From 1 July 2023, aged care providers will have to ensure that “at least one registered nurse is on site, and on duty, at all times at the residential facility”. The Department of Health and Aged Care (Department) has released new draft rules for how this requirement would work in practice. This “exposure draft” is open for comment until 13 March 2023. Today we explain the draft rules and let you know how to have your say.

Overview of the 24/7 RN Requirement

From 1 July 2023, providers will have to ensure that “at least one registered nurse is on site, and on duty, at all times at the residential facility”.

Legal Background

The 24/7 RNs requirement was made into a law in late 2022 when the Government made some changes to the Aged Care Act 1997 (Cth). Although this law was passed by the Parliament in 2022, a section within the law specified that the 24/7 RN requirement will not apply to aged care homes until 1 July 2023.

Who Is (and Isn’t) a Registered Nurse (RN)?

According to the Department’s guide, a RN is: “a person who has completed the prescribed education preparation, demonstrates competence to practice and is registered under the National Law as a RN in Australia. In Victoria, a RN may also be known as a division 1 nurse”. An Enrolled Nurse (EN) is not a RN and cannot fulfill the 24/7 RN requirement.

Gaps in the Law

The laws that set out the 24/7 RNs requirement are not very detailed. There are some important issues that the laws do not address, such as exemptions and reporting procedures. To fill in these gaps, the Government will make “subordinate legislation”.

This is a common practice in government: a main set of laws is passed through the Parliament, and then a secondary set of laws is made to provide details on how the main laws will work in practice. The Government is free to make these secondary laws without passing them through the Parliament. There are several names for these secondary laws, including “subordinate legislation”, “rules”, “regulations”, “by-laws” and “principles”.

In the context of the 24/7 RN requirement, the main legislation is the Aged Care Act 1997 (Cth), and the subordinate legislation will be called the Aged Care Legislation Amendment (Registered Nurses) Principles 2023 (Cth). The Government will use these new Principles to make changes to other subordinate legislation that already exists. Specifically, the Government will be making changes to the Accountability Principles 2014 (Cth), Quality of Care Principles 2014 (Cth) and Information Principles 2014 (Cth).

What Do the New Draft Rules Say?

As at 7 March 2023, the subordinate legislation is in the form of an “exposure draft” and is not law. The purpose of the exposure draft is to show people what the Government is planning and give them a chance to comment. These are the key points proposed by the exposure draft:

Reporting

Aged care providers must report monthly on their compliance with the 24/7 RN requirement (unless the Department has given them special permission to report on a different schedule). Each monthly report must:

• list each period of 30 minutes or more that an RN was not “on site and on duty” at your aged care home. (So, if you managed to have a RN “on site and on duty” every single minute of the month, then you would report zero. If there was just one instance when the RN popped out for an hour and a half, then you’d report that one instance)
• for each such period, list the reason why a RN was not on site or not on duty (or both) during the period
• for each such period, list the alternative arrangements that were made for the period to ensure the clinical needs of care recipients in the facility were met, or a statement that no alternative arrangements were made.

Under the terms of the exposure draft, the Department would also have the power to:

• set more reporting requirements
• specify the way in which you must report (using the “approved form”)
• ask you for further information, which you must provide.

What does “on site and on duty” mean? If a RN takes a lunch break for an hour are they “off site and off duty” and will this have to be reported? This is not clear, which may be a useful point to raise when providing feedback to the Department on the exposure draft (see below for guidance on how to do this).

Exemptions

Under the terms of the exposure draft, an aged care home can apply for an exemption to the 24/7 RN requirement. However, the exemption is only available if you meet all of the following criteria:

• Non-urban location: your facility is located in one of these areas, as classified by the Modified Monash system: MM 5 area (small rural town), MM 6 area (remote community) or MM7 area (very remote community).
• Small size: there are no more than 30 operational places in your facility on the day of the Department’s decision.
• Reasonable steps to care for residents: the Department is satisfied that you have taken reasonable steps to ensure that the clinical care needs of your residents will be met during the period for which the exemption is in force.

When deciding whether to grant you an exemption, the Department will also have regard to any sanctions that have been made against you and any other information provided by the Aged Care Quality and Safety Commission.

Other points to note:

• The exemption will be temporary. The Department will decide how long your exemption will last – but the maximum time they can give you is 12 months.
• If you have an exemption and your circumstances change (e.g., you take on extra residents and now have more than 30), you must inform the Department.
• The Department can revoke your exemption for various reasons (e.g., you no longer meet the criteria, they are concerned about the safety of residents). Before revoking, they must first give you a chance to respond to their reasons.
• The Department has power to impose more rules about exemptions if they want to.

What Happens if You Breach the 24/7 RN Requirement?

From 1 July 2023, the 24/7 RN requirement will be added to the list of “Responsibilities of approved providers” in the Aged Care Act. This means that it will be treated similarly to other responsibilities in the Aged Care Act, such as the responsibility to comply with the Aged Care Quality Standards. If you breach the requirement, the Aged Care Quality and Safety Commission may respond in a variety of ways, ranging from requesting more information to imposing sanctions. A breach may also affect your Star Rating. For more information about what the Commission can do in response to a breach, refer to the Commission’s Compliance and Enforcement Policy.

How to Provide Feedback on the Exposure Draft (Due by 13 March 2023)

If you have any concerns about the exposure draft, you should let the Department know. A concern may be anything you think is unclear (such as the definition of “on site and on duty” mentioned above) or anything you think is unfair or too onerous. Or you may just have some suggestions for additions or improvements.

To give your feedback, email the Department at anaccoperations@health.gov.au by 13 March 2023.

More Information

• Exposure Draft and Explanatory Statement
• Care minutes and 24/7 registered nurse requirements guide