New lifetime care guidelines
2012 Lifetime Care Guidelines
The 2012 Lifetime Care & Support (LTCS) Guidelines have been gazetted and they apply to all current and future participants in the Lifetime Care and Support Scheme (the scheme) from 25 May 2012.
Amendments have been made to Part 1 (Eligibility) and Part 8 (Attendant Care) and some new guidelines have been introduced (Parts 16, 17 and 18).
Part 1: Eligibility
The only changes relate to the eligibility of amputees. Previously, there was a requirement for multiple amputations (or equivalent impairment) of arms and / or legs, in the case of arms at or above the fingers and in the case of legs, adjacent to or above the knee.
In the 2012 guidelines, and in the case of multiple amputations of the upper limbs, the criterion has been changed to loss of a ‘thumb and index finger of the same hand at or above the first metacarpophalangeal joint’. In relation to the lower limbs, the criterion is now a transtibial amputation with loss of at least 50% of the tibia. Multiple amputations of the type described are still required.
A person may also now be eligible for the scheme with a single amputated limb, defined as a forequarter amputation (complete amputation of arm and shoulder, scapula and clavicle) or shoulder disarticulation; hindquarter amputation (loss of a leg and transaction of sacroiliac joint); hip disarticulation (complete amputation of the femur) or a ‘short’ transfemoral amputation as defined by the loss of at least 65% of the length of the femur.
These amendments have the result that a claimant with a significant single limb amputation (eg a high above knee (transfemoral) amputation) previously ineligible for the scheme may now be eligible, and insurers may wish to review their files to determine whether applications for admission to the scheme should now be made. There is also no longer a requirement for a qualifying FIM (functional independent measure) score for amputees.
Part 8: Attendant care services
There are several changes contained in the 2012 guidelines.
The 2010 guidelines contained the following statement:
‘The Authority will fund reasonable and necessary attendant care services required as a result of the motor accident injury to support and assist a participant to undertake vocational and educational activities and access and use recreational activities in the community for example supporting a participant to return and maintain employment or school attendance, participate in a community based course or attend a school camp.’
Reference to attendant care being funded for educational and vocational assistance has been removed.
We assume the removal of these words is not intended to relieve the Authority of its liability to pay for attendant care associated with these activities, just to remove the invitation to seek funding for these activities.
There is a subtle, yet potentially very significant, change to the definition of attendant care services. Whereas the 2010 guidelines stated ‘the type of assistance provided to the participant may include physical assistance, prompting and / or supervision’, the 2012 guidelines have removed ‘supervision and prompting’ from the definition.
Once again, it is unclear whether this change is intended to relieve the Authority from its obligation to pay for supervision and prompting, but insurers will argue that the Authority is obliged, pursuant to s6 of the Motor Accidents (Lifetime Care & Support) Act 2006 (the Act) to pay for not only hands-on physical assistance but supervision and prompting, which is a large component of the care needs of scheme participants with traumatic brain injury.
There has also been a subtle change to the definition of home maintenance in the 2012 guidelines. Under a new heading of ‘domestic services’ the 2012 guidelines provide that domestic services will be funded and these include routine ‘home maintenance and gardening for the purposes of upkeep and safe access’. This replaces the previous 2010 guideline which was perhaps a little wider in its application as it provided ‘home maintenance and gardening previously undertaken by the participant for example cleaning the gutters’. The change possibly indicates LTCS will pay for a more limited range of gardening only to maintain the upkeep of a garden rather than to replace services previously carried out by the participant.
Some minor amendments have also been made to attendant care services where the participant is away from home. The previous clause which provided for ‘attendant care holiday support’ has been replaced with ‘attendant care services where the participant is away from home’. The 2010 guidelines provided for extra care for holiday support for a maximum of 28 days per year, and this has now been removed from the 2012 guidelines, as has reference to the Authority funding one economy return airfare within Australia per year for the attendant care worker and the additional accommodation costs of the carer.
Part 8, paragraph 6 of the 2010 guidelines entitled ‘attendant care – family and friends as paid attendant care workers’ has been removed.
Part 18: Approved providers of attendance care services
There is a new part 18 of the 2012 guidelines titled ‘approved providers of attendant care services’. At paragraph 1.1 ‘services provided to participants in connection with their treatment and care needs for attendant care services must be provided only by approved providers. The Authority will not pay expenses of attendant care services provided by persons who are not approved providers’.
These amendments have the potential to prohibit the Authority from relying on family members to provide any of the participant’s care needs, and are therefore potentially very significant.
Currently under the 2010 guidelines there is provision for payment of services provided by family members in some circumstances essentially as a last resort (we understand that family have in the past been approved to provide care when the person lives in a remote area or where for instance the participant is a young child). Except in special circumstances LTCS will not pay for services provided by family.
Section 10 of the Act does allow guidelines to be issued to deal with approval of treatment providers including care providers. Section 10 provides:
‘Approval of treatment and care providers
(1) The LTCS guidelines may make provision for or with respect to:
(a) the approval (by accreditation or otherwise) by or on behalf of the authority of persons (‘approved providers’), other than medical practitioners to provide any service in connection with the provision of the treatment and care needs of a participant in the scheme; and
(b) the standard of competency of approved providers; and
(c) requiring services provided in connection with the treatment and care needs of a participant in the scheme (other than the services of a medical practitioner) to be provided only by approved providers.
(2) If the LTCS guidelines require services to be provided only by approved providers the authority is not required to pay any expenses incurred by or on behalf of a participant in the scheme in providing the services concerned unless those services are provided by an approved provider.’
Part 18 paragraph 2 provides ‘in special circumstances the authority may approve, in writing, a suitable person or organisation to provide attendant care services to a participate for a limited time’. The special circumstances may include geographic isolation and cultural or religious reasons. Generally speaking the approved providers must have appropriate certification. The special circumstances mentioned appear to contemplate that commercial care may not be available in remote locations or where for religious or cultural reasons it would not be appropriate to have other than a family member provide the personal care. The Authority will not pay expenses for attendant care services delivered before a provider has obtained written approval and it appears that the approval will be for a short duration only. Those non approved providers who are approved in special circumstances will be paid for the care they provide, although the rate will be at the discretion of the Authority (decided at the time the carer is approved).
Part 18 paragraph 3.3 provides ‘the Authority will not pay expenses incurred by or on behalf of the participant when attendant care services are delivered by a provider who is not approved in writing by the Authority’.
We suggest that where an insurer receives a Care Needs Assessment and Certificate which includes as part of the care plan unpaid care provided by family members, the insurer points out to the Authority that reliance on any unpaid care is contrary to the guidelines, and that commercial care should be provided by the Authority instead.
Part 16: Vocational rehabilitation services
This part provides details of vocational rehabilitation services, vocational training which will be funded by LTCS.
Part 17: Buying into the lifetime care and support scheme
This part provides that an injured person may buy into the LTCS. In order to buy into the scheme, the injury must have occurred before the scheme commenced i.e. before 1 October 2006 for children to 16 years and before 1 October 2007 for adults, and the person must have had a severe injury that meets the eligibility criteria. Such an application can not be made by an insurer (s7A(4) of the Act). The person will be assessed and the buy-in amount will then be calculated.
We do not expect that the buy in option will be taken up very often, if at all.
Authored by Annabelle Duffy, Partner, Sydney.
September 14, 2018
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