Providers need to ‘assure’ commission of compliance

Tuesday’s Aged Care Quality and Safety Commission webinar has reiterated the importance of assurance in the post 1 July relationship between providers and the commission, noting that supervision will be proportionate to how assured the commission feels providers can manage risk.

The webinar also discussed how the commission will monitor compliance risk and when it might use its new powers – including use of conditions on registration – and the types of situations in which the commission may consider taking court-based enforcement action under the new Act.

Aged Care Quality and Safety Commissioner Liz Hefren-Webb moderated the 60-minute webinar, and the panel included:

• Peter Edwards, executive director compliance and enforcement
• Mel Metz, deputy commissioner sector capability and regulatory strategy
• Paul Heinemann, acting executive director, risk intake and inspectorate
• Scott Rumbold, senior director compliance
• Amanda Innes-Brown, director risk intake and analysis
• Tim Davies, senior director enforcement.

Answers to the key concerns raised by providers were answered in the 30-minute Q&A session, including queries about whether providers would be aware of the level of supervision they were under and how quickly they were expected to address non-compliance.

Some of the commission’s responses can be found below.

What are some examples of conditions that can be placed on a provider’s registration when there are areas of serious noncompliance?

The commission foresees the use of conditions – particularly where it has come across or detected significant non-compliance – as requiring providers to report to and provide evidence to the commission at particular junctures, with the intensity of the reporting dependent on the level of risk.

For example, if a provider is under heightened supervision, the commission may have quite intense reporting requirements because it wants the provider to be working closely with, and giving the commission visibility of, issues that may suggest that the risks are getting worse.

Will providers know what surveillance or supervision level they have been assigned?

All providers are under risk surveillance as normal. The commission will contact providers about escalating levels of supervision and explain why, what is expected, and the actions required. While letters won’t be sent out, the commission assures providers they will know if they are under additional supervision.

What are the consequences when or if an organisation fails to comply with regulations?

One of the key changes of the new Act is there will be a range of potential financial consequences. These financial consequences will range from infringement notices through to civil penalties.

Does the inspector or any department at the commission provide any supports to help providers address non-compliance?

Yes, the department of compliance and the case management teams in particular will work alongside providers to look at what challenges they are facing and what support could benefit them. The commission can also connect providers with other organisations that may be able to help support them and increase their capability to be compliant.

What could be an example of high-risk non-compliance?

The commission noted that some of the main concerns are around clinical care, such as pressure injuries, falls, significant weight change and the level of risk older people are facing.

Is provider compliance or non-compliance made public?

Information relating to non-compliance will be made public if a provider is formally found as non-compliant.  However, the commission intends to engage with providers suspected of non-compliance and may not need to make a formal finding of non-compliance if the provider addresses the underlying issue in a reasonable timeframe.

Given some providers may still carry over non-compliance from existing standards, how will they adapt to comply? If there are risks as providers transition to the strengthened quality standards will their assessment be based on the current requirements, or will they be evaluated against the new standards after 1 July?

After 1 July, the commission will be assessing everything against the strengthened quality standards. There will be a transitional period where the commission has to look back at incidents that occurred before 1 July, but in that context, it will be looking at what obligations and standards were in place at the time.

Explain the reference to court orders in more detail? Is this in reference to enforceable undertakings?

Under the new Act, there is a broader number of ways a provider may be subject to a court-imposed penalty and end up before the federal court. The commission’s intention is to only use those powers sparingly and only where it thinks significant harm has arisen, or where people receiving care have been unnecessarily exposed to significant risk that would have otherwise led to harm.

In terms of enforceable undertakings, an agreement between the commission and the provider will be made. If that agreement is not upheld appropriately, the commission may seek out a court order to ensure that agreement is upheld.

When would the inspectorate conduct site visits? Would it be when non-compliance is reported, or would providers see this embedded into future audits?

The inspectorate function is separate from the audit function, so audits are a routine activity that will be required under the new Act as part of registration and registration renewal processes. The inspectorate will undertake site-based activity when it is concerned about escalated risk and needs to quantify the level of risk and ensure the safeguarding of older Australians in care. In short, the inspectorate will visit sites, but in risk response, not directly related to audit.

Would a non-compliance notice affect the entire organisation or that particular service?

It will depend on whether the issue is something that impacts the provider at the whole-of-operation level, or if it is something that impacts just the service level.

There are certain obligations that cut across everything the provider does, such as prudential obligations and management of RADs, or refundable accommodate deposits, and then there are notices the commission will issue because of discrete concerns it has.

When talking about obligations around governance, it would always be at the provider level because governance is central to a provider being able to manage risk. In short, it depends on the nature of the risk the provider is seeking to manage at that particular time.

What is the number one priority for the commission when it comes to compliance risk in the home care setting?

Governance, because the nature of home care and Support at Home in the future, is that providers are delivering services in many people’s homes with a workforce that is not immediately visible to them. Lack of good governance controls often leads to risks not being detected or not being detected in a timely manner, and risks not being treated adequately.

When a provider is also using a third party to deliver services, providers are essentially contracting out control, not responsibility. So, providers need even more robust governance to manage those relationships and ensure that obligations are being met – even if offering services via a third party. Communication with consumers is the other area.

If there are discrete issues at service level, but the same issues are found across multiple services, could that result in non-conformance? How many services would it take or what other criteria would it take to create an instance of provider non-conformance?

The commissioner holds a lot of data about providers and information, so where it is dealing with an issue, it will always be looking into the broader profile of a provider to see if there are wide-spread signs or concerns. There is no numerical answer, but once the commission is concerned, it will keep looking until it is assured.

Is there a timeline for action completion from providers for non-compliance? What kind of additional supports might the commission require providers to have in place?

An appropriate response to non-compliance will be determined based on the level of risk. Where there is immediate and severe risk and the likelihood of harm is real, immediate action is expected.

While the commission expects providers to address the matters that will have the most likelihood of impact to consumers immediately, it also expects providers to have a plan in place with appropriate time frames to remediate all non-compliance and mitigate those risks sustainably. The commission will work with providers to ensure that the most severe things are managed as quickly as possible and that everything is managed within a reasonable time frame.

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