This instrument is the Complaints Amendment (Other Functions) Principles 2018.

This instrument commences the day after it is registered.

This instrument is made under the Aged Care Act 1997.

Each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.

Schedule 1—Amendments

Part 1—Amendments

Complaints Principles 2015

1 Section 4

Insert:

CHSP means the program administered by the Commonwealth and known as the Commonwealth Home Support Programme.

NATSIFACP means the program administered by the Commonwealth and known as the National Aboriginal and Torres Strait Islander Flexible Aged Care Program.

service provider means an entity that provides services through the CHSP or NATSIFACP programmes under a funding agreement with the Commonwealth.

Note: An entity may be both an approved provider under the Act and a service provider. The appropriate approach will depend on whether the issue relates to a CHSP or NATSIFACP funding agreement, or not.

funding agreement means a CHSP or NATSIFACP funding agreement between the Commonwealth and a service provider.

2 Section 5

Repeal the section, substitute:

5 Purpose of this instrument

(1) For Division 94A of the Act, this instrument provides a scheme for the management and resolution of complaints and other concerns about aged care services through which aged care is provided by approved providers.

(2) For paragraph 95A‑1(2)(c) of the Act, this instrument confers on the Aged Care Complaints Commissioner:

(a) other functions related to the management and resolution of complaints and other concerns about CHSP and NATSIFACP services through which care is provided by service providers;

(b) the function to educate people about, and develop resources relating to, best practice in the handling of:

(i) complaints relating to a service provider’s responsibilities under a CHSP or NATSIFACP funding agreement; and

(ii) matters arising from such complaints.

3 Subsection 6(1)

Repeal the subsection, substitute:

(1) A person may make a complaint to the Aged Care Complaints Commissioner raising an issue or issues about:

(a) an approved provider’s responsibilities under the Act or under the principles made under section 96‑1 of the Act; or

(b) a service provider’s responsibilities under a funding agreement.

4 Paragraph 7(b)

Omit “or the approved provider”, substitute “, approved provider, or service provider”.

5 Section 7 (note 2)

Repeal the note, substitute:

Note 2: The following are examples for paragraph (b):

(a) assist the complainant to clarify the issues to enable the complainant to raise them directly with the approved provider or service provider;

(b) telephone the approved provider or service provider on behalf of the complainant to discuss and resolve the issue raised by the complainant;

(c) advise the approved provider of the approved provider’s rights and responsibilities under the Act and, in doing so, facilitate the resolution of the issue;

(d) advise the service provider of the service provider’s rights and responsibilities under a funding agreement with the Commonwealth and responsibilities relating to compliance with the Home Care Standards.

6 Paragraph 8(c)

Repeal the paragraph, substitute:

(i) this instrument; or

(ii) the administrative scheme for resolution of complaints about service providers as it existed immediately before the commencement of the Complaints Amendment (Other Functions) Principles 2018;

7 Section 11

Repeal the section, substitute:

If the Aged Care Complaints Commissioner receives information (whether in a complaint or otherwise) that raises an issue about the responsibilities of:

(a) one or more approved providers under the Act or under principles made under section 96‑1 of the Act; or

(b) one or more service providers under a funding agreement;

the Commissioner may undertake a resolution process in relation to the issue.

8 Subsection 12(1)

After “approved provider” (wherever occurring), insert “or service provider”.

9 After paragraph 12(2)(b)

Insert:

(ba) visit the location at which the CHSP or NATSIFACP services are provided by the service provider or the offices of the service provider;

10 Paragraph 12(2)(c)

After “approved provider”, insert “or service provider”.

11 Section 13 (heading)

Repeal the heading, substitute:

13 Notifying approved provider or service provider

12 Subsection 13(1)

After “approved provider”, insert “or service provider”.

13 Subsection 13(2)

Repeal the subsection, substitute:

(2) If the Aged Care Complaints Commissioner decides to make an unannounced visit to the location at which aged care services, CHSP or NATSIFACP services are provided by the approved provider or service provider or to the offices of the approved provider or service provider, the Commissioner need not notify the approved provider or service provider of the issue until the time of the unannounced visit.

14 Section 14

After “approved provider” (wherever occurring), insert “or service provider”.

15 Paragraph 14(d)

After “the Commissioner” insert “, for an issue relating to an approved provider,”.

16 After paragraph 14(d)

Insert:

(da) the Commissioner, for an issue relating to a service provider, has been notified that the Commonwealth has initiated action under a funding agreement which relates to the issue;

17 After subparagraph 14(g)(vi)

Insert:

(vii) for an issue relating to a service provider—the issue has already been dealt with under the administrative scheme for resolution of complaints about service providers as it existed immediately before the commencement of the Complaints Amendment (Other Functions) Principles 2018;

18 Section 15 (heading)

Repeal the heading, substitute:

15 Directions to approved provider or service provider

19 Subsection 15(1)

Repeal the subsection, substitute:

(1) If, as part of a resolution process in relation to one or more issues, the Aged Care Complaints Commissioner is satisfied that:

(a) for an issue relating to an approved provider—the approved provider to which the issues relate is not meeting the approved provider’s responsibilities under the Act or under principles made under section 96‑1 of the Act; or

(b) for an issue relating to a service provider—the service provider to which the issues relate is not meeting the service provider’s responsibilities under a funding agreement;

the Commissioner may give directions to the approved provider or service provider.

20 Subsection 15(2)

Omit “The directions”, substitute “For an issue relating to an approved provider, the directions”.

21 At the end of subsection 15(2)

Add:

(2A) For an issue relating to a service provider, the directions must require the service provider to take stated actions in order to meet the service provider’s responsibilities under a funding agreement with the Commonwealth.

22 Subsection 15(3)

After “approved provider” (wherever occurring), insert “or service provider”.

23 Subparagraph 15(4)(a)(ii)

Before “the concerns”, insert “for an issue relating to an approved provider—”.

24 After subparagraph 15(4)(a)(ii)

Insert:

(iii) for an issue relating to a service provider—the concerns of the Commissioner about the apparent failure of the service provider to meet the service provider’s responsibilities under a funding agreement; and

25 Paragraph 15(4)(b)

After “approved provider” (wherever occurring), insert “or service provider”.

26 Paragraph 15(4)(c)

After “approved provider”, insert “or service provider”.

27 Subsection 15(5)

After “approved provider”, insert “or service provider”.

28 Subsection 15(6)

After “approved provider”, insert “or service provider”.

29 Subsection 15(7)

Repeal the subsection, substitute:

(7) The Aged Care Complaints Commissioner may, after considering any response given under subsection (5):

(a) for an issue relating to an approved provider—give written directions to the approved provider directing the approved provider to take stated actions in order to meet its responsibilities under the Act or under principles made under section 96‑1 of the Act; or

(b) for an issue relating to a service provider—give written directions to the service provider directing the service provider to take stated actions in order to meet its responsibilities under a funding agreement.

Note: If the Aged Care Complaints Commissioner is satisfied that the approved provider or service provider has addressed the issue, the Commissioner may decide to end the resolution process under paragraph 14(b).

30 Subsection 15(8)

After “approved provider” (wherever occurring), insert “or service provider”.

31 Subsection 15(9)

After “approved provider” (wherever occurring), insert “or service provider”.

32 Paragraph 15(10)(a)

After “approved provider”, insert “or service provider”.

33 Subsection 15(10) (note)

Repeal the note, insert:

Note 1: The Secretary may initiate action under Part 4.4 of the Act in relation to an approved provider who fails to comply with a direction.

Note 2: The Commonwealth may initiate action under the funding agreement in relation to a service provider who fails to comply with a direction.

34 Section 17

After “approved provider” (wherever occurring), insert “or service provider”.

35 Section 20

Repeal the section, substitute:

Nothing in this instrument prevents the use of information that was obtained during the administration of this instrument for any other purpose related to the administration of either:

(a) the Act or principles made under section 96-1 of the Act; or

(b) the funding agreement.

36 After section 21

Insert:

21A Commonwealth may take action under the funding agreement

Nothing in this instrument prevents the Commonwealth from taking action under a funding agreement in relation to an issue raised in a complaint or an issue raised in information received by the Aged Care Complaints Commissioner.

37 Paragraph 22(3)(b)

After “approved provider”, insert “or service provider”.

38 Paragraph 22(4)(b)

After “(d),”, insert “(da),”.

39 Paragraph 23(3)(a)

After “approved provider”, insert “or service provider”.

40 Subsection 23(4)

After “approved provider”, insert “or service provider”.

41 Section 24

Insert:

old arrangements means the administrative scheme for management and resolution of complaints about service providers, as it existed immediately before the commencement of the Complaints Amendment (Other Functions) Principles 2018.

42 After section 31

Add:

32 Transitional—complaints about service providers

(1) This section applies to a complaint relating to a service provider if:

(a) the complaint is being handled under the old arrangements before the commencement of the Complaints Amendment (Other Functions) Principles 2018; and

(b) immediately before the commencement of the Complaints Amendment (Other Functions) Principles 2018, each issue raised in the complaint was not dealt with under the old arrangements.

(2) The Aged Care Complaints Commissioner must deal with the complaint as if it were a complaint made to the Aged Care Complaints Commissioner under section 6 of this instrument.

33 Transitional—requests for review of decisions regarding complaints about service providers

(1) This section applies to a request for review of a decision regarding a complaint relating to a service provider if:

(a) the request was made under the old arrangements before the commencement of the Complaints Amendment (Other Functions) Principles 2018; and

(b) immediately before the commencement of the Complaints Amendment (Other Functions) Principles 2018:

(i) the request was not dealt with under the old arrangements; or

(ii) a decision to undertake a new resolution process was made under the old arrangements in relation to the request, but the new resolution process was not yet completed.

(2) The Aged Care Complaints Commissioner must deal with the request or complete the new resolution process (as the case may be) under this instrument. For this purpose, Parts 1 to 7 of this instrument apply as if:

(a) the request were an application made to the Aged Care Complaints Commissioner under section 22 of this instrument in relation to a decision made by the Commissioner; and

(b) the Aged Care Complaints Commissioner received the application immediately after commencement of the Complaints Amendment (Other Functions) Principles 2018.