Exemptions from the 24/7 RN requirement in residential aged care

As providers would now be well aware from 1 July 2023 residential aged care facilities are required to have at least one registered nurse (RN) on site and on duty at all times. 

Given current staff shortages and financial pressure on providers, the prospect of this milestone being achieved across the industry seems highly unlikely.  

Exemptions

So far as the RN 24/7 requirements are concerned, recent amendments made to the Aged Care Act 1997 (Cwth) (Act) and the Quality of Care Principles (Principles) have set out the circumstances in which an exemption might be granted. The circumstances in which an exemption might be granted are very limited.  

An exemption can be granted only where: 

• the facility is located in a Modified Monash 5, 6 or 7 (1) area (using the 2019 classifications);
• the facility has no more than 30 operational places; and
• the provider has taken reasonable steps to ensure that the clinical needs of care recipients in the facility will be met during the period for which the exemption is in force.  

Applications for exemption can be lodged by email to the Department of Health and Aged Care (Department) at: exemptions@health.gov.au. The role of the Aged Care Quality and Safety Commission (Commission) in the process is to provide the Department with its view as to whether reasonable steps have been taken to meet the needs of care recipients while an exemption is in force.  

The Commission will consider evidence provided to demonstrate the care needs will be met in the absence of an onsite RN including; whether there are appropriate RN on call arrangements, arrangements with co-located health facilities, or other suitable workforce strategies to ensure residents are safe. The Department will also take into account any sanction or other compliance action that has been taken against the provider in making a decision to grant an exemption.  

If an exemption is granted, it will be granted for no longer than 12 months. There is no deadline for lodging exemption applications i.e. providers can apply after 1 July but the exemption period, if granted, will be shorter than 12 months. The Department has not provided a timeframe in which exemption applications will be determined other than to broadly indicate they will aim to consider applications before 1 July.   

There may be circumstances where there is more than one service within an aged care facility e.g. old style hostel and nursing home co-located on one site but with sperate RACS IDs. For the purposes of the 24/7 requirements the two services in this instance would be regarded as one facility and the requirements must be met across that facility. For the purposes of an exemption application however, the total number of beds across both services is the relevant number. If the services are located at different geographical sites (i.e. split services) they will be considered to be different facilities and will both need to meet the RN requirements.    

The exemption requirements will be assessed again before 1 July 2024.   

Compliance  

The Commission has advised industry that while it will take a "fair and sensible approach" to the RN 24/7 requirements, providers are expected to be able to demonstrate they have undertaken comprehensive planning to manage their workforce supply and make genuine efforts to recruit an adequate number and mix of staff to meet care recipient's needs – these are obligations already imposed on providers under the Act and Quality Standards.  

The Commission has also stated that where there is evidence that the provider is actively working to try and meet the requirements, the Commission will take a different approach to compliance from any provider who does not take active steps to meet the requirements and ensure staff are otherwise adequate to meet care recipient's needs. If the Commission considers the provider has not taken appropriate steps to comply it will take compliance action but only such action that is proportionate to the risk.    

It is important to note that if an exemption is granted from the RN 24/7 requirement, this does include an exemption from the care minutes targets. However, the Commission has also indicated they will take the same" fair and sensible approach" approach to the care minutes targets which commence on 1 October 2023. 

24/7 RN Supplement 

The 24/7 RN supplement will be paid automatically from 1 July 2023 for eligible facilities if they have up to an average of 60 residents per day in care (based on occupied beds). If a facility has more than 60 residents they will not be eligible for the supplement.

There are two supplement rates:

• services located in metropolitan locations (MMM 1–4)
• services located in rural, remote and very remote locations (MMM 5–7) to account for the additional costs that come with working in these areas.

Thomson Geer can assist  

If you require advice as to whether you satisfy the requirements for an exemption or need assistance in applying for an exemption, please contact the Health and Aged Care Team at Thomson Geer.

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(1) MM5 – small rural towns, MM6 – remote communities, MM7 - very remote communities.

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