An Act relating to aged care, and for other purposes
Chapter 1—Introduction
Division 1—Preliminary matters
1‑1
Short title [see Note 1]
This Act may be cited as the Aged
Care Act 1997.
1‑2
Commencement [see
Note 1]
(1) This Division commences on the day on
which this Act receives the Royal Assent.
(2) Subject to subsection (3), the
provisions of this Act (other than the provisions of this Division) commence on
a day or days to be fixed by Proclamation.
(3) If a provision of this Act does not
commence under subsection (2) within the period of 6 months beginning on
the day on which this Act receives the Royal Assent, it commences on the first
day after the end of that period.
1‑3
Identifying defined terms
(1) Many of the terms in this Act are defined
in the Dictionary in Schedule 1.
(2) Most defined terms are identified by an
asterisk appearing at the start of the term: as in “*aged care service”. The footnote
that goes with the asterisk contains a signpost to the Dictionary.
(3) An asterisk usually identifies the first
occurrence of a term in a subsection, note or definition. Later occurrences of
the term in the same subsection, note or definition are not asterisked.
(4) Terms are not asterisked in headings,
tables or diagrams.
(5) The
following basic terms used throughout the Act are not identified with an
asterisk:
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Terms that are not identified
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Item
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This term:
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is defined in:
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1
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approved provider
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Schedule 1
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2
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care
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Schedule 1
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3
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community care
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section 45‑3
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4
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community care service
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Schedule 1
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5
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flexible care
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section 49‑3
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6
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flexible care service
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Schedule 1
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7
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provide
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section 96‑4
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8
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residential care
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section 41‑3
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9
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residential care service
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Schedule 1
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10
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Secretary
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Schedule 1
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1‑4
Tables of Divisions and Subdivisions do not form part of this Act
Tables of Divisions and tables of
Subdivisions do not form part of this Act.
Division 2—Objects
2‑1
The objects of this Act
(1) The objects of this Act are as follows:
(a) to provide for funding of *aged care that
takes account of:
(i) the quality of the
care; and
(ii) the *type of care and
level of care provided; and
(iii) the need to ensure
access to care that is affordable by, and appropriate to the needs of, people
who require it; and
(iv) appropriate outcomes
for recipients of the care; and
(v) accountability of the
providers of the care for the funding and for the outcomes for recipients;
(b) to promote a high quality of care
and accommodation for the recipients of *aged care services that meets the needs
of individuals;
(c) to protect the health and well‑being
of the recipients of aged care services;
(d) to ensure that aged care services
are targeted towards the people with the greatest needs for those services;
(e) to facilitate access to aged care
services by those who need them, regardless of race, culture, language, gender,
economic circumstance or geographic location;
(f) to provide respite for families,
and others, who care for older people;
(g) to encourage diverse, flexible and
responsive aged care services that:
(i) are appropriate to
meet the needs of the recipients of those services and the carers of those
recipients; and
(ii) facilitate the
independence of, and choice available to, those recipients and carers;
(h) to help those recipients to enjoy
the same rights as all other people in Australia;
(i) to plan effectively for the
delivery of aged care services that:
(i) promote the targeting
of services to areas of the greatest need and people with the greatest need;
and
(ii) avoid duplication of
those services; and
(iii) improve the
integration of the planning and delivery of aged care services with the
planning and delivery of related health and community services;
(j) to promote ageing in place
through the linking of care and support services to the places where older
people prefer to live.
(2) In construing the objects, due regard
must be had to:
(a) the limited resources available to
support services and programs under this Act; and
(b) the need to consider equity and
merit in accessing those resources.
Division 3—Overview of this Act
3‑1
General
This Act provides for the Commonwealth
to give financial support:
(a) through payment of subsidies for
the provision of *aged
care; and
(b) through payment of grants for
other matters connected with the provision of aged care.
Subsidies are paid under Chapter 3 (but Chapters 2
and 4 are also relevant to subsidies), and grants are paid under Chapter 5.
3‑2
Preliminary matters relating to subsidies (Chapter 2)
Before the Commonwealth can pay subsidy
to a provider of *aged
care under Chapter 3, a number of approvals and similar decisions may need
to have been made under Chapter 2. These may relate to:
(a) the provider (for example, the
requirement that the provider be an approved provider); or
(b) the *aged care service in question (for
example, the requirement that *places have been allocated in respect of the service); or
(c) the recipient of aged care (for
example, the requirement that the recipient has been approved as a recipient of
the type of aged care that is provided).
3‑3
Subsidies (Chapter 3)
A number of different kinds of subsidy
can be paid under Chapter 3. They are paid for *aged care that has been provided.
Eligibility for a subsidy depends on:
(a) particular approvals and similar
decisions having been made under Chapter 2; and
(b) the circumstances in which the
care is provided (for example, whether the care is provided in a residential
care service that meets its *accreditation requirement).
3‑4
Responsibilities of approved providers (Chapter 4)
Approved providers have certain
responsibilities under Chapter 4. These responsibilities relate to:
(a) the quality of care they provide;
and
(b) user rights for the people to whom
care is provided; and
(c) accountability for the care that
is provided, and the basic suitability of their *key personnel.
Failure to meet these responsibilities can lead to the
imposition of sanctions that affect the status of approvals and similar
decisions under Chapter 2 (and therefore may affect amounts of subsidy
payable to an approved provider).
3‑5
Grants (Chapter 5)
The Commonwealth makes grants under
Chapter 5 to contribute to costs associated with:
(a) the establishment or enhancement
of *aged care
services (for example, *residential care grants); or
(b) assessments or approvals related
to *aged care
(for example, *assessment
grants); or
(c) support services related to the
provision of aged care (for example, *advocacy grants).
The grants are (in most cases) payable under agreements
with the recipients of the grants, and may be subject to conditions.
3‑6
The structure of this Act
This diagram sets out the basic
structure of this Act.
Division 4—Application of this Act
4‑1
Application of this Act
(1) This Act applies in all the States and
Territories.
(2) However, this Act does not apply in any
external Territory.
4‑2
Binding the Crown
(1) This Act binds the Crown in each of its
capacities.
(2) This Act does not make the Crown liable
to be prosecuted for an offence.
Chapter 2—Preliminary matters relating to subsidies
Division 5—Introduction
5‑1
What this Chapter is about
Before the Commonwealth can pay a
subsidy under Chapter 3 for the provision of care, a number of approvals
and similar decisions may need to have been made. These relate to:
• the
provider of the service—the provider must be an approved provider (see Part 2.1);
• the
*aged care
service in question—*places
must have been allocated in respect of the service (see Part 2.2). In
addition, decisions can be made under Part 2.5 allowing places in a
residential care service to become *extra service places (enabling higher fees to be charged
for those places), and a residential care service can become certified under
Part 2.6 (enabling *accommodation bonds and *accommodation charges to be charged);
• the
recipient of the care—the recipient must (in most cases) be approved in respect
of the type of *aged
care provided (see Part 2.3), and (in the case of residential care or
flexible care) can be classified in respect of the level of care that is
required (see Part 2.4).
Note: Not all of these approvals and decisions are
needed in respect of each kind of subsidy under Chapter 3.
5‑2
Which approvals etc. may be relevant
The following table shows, in respect of
each kind of payment under Chapter 3, which approvals and similar
decisions under this Chapter may be relevant.
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Which approvals etc. may be relevant
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Approvals or decisions
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Kind of payment
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Residential care subsidy
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Community care subsidy
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Flexible care subsidy
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1
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Approval of providers
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Yes
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Yes
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Yes
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2
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Allocation of places
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Yes
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Yes
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Yes
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3
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Approval of care recipients
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Yes
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Yes
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Yes
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4
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Classification of care recipients
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Yes
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No
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Yes
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5
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Decisions relating to extra service places
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Yes
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No
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No
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6
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Certification of residential care services
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Yes
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No
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No
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Note 1: Classification
of care recipients is relevant to *flexible care subsidy only in respect of some kinds of
flexible care services.
Note 2: Allocation of
funding for *residential
care grants and *community
care grants is dealt with in Parts 5.1 and 5.2 respectively, and not in
this Chapter.
Part 2.1—Approval of providers
Division 6—Introduction
6‑1
What this Part is about
Regardless of what type of *aged care is to be
provided, approval under this Part is a precondition to a provider of aged care
receiving subsidy under Chapter 3 for the provision of the care.
Table of Divisions
6 Introduction
7 What is the significance of approval as a
provider of aged care?
8 How does a person become an approved
provider?
9 What obligations arise from being an
approved provider?
10 When does an approval cease to have effect?
10A Disqualified individuals
6‑2
The Approved Provider Principles
Approval of providers of *aged care is also
dealt with in the Approved Provider Principles. The provisions of this Part
indicate when a particular matter is or may be dealt with in these Principles.
Note: The Approved Provider Principles are made by
the Minister under section 96‑1.
Division 7—What is the significance of approval as a provider of aged
care?
7‑1
Providers of aged care must be approved to receive subsidy
Payments of subsidy cannot be made under
Chapter 3 to a person for providing *aged care unless the person is
approved under this Part as a provider of aged care, and:
(a) the approval is in respect of all
types of aged care; or
(b) the approval is in respect of a
type of aged care that includes the aged care in question; or
(c) if the approval is in respect of
one or more *aged
care services—the aged care in question is provided through that aged care
service, or one of those aged care services, as the case requires; or
(d) if the approval is in respect of
one or more specified types of aged care and one or more specified aged care
services:
(i) the specified type or
types of aged care includes the aged care in question; and
(ii) the aged care in
question is provided through that aged care service or one of those aged care
services, as the case requires.
7‑2
Approvals may be restricted
(1) If a restriction on the approved
provider’s approval is in force under paragraph 66‑1(b) limiting the
approval to certain *aged
care services, subsidy can only be paid under Chapter 3 in respect of care
provided through those services.
(2) If a
restriction on the approved provider’s approval is in force under paragraph 66‑1(c)
limiting the approval to certain care recipients, subsidy can only be paid
under Chapter 3 in respect of care provided to those care recipients.
Note: Subsections (1) and (2) will apply
together if restrictions on the approved provider’s approval are in force under
both paragraph 66‑1(b) and paragraph 66‑1(c).
Division 8—How does a person become an approved provider?
8‑1
Approval as a provider of aged care
(1) The Secretary must, in
writing, approve a person as a provider of *aged care if:
(a) the person (the applicant)
makes an application under section 8‑2; and
(b) the Secretary is satisfied that
the applicant is a *corporation;
and
(c) the
Secretary is satisfied that the applicant is suitable to provide aged care (see
section 8‑3); and
(d) the Secretary is satisfied that
none of the applicant’s *key personnel is a *disqualified individual.
Note 1: Under Part 4.4,
the Secretary may restrict a person’s approval as a provider of *aged care to
certain *aged
care services, or to certain care recipients.
Note 2: Rejections of applications are reviewable under
Part 6.1.
(2) The approval is in respect of all types
of *aged
care, unless the Secretary specifies in the instrument of approval that the
approval is limited to:
(a) one or more specified types of
aged care; or
(b) one or more specified *aged care
services; or
(c) one or more specified types of
aged care and one or more specified aged care services.
A decision to limit the approval must comply with any
requirements set out in the Approved Provider Principles relating to the
grounds on which such a limitation may be imposed.
(3) The approval is not subject to any
limitation relating to the period for which it is in force, unless the
instrument of approval is limited to a specified period.
8‑2
Applications for approval
(1) A person may apply in writing to
the Secretary to be approved as a provider of *aged care.
(2) The application must be in a form
approved by the Secretary, and must be accompanied by:
(a) any documents that are required by
the Secretary to be provided; and
(b) the application fee (if any)
specified in, or worked out in accordance with, the Approved Provider
Principles.
(3) The amount of any application fee:
(a) must be reasonably related to the
expenses incurred or to be incurred by the Commonwealth in relation to the
application; and
(b) must not be such as to amount to
taxation.
(4) An application that contains information
that is, to the applicant’s knowledge, false or misleading in a material
particular is taken not to be an application under this section.
8‑3
Suitability of people to provide aged care
(1) In deciding whether the applicant
is suitable to provide *aged care, the Secretary must consider:
(a) the suitability and experience of
the applicant’s *key
personnel; and
(b) the applicant’s ability to
provide, and its experience (if any) in providing, aged care; and
(c) the applicant’s ability to meet
(and, if the applicant has been a provider of aged care, its record of meeting)
relevant standards for the provision of aged care (see Part 4.1); and
(d) the applicant’s commitment to
(and, if the applicant has been a provider of aged care, its record of
commitment to) the rights of the recipients of aged care; and
(e) the applicant’s record of
financial management, and the methods that the applicant uses, or proposes to
use, in order to ensure sound financial management; and
(f) if the applicant has been a
provider of aged care—its record of financial management relating to the
provision of that aged care; and
(g) if the applicant has been a
provider of aged care—its conduct as a provider, and its compliance with its
responsibilities as a provider and its obligations arising from the receipt of
any payments from the Commonwealth for providing that aged care; and
(h) any other matters specified in the
Approved Provider Principles.
(2) In considering a matter referred to in paragraphs (1)(b)
to (h), the Secretary may also consider the matter in relation to any or all of
the applicant’s *key
personnel.
(3) For the purposes of this Act, each of the
following is one of the applicant’s key personnel:
(a) a member of the group of people
who are responsible for the executive decisions of the applicant;
(b) any other person who is concerned
in, or takes part in, the management of the applicant;
(c) any person who is responsible for
the nursing services provided, or to be provided, by the *aged care service
conducted, or to be conducted, by the applicant;
(d) any person who is responsible for
the day‑to‑day operations of an *aged care service conducted by the
applicant, whether or not the person is employed by the applicant;
(e) any person who is likely to be
responsible for the day‑to‑day operations of an *aged care service
that the applicant proposes to conduct, whether or not the person is employed
by the applicant.
(4) A person referred to in paragraph (3)(c)
must hold a recognised qualification in nursing.
(5) The Approved Provider Principles may
specify the matters to which the Secretary must have regard in considering any
of the matters set out in paragraphs (1)(a) to (h).
(6) The references in paragraphs (1)(b),
(c), (d), (f) and (g) to aged care include references to any care for the aged,
whether provided before or after the commencement of this section, in respect
of which any payment was or is payable under a law of the Commonwealth.
(7) Paragraph 8‑1(1)(d) and sections 10A‑2,
10A‑3 and 63‑1A do not limit this section.
8‑4
Requests for further information
(1) If the Secretary needs further
information to determine the application, the Secretary may give to the
applicant a notice requiring the applicant to give the further information
within 28 days after receiving the notice, or within such shorter period as is
specified in the notice.
(2) The
application is taken to be withdrawn if the applicant does not give the further
information within the 28 days, or within the shorter period, as the case
requires. However, this does not stop the applicant from reapplying.
Note: The period for giving the further information
can be extended—see section 96‑7.
(3) The notice must contain a
statement setting out the effect of subsection (2).
(4) The Approved Provider Principles may
limit the Secretary’s power to specify a shorter period in the notice by
setting out one or both of the following:
(a) the circumstances in which the
power may be exercised;
(b) the length of the shorter period,
either generally or in respect of particular circumstances.
8‑5
Notification of Secretary’s determination
(1) The Secretary must notify the
applicant, in writing, whether or not the applicant is approved as a provider
of *aged
care. The notice must be given:
(a) within 90 days after receiving the
application; or
(b) if the Secretary has requested
further information under section 8‑4—within 90 days after receiving
the information.
(2) If the applicant is approved, the
notice must include statements setting out the following matters:
(a) the applicant’s obligations under
Division 9;
(b) whether the approval is in respect
of all types of *aged
care and all *aged
care services and, if it is not:
(i) the one or more
specified types of aged care; or
(ii) the one or more
specified aged care services; or
(iii) the one or more
specified types of aged care and the one or more specified aged care services;
in respect of which the
applicant is approved as an approved provider; and
(c) the circumstances in
which the approval may be restricted under Part 4.4 and the effect of such
a restriction (see section 7‑2);
(d) if the approval is for a specified
period—the date on which the period ends;
(e) the circumstances in which the
approval will lapse (see section 10‑2);
(f) the circumstances in which the
approval may be suspended or revoked (see sections 10‑3, 10‑4
and Part 4.4).
8‑6
States, Territories and local government taken to be approved providers
(1) Each of the following is taken to have
been approved under this Part as a provider of *aged care:
(a) a State or Territory;
(b) an *authority of a State or Territory;
(c) a *local government authority.
The approval is taken to be in respect of all types of
aged care.
(2) Subsection (1) ceases to apply in
relation to a State, Territory, *authority of a State or Territory or *local government
authority if the approval:
(a) lapses under section 10‑2;
or
(b) is revoked under section 10‑3
or 10‑4; or
(c) is revoked or suspended under Part 4.4.
(3) If a State, Territory, *authority of a
State or Territory or *local government authority to which subsection (1) has
ceased to apply subsequently applies under section 8‑2 for approval
as a provider of *aged
care, for the purposes of the application:
(a) the applicant is taken to be a *corporation; and
(b) if the applicant is a State or
Territory—paragraphs 8‑3(3)(a) and (b) do not apply.
Division 9—What obligations arise from being an approved provider?
9‑1
Obligation to notify certain changes
(1) An approved provider must notify the Secretary
of any of the following changes within 28 days after the change occurs:
(a) a change of circumstances that
materially affects the approved provider’s suitability to be a provider of *aged care (see
section 8‑3);
(b) a
change of any of the approved provider’s *key personnel.
Note: Approved providers have a responsibility under
Part 4.3 to comply with this obligation. Failure to comply with a
responsibility can result in a sanction being imposed under Part 4.4.
(2) For the purposes of this Act, each of the
following is one of an approved provider’s key personnel:
(a) a member of the group of people
who are responsible for the executive decisions of the approved provider;
(b) any other person who is concerned
in, or takes part in, the management of the approved provider;
(c) any person who is responsible for
the overall nursing care provided, or to be provided, by the *aged care service
conducted, or to be conducted, by the approved provider;
(d) any person who is responsible for
the day‑to‑day operations of an *aged care service conducted by the
approved provider, whether or not the person is employed by the approved
provider.
However, paragraphs (a) and (b) of this subsection do
not apply if the approved provider is a State or Territory.
(3) A person referred to in paragraph (2)(c)
must hold a recognised qualification in nursing.
(3A) For the purposes of this section, if:
(a) there is a change of any of an
approved provider’s *key
personnel; and
(b) the change is wholly or partly
attributable to the fact that a particular person is, or is about to become, a *disqualified
individual;
the approved provider is taken not to notify the change
unless the provider’s notification includes the reason why the person is, or is
about to become, a disqualified individual.
(4) An approved provider that is a *corporation is
guilty of an offence if the approved provider fails to notify the Secretary of
such a change within the 28 day period.
Penalty: 30 penalty units.
(5) Strict
liability applies to subsection (4).
Note 1: Chapter 2
of the Criminal Code sets out the general principles of criminal
responsibility.
Note 2: For strict liability, see section 6.1
of the Criminal Code.
9‑2
Obligation to give information relevant to an approved provider’s status when
requested
(1) The Secretary may, at any time,
request an approved provider to give the Secretary such information, relevant
to the approved provider’s suitability to be a provider of *aged care (see
section 8‑3), as is specified in the request. The request must be in
writing.
(2) The
approved provider must comply with the request within 28 days after the request
was made, or within such shorter period as is specified in the notice.
Note: Approved providers have a responsibility under
Part 4.3 to comply with this obligation. Failure to comply with a
responsibility can result in a sanction being imposed under Part 4.4.
(3) An
approved provider that is a *corporation is guilty of an offence if it fails to comply
with the request within the period referred to in subsection (2).
Penalty: 30 penalty units.
Note: Chapter 2 of the Criminal Code
sets out the general principles of criminal responsibility.
(4) The request must contain a statement
setting out the effect of subsections (2) and (3).
9‑3
Obligation to give information relevant to payments under this Act
(1) The Secretary may, at any time, request
an approved provider to give to the Secretary such information relating to
payments made under this Act as is specified in the request. The request must
be in writing.
(2) The
approved provider must comply with the request within 28 days after the request
was made, or within such shorter period as is specified in the notice.
Note: Approved providers have a responsibility under
Part 4.3 to comply with this obligation. Failure to comply with a
responsibility can result in a sanction being imposed under Part 4.4.
(3) The request must contain a statement
setting out the effect of subsection (2).
9‑3A
Obligation to give information relating to accommodation bonds, entry
contributions etc.
(1) The Secretary may, at any time, request
an approved provider to give to the Secretary specified information relating to
any of the following:
(a) *accommodation bonds charged by the
approved provider;
(b) the amount of one or more *accommodation bond
balances at a particular time;
(c) the amount equal to the total of
the accommodation bond balances that the approved provider would have had to
refund at a specified earlier time if certain assumptions specified in the
request were made;
(d) *entry contributions given or loaned under
a *formal
agreement binding the approved provider;
(e) the amount of one or more *entry contribution
balances at a particular time;
(f) the amount equal to the total of
the entry contribution balances that the approved provider would have had to
refund at a specified earlier time if certain assumptions specified in the
request were made.
The request must be in writing.
(2) The approved provider must comply with
the request within 28 days after the request was made, or within such shorter
period as is specified in the request.
Note: Approved providers have a responsibility under
Part 4.3 to comply with this obligation. Failure to comply with a
responsibility can result in a sanction being imposed under Part 4.4.
(3) An approved provider that is a *corporation
commits an offence if it fails to comply with the request within the period
referred to in subsection (2).
Penalty: 30 penalty units.
(4) The request must contain a statement
setting out the effect of subsections (2) and (3).
9‑4
Obligations while approval is suspended
If a person’s approval under section 8‑1
is suspended for a period under Part 4.4, the obligations under this
Division apply to the person as if the person were an approved provider during
that period.
Division 10—When does an approval cease to have effect?
10‑1
Cessation of approvals
(1) An approval as a provider of *aged care ceases
to have effect if:
(a) the approval lapses under section 10‑2;
or
(b) the approval is revoked under
section 10‑3 or 10‑4; or
(c) the period (if any) to which the
approval is limited under subsection 8‑1(3) expires; or
(d) the approval is revoked under Part 4.4.
(2) If an approval as a provider of *aged care is
suspended under Part 4.4, the approval ceases to have effect until the
suspension ceases to apply (see Division 68).
10‑2
Approval lapses if services not provided for 6 months
(1) If an approved provider does not
provide any *aged
care during a continuous period of 6 months, the approval lapses on the day
after the end of that period. However, any period during which the operation of
this subsection is waived under subsection (3) is not to be counted
towards the 6 months.
(2) For the purposes of subsection (1),
an approved provider is taken to be providing *aged care at all times while there is in
force an allocation of *places to the approved provider that, under Division 15,
has the status of a *provisional
allocation.
(3) The Secretary may waive the operation of subsection (1)
for a specified period in relation to the approved provider if:
(a) the approved provider has applied
to the Secretary, in writing, for a waiver; and
(b) there is in force an allocation of
*places to
the approved provider that has taken effect under section 15‑1; and
(c) the Secretary is satisfied that
the approved provider intends, and will have the capacity, to provide *aged care by the
end of the period of the waiver.
(4) The application for the waiver must be
made at least 28 days before the end of the 6 months referred to in subsection (1).
(5) The Secretary must, at least 14 days
before the end of the 6 months referred to in subsection (1):
(a) waive the operation of subsection (1)
for a specified period; or
(b) reject
the application;
and notify the approved
provider accordingly.
Note: Rejections of applications are reviewable
under Part 6.1.
10‑3
Revocation of approval
(1) The Secretary must revoke an approval if:
(a) the Secretary is satisfied that
the approved provider has ceased to be a *corporation; or
(b) the Secretary is satisfied that
the approved provider has ceased to be suitable for approval (see section 8‑3);
or
(c) the
Secretary is satisfied that the approved provider’s application for approval
contained information that was false or misleading in a material particular.
Note 1: Revocation of
approvals are reviewable under Part 6.1.
Note 2: Approvals may also be revoked as a sanction
under Part 4.4.
(3) Before deciding to revoke the approval,
the Secretary must notify the approved provider that revocation is being
considered. The notice must be in writing and must:
(a) include the Secretary’s reasons
for considering the revocation; and
(b) invite the approved provider to
make submissions, in writing, to the Secretary within 28 days after receiving
the notice; and
(c) inform the approved provider that
if no submission is made within that period, any revocation may take effect as
early as 7 days after the last day for making submissions.
(4) In deciding whether to revoke the approval,
the Secretary must consider any submissions given to the Secretary within that
period.
(5) The Secretary must notify the approved
provider, in writing, of the decision.
(6) The notice must be given to the approved
provider within 28 days after the end of the period for making submissions. If
the notice is not given within this period, the Secretary is taken to have
decided not to revoke the approval.
(7) The Secretary must give effect to the
revocation of the approval by:
(a) giving the approved provider one
or more written notices (which the Secretary may give at different times)
limiting, or further limiting, the approval to:
(i) one or more specified
types of aged care; or
(ii) one or more specified *aged care
services; or
(iii) one or more specified
classes of care recipient; or
(iv) any combination of the
above; or
(b) giving the approved provider a
written notice revoking the approval altogether (whether or not the Secretary
has already imposed any limitations under paragraph (a)).
A notice under this subsection may be given at the same
time as the subsection (5) notice or at a later time.
(7A) A subsection (7) notice takes effect
at the time specified in the notice, which must be at least 7 days after the
day on which the notice is given.
(7B) The Secretary must not give a subsection (7)
notice unless the Secretary is satisfied that appropriate arrangements have
been made to ensure that the care recipients to whom the approved provider will
no longer be approved to provide *aged care after the notice takes effect will continue to be
provided with care after that time.
(7C) Subject to subsection (7B), if the
Secretary imposes one or more limitations under paragraph (7)(a), the
Secretary must eventually revoke the approval altogether under paragraph (7)(b).
(8) Paragraph (1)(a) does not apply if
the approved provider is a State, Territory, *authority of a State or Territory or *local government
authority.
10‑4
Revocation of approval on request of approved provider
(1) The Secretary must revoke an approval if
the approved provider requests the Secretary in writing to revoke its approval.
(2) The request must be given to the
Secretary:
(a) at least 60 days before the day on
which the revocation is requested to take effect; or
(b) before such other time as the
Secretary determines in accordance with any requirements specified in the
Approved Provider Principles.
(3) The Secretary must notify the approved
provider of the revocation. The notice must be in writing and must be given to
the approved provider at least 14 days before the day on which the revocation
is to take effect.
(4) The revocation has effect on the day
requested, unless another day is specified in the notice under subsection (3).
(5) The
revocation is subject to such conditions (if any) as are specified in the
notice.
Note: Decisions to impose conditions on revocations
under this section are reviewable under Part 6.1.
Division 10A—Disqualified individuals
10A‑1
Meaning of disqualified individual
(1) For the purposes of this Act, an
individual is a disqualified individual if:
(a) the individual has been convicted
of an indictable offence; or
(b) the individual is an insolvent
under administration; or
(c) the individual is of unsound mind.
(2) In this section:
indictable offence means:
(a) an indictable offence against a
law of the Commonwealth or of a State or Territory; or
(b) an offence that:
(i) is an offence against
a law of a foreign country or of a part of a foreign country; and
(ii) when committed, corresponds
to an indictable offence against a law of the Commonwealth or of a State or
Territory.
insolvent under administration has the same
meaning as in the Superannuation Industry (Supervision) Act 1993.
(3) Paragraph (1)(a) applies to a
conviction, whether occurring before, at or after the commencement of this
section.
(4) For the purposes of this section, an
individual who is one of the *key personnel of an applicant under section 8‑2
is taken to be of unsound mind if, and only if, a registered
medical practitioner has certified that he or she is mentally incapable of
performing his or her duties as one of those key personnel.
(5) For the purposes of this section, an
individual who is one of the *key personnel of an approved provider is taken to be of unsound
mind if, and only if, a registered medical practitioner has certified
that he or she is mentally incapable of performing his or her duties as one of
those key personnel.
(6) This section does not affect the
operation of Part VIIC of the Crimes Act 1914 (which includes
provisions that, in certain circumstances, relieve persons from the requirement
to disclose spent convictions and require persons aware of such convictions to
disregard them).
10A‑2
Disqualified individual must not be one of the key personnel of an approved
provider
Offence committed by approved providers
(1) A *corporation is guilty of an offence if:
(a) the corporation is an approved
provider; and
(b) a *disqualified individual is one of the
corporation’s *key
personnel, and the corporation is reckless as to that fact.
Penalty: 300 penalty units.
Note: Chapter 2 of the Criminal Code
sets out the general principles of criminal responsibility.
(2) A *corporation that contravenes subsection (1)
is guilty of a separate offence in respect of each day (including a day of a
conviction for the offence or any later day) during which the contravention
continues.
Offence committed by individuals
(3) An individual is guilty of an offence if:
(a) the individual is one of the *key personnel of an
approved provider; and
(b) the approved provider is a *corporation; and
(c) the
individual is a *disqualified
individual, and the individual is reckless as to that fact.
Penalty: Imprisonment for 2
years.
Note: Chapter 2 of the Criminal Code
sets out the general principles of criminal responsibility.
Validity of acts of disqualified individuals and
corporations
(4) An act of a *disqualified individual or a *corporation is not
invalidated by the fact that this section is contravened.
10A‑3
Remedial orders
Unacceptable key personnel situation
(1) For the purposes of this section, an unacceptable
key personnel situation exists if:
(a) an individual is one of the *key personnel of
an approved provider; and
(b) the approved provider is a *corporation; and
(c) the individual is a *disqualified
individual.
Grant of orders
(2) If an unacceptable key personnel
situation exists, the Federal Court may, on application by the Secretary, make
such orders as the court considers appropriate for the purpose of ensuring that
that situation ceases to exist.
(3) In addition to the Federal Court’s power
under subsection (2), the court:
(a) has power, for the purpose of
securing compliance with any other order made under this section, to make an
order directing any person to do or refrain from doing a specified act; and
(b) has power to make an order
containing such ancillary or consequential provisions as the court thinks just.
Grant of interim orders
(4) If an application is made to the Federal
Court for an order under this section, the court may, before considering the
application, grant an interim order directing any person to do or refrain from
doing a specified act.
Notice of applications
(5) The Federal Court may, before making an
order under this section, direct that notice of the application be given to
such persons as it thinks fit or be published in such manner as it thinks fit,
or both.
Discharge etc. of orders
(6) The Federal Court may, by order, rescind,
vary or discharge an order made by it under this section or suspend the
operation of such an order.
Definition
(7) In this section:
Federal Court means the Federal Court of
Australia.
Part 2.2—Allocation of places
Division 11—Introduction
11‑1
What this Part is about
An approved provider can only receive
subsidy under Chapter 3 for providing *aged care in respect of which a *place has been
allocated. The Commonwealth plans the distribution between *regions of the
available places in respect of the types of subsidies. It then invites
applications and allocates the places to approved providers.
Table of Divisions
11 Introduction
12 How does the Commonwealth plan its
allocations of places?
13 How do people apply for allocations of
places?
14 How are allocations of places decided?
15 When do allocations of places take effect?
16 How are allocated places transferred from
one person to another?
17 How are the conditions for allocations of
places varied?
18 When do allocations cease to have effect?
11‑2
The Allocation Principles
Allocation of *places is also dealt with in the
Allocation Principles. The provisions of this Part indicate when a particular
matter is or may be dealt with in these Principles.
Note: The Allocation Principles are made by the
Minister under section 96‑1.
11‑3
Meaning of people with special needs
For the purposes of this Act, the
following people are people with special needs:
(a) people from Aboriginal and Torres
Strait Islander communities;
(b) people from non‑English
speaking backgrounds;
(c) people
who live in rural or remote areas;
(d) people who are financially or
socially disadvantaged;
(e) people of a kind (if any)
specified in the Allocation Principles.
11‑4
Explanation of the allocation process
This diagram sets out the steps that the
Commonwealth takes in allocating *places to an approved provider under this Part in respect
of a type of subsidy under Chapter 3.
Division 12—How does the Commonwealth plan its allocations of places?
12‑1
The planning process
(1) The Secretary must, for
each financial year, carry out the planning process under this Division for
each type of subsidy under Chapter 3.
(2) In carrying out the planning
process, the Secretary:
(a) must have regard to the objectives
set out in section 12‑2; and
(b) must comply with the Minister’s determination
under section 12‑3; and
(c) may comply with sections 12‑4
to 12‑7.
12‑2
Objectives of the planning process
The objectives of the planning process
are:
(a) to provide an open and clear
planning process; and
(b) to identify community needs,
particularly in respect of *people with special needs; and
(c) to allocate *places in a way
that best meets the identified needs of the community.
12‑3
Minister to determine the number of places available for allocation
(1) The Minister must, in respect of
each type of subsidy under Chapter 3, determine for the financial year how
many *places
are available for allocation in each State or Territory.
(2) The determination must be published in
the Gazette.
12‑4
Distributing available places among regions
(1) The
Secretary may, in respect of each type of subsidy, distribute for the financial
year the *places
*available
for allocation in a State or Territory among the *regions within the State or Territory.
Note: *Regions are determined under section 12‑6.
(2) In distributing the places, the Secretary
must comply with any requirements specified in the Allocation Principles.
(3) If, in
respect of a type of subsidy:
(a) the Secretary does not, under subsection (1),
distribute for the financial year the *places *available for allocation in the State or Territory; or
(b) the
whole of the State or Territory comprises one *region;
the Secretary is taken to have distributed for that year
the places to the whole of the State or Territory as one region.
12‑5
Determining proportion of care to be provided to certain groups of people
(1) The Secretary may, in respect of
each type of subsidy, determine for the *places *available for allocation the proportion
of care that must be provided to one or more of the following:
(a) *people with special needs;
(b) *concessional residents and *assisted
residents;
(c) recipients of *respite care;
(d) people needing a particular level
of care;
(e) people of kinds specified in the
Allocation Principles.
(2) In determining the proportion, the
Secretary must consider any criteria specified in the Allocation Principles.
(3) The following are examples of the matters
with which the criteria specified in the Allocation Principles may deal:
(a) the likely number of places that would
be included in the *aged
care services that would provide the care in relation to the *places to be
allocated;
(b) whether those aged care services
have been, or are likely to be, granted *extra service status;
(c) the particular kinds of care that
are likely to be provided in relation to the places;
(d) the proportion of people receiving
that care who are likely:
(i) to be *people with
special needs; or
(ii) to be *concessional
residents or *assisted
residents; or
(iii) to be recipients of *respite care; or
(iv) to need a particular
level of care; or
(v) to be included in the
kinds of people specified in the Allocation Principles;
(e) in the case of places in respect
of *residential
care subsidy—whether the residential care services through which the care is
likely to be provided are likely to be *certified.
12‑6
Regions
(1) The Secretary may, in
respect of each type of subsidy, determine for each State and Territory the
regions within the State and Territory.
(2) If the Secretary does not determine
the regions within a State or Territory in respect of a particular type of
subsidy, the whole of the State or Territory comprises the region.
(3) The determination must be
published in the Gazette.
12‑7
Aged Care Planning Advisory Committees
(1) The Secretary may establish
Aged Care Planning Advisory Committees.
(2) The Secretary may request advice from a
Committee about:
(a) the distribution of *places among *regions under
section 12‑4; and
(b) the making of determinations under
section 12‑5.
If the Secretary requests advice, the Committee must
advise the Secretary accordingly.
(3) The
Allocation Principles may specify:
(a) the Committees’ functions; and
(b) the Committees’ membership; and
(c) any other matter relevant to the
Committees’ operations.
Division 13—How do people apply for allocations of places?
13‑1
Applications for allocations of places
A person may apply in writing for an
allocation of *places.
However, the application is valid only if:
(a) it is in response to an invitation
to apply for allocation of places published by the Secretary under section 13‑2;
and
(b) it is made on or before the
closing date specified in the invitation; and
(c) it is in a form approved by the
Secretary; and
(d) it is accompanied by the application
fee (see section 13‑3); and
(e) the
applicant complies with any requests for information under section 13‑4.
Note: These requirements can be waived under section 14‑4.
13‑2
Invitation to apply
(1) If:
(a) *places are *available for allocation for a financial
year; and
(b) those places have been
distributed, or taken to have been distributed, to a *region under section 12‑4;
the Secretary may, during or before that financial year,
invite applications for allocations of those places.
(2) The invitation may relate to more than
one type of subsidy under Chapter 3, and to *places in respect of more than one *region.
(3) The invitation must specify the
following:
(a) all of the *regions in respect of which
allocations will be considered;
(b) the types of subsidy in respect of
which allocations will be considered;
(c) the number of *places *available for
allocation in respect of each type of subsidy;
(d) the closing date after which
applications will not be accepted;
(e) the proportion of care (if any),
in respect of the places available for allocation, that must be provided to
each of the following:
(i) *people with
special needs;
(ii) *concessional
residents and *assisted
residents;
(iii) recipients of *respite care;
(iv) people needing a
particular level of care;
(v) people of kinds
specified in the Allocation Principles.
(4) The invitation must be:
(a) published in such newspapers; or
(b) published or notified by such
other means;
as the Secretary thinks appropriate.
13‑3
Application fee
(1) The Allocation Principles may specify:
(a) the application fee; or
(b) the way the application fee is to
be worked out.
(2) The amount of any application fee:
(a) must be reasonably related to the
expenses incurred or to be incurred by the Commonwealth in relation to the
application; and
(b) must not be such as to amount to
taxation.
13‑4
Requests for further information
(1) If the Secretary needs
further information for a purpose connected with making an allocation under
Division 14, the Secretary may give an applicant a notice requesting the
applicant to give the further information within 28 days after receiving the
notice, or within such shorter period as is specified in the notice.
(2) The application is taken to be withdrawn
if the applicant does not give the further information within 28 days, or
within the shorter period, as the case requires. However, this does not stop
the applicant from reapplying, either:
(a) in response to the invitation in
question (on or before the closing date); or
(b) in
response to a later invitation to apply for allocation of places.
Note: The period for giving the further information
can be extended—see section 96‑7.
(3) The Secretary’s request must contain a
statement setting out the effect of subsection (2).
Division 14—How are allocations of places decided?
14‑1
Allocation of places
(1) The Secretary may allocate *places, in respect
of a particular type of subsidy under Chapter 3, to a person to provide *aged care services
for a *region,
but only if the person is an approved provider.
(2) However, the *places must not be allocated to the
approved provider if:
(a) under Division 7, subsidy
could not be paid to the approved provider for care provided in respect of the
places; or
(b) a sanction imposed under Part 4.4
is in force prohibiting allocation of places to the approved provider.
(3) The allocation:
(a) must be the one that the Secretary
is satisfied would best meet the needs of the aged care community in the *region (see
section 14‑2); and
(b) may be made subject to conditions
(see sections 14‑5 and 14‑6).
(4) In order for an allocation
to be made to an approved provider:
(a) the approved provider must have
made a valid application in respect of the allocation (see Division 13);
and
(b) the allocation must comply with
the terms of an invitation published under Division 13 (see section 14‑3);
except so far as the
Secretary waives these requirements under section 14‑4.
Note: However, paragraph (3)(a) and subsection (4)
will not apply to an allocation of *places in a situation of emergency (see section 14‑9).
14‑2
Competitive assessment of applications for allocations
(1) In deciding which allocation of *places would best
meet the needs of the aged care community in the *region, the Secretary must consider, in
relation to each application:
(a) whether the people who manage, or
propose to manage, the *aged care service that is providing or would provide the
care to which the places relate have the necessary expertise and experience to
do so; and
(b) if applicable, whether the
premises used, or intended to be used, to provide the care to which the places
relate are suitably planned and located for the provision of *aged care; and
(c) the ability of the applicant to
provide the appropriate level of care; and
(d) if the applicant has been a
provider of aged care—its conduct as such a provider, and its compliance with
its responsibilities as such a provider and its obligations arising from the
receipt of any payments from the Commonwealth for providing that aged care; and
(e) the measures to protect the rights
of care recipients; and
(f) the provision of appropriate care
for care recipients who are *people with special needs; and
(g) any matters set out in the
Allocation Principles.
(2) The reference in paragraph (1)(d) to
aged care includes a reference to any care for the aged, whether provided
before or after the commencement of this section, in respect of which any
payment was or is payable under a law of the Commonwealth.
14‑3
Compliance with the invitation
The allocation complies with the terms
of the invitation if:
(a) *places that are specified in the
invitation as being *available
for allocation in respect of a particular type of subsidy under Chapter 3
have been allocated only in respect of that type of subsidy; and
(b) places that are specified in the
invitation as being available for allocation in respect of a particular *region have been
allocated only in that region; and
(c) the total number of places that
have been allocated does not exceed the number of places specified in the
invitation as being available for allocation; and
(d) the Secretary has considered all
valid applications made in respect of the allocation, together with any further
information given under section 13‑4 in relation to those
applications; and
(e) the allocation was made after the
closing date.
14‑4
Waiver of requirements
(1) The Secretary may waive the
requirement under paragraph 14‑1(4)(a) that each approved provider who is
allocated *places
must have made a valid application in respect of the allocation if:
(a) each of the approved providers
made an application in respect of the allocation; and
(b) the Secretary is satisfied that
there are exceptional circumstances justifying the waiver.
(2) The Secretary may waive:
(a) the requirement under paragraph 14‑1(4)(a)
that each approved provider who is allocated *places must have made a valid application
in respect of the allocation; and
(b) the requirement under paragraph 14‑1(4)(b)
that the allocation must comply with the terms of an invitation published under
Division 13;
if the places being
allocated are places that have been *relinquished under section 18‑2 or that were
included in an allocation, or a part of an allocation, revoked under Part 4.4.
Note: If, because of this subsection, an allocation
does not have to comply with the terms of an invitation published under
Division 13, it will not be limited to places that are determined by the
Minister under section 12‑3 to be available for allocation.
(3) The
Secretary may waive:
(a) the requirement under paragraph 14‑1(4)(a)
that each approved provider who is allocated *places must have made a valid application
in respect of the allocation; and
(b) the requirement under paragraph 14‑1(4)(b)
that the allocation must comply with the terms of an invitation published under
Division 13;
if the Secretary is satisfied that there are exceptional
circumstances justifying the waiver, and that only places that are *available for
allocation are allocated.
14‑5
Conditions relating to particular allocations
(1) The Secretary may make an allocation of *places to an
approved provider subject to such conditions as the Secretary specifies in
writing.
(2) The
Secretary may specify which of the conditions (if any) must be met before a
determination can be made under section 15‑1.
Note: An allocation takes effect when a
determination is made under section 15‑1. Until an allocation takes
effect, it is a *provisional
allocation.
(3) It is a condition of every allocation of
a *place
that:
(a) the place is allocated in respect
of a specified location; and
(b) the place is allocated in respect
of a particular *aged
care service; and
(c) any care provided, in respect of
the place, must be provided at that location and through that service.
(4) The following are examples of the matters
with which the conditions may deal:
(a) the proportion of care to be
provided to:
(i) *people with
special needs; or
(ii) *concessional
residents and *assisted
residents; or
(iii) recipients of *respite care; or
(iv) people needing a
particular level of care; or
(v) people
of kinds specified in the Allocation Principles;
through the *aged care service
in which the place is, or will be, included;
(b) the period within which the aged
care service is to be operational;
(c) the period within which the
premises to be used by the approved provider to provide care are required to be
built;
(d) the
professional planning of the aged care service.
Note: Approved providers have a responsibility under
Part 4.3 to comply with the conditions to which the allocation is subject.
Failure to comply with a responsibility can result in a sanction being imposed
under Part 4.4.
14‑6
Conditions relating to allocations generally
(1) An allocation of *places to an approved provider is
also subject to such conditions as are from time to time determined by the
Secretary, in writing, in respect of:
(a) allocations of places generally;
or
(b) allocations of places of a
specified kind that includes the allocation of places in question.
(2) In making a determination under subsection (1),
the Secretary must have regard to any matters specified in the Allocation
Principles.
(3) Conditions
determined under this section apply to allocations that occurred before or
after the determination is made, unless the determination specifies otherwise.
Note: Approved providers have a responsibility under
Part 4.3 to comply with the conditions to which the allocation is subject.
Failure to comply with a responsibility can result in a sanction being imposed
under Part 4.4.
14‑7
Allocation of places to services with extra service status
(1) The Secretary must not approve the
allocation of *places
to a residential care service that has, or a *distinct part of which has, *extra service
status unless subsection (2) or (3) applies to the allocation.
(2) The
Secretary may approve the allocation if satisfied that the *places other than
the allocated places could, after the allocation, form one or more *distinct parts of
the residential care service concerned.
Note: The allocated places would not have *extra service
status because of the operation of section 31‑3.
(3) The Secretary may approve the allocation
if satisfied that:
(a) granting the allocation would be
reasonable, having regard to the criteria set out in section 32‑4;
and
(b) granting the allocation would not
result in the maximum proportion of *extra service places under section 32‑7, for the
State, Territory or region concerned, being exceeded; and
(c) any
other requirements set out in the Allocation Principles are satisfied.
Note: These *places would have *extra service status because of the
operation of section 31‑1. (Section 31‑3 would not
apply.)
14‑8
Notification of allocation
(1) The Secretary must notify each
applicant in writing whether or not any *places have been allocated to the
applicant.
(2) If *places have been allocated to an
applicant, the notice must set out:
(a) the number of places that have
been allocated; and
(b) the types of subsidy under Chapter 3
in respect of which the places have been allocated; and
(c) the *region for which the places have been
allocated; and
(d) if the Secretary determines that
the allocation takes effect immediately—a statement of the consequences of the
allocation taking effect immediately; and
(e) if the allocation is a *provisional
allocation—a statement of the effect of the allocation being a provisional
allocation; and
(f) the conditions to which the
allocation is subject; and
(g) if the allocation is a provisional
allocation—which of those conditions (if any) must be met before the allocation
can take effect.
14‑9
Allocations in situations of emergency
(1) The Secretary may declare that an
allocation of *places
to an approved provider is made in a situation of emergency.
(2) Paragraph
14‑1(3)(a) and subsection 14‑1(4) do not apply to an allocation
that is the subject of such a declaration.
Note: The effect of subsection (2) is that the
process of inviting applications under Division 13 does not apply, valid
applications for the allocation are not required, and there is no competitive
assessment of applications.
(3) The Secretary must not make such a
declaration unless the Secretary is satisfied that:
(a) a situation of emergency exists
that could result in, or has resulted in, *aged care ceasing to be provided to a
group of care recipients; and
(b) an allocation of *places under this
Division would ensure that the provision of that care did not cease, or would
resume; and
(c) there is insufficient time, in
making the allocation, to comply with paragraph 14‑1(3)(a) and subsection
14‑1(4).
(4) A
declaration must specify a period at the end of which the allocation in
question is to cease to have effect.
Note: If, because of this section, an allocation
does not have to comply with the terms of an invitation published under
Division 13, it will not be limited to places that are determined by the
Minister under section 12‑3 to be available for allocation.
Division 15—When do allocations of places take effect?
15‑1
When allocations take effect
(1) An allocation of *places to an
approved provider takes effect when the Secretary determines that the approved
provider is in a position to provide care, in respect of those places, for
which subsidy under Chapter 3 may be paid.
(2) The
Secretary may so determine at the same time that the allocation is made. If the
Secretary does not do so, the allocation is taken to be a provisional
allocation.
Note: Subsidy cannot be paid in respect of places
covered by an allocation that is only a provisional allocation.
(3) If the allocation was made subject to
conditions under section 14‑5 that must be met before a
determination is made, the Secretary must not make the determination unless he
or she is satisfied that all of those conditions have been met.
(4) In deciding whether to make the
determination, the Secretary must have regard to any matters specified in the
Allocation Principles.
15‑2
Provisional allocations
A *provisional allocation remains in force
until the end of the *provisional
allocation period (see section 15‑7) unless, before then:
(a) a determination is made under
section 15‑1 relating to the provisional allocation; or
(b) the provisional allocation is
revoked under section 15‑4; or
(c) the provisional allocation is
surrendered under section 15‑6.
15‑3
Applications for determinations
(1) The approved provider may, at any
time before the end of the *provisional allocation period, apply to the Secretary for a
determination under section 15‑1.
(2) The application must be in the
form approved by the Secretary.
(3) The Secretary must, within 28 days
after receiving the application:
(a) make a determination under section 15‑1;
or
(b) reject
the application;
and, within that period,
notify the approved provider accordingly.
Note: Rejections of applications are reviewable
under Part 6.1.
(4) Rejection of the application does
not prevent the approved provider making a fresh application at a later time
during the *provisional
allocation period.
15‑4
Variation or revocation of provisional allocations
(1) The
Secretary may vary or revoke a *provisional allocation if the Secretary is satisfied that a
condition to which the provisional allocation is subject under section 14‑5
or 14‑6 has not been met.
Note: Variations or revocations of *provisional
allocations are reviewable under Part 6.1.
(2) A variation of the *provisional
allocation must be a variation of a condition to which the allocation is
subject under section 14‑5 or 14‑6.
(3) Before deciding to vary or revoke the *provisional
allocation, the Secretary must notify the approved provider that variation or
revocation is being considered. The notice:
(a) must be in writing; and
(b) must invite the approved provider
to make written submissions to the Secretary, within 28 days after receiving
the notice, as to why the provisional allocation should not be varied or
revoked; and
(c) must inform the approved provider
that, if no submissions are made within that period, the variation or
revocation takes effect on the day after the last day for making submissions.
(4) In deciding whether to vary or revoke the
*provisional
allocation, the Secretary must consider any submissions made within that
period.
(5) The Secretary must notify, in writing,
the approved provider of the decision.
(6) The notice must be given to the approved
provider within 28 days after the end of the period for making submissions. If
the notice is not given within this period, the Secretary is taken to have
decided not to vary or revoke the *provisional allocation.
(7) If the Secretary has decided to vary the *provisional
allocation, the notice must include details of the variation.
(8) A variation or revocation has effect:
(a) if no submissions were made under subsection (3)—on
the day after the last day for making submissions; or
(b) if such a submission was made—on
the day after the approved provider receives a notice under subsection (5).
15‑5
Variation of provisional allocations on application of approved provider
(1) If the allocation is a *provisional
allocation, the approved provider may apply to the Secretary for a variation of
the provisional allocation.
(2) A variation of the *provisional
allocation may be:
(a) a reduction in the number of *places to which
the provisional allocation relates; or
(b) a variation of any of the
conditions to which the provisional allocation is subject under section 14‑5.
(3) The application must:
(a) be in the form approved by the
Secretary; and
(b) be made before the end of the *provisional
allocation period.
(4) The Secretary must, within 28 days after
receiving the application:
(a) make the variation; or
(b) reject the application;
and, within that period,
notify the approved provider accordingly.
Note: Rejections of applications are reviewable
under Part 6.1.
(5) If the Secretary has decided to vary the *provisional
allocation, the notice must include details of the variation.
(6) Rejection of the application does not
prevent the approved provider making a fresh application at a later time during
the *provisional
allocation period.
15‑6
Surrendering provisional allocations
If the allocation is a *provisional
allocation, the approved provider may, at any time before the end of the *provisional
allocation period, surrender the allocation by notice in writing to the
Secretary.
15‑7
Provisional allocation periods
(1) The provisional allocation
period is the period of 2 years after the day on which the allocation
is made.
(2) However, the *provisional allocation period:
(a) may be extended; and
(b) if an application under section 15‑3
is pending at the end of the 2 years, or the 2 years as so extended—continues
until the Secretary makes a determination under section 15‑1 or
rejects the application.
(3) The Secretary must extend the *provisional
allocation period if:
(a) the approved provider applies to
the Secretary, in accordance with subsection (4), for an extension; and
(b) the approved provider has not
already been granted an extension; and
(c) the Secretary is satisfied that
the extension is justified in the circumstances; and
(d) the Secretary is satisfied that
granting the extension meets any requirements specified in the Allocation
Principles.
(4) The application:
(a) must be in the form approved by
the Secretary; and
(b) must be made at least 60 days, or
such lesser number of days as the Secretary allows, before what would be the
end of the *provisional
allocation period if it were not extended.
(5) The Secretary must, within 28 days after
receiving an application for an extension:
(a) grant an extension; or
(b) reject the application;
and, within that period,
notify the approved provider accordingly.
Note: Extending provisional allocation periods and
rejections of applications for extensions are reviewable under Part 6.1.
(6) The period of the extension
is 12 months unless the Secretary is satisfied that the applicant meets the
criteria in the Allocation Principles for increasing or decreasing the period
of the extension. The Secretary must specify the period of the extension in the
notice of the granting of the extension.
(7) The
following are examples of the matters with which the Allocation Principles may
deal:
(a) the extent to which the approved
provider has made reasonable progress towards being in a position to provide
the care for which subsidy may be paid under Chapter 3;
(b) circumstances in which delays in
being in a position to provide that care are justified;
(c) circumstances in which the period
of the extension can be increased or decreased.
Division 16—How are allocated places transferred from one person to
another?
16‑1
Transfer of places
(1) A transfer of an allocated *place from one
person to another is of no effect unless it is approved by the Secretary.
(2) The Secretary must approve the transfer
of a *place
if, and only if:
(a) an allocation of that place has
taken effect under Division 15; and
(b) an application for transfer is
made under section 16‑2; and
(c) the Secretary is satisfied under section 16‑4
that the transfer is justified in the circumstances; and
(d) the transferee is an approved
provider when the transfer is completed; and
(e) the transfer would not have the
effect of the care to which the place relates being provided in a different
State or Territory.
(3) If the transfer is approved:
(a) the transferee is taken, from the
transfer day (see section 16‑7), to be the person to whom the *place is allocated
under this Division; and
(b) if, as part of the transfer,
approval is sought for one or more variations of the conditions to which the
allocation is subject under section 14‑5—the Secretary is taken to
have made such variation of the conditions as is specified in the instrument of
approval.
16‑2
Applications for transfer of places
(1) An approved provider to whom a *place has been
allocated under Division 14 may apply in writing to the Secretary for
approval to transfer the place to another person.
(2) The
application must:
(a) be in a form approved by the
Secretary; and
(b) include the information referred
to in subsection (3); and
(c) be signed by the transferor and
the transferee; and
(d) set out any variation of the
conditions to which the allocation is subject under section 14‑5,
for which approval is being sought as part of the transfer; and
(e) if, after the transfer, the *place would relate
to a different *aged
care service—set out the proposals for ensuring that care needs are
appropriately met for care recipients who are being provided with care in
respect of those places.
(3) The information to be included in the
application is as follows:
(a) the transferor’s name;
(b) the number of *places to be
transferred;
(c) the *aged care service to which the places
currently relate, and its location;
(d) the proposed transfer day;
(e) the name of the transferee;
(f) if, after the transfer, the
places would relate to a different aged care service—that aged care service,
and its location;
(g) whether any of the places are:
(i) places included in a
residential care service, or a *distinct part of a residential care service, that has *extra service
status; or
(ii) *adjusted subsidy
places; or
(iii) places in respect of
which one or more *residential
care grants have been paid; or
(iv) places in respect of
which one or more grants under the Aged or Disabled Persons Care Act 1954 have
been paid;
(h) if the places are included in a
residential care service and, after the transfer, the places would relate to a
different residential care service—whether that service, or a *distinct part of
that service, has *extra
service status;
(i) such other information as is
specified in the Allocation Principles.
(4) The
application must be made:
(a) if the transferee is an approved
provider—no later than 60 days, or such other period as the Secretary
determines under subsection (5), before the proposed transfer day; or
(b) if the transferee is not an
approved provider—no later than 90 days, or such other period as the Secretary
determines under subsection (5), before the proposed transfer day.
(5) The Secretary may, at the request of the
transferor and the transferee, determine another period under paragraph (4)(a)
or (b) if the Secretary is satisfied that it is justified in the circumstances.
(6) In deciding whether to make a
determination, and in determining another period, the Secretary must consider
any matters set out in the Allocation Principles.
(7) The Secretary must give written notice of
his or her decision under subsection (5) to the transferor and the
transferee.
(8) If the information included in an application
changes, the application is taken not to have been made under this section
unless the transferor and the transferee give the Secretary written notice of
the changes.
16‑3
Requests for further information
(1) If the Secretary needs further information
to determine the application, the Secretary may give to the transferor and the
transferee a notice requesting that:
(a) either the transferor or the
transferee give the further information; or
(b) the transferor and the transferee
jointly give the further information;
within 28 days after receiving the notice.
(2) The
application is taken to be withdrawn if the further information is not given
within the 28 days.
Note: The period for giving the further information
can be extended—see section 96‑7.
(3) The notice must contain a statement
setting out the effect of subsection (2).
16‑4
Consideration of applications
In deciding whether the transfer is
justified in the circumstances, the Secretary must consider the following:
(a) whether the transfer would meet
the objectives of the planning process set out in section 12‑2;
(b) if the places were allocated to
meet the needs of *people
with special needs—whether those needs would continue to be met after the
transfer;
(c) if the places were allocated to
provide a particular type of *aged care—whether that type of aged care would continue to
be provided after the transfer;
(d) the suitability of the transferee
to provide the aged care to which the places to be transferred relate;
(e) if, after the transfer, the *places would
relate to a different *aged care service:
(i) the financial
viability, if the transfer were to occur, of the aged care service in which the
places are currently included; and
(ii) the financial
viability, if the transfer were to occur, of the aged care service in which the
places would be included; and
(iii) the suitability of the
premises being used, or proposed to be used, to provide care through that aged
care service; and
(iv) the standard of care,
accommodation and other services provided, or proposed to be provided, by that
aged care service; and
(v) whether the proposals
set out in the application, for ensuring that care needs are appropriately met
for care recipients who are being provided with care in respect of those
places, are satisfactory;
(f) any other matters set out in the
Allocation Principles.
16‑5
Time limit for decisions on applications
(1) Subject to this section, the Secretary
must, at least 14 days before the proposed transfer day:
(a) approve the transfer; or
(b) reject the application;
and notify the transferor
and transferee accordingly.
Note: Rejections of applications are reviewable
under Part 6.1.
(2) The Secretary may make a decision under subsection (1)
on a later day if the transferor and the transferee agree. However, the later
day must not occur on or after the proposed transfer day.
(3) If:
(a) the Secretary is given written
notice (the alteration notice) under subsection 16‑2(8) of
changes to the information contained in the application; and
(b) the
alteration notice is given on or after the day occurring 30 days before the day
by which the Secretary must act under subsection (1) of this section;
the Secretary is not obliged to act under subsection (1)
until the end of the 30 day period following the day on which the alteration
notice was given by the Secretary.
16‑6
Notice of decision on transfer
If the transfer is approved, the notice
must include statements setting out the following matters:
(a) the number of *places to be transferred;
(b) the proposed transfer day;
(c) the *aged care service to which the places
currently relate, and its location;
(d) if, after the transfer, the places
will relate to a different aged care service:
(i) that aged care
service, and its location; and
(ii) the
proposals for ensuring that care needs are appropriately met for care
recipients who are being provided with care in respect of those places,
including the timetable for the proposals;
(e) the proportion of care, in respect
of the places to be transferred, to be provided to:
(i) *people with
special needs; or
(ii) *concessional
residents and *assisted
residents; or
(iii) recipients of *respite care; or
(iv) people needing a
particular level of care; or
(v) people of the kinds
specified in the Allocation Principles;
(f) such other information as is
specified in the Allocation Principles.
16‑7
Transfer day
(1) The transfer day is the proposed transfer
day specified in the application if the transfer is completed on or before that
day.
(2) If the
transfer is not completed on or before the proposed transfer day, the
transferor and the transferee may apply, in writing, to the Secretary to
approve a day as the transfer day.
Note: Because the proposed transfer day must be
specified in the application for transfer, the Secretary must be notified if
the transfer is not completed on or before the proposed transfer day (see
subsection 16‑2(8)).
(3) The Secretary must, within 28 days after
receiving the application under subsection (2):
(a) approve a day as the transfer day;
or
(b) reject the application;
and, within that period,
notify the transferor and the transferee accordingly.
Note: Approvals of days and rejections of
applications are reviewable under Part 6.1.
(4) However, the day approved by the
Secretary as the transfer day must not be earlier than the day on which the
transfer is actually completed.
16‑8
Transfer of places to service with extra service status
(1) The Secretary must not approve the
transfer of a *place
from one person to another if:
(a) the transfer would result in
residential care in respect of the place being provided through a residential
care service in a different location; and
(b) that residential care service has,
or a *distinct
part of that service has, *extra service status;
unless subsection (2) or (3) applies to the transfer.
(2) The
Secretary may approve the transfer if satisfied that the *places other than
transferred places could, after the allocation, form one or more *distinct parts of
the residential care service concerned.
Note: The transferred places would not have *extra service
status because of the operation of section 31‑3.
(3) The Secretary may approve the transfer if
satisfied that:
(a) granting the transfer would be
reasonable, having regard to the criteria set out in section 32‑4;
and
(b) granting the transfer would not
result in the maximum proportion of *extra service places under section 32‑7, for the
State, Territory or region concerned, being exceeded; and
(c) any
other requirements set out in the Allocation Principles are satisfied.
Note: These *places would have *extra service status because of the
operation of section 31‑1. (Section 31‑3 would not
apply.)
16‑9
Information to be given to transferee
(1) The Secretary may give to the transferee
information specified in the Allocation Principles at such times as are
specified in those Principles.
(2) The following are examples of matters
that may be specified in the Allocation Principles:
(a) the types of subsidies paid under
Chapter 3 to the transferor in respect of the *aged care service in which *places being
transferred are included;
(b) the likely future adjustments to
those payments;
(c) where applicable, the current *classification
levels of care recipients receiving care from the service and their
classification histories;
(d) the financial status of those care
recipients;
(e) if the aged care service in which
the places being transferred are included is a residential care service:
(i) matters relating to
the *certification
of the aged care service; and
(ii) matters relating to
whether the aged care service meets its *accreditation requirement;
(f) matters relating to the *residential care
grants (if any) that have been made in respect of that aged care service;
(g) matters relating to any grants
under the Aged or Disabled Persons Care Act 1954, or Part VAB of
the National Health Act 1953, that have been made in respect of that
aged care service;
(h) compliance by the transferor with
the transferor’s responsibilities under Chapter 4 in relation to that aged
care service, including any action that has been taken or is proposed to be
taken, under Part 4.4, in relation to the transferor.
(3) The Allocation Principles must not
specify information that would, or would be likely to, disclose the identity of
any care recipient.
16‑10
Transferors to provide transferee with certain records
(1) If the transfer is completed, the
transferor must give to the transferee such records, or copies of such records,
as are necessary to ensure that the transferee can provide care in respect of
the *places
being transferred.
(2) These records must include the following:
(a) the assessment and classification
records of care recipients receiving care from the *aged care service to which the *places being
transferred relate;
(b) the individual care plans of those
care recipients;
(c) the medical records, progress
notes and other clinical records of those care recipients;
(d) the schedules of fees and charges
(including, where applicable, retention amounts relating to *accommodation
bonds) for those care recipients;
(e) any agreements between those care
recipients and the transferor;
(f) the accounts of those care
recipients;
(g) where applicable, the prudential
requirements for accommodation bonds for that aged care service;
(h) the
records specified in the Allocation Principles.
Note: Approved providers have a responsibility under
Part 4.3 to comply with this obligation. Failure to comply with a
responsibility can result in a sanction being imposed under Part 4.4.
16‑11
Effect of transfer on certain matters
On the transfer day:
(a) any entitlement of the transferor
to an amount of subsidy under Chapter 3, in respect of the *place being
transferred, that is payable but has not been paid passes to the transferee;
and
(b) any responsibilities under Part 4.2
that the transferor had, immediately before that transfer day, in relation to
an *accommodation
bond balance connected with the place become responsibilities of the transferee
under Part 4.2; and
(c) the transferee is subject to any
obligations to which the transferor was subject, immediately before that day,
under a *resident
agreement or *community
care agreement entered into with a care recipient provided with care in respect
of the place.
Division 17—How are the conditions for allocations of places varied?
17‑1
Variation of allocations
(1) The Secretary must approve a variation of
the conditions to which the allocation of a *place is subject under section 14‑5
if and only if:
(a) the allocation has taken effect
under Division 15; and
(b) an application for variation is
made under section 17‑2; and
(c) the Secretary is satisfied under
section 17‑4 that the variation is justified in the circumstances;
and
(d) the
variation would not have the effect of the care to which the place relates
being provided in a different State or Territory.
Note: An allocation of a place can also be varied
under Division 16 as part of a transfer of the allocation from one person
to another.
(2) If the variation is approved, it takes
effect on the variation day (see section 17‑7).
17‑2
Applications for variation of allocations
(1) An approved provider to whom a *place has been
allocated under Division 14 may apply in writing to the Secretary to vary
the conditions to which the allocation is subject under section 14‑5.
(2) The application must:
(a) be in a form approved by the
Secretary; and
(b) include such information as is
specified in the Allocation Principles.
(3) The following are examples of the matters
that may be specified in the Allocation Principles for the purposes of paragraph (2)(b):
(a) the applicant’s name;
(b) the *aged care service to which the allocation
being varied relates, and its location;
(c) the number of *places to which
the variation relates;
(d) whether any of the places to which
the variation relates are:
(i) *adjusted subsidy
places; or
(ii) places included in a
residential care service, or a *distinct part of a residential care service, that has *extra service
status;
(e) if, after the variation, care
provided in respect of the places would be provided at a different location:
(i) the address of that
location; and
(ii) the proposals for
ensuring that care needs are appropriately met for care recipients who are
being provided with care in respect of those places;
(f) the conditions of the allocation
to be varied.
(4) The application must be made no later
than 60 days, or such other period as the Secretary determines under subsection (5),
before the proposed variation day.
(5) The
Secretary may determine, at the applicant’s request, another period under subsection (4)
if the Secretary is satisfied that it is justified in the circumstances.
Note: Determinations of periods and refusals to
determine periods are reviewable under Part 6.1.
(6) In deciding whether to make a
determination, and in determining another period, the Secretary must consider
any matters set out in the Allocation Principles.
(7) The Secretary must give written notice of
the decision under subsection (5) to the applicant.
(8) If the information that an applicant has
included in an application changes, the application is taken not to have been
made under this section unless the applicant gives the Secretary written notice
of the changes.
17‑3
Requests for further information
(1) If the Secretary needs further
information to determine the application, the Secretary may give to the
applicant a notice requesting the applicant to give the further information
within 28 days after receiving the notice.
(2) The
application is taken to be withdrawn if the applicant does not give the further
information within 28 days.
Note: The period for giving the further information
can be extended—see section 96‑7.
(3) The notice must contain a statement setting
out the effect of subsection (2).
17‑4
Consideration of applications
In deciding whether the variation is
justified in the circumstances, the Secretary must consider:
(a) whether the variation will meet
the objectives of the planning process set out in section 12‑2; and
(b) the financial viability of the *aged care service
to which the allocation being varied relates; and
(c) if the *places have been allocated to meet
the needs of a particular group—whether those needs would continue to be met
after the variation; and
(d) if the places have been allocated
to provide a particular type of *aged care—whether that type of aged care would continue to
be provided after the variation; and
(e) if, after the variation, the
places would be included in a different aged care service—the financial
viability of the aged care service; and
(f) if, after the variation, care
provided in respect of the places would be provided at a different location:
(i) the suitability of the
premises used, or proposed to be used, to provide care through that aged care
service; and
(ii) the proposals for
ensuring that care needs are appropriately met for care recipients who are
being provided with care in respect of those places; and
(g) any other matters set out in the
Allocation Principles.
17‑5
Time limit for decisions on applications
The Secretary must, at least 14 days
before the proposed variation day:
(a) approve the variation; or
(b) reject the application;
and, within that period,
notify the applicant accordingly.
Note: Rejections of applications are reviewable
under Part 6.1.
17‑6
Notice of decisions
If the variation is approved, the notice
must include statements setting out the following matters:
(a) the number of *places to which
the variation relates;
(b) details of the variation of the
conditions to which the allocation in question is subject;
(c) if, after the variation, care
provided in respect of the places would be provided at a different location:
(i) the address of that
location; and
(ii) the proposals for
ensuring that care needs are appropriately met for care recipients who are
being provided with care in respect of those places;
(d) any other matters specified in the
Allocation Principles.
17‑7
Variation day
(1) The variation day is the proposed
variation day specified in the application if the variation is made on or
before that day.
(2) If the variation is not made on or before
the proposed variation day, the applicant may apply, in writing, to the
Secretary to approve a day as the variation day.
(3) The Secretary must, within 28 days after
receiving the application:
(a) approve a day as the variation
day; or
(b) reject the application;
and, within that period,
notify the applicant accordingly.
Note: Approvals of days and rejections of
applications are reviewable under Part 6.1.
(4) However, the day approved by the
Secretary as the variation day must not be earlier than the day on which the
variation is made.
17‑8
Variation involving relocation of places to service with extra service status
(1) The Secretary must not approve the
variation of the conditions to which an allocation of places is subject, if:
(a) the variation would result in
residential care in respect of the *places being provided through a residential care service in
a different location; and
(b) that residential care service has,
or a *distinct
part of that service has, *extra service status;
unless subsection (2) or (3) applies to the
variation.
(2) The
Secretary may approve the variation if the Secretary is satisfied that the *places other than
the places to which the variation relates could, after the variation, form one
or more *distinct
parts of the residential care service concerned.
Note: The places to which the variation relates
would not have *extra
service status because of the operation of section 31‑3.
(3) The Secretary may approve the variation
if the Secretary is satisfied that:
(a) granting the variation would be
reasonable, having regard to the criteria set out in section 32‑4;
and
(b) granting the variation would not
result in the maximum proportion of *extra service places under section 32‑7, for the
State, Territory or region concerned, being exceeded; and
(c) any
other requirements set out in the Allocation Principles are satisfied.
Note: These places would have *extra service
status because of the operation of section 31‑1. (Section 31‑3
would not apply.)
Division 18—When do allocations cease to have effect?
18‑1
Cessation of allocations
(1) The allocation of a *place that has
taken effect under Division 15 ceases to have effect if either of the
following happens:
(a) the place is relinquished (see
section 18‑2);
(b) the allocation is revoked under
section 18‑5 or Part 4.4.
(2) Without limiting subsection (1), if
the allocation of a *place
is the subject of a declaration under section 14‑9, the allocation
ceases to have effect at the end of the period specified, under subsection 14‑9(4),
in the declaration.
(3) If the allocation of a place that has
taken effect under Division 15 is suspended under Part 4.4, the
allocation ceases to have effect until the suspension ceases to apply (see
Division 68).
18‑2
Relinquishing places
(1) If an allocation of *places has taken
effect under Division 15, the approved provider to whom the places are
allocated may *relinquish
all or some of the places by notice in writing to the Secretary.
(2) The notice must include the following
information:
(a) the approved provider’s name;
(b) the *aged care service in which the *places to be *relinquished are
included, and its location;
(c) the date of the proposed
relinquishment of the places;
(d) the number of places to be
relinquished;
(e) the approved provider’s proposals
for ensuring that care needs are appropriately met for those care recipients
(if any) who are being provided with care in respect of the places to be
relinquished.
(3) The proposals referred to in paragraph (2)(e)
must deal with the matters specified in the Allocation Principles.
(4) An
approved provider must not *relinquish a *place that has taken effect under Division 15 without
giving a notice of the relinquishment under this section at least 60 days
before the proposed date of relinquishment.
Note: Approved providers have a responsibility under
Part 4.3 to comply with this obligation. Failure to comply with a
responsibility can result in a sanction being imposed under Part 4.4.
(5) If an
approved provider that is a *corporation fails to comply with subsection (4), the
approved provider is guilty of an offence punishable, on conviction, by a fine
not exceeding 30 penalty units.
Note: Chapter 2 of the Criminal Code
sets out the general principles of criminal responsibility.
18‑3
Proposals relating to the care needs of care recipients
(1) The Secretary must decide whether any
proposals for ensuring that care needs are appropriately met for care
recipients who are being provided with care in respect of the *places being *relinquished, set
out in the notice under subsection 18‑2(1), are satisfactory.
(2) In deciding if the proposals are satisfactory,
the Secretary must take into account any matters specified in the Allocation
Principles.
(3) The Secretary must give notice to the
approved provider, in writing, of the Secretary’s decision within 14 days after
receiving the notice under subsection 18‑2(1).
(4) If the Secretary decides that the
proposals are not satisfactory, the Secretary may, in the notice given under subsection (3),
request the approved provider to modify the proposals as specified in the
notice within the period specified in the notice.
(5) If the approved provider does not, within
the period specified in the notice, modify the proposals in accordance with the
request, the Secretary may give notice, in writing, to the approved provider:
(a) rejecting the proposals set out in
the notice under subsection 18‑2(1); and
(b) setting out new proposals
acceptable to the Secretary for ensuring that care needs are appropriately met
for care recipients who are being provided with care in respect of the *places being *relinquished.
18‑4
Approved providers’ obligations relating to the care needs of care recipients
(1) An approved provider must not *relinquish *places in respect
of which care recipients are being provided with care without complying with
any proposal, for ensuring that care needs are appropriately met for those care
recipients, that was:
(a) accepted by the Secretary under
section 18‑3; or
(b) modified by the approved provider
as requested by the Secretary under subsection 18‑3(4); or
(c) set
out by the Secretary in a notice under subsection 18‑3(5).
Note: Approved providers have a responsibility under
Part 4.3 to comply with this obligation. Failure to comply with a
responsibility can result in a sanction being imposed under Part 4.4.
(2) If an
approved provider that is a *corporation fails to comply with this section, the approved
provider is guilty of an offence punishable, on conviction, by a fine not
exceeding 1,000 penalty units.
Note: Chapter 2 of the Criminal Code sets
out the general principles of criminal responsibility.
18‑5
Revocation of unused allocations of places
(1) The Secretary may revoke the allocation
of a *place
if the approved provider to whom the place is allocated has not, for a
continuous period of 12 months, or such other period as is set out in the
Allocation Principles:
(a) if the allocation is in respect of
residential care subsidy—provided residential care in respect of the place; or
(b) if the allocation is in respect of
community care subsidy—provided community care in respect of the place; or
(c) if
the allocation is in respect of flexible care subsidy—provided flexible care in
respect of the place.
Note: Revocations of allocations are reviewable
under Part 6.1.
(2) Before deciding to revoke the allocation,
the Secretary must notify the approved provider that revocation is being
considered. The notice must be in writing and must:
(a) include the Secretary’s reasons
for considering the revocation; and
(b) invite the approved provider to
make written submissions to the Secretary within 28 days after receiving the
notice; and
(c) inform the approved provider that
if no submission is made within that period, any revocation will take effect on
the day after the last day for making submissions.
(3) In deciding whether to revoke the allocation,
the Secretary must consider:
(a) any submissions given to the
Secretary within that period; and
(b) any matters specified in the
Allocation Principles.
(4) The Secretary must notify, in writing,
the approved provider of the decision.
(5) The notice must be given to the approved
provider within 28 days after the end of the period for making submissions. If
the notice is not given within this period, the Secretary is taken to have
decided not to revoke the allocation.
(6) A revocation has effect:
(a) if no submission was made under subsection (2)—on
the day after the last day for making submissions; or
(b) if such a submission was made—7
days after the day on which the notice was given under subsection (4).
Part 2.3—Approval of care recipients
Division 19—Introduction
19‑1
What this Part is about
A person must be approved under this
Part to receive either residential care or community care before an approved
provider can be paid *residential
care subsidy or *community
care subsidy for providing that care. In some cases, approval under this Part
to receive flexible care is required before *flexible care subsidy can be paid.
Table of Divisions
19 Introduction
20 What is the significance of approval as a
care recipient?
21 Who is eligible for approval as a care
recipient?
22 How does a person become approved as a care
recipient?
23 When does an approval cease to have effect?
19‑2
The Approval of Care Recipients Principles
Approval of care recipients is also
dealt with in the Approval of Care Recipients Principles. The provisions of
this Part indicate when a particular matter is or may be dealt with in these
Principles.
Note: The Approval of Care Recipients Principles are
made by the Minister under section 96‑1.
Division 20—What is the significance of approval as a care recipient?
20‑1
Care recipients must be approved before subsidy can be paid
(1) Subsidy cannot be paid under
Chapter 3 to an approved provider for providing residential care to a
person unless the person is approved under this Part as a recipient of
residential care.
(2) Subsidy cannot be paid under Chapter 3
to an approved provider for providing community care to a person unless the
person is approved under this Part as a recipient of community care.
(3) Subsidy cannot be paid under Chapter 3
to an approved provider for providing flexible care unless:
(a) the person is approved under this
Part as a recipient of that kind of flexible care; or
(b) the person is included in a class
of people who, under the Flexible Care Subsidy Principles made for the purposes
of subparagraph 50‑1(1)(b)(ii), do not need approval in respect of
flexible care.
(4) For the purposes of this Act, if a
particular kind of flexible care also constitutes residential care or community
care, a person who is approved under this Part as a recipient of residential
care or community care (as the case requires) is also taken to be approved
under this Part as a recipient of that kind of flexible care.
20‑2
Effect of limitation of approvals
If a person’s approval as a recipient of
a type of *aged
care is limited under section 22‑2, payments cannot be made under
Chapter 3 to an approved provider for providing care to the person unless
the care was provided in accordance with the limitation.
Division 21—Who is eligible for approval as a care recipient?
21‑1
Eligibility for approval
A person is eligible to be approved
under this Part if the person is eligible to receive:
(a) residential care (see section 21‑2);
or
(b) community care (see section 21‑3);
or
(c) flexible care (see section 21‑4).
21‑2
Eligibility to receive residential care
A person is eligible to receive residential
care if:
(a) the person has physical, medical,
social or psychological needs that require the provision of care; and
(b) those needs cannot be met more
appropriately through non‑residential care services; and
(c) the person meets the criteria (if
any) specified in the Approval of Care Recipient Principles as the criteria
that a person must meet in order to be eligible to be approved as a recipient
of residential care.
21‑3
Eligibility to receive community care
A person is eligible to receive community
care if:
(a) the person has physical, social or
psychological needs that require the provision of care; and
(b) those needs can be met
appropriately through non‑residential care services; and
(c) the person meets the criteria (if
any) specified in the Approval of Care Recipients Principles as the criteria
that a person must meet in order to be eligible to be approved as a recipient
of community care.
21‑4
Eligibility to receive flexible care
A person is eligible to receive flexible
care if:
(a) the person has physical, social or
psychological needs that require the provision of care; and
(b) those needs can be met appropriately
through flexible care services; and
(c) the person meets the criteria (if
any) specified in the Approval of Care Recipients Principles as the criteria
that a person must meet in order to be eligible to be approved as a recipient
of flexible care.
Division 22—How does a person become approved as a care recipient?
22‑1
Approval as a care recipient
(1) A person can be approved as a
recipient of one or more of the following:
(a) residential care;
(b) community care;
(c) flexible care.
(2) The Secretary must approve a
person as a recipient of one or more of those types of *aged care if:
(a) an application is made under
section 22‑3; and
(b) the
Secretary is satisfied that the person is eligible to receive that type of aged
care (see Division 21).
Note: Rejections of applications are reviewable
under Part 6.1.
22‑2
Limitation of approvals
(1) The Secretary may limit an
approval to one or more of the following:
(a) care provided by an *aged care service
of a particular kind;
(b) care provided during a specified
period starting on the day after the approval was given;
(c) the provision of *respite care for
the period specified in the limitation;
(d) any other matter or circumstance
specified in the Approval of Care Recipients Principles.
The Secretary is taken to
have limited an approval to the provision of care other than *respite care,
unless the approval expressly covers the provision of respite care.
Note: Limitations of approvals are reviewable under
Part 6.1.
(2) A period specified under paragraph (1)(b)
must not exceed the period (if any) specified in the Approval of Care
Recipients Principles.
(3) If an
approval is for residential care, the Secretary may limit the approval to one
or more levels of care corresponding to the *classification levels (see section 25‑2).
Note: Limitations of approvals to one or more levels
of care are reviewable under Part 6.1.
(4) The
Secretary may, at any time, vary any limitation under this section of an
approval, including any limitation varied under this subsection.
Note: Variations of limitations are reviewable under
Part 6.1.
(5) Any limitation of an approval under this
section, including any limitation as varied under subsection (4), must be
consistent with the care needs of the person to whom the approval relates.
22‑3
Applications for approval
(1) A person may apply in
writing to the Secretary for the person to be approved as a recipient of one or
more types of *aged
care.
(2) However, the fact that the application is
for approval of a person as a recipient of one or more types of *aged care does not
stop the Secretary from approving the person as a recipient of one or more
other types of aged care.
(3) The application must be in a form
approved by the Secretary. It may be made on the person’s behalf by another
person.
22‑4
Assessments of care needs
(1) Before deciding
whether to approve a person under this Part, the Secretary must ensure the care
needs of the person have been assessed.
(2) The
Secretary may limit the assessment to assessing the person in relation to:
(a) the person’s eligibility to
receive one or more specified types of *aged care; or
(b) in the case of residential
care—the person’s eligibility to receive specified levels of residential care.
(3) However, the Secretary may make the
decision without the person’s care needs being assessed if the Secretary is
satisfied that there are exceptional circumstances that justify making the
decision without an assessment.
(4) A person to whom the Secretary’s function
of deciding whether to approve the person is delegated may be the same person
who assessed the person.
22‑5
Date of effect of approval
(1) An approval takes effect on
the day on which the Secretary approves the person as a care recipient.
(2) However, an approval of a
person who is provided with care before being approved as a recipient of that
type of *aged
care is taken to have had effect from the day on which the care started if:
(a) the application for approval is
made within 5 *business
days (or that period as extended under subsection (3)) after the day on
which the care started; and
(b) the
Secretary is satisfied, in accordance with the Approval of Care Recipients
Principles, that the person urgently needed the care when it started, and that
it was not practicable to apply for approval beforehand.
Note: Decisions about when a person urgently needed
care are reviewable under Part 6.1.
(3) A person may apply in
writing to the Secretary for an extension of the period referred to in subsection (2).
The Secretary must, by written notice given to the person:
(a) grant
an extension of a duration determined by the Secretary; or
(b) reject
the application.
Note: Determinations of periods and rejections of
applications are reviewable under Part 6.1.
22‑6
Notification of decisions
(1) The Secretary must notify,
in writing, the person who applied for approval whether that person, or the
person on whose behalf the application was made, is approved as a recipient of
one or more specified types of *aged care.
(2) If the person is approved,
the notice must include statements setting out the following matters:
(a) the day from which the approval
takes effect (see section 22‑5);
(b) any limitations on the approval
under subsection 22‑2(1);
(c) if the approval is for residential
care—whether the approval is limited to a specified level of care (see
subsection 22‑2(3));
(d) when the approval will expire (see
section 23‑2);
(e) when the approval will lapse (see
section 23‑3);
(f) the circumstances in which the
approval may be revoked (see section 23‑4).
(3) The Secretary must notify, in writing, a
person who is already approved as a recipient of one or more types of *aged care if the
Secretary:
(a) limits the person’s approval under
subsection 22‑2(1) or (3); or
(b) varies a limitation on the
person’s approval under subsection 22‑2(4).
Division 23—When does an approval cease to have effect?
23‑1
Expiration, lapse or revocation of approvals
An approval as a recipient of
residential care, community care or flexible care ceases to have effect if any
of the following happens:
(a) the approval expires under section 23‑2;
(b) the approval lapses under section 23‑3;
(c) the approval is revoked under
section 23‑4.
23‑2
Expiration of time limited approvals
If a person’s approval is limited to a
specified period under paragraph 22‑2(1)(b), the approval expires when
that period ends.
23‑3
Approval lapses if care not received within a certain time
(1) A person’s approval lapses if the person
is not provided with the care in respect of which he or she is approved within:
(a) the entry period specified in the
Approval of Care Recipients Principles; or
(b) if no such period is specified—the
period of 12 months starting on the day after the approval was given.
(2) For the purposes of paragraph (1)(a),
the Approval of Care Recipients Principles may specify different entry periods
for all or any of the following:
(a) residential care (other than
residential care provided as *respite care);
(b) residential care provided as
respite care;
(c) community care;
(d) flexible care.
(3) A person’s
approval lapses if the person ceases, in the circumstances specified in the
Approval of Care Recipients Principles, to be provided with the care in respect
of which he or she is approved.
(4) For the purposes of subsection (3),
a person is not taken to cease to be provided with residential care merely
because he or she is on *leave under section 42‑2.
23‑4
Revocation of approvals
(1) The
Secretary may revoke a person’s approval if, after ensuring that the person’s
care needs have been assessed, the Secretary is satisfied that the person has
ceased to be eligible to receive a type of *aged care in respect of which he or she
is approved.
Note 1: Revocations of
approval are reviewable under Part 6.1.
Note 2: For eligibility to receive types of *aged care, see
Division 21.
(2) In deciding whether to revoke the
person’s approval, the Secretary must consider the availability of such
alternative care arrangements as the person may need if the care currently
being provided to the person ceases.
(3) Before deciding to revoke
the approval, the Secretary must notify the person, and the approved provider
(if any) providing care to the person, that revocation is being considered. The
notice must be in writing and must:
(a) include the Secretary’s reasons
for considering the revocation; and
(b) invite the person and the approved
provider (if any) to make submissions, in writing, to the Secretary within 28
days after receiving the notice; and
(c) inform them that if no submissions
are made within that period, any revocation will take effect on the day after
the last day for making submissions.
(4) In deciding whether to
revoke the approval, the Secretary must consider any submissions given to the
Secretary within that period.
(5) The Secretary must notify, in
writing, the person and the approved provider (if any) of the decision.
(6) The notice must be given to the person
and the approved provider (if any) within 28 days after the end of the period
for making submissions. If the notice is not given within this period, the
Secretary is taken to have decided not to revoke the approval.
(7) A revocation has effect:
(a) if no submission was made under subsection (3)—on
the day after the last day for making submissions; or
(b) if such a submission was made, and
the person and the approved provider (if any) received notice under subsection (5)
on the same day—the day after that day; or
(c) if such a submission was made, and
they received the notice on different days—the day after the later of those
days.
Part 2.4—Classification of care recipients
Division 24—Introduction
24‑1
What this Part is about
Care recipients approved under Part 2.3
for residential care, or for some kinds of flexible care, are classified according
to the level of care they need. The classifications may affect the amounts of *residential care
subsidy or *flexible
care subsidy payable to approved providers for providing care.
Note: Care recipients who are approved under Part 2.3
for community care only are not classified under this Part.
Table of Divisions
24 Introduction
25 How are care recipients classified?
26 When do classifications take effect?
27 When do classifications cease to have
effect?
28 How are classifications renewed?
29 How are classifications changed?
24‑2
The Classification Principles
The classification of care recipients is
also dealt with in the Classification Principles. The provisions of this Part
indicate when a particular matter is or may be dealt with in these Principles.
Note: The Classification Principles are made by the
Minister under section 96‑1.
Division 25—How are care recipients classified?
25‑1
Classification of care recipients
(1) If the Secretary receives an appraisal
under section 25‑3 in respect of:
(a) a care recipient who is approved
under Part 2.3 for residential care; or
(b) a care recipient who is approved
under Part 2.3 for flexible care and whose flexible care is of a kind
specified in the Classification Principles;
the Secretary must classify the care recipient according
to the level of care the care recipient needs, relative to the needs of other
care recipients.
(2) The classification must specify the
appropriate *classification
level for the care recipient (see section 25‑2).
(3) In classifying the care recipient, the
Secretary:
(a) must take into account the
appraisal made in respect of the care recipient under section 25‑3;
and
(b) must not exceed the level (if any)
specified by the Secretary under subsection 22‑2(3) in relation to the
care recipient; and
(c) must take into account any other
matters specified in the Classification Principles.
(4) If there is no classification of the care
recipient, the care recipient is taken to be classified at the *lowest applicable
classification level under the Classification Principles (see subsection 25‑2(3)).
(5) The Classification Principles may exclude
a class of care recipients from classification under this Part. A care
recipient who is in such a class cannot be classified under this Part for the
period specified in the Classification Principles in relation to that class.
25‑2
Classification levels
(1) The Classification Principles may set out
the *classification
levels for care recipients being provided with residential care or flexible care.
(2) The
Classification Principles may provide for any of the following:
(a) for only some of the *classification
levels to be available when care is provided as *respite care;
(b) for different classification
levels to apply when residential care is provided as respite care;
(c) for different classification
levels to apply in respect of flexible care.
(3) The Classification Principles may specify
the *lowest
applicable classification level. They may provide that a different level is the
lowest applicable classification level when care is provided as *respite care.
(4) The Classification Principles may specify
the criteria, in respect of each *classification level, for determining which level applies
to a care recipient.
(5) The following are examples of matters the
Classification Principles may deal with in specifying the criteria:
(a) a care recipient’s clinical needs;
(b) the assistance a care recipient
requires with the activities of daily living;
(c) the assistance a care recipient
requires with personal care;
(d) the assistance a care recipient
requires with communication or sensory processes;
(e) the care recipient’s need for
social or emotional support.
25‑3
Appraisals of the level of care needed
(1) An
appraisal of the level of care needed by a care recipient, relative to the
needs of other care recipients, must be made by:
(a) the approved provider that is
providing care to the care recipient, or a person acting on the approved
provider’s behalf; or
(b) if the approved provider has been
suspended under section 25‑4 from making appraisals—a person
authorised under section 25‑5 to make those appraisals.
However, this subsection does not apply if the care
recipient is being provided with care as *respite care.
(2) The appraisal must be made over a
continuous period of at least 21 days. However, in the circumstances (if any)
specified in the Classification Principles, the appraisal may be made over the
shorter period specified in the Classification Principles in relation to those
circumstances.
(3) The appraisal must be in a form approved
by the Secretary, and must be made in accordance with the procedures (if any)
specified in the Classification Principles.
(4) If a care recipient is being, or is to
be, provided with care as *respite care, an assessment of the care recipient’s care
needs made under section 22‑4 is taken:
(a) to be an appraisal of the level of
care needed by the care recipient; and
(b) to have been received by the
Secretary under subsection 25‑1(1) as such an appraisal.
25‑4
Suspending approved providers from making appraisals
(1) The Secretary may suspend an approved
provider from making appraisals under section 25‑3 if:
(a) the Secretary is satisfied that
the approved provider, or a person acting on the approved provider’s behalf,
gave false, misleading or inaccurate information in a substantial number of
appraisals reviewed under subsection 29‑1(3); and
(b) the classifications made in
connection with those appraisals were changed under section 29‑1;
and
(c) the
Secretary is satisfied that, after those classifications were changed, the
approved provider continued to give false, misleading or inaccurate information
in other appraisals.
Note: Suspensions of approved providers from making
assessments are reviewable under Part 6.1.
(2) In considering whether a number of
appraisals in which false, misleading or inaccurate information was given is
substantial, the Secretary must apply the criteria (if any) specified in the
Classification Principles.
(3) Before deciding to suspend an approved
provider from making appraisals, the Secretary must notify the approved
provider that suspension is being considered. The notice must be in writing and
must:
(a) specify the period proposed for
the suspension; and
(b) invite the approved provider to
make submissions, in writing, to the Secretary within 28 days after receiving
the notice; and
(c) inform the approved provider that
if no submissions are made within that period, any suspension will take effect
on the day after the last day for making submissions.
(4) In making the decision whether to suspend
the approved provider, the Secretary must consider any submissions given to the
Secretary within that period.
(5) The Secretary must notify the approved
provider, in writing, of the decision.
(6) The notice must be given to the approved
provider within 28 days after the end of the period for making submissions. If
the notice is not given within this period, the Secretary is taken to have
decided not to suspend the approved provider.
(7) A suspension takes effect:
(a) if no submission was made under subsection (3)—on
the day after the last day for making submissions; or
(b) if such a submission was made—7
days after the day on which the notice under subsection (5) was given.
25‑5
Authorisation of another person to make appraisals
(1) If the Secretary suspends an approved
provider from making appraisals, the Secretary must, in writing, authorise
another person to make appraisals of care recipients to whom the approved
provider provides care.
(2) The Secretary must inform the approved
provider, in writing, of the name of the person who has been authorised to make
appraisals of care recipients to whom the approved provider provides care.
Division 26—When do classifications take effect?
26‑1
Appraisals received within the appropriate period—care other than respite care
A classification of a care recipient
(other than a classification in relation to care provided as *respite care) is
taken to have had effect from the day on which provision of the level of care
specified in an appraisal to the care recipient began, if the appraisal is
received by the Secretary:
(a) within the period specified in the
Classification Principles; or
(b) if no such period is so
specified—within 2 months after the day on which provision of the care to the
care recipient began.
26‑2
Assessments not received within the appropriate period—care other than respite
care
(1) A classification of a care recipient
(other than a classification in relation to care provided as *respite care)
takes effect from the day an appraisal of the care recipient is received by the
Secretary if the appraisal is received outside the period in paragraph 26‑1(a)
or (b) (whichever is applicable).
(2) However,
if the Secretary is satisfied that the appraisal was sent in sufficient time to
be received by the Secretary, in the ordinary course of events, within that
period, the classification is taken to have had effect from the day the care
recipient began being provided with the level of care specified in the
appraisal.
Note: A decision that the Secretary is not satisfied
an appraisal was sent in sufficient time is reviewable under Part 6.1.
(3) In considering whether an appraisal
received outside that period was sent in sufficient time, the Secretary may
have regard to any information, relevant to that question, that the approved
provider gives to the Secretary.
(4) The Secretary must notify the approved
provider, in writing, if the Secretary is not satisfied that the appraisal received
outside that period was sent in sufficient time.
26‑3
When respite care classifications take effect
A classification of a care recipient in
relation to care provided as *respite care takes effect on a day specified in the
Classification Principles.
Division 27—When do classifications cease to have effect?
27‑1
Expiry dates for classifications
(1) A classification ceases to have effect on
its expiry date, unless it is renewed under Division 28.
(2) Subject to sections 27‑2 and
27‑3, the expiry date of a classification (other than a
classification in relation to residential care provided as *respite care) is:
(a) the day that occurs 12 months
after the classification took effect; or
(b) such other day as is specified in
the Classification Principles.
(3) The expiry date for a
classification for care provided to a care recipient as *respite care is the earlier of the
following:
(a) the day on which the period during
which the care recipient was provided with the respite care ends;
(b) the expiry date specified in the
Classification Principles.
(4) A reference in this section to a
classification includes a reference to a classification renewed under Division 28.
27‑2
Cessation of care
(1) If a care recipient departs from a
residential care service or a flexible care service, the expiry date
for a classification in respect of the care recipient that was in force
immediately before the day of departure is:
(a) the day of departure; or
(b) such other day as is specified in
the Classification Principles.
(2) This section does not apply if the care
in question was being provided as *respite care.
27‑3
Extended hospital leave
If a care
recipient:
(a) takes *extended hospital leave that begins and
ends before what would, apart from this section, have been the *expiry date under
section 27‑1; and
(b) is
provided with residential care (other than residential care provided as *respite care) by
an approved provider immediately after the end of that leave;
the expiry date is
the day on which that leave ended.
Note: If a care recipient takes *extended hospital
leave, this may result in a lower *classification level applying to the care recipient for the
purpose of working out amounts of *residential care subsidy (see section 44‑4).
Division 28—How are classifications renewed?
28‑1
Renewing classifications
(1) The
Secretary may renew the classification of a care recipient (other than a
classification in relation to residential care provided as *respite care), if
the approved provider notifies the Secretary of a reappraisal of the level of
care needed by the care recipient (see section 28‑2).
Note: Refusals to renew the classifications of care
recipients are reviewable under Part 6.1.
(2) The renewal of the classification must
specify the appropriate *classification level for the care recipient (see section 28‑2).
(3) In renewing the classification, the
Secretary:
(a) must take into account the
reappraisal made in respect of the care recipient under section 28‑2;
and
(c) must take into account any other
matters specified in the Classification Principles.
(4) A reference in this section to a
classification includes a reference to a renewed classification.
28‑2
Reappraisal of the level of care needed
(1) A reappraisal of the level of care needed
by a care recipient must be made in accordance with the Classification
Principles applying to an appraisal under Division 25.
(2) The reappraisal must be made by:
(a) the approved provider that is
providing care to the care recipient, or a person acting on the approved
provider’s behalf; or
(b) if the approved provider has been
suspended under section 25‑4 from making appraisals—a person
authorised to make those appraisals under section 25‑5.
(3) The reappraisal must be in a form
approved by the Secretary.
(4) Subject to subsection (5), the
reappraisal must be made during the reappraisal period for the classification
set out in section 28‑3.
(5) If the care needs of the care recipient
have changed significantly during the period during which the classification
has effect, the reappraisal may be made at any time during that period.
(6) The Classification Principles may specify
the circumstances in which the care needs of a care recipient are taken to have
changed significantly.
28‑3
Reappraisal period for classifications
(1) The reappraisal period for the
classification is:
(a) the period:
(i) beginning one month
before the *expiry
date of the classification; and
(ii) ending one month after
the expiry date; or
(b) such other period as is specified in
the Classification Principles.
(2) However, if the *expiry date of the classification
occurs:
(a) while the care recipient is on *leave from a
residential care service; or
(b) within one month after the
residential care service recommenced providing residential care to the care
recipient after that leave ended;
the reappraisal period is:
(c) the period of one month beginning
on the day on which the provision of residential care to the care recipient
through the residential care service recommenced; or
(d) such other period as is specified
in the Classification Principles.
28‑4
Date of effect of renewal
(1) Subject to subsections (2) and (3)
and section 28‑5, the renewal of the classification has effect from
the *expiry
date of the classification.
(2) If:
(a) a reappraisal of the
classification is given to the Secretary before the start of the reappraisal
period; and
(b) the reappraisal concludes that the
care needs of the care recipient have changed significantly (within the meaning
of subsection 28‑2(5)) during the period during which the classification
has effect;
the renewal of the classification takes effect from the
day the reappraisal is received by the Secretary.
(3) Subject to section 28‑5, if
the *expiry
date of the classification occurs:
(a) while the care recipient is on *leave from a
residential care service; or
(b) within one month after the
residential care service recommenced providing residential care to the care
recipient after that leave ended;
a renewal of the classification takes effect from the day
on which provision of residential care to the care recipient through the
residential care service recommenced.
28‑5
Reappraisal given to the Secretary after the reappraisal period
(1) If a reappraisal of a classification is
given to the Secretary after the end of the reappraisal period, the renewal of
the classification takes effect from the day the reappraisal is received by the
Secretary.
(2) However,
if the Secretary is satisfied that the reappraisal was sent in sufficient time
to be received by the Secretary, in the ordinary course of events, within that
period, the renewal is taken to have had effect from the day the care recipient
began being provided with the level of care in question.
Note: A decision that the Secretary is not satisfied
a reappraisal was sent in sufficient time is reviewable under Part 6.1.
(3) In considering whether a reappraisal
received outside that period was sent in sufficient time, the Secretary may
have regard to any information, relevant to that question, that the approved
provider gives to the Secretary.
(4) The Secretary must notify the approved
provider, in writing, if the Secretary is not satisfied that a reappraisal
received outside that period was sent in sufficient time.
Division 29—How are classifications changed?
29‑1
Changing classifications
(1) The Secretary must change a
classification if the Secretary is satisfied that:
(a) the classification was based on an
incorrect or inaccurate appraisal under section 25‑3 or reappraisal
under section 28‑2; or
(b) the
classification was, for any other reason, made incorrectly.
Note: Changes of classifications are reviewable
under Part 6.1.
(2) A classification cannot be changed in any
other circumstances, except when classifications are renewed under Division 28.
(3) Before
changing a classification under subsection (1), the Secretary must review
it by examining:
(a) the material on which the
classification was based; and
(b) any other material or information
of a kind specified in the Classification Principles;
and considering whether the material supports the
classification.
(4) If the Secretary changes the
classification under subsection (1), the Secretary must give written
notice of the change to the approved provider that is providing care to the
care recipient.
29‑2
Date of effect of change
A change of a classification is taken to
have had effect:
(a) if the classification took effect
less than 6 months before the Secretary gives written notice of the change to
the approved provider—from the day on which the classification took effect; or
(b) in any other case—from the day
that occurred 6 months before the day on which the Secretary gives the notice.
Part 2.5—Extra service places
Division 30—Introduction
30‑1
What this Part is about
A *place in respect of which residential
care is provided may become an extra service place. Extra service places
involve providing a significantly higher standard of accommodation, food and
services to care recipients. Extra service places can attract higher resident
fees, but a lower amount of *residential care subsidy is payable.
Note 1: For resident fees, see Division 58.
Note 2: For the lower amount of *residential care subsidy, see
section 44‑18, and also sections 44‑6, 44‑29 and 44‑30.
Further amounts may be deducted to recover capital payments (see section 43‑6).
Note 3: *Extra service status also affects an approved provider’s
future entitlement for capital payments (see subsection 72‑1(4)).
Note 4: The rules for various matters relating to allocations
of places are also affected by *extra service status (see sections 14‑7, 16‑8
and 17‑8).
Table of Divisions
30 Introduction
31 When is a place an extra service place?
32 How is extra service status granted?
33 When does extra service status cease?
35 How are extra service fees approved?
36 When is residential care provided on an
extra service basis?
30‑2
The Extra Service Principles
Extra service places are also dealt with
in the Extra Service Principles. The provisions of this Part indicate where a
particular matter is or may be dealt with in these Principles.
Note: The Extra Service Principles are made by the
Minister under section 96‑1.
30‑3
Meaning of distinct part
(1) For the purposes of this Part, distinct
part, in relation to a residential care service, means a specific area
of the service that:
(a) is physically identifiable as
separate from all the other *places included in the service; and
(b) includes sufficient living space
for the care recipients to whom residential care is provided in respect of the
places in the area; and
(c) meets
any other requirements specified in the Extra Service Principles.
Example: A wing of a
service with a separate living and dining area for residents living in the wing
might constitute a “distinct part” of the service.
Note: If the Secretary approves an application for *extra service
status for a distinct part of a service, all the places in that distinct part
will be extra service places at a particular time as long as the requirements
of section 31‑1 are met.
(2) The Extra Service Principles may specify
characteristics that must be present in order for an area to be physically
identifiable as separate for the purposes of paragraph (1)(a).
Division 31—When is a place an extra service place?
31‑1
Extra service place
A *place is an extra service place
on a particular day if, on that day:
(a) the place is included in a
residential care service, or a *distinct part of a residential care service, which has *extra service
status (see Divisions 32 and 33); and
(b) an extra service fee is in force
for the place (see Division 35); and
(c) residential care is provided, in
respect of the place, to a care recipient on an extra service basis (see
Division 36); and
(d) the place meets any other
requirements set out in the Extra Service Principles.
31‑3
Effect of allocation or transfer of places to services with extra service
status
(1) If:
(a) *places are allocated or transferred to a
service that has *extra
service status, or a *distinct
part of which has extra service status; and
(b) the allocation or transfer was in
accordance with subsection 14‑7(2) or 16‑8(2);
the allocated or transferred places are taken, for the
purposes of this Part, not to have extra service status.
(2) If:
(a) the Secretary approves a
variation, under Division 17, of the conditions to which an allocation of *places is subject;
and
(b) as a result of the variation, care
in respect of the places is provided through a residential care service in a
different location; and
(c) the variation was in accordance
with subsection 17‑8(2);
the places are taken, for the purposes of this Part, not
to have *extra
service status.
Division 32—How is extra service status granted?
32‑1
Grants of extra service status
(1) An application may be made to the
Secretary in accordance with section 32‑3 for *extra service
status in respect of a residential care service, or a *distinct part of a residential care
service. The application must be in response to an invitation under section 32‑2.
(2) The Secretary must, by notice in writing,
grant *extra
service status in respect of the residential care service, or a distinct part
of the residential care service, if:
(a) the Secretary is satisfied, having
considered the application in accordance with sections 32‑4 and 32‑5,
that extra service status should be granted; and
(b) the application is accompanied by
the application fee (see section 32‑6); and
(c) granting the extra service status
would not result in the number of extra service places exceeding the maximum
proportion (if any) determined by the Minister under section 32‑7
for the State, Territory or region in which the residential care service is
located.
(3) The grant of *extra service status is subject to such
conditions as are set out by the Secretary in the notice given to the applicant
under subsection 32‑9(1). The conditions may include conditions that must
be satisfied before the extra service status becomes effective.
32‑2
Invitations to apply
(1) The Secretary may invite applications for
*extra
service status in respect of residential care services, or *distinct parts of
residential care services, in a particular State or Territory, or in a
particular region within a State or Territory.
(2) The invitation must specify:
(a) the closing date; and
(b) if the Minister has determined
under section 32‑7 a maximum proportion of the total number of *places allocated
in the State, Territory or region that may be extra service places—the maximum
proportion.
(3) The
invitation must be:
(a) published in such newspapers; or
(b) published or notified by such
other means;
as the Secretary thinks appropriate.
(4) In this section:
region means a region determined by the
Secretary under subsection 12‑6(1) for a State or Territory in respect of
residential care subsidy.
32‑3
Applications for extra service status
(1) A person may make an application for *extra service
status in respect of a residential care service, or a *distinct part of a residential care
service, if the person:
(a) has the allocation under Part 2.2
for the *places
included in the residential care service; or
(b) has applied under Part 2.2
for such an allocation.
(2) The application must:
(a) be in response to an invitation to
apply for *extra
service status published by the Secretary under section 32‑2; and
(b) be made on or before the closing
date specified in the invitation; and
(c) be in a form approved by the
Secretary; and
(d) state the number of *places to be
included in the residential care service, or the *distinct part, for which extra service
status is sought; and
(e) specify the standard of
accommodation, services and food in relation to each such place; and
(f) include an application for
approval under Division 35 of the extra service fee in respect of each
place; and
(g) meet any requirements specified in
the Extra Service Principles.
(3) If the Secretary needs further
information to determine the application, the Secretary may give to the
applicant a notice requesting the applicant to give the further information
within 14 days after receiving the notice.
(4) The
application is taken to be withdrawn if the applicant does not give the further
information within 14 days.
Note: The period for giving the further information
can be extended—see section 96‑7.
(5) The Secretary may, for a purpose
connected with considering an application under this section, request the
applicant to agree to an assessment of the residential care service concerned,
conducted by a person authorised by the Secretary to conduct the assessment.
(6) If the applicant does not agree to the
assessment within 28 days of the request, the application is taken to be
withdrawn.
(7) A request under subsection (3) or
(5) must contain a statement setting out the effect of subsection (4) or
(6), as the case requires.
32‑4
Criteria to be considered by Secretary
(1) The Secretary must not grant an
application unless the following criteria are satisfied:
(a) granting the *extra service
status sought would not unreasonably reduce access to residential care by
people living in the State, Territory or region concerned who:
(i) are *concessional
residents; or
(ii) are included in a
class of people specified in the Extra Service Principles;
(b) the proposed standard of
accommodation, services and food in respect of each *place that would be covered by the
extra service status is, in the Secretary’s opinion, at the time of the
application, significantly higher than the average standard in residential care
services that do not have extra service status;
(c) if the applicant has been a
provider of aged care—the applicant has a very good record of:
(i) conduct as such a
provider; and
(ii) compliance with its
responsibilities as such a provider, and meeting its obligations arising from
the receipt of any payments from the Commonwealth for providing aged care;
(d) if, at the time of the
application, residential care is being provided through the residential care
service:
(i) the service is *certified; and
(ii) if the application is
made on or after the *accreditation
day—the service meets its accreditation requirement (within the meaning of
subsection 42‑4(1)); and
(e) any other matters specified in the
Extra Service Principles.
(2) The Extra Service Principles may specify
the matters to which the Secretary must have regard in considering, or how the
Secretary is to determine:
(a) whether granting *extra service
status would unreasonably reduce access as mentioned in paragraph (1)(a);
and
(b) whether the proposed standard
referred to in paragraph (1)(b) is significantly higher than the average
standard referred to in that paragraph; and
(c) whether an applicant has a very
good record of conduct, compliance or meeting its obligations, for the purposes
of paragraph (1)(c).
(3) The reference in paragraph (1)(c) to
aged care includes a reference to any care for the aged, whether provided
before or after the commencement of this section, in respect of which any
payment was or is payable under a law of the Commonwealth.
32‑5
Competitive assessment of applications
(1) The
Secretary must consider an application in accordance with this section if:
(a) more than one application in
respect of a State or Territory, or a particular region within a State or
Territory, is made in response to an invitation under section 32‑2;
and
(b) the Secretary is satisfied that to
grant the *extra
service status sought in each application that would (apart from this section)
succeed would:
(i) unreasonably reduce
access as mentioned in paragraph 32‑4(1)(a); or
(ii) result in the number
of extra service places exceeding the maximum proportion (if any) set by the
Minister under section 32‑7.
(2) The Secretary must grant *extra service
status in respect of the applications in a way that ensures that the extra
service status granted will not:
(a) unreasonably reduce access as
mentioned in paragraph 32‑4(1)(a); or
(b) result in the number of extra
service places exceeding the maximum proportion (if any) set by the Minister
under section 32‑7.
(3) The Secretary must, in deciding which applications
will succeed:
(a) give preference to those
applications that best meet the criteria in section 32‑4; and
(b) have regard to the level of the
extra service fees (see Division 35) proposed in each application.
(4) The Extra Service Principles may set out
matters to which the Secretary is to have regard in determining which
applications best meet the criteria set out in section 32‑4.
32‑6
Application fee
(1) The Extra
Service Principles may specify:
(a) the application fee; or
(b) the way the application fee is to
be worked out.
(2) The amount of any application fee:
(a) must be reasonably related to the
expenses incurred or to be incurred by the Commonwealth in relation to the
application; and
(b) must not be such as to amount to
taxation.
32‑7
Maximum proportion of places
(1) The Minister may determine, in respect of
any State or Territory, or any region within a State or Territory, the maximum
proportion of the total number of *places allocated in the State, Territory or region that may
be extra service places.
(2) The determination must be published in
the Gazette.
32‑8
Conditions of grant of extra service status
(1) *Extra service status is subject to the terms and
conditions set out in the notice given to the applicant under subsection 32‑9(1).
(2) The conditions are taken to include any
conditions set out in this Act and any conditions specified in the Extra
Service Principles.
(3) Without limiting the conditions to which
a grant of *extra
service status in respect of a residential care service, or *distinct part, may
be subject, such a grant is subject to the following conditions:
(a) if the Extra Service Principles
specify standards that must be met by a residential care service, or a distinct
part of a residential care service, that has extra service status—the service,
or distinct part, must meet those standards;
(b) residential
care may not be provided other than on an extra service basis through the
residential care service, or distinct part, except to a care recipient who was
being provided with residential care through the service, or distinct part,
immediately before extra service status became effective.
Note: Paragraph (b) is to protect residents
already in a service when it is granted extra service status. See also paragraph
36‑1(1)(b), which provides that an *extra service agreement is necessary in
order for residential care to be provided on an extra service basis. A person
cannot be forced to enter such an agreement, and section 36‑4
contains additional protection for existing residents.
(4) A notice under subsection (1) must:
(a) specify that the *extra service
status granted is in respect of a particular location; and
(b) specify that location.
(5) Without limiting the conditions to which
a grant of *extra
service status may be subject, conditions may be included that relate to the
following:
(a) the minimum standard of
accommodation, services and food;
(b) entering into an agreement
relating to *capital
repayment deductions (see section 43‑6);
(c) agreements with care recipients
setting out the terms on which they will receive care on an extra service
basis;
(d) the level of the extra service
fee.
(6) Conditions,
other than those under this Act or the Extra Service Principles, may be varied,
in accordance with any requirements set out in those Principles, by agreement
between the Secretary and the approved provider.
Note: Approved providers have a responsibility under
Part 4.3 to comply with the conditions to which a grant of extra service
status is subject. Failure to comply with a responsibility can result in a
sanction being imposed under Part 4.4.
32‑9
Notification of extra service status
(1) The Secretary must notify each
applicant in writing whether the *extra service status sought in the application has been
granted. The notice must be given:
(a) within 90 days of receiving the
application; or
(b) if the Secretary has requested
further information under subsection 32‑3(3)—within 90 days after
receiving the information.
(2) If *extra service status has been
granted, the notice must specify:
(a) the conditions to which the grant
is subject; and
(b) when the extra service status will
become effective (see subsection (3); and
(c) when the extra service status ceases
to have effect (see Division 33).
(3) The day on which the *extra service
status becomes effective must not be:
(a) before the day on which the notice
is given; or
(b) before the day on which the
residential care service concerned is *certified.
The day may be specified by
reference to conditions that must be satisfied in order for extra service
status to become effective.
Example: Extra service status might not become effective
until specified building works are completed.
Division 33—When does extra service status cease?
33‑1
Cessation of extra service status
*Extra
service status for a residential care service, or a *distinct part of a residential care
service, ceases to have effect at a particular time if any of the following
happens:
(b) the extra service status lapses
under section 33‑3;
(c) the extra service status is
revoked or suspended under section 33‑4 or Part 4.4;
(d) the residential care service does
not meet its *accreditation
requirement (if any) at that time;
(e) the residential care service
ceases to be *certified;
(f) if the Extra Service Principles
specify that extra service status ceases to have effect on the occurrence of a
particular event—that event occurs.
33‑3
Lapsing of extra service status
(1) *Extra service status for a residential care
service, or a *distinct
part of a residential care service, lapses if:
(a) an allocation made under Division 14
in respect of all of the *places included in that service, or distinct part, is *relinquished or
revoked; or
(b) the allocation is a *provisional
allocation and the provisional allocation does not take effect under section 15‑1
before the end of the *provisional allocation period; or
(c) the approval of the person as a
provider of *aged
care services ceases to have effect under Division 10.
(2) The Extra Service Principles may specify
other circumstances in which *extra service status for a residential care service, or a *distinct part of a
residential care service, lapses.
33‑4
Revocation or suspension of extra service status at approved provider’s request
(1) The
Secretary must revoke, or suspend for a specified period, the *extra service
status of a residential care service, or a *distinct part of a residential care
service, if the approved provider concerned requests the Secretary in writing
to do so.
Note: *Extra service status can also be revoked or suspended as a
sanction under Part 4.4 (see paragraph 66‑1(g)).
(2) Subject to subsection (3), a
revocation or suspension under this section has effect on the date requested by
the approved provider, unless the Secretary specifies otherwise.
(3) However, the date of effect must not be
earlier than 60 days after the day on which the request is received by the
Secretary.
(4) The Secretary must notify the approved
provider, in writing, of the day on which the revocation or suspension will
take effect and, in the case of a suspension, the day on which it will cease to
have effect.
Division 35—How are extra service fees approved?
35‑1
Approval of extra service fees
(1) An approved provider who:
(a) has applied for *extra service
status to be granted in respect of a residential care service, or a *distinct part of a
residential care service; or
(b) who has been granted such extra
service status;
may apply to the Secretary, in accordance with section 35‑2,
for extra service fees to be approved for one or more *places included in that residential
care service or distinct part.
(2) The Secretary must approve the extra
service fees proposed in the application if:
(a) the proposed fees meet the
requirements of section 35‑3; and
(b) the proposed fees meet any
requirements (whether as to amount or otherwise) set out in the Extra Service
Principles; and
(c) in a case where the application is
not included in an application under Division 32—the Secretary is satisfied
that any requirements specified in the Extra Service Principles in relation to
standards, *certification
or accreditation have been met; and
(d) fees
for those places have not been approved during the 12 months immediately before
the date on which the application is given to the Secretary.
Note: Rejections of applications are reviewable
under Part 6.1.
35‑2
Applications for approval
(1) The application must be in a form
approved by the Secretary, and must satisfy any requirements set out in the Extra
Service Principles.
(2) If the applicant has not been granted *extra service
status for the residential care service, or the *distinct part of the residential care
service, in which the *places concerned are located, the application must be
included in an application under Division 32 for such extra service
status.
35‑3
Rules about amount of extra service fee
(1) The Secretary must not approve a nil
amount as the extra service fee for a *place.
(2) The Secretary must not approve extra
service fees for the *places
in that residential care service, or *distinct part, if the average of the extra service
fees for all those places, worked out on a daily basis, would be less than:
(a) $10.00; or
(b) such other amount as is specified
in the Extra Service Principles.
(3) The Secretary must not approve extra
service fees for *places
in respect of which residential care is provided if:
(a) the care is provided through a
particular residential care service; and
(b) extra service fees have previously
been approved in respect of places in respect of which residential care is
provided through that aged care service; and
(c) 12 months, or such other period
specified in the Extra Service Principles, has not yet elapsed since the date
on which the last approval took effect.
(4) The Secretary must not approve an
application for an extra service fee for a *place if:
(a) an extra service fee for the place
(the current fee) is in force at the time the application is
made; and
(b) the application proposes to increase
the current fee by an amount that exceeds the maximum amount specified in, or
worked out in accordance with, the Extra Service Principles.
35‑4
Notification of Secretary’s decision
The Secretary must notify the applicant,
in writing, of the Secretary’s decision on the application. The notice must be
given within 28 days after receiving the application.
Division 36—When is residential care provided on an extra service basis?
36‑1
Provision of residential care on extra service basis
(1) Residential care is provided, in respect
of a *place,
to a care recipient on an extra service basis on a particular day if:
(a) the care is provided in accordance
with the conditions applying to the *extra service status for the residential care service, or
the *distinct
part of a residential care service, through which the care is provided; and
(b) there is in force on that day an *extra service
agreement, between the care recipient and the approved provider providing the
service, that was entered into in accordance with section 36‑2 and
that meets the requirements of section 36‑3; and
(c) the care meets any other
requirements set out in the Extra Service Principles.
(2) For the
purposes of paragraph (1)(b), a care recipient is taken to have entered an
*extra service
agreement if the care recipient has entered an agreement which contains the
provisions specified in section 36‑3.
Example: These conditions may be included in a *resident
agreement.
36‑2
Extra service agreements not to be entered under duress etc.
(1) An *extra service agreement must not be
entered into in circumstances under which the care recipient is subject to
duress, misrepresentation, or threat of disadvantage or detriment.
(2) An *extra service agreement must not be
entered into in a way that contravenes the Extra Service Principles.
(3) Without
limiting subsection (1), a threat to cease providing care to a care
recipient through a particular residential care service unless the care
recipient signs an *extra
service agreement is taken to be a threat of disadvantage for the purposes of
that subsection.
36‑3
Contents of extra service agreements
(1) An *extra service
agreement must specify:
(a) the level of the extra service
amount (within the meaning of section 58‑5) in respect of the *place concerned;
and
(b) how the extra service amount may
be varied; and
(c) the
standard of the accommodation, services and food to be provided to the care
recipient.
Note: The notice under subsection 32‑9(1) will
specify minimum standards, but care recipients and approved providers may make
agreements to provide more than the minimum.
(2) An *extra service agreement must also:
(a) contain the provisions (if any)
set out in the Extra Service Principles; and
(b) deal with the matters (if any)
specified in the Extra Service Principles.
36‑4
Additional protection for existing residents
An *extra service agreement entered into with
a care recipient who was being provided with care in a residential care
service, or a *distinct
part of a residential care service, immediately before *extra service status became
effective under Division 32 must provide that the care recipient may
terminate the agreement:
(a) at any time during the 3 months
after the date of effect of the agreement; and
(b) without
penalty of any kind.
Note: Under paragraph 56‑1(f), an approved
provider has a responsibility to comply with this Division. A failure to comply
may lead to sanctions being imposed under Part 4.4.
Part 2.6—Certification of residential care services
Division 37—Introduction
37‑1
What this Part is about
An approved provider can only charge *accommodation
bonds or *accommodation
charges or receive concessional resident supplements in respect of a
residential care service if the service has been certified under this Part.
Table of Divisions
37 Introduction
38 How is a residential care service
certified?
39 When does certification cease to have
effect?
37‑2
The Certification Principles
The *certification of residential care
services is also dealt with in the Certification Principles. The provisions of
this Part indicate when a particular matter is or may be dealt with in these
Principles.
Note: The Certification Principles are made by the
Minister under section 96‑1.
Division 38—How is a residential care service certified?
38‑1
Certification of residential care services
(1) An application may be made to the
Secretary in accordance with section 38‑2 for *certification of a
residential care service.
(2) The Secretary must, in
writing, *certify
the residential care service if:
(a) the Secretary is satisfied, having
considered the application in accordance with sections 38‑3 and 38‑4
(if applicable), that the service should be certified; and
(b) the
application is accompanied by the application fee (see section 38‑7).
Note 1: *Certification of a residential care service may affect
entitlement to a Commonwealth benefit under Part VAB or VAC of the National
Health Act 1953, and may reduce an amount of *residential care subsidy that would
otherwise be payable (see section 43‑7).
Note 2: Rejections of applications are reviewable under
Part 6.1.
38‑2
Applications for certification
(1) The application for *certification of a
residential care service must be made by the approved provider who has the
allocation under Part 2.2 for the *places included in the residential care service
for which certification is sought.
(2) The application must:
(a) be in a form approved by the
Secretary; and
(b) be accompanied by any documents
that are required by the Secretary to be provided; and
(c) meet any requirements specified in
the Certification Principles.
(3) If residential care is provided at
different locations through the same residential care service, only one
application may be made for the certification of the service (in respect of all
those locations).
(4) An
application cannot be made:
(a) for certification of a part of a
residential care service; or
(b) for certification of more than one
residential care service, even if the residential care services are conducted
in the same premises.
38‑3
Suitability of residential care service for certification
(1) In considering an application, the
Secretary must have regard to:
(a) the standard of the buildings and
equipment that are being used by the residential care service in providing
residential care; and
(b) the standard of the residential
care being provided by the residential care service; and
(c) if the applicant has been a
provider of *aged
care—its conduct as such a provider, and its compliance with its
responsibilities as such a provider and its obligations arising from the
receipt of any payments from the Commonwealth for providing aged care; and
(d) any other matters specified in the
Certification Principles.
(2) The reference in paragraph (1)(c) to
aged care includes a reference to any care for the aged, whether provided
before or after the commencement of this section, in respect of which any
payment was or is payable under a law of the Commonwealth.
(3) The Certification Principles may specify
the matters to which the Secretary must have regard in considering any of the
matters set out in paragraphs (1)(a), (b) and (c).
38‑4
Secretary may require service to be assessed
(1) For the purpose of deciding whether to *certify a
residential care service, the Secretary may require the service to be assessed
by a person or body authorised by the Secretary.
(2) The
assessment may relate to any aspect of the residential care service that the
Secretary considers relevant to the suitability of the service for *certification.
38‑5
Requests for further information
(1) If the Secretary needs
further information to determine the application, the Secretary may give to the
applicant a notice requesting the further information:
(a) within the period specified in the
notice; or
(b) if no period is specified in the
notice—within 14 days after receiving the notice.
(2) The
application is taken to be withdrawn if the applicant does not give the further
information within whichever of those periods applies.
Note: The period for giving the further information
can be extended—see section 96‑7.
(3) The notice must contain a statement
setting out the effect of subsection (2).
38‑6
Notification of Secretary’s determination
(1) The Secretary must notify the
applicant, in writing, whether the residential care service has been *certified. The
notice must be given:
(a) within 90 days of receiving the
application; or
(b) if the Secretary has requested
further information under section 38‑5—within 90 days after
receiving the information.
(2) If the Secretary decides to *certify the
residential care service, the notice must include statements setting out:
(a) when the certification takes
effect; and
(b) how the certification can be
reviewed (see section 39‑4); and
(c) when the certification ceases to
have effect (see Division 39); and
(d) the consequences of failure by the
approved provider to comply with the responsibilities relating to *accommodation
bonds set out in Division 57, or those relating to *accommodation charges set out in
Division 57A, in particular, that such a failure may lead to the
revocation or suspension under Part 4.4 of the certification of the
residential care service; and
(e) such other matters as are
specified in the Certification Principles.
38‑7
Application fee
(1) The Certification Principles may specify:
(a) the application fee; or
(b) the way the application fee is to
be worked out.
(2) The amount of any application fee:
(a) must be reasonably related to the
expenses incurred or to be incurred by the Commonwealth in relation to the
application; and
(b) must not be such as to amount to
taxation.
Division 39—When does certification cease to have effect?
39‑1
Certifications ceasing to have effect
The *certification of a residential care
service ceases to have effect if any of the following happens:
(a) the certification lapses under
section 39‑2;
(b) the certification is revoked under
section 39‑3 or 39‑5;
(c) the certification is revoked or
suspended under Part 4.4;
(d) if the Certification Principles specify
that a certification ceases to have effect on the occurrence of a particular
event—that event occurs.
39‑2
Lapse of certification on change of location of residential care service
The certification of a residential care
service lapses if, after the residential care service has been *certified, there
is a change in the location at which residential care is provided through the
service.
39‑3
Revocation of certification
(1) The Secretary must revoke the *certification of a
residential care service if:
(a) the Secretary is satisfied that
the service has ceased to be suitable for certification; or
(b) the
Secretary is satisfied that the approved provider’s application for
certification of the service contained information that was false or misleading
in a material particular.
Note 1: *Certification may
also be revoked as a sanction under Part 4.4.
Note 2: Revocations of *certifications are reviewable under Part 6.1.
(2) Before
deciding to revoke the *certification, the Secretary must notify the approved
provider that revocation is being considered. The notice must be in writing and
must:
(a) include the Secretary’s reasons
for considering the revocation; and
(b) invite the approved provider to
make submissions, in writing, to the Secretary within 28 days after receiving
the notice; and
(c) inform the approved provider that
if no submission is made within that period, any revocation will take effect on
the day after the last day for making submissions.
(3) In deciding whether to revoke the
certification, the Secretary must:
(a) consider any submissions given to
the Secretary within that period; and
(b) consider any review of the
certification under section 39‑4.
(4) The Secretary must notify the approved
provider, in writing, of the decision.
(5) The notice must be given to the approved
provider within 28 days after the end of the period for making submissions. If
the notice is not given within this period, the Secretary is taken to have
decided not to revoke the certification.
(6) A revocation takes effect:
(a) if no submission described in subsection (2)
was made—on the day after the last day for making submissions; or
(b) if such a submission was made—7
days after the day on which the notice under subsection (4) was given.
39‑4
Review of certification
(1) The Secretary may, at any time, review
the *certification
of a residential care service.
(2) The Secretary must give notice, in
writing, to the approved provider of the review at least 5 *business days
before the review commences.
(3) For the purposes of the review, the
Secretary may require the residential care service to be assessed by a person
or body authorised by the Secretary.
(4) The assessment may relate to any aspect
of the residential care service that the Secretary considers relevant to the
ongoing suitability of the service for *certification.
(5) The Secretary must, within 28 days after
completing the review, notify the approved provider, in writing, of the result
of the review.
39‑5
Revocation of certification on request of approved provider
(1) The Secretary must revoke the *certification of a
residential care service if the approved provider who has the allocation under
Part 2.2 for the *places included in the residential care service requests
the Secretary in writing to revoke the certification.
(2) The request must be given to the
Secretary:
(a) at least 60 days before the day on
which the revocation is requested to take effect; or
(b) at or before such other later time
as is determined by the Secretary in accordance with any requirements specified
in the Certification Principles.
(3) The Secretary must notify the approved
provider of the revocation. The notice must be in writing and must be given to
the approved provider at least 14 days before the day on which the revocation
is to take effect.
(4) The revocation has effect on the day
requested, unless another day is specified in the notice under subsection (3).
(5) The
revocation is subject to such conditions (if any) as are specified in the
notice.
Note: Decisions to impose conditions on revocations
under this section are reviewable under Part 6.1.
Chapter 3—Subsidies
Division 40—Introduction
40‑1
What this Chapter is about
The Commonwealth pays subsidies to
approved providers for *aged care that has been provided. These subsidies are:
• *residential care
subsidy (see Part 3.1);
• *community care
subsidy (see Part 3.2);
• *flexible care
subsidy (see Part 3.3).
A number of approvals and other
decisions may need to have been made under Chapter 2 before a particular
kind of payment can be made (see section 5‑2). Receipt of payments
under this Chapter gives rise to certain responsibilities, that are dealt with
in Chapter 4.
Part 3.1—Residential care subsidy
Division 41—Introduction
41‑1
What this Part is about
The *residential care subsidy is a payment by
the Commonwealth to approved providers for providing residential care to care
recipients.
Table of Divisions
41 Introduction
42 Who is eligible for residential care
subsidy?
43 How is residential care subsidy paid?
44 What is the amount of residential care
subsidy?
41‑2
The Residential Care Subsidy Principles
*Residential
care subsidy is also dealt with in the Residential Care Subsidy Principles. The
provisions in this Part indicate when a particular matter is or may be dealt
with in these Principles.
Note: The Residential Care Subsidy Principles are
made by the Minister under section 96‑1.
41‑3
Meaning of residential care
(1) Residential care is
personal care or nursing care, or both personal care and nursing care, that:
(a) is provided to a person in a
residential facility in which the person is also provided with accommodation
that includes:
(i) appropriate staffing
to meet the nursing and personal care needs of the person; and
(ii) meals and cleaning services;
and
(iii) furnishings, furniture
and equipment for the provision of that care and accommodation; and
(b) meets any other requirements
specified in the Residential Care Subsidy Principles.
(2) However, residential care does not
include any of the following:
(a) care provided to a person in the
person’s private home;
(b) care provided in a hospital or in
a psychiatric facility;
(c) care provided in a facility that
primarily provides care to people who are not frail and aged.
Division 42—Who is eligible for residential care subsidy?
42‑1
Eligibility for residential care subsidy
(1) An approved provider is eligible for *residential care
subsidy in respect of a day if the Secretary is satisfied that, during that
day:
(a) the approved provider holds an
allocation of *places
for residential care subsidy that is in force under Part 2.2 (not being a *provisional
allocation); and
(b) the approved provider provides
residential care to a care recipient in respect of whom an approval is in force
under Part 2.3 as a recipient of residential care; and
(c) the
residential care service through which the care is provided meets its *accreditation
requirement (if any) applying at that time (see section 42‑4).
Note 1: A care recipient
can be taken to be provided with residential care while he or she is on *leave from that
care (see section 42‑2).
Note 2: If the care recipient’s approval under Part 2.3
is not in force, subsidy will not be payable. (For example, the approval may
have been given only for a limited period.)
(2) However, the approved provider is not
eligible in respect of residential care provided to the care recipient during
that day if:
(a) it is excluded because the
approved provider exceeds the approved provider’s allocation of *places for residential
care subsidy (see section 42‑7); or
(b) the approved provider stopped
providing residential care to the person during that day; or
(c) subject to subsections (3)
and (4), another approved provider would, but for this paragraph, also be
eligible for *residential
care subsidy in respect of residential care provided to the same care recipient
during that day.
(3) Paragraph (2)(c) does not apply if
the approved provider started providing residential care to the care recipient
before the other approved provider.
(4) Paragraph (2)(c)
does not apply if:
(a) the care recipient is on *leave under
section 42‑2 from the residential care service through which the
approved provider provides residential care to the care recipient at a level
that is not a *high
level of residential care; and
(b) the care recipient’s approval
under Part 2.3 is not limited under subsection 22‑2(3) so as to
preclude any high level of residential care; and
(c) the other approved provider is
providing to the care recipient, on a temporary basis, a high level of
residential care; and
(d) the
approved provider referred to in paragraph (a) is unable to provide that
high level of residential care.
Note: Eligibility may also be affected by Division 7
(relating to a person’s approval as a provider of aged care services) or
Division 20 (relating to a person’s approval as a recipient of residential
care).
42‑2
Leave from residential care services
(1) On each day during which a care recipient
is on *leave
under this section from a residential care service, the care recipient is
taken, for the purposes of this Part (other than section 42‑3) and
for the purposes of section 67A‑5, to be provided with residential
care by the approved provider operating the residential care service.
(2) A care
recipient is on *leave
under this section from a residential care service on each day of any period
during which the care recipient attends a hospital for the purpose of receiving
hospital treatment, so long as the day is on or after the day on which the care
recipient *enters
the residential care service.
Note: Attending a hospital for a period of *extended hospital
leave may result in a lower *classification level applying to the care recipient (see
section 44‑4) for the purpose of working out the amount of subsidy.
(3) A care recipient is on *leave under this
section from a residential care service on a day if:
(a) during the whole of that day, the
care recipient is absent from the residential care service; and
(b) either:
(i) the care recipient does
not, during that day, attend a hospital for the purpose of receiving hospital
treatment; or
(ii) the care recipient
does, during that day, attend a hospital for that purpose and the day is before
the day on which the care recipient *enters the residential care service; and
(c) the
number of days on which the care recipient has previously been on leave under
this subsection, during the current financial year, is less than 52.
Note: If a care recipient is taken not to have been
provided with care because the maximum number of days has been exceeded,
subsidy will not be payable in respect of those days. However, the care
recipient may agree to pay a fee to the approved provider to reserve the care
recipient’s *place
in the service. The maximum amount in such a case is set by section 58‑6.
(3A) A care recipient is on *leave under this
section from a residential care service on a day if:
(a) *flexible care subsidy is payable in
respect of the care recipient and the day; and
(b) the requirements specified in the
Residential Care Subsidy Principles for the purposes of this paragraph are met.
Note: A lower classification level for working out
the amount of the residential care subsidy may apply to the care recipient if
he or she is on leave for at least 30 days continuously under subsections (2)
and (3A). See section 44‑4.
(4) Despite subsections (2), (3) and
(3A), a care recipient cannot be on *leave under this section from a residential care service
during any period during which the residential care in question would have been
*respite
care.
42‑3
Working out periods of leave
(1) In working out the days on which a care
recipient is on *leave
under section 42‑2:
(a) include the day on which the
period commenced; and
(b) do
not include the day on which the approved provider recommenced, or commenced,
providing residential care to the care recipient.
Note: Absences that do not include an overnight
absence from a residential care service are not counted as *leave because of paragraph (b).
(2) Subject to subsection (3), a care
recipient cannot be on *leave under section 42‑2 from a residential care
service before he or she *enters the service.
(3) A care recipient may be on leave under
section 42‑2 on the days during the period starting on the later of:
(a) the day on which he or she was
notified that there was a vacancy in the residential care service in question;
or
(aa) the day on which he or she
accepted a place in the residential care service; or
(b) the
day that is 7 days, or such other period as is specified in the Residential
Care Subsidy Principles, before the day on which the person *enters the
residential care service;
and ending on the day of entry.
42‑4
Accreditation requirement
(1) On or after the *accreditation day, a residential
care service meets its accreditation requirement at all times during which:
(a) there is in force an accreditation
of the service by an *accreditation
body; or
(b) there is in force a determination
under section 42‑5 that the service is taken, for the purposes of this
Division, to meet its accreditation requirement.
(2) The *accreditation day is:
(a) the day specified in the
Residential Care Subsidy Principles; or
(b) if no such day is specified in the
Residential Care Subsidy Principles—1 January 2001.
(3) Subject to subsection (6), a
residential care service meets its accreditation requirement at all times
during the application period if the approved provider conducting the service
had, before the start of the application period, applied to an *accreditation body
for accreditation of the service.
(4) The application period is
the period starting:
(a) on the day specified in the
Residential Care Subsidy Principles; or
(b) if no such day is specified in the
Residential Care Subsidy Principles—1 January 2000;
and finishing at the end of the day before the *accreditation day.
(5) The Residential Care Subsidy Principles
may specify a day, occurring before the *accreditation day, on and after which all
residential care services must comply with standards, or other requirements,
set out in those Principles in order to meet their *accreditation requirements.
(6) A residential care service does not meet
its accreditation requirement on a particular day if:
(a) the day is a day specified in the
Residential Care Subsidy Principles as mentioned in subsection (5), or a
later day; and
(b) there is in force a determination
by an *accreditation
body that the service does not comply with the standards specified in respect
of that specified day.
42‑5
Determinations allowing for exceptional circumstances
(1) The
Secretary may determine, in accordance with the Residential Care Subsidy
Principles, that a residential care service is taken, for the purposes of this
Division, to meet its *accreditation requirement. However, the Secretary must
first be satisfied that exceptional circumstances apply to the service.
Note: Refusals to make determinations are reviewable
under Part 6.1.
(2) The following are examples of the matters
that the Residential Care Subsidy Principles may require the Secretary to take
into account:
(a) the reasons for a residential care
service not meeting the standards required for accreditation;
(b) the action that the approved
provider conducting a residential care service must take for the service to
meet those standards;
(c) the impact of a residential care
service not meeting those standards on the residential care, accommodation and
other services provided through the service to care recipients.
(3) The
Secretary must not make a determination if:
(a) there is an immediate or severe
risk to the safety or well‑being of care recipients to whom residential
care is being provided through the residential care service; or
(b) the approved provider has not
applied for accreditation of the service; or
(c) a determination under this section
has previously been made in relation to the service and the service has
not subsequently met its *accreditation requirement as set out in section 42‑4;
or
(d) any circumstances specified in the
Residential Care Subsidy Principles for the purposes of this paragraph apply.
(4) A determination ceases to be in force on
the earlier of:
(a) the end of 6 months, or such
shorter period as is specified in the determination, after the determination is
made; or
(b) the
occurrence of a specified event, if the determination so provides.
Note: Determinations specifying periods or events
are reviewable under Part 6.1.
(5) If the Secretary needs further
information to determine the application, the Secretary may give to the
applicant a notice requesting the applicant to give the further information
within 28 days after receiving the notice.
(6) The
application is taken to be withdrawn if the applicant does not give the further
information within 28 days.
Note: The period for giving the further information
can be extended—see section 96‑7.
(7) The notice must contain a statement
setting out the effect of subsection (6).
(8) The Secretary must notify the approved
provider, in writing, of the Secretary’s decision on whether to make the determination.
If the Secretary makes the determination, the notice must inform the approved
provider of:
(a) the period at the end of which;
and
(b) any event on the occurrence of
which;
the determination will cease to be in force.
(9) A notice
under subsection (8) must be given to the approved provider:
(a) within 28 days after receiving the
application; or
(b) if the Secretary has requested
further information under subsection (5)—within 28 days after receiving
the information.
42‑6
Revocation of determinations
(1) The Secretary must revoke a determination
under section 42‑5 if satisfied that:
(a) the exceptional circumstances that
applied to the residential care service in question at the time the
determination was made no longer apply; or
(b) circumstances
have changed such that one or more of the circumstances referred to in
subsection 42‑5(3) now applies.
Note: Revocations of determinations are reviewable
under Part 6.1.
(2) The Secretary must, in writing, notify
the approved provider conducting the service of the Secretary’s decision to
revoke the determination. The notice must be given within 7 days after the
decision is made.
42‑7
Exceeding the number of places for which there is an allocation
(1) For the purposes of a person’s
eligibility for *residential
care subsidy, residential care provided to a particular care recipient on a
particular day is excluded if:
(a) the number of care recipients
provided with residential care by the approved provider during that day exceeds
the number of *places
included in the approved provider’s allocation of places for residential care
subsidy; and
(b) the Secretary decides, in
accordance with subsection (2), that the residential care provided to that
particular care recipient on that day is to be excluded.
(2) In
deciding under paragraph (1)(b) which residential care is to be excluded,
the Secretary must:
(a) make the number of exclusions
necessary to ensure that the number of *places for which *residential care subsidy will be payable
does not exceed the number of places included in the approved provider’s
allocation of places for residential care subsidy; and
(b) exclude the residential care in
the reverse order in which the care recipients *entered the residential care service for
the provision of residential care.
42‑8
Notice of refusal to pay residential care subsidy
If:
(a) an approved provider has claimed *residential care
subsidy in respect of a person; and
(b) the approved provider is not
eligible for residential care subsidy in respect of that person;
the Secretary must notify the approved provider, in
writing, accordingly.
Division 43—How is residential care subsidy paid?
43‑1
Payment of residential care subsidy
(1) Residential care subsidy is payable by
the Commonwealth to an approved provider in respect of each *payment period
(see section 43‑2) during which the approved provider is eligible
under section 42‑1. However, it is not payable in respect of any
days during that period on which the approved provider is not eligible.
(2) Residential care subsidy is separately
payable by the Commonwealth in respect of each residential care service through
which the approved provider provides residential care.
(3) The Secretary may, in accordance with the
Residential Care Subsidy Principles, deduct from the amount of residential care
subsidy otherwise payable in respect of a *payment period such of the following
amounts as apply to the residential care service in question:
(a) deductions for fees (see section 43‑5);
(b) *capital repayment deductions (see section 43‑6);
(c) deductions for additional
recurrent funding (see section 43‑7);
(d) non‑compliance deductions
(see section 43‑8).
43‑2
Meaning of payment period
A payment
period is:
(a) a calendar month; or
(b) such other period as is set out in
the Residential Care Subsidy Principles.
43‑3
Advances
(1) Subject to subsection 43‑4(2), *residential care
subsidy is payable by the Commonwealth in advance, in respect of a *payment period, at
such times as the Secretary thinks fit.
(2) The Secretary must work out the amount of
an advance to be paid to an approved provider in respect of the first *payment period or
the second payment period for a residential care service by estimating the
amount of *residential
care subsidy that will be payable for the days in that period.
(3) The Secretary must work out the amount of
an advance to be paid to an approved provider in respect of subsequent *payment periods
for a residential care service by:
(a) estimating the amount of *residential care
subsidy that will be payable (taking into account any deductions under
subsection 43‑1(3)) for the days in the period; and
(b) increasing or reducing that amount
to make any adjustments that the Secretary reasonably believes are necessary to
take account of likely underpayments or overpayments in respect of advances
previously paid under this section.
(4) The amounts of advances must be worked
out in accordance with any requirements set out in the Residential Care Subsidy
Principles.
(5) The
Secretary may, in deciding whether to reduce the amount of an advance under paragraph (3)(b),
take into account the likelihood of the Commonwealth’s right to recover a
particular overpayment being waived under section 95‑6.
Note: Subsection (5) allows the Secretary to
take account of waivers in respect of overpayments caused, for example, by some
cases of incorrect determinations of the *ordinary incomes of care recipients.
43‑4
Claims for residential care subsidy
(1) For the purpose of obtaining payment of *residential care
subsidy in respect of a residential care service through which an approved
provider provides residential care, the approved provider must, as soon as
practicable after the end of each *payment period, give to the Secretary:
(a) a claim, in the form approved by
the Secretary, for residential care subsidy that is payable in respect of the
residential care service for that payment period; and
(b) any information relating to the
claim that is stated in the form to be required, or that the Secretary requests;
and
(c) copies of any documents relating
to the claim, or to the payment of *residential care subsidy, that are stated in the form to be
required, or that the Secretary requests.
(2) An advance
of *residential
care subsidy is not payable in respect of a *payment period for the residential care
service if the approved provider has not given to the Secretary under subsection (1)
a claim relating to the second last preceding payment period for the service.
Example: An advance of subsidy is not payable for March if
the Secretary has not been given a claim for January of the same year (assuming
the *payment
periods are all calendar months—see section 43‑2).
(3) Subsection (2) does not apply to the
first *payment
period or the second payment period for a residential care service.
(4) If all the places in a residential care
service are transferred from one person to another, subsection (2) does
not apply to the first 2 *payment periods for the residential care service that occur
after the transfer took effect.
(5) If:
(a) apart from this subsection, the
operation of paragraph (1)(c) would result in the acquisition of property
from a person otherwise than on just terms; and
(b) the
acquisition would be invalid because of paragraph 51(xxxi) of the
Constitution;
the Commonwealth is liable to pay compensation of a
reasonable amount to the person in respect of the acquisition.
43‑5
Deductions for fees
The Secretary may, on behalf of the
Commonwealth, enter into an agreement with an approved provider, under which:
(a) amounts equal to the fees payable
by the approved provider for applications made under this Act are to be
deducted from amounts of *residential care subsidy otherwise payable to the approved
provider in respect of the residential care service specified in the agreement;
and
(b) so far as amounts are so deducted,
the approved provider ceases to be liable to the Commonwealth for payment of
the fees.
43‑6
Capital repayment deductions
(1) Capital repayment deductions apply in
respect of a residential care service if:
(a) the approved provider is granted *extra service
status under Division 32 in respect of the service, or in respect of a *distinct part of
the service; and
(b) the Commonwealth has previously
made capital payments in respect of the service, whether or not the payments
were made to that approved provider; and
(c) the payments have not been
repaid to the Commonwealth.
The capital repayment deductions are applied in accordance
with an agreement entered into under this section.
(2) The Secretary may, on behalf of the
Commonwealth, enter into an agreement with the approved provider, under which:
(a) amounts equal to the capital
payments made in respect of the service are to be deducted from amounts of *residential care
subsidy otherwise payable to the approved provider in respect of the service;
and
(b) so
far as amounts are so deducted, the approved provider ceases to be liable to
the Commonwealth for repayment in respect of the capital payments.
Note: Entering into such an agreement may be a
condition of the granting of *extra service status (see paragraph 32‑8(5)(b)).
(3) However, only a proportion of the amounts
equal to the capital payments made in respect of the service are to be deducted
under the agreement if:
(a) *extra service status is granted only in
respect of a *distinct
part of the service; or
(b) some or all of the capital
payments were made more than 5 years before the first of the deductions is to
be made; or
(c) the circumstances (if any)
specified in the Residential Care Subsidy Principles apply.
The proportion is to be worked out in accordance with the
Residential Care Subsidy Principles.
(4) The agreement must provide for the
deductions to be completed within 3 years after the making of the first
deduction.
(5) In this section:
capital payment means:
(a) a *residential care grant; or
(b) financial assistance by way of a
grant under Part II, or Division 3 of Part III, of the Aged
or Disabled Persons Care Act 1954; or
(c) a grant of a Commonwealth benefit
under Part VAB or VAC of the National Health Act 1953; or
(d) a grant under the Aged or
Disabled Persons Hostels Act 1972; or
(e) a grant approved on or after 1 July 1989 under the program known as the Residential Aged Care Upgrading Program;
or
(f) capital funding approved on or
after 1 July 1989 under the program known as the Small Homes Capital
Funding Initiative; or
(g) a payment of a kind specified in
the Residential Care Subsidy Principles.
43‑7
Deductions for additional recurrent funding
(1) Deductions for additional recurrent
funding apply in respect of a residential care service that is *certified if an
amount of Commonwealth benefit is payable, to a person other than the approved
provider, under Part VAB or VAC of the National Health Act 1953 in
respect of:
(a) eligible premises (within the
meaning of Part VAB of that Act) that correspond to the residential care
service; or
(b) an eligible nursing home (within
the meaning of Part VAC of that Act) that corresponds to the residential
care service.
(2) The amount of the deductions for
additional recurrent funding in respect of a *payment period is the sum of all the
amounts of Commonwealth benefit referred to in subsection (1) that the
Commonwealth paid during that payment period.
43‑8
Non‑compliance deductions
(1) Subject to subsection (2), non‑compliance
deductions apply in respect of a residential care service if conditions, to
which the allocation of the *places included in the service are subject under section 14‑5
or 14‑6, relating to:
(a) the proportion of care to be
provided to *concessional
residents and *assisted
residents; or
(b) the
proportion of care to be provided to recipients of *respite care;
have not been met.
(2) The Residential Care Subsidy Principles
may specify circumstances in which non‑compliance deductions do not apply
even if the conditions referred to in subsection (1) have not been met.
(3) The Secretary must notify the approved
provider conducting a residential care service if, in respect of a *payment period,
non‑compliance deductions apply in respect of the residential care
service. The notice must be in writing and must set out why non‑compliance
deductions apply.
(4) The amount
of a non‑compliance deduction is the amount worked out in accordance with
the Residential Care Subsidy Principles.
Note: Non‑compliance deductions do not affect
the maximum fees payable by residents (see Division 58).
43‑9
Recovery of overpayments
This Division does not affect the
Commonwealth’s right to recover overpayments under Part 6.5.
Division 44—What is the amount of residential care subsidy?
44‑1
What this Division is about
Amounts of *residential care subsidy payable
under Division 43 to an approved provider are worked out under this
Division in respect of each residential care service. The amount in respect of
a residential care service is determined by adding together amounts worked out,
using the residential care subsidy calculator in section 44‑2, in
respect of individual care recipients in the service.
Table of Subdivisions
44‑A Working out the amount of residential
care subsidy
44‑B The basic subsidy amount
44‑C Primary supplements
44‑D Reductions in subsidy
44‑E The income test
44‑F Other supplements
Subdivision 44‑A—Working out the amount of residential care subsidy
44‑2
Amount of residential care subsidy
(1) The amount of *residential care subsidy payable to
an approved provider for a residential care service in respect of a *payment period is
the amount worked out by adding together the amounts of residential care subsidy
for each care recipient:
(a) to whom the approved provider
provided residential care through the residential care service during the
period; and
(b) in respect of whom the approved
provider was eligible for residential care subsidy during the period.
(2) This is
how to work out the amount of *residential care subsidy for a care recipient in respect of
the *payment
period.
Residential
care subsidy calculator
Step 1. Work out the basic
subsidy amount using Subdivision 44‑B.
Step 2. Add to this
amount the amounts of any primary supplements worked out using
Subdivision 44‑C.
Step 3. Subtract the
amounts of any reductions in subsidy worked out using Subdivision 44‑D.
Step 4. Subtract any
further reduction worked out by applying the income test under
Subdivision 44‑E.
Step 5. Add the amounts
of any other supplements worked out using Subdivision 44‑F.
The result is the amount of
residential care subsidy for the care recipient in respect of the
payment period.
Subdivision 44‑B—The basic subsidy amount
44‑3
The basic subsidy amount
(1) The basic subsidy amount for the care
recipient in respect of the *payment period is the sum of all the basic subsidy amounts
for the days during the period on which the care recipient was provided with
residential care through the residential care service in question.
(2) The basic subsidy amount for a day is the
amount determined by the Minister in writing.
(3) The Minister may determine different
amounts (including nil amounts) based on any one or more of the following:
(a) the *classification levels for care recipients
being provided with residential care;
(b) whether the residential care being
provided is *respite
care;
(c) the times at which a care
recipient *entered
a residential care service;
(d) the State or Territory in which a
residential care service is located;
(e) any other matters specified in the
Residential Care Subsidy Principles;
(f) any other matters determined by
the Minister.
44‑4
Effect on classification levels of long periods in hospital
(1) For the purposes only of working out the
basic subsidy amount, the care recipient’s *classification level for a particular day
is taken to be reduced, as provided in subsection (2) or (3), if, on that
day:
(a) the care recipient either:
(i) is on *extended hospital
leave; or
(ii) is on *leave from a
residential care service under subsection 42‑2(3A) and has been on leave
continuously for at least 30 days (including that day) first under subsection
42‑2(2) and later under subsection 42‑2(3A); and
(b) the care recipient’s
classification level at the time the care recipient started that period of
leave (his or her normal classification level) is not the *lowest applicable
classification level.
Note: Subsection 42‑2(3A) is about leave from
a residential care service for flexible care. Subsection 42‑2(2) is about
leave from such a service for attending a hospital for hospital treatment.
(2) If the care recipient’s normal
classification level is one level above the *lowest applicable classification level,
the care recipient’s classification level for that day is taken to be reduced
to the lowest applicable classification level.
(3) If the care recipient’s normal *classification
level is 2 or more levels above the *lowest applicable classification level, the care recipient’s
classification level for that day is taken to be reduced by 2 classification
levels.
Subdivision 44‑C—Primary supplements
44‑5
Primary supplements
The primary supplements for the care
recipient under step 2 of the residential care subsidy calculator in section 44‑2
are such of the following supplements as apply to the care recipient in respect
of the *payment
period:
(a) the concessional resident
supplement (see section 44‑6);
(aa) the charge exempt resident
supplement (see section 44‑8A);
(b) the respite supplement (see
section 44‑12);
(c) the oxygen supplement (see section 44‑13);
(d) the enteral feeding supplement
(see section 44‑14);
(e) any
additional primary supplements (see section 44‑16).
Note: Most of the supplements under this Subdivision
are taken into account in applying the income test under Subdivision 44‑E.
(The supplements under Subdivision 44‑F are not taken into account
in applying the income test.)
44‑6
The concessional resident supplement
(1) The concessional resident supplement for
the care recipient in respect of the *payment period is the sum of all the concessional
resident supplements for the days during the period on which:
(a) the care recipient was provided
with residential care (other than *respite care) through the residential care service in
question; and
(b) the care recipient was eligible
for a *concessional
resident supplement.
(2) The care recipient is eligible for a
concessional resident supplement on a particular day if, on that day:
(a) subject to subsection (3),
the care recipient’s *classification
level is not the *lowest
applicable classification level; and
(b) the care recipient is a *concessional
resident or an *assisted
resident; and
(c) the residential care service is *certified; and
(d) the residential care provided to
the care recipient is not provided on an extra service basis for the purposes
of Division 36.
However, the care recipient must have *entered the
residential care service after the residential care service was certified.
(3) Paragraph (2)(a) is not to be taken
to affect a care recipient’s eligibility for concessional resident supplement
on a particular day if, on that day, the care recipient’s classification level
is the *lowest
applicable classification level only because of the operation of section 44‑4
(which deals with long periods in hospital or in hospital and *flexible care).
(4) The concessional resident supplement for
a particular day is the amount determined by the Minister in writing.
(5) Subject to subsection (6), the
Minister may determine different amounts (including nil amounts) based on any
one or more of the following:
(a) the amount of an *accommodation bond
paid by, or an *accommodation
charge charged to, a care recipient for *entry to a residential care service;
(b) the value of assets held by a care
recipient;
(c) whether the residential care with
which a care recipient is provided is *respite care;
(d) any other matters specified in the
Residential Care Subsidy Principles.
(6) The Minister must determine lower amounts
in respect of *assisted
residents than the Minister determines in respect of *concessional residents.
44‑7
Meaning of concessional resident
If the applicable time is before 1 July 2005
(1) A person is a concessional resident
if the person is being provided with residential care (other than *respite care)
through a residential care service, the applicable time under subsection (2)
is before 1 July 2005 and, at the applicable time:
(a) the person was receiving an *income support
payment; and
(b) the person had not been a *homeowner for 2
years or more, or owned a home that was occupied by:
(i) the *partner or a *dependent child of
the person; or
(ii) a carer of the person
who had occupied the home for the past 2 years and, at the entry time, was
eligible to receive an income support payment; or
(iii) a *close relation of
the person who had occupied the home for the past 5 years and, at the entry
time, was eligible to receive an income support payment; and
(c) the value of the person’s assets
was less than:
(i) the amount obtained by
rounding to the nearest $500.00 (rounding $250.00 upwards) an amount equal to
2.5 times the *basic
age pension amount at the time in question; or
(ii) such
other amount as is specified in, or worked out in accordance with, the
Residential Care Subsidy Principles.
Note: A *concessional resident cannot be required to pay an *accommodation bond
or an *accommodation
charge—see sections 57‑12 and 57A‑6.
If the applicable time is on or after 1 July 2005
(1A) A person is also a concessional
resident if the person is being provided with residential care (other
than *respite
care) through a residential care service, the applicable time under subsection (2)
is on or after 1 July 2005 and there is in force a determination covered
by subsection (1B) or (1C).
(1B) This subsection covers a determination,
made under section 44‑8AA before the person *entered the residential care
service, that the conditions in paragraphs (1)(a), (b) and (c) would have
been met for the person at the time specified in the determination if the
references in subparagraphs (1)(b)(ii) and (iii) to the entry time had
been references to the time specified in the determination.
(1C) This subsection covers a determination,
made under section 44‑8AA when or after the person *entered the
residential care service, that the conditions in paragraphs (1)(a), (b)
and (c) were met at the applicable time under subsection (2).
What is the applicable time?
(2) The applicable time is:
(a) if:
(i) the person had, within
28 days prior to *entry
to the residential care service, been provided with residential care through
another residential care service; and
(ii) the person had paid an
*accommodation
bond for entry to that other service;
the time that was, under this
subsection, the applicable time in respect of that other service; or
(b) in any other case—the time at
which the person entered the residential care service.
If there is financial hardship (whatever the applicable
time)
(3) A person is also a concessional
resident if a determination is in force under section 57‑14
or section 57A‑9 in respect of the person.
44‑8
Meaning of assisted resident
If the applicable time is before 1 July 2005
(1) A person is an assisted resident
if the person is being provided with residential care (other than *respite care)
through a residential care service, the applicable time under subsection (2)
is before 1 July 2005 and, at the applicable time:
(a) the person was receiving an *income support
payment; and
(b) the person had not been a *homeowner for 2
years or more, or owned a home that was occupied by:
(i) the *partner or a *dependent child of
the person; or
(ii) a carer of the person
who had occupied the home for the past 2 years and, at the entry time, was
eligible to receive an income support payment; or
(iii) a *close relation of
the person who had occupied the home for the past 5 years and, at the entry
time, was eligible to receive an income support payment; and
(c) the value of the person’s assets
was less than:
(i) the amount obtained by
rounding to the nearest $500.00 (rounding $250.00 upwards) an amount equal to 4
times the *basic
age pension amount at the time in question; or
(ii) such other amount as
is specified in, or worked out in accordance with, the Residential Care Subsidy
Principles;
but more than:
(iii) the amount obtained by
rounding to the nearest $500.00 (rounding $250.00 upwards) an amount equal to
2.5 times the *basic
age pension amount at the time in question; or
(iv) such
other amount as is specified in, or worked out in accordance with, the
Residential Care Subsidy Principles.
Note: An *assisted resident may be required to pay an *accommodation bond
or an *accommodation
charge.
If the applicable time is on or after 1 July 2005
(1A) A person is also an assisted resident
if the person is being provided with residential care (other than *respite care)
through a residential care service, the applicable time under subsection (2)
is on or after 1 July 2005 and there is in force a determination covered
by subsection (1B) or (1C).
(1B) This subsection covers a determination,
made under section 44‑8AA before the person *entered the residential care
service, that the conditions in paragraphs (1)(a), (b) and (c) would have
been met for the person at the time specified in the determination if the
references in subparagraphs (1)(b)(ii) and (iii) to the entry time had
been references to the time specified in the determination.
(1C) This subsection covers a determination,
made under section 44‑8AA when or after the person *entered the
residential care service, that the conditions in paragraphs (1)(a), (b)
and (c) were met at the applicable time under subsection (2).
What is the applicable time?
(2) The applicable time is:
(a) if:
(i) the person had, within
28 days prior to *entry
to the residential care service, been provided with residential care through
another residential care service; and
(ii) the person had paid an
*accommodation
bond for entry to that other service;
the time that was, under this
subsection, the applicable time in respect of that other service; or
(b) in any other case—the time at
which the person entered the residential care service.
44‑8AA
Determinations for sections 44‑7 and 44‑8
Making determinations
(1) The Secretary may make a determination
(the resident status determination) described in section 44‑7
or 44‑8 if:
(a) the person mentioned in that
section has applied, in a form approved by the Secretary, for the resident
status determination; and
(b) the Secretary has made a
determination (the asset value determination) under section 44‑8AB
of the value of the person’s assets at the time that is specified in the
resident status determination; and
(c) the Secretary is satisfied of the
matters relating to the person that are to be set out in the resident status
determination.
Note: The time specified in a determination covered
by subsection 44‑7(1C) or 44‑8(1C) is the applicable time under
subsection 44‑7(2) or 44‑8(2).
Giving notice of decision on resident status determination
(2) Within 14 days after deciding whether or
not to grant the application, the Secretary must notify the person in writing
of:
(a) the decision; and
(b) if the Secretary made the resident
status determination—the content of the determination.
When the resident status determination comes into force
(3) The resident status determination comes
into force on the day it is made or an earlier day stated in the determination
to be the day on which the determination comes into force.
(4) However, if the determination is made
after the person *enters
the residential care service mentioned in subsection 44‑7(1A) or 44‑8(1A),
the day stated must not be before the day the determination is made, unless the
Secretary is satisfied that exceptional circumstances justify the determination
coming into force on the day stated.
When the resident status determination ceases to be in
force
(5) The resident status determination ceases
to be in force when the asset value determination ceases to be in force, if:
(a) the person was not being provided
with residential care (other than *respite care) through a residential care service when the
resident status determination came into force; and
(b) the person has not been provided
with such care between:
(i) the time the resident
status determination came into force; and
(ii) the time the asset
value determination ceases to be in force.
Note: Subsections 44‑8AB(3) and (4) explain
how to work out when the asset value determination ceases to be in force.
(6) The Secretary may by written instrument
revoke the resident status determination if he or she ceases to be satisfied of
any of the matters relating to the person that are set out in the
determination. The determination ceases to be in force on a day specified in
the instrument (which may be before the instrument is made).
(7) Within 14 days after revoking the
resident status determination, the Secretary must give written notice of the
revocation and the day on which the determination ceases being in force to:
(a) the person; and
(b) each approved provider (if any)
who has provided the person with residential care (other than *respite care)
through a residential care service since the determination ceased to be in
force.
44‑8AB
Determination of value of person’s assets
Making determinations
(1) The Secretary must determine the value,
at the time specified in the determination, of a person’s assets in accordance
with section 44‑10, if the person:
(a) applies in the approved form for
the determination; and
(b) gives the Secretary sufficient
information to make the determination.
The time specified must be at or before the determination
is made.
Note: The determination may affect the maximum
amount of accommodation bond or charge for the person under section 57‑12
or 57A‑6, as well as whether the person is a concessional resident under
section 44‑7 or an assisted resident under section 44‑8.
Giving notice of the determination
(2) Within 14 days after making the
determination, the Secretary must give the person a copy of the determination.
When the determination is in force
(3) The determination is in force for the
period specified in, or worked out under, the determination.
(4) However, the Secretary may by written
instrument revoke the determination if he or she is satisfied that it is
incorrect. The determination ceases to be in force on a day specified in the
instrument (which may be before the instrument is made).
(5) Within 14 days after revoking the
determination, the Secretary must give written notice of the revocation and the
day the determination ceases being in force to:
(a) the person; and
(b) if the Secretary is aware that the
person has given an approved provider a copy of the determination—the approved
provider.
44‑8A
The charge exempt resident supplement
(1) The charge exempt resident supplement for
the care recipient in respect of the *payment period is the sum of all the charge exempt
resident supplements for the days during the period on which:
(a) the care recipient was provided
with residential care (other than *respite care) through the residential care service in
question; and
(b) the care recipient was eligible
for a charge exempt resident supplement.
(2) The care recipient is eligible for a
charge exempt resident supplement on a particular day (whether before or after
this section commences) if, on that day:
(a) the care recipient is a *charge exempt
resident; and
(b) the residential care service is *certified; and
(c) the residential care provided to
the care recipient is not provided on an extra service basis for the purposes
of Division 36.
(3) The charge exempt resident supplement for
a particular day is:
(a) $12.17; or
(b) such other amount as the Minister
determines in writing.
(4) The Minister may determine different
amounts (including nil amounts) under subsection (3) based on any one or
more of the following:
(a) the maximum rate of concessional
resident supplement;
(b) if the care recipient is an *assisted
resident—whether a reduced amount of concessional resident supplement is
payable in respect of the care recipient under subsection 44‑6(6);
(c) any other matters specified in the
Residential Care Subsidy Principles.
(5) In the circumstances specified in the
Residential Care Subsidy Principles, the Secretary may determine that an amount
of charge exempt resident supplement that would otherwise be payable for a
particular care recipient is not payable to the provider concerned.
(6) In that case, the Secretary must:
(a) use his or her best endeavours to
find the care recipient or, if the care recipient is deceased, the care
recipient’s legal representatives or such other person as is specified in the
Residential Care Subsidy Principles; and
(b) if the appropriate person can be
found under paragraph (a)—pay the amount directly to the appropriate
person or to the care recipient’s estate, as the case requires.
If no appropriate person can be found under paragraph (a),
the Secretary need not take any further action in relation to the amount.
44‑8B
Meaning of charge exempt resident
A person is a charge exempt
resident if:
(a) at any time on 30 September
1997, the person occupied an approved nursing home bed in a nursing home
approved under section 40AA of the National Health Act 1953 (as
then in force); and
(b) the person is receiving
residential care, having *entered an *aged care service at any time after 30 September 1997 (whether before or after this section commences); and
(c) apart from this section, the
person would have been eligible to pay an *accommodation charge for the entry.
Note 1: A *concessional resident cannot be a charge exempt
resident, because concessional residents cannot be required to pay an
accommodation charge and therefore do not meet the test in paragraph (c).
Note 2: A charge exempt resident cannot be required to
pay an accommodation charge: see paragraph 57A‑2(1)(b).
44‑9
Person taken not to be a concessional resident or an assisted resident if asset
information not provided
If:
(a) a care recipient is provided with
residential care through a residential care service at a particular time; and
(b) at that time, the care recipient
has not given to the approved provider conducting the residential care service
sufficient information about the care recipient’s assets for the approved
provider to determine whether the care recipient is an *assisted resident or a *concessional
resident;
the person is taken, for the purposes of this Act, not to
be a concessional resident under subsection 44‑7(1) or an assisted
resident under subsection 44‑8(1) at that time.
Note: This section does not affect whether a person
is a concessional resident under subsection 44‑7(1A) or an assisted
resident under subsection 44‑8(1A).
44‑10
How to work out the value of a person’s assets
(1) Subject to this section, the value of a
person’s assets for the purposes of section 44‑7, 44‑8 or 44‑8AB
is to be worked out in accordance with the Residential Care Subsidy Principles.
(1A) If a person who is receiving an *income support
supplement or a *service
pension has an income stream (within the meaning of the Veterans’
Entitlements Act 1986) that was purchased on or after 20 September 2007, the value of the person’s assets:
(a) is taken to include the amount
that the Secretary determines to be the value of that income stream that would
be included in the value of the person’s assets if Subdivision A of
Division 11 of Part IIIB of the Veterans’ Entitlements Act 1986 applied
for the purposes of this Act; and
(b) is taken to exclude the amount
that the Secretary determines to be the value of that income stream that would
not be included in the value of the person’s assets if Subdivision A of
Division 11 of Part IIIB of the Veterans’ Entitlements Act 1986 applied
for the purposes of this Act.
(1B) If a person who is not receiving an *income support
supplement or a *service
pension has an income stream (within the meaning of the Social Security Act
1991) that was purchased on or after 20 September 2007, the value of the person’s assets:
(a) is taken to include the amount
that the Secretary determines to be the value of that income stream that would
be included in the value of the person’s assets if Division 1 of
Part 3.12 of the Social Security Act 1991 applied for the purposes
of this Act; and
(b) is taken to exclude the amount
that the Secretary determines to be the value of that income stream that would
not be included in the value of the person’s assets if Division 1 of
Part 3.12 of the Social Security Act 1991 applied for the purposes
of this Act.
(1C) The value of a person’s assets is taken to
include the amount that the Secretary determines to be the amount:
(a) if the person is receiving an *income support
supplement or a *service
pension—that would be included in the value of the person’s assets if
Subdivisions B and BB of Division 11 of Part IIIB of the Veterans’
Entitlements Act 1986 applied for the purposes of this Act; and
(b) otherwise—that would be included
in the value of the person’s assets if Division 2 of Part 3.12 of the
Social Security Act 1991 applied for the purposes of this Act.
Note: Subdivisions B and BB of Division 11 of
Part IIIB of the Veterans’ Entitlements Act 1986, and
Division 2 of Part 3.12 of the Social Security Act 1991, deal
with disposal of assets.
(2) In working out the value at a particular
time of the assets of a person who is or was a *homeowner then, disregard the value of a
home that, at the time, was occupied by:
(a) the *partner or a *dependent child of the person; or
(b) a carer of the person who:
(i) had occupied the home
for the past 2 years; and
(ii) was eligible to
receive an *income
support payment at the time; or
(c) a *close relation of the person who:
(i) had occupied the home
for the past 5 years; and
(ii) was eligible to
receive an *income
support payment at the time.
(3) The value of the assets of a person who
is a *member
of a couple is taken to be 50% of the sum of:
(a) the value of the person’s assets;
and
(b) the value of the assets of the
person’s *partner.
(4) A reference to the value of the assets of
a person is, in relation to an asset owned by the person jointly or in common
with one or more other people, a reference to the value of the person’s
interest in the asset.
44‑11
Definitions relating to concessional residents and assisted residents
(1) In sections 44‑7, 44‑8,
and 44‑10 and in this section:
close relation, in relation to a person,
means:
(a) the father or mother of the
person; or
(b) a sister, brother, child or
grandchild of the person; or
(c) a person included in a class of
persons specified in the Residential Care Subsidy Principles.
dependent child has the meaning given by subsection (2).
homeowner has the meaning given by the
Residential Care Subsidy Principles.
member of a couple means:
(a) a person who is legally married to
another person, and is not living separately and apart from the person on a
permanent basis; or
(b) a person who lives with another
person in a marriage‑like relationship, although not legally married to
the other person.
partner, in relation to a person, means the
other *member
of a couple of which the person is also a member.
(2) A young person (see subsection (3))
is a dependent child of a person (in this subsection referred to
as the adult) if:
(a) the adult:
(i) is legally responsible
(whether alone or jointly with another person) for the day‑to‑day
care, welfare and development of the young person; or
(ii) is under a legal
obligation to provide financial support in respect of the young person; and
(aa) in a subparagraph (a)(ii)
case—the adult is not included in a class of people specified for the purposes
of this paragraph in the Residential Care Subsidy Principles; and
(b) the young person is not:
(i) in full‑time
employment; or
(ii) in receipt of a social
security pension (within the meaning of the Social Security Act 1991) or
a social security benefit (within the meaning of that Act); or
(iii) included in a class of
people specified in the Residential Care Subsidy Principles.
(3) A reference in subsection (2) to a young
person is a reference to any of the following:
(a) a person under 16 years of age;
(b) a person who:
(i) has reached 16 years
of age, but is under 25 years of age; and
(ii) is receiving full‑time
education at a school, college or university;
(c) a person included in a class of
people specified in the Residential Care Subsidy Principles.
(4) The reference in paragraph (2)(a) to
care does not have the meaning given in the Dictionary in Schedule 1.
44‑12
The respite supplement
(1) The respite supplement for the care
recipient in respect of the *payment period is the sum of all the respite supplements
for the days during the period on which:
(a) the care recipient was provided
with residential care through the residential care service in question; and
(b) the care recipient was eligible
for a respite supplement.
(2) The care recipient is eligible for a
respite supplement on a particular day if, on that day:
(a) the residential care provided
through the residential care service:
(i) was provided as *respite care; and
(ii) meets any requirements
specified in the Residential Care Subsidy Principles; and
(b) the care recipient’s approval
under Part 2.2 was not limited so as to preclude the provision of respite
care; and
(c) the number of days on which the
care recipient had previously been provided with residential care as respite
care during the financial year in which the day occurred does not equal or
exceed the number specified, for the purposes of this paragraph, in the
Residential Care Subsidy Principles; and
(d) immediately before that day, the
number of successive days on which the care recipient had been provided with
residential care as respite care does not equal the number specified, for the
purposes of this paragraph, in the Residential Care Subsidy Principles.
(3) The respite supplement for a particular
day is the amount determined by the Minister in writing.
(4) The
Minister may determine different amounts (including nil amounts) based on any
one or more of the following:
(a) the different levels of care at
which a care recipient may be assessed under section 22‑4;
(b) whether a residential care service
is *certified;
(c) whether a care recipient *enters a
residential care service, for provision of *respite care, before or after the service
is certified;
(d) whether a care recipient continues
to be provided with residential care through a residential care service
immediately after ceasing to be provided with *respite care through that service;
(e) whether a care recipient is a *member of a
couple;
(f) any other matters specified in
the Residential Care Subsidy Principles.
44‑13
The oxygen supplement
(1) The oxygen supplement for the care
recipient in respect of the *payment period is the sum of all the oxygen supplements for
the days during the period on which:
(a) the care recipient was provided
with residential care through the residential care service in question; and
(b) a determination was in force under
subsection (2) in relation to the care recipient; and
(c) the residential care provided
through the residential care service included administering oxygen to the care
recipient in circumstances of a kind specified in the Residential Care Subsidy
Principles.
(2) The
Secretary may determine that a care recipient is eligible for an oxygen
supplement.
Note: Refusals to make determinations are reviewable
under Part 6.1.
(3) In deciding whether to make a
determination, the Secretary must comply with any requirements, and have regard
to any matters, specified in the Residential Care Subsidy Principles.
(4) An approved provider that is providing,
or is to provide, residential care to a care recipient may apply to the
Secretary, in the form approved by the Secretary, for a determination under subsection (2)
in respect of the care recipient.
(5) The Secretary must notify the applicant,
in writing, of the Secretary’s decision on whether to make the determination.
The notice must be given within 28 days after the decision is made.
(6) The oxygen supplement for a particular
day is the amount:
(a) determined by the Minister in
writing; or
(b) worked out in accordance with a
method determined by the Minister in writing.
(7) The Minister may determine different
amounts (including nil amounts) based on any matters determined by the Minister
in writing.
44‑14
The enteral feeding supplement
(1) The enteral feeding supplement for the
care recipient in respect of the *payment period is the sum of all the enteral feeding
supplements for the days during the period on which:
(a) the care recipient was provided
with residential care through the residential care service in question; and
(b) a determination was in force under
subsection (2) in relation to the care recipient; and
(c) the residential care provided
through the residential care service included providing enteral feeding to the
care recipient in circumstances of a kind specified in the Residential Care
Subsidy Principles.
(2) The
Secretary may determine that a care recipient is eligible for an enteral
feeding supplement.
Note: Refusals to make determinations are reviewable
under Part 6.1.
(3) In deciding whether to make a
determination, the Secretary must comply with any requirements, and have regard
to any matters, specified in the Residential Care Subsidy Principles.
(4) An approved provider that is providing,
or is to provide, residential care to a care recipient may apply to the
Secretary, in the form approved by the Secretary, for a determination under subsection (2)
in respect of the care recipient.
(5) The Secretary must notify the applicant,
in writing, of the Secretary’s decision on whether to make the determination.
The notice must be given within 28 days after the decision is made.
(6) The
enteral feeding supplement for a particular day is the amount:
(a) determined by the Minister in
writing; or
(b) worked out in accordance with a
method determined by the Minister in writing.
(7) The Minister may determine different
amounts (including nil amounts) based on any matters determined by the Minister
in writing.
44‑15
Requests for further information
(1) If the Secretary needs further
information to determine an application under section 44‑13 or 44‑14,
the Secretary may give to the applicant a notice requesting the further
information:
(a) within the period specified in the
notice; or
(b) if no period is specified in the
notice—within 14 days after receiving the notice.
(2) The
application is taken to be withdrawn if the applicant does not give the further
information within whichever of those periods applies.
Note: The period for giving further information can
be extended—see section 96‑7.
(3) The notice must contain a statement
setting out the effect of subsection (2).
44‑16
Additional primary supplements
(1) The Residential Care Subsidy Principles
may provide for additional primary supplements.
(2) The Residential Care Subsidy Principles
may specify, in respect of each such supplement, the circumstances in which the
supplement will apply to a care recipient in respect of a *payment period.
(3) The Minister may determine in writing, in
respect of each such supplement, the amount of the supplement, or the way in
which the amount of the supplement is to be worked out.
Subdivision 44‑D—Reductions in subsidy
44‑17
Reductions in subsidy
The reductions in subsidy for the care
recipient under step 3 of the residential care subsidy calculator in section 44‑2
are such of the following reductions as apply to the care recipient in respect
of the *payment
period:
(a) the extra service reduction (see
section 44‑18);
(b) the adjusted subsidy reduction
(see section 44‑19);
(c) the compensation payment reduction
(see section 44‑20).
44‑18
The extra service reduction
(1) The extra service reduction for the care
recipient in respect of the *payment period is the sum of all the extra service
reductions for days during the period on which:
(a) the care recipient was provided
with residential care through the residential care service in question; and
(b) the care is provided in respect of
a place that is an *extra
service place (see Division 31), or the care is required, under a
condition of a kind specified in paragraph 32‑8(3)(b), to be provided on
an extra service basis.
(2) The extra service reduction for a
particular day is an amount equal to 25% of the daily rate of the extra service
fee in force for the *place
under Division 35.
44‑19
The adjusted subsidy reduction
(1) The adjusted subsidy reduction for the
care recipient in respect of the *payment period is the sum of all the adjusted subsidy
reductions for days during the period on which:
(a) the care recipient is provided
with residential care through the residential care service in question; and
(b) the residential care service, or
the part of the residential care service through which the care is provided, is
determined by the Minister in writing to be an adjusted subsidy residential
care service.
(2) The adjusted subsidy reduction for a
particular day is the amount determined by the Minister in writing.
(3) The Minister may determine different
amounts based on any matters determined by the Minister in writing.
44‑20
The compensation payment reduction
(1) The compensation payment reduction for
the care recipient in respect of the *payment period is the sum of all compensation
payment reductions for days during the period:
(a) on which the care recipient is
provided with residential care through the residential care service in
question; and
(b) that are covered by a compensation
entitlement.
(2) For the purposes of this section, a day
is covered by a compensation entitlement if:
(a) the care recipient is entitled to
compensation under a judgment, settlement or reimbursement arrangement; and
(b) the compensation takes into
account the cost of providing residential care to the care recipient on that
day; and
(c) the application of compensation
payment reductions to the care recipient for preceding days has not resulted in
reductions in subsidy that, in total, exceed or equal the part of the
compensation that relates, or is to be treated under subsection (5) or (6)
as relating, to future costs of providing residential care.
(3) The compensation payment reduction for a
particular day is an amount equal to the amount of *residential care subsidy that would be
payable for the care recipient in respect of the *payment period if:
(a) the care recipient was provided
with residential care on that day only; and
(b) this section and Subdivision 44‑F
did not apply.
(4) However, if:
(a) the compensation payment reduction
arises from a judgment or settlement that fixes the amount of compensation on
the basis that liability should be apportioned between the care recipient and
the compensation payer; and
(b) as a result, the amount of
compensation is less than it would have been if liability had not been so
apportioned; and
(c) the compensation is not paid in a
lump sum;
the amount of the compensation payment reduction under subsection (3)
is reduced by the proportion corresponding to the proportion of liability that
is apportioned to the care recipient by the judgment or settlement.
(5) If a care recipient is entitled to
compensation under a judgment or settlement that does not take into account the
future costs of providing residential care to the care recipient, the Secretary
may, in accordance with the Residential Care Subsidy Principles, determine:
(a) that, for the purposes of this
section, the judgment or settlement is to be treated as having taken into
account the cost of providing that residential care; and
(b) the
part of the compensation that, for the purposes of this section, is to be
treated as relating to the future costs of providing residential care.
Note: Determinations are reviewable under Part 6.1.
(6) If:
(a) a care recipient is entitled to
compensation under a settlement; and
(b) the settlement takes into account
the future costs of providing residential care to the recipient; and
(c) the Secretary is satisfied that
the settlement does not adequately take into account the future costs of
providing residential care to the care recipient;
the Secretary may, in
accordance with the Residential Care Subsidy Principles, determine the part of
the compensation that, for the purposes of this section, is to be treated as
relating to the future costs of providing residential care.
Note: Determinations are reviewable under Part 6.1.
(7) A determination under subsection (5)
or (6) must be in writing and notice of it must be given to the care recipient.
(8) A reference in this section to the costs
of providing residential care does not include a reference to an amount that is
or may be payable as an *accommodation bond, except to the extent provided in the
Residential Care Subsidy Principles.
(9) In this
section, the following terms have the same meanings as in the Health and
Other Services (Compensation) Act 1995:
|
compensation
|
|
compensation payer
|
|
judgment
|
|
reimbursement arrangement
|
|
settlement.
|
Subdivision 44‑E—The income test
44‑21
The income test
(1) The income test for the care recipient
under step 4 of the residential care subsidy calculator in section 44‑2
is applied by working out the amount (if any) of the income tested reduction in
respect of the *payment
period.
(2) The income tested reduction in respect of
the *payment
period is the sum of all the *daily income tested reductions for days during the period
on which the care recipient is provided with residential care through the
residential care service in question.
(3) The *daily income
tested reduction for a particular day is worked out as follows:
Income tested reduction calculator
Step 1. Work out the care
recipient’s *ordinary
income on a yearly basis (see section 44‑24).
Step 2. Work out the care
recipient’s *ordinary
income free area (see section 44‑26).
Step 3. If the care
recipient’s *ordinary
income does not exceed the care recipient’s *ordinary income free area, the income
tested reduction is zero.
Step 4. If
the care recipient’s *ordinary
income exceeds the care recipient’s *ordinary income free area, the smallest of the following
amounts (rounded down to the nearest cent) is the *daily income tested reduction:
(a) the amount
equal to 25% of that excess (worked out on a per day basis);
(b) the amount
worked out by subtracting the care recipient’s *standard resident contribution from an
amount equal to 3 times the *standard pensioner contribution;
(c) the amount
worked out in respect of the *payment period using steps 1, 2 and 3 of the residential
care subsidy calculator in section 44‑2, less the amount of any
charge exempt resident supplement under section 44‑8A (worked out on
a per day basis).
Note: In
some circumstances, a different *daily income tested reduction will apply under section 44‑22
or 44‑23.
44‑22
Daily income tested reduction taken to be zero in some circumstances
(1) The *daily income tested reduction in respect
of the care recipient is taken to be zero for each day, during the *payment period, on
which one or more of the following applies:
(a) the care recipient was provided
with *respite
care;
(b) a determination was in force under
subsection (2) in relation to the care recipient;
(c) the care recipient was included in
a class of people specified in the Residential Care Subsidy Principles.
(2) The
Secretary may, in accordance with the Residential Care Subsidy Principles,
determine that the *daily
income tested reduction in respect of the care recipient is to be taken to be
zero.
Note: Refusals to make determinations are reviewable
under Part 6.1.
(3) The
determination ceases to be in force at the end of the period (if any) specified
in the determination.
Note: Decisions specifying periods are reviewable
under Part 6.1.
(4) In deciding whether to make a
determination, the Secretary must have regard to the matters specified in the
Residential Care Subsidy Principles.
(5) Application may be made to the Secretary,
in the form approved by the Secretary, for a determination under subsection (2)
in respect of a care recipient. The application may be made by:
(a) the care recipient; or
(b) an approved provider that is
providing, or is to provide, residential care to the care recipient.
(6) The Secretary must notify the care
recipient and the approved provider, in writing, of the Secretary’s decision on
whether to make the determination. The notice must be given:
(a) if
an application for a determination was made under subsection (5)—within 28
days after the application was made, or, if the Secretary requested further
information in relation to the application, within 28 days after receiving the
information; or
(b) if such an application was not
made—within 28 days after the decision is made.
44‑23
Effect on daily income tested reduction of failure to give requested
information
(1) If the care recipient fails to give to
the Secretary information, within the time specified in a notice under
subsection 44‑24(5), that the Secretary requests for the purpose of
determining the care recipient’s *ordinary income under section 44‑24, the *daily income
tested reduction in respect of the care recipient, for each day during the
period:
(a) starting on the day on which the
care recipient failed to give the information; and
(b) finishing at the end of the day
before the day on which the care recipient gives to the Secretary the
information requested;
is the amount worked out under subsection (4) of this
section.
(2) If the care recipient elects, by a
written notice given to the Secretary, not to give any information to the
Secretary for the purpose of determining the care recipient’s *ordinary income
under section 44‑24, the *daily income tested reduction in respect of the care
recipient, for each day during the period:
(a) starting on the day on which the
care recipient made the election; and
(b) finishing at the end of, the day
before the day on which the care recipient gives to the Secretary a written
notice revoking the election;
is the amount worked out under subsection (4) of this
section.
(3) The Secretary must not, while the
election is in force, request the care recipient to give information for the
purpose of determining the care recipient’s *ordinary income under section 44‑24.
(4) For the purpose of subsections (1)
and (2), the *daily
income tested reduction in respect of the care recipient is whichever is the
lesser of the following amounts (rounded down to the nearest cent):
(a) the amount worked out by
subtracting the care recipient’s *standard resident contribution from an amount equal to 3 times
the *standard
pensioner contribution;
(b) the
amount worked out in respect of the *payment period using steps 1, 2 and 3 of the residential
care subsidy calculator in section 44‑2 (worked out on a per day
basis).
Note: Care recipients are not obliged to give
information to the Secretary. However, if they do not, the amount of
residential care subsidy paid for their care may be reduced, and the amount of
resident fees that they are liable to pay may therefore increase (see Division 58).
44‑24
The care recipient’s ordinary income
(1) If the
care recipient is not entitled to a *service pension or an *income support supplement, his or her *ordinary income is
the amount the Secretary determines to be the amount that would be worked out
as that ordinary income for the purpose of applying Module E of Pension Rate
Calculator A at the end of section 1064 of the Social Security Act 1991.
Note: Determinations are reviewable under Part 6.1.
(2) If the
care recipient is entitled to a *service pension, his or her *ordinary income is the amount the
Secretary determines to be the amount that would be worked out as that ordinary
income for the purpose of applying Module E of the Rate Calculator in Schedule 6
to the Veterans’ Entitlements Act 1986.
Note: Determinations are reviewable under Part 6.1.
(3) If the
care recipient is entitled to an *income support supplement, his or her *ordinary income is
the amount the Secretary determines to be the amount that would be worked out
as the care recipient’s adjusted income for the purpose of applying Module E of
the Rate Calculator in Schedule 6 to the Veterans’ Entitlements Act
1986.
Note: Determinations are reviewable under Part 6.1.
(4) The Residential Care Subsidy Principles
may specify other amounts that are to be taken to be excluded from
determinations under this section of the *ordinary incomes of specified kinds of
care recipients.
(5) The Secretary may, by notice in writing,
request one or more of the following:
(a) the care recipient;
(b) a person acting for or on behalf
of the care recipient;
(c) any other person whom the
Secretary believes has information that would assist the Secretary in making
the determination;
to give to the Secretary
such information as is specified in the notice for the purposes of making the
determination.
Note: A person is not obliged to provide the
information.
(6) A determination of a care recipient’s *ordinary income
takes effect on the day specified by the Secretary. The day may be earlier than
the day on which the determination is made.
(7) The Secretary must notify, in writing,
the care recipient of any determination of the care recipient’s *ordinary income.
(8) The notice
must include such matters as are specified in the Residential Care Subsidy
Principles.
Note: The Secretary can delegate functions related
to determinations of *ordinary
income to the Secretary to the Department of Social Security and to the
Secretary to the Department of Veterans’ Affairs.
44‑25
Ordinary income of war widows and war widowers
If:
(a) either:
(i) a person is receiving
a pension under Part II or IV of the Veterans’ Entitlements Act 1986 at
a rate determined under or by reference to subsection 30(1) of that Act; or
(ii) a person is receiving
a weekly amount mentioned in paragraph 234(1)(b) of the Military
Rehabilitation and Compensation Act 2004, or would be receiving such a
weekly amount if the person had not chosen to receive a lump sum under that
paragraph; and
(b) the person is also receiving an *income support
payment, the rate of which is reduced to take account of the pension or weekly
amount referred to in paragraph (a);
the person’s *ordinary income under section 44‑24 is taken to
be reduced by an amount equal to five‑thirds times the difference between:
(c) the rate that would have been the
rate of the income support payment if the person was not receiving the pension
or weekly amount referred to in paragraph (a) but was receiving an
additional amount of other income equal to the rate of that pension or weekly
amount; and
(d) the rate of the income support
payment.
44‑26
The care recipient’s ordinary income free area
(1) If the care recipient is not entitled to
a *service
pension or an *income
support supplement, his or her *ordinary income free area is the amount worked out by
applying points 1064‑E4 to 1064‑E9 of Pension Rate Calculator A at
the end of section 1064 of the Social Security Act 1991.
(2) If the care recipient is entitled to a *service pension,
his or her *ordinary
income free area is the amount worked out by applying points SCH6‑E5 and
SCH6‑E6 of the Rate Calculator in Schedule 6 to the Veterans’
Entitlements Act 1986.
(3) If the care recipient is entitled to an *income support
supplement, his or her *ordinary income free area is the amount worked out by
applying points SCH6‑E5 and SCH6‑E6 of the Rate Calculator in
Schedule 6 to the Veterans’ Entitlements Act 1986.
Subdivision 44‑F—Other supplements
44‑27
Other supplements
The other supplements for the care
recipient under step 5 of the residential care subsidy calculator in section 44‑2
are such of the following supplements as apply to the care recipient in respect
of the *payment
period:
(a) the pensioner supplement (see
section 44‑28);
(b) the viability supplement (see
section 44‑29);
(c) the
hardship supplement (see section 44‑30).
Note: The supplements under this Subdivision are not
taken into account in applying the income test under Subdivision 44‑E.
(The supplements under Subdivision 44‑C are taken into account in
applying the income test.)
44‑28
The pensioner supplement
(1) The pensioner supplement for the care
recipient in respect of the *payment period is the sum of all the pensioner supplements
for the days during the period on which:
(a) the care recipient was provided
with residential care through the residential care service in question; and
(b) the care recipient was eligible
for a pensioner supplement.
(2) Subject to subsections (3), (5) and
(6), the care recipient is eligible for a pensioner supplement on a particular
day if, on that day, the care recipient:
(a) was receiving an *income support
payment; or
(b) had a *dependent child; or
(c) was provided with *respite care; or
(d) was included in a class of people
specified in the Residential Care Subsidy Principles.
(3) The care recipient is not eligible for a
pensioner supplement on a particular day if:
(a) an *accommodation bond was paid, or agreed to
be paid, by the care recipient for *entry to the residential care service; and
(b) at the time of the care
recipient’s entry, that accommodation bond exceeded the amount obtained by
rounding to the nearest $500.00 (rounding $250.00 upwards) an amount equal to
10 times the *basic
age pension amount;
unless, on that day, the care recipient had a dependent child.
(4) For the purposes of subsection (3),
if the care recipient elects under subsection 57‑17(1) to pay an *accommodation bond
by periodic payments, the amount of the accommodation bond is taken to be what
would have been payable by the care recipient in accordance with Subdivision 57‑D
had the care recipient paid it as a lump sum.
(5) If the care recipient has failed to give
to the Secretary information that the Secretary requests for the purpose of
determining the care recipient’s *ordinary income under section 44‑24, the care
recipient is not eligible for a pensioner supplement for any of the days during
the period:
(a) starting on the day on which the
care recipient failed to give to the Secretary that information; and
(b) finishing at the end of the day
before the day on which the care recipient gave to the Secretary that
information.
(6) If the care recipient has elected not to
give any information to the Secretary for the purpose of determining the care
recipient’s *ordinary
income under section 44‑24, the care recipient is not eligible for a
pensioner supplement for any of the days during the period:
(a) starting on the day on which the
care recipient made the election; and
(b) finishing
at the end of the day before the day on which the care recipient gives to the
Secretary a written notice revoking the election.
Note: Care recipients are not obliged to give the
Secretary the information. They can choose not to give the information, but, in
addition to the effect this has on the income test (see section 44‑23),
a pensioner supplement will not apply.
(7) The pensioner supplement for a particular
day is the amount determined by the Minister in writing.
(8) The Minister may determine different
amounts (including nil amounts) based on any matters determined by the Minister
in writing.
44‑29
The viability supplement
(1) The viability supplement for the care
recipient in respect of the *payment period is the sum of all the viability supplements
for the days during the period on which:
(a) the care recipient was provided
with residential care through the residential care service in question; and
(b) the service was the subject of a
determination under subsection (2).
(2) The Secretary may, in accordance with the
Residential Care Subsidy Principles, make a determination under this subsection
in respect of a residential care service if satisfied that the determination
should be made having regard to:
(a) how small the service is, and the
size of the population that it serves; and
(b) the degree of isolation of the
service’s location; and
(c) any
other matters specified in the Residential Care Subsidy Principles.
Note: Refusals to make determinations are reviewable
under Part 6.1.
(3) The Secretary must not make a
determination under subsection (2) in respect of a residential care
service if the residential care service, or a *distinct part of the residential care
service, has *extra
service status.
(4) A person may apply to the Secretary, in
the form approved by the Secretary, for a determination under subsection (2)
in respect of a residential care service.
(5) If the Secretary needs further
information to determine the application, the Secretary may give to the
applicant a notice requesting the further information:
(a) within the period specified in the
notice; or
(b) if no period is specified in the
notice—within 14 days after receiving the notice.
(6) The
application is taken to be withdrawn if the applicant does not give the further
information within whichever of those periods applies. The notice must contain
a statement setting out the effect of this subsection.
Note: The period for giving the further information
can be extended—see section 96‑7.
(7) The Secretary must notify the person, in
writing, of the Secretary’s decision on whether to make the determination. The
notice must be given:
(a) if an application for a
determination was made under subsection (4)—within 28 days after the
application was made, or, if the Secretary requested further information under subsection (5),
within 28 days after receiving the information; or
(b) if such an application was not
made—within 28 days after the decision is made.
(8) The viability supplement for a particular
day is the amount:
(a) determined by the Minister in
writing; or
(b) worked out in accordance with a
method determined by the Minister in writing.
(9) The Minister may determine different
amounts based upon:
(a) the number of *places included in
residential care services; and
(b) the size of the population served
by residential care services; and
(c) the degree of isolation of
residential care services; and
(d) whether
residential care services are, or could be, co‑located with other
residential care services; and
(e) any other matters determined by
the Minister in writing.
44‑30
The hardship supplement
(1) The hardship supplement for the care
recipient in respect of the *payment period is the sum of all the hardship supplements
for the days during the period on which:
(a) the care recipient was provided
with residential care through the residential care service in question; and
(b) the care recipient was eligible
for a hardship supplement.
(2) Subject to subsection (4), the care
recipient is eligible for a hardship supplement on a particular day if:
(a) the Residential Care Subsidy
Principles specify one or more classes of care recipients to be care recipients
for whom paying the maximum daily amount of resident fees worked out under
section 58‑2 would cause financial hardship; and
(b) on that day, the care recipient is
included in such a class.
(3) Subject to subsection (4), the care
recipient is also eligible for a hardship supplement on a particular day if a
determination is in force under section 44‑31 in relation to the
care recipient.
(4) The care recipient is not eligible for a
hardship supplement in respect of a day if, on that day, the care recipient is
being provided with residential care on an extra service basis (see Division 36).
(5) The hardship supplement for a particular
day is the amount:
(a) determined by the Minister in
writing; or
(b) worked out in accordance with a
method determined by the Minister in writing.
(6) The Minister may determine different
amounts (including nil amounts) based on any matters determined by the Minister
in writing.
44‑31
Determining cases of financial hardship
(1) The
Secretary may, in accordance with the Residential Care Subsidy Principles,
determine that the care recipient is eligible for a hardship supplement if the
Secretary is satisfied that paying the maximum daily amount of resident fees
worked out under section 58‑2 would cause the care recipient
financial hardship.
Note: Refusals to make determinations are reviewable
under Part 6.1.
(2) In deciding whether to make a
determination under this section, and in determining a lesser amount, the
Secretary must have regard to the matters (if any) specified in the Residential
Care Subsidy Principles.
(3) A
determination under this section ceases to be in force at the end of a
specified period, or on the occurrence of a specified event, if the
determination so provides.
Note: Decisions to specify periods or events are
reviewable under Part 6.1.
(4) Application may be made to the Secretary,
in the form approved by the Secretary, for a determination under this section.
The application may be made by:
(a) the care recipient; or
(b) an approved provider who is
providing, or is to provide, residential care to the care recipient.
(5) If the Secretary needs further
information to determine the application, the Secretary may give to the
applicant a notice requesting the applicant to give the further information:
(a) within 28 days after receiving the
notice; or
(b) within such other period as is
specified in the notice.
(6) The
application is taken to have been withdrawn if the information is not given
within whichever of those periods applies. The notice must contain a statement
setting out the effect of this subsection.
Note: The period for giving the further information
can be extended—see section 96‑7.
(7) The Secretary must notify the care
recipient and the approved provider, in writing, of the Secretary’s decision on
whether to make the determination. The notice must be given:
(a) within 28 days after receiving the
application; or
(b) if the Secretary has requested
further information under subsection (5)—within 28 days after receiving
the information.
(8) If the Secretary makes the determination,
the notice must set out:
(a) any period at the end of which; or
(b) any event on the occurrence of
which;
the determination will cease to be in force.
Part 3.2—Community care subsidy
Division 45—Introduction
45‑1
What this Part is about
The *community care subsidy is a payment by
the Commonwealth to approved providers for providing community care to care
recipients.
Table of Divisions
45 Introduction
46 Who is eligible for community care subsidy?
47 On what basis is community care subsidy
paid?
48 What is the amount of community care
subsidy?
45‑2
The Community Care Subsidy Principles
*Community care
subsidy is also dealt with in the Community Care Subsidy Principles. The
provisions of this Part indicate when a particular matter is or may be dealt
with in these Principles.
Note: The Community Care Subsidy Principles are made
by the Minister under section 96‑1.
45‑3
Meaning of community care
(1) Community care is care
consisting of a package of personal care services and other personal assistance
provided to a person who is not being provided with residential care.
(2) The Community Care Subsidy Principles may
specify care that:
(a) constitutes community care for the
purposes of this Act; or
(b) does not constitute community care
for the purposes of this Act.
Division 46—Who is eligible for community care subsidy?
46‑1
Eligibility for community care subsidy
(1) An approved provider is eligible for *community care
subsidy in respect of a day if the Secretary is satisfied that, during that
day:
(a) the approved provider holds an
allocation of *places
for community care subsidy that is in force under Part 2.2 (other than a *provisional
allocation); and
(b) there is in force a *community care
agreement under which a care recipient approved under Part 2.3 in respect
of community care is to be provided with community care by the approved
provider, whether or not the care is to be provided on that day; and
(c) the
approved provider provides the care recipient with such community care (if any)
as is required under the community care agreement.
Note: A care recipient can be taken to be provided
with community care while the provision of that care is temporarily suspended
(see section 46‑2).
(2) However,
the approved provider is not eligible for *community care subsidy if the *community care
agreement is excluded on that day because the approved provider exceeds the
approved provider’s allocation of *places for community care subsidy (see section 46‑3).
Note: Eligibility may also be affected by Division 7
(relating to a person’s approval as a provider of *aged care services) or Division 20
(relating to a person’s approval as a recipient of community care).
46‑2
Suspension of community care services
(1) A care recipient who is being provided
with community care by an approved provider in accordance with a *community care
agreement may request the approved provider to suspend, on a temporary basis,
the provision of that community care, commencing on a date specified in the
request.
(2) The approved provider must comply with
the request.
(3) For the
purposes of this Part:
(a) the *community care agreement as in force on
that date is taken to remain in force during the period for which the provision
of care is suspended; and
(b) the care recipient is to be taken
(subject to subsection (4)) to have been provided with community care as
required by the community care agreement:
(i) on each day of any
period during which the care recipient attends a hospital for the purpose of
receiving hospital treatment; and
(ii) on each day of any
period during which the care recipient is provided with care (other than by the
approved provider) of a type, and at a level, specified in the Community Care
Subsidy Principles; and
(iii) on each day of any
other period specified in the Community Care Subsidy Principles as a period
during which a care recipient is to be taken to be provided with community care
for the purposes of this section.
(4) The
Community Care Subsidy Principles may specify a maximum number of days, in
respect of each period or all periods referred to in subsection (3), for
which a care recipient may be taken to have been provided with community care
under that subsection during a particular year.
Note: If a care recipient is taken not to have been
provided with care because the maximum number of days has been exceeded,
subsidy will not be payable in respect of those days. However, it would be open
to the care recipient to agree, in accordance with paragraph 61‑1(1)(e),
to pay a fee to the approved provider to reserve the care recipient’s place in
the service.
(5) In working out the days on which the
provision of community care is suspended under this section:
(a) include the day on which the
period commenced; and
(b) do not include the day on which
the approved provider recommenced, or commenced, providing community care to
the care recipient.
46‑3
Exceeding the number of places for which there is an allocation
(1) For the purposes of an approved
provider’s eligibility for *community care subsidy, a *community care agreement to provide
community care to a particular care recipient on a particular day is excluded
if:
(a) the number of care recipients in
respect of whom the approved provider has, during that day, community care
agreements to provide community care exceeds the number of *places included in
the approved provider’s allocation of places for community care subsidy; and
(b) the Secretary decides, in
accordance with subsection (2), that the community care agreement is to be
excluded on that day.
(2) In deciding under paragraph (1)(b)
which *community
care agreements are to be excluded, the Secretary must:
(a) make the number of exclusions
necessary to ensure that the number of *places for which *community care subsidy will be payable
does not exceed the number of places included in the approved provider’s
allocation of places for community care subsidy; and
(b) exclude the community care
agreements in the reverse order in which the care recipients in question *entered the
community care service for the provision of community care.
46‑4
Notice of refusal to pay community care subsidy
If:
(a) an approved provider has claimed *community care
subsidy in respect of a person; and
(b) the approved provider is not
eligible for community care subsidy in respect of that person;
the Secretary must, within 28 days after receiving the
claim, notify the approved provider in writing accordingly.
Division 47—On what basis is community care subsidy paid?
47‑1
Payability of community care subsidy
(1) *Community care subsidy is payable by the
Commonwealth to an approved provider in respect of each *payment period (see section 47‑2)
during which the approved provider is eligible under section 46‑1.
However, it is not payable in respect of any days during that period on which
the approved provider is not eligible.
(2) *Community care subsidy is separately payable by
the Commonwealth in respect of each community care service through which an
approved provider provides community care.
47‑2
Meaning of payment period
A payment period is:
(a) a calendar month; or
(b) such other period as is set out in
the Community Care Subsidy Principles.
47‑3
Advances
(1) Subject to subsection 47‑4(2), *community care
subsidy is payable by the Commonwealth in advance, in respect of a *payment period, at
such times as the Secretary thinks fit.
(2) The Secretary must work out the amount of
an advance to be paid to an approved provider in respect of the first *payment period for
a community care service by estimating the amount of *community care subsidy that will be
payable for the days in that period and in the following payment period.
(3) The Secretary
must work out the amount of an advance to be paid to an approved provider in
respect of subsequent *payment periods for a community care service by:
(a) estimating the amount of *community care
subsidy that will be payable for the days in the period; and
(b) increasing or reducing that amount
to make any adjustments that the Secretary reasonably believes are necessary to
take account of likely underpayments or overpayments in respect of advances
previously paid under this section.
(4) The amounts of advances must be worked
out in accordance with any requirements set out in the Community Care Subsidy
Principles.
47‑4
Claims for community care subsidy
(1) For the purpose of obtaining payment of *community care
subsidy in respect of a community care service through which an approved
provider provides community care, the approved provider must, as soon as
practicable after the end of each *payment period, give to the Secretary:
(a) a claim, in the form approved by
the Secretary, for community care subsidy that is, or may become, payable in
respect of the service for that payment period; and
(b) any information relating to the
claim that is stated in the form to be required, or that the Secretary
requests.
(2) An advance
of *community
care subsidy is not payable in respect of a *payment period for the community care
service if the approved provider has not given to the Secretary, under subsection (1),
a claim relating to the second last preceding payment period for the service.
Example: An advance of subsidy is not payable for March if
the Secretary has not been given a claim for January of the same year (assuming
the *payment
periods are all calendar months—see section 47‑2).
(3) Subsection (2) does not apply to the
first *payment
period or the second payment period for a community care service.
47‑5
Recovery of overpayments
This Division does not affect the
Commonwealth’s right to recover overpayments under Part 6.5.
Division 48—What is the amount of community care subsidy?
48‑1
Amount of community care subsidy
(1) The amount of *community care subsidy that is
payable to an approved provider in respect of a *payment period for a community care
service is the sum of the amounts of community care subsidy payable to the
approved provider in respect of each care recipient:
(a) in respect of whom there is in
force a *community
care agreement for provision of community care provided through the service
during the period; and
(b) in respect of whom the approved
provider was eligible under section 46‑1 for community care subsidy
during the period.
(2) The amount of *community care subsidy that is
payable to an approved provider in respect of a care recipient is the sum of
the amounts of community care subsidy payable in respect of each day, during the
*payment
period, on which there is in force a *community care agreement for provision of
community care to the care recipient.
(3) The amount of *community care subsidy that is
payable in respect of a day is the amount:
(a) determined by the Minister in
writing; or
(b) worked out in accordance with a
method determined by the Minister in writing.
(4) The Minister may determine rates of *community care
subsidy based on any matters determined by the Minister in writing.
Part 3.3—Flexible care subsidy
Division 49—Introduction
49‑1
What this Part is about
The *flexible care subsidy is a payment by the
Commonwealth to approved providers for providing flexible care to care
recipients.
Table of Divisions
49 Introduction
50 Who is eligible for flexible care subsidy?
51 On what basis is flexible care subsidy
paid?
52 What is the amount of flexible care
subsidy?
49‑2
The Flexible Care Subsidy Principles
*Flexible
care subsidy is also dealt with in the Flexible Care Subsidy Principles. The
provisions of this Part indicate when a particular matter is or may be dealt
with in these Principles.
Note: The Flexible Care Subsidy Principles are made
by the Minister under section 96‑1.
49‑3
Meaning of flexible care
Flexible care means care
provided in a residential or community setting through an *aged care service
that addresses the needs of care recipients in alternative ways to the care
provided through residential care services and community care services.
Division 50—Who is eligible for flexible care subsidy?
50‑1
Eligibility for flexible care subsidy
(1) An approved provider is eligible for *flexible care
subsidy in respect of a day if the Secretary is satisfied that, during that
day:
(a) the approved provider holds an
allocation of *places
for flexible care subsidy that is in force under Part 2.2 (other than a *provisional
allocation); and
(b) the approved provider provides
flexible care to a care recipient who:
(i) is approved under Part 2.3
in respect of flexible care; or
(ii) is included in a class
of people who, under the Flexible Care Subsidy Principles, do not need approval
under Part 2.3 in respect of flexible care; and
(c) the flexible care is of a kind for
which flexible care subsidy may be payable (see section 50‑2).
(2) However,
the approved provider is not eligible in respect of flexible care provided to
the care recipient if the care is excluded because the approved provider
exceeds the approved provider’s allocation of *places for *flexible care subsidy (see section 50‑3).
Note: Eligibility may also
be affected by Division 7 (relating to a person’s approval as a provider
of *aged care
services) or Division 20 (relating to a person’s approval as a recipient
of flexible care).
50‑2
Kinds of care for which flexible care subsidy may be payable
(1) The Flexible Care Subsidy Principles may
specify kinds of care for which *flexible care subsidy may be payable.
(2) Kinds of care may be specified by
reference to one or more of the following:
(a) the nature of the care;
(b) the circumstances in which the
care is provided;
(c) the nature of the locations in
which it is provided;
(d) the groups of people to whom it is
provided;
(e) the period during which the care
is provided;
(f) any
other matter.
Note: Examples of the
kinds of care that might be specified are:
(a) care
for *people
with special needs;
(b) care
provided in small or rural communities;
(c) care
provided through a pilot program for alternative means of providing care;
(d) care
provided as part of co‑ordinated service and accommodation arrangements
directed at meeting several health and community service needs.
50‑3
Exceeding the number of places for which there is an allocation
(1) For the purposes of an approved
provider’s eligibility for *flexible care subsidy, flexible care provided to a
particular care recipient on a particular day is excluded if:
(a) the number of care recipients
provided with flexible care by the approved provider during that day exceeds
the number of *places
included in the approved provider’s allocation of places for flexible care
subsidy; and
(b) the Secretary decides, in
accordance with subsection (2), that the flexible care provided to that
particular care recipient on that day is to be excluded.
(2) In deciding under paragraph (1)(b)
which flexible care is to be excluded, the Secretary must:
(a) make the number of exclusions
necessary to ensure that the number of *places for which *flexible care subsidy will be payable
does not exceed the number of places included in the approved provider’s
allocation of places for flexible care subsidy; and
(b) exclude the flexible care in the
reverse order in which the care recipients in question *entered the flexible care service
for the provision of flexible care.
50‑4
Notice of refusal to pay flexible care subsidy
If:
(a) an approved provider has claimed *flexible care
subsidy in respect of a person; and
(b) the
approved provider is not eligible for flexible care subsidy in respect of that
person;
the Secretary must notify the approved provider, in
writing, accordingly.
Division 51—On what basis is flexible care subsidy paid?
51‑1
Payment of flexible care subsidy
(1) *Flexible care subsidy in respect of a particular
kind of flexible care is payable in accordance with the Flexible Care Subsidy
Principles.
(2) The Flexible Care Subsidy Principles may,
in relation to each kind of flexible care, provide for one or more of the
following:
(a) the periods in respect of which *flexible care
subsidy is payable;
(b) the payment of flexible care
subsidy in advance;
(c) the way in which claims for
flexible care subsidy are to be made;
(d) any other matter relating to the
payment of flexible care subsidy.
Division 52—What is the amount of flexible care subsidy?
52‑1
Amounts of flexible care subsidy
(1) The amount of *flexible care subsidy that is
payable in respect of a day is the amount:
(a) determined by the Minister in
writing; or
(b) worked out in accordance with a
method determined by the Minister in writing.
(2) The Minister may determine rates of *flexible care
subsidy based on any matters determined by the Minister in writing.
Chapter 4—Responsibilities of approved providers
Division 53—Introduction
53‑1
What this Chapter is about
Approved providers have
responsibilities in relation to *aged care they provide through their *aged care
services. These responsibilities relate to:
• the
quality of care they provide (see Part 4.1);
• user
rights for the people to whom the care is provided (see Part 4.2);
• accountability
for the care that is provided, and the basic suitability of their *key personnel (see
Part 4.3).
Sanctions may be imposed under Part 4.4
on approved providers who do not meet their responsibilities.
Note: An approved provider’s responsibilities cover
all the care recipients in an *aged care service who are approved under Part 2.3 as
recipients of the type of *aged care provided through the service, as well as those in
respect of whom a subsidy is payable under Chapter 3.
53‑2
Failure to meet responsibilities does not have consequences apart from under
this Act
(1) If:
(a) an approved provider fails to meet
a responsibility under this Chapter; and
(b) the
failure does not give rise to an offence;
the failure has no consequences under any law other than
this Act.
(2) However, if the act or omission that
constitutes that failure also constitutes a breach of an obligation under
another law, this section does not affect the operation of any law in relation
to that breach of obligation.
Part 4.1—Quality of care
Division 54—Quality of care
54‑1
Responsibilities of approved providers
(1) The responsibilities of an approved
provider in relation to the quality of the *aged care that the approved provider
provides are as follows:
(a) to provide such care and services
as are specified in the Quality of Care Principles in respect of aged care of
the type in question;
(b) to maintain an adequate number of
appropriately skilled staff to ensure that the care needs of care recipients
are met;
(c) to provide care and services of a
quality that is consistent with any rights and responsibilities of care
recipients that are specified in the User Rights Principles for the purposes of
paragraph 56‑1(l), 56‑2(i) or 56‑3(j);
(d) if the care is provided through a
residential care service after the *accreditation day—to comply with the Accreditation
Standards made under section 54‑2;
(e) if the care is provided through a
residential care service before the accreditation day—to comply with the
Residential Care Standards made under section 54‑3;
(f) if the care is provided through a
community care service—to comply with the Community Care Standards made under
section 54‑4;
(g) if the care is provided through a
flexible care service—to comply with the Flexible Care Standards (if any), made
under section 54‑5, that apply to a flexible care service of that
kind;
(h) such
other responsibilities as are specified in the Quality of Care Principles.
Note: The Quality of Care Principles are made by the
Minister under section 96‑1.
(2) The responsibilities under subsection (1)
apply in relation to matters concerning a person to whom the approved provider
provides, or is to provide, care through an *aged care service only if:
(a) subsidy is payable under Chapter 3
for the provision of the care to the person; or
(b) the person is approved under Part 2.3
as a recipient of the type of *aged care provided through the service.
54‑2
Accreditation Standards
(1) The Quality of Care Principles may set
out Accreditation Standards. Accreditation Standards are standards for quality
of care and quality of life for the provision of residential care on and after
the *accreditation
day.
(2) The following are examples of matters
with which the Accreditation Standards may deal:
(a) health and personal care of care
recipients;
(b) the lifestyle of care recipients;
(c) safe practices and the physical
environment in which residential care is provided;
(d) management systems, staffing and
organisational development relating to the provision of residential care.
54‑3
Residential Care Standards
(1) The Quality of Care Principles may set
out Residential Care Standards. Residential Care Standards are standards for
quality of care and quality of life for the provision of residential care
before the *accreditation
day.
(2) The following are examples of matters
with which the Residential Care Standards may deal:
(a) health and personal care of care
recipients;
(b) the lifestyle of care recipients;
(c) safe practices and the physical
environment in which residential care is provided.
54‑4
Community Care Standards
(1) The Quality of Care Principles may set
out Community Care Standards. Community Care Standards are standards for
quality of care and quality of life for the provision of community care.
(2) The
following are examples of matters with which the Community Care Standards may
deal:
(a) the information and consultation
requirements applicable to the provision of community care;
(b) the assessment and review of care
needs of care recipients;
(c) the planning and co‑ordination
of the delivery of community care.
54‑5
Flexible Care Standards
(1) The Quality of Care Principles may set
out Flexible Care Standards. Flexible Care Standards are standards for quality
of care and quality of life for the provision of flexible care of particular
kinds.
(2) The Flexible Care Standards may set out
different standards for different kinds of flexible care.
(3) The following are examples of matters
with which the Flexible Care Standards may deal:
(a) health and personal care of care
recipients;
(b) the lifestyle of care recipients;
(c) safe practices and the physical
environment in which flexible care is provided;
(d) the information and consultation
requirements applicable to the provision of flexible care;
(e) the assessment and review of care
needs of care recipients;
(f) the planning and co‑ordination
of the delivery of flexible care.
Part 4.2—User rights
Division 55—Introduction
55‑1
What this Part is about
Approved providers have general
responsibilities to users, and proposed users, of their *aged care services who are approved
as care recipients of the type of *aged care in question. Failure to meet those
responsibilities may lead to sanctions being imposed under Part 4.4.
Table of Divisions
55 Introduction
56 What are the general responsibilities
relating to user rights?
57 What are the
responsibilities relating to accommodation bonds and entry contributions?
57A What are the responsibilities relating to
accommodation charges?
58 What are the responsibilities relating to
resident fees?
59 What are the requirements for resident
agreements?
60 What are the responsibilities relating to
community care fees?
61 What are the requirements for community
care agreements?
62 What are the responsibilities relating to
protection of personal information?
55‑2
The User Rights Principles
User
rights are also dealt with in the User Rights Principles. The provisions of
this Part indicate where a particular matter is or may be dealt with in these
Principles.
Note: The User Rights Principles are made by the
Minister under section 96‑1.
Division 56—What are the general responsibilities relating to user
rights?
56‑1
Responsibilities of approved providers—residential care
The responsibilities of an approved
provider in relation to a care recipient to whom the approved provider
provides, or is to provide, residential care are as follows:
(a) to comply with the requirements of
Division 57 in relation to any *accommodation bond, or the requirements of Division 57A
in relation to any *accommodation
charge, charged for the care recipient’s *entry to the residential care service
through which the care is, or is to be, provided;
(aa) to comply with the requirements
of:
(i) the Prudential
Standards made under section 57‑4; and
(ii) section 57‑21B;
in relation to any *entry contribution
given or loaned under a *formal agreement binding the approved provider and the care
recipient;
(b) to charge no more than the amount
permitted under Division 58 for provision of the care and services that it
is the approved provider’s responsibility under paragraph 54‑1(1)(a) to
provide;
(c) to charge no more than the amount
permitted under the User Rights Principles by way of a booking fee for *respite care;
(d) to charge no more for any other
care or services than an amount agreed beforehand with the care recipient, and
to give the care recipient an itemised account of the other care or services;
(e) to provide such security of tenure
for the care recipient’s *place in the service as is specified in the User Rights Principles;
(f) to comply with the requirements
of Division 36 in relation to *extra service agreements; and
(g) to offer to enter into a *resident agreement
with the care recipient, and, if the care recipient wishes, to enter into such
an agreement (see Division 59);
(h) to comply with the requirements of
Division 62 in relation to *personal information relating to the care recipient;
(i) to comply with the requirements
of section 56‑4 in relation to resolution of complaints;
(j) to allow people acting for care
recipients to have such access to the service as is specified in the User
Rights Principles;
(k) to allow people acting for bodies
that have been paid *advocacy
grants under Part 5.5, or *community visitors grants under Part 5.6, to have such
access to the service as is specified in the User Rights Principles;
(ka) to take reasonable steps to find
any care recipients who paid an accommodation charge while they were *charge exempt
residents and who have since ceased to be provided with residential care by the
provider;
(kb) if a care recipient covered by paragraph (ka)
is deceased—to take reasonable steps to identify the legal representatives of
the care recipient’s estate or the person specified in the Residential Care
Subsidy Principles;
(kc) to refund any fees or charges, as
and when directed by the Secretary, to care recipients who paid an accommodation
charge in respect of a period during which they were charge exempt residents,
or, if such a care recipient is deceased, to the care recipient’s estate or to
the person specified in the Residential Care Subsidy Principles;
(l) not to act in a way which is
inconsistent with any rights and responsibilities of care recipients that are
specified in the User Rights Principles;
(m) such other responsibilities as are
specified in the User Rights Principles.
56‑2
Responsibilities of approved providers—community care
The responsibilities of an approved
provider in relation to a care recipient to whom the approved provider
provides, or is to provide, community care are as follows:
(a) not to charge for the care
recipient’s *entry
to the service through which the care is, or is to be, provided;
(b) to charge no more than the amount
permitted under Division 60 for provision of the care and services that it
is the approved provider’s responsibility under paragraph 54‑1(1)(a) to
provide;
(c) to charge no more for any other
care or services than an amount agreed beforehand with the care recipient, and
to give the care recipient an itemised account of the other care or services;
(d) to provide such security of tenure
for the care recipient’s *place in the service as is specified in the User Rights
Principles;
(e) to offer to enter into a *community care
agreement with the care recipient, and, if the care recipient wishes, to enter
into such an agreement (see Division 61);
(f) to comply with the requirements
of Division 62 in relation to *personal information relating to the care recipient;
(g) to comply with the requirements of
section 56‑4 in relation to resolution of complaints;
(h) to allow people acting for
bodies that have been paid *advocacy grants under Part 5.5 to have such access to
the service as is specified in the User Rights Principles;
(i) not to act in a way which is
inconsistent with any rights and responsibilities of care recipients that are
specified in the User Rights Principles;
(j) such other responsibilities as
are specified in the User Rights Principles.
56‑3
Responsibilities of approved providers—flexible care
The responsibilities of an approved
provider in relation to a care recipient to whom the approved provider
provides, or is to provide, flexible care are as follows:
(a) to comply with the requirements of
Division 57, and the User Rights Principles, in relation to any *accommodation bond
charged for the care recipient’s *entry to the flexible care service through which the care
is, or is to be, provided;
(aa) to comply with the requirements of
the User Rights Principles in relation to any *accommodation charge charged for the care
recipient’s entry to the flexible care service through which the care is, or is
to be, provided;
(ab) to comply with the requirements
of:
(i) the Prudential
Standards made under section 57‑4; and
(ii) section 57‑21B;
in relation to any *entry contribution
given or loaned under a *formal agreement binding the approved provider and the care
recipient;
(b) to charge no more than the amount
specified in, or worked out in accordance with, the User Rights Principles, for
provision of the care and services that it is the approved provider’s
responsibility under paragraph 54‑1(1)(a) to provide;
(c) to charge no more for any other
care or services than an amount agreed beforehand with the care recipient, and
to give the care recipient an itemised account of the other care or services;
(d) to provide such security of tenure
for the care recipient’s *place in the service as is specified in the User Rights
Principles;
(e) to comply with any requirements of
the User Rights Principles relating to:
(i) offering to enter into
an agreement with the care recipient relating to the provision of care to the
care recipient; or
(ii) entering into such an
agreement if the care recipient wishes;
(f) to comply with the requirements
of Division 62 in relation to *personal information relating to the care recipient;
(g) to comply with the requirements of
section 56‑4 in relation to resolution of complaints;
(h) to allow people acting for care
recipients to have such access to the service as is specified in the User
Rights Principles;
(i) to allow people acting for
bodies that have been paid *advocacy grants under Part 5.5 to have such access to
the service as is specified in the User Rights Principles;
(ia) to take reasonable steps to find
any care recipients who paid an accommodation charge while they were *charge exempt
residents and who have since ceased to be provided with flexible care by the
provider;
(ib) if a care recipient covered by paragraph (ia)
is deceased—to take reasonable steps to identify the legal representatives of
the care recipient’s estate or the person specified in the Residential Care
Subsidy Principles;
(ic) to refund any fees or charges, as
and when directed by the Secretary, to care recipients who paid an accommodation
charge in respect of a period during which they were charge exempt residents,
or, if such a care recipient is deceased, to the care recipient’s estate or to
the person specified in the Residential Care Subsidy Principles;
(j) not to act in a way which is
inconsistent with any rights and responsibilities of care recipients that are
specified in the User Rights Principles;
(k) such other responsibilities as are
specified in the User Rights Principles.
56‑4
Complaints resolution mechanisms
(1) The approved provider must:
(a) establish a complaints resolution
mechanism for the *aged
care service; and
(b) use the complaints resolution
mechanism to address any complaints made by or on behalf of a person to whom
care is provided through the service; and
(c) advise the person of any other
mechanisms that are available to address complaints, and provide such
assistance as the person requires to use those mechanisms; and
(d) allow people authorised by the
Secretary to investigate and assist in the resolution of complaints such access
to the service as is specified in the User Rights Principles; and
(e) comply with any requirement made
of the approved provider under the Investigation Principles.
(2) If the *aged care service is a residential care
service, the complaints resolution mechanism must be the complaints resolution
mechanism provided for in the *resident agreements entered into between the care
recipients provided with care through the service and the approved provider
(see paragraph 59‑1(1)(g)).
(3) If the *aged care service
is a community care service, the complaints resolution mechanism must be the
complaints resolution mechanism provided for in the *community care agreements entered
into between the care recipients provided with care through the service and the
approved provider (see paragraph 61‑1(1)(f)).
56‑5
Extent to which responsibilities apply
The responsibilities under this Division
apply in relation to matters concerning any person to whom the approved
provider provides, or is to provide, care through an *aged care service only if:
(a) subsidy is payable under Chapter 3
for the provision of care to that person; or
(b) the person is approved under Part 2.3
as a recipient of the type of *aged care provided through the service.
Division 57—What are the responsibilities relating to accommodation bonds
and entry contributions?
57‑1
What this Division is about
If an approved provider charges an *accommodation bond
for the *entry
of a care recipient to a residential care service or flexible care service,
several rules must be followed. These relate particularly to prudential
arrangements, *accommodation
bond agreements, the amount of the bond and its payment, treatment of income
derived from the bond, deductions from the bond and refunding the bond.
If an approved provider has been given
or loaned an *entry
contribution, several rules must be followed. The rules set out in this
Division relate particularly to prudential arrangements and payment of interest
on *entry
contribution balances. Other rules are set out in section 71 of the Aged
Care (Consequential Provisions) Act 1997.
Table of Subdivisions
57‑A The basic rules
57‑B Prudential requirements
57‑C Accommodation bond agreements
57‑D Amounts of accommodation bonds
57‑E Payment of accommodation bonds
57‑F Rights of approved providers
57‑G Refunds
57‑H Charging an accommodation bond instead
of an accommodation charge
Subdivision 57‑A—The basic rules
57‑2
Basic rules about accommodation bonds
(1) The rules relating to charging an *accommodation bond
for the *entry
of a person to a residential care service, or flexible care service, as a care
recipient are as follows:
(aa) at the time of entry, at least one
of the following must be true:
(i) if the accommodation
bond is charged for the entry of the care recipient to a residential care
service—the care recipient is not eligible to pay an *accommodation charge under
subsection 57A‑2(1);
(ii) the service, or the *distinct part of
the service through which the care recipient is to receive care, has *extra service status;
(iii) section 57‑23
allows the approved provider to charge an accommodation bond for the entry;
(iv) if the accommodation
bond is charged for the entry of the care recipient to a flexible care
service—the care recipient requires a level of care that corresponds to a *low level of
residential care provided through a residential care service;
Note: A *concessional resident cannot be required to pay an
accommodation bond—see section 57‑12.
(ab) the person is not a *charge exempt
resident;
(a) if the accommodation bond is
charged for the entry of the care recipient to a residential care service—the
residential care service must be *certified for the accommodation bond to become payable;
(b) the entry must not be for the
purpose of the provision of *respite care;
(c) the approved provider conducting
the residential care service or flexible care service must comply with the
prudential requirements (see section 57‑3);
(d) the approved provider must, before
the recipient enters the service, provide the care recipient with such
information about the accommodation bond as is specified in the User Rights
Principles;
(e) the approved provider must have
entered into an *accommodation
bond agreement (see section 57‑9) with the care recipient before, or
within 21 days after, the care recipient entered the service;
Note: This time limit is extended in some cases if
certain legal processes relating to the care recipient’s mental impairment are
in progress—see subsection (2) of this section.
(f) another person must not be
required to pay the accommodation bond as a condition of the care recipient
entering the residential care service or flexible care service;
(g) the
accommodation bond must not exceed the maximum amount under section 57‑12,
57‑13 or 57‑23, as the case requires, and the care recipient must
not be charged more than one accommodation bond in respect of entering the
service;
(h) the accommodation bond must not be
charged if a determination is in force under section 57‑14 that
paying an accommodation bond would cause the care recipient financial hardship;
(i) payment of the accommodation bond
can only be required during a period specified in section 57‑16;
(j) payment of the accommodation bond
by periodic payments must meet the requirements set out in section 57‑17;
(k) if the accommodation bond is
charged for the entry of the care recipient to a residential care service—the
approved provider must not use the accommodation bond for a purpose that is not
related to providing *aged
care to care recipients, or that does not comply with the prudential
requirements (see section 57‑3);
(ka) if the accommodation bond is
charged for the entry of the care recipient to a flexible care service—the
approved provider must not use the accommodation bond for a purpose that is not
related to providing flexible care to care recipients, or that does not comply
with the prudential requirements (see section 57‑3);
(l) the approved provider is entitled
to income derived from investing the *accommodation bond balance (see section 57‑18);
(m) amounts must not be deducted from
the accommodation bond balance, except for amounts deducted under section 57‑19;
(n) if the accommodation bond is
charged for the entry of the care recipient to a residential care service—the
approved provider must use the income derived from the accommodation bond and
the retention amount in the following ways:
(i) to meet capital works
costs relating to residential care;
(ii) to retire debt
relating to residential care; or
(iii) where no capital
expenditure is reasonably necessary to comply with matters specified in the
certification principles for the purposes of 38‑3(3) and meeting
accreditation requirements—to improve the quality and range of *aged care
services;
(na) if the accommodation bond is
charged for the entry of the care recipient to a flexible care service—the
approved provider must use the income derived from the accommodation bond and
the retention amount to improve the quality and range of flexible care
services;
(o) the approved provider must not
charge an accommodation bond if prohibited under Part 4.4 from doing so
(see paragraph 66‑1(j));
(p) any other rules specified in the
User Rights Principles.
(2) If, at the end of the 21 days mentioned
in paragraph (1)(e):
(a) the approved provider and the care
recipient have not entered into an *accommodation bond agreement; and
(b) a process under a law of the
Commonwealth, a State or a Territory has begun for a person (other than an
approved provider) to be appointed, by reason that the care recipient has a
mental impairment, as the care recipient’s legal representative;
the time limit in that paragraph is extended until the end
of 7 days after:
(c) the appointment is made; or
(d) a decision is made not to make the
appointment; or
(e) the process ends for some other
reason;
or for such further period as the Secretary allows, having
regard to any matters specified in the User Rights Principles.
Subdivision 57‑B—Prudential requirements
57‑3
Compliance with prudential requirements
An approved provider complies with the
prudential requirements if the approved provider complies with the Prudential
Standards made under section 57‑4.
57‑4
Prudential Standards
(1) The User Rights Principles may set out
Prudential Standards. Prudential Standards are standards providing for:
(a) protection of *accommodation bond
balances of care recipients; and
(b) protection of *entry contribution
balances of care recipients; and
(c) sound financial management of
approved providers; and
(d) provision of information about the
financial management of approved providers.
(2) The following are examples of matters
with which the Prudential Standards may deal:
(a) corporate governance requirements
for approved providers;
(b) financial reporting requirements
for approved providers;
(c) liquidity requirements for
approved providers;
(d) capital requirements for approved
providers;
(e) insurance requirements for
approved providers;
(f) information retention and
provision requirements for approved providers.
Subdivision 57‑C—Accommodation bond agreements
57‑9
Contents of accommodation bond agreements
(1) An agreement between an approved provider
and a person proposing to *enter, or having entered, as a care recipient to a
residential care service, or flexible care service, through which the approved
provider provides care is an accommodation bond agreement if it
sets out the following:
(a) the amount of the *accommodation bond
that:
(i) will be payable if the
care recipient enters the residential care service or flexible care service; or
(ii) if the care recipient
has already entered the residential care service or flexible care service—is
payable;
(b) the care recipient’s proposed date
of entry, or date of entry, to the residential care service or flexible care
service;
(c) how the accommodation bond is to
be paid, and if the accommodation bond is to be paid by periodic payments, the
conditions relating to the periodic payments (which must comply with the
requirements of section 57‑17);
(d) when the accommodation bond is
payable;
(e) the amount of each retention
amount (within the meaning of section 57‑20) that will be deducted
from the *accommodation
bond balance;
(f) when retention amounts and other
amounts permitted by section 57‑19 to be deducted from the
accommodation bond balance will be deducted;
(g) unless the care recipient has
already entered the residential care service or flexible care service—the
conditions that will apply if the care recipient agrees to pay the
accommodation bond but then does not enter the residential care service or
flexible care service (including the conditions that will apply if the person
chooses not to enter the service);
(h) whether agreeing to pay the
accommodation bond entitles the care recipient to specific accommodation or
additional services within the residential care service or flexible care
service;
(i) if the accommodation bond is such
an amount that, under subsection 44‑28(3), the care recipient would not
be eligible for a *pensioner
supplement—any additional resident fees that will be payable by the care
recipient as a result of not being so eligible;
(j) any financial hardship provisions
that apply to the care recipient;
(k) the circumstances in which the
accommodation bond balance must be refunded and the way the amount of the
refund will be worked out;
(l) such other matters as are
specified in the User Rights Principles.
(2) The User Rights Principles may specify,
but are not limited to, matters relating to the following:
(a) the specific entitlements of care
recipients arising from entering into an *accommodation bond agreement;
(d) a care recipient’s obligations;
(e) alleviating financial hardship.
57‑10
Accommodation bond agreements may be incorporated into other agreements
For the purposes of this Division, a
person is taken to have entered into an *accommodation bond agreement if the
person has entered into an agreement that contains the provisions required by
section 57‑9.
Example: These provisions may be included in a *resident agreement.
57‑11
Agreements cannot affect requirements of this Division
The requirements of this Division apply
despite any provision of an *accommodation bond agreement, or any other agreement, to
the contrary.
Subdivision 57‑D—Amounts of accommodation bonds
57‑12
Maximum amount of accommodation bond
(1) Subject to subsection (2) and
section 57‑13, the maximum amount of an *accommodation bond for the *entry of a person
as a care recipient to a residential care service or flexible care service is
whichever is the lowest of the following:
(a) the amount of the accommodation
bond specified in the *accommodation bond agreement;
(b) an amount that, when subtracted
from an amount equal to the value of the care recipient’s assets at the time of
the care recipient’s entry to the residential care service or flexible care
service, leaves an amount at least equal to the care recipient’s minimum
permissible asset value (see subsection (3));
(c) such amount as is specified in, or
worked out in accordance with, the User Rights Principles.
Note: The operation of this section may be modified
if, before entering an accommodation bond agreement, the care recipient gives
the approved provider a determination under section 44‑8AB of the
value of the care recipient’s assets. See subsection (5).
(2) If:
(a) a care recipient proposes to *enter a
residential care service, or flexible care service, conducted by an approved
provider; and
(b) the care recipient does not,
before entering an *accommodation
bond agreement, give to the approved provider sufficient information about the
care recipient’s assets for the approved provider to be able to determine the
amounts referred to in paragraph (1)(b);
the maximum amount of an *accommodation bond for the entry of the
person as a care recipient to the residential care service or flexible care
service is the lesser of the amounts referred to in paragraphs (1)(a) and
(c).
(3) A care recipient’s minimum
permissible asset value is:
(a) the amount obtained by rounding to
the nearest $500.00 (rounding $250.00 upwards) an amount equal to 2.5 times the
*basic age
pension amount at the time of the care recipient’s *entry to the residential care service or
flexible care service; or
(b) such higher amount as is specified
in, or worked out in accordance with, the User Rights Principles.
(4) The value of a care recipient’s assets is
to be worked out in the same way as it would be worked out under section 44‑10
for the purposes of section 44‑7 or 44‑8.
(5) However, subsections (1), (2) and
(3) are modified as described in the table, and subsection (4) does not
apply, if, before entering the *accommodation bond agreement, the care recipient gives the
approved provider a copy of a determination that:
(a) is a determination under section 44‑8AB
of the value of the care recipient’s assets at a time (the valuation time)
that is before or at the time (the entry time) the care recipient
*enters the
residential care service or flexible care service; and
(b) is in force at the entry time, if
that is after the valuation time.
|
Modifications of subsections (1),
(2) and (3)
|
|
|
If:
|
Subsections (1),
(2) and (3) have effect as if:
|
|
1
|
The valuation time is before the entry time
|
(a) the references in paragraphs (1)(b)
and (3)(a) to the time of the care recipient’s *entry to the residential care service
or flexible care service were references to the valuation time; and
(b) the value of the care
recipient’s assets at the valuation time were the value specified in the
determination
|
|
2
|
The valuation time is at the entry time
|
The value of the care recipient’s assets at the entry time
were the value specified in the determination
|
57‑13
Maximum amount of accommodation bond if care recipient moves between certain
aged care services
If:
(a) an *accommodation bond has been paid by a
care recipient for *entry
to an aged care service (the original service) that is a
residential care service or a flexible care service; and
(b) the care recipient ceases being
provided with residential care, or flexible care, through the original service
(other than because the care recipient is on *leave); and
(c) the care recipient enters another aged
care service that is a residential care service or a flexible care service
within 28 days after the day on which the care recipient ceased being provided
with care by the original service;
the maximum amount of the accommodation bond for the entry
of the care recipient to the other service is the amount of the accommodation
bond balance that was refunded or is payable to the care recipient under
section 57‑21 in respect of the accommodation bond referred to in paragraph (a).
57‑14
Accommodation bond not payable in cases of financial hardship
(1) The
Secretary may determine, in accordance with the User Rights Principles, that a
person must not be charged an *accommodation bond because payment of an accommodation bond
would cause the person financial hardship.
Note: Refusals to make determinations are reviewable
under Part 6.1.
(2) Without limiting the circumstances that
constitute financial hardship for the purposes of this section, such
circumstances include any circumstances specified in the User Rights
Principles.
(3) The
determination ceases to be in force at the end of a specified period or on the
occurrence of a specified event, if the determination so provides.
Note: Decisions to specify periods or events are
reviewable under Part 6.1.
(4) Application may be made to the Secretary,
in the form approved by the Secretary, for a determination under subsection (1)
that payment of an *accommodation
bond would cause the person financial hardship. The application may be made by:
(a) the person; or
(b) an approved provider to which the
accommodation bond would otherwise be paid.
(5) If the Secretary needs further
information to determine the application, the Secretary may give to the
applicant a notice requiring the applicant to give the further information:
(a) within 28 days after receiving the
notice; or
(b) within such other period as is
specified in the notice.
The application is taken to
have been withdrawn if the information is not given within whichever of those
periods applies. The notice must contain a statement setting out the effect of
this subsection.
Note: The period for giving the further information
can be extended—see section 96‑7.
(6) The Secretary must notify the person and
the approved provider, in writing, of the Secretary’s decision on whether to
make the determination. The notice must be given:
(a) within 28 days after receiving the
application; or
(b) if the Secretary has requested
further information under subsection (5)—within 28 days after receiving
the information.
(7) If the Secretary makes the determination,
the notice must set out:
(a) any period at the end of which; or
(b) any event on the occurrence of
which;
the determination will cease to be in force.
57‑15
Revocation of determinations of financial hardship
(1) The
Secretary may, in accordance with the User Rights Principles, revoke a
determination made under section 57‑14.
Note: Revocations of determinations are reviewable
under Part 6.1.
(2) Before deciding to revoke
the determination, the Secretary must notify the person, and an approved
provider who is providing or is to provide residential care or flexible care to
the person, that revocation is being considered. The notice must be in writing
and must:
(a) invite the person and the approved
provider to make submissions, in writing, to the Secretary within 28 days after
receiving the notice; and
(b) inform them that if no submissions
are made within that period, the revocation takes effect on the day after the
last day for making submissions.
(3) In making the decision
whether to revoke the determination, the Secretary must consider any
submissions received within the period for making submissions. The Secretary
must make the decision within 28 days after the end of that period.
(4) The Secretary must notify, in
writing, the person and the approved provider of the decision.
(5) The notice must be given to the person
and the approved provider within 28 days after the end of the period for making
submissions. If the notice is not given within that period, the Secretary is
taken to have decided not to revoke the determination.
(6) A revocation has effect:
(a) if the person and the approved
provider received notice under subsection (4) on the same day—the day
after that day; or
(b) if they received the notice on
different days—the day after the later of those days.
Subdivision 57‑E—Payment of accommodation bonds
57‑16
Period for payment of accommodation bond
(1) A care recipient must not be required to
pay an *accommodation
bond:
(a) before the end of such period as
is specified in the User Rights Principles; or
(b) if
no period is specified—before the end of 6 months;
after *entry to the residential care service or flexible care
service.
(2) If the care recipient has entered a
residential care service and the residential care service was not *certified at the
time of the care recipient’s *entry to the service, the care recipient must not be
required to pay the *accommodation
bond:
(a) before the end of such period as
is specified in the User Rights Principles; or
(b) if
no period is specified—before the end of 6 months;
following the certification
of the residential care service.
Note 1: However, under sections 57‑18 and 57‑20,
amounts representing income derived and retention amounts are payable from:
(a) the date a care recipient *enters a
residential care service that is *certified or a flexible care service; or
(b) the date on which a residential care service
is certified, if it was not certified at the time a care recipient entered it.
Note 2: Paragraph 57‑2(1)(e) in most cases
requires the *accommodation
bond agreement to have been entered into before, or within 21 days after, the
care recipient’s *entry
to the service—this applies even if the care recipient has entered a
residential care service that was not *certified at the time of the care recipient’s
entry to the service.
57‑17
Payment of an accommodation bond by periodic payments
(1) A care recipient may elect that an *accommodation bond
is to be paid, in whole or in part, by periodic payments.
(2) The User Rights Principles may specify:
(a) the frequency of periodic
payments; and
(b) the method for working out amounts
of periodic payments (including a method where only part of the *accommodation bond
is to be paid by periodic payments); and
(c) any other matters relating to
periodic payments.
(3) The method specified in the User Rights
Principles for working out amounts of periodic payments must have regard to:
(a) the income that the approved
provider could be expected to have derived; and
(b) the retention amounts that would
have been permitted to be deducted under section 57‑20;
if the *accommodation bond had been paid as a lump sum.
Subdivision 57‑F—Rights of approved providers
57‑18
Approved provider may retain income derived
(1) An approved provider may retain income
derived from the investment of an *accommodation bond balance in respect of an *accommodation bond
paid to the approved provider.
(2) Despite section 57‑16, if a
care recipient pays an *accommodation bond to an approved provider after the due
date (see subsection (6)), the care recipient may be required to pay to
the approved provider an amount representing the income the approved provider
could be expected to have derived, through investing the *accommodation bond
balance, during the period:
(a) beginning on the due date; and
(b) ending on the day on which the *accommodation bond
was paid.
(3) If the care recipient is provided with
care for 2 months or less, the care recipient may be required to pay to the
approved provider an amount representing the income the approved provider could
be expected to have derived, through investing the *accommodation bond balance, during:
(a) the whole of the month in which
the care recipient *entered
the residential care service or flexible care service; and
(b) the 2 following months;
unless the User Rights
Principles specify that a lesser amount is payable.
Example: If a care recipient *entered a residential care service on 20 January
and left on 3 March, the amount would be the amount the approved provider
could have been expected to have derived if the care recipient received care
for the whole of January, February and March.
(4) The User Rights Principles may specify a
method for working out the amounts referred to in subsections (2) and (3).
(5) The User Rights Principles may provide
that, in the circumstances specified in the User Rights Principles, an approved
provider must not retain income derived, from the investment of an *accommodation bond
balance, in respect of periods specified in the User Rights Principles.
(6) In this section:
due date means:
(a) in relation to an *accommodation bond
payable by a care recipient for *entry to a residential care service—whichever of the
following days is applicable:
(i) the day on which the
care recipient entered the residential care service;
(ii) if the residential
care service was not *certified
on that day—the day on which the residential care service was certified; or
(b) in relation to an accommodation
bond payable by a care recipient for entry to a flexible care service—the day
on which the care recipient entered the flexible care service.
57‑19
Amounts to be deducted from accommodation bond balance
(1) An approved provider to whom an *accommodation bond
was paid by a care recipient may deduct from the *accommodation bond balance:
(a) retention amounts in respect of
the accommodation bond (see section 57‑20); and
(b) amounts owed to the approved
provider by the care recipient under an *accommodation bond agreement, a *resident agreement
or an *extra
service agreement; and
(c) amounts, worked out in accordance
with the User Rights Principles, representing interest on the amounts referred
to in paragraph (b).
(2) The approved provider must not deduct any
other amounts from the *accommodation bond balance.
57‑20
Retention amounts
(1) A retention amount must not exceed the
amount specified in, or worked out in accordance with, the User Rights
Principles.
(2) The User Rights Principles may provide
that, in the circumstances specified in the User Rights Principles, an approved
provider must not deduct any amounts from an *accommodation bond balance in respect of
periods specified in the User Rights Principles.
(3) Subject to subsections (4) and (5),
a retention amount may be deducted from an *accommodation bond balance for each
month, or part of a month, during which the care recipient concerned is:
(a) provided with residential care
through the residential care service in respect of which the *accommodation bond
was paid; or
(b) provided with flexible care
through the flexible care service in respect of which the accommodation bond
was paid.
(4) Subject to subsection (5), retention
amounts may only be deducted during the period of 5 years, or such other period
specified in the User Rights Principles, starting on the latest of the
following days:
(a) the day on which the care
recipient *entered
the residential care service or flexible care service;
(b) if the service is a residential
care service and is not *certified on that day—the day on which the service became
certified;
(c) if a determination under section 57‑14
is in force in respect of the care recipient—the day after the day on which the
determination ceases to be in force;
(d) such other day as is worked out in
accordance with the User Rights Principles.
(5) If, before
the *accommodation
bond was paid, amounts had already been deducted from an *accommodation bond
balance in respect of another accommodation bond previously paid by the care
recipient, the period of 5 years referred to in subsection (4) is reduced
by each month in respect of which a retention amount was so deducted.
Note: The effect of
this subsection is that all periods spent in residential care or flexible care
after an *accommodation
bond is first paid will count towards the 5 year maximum under subsection (4)
for deducting retention amounts.
Example: If a care recipient initially spends 6 weeks in
residential care and then moves to another residential care service, retention
amounts can be deducted for 3 months in respect of the 6 weeks of care (see subsection (6)),
but after that only for up to 4 years and 9 months.
(6) For the purposes of this section, if the
care recipient is provided with care for 2 months or less, the care recipient
is taken, for the purposes of working out retention amounts payable, to have
received that care during:
(a) the
whole of the month in which the care recipient *entered the residential care service or
flexible care service; and
(b) the 2 following months;
unless the User Rights Principles specify that care is
taken to have been provided for a shorter period.
Example: A care recipient
who *entered
a residential care service on 20 January and left on 3 March would be
taken to have received care for the whole of January, February and March.
Therefore, retention amounts could be deducted for each of these months.
(7) Deduction of retention amounts must
comply with any other requirements specified in the User Rights Principles.
Subdivision 57‑G—Refunds
57‑21
Refunding of accommodation bond balance
(1) The *accommodation bond balance in respect of
an *accommodation
bond paid by a care recipient for *entry to a residential care service or flexible care
service must be refunded by the approved provider conducting the service if:
(a) the care recipient dies; or
(b) the care recipient ceases to be
provided with:
(i) residential care by a
residential care service conducted by the approved provider (other than because
the care recipient is on *leave); or
(ii) flexible care provided
in a residential setting by a flexible care service conducted by the approved
provider; or
(c) in respect of an accommodation
bond paid for the entry to a residential care service—the residential care
service ceases to be *certified.
(2) The *accommodation bond balance must be
refunded to the care recipient in the way specified in the User Rights
Principles.
(3) The *accommodation bond balance must be
refunded:
(aa) if the care recipient dies—within
14 days after the day on which the approved provider is shown the probate of
the will of the care recipient or letters of administration of the estate of
the care recipient; or
(a) if the care recipient is to *enter another service
to receive residential care:
(i) if
the care recipient has notified the approved provider of the move more than 14
days before the day on which the approved provider ceased providing care to the
care recipient—on the day on which the approved provider ceased providing that
care; or
(ii) if the care recipient
so notified the approved provider within 14 days before the day on which the
approved provider ceased providing that care—within 14 days after the day on which
the notice was given; or
(iii) if
the care recipient did not notify the approved provider before the day on which
the approved provider ceased providing that care—within 14 days after the day
on which the approved provider ceased providing that care; or
(b) in any other case—within 14 days
after the day on which the event referred to in paragraph (1)(b) or (c)
(whichever is applicable) happened.
57‑21A
Payment of interest on accommodation bond balance
(1) An approved provider that is required
under this Subdivision to refund an *accommodation bond balance must pay an amount representing
interest on the accommodation bond balance in the circumstances (if any)
specified in the User Rights Principles.
(2) The amount is to be worked out in
accordance with the User Rights Principles.
(3) The amount must be paid to the person
specified in the User Rights Principles in the way specified in the User Rights
Principles.
57‑21B
Payment of interest on entry contribution balance
(1) An approved provider that is required
under a *formal
agreement to refund an *entry contribution balance must pay an amount representing
interest on the entry contribution balance in the circumstances (if any)
specified in the User Rights Principles.
(2) The amount is to be worked out in
accordance with the User Rights Principles.
(3) The amount must be paid to the person
specified in the User Rights Principles in the way specified in the User Rights
Principles.
57‑22
Delaying refunds to secure re‑entry
(1) If a care recipient ceases to be provided
with residential care by a residential care service (other than because the
care recipient is on *leave),
or ceases to be provided with flexible care by a flexible care service, the
care recipient may agree with the approved provider to delay refunding the *accommodation bond
balance on condition that, if the care recipient requests re‑entry to the
service:
(a) the approved provider must allow *entry to the care
recipient, if:
(i) there are any *places vacant in
the service; and
(ii) in a case where the
service is a residential care service—the care recipient has been approved
under Part 2.3 as a recipient of residential care; and
(b) an *accommodation bond is not payable in
respect of that re‑entry.
(2) If an agreement is made as mentioned in subsection (1):
(a) retention amounts must not be
deducted in respect of the period:
(i) beginning on the day
when the care recipient ceased to be provided with residential care or flexible
care (as applicable); and
(ii) ending when the care
recipient re‑enters the service; and
(b) the period of 5 years referred to
in subsection 57‑20(4) is to be worked out excluding the period referred
to in paragraph (a) of this subsection.
Subdivision 57‑H—Charging
an accommodation bond instead of an accommodation charge
57‑23
Charging an accommodation bond instead of an accommodation charge
(1) This section applies if:
(a) a care recipient has entered into
an *accommodation
bond agreement (the original agreement) for *entry to an aged
care service (the original service) that is a residential care
service or a flexible care service; and
(b) the care recipient ceases being
provided with residential care or flexible care through the original service
(other than because the care recipient is on *leave); and
(c) within 28 days after the
cessation, the care recipient enters another aged care service (the later
service) that is a residential care service or a flexible care service
and for which entry an *accommodation charge would become payable (disregarding
subparagraph 57A‑2(1)(a)(iv)); and
(d) the approved provider of the later
service and the care recipient agreed, before the care recipient entered the
later service, that an accommodation bond, instead of an accommodation charge,
can be charged for the entry of the person to the later service.
(2) If this section applies:
(a) the approved provider of the later
service can charge an *accommodation bond for the *entry of the person to the later service;
and
(b) if the care recipient has paid the
full amount of the accommodation bond relating to the original agreement—the
maximum amount of the new accommodation bond is the amount of the accommodation
bond balance that was refunded or is payable to the care recipient under
section 57‑21 in respect of the accommodation bond relating to the
original agreement; and
(c) in any other case—the maximum
amount of the new accommodation bond is the amount of the accommodation bond
that was payable under the original agreement, less any retention amounts that
would have been permitted to be deducted under section 57‑20 in
respect of the original service if the accommodation bond had been paid as a
lump sum.
Division 57A—What are the responsibilities relating to accommodation
charges?
57A‑1
What this Division is about
If an approved provider charges an *accommodation
charge for the *entry
of a care recipient to a residential care service, several rules must be
followed. These relate particularly to *accommodation charge agreements, the amount of the
charge that accrues and its payment, and treatment of charge payments received.
Table of Subdivisions
57A‑A The basic rules
57A‑B Accommodation charge agreements
57A‑C Daily accrual amounts of accommodation
charges
57A‑D Payment of accommodation charges
Subdivision 57A‑A—The basic rules
57A‑2
Basic rules about accommodation charges
(1) The rules relating to charging an *accommodation
charge for the *entry
of a person to a residential care service as a care recipient are as follows:
(a) at the time of entry, all of the following
must be true:
(i) the person requires a *high level of
residential care;
(ii) the person’s approval
as a care recipient of residential care is not limited under section 22‑2
to a *low
level of residential care;
(iii) the service, or the *distinct part of
the service through which the care recipient is to receive care, does not have *extra service
status;
(iv) section 57‑23
does not allow the approved provider to charge an *accommodation bond for the entry;
Note: A *concessional resident cannot be required to pay an
accommodation charge—see section 57A‑6.
(b) the person is not a *charge exempt
resident;
(c) the entry must not be for the
purpose of the provision of *respite care;
(d) the approved provider must, before
the care recipient enters the service, provide the care recipient with such
information about the accommodation charge as is specified in the User Rights
Principles;
(e) the approved provider must have
entered into an *accommodation
charge agreement (see section 57A‑3) with the care recipient before,
or within 21 days after, the care recipient entered the service;
Note: This time limit is extended in some cases if
certain legal processes relating to the care recipient’s mental impairment are
in progress—see subsection (2) of this section.
(f) another person must not be
required to pay the accommodation charge as a condition of the care recipient
entering the residential care service;
(g) the daily amount at which the
accommodation charge accrues must not exceed the maximum provided for by
section 57A‑6 and the care recipient must not be charged more than
one accommodation charge in respect of entering the service;
(h) the accommodation charge must not
accrue for any day in contravention of the requirements of section 57A‑7
(which deals with cessation of the provision of care) or 57A‑8 (which
deals with *certification
of the residential care service);
(i) the accommodation charge must not
be charged if a determination is in force under section 57A‑9 that
paying an accommodation charge would cause the care recipient financial
hardship;
(j) the approved provider must comply
with the requirements of section 57A‑11 relating to payment of the
accommodation charge;
(k) the care recipient may be required
in accordance with section 57A‑12 to pay interest to the approved
provider if some or all of the accommodation charge is not paid within the time
that section permits;
(l) the approved provider must use
any payment of the accommodation charge it receives in the following ways:
(i) to meet capital works
costs relating to residential care;
(ii) to retire debt
relating to residential care;
(iii) where no capital
expenditure is reasonably necessary to comply with matters specified in the
Certification Principles for the purposes of subsection 38‑3(3) and
meeting accreditation requirements—to improve the quality and range of *aged care
services;
(m) the approved provider must not
charge an accommodation charge if prohibited under Part 4.4 from doing so
(see paragraph 66‑1(j));
(n) any other rules specified in the
User Rights Principles.
(2) If, at the end of the 21 days mentioned
in paragraph (1)(e):
(a) the approved provider and the care
recipient have not entered into an *accommodation charge agreement; and
(b) a process under a law of the
Commonwealth, a State or a Territory has begun for a person (other than an
approved provider) to be appointed, by reason that the care recipient has a
mental impairment, as the care recipient’s legal representative;
the time limit in that paragraph is extended until the end
of 7 days after:
(c) the appointment is made; or
(d) a decision is made not to make the
appointment; or
(e) the process ends for some other
reason;
or for such further period as the Secretary allows, having
regard to any matters specified in the User Rights Principles.
Subdivision 57A‑B—Accommodation charge agreements
57A‑3
Contents of accommodation charge agreements
(1) An agreement between an approved provider
and a person proposing to *enter, or having entered, as a care recipient to a
residential care service through which the approved provider provides care is
an accommodation charge agreement if it sets out the following:
(a) the amount of the *accommodation
charge that:
(i) will accrue for each
day (including a day on which the care recipient is on *leave from the residential care
service) if the care recipient enters the service; or
(ii) if the care recipient
has already entered the residential care service—has accrued and will accrue
for each day (including a day on which the care recipient is on *leave from the
service);
(b) the care recipient’s proposed date
of entry, or date of entry, to the residential care service;
(c) how the accommodation charge is to
be paid;
(d) the time or times when the
accommodation charge is payable;
(e) whether agreeing to pay the
accommodation charge entitles the care recipient to specific accommodation or
additional services within the residential care service;
(f) any financial hardship provisions
that apply to the care recipient;
(g) such other matters as are
specified in the User Rights Principles.
(2) The User Rights Principles may specify,
but are not limited to, matters relating to the following:
(a) the specific entitlements of care
recipients arising from entering into an *accommodation charge agreement;
(b) the
provision of information to third parties about accommodation charges and
related matters;
(c) a
care recipient’s obligations;
(d) alleviating financial hardship.
57A‑4
Accommodation charge agreements may be incorporated into other agreements
For the purposes of this Division, a
person is taken to have entered into an *accommodation charge agreement if the
person has entered into an agreement that contains the provisions required by
section 57A‑3.
Example: These provisions may be included in a *resident
agreement.
57A‑5
Agreements cannot affect requirements of this Division
The requirements of this Division apply
despite any provision of an *accommodation charge agreement, or any other agreement, to
the contrary.
Subdivision 57A‑C—Daily accrual amounts of accommodation charges
57A‑6
Maximum daily accrual amount of accommodation charge
(1) Subject to subsection (2), the
maximum daily amount at which an *accommodation charge accrues for the *entry of a person
as a care recipient to a residential care service is whichever is the lowest of
the following:
(a) the amount of the daily accrual of
the accommodation charge as specified in the *accommodation charge agreement;
(b) the amount obtained by:
(i) taking the amount
that, when subtracted from an amount equal to the value of the care recipient’s
assets at the time of the care recipient’s entry to the residential care
service, leaves an amount at least equal to the care recipient’s minimum
permissible asset value as defined in subsection 57‑12(3); and
(ii) dividing the result by
1,825;
(c) such amount as is specified in, or
worked out in accordance with, the User Rights Principles.
Note: The operation of this section may be modified
if, before entering into an accommodation charge agreement, the care recipient
gives the approved provider a determination under section 44‑8AB of
the value of the care recipient’s assets. See subsection (4).
(2) If:
(a) a care recipient proposes to *enter a
residential care service conducted by an approved provider; and
(b) the care recipient does not,
before entering into an *accommodation charge agreement, give the approved provider
sufficient information about the care recipient’s assets for the approved
provider to be able to determine the amounts referred to in paragraph (1)(b);
the maximum daily amount at which an *accommodation
charge accrues is the lesser of the amounts mentioned in paragraphs (1)(a)
and (c).
(3) The value of a care recipient’s assets is
to be worked out in the same way as it would be worked out under section 44‑10
for the purposes of section 44‑7 or 44‑8.
(4) However, subsections (1) and (2) are
modified as described in the table, and subsection (3) does not apply, if,
before entering into the *accommodation charge agreement, the care recipient gives
the approved provider a copy of a determination that:
(a) is a determination under section 44‑8AB
of the value of the care recipient’s assets at a time (the valuation time)
that is before or at the time (the entry time) the care recipient
*enters the
residential care service; and
(b) is in force at the entry time, if
that is after the valuation time.
|
Modifications of subsections (1)
and (2)
|
|
|
If:
|
Subsections (1)
and (2) have effect as if:
|
|
1
|
The valuation time is before the entry time
|
(a) the reference in paragraph (1)(b)
to the time of the care recipient’s *entry to the residential care service were a
reference to the valuation time; and
(b) the value of the care
recipient’s assets at the valuation time were the value specified in the
determination; and
(c) subsection 57‑12(3)
defined minimum permissible asset value by reference to the *basic age
pension amount at the valuation time (instead of the entry time)
|
|
2
|
The valuation time is at the entry time
|
The value of the care recipient’s assets at the entry time
were the value specified in the determination
|
57A‑7
Accommodation charge not to accrue after provision of care has ceased
(1) An *accommodation charge for *entry to a
residential care service must not accrue for any day after the provision of
care to the care recipient through that residential care service ceases.
57A‑8
Accommodation charge not to accrue while residential service not certified
An *accommodation charge for *entry to a
residential care service must not accrue for any day during which the service
is not *certified.
57A‑9
Accommodation charge not payable in cases of financial hardship
(1) The Secretary may determine, in
accordance with the User Rights Principles, that a person must not be charged
an *accommodation
charge because payment of an accommodation charge would cause the person
financial hardship.
Note: Refusals to make determinations are reviewable
under Part 6.1.
(2) Without limiting the circumstances that
constitute financial hardship for the purposes of this section, such
circumstances include any circumstances specified in the User Rights
Principles.
(3) The determination ceases to be in force
at the end of a specified period or on the occurrence of a specified event, if
the determination so provides.
Note: Decisions to specify periods or events are
reviewable under Part 6.1.
(4) Application may be made to the Secretary,
in the form approved by the Secretary, for a determination under subsection (1)
that payment of an *accommodation
charge would cause the person financial hardship. The application may be made
by:
(a) the person; or
(b) an approved provider to which the
accommodation charge would otherwise be paid.
(5) If the Secretary needs further
information to determine the application, the Secretary may give to the
applicant a notice requiring the applicant to give the further information:
(a) within 28 days after receiving the
notice; or
(b) within such other period as is
specified in the notice.
The application is taken to have been withdrawn if the
information is not given within whichever of those periods applies. The notice
must contain a statement setting out the effect of this subsection.
Note: The period for giving the further information
can be extended—see section 96‑7.
(6) The Secretary must notify the person and
the approved provider, in writing, of the Secretary’s decision on whether to
make the determination. The notice must be given:
(a) within 28 days after receiving the
application; or
(b) if the Secretary has requested
further information under subsection (5)—within 28 days after receiving
the information.
(7) If the Secretary makes the determination,
the notice must set out:
(a) any period at the end of which; or
(b) any event on the occurrence of
which;
the determination will cease to be in force.
57A‑10
Revocation of determinations of financial hardship
(1) The Secretary may, in accordance with the
User Rights Principles, revoke a determination made under section 57A‑9.
Note: Revocations of determinations are reviewable
under Part 6.1.
(2) Before deciding to revoke the
determination, the Secretary must notify the person, and an approved provider
who is providing or is to provide residential care to the person, that
revocation is being considered. The notice must be in writing and must:
(a) invite the person and the approved
provider to make submissions, in writing, to the Secretary within 28 days after
receiving the notice; and
(b) inform them that if no submissions
are made within that period, the revocation takes effect on the day after the
last day for making submissions.
(3) In making the decision whether to revoke
the determination, the Secretary must consider any submissions received within
the period for making submissions. The Secretary must make the decision within
28 days after the end of that period.
(4) The Secretary must notify, in writing,
the person and the approved provider of the decision.
(5) The notice must be given to the person
and the approved provider within 28 days after the end of the period for making
submissions. If the notice is not given within that period, the Secretary is
taken to have decided not to revoke the determination.
(6) A revocation has effect:
(a) if the person and the approved
provider received notice under subsection (4) on the same day—the day
after that day; or
(b) if they received the notice on
different days—the day after the later of those days.
Subdivision 57A‑D—Payment of accommodation charges
57A‑11
Accommodation charge may be payable not more than one month in advance
(1) A care recipient may be required to pay
an *accommodation
charge at a time before the day for which the charge will accrue.
(2) However, the time must not be more than
one month before the day for which the charge will accrue and, if the charge
does not in fact accrue, the care recipient is entitled to a refund of the
amount paid.
57A‑12
Approved provider may charge interest
(1) If:
(a) a care recipient is required,
under an *accommodation
charge agreement, to pay an amount of *accommodation charge to an approved provider; and
(b) the care recipient does not pay
the required amount before the end of one month after the day for which the
charge accrues; and
(c) the
agreement provides for interest to be charged on the balance outstanding at a
specified rate;
the care recipient may be
required to pay the approved provider interest on the balance outstanding for
the period beginning at the end of the one month and continuing while the
balance remains unpaid.
(2) However, the rate at which the interest
is charged must not exceed the maximum specified in the User Rights Principles.
Division 58—What are the responsibilities relating to resident fees?
58‑1
Responsibilities relating to resident fees
The responsibilities relating to
resident fees charged for, or in connection with, the provision to a care
recipient of care and services that it is the approved provider’s
responsibility under paragraph 54‑1(1)(a) to provide, are as follows:
(a) subject to section 58‑6,
the resident fee in respect of any day must not exceed the sum of:
(i) the maximum daily
amount set under section 58‑2; and
(ii) such other amounts as
are specified in, or worked out in accordance with, the User Rights Principles;
(b) the care recipient must not be
required to pay resident fees more than one month in advance;
(c) the care recipient must not be
required to pay resident fees for any period prior to *entry to the residential care
service, other than for a period in which the care recipient is, because of
subsection 42‑3(3), taken to be on *leave under section 42‑2;
(d) if the care recipient dies or
departs from the service—any fees paid in advance in respect of a period
occurring after the care recipient dies or leaves must be refunded in
accordance with the User Rights Principles.
58‑2
Maximum daily amount of resident fees
The maximum daily amount of resident
fees payable by the care recipient is the amount worked out as follows:
Resident
fee calculator
Step 1. Work
out the *standard
resident contribution for the care recipient using section 58‑3 or
58‑4 (whichever is applicable).
Step 2. Add
the compensation payment reduction (if any) applicable to the care recipient on
the day in question (see section 44‑20).
Step 3. Add
the *daily income
tested reduction (if any) applicable to the care recipient on that day (see
sections 44‑21 to 44‑23).
Step 4. Subtract the
amount of any hardship supplement (expressed as a daily amount) applicable to
the care recipient on the day in question under section 44‑30.
Step 5. Add any other
amounts agreed between the care recipient and the approved provider in
accordance with the User Rights Principles.
Step 6. If, on the day in
question, the *place
in respect of which residential care is provided to the care recipient has *extra service
status, add the extra service amount in respect of the place worked out under
section 58‑5.
The result is the maximum daily
amount of resident fees for the care recipient.
58‑3
Standard resident contribution—people not receiving income support payments
(1) The standard resident contribution
for a care recipient who is not receiving an *income support payment is:
(a) $26.40; or
(b) that amount as indexed from time
to time in the same way that it would be indexed under the Social Security
Act 1991 if it were the annual maximum basic rate under section 1064‑B1
of that Act applying to a person who is not a member of a couple (within the
meaning of that section);
whichever is the larger amount.
(2) However, the standard resident
contribution for a care recipient who:
(a) has a *dependent child; or
(b) is
being provided with *respite
care;
is an amount equal to the *standard pensioner contribution.
58‑4
Standard resident contribution—people receiving income support payments
(1) The standard resident contribution
for a care recipient who is receiving an *income support payment is an amount equal
to the *standard
pensioner contribution.
(2) However, the standard resident
contribution for a care recipient who is receiving an *income support
payment and who does not have a *dependent child is the amount worked out under section 58‑3
if:
(a) for *entry to the residential care service in
question, the care recipient paid an *accommodation bond that exceeded the amount
obtained by rounding to the nearest $500.00 (rounding $250.00 upwards) an
amount equal to 10 times the *basic age pension amount at the time of entry; or
(b) the *daily income tested reduction in respect
of the care recipient is an amount worked out under section 44‑23.
(3) For the purposes of paragraph (2)(a),
if the care recipient has elected under subsection 57‑17(1) to pay an *accommodation bond
by periodic payments, the amount of the accommodation bond is taken to be what
would have been payable by the care recipient in accordance with Subdivision 57‑E
had the care recipient paid it as a lump sum.
58‑5
Extra service amount
The extra service amount
in respect of the *place
referred to in step 6 of the resident fee calculator in section 58‑2
is the sum of:
(a) the extra service fee in force for
the place on the day in question (see Division 35); and
(b) an amount equal to 25% of that
extra service fee.
58‑6
Maximum daily amount of resident fees for reserving a place
If:
(a) a care recipient is absent from a
residential care service on a particular day; and
(b) the person is not on *leave from the
residential care service on that day because of the operation of paragraph 42‑2(3)(c);
the maximum fee in respect of a day that can be charged
for reserving a place in the residential care service for that day is the sum
of the following amounts:
(c) the maximum daily amount under
section 58‑2 that would have been payable by the care recipient if
the care recipient had been provided with residential care through the
residential care service on that day;
(d) the amount that would have been
the amount of *residential
care subsidy under Division 44 for the care recipient in respect of that
day, if the care recipient had been provided with residential care through the
residential care service on that day.
Division 59—What are the requirements for resident agreements?
59‑1
Requirements for resident agreements
(1) A resident agreement entered into between
a care recipient and an approved provider must specify:
(a) the residential care service in
which the approved provider will provide care to the care recipient; and
(b) the levels of care and services
that the approved provider has the capacity to provide to the care recipient
while the care recipient is being provided with care through the residential
care service; and
(c) the policies and practices that
the approved provider will follow in setting the fees that the care recipient
will be liable to pay to the approved provider for the provision of the care
and services; and
(d) if the care recipient is not to *enter the
residential care service on a permanent basis—the period for which the care and
services will be provided, and (if applicable) any *respite care booking fee; and
(e) the circumstances in which the
care recipient may be asked to depart from the residential care service; and
(f) the assistance that the approved
provider will provide to the care recipient to obtain alternative accommodation
if the care recipient is asked to depart from the residential care service; and
(g) the complaints resolution
mechanism that the approved provider will use to address complaints made by or
on behalf of the care recipient; and
(h) the care recipient’s
responsibilities as a resident in the residential care service.
(2) In
addition, a *resident
agreement must comply with any requirements specified in the User Rights
Principles relating to:
(a) the way in which, and the process
by which, the agreement is to be entered into; or
(b) the period within which the agreement
is to be entered into; or
(c) any provisions that the agreement
must contain; or
(d) any other matters with which the
agreement must deal.
(3) A *resident agreement
must not contain any provision that would have the effect of the care recipient
being treated less favourably in relation to any matter than the care recipient
would otherwise be treated, under any law of the Commonwealth, in relation to
that matter.
Note: A residential care agreement can incorporate
the terms of an *extra
service agreement (see paragraph 36‑1(1)(b), and an *accommodation bond
agreement (see section 57‑10) or *accommodation charge agreement (see
section 57A‑4).
Division 60—What are the responsibilities relating to community care
fees?
60‑1
Responsibilities relating to community care fees
The responsibilities relating to
community care fees charged, for the provision to a care recipient of care and
services that it is the approved provider’s responsibility under paragraph 54‑1(1)(a)
to provide, are as follows:
(a) the fee in respect of any day must
not exceed the maximum daily amount under section 60‑2;
(b) the care recipient must not be
required to pay community care fees more than one month in advance;
(c) the care recipient must not be
required to pay community care fees for any period prior to being provided with
the community care;
(d) if the care recipient dies or
provision of community care ceases—any fees paid in advance in respect of a
period occurring after the care recipient’s death, or the cessation of community
care, must be refunded in accordance with the User Rights Principles.
60‑2
Maximum daily amount of community care fees
(1) The maximum daily amount of community
care fees payable by the care recipient is the amount specified in, or
determined in accordance with, the User Rights Principles.
(2) The User Rights Principles may specify
different levels of maximum daily amounts of community care fees having regard
to any or all of the following:
(a) the income of a care recipient;
(b) the nature and level of the care
and services to which the community care fees relate;
(c) reduced levels of community care
fees for a care recipient who would suffer financial hardship if required to
pay the amount of community care fees that would otherwise be payable.
Division 61—What are the requirements for community care agreements?
61‑1
Requirements for community care agreements
(1) A community care agreement entered into
between a care recipient and an approved provider must specify:
(a) the community care service through
which the approved provider will provide care to the care recipient; and
(b) the levels of care and services
that the approved provider has the capacity to provide to the care recipient
while the care recipient is being provided with care through the community care
service; and
(c) the policies and practices that
the approved provider will follow in setting the fees that the care recipient
will be liable to pay to the approved provider for the provision of the care
and services; and
(d) if the care recipient is not to be
provided with the community care service on a permanent basis—the period for
which the care and services will be provided; and
(e) the circumstances in which
provision of the community care may be suspended or terminated by either party,
and the amounts that the care recipient will be liable to pay to the approved
provider for any period of suspension; and
(f) the complaints resolution
mechanism that the approved provider will use to address complaints made by or
on behalf of the person; and
(g) the care recipient’s
responsibilities as a recipient of the community care.
(2) In addition, a *community care agreement must
comply with any requirements specified in the User Rights Principles relating
to:
(a) the way in which, and the process
by which, the agreement is to be entered into; or
(b) the period within which the
agreement is to be entered into; or
(c) any provisions that the agreement
must contain; or
(d) any other matters with which the
agreement must deal.
(3) A *community care agreement must not contain
any provision that would have the effect of the care recipient being treated
less favourably in relation to any matter than the care recipient would
otherwise be treated, under any law of the Commonwealth, in relation to that
matter.
Division 62—What are the responsibilities relating to protection of
personal information?
62‑1
Responsibilities relating to protection of personal information
The responsibilities relating to
protection of *personal
information, relating to a person to whom the approved provider provides *aged care, are as
follows:
(a) the personal information must not
be used other than:
(i) for a purpose
connected with the provision of aged care to the person by the approved
provider; or
(ii) for a purpose for
which the personal information was given by or on behalf of the person to the
approved provider;
(b) except with the written consent of
the person, the personal information must not be disclosed to any other person
other than:
(i) for a purpose
connected with the provision of aged care to the person by the approved
provider; or
(ii) for a purpose
connected with the provision of aged care to the person by another approved
provider, but only so far as the disclosure relates to the person’s *accommodation bond
balance or the period for which retention amounts may be deducted under section 57‑20
or to the person’s remaining liability (if any) to pay an *accommodation
charge; or
(iii) for a purpose for
which the personal information was given by or on behalf of the person; or
(iv) for the purpose of
complying with an obligation under section 9‑3A or subsection 93‑1(1)
or a requirement under the Prudential Standards made under section 57‑4;
(c) the personal information must be
protected by security safeguards that it is reasonable in the circumstances to
take against the loss or misuse of the information.
62‑2
Giving personal information to courts etc.
This Division does not prevent *personal
information being given to a court, or to a tribunal, authority or person
having the power to require the production of documents or the answering of
questions, in accordance with a requirement of that court, tribunal, authority
or person.
Part 4.3—Accountability etc.
Division 63—Accountability etc.
63‑1
Responsibilities of approved providers
(1) The responsibilities of an approved
provider in relation to accountability for the *aged care provided by the approved
provider through an *aged
care service are as follows:
(a) to comply with Part 6.3 in
relation to keeping and retaining records relating to the service;
(b) to co‑operate with any
person who is exercising powers under Part 6.4 in relation to the service,
and to comply with that Part in relation to the person’s exercise of those
powers;
(c) to notify any change of
circumstances under subsection 9‑1(1), and to provide information under
subsections 9‑2(2), 9‑3(2) and 9‑3A(2);
(d) to comply with any conditions to
which the allocation of any of the *places included in the service is subject under section 14‑5
or 14‑6;
(e) if the approved provider has
transferred places to another person—to provide records, or copies of records,
to that person in accordance with section 16‑10;
(f) if the approved provider has *relinquished
places—to comply with the obligations under subsections 18‑2(4) and 18‑4(1);
(g) to allow people authorised by the
Secretary access to the service, as required under the Accountability
Principles, in order to assess, for the purposes of section 22‑4,
the care needs of any person provided with care through the service;
(h) to conduct in a proper manner any
appraisals under section 25‑3, or reappraisals under section 28‑2,
of the care needs of care recipients provided with care through the service;
(i) if
the service, or a *distinct
part of the service, has *extra service status—to comply with any conditions to which
the grant of extra service status is subject under section 32‑8;
(j) to allow people authorised by the
Secretary access to the service, as required under the Accountability
Principles, in order to review the *certification of the service under section 39‑4;
(k) to comply with any agreement the
approved provider makes under paragraph 66‑2(1)(b), and with any
undertaking the approved provider gives for the purposes of section 67‑4;
(l) to allow people acting for *accreditation
bodies to have such access to the service as is specified in the Accountability
Principles;
(m) such
other responsibilities as are specified in the Accountability Principles.
Note: The Accountability Principles are made by the
Minister under section 96‑1.
(2) The responsibilities under this section
apply in relation to matters concerning a person to whom the approved provider
provides, or is to provide, care through an *aged care service only if:
(a) subsidy is payable under Chapter 3
for provision of the care to that person; or
(b) the person is approved under Part 2.3
as the recipient of the type of *aged care provided through the service.
63‑1A
Responsibility relating to the basic suitability of key personnel
(1) The responsibility of an approved
provider in relation to the basic suitability of its *key personnel is to comply with subsection (2).
(2) An approved provider must take all
reasonable steps specified in the Sanctions Principles to ensure that none of
its *key
personnel is a *disqualified
individual.
63‑2
Annual report on the operation of the Act
(1) The Minister must, as soon as practicable
after 30 June but before 30 November in each year, cause to be laid
before each House of the Parliament a report on the operation of this Act
during the year ending on 30 June of that year.
(2) A report under subsection (1) must
include information about the following matters:
(a) the extent of unmet demand for
places; and
(b) the adequacy of the Commonwealth
subsidies provided to meet the care needs of residents; and
(c) the extent to which providers are
complying with their responsibilities under the Act; and
(d) the amounts of *accommodation
bonds and *accommodation
charges charged; and
(e) the duration of waiting periods
for entry to residential care; and
(f) the extent of building, upgrading
and refurbishment of aged care facilities; and
(g) the imposition of any sanctions
for non‑compliance under Part 4.4, including details of the nature
of the non‑compliance and the sanctions imposed;
but is not limited to information about those matters.
Part 4.4—Consequences of non‑compliance
Division 64—Introduction
64‑1
What this Part is about
Sanctions can be imposed on an
approved provider that does not comply with its responsibilities under Part 4.1,
4.2 or 4.3. Certain procedures must be followed if sanctions are to be imposed.
Table of Divisions
64 Introduction
65 When can sanctions be imposed?
66 What sanctions can be imposed?
66A Establishment of administrator panel and
adviser panel
67 How are sanctions imposed?
67A When do sanctions take effect?
68 When do sanctions cease to apply?
64‑2
The Sanctions Principles
The imposition of sanctions on approved
providers is also dealt with in the Sanctions Principles. The provisions of
this Part indicate when a particular matter is or may be dealt with in these
Principles.
Note: The Sanctions Principles are made by the
Minister under section 96‑1.
Division 65—When can sanctions be imposed?
65‑1
Imposition of sanctions
The Secretary may impose sanctions (see
Division 66) on an approved provider if:
(a) the approved provider has not
complied, or is not complying, with one or more of its responsibilities under
Part 4.1, 4.2 or 4.3; and
(b) the Secretary is satisfied that it
is appropriate to impose sanctions on the approved provider (see section 65‑2);
and
(c) the
Secretary complies with the requirements of Division 67.
Note: Decisions to impose sanctions are reviewable
under Part 6.1.
65‑2
Appropriateness of imposing sanctions
In deciding whether it is appropriate to
impose sanctions on an approved provider for non‑compliance with one or
more of its responsibilities under Part 4.1, 4.2 or 4.3, the Secretary
must consider the following:
(a) whether the non‑compliance
is of a minor or serious nature;
(b) whether the non‑compliance
has occurred before and, if so, how often;
(c) whether the non‑compliance
threatens the health, welfare or interests of care recipients;
(d) whether the approved provider has
failed to comply with any undertaking to remedy the non‑compliance;
(e) any other matters specified in the
Sanctions Principles.
Division 66—What sanctions can be imposed?
66‑1
Sanctions that may be imposed
The Secretary may, by notice under
section 67‑5, impose one or more of the following sanctions on an
approved provider that has not complied, or is not complying, with one or more
of its responsibilities under Part 4.1, 4.2 or 4.3:
(a) revoking or suspending the
approved provider’s approval under Part 2.1 as a provider of *aged care
services;
(b) restricting the approved
provider’s approval under Part 2.1 as a provider of aged care services to
aged care services that are being conducted by the approved provider at the *section 67‑5
notice time;
(c) restricting the approved
provider’s approval under Part 2.1 as a provider of aged care services to
either:
(i) care recipients to
whom the approved provider is providing care at the *section 67‑5 notice
time; or
(ii) care recipients other
than those to whom the approved provider commenced providing care, through one
or more specified aged care services, after the *section 67‑5 notice time;
(d) revoking or suspending the
allocation of some or all of the *places allocated to the approved provider under Part 2.2;
(e) varying the conditions to which
the allocation of some or all of those places is subject under section 14‑5;
(f) prohibiting the further
allocation of places under Part 2.2 to the approved provider;
(g) revoking or suspending the *extra service
status of a residential care service, or a *distinct part of a residential care
service, conducted by the approved provider;
(h) prohibiting the granting of extra
service status in respect of residential care services, or distinct parts of
residential care services, conducted by the approved provider;
(i) revoking or suspending the *certification of a
residential care service in respect of which the approved provider has not
complied with its responsibilities;
(j) prohibiting the charging of *accommodation
bonds, or the accrual of *accommodation charges, for the *entry of care recipients to:
(i) one or more specified
residential care services; or
(ii) all residential care
services; or
(iii) one or more specified
flexible care services; or
(iv) all flexible care
services;
conducted by the approved
provider;
(k) requiring repayment of some or all
of any grants paid to the approved provider under Chapter 5 in respect of
an aged care service in respect of which the approved provider has not complied
with its responsibilities;
(l) such other sanctions as are
specified in the Sanctions Principles.
66‑2
Agreement to certain matters in lieu of revocation of approved provider status
(1) If revocation of the approved provider’s
approval under Part 2.1 as a provider of *aged care services is imposed as a
sanction, the revocation does not take effect if:
(a) the Secretary specifies, in the
notice of imposition of the sanction under section 67‑5, that the
revocation will not take effect if, within the period specified in the notice,
the approved provider agrees to whichever one or more of the following is
specified in the notice:
(i) providing, at its
expense, such training as is specified in the notice for its officers, employees
and agents;
(ii) providing such
security as is specified in the notice for any debts owed by the approved
provider to the Commonwealth;
(iii) appointment by the
approved provider, in accordance with the Sanctions Principles, and in
accordance with section 66A‑2, of an adviser approved by the
Commonwealth to assist the approved provider to comply with its
responsibilities;
(iv) appointment by the
approved provider, in accordance with the Sanctions Principles, and in
accordance with section 66A‑3 of an administrator approved by the
Commonwealth to administer an aged care service in respect of which the
approved provider has not complied with its responsibilities;
(v) transferring some or
all of the *places
allocated to the approved provider under Part 2.2 to another approved
provider;
(vi) such other matters as
are specified in the Sanctions Principles; and
(b) within
that period, the approved provider agrees accordingly.
Note: Approved providers have a responsibility under
paragraph 63‑1(1)(k) to comply with an agreement. Failure to comply with
this responsibility can result in a further sanction being imposed under this
Part.
(2) The reference in subparagraph (1)(a)(iii)
to appointment of an adviser does not include appointment of the Commonwealth
as an adviser.
(3) The reference in subparagraph (1)(a)(iv)
to appointment of an administrator does not include appointment of the
Commonwealth as an administrator.
Division 66A—Establishment of administrator panel and adviser panel
66A‑1
Establishment of administrator panel and adviser panel
(1) There is to be a panel of:
(a) administrators (the administrator
panel); and
(b) advisers (the adviser panel).
(2) The Secretary may appoint a person to a
panel mentioned in subsection (1) if:
(a) the Secretary is satisfied that
the person:
(i) has at least 3 years’
experience in senior positions in managing, or providing professional advice
and support to, an aged care service or a similar undertaking; and
(ii) is not a *disqualified
individual; and
(b) the Secretary is also satisfied
that, if the person were appointed to the panel, there would not be a conflict
of interest between the person’s duties as a member and any other interests or
duties of the person; and
(c) the person is not a Commonwealth
officer or employee.
(2A) Each panel is to include at least one
registered medical practitioner.
(3) A person is appointed to a panel for the
term stated in the instrument of appointment.
(4) The Secretary may terminate a person’s
appointment to a panel by writing signed by the Secretary and given to the
person.
(4A) A notice under subsection (4) must
include a statement of reasons for the termination of the person’s appointment.
(5) A person may resign an appointment by
writing signed by him or her and given to the Secretary.
66A‑2
Appointment of advisers
(1) A person is eligible to be appointed as
an adviser only if the person:
(a) is a member of the adviser panel;
and
(b) has not been one of the *key personnel of
an approved provider whose approval under Part 2.1 has been revoked; and
(c) has not been one of the relevant
personnel of a body whose application for approval as a provider of aged care
services has been refused.
(2) If the approved provider agrees to
appoint an adviser, the approved provider must, within 5 working days after the
*section 67‑5
notice time:
(a) nominate, in writing, a proposed
adviser to the Secretary; and
(b) give the Secretary written
information about the proposed adviser to allow the Secretary to decide whether
the proposed adviser is suitable.
(3) If the Secretary approves the proposed
appointment, the appointment must be made within one working day after the
approved provider is informed of the Secretary’s approval.
66A‑3
Appointment of administrators
(1) A person is eligible to be appointed as
an administrator only if the person:
(a) is a member of the administrator
panel; and
(b) has not been one of the *key personnel of
an approved provider whose approval under Part 2.1 has been revoked; and
(c) has not been one of the relevant
personnel of a body whose application for approval as a provider of aged care
services has been refused.
(2) If the approved provider agrees to
appoint an administrator, the approved provider must, within 5 working days
after the *section 67‑5
notice time:
(a) nominate, in writing, a proposed
administrator to the Secretary; and
(b) give the Secretary written
information about the proposed administrator to allow the Secretary to decide
whether the proposed administrator is suitable.
(3) If the Secretary approves the proposed
appointment, the appointment must be made within one working day after the
approved provider is informed of the Secretary’s approval.
66A‑4
Powers of administrators and advisers
(1) The Secretary must provide to a person
appointed under section 66A‑2 or 66A‑3 a report on the
relevant aged care service which includes the following information:
(a) all relevant accreditation,
certification and review audit reports on the service;
(b) the current classification of all
residents;
(c) the Commonwealth subsidies paid to
the service;
(d) any debts owed by the service to
the Commonwealth;
(e) a summary of any relevant
complaints about the service, indicating the issues raised and action taken by
the service, without identifying any parties involved; and
(f) any other matters that the
Secretary determines are relevant.
(2) The approved provider must provide to a
person appointed under section 66A‑3 all relevant information
required by the person to administer the service.
(3) The approved provider must allow a person
appointed under section 66A‑3 to manage the service to ensure that
all resident care standards are met and maintained.
(4) If a person appointed under section 66A‑3
is a registered medical practitioner, the approved provider must allow the
person to provide medical services to ensure that all resident care standards
are met.
66A‑5
Interpretation
In this Division:
relevant personnel, in relation to a body,
means any of the following:
(a) if the body is not a State or
Territory—a member of the group of people who are responsible for the executive
decisions of the body;
(b) if the body is not a State or
Territory—anyone else who is concerned in, or takes part in, the management of
the body;
(c) in any case—anyone who is
responsible for the overall nursing care provided by an aged care service
conducted by the body;
(d) in any case—anyone who is
responsible for the day‑to‑day operations of an aged care service
conducted by the body, whether or not the person is employed by the body.
Division 67—How are sanctions imposed?
67‑1
Procedure for imposing sanctions
(1) The Secretary must not impose sanctions
on an approved provider for not complying with one or more of its
responsibilities under Part 4.1, 4.2 or 4.3 unless the Secretary has
completed each of the following steps:
(a) giving to the approved provider a
notice of non‑compliance (see section 67‑2);
(b) giving to the approved provider:
(i) a notice of intention
to impose sanctions (see section 67‑3); or
(ii) a notice to remedy the
non‑compliance (see section 67‑4); or
(iii) a notice of intention
to impose sanctions in respect of a specified part of the non‑compliance
(see section 67‑3) and a notice to remedy the remainder of the non‑compliance
(see section 67‑4);
(c) giving to the approved provider
notice of the Secretary’s decision on whether to impose sanctions (see section 67‑5).
(2) However, paragraphs (1)(a) and (b)
do not apply if the Secretary is satisfied that, because of the approved
provider’s non‑compliance, there is an immediate and severe risk to the
safety, health or well‑being of care recipients to whom the approved
provider is providing care.
67‑2
Notice of non‑compliance
(1) If the Secretary is satisfied that an
approved provider has not complied, or is not complying, with one or more of
its responsibilities under Part 4.1, 4.2 or 4.3, the Secretary may give to
the approved provider a notice of non‑compliance.
(2) The notice
must be in writing and must:
(a) set out details of the non‑compliance
by the approved provider; and
(b) set out broadly what action the
Secretary requires the approved provider to take to remedy the non‑compliance;
and
(c) set out what sanctions under this
Part can be imposed on the approved provider; and
(d) invite the approved provider to
make submissions, in writing, to the Secretary addressing the matter within 14
days after receiving the notice, or within such shorter period as is specified
in the notice; and
(e) inform the approved provider that
the Secretary may, after considering the submissions (if any), give to the
approved provider:
(i) a notice of intention
to impose sanctions; or
(ii) a notice to remedy the
non‑compliance; or
(iii) a notice of intention
to impose sanctions in respect of a specified part of the non‑compliance
and a notice to remedy the remainder of the non‑compliance.
(3) The Secretary must consider any
submissions made by the approved provider.
67‑3
Notice of intention to impose sanctions
(1) The Secretary may give to the approved
provider a notice of intention to impose sanctions in respect of non‑compliance
by the approved provider with its responsibilities under Part 4.1, 4.2 or
4.3 if the approved provider:
(a) has not made any submissions
addressing the matter in response to a notice under section 67‑2; or
(b) has made such submissions, but the
Secretary thinks the submissions:
(i) do not propose
appropriate action to remedy the non‑compliance; or
(ii) fail to establish that
the non‑compliance did not occur, or is not occurring; or
(iii) do not set out
sufficient reason for the non‑compliance; or
(iv) are otherwise
unsatisfactory.
(2) The notice
must be in writing and must:
(a) set out the nature of the approved
provider’s non‑compliance; and
(b) set out the reasons for proposing
to impose sanctions on the approved provider; and
(c) set out the consequences under
this Act of imposing the proposed sanctions on the approved provider; and
(d) invite the approved provider to
make submissions, in writing, to the Secretary within 14 days after receiving
the notice, or within such shorter period as is specified in the notice; and
(e) inform the approved provider that
the Secretary may, after considering the submissions (if any), impose sanctions
on the approved provider.
(3) The Secretary must consider any
submissions made by the approved provider.
67‑4
Notice to remedy non‑compliance
(1) The Secretary may give to the approved
provider a notice to remedy non‑compliance by the approved provider with
its responsibilities under Part 4.1, 4.2 or 4.3 if:
(a) the approved provider has made
submissions addressing the non‑compliance in response to a notice under
section 67‑2; and
(b) the Secretary thinks the
submissions:
(i) propose appropriate
action to remedy the non‑compliance; or
(ii) set out sufficient
reason for the non‑compliance; or
(iii) are otherwise
satisfactory.
(2) The notice
must be in writing and must:
(a) inform
the approved provider that, within 14 days after receiving the notice, or
within such shorter period as is specified in the notice, the approved provider
must give a written undertaking to the Secretary to remedy the non‑compliance;
and
(b) inform the approved provider that
the Secretary may impose sanctions on the approved provider if the approved
provider does not give, or comply with, the undertaking.
(3) The undertaking must:
(a) be in a form approved by the
Secretary; and
(b) contain a description and
acknowledgment of the approved provider’s non‑compliance with its
responsibilities under Part 4.1, 4.2 or 4.3; and
(c) set out what action the approved
provider proposes to take to remedy the non‑compliance; and
(d) set out the period within which
such action is required to be taken; and
(e) contain an acknowledgment that a
failure by the approved provider to comply with the undertaking may lead to
sanctions being imposed under this Part; and
(f) meet
any requirements specified in the Sanctions Principles.
Note: Approved providers have a responsibility under
paragraph 63‑1(1)(k) to comply with an undertaking. Failure to comply
with this responsibility can result in a sanction being imposed under this
Part.
67‑5
Notice of decision on whether to impose sanctions
(1) The Secretary must notify the approved
provider, in writing, of the Secretary’s decision on whether to impose a
sanction on the approved provider in respect of non‑compliance by the
approved provider with its responsibilities under Part 4.1, 4.2 or 4.3.
(2) If the Secretary decides to impose a
sanction, the notice must set out:
(a) the nature of the approved
provider’s non‑compliance; and
(b) the sanction to be imposed on the
approved provider; and
(c) the consequences under this Act of
imposing the sanction on the approved provider; and
(ca) if the sanction consists of
revoking or suspending the allocation of some or all of the *places allocated
to the approved provider under Part 2.2—the number of allocated places
subject to the sanction; and
(cb) an explanation of when the
sanction takes effect (see Division 67A); and
(d) where applicable, the sanction
period (see section 68‑2); and
(e) the reasons for imposing the
sanction.
(3) If the
Secretary decides not to impose a sanction, the notice must:
(a) specify the nature of the approved
provider’s non‑compliance; and
(b) the reasons for not imposing the
sanction.
Division 67A—When do sanctions take effect?
67A‑1
When this Division applies
This Division applies if the Secretary
gives a notice under section 67‑5 imposing a sanction on an approved
provider.
67A‑2
Basic rule—sanction takes effect at the section 67‑5 notice time
The basic rule is that the sanction
takes effect at the *section 67‑5
notice time.
67A‑3
Exceptions to the basic rule
However, there are 2 exceptions to the
basic rule:
(a) deferral to a later time (see
section 67A‑4);
(b) progressive revocation or
suspension of the allocation of some or all of the *places allocated to the approved provider
under Part 2.2 (see section 67A‑5).
67A‑4
Deferral to a later time
(1) If:
(a) the Secretary decides that the
sanction should take effect at a time that is later than the *section 67‑5
notice time; and
(b) that decision is set out in the
section 67‑5 notice;
the sanction takes effect at that later time.
(2) In making a decision under subsection (1),
the Secretary must have regard to the following:
(a) the desirability of allowing
sufficient time for the taking of reasonable steps to inform:
(i) each care recipient
who is likely to be affected by the imposition of the sanction; and
(ii) a next of kin of such
a care recipient, or an individual who, in the opinion of the Secretary, is
concerned for the safety, health and well‑being of such a care recipient;
about:
(iii) the imposition of the
sanction; and
(iv) the consequences under
this Act of the imposition of the sanction;
(b) any risk to the safety, health or
well‑being of care recipients to whom the approved provider is providing
care;
(c) any other matters specified in the
Sanctions Principles.
(3) If:
(a) the sanction consists of revoking
the approved provider’s approval under Part 2.1 as a provider of *aged care
services; and
(b) the sanction is the only sanction
imposed on the approved provider in relation to non‑compliance with one
or more of its responsibilities under Part 4.1, 4.2 or 4.3; and
(c) paragraph 66‑2(1)(a) does
not apply to the sanction;
then, in making a decision under subsection (1), the
Secretary must ensure that the sanction takes effect within 14 days after the *section 67‑5
notice time.
67A‑5
Progressive revocation or suspension of allocation of places
(1) This section applies to the sanction if:
(a) the sanction consists of revoking
or suspending the allocation of some or all of the *places allocated to the approved provider
under Part 2.2; and
(b) the Secretary decides that the
sanction should take effect on a progressive basis; and
(c) that decision is set out in the
section 67‑5 notice.
Vacant places
(2) If, immediately before the *section 67‑5
notice time, the approved provider was not providing *aged care to a care recipient in
respect of an allocated *place:
(a) the place is taken to be a vacant
place for the purposes of this section; and
(b) the sanction takes effect, in
relation to the vacant place, at the section 67‑5 notice time.
Occupied places
(3) If, immediately before the *section 67‑5
notice time, the approved provider was providing *aged care to a care recipient in respect
of an allocated *place:
(a) the place is taken to be an occupied
place for the purposes of this section; and
(b) the sanction takes effect, in
relation to the occupied place, when the approved provider subsequently ceases
to provide aged care to the care recipient in respect of the occupied place.
(4) For the purposes of paragraph (3)(b),
disregard an occupied place if, at the time of the cessation, the sanction has
already taken effect in relation to the number of allocated *places subject to
the sanction.
Ancillary provisions
(5) This section does not apply unless the
number of allocated *places
subject to the sanction exceeds the number of vacant places.
(6) In making a decision under subsection (1),
the Secretary must have regard to matters specified in the Sanctions
Principles.
Note: See also subsection 42‑2(1), which is
about the provision of residential care when a care recipient is on leave under
section 42‑2.
67A‑6
This Division has effect subject to section 66‑2
This
Division has effect subject to section 66‑2.
Note: Section 66‑2 provides for sanctions
not to take effect in certain cases.
Division 68—When do sanctions cease to apply?
68‑1
Sanctions cease to apply
(1) A sanction that has been imposed on an
approved provider for non‑compliance with its responsibilities under Part 4.1,
4.2 or 4.3 ceases to apply if:
(a) its sanction period ends (see section 68‑2);
or
(b) the Secretary decides under
section 68‑3 that it is appropriate for the sanction to be lifted.
(2) However, this Division does not apply to
any of the following sanctions:
(a) revoking the approved provider’s
approval under Part 2.1 as a provider of *aged care services;
(b) revoking the allocation of some or
all of the *places
allocated to the approved provider under Part 2.2;
(c) revoking the *extra service
status of a residential care service, or a *distinct part of a residential care
service, conducted by the approved provider;
(d) revoking the *certification of
the residential care service in respect of which the approved provider has not
complied with its responsibilities;
(e) requiring repayment of some or all
of any grants paid to the approved provider under Chapter 5 in respect of
an aged care service in respect of which the approved provider has not complied
with its responsibilities.
68‑2
Sanction period
(1) The sanction period for a sanction is the
period fixed by the Secretary in respect of that sanction and specified in the
notice under subsection 67‑5(2).
(1A) The sanction period must be expressed to
begin at the time the sanction takes effect.
(2) In deciding on the length of the sanction
period, the Secretary must have regard to any matters specified in the
Sanctions Principles.
68‑3
Lifting of sanctions
In deciding whether it is appropriate
for the sanction to be lifted, the Secretary must have regard to:
(a) whether the approved provider is
complying with its responsibilities under Parts 4.1, 4.2 and 4.3; and
(b) any
other matter specified in the Sanctions Principles.
Note: Refusals to lift sanctions are reviewable
under Part 6.1.
68‑4
Applications for lifting of sanctions
(1) If a sanction has been imposed on an
approved provider, the approved provider may apply, in writing, to the
Secretary for the sanction to be lifted.
(2) The application must:
(a) be in a form approved by the
Secretary; and
(b) meet any requirements specified in
the Sanctions Principles.
68‑5
Requests for further information
(1) If the Secretary needs further
information to decide the application, the Secretary may give the applicant a
written notice requiring the applicant to give the further information within
14 days after receiving the notice, or within such shorter period as is
specified in the notice.
(2) The
application is taken to be withdrawn if the applicant does not give the further
information within the 14 days, or within the shorter period, as the case
requires. However, this does not stop the applicant from reapplying.
Note: The period for giving the further information
can be extended—see section 96‑7.
(3) The notice must contain a
statement setting out the effect of subsection (2).
68‑6
Notification of Secretary’s decision
(1) The Secretary must notify the approved
provider, in writing, of the Secretary’s decision whether to lift the sanction.
The notice must be given:
(a) within 28 days after receiving the
application; or
(b) if the Secretary has requested further
information under section 68‑5—within 28 days after receiving the
information.
(2) If the Secretary decides that the
sanction is to be lifted, the notice must:
(a) inform the approved provider when
the sanction will cease to apply; and
(b) set out such other matters as are
specified in the Sanctions Principles.
Chapter 5—Grants
Division 69—Introduction
69‑1
What this Chapter is about
The Commonwealth makes grants to
contribute to costs associated with the establishment or enhancement of *aged care
services, with assessments or approvals related to *aged care or with support services
related to the provision of aged care. These grants are:
• *residential care
grants (see Part 5.1);
• *community care
grants (see Part 5.2);
• *assessment grants
(see Part 5.3);
• *accreditation
grants (see Part 5.4);
• *advocacy grants
(see Part 5.5);
• *community visitors
grants (see Part 5.6);
• other
grants (see Part 5.7).
Grants are (in most cases) payable
under agreements with the recipients of the grants, and may be subject to
conditions.
Part 5.1—Residential care grants
Division 70—Introduction
70‑1
What this Part is about
The Commonwealth makes *residential care
grants to contribute towards the *capital works costs associated with some projects
undertaken by approved providers to establish residential care services or to
enhance their capacity to provide residential care.
Table of Divisions
70 Introduction
71 How do people apply for allocations of
residential care grants?
72 How are residential care grants allocated?
73 On what basis are residential care grants
paid?
74 How much is a residential care grant?
70‑2
The Residential Care Grant Principles
*Residential
care grants are also dealt with in the Residential Care Grant Principles. The
provisions in this Part indicate when a particular matter is or may be dealt
with in these Principles.
Note: The Residential Care Grant Principles are made
by the Minister under section 96‑1.
70‑3
Meaning of capital works costs
(1) The capital works costs
relating to residential care include, but are not limited to, the following:
(a) the cost of acquiring land on
which are, or are to be built, the premises needed for providing that care;
(b) the cost of acquiring, erecting,
altering or extending those premises;
(c) the cost of acquiring furniture,
fittings or equipment for those premises;
(d) the cost of altering or installing
furniture, fittings or equipment on those premises.
(2) However,
if:
(a) those premises are, or will be,
part of larger premises; and
(b) another part of the larger
premises is not, or will not be, connected with the provision of residential
care;
any costs that the Secretary is satisfied are attributable
to the other part of the larger premises are taken not to be capital works
costs relating to the residential care in question.
Division 71—How do people apply for allocations of residential care
grants?
71‑1
Applications for residential care grants
A person may apply in writing for the
allocation of a *residential
care grant. However, the application is valid only if:
(a) it is in response to an invitation
to apply for the allocation of residential care grants published by the
Secretary under section 71‑2; and
(b) it is made on or before the
closing date specified in the invitation; and
(c) it
is in a form approved by the Secretary.
Note: An applicant who is not an approved provider
must become an approved provider for a residential care grant to be allocated
(see subsection 72‑1(1)).
71‑2
Invitation to apply
(1) The Secretary may invite
applications for the allocation of *residential care grants.
(2) The invitation must:
(a) specify the amount of money that
is available for allocation as *residential care grants; and
(b) specify the criteria for
allocations of residential care grants (see section 72‑2); and
(c) specify the closing date after
which applications will not be accepted; and
(d) specify all of the matters, of the
kind referred to in subsection 72‑3(1), that will be taken into account
in allocating the residential care grants; and
(e) state that there may be conditions
that approved providers must meet before payments of residential care grants
are made.
(3) The
invitation must be published or notified by such means as the Secretary thinks
appropriate.
71‑3
Requests for further information
(1) If the Secretary needs
further information to determine the application, the Secretary may give to the
applicant a notice requesting the applicant to give the further information
within 14 days after receiving the notice, or within such shorter period as is
specified in the notice.
(2) The
application is taken to be withdrawn if the applicant does not give the further
information within 14 days, or within the shorter period, as the case requires.
Note: The period for giving the further information
can be extended—see section 96‑7.
(3) The notice must contain a statement
setting out the effect of subsection (2).
Division 72—How are residential care grants allocated?
72‑1
Allocation of residential care grants
(1) The Secretary may allocate *residential care
grants to approved providers in respect of the *capital works costs of projects for the
provision of residential care.
(2) The allocation must:
(a) meet the criteria for allocations
(see section 72‑2); and
(b) be the one that best meets the
needs of *people
with special needs (see section 72‑3).
(3) However:
(a) each of the approved providers
must have made a valid application in respect of the allocation (see Division 71);
and
(b) the allocation must comply with
the terms of an invitation published under that Division (see section 72‑4);
except so far as the Secretary waives these requirements
under section 72‑5.
(4) A *residential care grant can only be
allocated to an approved provider:
(a) whose approval under Part 2.1
includes *residential
care (see subsection 8‑1(2)); and
(b) who holds an allocation of places
for *residential
care subsidy under Part 2.2 (whether or not it is a *provisional
allocation), being places that are, or are to be, included in the residential
care service in respect of which the grant is payable; and
(c) in relation to a residential care
service that does not have, and no *distinct part of which has, *extra service status.
72‑2
Criteria for allocations
The
criteria for allocation of a *residential care grant are:
(a) a majority of the care recipients
who receive, or who will receive, the care to which the grant relates must be
either *concessional
residents or *assisted
residents; and
(b) a majority of care recipients who
receive, or who will receive, that care must be *people with special needs or people of a
kind specified in the Residential Care Grant Principles; and
(c) such other criteria as are
specified in the Residential Care Grant Principles.
72‑3
Meeting the needs of people with special needs
(1) In deciding which allocation of *residential care
grants best meets the needs of *people with special needs, the Secretary must consider, in
relation to each grant:
(a) the proportion of the care
recipients, to whom the care to which the grant would relate is or will be
provided, who are *concessional
residents or *assisted
residents; and
(b) the location of the *aged care service,
or proposed aged care service, to which the grant would relate, particularly
whether it is, or will be, in a rural or remote area; and
(c) the availability of other aged
care services in the area in which the aged care service is, or will be,
located; and
(d) the need for the grant in order to
assist in establishing or upgrading the service or proposed service,
particularly the building or upgrading of premises; and
(e) whether there is an urgent need
for the grant because of unforeseen circumstances; and
(f) such other matters as are
specified in the Residential Care Grant Principles.
(2) In considering the matters
referred to in subsection (1), the Secretary must comply with the
requirements of the Residential Care Grant Principles.
72‑4
Compliance with the invitation
The
allocation complies with the terms of the invitation if:
(a) the sum of the amounts allocated
as *residential
care grants does not exceed the amount specified in the invitation as being
available for allocation as residential care grants; and
(b) the Secretary has considered all
valid applications made in respect of the allocation, together with any further
information given under section 71‑3 in relation to those
applications; and
(c) the allocation was made after the
closing date specified in the invitation.
72‑5
Waiver of requirements
The Secretary may waive:
(a) the requirement under paragraph 72‑1(3)(a)
that each approved provider who is allocated a *residential care grant must have made a
valid application in respect of the allocation; or
(b) that requirement and the
requirement under paragraph 72‑1(3)(b) that the allocation must comply
with the terms of an invitation published under Division 71;
if the Secretary is satisfied that:
(c) the provision of residential care
to care recipients is being seriously affected by the condition of the premises
used for providing the care, being premises to which the residential care grant
would relate; or
(d) the premises used for providing
care, being premises to which the residential care grant would relate, have
been so damaged by a disaster that they are unsuitable for the provision of
residential care; or
(e) there is a high need for the
provision of residential care that would not be met unless the residential care
grant is allocated, and it would not be practicable to allocate the grant
without the waiver; or
(f) there are other exceptional
circumstances for justifying the waiver.
72‑6
Notification of allocation
(1) The Secretary must notify, in
writing, each applicant to whom a *residential care grant has been allocated. The notice must
be given within 14 days after the Secretary’s decision under section 72‑1
is made.
(2) The notice must specify:
(a) the amount of the grant (see
Division 74); and
(b) the project to which the grant
relates; and
(c) when the grant, or the instalments
of the grant, will be paid (see Division 73); and
(d) if the grant is to be paid in more
than one instalment—the amounts of the instalments or how they will be worked
out (see Division 73); and
(e) the conditions on which the grant
is payable (see Division 73).
72‑7
Notice to unsuccessful applicants
(1) The Secretary must notify, in writing,
each applicant to whom a *residential care grant has not been allocated. The notice
must be given within 14 days after the Secretary’s decision under section 72‑1
is made.
(2) The notice must set out the reasons for
the applicant not being allocated a grant.
Division 73—On what basis are residential care grants paid?
73‑1
Basis on which residential care grants are paid
(1) A *residential care grant is payable to an
approved provider:
(a) at such time as the Secretary
determines in writing; and
(b) in full or in such instalments as
the Secretary determines in writing.
(2) The grant is subject to such conditions
(if any) as the Secretary determines in writing (see section 73‑2).
(3) The grant is not payable unless the
approved provider enters into an agreement with the Commonwealth under which
the approved provider agrees to comply with the conditions to which the grant
is subject.
73‑2
Conditions of residential care grants
The following are examples of matters
with which the conditions of a *residential care grant may deal:
(a) the kinds of people who are to be
provided with care when the project, in respect of which the grant is payable,
is completed;
(b) the number of *concessional
residents and *assisted
residents who are to be provided with care when the project, in respect of
which the grant is payable, is completed;
(c) the period within which one or
more conditions must be complied with by the approved provider;
(d) the period within which the
residential care service in respect of which the grant is payable is to be
operational;
(e) the period within which the
project is required to be completed;
(f) the amount of money to be
provided by the approved provider for the project;
(g) information to be given to the
Commonwealth by the approved provider;
(h) the approved provider’s compliance
with:
(i) any responsibilities
of the approved provider under Chapter 4; and
(ii) conditions imposed in
respect of other payments made under this Chapter to the approved provider;
(i) certificates about the fulfilment
of conditions;
(j) certificates about the completion
of premises;
(k) the circumstances in which the
grant must be repaid;
(l) giving security to the
Commonwealth for repayment of the grant;
(m) the vesting of property used to
conduct the *aged
care service in respect of which the grant is made;
(n) giving security to the
Commonwealth for payment of amounts (whether or not their total exceeds the
amount of the grant) that, under the conditions, are to be taken to represent
the Commonwealth’s interest in anything acquired or improved as a result
(wholly or partly) of the grant;
(o) the use and the recovery of
amounts (whether or not their total exceeds the amount of the grant) that under
the conditions are to be taken to represent the Commonwealth’s interest in
anything acquired or improved as a result (wholly or partly) of the grant.
73‑3
Grants payable only if certain conditions met
(1) The Secretary may specify which of the conditions
of a *residential
care grant must be met before the grant is payable.
(2) The grant is not payable unless the
approved provider complies with those conditions.
(3) However, payment of the grant to the
approved provider does not affect the approved provider’s obligation to comply
with any other conditions to which the grant is subject.
73‑4
Variation or revocation of allocations
(1) The
Secretary may vary or revoke an allocation of a *residential care grant if the Secretary
is satisfied that a condition to which the allocation is subject has not been
met.
Note: Variations or revocations of allocations are
reviewable under Part 6.1.
(2) A variation of the allocation may be
either or both of the following:
(a) a reduction of the amount of the
grant;
(b) a variation of any of the
conditions to which the allocation is subject.
(3) Before deciding to vary or revoke the
allocation, the Secretary must notify the approved provider that it is being
considered. The notice:
(a) must be in writing; and
(b) must invite the approved provider
to make submissions, in writing, to the Secretary within 28 days after
receiving the notice; and
(c) must inform the approved provider
that, if no submissions are made within that period, the variation or
revocation takes effect on the day after the last day for making submissions.
(4) In making the decision whether to vary or
revoke the allocation, the Secretary must consider any submissions made within
that period.
(5) The Secretary must notify, in writing,
the approved provider of the decision.
(6) The notice must be given to the approved
provider within 28 days after the end of the period for making submissions. If
the notice is not given within that period, the Secretary is taken to have
decided not to vary or revoke the allocation, as the case requires.
(7) A variation or revocation has effect:
(a) if no submissions were made within
the 28 day period—on the day after the last day for making submissions; or
(b) if submissions were made within
that period—on the day after the approved provider receives a notice under subsection (5).
73‑5
Variation of allocations on application of approved provider
(1) An approved provider may at any time
apply to the Secretary for a variation of an allocation of a *residential care
grant to the approved provider.
(2) A variation of the allocation may be
either or both of the following:
(a) a reduction of the amount of the
grant;
(b) a variation of any of the
conditions to which the allocation is subject.
(3) The application must be in the form
approved by the Secretary.
(4) The Secretary must, within 28 days after
receiving the application:
(a) make a variation; or
(b) reject the application;
and, within that period,
notify the approved provider accordingly.
Note: Variations of allocations and rejections of
applications are reviewable under Part 6.1.
73‑6
Agreement taken to be varied
If the Secretary varies, under section 73‑4
or 73‑5, one or more of the conditions of an allocation, the agreement
entered into under subsection 73‑1(3) is taken to be varied accordingly.
73‑7
Appropriation
Payments by the Commonwealth under this
Part are to be made out of money appropriated by the Parliament for the
purpose.
Division 74—How much is a residential care grant?
74‑1
The amount of a residential care grant
(1) The amount of a *residential care grant is the
amount specified in, or worked out in accordance with, the Residential Care
Grant Principles.
(2) However, the amount of a grant to an
approved provider must not exceed the difference between:
(a) the *capital works costs of the project in
respect of which the grant is payable; and
(b) the sum of the money (if any)
spent, and the money presently available for expenditure, by the approved
provider towards the capital works costs of the project.
(3) The following are examples of matters
with which the Residential Care Grant Principles may deal in relation to the
amounts of *residential
care grants:
(a) the purpose for which the grant is
required;
(b) the cost of the project, including
any cost of acquiring and developing land;
(c) the capacity of the approved
provider to borrow money for the project;
(d) the capacity of the approved
provider, or the proposed care recipients of the residential care when the
project is completed, to contribute to funding the project;
(e) the kind of people who are to be
care recipients of the residential care;
(f) limits on the amounts of
residential care grants.
Part 5.2—Community care grants
Division 75—Introduction
75‑1
What this Part is about
The Commonwealth makes *community care
grants to contribute towards the costs associated with some projects undertaken
by approved providers to establish community care services or to enhance their
capacity to provide community care.
Table of Divisions
75 Introduction
76 How are community care grants allocated?
77 On what basis are community care grants
paid?
78 How much is a community care grant?
75‑2
The Community Care Grant Principles
*Community
care grants are also dealt with in the Community Care Grant Principles. The
provisions in this Part indicate when a particular matter is or may be dealt
with in these Principles.
Note: The Community Care Grant Principles are made
by the Minister under section 96‑1.
Division 76—How are community care grants allocated?
76‑1
Allocation of community care grants
(1) The Secretary may allocate *community care
grants to approved providers in respect of the costs of projects for:
(a) establishing new community care
services; or
(b) extending existing community care
services to cover additional areas.
(2) The allocation must meet the criteria for
allocations (see section 76‑2).
(3) A person
may apply for an allocation of *community care grants (see section 76‑3).
Note: An applicant who is not an approved provider
must become an approved provider for a community care grant to be allocated
(see subsection (1)).
(4) A *community care grant can only be
allocated to an approved provider:
(a) whose approval under Part 2.1
includes community care (see subsection 8‑1(2)); and
(b) who holds an allocation of places
for *community
care subsidy under Part 2.2 (whether or not it is a *provisional
allocation), being places that are, or are to be, included in the community
care service in respect of which the grant is payable.
76‑2
Criteria for allocations
The criteria for allocation of a *community care
grant are as follows:
(a) whether there is a need for the
community care service, or proposed community care service, to which the grant
would relate;
(b) whether
the grant would assist:
(i) people in rural or
remote areas; or
(ii) Aboriginal and Torres
Strait Islander communities;
(c) such other criteria as are
specified in the Community Care Grant Principles.
76‑3
Applications for community care grants
(1) An application for the allocation
of a *community
care grant must be in a form approved by the Secretary.
(2) If the Secretary needs
further information to determine the application, the Secretary may give to the
applicant a notice requesting the further information:
(a) within the period specified in the
notice; or
(b) if no period is specified in the
notice—within 14 days after receiving the notice.
(3) The
application is taken to be withdrawn if the applicant does not give the further
information within whichever of those periods applies.
Note: The period for giving the further information
can be extended—see section 96‑7.
(4) The notice must contain a statement
setting out the effect of subsection (3).
76‑4
Notification of allocation
(1) The Secretary must notify, in
writing, each applicant to whom a *community care grant has been allocated. The notice must be
given within 14 days after the Secretary’s decision under section 76‑1
is made.
(2) The notice must specify:
(a) the amount of the grant (see
Division 78); and
(b) the project to which the grant
relates; and
(c) when the grant, or the instalments
of the grant, will be paid (see Division 77); and
(d) if the grant is to be paid in more
than one instalment—the amounts of the instalments or how they will be worked
out (see Division 77); and
(e) the conditions on which the grant
is payable (see Division 77).
76‑5
Notice to unsuccessful applicants
(1) The Secretary must notify, in writing,
each applicant to whom a *community care grant has not been allocated. The notice
must be given within 14 days after the Secretary’s decision under section 76‑1
is made.
(2) The notice must set out the reasons for
the applicant not being allocated a grant.
Division 77—On what basis are community care grants paid?
77‑1
Basis on which community care grants are paid
(1) A *community care grant is payable to an
approved provider:
(a) at such time as the Secretary
determines in writing; and
(b) in full or in such instalments as
the Secretary determines in writing.
(2) The grant is subject to such conditions
(if any) as the Secretary determines in writing (see section 77‑2).
(3) The grant is not payable unless the
approved provider enters into an agreement with the Commonwealth under which
the approved provider agrees to comply with the conditions to which the grant
is subject.
77‑2
Conditions of community care grants
The following are examples of matters
with which the conditions of a *community care grant may deal:
(a) the kinds of people who are to be
provided with care when the project, in respect of which the grant is payable,
is completed;
(b) the period within which one or
more conditions must be complied with by the approved provider;
(c) the period within which the
community care service in respect of which the grant is payable is to be
operational;
(d) the amount of money to be provided
by the approved provider for the project;
(e) information to be given to the
Commonwealth by the approved provider;
(f) the approved provider’s
compliance with:
(i) any responsibilities
of the approved provider under Chapter 4; and
(ii) conditions imposed in
respect of other payments made under this Chapter to the approved provider;
(g) the circumstances in which the
grant must be repaid.
77‑3
Grants payable only if certain conditions met
(1) The Secretary may specify which of the
conditions of a *community
care grant must be met before the grant is payable.
(2) The grant is not payable unless the
approved provider complies with those conditions.
(3) However, payment of the grant to the
approved provider does not affect the approved provider’s obligation to comply
with any other conditions to which the grant is subject.
77‑4
Variation or revocation of allocations
(1) The
Secretary may vary or revoke an allocation of a *community care grant if the Secretary is
satisfied that a condition to which the allocation is subject has not been met.
Note: Variations or revocations of allocations are
reviewable under Part 6.1.
(2) A variation of the allocation may be
either or both of the following:
(a) a reduction of the amount of the
grant;
(b) a variation of any of the
conditions to which the allocation is subject.
(3) Before deciding to vary or revoke the
allocation, the Secretary must notify the approved provider that it is being
considered. The notice:
(a) must be in writing; and
(b) must invite the approved provider
to make submissions, in writing, to the Secretary within 28 days after
receiving the notice; and
(c) must inform the approved provider
that, if no submissions are made within that period, the variation or
revocation takes effect on the day after the last day for making submissions.
(4) In making the decision whether to vary or
revoke the allocation, the Secretary must consider any submissions made within
that period.
(5) The Secretary must notify, in writing,
the approved provider of the decision.
(6) The notice must be given to the approved
provider within 28 days after the end of the period for making submissions. If
the notice is not given within that period, the Secretary is taken to have
decided not to vary or revoke the allocation, as the case requires.
(7) A variation or revocation has effect:
(a) if no submissions were made within
the 28 day period—on the day after the last day for making submissions; or
(b) if submissions were made within
that period—on the day after the approved provider receives a notice under subsection (5).
77‑5
Variation of allocations on application of approved provider
(1) An approved provider may at any time
apply to the Secretary for a variation of an allocation of a *community care
grant to the approved provider.
(2) A variation of the allocation may be
either or both of the following:
(a) a reduction of the amount of the
grant;
(b) a variation of any of the
conditions to which the allocation is subject.
(3) The application must be in the form
approved by the Secretary.
(4) The Secretary must, within 28 days after
receiving the application:
(a) make a variation; or
(b) reject the application;
and, within that period,
notify the approved provider accordingly.
Note: Variations of allocations and rejections of
applications are reviewable under Part 6.1.
77‑6
Agreement taken to be varied
If the Secretary varies, under section 77‑4
or 77‑5, one or more of the conditions of an allocation, the agreement
entered into under subsection 77‑1(3) is taken to be varied accordingly.
77‑7
Appropriation
Payments by the Commonwealth under this
Part are to be made out of money appropriated by the Parliament for the
purpose.
Division 78—How much is a community care grant?
78‑1
The amount of a community care grant
(1) The amount of a *community care grant is the amount
specified in, or worked out in accordance with, the Community Care Grant
Principles.
(2) The following are examples of matters
with which the Community Care Grant Principles may deal in relation to the
amounts of *community
care grants:
(a) the circumstances of approved
providers to which the grants are payable;
(b) the purposes for which the grants
are payable;
(c) the locations of the community
care services to which the grants relate;
(d) the kinds of people who will be
provided with community care through the services;
(e) limits on the amounts of the
grants.
Part 5.3—Assessment grants
Division 79—Assessment grants
79‑1
Assessment grants
(1) The Minister may, on behalf of the
Commonwealth, make one or more grants of money to a State, Territory or another
body for some or all of the following purposes:
(a) assessment of the care needs of
people seeking approval under Part 2.3 as recipients of residential care,
community care or flexible care;
(b) helping people to obtain the types
of care and services that best meet their needs;
(c) monitoring and evaluating the
effectiveness of the assessment services that are provided;
(d) conducting research relevant to
the care needs of people, and the approval of people as recipients of
residential care, community care or flexible care;
(e) such other purposes as are
determined by the Minister.
A grant of money under this subsection is an assessment
grant.
(2) An *assessment grant is payable to a State,
Territory or body:
(a) at such time as the Minister
determines in writing; and
(b) in full or in such instalments as
the Minister determines in writing.
79‑2
Conditions of assessment grants
An *assessment grant is subject to:
(a) such conditions (if any) as are
set out in the Assessment Grant Principles; and
(b) conditions
that relate to the matters (if any) specified in the Assessment Grant
Principles as matters to which conditions of an assessment grant must relate;
and
(c) such
other conditions as are determined by the Secretary.
Note: The Assessment Grant Principles are made by
the Minister under section 96‑1.
79‑3
Appropriation
Payments by the Commonwealth under this
Part are to be made out of money appropriated by the Parliament for the
purpose.
Part 5.4—Accreditation grants
Division 80—Accreditation grants
80‑1
Accreditation grants
(1) The Secretary may, on behalf of the Commonwealth,
enter into a written agreement with a body corporate under which the
Commonwealth makes one or more grants of money to the body for the following
purposes:
(a) accreditation of residential care
services in accordance with the Accreditation Grant Principles;
(b) any other purposes specified in
the Accreditation Grant Principles, including the performance of any of the
functions of the Secretary under this Act that are specified in the
Accreditation Grant Principles.
A grant of money under this
subsection is an accreditation grant.
Note: The Accreditation Grant Principles are made by
the Minister under section 96‑1.
(2) The following are examples of matters
with which the Accreditation Grant Principles may deal:
(a) the procedures to be followed in
deciding whether to accredit a residential care service, including the
reconsideration of decisions on accreditation;
(b) the matters to be taken into
account in making, or reconsidering, those decisions;
(c) the procedures to be followed in
revoking or suspending the accreditation of a residential care service;
(d) the matters to be taken into
account in deciding to revoke or suspend the accreditation of a residential
care service;
(e) the accreditation of a residential
care service before it commences operation;
(f) the interim accreditation of a
new residential care service pending a full assessment for the purposes of
accreditation;
(g) the effect on the accreditation of
a residential care service if places included in the service are transferred
under Division 16;
(h) the fees (if any) that may be
charged, on behalf of the Commonwealth, for services the body provides, or a
way of determining such fees.
(2A) Fees charged for a service that a body
provides under the agreement must not be such as to amount to taxation.
(3) An *accreditation
grant is payable to a body:
(a) at such time as is specified in
the agreement; and
(b) in full or in such instalments as
are specified in the agreement.
80‑2
Conditions of accreditation grants
(1) An *accreditation grant is subject to:
(a) such conditions (if any) as are
set out in the Accreditation Grant Principles; and
(b) conditions, set out in the
agreement under which the grant is payable, that relate to matters specified in
the Accreditation Grant Principles as matters to which conditions of an
accreditation grant must relate; and
(c) such other conditions as are set
out in the agreement.
(2) The following are examples of matters to
which such conditions may relate:
(a) the administration and monitoring
of the grant;
(b) the circumstances in which the
grant is repayable;
(c) giving security to the
Commonwealth for repayment of the grant;
(d) reports and other information to
be given to the Commonwealth relating to:
(i) the extent to which
the Accreditation Standards are being complied with; and
(ii) any other matters
dealt with in the conditions.
80‑3
Appropriation
Payments by the Commonwealth under this
Part are to be made out of money appropriated by the Parliament for the
purpose.
Part 5.5—Advocacy grants
Division 81—Advocacy grants
81‑1
Advocacy grants
(1) The Secretary may, on behalf of the
Commonwealth, enter into a written agreement with a body corporate under which
the Commonwealth makes one or more grants of money to the body for the
following purposes:
(a) encouraging understanding of, and
knowledge about, the rights of recipients and potential recipients of *aged care services
on the part of people who are, or may become:
(i) care recipients; or
(ii) people caring for care
recipients; or
(iii) people who provide
aged care services;
or on the part of the general
community;
(b) enabling care recipients to
exercise those rights;
(c) providing free, independent and
confidential advocacy services in relation to those rights to people:
(i) who are, or may
become, care recipients; or
(ii) who are
representatives of care recipients.
A grant of money under this subsection is an advocacy
grant.
(2) An *advocacy grant is payable to a body:
(a) at such time as is specified in the
agreement; and
(b) in full or in such instalments as
are specified in the agreement.
81‑2
Applications for advocacy grants
(1) A body corporate, other than a body
mentioned in subsection (3), may apply to the Secretary for an *advocacy grant.
(2) The
application must be:
(a) in writing; and
(b) in a form approved by the
Secretary.
(3) A body may
not make an application under subsection (1) if it is:
(a) an approved provider; or
(b) a body that is directly associated
with an approved provider.
81‑3
Deciding whether to make advocacy grants
(1) In
deciding whether to make a grant under subsection 81‑1(1), the Secretary
must take into account the criteria (if any) set out in the Advocacy Grant
Principles.
Note: The Advocacy Grant Principles are made by the
Minister under section 96‑1.
(2) The following are examples of matters to
which criteria set out in the Advocacy Grant Principles may relate:
(a) consistency of an application with
the purposes set out in paragraphs 81‑1(1)(a) to (c);
(b) the experience, skills and
infrastructure of the applicant;
(c) the ability of the applicant to
meet the special needs of particular groups.
81‑4
Conditions of advocacy grants
(1) An *advocacy grant is subject to:
(a) such conditions (if any) as are
set out in the Advocacy Grant Principles; and
(b) conditions, set out in the
agreement under which the grant is payable, that relate to matters specified in
the Advocacy Grant Principles as matters to which conditions of an advocacy
grant must relate; and
(c) such other conditions as are set
out in the agreement.
(2) Without limiting the conditions to which
an *advocacy
grant may be subject under paragraphs (1)(a) to (c), the following are
examples of matters to which such conditions may relate:
(a) the administration and monitoring
of the grant;
(b) the circumstances in which the
grant is repayable;
(c) giving security to the
Commonwealth for repayment of the grant;
(d) reports and other information to
be given to the Commonwealth relating to matters dealt with in the conditions;
(e) compliance with conditions imposed
in respect of other payments made under this Act.
81‑5
Appropriation
Payments by the Commonwealth under this
Part are to be made out of money appropriated by the Parliament for the
purpose.
Part 5.6—Community visitors grants
Division 82—Community visitors grants
82‑1
Community visitors grants
(1) The Secretary may, on behalf of the
Commonwealth, enter into a written agreement with a body corporate under which
the Commonwealth makes one or more grants of money to the body for the
following purposes:
(a) facilitating frequent and regular
contact with the community by care recipients to whom residential care is
provided;
(b) helping such care recipients to
maintain independence through contact with people in the community;
(c) assisting such care recipients
from particular linguistic or cultural backgrounds to maintain contact with
people from similar backgrounds.
A grant of money under this subsection is a community
visitors grant.
(2) A *community visitors grant is payable to a
body:
(a) at such time as is specified in
the agreement; and
(b) in full or in such instalments as
are specified in the agreement.
82‑2
Applications for community visitors grants
(1) A body corporate, other than a body
mentioned in subsection (3), may apply to the Secretary for a *community visitors
grant.
(2) The application must be:
(a) in writing; and
(b) in a form approved by the
Secretary.
(3) A body is
not eligible to make an application under subsection (1) if it is:
(a) an approved provider; or
(b) a
body that is directly associated with an approved provider;
except in the circumstances
specified in the Community Visitors Grant Principles.
Note: The Community Visitors Grant Principles are
made by the Minister under section 96‑1.
82‑3
Deciding whether to make community visitors grants
(1) In deciding whether to make a grant under
subsection 82‑1(1), the Secretary must take into account the criteria (if
any) set out in the Community Visitors Grant Principles.
(2) The following are examples of matters to
which criteria set out in the Community Visitors Grant Principles may relate:
(a) the consistency of an application
with the purposes set out in paragraphs 82‑1(1)(a) to (c);
(b) the experience, skills and
infrastructure of the applicant;
(c) the ability of the applicant to
meet the special needs of particular groups.
82‑4
Conditions of community visitors grants
(1) A *community visitors grant is subject to:
(a) such conditions (if any) as are
set out in the Community Visitors Grant Principles; and
(b) conditions, set out in the
agreement under which the grant is payable, that relate to the matters (if any)
specified in the Community Visitors Grant Principles as matters to which
conditions of a community visitors grant must relate; and
(c) such other conditions as are set
out in the agreement.
(2) Without limiting the conditions to which
a *community
visitors grant may be subject under paragraphs (1)(a) to (c), the
following are examples of matters to which such conditions may relate:
(a) the administration, co‑ordination
and monitoring of the community visitors grant;
(b) recruitment and approval of
community visitors;
(c) training and support for community
visitors;
(d) the circumstances in which the
grant is repayable;
(e) giving security to the
Commonwealth for repayment of the grant;
(f) reports and other information to
be given to the Commonwealth relating to matters dealt with in the conditions;
(g) compliance with conditions imposed
in respect of other payments made under this Act.
82‑5
Appropriation
Payments by the Commonwealth under this
Part are to be made out of money appropriated by the Parliament for the
purpose.
Part 5.7—Other grants
Division 83—Other grants
83‑1
Other grants
(1) The Secretary may, on behalf of the
Commonwealth, enter into a written agreement with a body corporate under which
the Commonwealth makes one or more grants of money to the body for the purposes
specified in the agreement. The purposes must, in the Secretary’s opinion,
further the objects of this Act.
(2) A grant under this Part is payable to a
body:
(a) at such time as is specified in
the agreement; and
(b) in full or in such instalments as
are specified in the agreement.
(3) The Other
Grants Principles may specify requirements with which the Secretary must comply
in exercising powers under this Part.
Note: The Other Grants Principles are made by the
Minister under section 96‑1.
83‑2
Conditions of other grants
A grant under this Part is subject to:
(a) such conditions (if any) as are
set out in the Other Grants Principles; and
(b) conditions, set out in the
agreement under which the grant is payable, that relate to the matters (if any)
specified in the Other Grants Principles as matters to which conditions of a
grant under this Part must relate; and
(c) such other conditions as are set
out in the agreement.
83‑3
Appropriation
Payments by the Commonwealth under this
Part are to be paid out of money appropriated by the Parliament for the
purpose.
Chapter 6—Administration
Division 84—Introduction
84‑1
What this Chapter is about
This Chapter deals with the following
matters relating to the administration of this Act:
(a) reconsideration
and administrative review of decisions (see Part 6.1);
(b) protection
of information (see Part 6.2);
(c) record‑keeping
obligations of approved providers (see Part 6.3);
(d) powers of
officers in relation to monitoring compliance and offences (see Part 6.4);
(e) investigations
of matters relating to this Act or the Principles made under section 96‑1
(see Part 6.4A);
(f) recovery of
overpayments by the Commonwealth (see Part 6.5);
(g) the Aged
Care Commissioner, whose functions include examining certain matters relating
to investigations (see Part 6.6).
Part 6.1—Reconsideration and review of decisions
Division 85—Reconsideration and review of decisions
85‑1
Reviewable decisions
Each of the following decisions is a *reviewable
decision:
|
Reviewable decisions
|
Item
|
Decision
|
Provision under which decision is made
|
|
1
|
To reject an application for approval as an approved
provider
|
subsection 8‑1(1)
|
|
2
|
To reject an application for a waiver of the operation of
subsection 10‑2(1)
|
subsection 10‑2(5)
|
|
3
|
To revoke an approval as an approved provider
|
subsection 10‑3(1)
|
|
4
|
To impose conditions on revocation of an approval as an
approved provider
|
subsection 10‑4(5)
|
|
5
|
To reject an application for a determination under section 15‑1
(when allocations take effect)
|
subsection 15‑3(3)
|
|
6
|
To vary or revoke a provisional allocation of places to an
approved provider if a condition has not been met
|
subsection 15‑4(1)
|
|
7
|
To reject an application for a variation of a provisional
allocation of places
|
subsection 15‑5(4)
|
|
8
|
To extend a provisional allocation period
|
subsection 15‑7(5)
|
|
9
|
To reject an application for extension of a provisional
allocation period
|
subsection 15‑7(5)
|
|
10
|
To reject an application for transfer of allocated places
|
subsection 16‑5(1)
|
|
11
|
To approve a day as a transfer day for the transfer of
allocated places
|
subsection 16‑7(3)
|
|
12
|
To reject an application to approve a day as a transfer
day
|
subsection 16‑7(3)
|
|
13
|
To determine a period for making an application to vary
the conditions to which an allocation is subject
|
subsection 17‑2(5)
|
|
14
|
To refuse to determine a period for making an application
to vary the conditions to which an allocation is subject
|
subsection 17‑2(5)
|
|
15
|
To reject an application for variation of conditions to
which an allocation of places is subject
|
section 17‑5
|
|
16
|
To approve a day as a variation day for conditions to
which an allocation of places is subject
|
subsection 17‑7(3)
|
|
17
|
To reject an application to approve a day as a variation
day
|
subsection 17‑7(3)
|
|
18
|
To revoke an unused allocation of a place
|
subsection 18‑5(1)
|
|
19
|
To reject an application to approve a person as a care
recipient
|
subsection 22‑1(2)
|
|
20
|
To limit a person’s approval as a care recipient
|
subsection 22‑2(1)
|
|
21
|
To limit a person’s approval as a care recipient to one or
more levels of care
|
subsection 22‑2(3)
|
|
22
|
To vary a limitation on a person’s approval as a care
recipient
|
subsection 22‑2(4)
|
|
23
|
As to when a person urgently needed care and when it was
practicable to apply for approval
|
paragraph 22‑5(2)(b)
|
|
24
|
To extend the period during which an application for
approval as a care recipient can be made
|
subsection 22‑5(3)
|
|
25
|
To reject an application to extend the period during which
an application for approval as a care recipient can be made
|
subsection 22‑5(3)
|
|
26
|
To revoke an approval of a person as a care recipient
|
subsection 23‑4(1)
|
|
27
|
To suspend an approved provider from making appraisals
under section 25‑3 (appraisals of the level of care needed)
|
subsection 25‑4(1)
|
|
28
|
That the Secretary is not satisfied an appraisal under
section 25‑3 (appraisals of the level of care needed) was sent in
sufficient time
|
subsection 26‑2(2)
|
|
29
|
To refuse to renew the classification of a care recipient
|
subsection 28‑1(1)
|
|
30
|
That the Secretary is not satisfied that a reappraisal
under section 28‑2 (reappraisal of the level of care needed) was
sent in sufficient time
|
subsection 28‑5(2)
|
|
31
|
To change the classification of a care recipient
|
subsection 29‑1(1)
|
|
33
|
To reject an application for approval of extra service
fees
|
subsection 35‑1(2)
|
|
34
|
To reject an application for certification of a
residential care service
|
subsection 38‑1(2)
|
|
35
|
To revoke the certification of a residential care service
|
subsection 39‑3(1)
|
|
36
|
To impose conditions on revocation of the certification of
a residential care service
|
subsection 39‑5(5)
|
|
37
|
To refuse to make a determination that a residential care
service is taken to meet its accreditation requirement
|
subsection 42‑5(1)
|
|
38
|
To specify a period or event at the end of which, or on
the occurrence of which, a determination under subsection 42‑5(1)
ceases to be in force.
|
subsection 42‑5(4)
|
|
39
|
To revoke a determination that exceptional circumstances
apply
|
subsection 42‑6(1)
|
|
39A
|
To grant or refuse an application for a determination
described in subsection 44‑7(1A) or 44‑8(1A) (which is relevant
to a person’s status as a *concessional resident or an *assisted resident)
|
subsection 44‑8AA(1)
|
|
39B
|
To revoke a determination described in subsection 44‑7(1A)
or 44‑8(1A)
|
subsection 44‑8AA(6)
|
|
39C
|
To determine the value of a person’s assets
|
subsection 44‑8AB(1)
|
|
39D
|
To revoke a determination of the value of a person’s
assets
|
subsection 44‑8AB(4)
|
|
40
|
To refuse to make a determination that a care recipient is
eligible for an oxygen supplement
|
subsection 44‑13(2)
|
|
41
|
To refuse to make a determination that a care recipient is
eligible for an enteral feeding supplement
|
subsection 44‑14(2)
|
|
42
|
To determine that a judgment or settlement is to be
treated as having taken into account the cost of providing residential care
|
subsection 44‑20(5)
|
|
43
|
To determine that a part of the compensation under a
settlement is to be treated as relating to the future costs of providing
residential care
|
subsection 44‑20(6)
|
|
44
|
To refuse to make a determination that the daily income
tested reduction is zero
|
subsection 44‑22(2)
|
|
45
|
To specify a period at the end of which a determination
that the daily income tested reduction is zero ceases to be in force
|
subsection 44‑22(3)
|
|
46
|
To determine a care recipient’s ordinary income
|
subsection 44‑24(1), (2) or (3)
|
|
47
|
To refuse to make a determination about viability
supplement
|
subsection 44‑29(2)
|
|
48
|
To refuse to make a determination that a care recipient is
eligible for a hardship supplement
|
subsection 44‑31(1)
|
|
49
|
To specify a period or event at the end of which, or on
the occurrence of which, a determination under section 44‑31 will
cease to be in force
|
subsection 44‑31(3)
|
|
51
|
To refuse to make a determination that paying an
accommodation bond would cause financial hardship
|
subsection 57‑14(1)
|
|
52
|
To specify a period or event at the end of which, or on the
occurrence of which, a determination under subsection 57‑14(1) ceases
to be in force
|
subsection 57‑14(3)
|
|
53
|
To revoke a determination that paying an accommodation
bond would cause financial hardship
|
subsection 57‑15(1)
|
|
53A
|
To refuse to make a determination that paying an
accommodation charge would cause financial hardship
|
subsection 57A‑9(1)
|
|
53B
|
To specify a period or event at the end of which, or on
the occurrence of which, a determination under subsection 57A‑9(1)
ceases to be in force
|
subsection 57A‑9(3)
|
|
53C
|
To revoke a determination that paying an accommodation
charge would cause financial hardship
|
subsection 57A‑10(1)
|
|
54
|
To impose a sanction on an approved provider
|
section 65‑1
|
|
55
|
To refuse to lift a sanction
|
section 68‑3
|
|
56
|
To vary or revoke an allocation of a residential care
grant
|
subsection 73‑4(1)
|
|
57
|
To vary an allocation of a residential care grant
|
subsection 73‑5(4)
|
|
58
|
To reject an application to vary an allocation of a
residential care grant
|
subsection 73‑5(4)
|
|
59
|
To vary or revoke an allocation of a community care grant
|
subsection 77‑4(1)
|
|
60
|
To vary an allocation of a community care grant
|
subsection 77‑5(4)
|
|
61
|
To reject an application to vary an allocation of a
community care grant
|
subsection 77‑5(4)
|
85‑2
Deadlines for making reviewable decisions
If:
(a) this Act provides for a person to
apply to the Secretary to make a *reviewable decision; and
(b) a period is specified under this
Act for giving notice of the decision to the applicant; and
(c) the Secretary has not notified the
applicant of the Secretary’s decision within that period;
the Secretary is taken, for the purposes of this Act, to
have made a decision to reject the application.
85‑3
Secretary must give reasons for reviewable decisions
(1) If this Act requires the Secretary to
notify a person of the making of a *reviewable decision, the notice must include reasons for
the decision.
(2) Subsection (1) does not affect an
obligation, imposed upon the Secretary by any other law, to give reasons for a
decision.
85‑4
Secretary may reconsider reviewable decisions
(1) The Secretary may reconsider a *reviewable
decision if the Secretary is satisfied that there is sufficient reason to
reconsider the decision.
(2) However, this section does not apply to a
determination under section 44‑24 of a care recipient’s *ordinary income
by:
(a) the Secretary to the Department of
Social Security; or
(b) a person to whom the power to make
such a determination is sub‑delegated under subsection 96‑2(7) by
the Secretary to the Department of Social Security.
(3) The Secretary may reconsider a decision
even if:
(a) an application for reconsideration
of the decision has been made under section 85‑5; or
(b) if the decision has been
confirmed, varied or set aside under section 85‑5—an application has
been made under section 85‑8 for review of the decision.
(4) After reconsidering the decision, the
Secretary must:
(a) confirm the decision; or
(b) vary the decision; or
(c) set the decision aside and
substitute a new decision.
(5) The Secretary’s decision (the decision
on review) to confirm, vary or set aside the decision takes effect:
(a) on the day specified in the
decision on review; or
(b) if a day is not specified—on the
day on which the decision on review was made.
(6) The
Secretary must give written notice of the decision on review to the person to
whom that decision relates.
Note: Section 27A of the Administrative
Appeals Tribunal Act 1975 requires the person to be notified of the
person’s review rights.
85‑5
Reconsideration of reviewable decisions
(1) A person whose interests are affected by
a *reviewable
decision may request the Secretary to reconsider the decision.
(2) However, this section does not apply to a
determination under section 44‑24 of a care recipient’s *ordinary income
by:
(a) the Secretary to the Department of
Social Security; or
(b) a person to whom the power to make
such a determination is sub‑delegated under subsection 96‑2(7) by
the Secretary to the Department of Social Security.
(3) The person’s request must be made by
written notice given to the Secretary:
(a) within 28 days, or such longer
period as the Secretary allows, after the day on which the person first
received notice of the decision; or
(b) if the decision is a decision
under section 44‑24 to determine a care recipient’s *ordinary
income—within 90 days, or such longer period as the Secretary allows, after the
day on which the person first received notice of the decision.
(4) The notice must set out the reasons for
making the request.
(5) After receiving the request, the
Secretary must reconsider the decision and:
(a) confirm the decision; or
(b) vary the decision; or
(c) set the decision aside and
substitute a new decision.
(6) The Secretary’s decision (the decision
on review) to confirm, vary or set aside the decision takes effect:
(a) on the day specified in the
decision on review; or
(b) if a day is not specified—on the
day on which the decision on review was made.
(7) The
Secretary is taken, for the purposes of this Part, to have confirmed the
decision if the Secretary does not give notice of a decision to the person
within 90 days after receiving the person’s request.
Note: Section 27A of the Administrative
Appeals Tribunal Act 1975 requires the person to be notified of the
person’s review rights.
(8) If a committee has been established under
section 96‑3 and a function of the committee is to provide advice to
the Secretary in relation to the Secretary’s reconsideration of a particular
kind of *reviewable
decision, the Secretary:
(a) may refer a reviewable decision of
that kind to the committee for advice; and
(b) must, in reconsidering the
decision, take account of any advice of the committee in relation to the
decision.
85‑6
Date of effect of certain decisions made under section 1239 of the Social
Security Act 1991
(1) If a determination of a person’s *ordinary income
under section 44‑24 of this Act is reviewed under section 1239
of the Social Security Act 1991, a decision on review to vary or set
aside the determination takes effect:
(a) on the day specified in the
decision; or
(b) if a day is not specified—on the
day on which the decision was made.
(2) Subject to subsections (3) and (4),
the day specified under paragraph (1)(a) must not be earlier than the day
on which the decision on review was made.
(3) The day specified under paragraph (1)(a)
may be earlier than the day on which the decision on review was made if:
(a) the decision has the effect of
increasing the amount determined under section 44‑24 as the person’s
*ordinary
income; and
(b) the
amount determined under section 44‑24 as the person’s ordinary
income was less than what it ought to have been because the person made a false
statement or misrepresentation.
(4) The day specified under paragraph (1)(a)
may be earlier than the day on which the decision on review was made if:
(a) the decision does not have the
effect of increasing the amount determined under section 44‑24 as
the person’s *ordinary
income; and
(b) the day specified under paragraph (1)(a)
is not more than 3 months before the day on which the decision was made.
(5) In this section, a reference to setting a
determination aside is a reference to setting the determination aside and
substituting a new determination.
85‑7
Date of effect of certain decisions made under section 1243 of the Social
Security Act 1991
(1) Subject to subsections (2) and (3),
if:
(a) an application under section 1240
of the Social Security Act 1991 has been made for review of a
determination of a person’s *ordinary income under section 44‑24 of this Act;
and
(b) a decision is made under section 1243
of the Social Security Act 1991 to vary or set aside the determination;
the decision to vary or set aside the determination takes
effect on the day on which the determination was made.
(2) If the application for review of the
determination under section 1240 of the Social Security Act 1991
was made more than 3 months after notice of the determination was given under
subsection 44‑24(7) of this Act, the decision to vary or set aside the
determination takes effect on the day on which the application for review was
made.
(3) If the decision to vary or set aside the
determination has the effect of increasing the amount determined under section 44‑24
as the person’s *ordinary
income, the decision takes effect:
(a) on the day specified in the
decision; or
(b) if a day is not specified—on the
day on which the decision was made.
(4) The day specified under paragraph (3)(a)
may be earlier than the day on which the decision was made only if the amount
determined under section 44‑24 as the person’s *ordinary income
was less than what it ought to have been because the person made a false
statement or misrepresentation.
(5) In this section, a reference to setting a
determination aside is a reference to setting the determination aside and
substituting a new determination.
85‑8
AAT review of reviewable decisions
An application may be made to the
Administrative Appeals Tribunal for the review of a *reviewable decision that has been
confirmed, varied or set aside under section 85‑4 or 85‑5.
Part 6.2—Protection of information
Division 86—Protection of information
86‑1
Meaning of protected information
In this Part, protected
information is information that:
(a) was acquired under or for the purposes
of this Act; and
(b) either:
(i) is *personal
information; or
(ii) relates to the affairs
of an approved provider; or
(iii) relates to the affairs
of an applicant for approval under Part 2.1; or
(iv) relates to the affairs
of an applicant for a grant under Chapter 5.
86‑2
Use of protected information
(1) A person is guilty of an offence if:
(a) the person makes a record of,
discloses or otherwise uses information; and
(b) the information is *protected
information; and
(c) the
information was acquired by the person in the course of performing duties or
exercising powers or functions under this Act.
Penalty: Imprisonment for 2
years.
Note: Chapter 2 of the Criminal Code
sets out the general principles of criminal responsibility.
(2) This section does not apply to:
(a) conduct that is carried out in the
performance of a function or duty under this Act or the exercise of a power
under, or in relation to, this Act; or
(b) the disclosure of information only
to the person to whom it relates; or
(c) conduct carried out by an approved
provider; or
(d) conduct that is authorised by the
person to whom the information relates; or
(e) conduct
that is otherwise authorised under this or any other Act.
Note: A defendant bears an evidential burden in relation
to the matters in subsection (2) (see subsection 13.3(3) of the Criminal
Code).
86‑3
Disclosure of protected information for other purposes
The Secretary may disclose *protected
information:
(a) if the Secretary certifies, in
writing, that it is necessary in the public interest to do so in a particular
case—to such people and for such purposes as the Secretary determines; and
(b) to a person who is, in the opinion
of the Secretary, expressly or impliedly authorised by the person to whom the
information relates to obtain it; and
(c) to the Chief Executive Officer of
Medicare Australia for the purposes of the Health and Other Services
(Compensation) Act 1995 or the Health and Other Services (Compensation)
Care Charges Act 1995; and
(ca) to the Chief Executive Officer of
Centrelink for the purpose of administering the social security law (within the
meaning of the Social Security Act 1991); and
(cb) to the Secretary of the Department
dealing with matters relating to the social security law (within the meaning of
the Social Security Act 1991), for the purpose of administering that
law; and
(d) to a State or Territory for the
purposes of facilitating the transition from the application of this Act in
respect of *aged
care services in the State or Territory to regulation by the State or Territory
in respect of those aged care services; and
(e) if the Secretary believes, on
reasonable grounds, that disclosure is necessary to prevent or lessen a serious
risk to the safety, health or well‑being of a care recipient—to such
people as the Secretary determines, for the purpose of preventing or lessening
the risk; and
(f) if the Secretary believes, on
reasonable grounds, that:
(i) a person’s conduct
breaches the standards of professional conduct of a profession of which the
person is a member; and
(ii) the
person should be reported to a body responsible for standards of conduct in the
profession;
to that body, for the purposes
of maintaining standards of professional conduct in the profession; and
(g) if a person has temporarily taken
over the provision of care through a particular service to care recipients—to
the person for the purposes of enabling the person properly to provide that
care; and
(h) if
the Secretary believes, on reasonable grounds, that disclosure of the
information is reasonably necessary for:
(i) enforcement of the
criminal law; or
(ii) enforcement of a law
imposing a pecuniary penalty; or
(iii) protection of the
public revenue;
to an agency whose functions
include that enforcement or protection, for the purposes of that enforcement or
protection; and
(i) to the Secretary of the
Department administered by the Minister who administers the Veterans’
Entitlements Act 1986, for purposes connected with the provision of
treatment under:
(i) Part V of the Veterans’
Entitlements Act 1986; or
(ii) Chapter 6 of the Military
Rehabilitation and Compensation Act 2004; or
(iii) the Australian
Participants in British Nuclear Tests (Treatment) Act 2006; and
(j) to a person of a kind specified in
the Information Principles, for the purposes specified in the Information
Principles in relation to people of that kind.
86‑4
Disclosure of protected information by people conducting assessments
A person to whom powers under Part 2.3
have been delegated under subsection 96‑2(5), or a person making
assessments under section 22‑4, may make a record of, disclose or
otherwise use *protected
information, relating to a person and acquired in the course of exercising
those powers, or making those assessments, for any one or more of the following
purposes:
(a) provision of *aged care, or
other community, health or social services, to the person;
(b) assessing the needs of the person
for aged care, or other community, health or social services;
(c) reporting on, and conducting
research into, the level of need for, and access to, aged care, or other
community, health or social services.
86‑5
Limits on use of protected information disclosed by Secretary
A person is guilty of an offence if:
(a) the person makes a record of,
discloses or otherwise uses information; and
(b) the information is information
disclosed to the person under section 86‑3 or 86‑4; and
(c) the
purpose for which the person makes a record of, discloses or otherwise uses the
information is not the purpose for which the information was disclosed.
Penalty: Imprisonment for 2
years.
Note: Chapter 2 of the Criminal Code
sets out the general principles of criminal responsibility.
86‑6
Limits on use of protected information disclosed under certain legislation
A person is guilty of an offence if:
(a) *protected information has been disclosed
under section 1314 of the Social Security Act 1991, section 130
of the Veterans’ Entitlements Act 1986, section 409 of the Military
Rehabilitation and Compensation Act 2004 or section 36 of the Australian
Participants in British Nuclear Tests (Treatment) Act 2006, to the person
or another person, for any of the following purposes:
(i) determining whether *residential care
subsidy is payable to an approved provider in respect of a care recipient;
(ii) determining the amount
of residential care subsidy that is payable to an approved provider in respect
of a care recipient;
(iii) determining whether an
approved provider has complied, or is complying, with its responsibilities
under Chapter 4 of this Act; and
(b) the
person makes a record of, discloses or otherwise uses the information for a
purpose not referred to in subparagraph (a)(i), (ii) or (iii).
Penalty: Imprisonment for 2
years.
Note: Chapter 2 of the Criminal Code
sets out the general principles of criminal responsibility.
86‑7
Limits on use of protected information by Departments of Social Security and
Veterans’ Affairs
An officer of the Department of Social
Security or the Department of Veterans’ Affairs, the *CEO or an *employee of the *Services Delivery
Agency is guilty of an offence if he or she:
(a) acquires *protected information for the
purposes of this Act; and
(b) makes
a record of, discloses or otherwise uses the information for a purpose that is
neither a purpose for which it was acquired nor a purpose in respect of which
the person to whom the information relates has given written consent.
Penalty: Imprisonment for 2
years.
Note: Chapter 2 of the Criminal Code
sets out the general principles of criminal responsibility.
86‑8
Disclosure to court
A court, or any other body or person
that has power to require the production of documents or the answering of
questions, may require a person to disclose *protected information only if one of the
following applies:
(a) the disclosure is required for the
purposes of this Act;
(b) the information was originally
disclosed to the person under section 86‑3 and the disclosure is
required for the purpose for which it was disclosed under that section;
(c) the person to whom the information
relates has consented, in writing, to the disclosure.
86‑9
Information about an aged care service
(1) The Secretary may make publicly available
the following information about an *aged care service:
(a) the name, address and telephone
number of the service;
(b) the number of *places included in
the service;
(c) the location of the service and
its proximity to community facilities, for example, public transport, shops,
libraries and community centres;
(d) the services provided by the
service;
(e) the fees and charges connected
with the service, including *accommodation bonds and *accommodation charges;
(f) the facilities and activities
available to care recipients receiving care through the service;
(g) the name of the approved provider
of the service and the names of directors, or members of the committee of
management, of the approved provider;
(h) the amounts of funding received by
the service under this Act;
(i) information about the variety and
type of service provided by approved providers;
(j) any action taken, or intended to
be taken, under this Act to protect the welfare of care recipients at a
particular service, and the reasons for that action;
(k) information about the service’s
status under this Act (for example, the service’s accreditation record);
(l) information about the approved
provider’s performance in relation to responsibilities and standards under this
Act;
(m) any
other information of a kind specified in the Information Principles for the
purposes of this section.
Note: The Information Principles are made by the
Minister under section 96‑1.
(2) Information disclosed under subsection (1)
must not include *personal
information about a person (other than the information referred to in paragraph (1)(g)).
Part 6.3—Record keeping
Division 87—Introduction
87‑1
What this Part is about
This Part sets out the obligations of
approved providers and former approved providers to maintain and retain
certain records. A person who does not comply with these obligations may
be guilty of an offence and, in the case of an approved provider, may be taken
to be not complying with its responsibilities under Part 4.3.
Table of Divisions
87 Introduction
88 What records must an approved provider
keep?
89 What records must a person who was an
approved provider retain?
87‑2
Records Principles
Obligations of approved providers in
relation to record keeping is also dealt with in the Records Principles. The
provisions of this Part indicate when a particular matter is or may be dealt
with in these Principles.
Note: The Records Principles are made by the
Minister under section 96‑1.
87‑3
Failure to meet obligations does not have consequences apart from under this
Act
(1) If:
(a) a person fails to meet an obligation
imposed under this Part; and
(b) the
failure does not give rise to an offence;
the failure has no consequences under any law other than
this Act.
(2) However,
if the act or omission that constitutes the failure also constitutes a breach
of an obligation under another law, this section does not affect the operation
of any law in relation to that breach of obligation.
Division 88—What records must an approved provider keep?
88‑1
Approved provider to keep and retain certain records
(1) An approved provider must:
(a) keep records that enable:
(i) claims for payments of
subsidy under Chapter 3 to be properly verified; and
(ii) proper assessments to
be made of whether the approved provider has complied, or is complying, with
its responsibilities under Chapter 4; and
(b) in
relation to each of those records, retain the record for the period ending 3
years after the 30 June of the year in which the record was made.
Note: Approved providers have a responsibility under
Part 4.3 to comply with this subsection. Failure to comply with a
responsibility can result in a sanction being imposed under Part 4.4.
(2) An
approved provider who ceases permanently to provide care to a care recipient
must retain, for the period ending 3 years after the 30 June of the year
in which provision of the care ceased, such records relating to the care
recipient as are specified in the Records Principles.
Note: Approved providers have a responsibility under
Part 4.3 to comply with this subsection. Failure to comply with a responsibility
can result in a sanction being imposed under Part 4.4.
(3) A record may be kept and retained in
written or electronic form.
(4) An approved provider that:
(a) is a *corporation; and
(b) fails to comply with subsection (1)
or (2);
is guilty of an offence punishable, on conviction, by a
fine not exceeding 30 penalty units.
(5) If:
(a) an approved provider fails to
comply with subsection (1) or (2); and
(b) the
failure arises in respect of records relating to subsidy under Chapter 3
paid to the approved provider;
the approved provider is
guilty of an offence punishable, on conviction, by a fine not exceeding 30
penalty units.
Note: Chapter 2 of the Criminal Code
sets out the general principles of criminal responsibility.
88‑2
Approved providers to keep records specified in Records Principles
(1) An
approved provider must keep records of the kind specified in the Records
Principles.
Note: Approved providers have a responsibility under
Part 4.3 to comply with this subsection. Failure to comply with a
responsibility can result in a sanction being imposed under Part 4.4.
(2) The following are examples of the kinds
of records that may be specified in the Records Principles:
(a) care recipient assessment and
classification records;
(b) individual care plans for care
recipients;
(c) the medical records, progress
notes and other clinical records of care recipients;
(d) the schedules of fees and charges
(including retention amounts relating to *accommodation bonds) for previous and
current care recipients of the *aged care;
(e) agreements between care recipients
and the approved provider;
(f) accounts of care recipients;
(g) records relating to the approved
provider meeting prudential requirements for accommodation bonds;
(h) records relating to the payment of
accommodation bonds (including periodic payments) or *accommodation charges;
(i) records relating to care
recipients’ entry, discharge and leave arrangements, including death
certificates where appropriate.
(3) A record may be kept in written or
electronic form.
(4) This section does not affect an approved
provider’s obligations under section 88‑1.
88‑3
False or misleading records
(1) An
approved provider must not, in purported compliance with subsection 88‑1(1),
make a record that is false or misleading in a material particular.
Note: Approved providers have a responsibility under
Part 4.3 to comply with this subsection. Failure to comply with a
responsibility can result in a sanction being imposed under Part 4.4.
(2) If a person:
(a) in purported compliance with
subsection 88‑1(1), makes a record of any matter or thing; and
(b) the record is false or misleading
in a material particular; and
(c) the record relates to the affairs
of an approved provider that is a *corporation, or to the payment of a subsidy under Chapter 3;
the person is guilty of an
offence punishable, on conviction, by a fine not exceeding 30 penalty units.
Note: Chapter 2 of the Criminal Code
sets out the general principles of criminal responsibility.
Division 89—What records must a person who was an approved provider
retain?
89‑1
Former approved provider to retain records
(1) A person who has ceased to be an approved
provider is guilty of an offence if:
(a) the person fails to retain a
record referred to in subsection (2) for 3 years commencing on the day
that the person ceased to be an approved provider; and
(b) the record relates to care
provided by the person; and
(c) either:
(i) the person is a *corporation; or
(ii) the
record relates to subsidy under Chapter 3 paid to the person.
Penalty: 30 penalty units.
Note: Chapter 2 of the Criminal Code
sets out the general principles of criminal responsibility.
(2) The records the person is required to
retain are the records that the person was required to retain under section 88‑1
immediately before the person ceased to be an approved provider. However, they
do not include records that the person is required to transfer to another
approved provider under section 16‑10.
(3) A record may be retained in written or electronic
form.
Part 6.4—Powers of officers
Division 90—Introduction
90‑1
What this Part is about
This Part sets out the powers of *authorised
officers under this Act. A person who does not comply with an obligation
imposed under this Part may be guilty of an offence and, in the case of an
approved provider, may be taken to be not complying with its responsibilities
under Part 4.4.
Table of Divisions
90 Introduction
91 What powers can be exercised with an
occupier’s consent?
92 What powers can be exercised without an
occupier’s consent?
93 What powers are there to examine people and
obtain documents?
94 What are the obligations relating to
identity cards?
90‑2
Failure to meet obligations does not have consequences apart from under this
Act
(1) If:
(a) a person fails to meet an
obligation imposed under this Part; and
(b) the failure does not give rise to
an offence;
the failure has no consequences under any law other than
this Act.
(2) However, if the act or omission that
constitutes that failure also constitutes a breach of an obligation under
another law, this section does not affect the operation of any law in relation
to that breach of obligation.
90‑3
Meaning of authorised officer
An authorised officer is
an officer of the Department appointed by the Secretary, by written instrument,
to be an authorised officer for the purposes of this Part.
90‑4
Meaning of monitoring powers
(1) The following powers are monitoring
powers:
(a) any of the following in relation
to premises:
(i) to search the premises;
(ii) to take photographs
(including a video recording), or make sketches, of the premises or any
substance or thing at the premises;
(iii) to inspect, examine
and take samples of, any substance or thing on or in the premises;
(iv) to inspect any document
or record kept at the premises;
(v) to take extracts from,
or make copies of, any document or record at the premises;
(vi) to take onto the
premises any equipment or material reasonably necessary for the purpose of
exercising a power under paragraph (i), (ii), (iii), (iv) or (v);
(b) in relation to a thing that may
afford evidence of the commission of an offence against this Act, the powers in
subsection (2);
(c) in relation to documents or
records at premises, the powers in subsections (3) and (4).
(2) If an *authorised
officer, during a search of premises, believes on reasonable grounds that there
is at the premises a thing that may afford evidence of the commission of an
offence against this Act, the monitoring powers include securing
the thing pending the obtaining of a warrant to seize it.
(3) The monitoring powers
include operating equipment at the premises to see whether:
(a) the equipment; or
(b) a
disk, tape or other storage device that:
(i) is at the premises;
and
(ii) can be used with or is
associated with the equipment;
contains information that is relevant to assessing, in
respect of an approved provider, any of the following things:
(c) whether responsibilities under
Chapter 4 have been complied with;
(d) whether claims for payments under
Chapter 3 or other payments under this Act have been properly made;
(e) whether appraisals or reappraisals
made under Part 2.4 have been properly made;
(f) whether conditions of grants
under Chapter 5 have been complied with;
(g) whether records have been kept as
required under Part 6.3.
(4) If an *authorised officer, after operating
equipment at the premises, finds that the equipment, or a disk, tape or other
storage device at the premises, contains information of that kind, the monitoring
powers include:
(a) operating facilities at the
premises to put the information in documentary form and copying the documents
so produced; or
(b) if the information can be
transferred to a disk, tape or other storage device that:
(i) is brought to the
premises; or
(ii) is
at the premises and the use of which for the purpose has been agreed in writing
by the occupier of the premises;
operating the equipment or other
facilities to copy the information to the storage device and removing the
storage device from the premises.
Division 91—What powers can be exercised with an occupier’s consent?
91‑1
Power to enter premises with occupier’s consent to monitor compliance
(1) An *authorised officer may, to the extent
that it is reasonably necessary for any of the purposes set out in subsection (2):
(a) enter:
(i) the premises of an *aged care service at
any time of the day or night; or
(ii) any other premises
(including residential premises) at any time between 9 am and 5 pm on a *business day;
and
(b) exercise *monitoring powers.
(2) An *authorised officer may act as provided
for under subsection (1) for any of the following purposes:
(a) assessing whether an approved
provider is complying with its responsibilities under Chapter 4;
(b) assessing whether an approved
provider’s claims for payments under Chapter 3 or other payments
under this Act have been properly made;
(c) assessing whether appraisals or
reappraisals made under Part 2.4 have been properly made;
(d) assessing whether conditions of a
grant under Chapter 5 have been complied with;
(e) assessing whether records have
been kept as required under Part 6.3;
(f) assessing any application made
under this Act.
(3) However, an *authorised officer must not enter
premises under subsection (1) unless the occupier of the premises has
consented to the entry. An occupier of premises may withdraw consent at any
time. The authorised officer must leave the premises if the occupier asks the
authorised officer to do so.
(4) Before
obtaining the consent of an occupier, the *authorised officer must inform the
occupier that he or she may refuse to give consent, or withdraw that consent at
any time. An entry by an authorised officer by virtue of the consent of an
occupier is not lawful unless the person voluntarily consented to the entry.
Note: Approved
providers have a responsibility under paragraph 63‑1(1)(b) to co‑operate
with a person exercising powers under this Part and to comply with this Part in
relation to the person’s exercise of those powers. An approved provider who:
(a) refuses to consent to
the entry of an *authorised
officer; or
(b) withdraws consent for an
authorised officer to enter premises;
may not be complying with that
responsibility. Failure to comply with a responsibility can result in a
sanction being imposed under Part 4.4.
(5) An *authorised officer must not enter
premises under subsection (1) or do a thing referred to in section 90‑4
if:
(a) the occupier of the premises has
asked the authorised officer to produce his or her identity card for inspection
by the occupier; and
(b) the authorised officer fails to do
so.
91‑2
Power to ask people to answer questions etc.
(1) An *authorised officer who has entered
premises under subsection 91‑1(1) may ask a person at the premises:
(a) to answer any questions put by the
authorised officer; and
(b) to produce any documents or
records requested by the authorised officer.
(2) A person
is not obliged to comply with a request under subsection (1).
Note: Approved providers have a responsibility under
paragraph 63‑1(1)(b) to co‑operate with a person exercising powers
under this Part and to comply with this Part in relation to the person’s
exercise of those powers. An approved provider who does not comply with a
request under subsection (1) may not be complying with that
responsibility. Failure to comply with a responsibility can result in a
sanction being imposed under Part 4.4.
(3) The powers of an *authorised officer under this
section are to be exercised subject to the requirements of Information Privacy
Principles 1, 2 and 3 of the Privacy Act 1988.
91‑3
Occupier of premises to assist authorised officers
(1) An *authorised officer may ask the occupier
of any premises entered under subsection 91‑1(1) to provide reasonable
assistance to the officer, at any time while the officer is entitled to remain
on the premises, for the purpose of the exercise of the officer’s powers under
that section.
(2) An
occupier may refuse to provide assistance as requested under subsection (1).
Note: Approved providers have a responsibility under
paragraph 63‑1(1)(b) to co‑operate with a person exercising powers
under this Part and to comply with this Part in relation to the person’s
exercise of those powers. An approved provider who does not assist an *authorised officer
when requested under subsection (1) may not be complying with that
responsibility. Failure to comply with a responsibility can result in a
sanction being imposed under Part 4.4.
Division 92—What powers can be exercised without an occupier’s consent?
92‑1
Circumstances in which the powers in this Division can be exercised
The powers in this Division can only be
exercised in circumstances relating to:
(a) the affairs of an approved
provider that is a *corporation;
or
(b) the payment of subsidy under
Chapter 3.
92‑2
Monitoring warrants
(1) An *authorised officer may apply to a
magistrate for a warrant under this section in relation to particular premises.
(2) Subject to subsection (3), the
magistrate may issue the warrant if satisfied, by information on oath or
affirmation, that it is reasonably necessary that the *authorised officer should have
access to the premises for any of the following purposes:
(a) assessing whether an approved
provider is complying with its responsibilities under Chapter 4;
(b) assessing whether an approved
provider’s claims for payments under Chapter 3 and other payments under
this Act have been properly made;
(c) assessing whether appraisals or
reappraisals under Part 2.4 have been properly made;
(d) assessing whether records have
been kept as required under Part 6.3.
(3) The magistrate must not issue the warrant
unless the *authorised
officer or someone else has given the magistrate, either orally (on oath or
affirmation) or by affidavit, any further information the magistrate may
require about the grounds on which the issue of the warrant is being sought.
(4) The
warrant must:
(a) authorise an *authorised officer
named in the warrant, with such assistance and by such force as is necessary
and reasonable, from time to time while the warrant remains in force, to enter
the premises and exercise *monitoring powers; and
(b) state whether an entry under the
warrant is authorised to be made at any time of the day or night or during
specified hours of the day or night; and
(c) specify the day (not more than 6
months after the issue of the warrant) on which the warrant ceases to have
effect; and
(d) state
the purpose for which the warrant is issued.
Note: An *authorised officer who is at premises under this section
may require any person present to answer questions under section 92‑7.
92‑3
Offence‑related warrants
(1) An *authorised officer may apply to a
magistrate for a warrant under this section in relation to particular premises.
(2) Subject to subsection (3), a
magistrate may issue the warrant if satisfied, by information on oath or
affirmation, that there are reasonable grounds for suspecting that there is, or
may be within the next 72 hours, at the premises a particular thing, including
information, that may afford evidence of the commission of an offence against
this Act.
(3) A magistrate must not issue the warrant
unless the *authorised
officer or someone else has given the magistrate, either orally (on oath or
affirmation) or by affidavit, any further information the magistrate may
require about the grounds on which the issue of the warrant is being sought.
(4) The warrant must:
(a) authorise an *authorised officer
named in the warrant, with such assistance and by such force as is necessary
and reasonable, to do any of the following:
(i) to enter the premises;
(ii) to search the premises
for the thing;
(iii) if the thing is found,
to take photographs (including video recordings) of the premises or thing, to
take samples of the thing, to seize the thing or to undertake more than one of
those activities;
(b) if the thing is, or includes,
information in a written or electronic form—authorise the authorised officer to
exercise the powers set out in subsections (5), (6) and (7) in respect of
the thing;
(c) state whether the entry is
authorised to be made at any time of the day or night or during specified hours
of the day or night;
(d) specify the day (not more than 7
days after the issue of the warrant) on which the warrant ceases to have
effect;
(e) state the purpose for which the
warrant is issued.
(5) If the thing referred to in subsection (2)
is, or includes, information in a written or electronic form, an *authorised officer
may operate equipment at premises referred to in the warrant to see whether the
information is contained in:
(a) the equipment; or
(b) a disk, tape or other storage
device that:
(i) is at the premises;
and
(ii) can be used with or is
associated with the equipment.
(6) If the *authorised officer, after operating
equipment at the premises, finds that the equipment contains the information,
or that a disk, tape or other storage device at the premises contains the
information, he or she may:
(a) seize the equipment or the disk,
tape or other storage device; or
(b) if the information can, by using
facilities at the premises, be put in documentary form—operate the facilities
to put the information in that form and seize the documents so produced; or
(c) if the information can be
transferred to a disk, tape or other storage device:
(i) that is brought to the
premises; or
(ii) that is at the
premises and the use of which for the purpose has been agreed to in writing by
the occupier of the premises;
operate the equipment or other facilities to copy the
information to the storage device and remove the storage device from the
premises.
(7) An *authorised officer may seize equipment
under paragraph (6)(a) only if:
(a) it is not practicable to put the
relevant information in documentary form as mentioned in paragraph (6)(b)
or to copy the information as mentioned in paragraph (6)(c); or
(b) possession by the occupier of the
equipment could constitute an offence.
(8) If, in the course of searching for a
particular thing in relation to a particular offence, an *authorised officer
finds another thing that the authorised officer believes, on reasonable
grounds, to be:
(a) a thing that will afford evidence
as to the commission of an offence (although not the thing specified in the
warrant); or
(b) a thing that will afford evidence
as to the commission of another offence against this Act;
and the authorised officer
believes, on reasonable grounds, that it is necessary to seize that thing in
order to prevent its concealment, loss or destruction, or its use in
committing, continuing or repeating the offence or the other offence, the
warrant is to be taken to authorise the authorised officer to seize that thing.
Note: An *authorised officer who is at premises under this section
may require any person present to answer questions under section 92‑7.
92‑4
Warrants may be granted by telephone etc.
(1) If, because of circumstances of urgency,
an *authorised
officer thinks it necessary, the authorised officer may apply for a warrant
under section 92‑3 by telephone, telex, facsimile or other electronic
means under this section.
(2) Before
making such an application, an *authorised officer must prepare an information of the kind
mentioned in subsection 92‑3(2) that sets out the grounds on which the
issue of the warrant is being sought, but may, if it is necessary to do so,
make the application before the information has been sworn.
(3) If a magistrate to whom an application
under this section is made is satisfied:
(a) after having considered the terms
of the information prepared under subsection (2); and
(b) after having received any further
information that the magistrate may require about the grounds on which the
issue of the warrant is being sought;
that there are reasonable grounds for issuing the warrant,
the magistrate must complete and sign a warrant that is the same as the warrant
that the magistrate would issue under section 92‑3 if the
application had been made under that section.
(4) If a
magistrate signs a warrant under subsection (3):
(a) the magistrate must inform the *authorised officer
of the terms of the warrant, the day and time when it was signed, and the day
on which it ceases to have effect, and record on the warrant the reasons for
issuing it; and
(b) the authorised officer must
complete a form of warrant in the terms given to the authorised officer by the
magistrate and write on it the magistrate’s name and the day and time when the
warrant was signed.
(5) If an *authorised officer completes a form of
warrant, the authorised officer must, not later than the day after:
(a) the day on which the warrant
ceases to have effect; or
(b) the day on which the warrant is
executed;
whichever happens first, send the magistrate who signed
the warrant the form of warrant completed by the authorised officer and the
information duly sworn in connection with the warrant.
(6) On receipt
of the documents mentioned in subsection (5), the magistrate must attach
to them the warrant signed by the magistrate and deal with the documents in the
same way that the magistrate would have dealt with the information if the
application for the warrant had been made under section 92‑3.
(7) The form of warrant completed by an *authorised officer
under subsection (4) is, if it is in accordance with the terms of the
warrant signed by the magistrate, authority for any entry, search, seizure or
other exercise of a power that the warrant so signed has authorised.
(8) If:
(a) in any proceedings, the court must
be satisfied that an entry, search, seizure, or other exercise of power, was
authorised under this section; and
(b) the warrant signed by a magistrate
under this section authorising the entry, search, seizure, or other exercise of
power, is not produced in evidence;
the court must assume (unless the contrary is proved) that
the entry, search, seizure, or other exercise of power, was not authorised by
such a warrant.
92‑5
Seizures without offence‑related warrant in emergency situations
(1) This section applies when an *authorised officer
is at premises under section 91‑1 or by virtue of a warrant issued under
section 92‑2.
(2) If the *authorised officer suspects, on
reasonable grounds, that:
(a) a thing relevant to an offence
against this Act is at premises; and
(b) it is necessary to exercise a
power under paragraph (d) or (e) in order to prevent the thing from being
concealed, lost or destroyed; and
(c) it is necessary to exercise the
power without the authority of a warrant under section 92‑3 because
the circumstances:
(i) relate to the health
and safety of a care recipient; and
(ii) are so serious and
urgent;
the authorised officer may:
(d) search the premises, and any
receptacle at the premises for the thing; and
(e) secure the thing pending the
obtaining of a warrant to seize it, if he or she finds it there.
92‑6
Discovery of evidence
(1) If:
(a) an *authorised officer who enters under a
warrant under section 92‑3 finds the thing (evidence)
which the authorised officer entered the premises to find; and
(b) the officer seizes the evidence;
the authorised officer:
(c) may keep the evidence so seized
for 60 days; and
(d) if proceedings are instituted
within 60 days after the seizure and the evidence may be used in the
proceedings—may keep the evidence so seized until the proceedings (including
any appeal to a court in relation to the proceedings) are terminated; and
(e) must allow it to be inspected at
any reasonable time by anyone who would be entitled to inspect it if it were
not in the authorised officer’s possession.
(2) If, in the course of searching premises
entered under a warrant under section 92‑3, the *authorised
officer:
(a) finds a thing that he or she
believes, on reasonable grounds, to be:
(i) a thing (other than
the evidence mentioned in subsection (1)) that will afford evidence of the
commission of the offence in relation to which the search was undertaken; or
(ii) a thing that will
afford evidence of the commission of another offence against this Act; and
(b) the authorised officer believes,
on reasonable grounds, that it is necessary to seize the thing to prevent its
concealment, loss or destruction;
subsection (1) applies to the thing as if it were the
evidence mentioned in that subsection.
(3) An *authorised officer may apply to a
magistrate to extend the periods of time referred to in paragraphs (1)(c)
and (d). The magistrate may extend the periods of time for so long as the
magistrate considers necessary.
92‑7
Power to require people to answer questions etc.
(1) If an *authorised officer is at premises that he
or she entered under a warrant, the officer may require any person at the
premises:
(a) to answer any questions put by the
authorised officer; and
(b) to produce any documents requested
by the authorised officer.
(2) A person
is guilty of an offence if the person fails to comply with a requirement under subsection (1).
Penalty: 30 penalty units.
Note 1: Chapter 2
of the Criminal Code sets out the general principles of criminal
responsibility.
Note 2: Approved providers also have a responsibility
under paragraph 63‑1(1)(b) to co‑operate with a person exercising
powers under this Part and to comply with this Part in relation to the person’s
exercise of those powers. An approved provider who does not comply with a
requirement under subsection (1) may not be complying with that
responsibility. Failure to comply with a responsibility can result in a
sanction being imposed under Part 4.4.
(3) A person is excused from complying with a
requirement under subsection (1) if the answer to the question or the
production of the document might tend to incriminate the person or expose the
person to a penalty.
(4) The powers of an *authorised officer under this
section are to be exercised subject to the requirements of Information Privacy
Principles 1, 2 and 3 of the Privacy Act 1988.
92‑8
Person on premises to assist authorised officers
(1) An *authorised officer may require any person
at premises entered under a warrant to provide reasonable assistance to the
officer at any time while the officer is entitled to remain on the premises.
(2) The authorised officer may require the
assistance for the purpose of the exercise of the officer’s powers under
section 92‑2 (monitoring warrant) or section 92‑3
(offence‑related warrant) in relation to the premises.
(3) A person
is guilty of an offence if the person fails to comply with a requirement under subsection (1).
Penalty: 30 penalty units.
Note 1: Chapter 2
of the Criminal Code sets out the general principles of criminal
responsibility.
Note 2: Approved providers also have a responsibility
under paragraph 63‑1(1)(b) to co‑operate with a person exercising
powers under this Part and to comply with this Part in relation to the person’s
exercise of those powers. An approved provider who does not comply with a
requirement under subsection (1) may not be complying with that
responsibility. Failure to comply with a responsibility can result in a
sanction being imposed under Part 4.4.
(4) A person is excused from complying with a
requirement made of the person under subsection (1) to assist an *authorised officer
if to do so might tend to incriminate the person or expose the person to a
penalty.
Division 93—What powers are there to examine people and obtain documents?
93‑1
Secretary’s power to obtain information and documents
(1) The Secretary may, by written notice,
require any person whom the Secretary believes on reasonable grounds to be
capable of giving information relevant to any of the matters set out in subsection (2),
to attend before an *authorised
officer specified in the notice, at a time and place specified in the notice:
(a) to answer any questions put by the
officer; and
(b) to
produce to the officer such documents, or copies of documents, as are referred
to in the notice.
Note: Sections 28A and 29 of the Acts
Interpretation Act 1901 (which deal with service of documents) apply to
notice given under this section.
(2) The Secretary may act as provided for
under subsection (1) in relation to any of the following matters:
(a) assessing whether an approved
provider is complying with its responsibilities under Chapter 4;
(b) assessing whether an approved
provider’s claims for payments under Chapter 3 or other payments under
this Act have been properly made;
(c) assessing whether appraisals or
reappraisals made under Part 2.4 have been properly made;
(d) assessing whether conditions of a
grant under Chapter 5 have been complied with;
(e) assessing whether records have
been kept as required under Part 6.3;
(f) assessing any application made
under this Act.
(3) A person may refuse to comply with a
requirement under subsection (1) that does not relate to:
(a) the affairs of an approved
provider that is a *corporation;
or
(b) the
payment of subsidy under Chapter 3.
Note: Approved providers have a responsibility under
paragraph 63‑1(1)(b) to co‑operate with a person exercising powers
under this Part and to comply with this Part in relation to the person’s
exercise of those powers. An approved provider who does not comply with a
requirement under subsection (1) may not be complying with that
responsibility. Failure to comply with a responsibility can result in a
sanction being imposed under Part 4.4.
(4) A person is guilty of an offence if:
(a) the person refuses or fails to
comply with a requirement under subsection (1); and
(b) the requirement relates to:
(i) the affairs of an
approved provider that is a *corporation; or
(ii) the
payment of subsidy under Chapter 3.
Penalty: 30 penalty units.
Note: Chapter 2 of the Criminal Code
sets out the general principles of criminal responsibility.
(5) The powers of an *authorised officer under this
section are to be exercised subject to the requirements of Information Privacy
Principles 1, 2 and 3 of the Privacy Act 1988.
(6) A person is entitled to be paid by the
Commonwealth reasonable compensation for complying with a request covered by paragraph (1)(b).
93‑2
Self‑incrimination
A person is excused from complying with
a requirement made of the person under section 93‑1 if the answer to
the question or the production of the document might tend to incriminate the
person or expose the person to a penalty.
93‑4
Authorised officers may examine on oath or affirmation
(1) An *authorised officer may examine a person
on oath or affirmation and may, for that purpose:
(a) require the person either to take
an oath or make an affirmation; and
(b) administer an oath or affirmation
to the person.
(2) A person may refuse to be sworn or make
an affirmation if required to do so for the purpose of answering questions or
producing documents that do not relate to:
(a) the affairs of an approved provider
that is a *corporation;
or
(b) the
payment of subsidy under Chapter 3.
Note: Approved providers have a responsibility under
paragraph 63‑1(1)(b) to co‑operate with a person exercising powers
under this Part and to comply with this Part in relation to the person’s
exercise of those powers. An approved provider who does not comply with a
requirement under subsection (1) may not be complying with that
responsibility. Failure to comply with a responsibility can result in a
sanction being imposed under Part 4.4.
(3) A person is guilty of an offence if:
(a) the person refuses or fails to be
sworn or make an affirmation when so required; and
(b) the requirement has been made for
the purpose of answering questions or producing documents that relate to:
(i) the affairs of an
approved provider that is a *corporation; or
(ii) the
payment of subsidy under Chapter 3.
Penalty: 30 penalty units.
Note: Chapter 2 of the Criminal Code
sets out the general principles of criminal responsibility.
(4) The oath or affirmation to be taken or
made by the person for the purposes of the examination is an oath or
affirmation that the statements that the person will make will be true.
Division 94—What are the obligations relating to identity cards?
94‑1
Identity cards for authorised officers
(1) The Secretary must cause an identity card
to be issued to each person appointed as an *authorised officer under section 90‑3.
(2) The identity card must specify the name
and appointment of the person.
(3) A recent photograph of the person must be
attached to the card.
94‑2
Return of identity cards issued to authorised officers
A person appointed as an *authorised officer
under section 90‑3 must, upon ceasing to be an authorised officer,
return to the Secretary the identity card issued to the person under section 94‑1.
Penalty: 1 penalty unit.
Note: Chapter 2 of the Criminal Code
sets out the general principles of criminal responsibility.
Part 6.4A—Investigations
Division 94A—Investigation Principles
94A‑1
Investigation Principles
Provision for investigation of matters
(1) The Investigation Principles may make
provision relating to the investigation of matters (including complaints)
relating to this Act or the Principles made under section 96‑1,
including provision relating to one or more of the following:
(a) which matters are to be
investigated;
(b) how investigations are to be
conducted;
(c) considerations in making decisions
relating to investigations;
(d) procedures for reconsideration or
examination of decisions relating to investigations.
Note: The Investigation Principles are made by the
Minister under section 96‑1.
Provision for action if investigation finds non‑compliance
(2) The Investigation Principles may make
provision relating to actions that may be taken (including the making of
requirements of an approved provider) if it is found in an investigation that
an approved provider has not complied with its responsibilities under
Part 4.1, 4.2 or 4.3.
Transitional provisions relating to complaints
(3) The Investigation Principles may make
provision of a transitional or saving nature relating to complaints that:
(a) related to this Act or the
Principles made under section 96‑1; and
(b) were being dealt with under the
Committee Principles immediately before the commencement of this section.
Note: Part 6.6 also provides for Investigation
Principles to do certain things.
Relationship with other provisions
(4) To avoid doubt, this Part and the
Investigation Principles do not affect any of the following:
(a) paragraph 56‑4(1)(d) (about
giving people authorised to investigate complaints access to an *aged care service
as specified in the User Rights Principles);
(b) the User Rights Principles;
(c) Part 4.4 (Consequences of non‑compliance);
(d) the Sanctions Principles;
(e) the other Parts of this Chapter
(except Part 6.6).
Part 6.5—Recovery of overpayments
Division 95—Recovery of overpayments
95‑1
Recoverable amounts
(1) If the Commonwealth pays an amount to a
person by way of subsidy under Chapter 3, any part of the amount that is
an overpayment is a recoverable amount.
(2) If:
(a) the Commonwealth pays an amount to
a person by way of a grant under Chapter 5; and
(b) a condition to which the grant is
subject is not met;
the amount of the grant (or so much of the amount as the
Secretary determines) is a recoverable amount.
95‑2
Recoverable amount is a debt
A *recoverable amount is a debt due to the
Commonwealth and may be recovered by the Commonwealth in a court of competent
jurisdiction.
95‑3
Recovery by deductions from amounts payable to debtor
If an approved provider is liable to pay
a *recoverable
amount, the amount (or part of it) may be deducted from one or more other
amounts payable to the approved provider under this Act.
95‑4
Recovery where there is a transfer of places
If:
(a) a person is liable to pay a *recoverable amount
because of an overpayment in respect of an *aged care service; and
(b) all allocated *places included in
the aged care service have been transferred to another person (the transferee)
under Division 16;
the recoverable amount (or part of it) may be deducted
from one or more other amounts payable to the transferee under this Act.
95‑5
Refund to transferee if Commonwealth makes double recovery
(1) If:
(a) a person (the debtor)
is liable to pay a *recoverable
amount under this Part; and
(b) the Commonwealth recovers the
amount (or part of it) from another person (the transferee) by
way of deductions under section 95‑4; and
(c) the Commonwealth later recovers
the amount (or part of it) from the debtor;
the Commonwealth is liable to make a refund to the
transferee.
(2) The refund payable to the transferee is
the smaller of the following amounts:
(a) the total amount recovered from
the transferee by way of deductions under section 95‑4;
(b) the amount recovered from the
debtor.
95‑6
Write‑off and waiver of debt
The Secretary may, on behalf of the
Commonwealth, determine to do any of the following:
(a) write off a debt or class of debts
arising under this Act;
(b) waive the right of the
Commonwealth to recover a debt or class of debts arising under this Act;
(c) allow an amount of a debt that is
payable by a person to the Commonwealth under this Act to be paid in
instalments.
Part 6.6—Aged Care Commissioner
Division 95A—Aged Care Commissioner
95A‑1
Aged Care Commissioner
(1) There is to be an *Aged Care Commissioner.
(2) The functions of the *Aged Care
Commissioner are as follows:
(a) to examine decisions that are made
by the Secretary under the Investigation Principles and are identified by those
Principles as being examinable by the Aged Care Commissioner, and make
recommendations to the Secretary arising from the examination;
(b) to examine complaints made to the
Aged Care Commissioner about the Secretary’s processes for handling matters
under the Investigation Principles, and make recommendations to the Secretary
arising from the examination;
(c) to examine, on the Aged Care
Commissioner’s own initiative, the Secretary’s processes for handling matters
under the Investigation Principles, and make recommendations to the Secretary
arising from the examination;
(d) to examine complaints made to the
Aged Care Commissioner about:
(i) the conduct of an *accreditation body
relating to its responsibilities under the Accreditation Grant Principles; or
(ii) the conduct of a
person carrying out an audit, or making a support contact, under those
Principles;
(but not a complaint about the
merits of a decision under those Principles), and make recommendations to the
accreditation body concerned arising from the examination;
(e) to examine, on the Aged Care
Commissioner’s own initiative:
(i) the conduct of an
accreditation body relating to its responsibilities under the Accreditation
Grant Principles; and
(ii) the conduct of persons
carrying out audits, or making support contacts, under those Principles;
and make recommendations to the
accreditation body concerned arising from the examination;
(f) to advise the Minister, at the
Minister’s request, about matters relating to any of paragraphs (a), (b),
(c), (d) and (e);
(g) the functions (if any) specified
in the Investigation Principles.
95A‑2
Appointment
(1) The *Aged Care Commissioner is to be appointed
by the Minister by written instrument.
(2) The *Aged Care Commissioner may be appointed
on a full‑time basis or on a part‑time basis.
(3) The *Aged Care Commissioner holds office for
the period specified in the instrument of appointment. The period must not
exceed 3 years.
95A‑3
Acting appointments
(1) The Minister may appoint a person to act
as the *Aged
Care Commissioner:
(a) during a vacancy in the office of
the Aged Care Commissioner (whether or not an appointment has previously been
made to the office); or
(b) during any period, or during all
periods, when the Aged Care Commissioner is absent from duty or from Australia,
or is, for any reason, unable to perform the duties of the office.
(2) Anything done by or in relation to a
person purporting to act under an appointment is not invalid merely because:
(a) the occasion for the appointment
had not arisen; or
(b) there was a defect or irregularity
in connection with the appointment; or
(c) the appointment had ceased to have
effect; or
(d) the occasion to act had not arisen
or had ceased.
95A‑4
Remuneration
(1) The *Aged Care Commissioner is to be paid the
remuneration that is determined by the Remuneration Tribunal. If no
determination of that remuneration by the Tribunal is in operation, the Aged
Care Commissioner is to be paid the remuneration that is prescribed by the
Investigation Principles.
(2) The *Aged Care Commissioner is to be paid the
allowances that are prescribed by the Investigation Principles.
(3) This section has effect subject to the Remuneration
Tribunal Act 1973.
95A‑5
Leave of absence
Full‑time Commissioner
(1) If the *Aged Care Commissioner is appointed on a
full‑time basis:
(a) he or she has the recreation leave
entitlements that are determined by the Remuneration Tribunal; and
(b) the Minister may grant the Aged
Care Commissioner leave of absence, other than recreation leave, on the terms
and conditions as to remuneration or otherwise that the Minister determines.
Part‑time Commissioner
(2) If the *Aged Care Commissioner is appointed on a
part‑time basis, the Minister may grant leave of absence to the Aged Care
Commissioner on the terms and conditions that the Minister determines.
95A‑6
Other terms and conditions
The *Aged Care Commissioner holds office on
the terms and conditions (if any) in relation to matters not covered by this
Act that are determined by the Minister.
95A‑7
Restrictions on outside employment
Full‑time Commissioner
(1) If the *Aged Care Commissioner is appointed on a
full‑time basis, he or she must not engage in paid employment outside the
duties of the Aged Care Commissioner’s office without the Minister’s approval.
Part‑time Commissioner
(2) If the *Aged Care Commissioner is appointed on a
part‑time basis, he or she must not engage in any paid employment that
conflicts or may conflict with the proper performance of his or her duties.
95A‑8
Disclosure of interests
The *Aged Care Commissioner must give written
notice to the Minister of all interests, pecuniary or otherwise, that the
Commissioner has or acquires that could conflict with the proper performance of
the Commissioner’s functions.
95A‑9
Resignation
The *Aged Care Commissioner may resign his or
her appointment by giving the Minister a written resignation.
95A‑10
Termination of appointment
(1) The Minister may terminate the
appointment of the *Aged
Care Commissioner for misbehaviour or physical or mental incapacity.
(2) The Minister must terminate the
appointment of the *Aged
Care Commissioner if:
(a) the Aged Care Commissioner:
(i) becomes bankrupt; or
(ii) applies to take the
benefit of any law for the relief of bankrupt or insolvent debtors; or
(iii) compounds with his or
her creditors; or
(iv) makes an assignment of
his or her remuneration for the benefit of his or her creditors; or
(b) the Aged Care Commissioner is
absent, except on leave of absence, for 14 consecutive days or for 28 days in
any 12 months; or
(c) the Aged Care Commissioner is
appointed on a full‑time basis and engages, except with the Minister’s
approval, in paid employment outside the duties of his or her office; or
(d) the Aged Care Commissioner is
appointed on a part‑time basis and engages in paid employment that
conflicts or could conflict with the proper performance of the duties of his or
her office; or
(e) the Aged Care Commissioner fails,
without reasonable excuse, to comply with section 95A‑8.
95A‑11
Delegations of Aged Care Commissioner’s functions
(1) The *Aged Care Commissioner may delegate in
writing all or any of his or her functions to an APS employee in the
Department.
(2) In exercising his or her powers under
subsection (1), the *Aged Care Commissioner is to have regard to the function to
be performed by the delegate and the responsibilities of the APS employee to
whom the function is delegated.
(3) In performing functions delegated under
subsection (1), the delegate must comply with any directions of the *Aged Care
Commissioner.
95A‑12
Annual report
(1) The *Aged Care Commissioner must, as soon as
practicable after the end of each financial year, prepare and give to the
Minister, for presentation to the Parliament, a report on the Aged Care
Commissioner’s operations during that year.
Note: See also section 34C of the Acts
Interpretation Act 1901, which contains extra rules about annual reports.
(2) The *Aged Care Commissioner must include in
the report:
(a) the number of decisions made by
the Secretary under the Investigation Principles that the Aged Care
Commissioner examined during the financial year; and
(b) the number of complaints about the
following matters (examinable complaints) that were made to the
Aged Care Commissioner during the financial year:
(i) the Secretary’s
processes for handling of matters under the Investigation Principles;
(ii) the conduct of an *accreditation body
relating to its responsibilities under the Accreditation Grant Principles;
(iii) the conduct of a
person carrying out an audit, or making a support contact, under those
Principles; and
(c) the number of examinable
complaints that the Aged Care Commissioner started to examine during the
financial year; and
(d) the number of examinable
complaints that the Aged Care Commissioner finished examining during the
financial year; and
(e) a summary of the nature of the
examinations made by the Aged Care Commissioner during the financial year of
examinable complaints; and
(f) the number of examinations made
by the Aged Care Commissioner on his or her own initiative during the financial
year; and
(g) a summary of the nature of
examinations made by the Aged Care Commissioner on his or her own initiative
during the financial year; and
(h) the number of requests for advice
the Minister made to the Aged Care Commissioner during the financial year; and
(i) a summary of the nature of those
requests; and
(j) a summary of the nature of advice
given by the Commissioner to the Minister during the financial year in response
to requests by the Minister; and
(k) any other information required by
the Investigation Principles to be included in the report.
Chapter 7—Miscellaneous
Division 96—Miscellaneous
96‑1
Principles
(1) The Minister may make Principles,
specified in the second column of the table, providing for matters:
(a) required or permitted by the
corresponding Part or section of this Act specified in the third column of the
table to be provided; or
(b) necessary or convenient to be
provided in order to carry out or give effect to that Part or section.
|
Principles Minister may make
|
|
Item
|
Principles
|
Part or provision
|
|
1
|
Accountability Principles
|
Part 4.3
|
|
2
|
Accreditation Grant Principles
|
Part 5.4
|
|
3
|
Advocacy Grant Principles
|
Part 5.5
|
|
4
|
Allocation Principles
|
Part 2.2
|
|
5
|
Approval of Care Recipients Principles
|
Part 2.3
|
|
6
|
Approved Provider Principles
|
Part 2.1
|
|
7
|
Assessment Grant Principles
|
Part 5.3
|
|
8
|
Certification Principles
|
Part 2.6
|
|
9
|
Classification Principles
|
Part 2.4
|
|
10
|
Committee Principles
|
section 96‑3
|
|
11
|
Community Care Grant Principles
|
Part 5.2
|
|
12
|
Community Care Subsidy Principles
|
Part 3.2
|
|
13
|
Community Visitors Grant Principles
|
Part 5.6
|
|
14
|
Extra Service Principles
|
Part 2.5
|
|
15
|
Flexible Care Subsidy Principles
|
Part 3.3
|
|
16
|
Information Principles
|
Part 6.2
|
|
16A
|
Investigation Principles
|
Parts 6.4A and 6.6
|
|
17
|
Other Grants Principles
|
Part 5.7
|
|
18
|
Quality of Care Principles
|
Part 4.1
|
|
19
|
Records Principles
|
Part 6.3
|
|
20
|
Residential Care Grant Principles
|
Part 5.1
|
|
21
|
Residential Care Subsidy Principles
|
Part 3.1
|
|
22
|
Sanctions Principles
|
Part 4.4
|
|
23
|
User Rights Principles
|
Part 4.2
|
(2) Principles are disallowable instruments
for the purposes of section 46A of the Acts Interpretation Act 1901.
96‑2
Delegations of Secretary’s powers and functions
(1) The Secretary may, in writing, delegate
to an officer of the Department, or to the *Aged Care Commissioner, all or any of the
powers of the Secretary under this Act, the regulations or any Principles made
under section 96‑1.
(2) In exercising his or her powers under subsection (1),
the Secretary is to have regard to the powers to be exercised by the delegate
and the responsibilities of the officer to whom the power is delegated.
(2A) The Secretary may, in writing, delegate the
Secretary’s powers under section 44‑8AA and 44‑8AB to any or
all of the following:
(a) the *CEO;
(b) the Secretary of the Department
administering the Veterans’ Entitlements Act 1986.
Note: The Secretary’s powers under section 44‑8AA
relate to determinations affecting whether persons are concessional residents
or assisted residents. The Secretary’s powers under section 44‑8AB
relate to determinations of the value of persons’ assets.
(3) The Secretary may, in writing, delegate
to either or both of the following:
(a) the Secretary to the Department of
Social Security;
(b) the *Repatriation Commission;
the Secretary’s powers
relating to making a determination of a care recipient’s *ordinary income
under section 44‑24.
Note: The determination of a care recipient’s *ordinary income is
relevant to applying the income test under Subdivision 44‑E and to
working out the *standard
resident contribution under Division 58.
(3A) The Secretary may, in writing, delegate to
either or both of the following:
(a) the *CEO;
(b) the Secretary of the Department
administering the Veterans’ Entitlements Act 1986;
the Secretary’s powers under section 85‑4 or 85‑5
relating to a decision:
(c) to grant or refuse an application
for a determination described in subsection 44‑7(1A) or 44‑8(1A);
or
(d) to revoke a determination made
under subsection 44‑8AA(1); or
(e) to determine under section 44‑8AB
the value of a person’s assets; or
(f) to revoke a determination under
that section of the value of a person’s assets.
(4) The
Secretary may, in writing, delegate the Secretary’s powers, under section 85‑4
or 85‑5, relating to reconsidering a determination made under section 44‑24
to the *Repatriation
Commission.
(5) The Secretary may, in writing, delegate
to a person making an assessment for the purposes of section 22‑4:
(a) all or any of the Secretary’s
functions under Part 2.3; and
(b) all or any of the Secretary’s
powers under the Residential Care Subsidy Principles that relate to respite
supplement.
(6) The Secretary may, in writing, delegate
to a body to which an *accreditation grant is payable any functions of the
Secretary that the Secretary considers necessary for the purposes of the grant.
(6A) If, under subsection (2A) or (3A), the
Secretary delegates a power mentioned in that subsection to the *CEO, the CEO may,
by writing, sub‑delegate the power to an *employee of the *Services Delivery Agency.
(6B) If, under subsection (2A) or (3A), the
Secretary delegates a power mentioned in that subsection to the Secretary of the
Department administering the Veterans’ Entitlements Act 1986, the
Secretary of that Department may, by writing, sub‑delegate the power to
an APS employee in that Department.
(7) If, under paragraph (3)(a), the
Secretary delegates a power mentioned in subsection (3) to the Secretary
to the Department of Social Security, the Secretary to the Department of Social
Security may, by writing, sub‑delegate the power to all or any of the
following:
(a) an officer of that Department; or
(b) the *CEO; or
(c) an *employee of the *Services Delivery Agency.
(8) If, under paragraph (3)(b) or subsection (4),
the Secretary delegates a power mentioned in subsection (3) or (4) to the *Repatriation
Commission, the *Repatriation
Commission may, by writing, sub‑delegate the power to any person to whom
it may delegate powers under section 213 of the Veterans’ Entitlements
Act 1986.
(9) Sections 34AA, 34AB and 34A of the Acts
Interpretation Act 1901 apply in relation to a sub‑delegation in a
corresponding way to the way in which they apply to a delegation.
96‑3
Committees
(1) The Minister may establish committees for
the purposes of this Act.
(3) The Committee Principles may provide for
the following matters in relation to a committee:
(a) its functions;
(b) its constitution;
(c) its composition;
(d) the remuneration (if any) of its
members;
(e) the disclosure of members’
interests;
(f) its procedures;
(g) the fees (if any) that may be
charged, on behalf of the Commonwealth, for services provided by it;
(h) any other matter relating to its
operation.
(4) Fees charged for a service provided by a
committee must be reasonably related to the cost of providing the service and
must not be such as to amount to taxation.
96‑4
Care provided on behalf of an approved provider
A reference in this Act to an approved
provider providing care includes a reference to the provision of that care by
another person, on the approved provider’s behalf, under a contract or
arrangement entered into between the approved provider and the other person.
Note: The approved provider will still be subject to
the responsibilities under Chapter 4 in respect of care provided by the
other person.
96‑5
Care recipients etc. lacking capacity to enter agreements
If:
(a) this Act provides for an approved
provider and a care recipient, or a person proposing to enter an *aged care service,
to enter into an agreement; and
(b) the care recipient or person is,
because of any physical incapacity or mental impairment, unable to enter into
the agreement;
another person (other than
an approved provider) representing the care recipient or person may enter into
the agreement on behalf of the care recipient or person.
Note: The agreements provided for in this Act are *accommodation bond
agreements, *accommodation
charge agreements, *community
care agreements, *extra
service agreements and *resident agreements.
96‑6
Applications etc. on behalf of care recipients
If this Act provides for a care
recipient to make an application or give information, the application may be
made or the information given by a person authorised to act on the care
recipient’s behalf.
96‑7
Withdrawal of applications
(1) A person who has made an application to
the Secretary under this Act may withdraw the application at any time before
the Secretary makes a decision relating to the application.
(2) If:
(a) this Act provides that an
application under this Act is taken to be withdrawn if the application does not
give further information, within a particular period, as requested by the Secretary;
and
(b) the Secretary, at the applicant’s
request, extends the period for giving the further information;
the application is not taken to be withdrawn unless the
applicant does not give the further information within the period as extended.
96‑9
Application of the Criminal Code
Chapter 2 of the Criminal Code
applies to all offences against this Act.
Note: The Criminal Code creates offences
which can apply in relation to the regulation of providers of aged care. For
example, under section 137.1 of the Code it would generally be an offence
to give false or misleading information to the Secretary in purported
compliance with this Act.
96‑10
Appropriation
(1) Subject to subsection (2), subsidies
payable under Chapter 3, and amounts payable under subsection 44‑8A(6),
are payable out of the Consolidated Revenue Fund, which is appropriated
accordingly.
(2) This section does not apply to any amount
payable in respect of:
(a) treatment (within the meaning of
Part V of the Veterans’ Entitlements Act 1986) that the *Repatriation
Commission has arranged under section 84 of that Act; or
(b) treatment (within the meaning of
section 13 of the Military Rehabilitation and Compensation Act 2004)
that the *Military
Rehabilitation and Compensation Commission has arranged under Division 4
of Part 3 of Chapter 6 of that Act; or
(c) treatment (within the meaning of
the Australian Participants in British Nuclear Tests (Treatment) Act 2006)
that the Repatriation Commission has arranged under section 12 of that
Act.
Note: Under the Veterans’ Entitlements Act 1986,
the Military Rehabilitation and Compensation Act 2004 and the Australian
Participants in British Nuclear Tests (Treatment) Act 2006, the treatments
that the *Repatriation
Commission and the *Military
Rehabilitation and Compensation Commission can arrange could include the
provision of *aged
care for which subsidy is payable under Chapter 3 of this Act.
96‑11
Minister may give general policy directions
(1) The Secretary’s functions under this Act
must be performed, and the Secretary’s powers under this Act must be exercised,
in accordance with any general directions given to the Secretary by the
Minister in writing.
(2) Subsection (1)
applies to the performance of the Secretary’s functions, or the exercise of the
Secretary’s powers, by the Secretary or by any person or body to whom functions
or powers of the Secretary have been delegated or sub‑delegated under
this or any other Act.
(3) The Minister must not give such a
direction more than 12 months after the commencement of this section. However,
a direction may be revoked at any time.
(4) Subsection (1) does not empower the
Minister to give directions that would be inconsistent with this Act, the
regulations or Principles made under section 96‑1.
(5) The Minister must cause a copy of any
direction under subsection (1) to be laid before each House of the
Parliament within 15 sitting days of that House after that direction was given.
96‑12
Determinations by Minister to be laid before each House of the Parliament
The Minister must cause a copy of any
determination made by the Minister under Chapter 3 to be laid before each
House of the Parliament within 15 sitting days of that House after that
determination was made.
96‑13
Regulations
The Governor‑General may make
regulations prescribing matters:
(a) required or permitted by this Act
to be prescribed; or
(b) necessary or convenient to be
prescribed for carrying out or giving effect to this Act.