The Aged Care and Other Legislation Amendment (Royal Commission Response No. 2) Bill 2021 (“Bill”) was meant to commence 1 March of this year. Although this start date is no longer applicable, approved providers must be ready for new key personnel rules which require a more rigorous and detailed assessment criteria for engaging those in key positions and require the provider to report any changes to the Aged Care Quality and Safety Commission within 14 days.
Who are key personnel?
Approved providers should be well aware of the definition of key personnel; this is not changing. Broadly speaking, the key personnel of an entity are those responsible for key aspects of an approved provider’s operations, which ultimately underpin the quality of care and services provided to care recipients.
Key personnel include managers, board members and anyone else with “significant influence over planning, directing or controlling the activities of the approved provider.”
What are the new obligations in relation to key personnel?
Providers must be clear about which roles and personnel constitute key personnel and ensure that they:
- Consider the new suitability criteria before engaging the person; and
- Notify the Commission of any changes in key personnel or any suitability matters within 14 days. This is a shorter timeframe than previously required.
Failure to notify will result in an offence of strict liability as well as possible sanctions under the Aged Care Quality and Safety Commission Act 2018.
Providers will need to consider a much broader range of suitability matters in relation to key personnel than they currently do. Presently, providers only need to check if the person is bankrupt or if they have a criminal record for an indictable offence, both of which automatically disqualify the person from acting as key personnel.
Some of the key new matters to consider include (but are not limited to):
- the individual’s experience in providing aged care or other relevant care;
- whether the individual has been convicted of an indictable offence or has been the subject of a civil penalty order; and
- whether the individual is or has been the subject of adverse findings or enforcement action by a regulatory body. For example, for key personnel with nursing or allied health qualifications, this would include adverse findings by a Tribunal in relation to the person’s conduct as a health professional.
A full list of the propose suitability matters can be found here.
Unlike the current regime where a conviction or bankruptcy automatically disqualifies the person, the fact that a person has a mark against them under this criteria will not automatically disqualify them. Rather, the provider will need to conclude whether it is “reasonably satisfied” that the individual is suitable having regard to all the suitability matters and inform the Commission of this within 14 days of becoming aware that there is a change in circumstances relating to suitability matters. This notification must be given to the Commission in the prescribed form and must include information such as details of the change in circumstance, whether the provider considered the suitability matters and whether the provider is reasonably satisfied that the individual is suitable.
If a suitability matter applies, for example, the person has been bankrupt, providers will need to carefully consider whether to engage that person. For example, a fraud conviction will hold more weight if it is directly relevant to the role (eg a conviction for fraud may disqualify someone from being CFO but not a Director of Nursing).
If the Commission disagrees with a provider’s assessment, it could see this as indicating a lack of understanding by the provider of its obligations and trigger further compliance action.
This is a far more involved process than the present assessments and should be undertaken as part of the recruitment process.
What if the Commission does not think an individual is suitable to be key personnel?
Under the Bill the Commission will have power to make determinations relating to the suitability of key personnel including determining that an individual is not suitable taking into account the “suitability matters”. There is a process the Commission must follow before making this determination.
If following this process, the Commission determines that the person is not suitable, they can require the provider to take action to ensure the individual ceases from being a key personnel. It will be an offence to not comply with this.
If a provider disagrees with the Commission’s final decision, they can seek review at the Administrative Appeals Tribunal or through the Courts.
How can providers prepare?
Providers must ensure they consider the suitability of key personnel at least every 12 months.
We recommend providers implement a checklist for the provider and individual key personnel to complete. We recommend that this checklist is designed as soon as possible so as to meet requirements when the Bill commences. This checklist should ensure that the provider can be satisfied that an individual is suitable.
We also recommend providers ensure their employment agreements and policies are updated and contain an obligation for key personnel to immediately notify the provider of any suitability matters.
Key personnel must also be made aware of their obligations under the reforms, it will not be acceptable to say that they were not aware of these changes. We recommend that providers write to their key personnel to inform them of these changes as soon as possible. This should give them time to consider whether there are any issues with them continuing in the role.
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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here.
Other useful resources
Key Personnel obligations for all approved aged care providers take effect 1 December 2022
Russell Kennedy Key Personnel Package of Documents: Russell Kennedy has developed a range of resources that approved providers can purchase individually or as a pack to ensure compliance with the new requirements of key personnel. We have a Key Personnel Suitability Matters Information and Assessment Form and Guide to assist with gathering and assessing the information. We have letters and guides for key personnel explaining the changes, the regulatory context and their key obligations. We have also developed a template policy, as well as clauses for agreements and contracts.
Download our flyer here to find out about the key personnel package, and email rkagedcare@rk.com.au to find out about pricing and to purchase all or any of the resources available.