A High Standard of Care

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 risk-based approach. This strategy is deeply rooted in the foundational guidelines set forth by the Aged Care Act 1997 1997, the 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 aligned with 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 older people at increased risk

What Actions Does the Aged Care Commission Take When A Provider is Non-Compliant?

Low-Moderate Non-Compliance - Regulatory Actions

When the risk of non-compliance 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 effectively rectifies its non-compliance, 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 attend to 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 address quality and safety risks swiftly. 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. Here is each action defined.

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 categorised 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

This notice is issued when a provider is non-compliant but poses no immediate and severe risk to consumer safety. It 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 with Action

Where high-to-severe risks are present, the Commission may issue a Notice to Agree outlining specific actions that the provider must follow. Failure to comply can result in the revocation of the approval to provide 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

TThe Commission may apply for a court injunction when a provider contravenes the Aged Care Act 1997. Injunctions can either restrict certain actions or compel providers to act, especially when there’s an 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.

Enforceable 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	Immediate risk to consumers Failure to respond to regulatory actions	Restrictive or compulsory court orders	Court supervision for compliance
Civil Penalties	Inadequate incident management Failure to respond to previous regulations	Monetary fines up to a specified maximum	Not a criminal conviction
Sanctions	Non-compliance with aged care responsibilities Immediate and severe risk to consumer well-being	Varies from funding restrictions to revoking approvals	Severity and frequency of non-compliance Provider's response to regulatory actions

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.

Revocation of Residential Service Accreditation

PProviders can lose their accreditation if they are significantly non-compliant or lack commitment to continuous improvement. They 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	Significant non-compliance Lack of commitment to improvement	Cessation of accreditation, possibility for re-accreditation	Requirement of a site audit for re-accreditation
Revocation Sanction	Systematic, repeated, wilful, or criminal non-compliance	Expedited exit from the sector	Immediate and severe consequences
Reconsideration of Suitability	Serious non-compliance Unsuitability to provide care	Cessation of Commonwealth subsidies	Provider is notified and can make a submission Timeframe for potential revocation

What is a Penalty Unit?

A penalty unit is a standardised amount used to calculate fines. For example, as of April 2021, one penalty unit is $222. Penalties for body corporates can range up to five times the base penalty units.

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.

Penalty Units - Infringement Notice Penalties

The following are the related maximum penalty units and costs associated with 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 with 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

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 to enhance 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	Develop a response plan Monitor provider activities	Based on level of non-compliance and risk	-
Provider Action	Manage risks to consumers Communicate findings Revise improvement plans	Within specified timeframes	-
Appointment of Adviser	Appoint a qualified adviser	Upon receiving a Notice to Agree or through an enforceable undertaking	At the provider's own expense

Summary

In summary, the Commission takes a comprehensive, risk-based approach to addressing non-compliance using a variety of regulatory tools. As the Aged Care sector transitions into the new regulatory environment anticipated in 2025, providers must stay ahead by adopting a robust internal framework that includes regular training, transparent reporting, and proactive risk assessments. Adhering to these best practices not only ensures compliance with current standards but also prepares providers for the forthcoming changes under the New Aged Care Act and regulatory model.

By doing so, providers can align with the evolving Commission’s regulatory requirements, safeguard older people’s health and wellbeing, and foster a culture of quality and safety within Australia's aged care sector.

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Additional resources

• Guide to How Auditing of the New Standards Will Work
• Guide to the Structure of the Aged Care Standards
• 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

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