May 10, 2019

Have sanctions become less effective as a way to fix non-compliant nursing homes?


Recent reports of an aged care facility being sanctioned for the second time in less than a year have raised questions about both the quality of audits and the effectiveness of sanctions in returning facilities to compliance.

Dr Rodney Jilek, who has been a Principal Advisor at Aged Care Consulting and Advisory Services for 11 years and works with aged care providers who have failed accreditation audits to help return them to compliance, told HelloCare that sanctions are no longer effective.

“I think it has become clear that the sanctions arrangements do little to stop serious noncompliance,” he said.

“If [sanctions] were effective, the issues with having so many sanctioned homes would not have occurred and we would not see homes repeatedly being sanctioned.”

Sanctions are imposed on a nursing home when it is considered there is an “immediate and severe risk” to the safety, health or wellbeing of someone in care at the home, or if a nursing home has not fixed a problem within an agreed time frame.

Sanctions are the government’s mechanism to ensure quality in aged care, to ensure that the care provided for older Australians is the standard we expect and they deserve.

Noncompliance seen as “acceptable”, Dr Jilke says

Some operators are beginning to take the view that failing to meet all 44 quality standards is acceptable, Dr Jilek said.

“Many providers appear to have become so complacent they now regard noncompliance is an acceptable norm,” he said.

“We have been told by a number of providers who have had homes with 2,3 or 4 unmet outcomes that it is ‘not a bad result’.”

Compliance failings often spread through large operators

Dr Jilek said the problem often arises when one large operator has a failing in its system that infects a large number of facilities.

“The problems are numerous, but for starters, sanctions don’t recognize that with groups, their systems are the same, and with systemic system failure at one site, this is likely to be replicated everywhere.

“The sanction is only applied to one home (not the whole provider) so we end up with this rolling sanction catastrophe as each site’s failure is eventually ‘uncovered’,” he said.

In-house administrators employed

Dr Jilek said sometimes sanctioned aged care facilities employ their own staff as administrators. Employing an administrator is usually a condition of sanctions.

“Providers can use their own internal staff as advisors when they are under sanction,” he said.

Advisors unwilling to stand up to operators

Advisors who are new to the role may not stand up to aged care operators, Dr Jilek said.

“We also now see a flood of new advisors who appear willing to not raise concerns and just do as the provider wants,” he said.

Community expects sanctions to be a penality

The Department of Health is focussing more on moving nursing homes to compliance than penalising a sanctioned facility, Dr Jilek said.

“The compliance functions of the department are more of a softly, softly resolution process instead of the big stick they were originally intended to be and the community expects,” Dr Jilke said.

Audits inconsistent

Dr Jilek said audits can be inconsistent and there is little focus for nursing homes to attempt sustainable improvement.

“Another issue is the massive inconsistency in the auditing process itself,” he said.

“There is little or no emphasis on sustainable improvement… just patch things up, slap on a coat of paint and let’s get back to business as quickly as we can,” he said.

“It takes longer than a couple of months to achieve real change, and it relies heavily on the cooperation of the approved provider,” he said.

Sanctioned providers can still operate almost as usual

Dr Jilek said there is little in the way of real penalty for sanctioned aged care providers, which, apart from a few restrictions, can largely continue to operate as usual.

Information about sanctions is available on the My Aged Care website if you search for it, but otherwise it would be easy to miss the fact a facility was under sanction.

“Apart from a brief financial penalty, in many cases not even the full 6 months of the sanction imposed, they can continue to acquire new sites, continue to receive industry awards, and the information highlighting their failure is buried so deep the general public never even know,” he said.

“They simply jump the annoying hurdle and carry on as if nothing happened.”

HelloCare received this comment from the Department of Health:

“The department responds to non-compliance in a variety of ways including administrative resolution by engaging with the provider to encourage voluntary compliance. Where this is not appropriate, the department can issue a Notice of Non‑Compliance (NNC) under the Aged Care Act 1997, and where the non-compliance is of a more serious nature the department may impose a sanction.

“Sanctions require the provider to remedy the issues promptly, and are intended to assist the provider to implement changes so that they can sustain compliance.

“There is a range of different sanctions and timeframes that the Department can impose and these are varied to address the severity of the non-compliance.

“The appointment of an administrator/adviser is to assist the approved provider in complying with its responsibilities in relation to care and services.

  • “The role of the adviser is to determine and guide interventions in relation to provision of care and services to enable the service to achieve and sustain compliance.
  • “The role of the administrator is to determine and guide interventions in relation to governance and business operations to enable the service to achieve and sustain compliance. Administrators use evidence-based organisational management and leadership practices to work with the approved providers

“The department requires that administrators and advisers provide impartial and objective advice, and cannot be disqualified individuals for the purposes of the Act or hold a conflict of interest in relation to an approved provider.”

This article was edited on 10.5.19 to include a statement from the Department of Health. HelloCare contacted the Aged Care Quality and Safety Commission for a comment on this story but at the time of publishing had not yet received a response.


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  1. I’ve read previous articles from Dr Jilek that were insightful and interesting but suggesting that the present sanctioning isn’t a deterrent to operators doesn’t do him credit.
    As an approved provider I am very conscious of the reputation of our business and having sanctions on your record, not to mention the financial impact is considerable.
    Let’s talk about the financial cost, if you are put into sanctions either the facility or the department can install administration for a six month period. The department fee is $250,000 plus costs. If you get “assistance” from your peak body it can cost twice that. You also won’t receive government funding for any new resident admitted in that period. Also the cost of the actual compliance fix needs to be taken into account.

    Over the last year we have heard of facilities passing all 44 standards in say June and a couple of months later a new team of assessors will arrive and fail 18-20 standards!!
    How can that be?? Inconsistent standards and assessors is the only answer of course and the increase in non compliance in Homes is more of a reflection on the increased scrutiny of the department that facilities.

    When RACS are struggling to survive financially, and this has been the case for at least five years, the last thing they can afford is the burden of sanctions and to suggest otherwise would be out of touch with reality.

    To me it is amazing that anyone can maintain compliance with erratic assessment, changing standards, unreasonable expectations and financial chaos right across the industry and under those circumstances to fail 2-4 is a job bloody well done.


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