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.
1‑5 Application to continuing care recipients
Chapters 3 and 3A of this Act do not apply in relation to a *continuing care recipient.
Note: Subsidies, fees and payments for continuing care recipients are dealt with in the Aged Care (Transitional Provisions) Act 1997.
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
(1) 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.
(2) *Subsidies are also paid under Chapter 3 of the Aged Care (Transitional Provisions) Act 1997.
3‑2 Preliminary matters relating to subsidies (Chapter 2)
Before the Commonwealth can pay *subsidy to an approved provider of *aged care, a number of approvals and similar decisions may need to have been made under Chapter 2. These may relate to:
(b) the *aged care service in question (for example, for residential care services and flexible care services 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).
Note: For the approval of providers of aged care, see Part 7A of the *Quality and Safety Commission Act.
3‑3 Subsidies
A number of different kinds of *subsidy can be paid. 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).
3‑3A Fees and payments
Care recipients may be required to pay for, or contribute to, the costs of their care and accommodation. Fees and payments are dealt with in Chapter 3A of this Act, and in Divisions 57, 57A, 58 and 60 of the Aged Care (Transitional Provisions) Act 1997.
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 on an approved provider under Part 7B of the *Quality and Safety Commission Act, which may affect amounts of *subsidy payable to the 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 Norfolk Island, 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) Despite subsection (1), Parts 2.2, 2.5 and 3.1 apply in relation to Norfolk Island as if Norfolk Island were part of New South Wales and were not a Territory.
Note: This has the effect that references in Parts 2.2, 2.5 and 3.1 to a Territory do not apply to Norfolk Island, and that references in those Parts to a State will be relevant to New South Wales as if it included Norfolk Island.
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 to an approved provider of *aged care, a number of approvals and similar decisions may need to have been made. These relate to:
• the *aged care service in question—for residential care services and flexible care services, *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);
• 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). In the case of home care, the recipient must be a *prioritised home care recipient (see Part 2.3A). In the case of residential care or some kinds of flexible care, the recipient can be classified in respect of the level of care that is required (see Parts 2.4 and 2.4A).
Note 1: Not all of these approvals and decisions are needed in respect of each kind of subsidy.
Note 2: For the approval of providers of aged care, see Part 7A of the *Quality and Safety Commission Act.
5‑2 Which approvals etc. may be relevant
The following table shows, in respect of each kind of payment under Chapter 3 of this Act or Chapter 3 of the Aged Care (Transitional Provisions) Act 1997, 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 |
2 | Allocation of places | Yes | No | Yes |
3 | Approval of care recipients | Yes | Yes | Yes |
3A | Prioritisation of home care recipients | No | Yes | No |
4 | Classification of care recipients | Yes | No | Yes |
5 | Decisions relating to extra service places | 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.
Note 3: For the approval of providers of aged care, see Part 7A of the *Quality and Safety Commission Act.
Part 2.1—Approved providers
Division 6—Introduction
6‑1 What this Part is about
A precondition to a provider of *aged care receiving a *subsidy under this Act for the provision of care is that the provider is an approved provider.
For the obligations that arise from being an approved provider, see Division 9 of this Part.
Division 10A of this Part deals with the *key personnel of approved providers and sets out when remedial orders may be obtained.
Table of Divisions
6 Introduction
7 What is the significance of approval as a provider of aged care?
9 What obligations arise from being an approved provider?
10A Key personnel of approved providers
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 to a person for providing *aged care unless:
(a) the person is an approved provider; and
(aa) the approval of the person is in effect; and
(b) the approval of the person is in respect of the type of aged care provided, at the time it is provided; and
(c) the approval of the person is in respect of the *aged care service through which the aged care is provided, at the time it is provided.
Note: For the approval of providers of aged care, see Part 7A of the *Quality and Safety Commission Act.
7‑2 Payment of subsidy if approval of provider is restricted to certain aged care services etc.
(1) If:
(a) a sanction has been imposed on an approved provider under section 63N of the *Quality and Safety Commission Act; and
(b) the sanction restricts the approval of the provider to certain *aged care services conducted by the provider;
then, while the sanction is in effect, *subsidy may only be paid to the provider in respect of care provided through those services.
(2) If:
(a) a sanction has been imposed on an approved provider under section 63N of the *Quality and Safety Commission Act; and
(b) the sanction restricts the payment of *subsidies to the provision of care by the provider to certain care recipients;
then, while the sanction is in effect, subsidy may only be paid to the provider in respect of care provided to those care recipients.
Note: Both subsections (1) and (2) may apply at the same time in relation to an approved provider.
Division 9—What obligations arise from being an approved provider?
9‑1A Obligation to notify Secretary about home care services
(1) An approved provider must notify the Secretary of the following information in relation to each home care service through which the approved provider proposes to provide home care:
(a) the name and address of the service;
(b) any other information of a kind specified in the Approved Provider Principles for the purposes of this section.
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 7B of the *Quality and Safety Commission Act.
(2) The notification must be made before the approved provider first provides home care through the home care service.
(3) The notification must be in the form approved by the Secretary.
(4) If there is a change in any of the information notified under subsection (1), the approved provider must, within 28 days of the change, notify the Secretary of the change.
9‑1 Obligation to notify of a change of circumstances that materially affects the suitability of an approved provider
(1) An approved provider must notify the *Quality and Safety Commissioner of a change of circumstances that materially affects the approved provider’s suitability to be a provider of *aged care. The notification must occur within 14 days after the change occurs.
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 7B of the *Quality and Safety Commission Act.
(2) The notification must be in the form approved by the *Quality and Safety Commissioner.
(3B) The Approved Provider Principles may specify changes of circumstances that are taken, for the purposes of subsection (1), to materially affect an approved provider’s suitability to be a provider of *aged care.
(4) An approved provider that is a *corporation commits an offence if the approved provider fails to notify the *Quality and Safety Commissioner of such a change within the 14 day period.
Penalty: 30 penalty units.
(5) Strict liability applies to subsection (4).
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: For strict liability, see section 6.1 of the Criminal Code.
9‑2A Obligation to notify of the occurrence of certain events relating to key personnel of an approved provider
(1) An approved provider must notify the *Quality and Safety Commissioner if any of the following events occurs:
(a) an individual becomes one of the *key personnel of the provider;
(b) an individual ceases to be one of the key personnel of the provider;
(c) the provider becomes aware of a change of circumstances that relates to a *suitability matter in relation to an individual who is one of the key personnel of the provider.
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 7B of the *Quality and Safety Commission Act.
(2) The notification must:
(a) be given within 14 days after the event occurs; and
(b) be in the form approved by the *Quality and Safety Commissioner; and
(c) if the notification relates to an event of a kind referred to in paragraph (1)(a)—state:
(i) whether the approved provider has considered the *suitability matters in relation to the individual; and
(ii) whether, after considering those matters, the provider is reasonably satisfied that the individual is suitable to be involved in the provision of *aged care; and
(d) if the notification relates to an event of a kind referred to in paragraph (1)(b)—set out the reasons the individual ceased to be one of the *key personnel of the approved provider; and
(e) if the notification relates to an event of a kind referred to in paragraph (1)(c)—set out:
(i) details of the change of circumstances that relates to a suitability matter in relation to the individual; and
(ii) whether the approved provider has considered the suitability matters in relation to the individual; and
(iii) whether, after considering those matters, the approved provider is reasonably satisfied that the individual continues to be suitable to be involved in the provision of aged care; and
(iv) what, if any, action the provider has taken, or proposes to take, in relation to the individual.
(3) A *corporation commits an offence of strict liability if:
(a) the corporation is an approved provider; and
(b) the corporation fails to comply with subsection (1).
Penalty: 30 penalty units.
9‑2 Obligation to give information relevant to an approved provider’s status etc. when requested
(1) The *Quality and Safety Commissioner may, at any time, request an approved provider to give the Commissioner such information, relevant to the approved provider’s suitability to be a provider of *aged care, as is specified in the request. The request must be in writing.
(1A) The *Quality and Safety Commissioner may, at any time, request an approved provider to give the Commissioner such information, relevant to the suitability of an individual who is one of the *key personnel of the provider to be involved in the provision of *aged care, as is specified in the request. The request must be in writing.
(2) The approved provider must comply with a request made under subsection (1) or (1A) 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 7B of the *Quality and Safety Commission Act.
(3) An approved provider that is a *corporation commits an offence if it fails to comply with a request made under subsection (1) or (1A) 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.
(3A) Strict liability applies to subsection (3).
(4) A request made under subsection (1) or (1A) must contain a statement setting out the effect of subsections (2) and (3).
9‑3 Obligation to give information relevant to payments
(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 or the Aged Care (Transitional Provisions) Act 1997 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 7B of the *Quality and Safety Commission Act.
(3) The request must contain a statement setting out the effect of subsection (2).
9‑3A Obligation to give information relating to refundable deposits, accommodation bonds, entry contributions etc.
(1) The Secretary or *Quality and Safety Commissioner may, at any time, request a person who is or has been an approved provider to give to the Secretary or Commissioner specified information relating to any of the following:
(a) *refundable deposits or *accommodation bonds charged by the person;
(b) the amount of one or more *refundable deposit balances or *accommodation bond balances at a particular time;
(c) the amount equal to the total of the refundable deposit balances and 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 7B of the *Quality and Safety Commission Act.
(3) A person commits an offence if:
(a) the Secretary or *Quality and Safety Commissioner 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.
(3A) Strict liability applies to subsection (3).
(4) The request must contain a statement setting out the effect of subsections (2) and (3).
9‑3B Obligation to give information or documents about ability to refund balances
(1) This section applies if the Secretary or *Quality and Safety Commissioner believes, on reasonable grounds, that an approved provider:
(a) has not refunded, or is unable or unlikely to be able to refund, a *refundable deposit balance or an *accommodation bond balance; or
(b) is experiencing financial difficulties; or
(c) has used a *refundable deposit or an *accommodation bond for a use that is not *permitted.
(2) The Secretary or *Quality and Safety Commissioner may request the approved provider to give the Secretary or Commissioner information or documents specified in the request relating to any of the following:
(a) the approved provider’s suitability to be a provider of *aged care;
(b) the approved provider’s financial situation;
(c) the amount of one or more *refundable deposit balances or *accommodation bond balances at a particular time;
(d) how *refundable deposits or *accommodation bonds have been used by the approved provider;
(da) the use of a refundable deposit or accommodation bond by the approved provider to make a loan;
(e) the approved provider’s policies and procedures relating to managing, monitoring and controlling the use of refundable deposits and accommodation bonds;
(f) the roles and responsibilities of *key personnel in relation to managing, monitoring and controlling the use of refundable deposits and accommodation bonds.
The request must be in writing.
(2A) Without limiting paragraph (2)(da), the following kinds of information or documents may be specified in a request relating to the use of a *refundable deposit or *accommodation bond by an approved provider to make a loan:
(a) a copy of the agreement relating to the loan that has been executed, or entered into, by the parties to the agreement;
(b) the amount of the loan;
(c) details of any security in respect of the loan;
(d) details of the term or life of the loan;
(e) details of the rate of interest payable on the loan;
(f) evidence that the rate of interest payable on the loan has been set on a commercial basis;
(g) details of the loan repayments (including the amounts and frequency of those repayments);
(h) details of any review of the loan that must or may be conducted;
(i) details of any other conditions or terms of the loan;
(j) details of the commercial basis of the loan;
(k) evidence of the use of the money loaned;
(l) a copy of the financial statements (however described) of the borrower (including any such statements that have been audited);
(m) any other information or documents relating to the loan.
(3) The Secretary or *Quality and Safety Commissioner may request the approved provider to give the specified information or documents 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 or documents are 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 7B of the *Quality and Safety Commission Act.
(5) An approved provider commits an offence if:
(a) the Secretary or *Quality and Safety Commissioner requests the approved provider to give information or documents 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.
(5A) Strict liability applies to subsection (5).
(5B) Subsection (5) does not apply if the information or documents requested under subsection (2) are not in the possession, custody or control of the approved provider.
Note: A defendant bears an evidential burden in relation to the matter in this subsection: see subsection 13.3(3) of the Criminal Code.
(6) The request must contain a statement setting out the effect of subsections (4) and (5).
(7) If the operation of this section would result in an acquisition of property from a person otherwise than on just terms, the Commonwealth is liable to pay a reasonable amount of compensation to the person.
(8) If the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in the Federal Court of Australia, or the Supreme Court of a State or Territory, for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines.
9‑4 Obligations while approval is suspended
If a person’s approval as a provider of *aged care under Part 7A of the *Quality and Safety Commission Act is suspended for a period under Part 7B of that Act, the obligations under this Division apply to the person as if the person were an approved provider during that period.
Division 10A—Key personnel of approved providers
10A‑1 Key personnel of an approved provider must notify of change of circumstances relating to suitability
(1) If:
(a) an individual is one of the *key personnel of an approved provider; and
(b) the provider is a *corporation; and
(c) the individual becomes aware of a change of circumstances that relates to a *suitability matter in relation to the individual;
the individual must notify the provider of the change.
(2) The notification must:
(a) be given in writing; and
(b) be given within 14 days after the individual becomes aware of the change of circumstances; and
(c) set out the details of the change of circumstances that relates to a *suitability matter in relation to the individual.
(3) An individual commits an offence of strict liability if:
(a) the individual is one of the *key personnel of an approved provider; and
(b) the provider is a *corporation; and
(c) the individual fails to comply with subsection (1).
Penalty: 30 penalty units.
10A‑2 Determination relating to suitability of key personnel of an approved provider
Determination relating to suitability of key personnel
(1) If an approved provider is a *corporation, the *Quality and Safety Commissioner may, at any time, determine that an individual who is one of the *key personnel of the provider is not suitable to be involved in the provision of *aged care.
(2) In deciding whether to make the determination under subsection (1), the *Quality and Safety Commissioner must consider the *suitability matters in relation to the individual.
(3) Subsection (2) does not limit the matters the *Quality and Safety Commissioner may consider in deciding whether to make the determination under subsection (1) in relation the individual.
Notice of intention to make determination
(4) Before the *Quality and Safety Commissioner makes the determination in relation to an individual who is one of the *key personnel of the approved provider, the Commissioner must, by written notice, notify the individual and the provider that the Commissioner is considering making such a determination.
(5) The notice must:
(a) set out the reasons why the *Quality and Safety Commissioner is considering making the determination in relation to an individual who is one of the *key personnel of the approved provider; and
(b) invite the individual and the provider to make submissions, in writing, to the Commissioner in relation to the matter within:
(i) 14 days after receiving the notice; or
(ii) if a shorter period is specified in the notice—that shorter period; and
(c) inform the individual and the provider that the Commissioner may, after considering any submissions made by them, decide to make the determination.
(6) The *Quality and Safety Commissioner must consider any submissions made by the individual and the approved provider in accordance with the notice.
Notice of determination
(7) If the *Quality and Safety Commissioner decides to make the determination in relation to an individual who is one of the *key personnel of the approved provider, the Commissioner must, within 14 days after making the decision, give the individual and the provider a written notice that:
(a) sets out the decision; and
(b) sets out the reasons for the decision; and
(c) states that the provider must, within a specified period, take specified action to ensure that the individual ceases to be one of the key personnel of the provider; and
(d) sets out the effect of sections 10A‑2A and 10A‑3.
Note: The approved provider may request the *Quality and Safety Commissioner to reconsider the decision under Part 8B of the *Quality and Safety Commission Act.
10A‑2A Offence relating to failure to take action as required by determination
A *corporation commits an offence if:
(a) the corporation is an approved provider; and
(b) the *Quality and Safety Commissioner makes a determination under subsection 10A‑2(1) in relation to an individual who is one of the *key personnel of the corporation; and
(c) the corporation fails to take the action specified in the notice of the determination within the period specified in that notice.
Note: Section 4K of the Crimes Act 1914, which deals with continuing and multiple offences, applies to this offence.
Penalty: 300 penalty units.
10A‑2B Offence relating to failure to comply with responsibility to consider suitability matters relating to key personnel
A *corporation commits an offence if:
(a) the corporation is an approved provider; and
(b) the corporation fails to comply with the responsibility under subparagraph 63‑1A(a)(i).
Penalty: 300 penalty units.
10A‑3 Remedial orders
Unacceptable key personnel situation
(1) For the purposes of this section, an unacceptable key personnel situation exists if:
(a) the *Quality and Safety Commissioner makes a determination under subsection 10A‑2(1) in relation to an individual who is one of the *key personnel of an approved provider; and
(b) the provider fails to take the action specified in the notice of the determination within the period specified in that notice.
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.
Part 2.2—Allocation of places
Division 11—Introduction
11‑1 What this Part is about
An approved provider can only receive *subsidy for providing residential care or flexible 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?
17A Revocation of certain conditions for allocations of places
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 *residential care subsidy or *flexible care subsidy.
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 *residential care subsidy and *flexible care subsidy.
(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 12‑6.
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 *residential care subsidy and *flexible care subsidy, 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 *residential care subsidy and *flexible care 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 *residential care subsidy or *flexible care 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 *residential care subsidy and *flexible care subsidy, determine for the *places *available for allocation the proportion of care that must be provided to 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 *residential care subsidy and *flexible care 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.
(1B) If the Secretary determines the *regions within New South Wales, he or she must determine that one of those regions consists of Norfolk Island.
(2) If the Secretary does not determine the regions within a State or Territory in respect of *residential care subsidy or *flexible care subsidy, the whole of the State or Territory comprises the region in respect of that type of *subsidy.
(3) The determination must be published on the Department’s website.
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, 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 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 *residential care subsidy or *flexible care subsidy, to a person to provide *aged care services for a *region.
(2) The *places may only be allocated to a person if:
(a) the person is an approved provider and the person’s approval is in respect of the *aged care in respect of which the places are allocated; or
(b) both of the following apply:
(i) the person will be an approved provider at the time the allocation takes effect or, in the case of a provisional allocation, at the time that allocation begins to be in force;
(ii) the person’s approval will be in respect of the aged care in respect of which the places are allocated.
(2A) The *places must not be allocated to a person if:
(a) a sanction has been imposed on the person under section 63N of the *Quality and Safety Commission Act; and
(b) the sanction prohibits the further allocation of places under this Part to the person; and
(c) the sanction is in effect.
(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 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 by a notice given under section 63N of the *Quality and Safety Commission Act.
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 7B of the *Quality and Safety Commission Act.
(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.
Lump sums paid by continuing care recipients
(5) If:
(a) a condition imposed on an allocation of *places to a person requires:
(i) the refund by the person to a *continuing care recipient, with the consent of the continuing 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 continuing care recipient, with the consent of the continuing care recipient, in relation to a pre‑allocation lump sum or part of such a sum; and
(b) the continuing 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 continuing 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 continuing care recipient and the pre‑allocation lump sum holder would have under this Act and the Aged Care (Transitional Provisions) Act 1997 if:
(c) the continuing 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.
Lump sums paid by care recipients other than continuing care recipients
(5A) If:
(a) a condition imposed on an allocation of *places to a person requires:
(i) the refund by the person to a care recipient (the non‑continuing care recipient) who is not a *continuing care recipient, with the consent of the non‑continuing 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 non‑continuing care recipient, with the consent of the non‑continuing care recipient, in relation to a pre‑allocation lump sum or part of such a sum; and
(b) the non‑continuing 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 non‑continuing care recipient and the pre‑allocation lump sum holder have the same rights, duties and obligations in relation to the charging of a *refundable deposit as the non‑continuing care recipient and the pre‑allocation lump sum holder would have under this Act if:
(c) the non‑continuing 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 a refundable deposit 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 a *refundable deposit, 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 7B of the *Quality and Safety Commission Act.
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 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 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; or
(c) a variation that has the effect of moving *provisionally allocated places to a different *region within the same State or Territory.
(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 as mentioned in paragraph (2)(a) or (b), the Secretary must have regard to any matters specified in the Allocation Principles.
(8) In deciding whether to vary the *provisional allocation as mentioned in paragraph (2)(c), the Secretary must be satisfied that the variation is justified in the circumstances, having regard to the following:
(a) whether the variation would meet the objectives of the planning process set out in section 12‑2;
(b) the financial viability of the *aged care service in respect of which the *places were *provisionally allocated;
(c) if the places were provisionally allocated to meet the needs of a particular group—whether those needs would be met after the variation;
(d) if the places were provisionally allocated to provide a particular type of *aged care—whether that type of aged care would be provided after the variation;
(e) if, after the variation, the places would be provisionally allocated in respect of a different aged care service:
(i) the financial viability of that aged care service; and
(ii) the suitability of the premises used, or proposed to be used, to provide care through that aged care service;
(f) the extent to which the needs of the aged care community in the different *region and the region for which the places were provisionally allocated have changed since the provisional allocation was made;
(g) the extent to which the needs of the aged care community in the different region and the region for which the places were provisionally allocated would be better met by making the variation than by not making the variation;
(h) how the development of the aged care service, in respect of which the places were provisionally allocated, has progressed;
(i) whether the allocation of places would take effect within a shorter period of time and within the existing provisional allocation period, if the variation were to be made;
(j) any other matters set out in the Allocation Principles.
15‑5A Variation of region that involves moving provisionally allocated places to a service with extra service status
(1) The Secretary must not vary a *provisional allocation of *places to move places to a different *region as mentioned in paragraph 15‑5(2)(c) if:
(a) the variation would result in residential care in respect of the places being provided through a residential care service in the different region; 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 make the variation if the Secretary is satisfied that the *places other than the *provisionally allocated 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 make 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.)
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 4 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 4 years, or the 4 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) one of the following applies:
(i) the applicant has not previously sought an extension and the Secretary is satisfied that the extension is justified in the circumstances;
(ii) the applicant has been granted an extension once previously and the Secretary is satisfied that the further extension is justified in the circumstances;
(iii) the applicant has been granted an extension more than once previously and the Secretary is satisfied that exceptional circumstances justify the granting of a further extension; and
(d) the Secretary is satisfied that granting the extension meets any requirements specified in the Allocation Principles.
(3A) The Allocation Principles may specify matters to which the Secretary must have regard in considering whether exceptional circumstances justify the granting of a further extension.
(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.
Note: Extending provisional allocation periods and rejections of applications for extensions are reviewable under Part 6.1.
(5A) The Secretary must notify the person of the decision to grant an extension or reject the application by a time that is:
(a) 14 days or more before the end of the *provisional allocation period; and
(b) within 28 days after receiving the application for the extension.
(6) The period of the extension is 12 months. The Secretary must specify the period of the extension in the notice of the granting of the extension.
(7) Despite this section, if the Secretary rejects an application for an extension, the *provisional allocation period ends at the later of:
(a) the end of the day that is 28 days after the person is notified of the decision; or
(b) the time when there is no further reconsideration or review of the decision pending.
Division 16—How are allocated places transferred from one person to another?
Subdivision 16‑A—Transfer of places other than provisionally allocated places
16‑1 Application of this Subdivision
This Subdivision applies to an allocated *place, other than a *provisionally allocated place.
16‑2 Transfer notice
(1) An approved provider to whom the *place has been allocated under Division 14 may give the Secretary a notice (the transfer notice) relating to the transfer of the place to another person.
(2) The notice 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 a place of that kind.
(3) The information to be included in the notice 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, and its location;
(g) whether any of the places are places included in a residential care service, or a *distinct part of a residential care service, that has *extra service status;
(h) such other information as is specified in the Allocation Principles.
(4) The notice must be given:
(a) if the transferee is an approved provider—no later than 60 days, or such other period as the Secretary determines under subsection (5), before the proposed transfer day specified in the notice; or
(b) if the transferee is not an approved provider—no later than 90 days, or such other period as the Secretary determines under subsection (5), before the proposed transfer day specified in the notice.
(5) The Secretary may, at the request of the transferor and the transferee, determine another period under paragraph (4)(a) or (b) if the Secretary is satisfied that it is justified in the circumstances.
(6) In deciding whether to make a determination, and in determining another period, the Secretary must consider any matters set out in the Allocation Principles.
(7) The Secretary must give written notice of his or her decision under subsection (5) to the transferor and the transferee.
(8) If the information included in a transfer notice changes, the notice is taken not to have been given under this section unless the transferor and the transferee give the Secretary written notice of the changes.
16‑3 Consideration of notices
(1) If the Secretary receives a transfer notice, the Secretary must consider whether the Secretary is satisfied of 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) the suitability of the transferee to provide the aged care to which the places to be transferred relate;
(d) 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 adequacy of 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 notice, for ensuring that care needs are appropriately met for care recipients who are being provided with care in respect of those places, are satisfactory;
(e) if the transferee has been a provider of aged care—its satisfactory 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;
(f) if the transferee has relevant *key personnel in common with a person who is or has been an approved provider—the satisfactory 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;
(g) any other matters set out in the Allocation Principles.
(2) The reference in paragraphs (1)(e) and (f) 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)(f), 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.
16‑4 Notice to resolve
(1) If the Secretary receives a transfer notice and any issues relating to the transfer are of concern to the Secretary, then no more than 28 days after receiving the transfer notice the Secretary may issue the transferor and transferee a notice to resolve.
(2) The notice to resolve must:
(a) be in writing; and
(b) specify the issue of concern to the Secretary; and
(c) specify the person who is to resolve the issue; and
(d) specify the action the Secretary requires the person to take to resolve the issue; and
(e) invite the transferee and transferor to make submissions addressing the matters, in writing, to the Secretary within 28 days after receiving the notice or such shorter period as is specified in the notice; and
(f) state that, if any matters specified in that notice remain of concern to the Secretary after the submissions (if any) have been considered, the Secretary may issue a veto notice under section 16‑6.
16‑5 Change to proposed transfer day
(1) A proposed transfer day (the changing proposed transfer day) becomes a later day if one of the following occurs:
(a) the Secretary is given a notice under subsection 16‑2(8) no more than 28 days before the changing proposed transfer day;
(b) the Secretary issues the transferor and transferee a notice to resolve under section 16‑4.
Note: This section may operate multiple times in respect of one transfer.
(2) Subject to subsection (3), the proposed transfer day becomes the 29th day after the changing proposed transfer day.
(3) However, if before the end of the 28th day after the changing proposed transfer day:
(a) the transferor and transferee agree, in writing, to another proposed transfer day that is later than the 29th day after the changing proposed transfer day; and
(b) the Secretary agrees, in writing, to the other proposed transfer day;
the other proposed transfer day becomes the proposed transfer day.
16‑6 Veto notice
(1) If the Secretary receives a transfer notice relating to a *place, the Secretary may, at least 7 days before the proposed transfer day, give the transferor and transferee a veto notice rejecting the transfer if:
(a) a notice to resolve has been given in respect of the transfer and issues specified in that notice remain of concern to the Secretary; or
(b) the Secretary is not satisfied of the matters in section 16‑3 in relation to the transfer; or
(c) for cases where the transfer would result in residential care in respect of the place being provided through a residential care service in a different location where that residential care service has, or a *distinct part of that service has, *extra service status—neither subsection 16‑7(1) nor (2) applies in relation to the transfer; or
(d) the proposed transfer would result in the place being transferred to another State or Territory; or
(e) circumstances specified in the Allocation Principles exist.
Note: Decisions to give a veto notice are reviewable under Part 6.1.
(2) A veto notice must:
(a) be in writing; and
(b) contain a statement that it is a notice under this section; and
(c) state the reasons for giving the veto notice.
16‑7 Transfer of places to service with extra service status
(1) This subsection applies in relation to a transfer if the Secretary is satisfied that the *places other than the places to be transferred could, after the allocation, form one or more distinct parts of the residential care service.
(2) This subsection applies in relation to a transfer if the Secretary is 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.
16‑8 Transfer day
(1) Subject to this section, a transfer of a *place to which this Subdivision applies from one person to another takes effect on the transfer day.
(2) The transfer day is the day that is:
(a) the proposed transfer day specified in the transfer notice; or
(b) if another day is, by operation of this Act, the proposed transfer day—that other day.
(3) The transfer of a *place does not occur if a veto notice has been given rejecting the transfer and the notice is in effect on the transfer day.
(4) The transfer of a *place does not occur if the transferee is not an approved provider on the transfer day.
16‑9 Effect of transfer on certain matters
If a transfer of a *place takes effect under this Subdivision on the transfer day:
(a) the transferee is taken, from the transfer day, to be the person to whom the place is allocated; and
(b) any entitlement of the transferor to an amount of *subsidy, in respect of the *place being transferred, that is payable but has not been paid passes to the transferee; and
(c) any responsibilities under Part 4.2 that the transferor had, immediately before that transfer day, in relation to a *refundable deposit balance or *accommodation bond balance connected with the place become responsibilities of the transferee under Part 4.2; and
(d) 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; and
(e) if, as part of the transfer, the transfer notice sought approval 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 the variations of the conditions, or such other conditions as have been agreed to as the result of matters relating to the issue of a notice to resolve.
16‑10 Information to be given to transferee
(1) The Secretary may give to the transferee information specified in the Allocation Principles at such times as are specified in those Principles.
(2) The Allocation Principles must not specify information that would, or would be likely to, disclose the identity of any care recipient.
16‑11 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 held by the transferor 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 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 *refundable deposits and 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 7B of the *Quality and Safety Commission Act.
Subdivision 16‑B—Transfer of provisionally allocated places
16‑12 Application of this Subdivision
This Subdivision applies to a *provisionally allocated place.
16‑13 Transfer notice
(1) An approved provider to whom the *place has been *provisionally allocated under Division 14 may give the Secretary a notice (the transfer notice) relating to the transfer of the place to another person.
(2) The notice 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 notice 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, and its location;
(g) the day on which, if the transfer were to take place, the transferee would be in a position to provide care in respect of a place of that kind;
(h) whether any of the places are places included in a residential care service, or a *distinct part of a residential care service, that 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) such other information as is specified in the Allocation Principles.
(4) The notice must be given:
(a) if the transferee is an approved provider—no later than 60 days, or such other period as the Secretary determines under subsection (5), before the proposed transfer day specified in the notice; or
(b) if the transferee is not an approved provider—no later than 90 days, or such other period as the Secretary determines under subsection (5), before the proposed transfer day specified in the notice.
(5) The Secretary may, at the request of the transferor and the transferee, determine another period under paragraph (4)(a) or (b) if the Secretary is satisfied that it is justified in the circumstances.
(6) In deciding whether to make a determination, and in determining another period, the Secretary must consider any matters set out in the Allocation Principles.
(7) The Secretary must give written notice of his or her decision under subsection (5) to the transferor and the transferee.
(8) If the information included in a transfer notice changes, the notice is taken not to have been given under this section unless the transferor and the transferee give the Secretary written notice of the changes.
16‑14 Consideration of notices
(1) If the Secretary receives a transfer notice, the Secretary must consider whether the Secretary is satisfied of the following:
(a) whether the transfer would meet the objectives of the planning process set out in section 12‑2;
(b) the adequacy of 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;
(c) the suitability of the transferee to provide the *aged care to which the places to be transferred relate;
(d) 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;
(e) 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;
(f) if the transferee has been a provider of aged care—its satisfactory 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;
(g) if the transferee has relevant *key personnel in common with a person who is or has been an approved provider—the satisfactory 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;
(h) 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;
(i) the location in respect of which the place is provisionally allocated will not change as a result of the transfer;
(j) any other matters set out in the Allocation Principles.
(2) The reference in paragraphs (1)(f) and (g) 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)(g), 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.
16‑15 Notice to resolve
(1) If the Secretary receives a transfer notice and any issues relating to the transfer are of concern to the Secretary, then no more than 28 days after receiving the transfer notice the Secretary may issue the transferor and transferee a notice to resolve.
(2) The notice to resolve must:
(a) be in writing; and
(b) specify the issue of concern to the Secretary; and
(c) specify the person who is to resolve the issue; and
(d) specify the action the Secretary requires the person to take to resolve the issue; and
(e) invite the transferee and transferor to make submissions addressing the matters, in writing, to the Secretary within 28 days after receiving the notice or such shorter period as is specified in the notice; and
(f) state that, if any matters specified in that notice remain of concern to the Secretary after the submissions (if any) have been considered, the Secretary may issue a veto notice under section 16‑17.
16‑16 Change to proposed transfer day
(1) A proposed transfer day (the changing proposed transfer day) becomes a later day if one of the following occurs:
(a) the Secretary is given a notice under subsection 16‑13(8) no more than 28 days before the changing proposed transfer day;
(b) the Secretary issues the transferor and transferee a notice to resolve under section 16‑15.
Note: This section may operate multiple times in respect of one transfer.
(2) Subject to subsection (3), the proposed transfer day becomes the 29th day after the changing proposed transfer day.
(3) However, if before the end of the 28th day after the changing proposed transfer day:
(a) the transferor and transferee agree, in writing, to another proposed transfer day that is later than the 29th day after the changing proposed transfer day; and
(b) the Secretary agrees, in writing, to the other proposed transfer day;
the other proposed transfer day becomes the proposed transfer day.
16‑17 Veto notice
(1) If the Secretary receives a transfer notice relating to a *provisionally allocated place, the Secretary may, at least 7 days before the proposed transfer day, give the transferor and transferee a veto notice rejecting the transfer if:
(a) a notice to resolve has been given in respect of the transfer and issues specified in that notice remain of concern to the Secretary; or
(b) the Secretary is not satisfied of the matters in section 16‑14 in relation to the transfer; or
(c) for cases where the transfer would result in residential care in respect of the place being provided through a different residential care service where that residential care service has, or a *distinct part of that service has, *extra service status—neither subsection 16‑18(1) nor (2) applies in relation to the transfer; or
(d) the proposed transfer would result in the place being transferred to another State or Territory; or
(e) circumstances specified in the Allocation Principles exist.
Note: Decisions to give a veto notice are reviewable under Part 6.1.
(2) A veto notice must:
(a) be in writing; and
(b) contain a statement that it is a notice under this section; and
(c) state the reasons for giving the veto notice.
16‑18 Transfer of places to service with extra service status
(1) This subsection applies in relation to a transfer if the Secretary is satisfied that the provisionally allocated places other than the places to be transferred could, after the allocation, form one or more distinct parts of the residential care service.
(2) This subsection applies in relation to a transfer if the Secretary is 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.
16‑19 Transfer day
(1) Subject to this section, a transfer of a *provisionally allocated place to which this Subdivision applies from one person to another takes effect on the transfer day.
(2) The transfer day is the day that is:
(a) the proposed transfer day specified in the transfer notice; or
(b) if another day is, by operation of this Act, the proposed transfer day—that other day.
(3) The transfer of a *place does not occur if a veto notice has been given rejecting the transfer and the notice is in effect on the transfer day.
(4) The transfer of a *place does not occur if the transferee is not an approved provider on the transfer day.
16‑20 Effect of transfer on certain matters
If a transfer of a *provisionally allocated place takes effect under this Subdivision on the transfer day the transferee is taken, from the transfer day, to be the person to whom the place is allocated.
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 17A—Revocation of certain conditions for allocations of places
17A‑1 Revocation of certain conditions for allocations of places
(1) If:
(a) an allocation of *places to a person is subject to conditions under subsection 14‑5(1); and
(b) immediately before the commencement of this section, the effect of such a condition is that *respite care must be provided in respect of those places for a minimum or maximum number of days in a particular period;
the condition is taken to be revoked at the commencement of this section.
(2) Nothing in this section affects the application of Part 7B of the *Quality and Safety Commission Act in relation to an approved provider who failed to comply with a condition of a kind mentioned in paragraph (1)(b) of this section before the commencement of this section.
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 by a notice given under section 63N of the *Quality and Safety Commission Act;
(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:
(a) a sanction has been imposed on a person under section 63N of the *Quality and Safety Commission Act; and
(b) the sanction suspends the allocation of a *place that has taken effect under Division 15 of this Act;
then the allocation does not have effect while the suspension is in effect.
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; or
(iii) *refundable deposit 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 7B of the *Quality and Safety Commission Act.
(5) If an approved provider that is a *corporation fails to comply with subsection (4), the approved provider commits 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 7B of the *Quality and Safety Commission Act.
(2) If an approved provider that is a *corporation fails to comply with this section, the approved provider commits 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
(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 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 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 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 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 of this Act or Chapter 3 of the Aged Care (Transitional Provisions) Act 1997 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 one or more of the following:
(a) residential care (see section 21‑2);
(b) home care (see section 21‑3);
(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 can be met appropriately through 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 residential care.
21‑3 Eligibility to receive home care
A person is eligible to receive home care if:
(a) the person has physical, medical, social or psychological needs that require the provision of care; and
(b) those needs can be met appropriately through home 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, medical, 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.
22‑2A Priority for home care services
(1) If the Secretary approves a person as a recipient of home care, the Secretary must determine the person’s priority for home care services.
Note: The determination is reviewable under Part 6.1.
(2) The Secretary may, at any time, vary a person’s priority for home care services determined under subsection (1), including any priority for home care services varied under this subsection.
Note: The variation is reviewable under Part 6.1.
(3) Any determination of a person’s priority for home care services under this section, including any determination as varied under subsection (2), must be consistent with the care needs of the person.
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) Subject to subsection (2A), 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.
(2A) If the person has applied for approval as a recipient of home care, the assessment must include an assessment of the person’s priority for home care services.
(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));
(ca) if the person is approved as a recipient of home care—the person’s priority for home care services (see section 22‑2A);
(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); or
(c) varies the person’s priority for home care services under subsection 22‑2A(2).
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) in the case of flexible care—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 for flexible care lapses
Care not received within a certain time
(1) A person’s approval as a recipient of flexible care lapses if the person is not provided with the care within:
(a) the entry period specified in the Approval of Care Recipients Principles; or
(b) if no such period is specified—the period of 12 months starting on the day after the approval was given.
(2) Subsection (1) does not apply if the care is specified for the purposes of this subsection in the Approval of Care Recipients Principles.
Person ceases to be provided with care in respect of which approved
(3) A person’s approval as a recipient of flexible care 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.
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 2.3A—Prioritisation of home care recipients
Division 23A—Introduction
23A‑1 What this Part is about
A person must be determined to be a *prioritised home care recipient before an approved provider can be paid *home care subsidy for providing home care to the person.
Division 23B—Prioritised home care recipients
23B‑1 Determination that a person is a prioritised home care recipient
(1) The Secretary may, by written notice given to a person who is approved under Part 2.3 as a recipient of home care, determine:
(a) that the person is a *prioritised home care recipient; and
(b) the person’s level of care as a prioritised home care recipient.
Note: The determined level of care may affect any amount of *home care subsidy payable in respect of the person: see paragraph 48‑2(3)(a).
(2) If the approval of the person as a recipient of home care is limited under subsection 22‑2(3) to one or more levels of care, the level of care determined under paragraph (1)(b) of this section may be different from, but must not be higher than, the highest level of care in relation to which the approval is limited under subsection 22‑2(3).
(3) The determination takes effect on the day the determination is made.
(4) In deciding whether to make a determination under subsection (1) in relation to a person, the Secretary must consider the following:
(a) the period of time since:
(i) the day the person was approved under Part 2.3 as a recipient of home care; or
(ii) if the Prioritised Home Care Recipients Principles specify a later day—that day;
(b) the person’s priority for home care services determined under section 22‑2A;
(c) any other matters specified in the Prioritised Home Care Recipients Principles.
(5) In deciding whether to make a determination under subsection (1) in relation to a person, the Secretary may also consider whether there are exceptional circumstances that justify making the determination.
(6) A determination under subsection (1) not a legislative instrument.
23B‑2 Variation of level of care in relation to which a person is a prioritised home care recipient
(1) The Secretary may, by written notice given to a person who is a *prioritised home care recipient, vary the determination made under subsection 23B‑1(1) in relation to the person to increase the person’s level of care as a prioritised home care recipient.
(2) If the approval of the person as a recipient of home care is limited under subsection 22‑2(3) to one or more levels of care, the level of care as varied under subsection (1) of this section may be different from, but must not be higher than, the highest level of care in relation to which the approval is limited under subsection 22‑2(3).
(3) The variation takes effect on the day the variation is made.
(4) Before deciding to vary a determination under subsection (1), the Secretary must consider the following:
(a) the period of time since:
(i) the day the person was approved under Part 2.3 as a recipient of home care; or
(ii) if the Prioritised Home Care Recipients Principles specify a later day—that day;
(b) the person’s priority for home care services determined under section 22‑2A;
(c) any other matters specified in the Prioritised Home Care Recipients Principles.
(5) Before deciding to vary a determination under subsection (1), the Secretary may also consider whether there are exceptional circumstances that justify varying the determination.
23B‑3 Cessation of determinations
A determination that a person is a *prioritised home care recipient ceases to have effect if:
(a) the person dies; or
(b) the person’s approval as a recipient of home care ceases to have effect; or
(c) the person is not provided with home care within the period specified in the Prioritised Home Care Recipients Principles; or
(d) the person ceases, in the circumstances specified in the Prioritised Home Care Recipients Principles, to be provided with home care.
23B‑4 Use of computer programs to make decisions
(1) The Secretary may arrange for the use, under the Secretary’s control, of computer programs for making decisions on the making or varying of determinations under this Division.
(2) A decision made by the operation of a computer program under an arrangement made under subsection (1) is taken to be a decision made by the Secretary.
(3) The Secretary may substitute a decision for a decision (the initial decision) made by the operation of a computer program under an arrangement under subsection (1) if the Secretary is satisfied that the initial decision is incorrect.
Part 2.4—Classification of care recipients before the transition day
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 on a day before the *transition day.
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?
29A Civil penalty for incorrect classifications
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.
(1A) However, the Secretary is not required to classify the care recipient if the classification would take effect, or would be taken to have had effect, from or on a day that is on or after the *transition day.
(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.
(3A) Without limiting paragraph (3)(c), the Classification Principles may require the Secretary to take into account (including as part of a method or procedure specified for the purposes of subsection (2)) specified matters relating to care provided, or to be provided, to the care recipient, including:
(a) the manner in which the care was, is or is to be provided; or
(b) the qualifications of any person involved in providing the care.
(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.
(1A) However, the appraisal must not be made if the classification of the care recipient that would be made under subsection 25‑1(1) would take effect, or would be taken to have had effect, from or on a day that is on or after the *transition day.
(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.
(5) However, subsection (4) does not apply to the assessment if the classification of the care recipient that would be made under subsection 25‑1(1) would take effect, or would be taken to have had effect, from or on a day that is on or after the *transition day.
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, has not conducted an appraisal or reappraisal in a proper manner; or
(b) both of the following apply:
(i) 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);
(ii) the classification was changed under section 29‑1.
Note 1: Suspensions of approved providers from making assessments are reviewable under Part 6.1.
Note 2: See also section 27‑3 (reappraisal required by Secretary) and Division 29A (civil penalty for incorrect classifications).
(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 to assist the approved provider to conduct, in a proper manner, appraisals and reappraisals of the care needs of care recipients.
(3) If the agreement requires the approved provider to appoint an adviser, the approved provider must appoint the adviser within the period specified in the agreement.
(4) The Classification Principles may exclude a class of persons from being appointed as an adviser.
(5) The Classification Principles may specify matters that the Secretary must take into account in specifying, in the agreement, the period within which an approved provider that is required to appoint an adviser must appoint an adviser.
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(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 under this Part (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 under this Part (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 under this Part 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.
(3) Despite subsections (1) and (2), a classification under this Part has no effect in relation to a day that is on or after the *transition day.
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
False, misleading or inaccurate information
(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;
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.
Note: See also section 25‑4 (suspending approved providers from making appraisals and reappraisals) and Division 29A (civil penalty for incorrect classifications).
(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.
Significant decrease in care needs
(3A) The Secretary may give an approved provider a written notice requiring a reappraisal to be made of the level of care needed by a care recipient if:
(a) the approved provider provides care to the care recipient; and
(b) the Secretary reasonably suspects that the care needs of the care recipient have decreased significantly since the last appraisal under section 25‑3, or reappraisal under section 27‑4, of the level of care needed by the care recipient.
(3B) The Classification Principles may specify the circumstances in which the care needs of a care recipient are taken to decrease significantly.
(3C) The notice must specify a period within which the reappraisal is to be made.
Varying or revoking notice
(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) or (3A). The Secretary may vary a notice more than once.
Authorised reappraisers
(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) or (3A).
(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.
(1A) However, the reappraisal must not be made if the renewal of the classification of the care recipient that would be made under subsection 27‑6(1) would take effect, or would be taken to have had effect, from a day that is on or after the *transition day.
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.
27‑5A Certain expiry date reappraisals must not be made
Despite anything in this Division, a reappraisal must not be made in respect of an *expiry date for a care recipient’s classification if the renewal of the classification that would be made under subsection 27‑6(1) would take effect, or would be taken to have had effect, from a day that is on or after the *transition day.
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.
(1A) However, the Secretary is not required to renew the classification of the care recipient if the renewal would take effect, or would be taken to have had effect, from a day that is on or after the *transition day.
(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 made under this Part 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 under subsection 29‑1(1) is taken to have had effect from the day on which the classification took effect.
Division 29A—Civil penalty for incorrect classifications
29A‑1 Warning notices
(1) The Secretary may notify an approved provider in writing if the Secretary:
(a) reasonably suspects that the approved provider, or a person acting on the approved provider’s behalf, gave false or misleading information in an appraisal or reappraisal connected with a classification reviewed under subsection 29‑1(3); and
(b) changes the classification under section 29‑1.
Note: See also sections 25‑4 (suspending approved providers from making appraisals and reappraisals) and 27‑3 (reappraisal required by Secretary).
(2) The Secretary may also notify an approved provider in writing if:
(a) the approved provider makes 2 or more of any of the following:
(i) an appraisal under section 25‑3;
(ii) a reappraisal under section 27‑4; and
(b) the Secretary changes 2 or more classifications under section 29‑1 because the Secretary is satisfied that the appraisals or reappraisals were incorrect or inaccurate; and
(c) the Secretary is satisfied that the changes, taken together, are significant (see section 29A‑3).
(3) A notice under this section must:
(a) specify the classification or classifications the Secretary changed; and
(b) include a statement that the Secretary suspects the matter mentioned in paragraph (1)(a), or is satisfied of the matter mentioned in paragraph (2)(c), and the Secretary’s reasons for this; and
(c) include a statement of the effect of section 29A‑2.
29A‑2 Civil penalty
(1) An approved provider is liable to a civil penalty if:
(a) the Secretary changes a classification under section 29‑1; and
(b) the change occurs in the following circumstances:
(i) the change occurs within 2 years (the warning period) after the Secretary gives a notice to the approved provider under subsection 29A‑1(1) or (2);
(ii) during the warning period, the approved provider, or a person acting on the approved provider’s behalf, gives false or misleading information in an appraisal under section 25‑3, or reappraisal under section 27‑4, connected with the classification.
Civil penalty: 60 penalty units.
(2) An approved provider is liable to a civil penalty if:
(a) the Secretary changes a classification under section 29‑1; and
(b) the change occurs in the following circumstances:
(i) the change occurs within 2 years (the warning period) after the Secretary gives a notice to the approved provider under subsection 29A‑1(1) or (2);
(ii) during the warning period, the approved provider makes one or more appraisals under section 25‑3 or reappraisals under section 27‑4;
(iii) the Secretary changes the classification as mentioned in paragraph (a) of this subsection because the Secretary is satisfied that any of the appraisals or reappraisals mentioned in subparagraph (ii) of this paragraph was incorrect or inaccurate;
(iv) the Secretary changes one or more other classifications under section 29‑1 during the warning period because the Secretary is satisfied that any of the appraisals or reappraisals mentioned in subsection (ii) of this paragraph was incorrect or inaccurate;
(v) the changes mentioned in subparagraphs (iii) and (iv), taken together, are significant (see section 29A‑3).
Civil penalty: 60 penalty units.
(3) To avoid doubt, the approved provider may be liable to a separate civil penalty under subsection (1) or (2) for each classification the Secretary changes under section 29‑1 during the warning period.
29A‑3 When changes are significant
In determining, for the purposes of paragraph 29A‑1(2)(c) or subparagraph 29A‑2(2)(b)(v), whether changes, taken together, are significant, regard must be had to the following matters:
(a) the number of classifications changed, relative to the number of care recipients to whom the approved provider provides care;
(b) the significance of each change;
(c) the frequency of the incorrect or inaccurate appraisals and reappraisals that led to the changes;
(d) any other matters specified by the Classification Principles.
Part 2.4A—Classification of care recipients on or after the transition day
Division 29B—Introduction
29B‑1 What this Part is about
The Secretary may classify care recipients approved under Part 2.3 for residential care, or for some kinds of flexible care, according to the level of care they need. The classifications affect the amount of *residential care subsidy, or *flexible care subsidy, payable to approved providers for providing that kind of care on or after the *transition day.
Note: Care recipients who are approved under Part 2.3 for home care only are not classified under this Part.
Table of Divisions
29B Introduction
29C How are care recipients classified?
29D How are care recipients reclassified?
29E How are classifications changed?
29B‑2 The Classification Principles
The classification of care recipients under this Part 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 29C—How are care recipients classified?
29C‑1 Application of this Division
This Division applies in relation to the following:
(a) a care recipient who is approved under Part 2.3 for residential care;
(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.
Note: The Classification Principles may exclude a class of care recipients from classification under this Part—see section 29C‑6.
29C‑2 Classification of care recipients
How care recipients may be classified
(1) The Secretary may classify a care recipient for *respite care or *non‑respite care (the relevant kind of care) according to the level of care the care recipient needs, relative to the needs of other care recipients, if:
(a) there is no classification of the care recipient for the relevant kind of care under this Part; or
(b) the Secretary decides to reclassify the care recipient for the relevant kind of care under this Part (see section 29D‑1).
Note: Classifications are reviewable under Part 6.1.
(2) However, the Secretary must not classify the care recipient unless the level of care needed by the care recipient, relative to the needs of other care recipients, has been assessed under section 29C‑3 for the purposes of making the classification.
Requirements for classification
(3) The classification must specify the appropriate *classification level for the care recipient for the relevant kind of care (see section 29C‑5). The Classification Principles may specify methods or procedures that the Secretary must follow in determining the appropriate classification level for the care recipient.
(4) In classifying the care recipient, the Secretary must take into account:
(a) the assessment of the care needs of the care recipient mentioned in subsection (2); and
(b) any other matters specified in the Classification Principles.
Notice of classification
(5) The Secretary must notify the care recipient, and any approved provider that is providing care to the care recipient, of the following in writing:
(a) whether the classification is for *respite care or *non‑respite care;
(b) the classification of the care recipient;
(c) the day the classification takes effect;
(d) if the classification of the care recipient is a reclassification (see section 29D‑1)—that it is a reclassification.
When classification takes effect
(6) The classification takes effect on the day specified in the Classification Principles.
(7) For the purposes of subsection (6), the Classification Principles may specify a day before the classification was made, so long as the day is not before the commencement of this Part.
29C‑3 Secretary may assess care recipient
(1) If a care recipient is being provided, or was provided, with *respite care or *non‑respite care (the relevant kind of care), the Secretary may assess the level of care needed by the care recipient, relative to the needs of other care recipients, for the following purposes:
(a) classifying (including reclassifying) the care recipient under this Part for the relevant kind of care;
(b) deciding whether to reclassify the care recipient under this Part for the relevant kind of care (see section 29D‑1);
(c) reconsidering, under section 85‑4 or 85‑5, a decision made under subsection 29C‑2(1), 29D‑1(1) or 29E‑1(1).
(2) The Classification Principles may specify:
(a) where the Secretary may or must make the assessment; and
(b) the procedures that the Secretary must follow in making the assessment.
(3) If the approval of a care recipient under Part 2.3 covers the provision of *respite care and the circumstances specified in the Classification Principles apply:
(a) an assessment of the care recipient’s care needs made under section 22‑4 for the purposes of the approval is taken to be an assessment of the level of care needed by the care recipient under this section; and
(b) the assessment is taken to have been made for the purposes of classifying (or reclassifying) the care recipient under this Part for respite care.
29C‑4 Care recipients may have classifications for both respite and non‑respite care
A classification of a care recipient under this Part for *respite care, and a classification of the care recipient under this Part for *non‑respite care, may both be in effect at the same time.
29C‑5 Classification levels
(1) The Classification Principles may set out the *classification levels for classifications of care recipients under this Part.
(2) Without limiting subsection (1), the Classification Principles may set out different *classification levels for classifications for *respite care and classifications for *non‑respite care.
(3) The Classification Principles may specify the criteria, in respect of each *classification level, for determining which level applies to a care recipient.
29C‑6 Exclusion of classes of care recipients
(1) 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.
(2) A classification of a care recipient under this Part does not cease merely because, under subsection (1), the care recipient becomes excluded from classification under this Part.
29C‑7 Classifications of persons who cease to be care recipients
(1) A classification of a person under this Part is not in effect if the person has ceased to be a care recipient in relation to whom this Division applies (see section 29C‑1).
(2) However, if the person becomes such a care recipient again at a time, the classification continues from that time.
29C‑8 Use of computer programs to make decisions
(1) The Secretary may arrange for the use, under the Secretary’s control, of computer programs for making decisions on the classification of care recipients under section 29C‑2.
(2) A decision made by the operation of a computer program under such an arrangement is taken to be a decision made by the Secretary.
(3) The Secretary may, under section 29C‑2, substitute a decision for a decision the Secretary is taken to have made under subsection (2) if the Secretary is satisfied that the decision made by the operation of the computer program is incorrect.
(4) Subsection (3) does not limit any other provision of this Act that provides for the review or reconsideration of a decision.
Division 29D—How are care recipients reclassified?
29D‑1 Reclassification of care recipients
(1) The Secretary may reclassify a care recipient under section 29C‑2 for *respite care or *non‑respite care if the care recipient, or an approved provider that is providing that kind of care to the care recipient, requests that the Secretary reclassify the care recipient.
Note: A decision not to reclassify a care recipient is reviewable under Part 6.1.
(1A) The request must:
(a) if made by the approved provider—be made in writing; and
(b) if made by the care recipient—be made orally or in writing; and
(c) be accompanied by the application fee (if any) specified in, or worked out in accordance with, the Classification Principles.
(1B) The amount of the fee must not be such as to amount to taxation.
(2) The Secretary must not reclassify the care recipient unless the Secretary is satisfied that the care needs of the care recipient have changed significantly.
Note: The Secretary may assess the care needs of the care recipient for the purposes of deciding whether to reclassify the care recipient—see paragraph 29C‑3(1)(b).
(3) For the purposes of subsection (2), the Classification Principles may specify the circumstances in which the care needs of the care recipient are taken to have changed significantly.
(4) If the Secretary decides not to reclassify the care recipient, the Secretary must notify the care recipient and the approved provider of the decision in writing.
Note: For notice requirements if the Secretary decides to reclassify the care recipient, see subsection 29C‑2(5).
Division 29E—How are classifications changed?
29E‑1 Changing classifications
(1) The Secretary must change a classification of a care recipient under this Part if the Secretary is satisfied that:
(a) the assessment of the level of care needed by the care recipient, relative to the needs of other care recipients, that was made for the purposes of the classification (see section 29C‑3) was incorrect or inaccurate; or
(b) the classification was, for any other reason, incorrect.
Note: Changes of classifications are reviewable under Part 6.1.
(2) The classification cannot be changed under this section in any other circumstances.
Note: The Secretary may reclassify the care recipient in certain circumstances—see section 29D‑1.
(3) Before changing the classification, 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:
(a) the change takes effect on the same day that the classification took effect (see subsection 29C‑2(6)); and
(b) the Secretary must notify the care recipient, and any approved provider that is providing care to the care recipient, in writing, of the change.
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.
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
(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. An individual resident’s room might also constitute a “distinct part” of the service.
(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, transfer or variation of places to services with extra service status
(1) If:
(a) *places are allocated or transferred to a service that has *extra service status, or a *distinct part of which has extra service status; and
(b) the allocation or transfer was in accordance with subsection 14‑7(2) or Division 16;
the allocated or transferred places are taken, for the purposes of this Part, not to have extra service status.
(1A) If:
(a) the Secretary varies a *provisional allocation of *places as mentioned in paragraph 15‑5(2)(c); and
(b) as a result of the variation, care in respect of the places would be provided through a residential care service in a different *region; and
(c) the variation was in accordance with subsection 15‑5A(2);
the provisionally allocated 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 (an extra service fees 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.
(2A) If the application includes an extra service fees application as mentioned in paragraph (2)(f), the Secretary must give the extra service fees application to the *Pricing Authority.
(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 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—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 7B of the *Quality and Safety Commission Act.
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.
(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 before the day on which the notice is given. The day may be specified by reference to conditions that must be satisfied in order for extra service status to become effective.
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 by a notice given under section 63N of the *Quality and Safety Commission Act;
(d) the residential care service does not meet its *accreditation requirement (if any) at that time;
(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 approved provider of the service ceases to have effect under section 63G of the *Quality and Safety Commission Act.
(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 7B of the *Quality and Safety Commission Act.
(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 *Pricing Authority, 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 *Pricing Authority 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 Pricing Authority is satisfied that any requirements specified in the Extra Service Principles in relation to standards 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 Pricing Authority.
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 *Pricing Authority, 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 *Pricing Authority must not approve a nil amount as the extra service fee for a *place.
(2) The *Pricing Authority 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 *Pricing Authority 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 *Pricing Authority 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 decision
The *Pricing Authority must notify each of the following, in writing, of the Pricing Authority’s decision on the application:
(a) the applicant;
(b) the Secretary.
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(g), an approved provider has a responsibility to comply with this Division. A failure to comply may lead to sanctions being imposed under Part 7B of the *Quality and Safety Commission Act.
Chapter 3—Subsidies
Division 40—Introduction
40‑1 What this Chapter is about
The Commonwealth pays *subsidies under this Chapter 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). For example, an approved provider can only receive subsidy for providing residential care or flexible care in respect of which a *place has been allocated. 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 Subsidy Principles
*Residential care subsidy is also dealt with in the Subsidy Principles. Provisions in this Part indicate when a particular matter is or may be dealt with in these Principles.
Note: The 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 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 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 subsection (3), 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.
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).
(4) Despite any other provision of this Act, an approved provider operating a residential care service is not eligible for *residential care subsidy for a care recipient in respect of a day if the care recipient is on *pre‑entry leave from that service on that day.
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 63Q of the *Quality and Safety Commission Act, 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
(ba) the care recipient is not on leave under subsection (3B) on that day; 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 52C‑5.
(3AA) For the purposes of paragraph (3)(c), disregard days on which the care recipient is on *pre‑entry leave from the residential care service.
(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 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).
(3B) A care recipient is on *leave under this section from a residential care service (the affected service) on a day if:
(a) during the whole of that day, the care recipient is absent from the affected 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 affected service; and
(c) the Minister determines under subsection 42‑2A(1) that there is a situation of emergency for that day for the affected service or a class of residential care services that includes the affected service.
(4) Despite subsections (2), (3), (3A) and (3B), 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.
42‑2A Determining situations of emergency to enable additional leave
(1) The Minister may determine in writing that there is a situation of emergency for a specified day for a residential care service, or a class of residential care services, if the Minister is satisfied that an emergency is affecting or has affected:
(a) the service or services for that day; or
(b) the community in which the service or services are located for that day.
Note: An emergency affecting a residential care service or community may include a disaster (whether natural or otherwise), an epidemic or a pandemic.
(2) For the purposes of subsection (1):
(a) a class of residential care services may include all residential care services in Australia; and
(b) a day for which a situation of emergency is determined may be a day that is before, on or after the day the determination is made.
(3) A determination made under subsection (1) for a class of residential care services is a legislative instrument.
(4) A determination made under subsection (1) for a particular residential care service is not a legislative instrument, but must be published on the Department’s website.
(5) The Minister may, in writing, delegate to the Secretary the power to make a determination under subsection (1). In exercising the power, the Secretary must comply with any directions of the Minister.
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 (the pre‑entry 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 Subsidy Principles, before the day on which the person *enters the residential care service;
and ending at the end of the day before the day the person enters the residential care service.
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 the *Quality and Safety Commissioner; 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 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 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 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).
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 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 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 Subsidy Principles apply.
The proportion is to be worked out in accordance with the Subsidy Principles.
(4) The agreement must provide for the deductions to be completed within 3 years after the making of the first deduction.
(5) In this section:
capital payment means:
(a) a *residential care grant; or
(b) a payment of a kind specified in the Subsidy Principles.
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‑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. 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 care recipient for a 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.
(3) The Minister may determine different amounts (including nil amounts) based on any one or more of the following:
(aa) the kind of residential care service through which residential care is provided to a care recipient;
(ab) whether a care recipient provided with residential care has been classified under Part 2.4A;
(a) the *classification levels for care recipients who have been classified under Part 2.4A;
(b) whether the residential care being provided is *respite care;
(ca) whether a care recipient is on *extended hospital leave;
(e) any other matters specified in the Subsidy Principles;
(f) any other matters determined by the Minister.
(4) The Minister may make provision for, or in relation to, a matter by conferring a power on the Secretary.
Subdivision 44‑C—Primary supplements
44‑5 Primary supplements
(1) The primary supplements for the care recipient are such of the following primary supplements as apply to the care recipient in respect of the *payment period:
(a) the following primary supplements as set out in the Subsidy Principles:
(i) the respite supplement;
(ii) the oxygen supplement;
(iii) the enteral feeding supplement;
(b) any other primary supplement set out in the Subsidy Principles for the purposes of this paragraph.
(2) The Subsidy Principles may specify, in respect of each primary 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:
(b) the compensation payment reduction (see sections 44‑20 and 44‑20A);
(c) the care subsidy reduction (see sections 44‑21 and 44‑23).
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 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 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 a *refundable deposit, except to the extent provided in the 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. |
44‑20A Secretary’s powers if compensation information is not given
(1) This section applies if:
(a) the Secretary believes on reasonable grounds that a care recipient is entitled to compensation under a judgement, settlement or reimbursement arrangement; and
(b) the Secretary does not have sufficient information to apply section 44‑20 in relation to the compensation.
(2) The Secretary may, by notice in writing given to a person, require the person to give information or produce a document that is in the person’s custody, or under the person’s control, if the Secretary believes on reasonable grounds that the information or document may be relevant to the application of section 44‑20 in relation to the compensation.
(3) The notice must specify:
(a) how the person is to give the information or produce the document; and
(b) the period within which the person is to give the information or produce the document; and
(c) the effect of subsection (4).
Note: Sections 28A and 29 of the Acts Interpretation Act 1901 (which deal with service of documents) apply to notice given under this section.
(4) If the information or document is not given or produced within the specified period, the Secretary may determine compensation payment reductions for the care recipient.
Note: Decisions to determine compensation payment reductions under this section are reviewable under Part 6.1.
(5) The compensation payment reductions must be determined in accordance with the Subsidy Principles.
44‑21 The care subsidy reduction
(1) The care subsidy reduction for the care recipient in respect of the *payment period is the sum of all the care subsidy reductions for days during the period on which the care recipient is provided with residential care through the residential care service in question.
(2) Subject to this section and section 44‑23, the care subsidy reduction for a particular day is worked out as follows:
Care subsidy reduction calculator
Step 1. Work out the means tested amount for the care recipient (see section 44‑22).
Step 2. Subtract the maximum accommodation supplement amount for the day (see subsection (6)) from the means tested amount.
Step 3. If the amount worked out under step 2 does not exceed zero, the care subsidy reduction is zero.
Step 4. If the amount worked out under step 2 exceeds zero but not the sum of the following, the care subsidy reduction is the amount worked out under step 2:
(a) the adjusted basic subsidy amount for the care recipient for the day (see subsection (6A));
(b) any primary supplement amounts for the care recipient for the day.
Step 5. If the amount worked out under step 2 exceeds the sum of the following, the care subsidy reduction is that sum:
(a) the adjusted basic subsidy amount for the care recipient for the day (see subsection (6A));
(b) any primary supplement amounts for the care recipient for the day.
(3) If the care recipient has not provided sufficient information about the care recipient’s income and assets for the care recipient’s means tested amount to be determined, the care subsidy reduction for a day is the sum of the following amounts:
(a) the adjusted basic subsidy amount for the care recipient for the day (see subsection (6A));
(b) any primary supplement amounts for the care recipient for the day.
(4) If, apart from this subsection, the sum of all the *combined care subsidy reductions made for the care recipient during a *start‑date year for the care recipient would exceed the annual cap applying at the time for the care recipient, the care subsidy reduction for the remainder of the start‑date year is zero.
(5) If, apart from this subsection, the sum of all the previous *combined care subsidy reductions made for the care recipient would exceed the lifetime cap applying at the time, the care subsidy reduction for the remainder of the care recipient’s life is zero.
(6) The maximum accommodation supplement amount for a day is the highest of the amounts determined by the Minister by legislative instrument as the amounts of accommodation supplement payable for residential care services for that day.
(6A) The adjusted basic subsidy amount for a care recipient for a day is an 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 annual cap is the amount determined by the Minister by legislative instrument.
(8) The lifetime cap is the amount determined by the Minister by legislative instrument.
44‑22 Working out the means tested amount
(1) The means tested amount for the care recipient is worked out as follows:
Means tested amount calculator
Work out the income tested amount using steps 1 to 4:
Step 1. Work out the care recipient’s *total assessable income on a yearly basis using section 44‑24.
Step 2. Work out the care recipient’s *total assessable income free area using 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 amount is zero.
Step 4. If the care recipient’s *total assessable income exceeds the care recipient’s total assessable income free area, the income tested amount is 50% of that excess divided by 364.
Work out the per day asset tested amount using steps 5 to 10:
Step 5. Work out the value of the care recipient’s assets using section 44‑26A.
Step 6. If the value of the care recipient’s assets does not exceed the asset free area, the asset tested amount is zero.
Step 7. If the value of the care recipient’s assets exceeds the asset free area but not the first asset threshold, the asset tested amount is 17.5% of the excess.
Step 8. If the value of the care recipient’s assets exceeds the first asset threshold but not the second asset threshold, the asset tested amount is the sum of the following:
(a) 1% of the excess;
(b) 17.5% of the difference between the asset free area and the first asset threshold.
Step 9. If the value of the care recipient’s assets exceeds the second asset threshold, the asset tested amount is the sum of the following:
(a) 2% of the excess;
(b) 1% of the difference between the first asset threshold and the second asset threshold;
(c) 17.5% of the difference between the asset free area and the first asset threshold.
Step 10. The per day asset tested amount is the asset tested amount divided by 364.
The means tested amount is the sum of the income tested amount and the per day asset tested amount.
(2) The asset free area is:
(a) the amount equal to 2.25 times the *basic age pension amount; or
(b) such other amount as is calculated in accordance with the Subsidy Principles.
(3) The first asset threshold and the second asset threshold are the amounts determined by the Minister by legislative instrument.
44‑23 Care subsidy reduction taken to be zero in some circumstances
(1) The care subsidy 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 Subsidy Principles.
(2) The Secretary may, in accordance with the Subsidy Principles, determine that the care subsidy 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 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.
44‑24 The care recipient’s total assessable income
(1) If the care recipient is not entitled to an *income support payment, his or her total assessable income is the amount the Secretary determines to be the amount that would be worked out as the care recipient’s ordinary income for the purpose of applying Module E of Pension Rate Calculator A at the end of section 1064 of the Social Security Act 1991.
Note: Determinations are reviewable under Part 6.1.
(2) If the care recipient is entitled to a *service pension, his or her total assessable income is the sum of:
(a) the amount of the care recipient’s service pension reduced by the amount worked out under subsection 5GA(3) of the Veterans’ Entitlements Act 1986 to be the care recipient’s minimum pension supplement amount; and
(b) the amount the Secretary determines to be the amount that would be worked out as the care recipient’s ordinary/adjusted income for the purpose of applying Module E of the Rate Calculator in Schedule 6 to the Veterans’ Entitlements Act 1986.
Note: Determinations are reviewable under Part 6.1.
(3) If the care recipient is entitled to an *income support supplement, his or her total assessable income is the sum of:
(a) the amount of the care recipient’s income support supplement reduced by the amount worked out under subsection 5GA(3) of the Veterans’ Entitlements Act 1986 to be the care recipient’s minimum pension supplement amount; and
(b) the amount the Secretary determines to be the amount that would be worked out as the care recipient’s ordinary/adjusted income for the purpose of applying Module E of the Rate Calculator in Schedule 6 to the Veterans’ Entitlements Act 1986.
Note: Determinations are reviewable under Part 6.1.
(3A) If the care recipient is entitled to a *veteran payment, his or her total assessable income is the sum of:
(a) the amount of the care recipient’s veteran payment reduced by the amount worked out under subsection 5GA(3) of the Veterans’ Entitlements Act 1986 to be the care recipient’s minimum pension supplement amount; and
(b) the amount the Secretary determines to be the amount that would be worked out as the care recipient’s ordinary/adjusted income for the purpose of applying Module E of the Rate Calculator in Schedule 6 to the Veterans’ Entitlements Act 1986.
Note: Determinations are reviewable under Part 6.1.
(4) If the care recipient is entitled to an *income support payment (other than a *service pension, an *income support supplement or a *veteran payment), his or her total assessable income is the sum of:
(a) the amount of the care recipient’s income support payment reduced by, if the payment is an income support payment within the meaning of subsection 23(1) of the Social Security Act 1991, the amount worked out under subsection 20A(4) of that Act to be the care recipient’s minimum pension supplement amount; and
(b) the amount the Secretary determines to be the amount that would be worked out as the care recipient’s ordinary income for the purpose of applying Module E of Pension Rate Calculator A at the end of section 1064 of the Social Security Act 1991.
Note: Determinations are reviewable under Part 6.1.
(4A) However, the reduction referred to in paragraph (4)(a) does not apply if:
(a) the care recipient’s income support payment is special benefit or youth allowance under the Social Security Act 1991; or
(b) the care recipient has not reached pension age (within the meaning of subsections 23(5A), (5B), (5C) and (5D) of that Act) and the rate of the care recipient’s income support payment is worked out in accordance with the Rate Calculator at the end of section 1066A, 1067L, 1068, 1068A or 1068B of that Act.
(5) The Subsidy Principles may specify amounts that are to be taken, in relation to specified kinds of care recipients, to be excluded from determinations under subsection (1) or paragraph (2)(b), (3)(b), (3A)(b) or (4)(b).
(6) For the purpose of making a determination under subsection (1) or paragraph (4)(b) of the amount that would be worked out as the care recipient’s ordinary income for the purpose referred to in that subsection or paragraph, the relevant provisions of the Social Security Act 1991 apply as if:
(a) paragraph 8(8)(zc) of that Act were omitted; and
(b) section 1176 of that Act were omitted; and
(c) any other provision of the social security law (within the meaning of the Social Security Act 1991) were omitted:
(i) that has the direct or indirect effect of excluding an amount from a person’s ordinary income (within the meaning of that Act); and
(ii) that is specified in the Subsidy Principles.
Note: The effect of this subsection is that certain amounts that would not be included when working out a person’s ordinary income under the Social Security Act 1991 will be included for the purposes of working out a care recipient’s total assessable income under this section.
(7) For the purpose of making a determination under paragraph (2)(b), (3)(b) or (3A)(b) of the amount that would be worked out as the care recipient’s ordinary/adjusted income for the purpose referred to in the relevant paragraph, the relevant provisions of the Veterans’ Entitlements Act 1986 apply as if:
(a) section 59X of that Act were omitted; and
(b) any other provision of the Veterans’ Entitlements Act 1986 were omitted:
(i) that has the direct or indirect effect of excluding an amount from a person’s ordinary/adjusted income (within the meaning of that Act); and
(ii) that is specified in the Subsidy Principles.
Note: The effect of this subsection is that certain amounts that would not be included when working out a person’s ordinary/adjusted income under the Veterans’ Entitlements Act 1986 will be included for the purposes of working out a care recipient’s total assessable income under this section.
(8) The Secretary may, by notice in writing, request one or more of the following:
(a) the care recipient;
(b) a person acting for or on behalf of the care recipient;
(c) any other person whom the Secretary believes has information that would assist the Secretary in making the determination;
to give, within the period specified in the notice, to the Secretary such information as is specified in the notice for the purposes of making the determination.
Note: A person is not obliged to provide the information.
(9) A determination under subsection (1) or paragraph (2)(b), (3)(b), (3A)(b) or (4)(b) takes effect on the day specified by the Secretary. The day may be earlier than the day on which the determination is made.
(10) The Secretary must notify, in writing, the care recipient of any determination under subsection (1) or paragraph (2)(b), (3)(b), (3A)(b) or (4)(b).
(11) The notice must include such matters as are specified in the Subsidy Principles.
(12) A determination made under subsection (1) or paragraph (2)(b), (3)(b), (3A)(b) or (4)(b) is not a legislative instrument.
44‑26 The care recipient’s total assessable income free area
The total assessable income free area for a care recipient is the sum of:
(a) the amount worked out by applying point 1064‑B1 of Pension Rate Calculator A at the end of section 1064 of the Social Security Act 1991; and
(b) the amount worked out under point 1064‑BA4 of Pension Rate Calculator A at the end of section 1064 of the Social Security Act 1991; and
(c) the amount worked out by applying point 1064‑E4 of Pension Rate Calculator A at the end of section 1064 of the Social Security Act 1991.
44‑26A The value of a person’s assets
(1) Subject to this section, the value of a person’s assets for the purposes of section 44‑22 is to be worked out in accordance with the Subsidy Principles.
(2) If a person who is receiving a *service pension, an *income support supplement or a *veteran payment 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.
(3) If a person who is not receiving a *service pension, an *income support supplement or a *veteran payment 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.
(4) 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 a *service pension, an *income support supplement or a *veteran payment—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.
(5) If a person has paid a *refundable deposit, the value of the person’s assets is taken to include the amount of the *refundable deposit balance.
(6) In working out the value at a particular time of the assets of a person who is or was a *homeowner, 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.
(7) In working out the value at a particular time of the assets of a person who is or was a *homeowner, disregard the value of a home to the extent that it exceeded the *maximum home value in force at that time.
(8) 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.
(9) 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.
(10) A determination under paragraph (2)(a), (2)(b), (3)(a) or (3)(b) or subsection (4) is not a legislative instrument.
44‑26B Definitions relating to the value of a person’s assets
(1) In section 44‑26A, and in this section:
child: without limiting who is a child of a person for the purposes of this section and section 44‑26A, 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 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 Subsidy Principles.
Note: See also subsection (5).
dependent child has the meaning given by subsection (2).
homeowner has the meaning given by the Subsidy Principles.
maximum home value means the amount determined by the Minister by legislative instrument.
member of a couple means:
(a) a person who is legally married to another person, and is not living separately and apart from the person on a permanent basis; or
(b) a person 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
(c) 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 section 44‑26A, 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 (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
(b) 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 Subsidy Principles; and
(c) 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 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 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.
44‑26C 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 44‑26A, 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 1: Determinations are reviewable under Part 6.1.
Note 2: An application can be made under this section for the purposes of section 52J‑5: see subsection 52J‑5(3).
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).
Note: Revocations of determinations are reviewable under Part 6.1.
(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.
Subdivision 44‑F—Other supplements
44‑27 Other supplements
(1) The other supplements for the care recipient under step 4 of the residential care subsidy calculator in section 44‑2 are such of the following supplements as apply to the care recipient in respect of the *payment period:
(a) the accommodation supplement (see section 44‑28);
(b) the hardship supplement (see section 44‑30);
(c) any other supplement set out in the Subsidy Principles for the purposes of this paragraph.
(2) The Subsidy Principles may specify, in respect of each other supplement set out for the purposes of paragraph (1)(c), 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.
44‑28 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 accommodation supplement.
(2) The care recipient is eligible for *accommodation supplement on a particular day if:
(a) on that day the residential care provided to the care recipient is not provided on an extra service basis; and
(b) on the day (the entry day) on which the care recipient entered the residential care service, the care recipient’s means tested amount was less than the maximum accommodation supplement amount for the entry day.
(3) The care recipient is also eligible for *accommodation supplement on a particular day if, on that day, a *financial hardship determination under section 52K‑1 is in force for the person.
(4) 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.
(5) The Minister may determine different amounts (including nil amounts) or methods based on any one or more of the following:
(a) the income of a care recipient;
(b) the value of assets held by a care recipient;
(c) the status of the building in which the residential care service is provided;
(d) any other matter specified in the Subsidy Principles.
44‑30 The hardship supplement
(1) The hardship supplement for the care recipient in respect of the *payment period is the sum of all the hardship supplements for the days during the period on which:
(a) the care recipient was provided with residential care through the residential care service in question; and
(b) the care recipient was eligible for a hardship supplement.
(2) The care recipient is eligible for a hardship supplement on a particular day if:
(a) the Subsidy Principles specify one or more classes of care recipients to be care recipients for whom paying a daily amount of resident fees of more than the amount specified in the Principles would cause financial hardship; and
(b) on that day, the care recipient is included in such a class.
The specified amount may be nil.
(3) The care recipient is also eligible for a hardship supplement on a particular day if a determination is in force under section 44‑31 in relation to the care recipient.
(5) The hardship 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.
(6) The Minister may determine different amounts (including nil amounts) or methods based on any matters determined by the Minister by legislative instrument.
44‑31 Determining cases of financial hardship
(1) The Secretary may, in accordance with the Subsidy Principles, determine that the care recipient is eligible for a hardship supplement if the Secretary is satisfied that paying a daily amount of resident fees of more than the amount specified in the determination would cause the care recipient financial hardship.
Note: Refusals to make determinations are reviewable under Part 6.1.
(2) In deciding whether to make a determination under this section, and in determining the specified amount, the Secretary must have regard to the matters (if any) specified in the Subsidy Principles. The specified amount may be nil.
(3) A determination under this section ceases to be in force at the end of a specified period, or on the occurrence of a specified event, if the determination so provides.
Note: Decisions to specify periods or events are reviewable under Part 6.1.
(4) Application may be made to the Secretary, in the form approved by the Secretary, for a determination under this section. The application may be made by:
(a) the care recipient; or
(b) an approved provider who is providing, or is to provide, residential care to the care recipient.
(5) If the Secretary needs further information to determine the application, the Secretary may give to the applicant a notice requesting the applicant to give the further information:
(a) within 28 days after receiving the notice; or
(b) within such other period as is specified in the notice.
(6) The application is taken to have been withdrawn if the information is not given within whichever of those periods applies. The notice must contain a statement setting out the effect of this subsection.
Note: The period for giving the further information can be extended—see section 96‑7.
(7) The Secretary must notify the care recipient and the approved provider, in writing, of the Secretary’s decision on whether to make the determination. The notice must be given:
(a) within 28 days after receiving the application; or
(b) if the Secretary has requested further information under subsection (5)—within 28 days after receiving the information.
(8) If the Secretary makes the determination, the notice must set out:
(a) any period at the end of which; or
(b) any event on the occurrence of which;
the determination will cease to be in force.
(9) A determination under subsection (1) is not a legislative instrument.
44‑32 Revoking determinations of financial hardship
(1) The Secretary may, in accordance with the Subsidy Principles, revoke a determination under section 44‑31.
Note: Revocations of determinations are reviewable under Part 6.1.
(2) Before deciding to revoke the determination, the Secretary must notify the care recipient and the approved provider concerned that revocation is being considered.
(3) The notice must be in writing and must:
(a) invite the care recipient and the approved provider to make submissions, in writing, to the Secretary within 28 days after receiving the notice; and
(b) inform them that if no submissions are made within that period, the revocation takes effect on the day after the last day for making submissions.
(4) In making the decision whether to revoke the determination, the Secretary must consider any submissions received within the period for making submissions. The Secretary must make the decision within 28 days after the end of that period.
(5) The Secretary must notify, in writing, the care recipient and the approved provider of the decision.
(6) The notice must be given to the care recipient and the approved provider within 28 days after the end of the period for making submissions.
(7) If the notice is not given within that period, the Secretary is taken to have decided not to revoke the determination.
(8) A revocation has effect:
(a) if the care recipient and the approved provider received notice under subsection (5) on the same day—the day after that day; or
(b) if they received the notice on different days—the day after the later of those days.
Part 3.2—Home care subsidy
Division 45—Introduction
45‑1 What this Part is about
The *home care subsidy is a payment by the Commonwealth to approved providers for providing home care to care recipients. However, any *unspent home care amount (which may include home care subsidy) of a care recipient must be dealt with by an approved provider in accordance with the User Rights Principles.
Table of Divisions
45 Introduction
46 Who is eligible for home care subsidy?
47 On what basis is home care subsidy paid?
48 What is the amount of home care subsidy?
45‑2 The Subsidy Principles
*Home care subsidy is also dealt with in the Subsidy Principles. Provisions of this Part indicate when a particular matter is or may be dealt with in these Principles.
Note: The Subsidy Principles are made by the Minister under section 96‑1.
45‑3 Meaning of home care
(1) Home care is care consisting of a package of personal care services and other personal assistance provided to a person who is not being provided with residential care.
(2) The Subsidy Principles may specify care that:
(a) constitutes home care for the purposes of this Act; or
(b) does not constitute home care for the purposes of this Act.
Division 46—Who is eligible for home care subsidy?
46‑1 Eligibility for home care subsidy
(1) An approved provider is eligible for *home care subsidy in respect of a day if the Secretary is satisfied that:
(a) the approval of the approved provider is in respect of home care; and
(b) on that day there is in force a *home care agreement under which a care recipient approved under Part 2.3 in respect of home care is to be provided with home care by the approved provider through a home care service; and
(c) the home care service is a notified home care service; and
(d) the care recipient is a *prioritised home care recipient; and
(e) on that day the approved provider provides the care recipient with such home care (if any) as is required under the home care agreement; and
(f) the approved provider has agreed in the claim relating to the day to deal with the care recipient’s *unspent home care amount in accordance with the User Rights Principles.
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 home care).
(2) For the purposes of paragraph (1)(c), a home care service is a notified home care service if the approved provider has notified the Secretary of the information required by section 9‑1A in relation to the home care service.
46‑2 Suspension of home care services
(1) A care recipient who is being provided with home care by an approved provider in accordance with a *home care agreement may request the approved provider to suspend, on a temporary basis, the provision of that home care, commencing on a date specified in the request.
(2) The approved provider must comply with the request.
(3) The Subsidy Principles may specify requirements relating to the suspension, on a temporary basis, of home care.
46‑4 Notice of refusal to pay home care subsidy
(1) If:
(a) an approved provider has claimed *home care subsidy in respect of a person; and
(b) the approved provider is not eligible for home care subsidy in respect of that person;
the Secretary must, within 28 days after receiving the claim, notify the approved provider in writing accordingly.
(2) A notice given under subsection (1) is not a legislative instrument.
Division 47—On what basis is home care subsidy paid?
47‑1 Payability of home care subsidy
(1) *Home care subsidy is payable by the Commonwealth to an approved provider in respect of each *payment period (see section 47‑2) during which the approved provider is eligible under section 46‑1.
(1A) However, *home care subsidy is not payable:
(a) in respect of any days during a *payment period on which the approved provider is not eligible; or
(b) in respect of a payment period if the approved provider has not given to the Secretary under section 47‑4:
(i) a claim in respect of the payment period; and
(ii) a claim in respect of each preceding payment period (if any) ending on or after the first day on which the approved provider is eligible under section 46‑1.
(2) *Home care subsidy is separately payable by the Commonwealth in respect of each home care service through which an approved provider provides home care.
47‑2 Meaning of payment period
A payment period is:
(a) a calendar month; or
(b) such other period as is set out in the Subsidy Principles.
47‑4 Claims for home care subsidy
For the purpose of obtaining payment of *home care subsidy in respect of a home care service through which an approved provider provides home 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 home care subsidy that is, or may become, payable in respect of the service for that payment period; and
(b) any information relating to the claim that is stated in the form to be required, or that the Secretary requests.
47‑4A Variations of claims for home care subsidy
(1) An approved provider may vary the claim made in respect of a *payment period within:
(a) either:
(i) the period specified in the Subsidy Principles; or
(ii) if no such period is specified—2 years after the end of that payment period; or
(b) such longer period as is determined in respect of the claim by the Secretary.
(1A) Without limiting subparagraph (1)(a)(i), the Subsidy Principles may specify different periods in respect of different classes of variations.
(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.
47‑5 Recovery of overpayments
This Division does not affect the Commonwealth’s right to recover overpayments under Part 6.5.
Division 48—What is the amount of home care subsidy?
Subdivision A—Amount of home care subsidy
48‑1 Amount of home care subsidy
(1) The amount of *home care subsidy payable to an approved provider for a home care service in respect of a *payment period is the amount worked out by adding together the amounts of home care subsidy for each care recipient:
(a) in respect of whom there is in force a *home care agreement for provision of home care provided through the service during the period; and
(b) in respect of whom the approved provider was eligible for home care subsidy during the period.
(2) The amount of *home care subsidy for a care recipient in respect of the *payment period is worked out as follows:
Home care subsidy calculator
Step 1. Work out the Commonwealth contribution amount using section 48‑1A.
Step 2. Work out the shortfall amount using section 48‑13.
Step 3. If subsection (3) does not apply, work out, using section 48‑17, the home care account balance in the care recipient’s *home care account immediately before the approved provider gives to the Secretary, under section 47‑4, a claim in respect of the *payment period.
Step 4. Identify:
(a) if subsection (3) applies—the Commonwealth contribution amount; or
(b) otherwise—the sum of the Commonwealth contribution amount and the home care account balance.
This is the maximum contribution amount.
Step 5. Identify the lesser of the following amounts (or either amount if they are the same):
(a) the shortfall amount;
(b) the maximum contribution amount.
This is the amount of home care subsidy for the care recipient in respect of the *payment period.
(3) This subsection applies if:
(a) within the period specified in the Subsidy Principles before the day the approved provider gives to the Secretary, under section 47‑4, the claim in respect of the *payment period, another approved provider ceases to provide home care to the care recipient; or
(b) any other circumstances specified in the Subsidy Principles apply.
Subdivision B—Commonwealth contribution amount
48‑1A Commonwealth contribution amount
The Commonwealth contribution amount for the care recipient in respect of the *payment period is worked out as follows:
Commonwealth contribution amount calculator
Step 1. Work out the basic subsidy amount using section 48‑2.
Step 2. Add to this amount the amounts of any primary supplements worked out using section 48‑3.
Step 3. Subtract the amounts of any reductions in subsidy worked out using section 48‑4.
Step 4. Add the amounts of any other supplements worked out using section 48‑9.
The result is the Commonwealth contribution amount for the care recipient in respect of the *payment period.
48‑2 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 home care through the home 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 levels for care recipients being provided with home care;
(b) any other matters specified in the Subsidy Principles;
(c) any other matters determined by the Minister.
48‑3 Primary supplements
(1) The primary supplements for the care recipient under step 2 of the Commonwealth contribution amount calculator are such of the following primary supplements as apply to the care recipient in respect of the *payment period:
(a) the following primary supplements as set out in the Subsidy Principles:
(i) the oxygen supplement;
(ii) the enteral feeding supplement;
(iii) the dementia and cognition supplement;
(iv) the veterans’ supplement;
(b) any other primary supplement set out in the Subsidy Principles for the purposes of this paragraph.
(2) The Subsidy Principles may specify, in respect of each primary 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.
48‑4 Reductions in subsidy
The reductions in subsidy for the care recipient under step 3 of the Commonwealth contribution amount calculator are such of the following reductions as apply to the care recipient in respect of the *payment period:
(a) the compensation payment reduction (see sections 48‑5 and 48‑6);
(b) the care subsidy reduction (see sections 48‑7 and 48‑8).
48‑5 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 home care through the home 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 judgement, settlement or reimbursement arrangement; and
(b) the compensation takes into account the cost of providing home 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 home care.
(3) The compensation payment reduction for a particular day is an amount equal to the amount of *home care subsidy that would be payable for the care recipient in respect of the *payment period if:
(a) the care recipient was provided with home care on that day only; and
(b) this section and sections 48‑9 and 48‑10 did not apply.
(4) However, if:
(a) the compensation payment reduction arises from a judgement 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 judgement or settlement.
(5) If a care recipient is entitled to compensation under a judgement or settlement that does not take into account the future costs of providing home care to the care recipient, the Secretary may, in accordance with the Subsidy Principles, determine:
(a) that, for the purposes of this section, the judgement or settlement is to be treated as having taken into account the cost of providing that home 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 home 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 home care to the recipient; and
(c) the Secretary is satisfied that the settlement does not adequately take into account the future costs of providing home care to the care recipient;
the Secretary may, in accordance with the 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 home care.
Note: Determinations are reviewable under Part 6.1.
(7) A determination under subsection (5) or (6) must be in writing and notice of it must be given to the care recipient.
(8) A determination under subsection (5) or (6) is not a legislative instrument.
(9) In this section, the following terms have the same meanings as in the Health and Other Services (Compensation) Act 1995:
compensation |
compensation payer |
judgement |
reimbursement arrangement |
settlement |
48‑6 Secretary’s powers if compensation information is not given
(1) This section applies if:
(a) the Secretary believes on reasonable grounds that a care recipient is entitled to compensation under a judgement, settlement or reimbursement arrangement; and
(b) the Secretary does not have sufficient information to apply section 48‑5 in relation to the compensation.
(2) The Secretary may, by notice in writing given to a person, require the person to give information or produce a document that is in the person’s custody, or under the person’s control, if the Secretary believes on reasonable grounds that the information or document may be relevant to the application of section 48‑5 in relation to the compensation.
(3) The notice must specify:
(a) how the person is to give the information or produce the document; and
(b) the period within which the person is to give the information or produce the document.
Note: Sections 28A and 29 of the Acts Interpretation Act 1901 (which deal with service of documents) apply to notice given under this section.
(4) If the information or document is not given or produced within the specified period, the Secretary may determine compensation payment reductions for the care recipient.
Note: Decisions to determine compensation payment reductions under this section are reviewable under Part 6.1.
(5) The compensation payment reductions must be determined in accordance with the Subsidy Principles.
48‑7 The care subsidy reduction
(1) The care subsidy reduction for the care recipient for the *payment period is the sum of all the care subsidy reductions for days during the period on which the care recipient is provided with home care through the home care service in question.
(2) Subject to this section and section 48‑8, the care subsidy reduction for a particular day is worked out as follows:
Care subsidy reduction calculator
Step 1. Work out the care recipient’s total assessable income on a yearly basis using section 44‑24.
Step 2. Work out the care recipient’s total assessable income free area using 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 care subsidy reduction is zero.
Step 4. If the care recipient’s total assessable income exceeds the care recipient’s total assessable income free area but not the income threshold, the care subsidy reduction is equal to the lowest of the following:
(a) the sum of the basic subsidy amount for the care recipient and all primary supplements for the care recipient;
(b) 50% of the amount by which the care recipient’s total assessable income exceeds the income free area (worked out on a per day basis);
(c) the amount (the first cap) determined by the Minister by legislative instrument for the purposes of this paragraph.
Step 5. If the care recipient’s total assessable income exceeds the income threshold, the care subsidy reduction is equal to the lowest of the following:
(a) the sum of the basic subsidy amount for the care recipient and all primary supplements for the care recipient;
(b) 50% of the amount by which the care recipient’s total assessable income exceeds the income threshold (worked out on a per day basis) plus the amount specified in paragraph (c) of step 4;
(c) the amount (the second cap) determined by the Minister by legislative instrument for the purposes of this paragraph.
(3) If the care recipient has not provided sufficient information about the care recipient’s income for the care recipient’s care subsidy reduction to be determined, the care subsidy reduction is equal to the lesser of the following:
(a) the sum of the basic subsidy amount for the care recipient and all primary supplements for the care recipient;
(b) the second cap.
(4) If, apart from this subsection, the sum of all the *combined care subsidy reductions made for the care recipient during a *start‑date year for the care recipient would exceed the annual cap applying at the time for the care recipient, the care subsidy reduction for the remainder of the start‑date year is zero.
(5) If, apart from this subsection, the sum of all the previous *combined care subsidy reductions made for the care recipient would exceed the lifetime cap applying at the time, the care subsidy reduction for the remainder of the care recipient’s life is zero.
(6) The income threshold is the amount determined by the Minister by legislative instrument.
(7) The annual cap, for the care recipient, is the amount determined by the Minister by legislative instrument for the class of care recipients of which the care recipient is a member.
(8) The lifetime cap is the amount determined by the Minister by legislative instrument.
48‑8 Care subsidy reduction taken to be zero in some circumstances
(1) The care subsidy 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) a determination was in force under subsection (2) in relation to the care recipient;
(b) the care recipient was included in a class of people specified in the Subsidy Principles.
(2) The Secretary may, in accordance with the Subsidy Principles, determine that the care subsidy 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 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, home 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.
48‑9 Other supplements
(1) The other supplements for the care recipient under step 4 of the Commonwealth contribution amount calculator are such of the following supplements as apply to the care recipient in respect of the *payment period:
(a) the hardship supplement (see section 48‑10);
(b) any other supplement set out in the Subsidy Principles for the purposes of this paragraph.
(2) The Subsidy Principles may specify, in respect of each other supplement set out for the purposes of paragraph (1)(b), 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 other supplement, the amount of the supplement, or the way in which the amount of the supplement is to be worked out.
48‑10 The hardship supplement
(1) The hardship supplement for the care recipient in respect of the *payment period is the sum of all the hardship supplements for the days during the period on which:
(a) the care recipient was provided with home care through the home care service in question; and
(b) the care recipient was eligible for a hardship supplement.
(2) The care recipient is eligible for a hardship supplement on a particular day if:
(a) the Subsidy Principles specify one or more classes of care recipients to be care recipients for whom paying a daily amount of home care fees of more than the amount specified in the Principles would cause financial hardship; and
(b) on that day, the care recipient is included in such a class.
The specified amount may be nil.
(3) The care recipient is also eligible for a hardship supplement on a particular day if a determination is in force under section 48‑11 in relation to the care recipient.
(4) The hardship 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.
(5) The Minister may determine different amounts (including nil amounts) or methods based on any matters determined by the Minister by legislative instrument.
48‑11 Determining cases of financial hardship
(1) The Secretary may, in accordance with the Subsidy Principles, determine that the care recipient is eligible for a hardship supplement if the Secretary is satisfied that paying a daily amount of home care fees of more than the amount specified in the determination would cause the care recipient financial hardship.
Note: Refusals to make determinations are reviewable under Part 6.1.
(2) In deciding whether to make a determination under this section, and in determining the specified amount, the Secretary must have regard to the matters (if any) specified in the Subsidy Principles. The specified amount may be nil.
(3) A determination under this section ceases to be in force at the end of a specified period, or on the occurrence of a specified event, if the determination so provides.
Note: Decisions to specify periods or events are reviewable under Part 6.1.
(4) Application may be made to the Secretary, in the form approved by the Secretary, for a determination under this section. The application may be made by:
(a) the care recipient; or
(b) an approved provider who is providing, or is to provide, home care to the care recipient.
(5) If the Secretary needs further information to determine the application, the Secretary may give to the applicant a notice requesting the applicant to give the further information:
(a) within 28 days after receiving the notice; or
(b) within such other period as is specified in the notice.
(6) The application is taken to have been withdrawn if the information is not given within whichever of those periods applies. The notice must contain a statement setting out the effect of this subsection.
Note: The period for giving the further information can be extended—see section 96‑7.
(7) The Secretary must notify the care recipient and the approved provider, in writing, of the Secretary’s decision on whether to make the determination. The notice must be given:
(a) within 28 days after receiving the application; or
(b) if the Secretary has requested further information
