Approved providers must satisfy aged care worker screening requirements under the Aged Care Act (1997) (Cth) (the Act) and the Accountability Principles 2014, to ensure that persons with certain criminal convictions do not provide aged care.
On 16 June 2021, amendments were made to the Act to recognise a National Disability Insurance Scheme Worker Screening Clearance Check (NDIS Check) for screening requirements in some circumstances.
The rules are different for approved providers that are also registered NDIS providers.
Approved providers that are not registered NDIS providers
In most circumstances police checks are required for new staff and volunteers who work in an aged care role. However, if a new staff member or volunteer has evidence of a valid NDIS Check you can accept this as clearance. This may be the case if the worker has moved from a role supporting NDIS participants or works in a different role at the same time supporting NDIS participants.
Your responsibility under the Aged Care Act is the same whether a worker is providing a police check or an NDIS Check. You have to be satisfied that the NDIS Check is valid and maintain a record of the clearance (see below).
A valid NDIS Check is one that:
- has been issued by the NDIS Worker Screening Unit; and
- has not expired.
If you are not delivering NDIS supports and services to NDIS participants, you cannot sponsor a staff member or volunteer to seek an NDIS Check if they don’t already have one.
Please note that NDIS worker screening checks vary in each jurisdiction, so do requirements for working with or without a check. We recommend you seek advice if you have any questions about your specific location.
Approved providers who are registered NDIS providers
Approved providers who are also registered NDIS providers and are delivering supports and services to NDIS participants must ensure that their aged care workers (staff and volunteers) have a valid NDIS Check in order to comply with the NDIS (Practice Standards – Worker Screening) Rules 2018.
A police certificate can meet this requirement only if it was issued before 1 February 2021 and is still current. This is part of the transitional arrangement from 1 December 2020 and only applies to providers automatically deemed to be a registered NDIS provider on this date.
Approved providers must take ongoing reasonable steps to ensure staff members and volunteers who hold an NDIS Check notify them of any change in assessable information (police information or other disciplinary matters).
Record keeping
Approved providers must maintain records that enable them to be able to demonstrate at all times during which the person remains a staff member or volunteer, one of the following:
- a police certificate that is not more than 3 years old;
- a NDIS Check that is not more than 5 years old and is not suspended.
Approved providers that are not NDIS providers should sight the NDIS Check, or evidence of the check, and the information and NDIS Worker Screening ID should be recorded on file.
Approved providers must take reasonable measures to require that each of their staff members and volunteers notify them if they are convicted of an offence or there is any change in assessable information.
Subcontractors
The above is applicable for subcontracted workers and as such providers have a responsibility to ensure those workers have sufficient and compliant checks in place. There is no mandatory requirement to retain copies of these however the Aged Care Quality and Safety Commission has recently increased its scrutiny in this area. There may be risk in providers using alternative systems to engage subcontractors and ensure compliance with the Aged Care legislation, such as contractual arrangements relying on the sub-contractor to comply with the requirements and attesting to this by way of a statutory declaration.
To ensure compliance, approved providers will need to have more regimented systems in place for subcontractors to sight and assess police checks.
Key personnel
Screening requirements for key personnel is a separate process and has different assessment criteria than for staff and volunteers. If the approved provider is a registered NDIS provider, they must ensure that all key personnel undertake an NDIS Check as well as a police check.
Approved providers must receive both clearances in order to consider any suitability matters relating to their engagement of key personnel. For example, an NDIS Check will not automatically disclose whether an individual has at any time been convicted of an indictable offence, which is a suitability matter a provider must carefully consider.
Taking the same example, being convicted of an indictable offence does not automatically disqualify a person from employment under the Act. An approved provider will need to be “reasonably satisfied” that the person is suitable for the role having considered the matter and informing the Aged Care Quality and Safety Commission within 14 days of becoming aware of the matter.
Approved providers must ensure they consider the suitability of key personnel at least every 12 months. You can read more about the suitability requirements in our previous articles:
How we can help
Russell Kennedy can assist in developing a suitability checklist, update employment contracts, provide communications and also training to key personnel in management and at Board level. Contact Victor Harcourt, Anita Courtney or any member of our Aged Care Team if you require assistance.
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