Uncertainty in the Transition to Support at Home

The disarray caused by the slow, staged and incomplete release of draft Rules supporting the Aged Care Act 2024 is shown by the impact this is having on the transition of existing consumers from Home Care to Support at Home. As doubts are raised whether there will be a complete set of Rules passed into law by 1 July, the suggestion the industry should rely upon the drafts is creating confusion and uncertainty. One also wonders about whether the feedback given about the Rules during the consultation phase is being taken seriously to deal with the problems that have been identified.

What we know?

The current legislation governing the contents of Service Agreements, as well as other key details are still in draft. In fact Rules 4b, the “Remaining Rules” (which pertinently, contain the provisions regarding the content of agreements as well as what providers must do in terms of pricing) are currently under a consultation process closing 13 May 2025. There are significant problems with Rules 4b which we explain below. We are also still waiting for transitional rules, and key information such as how providers can charge for pricing.

Asking existing Home Care consumers to enter into Support at Home agreements prior to 1 July is unnecessary and problematic. While it is regrettable that the slow process to develop the Rules is creating this problem, the solution is not to ask Home Care consumers to abandon the protections given by their existing home care contracts in favour of one that is based on draft Rules and supporting guidance that may change.

At a time when the industry is under significant pressure preparing for the reforms 1 July, expecting Care Coordinators to properly understand and explain new contracts, as well as the impact of the myriad of other changes to their clients is also problematic. Many providers are concerned that there simply isn’t time for this between now and the end of June; and that there is too much uncertainty around pricing given the absence of important detail such as whether (and how much) they can charge for cancelled shifts. This places unnecessary strain on Care Coordinators, potentially jeopardising their ability to focus on care delivery.

In our view, getting new service agreements to existing consumers at this point is not necessary, at least for providers using the Russell Kennedy templates. That is in part because the relationship between consumers and providers is primarily contractual in nature, and is not simply based on the Aged Care Act. Our agreements are intentionally drafted in such a way that they will survive the transition from 1997 to 2024 because of “savings” provisions which allow the agreement to be read subject to changes in the law.

Transition letter

In addition to this, RK has drafted a “transition letter” which providers can send to their clients which:

• Advises them of the key changes to the law that will impact them such as the Statement of Rights, the new Service List, the new quarterly budgets etc
• Seeks consent to the provider’s new price list, which is intended to apply from 1 July.

1. Send the letter together with proposed pricing;
2. Meet with or telephone clients to consult (as per the requirements for varying the agreement); and
3. Obtain their consent to the new pricing, whether written or verbal.

A similar approach is possible for providers using other agreements with some changes.

Staged approach

Following this, providers can use a “staged” approach to transition care recipients on to the new service agreements over the next 3-6 months. For example, providers should prioritise higher risk consumers whose services may be impacted (eg by the changes to who can provide medication support) as well as those who will need to start paying a contribution from 1 July.

Such an approach, while still challenging, enables providers and care recipients to focus on their discussions on the most pressing issues, that of services, pricing and, for the non-grandfathered care recipients. This will also allow time for the following problems with the 4b Rules to be considered, resolved and hopefully now carried forward into any makeshift interim or replacement Support at Home agreements:

• Providers are required to “review” their Service Agreement with individuals annually, and whenever they request. It is not clear what this obligation entails but we are concerned that it will be suggested that providers must make changes to their contracts or decrease their pricing to comply with this.
• CHSP agreements are required to contain seemingly irrelevant information such as “pricing” for services (as well as contributions); making them unnecessarily complex.
• The sections regulating how providers advertise their prices are very concerning. Most concerningly, providers are required to publish the price for each service that they charged in the prior 2 months rather than what the provider intends to charge. During periods when prices are increasing (eg this July), we are concerned that care recipients will be misled into believing that the prices will be lower than what the provider actually charges. Care recipients may then feel they are being overcharged.
• The seemingly excessive information about how much must go in a client statement.
• The volume and detail of information that must be reported to the Commission (eg, any “variation” of a supplier agreement must be reported to the Commission. For providers with multiple service agreements, this may create a significant administrative burden).

In the meantime, RK has finalised its draft S@H agreements, whistleblower and complaints policies and procedures. Our CHSP agreements, brokerage agreements and many other templates are also being released this week. While these are still in draft (as per the Rules), providers can start familiarising and training their staff based on these documents until we can provide final versions.

How can we help?

Please reach out if you need any assistance to Victor Harcourt (vharcourt@rk.com.au), Anita Courtney (acourtney@rk.com.au), Solomon Miller (smiller@rk.com.au) or a member from Russell Kennedy's Aged Care Team.

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Disclaimer

The information contained in this Alert is intended as general commentary only and should not be regarded as legal advice. Should you require specific advice on the topics discussed, please contact the firm directly.