The Aged Care Royal Commission (ACRC) found significant failures in approved providers’ governance systems, including a lack of oversight from the governing body and as a result a suite of new requirements have been rolled out targeting these issues. The legislative reforms are aimed at improving transparency and accountability as well as ensuring that approved providers focus on the best interests of their care recipients.
A major part of the reforms is the Governing Body Statement of Compliance and increased reporting of provider operations. These reforms directly relate to the ACRC’s recommendations to ensure annual reporting that will increase scrutiny. One of these new obligations is the requirement to provide a Statement of Compliance on behalf of the governing body. This statement is due no later than four months after the reporting period (ie. 31 October 2023).
What is the “Statement of compliance”?
Commencing late last year, the governing body must now attest to a Statement of Compliance for each reporting period. The Statement must be signed by a member of the governing body and informs the Department whether the approved provider has been compliant with its responsibilities under the Aged Care Act 1997 and requirements under the Aged Care Quality and Safety Commission Act 2018 in that reporting period. Importantly, this does not just include reporting non-compliance found by the Aged Care Quality and Safety Commission.
The approved provider has an obligation to confirm whether it believes it has been compliant, and to set out the non-compliance if it has occurred. If there is, or has been non-compliance, it must also provide the following information:
- each responsibility or requirement that the governing body believes that the approved provider has failed to comply with;
- the reasons why the approved provider has failed to comply with the responsibility or requirement; and
- the actions that the provider has taken, has started to take or will take to rectify the non‑compliance.
This must be completed for each instance of non-compliance, although “similar” non-compliance should be grouped together.
All or some of the information provided may be published online, so it is important providers carefully consider what information is being provided.
What is non-compliance?
Non-compliance in this context relates to any non-compliance with an approved provider’s responsibilities under the Aged Care Act (which in turn includes its Principles) and the requirements under the Aged Care Quality and Safety Commission 2018. It is not limited to the breaches of the Aged Care Quality Standards.
The following are examples of non-compliance that would need to be reported:
- Breach of the approved providers responsibilities under the Code of Conduct;
- Breaches of the Charter of Aged Care Rights (such as a consumer’s right to privacy);
- Breaches of the Fees and Payments Principles (such a breaching the requirements in relation to room moves);
- Breaches of the User Rights Principles (such as breaches in relation to Security of Tenure); and
- Breaching the Quality of Care Principles such as a breach of the requirements regarding Incident Management and SIRS.
When explaining why the non-compliance occurred, providers will need to identify the general nature of the issues. For example, issues relating to: a culture of inclusion and respect for care recipients; supporting care recipients to exercise choice and independence; delivery of safe and quality personal and clinical care; or mismanagement of RADs, etc.
What does this mean for providers?
Whilst self-assessment against the Quality Standards is not new, the Statement of Compliance requires much more of Governing Bodies. Providers will need to self-report non-compliance in a way they never have before and be aware that anything they report may be made public. The approved provider and governing body must have a system in place in order to identify non-compliance with its responsibilities and ensure these systems are reviewed throughout this process.
For example, approved providers will need to consider any non-compliance identified in complaints, a root cause analysis or investigation into an incident. They will also need to consider whether one instance of conduct falling below expectations would amount to non-compliance with a responsibility or a requirement.
Providers will also need to be vigilant to ensure that the wording used in regular quality auditing is consistent with the provider’s understanding of compliance. For example, we often see self-assessments suggest that something is “non-compliant”, when in reality it is compliant, however there is room for improvement. Where this occurs, providers will need to consider the process for picking this up and making the governing body aware when it is completing the Statement of Compliance.
A range of regulatory action and monitoring can stem from any disclosure of non-compliance and as such this is not a simple exercise but one that must be carefully considered.
How we can help?
Russell Kennedy’s aged care team is able to provide advice about the content of the Statement of Compliance. We have a Governing Body Responsibilities Toolkit that will assist the Governing Body to comply with the governance reforms. Download our flyer here to find out about Russell Kennedy's Governing Body Responsibilities Toolkit, and email rkagedcare@rk.com.au to find out about pricing and to purchase all or any of the resources available.
Please contact Victor Harcourt (03) 9609 1639 or Anita Courtney (03) 8602 7211 for further information about the above.
Russell Kennedy will be providing a training webinar in the coming weeks in relation to these changes. If you’d like to receive this invitation, please subscribe to our aged care mailing list here if you haven’t already.