This article is a simplified guide for managers, L&D practitioners, and educators in aged care on how the Aged Care Safety and Quality Commission responds to non-compliance. For the full policy details, view the ACQSC Compliance and Enforcement Policy.
Ensuring the highest standards of care in aged care facilities is a collective responsibility, involving both regulatory bodies and service providers. The Aged Care Quality and Safety Commission (the Commission) and providers have distinct yet interlinked roles when it comes to non-compliance with the Aged Care Act and related quality standards.
To learn more about what the Aged Care Commission identifies, assesses, and detertmines compliance - view our article here.
How the Aged Care Commission Deals with Non-Compliance
When addressing non-compliance issues among care providers, the Aged Care Quality and Safety Commission employs a nuanced, risk-based approach. This strategy is deeply rooted in the foundational guidelines set forth by the Aged Care Act, Commission Act, and associated rules. Key considerations include:.
- Consumer Safety and Well-being: The risk posed to the health, safety, and quality of life for consumers is a pivotal focus.
- Leadership and Governance: The extent to which the provider has implemented effective leadership and governance to mitigate and manage risks to consumers.
- Track Record: How the provider has historically managed the quality and safety of their care.
- Self-Monitoring: The effectiveness of a provider's internal mechanisms for monitoring its care delivery.
- Quality Issues Resolution: The provider's efficiency in identifying and resolving quality-related challenges.
The Commission's actions are proportionate and calibrated to the provider’s demonstrated commitment to compliance. For example, providers who show a willingness and capability to comply will face different enforcement actions compared to those who are either indifferent to delivering high-quality care or deliberately non-compliant, thereby putting consumers at increased risk.
What Actions Does the Aged Care Commission Take When A Provider is Non-Compliant?
Low-Moderate Non-Compliance - Regulatory Actions
The Aged Care Quality and Safety Commission adopts a tailored approach to regulatory action based on the risk posed to consumers and the provider's commitment to compliance. When the risk is low to medium, actions may include:
- Directions: Providers may receive specific guidance to correct non-compliance within set timeframes. Non-adherence can lead to further enforcement.
- Information Requests: Providers may need to submit documentation such as financial reports or self-assessments to show remedial actions taken.
- No Immediate Action: If a provider rectifies its non-compliance effectively, the Commission may decide not to take immediate action. However, this will be noted for future risk assessments.
These actions extend to special programmes like the National Aboriginal and Torres Strait Islander Flexible Aged Care Program. Non-compliance in these cases may result in reduced funding from the Department of Health.
Serious Non-Compliance - Enforcable Actions
When risks to consumers are medium to severe, or if a provider fails to amend non-compliance despite initial regulatory action, the Aged Care Quality and Safety Commission may escalate to enforceable regulatory actions. These tougher measures signify the Commission's diminished trust in the provider's intent and ability to rectify issues.
Enforceable actions are determined case-by-case, factoring in:
- The severity of the non-compliance
- The potential for further harm to consumers
- The likelihood of the provider implementing corrective measures
The objective is to compel providers to swiftly address quality and safety risks. It also serves as a deterrent against future non-compliance. In extreme cases, the Commission may even remove the provider from the sector entirely.
When faced with provider non-compliance, the Aged Care Quality and Safety Commission has a toolkit of actions to enforce rules and standards. These actions range from compulsory information gathering to potential sanctions.
Compulsory Information Gathering Powers
The Commission may issue a written notice demanding specific information or documents within a reasonable timeframe. Failure to comply can lead to legal penalties.
Compliance Notices
These are categorized into Incident Management Compliance Notices (IMCN) and Restrictive Practices Compliance Notices (RPCN). Such notices mandate providers to correct non-compliance within a defined period. Failure can result in civil penalties or sanctions.
Variation to Reduce Period of Residential Service Accreditation
If an accredited residential aged care service fails to meet Quality Standards, the Commission can reduce its accreditation period.
Non-Compliance Notice
Issued when a provider is non-compliant but poses no immediate and severe risk to consumer safety. This notice outlines required remedial actions and could lead to sanctions.
Notice to Remedy Action
Upon satisfactory provider response to a Non-Compliance Notice, a Notice to Remedy may be issued. It mandates a provider to submit an 'Undertaking to Remedy' within 14 days. Non-compliance could lead to further sanctions.
Notice to Agree Action
Where high-to-severe risks are present, the Commission may issue a Notice to Agree, outlining specific actions that the provider must adhere to. Failure to comply can result in revocation of the approval to deliver aged care.
Infringement Notice
Isolated or non-systemic contraventions may attract infringement notices, requiring the provider to either pay a specified amount or challenge the notice in court.
Enforceable Undertaking
An enforceable undertaking is a mutual agreement between the Commission and a provider, detailing steps to rectify non-compliance.
Injunctions
The Commission may apply for a court injunction when a provider contravenes the Aged Care Act. Injunctions can either restrict certain actions or compel providers to act, especially when there’s immediate risk to consumers.
Civil Penalties
These are monetary fines levied against providers who fail to meet certain criteria within the Commission Act or Aged Care Act. It’s a court-supervised process, generally enacted when consumers are at risk due to poor incident management or anti-victimisation measures.
Sanctions
Sanctions are levied when a provider is found non-compliant with its responsibilities. The Commission considers factors like the severity and frequency of non-compliance, the health risks involved, and the provider's response to previous regulatory notices.
Enforcable Actions Summarised
Below is a summary of all the enforceable actions the Aged Care Commission can take:
| Action Type | Trigger Action | Potential Consequence | Other Considerations |
|---|---|---|---|
| Compulsory Information Gathering | Required for Commission's functions | Legal Penalties | - |
| Compliance Notices IMCN/RPCN | Non-compliance with specific Aged Care Act responsibilities | Civil penalties or sanctions | Designed for immediate response |
| Variation to Accreditation | Low confidence in provider's commitment to Quality Standards | Reduced accreditation period | - |
| Non-Compliance Notice | Non-compliance not posing immediate/severe risk | Sanctions | Provider can make submissions before sanctions |
| Notice to Remedy | Satisfactory response to Non-Compliance Notice | Further sanctions if not complied with | 14-day timeframe |
| Notice to Agree | High to severe risk to consumer safety | Revocation of approval to provide aged care | Immediate action needed |
| Infringement Notice | Isolated, non-systemic contraventions | Pay the amount or challenge in court | No immediate/significant risk to consumers |
| Enforceable Undertaking | Mutual agreement | Court enforcement if breached | No immediate/significant risk to consumers |
| Injunction |
|
Restrictive or compulsory court orders | Court supervision for compliance |
| Civil Penalties |
|
Monetary fines up to a specified maximum | Not a criminal conviction |
| Sanctions |
|
Varies from funding restrictions to revoking approvals |
|
Revocation Actions the Commission Can Take
With aged care providers under scrutiny for compliance with Quality Standards, it's vital to understand the most severe regulatory actions the Aged Care Quality and Safety Commission can take: revocation of accreditation, revocation sanctions, and reconsideration of suitability to provide care. This article elucidates these last-resort measures used in Australia when a provider demonstrates serious non-compliance or becomes unsuitable to deliver care.
Revocation of Residential Service Accreditation
Providers can lose their accreditation if there's significant non-compliance or lack of commitment to continuous improvement. Providers may apply for re-accreditation but must pass a site audit to demonstrate compliance with Quality Standards.
Revocation Sanction Imposed
In extreme cases of non-compliance, like systematic or criminal actions, the Commission can fast-track a provider's exit from the sector through revocation sanctions.
Reconsideration of Suitability
The Commission can re-evaluate a provider’s suitability to deliver aged care, which could result in the cessation of Commonwealth subsidies.
Revocation Actions Summarised
| Revocation Action | Triggering Factors | Consequences | Other Considerations |
|---|---|---|---|
| Revocation of Residential Service Accreditation |
|
Cessation of accreditation, possibility for re-accreditation | Requirement of a site audit for re-accreditation |
| Revocation Sanction |
|
Expedited exit from the sector | Immediate and severe consequences |
| Reconsideration of Suitability |
|
Cessation of Commonwealth subsidies |
|
What is a Penalty Unit?
A penalty unit is a standardized amount used for calculating fines. For example, as of April 2021, one penalty unit is $222. Penalties can range up to 5 times the base penalty units for body corporates.
These measures, combined with previous enforcement actions, work cohesively to maintain high standards of care while ensuring that providers remain aligned with the Aged Care Act.
Penality Units - Infringement Notice Penalties
The following are the related maximum penalty units and costs associated infringement notices:
| Provision | Maximum penalty units | Maximum penalty costs |
|---|---|---|
| Failing to comply with a written notice to produce information or
documents Offence under s74GA Commission Act |
30 Units | $6660 |
| Failing to comply with requests for information regarding provider
suitability and financial matters, including in relation to refundable
accommodation deposits and accommodation bonds Offences under sections 9-2, 9-3A and 9-3B of the Aged Care Act |
30 Units | $6660 |
Penalty Unit - Civil Penalties
The following are the related maximum penalty units and costs associated civil penalties:
| Civil penalty provision | Maximum penalty units | Maximum penalty costs |
|---|---|---|
| Victimising/causing detriment to a person who has disclosed that they
suspect a reportable incident has occurred (discloser) s54-6(1) Aged Care Act |
500 Units | $111,000 |
| Threatening to cause detriment to a discloser where it is intended to
cause fear (or being reckless as to the fear caused) S54-6(2) Aged Care Act |
500 Units | $111,000 |
| Failure to comply with an Incident Management Compliance Notice S74EE(3) Commission Act |
60 Units | $13,320 |
| Failure to comply with a Restrictive Practices Compliance Notice S74EE(3) Commission Act |
60 Units | $13,320 |
The Commission employs these actions as final steps, indicating a complete lack of trust in the provider's ability to provide quality care. Providers must adhere to all regulatory requirements to avoid these severe consequences.
How Does the Aged Care Commission Manage Non-Compliance?
Understanding the procedures for managing non-compliance in the aged care sector is vital for providers. The Aged Care Quality and Safety Commission plays a pivotal role in monitoring and enforcing standards. This article unpacks how the Commission and providers should respond to non-compliance.
Non-Compliance Management Actions the ACQSC Can Take
Commission's Response to Non-Compliance
The Commission will develop a response plan, specifying activities to ensure that providers meet their responsibilities. The nature and frequency of monitoring depend on the non-compliance level, risk to consumers, and the provider's willingness to act.
Provider's Role in Addressing Non-Compliance
Providers are expected to take prompt action in several key areas, such as managing risks, communicating findings with consumers, and meeting regulatory requirements within specific timeframes.
Appointment of an Adviser
In some cases, providers may be required to appoint an adviser for enhancing consumer safety and support compliance. This is usually at the provider's own expense and the adviser must have appropriate qualifications.
Summary of Actions the ACQSC Can Take in Managing Non-Compliance
| Aspect | Responsibilities | Methodology | Other Considerations |
|---|---|---|---|
| Commission Monitoring |
|
Based on level of non-compliance and risk | - |
| Provider Action |
|
Within specified timeframes | - |
| Appointment of Adviser |
|
Upon receiving a Notice to Agree or through an enforceable undertaking | At the provider's own expense |
Summary
To summarise, the Commission takes a comprehensive, risk-based approach to addressing non-compliance, relying on a variety of regulatory tools. Providers can ensure compliance by adopting a robust internal framework that includes regular training, transparent reporting, and risk assessments. Adhering to these best practices enables providers to align with Commission requirements and safeguard consumer welfare, ultimately fostering a culture of quality and safety within Australia's aged care sector.
Need a system to support meeting compliance requirements in aged care?
Contact Ausmed today and see how we can support your aged care organisation today!
Additional resources
- How does the ACQSC Identify, Assesses and Determine Compliance?
- Mandatory Training in Aged Care (A Guide for Managers)
- What Is the Role of an LMS in Aged Care
References
- Aged Care Quality and Safety Commission, ‘Compliance and enforcement policy’, https://www.agedcarequality.gov.au
- Australian Government, 'Aged Care Act 1997', Federal Register of Legislation, https://www.legislation.gov.au/Series/C2004A05214
- Australian Government, 'Aged Care Quality and Safety Commission Act 2018', Federal Register of Legislation, https://www.legislation.gov.au/Series/C2018A00149
