responsibilities and powers of directors, the governing body, management and members; and describes a provider's main services and objectives.
In some organisational structures, an approved provider may be a wholly owned subsidiary owned by another body corporate (known as a holding company). Often in these cases, the company constitution allows directors to prioritise the holding company over the subsidiary company. This means that directors can prioritise the holding company over your organisation and your consumers.
If your organisation is a wholly owned subsidiary, you need to make sure its constitution prioritises your consumers (not the holding company).
Information about a provider’s operations
To encourage accountability and transparency, you will need to submit annual information to the Department of Health and Aged Care on your operations. The information collected will become available on My Aged Care for each of the services your organisation provides. This will assist consumers and their representatives to make informed decisions about their care.
Commencement
The reporting period begins on 1 July and ends on 30 June every year. To meet the submission deadline, you need to lodge the information and signed statement of compliance before 31 October.
This requirement commences for all providers from 1 July 2022 for the 2022-23 financial year. Information must be submitted to the Department by 31 October.
Governing for Reform in Aged Care Program
In response to the Royal Commission’s final report Care, Dignity and Respect, an innovative and highly tailored learning program for aged care leaders has been developed – the Governing for Reform in Aged Care Program (the Program).
The Program provides an opportunity for aged care leaders to be ahead of the aged care reforms and implement best practice in aged care organisational and clinical governance, and ensure the provision of safe and high-quality care to consumers.
The Program provides participants with access to highly specialised learning materials and supports, including workshops, online learning modules and resources, podcasts, networking opportunities, coaching and webinars.
We encourage all governing body members and aged care executive leaders to participate in the Program, to be part of a collective drive to transform the aged care sector.
Enrolment in the Program is free for all governing body members and aged care executive leaders of approved providers of residential and home care services.
Learn more about the Program and enrol now
Letter from the Commissioner to approved providers
On 20 September 2022, the Commissioner wrote to Board Chairs and CEOs of approved care providers, encouraging participation in the Governing for Reform in Aged Care program.
Further information and resources
In addition to the information above, please read the Provider responsibilities relating to governance: Guidance for approved providers November 2022 for additional details, examples and scenarios to further support you to understand these responsibilities.
To view the legislation, go to:
- Aged Care and Other Legislation Amendment (Royal Commission Response) Act 2022
- Aged Care Legislation Amendment (Governance and Reporting for Approved Providers) Principles 2022.
The Commission has also produced the following resources for providers:
- Provider governance - provider responsibilities 1 December 2022 - video
- Provider governance - provider responsibilities 1 December 2023 - video
- Strengthening provider governance – webinar, presentation slides and Q&As
- Notify the Commission of certain matters – fact sheet
- Key personnel – reporting changes to suitability matters – fact sheet
- Consider suitability of key personnel – fact sheet
- Provider governance quick reference – poster.