An Act relating to aged care, and for other purposes
Chapter 1—Introduction
Division 1—Preliminary matters
1‑1 Short title
This Act may be cited as the Aged Care Act 1997.
1‑2 Commencement
(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:
Terms that are not identified |
Item | This term: | is defined in: |
1 | approved provider | Schedule 1 |
2 | care | Schedule 1 |
3 | home care | section 45‑3 |
4 | home care service | Schedule 1 |
5 | flexible care | section 49‑3 |
6 | flexible care service | Schedule 1 |
7 | provide | section 96‑4 |
8 | residential care | section 41‑3 |
9 | residential care service | Schedule 1 |
10 | Secretary | Schedule 1 |
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
(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.
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, except the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands.
(3) Despite subsection (1), Parts 2.2, 2.5 and 3.1 apply in relation to the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands as if those Territories were part of Western Australia and were not Territories.
Note: This has the effect that references in Parts 2.2, 2.5 and 3.1 to a Territory do not apply to the Territory of Christmas Island or the Territory of Cocos (Keeling) Islands, and that references in those Parts to a State will be relevant to Western Australia as if it included those Territories.
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.
Which approvals etc. may be relevant |
| Approvals or decisions | Kind of payment |
| | Residential care subsidy | Home care subsidy | Flexible care subsidy |
1 | Approval of providers | Yes | Yes | Yes |
2 | Allocation of places | Yes | Yes | Yes |
3 | Approval of care recipients | Yes | Yes | Yes |
4 | Classification of care recipients | Yes | No | Yes |
5 | Decisions relating to extra service places | Yes | No | No |
6 | Certification of residential care services | Yes | No | No |
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 grants is dealt with in Chapter 5.
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 Pre‑conditions to receiving subsidy
Payments of subsidy cannot be made under Chapter 3 to a person for providing *aged care unless:
(a) the person is approved under this Part as a provider of aged care; and
(b) the approval is in force in respect of the type of aged care provided, at the time it is provided; and
(c) the approval is in force in respect of the *aged care service through which the aged care is provided, at the time it is provided.
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:
(a) either:
(i) all types of *aged care; or
(ii) if the approval is specified to be in respect of one or more types of aged care—that type or those types of aged care; and
(b) each *aged care service in respect of which:
(i) an allocation of a *place to the person in respect of the aged care service is in effect (whether because the place was originally allocated to the person or because of a transfer); or
(ii) a *provisional allocation of a place to the person in respect of the aged care service is in force (whether because the place was originally allocated to the person but the allocation has not yet taken effect or because of a transfer).
(3) The approval in respect of an *aged care service begins to be in force on the first day on which:
(a) an allocation of a *place to the person in respect of the aged care service takes effect; or
(b) a *provisional allocation of a place to the person in respect of the aged care service begins to be in force; or
(c) a transfer day occurs for the transfer under Division 16 of a place to the person for the provision of *aged care through the aged care service.
(4) However, the approval does not come into force in respect of any *aged care service through which the person provides *aged care unless one of those events occurs in respect of one of the aged care services through which the person provides aged care within a period of 2 years, or such longer period as is specified in the Approved Provider Principles, beginning on the day on which the instrument of approval is made.
(5) The approval is not subject to any limitation relating to when it ceases to be in force, unless the instrument of approval specifies otherwise.
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
(ga) if the applicant has relevant key personnel in common with a person who is or has been an approved provider:
(i) the person’s record of meeting relevant standards for the provision of aged care (see Part 4.1); and
(ii) the person’s record of commitment to the rights of the recipients of aged care; and
(iii) the person’s record of financial management, and the methods that the person uses or used in order to ensure sound financial management; and
(iv) the person’s record of financial management relating to the provision of aged care; and
(v) the conduct of the person as a provider of aged care, 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
(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.
(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), (g) and (ga) 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.
(6A) For the purposes of paragraph (1)(ga), the applicant has relevant key personnel in common with a person who is or has been an approved provider if:
(a) at the time the person provided *aged care as an approved provider, another person was one of its *key personnel; and
(b) that other person is one of the key personnel of the applicant.
(7) Paragraph 8‑1(1)(d) and sections 10A‑2, 10A‑3 and 63‑1A do not limit this section.
8‑3A Meaning of key personnel
(1) For the purposes of this Act, each of the following is one of the key personnel of an entity at a particular time:
(a) a member of the group of persons who is responsible for the executive decisions of the entity at that time;
(b) any other person who has authority or responsibility for (or significant influence over) planning, directing or controlling the activities of the entity at that time;
(c) if, at that time, the entity conducts an *aged care service:
(i) any person who is responsible for the nursing services provided by the service; and
(ii) any person who is responsible for the day‑to‑day operations of the service;
whether or not the person is employed by the entity;
(d) if, at that time, the entity proposes to conduct an aged care service:
(i) any person who is likely to be responsible for the nursing services to be provided by the service; and
(ii) any person who is likely to be responsible for the day‑to‑day operations of the service;
whether or not the person is employed by the entity.
(2) Without limiting paragraph (1)(a), a reference in that paragraph to a person who is responsible for the executive decisions of an entity includes:
(a) where the entity is a body corporate that is incorporated, or taken to be incorporated, under the Corporations Act 2001—a director of the body corporate for the purposes of that Act; and
(b) in any other case—a member of the entity’s governing body.
(3) A person referred to in subparagraph (1)(c)(i) or (1)(d)(i) must hold a recognised qualification in nursing.
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) the types of *aged care in respect of which the approval is given;
(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) a statement that the approval is in respect of those *aged care services in respect of which:
(i) an allocation of a *place to the person in respect of the aged care service is in effect (whether because the place was originally allocated to the person or because of a transfer); or
(ii) a *provisional allocation of a place to the person in respect of the aged care service is in force (whether because the place was originally allocated to the person but the allocation has not yet taken effect or because of a transfer);
(da) a statement that the approval will not come into force unless one of the following occurs within a period of 2 years, or such longer period as is specified in the Approved Provider Principles, beginning on the day on which the instrument of approval is made:
(i) an allocation of a place to the person in respect of an aged care service takes effect; or
(ii) a provisional allocation of a place to the person in respect of an aged care service begins to be in force; or
(iii) a transfer day occurs for the transfer under Division 16 of a place to the person for the provision of aged care through an aged care service;
(db) if the approval specifies that it will cease to be in force on a particular day—the day on which it will cease to be in force;
(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 section 10‑3 and Part 4.4).
(3) If the applicant is approved as a provider of *aged care, the Secretary may, by written notice given to the applicant at the time the applicant is notified of the approval under subsection (1), specify any circumstance that the Secretary is satisfied materially affects the applicant’s suitability to provide aged care.
(4) The notice may specify the steps to be taken by the applicant to notify the Secretary and obtain his or her agreement before there is any change to that circumstance.
(5) A notice given to the applicant under subsection (3) is not a legislative instrument.
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
(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 8‑3A(1)(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) The notification must be in the form approved by the Secretary.
(3) Despite paragraph (1)(b), an approved provider is not obliged to notify the Secretary of a change to the approved provider’s *key personnel if:
(a) the approved provider is a State or Territory; and
(b) the change relates to:
(i) a member of a group of persons who is responsible for the executive decisions of the approved provider; or
(ii) any other person who has authority or responsibility for (or significant influence over) planning, directing or controlling the activities of the approved provider.
(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.
(3B) If:
(a) a person has been approved under section 8‑1 as a provider of *aged care; and
(b) the approval has not yet begun to be in force because:
(i) no allocation of a *place to the person in respect of the *aged care service or services through which it provides aged care is in effect; and
(ii) no *provisional allocation of a place to the person in respect of the aged care service or services through which it provides, or proposes to provide, aged care is in force; and
(iii) the transfer day has not occurred for any transfer under Division 16 of a place to the person for the provision of aged care through the aged care service or services through which it provides, or proposes to provide, aged care;
this section has effect in respect of the person in the same way as it has effect in respect of an approved provider.
(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.
Providers registered under the Australian Charities and Not‑for‑profits Commission Act 2012
(6) Despite paragraph (1)(b), an approved provider is not obliged to notify the Secretary of a change to the approved provider’s *key personnel if:
(a) the approved provider is registered under the Australian Charities and Not‑for‑profits Commission Act 2012; and
(b) the approved provider is required under that Act to notify the Commissioner of the ACNC of the change.
(7) An approved provider commits an offence if:
(a) the approved provider is a *corporation; and
(b) the approved provider is registered under the Australian Charities and Not‑for‑profits Commission Act 2012; and
(c) there is a change of any of the approved provider’s *key personnel; and
(d) the approved provider is required under that Act to notify the Commissioner of the ACNC of the change; and
(e) the approved provider fails to notify the Commissioner of the change within the period required under that Act.
Penalty: 30 penalty units.
(8) An offence against subsection (7) is an offence of strict liability.
Note: 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.
(2A) If:
(a) a person has been approved under section 8‑1 as a provider of *aged care; and
(b) the approval has not yet begun to be in force because:
(i) no allocation of a *place to the person in respect of the *aged care service or services through which it provides aged care is in effect; and
(ii) no *provisional allocation of a place to the person in respect of the aged care service or services through which it provides, or proposes to provide, aged care is in force; and
(iii) the transfer day has not occurred for any transfer under Division 16 of a place to the person for the provision of aged care through the aged care service or services through which it provides, or proposes to provide, aged care;
this section has effect in respect of the person in the same way as it has effect in respect of an approved provider.
(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 a person who is or has been an approved provider to give to the Secretary specified information relating to any of the following:
(a) *accommodation bonds charged by the person;
(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 person 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 person;
(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 person would have had to refund at a specified earlier time if certain assumptions specified in the request were made;
(g) *unregulated lump sums paid to the person;
(h) the amount of one or more *unregulated lump sum balances at a particular time.
The request must be in writing.
(2) The person 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) A person commits an offence if:
(a) the Secretary requests the person to give information under subsection (1); and
(b) the person is required under subsection (2) to comply with the request within a period; and
(c) the person fails to comply with the request within the period; and
(d) the person is a *corporation.
Penalty: 30 penalty units.
(4) The request must contain a statement setting out the effect of subsections (2) and (3).
9‑3B Obligation to give information about ability to refund accommodation bond balances
(1) This section applies if the Secretary believes, on reasonable grounds, that an approved provider:
(a) has not refunded, or is unable or unlikely to be able to refund, an *accommodation bond balance as required by section 57‑21; or
(b) is experiencing financial difficulties; or
(c) has used an *accommodation bond for a use that is not *permitted.
(2) The Secretary may request the approved provider to give the Secretary information specified in the request relating to any of the following:
(a) the approved provider’s suitability to be a provider of *aged care (see section 8‑3);
(b) the approved provider’s financial situation;
(c) the amount of one or more *accommodation bond balances at a particular time;
(d) how *accommodation bonds have been used by the approved provider;
(e) the approved provider’s policies and procedures relating to managing, monitoring and controlling the use of accommodation bonds;
(f) the roles and responsibilities of *key personnel in relation to managing, monitoring and controlling the use of accommodation bonds.
The request must be in writing.
(3) The Secretary may request the approved provider to give the specified information on a periodic basis.
(4) The approved provider must comply with the request:
(a) within 28 days after the request was made, or within such shorter period as is specified in the request; or
(b) if the information is to be given on a periodic basis—before the time or times worked out in accordance with 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.
(5) An approved provider commits an offence if:
(a) the Secretary requests the approved provider to give information under subsection (2); and
(b) the approved provider is required under subsection (4) to comply with the request within a period or before a particular time; and
(c) the approved provider fails to comply with the request within the period or before the time; and
(d) the approved provider is a *corporation.
Penalty: 30 penalty units.
(6) The request must contain a statement setting out the effect of subsections (4) and (5).
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
(c) the period (if any) to which the approval is limited under subsection 8‑1(5) 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 no allocated places
The approval of a person as a provider of *aged care that is in force lapses if:
(a) no allocation of a *place to the provider in respect of any *aged care service through which it provides aged care is in effect; and
(b) no *provisional allocation of a place to the provider in respect of any aged care service through which it provides, or proposes to provide, aged care is in force; and
(c) the transfer day has not occurred for any transfer under Division 16 of a place to the person for the provision of aged care through the aged care service or services through which it provides, or proposes to provide, aged care.
10‑3 Revocation of approval
(1) The Secretary must revoke an approval of a person as a provider of *aged care under section 8‑1 if the Secretary is satisfied that:
(a) the person has ceased to be a *corporation; or
(b) the person has ceased to be suitable for approval (see section 8‑3); or
(c) the person’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 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 to make submissions, in writing, to the Secretary within 28 days after receiving the notice; and
(c) inform the person 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 person, in writing, of the decision.
(6) The notice must be given to the person 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 person 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 person 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 person 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.
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 culturally and linguistically diverse backgrounds;
(c) people who live in rural or remote areas;
(d) people who are financially or socially disadvantaged;
(e) veterans;
(f) people who are homeless or at risk of becoming homeless;
(g) care‑leavers;
(ga) parents separated from their children by forced adoption or removal;
(h) lesbian, gay, bisexual, transgender and intersex people;
(i) 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 on the Department’s website.
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) *supported residents, *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.
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.
(1A) If the Secretary determines the *regions within Western Australia, he or she must determine that one of those regions consists of the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands.
(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 on the Department’s website.
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
(ca) it is accompanied by the statements and other information required by that form; 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) *supported residents, *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.
(2) The *places may only be allocated to a person who:
(a) is approved under section 8‑1 to provide the *aged care in respect of which the places are allocated; or
(b) will be approved to provide aged care in respect of which the places are allocated once the allocation takes effect or, in the case of a *provisional allocation, begins to be in force.
(2A) The *places must not be allocated to the person if a sanction imposed under Part 4.4 is in force prohibiting allocation of places to the person.
(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 a person:
(a) the person 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
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, the matters set out in the Allocation Principles.
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 person who is allocated *places must have made a valid application in respect of the allocation if:
(a) each of the persons 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 person 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 person 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 a person subject to such conditions as the Secretary specifies in writing.
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.
(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.
(5) If:
(a) a condition imposed on an allocation of *places to a person requires:
(i) the refund by the person to a care recipient, with the consent of the care recipient, of a *pre‑allocation lump sum or part of such a sum; or
(ii) the forgiveness by the person of an obligation (including a contingent obligation) by a care recipient, with the consent of the care recipient, in relation to a pre‑allocation lump sum or part of such a sum; and
(b) the care recipient continues, on the day on which the allocation was made, to be provided with *aged care through the residential care service in relation to entry to which the pre‑allocation lump sum was paid or became payable;
then the care recipient and the pre‑allocation lump sum holder have the same rights, duties and obligations in relation to the charging of an *accommodation bond or an *accommodation charge as the care recipient and the pre‑allocation lump sum holder would have under this Act if:
(c) the care recipient had *entered the residential care service or flexible care service on the day on which the allocation was made; and
(d) the pre‑allocation lump sum were an accommodation bond paid in respect of aged care provided through another residential care service or flexible care service.
(6) A pre‑allocation lump sum is an amount paid or payable to a person (the pre‑allocation lump sum holder) by a care recipient in the following circumstances:
(a) the amount does not accrue daily;
(b) the amount is for the care recipient’s *entry to a residential care service or flexible care service conducted by the pre‑allocation lump sum holder;
(c) the amount is not an *accommodation bond, an *entry contribution or an *unregulated lump sum.
14‑6 Conditions relating to allocations generally
(1) An allocation of *places to a person 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 a person 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 a person takes effect when the Secretary determines that the person 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 person 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 person accordingly.
Note: Rejections of applications are reviewable under Part 6.1.
(4) Rejection of the application does not prevent the person 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 person that variation or revocation is being considered. The notice:
(a) must be in writing; and
(b) must invite the person 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 person 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:
(a) any submissions made within that period; and
(b) any matters specified in the Allocation Principles.
(5) The Secretary must notify, in writing, the person of the decision.
(6) The notice must be given to the person 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 person receives a notice under subsection (5).
15‑5 Variation of provisional allocations on application
(1) If the allocation is a *provisional allocation, the person 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 person 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 person making a fresh application at a later time during the *provisional allocation period.
(7) In deciding whether to vary the *provisional allocation, the Secretary must have regard to any matters specified in the Allocation Principles.
15‑6 Surrendering provisional allocations
If the allocation is a *provisional allocation, the person 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 person applies to the Secretary, in accordance with subsection (4), for an extension; and
(b) the person 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 person 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.
Division 16—How are allocated places transferred from one person to another?
Subdivision 16‑A—Transfer of places other than provisionally allocated places
16‑1A Application of this Subdivision
This Subdivision applies to the transfer of an allocated *place, other than a *provisionally allocated place.
16‑1 Transfer of places
(1) A transfer of a *place to which this Subdivision applies 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 to which this Subdivision applies if, and only if:
(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 in respect of the *aged care service to which the places will relate after transfer; 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 Subdivision; 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 to the transfer of which this Subdivision applies 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;
(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 has been approved under section 8‑1 as a provider of *aged care (even if the approval has not yet begun to be in force)—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 has not been approved under section 8‑1 as a provider of aged care—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. The notice is not a legislative instrument.
(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
(1) 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;
(ea) if the transferee 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;
(eb) if the transferee has relevant *key personnel in common with a person who is or has been an approved provider—the conduct of that person as a provider of aged care, 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;
(f) any other matters set out in the Allocation Principles.
(2) The reference in paragraphs (1)(ea) and (eb) to aged care includes a reference to any care for the aged, whether provided before or after the commencement of this subsection, in respect of which any payment was or is payable under a law of the Commonwealth.
(3) For the purposes of paragraph (1)(eb), the transferee has relevant key personnel in common with a person who is or has been an approved provider if:
(a) at the time the person provided *aged care as an approved provider, another person was one of its *key personnel; and
(b) that other person is one of the key personnel of the transferee.
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) *supported residents, *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 to which this Subdivision applies 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.
(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 *home care agreement entered into with a care recipient provided with care in respect of the place.
Subdivision 16‑B—Transfer of provisionally allocated places
16‑12 Application of this Subdivision
This Subdivision applies to the transfer of a *provisionally allocated *place.
16‑13 Transfer of provisionally allocated places
(1) A transfer of a *provisionally allocated *place from one person to another is of no effect unless it is approved by the Secretary.
(2) The Secretary must not approve the transfer of a *provisionally allocated *place unless:
(a) an application for the transfer is made under section 16‑14; and
(b) the Secretary is satisfied that, because of the needs of the aged care community in the region for which the places were provisionally allocated, there are exceptional circumstances justifying the transfer; and
(c) the Secretary is satisfied, having regard to the matters mentioned in section 16‑16, that the needs of the aged care community in the region for which the places were provisionally allocated are best met by the transfer; and
(d) the Secretary is satisfied that the transferee will be an approved provider when the transfer is completed in respect of the *aged care service to which the places will relate after transfer; and
(e) the location in respect of which the place is provisionally allocated will not change as a result of the transfer; and
(f) the provisional allocation is in respect of residential care subsidy.
(3) If the transfer is approved:
(a) the transferee is taken, from the transfer day (see section 16‑19), to be the person to whom the *place is *provisionally allocated under this Subdivision; 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.
16‑14 Applications for transfer of provisionally allocated places
(1) A person to whom a *place has been *provisionally 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 *provisional allocation is subject under section 14‑5, for which approval is being sought as part of the transfer.
(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 transferee’s name;
(f) if, after the transfer, the places would relate to a different aged care service—that aged care service;
(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) places in respect of which one or more *residential care grants 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) evidence of the progress made by the transferor towards being in a position to provide care in respect of the places;
(j) the day on which, if the transfer were to take place, the transferee would be in a position to provide care in respect of the places;
(k) such other information as is specified in the Allocation Principles.
Note: The Secretary must not approve the transfer if the location in respect of which the place is provisionally allocated will change as a result of the transfer (see paragraph 16‑13(2)(e)).
(4) The application must be made:
(a) if the transferee has been approved under section 8‑1 as a provider of *aged care (even if the approval has not yet begun to be in force)—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 has not been approved under section 8‑1 as a provider of aged care—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. The notice is not a legislative instrument.
(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.
16‑15 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).
16‑16 Consideration of applications
(1) In considering whether the needs of the aged care community in the region for which the *places were allocated are best met by the transfer, the Secretary must consider each of the following matters:
(a) whether the transfer would meet the objectives of the planning process set out in section 12‑2;
(b) whether the transferor has made such significant progress towards being in a position to provide care, in respect of the places, that it would be contrary to the interests of the aged care community in the region not to permit the transfer;
(c) whether the transferee is likely to be in a position to provide care in respect of the places within a short time after the transfer;
(d) the standard of care, accommodation and other services proposed to be provided by the *aged care service in which the places would be included if the transfer were to occur;
(e) the suitability of the transferee to provide the *aged care to which the places to be transferred relate;
(f) the suitability of the premises proposed to be used to provide care through the aged care service in which the places would be included if the transfer were to occur;
(g) if the places were allocated to meet the needs of *people with special needs—whether those needs would be met once the allocation of the places to be transferred took effect;
(h) if the places were allocated to provide a particular type of aged care—whether that type of aged care would be provided once the allocation of the places to be transferred took effect;
(i) if the transferee 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;
(j) if the transferee has relevant *key personnel in common with a person who is or has been an approved provider—the conduct of that person as a provider of aged care, 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;
(k) the financial viability, if the transfer were to occur, of the transferee and the aged care service in which the places would be included if the transfer were to occur;
(l) the measures to be adopted by the transferee to protect the rights of care recipients;
(m) any matters set out in the Allocation Principles.
Note: The Secretary must not approve the transfer if the location in respect of which the place is provisionally allocated will change as a result of the transfer (see paragraph 16‑13(2)(e)).
(2) The reference in paragraphs (1)(i) and (j) 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) For the purposes of paragraph (1)(j), the transferee has relevant key personnel in common with a person who is or has been an approved provider if:
(a) at the time the person provided *aged care, another person was one of its *key personnel; and
(b) that other person is one of the key personnel of the transferee.
16‑17 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 16‑14(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.
16‑18 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—that aged care service;
(e) the proportion of care, in respect of the places to be transferred, to be provided once the allocation takes effect to:
(i) *people with special needs; or
(ii) *supported residents, *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.
Note: The Secretary must not approve the transfer if the location in respect of which the place is provisionally allocated will change as a result of the transfer (see paragraph 16‑13(2)(e)).
16‑19 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 16‑14(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.
16‑20 Transfer of places to service with extra service status
(1) The Secretary must not approve the transfer of a *provisionally allocated *place from one person to another if:
(a) the transfer would result in residential care in respect of the place being provided by a different residential care service; 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.
Note: The Secretary must not approve the transfer if the location in respect of which the place is provisionally allocated will change as a result of the transfer (see paragraph 16‑13(2)(e)).
(2) The Secretary may approve the transfer if satisfied that the *places other than the transferred places could, after the allocation has taken effect, 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: The places would have *extra service status because of the operation of section 31‑1. (Section 31‑3 would not apply.)
16‑21 Information to be given to transferee
The Secretary may give to the transferee information specified in the Allocation Principles at such times as are specified in those Principles.
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.
(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 any 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;
(c) the person to whom the place is allocated ceases to be an approved provider.
(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;
(f) the approved provider’s proposals for ensuring that the provider meets the provider’s responsibilities for any:
(i) *accommodation bond balance; or
(ii) *entry contribution balance;
held by the provider 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 home care subsidy—provided home 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 home care before an approved provider can be paid *residential care subsidy or *home 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 home care to a person unless the person is approved under this Part as a recipient of home 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 home care, a person who is approved under this Part as a recipient of residential care or home 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) home 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 home care
A person is eligible to receive home 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 home 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) home 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) The Secretary may limit the approval to one or more levels of care.
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) the person’s eligibility to receive a specified level or levels of 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) whether the approval is limited to a level or levels 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, home 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 Circumstances in which approval lapses
Care not received within a certain time
(1) Except in the circumstances mentioned in subsection (1A), 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.
(1A) A person’s approval does not lapse under subsection (1) if:
(a) the care in respect of which he or she is approved is limited to residential care provided as *respite care; or
(b) if the approval is for residential care other than residential care provided as respite care—the care in respect of which he or she is approved is not limited to a *low level of residential care; or
(c) if the care in respect of which he or she is approved is flexible care—the care is specified for the purposes of this paragraph in the Approval of Care Recipients Principles.
(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) home care;
(d) flexible care.
Person ceases to be provided with care in respect of which approved
(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 home 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 Expiry and renewal of classifications
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). The Classification Principles may specify methods or procedures that the Secretary must follow in determining the appropriate classification level for the care recipient.
(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
(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.
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 a person has been authorised under section 25‑5 to make those appraisals—that person.
However, this subsection does not apply if the care recipient is being provided with care as *respite care.
(2) The appraisal:
(a) must not be made during the period of 7 days starting on the day on which the approved provider began providing care to the care recipient; and
(b) must not be given to the Secretary during the period of 28 days starting on the day on which the approved provider began providing care to the care recipient.
(2A) However, if the Classification Principles specify:
(a) circumstances in which subsection (2) does not apply in relation to an appraisal; and
(b) an alternative period during which the appraisal may be made in those circumstances;
the times when the appraisal may be made and given to the Secretary are to be determined in accordance with the Classification Principles.
(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.
(3A) The Secretary may approve forms which must be used in the course of making an appraisal.
(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 and reappraisals
(1) The Secretary may suspend an approved provider from making appraisals under section 25‑3 and reappraisals under section 27‑4 at one or more *aged care services operated by the approved provider 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 an appraisal or reappraisal connected with a classification reviewed under subsection 29‑1(3); and
(b) the classification was changed under section 29‑1; and
(c) the Secretary is satisfied that, after the classification was changed, the approved provider gave false, misleading or inaccurate information in another appraisal or reappraisal.
Note: Suspensions of approved providers from making assessments are reviewable under Part 6.1.
(3) Before deciding to suspend an approved provider from making appraisals and reappraisals, 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:
(a) not to suspend the approved provider from making appraisals and reappraisals; or
(b) to suspend the approved provider from making appraisals and reappraisals for the period specified in the notice.
(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.
(6A) The Secretary may specify in the notice that the suspension will not take effect if, within the period specified in the notice, the approved provider enters into an agreement with the Secretary (see section 25‑4A).
(6B) If the Secretary does so:
(a) the suspension does not take effect if the approved provider enters into the agreement within the period specified in the notice (unless the Secretary later decides under subsection 25‑4B(1) that it is to take effect); and
(b) the suspension takes effect on the day after the last day of the period specified in the notice, if the approved provider does not enter into the agreement within that period.
(7) If the Secretary does not do so, the 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.
25‑4A Stay of suspension agreements
(1) An agreement entered into for the purposes of subsection 25‑4(6A) may require the approved provider to do either or both of the following:
(a) provide, at its expense, such training as is specified in the agreement for its officers, employees and agents within the period specified in the agreement;
(b) appoint an adviser, approved by the Secretary, to assist the approved provider to conduct, in a proper manner, appraisals and reappraisals of the care needs of care recipients.
(2) If the agreement requires the approved provider to appoint an adviser, the approved provider must, within the period specified in the agreement:
(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) The approved provider must appoint the adviser within 3 days after the approved provider is informed of the Secretary’s approval.
25‑4B Stayed suspension may take effect
(1) The Secretary may decide that the suspension is to take effect, if the Secretary is satisfied that:
(a) if the agreement requires the approved provider to appoint an adviser—the approved provider has not complied with subsection 25‑4A(2) or (3); or
(b) the approved provider has not complied with the agreement; or
(c) despite having complied with the agreement, the approved provider has continued not to conduct in a proper manner appraisals and reappraisals of the care needs of care recipients provided with care through the aged care service.
(2) If the Secretary decides that the suspension is to take effect, the Secretary must notify the approved provider, in writing, of the decision.
(3) The suspension takes effect 7 days after the day on which that notice is given and has effect from that day for the whole of the suspension period specified in the notice under subsection 25‑4(5).
(4) The Secretary must not give an approved provider a notice under subsection (2) after the last day on which the suspension would have had effect had the approved provider not entered into the agreement.
25‑4C Applications for lifting of suspension
(1) The Secretary may lift the suspension of an approved provider from making appraisals and reappraisals if the approved provider applies, in writing, to the Secretary to do so.
(2) Subsection (1) applies whether or not the suspension has taken effect.
(3) The application must:
(a) be in a form approved by the Secretary; and
(b) meet any requirements specified in the Classification Principles.
(4) In deciding whether it is appropriate for the suspension to be lifted, the Secretary must have regard to any matters specified in the Classification Principles.
25‑4D 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 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. 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).
25‑4E Notification of Secretary’s decision
(1) The Secretary must notify the approved provider, in writing, of the Secretary’s decision whether to lift the suspension. The notice must be given:
(a) within 28 days after receiving the application; or
(b) if the Secretary has requested further information under section 25‑4D—within 28 days after receiving the information.
(2) If the Secretary decides that the suspension is to be lifted, the notice must:
(a) inform the approved provider when the suspension will cease to apply; and
(b) set out any other matters specified in the Classification Principles.
25‑5 Authorisation of another person to make appraisals or reappraisals
(1) If the Secretary suspends an approved provider from making appraisals and reappraisals, the Secretary may, in writing, authorise another person to make appraisals or reappraisals 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 or reappraisals 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 the approved provider began providing care to the care recipient, if the appraisal by that approved provider 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 Appraisals 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—Expiry and renewal of classifications
27‑1 When do classifications cease to have effect?
(1) A classification that has an *expiry date under section 27‑2 ceases to have effect on that date, unless it is renewed under section 27‑6.
(2) A classification that does not have an *expiry date under section 27‑2 continues to have effect but may be renewed under section 27‑6 if a reappraisal is made under section 27‑4.
27‑2 Expiry dates and reappraisal periods
(1) The following table sets out:
(a) when a classification has an *expiry date; and
(b) when that expiry date occurs; and
(c) for the purposes of renewing the classification, the reappraisal period for the expiry date:
Expiry dates and reappraisal periods |
Item | If this circumstance applies in relation to the care recipient ... | the expiry date for the care recipient’s classification is ... | and the reappraisal period for that *expiry date is ... |
1 | The care recipient: (a) ceases being provided with residential care or flexible care through a residential care service or a flexible care service (other than because the recipient is on *leave); and (b) has not *entered an *aged care service that is a residential care service or a flexible care service within 28 days after ceasing to be provided with that care. | The day on which the care recipient ceased being provided with that care. | No reappraisal period. |
2 | The care recipient has taken *extended hospital leave. | The day on which that *leave ends. | The period: (a) beginning 7 days after the day on which the care recipient next began receiving residential care from an approved provider; and (b) ending 2 months after that day. |
3 | Both: (a) an approved provider began providing the care recipient with residential care (other than residential care provided as *respite care) on the day after the end of an in‑patient hospital episode (see subsection (7)); and (b) the care recipient was not on *leave at the time of that attendance. | The day that occurs 6 months after the day on which the approved provider began providing care to the care recipient. | The period: (a) beginning one month before the *expiry date for the classification; and (b) ending one month after that date. |
4 | The care recipient has taken *extended hospital leave. | The day that occurs 6 months after the first day on which an approved provider began providing care to the care recipient after the end of that *leave. | The period: (a) beginning one month before the *expiry date for the classification; and (b) ending one month after that date. |
5 | The care recipient’s classification has been renewed under section 27‑5 because the care recipient’s care needs have changed significantly. | The day that occurs 6 months after the day on which the renewal took effect. | The period: (a) beginning one month before the *expiry date for the classification; and (b) ending one month after that date. |
6 | The Secretary has given the approved provider a notice under section 27‑3 requiring a reappraisal of the level of care needed by the care recipient to be made. | Either: (a) the day after the last day of the period specified in the notice within which the reappraisal is to be made; or (b) if the reappraisal is received by the Secretary before the end of that period—the date of receipt. | The period specified in the notice within which the reappraisal is to be made. |
7 | The care recipient is being provided with residential care as *respite care. | The day on which the period during which the care recipient was provided with the respite care ends. | No reappraisal period. |
Note: If a classification has an expiry date but no reappraisal period, the classification cannot be renewed (see subsection 27‑6(1)).
Reappraisal period deferred if care recipient on leave
(2) If:
(a) the *expiry date for the classification occurs:
(i) while the care recipient is on *leave (other than *extended hospital leave) from a residential care service; or
(ii) within one month after the residential care service began providing residential care to the care recipient after that leave ended; and
(b) the classification does not have that expiry date because of item 6 of the table in subsection (1);
then, despite subsection (1), the reappraisal period for the classification is the period of 2 months beginning on the day on which the residential care service began providing residential care to the care recipient after that leave ended.
If more than one expiry date applies
(3) If:
(a) a classification has an *expiry date (the first expiry date) because a particular circumstance specified in the table in subsection (1) applies in relation to the care recipient; and
(b) another circumstance specified in that table starts to apply in relation to the care recipient before the first expiry date;
then, subject to subsection (4):
(c) the first expiry date ceases to apply in relation to the classification; and
(d) the expiry date for the other circumstance applies in relation to the classification.
(4) If the other circumstance is that specified in item 6 of the table:
(a) the first expiry date continues to apply in relation to the classification, unless the relevant notice under section 27‑3 is given before the start of the reappraisal period for the first expiry date; and
(b) the *expiry date for the circumstance specified in item 6 of the table does not apply.
If reappraisal made at initiative of approved provider before expiry date
(5) If:
(a) a classification has an *expiry date because a particular circumstance specified in the table in subsection (1) applies in relation to the care recipient; and
(b) before the start of the reappraisal period for that expiry date, the Secretary receives a reappraisal of the level of care needed by the care recipient made under section 27‑4;
that expiry date ceases to apply in relation to the classification.
Classification Principles may specify different expiry date or reappraisal period
(6) The Classification Principles may specify that:
(a) a different *expiry date applies in relation to a classification to that provided for under this section; or
(b) a different reappraisal period applies in respect of an expiry date to that provided for under this section.
Meaning of in‑patient hospital episode
(7) In this section, in‑patient hospital episode, in relation to a care recipient, means a continuous period during which the care recipient:
(a) is an in‑patient of a hospital; and
(b) is provided with medical or related care or services.
27‑3 Reappraisal required by Secretary
(1) If:
(a) the Secretary is satisfied that an approved provider, or a person acting on an approved provider’s behalf, gave false, misleading or inaccurate information in an appraisal or reappraisal connected with a classification reviewed under subsection 29‑1(3); and
(b) the classification was changed under section 29‑1; and
(c) the Secretary is satisfied that, after the classification was changed, the approved provider gave false, misleading or inaccurate information in another appraisal or reappraisal;
the Secretary may give the approved provider a written notice requiring a reappraisal to be made of the level of care needed by one or more care recipients to whom the approved provider provides care.
(3) The notice must specify a period for each care recipient within which the reappraisal of the level of care needed by the care recipient is to be made.
(4) The Secretary may, at his or her own initiative or on application from the approved provider, give the approved provider a notice varying or revoking a notice under subsection (1). The Secretary may vary a notice more than once.
(5) The Secretary may, in writing, authorise a person or persons (other than the approved provider) to make the reappraisals required by the notice under subsection (1).
(6) The Secretary must inform the approved provider, in writing, of the name of a person who has been authorised under subsection (5).
27‑4 Reappraisal at initiative of approved provider
(1) A reappraisal of the level of care needed by a care recipient may be made at the initiative of an approved provider in accordance with this section.
Reappraisal after first year of effect of classification or renewal
(2) A reappraisal of the level of care needed by a care recipient may be made if:
(a) the classification of the care recipient has been in effect for more than 12 months; or
(b) if the classification of the care recipient has been renewed—the most recent renewal of the classification has been in effect for more than 12 months.
Reappraisal if needs of care recipient have changed significantly
(3) A reappraisal of the level of care needed by a care recipient may be made if the care needs of the care recipient change significantly.
(4) The Classification Principles may specify the circumstances in which the care needs of a care recipient are taken to change significantly.
Reappraisal if care recipient enters another aged care service
(5) If a care recipient *enters an *aged care service (the later service) that is a residential care service or a flexible care service within 28 days after another residential care service or flexible care service ceased to provide residential care or flexible care to the care recipient (other than because the care recipient was on *leave), a reappraisal of the level of care needed by the care recipient may be made during the period:
(a) beginning 7 days after the day on which the care recipient entered the later service; and
(b) ending 2 months after the day on which the care recipient entered the later service.
Reappraisal if care recipient classified at lowest applicable classification level
(6) A reappraisal of the level of care needed by a care recipient may be made if the care recipient is classified at the *lowest applicable classification level.
(7) Subsections (2), (3) and (6) do not apply if the care recipient is classified at the *lowest applicable classification level because of the operation of subsection 25‑1(4).
27‑5 Requirements for reappraisals
(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 a person has been authorised under subsection 25‑5(1) or 27‑3(5) to make the reappraisal—that person.
(3) The reappraisal must be in a form approved by the Secretary.
(4) The Secretary may approve forms which must be used in the course of making a reappraisal.
27‑6 Renewal of classifications
(1) The Secretary may renew the classification of a care recipient (other than a classification to which item 1 or 7 of the table in subsection 27‑2(1) applies) if:
(a) the Secretary receives a reappraisal of the level of care needed by the care recipient; and
(b) either:
(i) the reappraisal is made in respect of an expiry date for the classification; or
(ii) the reappraisal is made under section 27‑4.
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. The Classification Principles may specify methods or procedures that the Secretary must follow in determining the appropriate classification level for the care recipient.
(3) In renewing the classification, the Secretary must take into account:
(a) the reappraisal made in respect of the care recipient; and
(b) any other matters specified in the Classification Principles.
27‑7 Date of effect of renewal of classification that has an expiry date—reappraisal received during reappraisal period
(1) This section applies if:
(a) a reappraisal is made in respect of an *expiry date for a care recipient’s classification; and
(b) the reappraisal is received by the Secretary during the reappraisal period for the expiry date (see subsection 27‑2(1)).
(2) The renewal of the classification takes effect from the *expiry date for the classification.
(3) Despite subsection (2), if the *expiry date for the classification occurs:
(a) while the care recipient is on *leave from a residential care service; or
(b) within one month after a residential care service began providing residential care to the care recipient after that leave ended;
the renewal of the classification takes effect from the day on which the care recipient next began receiving residential care after that leave ended.
(4) Despite subsections (2) and (3), if the Secretary has given a notice under section 27‑3 requiring the reappraisal to be made, the renewal of the classification takes effect from the day on which the reappraisal is received by the Secretary.
27‑8 Date of effect of renewal of classification that has an expiry date—reappraisal received after reappraisal period
(1) If:
(a) a reappraisal is made in respect of an *expiry date for a care recipient’s classification; and
(b) the reappraisal is received by the Secretary after the end of the reappraisal period for that expiry date (see subsection 27‑2(1));
the renewal of the classification takes effect from the day on which 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 *expiry date for the classification.
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 after 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.
(5) Subsections (2), (3) and (4) do not apply if the Secretary has given a notice under section 27‑3 requiring the reappraisal to be made.
27‑9 Date of effect of renewal—reappraisals at initiative of approved provider
If:
(a) a reappraisal of the level of care needed by the care recipient is made under section 27‑4; and
(b) if there is an *expiry date for the care recipient’s classification—the reappraisal is received by the Secretary before the start of the reappraisal period in respect of that expiry date;
the renewal of the classification takes effect:
(c) if the reappraisal is made under subsection 27‑4(2), (3) or (6)—from the day on which the reappraisal is received by the Secretary; or
(d) if the reappraisal is made under subsection 27‑4(5)—from the day on which the care recipient *entered the *aged care service.
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 27‑5; or
(b) the classification was, for any other reason, incorrect.
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 section 27‑6.
(3) Before changing a classification under subsection (1), the Secretary must review it, having regard to:
(a) any material on which the classification was based that the Secretary considers relevant; and
(b) any matters specified in the Classification Principles as matters to which the Secretary must have regard; and
(c) any other material or information that the Secretary considers relevant (including material or information that has become available since the classification was made).
(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), 16‑8(2) or 16‑20(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 28 days after receiving the notice.
(4) 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.
(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 *supported residents, *concessional residents or *assisted 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;
(ca) if the applicant has relevant *key personnel in common with a person who is or has been an approved provider—the person has a very good record of:
(i) conduct as a provider of *aged care; 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) the service meets its *accreditation requirement (see section 42‑4); 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); and
(d) whether a person with whom the applicant has relevant *key personnel in common and who is or has been an approved provider has a very good record of conduct, compliance or meeting its obligations, for the purposes of paragraph (1)(ca).
(3) The reference in paragraphs (1)(c) and (ca) 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.
(4) For the purposes of paragraphs (1)(ca) and (2)(d), the applicant has relevant key personnel in common with a person who is or has been an approved provider if:
(a) at the time the person provided *aged care, another person was one of its *key personnel; and
(b) that other person is one of the key personnel of the applicant.
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 on the Department’s website.
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.
(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) A person 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 person 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 the persons providing care 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 accommodation supplements or 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: 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
(ca) if the applicant has relevant *key personnel in common with a person who is or has been an approved provider—the conduct of that person as a provider of aged care, 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
(d) any other matters specified in the Certification Principles.
(2) The reference in paragraphs (1)(c) and (ca) 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), (c) and (ca).
(4) For the purposes of paragraph (1)(ca), the applicant has relevant key personnel in common with a person who is or has been an approved provider if:
(a) at the time the person provided *aged care, another person was one of its *key personnel; and
(b) that other person is one of the key personnel of the applicant.
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 28 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 Certification 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
(1) 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.
(2) Subsection (1) does not apply in relation to a temporary change in location if the Secretary is satisfied that exceptional circumstances exist.
39‑3 Revocation of certification
(1) If:
(a) the Secretary is satisfied that an approved provider’s residential care 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;
the Secretary must notify the approved provider that the Secretary is considering revoking the certification.
Note: Certification may also be revoked as a sanction under Part 4.4.
(2) 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.
(3A) Unless the Secretary decides to take action under section 39‑3A or 39‑3B, the Secretary must revoke the *certification if the Secretary remains satisfied that:
(a) the residential care service has ceased to be suitable for certification; or
(b) the approved provider’s application for certification of the service contained information that was false or misleading in a material particular.
Note: Revocations of certifications are reviewable under Part 6.1.
(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.
39‑3A Secretary may issue notice to rectify
(1) This section applies if:
(a) the Secretary has notified an approved provider under subsection 39‑3(2) that the Secretary is considering revoking the *certification of the approved provider’s residential care service because the service has ceased to be suitable for certification; and
(b) the approved provider has made submissions to the Secretary in accordance with the invitation under paragraph 39‑3(2)(b); and
(c) the Secretary is satisfied that the submissions:
(i) propose appropriate action to rectify the unsuitability of the service; or
(ii) set out sufficient reason for the unsuitability.
(2) The Secretary may give the approved provider a notice in accordance with subsection (3).
(3) The notice must be in writing and must:
(a) inform the approved provider that, within 14 days after the date of 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 rectify the unsuitability of the service; and
(b) inform the approved provider that the *certification will be revoked at the time specified in the notice if the undertaking is not given or complied with.
(4) The undertaking must:
(a) be in a form approved by the Secretary; and
(b) contain a description and acknowledgement of the unsuitability of the service; and
(c) set out the action the approved provider proposes to take to rectify the unsuitability of the service; and
(d) set out the period within which such action will be taken; and
(e) contain an acknowledgement that a failure by the approved provider to comply with the undertaking will result in the *certification being revoked.
(5) If the approved provider fails to give the undertaking within the specified time or fails to comply with the undertaking, the Secretary must:
(a) revoke the *certification; and
(b) give the approved provider written notice of the revocation.
39‑3B Secretary may request further information
(1) This section applies if, after receiving submissions in accordance with the invitation under paragraph 39‑3(2)(b), the Secretary is not satisfied as mentioned in paragraph 39‑3A(1)(c).
(2) The Secretary may, in writing, request further information from the approved provider in relation to the submissions.
(3) The request must be made within 28 days after the end of the period for making submissions in accordance with the invitation under paragraph 39‑3(2)(b).
(4) The further information must be provided within the time specified in the request.
(5) If, after receiving the further information, the Secretary is satisfied as mentioned in paragraph 39‑3A(1)(c), then:
(a) the Secretary must give a notice to the approved provider in accordance with subsection 39‑3A(3); and
(b) subsections 39‑3A(4) and (5) have effect.
(6) If:
(a) the approved provider does not provide the further information within the specified time; or
(b) after receiving the further information, the Secretary is not satisfied as mentioned in paragraph 39‑3A(1)(c);
the Secretary must:
(c) revoke the *certification of the approved provider’s residential care service; and
(d) give the approved provider written notice of the revocation.
(7) The notice must be given within 28 days after the end of the period for providing the further information.
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);
• *home 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;
(d) care that is specified in the Residential Care Subsidy Principles not to be residential care.
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) to a *low 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 the Minister determining a lower basic subsidy amount for the recipient for days occurring during that period, which will affect the amount of subsidy that is payable (see section 44‑3).
(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: If a care recipient is on leave for at least 30 days continuously under subsections (2) and (3A), this may result in the Minister determining a lower basic subsidy amount for the recipient for days occurring during that period, which will affect the amount of residential care subsidy that is payable (see section 44‑3).
(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
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.
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.
(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.
(4A) A determination made under subsection (1) is not a legislative instrument.
(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
(1) 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.
(2) A notice given under subsection (1) is not a legislative instrument.
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);
(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.
43‑4A Variations of claims for residential care subsidy
(1) An approved provider may vary the claim made in respect of a *payment period within:
(a) 2 years after the end of the payment period; or
(b) such longer period as is determined in respect of the claim by the Secretary.
(2) In determining a longer period for the purposes of paragraph (1)(b), the Secretary must be satisfied that a variation is required:
(a) due to an administrative error made by the Commonwealth or an agent of the Commonwealth; or
(b) because the Commonwealth or an agent of the Commonwealth considers that the circumstances of a care recipient are different from those on the basis of which subsidy was claimed.
Note: Determinations of periods under paragraph (1)(b) are reviewable under Part 6.1.
(3) A determination made under paragraph (1)(b) is not a legislative instrument.
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
(g) a payment of a kind specified in the Residential Care Subsidy Principles.
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 *supported residents, *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.
(3A) A notice given under subsection (3) is not a legislative instrument.
(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 by legislative instrument.
(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;
(aa) whether the care recipient’s approval under Part 2.3 is limited under subsection 22‑2(3) to a *low level of 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;
(ca) whether a care recipient is on *extended hospital leave;
(cb) whether an appraisal of a care recipient’s care needs is received after the end of the period mentioned in paragraph 26‑1(a) or (b) (whichever is applicable);
(cc) whether a reappraisal of a care recipient’s care needs is received after the end of the reappraisal period for the classification determined under section 27‑2;
(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.
(4) The Minister must not determine a different amount for a day based on the care recipient being on *extended hospital leave that is less than half of the amount that would have been the basic subsidy amount if the care recipient had not been on extended hospital leave on that day.
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:
(aaa) the accommodation supplement (see section 44‑5A);
(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.)
44‑5A The accommodation supplement
(1) The accommodation supplement for the care recipient in respect of the *payment period is the sum of all the accommodation 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 an accommodation supplement.
(2) The care recipient is eligible for an accommodation supplement on a particular day if, on that day:
(a) the care recipient’s *classification level is not the lowest applicable classification level; and
(b) the care recipient is a *supported 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.
(3) The accommodation supplement for a particular day is the amount:
(a) determined by the Minister by legislative instrument; or
(b) worked out in accordance with a method determined by the Minister by legislative instrument.
(4) The Minister may determine different amounts (including nil amounts) or methods based on any one or more of the following:
(a) the value of assets held by a care recipient;
(b) any other matter specified in the Residential Care Subsidy Principles.
44‑5B Meaning of supported resident
(1) A person is a supported resident on a particular day if:
(a) on that day, the person is being provided with residential care (other than *respite care) through a residential care service; and
(b) on that day, the person is a *post‑2008 reform resident; and
(c) the amount determined by the Secretary by legislative instrument in relation to that day for the purposes of this paragraph is equal to or more than the value of the person’s assets at the time at which the person *entered the residential care service or such other time specified in the Residential Care Subsidy Principles.
Note: Some *supported residents may be required to pay an *accommodation bond or an *accommodation charge—see sections 57‑12 and 57A‑6.
If there is financial hardship
(2) A person is also a supported resident if:
(a) a determination is in force under section 57‑14 or 57A‑9 in respect of the person; and
(b) the person is a *post‑2008 reform resident.
44‑5C Meaning of post‑2008 reform resident
A person is a post‑2008 reform resident if the person is being provided with residential care through a residential care service and the person is not a *pre‑2008 reform resident.
44‑5D Meaning of pre‑2008 reform resident
(1) A person is a pre‑2008 reform resident if:
(a) the person is being provided with residential care through a residential care service; and
(b) either:
(i) the person *entered a residential care service before 20 March 2008; or
(ii) the person was on *pre‑entry leave from a residential care service immediately before 20 March 2008 and the person entered the residential care service on or after 20 March 2008 at the end of that pre‑entry leave; and
(c) the person has not had a break in residential care of more than 28 days between:
(i) the last residential care service through which residential care was provided, or taken to be provided, to the person before 20 March 2008 and the next residential care service through which residential care is provided, or taken to be provided, to the person; and
(ii) any residential care service through which residential care is provided, or taken to be provided, to the person on or after 20 March 2008 and the next residential care service through which residential care is provided, or taken to be provided, to the person.
(2) The period:
(a) beginning on the day on which a person ceases to be provided with residential care through a residential care service (other than because the person is on *leave from the residential care service); and
(b) ending on the day on which the person *enters, or begins *pre‑entry leave, with the next residential care service through which residential care is provided, or taken to be provided, to the person;
is a break in residential care for the person.
(3) For the purposes of subsections (1) and (2), a person is not provided, or taken to be provided, with residential care during any period during which the person is being provided with *respite care.
44‑5E Meaning of pre‑entry leave
A care recipient is on pre‑entry leave from a residential care service on a particular day if, on that day, the care recipient is taken to be provided with residential care by the residential care service because the care recipient is on *leave under section 42‑2 because of subsection 42‑3(3).
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) 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.
(4) The concessional resident supplement for a particular day is the amount determined by the Minister by legislative instrument.
(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:
(a) the person is being provided with residential care (other than *respite care) through a residential care service; and
(b) the applicable time under subsection (2) is on or after 1 July 2005; and
(c) the person is a *pre‑2008 reform resident; and
(d) there is in force a determination covered by subsection (1B) or (1C).
(1B) Subject to subsection (1D), 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) Subject to subsection (1E), 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).
(1D) If:
(a) a determination covered by subsection (1B) is made in relation to a person; and
(b) the time specified in the determination is on or after 20 September 2009;
subsection (1B) has effect as if the reference to paragraph (1)(c) were a reference to that paragraph modified by omitting “2.5” from subparagraph (i) and substituting “2.25”.
(1E) If:
(a) a determination covered by subsection (1C) is made in relation to a person; and
(b) the applicable time under subsection (2) is on or after 20 September 2009;
subsection (1C) has effect as if the reference to paragraph (1)(c) were a reference to that paragraph modified by omitting “2.5” from subparagraph (i) and substituting “2.25”.
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) a determination is in force under paragraph 57‑14(1)(a) or 57A‑9(1)(a) in respect of the person; and
(b) the person is a *pre‑2008 reform resident.
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:
(a) the person is being provided with residential care (other than *respite care) through a residential care service; and
(b) the applicable time under subsection (2) is on or after 1 July 2005; and
(c) the person is a *pre‑2008 reform resident; and
(d) there is in force a determination covered by subsection (1B) or (1C).
If there is financial hardship (whatever the applicable time)
(1AA) A person is also an assisted resident if:
(a) a determination is in force under paragraph 57‑14(1)(b) or 57A‑9(1)(b) in respect of the person; and
(b) the person is a *pre‑2008 reform resident.
(1B) Subject to subsection (1D), 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) Subject to subsection (1E), 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).
(1D) If:
(a) a determination covered by subsection (1B) is made in relation to a person; and
(b) the time specified in the determination is on or after 20 September 2009;
subsection (1B) has effect as if the reference to paragraph (1)(c) were a reference to that paragraph modified by:
(c) omitting “4” from subparagraph (i) and substituting “3.61”; and
(d) omitting “2.5” from subparagraph (iii) and substituting “2.25”.
(1E) If:
(a) a determination covered by subsection (1C) is made in relation to a person; and
(b) the applicable time under subsection (2) is on or after 20 September 2009;
subsection (1C) has effect as if the reference to paragraph (1)(c) were a reference to that paragraph modified by:
(c) omitting “4” from subparagraph (i) and substituting “3.61”; and
(d) omitting “2.5” from subparagraph (iii) and substituting “2.25”.
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.
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.
(8) A resident status determination made under subsection (1) is not a legislative instrument.
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 *supported resident under section 44‑5B, 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.
(6) A determination made under subsection (1) is not a legislative instrument.
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 by legislative instrument.
(4) The Minister may determine different amounts (including nil amounts) under subsection (3) based on any one or more of the following:
(aa) the maximum rate of accommodation supplement;
(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);
(ba) if the care recipient is a *supported resident—the amount of the accommodation supplement that is payable in respect of the care recipient on a particular day;
(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 supported resident, 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 a *supported resident, an *assisted resident or a *concessional resident;
the person is taken, for the purposes of this Act, not to be a supported resident under subsection 44‑5B(1), 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 44‑5A, 44‑5B, 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 and Subdivision H of Division 11A 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 and Division 8 of Part 3.18 of the Social Security Act 1991 applied for the purposes of this Act.
Note 1: 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.
Note 2: Subdivision H of Division 11A of Part IIIB of the Veterans’ Entitlements Act 1986, and Division 8 of Part 3.18 of the Social Security Act 1991, deal with the attribution to individuals of assets of private companies and private trusts.
(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.
(5) A determination under paragraph (1A)(a), (1A)(b), (1B)(a) or (1B)(b) or subsection (1C) is not a legislative instrument.
44‑11 Definitions relating to supported residents, concessional residents and assisted residents
(1) In sections 44‑7, 44‑8, and 44‑10 and in this section:
child: without limiting who is a child of a person for the purposes of this section and sections 44‑7, 44‑8 and 44‑10, each of the following is the child of a person:
(a) a stepchild or an adopted child of the person;
(b) someone who would be the stepchild of the person except that the person is not legally married to the person’s partner;
(c) someone who is a child of the person within the meaning of the Family Law Act 1975;
(d) someone included in a class of persons specified for the purposes of this paragraph in the Residential Care Subsidy Principles.
close relation, in relation to a person, means:
(a) a parent 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.
Note: See also subsection (5).
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
(aa) a person whose relationship with another person (whether of the same sex or a different sex) is registered under a law of a State or Territory prescribed for the purposes of section 2E of the Acts Interpretation Act 1901 as a kind of relationship prescribed for the purposes of that section, and who is not living separately and apart from the other person on a permanent basis; or
(b) a person who lives with another person (whether of the same sex or a different sex) in a de facto relationship, although not legally married to the other person.
parent: without limiting who is a parent of a person for the purposes of this section and sections 44‑7, 44‑8 and 44‑10, someone is the parent of a person if the person is his or her child because of the definition of child in this section.
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.
(5) For the purposes of paragraph (b) of the definition of close relation in subsection (1), if one person is the child of another person because of the definition of child in this section, relationships traced to or through the person are to be determined on the basis that the person is the child of the other person.
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 2.3 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 by legislative instrument.
(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.
(2A) A determination made under subsection (2) is not a legislative instrument.
(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 by legislative instrument; or
(b) worked out in accordance with a method determined by the Minister by legislative instrument.
(7) The Minister may determine different amounts (including nil amounts) or methods based on any matters determined by the Minister by legislative instrument.
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.
(2A) A determination made under subsection (2) is not a legislative instrument.
(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 by legislative instrument; or
(b) worked out in accordance with a method determined by the Minister by legislative instrument.
(7) The Minister may determine different amounts (including nil amounts) or methods based on any matters determined by the Minister by legislative instrument.
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 28 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 by legislative instrument, 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.
(1A) A determination made under paragraph (1)(b) is not a legislative instrument.
(2) The adjusted subsidy reduction for a particular day is the amount determined by the Minister by legislative instrument.
(3) The Minister may determine different amounts based on any matters determined by the Minister by legislative instrument.
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.
(7A) A determination under subsection (5) or (6) is not a legislative instrument.
(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 *total assessable income on a yearly basis (see section 44‑24).
Step 2. Work out the care recipient’s *total assessable income free area (see section 44‑26).
Step 3. If the care recipient’s *total assessable income does not exceed the care recipient’s *total assessable income free area, the income tested reduction is zero.
Step 4. If the care recipient’s *total assessable income exceeds the care recipient’s *total assessable 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 5/12 of that excess (worked out on a per day basis);
(b) the amount equal to 135% of the *basic age pension amount for that day (worked out on a per day basis);
(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.
(7) A determination under subsection (2) is not a legislative instrument.
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(8), that the Secretary requests for the purpose of determining the care recipient’s *total assessable 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 *total assessable 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 *total assessable 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 equal to 135% of the *basic age pension amount for that day (worked out on a per day basis);
(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 total assessable income
