As more consumers self-manage their home care packages - what are the risks for providers and how can those risks be minimised?
With the march towards greater consumer directed aged care, and more competition in the home care market over the past few years, many approved providers (“APs”) have been offering a diverse range of case management arrangements.
For example, some APs are allowing consumers to ‘self-manage’ their home care packages by coordinating services directly with suppliers or even engaging their own carers or suppliers (eg from new online ‘Uber style' platforms) and seeking reimbursement from the AP.
By placing the consumer ‘in control’, these models can be attractive to both consumers and APs. They also offer cost advantages because when a consumer self-manages their home care package, administration costs associated with the package naturally diminish - sometimes even to the point the AP will waive case management fees entirely.
However there are significant limitations on the degrees to which APs can allow consumers to self-manage their packages and engage non-vetted suppliers to provide them with care and services. Without proper processes in place, APs may find themselves ‘on the hook’ for the (lack of) quality care and services provided in circumstances where the AP hasn’t been able to appropriately vet a prospective supplier’s skills and qualifications.
What does the legislation say about self-management?
The current aged care scheme gives consumers the right to take an active role in managing their home care package. The new Aged Care Quality Standards (“Standards”) (commencing next year) also encourage consumers to exercise control over the management of their package by emphasising the importance of consumers making informed choices about care and services, and being supported to exercise choice and independence.
What are the issues?
Though consumer involvement in case management should be encouraged and promoted, it’s imperative APs don’t take a ‘hands off’ approach by allowing the consumer to engage their suppliers without an appropriate level of oversight and having its own contract in place with the supplier. Doing so may be a breach of an APs obligations under the Aged Care Act 1997 (Cth) (“Aged Care Act”).
Under the current Home Care Standards (in the Quality of Care Principles), APs are, at all times, responsible for the quality of care their clients receive. For example, APs must ensure those providing services to their consumers are sufficiently trained and qualified to provide the services. They must also ensure they are subject to adequate supervision and have been cleared through a police check.
The new Standards, to be introduced next year, will impose similar quality safeguarding obligations on APs.
For example, Standard 3 will require that “personal care and clinical care services are delivered in accordance with the consumer’s needs and preferences to optimise health and wellbeing and to maximise the consumer’s functions”. It requires that personal and clinical care be “safe” and based on “best practice”, both of which will require the AP to monitor the services. It also requires the AP to respond to any deterioration in the consumer’s function in a timely manner.
Standard 7 likewise requires that “the workforce has the skills, capabilities, qualification and knowledge to effectively perform their role” and makes clear that the AP must ensure all those providing care to consumers have appropriate training.
What is clear is that the AP remains responsible for the quality of care delivered. The Department is firm on this point, saying “ultimately the funded organisation [AP] will be held responsible for the delivery of safe and quality care and services in accordance with the Standards”. Unlike in some schemes (NDIS), APs are the ones solely responsible for the quality of care under the Aged Care Act.
The use of “star rating” systems is no substitute for the APs own oversight of personnel caring for their consumers. While consumer satisfaction is a critical measurement, consumers may not be qualified to assess whether a care worker is, for example, appropriately trained in manual handling.
What does this mean for home care providers?
To reiterate, APs are always responsible for the quality of care and services provided to consumers whose home care packages are vested with them – regardless of how those home care packages are managed. Regardless of their relationship with the consumer, APs cannot circumvent that responsibility by allowing consumers to engage suppliers directly and/or simply reimbursing consumers from their home care package.
Because those responsibilities can’t be circumvented, we encourage APs to put safeguards in place to ensure they don’t risk breaching the Aged Care Act in circumstances when consumers are self-managing their home care packages or choosing their own suppliers.
At minimum compliance with the standards will require APs to have suitable brokered service agreements in place with any person or organisation providing services to their consumers. Having service agreements in place is critical for APs to demonstrate they are taking appropriate steps to ensure consumers receive high quality care. For example, a service agreement should set the minimum qualifications personnel must have, as well as suitability requirements such as police checks. Service agreements should compel the supplier to share information with the AP, such as complaints, as well as records of services. Service agreements should also set KPIs as well as stipulate minimum insurance requirements. Service agreements aren’t only there to demonstrate compliance. They can also protect APs if something goes wrong. For example, if a supplier fails to provide care, a well-drafted service agreement, together with insurance can offer recourse to the AP.
Though a consumer may be self-managing their home care package, an AP must never lose sight of the fact that it is them, not the consumer or the supplier, who is subject to obligations under the Aged Care Act and its Principles.
Simply reimbursing consumers directly for care and services provided by a supplier with whom the AP doesn’t have a formalised arrangement is high risk. Likewise, relying on a star rating system such as those offered by online models to monitor and measure the quality of the worker as well as services the consumer is receiving is not of itself sufficient. APs who provide home care should ensure they have entered into appropriate agreements with all suppliers caring for their clients.
The need for a service agreement with all home care suppliers raises challenges for self-management models as well as the ability of consumers to effectively use online platforms to engage workers without the AP also having an agreement with the worker. However while APs remain responsible for the quality of care, that is a challenge that must be addressed by APs both under the current Standards and the new Standards.
Please contact Anita Courtney, Principal, on (03) 8602 7211, or Laura Kerridge, Lawyer, on (03) 8602 7214, for assistance with service agreements or any other matter.
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