National Health Amendment Act 1991

No. 83 of 1991

TABLE OF PROVISIONS

SCHEDULE

SCHEDULE TO BE ADDED AT END OF PRINCIPAL ACT

National Health Amendment Act 1991

No. 83 of 1991

An Act to amend the National Health Act 1953, and for related purposes

[Assented to 26 June 1991]

The Parliament of Australia enacts:

Short title etc.

1.  (1) This Act may be cited as the National Health Amendment Act 1991.

(2) In this Act, “Principal Act” means the National Health Act 1953¹.

Commencement

2.  (1) Subject to subsection (2), this Act commences on the day on which it receives the Royal Assent.

(2) The following provisions are taken to have commenced on 1 January 1991:

(a)     section 4, subsection 7 (1) and sections 11, 12, 16 and 23;

(b)     the provisions of section 4aaaa (other than paragraph (1) (b)) inserted in the Principal Act by section 5 of this Act.

Application

3.  The amendments of the Principal Act made by section 6, subsection 7 (2), sections 8 and 10 and paragraph 13 (b) apply only in relation to nursing homes whose beds are granted exempt bed status on or after the commencement of this section.

Interpretation

4.  Section 4 of the Principal Act is amended by inserting in subsection (1) the following definition:

“ ‘adjusted fee government nursing home’ has the meaning given by section 4aaaa;”.

5.  After section 4 of the Principal Act the following section is inserted:

Adjusted fee government nursing homes

“4aaaa. (1) Each of the following nursing homes is an adjusted fee government nursing home:

(a)     a nursing home whose name and address are specified in column 2 of an item in Schedule 3, being the nursing home to which the certificate of approval issued by the Minister under subsection 40aa (2) and bearing the approval number specified in column 3 of that item relates;

(b)    any other nursing home prescribed for the purposes of this section.

“(2) The regulations may amend Schedule 3 by omitting any item in that Schedule.

“(3) Where:

(a)     a nursing home becomes an adjusted fee government nursing home under subsection (1); and

(b)    immediately before so becoming an adjusted fee government nursing home, the nursing home was a Government nursing home;

the nursing home ceases to be a Government nursing home on becoming an adjusted fee government nursing home.”.

Interpretation

6.  Section 39 of the Principal Act is amended:

(a)    by adding “or 39ad” at the end of the definition of “exempt bed”;

(b)    by inserting in subparagraph (a) (ii) of the definition of

“reference fee” “the fee determined by the Minister, having regard to” before “the amount”;

(c) by omitting from subparagraph (a) (ii) of the definition of “reference fee” “had been” and substituting “were”.

Applications for exempt bed status

7.  (1) Section 39ab of the Principal Act is amended:

(a)    by omitting from subsection (1) “A person” and substituting “Subject to subsection (1a), a person”;

(b)    by inserting after subsection (1) the following subsection:

“(1a) A person may not make an application under subsection (1) in relation to an adjusted fee government nursing home.”.

(2) Section 39ab of the Principal Act is amended by inserting after subsection (9) the following subsections:

“(9a) The grant of exempt bed status in respect of the beds in the nursing home may be made subject to such conditions as are determined by the Minister, after consultation with the applicant, having regard to:

(a)     the information and documents given to the Minister under paragraph (2) (b); and

(b)    any further information given by the applicant in accordance with a request made under subsection (6).

“(9b) If exempt bed status is granted subject to conditions, the Minister must set out the conditions in an attachment to the certificate granted under subsection (8).

“(9c) In making a decision for the purposes of subsection (9a), the Minister must act in accordance with the principles (if any) formulated by the Minister under subsection (9d).

“(9d) The Minister may formulate, in writing, principles in accordance with which a decision whether to attach conditions to a grant of exempt bed status is to be made.”.

8.  After subsection 39ab of the Principal Act the following sections are inserted:

Variation of conditions subject to which exempt bed status granted

“39ac. (1) A statement of conditions attached to a certificate granted under subsection 39ab (8) in respect of a nursing home may, on application by the proprietor of the nursing home, be varied by the Minister.

“(2) In making a decision whether to vary a statement of conditions, the Minister must act in accordance with the principles (if any) formulated by the Minister under subsection (3).

“(3) The Minister may formulate, in writing, principles identifying the matters by reference to which a decision may be made to vary a

condition subject to which exempt bed status has been granted in respect of the beds in a nursing home.

“(4) The matters referred to in subsection (3) may include, but are not restricted to, the following:

(a)     whether the applicant and the person who originally applied to have the beds in the nursing home granted exempt bed status (in this subsection called the ‘original applicant’) are one and the same person;

(b)    whether the variation is necessary:

(i) to correct an error; or

(ii) because the condition was inserted as a result of incorrect information given in good faith by the original applicant;

(c)  whether the Minister would have granted exempt bed status in respect of the beds in the nursing home subject to that condition as varied.

Extension of exempt bed status for further period

“39ad. (1) In this section:

‘exempt patient’, in relation to a nursing home whose beds have been granted exempt bed status, means a qualified nursing home patient in the nursing home, other than a patient in respect of whom, because of subsection 40adb (3a), the provisions of this Act apply in relation to the nursing home as if the bed occupied by the patient was not an exempt bed.

“(2) For the purposes of this section, a certificate granted under subsection 39ab (8) in respect of a nursing home is taken to have expired at the end of the period, or the last of the periods, specified in the certificate.

“(3) This section applies if, at the expiration of a certificate granted under subsection 39ab (8) in respect of a nursing home, another certificate under that subsection is not granted in respect of the nursing home.

“(4) The Minister must, if so requested in writing by the proprietor of the nursing home, grant exempt bed status to each bed in the nursing home that, immediately before the certificate expired, was occupied by an exempt patient.

“(5) A request under subsection (4) must be made before the certificate expires.

“(6) The grant of exempt bed status in respect of the beds in the nursing home has effect, from the expiration of the certificate, subject to the conditions (if any) to which the certificate was subject immediately before its expiration.

“(7) Unless the grant under subsection (4) of exempt bed status in respect of the beds in the nursing home has been sooner revoked, a bed in the nursing home ceases to be an exempt bed when it ceases to be occupied by a person who, immediately before the expiration of the certificate, was an exempt patient of the nursing home.”.

Approval of nursing home

9.  Section 40aa of the Principal Act is amended:

(a)  by omitting paragraph (6) (cg) and substituting the following paragraph:

“(cg) a condition that the proprietor of the nursing home must:

(i) allow a person who is designated by the Minister to be a community visitor in relation to the nursing home to enter the nursing home at any reasonable time for the purpose of meeting with patients; and

(ii) provide the person with all reasonable facilities and assistance in achieving that purpose;”;

(b)       by inserting after paragraph (6) (cj) the following paragraph:

“(ck) a condition that the nursing home care provided in the nursing home satisfies the standards determined under section 45d;”.

Existing patients in nursing homes containing exempt beds

10.  Section 40adb of the principal Act is amended:

(a) by inserting after subsection (3) the following subsections:

“(3a) Where:

(a)    within the period of 6 months after the day from which the beds in an approved nursing home are granted exempt bed status, an election of the kind referred to in subsection (2) is not made by or on behalf of a patient occupying a bed in the nursing home before that day; or

(b)    such election is not approved by the Secretary under subsection (6);

then:

(c)  the provisions of this Act apply in relation to the home in respect of the patient as if the bed occupied by the patient were not an exempt bed and continue so to apply:

(i) if an election in respect of the patient is made under paragraph (d) or subsection (3b) and the election is approved by the Secretary under subsection (6)—until the end of the month during which the Secretary received under subsection (4) the application in respect of the election; or

(ii) if subparagraph (i) does not apply—until the

patient ceases to be a qualified nursing home patient in the nursing home; and

(d) the patient may, at any time after the end of the period of 2 years after the day on which the bed became an exempt bed, by notice in writing, elect that, on and after the day on which the election (if approved) will take effect under subsection (12), the provisions of this Act apply in relation to the home in respect of the patient as if the patient were newly admitted to the home on that day.

“(3b) Where a patient is, because of any physical or mental incapacity, unable to make an election under paragraph (3a) (d), another person representing that patient may, in accordance with that paragraph, make the election on behalf of the patient.”;

(b)    by omitting from subsection (4) “subsection (2) or (3)”;

(c)     by inserting in subsection (7) “under subsection (2) or (3)” after “person” (second occurring);

(d)    by inserting after subsection (8) the following subsection:

“(8a) An election under paragraph (3a) (d) or subsection (3b) may not be revoked.”;

(e)  by omitting from subsection (9) “and subsection (10) applied in respect of the patient”;

(f)      by omitting subsection (10);

(g)    by inserting in subsection (11) “under subsection (2) or (3)” after “election”;

(h) by adding at the end the following subsection:

“(12) Where an election under paragraph (3a) (d) or subsection (3b) in respect of a patient is approved by the Secretary:

(a)     the provisions of this Act apply, and are taken to have applied, in respect of the patient, from and including the first day of the month immediately following the month during which the Secretary received under subsection (4) the application in respect of the election, as if the patient were newly admitted to the home on that day; and

(b)    for the purposes of this Act, any recognised days of absence of the patient that occurred before that day but after the 30 June immediately preceding that day must be taken into account as if they had occurred after that day.”.

Standard fee for classified patients

11. Section 40aga of the Principal Act is amended:

(a) by inserting in subsection (5) “other than an adjusted fee

government nursing home” after “nursing home” (second occurring);

(b) by inserting after subsection (6) the following subsection:

“(6a) The standard fee for a classification of patients in an approved nursing home that is an adjusted fee government nursing home is the amount calculated by using the formula:

SAMS + N

where:

‘SAMS’ means the special infrastructure allowance per occupied bed per day applicable to the approved nursing home; and

‘N’ has the same meaning as in subsection (5).”.

Standard infrastructure allowance and special infrastructure allowance

12.  Section 40ah of the Principal Act is amended by adding at the end the following subsections:

“(2) The special infrastructure allowance per occupied bed per day applicable to an approved nursing home is:

(a)     $26.07; or

(b)    such higher amount as is applicable to that nursing home under a determination made in writing by the Minister for the purposes of this subsection.

“(3) A determination for the purposes of subsection (2) that provides for an amount applicable to a nursing home specified in Schedule 1 may be expressed to have had effect on and from a day not earlier than 1 January 1991.”.

Revocation of exempt bed status

13.  Section 44a of the Principal Act is amended:

(a)    by omitting from subparagraph (2) (b) (iii) “in a case where the proprietor is not a body corporate—”;

(b)    by inserting after subsection (1) the following subsection:

“(1a) If the Minister considers that a condition attached to the grant of exempt bed status in respect of the beds in the nursing home has not been complied with, the Minister may, by notice in writing, revoke the grant of exempt bed status in respect of those beds.”;

(c)  by adding at the end the following subsections:

“(4) The Minister may also revoke the grant of exempt bed status in respect of the beds in a nursing home if:

(a) a patient who occupied a bed in the nursing home immediately before the change-over day for the nursing home was discharged from it:

(i) within the period of 6 months after that day; or

(ii) at a time after that period when (because of subsection 40adb (3a)) the provisions of this Act applied in relation to the home in respect of that patient as if the bed occupied by the patient were not an exempt bed; and

(b)  the patient was not so discharged:

(i) on his or her request freely made; or (ii) with his or her consent freely given; and

(c)   the Minister has reasonable grounds to believe that the patient was so discharged so that a bed would be available for occupation by a patient who did not occupy a bed in the nursing home immediately before the change-over day.

“(5) In subsection (4):

‘change-over day’, in relation to a nursing home whose beds have been granted exempt bed status, means the day from which the beds were granted that status.”.

Repeal of section 45c

14.  Section 45c of the Principal Act is repealed.

Declaration of non-compliance with standards

15.  Section 45e of the Principal Act is amended by adding at the end the following subsection:

“(12) This section does not imply that the Minister may not, in circumstances where the Minister is satisfied of the matter referred to under subsection (1) (whether or not the Minister has taken any action under this section), suspend or revoke the approval of the nursing home concerned as an approved nursing home under section 44 if he or she considers that to be a more appropriate course of action.”.

Benefit for nursing home care in transferred homes and adjusted fee government nursing homes

16.  Section 48a of the Principal Act is amended:

(a) by inserting in subsection (1) “or of an adjusted fee government nursing home” after “transferred home”;

(b)  by inserting in subsection (4) “in a transferred home” after “patient” (first occurring).

17.  After section 48a of the Principal Act the following section is inserted:

Top-up benefit

“48b. (1) The Minister may, by writing, formulate principles relating to the payment of Commonwealth benefits to proprietors of approved nursing homes for the purpose of providing financial assistance in relation to either or both of the following:

(a)     in the case of a nursing home that, under the principles, is eligible for special nursing staff assistance—assisting the proprietor to staff the nursing home so that, at all times, there is at least one registered nurse (within the meaning of Part Vb) on duty in the nursing home;

(b)    in the case of a nursing home that, under the principles, is eligible for special viability assistance—helping to maintain the financial viability of the nursing home.

“(2) If, under the principles, the proprietor of an approved nursing home is eligible for a Commonwealth benefit in respect of a day, there is payable to the proprietor, in respect of that day, a Commonwealth benefit ascertained in accordance with the principles.

“(3) For the purposes of this Act, the Commonwealth benefit payable under subsection (2) is not taken to be payable in respect of any particular patient.”.

18. After section 51a of the Principal Act the following section is inserted:

Recovery of overpayments

“51b. (1) An overpayment of an amount purporting to be made under this Part may be recovered by the Commonwealth as a debt due to the Commonwealth.

“(2) The whole or a part of the overpayment may be deducted from an amount (including an advance) payable, or to be paid, to the person concerned under this Part.

“(3) Subsections (1) and (2) do not, by implication, affect the recovery or set-off of other overpayments.”.

Approval of person as approved person in relation to a patient

19. Section 58e of the Principal Act is amended by omitting from subsection (8) “employed in a Department of State” and substituting “or registered nurse”.

Offences

20. Section 62 of the Principal Act is amended by inserting in paragraph (1) (aa) “, 39ab” after “section 39a”.

Applications for review by Tribunal of certain decisions under Part V

21. Section 105aab of the Principal Act is amended:

(a)    by omitting from subsection (1) “or 45a” and substituting “, subsection 44a (1a) or (4), section 45a”;

(b)    by adding at the end of subsection (1) “or a decision of the Minister, or of a delegate of the Minister, under section 39ac refusing to vary a statement of conditions of the kind referred to in that section”.

Certain instruments subject to disallowance

22.  Section 139b of the Principal Act is amended by inserting after paragraph (1) (a) the following paragraph:

“(ab) an instrument formulating or establishing principles for the purposes of subsection 39a (6), 39ab (4) or (9d), 39ac (3), 40aa (3c) or (7), 40ad (1be) or 48b (1);”.

New Schedule

23.  The Principal Act is amended by adding at the end the schedule set out in the Schedule to this Act.

Transitional—designated community visitors

24.  (1) In this section:

“amended Act” means the Principal Act as amended by this Act.

(2) For the purposes of the amended Act, a designation under paragraph 40aa (6) (cg) of the Principal Act has effect as if it had been made under the corresponding provision of the amended Act.

SCHEDULE                                                  Section 23

SCHEDULE TO BE ADDED AT END OF PRINCIPAL ACT

SCHEDULE 3                                           Section 4aaaa

ADJUSTED FEE GOVERNMENT NURSING HOMES

NOTE

1. No. 95, 1953, as amended. For previous amendments, see No. 68, 1955; Nos. 55 and 95, 1956; No. 92, 1957; No. 72, 1959; No. 16, 1961; No. 82, 1962; No. 77, 1963; No. 37, 1964; Nos. 100 and 146, 1965; No. 44, 1966; Nos. 14 and 100, 1967; No. 100, 1968; No. 102, 1969; No. 41, 1970; No. 85, 1971; No. 114, 1972; Nos. 49 and 202, 1973; No. 37, 1974; Nos. 1, 13 and 93, 1975; Nos. 1, 60, 91, 99, 108, 157 and 177, 1976; Nos. 98 and 100, 1977; Nos. 36, 88, 132 and 189, 1978; Nos. 54, 91 and 122, 1979; Nos. 117 and 131, 1980; Nos. 40, 74, 92, 118, 163 and 176, 1981; Nos. 49, 80 and 112, 1982; Nos. 35, 54 and 139, 1983; Nos. 46, 63, 72, 120, 135 and 165, 1984; Nos. 24, 53, 65, 70, 95, 127 and 167, 1985; Nos. 28, 75, 94 and 115, 1986; Nos. 22, 44, 72, 118, 131 and 132, 1987; Nos. 79, 87, 99 and 155, 1988; No. 95, 1989; Nos. 3, 84, 106 and 141, 1990; and No. 6, 1991.

[Minister’s second reading speech made in—

House of Representatives on 14 May 1991

Senate on 29 May 1991]