Australia: Consumer Directed Care - Update and Brokerage Arrangements

What is consumer directed care?

The requirement to provide home care packages on a consumer directed care basis (CDC) commenced on 1 July 2015.

The Home Care Packages Operations Manual9 states (at page 14) that the User Rights Principles 2014 and the Charter of care recipients' rights and responsibilities-homecare (the Charter), which recognise the rights and responsibilities of consumers and providers, explicitly acknowledge the key elements of CDC, emphasising the right of consumers to exercise choices in relation to the care provided to them.

Choice and flexibility

The Charter specifies consumers' right to:

  • be supported by the provider to set goals, determine the level of ongoing involvement that they wish to have, and make decisions relating to their own care and to maintain their independence as far as possible;
  • choose the care and services that best meet their goals, preferences and assessed needs, within the limits of the resources available;
  • have choice and ?exibility in the way the care and services are provided at home;
  • participate in making decisions that affect them; and
  • have their representative participate in decisions relating to their care.

Care and services

Consumers have the right to:

  • receive care and services which are appropriate to meeting their goals, preferences and assessed needs;
  • be given a written plan of the care and services that they expect to receive;
  • receive care and services that take into account their preferences; and
  • ongoing review of the care and services they receive, as required.
  • The User Rights Principles sets out the rights and responsibilities in relation to home care.

Care Recipient Rights

Each care recipient has the following rights:

General

  1. to be treated and accepted as an individual, and to have his or her individual preferences respected;
  2. to be treated with dignity, with his or her privacy respected;
  3. to receive care that is respectful of him or her, and his or her family and home;
  4. to receive care without being obliged to feel grateful to those providing the care;
  5. to full and effective use of all human, legal and consumer rights, including the right to freedom of speech regarding his or her care;
  6. to have access to advocates and other avenues of redress;
  7. to be treated without exploitation, abuse, discrimination, harassment or neglect;

Consumer directed care—choice and flexibility

  1. to be supported by the Approved Provider:
    1. to set goals in relation to the outcomes he or she seeks from home care;
    2. to determine the level of ongoing involvement and control that he or she wishes to have in the provision of the home care;
    3. to make decisions relating to his or her own care; and
    4. to maintain his or her independence as far as possible;
  1. to choose the care and services that best meet his or her goals and assessed needs and preferences, within the limits of the resources available;
  2. to have choice and ?exibility in the way the care and services are provided at home;
  3. to participate in making decisions that affect him or her;
  4. to have his or her representative participate in decisions relating to his or her care if he or she requests it or if he or she does not have capacity;

Consumer directed care—care and services

  1. to receive reliable, coordinated, safe, quality care and services which are appropriate to meeting his or her goals and assessed needs;
  2. to be given before, or within 14 days after, he or she commences receiving home care, a written plan of the care and services that he or she expects to receive;
  3. to receive care and services that take account of his or her other care arrangements and preferences;
  4. to ongoing review of the care and services he or she receives (both periodic and in response to changes in his or her personal circumstances), and modification of the care and services as required;

Individualised budget and monthly statement of available funds and expenditure

  1. to receive an individualised budget for the care and services to be provided;
  2. to have his or her individualised budget reviewed and, if necessary, revised if:
    1. the care and services to be provided, or the costs of providing the care and services, change; or
    2. e or she requests the approved provider to review and, if necessary, revise the individualised budget;
  1. to receive a monthly statement of the funds available and the expenditure in respect of the care and services provided during the month;

Personal information

  1. to privacy and confidentiality of his or her personal information;
  2. to access his or her personal information;

Communication

  1. to be helped to understand any information he or she is given;
  2. to be given a copy of the Charter;
  3. to be offered a written agreement that includes all agreed matters;
  4. to choose a person to speak on his or her behalf for any purpose;

Comments and complaints

  1. to be given information on how to make comments and complaints about the care and services he or she receives;
  2. to complain about the care and services he or she receives, without fear of losing the care or being disadvantaged in any other way;
  3. to have complaints investigated fairly and confidentially, and to have appropriate steps taken to resolve issues of concern;

Fees

  1. to have his or her fees determined in a way that is transparent, accessible and fair;
  2. to receive invoices that are clear and in a format that is understandable;
  3. to have his or her fees reviewed periodically and on request when there are changes to his or her financial circumstances;
  4. not to be denied care and services because of his or her inability to pay a fee for reasons beyond his or her control.

Care Recipient Responsibilities

Care recipients also have a number of responsibilities including

General

  1. to respect the rights of care workers to their human, legal and workplace rights including the right to work in a safe environment;
  2. to treat care workers without exploitation, abuse, discrimination or harassment;

Care and services

  1. to abide by the terms of the written home care agreement;
  2. to acknowledge that his or her needs may change and to negotiate modifications of care and service if his or her care needs change;
  3. to accept responsibility for his or her own actions and choices even though some actions and choices may involve an element of risk;

Communication

  1. to give enough information to assist the approved provider to develop, deliver and review a care plan;
  2. to tell the approved provider and their staff about any problems with the care and services;

Access

  1. to allow safe and reasonable access for care workers at the times specified in his or her care plan or otherwise by agreement;
  2. to provide reasonable notice if he or she does not require home care to be provided on a particular day.

Fees

Each care recipient has the responsibility to pay any fees as specified in the agreement or to negotiate an alternative arrangement with the provider if any changes occur in his or her financial circumstances.

Challenges with CDC

Recent challenges with CDC include:

  1. management of the workforce as consumer demand will ebb and ?ow and possible redundancy of staff;
  2. compliance with the administrative requirements including to provide an individualised budget and monthly statements, particularly if the aged care pension changes mid-year;
  3. disagreements between the consumer and the Approved Provider – refer to our previous article on Consumer Directed Care - Want vs Need in the February 2015 edition of the Health Law Bulletin, available on our website; and
  4. ensuring that the Home Care Agreements (with the care recipient/consumer) are compliant with the Aged Care Legislation and all other laws, including the Australian Consumer Law.

Please refer to the article on Unfair Contracts in this Health Law Bulletin.

Subcontracted or brokered arrangements

Services may be provided directly by the provider, sub-contracted to another service provider (individual or organisation), or brokered through another organisation.

Regardless of how services are delivered and by whom, the Approved Provider remains responsible for service quality and meeting all regulatory responsibilities.

Subcontracting service provision to informal carers, family members or friends is not encouraged under the Home Care Packages Programme. However, it is recognised there may be no workable alternative in some areas (for example, remote parts of Australia).

With consumers choosing services, the need has arisen for Approved Providers to put in place subcontracts or brokerage agreements with subcontractors with whom they may not have a prior relationship.

Approved Providers should put a written contract in place with its subcontractors to clearly set out each party's obligation and to ensure compliance all relevant obligations under the Aged Care legislation and other legal requirements, including work, health and safety.

The Accountability Principles require an approved provider to ensure that all staff and any other person likely to have contact with care recipients have been issued with a Compliant Police Certificate or a statutory declaration which meets the requirements of the Accountability Principles.

Approved Providers will be required to manage other legal requirements, issues and risks such as privacy and work, health and safety, (including dealing with aggression), bullying and stress. Acts of aggression can occur in the home environment not only by the care recipient, but also other people living or attending the premises. The duties of an employer for work health and safety apply to subcontractors in the same way as they apply to employees. As the workers are working in a home environment (often without supervision), orientation, training, hand-over, reporting and insurance are very important.

Footnote

9 https://agedcare.health.gov.au/ageing-and-aged-care-programs-services/home-carepackages-operational-manualConsumer directed care—care and services

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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