Retirement village exit rules changed

New legislation means that NSW retirement village contracts will now include a timeframe that ensures timely payments for a former resident’s exit entitlements.

These changes apply only to registered interest holders with a long-term registered lease that gives them at least 50% of any capital gain.

They do not apply to:
• registered interest holders who own a lot in a strata or community scheme village or own shares in a company title or trust village that gives them their resident right; or
• unregistered interest holders.

New retirement village laws started in January 2021. The changes reflect complaints made about how exit entitlements were previously managed and provide a timeframe for former residents to receive their exit entitlements. Summarised, the changes:
• enable residents to receive exit entitlement money before their unit sells (if the sale has been ‘unreasonably delayed’);
• provide an option for residents to fund their move into aged care by accessing part of their estimated exit entitlement money;
• ensure residents no longer have to pay ongoing charges for general services for more than 42 days after they leave the retirement village (commences on 1 July 2021 onwards).

New legislation has been introduced which affects existing and all new retirement village contracts. Previously registered interest holders had to wait until a new resident either moved into or leased their old unit before they were able to receive their share of the sale proceeds (the “exit entitlements”). This could mean that if the village operator delayed the sale of a unit after the resident left, the former might not receive their exit entitlements for anywhere between two and five years.

Under the new legislation, a registered interest holder can apply to the Secretary of the Department of Finance, Services and Innovation for an exit entitlement order directing the village operator to pay the exit entitlements to the former resident even though the unit has not sold. The order can require payment after six months for Sydney metropolitan, Wollongong and Blue Mountains residences and within one year anywhere else in NSW. This order will only be made if the village operator has “unreasonably delayed” the sale considering the time taken to refurbish the unit and whether the operator as selling agent has performed all their duties within reasonable time.

Such an application can only be made by a former resident but not their estate. If the order is made, the exit entitlement must be paid with 30 days of the order.

If the registered interest holder moves out of the retirement village into a residential aged care facility and has not received their exit entitlement, the resident may ask that the operator make one or more daily accommodation payments to the facility on behalf of the resident within 28 days of the resident’s request. As more than 60% of residents move directly into aged care, their move can be delayed if they do not have access to funds to pay the daily accommodation payments to the facility and the unit does not sell quickly. These amendments are intended to make the transfer easier for residents and family members.

For more detail, see Fair Trading website, https://www.fairtrading.nsw.gov.au/about-fair-trading/legislation-and-publications/changes-to-legislation/changes-to-retirement-village-laws

Serious Incident Response Scheme begins in aged care facilities

With the release of the final report of the Royal Commission Into Aged Care, one of its most frightening details is that in 2019-20, over 851 alleged sexual assaults were reported in aged care facilities. However, as resident-on-resident assaults for the most part go unreported, the real figure is likely “as high as 2,520, or almost 50 per week”.

Despite such high statistics, the report’s 148 recommendations make no specific recommendations as to how that issue that predominantly affects older women should be managed.

The issue is expected to be managed by an enhanced reporting system known as the Serious Incident Response Scheme (SIRS) that begins on 1 April.

The scheme requires aged care providers to identify, record, manage, resolve and report all serious incidents that occur, or are alleged or suspected to have occurred.

Aged care providers also need to have in place an effective incident management system to manage all incidents, respond to incidents, and take steps to minimise the risk of preventable incidents reoccurring. The incident management system covers a broader range of non-reportable incidents and includes incidents that involve staff or visitors.

Under the existing system, aged care providers do not have to report incidents that involve a perpetrator who has a cognitive impairment and the operators have got strategies in place because it is felt that an impaired person cannot be successfully prosecuted.

“In some cases, family members encourage their loved ones to move into residential care because they felt that it would be safer for them”, the report notes. “But, on the contrary, people living in residential aged care likely face a much higher risk of assault than people living in the community.”

Under SIRS, there is a wider range of serious incidents that are reportable than those reported under current compulsory reporting requirements. Importantly, providers will have to report incidents of abuse and aggression between consumers, including where the resident who commits the incident has a cognitive or mental impairment.

Under the SIRS protocol, aged care must report all ‘Priority 1’ incidents within 24 hours to the Aged Care Quality and Safety Commission. ‘Priority 1’ incidents include those that cause or could reasonably have caused physical or psychological injury or illness requiring some form of medical or psychological treatment. Instances of unexplained absence from care and any unexpected death of a consumer are always to be regarded as Priority 1 reportable incidents.
From 1 October 2021, all ‘Priority 2’ incidents, that is reportable incidents that do not meet the criteria for ‘Priority 1’, must also be reported within 30 days.

In addition, the SIRS requires every residential aged care service to have in place an effective incident management system – a set of protocols, processes, and standard operating procedures that staff are trained to use.

For further information, refer to the Aged Care Quality and Safety Commission website, https://www.agedcarequality.gov.au/sirs

New Year resolutions for a lucky country

It’s the start of a new year and it’s the perfect time to make your own resolutions for the year. Lose weight, get more exercise, drink less alcohol – we all know about those. We also know that if we don’t incorporate those resolutions into our daily routine from day one, we are not likely to succeed.

Taking a national perspective – it’s been a year where managing the pandemic has been a world-wide priority rather than taking any positive policy steps. Australia has not experienced the same kind of turmoil as the US or the UK but as we come out of the pandemic crisis, what should be the policy focus for our country? What do you think should be included in the Australian government’s New Year resolutions? To be on their To Do list from day one.

Here are a few suggestions:
• Distribute the Covid-19 vaccine to anyone at risk.
• Raise the JobSeeker allowance by $100 per week.
• Recognise our First Nations people in the Constitution.
• Introduce carbon-pricing for all industries to achieve zero carbon emissions by 2040.
• Implement a nation-wide bushfire emergency plan.
• Close Nauru and bring all refugees to Australia.
• Buy all the empty apartment blocks around Sydney and use them to provide affordable housing.
• Initiate key recommendations from Aged Care Commission in all aged care homes.
• Develop a plan for all coal industry workers to transition to renewable energy industries.
• Reduce the registration costs for all electric cars.

Community attitudes to aged care explored

Following In-depth interviews and focus groups, the Royal Commission into Aged Care Quality and Safety has released a report, They look after you, you look after them: Community attitudes to ageing and aged care .

The researchers interviewed a range of focus groups to identify current community attitudes to ageing; community understanding of the aged care system and how individuals were planning for their own older age. Interviews were conducted with both younger and older people, diverse economic groups, Indigenous and culturally diverse groups and younger people with disabilities who already resided in aged care facilities.

Written before the pandemic, the report explores how people view entering an aged care facility, what their expectations were and most relevantly, what were the experiences of actual residents.

Post-Covid, the relatively negative comments of most interviewees about their fear of entering the aged care system, seems justified in light of the relatively high number of deaths in care facilities which appear to reflect the inadequate training and equipment available to care for older people.

The report found that as people became older, they were better informed about the complexities of the aged care system but they remained concerned about the cost and quality of care provided. There was a widespread, strong preference across the different age groups and communities to remain living independently as they age and making use of support to do so.

Most interviewees were critical of aged care facilities and saw them as being run as businesses that prioritised profit over high quality care. The prevalence of religiously affiliated organisations running facilities was seen as effectively limiting their choices, as they did not want to spend their older years living in an institution run by a religious body.

Most people described aged care facilities negatively, saying they were depressing, bleak places that felt clinical and sometimes were overcrowded. Moving to aged care was seen as ‘the beginning of the end’ that precipitated a rapid decline in one’s life expectancy and quality of life.

Specific negative factors mentioned included a lack of meaningful mental stimulation, social isolation and loneliness, poor quality personal care, insufficient staffing levels and staff training, and poor quality nutrition. These factors were interrelated with overstretched staff rushing residents through meals and personal care.

While some interviewees mentioned pleasant high end facilities, others mentioned budget facilities that provided a small per resident food budget, or residents being heavily sedated to reduce staff workload. The effect of having to provide a bond to ensure a place in a facility and the ongoing cost was of great concern to most as was the inadequate regulatory system.

Younger people with physical or mental disabilities living in aged care facilities were particularly critical of the care they received, mentioning issues of cleanliness, personal hygiene, stimulation and respect for residents and appropriate social engagement.

This qualitative research included 274 people from the general community and targeted diversity groups. It was conducted primarily to understand the perspectives of these diversity groups and to complement a national survey for the Royal Commission that has been charged with considering the design of Australia’s future aged care system.

May her death not be in vain

The death of Ann-Marie Smith, who died from serious illnesses that developed while receiving full-time care in her home provided by an employee of a disability care provider is a stark warning to potential users of the home care system.

The 54-year-old Adelaide woman suffered from cerebral palsy and lived alone in Adelaide’s leafy eastern suburbs before dying in what has been described as “disgusting and degrading” conditions.

Ms Smith died in Royal Adelaide Hospital on April 6 from septic shock, multiple organ failures from severe pressure sores, and malnourishment. She had apparently been living and sleeping in the same chair in her lounge room for over a year.

While the carer was sacked by the provider, Integrity Care SA for her “serious and wilful misconduct”, Ms Smith’s death has been declared a major crime.

If your family member died in this situation, do you think simply sacking the employee would be enough? To what extent does the provider carry responsibility for their employee’s conduct?

The ongoing nature of the neglect endured by Ms Smith highlights the need to strengthen the accountability and penalty regulations applying to Commonwealth funded aged care services providers.

Rather belatedly, the federal government has announced that a Serious Incident Response Scheme (SIRS) mandatory reporting framework will be introduced into residential aged care providers from 1 July 2021 which will implement greater reporting of incidents involving residents. Potentially, SIRS may be extended into home and community aged care.

The lack of oversight of both in-home care and residential aged care has been the subject of a number of investigations and reports, with little regulatory action to date.

Under the proposed SIRS framework, care providers will be required to report on a broader range of incidents, including neglect, psychological or emotional abuse and inappropriate physical or chemical restraint. Significantly, it will also lift the current exemption on the reporting of resident on resident incidents, where the perpetrator has an assessed cognitive impairment.

The Aged Care Quality and Safety Commission will receive incident reports and will have enhanced powers to administer the SIRS, including taking regulatory action where needed.
As part of the ongoing feasibility study, funding has been included to investigate the design, implementation and regulation of a worker register for aged care.

A 2019 report done by KPMG, Strengthening protections for older Australians, commissioned by the Department of Health, estimated that there were more than 20,000 unexplained serious injury incidents which were not reported under the current system. Any reform of the current aged care system is seen as increasing the regulatory burden on providers to report and respond to serious incidents with an accompanying increase in staffing of the Commission to deal with reports.

The sooner a mandatory reporting scheme is introduced, more deaths like Ann-Marie Smith’s can be prevented.

Sen R Colbeck media release, https://www.richardcolbeck.com.au/press-releases, 14/06/20
Dept of Health release, https://www.health.gov.au/resources/publications/strengthening-protections-for-older-australians, Feb 2019