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National Health Act 1953

  • - C2005C00404
  • In force - Superseded Version
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Act No. 95 of 1953 as amended, taking into account amendments up to Act No. 60 of 2005
An Act relating to the provision of pharmaceutical, sickness and hospital benefits, and of medical and dental services
Administered by: Health
Registered 01 Jul 2005
Start Date 22 Feb 2005
End Date 30 Sep 2005

National Health Act 1953

Act No. 95 of 1953 as amended

Volume 1 includes:                   Table of Contents
                                                Sections 1 – 82ZP

This compilation was prepared on 30 June 2005
taking into account amendments up to Act No. 
60 of 2005

The text of any of those amendments not in force
on that date is appended in the Notes section

Note: Subsections 90(3A), (3AA), (3AB), (3AC), (3AD) and (3B) cease to have effect on 31 December 2005, see section 90(3C)

Division 4B of Part VII ceases to have effect on 31 December 2005, see section 99Y]

The operation of amendments that have been incorporated may be
affected by application provisions that are set out in the Notes section

Prepared by the Office of Legislative Drafting and Publishing,
Attorney-General’s Department,
Canberra

Volume 2 includes:                   Sections 82ZQ – 140

                                                Schedules 1, 2 and 4
                                                Table of Acts
                                                Act Notes
                                                Table of Amendments
                                                Note 2
                                                Table A

  

  

  


Contents

Part I—Preliminary                                                                                                                1

1............ Short title [see Note 1]....................................................................... 1

2............ Commencement [see Note 1].............................................................. 1

4............ Interpretation...................................................................................... 1

4AA...... Recognised days of absence of qualified nursing home patients etc. 12

5A......... Applicable benefits arrangement...................................................... 15

5AB...... Changes in the instruments of a registered organization relating to rates of contribution       16

5B......... Declarations in relation to day hospital facilities............................. 17

5C......... Extension of this Act and the Health Insurance Act 1973 in relation to outreach services     17

5D......... Minister may specify outreach services........................................... 18

5E.......... Review of extension of this Act and the Health Insurance Act 1973 in relation to outreach services     18

6............ Delegation......................................................................................... 19

6A......... External Territories........................................................................... 20

7............ Application of provisions of Corporations Act—general matters... 20

7A......... Application of the Criminal Code.................................................... 21

Part II—National health services                                                                                22

8............ Interpretation.................................................................................... 22

9............ Provision of certain medical and dental services............................... 22

9A......... Provision of medical and surgical aids and appliances etc. by the Commonwealth 22

9B......... Provision of vaccines........................................................................ 23

9C......... Arrangements with States for provision of surgical aids and appliances etc.          23

10.......... Arrangements with other Ministers................................................. 24

11.......... Arrangements with States................................................................. 24

Part V—Approved nursing homes                                                                               26

39.......... Interpretation.................................................................................... 26

40AA.... Government nursing homes.............................................................. 29

40AB Approval of admission to approved nursing home.............................. 36

40AC.... Declaration that patient not in need of nursing home care............... 38

40AE..... Request for review of decisions........................................................ 39

40AEA.. Request for review may be withdrawn............................................. 41

40AEB.. Refund of lodgment fee..................................................................... 41

40AEC.. Referral of request to Nursing Homes Fees Review Committee of Inquiry            42

40AED.. Examination of matter by Committee............................................... 43

40AEE.. Committee Processing Fee................................................................ 43

40AEF.. Ministerial review of decisions......................................................... 44

40AEG.. Refund of Committee processing fee etc.......................................... 44

40AEH.. Effect of change of proprietor on request for review....................... 45

40AF..... Patients requiring extensive care....................................................... 46

40AFK.. Proprietor to be given notice of classification of classified patient admitted to nursing home                48

40AG.... Standard fee for non-classified patients............................................ 48

40AGA. Standard fee for classified patients................................................... 51

40AH.... Standard infrastructure allowance and special infrastructure allowance  53

40AI...... Additional patient contribution........................................................ 53

41.......... Certificate of approval...................................................................... 54

42.......... Inspection of, and of records of, approved nursing homes.............. 54

43.......... Certain person to give notice on death of proprietor....................... 55

43A....... Furnishing of audited accounts by proprietors of certain approved nursing homes               55

44.......... Variation or revocation of approval.................................................. 56

45.......... Automatic revocation of approval as nursing home for disabled people 57

45A....... Revocation or extension of suspension............................................ 58

45B....... Effect of suspension of approval of nursing home........................... 58

45D....... Standards for nursing home care....................................................... 58

45DA.... Statements may be published about satisfaction of standards for nursing home care             58

45DB.... General information about approved nursing homes may be made available to the public     60

45DC.... Information about Ministerial action and other information about approved nursing homes may be made available to the public.......................................................................................... 60

Part VA—Commonwealth benefits in respect of nursing home care       63

Division 1—Preliminary                                                                                            63

46.......... Interpretation.................................................................................... 63

46A....... Approved nursing home patients..................................................... 64

46AB.... Benefit payable for up to 2 days prior to admission....................... 64

46B....... Meaning of overpayment................................................................. 65

46C....... Secretary to determine accounting period in respect of certain approved nursing homes       65

46D....... Setting of notional fees..................................................................... 67

46E........ Secretary may pay or recover advances of general care benefit before notional scale of fees is set        68

Division 2—Types of benefit payable                                                                 70

47.......... Basic benefit for Government nursing homes and nursing homes for disabled people            70

47A....... Benefits for patients in other approved nursing homes................... 71

48A....... Benefit for nursing home care in transferred homes and adjusted fee government nursing homes          72

48AB.... When general care benefit becomes payable..................................... 75

48B....... Top-up benefit................................................................................. 75

48C....... Isolated nursing home benefit........................................................... 75

48D....... Benefit in respect of patients receiving nasogastric feeding............. 76

48E........ Benefit in respect of patients receiving oxygen................................ 76

49.......... Extensive care benefit....................................................................... 77

49AA.... Respite Care..................................................................................... 77

Division 3—Miscellaneous                                                                                      79

49A....... Commonwealth benefit not payable if approval of nursing home suspended         79

49B....... Payment of Commonwealth benefit to patient................................ 79

50.......... Payment of Commonwealth benefit and nursing home fund benefit in respect of same patient for same period   80

51.......... Claims for benefit............................................................................. 80

51A....... Advances of benefit.......................................................................... 81

51B....... Treatment of money overpaid or underpaid by way of an advance. 81

51C....... Recovery of overpayments.............................................................. 81

Part VAB—Commonwealth benefit in respect of newly built nursing homes           83

Division 1—Preliminary                                                                                            83

52.......... Interpretation.................................................................................... 83

Division 2—Approval-in-principle of an approval of a grant in respect of a newly built nursing home                                                                                                                      84

52D....... Minister may revoke an AIP at any time before an approval of grant is given       84

Division 3—Approval of grant of Commonwealth benefit in respect of a newly built nursing home     85

53.......... Application for Commonwealth benefit........................................... 85

54.......... Principles applicable for grant of Commonwealth benefit............... 85

55.......... Approval of grant............................................................................. 86

56.......... Entitlement to benefit....................................................................... 86

57.......... Appropriation.................................................................................. 87

Part VAC—Commonwealth benefit in respect of upgraded nursing homes              88

Division 1—Preliminary                                                                                            88

58.......... Interpretation.................................................................................... 88

58A....... Principles applicable to determining eligible nursing homes............. 88

Division 2—Approval-in-principle of a grant in respect of an upgraded nursing home                89

58CB..... Minister may revoke an approval-in-principle at any time before an approval of grant is given           89

Division 3—Approval of grant of Commonwealth benefit in respect of upgraded nursing homes          90

58CC..... Application for Commonwealth benefit........................................... 90

58CD.... Principles applicable for grant of Commonwealth benefit............... 90

58CE..... Approval of grant............................................................................. 90

58CF..... Entitlement to benefit....................................................................... 91

58CG.... Appropriation.................................................................................. 92

Part VC—Administration of Parts V, VA, VAB and VD                                93

58K....... Interpretation.................................................................................... 93

59.......... Commonwealth benefit not payable where compensation etc. is payable to patient             93

60B....... Information to be furnished by proprietor of approved nursing home 95

61.......... Records to be kept by proprietors of approved nursing homes...... 95

61AA.... Records to be kept by former proprietors for 12 months................ 97

61A....... Books and records to be kept at nominated place............................ 97

61B....... Power to require persons to answer questions and produce documents 98

61C....... Power to examine on oath etc........................................................... 99

61D....... Entry on premises and inspection of books etc............................... 99

61E........ Offences.......................................................................................... 100

62.......... Offences.......................................................................................... 100

Part VD—Requirements in respect of sale of approved nursing homes 102

Division 1—Preliminary                                                                                          102

63.......... Object of Part................................................................................. 102

64.......... Application and operation of Part.................................................. 102

65.......... Interpretation.................................................................................. 104

Division 2—Requirements on sale of approved nursing home          109

65A....... Vendor must give notice of sale of an approved nursing home...... 109

65B....... Purchaser to give notice of prospective purchase of approved nursing home         110

65C....... Investigation of accounts etc. of approved nursing homes............. 111

65D....... Secretary may also determine certain matters................................ 112

65E........ Parties to a contract of sale to be informed of results of investigation etc.             112

65F........ Proprietor gives less than 90 days notice on settlement of contract of sale or settles in less than 90 days            113

65G....... If no notice of sale given or vendor sells before notified date......... 115

65GAA. Effect on investigation periods of commencement of the Aged Care Act 1997       117

Division 2A—Nursing home charge                                                                 118

Subdivision 1—Assessment                                                                                  118

65GA.... Notice of fee-reducing benefit......................................................... 118

65GB.... Liability to pay nursing home charge............................................. 118

65GC.... Amount of nursing home charge..................................................... 118

65GD.... Notice of liability to pay nursing home charge............................... 119

65GE..... Assessment..................................................................................... 119

65GF..... Amendment of assessments........................................................... 119

65GG.... Refund of overpaid amounts.......................................................... 120

65GH.... Amended assessment to be an assessment..................................... 120

65GI...... Objections....................................................................................... 121

65GJ..... Validity of assessment.................................................................... 121

65GK.... Evidentiary effect of notice of assessment etc............................... 121

Subdivision 2—Collection and recovery                                                             122

65GL..... Secretary may extend time for payment......................................... 122

65GM... Penalty for late payment................................................................ 122

65GN.... Recovery of unpaid nursing home charge....................................... 123

65GO.... Recovery of nursing home charge from persons with joint liability 123

65GP..... Recovery of nursing home charge from trustee of deceased chargepayer                123

65GQ.... Recovery of nursing home charge from unadministered deceased estate 124

Subdivision 3—Advance payments                                                                       125

65GR.... Overview of Subdivision................................................................ 125

65GS..... If paragraph 65C(1)(c) investigation done—direction to purchaser to pay amount to the Commonwealth           125

65GT.... If paragraph 65F(1)(c) investigation has been ordered—vendor’s and purchaser’s liability to pay advance         126

65GU.... Treatment of money paid in advance under section 65GT............ 127

65GV.... Directions to be in writing.............................................................. 128

65GW... Scale of fees may take account of unpaid nursing home charge...... 129

Division 3—Payment of certain moneys to the Commonwealth        130

65H....... If paragraphs 65C(1)(c) and (d) investigations done—direction to purchaser to pay amount to the Commonwealth........................................................................................................ 130

65J........ If amount determined under paragraph 65F(1)(e)—direction to purchaser to pay amount to the Commonwealth........................................................................................................ 132

65K....... Certain moneys to be paid by proprietor of nursing home to the Commonwealth on or before sale of nursing home........................................................................................................ 133

65L........ Money paid in settlement of an overpayment outstanding—how to deal with it  135

65M...... Treatment of amount paid in respect of overpayment outstanding to which subsection 65K(2) applies              135

65N....... Treatment of amount paid in respect of overpayment outstanding to which subsection 65K(3) applies              136

65P........ Treatment of amount paid in respect of overpayment outstanding to which subsection 65K(4) applies              137

65Q....... Treatment of amount paid in respect of overpayment outstanding to which subsection 65K(5) applies              138

65R....... Treatment of amount paid in respect of overpayment outstanding to which subsection 65K(6) applies—Step 1: first investigation amount....................................................................... 139

65S........ Treatment of amount paid in respect of overpayment outstanding to which subsection 65K(6) applies—Step 2: second investigation amount........................................................... 139

Division 4—Miscellaneous                                                                                    143

65SA..... Interest payable on repayments to vendors made under Division 3 143

65SB..... Interest payable on repayments to vendors made under Division 2A 143

65T....... Time when principles take effect................................................... 144

65U....... Parties to a contract of sale to be informed of certain matters after sale 144

Part VI—Health benefits organizations                                                                 146

Division 1—General                                                                                                  146

66.......... Interpretation.................................................................................. 146

67.......... Health insurance business to be carried on only by registered organisations          147

67A....... Injunctions for contravention of section 67.................................... 151

67B....... Conduct of health insurance business............................................. 151

Division 2—Registration                                                                                        153

68.......... Application for registration as health benefits organization........... 153

69.......... Lodgment of application and giving of information by applicant organisations      153

70.......... Registration Committee.................................................................. 154

71.......... Application to be referred to Committee....................................... 154

72.......... Report of the Committee................................................................ 154

72A....... Matters to be taken into account by Committee and by Council.. 154

73.......... Registration and permission to carry on business as registered health benefits organisation  155

73AA.... Unincorporated registered organizations must become incorporated 156

73AAB. Registered organization to maintain eligibility status..................... 157

73AAC. Certain duties of registered organization regarding assets of its health benefits fund              158

73AAD. Payments from health benefits fund............................................... 158

73AAE.. Restrictions on certain financial transactions by registered organizations               158

Division 3—Conditions of registration                                                            161

73AAF.. Registration is subject to conditions in this Division and in Schedule 1  161

73AAG. Matters ancillary to particular conditions in Schedule 1................ 161

73AAH. General condition concerning community rating............................ 162

73AAI... Community rating condition concerning admission of persons as contributors and cancellations of membership 162

73AAJ.. Community rating condition concerning quantum and payment of benefits           163

73AAK. Limited exception from community rating for restricted membership organizations              164

73AAL.. Discrimination on basis of place of residence................................. 164

73A....... Condition concerning entry into, and records relating to, refund agreements          165

73AB.... Condition concerning provision of information required under Hospital Casemix Protocol   165

73ABB.. Registered health benefits organization to comply with requirements of health insurance incentives legislation   166

73ABBARegistered health benefits organization to pay Reinsurance
Trust Fund levy and late payment penalty.................................... 166

73ABC.. Registered organization to make agreements under Division 4 available to public  167

73ABD. Further conditions and revocation or variation of conditions—Council’s powers  167

73B....... Further conditions and revocation or variation of conditions—Minister’s powers                168

73BAAALifetime Health Cover.................................................................... 169

73BAA. Waiver of waiting periods............................................................... 169

Division 3AA—Health Benefits Reinsurance Trust Fund                   170

73BB..... Determinations in relation to records to be maintained to assist Council in respect of Health Benefits Reinsurance Trust Fund...................................................................................... 170

73BC..... Health Benefits Reinsurance Trust Fund....................................... 170

Division 3A—The solvency standard for registered organizations 173

73BCA.. Purpose of Division........................................................................ 173

73BCB.. Council to establish solvency standards......................................... 173

73BCC.. Purpose of solvency standard........................................................ 174

73BCD.. Registered organizations to comply with solvency standards....... 174

73BCE.. Council may give solvency directions............................................ 175

Division 3B—The capital adequacy standard for registered organizations         177

73BCF.. Purpose of Division........................................................................ 177

73BCG.. Council to establish capital adequacy standard.............................. 177

73BCH.. Purpose of capital adequacy standard............................................ 177

73BCI... Registered organization to comply with capital adequacy standard 178

73BCJ... Council may give capital adequacy directions................................ 179

Division 4—Purchaser-provider agreements                                              181

73BD.... Hospital purchaser-provider agreements........................................ 181

73BDAAExtension of hospital purchaser-provider agreements to
cover rendering of some professional services................................ 183

73BDA. Medical purchaser-provider agreements......................................... 185

73BDB.. Certain documents not liable to duty etc........................................ 187

73BDC.. Application of the Trade Practices Act 1974................................. 188

Division 4A—Gap cover schemes                                                                     189

73BDDAPurpose of gap cover schemes....................................................... 189

73BDD. Registered organizations may apply to Minister for approval of gap cover schemes            189

73BDE.. Review and revocation of gap cover schemes................................. 190

73BDEA........................................................................................... Regulations  191

Division 5—Enforcement and remedies                                                         192

Subdivision A—Performance indicators and preliminary explanations       192

73BEA.. Performance indicators................................................................... 192

73BEB.. Minister may require registered organizations to explain their operations              192

73BEC.. Consequences of a failure to provide a satisfactory explanation.... 193

Subdivision B—Investigations                                                                              194

73BED.. Minister may conduct investigation............................................... 194

73BEE... Offences relating to requirements under section 73BED................ 195

73BEF... Minister may consult Council........................................................ 196

73BEG.. Consequences of investigation........................................................ 196

Subdivision C—Enforceable undertakings                                                        197

73BEH.. The Minister may accept written undertakings given by a registered organization                197

73BEI.... Enforcement of undertakings.......................................................... 197

Subdivision D—Ministerial directions                                                               198

73BEJ... Directions given by Minister to registered organizations............... 198

73BEK.. Direction requirements................................................................... 199

Subdivision E—Removal of entitlement to offer rebate as a premium reduction 199

73BEL... Minister may revoke registered organization’s status as participating fund           199

Subdivision F—Court imposed sanctions                                                           200

73BEM. Minister may apply to the Court for orders redressing breach of Act or imposing pecuniary penalties               200

73BEN.. Imposition and enforcement of orders by the Court...................... 200

73BEO.. Restrictions relating to payment of pecuniary penalties................ 202

Subdivision G—Miscellaneous                                                                             202

73BEP... Jurisdiction..................................................................................... 202

Division 5A—Removal of hospitals etc. from non-contracted benefits 203

73E........ Definitions...................................................................................... 203

73EA..... Determinations relating to non-contracted benefits in respect of particular treatments at particular hospitals etc......................................................................................................... 203

73EB..... Guidelines for making determinations............................................ 204

73EC..... Effect of determinations................................................................. 204

73ED..... Revocation of determinations......................................................... 205

73EE..... Date of effect of revocation............................................................ 205

Division 6—Miscellaneous                                                                                    207

73F........ The Private Patients’ Hospital Charter.......................................... 207

73G....... Liability for disclosure of information............................................ 207

74.......... Public officer of registered organisation.......................................... 208

74BA.... Inducing contributors to transfer to other funds etc....................... 210

74C....... Registered organization to keep records and furnish information.. 210

74D....... Returns of information by registered organizations....................... 210

75.......... Provision of services by organizations........................................... 210

78.......... Changes of rules etc. by registered organisations........................... 212

79.......... Cancellation of registration of organisation.................................... 214

81.......... Notification of registrations etc...................................................... 215

82.......... Offences.......................................................................................... 215

Part VIAA—Private Health Insurance Administration Council               217

Division 1—Preliminary                                                                                          217

82A....... Interpretation.................................................................................. 217

Division 2—Establishment and constitution of Council                         218

82B....... Establishment................................................................................. 218

82BA.... Purposes of Council....................................................................... 218

82C....... Constitution of Council.................................................................. 219

82D....... Appointment of members.............................................................. 219

82F........ Guidelines....................................................................................... 219

Division 3—Functions and powers of Council                                             221

82G....... Functions........................................................................................ 221

82H....... Powers............................................................................................ 223

82J........ Directions by Minister................................................................... 224

82K....... Examination of records, books and accounts of registered organisations 224

82L........ Registered organisation to give information to the Council annually 225

82M...... Registered organisation to comply with Council’s reporting requirements             227

Division 4—Administration                                                                                   228

82N....... Meetings of Council....................................................................... 228

82P........ Delegation by Council.................................................................... 228

82PA..... Report on registered organisations................................................. 229

82PAA.. Modification of the Commonwealth Authorities and Companies Act 1997             230

Division 5—Offices of members                                                                         231

82PB..... Validity of appointments............................................................... 231

82PC..... Acting Commissioner..................................................................... 231

82PCA.. Deputy Commissioner to act as Commissioner in certain circumstances               231

82PCB.. Powers and duties of persons acting as Commissioner.................. 232

Division 6—Conditions of members                                                                 234

82PE..... Remuneration and allowances of members..................................... 234

82PEA.. Leave of absence............................................................................. 234

82PF..... Resignation..................................................................................... 234

82PG..... Termination of appointment.......................................................... 234

Division 7—Chief Executive Officer and staff                                             235

82PH..... Chief Executive Officer................................................................... 235

82PJ...... Duties of Chief Executive Officer................................................... 235

82PK..... Conflict of interests........................................................................ 235

82PL..... Staff and consultants...................................................................... 236

82PM.... Remuneration and allowances of Chief Executive Officer.............. 236

82PN..... Leave of absence of Chief Executive Officer.................................. 236

Division 8—Finance                                                                                                  237

82PO..... Amounts payable to Council for certain purposes........................ 237

Part VIA—Conduct and supervision of the affairs of registered organizations      238

Division 1—Preliminary                                                                                          238

82QA.... Outline of Part................................................................................ 238

82QB.... Purpose of the Part......................................................................... 238

82QC.... Limitation on administration and winding up of health benefits funds and registered organizations      239

82Q....... Interpretation.................................................................................. 239

82QAA. Special provisions relating to certain registered organizations....... 241

Division 2—Investigations into affairs of registered organizations 242

82R....... Investigation of organization by inspector..................................... 242

82S........ Powers of inspector........................................................................ 243

82T....... Person may be represented by legal practitioner............................ 243

82U....... Persons to comply with requirements of inspector....................... 244

82V....... Access to premises......................................................................... 244

82W...... Report of inspector........................................................................ 246

82WA... Minister and Council to inform each other about action taken...... 248

82WB.... Delegation by inspector.................................................................. 248

82WC.... Records etc. not to be concealed..................................................... 249

Division 3—Administration of funds and registered organizations  250

Subdivision 1—Preliminary                                                                                  250

82XA.... Purpose of Division........................................................................ 250

82XB.... The basis of the law relating to administration............................... 250

82XC.... Definitions...................................................................................... 251

Subdivision 2—Appointment of an administrator                                             251

82XD.... Council may appoint administrator................................................ 251

82XE..... Qualifications for appointment as administrator............................ 252

82XF..... Grounds of appointment of an administrator................................. 253

82XG.... Council may give directions to administrator................................. 255

82XH.... Remuneration of administrator....................................................... 255

82XI...... Administrator to displace management of fund or registered organization              255

82XJ..... Administrator of fund may recommend whole organization be placed under administration 256

82XK.... Termination of appointment of administrator................................ 257

Subdivision 3—Duties and powers of the administrator                                  258

82XL..... Main duties of administrator.......................................................... 258

82XM... Day-to-day duties of administrator................................................ 258

82XN.... Powers of administrator................................................................. 259

82XO.... Powers of other officers of registered organization suspended...... 260

82XP..... Administrator taken to act as agent of organization....................... 261

82XQ.... Additional powers of the administrator......................................... 261

Subdivision 4—Information concerning, and records and property of, funds or organizations under administration                                                                                                       261

82XR.... Directors to help administrator...................................................... 261

82XS..... Administrator’s rights to certain records........................................ 263

82XT.... Only administrator can deal with property of fund or organization under administration     264

82XU.... Order for compensation where officer involved in void transaction 265

82XV.... Effect of administration on the members of a registered organization 267

82XW... Protection of property during administration................................ 267

82XX.... Rights of chargee, owner or lessor of property of fund or organization under administration                267

Subdivision 5—Procedure for considering whether to execute voluntary deeds of arrangement    268

82XY.... Definitions...................................................................................... 268

82XZ.... Administrator may convene meeting and inform creditors............. 268

82XZA. Conduct of the meeting................................................................... 269

82XZB.. What creditors may decide............................................................. 270

Subdivision 6—Administrator to report to Council                                          270

82XZC.. Administrator to give report to Council......................................... 270

82XZD. Dealing with the report given to the Council.................................. 272

82XZE.. Administrator to seek order of Court in respect of certain courses of action          274

Subdivision 7—Execution, variation, termination and avoidance of voluntary deeds of arrangement             275

82XZF.. Execution of voluntary deeds of arrangement................................. 275

82XZG. Variation, termination and avoidance of voluntary deeds of arrangement               276

82XZH. Effect of termination of voluntary deeds of arrangement............... 277

Subdivision 8—Additional powers of the Court in relation to administration 278

82XZI... Court may make orders to protect interests of contributors during administration                278

Subdivision 9—Miscellaneous                                                                              278

82XZJ... When an administration begins and ends........................................ 278

82XZK. Indemnity....................................................................................... 279

82XZL.. Effect of things done during administration of fund or registered organization       279

82XZM Time for doing act does not run while act prevented by this Division 280

82XZN. Disclaimer of onerous property..................................................... 280

Division 4—Winding up of funds and registered organizations         281

Subdivision 1—Preliminary                                                                                  281

82YA.... Purpose of Division........................................................................ 281

82YB..... The basis of the law relating to winding up.................................... 281

82YC..... Regulations may modify provisions of this Division for certain purposes             282

82YD.... Definitions...................................................................................... 282

Subdivision 2—The circumstances in which winding up can occur              283

82YE..... When winding up of funds can occur............................................. 283

82YF..... When winding up of registered organizations can occur................. 283

Subdivision 3—Starting the voluntary winding up of health benefits funds 284

82YG.... Resolution for the voluntary winding up of fund cannot be passed in certain circumstances 284

82YH.... Resolution for the voluntary winding up of fund........................... 284

82YI...... Effect of appointing liquidator of fund........................................... 286

82YJ...... Duty of liquidator where fund turns out to be insolvent............... 287

Subdivision 4—Starting the voluntary winding up of registered organizations 287

82YK.... Resolution for the voluntary winding up of organization cannot be passed in certain circumstances    287

82YL..... Resolution for the voluntary winding up of registered organization 288

82YM... Effect of appointing liquidator of registered organization.............. 290

82YN.... Duty of liquidator where registered organization turns out to be insolvent            290

Subdivision 5—Starting the winding up of insolvent funds                             291

82YO.... Application by Council to the Court for winding up a fund.......... 291

82YP..... Application by administrator to the Court for winding up of a fund under administration    292

82YQ.... Orders made on applications for winding up................................. 293

82YR..... Scheme for winding up of fund to be prepared by liquidator......... 293

82YS..... Binding nature of Court orders....................................................... 293

Subdivision 6—Starting the winding up of insolvent registered organizations  293

82YT..... Application by Council to the Court for winding up of a registered organization  293

82YU.... Application by administrator to the Court for winding up of a registered organization under administration       295

82YV..... Orders made on applications for winding up................................. 295

82YW.... Scheme for winding up of a registered organization to be prepared by liquidator   295

82YX.... Binding nature of orders................................................................. 295

Subdivision 7—Procedural provisions relating to winding up of funds or registered organizations             296

82YY..... Notification provisions................................................................... 296

82YZ..... Council may require liquidator to provide information.................. 296

82YZA.. Liquidator of fund or registered organization to determine amounts owed to contributors    297

82YZB.. Application of the assets of funds in winding up situations.......... 298

82YZC.. Liquidator to apportion liabilities between health insurance business and other businesses  300

Subdivision 8—Miscellaneous                                                                              300

82YZD.. When winding up of registered organizations taken to have begun 300

82YZE.. Liability of officers of registered organization for loss to health benefits fund       301

82YZF.. Actions etc. to be stayed on application for winding up............... 301

Division 5—Miscellaneous                                                                                    302

82ZA.... Order of Court to be binding on all persons................................... 302

82ZB..... Compensation for acquisition of property..................................... 302

82ZC..... Continued application of other provisions of Act......................... 303

82ZD.... Regulations may set out modifications of this Act in relation to funds or organizations under administration or being wound up........................................................................................ 303

82ZE..... Jurisdiction of Federal Court of Australia...................................... 304

82ZF..... Regulations dealing with various matters....................................... 304

Part VIB—Merger of health benefits funds                                                        305

82ZN.... Interpretation.................................................................................. 305

82ZP..... Merger of funds.............................................................................. 305


An Act relating to the provision of pharmaceutical, sickness and hospital benefits, and of medical and dental services

  

Part IPreliminary

  

1  Short title [see Note 1]

                         This Act may be cited as the National Health Act 1953.

2  Commencement [see Note 1]

             (1)  Parts I and II shall come into operation on the day on which this Act receives the Royal Assent.

             (2)  The remaining provisions of this Act shall come into operation on such dates as are respectively fixed by Proclamation.

4  Interpretation

             (1)  In this Act, unless the contrary intention appears:

ACAC means an Acute Care Advisory Committee established under section 3B of the Health Insurance Act 1973.

ACAC review levy means an ACAC review levy imposed on registered health benefits organizations under section 6 of the ACAC Review Levy Act.

Note:          ACAC review levy may be imposed on an ACAC review levy day and on a supplementary ACAC review levy day.

ACAC Review Levy Act means the Private Health Insurance (ACAC Review Levy) Act 2003.

adjusted fee government nursing home has the meaning given by section 4AAAA.

adult beneficiary, in relation to hospital cover, means a person covered by that hospital cover, other than a person who is:

                     (a)  under 31 years of age; and

                     (b)  a dependant (but not a spouse) of a contributor in respect of the hospital cover.

applicable benefits arrangement has the meaning given in section 5A.

approved, in relation to a nursing home, has the meaning given in subsection (1AAA) of this section, and approval has a corresponding meaning.

approved nursing home patient means a person who is an approved nursing home patient for the purposes of Part VA by virtue of section 46A.

base rate, in relation to hospital cover, has the meaning given in subclause 1(2) of Schedule 2.

classified patient means an approved nursing home patient or Repatriation nursing home patient in respect of whom a classification under section 40AFA is in force.

collapsed organization levy means a collapsed organization levy imposed on registered health benefits organizations under section 7 of the Collapsed Organization Levy Act.

Collapsed Organization Levy Act means the Private Health Insurance (Collapsed Organization Levy) Act 2003.

collapsed organization levy amount means:

                     (a)  a collapsed organization levy; or

                     (b)  a late payment penalty in respect of an unpaid amount of that levy.

Committee of Inquiry means a Committee of Inquiry established under Part VIII.

contributor, in relation to the health benefits fund conducted by a registered organization, means a person who is a contributor to that fund in accordance with the rules of that organization.

Council means the Private Health Insurance Administration Council established by section 82B.

Council administration levy means a Council administration levy imposed on registered health benefits organizations under section 6 of the Council Administration Levy Act.

Note:          Council administration levy may be imposed on a Council administration levy day and on a supplementary Council administration levy day.

Council Administration Levy Act means the Private Health Insurance (Council Administration Levy) Act 2003.

Council’s rules means rules made by the Council in the performance of its functions under paragraph 82G(r).

day hospital facility means:

                     (a)  premises that were, immediately before 1 April 1995, a day hospital facility (within the meaning of this section as in force at that time), other than premises in respect of which a declaration under subsection 5B(2) is in force; and

                     (b)  premises in respect of which a declaration under subsection 5B(1) is in force.

de facto spouse means a person who is living with another person of the opposite sex on a bona fide domestic basis although not legally married to that other person.

dependant, in relation to a contributor to the health benefits fund conducted by a registered organization, means a person who is a dependant of that contributor in accordance with the rules of that organization.

Director means:

                     (a)  in relation to a State or the Northern Territory—the Officer for the time being holding the office, or performing the duties, of Director of Health for that State or Territory under the Public Service Act 1999; and

                     (b)  in relation to the Australian Capital Territory—the Secretary.

friendly society means:

                     (a)  a body that is a friendly society for the purposes of the Life Insurance Act 1995; or

                     (b)  a body that is registered or incorporated as a friendly society under a law of a State or Territory; or

                     (c)  a body that is permitted, by a law of a State or Territory, to assume or use the expression friendly society; or

                     (d)  a body that, immediately before the date that is the transfer date for the purposes of the Financial Sector Reform (Amendments and Transitional Provisions) Act (No. 1) 1999, was registered or incorporated as a friendly society under a law of a State or Territory.

gap cover scheme means a scheme prepared by a registered organization under which the registered organization is able to offer no gap policies, or known gap policies.

Government nursing home means a nursing home specified by the Minister by notice in writing.

Health Benefits Reinsurance Trust Fund means the Health Benefits Reinsurance Trust Fund established by subsection 73BC(2).

Hospital Casemix Protocol means the Hospital Casemix Protocol prescribed for the purposes of paragraph 73BD(2)(c).

hospital cover has the meaning given in clause 4 of Schedule 2.

hospital purchaser-provider agreement means an agreement entered into under section 73BD.

joint hospital cover means hospital cover in respect of which there is more than one adult beneficiary.

known gap policy means a contract of insurance entered into by a registered organization that covers all but a specified amount or percentage of the full cost of particular hospital treatment and associated professional attention for the person or persons insured.

late payment penalty means a penalty payable under section 83C.

Levy Act means:

                     (a)  the ACAC Review Levy Act; or

                     (b)  the Collapsed Organization Levy Act; or

                     (c)  the Council Administration Levy Act; or

                     (d)  the Reinsurance Trust Fund Levy Act.

medical purchaser-provider agreement means an agreement entered into under section 73BDA.

new prudential standards day means the day on which the Council establishes:

                     (a)  a solvency standard for the purposes of Division 3A of Part VI of this Act; and

                     (b)  a capital adequacy standard for the purposes of Division 3B of that Part.

no gap policy means a contract of insurance entered into by a registered organization that covers the full cost of particular hospital treatment and associated professional attention for the person or persons insured.

nursing home means premises:

                     (a)  that are fitted, furnished and staffed for the purpose of providing accommodation and nursing care for patients who, by reason of infirmity or illness, disease, incapacity or disability, have a continuing need for nursing care; and

                     (b)  in which patients of that kind are received and lodged exclusively for the purpose of providing them with accommodation and nursing care;

but does not include:

                     (c)  a hospital;

                     (d)  an institution carried on exclusively or principally for the care and treatment of mentally ill or mentally defective persons, being an institution conducted by, or in receipt of a grant for maintenance from, a State.

nursing home adviser means a person included in a class of persons that the Secretary determines by instrument in writing to be advisers for the purposes of this definition.

nursing home care means accommodation and nursing care of a kind provided in a nursing home, and includes any prescribed service of a kind provided in a nursing home.

nursing home for disabled people means:

                     (a)  a nursing home approved on or after 1 July 1987 where the certificate of approval under section 41 states that the home is approved as a nursing home for disabled people; or

                     (b)  any other approved nursing home declared by the Minister, by written notice, to be a nursing home for disabled people.

official appointee, in relation to the proprietor of a nursing home (other than a Government nursing home), means:

                     (a)  if the proprietor is a body corporate:

                              (i)  a liquidator or official manager of the proprietor; or

                             (ii)  a receiver, or receiver and manager, of the whole of the proprietor’s property, or a part of the proprietor’s property that includes the nursing home or the business or undertaking carried on at the nursing home; or

                     (b)  if the proprietor is a natural person—a person appointed as the trustee in bankruptcy of the proprietor; or

                     (c)  a person appointed under a law of a State or Territory to conduct the nursing home; or

                     (d)  a person appointed, under an instrument under which the nursing home is or may become security for a debt owed by the proprietor or any other person, to manage the affairs of the nursing home on behalf of the person to whom the debt is owed; or

                     (e)  a person included in a class of persons that the Secretary determines by instrument in writing to be official appointees for the purposes of this paragraph.

organization means a society, body or group of persons, whether corporate or unincorporate, which conducts a health benefits fund.

outreach service means any service specified in a determination under section 5D, that is provided to a patient by, or on behalf of, a hospital or a day hospital facility, as a direct substitute for hospital treatment that would otherwise be provided in a hospital or day hospital facility, but does not include service provided by a medical practitioner that would attract a Medicare benefit of 85% of the scheduled fee.

patient:

                     (a)  in relation to a day hospital facility, means:

                              (i)  a person who attends the day hospital facility for the purpose of permitting the provision of professional attention to the person at the day hospital facility; or

                             (ii)  a person who receives an outreach service provided by, or on behalf of, the day hospital facility; and

                     (b)  in relation to a hospital, does not include:

                              (i)  a member of the staff of the hospital who is receiving treatment in his or her own quarters; or

                             (ii)  except as provided by subsection 3(2) of the Health Insurance Act 1973, a newly-born child whose mother also occupies a bed in the hospital.

permitted days without hospital cover has the meaning given in clause 3 of Schedule 2.

pharmacist means a person registered as a pharmacist or pharmaceutical chemist under a law of a State or Territory providing for the registration of pharmacists or pharmaceutical chemists, and includes a friendly society or other body of persons (whether corporate or unincorporate) carrying on business as a pharmacist.

practitioner agreement means an agreement of the kind referred to in subsection 73BDAA(1).

premises includes a part of premises.

private health insurance levy means:

                     (a)  an ACAC review levy; or

                     (b)  a collapsed organization levy; or

                     (c)  a Council administration levy; or

                     (d)  a Reinsurance Trust Fund levy.

proprietor means:

                     (a)  in relation to a Government nursing home—the authority or body of persons conducting the nursing home; or

                     (b)  in relation to any other nursing home—the owner of the business or undertaking carried on at the nursing home.

qualified nursing home patient means a person who occupies a bed in an approved nursing home for the purpose of nursing home care, but does not include:

                    (aa)  a short-term respite care patient;

                     (a)  a member of the staff of the nursing home receiving nursing home care in the member’s own quarters;

                     (b)  subject to subsection (1C), a newly born child whose mother also occupies a bed in the nursing home; or

                     (c)  a Repatriation nursing home patient.

records, in relation to a registered organization, includes claims for fund benefits by contributors lodged with the organization and any other documents in the custody or control of the organization relating to such claims.

registered health benefits organization means an organization registered under Part VI for the purpose of conducting a health benefits fund.

registered organization means an organization registered under Part VI.

Reinsurance Trust Fund levy means a Reinsurance Trust Fund levy imposed on registered health benefits organizations under section 6 of the Reinsurance Trust Fund Levy Act.

Note:          Reinsurance Trust Fund levy may be imposed on a Reinsurance Trust Fund levy day and on a supplementary Reinsurance Trust Fund levy day.

Reinsurance Trust Fund Levy Act means the Private Health Insurance (Reinsurance Trust Fund Levy) Act 2003.

Repatriation nursing home patient means a patient who is receiving nursing home care in an approved nursing home in accordance with arrangements entered into:

                     (a)  under paragraph 89(1)(b) or (c) of the Veterans’ Entitlements Act 1986; or

                     (b)  under section 285 of the Military Rehabilitation and Compensation Act 2004.

restricted membership organization means an organization the rules of which restrict eligibility for membership by reference to:

                     (a)  employment or former employment in a profession, trade, industry or calling;

                     (b)  employment or former employment by a particular employer or by an employer included in a particular class of employers;

                     (c)  membership or former membership of a particular profession, professional association or union;

                     (d)  membership or former membership of the Defence Force or of a part of the Defence Force; or

                     (e)  any other prescribed matter;

not being an organization that has notified the Secretary in writing that it does not wish to be subject to the provisions of this Act relating to restricted membership organizations.

rules, in relation to a registered organization, means the body of principles devised by the management of the organization that relate to the day-to-day operation of the health benefits fund conducted by the organization and include principles for determining the rates of contribution for contributors and the benefit entitlements, and the conditions relating to benefit entitlements, for contributors and for their dependants.

Schedule 2 application day has the meaning given in clause 5 of Schedule 2.

Secretary:

                     (a)  where the expression is used in a provision that is administered solely by the Minister for Health—means the Secretary to the Department of Health;

                     (b)  where the expression is used in a provision that is administered solely by the Minister for Community Services—means the Secretary to the Department of Community Services; and

                     (c)  where the expression is used in a provision that is administered in part by the Minister for Health and in part by the Minister for Community Services, then:

                              (i)  in the application of the provision in so far as it is administered by the Minister for Health—means the Secretary to the Department of Health; and

                             (ii)  in the application of the provision in so far as it is administered by the Minister for Community Services—means the Secretary to the Department of Community Services.

short-term respite care patient means a person:

                     (a)  whose admission to an approved nursing home has been approved by the Minister under section 40AB; and

                     (b)  who occupies a bed in an approved nursing home temporarily vacated by a qualified nursing home patient, or a Repatriation nursing home patient, of the nursing home on a day on which the patient is absent from the nursing home pursuant to an agreement made under subsection 4AA(2);

but does not include a Repatriation nursing home patient.

spouse includes a de facto spouse.

temporary operator, in relation to a nursing home, means a person who:

                     (a)  is an official appointee in relation to the proprietor of the nursing home; and

                     (b)  in relation to whom an approval under section 39BA is in force.

Territory means an internal Territory.

transferred home means:

                     (a)  a nursing home approved on or after 1 July 1987 where:

                              (i)  an application for a certificate under subsection 3A(2) of the Nursing Homes Assistance Act 1974 was made before 1 July 1987;

                             (ii)  the object of the proposal to which the application for a certificate related was to transfer to the nursing home an approval under the Nursing Homes Assistance Act 1974 in respect of another nursing home conducted by the same proprietor on the same or a different site;

                            (iii)  a certificate under subsection 39A(2) is granted on or after 1 July 1987; and

                            (iv)  the proprietor, in the application for approval of the nursing home, requests that the nursing home be treated as a transferred home for the purposes of this Act;

                     (b)  a nursing home, other than a nursing home to which paragraph (a) applies, approved on or after 1 July 1987 but before 1 July 1991 where:

                              (i)  a certificate under subsection 3A(2) of the Nursing Homes Assistance Act 1974 was in force on 30 June 1987; and

                             (ii)  the proprietor, in the application for approval of the nursing home, requests that the nursing home be treated as a transferred home for the purposes of this Act; and

                     (c)  a nursing home, other than a nursing home to which paragraph (a) or (b) applies, that:

                              (i)  on 30 June 1987 was an approved nursing home within the meaning of the Nursing Homes Assistance Act 1974; and

                             (ii)  is not specified in a notice published under subsection 41(1) of the Nursing Homes and Hostels Legislation Amendment Act 1987.

waiting period, in relation to a contributor to the health benefits fund conducted by a registered organization, means a period:

                     (a)  that starts on the day on which the contributor becomes a contributor for benefits in accordance with an applicable benefits arrangement or table of benefits of the organization; and

                     (b)  during which, under the rules of the organization, the contributor is not entitled to fund benefits in accordance with that arrangement or table.

          (1A)  In this Act, unless the contrary intention appears, a word or phrase defined for the purposes of the Health Insurance Act 1973 has the meaning that it would have if used in that Act.

     (1AAA)  A reference in this Act to a nursing home being approved is a reference to an approval having been in force, or having been deemed to be in force, under Part V, in respect of the nursing home, immediately before the commencement of the Aged Care Act 1997 (other than Division 1 of that Act).

       (1AA)  Where a bodily specimen is obtained from a person while the person is a patient of a hospital or day hospital facility, any pathology service performed in relation to that specimen after the person ceases to be such a patient is taken, for the purposes of subparagraph (a)(ii) and paragraph (b) of the definition of applicable benefits arrangement in subsection 5A(1), to have been rendered to the person while the person was such a patient.

          (1C)  For the purposes of the definition of qualified nursing home patient in subsection (1), where a mother and 2 or more newly born children of that mother occupy beds in an approved nursing home, one of those children, or each of those children in excess of one, shall be deemed to be a qualified nursing home patient.

             (5)  A reference in this Act to the conditions applicable to a nursing home shall be read as a reference to the conditions to which the approval of a nursing home is subject by virtue of subsections 40AA(5A) and (6).

4AA  Recognised days of absence of qualified nursing home patients etc.

             (1)  For the purposes of this Act, a day is a recognized day of absence of a qualified nursing home patient from an approved nursing home if:

                     (a)  the patient is absent from the nursing home on the day pursuant to an agreement made under subsection (2); and

                     (b)  the day is, for the purposes of this section, an eligible day in relation to the patient.

             (2)  For the purposes of this Act, a qualified nursing home patient, or a Repatriation nursing home patient, of an approved nursing home, or a person acting on behalf of such a patient, and the proprietor of the nursing home may enter into an agreement, in accordance with the appropriate common form of agreement authorized under subsection (3), with respect to the absence of the patient from the nursing home.

             (3)  The relevant Minister may, by writing, authorize a common form of agreement with respect to the absence of a qualified nursing home patient or a Repatriation nursing home patient, as the case requires, from an approved nursing home.

             (4)  A common form of agreement shall make provision for and in relation to such matters as the relevant Minister considers appropriate.

             (5)  Without limiting the generality of subsection (4), a common form of agreement authorized under subsection (3) with respect to the absence of a qualified nursing home patient or a Repatriation nursing home patient from an approved nursing home may make provision for and in relation to:

                     (a)  notices to be given by, or on behalf of, the patient to the proprietor of the nursing home in relation to the absence of the patient;

                     (b)  requiring the proprietor of the nursing home, upon the return of the patient in circumstances of a kind specified in the agreement, to allow the patient to occupy the same bed that the patient occupied immediately before the absence of the patient;

                     (c)  deeming the patient, for the purposes of this Act, to have been discharged from the nursing home in circumstances of a kind specified in the agreement;

                     (d)  except in the case of a Government nursing home, the fees or extra charges (in this section referred to as the bed retention fees) that may be charged in respect of the absence, or retention of the bed, of the patient;

                     (e)  the deduction of Commonwealth benefit within the meaning of Part VA and other amounts from the bed retention fees; and

                      (f)  in the case of a transferred home that does not contain exempt beds, limiting bed retention fees to an amount not exceeding the amount applicable for the purpose of subparagraph 47(2)(b)(iii).

          (5A)  For the purposes of this section:

                     (a)  a qualified nursing home patient shall be taken to be absent from an approved nursing home on the day on which the patient leaves the nursing home to commence an absence from the nursing home pursuant to an agreement made under subsection (2); and

                     (b)  a qualified nursing home patient shall not be taken to be absent from an approved nursing home on the day on which the patient returns to the nursing home after an absence from the nursing home pursuant to an agreement made under subsection (2) or, if the patient dies while he or she is absent from the nursing home pursuant to such an agreement, on the day on which he or she dies.

             (6)  For the purposes of this section, a day in a relevant period is an eligible day in relation to a qualified nursing home patient of an approved nursing home if, on that day, the patient is absent from the nursing home and:

                     (a)  that absence is due to the fact that the patient has to be, is, or has been, in attendance at a hospital for the purpose of receiving hospital treatment; or

                     (b)  where paragraph (a) does not apply:

                              (i)  if the relevant period is the year commencing on 1 July 1989—the number of recognised days of absence of the patient from the approved nursing home or another approved nursing home before that day during the relevant period is less than 28; or

                             (ii)  in any subsequent relevant period—the number of recognised days of absence of the patient from the approved nursing home or another approved nursing home before that day during the relevant period (excluding any day that is a recognised day because paragraph (a) applies) is less than 28.

          (6A)  For the purposes of the application of paragraph (6)(b) in relation to a day of absence during a relevant period, any days to which section 46AB has applied in relation to the patient in question during the relevant period are to be treated as recognised days of absence of the patient (whether or not the patient was, during any of those days, in attendance at a hospital for the purpose of receiving hospital treatment).

             (7)  In this section, relevant period, in relation to a qualified nursing home patient, means the year commencing on 1 July 1985 and each subsequent year.

             (9)  For the purposes of sections 46A, 47, 48, 48A, 49, 59 and 60A:

                     (a)  a qualified nursing home patient shall be deemed to be receiving nursing home care in an approved nursing home and to be an approved nursing home patient in the nursing home on each recognized day of absence of the patient from the nursing home; and

                     (b)  a reference (other than a reference in subsection 47(2)) to the fees charged in respect of nursing home care of the patient on such a day is a reference to the bed retention fees charged in respect of the patient for that day.

           (10)  Where a qualified nursing home patient or a Repatriation nursing home patient dies while absent from an approved nursing home pursuant to an agreement under subsection (2):

                     (a)  the definition of short-term respite care patient in subsection 4(1), this section and subsections 40AA(6) and 40AB(5A) have effect as if the patient:

                              (i)  had been absent on each day (if any) after the death of the patient and before the day next following the day on which the proprietor was informed of the death of the patient; and

                             (ii) had died at the end of the last of the days first referred to in subparagraph (i); and

                     (b)  if the proprietor of the nursing home is not informed of the death within the period of 48 hours after the death, the proprietor shall be taken, for the purposes of paragraph (a), to have been so informed at the end of the period of 48 hours after the death of the patient.

           (11)  A reference in subsection (3) or (4) to the relevant Minister is a reference to:

                     (a)  in a case where the subsection applies in relation to a common form of agreement with respect to the absence of a qualified nursing home patient from an approved nursing home—the Minister administering this Act; or

                     (b)  in a case where the subsection applies in relation to a common form of agreement with respect to the absence of a Repatriation nursing home patient from an approved nursing home—the Minister administering the Veterans’ Entitlements Act 1986.

5A  Applicable benefits arrangement

             (1)  A reference in this Act to an applicable benefits arrangement is a reference to an arrangement that a registered organization has entered into with some or all of the contributors to the health benefits fund conducted by the organization under which the contributors are covered (wholly or partly) for liability to pay fees and charges:

                     (a)  in respect of:

                              (i)  some or all hospital treatment provided to a patient by a hospital or a day hospital facility with which the organization has a hospital purchaser-provider agreement; and

                             (ii)  all professional services that are rendered to the patient by a medical practitioner while that hospital treatment is being provided, and that are professional services in respect of which a medicare benefit is payable; or

                     (b)  in respect of some or all professional services that are rendered to a patient by a medical practitioner while hospital treatment is provided to the patient in a hospital or a day hospital facility, and that are professional services in respect of which a medicare benefit is payable.

             (2)  For the avoidance of doubt, the application of subsection (1) is not affected by:

                     (a)  the existence or non-existence of a medical purchaser-provider agreement between the organization and a medical practitioner referred to in that subsection; or

                     (b)  the existence or non-existence of a hospital purchaser-provider agreement between the organization and a hospital or day hospital facility referred to in that subsection; or

                     (c)  the existence or non-existence of a practitioner agreement between a hospital or day hospital facility referred to in that subsection and a medical practitioner referred to in that subsection.

             (3)  In this section:

medical practitioner includes:

                     (a)  an accredited dental practitioner; and

                     (b)  a dental practitioner approved by the Minister for the purposes of the definition of professional service in subsection 3(1) of the Health Insurance Act 1973.

5AB  Changes in the instruments of a registered organization relating to rates of contribution

                   If a registered organization changes its constitution, its articles of association or its rules so that the constitution, articles or rules as changed:

                     (a)  provide, or purport to provide, for discounted rates of contribution to the health benefit fund conducted by that organization; or

                     (b)  implement, or purport to implement, loyalty bonus schemes of the kind referred to in paragraph (ma) of Schedule 1 for certain contributors to the health benefits fund contributed by that organization;

those changes in the constitution, articles or rules are not to be taken, for any purpose of this Act, to be changes that relate to the rate of contribution of contributors to that fund.

5B  Declarations in relation to day hospital facilities

             (1)  The Minister may, in writing, declare premises specified in the declaration to be a day hospital facility for the purposes of this Act and the Health Insurance Act 1973.

             (2)  The Minister may, in writing, declare premises specified in the declaration, being premises that were, immediately before the commencement of this section, a day hospital facility within the meaning of subsection 4(1) as in force at the time, not to be a day hospital facility for the purposes of this Act and the Health Insurance Act 1973.

             (3)  A declaration under subsection (1) may be expressed to take effect from a day earlier than the day on which the declaration is made (not being a day earlier than the day on which the premises specified in the declaration were licensed, under the law of the State in which they are located, to operate as a day hospital facility).

          (3A)  For the purposes of this Act and the Health Insurance Act 1973, a declared day hospital facility must provide data specified in the Hospital Casemix Protocol:

                     (a)  in a patient identifiable state, to a registered private health insurance organisation that has an applicable benefits agreement with the patient; and

                     (b)  in a patient de-identified state, to the Department.

             (4)  A decision whether to make a declaration under this section must be in accordance with any guidelines in force under subsection (5).

             (5)  The Minister may, by written instrument, make guidelines relating to the making of such decisions.

             (6)  The guidelines are disallowable instruments for the purposes of section 46A of the Acts Interpretation Act 1901.

5C  Extension of this Act and the Health Insurance Act 1973 in relation to outreach services

             (1)  In this Act and the Health Insurance Act 1973 (other than an excluded provision):

                     (a)  a reference to hospital treatment includes a reference to the provision of an outreach service; and

                     (b)  a reference to hospital treatment provided in, at or by a hospital or a day hospital facility includes a reference to an outreach service provided by, or on behalf of, a hospital or a day hospital facility; and

                     (c)  a reference to a patient receiving treatment in or at a hospital or a day hospital facility includes a reference to a patient receiving an outreach service provided by, or on behalf of, a hospital or a day hospital facility.

             (2)  In this section:

excluded provision means any of the following provisions:

                     (a)  subsection 5B(3) of the Health Insurance Act 1973;

                     (b)  section 67 of this Act;

                     (c)  Division 5A of Part VI of this Act.

5D  Minister may specify outreach services

             (1)  The Minister may, by written determination, specify services provided by, or on behalf of, a specified hospital or day hospital facility for the purposes of the definition of outreach service in subsection 4(1).

Note:          Under subsection 33(3) of the Acts Interpretation Act 1901, the Minister may vary or revoke etc. a determination under this section.

             (2)  A determination under this section:

                     (a)  comes into force on the day specified in the determination; and

                     (b)  remains in force for the period specified in the determination, unless sooner revoked.

             (3)  A determination under this section is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

5E  Review of extension of this Act and the Health Insurance Act 1973 in relation to outreach services

             (1)  The Minister must cause an independent review of the operation of the extension of this Act and the Health Insurance Act 1973 in relation to outreach services to be undertaken.

             (2)  The Minister must cause a copy of the report of the review to be tabled in each House of Parliament not later than 30 June 2003.

             (3)  In this section:

                   independent review means a review, and a report to the Minister, undertaken by persons who:

                     (a)  in the Minister’s opinion possess appropriate qualifications to undertake the review; and

                     (b)  include at least one person who:

                              (i)  is not employed by the Commonwealth or a Commonwealth authority; or

                             (ii)  has not, since the commencement of this Act, provided services to the Commonwealth or a Commonwealth authority, under or in connection with a contract.

6  Delegation

             (1)  The Minister may, either generally or as otherwise provided by the instrument of delegation, by writing signed by the Minister, delegate to a person (including the Secretary) all or any of the Minister’s powers under this Act or the regulations, other than:

                     (a)  this power of delegation; or

                    (aa)  the Minister’s power under subsection 78(4A); or

                     (b)  the Minister’s powers under section 95.

             (2)  A power so delegated under subsection (1), when exercised by the delegate, shall, for the purposes of this Act or the regulations, be deemed to have been exercised by the Minister.

             (3)  A delegate under subsection (1) is, in the exercise of a power so delegated, subject to the directions (if any) of the Minister.

             (4)  A delegation under subsection (1) does not prevent the exercise of a power by the Minister.

             (5)  The Secretary may, either generally or as otherwise provided by the instrument of delegation, by writing signed by the Secretary, delegate to a person all or any of the Secretary’s powers under this Act or the regulations other than:

                     (a)  this power of delegation; or

                     (b)  the Secretary’s powers under section 95.

             (6)  A power so delegated under subsection (5), when exercised by the delegate, shall, for the purposes of this Act or the regulations, be deemed to have been exercised by the Secretary.

             (7)  A delegate under subsection (5) is, in the exercise of a power so delegated, subject to the directions (if any) of the Secretary.

             (8)  A delegation under subsection (5) does not prevent the exercise of a power by the Secretary.

6A  External Territories

                   This Act extends to the Territory of Cocos (Keeling) Islands and to the Territory of Christmas Island.

7  Application of provisions of Corporations Act—general matters

             (1)  For the purposes of this section:

                     (a)  an application provision is a provision of this Act:

                              (i)  that provides for the application of a provision, or a group of provisions (including a Chapter, Part, Division or Subdivision), of the Corporations Act 2001; or

                             (ii)  that refers to a provision, or group of provisions, of the Corporations Act 2001 as so applied; and

                     (b)  an applied Corporations Act provision is a provision, or a provision in a group of provisions, of the Corporations Act 2001 that is applied as mentioned in subparagraph (a)(i).

             (2)  A reference in an application provision to an applied Corporations Act 2001 provision, or a group of applied Corporations Act 2001 provisions, includes (unless the contrary intention appears) a reference to any regulations or other instruments in force for the purposes of that provision, or any of those provisions, of the Corporations Act 2001.

Note:          So, for example, a provision of this Act that applies a particular provision of the Corporations Act 2001 also applies any regulations that have effect for the purposes of that provision (unless a contrary intention appears).

             (3)  If an application provision contains a power for regulations to modify an applied Corporations Act provision:

                     (a)  the power extends to modifying any regulations or other instruments in force for the purposes of that provision of the Corporations Act 2001, being regulations or other instruments that are applied as a result of subsection (2); and

                     (b)  the modifications (whether of the applied Corporations Act provision or of regulations or instruments referred to in paragraph (a)) that may be made include omissions, additions and substitutions.

             (4)  The fact that provision is made in this Act for a specific modification of one or more applied Corporations Act provisions does not imply that further modifications of that provision, or any of those provisions, consistent with that specific modification, should not be made by the regulations.

             (5)  An applied Corporations Act provision, or a provision of regulations or another instrument that is applied as a result of subsection (2), is (as so applied) to be interpreted in accordance with the same definitions and interpretation principles that apply to the provision as it has effect in or under the Corporations Act 2001, unless a contrary intention appears in an application provision or in modifying regulations.

             (6)  If an applied Corporations Act provision allows something to be done in or by regulations, then:

                     (a)  regulations may be made under this Act to do that thing for the purposes of the applied Corporations Act provision; and

                     (b)  if regulations are so made, any regulations or instruments that are applied as a result of subsection (2) are ineffective, for the purposes of this Act, to the extent that they are inconsistent with the regulations so made.

7A  Application of the Criminal Code

                   Chapter 2 (other than Part 2.5) of the Criminal Code applies to all offences against this Act.

Note:          Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.


 

Part IINational health services

  

8  Interpretation

                   In this Part, Territory includes an external Territory to which this Act extends.

9  Provision of certain medical and dental services

             (1)  The Governor-General may provide, or arrange for the provision of:

                     (a)  aerial medical and dental services;

                     (b)  diagnostic and therapeutic services for medical practitioners and hospitals, and for patients of medical practitioners or hospitals;

                     (c)  teaching, research and advisory services in relation to maternal and child health;

                     (d)  teaching, research and advisory services for or in relation to the improvement of health or the prevention of disease; and

                     (e)  anything incidental to a service referred to in paragraph (a), (b), (c) or (d).

             (2)  The Minister may disseminate information relating to health or the prevention of disease.

9A  Provision of medical and surgical aids and appliances etc. by the Commonwealth

             (1)  The Minister may, on behalf of the Commonwealth, arrange for:

                     (a)  the supply by the Commonwealth of such medical or surgical aids, equipment or appliances as are prescribed to persons who require them;

                     (b)  the making of any modifications to a building, vehicle or equipment that are necessary for the treatment or rehabilitation of a sick or disabled person.

             (2)  Subject to the provisions of an arrangement made under subsection 9C(1), a hearing aid, or any other medical or surgical aid, equipment or appliance of a kind prescribed for the purposes of this subsection, that is supplied under this section remains the property of the Commonwealth notwithstanding any purported disposition or pledging of the aid, equipment or appliance by any person.

             (3)  The Minister may impose such conditions as the Minister thinks fit on the use or possession of aids, equipment or appliances supplied, or to be supplied, under subsection (1).

             (4)  The regulations may make provision with respect to the supply of aids, equipment or appliances, or the making of modifications, under subsection (1), including provision for offences with respect to the use or possession of aids, equipment or appliances so supplied.

9B  Provision of vaccines

                   The Minister may provide, or arrange for the provision of, vaccine for the purpose of immunizing persons against any of the following diseases:

                     (a)  poliomyelitis;

                    (aa)  mumps;

                     (b)  measles;

                     (c)  rubella; and

                     (d)  any other disease prescribed by the regulations for the purposes of this paragraph.

9C  Arrangements with States for provision of surgical aids and appliances etc.

             (1)  The Minister may, on behalf of the Commonwealth, enter into an arrangement with a State, a Territory or a body corporate established for a public purpose under a law of a State or Territory for and in relation to:

                     (a)  the supply of medical or surgical aids, equipment or appliances prescribed for the purposes of paragraph 9A(1)(a) to persons who require them; and

                     (b)  the making of any modifications to a building, vehicle or equipment that are necessary for the treatment or rehabilitation of a sick or disabled person.

             (2)  Without limiting the generality of subsection (1), an arrangement entered into under that subsection with a State, a Territory or a body corporate may provide for:

                     (a)  the payment by the Commonwealth of amounts to the State, Territory or body corporate, as the case may be, in connection with the carrying out of the arrangement; and

                     (b)  the transfer to the State, Territory or body corporate, as the case may be, of medical or surgical aids, equipment or appliances owned by the Commonwealth.

             (4)  An arrangement entered into under subsection (1) may be expressed to have taken effect from a day earlier than the day on which the arrangement was entered into.

10  Arrangements with other Ministers

                   The Minister may make an arrangement with any other Minister for the performance by that other Minister of a service in connexion with a service, matter or thing for which provision is made by or under this Part.

11  Arrangements with States

             (1)  The Governor-General may enter into an arrangement with the Governor of a State or the Administrator of a Territory for the performance by that State or Territory of a service in connexion with a service, matter or thing for which provision is made by or under this Part.

             (2)  An arrangement entered into under this section may provide for payments by the Commonwealth to the State or Territory in respect of capital expenditure or maintenance expenditure incurred by the State or Territory at the request of the Commonwealth in connexion with the service performed by the State or Territory.

             (3)  Any arrangement entered into under this section which provides for payments by the Commonwealth to a State or Territory in respect of expenditure referred to in subsection (2) shall provide for information to be supplied to the Minister by such persons, at such times and in such manner and form as the Minister requires.

             (4)  An arrangement entered into under this section shall provide:

                     (a)  that property the cost of which, or part of the cost of which, has been paid by the Commonwealth to the State or Territory under the arrangement shall not, except with the approval of the Minister, be used otherwise than for the purpose for which the property was acquired; and

                     (b)  for the indemnification of the Commonwealth:

                              (i)  in the event of the acquisition by the Commonwealth of property the cost of which has been paid by the Commonwealth to the State or Territory under the arrangement—against payment by way of compensation for the acquisition of that property; and

                             (ii)  in the event of the acquisition by the Commonwealth of property the cost of which was paid in part by the Commonwealth to the State or Territory under the arrangement—against payment by way of compensation proportionate to the cost so paid.


 

Part VApproved nursing homes

  

39  Interpretation

                   In this Part, unless the contrary intention appears:

additional exempt bed fee, in relation to each exempt bed in a nursing home means:

                     (a)  unless paragraph (b) applies—the amount that was, under paragraph 39AB(3)(a), included in the information accompanying the application for exempt bed status for each of those beds as the amount that the proprietor proposed to charge in respect of nursing home patients occupying any such bed, if those beds were granted exempt status, in addition to the reference fee that would be applicable to that patient in that bed; and

                     (b)  if that amount has been redetermined by the proprietor of that nursing home under subsection 40AD(1BB)—the amount as so redetermined or as last so redetermined.

approved operator means a person in relation to whom an approval under section 39BA was, immediately before the commencement of the Aged Care Act 1997 (other than Division 1 of that Act), in force.

assessed annual infrastructure cost, in relation to an approved nursing home, means the annual infrastructure cost of that nursing home determined in accordance with principles formulated under subsection 40AA(7).

authorised means authorised, in writing, by the Minister.

Class 1 nursing home means an approved nursing home that:

                     (a)  was approved under this Act before 1 July 1987;

                     (b)  became a transferred home on 1 July 1987 by virtue of section 4 of the Nursing Homes and Hostels Legislation Amendment Act 1987;

                     (c)  was approved under this Act on or after 1 July 1987 following the issue, before 1 April 1987, of a certificate under subsection 39A(2) of this Act or subsection 3A(2) of the Nursing Homes Assistance Act 1974; or

                     (d)  was approved under this Act on or after 1 July 1987 where:

                              (i)  an application for a certificate under subsection 39A(2) of this Act or subsection 3A(2) of the Nursing Homes Assistance Act 1974 was made before 1 July 1987;

                             (ii)  the object of the proposal to which the application related was to transfer to the nursing home an approval under the Nursing Homes Assistance Act 1974 or this Act in respect of another nursing home conducted by the same proprietor on the same or a different site; and

                            (iii)  a certificate under subsection 39A(2) or (2A) was issued on or after 1 July 1987.

Class 2 nursing home means an approved nursing home, other than a Class 1 nursing home.

Commonwealth benefit means an amount payable by the Commonwealth by way of benefit in accordance with Part VA.

estimated daily average bed number, in relation to an approved nursing home for a financial year, means the estimated daily average number of beds in the nursing home to be occupied during the financial year determined in accordance with principles formulated under subsection 40AA(7).

exempt bed means a bed that has been granted status as an exempt bed under section 39AB or 39AD.

hospital leave, in relation to a patient in an approved nursing home, means any period of absence when the patient is required to be absent from the nursing home because the patient has to be, is, or has been, in attendance at a hospital for the purpose of receiving hospital treatment.

lowest classification, in relation to a patient in an approved nursing home, means the classification that represents the lowest degree of need of nursing and personal care.

maximum bed number, in relation to a State or Territory in relation to a relevant period, means the number specified in a notice in force under subsection 39AA(1) as the maximum bed number for that State or Territory for that period.

maximum ordinary bed number, in relation to a region within a State or Territory in relation to a relevant period, means the number specified in a notice in force under subsection 39AA(2) as the maximum ordinary bed number for that region for that period.

maximum special bed number, in relation to a State or Territory in relation to a relevant period, means the number specified in a notice in force under subsection 39AA(3) as the maximum special bed number for that State or Territory for that period.

notional fee, in relation to the provision of nursing home care (other than care of a kind in respect of which benefit is paid under section 48B, 48C, 48D, 48E or 49) to an approved nursing home patient in an approved nursing home (other than a Government nursing home or a nursing home for disabled people) on a particular day, means the fee applicable in respect of the provision of nursing home care to the patient on that day in accordance with the scale of fees determined by the Secretary under section 46D.

reference fee, in relation to a nursing home patient in an exempt bed in a nursing home, means:

                     (a)  unless paragraph (b) applies:

                              (i)  where that patient is a patient in a Class 2 nursing home—the notional fee that would apply to that patient and that nursing home if the beds in that nursing home were not exempt beds; and

                             (ii) where the patient is a patient of a Class 1 nursing home—the fee determined by the Minister, having regard to the amount that would be the notional fee applying to that patient and that nursing home if that nursing home were a Class 2 nursing home and if the beds in that nursing home were not exempt beds; and

                     (b)  if that fee or amount has been redetermined under subsection 40AD(1BH)—the fee or amount as so redetermined or as last so redetermined.

relevant period means:

                     (a)  the period commencing on 1 December 1986 and ending on 30 June 1987;

                     (b)  the year commencing on 1 July 1987; or

                     (c)  a succeeding year.

special needs group means a class of persons determined by the Minister, in writing, to be a special needs group for the purposes of this definition.

40AA  Government nursing homes

             (1)  On and after the commencement of the Aged Care Act 1997 (other than Division 1 of that Act), this section applies only to an approved nursing home that is a Government nursing home.

          (5A)  The approval of premises as an approved nursing home is subject to the condition that, where a Commonwealth benefit is payable, or has been paid, to the proprietor of the nursing home in respect of a patient for a period, the proprietor shall deduct the amount of that benefit from the fees charged in respect of nursing home care for that patient during that period.

          (5B)  For the purposes of the operation of the condition set out in subsection (5A), any Commonwealth benefit that would be payable to the proprietor of the nursing home but for the suspension of the approval of the nursing home shall be deemed to be payable to that proprietor.

             (6)  The approval of premises as an approved nursing home is subject to the following conditions:

                     (a)  a condition that the number of beds available in the nursing home for qualified nursing home patients or Repatriation nursing home patients will not at any time exceed such number of beds as is determined from time to time by the Minister as the approved number of beds in relation to the nursing home;

                    (aa)  a condition that, where the Minister determines, in writing, that the admission of persons to the nursing home as qualified nursing home patients is to be in accordance with a special purpose of the nursing home specified in the determination, the operations of the nursing home are to be carried out in a manner consistent with that determination;

                     (b)  a condition that a person will not be admitted to the nursing home as a qualified nursing home patient unless an approval under subsection 40AB(3) in relation to the person is in force or the circumstances are such that it is not practicable for such an approval to be obtained before the admission of the person;

                    (ba)  a condition that, where an agreement is entered into under subsection 4AA(2) between the proprietor and a qualified nursing home patient, or a Repatriation nursing home patient, of the nursing home, or a person acting on behalf of such a patient, with respect to the absence of the patient, the proprietor shall comply with the agreement;

                    (bb)  a condition that, where a qualified nursing home patient, or a Repatriation nursing home patient, of the nursing home (in this paragraph referred to as the permanent patient) is absent from the nursing home pursuant to an agreement of the kind referred to in paragraph (ba), the proprietor shall not:

                              (i)  allow the bed that the permanent patient occupied before the absence of the permanent patient (in this paragraph referred to as the permanent patient’s bed) to be occupied during the absence of the permanent patient by a person other than a person who is a leave respite care patient or who is a Repatriation nursing home patient;

                             (ii)  in a case where the nursing home is not a Government nursing home or transferred home, charge a short-term respite care patient who occupies the permanent patient’s bed during the absence of the permanent patient a fee in respect of nursing home care that exceeds the difference between:

                                        (A)  the maximum fee that, had the permanent patient been receiving nursing home care in the nursing home as a qualified nursing home patient (other than a qualified nursing home patient in respect of whom an approval under section 40AF is in force) on that day, the permanent patient could have been charged for the nursing home care without contravening the condition set out in subparagraph (c)(i); and

                                        (B)  the amount of the Commonwealth benefit that, had the permanent patient been receiving nursing home care in the nursing home as a qualified nursing home patient (other than a qualified nursing home patient in respect of whom an approval under section 40AF is in force) on that day, would have been payable under section 47; or

                            (iii)  where the nursing home is a transferred home, charge a short-term respite care patient who occupies the permanent patient’s bed during the absence of the permanent patient a fee in respect of nursing home care that exceeds the amount applicable for the purpose of subparagraph 47(2)(b)(iii);

                    (cb)  a condition that, where the proprietor of the nursing home:

                              (i)  enters into an agreement under subsection 4AA(2) or is given a notice under such an agreement; or

                             (ii)  enters into an agreement referred to in paragraph (bc);

                            the proprietor, subject to any request made under paragraph (cc), is to file the agreement or notice, and keep the agreement or notice filed, with the records of the nursing home kept in compliance with section 61;

                    (cc)  a condition that, where the Minister, by notice in writing served on the proprietor of the nursing home, requests the proprietor to produce to an officer of the Department specified in the request, in accordance with the request, such documents, being:

                              (i)  agreements entered into by the proprietor under subsection 4AA(2) or notices given to the proprietor under such agreements; or

                             (ii)  agreements referred to in paragraph (bc) entered into by the proprietor;

                            as are specified in the request, the proprietor is to comply with the request to the extent that the proprietor is capable of doing so;

                    (cd)  a condition that, except in accordance with the conditions referred to in subparagraph (6)(bb)(ii) or (iii) or paragraph (c), the proprietor of the nursing home shall not, in respect of the admission to the home of a person who, on admission, would become a qualified nursing home patient, charge any fee or solicit any contribution or financial assistance to the nursing home or any other body or organisation, whether from that person or otherwise;

                  (cda)  a condition that the proprietor of the nursing home must not, in respect of a proposed admission to the home of a person as a short-term respite care patient, request, solicit or accept from that person or any other person, a payment that exceeds, or together with another payment exceeds, the amount of the fee that, under the regulations, the proprietor of the nursing home may request the person to pay in respect of the proposed admission;

                  (cdb)  a condition that, where:

                              (i)  an amount has been paid to the proprietor of the nursing home in respect of the proposed admission to the home of a person as a short-term respite care patient; and

                             (ii)  that person is not subsequently so admitted to the home;

                            the proprietor of the nursing home must, except in circumstances where the regulations otherwise provide, refund that amount to the payee in accordance with the regulations;

                    (ce)  a condition that the proprietor of the nursing home will:

                              (i)  at such times, and in respect of such periods, as are determined by the Secretary; and

                             (ii)  in a form approved by the Secretary;

                            submit to the Secretary, in a manner approved by the Secretary, such information relating to the employment of nursing staff and personal care staff in connection with the nursing home as is required by the Secretary by written instrument;

                    (cf)  a condition that the proprietor of the nursing home is to allow a person authorised for the purposes of this paragraph to enter the nursing home at any reasonable time for the purpose of ascertaining whether the nursing home care provided in the nursing home satisfies the standards determined under section 45D and is to provide the authorised person with all reasonable facilities and assistance, including access to patients, staff and documents, in achieving that purpose;

                    (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;

                     (cj)  a condition that the proprietor of the nursing home is to allow a person (not being an officer of the Department) engaged in the provision of advocacy services on behalf of patients of nursing homes, being a person who is, or who is employed by a person or group of persons who are, approved by the Minister to provide such advocacy services, to enter the nursing home at any reasonable time for the purpose of meeting with patients and is to provide the person with all reasonable facilities and assistance in achieving that purpose;

                    (ck)  a condition that the nursing home care provided in the nursing home satisfies the standards determined under section 45D;

                     (d)  any other conditions determined by the Minister for the purpose of:

                              (i)  ensuring that the needs of qualified nursing home patients, short-term respite care patients or Repatriation nursing home patients in the nursing home are satisfactorily provided for; or

                             (ii)  otherwise protecting the welfare and interests of qualified nursing home patients, short-term respite care patients or Repatriation nursing home patients in the nursing home.

     (6AAA)  Where, immediately before the date on which application was made for approval of premises as an approved nursing home, the proprietor of the nursing home was the holder of a certificate in force under subsection 39A(2) or 39B(5) in relation to the nursing home, the Minister shall not exercise the powers under paragraph (6)(aa) to determine a special purpose in relation to the nursing home in a manner inconsistent with that certificate.

     (6AAB)  Where the Minister, under paragraph (6)(a), determines, or has at any time determined, the approved number of beds in relation to a nursing home, the Minister may determine, in writing, that such number of those beds as is specified in the second determination are approved in relation to a particular special needs group or particular special needs groups.

     (6AAC)  The Minister may, on application in writing made by the proprietor of a nursing home or otherwise, revoke or vary a determination made under subsection (6AAB) in relation to the nursing home.

       (6AA)  Where, immediately before the date on which application was made for approval of premises as an approved nursing home, the proprietor of the nursing home was the holder of a certificate in force under subsection 39A(2) or 39B(5) in relation to the nursing home, the Minister shall not exercise the powers under paragraph (6)(a) to determine a number of beds in relation to the nursing home in a manner inconsistent with that certificate.

          (6B)  Without limiting the generality of subparagraph (6)(d)(ii), conditions determined under paragraph (6)(d) by virtue of that subparagraph may include conditions relating to the liability of the proprietor of a nursing home and other persons for any loss, injury or damage incurred or suffered by qualified nursing home patients, short-term respite care patients or Repatriation nursing home patients in the nursing home.

        (6BA)  A person who is a community visitor referred to in paragraph (6)(cg) may inform an officer of the Department or the proprietor of the relevant nursing home of any matter relating to the provision of nursing home care in the nursing home that comes to the notice of the person, including matters brought to the person’s notice by a patient.

        (6BB)  Despite the provisions of any State law, a person, including the proprietor of a nursing home, may do anything reasonably required to enable compliance with a condition specified in subsection (6).

             (7)  The Minister may, by written instrument, formulate principles for the determination of:

                     (b)  any matter required by this Act to be determined in accordance with principles formulated under this subsection.

          (7B)  In formulating principles under subsection (7), the Minister shall have regard to:

                     (a)  the need to ensure that nursing homes are efficiently and economically operated;

                     (b)  the need to ensure that the cost to nursing home patients of nursing home care is not excessive or unreasonable; and

                     (c)  any other matters the Minister considers to be relevant.

             (8)  Where:

                     (a)  a person is admitted to an approved nursing home as a qualified nursing home patient without prior approval under section 40AB being obtained to the admission; and

                     (b)  the Minister is satisfied:

                              (i)  that the circumstances of the admission were such that it was not practicable for prior approval to be obtained; and

                             (ii)  that, if an application had been made under section 40AB at the time of the admission, the application would have been approved;

the Minister shall approve the admission but, if not so satisfied, shall refuse to approve the admission and, in either case, shall notify the person, in writing, accordingly.

             (9)  An approval under subsection (8) of an admission has effect for the purposes of this Act as if:

                     (a)  it had been given under subsection 40AB(3) before the admission; and

                     (b)  it were expressed to have effect for a period that includes the day of the admission.

           (12)  For the purposes of calculating the amount referred to in sub-subparagraph (6)(bb)(ii)(B), the effect (if any) of section 59 shall be disregarded.

           (13)  Where a person is admitted to an approved nursing home as a qualified nursing home patient or as a short-term respite care patient without approval having been obtained under section 40AB, the proprietor of the nursing home shall, as soon as practicable and, in any case, within 3 days after the day of admission, notify the Secretary of the admission of the person.

           (14)  An application for approval under subsection (8) shall be in accordance with the authorised form and shall be sent, by prepaid post, to the Secretary.

           (15)  Subject to subsection (16), approval under subsection (8) of the admission of a person to a nursing home shall not be given unless:

                     (a)  notification has been given in accordance with subsection (13); and

                     (b)  the application for approval is made within 3 days after the day of admission.

           (16)  Notwithstanding subsection (15), approval under subsection (8) may be given where:

                     (a)  an application is made in accordance with subsection (14) by the proprietor of a nursing home;

                     (b)  because of special circumstances, it was not practicable for the application to be made within the period specified in subsection (15);

                     (c)  notification was given in accordance with subsection (13); and

                     (d)  the application was made as soon as was practicable.

           (17)  The period of 3 days referred to in subsection (15) shall be ascertained exclusive of Saturday, Sunday and any day that is a public holiday in the place in which the nursing home is situated.

           (18)  Where a person is admitted to an approved nursing home as a qualified nursing home patient without approval under section 40AB, the proprietor of the nursing home shall, while the person remains a patient in the home without approval under subsection (8) or section 40AB, make the deduction required by subsection (5A) in the amount that would have been required if the person were an approved nursing home patient.

40AB Approval of admission to approved nursing home

             (1)  A person may, on the person’s own behalf or on behalf of another person, apply to the Minister, in accordance with the authorized form, for approval for the admission of the person or of the other person, as the case may be, to a Government nursing home.

             (2)  An application under subsection (1) may include a certificate, in accordance with the authorized form, by a medical practitioner that the person in respect of whose admission approval is sought, by reason of infirmity or illness, disease, incapacity or disability, has a continuing need for nursing care.

          (2A)  A certificate given under subsection (2) is to be taken into account by the Minister in considering an application.

             (3)  Subject to this section, where the Minister is satisfied, with respect to an application under subsection (1), that, by reason of infirmity or illness, disease, incapacity or disability, the patient requires such nursing care as would warrant admission to a Government nursing home, the Minister shall, by written instrument, approve the application.

          (3A)  An approval under subsection (3) remains in force for the period specified in the instrument of approval.

          (3B)  An approval under subsection (3) may be expressed to relate only to the admission of the person named in the approval to a particular Government nursing home, a class of Government nursing homes or a class of Government nursing homes situated in a particular region.

             (4)  For the purposes of subsection (3), a patient shall be deemed not to require such nursing care as would warrant admission to an approved nursing home if the Minister is satisfied that, having regard to the medical condition of the patient and to any other relevant circumstances, the needs of the patient would be adequately, and more suitably, provided for in accommodation in an institution other than an approved nursing home and that such accommodation is available to the patient.

       (4AA)  Where a determination by the Minister for the purposes of paragraph 40AA(6)(aa) of a special purpose in relation to a Government nursing home is in force or, immediately before the date on which application was made for approval of premises as an approved nursing home or for an alteration of the conditions applicable to the nursing home of the kind referred to in paragraph 39A(3)(b) or 39B, a certificate was in force under section 39A specifying a special purpose in relation to the nursing home, the Minister may refuse to approve an application for the admission of a person to the nursing home if the Minister is satisfied that the admission of the person would be inconsistent with that special purpose.

          (4A)  The Minister may refuse to approve an application for the admission of a person to a Government nursing home if the admission is to take place during a period of suspension of the approval of the nursing home.

             (5)  Where the Minister makes a decision under this section refusing to approve an application for the admission of a person to a Government nursing home, the Minister shall cause to be served on the applicant for that admission, a notice in writing setting out that decision.

          (5A)  Where a person ceases to be a short-term respite care patient upon the death or discharge from a Government nursing home of the qualified nursing home patient or Repatriation nursing home patient whose bed in the nursing home the person was occupying, the person shall:

                     (a)  immediately after the end of the day on which the person ceases to be a short-term respite care patient, be taken to have been admitted to the nursing home as a qualified nursing home patient with the approval of the Minister under this section; and

                     (b)  be taken to be, or to have been, a qualified nursing home patient for such period after that day as the Minister, by writing, determines.

          (5B)  Where the Minister makes a decision under paragraph (5A)(b) in relation to a person who, immediately before the period referred to in that paragraph, was a short-term respite care patient, the Minister shall cause to be served on the person or the person who applied under section 40ABA on behalf of the first-mentioned person for the admission of the first-mentioned person to the nursing home, as the case requires, and on the proprietor of the nursing home, notice in writing setting out that decision.

             (6)  Without limiting the generality of directions that may be given under section 6 to a delegate of a power under this section or subsection 40AA(8), such a direction may make provision:

                     (a)  requiring the delegate to exercise the delegated powers in accordance with the views of a group of persons;

                     (b)  for the manner in which that group is to be constituted; and

                     (c)  for the procedures to be followed in ascertaining the views of that group.

40AC  Declaration that patient not in need of nursing home care

             (1)  The Minister may, by written notice served on a person who is an approved nursing home patient and on the proprietor of the Government nursing home in which the person is a patient, declare that the person is no longer an approved nursing home patient if the Minister is satisfied:

                     (a)  that the person is no longer a person who, because of infirmity, illness, disease, incapacity or disability, requires such nursing care as warrants the person continuing as a patient in a nursing home; and

                     (b)  that, having regard to the medical condition of the person and to any other relevant circumstances, the needs of the person would be adequately, and more suitably, provided for in accommodation in a place other than an approved nursing home and that such accommodation is available to the person.

             (2)  Subject to subsection (3), a declaration under subsection (1) takes effect at the end of the period, or further period, allowed under subsection 105AAB(2) for the making of a request under that subsection.

             (3)  Where:

                     (a)  a request is made under subsection 105AAB(2) for the reconsideration of a declaration under subsection (1); and

                     (b)  the Minister affirms or varies the declaration;

the declaration, or the declaration as varied, as the case may be, takes effect on the day following the day on which notice of the decision of the Minister on the reconsideration is served for the purpose of subsection 105AAB(6).

             (4)  Without limiting the generality of the directions that may be given under section 6 to a delegate of the power under subsection (1), such a direction may make provision:

                     (a)  requiring the delegate to exercise the power in accordance with the views of a group of persons;

                     (b)  for the manner in which that group is to be constituted; and

                     (c)  for the procedures to be followed in ascertaining the views of that group.

40AE  Request for review of decisions

             (1)  If, after the commencement of this subsection, the Secretary, under section 51A, makes a decision:

                     (a)  authorising the payment to the proprietor of a nursing home of an advance or advances in respect of a Commonwealth benefit that is or may become payable to the proprietor; or

                     (b)  refusing to authorise such a payment;

the proprietor of the nursing home may request the Minister to review the Secretary’s decision.

          (1A)  If the Secretary makes a determination under subsection 46E(1) relating to an approved nursing home, the proprietor of the nursing home may request the Minister to review the Secretary’s decision.

             (2)  Where, on or after a day fixed by the Minister by notice published in the Gazette, the Secretary:

                     (a)  redetermines, under subsection 40AD(1BH), the respective reference fees applying in relation to each classification of approved nursing home patient occupying an exempt bed in a nursing home, without an application by the proprietor of the nursing home under that subsection;

                     (b)  on application, under subsection 40AD(1BH), by the proprietor of a nursing home containing exempt beds:

                              (i)  redetermines the respective reference fees applying in relation to each classification of approved nursing home patient occupying an exempt bed in the nursing home; or

                             (ii)  refuses that application; or

                     (c)  refuses, under subsection 40AD(1BD), a request under subsection 40AD(1BC) by the proprietor of a nursing home containing exempt beds to approve a proposed redetermination of an additional exempt bed fee in respect of each of those beds;

the proprietor of the nursing home may request the Minister to review the decision of the Secretary.

             (3)  A request to the Minister for a review:

                     (a)  shall be made only on the appropriate authorised form;

                     (b)  shall be made within 42 days after the day on which notice of the Secretary’s decision is served on the proprietor; and

                     (c)  shall be made only by the person who is the proprietor of the nursing home at the time the request is made.

             (4)  If the proprietor has not, in the request, authorised the deduction of:

                     (a)  the lodgment fee of $500 or, if the Minister has, by notice, fixed another amount, that other amount; and

                     (b)  the Committee processing fee, being the fee referred to in subsection 40AED(2);

from any payment or payments of benefits under Part VA payable to the proprietor, the request shall be taken not to have been made.

             (5)  Where a proprietor has, in a request, authorised the deduction of the lodgment fee payable by the proprietor from any payment or payments of benefits under Part VA payable to the proprietor, the amount of the lodgment fee may be deducted from any payment or payments of those benefits.

             (6)  A notice under paragraph (4)(a) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

             (7)  Without prejudice to the effect of the repeal of section 40AD on a decision of the Secretary of a kind referred to in subsection (2) of this section, that repeal does not affect the conduct of a review of that decision under this section.

40AEA  Request for review may be withdrawn

                   Where a proprietor of a nursing home has, under subsection 40AE(1), (1A) or (2), requested the Minister to review a decision, the request may, at any time before the Minister has confirmed or varied the decision, be withdrawn by the person who is the proprietor of the nursing home at the time of such withdrawal by notice in writing signed by that proprietor and lodged with the Secretary.

40AEB  Refund of lodgment fee

             (1)  Where:

                     (a)  a proprietor has, under subsection 40AE(1), (1A) or (2), requested the Minister to review a decision; and

                     (b)  the lodgment fee has been deducted under subsection 40AE(5) from any payment or payments of benefits payable to the proprietor;

the lodgment fee shall be refunded to the proprietor if:

                     (c)  the request is withdrawn under section 40AEA before the end of the period of 42 days commencing on the expiration of the last day on which such a request could have been made; or

                     (d)  the decision is varied by the Minister in a manner wholly or substantially favourable to the proprietor.

             (2)  If, before the lodgment fee has been deducted under subsection 40AE(5):

                     (a)  the request is withdrawn under section 40AEA within the period referred to in paragraph (1)(c); or

                     (b)  the decision is varied by the Minister in a manner that is wholly or substantially favourable to the proprietor;

the lodgment fee shall not be so deducted.

40AEC  Referral of request to Nursing Homes Fees Review Committee of Inquiry

             (1)  Subject to section 40AEH, where a request under subsection 40AE(1), (1A) or (2) by the proprietor of a nursing home has not been withdrawn under section 40AEA, the Minister shall, not earlier than the end of the period of 42 days commencing on the expiration of the last day on which such a request could have been made, refer the matter to a Nursing Homes Fees Review Committee of Inquiry established for that State under Division 3A of Part VIII (in this section and in sections 40AED, 40AEE, 40AEF and 40AEH called the Committee) for examination and report to the Minister, and shall not take any further action in the matter until the Minister has received the report of the Committee.

             (2)  The Minister shall not refer the matter to the Committee unless the proprietor has provided the Minister with:

                     (a)  a statement which sets out fully and in detail the reasons for the request;

                     (b)  a copy of such accounts, books, documents and records that are relevant to the review of the decision by the Minister; and

                     (c)  such information or documents as the Minister specifies under subsection (3).

             (3)  The Minister may, by notice published in the Gazette, specify information or documents that are to be provided to the Minister for the purposes of a review.

             (4)  The Minister may, by notice in writing given to the proprietor, require the proprietor to furnish to the Minister such further information or documents as the Minister considers necessary for the purpose of deciding the request and the Minister may refuse to refer the matter to the Committee until that information or those documents, as the case requires, are furnished to the Minister.

40AED  Examination of matter by Committee

             (1)  Where the Minister has referred a matter to the Committee under subsection 40AEC(1), the Committee shall examine the matter and report, in writing, to the Minister.

             (2)  Without limiting the generality of the matters that may be included in the Committee’s report, such a report shall contain a record of the days, and the hours in those days, during which the Committee met to examine the matter that is the subject of the report and shall specify the fee (in this section and in sections 40AEE, 40AEG and 40AEH called the Committee processing fee) payable by the proprietor of the nursing home to which the report relates, being the fee calculated under section 40AEE.

40AEE  Committee Processing Fee

             (1)  The amount of the Committee processing fee shall be:

                     (a)  if the relevant period does not exceed 4 hours—the prescribed amount; or

                     (b)  if the relevant period exceeds 4 hours:

                              (i)  in respect of each period of 4 hours included in the relevant period—the prescribed amount; and

                             (ii)  if the relevant period includes an additional period of less than 4 hours—the prescribed amount in respect of that additional period.

             (2)  The amount of the Committee processing fee shall not exceed $1,000 per day or, if the Minister has, by notice, fixed another amount, that other amount.

             (3)  Where a proprietor has, in a request for review, authorised the deduction of the Committee processing fee payable by the proprietor from any payment or payments of benefits under Part VA payable to the proprietor, the amount of the Committee processing fee may be deducted from any payment or payments of those benefits.

             (4)  The Committee processing fee may be recovered by the Commonwealth in a court of competent jurisdiction as a debt due and payable to the Commonwealth.

             (5)  A notice referred to in subsection (2) and in the definition of prescribed amount in subsection (6) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

             (6)  In this section:

prescribed amount means $500 or, if the Minister has, by notice, fixed another amount, that other amount.

relevant period means the period, or the aggregate of the periods, during which the Committee met to examine the matter that is the subject of the Committee’s report.

40AEF  Ministerial review of decisions

             (1)  The Minister shall, after such investigation of the matter as the Minister considers necessary, either confirm or vary the decision of the Secretary, and advise the proprietor accordingly.

             (2)  The Minister shall, in undertaking, in accordance with subsection (1), such investigation of the matter as the Minister considers necessary, apply any relevant principle that was in force under subsection 40AA(7) or 40AD(1BE), as the case requires, at the time the decision was made.

             (3)  The Minister shall not, in undertaking, in accordance with subsection (1), such investigation of the matter as the Minister considers necessary, confirm or vary the decision of the Secretary before the Minister has received the report of the Committee.

             (4)  Where the Minister varies the decision of the Secretary, the Secretary shall, for the purposes of subsection 40AD(2), be taken to have altered the conditions applicable to the nursing home in accordance with the decision so varied.

40AEG  Refund of Committee processing fee etc.

Where:

                     (a)  a proprietor has, under subsection 40AE(1), (1A) or (2), requested the Minister to review a decision; and

                     (b)  the decision is varied in a manner that is wholly or substantially favourable to the proprietor;

then:

                     (c)  if the Committee processing fee has been deducted under subsection 40AEE(3)—the fee shall be refunded to the proprietor; and

                     (d)  if the Committee processing fee has not been so deducted—the fee shall not be deducted.

40AEH  Effect of change of proprietor on request for review

             (1)  Where the Minister has, under section 40AE, been requested to review a decision of the Secretary, the Minister may, in writing, at any time before the Committee has commenced consideration of the matter, require the proprietor of the nursing home to which the request relates to notify the Minister whether there has been a change in proprietorship of the nursing home since the request was made and the proprietor of the nursing home shall, by notice in writing, notify the Minister accordingly not later than 28 days after being required to so notify the Minister.

             (2)  Where the Minister is not notified in accordance with subsection (1) the request shall be taken to have been withdrawn.

             (3)  Where:

                     (a)  a proprietor has, under subsection 40AE(1), (1A) or (2), requested the Minister to review a decision; and

                     (b)  after making the request but before the Committee has commenced consideration of the matter the proprietor ceases to be the proprietor of the nursing home and another person becomes the proprietor (in this section called the new proprietor) of the nursing home;

the Minister shall, as soon as practicable after the Minister becomes aware of the change of proprietor, by notice in writing:

                     (c)  provide details of the request to the new proprietor; and

                     (d)  inform the new proprietor that unless the new proprietor, not later than 28 days, or such longer period as the Minister specifies in writing given to the proprietor, after receipt of the Minister’s notice, authorises the Minister to proceed, or to continue to proceed, with the request, the request shall be taken to have been withdrawn;

and the Minister shall take no further action in relation to the request before the Minister receives that authorisation, or before the end of that period of 28 days or that longer period, as the case may be, whichever first occurs.

             (4)  Where the new proprietor authorises the Minister to proceed, or to continue to proceed, with the request as required by paragraph (3)(d), the new proprietor shall be taken to have authorised the deduction of the Committee processing fee from any payment or payments of benefits under Part VA payable to the new proprietor.

             (5)  Where the new proprietor does not authorise the Minister to proceed, or to continue to proceed, with the request as required by paragraph (3)(d), the request shall be taken to have been withdrawn.

             (6)  Where a request is taken to have been withdrawn under subsection (2) or (5):

                     (a)  if the lodgment fee has been deducted in accordance with subsection 40AE(5)—the fee shall not be refunded; and

                     (b)  if the lodgment fee has not been so deducted—the fee shall be so deducted.

40AF  Patients requiring extensive care

             (1)  The proprietor of an approved nursing home may apply, in the authorized form, to the Secretary for approval of a person as a person requiring extensive care.

          (1A)  On and after 1 July 1988, approved nursing home, in subsection (1), means:

                     (a)  a Government nursing home; or

                     (b)  a nursing home for disabled people.

             (2)  An application under subsection (1) in respect of a person shall be accompanied by a certificate of a medical practitioner, in the authorized form, as to the need of the person for extensive care.

             (3)  Where the Secretary is satisfied that:

                     (a)  the person in respect of whom the application is made requires extensive care; and

                     (b)  the approved nursing home is adequately fitted, furnished and staffed for the purpose of providing persons with extensive care;

he or she may, for such period as he or she thinks proper, approve the person, in relation to that nursing home, as a person requiring extensive care.

             (4)  An approval under this section ceases to be in force at the expiration of the period specified in the approval but the Secretary may, at any time before the expiration of that period, review the approval and, if he or she considers that the person to whom the approval relates no longer requires or is not receiving extensive care, he or she may revoke the approval.

          (4A)  Where the Secretary makes a decision under this section refusing to approve a person as a person requiring extensive care or revoking such an approval, he or she shall cause to be served on the proprietor of the approved nursing home concerned, a notice in writing setting out that decision.

          (4B)  Without limiting the generality of directions that may be given under section 6 to a delegate of a power under this section, such a direction may make provision:

                     (a)  requiring the delegate to exercise the delegated powers in accordance with the views of a group of persons;

                     (b)  for the manner in which that group is to be constituted; and

                     (c)  for the procedures to be followed in ascertaining the views of that group.

             (5)  In this section, extensive care means nursing home care required by a person:

                     (a)  who, by reason of infirmity, or any illness, disease, incapacity or disability, is bedridden or virtually bedridden and is wholly or substantially dependent on nursing care; or

                     (b)  who is undergoing treatment for any illness, disease, incapacity or disability and, for the purposes of that treatment, is wholly or substantially dependent on nursing care.

40AFK  Proprietor to be given notice of classification of classified patient admitted to nursing home

                   Where a person in respect of whom a classification under section 40AFA is in force is admitted to an approved nursing home, the Secretary shall, on request, give to the proprietor of the nursing home written notice of the classification and of the day on which the classification expires.

40AG  Standard fee for non-classified patients

             (1)  In this section:

approved nursing home does not include a Government nursing home or a nursing home for disabled people.

             (2)  The Secretary shall, by written instrument, determine the standard fee for non-classified patients in each approved nursing home in relation to a financial year.

             (3)  The Secretary:

                     (a)  shall make a determination under subsection (2) in relation to each approved nursing home to take effect at the beginning of each financial year or, where a nursing home is approved after the beginning of a financial year, shall make a determination under that subsection for that financial year as soon as practicable after the grant of approval; and

                     (b)  may make a further determination if there has been a change of circumstances sufficient to warrant the making of a further determination.

             (4)  In the determination of a scale of fees in relation to non-classified patients in an approved nursing home for the purposes of subparagraph 40AA(6)(c)(i), the standard fee for the nursing home determined under subsection (2) shall be taken into account, in accordance with principles formulated under subsection 40AA(7), together with such other matters (if any) as the principles require.

             (5)  The standard fee for a Class 1 nursing home is the amount calculated in accordance with the formula:

             (6)  The standard fee for a Class 2 nursing home is the amount calculated in accordance with the formula:

             (7)  In this section:

                     (a)  AIA is the annual infrastructure allowance in respect of the nursing home for the financial year to which the determination relates;

                    (aa)  in relation to the financial year commencing on 1 July 1988,

;

                    (ab)  in relation to a financial year commencing on or after 1 July 1989, N is the amount determined by the Minister to be the daily nursing and personal care cost in relation to non-classified patients in the nursing home for that financial year;

                     (b)  NPC is the annual nursing and personal care cost of the nursing home for that financial year determined in accordance with principles formulated under subsection 40AA(7) and on the assumption that all patients in the home are non-classified patients;

                     (d)  in the case of a nursing home that was approved before 1 July 1988 or became a transferred home on 1 July 1987, ABD is the number obtained by multiplying the estimated daily average bed number for the nursing home for the financial year commencing on 1 July 1987 by 366;

                     (e)  in the case of a nursing home approved on or after 1 July 1988, ABD is the number obtained by multiplying the estimated daily average bed number for the nursing home for the financial year in which the home was approved by the number of days in that financial year;

                      (f)  ABE is the number obtained by multiplying the number of days in the financial year to which the determination relates by the estimated daily average bed number for the nursing home for all patients, whether classified or non-classified, for that financial year; and

                     (g)  SAM is the standard infrastructure allowance per occupied bed per day.

             (8)  For the purposes of subsection (7), the annual infrastructure allowance in respect of a nursing home for a financial year is the amount calculated in accordance with the formula:

SAM has the same meaning as in subsection (7);

A is:

                     (a)  in respect of a financial year commencing on or before 1 July 1990, the factor declared by the Minister, by written notice, to be the component A for the purposes of this subsection in respect of that year;

                     (b)  in respect of a financial year commencing on or after 1 July 1991, the factor 1;

ABD has the same meaning as in subsection (7);

AAC is the assessed annual infrastructure cost of the nursing home; and

B is:

                     (a)  in respect of a financial year commencing on or before 1 July 1990, the factor declared by the Minister, by written notice, to be the component B for the purposes of this subsection in respect of that year;

                     (b)  in respect of a financial year commencing on or after 1 July 1991, the factor 0.

             (9)  A determination by the Minister for the purpose of paragraph (7)(ab) shall be made in accordance with any principles declared in writing by the Minister for the purpose of that paragraph.

           (10)  The Secretary must not make a determination under subsection (2) in relation to a financial year that commences on or after the day on which the Aged Care Act 1997 (other than Division 1 of that Act) commences.

40AGA  Standard fee for classified patients

             (1)  In this section:

approved nursing home does not include a Government nursing home or a nursing home for disabled people.

             (2)  The Secretary shall, by written instrument, determine, in accordance with this section, the standard fee for patients included in each classification determined under subsection 40AFA(2) in each approved nursing home for a financial year.

             (3)  The Secretary:

                     (a)  shall make a determination under subsection (2) in relation to each approved nursing home to take effect at the beginning of each financial year or, where a nursing home is approved after the beginning of a financial year, shall make a determination under that subsection for that financial year as soon as practicable after the grant of approval; and

                     (b)  may make a further determination if there has been a change of circumstances sufficient to warrant the making of a further determination.

             (4)  In the determination of scales of fees in relation to classified patients in an approved nursing home for the purposes of subparagraph 40AA(6)(c)(i), the standard fees for classified patients in that nursing home shall be taken into account, in accordance with principles formulated under subsection 40AA(7), together with such other matters (if any) as the principles require.

             (5)  The standard fee for a classification of patients in an approved nursing home that is a Class 1 nursing home other than an adjusted fee government nursing home is the amount calculated in accordance with the formula:

where:

AIA and ABD have the same respective meanings as in subsection 40AG(7).

N is the product of:

                     (a)  the number of staff hours per day of nursing and personal care determined by the Minister to be the number of staff hours of such care to be taken into account for the purposes of this section in relation to patients having that classification; and

                     (b)  the amount determined by the Minister to be, for that financial year, the amount to be taken into account for the purposes of this section in relation to the cost per staff hour of providing nursing and personal care in the State or Territory in which the nursing home is situated.

             (6)  The standard fee for a classification of patients in an approved nursing home that is a Class 2 nursing home is the amount calculated in accordance with the formula:

where:

SAM is the standard infrastructure allowance per occupied bed per day; and

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

          (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:

 

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).

             (7)  A determination by the Minister for the purpose of subsection (5) shall be by notice published in the Gazette.

             (8)  The Secretary must not make a determination under subsection (2) in relation to a financial year that commences on or after the day on which the Aged Care Act 1997 (other than Division 1 of that Act) commences.

40AH  Standard infrastructure allowance and special infrastructure allowance

             (1)  The standard infrastructure allowance per occupied bed per day is:

                     (a)  $27.65; or

                     (b)  such higher amount as is specified in, or ascertained in accordance with, a determination by the Minister by written notice.

             (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.

             (4)  The Minister must not make a determination under subsection (1) or (2) that relates to a day that occurs on or after the day on which the Aged Care Act 1997 (other than Division 1 of that Act) commences.

40AI  Additional patient contribution

             (1)  The additional patient contribution applicable to an approved nursing home patient is the amount for the time being determined by the Minister by notice published in the Gazette.

             (2)  A determination under subsection (1) may be made in respect of a class of approved nursing home patients receiving care in a particular nursing home.

             (3)  This section does not apply to a patient in a transferred home.

41  Certificate of approval

             (1)  Upon the approval of premises as an approved nursing home, the Minister shall cause to be issued to the proprietor of the nursing home a certificate of approval that:

                     (a)  is in the authorised form;

                     (b)  specifies the conditions applicable to the nursing home; and

                     (c)  if the nursing home is approved as a nursing home for disabled people—includes a statement to that effect.

             (2)  A certificate of approval may specify that the approval is to cease to have effect on a date specified in the certificate.

             (3)  The proprietor of an approved nursing home shall cause the certificate of approval to be displayed in a prominent position in the nursing home.

Penalty:  $2,000.

             (4)  The proprietor of an approved nursing home who applies to the Minister for revocation of the approval of the nursing home shall forward the certificate of approval of the nursing home with the application or notice.

             (5)  Where the approval of an approved nursing home is revoked or expires, the proprietor of the nursing home shall forward the certificate of approval to the Minister.

Penalty:  $2,000.

42  Inspection of, and of records of, approved nursing homes

             (1)  A person authorized to act under this section may:

                     (a)  at any time, enter and inspect premises occupied by an approved nursing home; and

                     (b)  at any reasonable time:

                              (i)  enter and inspect premises in respect of which an application for approval as an approved nursing home has been made; or

                             (ii)  inspect, make copies of, or take extracts from, any books, documents or records on premises occupied by an approved nursing home that relate to the operation of those premises as a nursing home, including, but without limiting the generality of the foregoing, any books, documents or records kept by the proprietor of the nursing home in accordance with paragraph 40AA(6)(ca) or (cb), with a condition determined under paragraph 40AA(6)(d), with subsection 61(1) or (1A) or with a notice under subsection 61(2).

             (2)  The occupier of premises referred to in subsection (1) shall provide the authorized person with all reasonable facilities and assistance for the effective exercise of the authorized person’s powers under this section.

Penalty:  Imprisonment for 12 months.

43  Certain person to give notice on death of proprietor

             (2)  If the proprietor of an approved nursing home dies, the proprietor’s legal personal representative shall, by notice in writing, notify the Minister accordingly within 1 month after the death.

Penalty:  $2,000.

43A  Furnishing of audited accounts by proprietors of certain approved nursing homes

             (1)  The Minister may, by notice in writing served on the proprietor of an approved nursing home (other than a Government nursing home), request the proprietor of the nursing home to prepare, from the books, documents and other records kept by the proprietor in accordance with paragraph 40AA(6)(ca) or (cb), with a condition determined under paragraph 40AA(6)(d), with subsection 61(1) or (1A) or with a notice under subsection 61(2), such accounts with respect to the nursing home as are specified in the notice and to furnish a copy of the accounts so prepared, together with the report referred to in subsection (3), to the Minister.

             (2)  A notice under subsection (1) shall specify the manner in which, and the period in respect of which, the accounts to which the notice relates are to be prepared.

             (3)  Before furnishing under subsection (1) a copy of accounts prepared with respect to a nursing home, the proprietor of the nursing home shall cause a person who is a registered company auditor under a law of a State or Territory to audit those accounts and to report whether, in the person’s opinion, the accounts were properly drawn up so as to give a true and fair view of:

                     (a)  the financial affairs of the nursing home as at the end of the period to which the accounts relate; and

                     (b)  the income and expenditure of the nursing home for the period to which the accounts relate.

             (4)  Where, at the expiration of a period of 3 months, or of such longer period as the Minister allows, after the service on the proprietor of a nursing home of a notice under subsection (1), the proprietor of the nursing home has not complied with the notice, the Minister may, by notice in writing served on the proprietor of the nursing home:

                     (a)  suspend the approval of the nursing home for such period as is specified in the notice (not being a period that commences before the date of service of the notice); or

                     (b)  revoke the approval of the nursing home.

             (5)  In this section, accounts includes a balance sheet and such other statements as are prescribed.

44  Variation or revocation of approval

             (1)  The Minister may, at any time, review the approval of a nursing home under this Part.

             (2)  If the Minister considers that:

                     (a)  the nature of an approved nursing home has changed since the approval under review was given or deemed to have been given; or

                     (b)  a condition applicable to the approved nursing home has not been complied with;

the Minister may vary the nature of the approval or revoke or suspend the approval as the Minister considers justified in the circumstances of the case.

          (2A)  The Minister may give the proprietor of the approved nursing home written notice of his or her intention to vary the nature of the approval or revoke or suspend the approval as the case may be.

             (3)  Upon receipt of:

                     (a)  an application in writing by the proprietor of an approved nursing home for revocation of the approval of the nursing home; or

                     (b)  a notice in writing given in accordance with section 43 or subsection 40AEH(1) in respect of an approved nursing home;

the Minister, may revoke the approval of the nursing home.

             (4)  A variation of the nature of, or a revocation or suspension of, an approval of a nursing home under this section shall be effected by notice in writing served on the proprietor of the nursing home, and, in the case of a notice suspending an approval, the notice shall set out the period of the suspension (not being a period that commences before the date of service of the notice).

45  Automatic revocation of approval as nursing home for disabled people

             (1)  This section applies in spite of any other provision of this Act.

             (2)  In this section:

Commonwealth/State Disability Agreement means the Commonwealth/State Disability Agreement made on 30 July 1991 between the Commonwealth on the one part and the States and Territories on the other part.

scheduled nursing home means a nursing home whose name and address is specified in column 2 of an item in Schedule 4, 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 4 of that item relates.

             (3)  The approval of a scheduled nursing home as a nursing home for disabled people (unless sooner revoked) is, by force of this subsection, revoked immediately before the day on which the provisions (other than subclauses 1(1) and (2)) of the Commonwealth/State Disability Agreement come into force in respect of the State in which the scheduled nursing home is situated.

45A  Revocation or extension of suspension

             (1)  Where, at any time during a period of suspension of the approval of a nursing home, the Minister is satisfied that, by reason of action taken by the proprietor, or other change of circumstance, with respect to the nursing home, the suspension should be terminated, the Minister shall, by notice in writing served on the proprietor of the nursing home, terminate the suspension accordingly.

             (2)  Subject to subsection (1), the Minister, at any time during the period of suspension of the approval of a nursing home, may, by notice in writing served on the proprietor of the nursing home, revoke the approval or extend the period of suspension of the approval to a date specified in the notice.

45B  Effect of suspension of approval of nursing home

                   Notwithstanding the suspension of the approval of a nursing home under this Act, that approval, subject to the operation of the following provisions, remains in force for all purposes:

                     (a)  subsection 40AA(5B);

                     (b)  subsection 40AB(4A);

                    (ba)  subsection 40ABA(6);

                     (c)  section 49A.

45D  Standards for nursing home care

                   The Minister may, by written notice, determine standards to be observed in the provision of nursing home care in approved nursing homes.

45DA  Statements may be published about satisfaction of standards for nursing home care

             (1)  The Minister may, from time to time, prepare and publish a statement containing all or any of the relevant information in relation to:

                     (a)  an approved nursing home; or

                     (b)  premises that were an approved nursing home at any time during the period of 5 years before the publication of the statement.

             (2)  The following is relevant information for the purposes of subsection (1):

                     (a)  information relating to whether the standards referred to in section 45D have been satisfied in the provision of nursing home care in the nursing home;

                    (aa)  if those standards have not been satisfied—information relating to the action that will be taken by the proprietor of the nursing home to ensure that those standards will be satisfied;

                     (b)  the level of nursing home care provided in the nursing home by reference to those standards.

             (3)  Without limiting the means by which a statement is able to be published, a copy of a statement is to be made available for public inspection at each office of the Department.

             (4)  The information contained in a statement must not be such as to enable the identification of an individual patient of a nursing home.

             (5)  Before publishing a statement under this section, the Minister must allow the proprietor of the nursing home not less than 30 days to consider so much of the statement as does not consist of information covered by paragraph (2)(aa) and to make submissions to the Minister in relation to the content of so much of the statement as does not consist of information covered by paragraph (2)(aa).

             (6)  Where it appears to the Minister in the light of any submission made by the proprietor that the content of the statement should be altered, the Minister is to alter the statement accordingly before it is published.

             (7)  The Minister must not publish a statement that contains information that relates to a day on or after the day on which the Aged Care Act 1997 (other than Division 1 of that Act) commences.

45DB  General information about approved nursing homes may be made available to the public

             (1)  The Secretary may make available to the public, in any way that the Secretary thinks fit, any or all of the relevant information in relation to:

                     (a)  an approved nursing home; or

                     (b)  premises that were an approved nursing home at any time during the period of 5 years before the information is made available to the public.

             (2)  The following is relevant information for the purposes of subsection (1):

                     (a)  the name and address of the nursing home;

                     (b)  the number of beds in the nursing home and the physical size of the nursing home;

                     (c)  the location of the nursing home and its proximity to community facilities, for example, public transport, shops, libraries and community centres;

                     (d)  services provided in the nursing home;

                     (e)  fees imposed, and charges made, in the nursing home;

                      (f)  activities at the nursing home in which the patients may participate;

                     (g)  the name of the proprietor of the nursing home;

                     (h)  the number of vacancies (if any) in the nursing home;

                      (i)  the length of the waiting list (if any) for admission to the nursing home.

             (3)  The information made available must not be such as to enable the identification of an individual patient of a nursing home.

45DC  Information about Ministerial action and other information about approved nursing homes may be made available to the public

             (1)  The Secretary may make available to the public, in any way that the Secretary thinks fit, any or all of the relevant information in relation to:

                     (a)  an approved nursing home; or

                     (b)  premises that were an approved nursing home at any time during the period of 5 years before the information is made available to the public.

             (2)  The following is relevant information for the purposes of subsection (1):

                     (a)  details of action taken by the Minister, whether before or after the commencement of this section, in relation to the nursing home under section 40AA, 40AD, 43A, 44, 44A, 45A, 45E or 45EA;

                     (b)  details of any action the Minister intends to take in relation to the nursing home under section 40AA, 40AD, 43A, 44, 44A, 45A, 45E or 45EA;

                     (c)  such other information (if any) as is specified in the regulations.

             (3)  A reference in paragraph (2)(a) to action taken by the Minister under a particular provision includes a reference to:

                     (a)  action taken by the Minister under section 105AAB in relation to a decision of the Minister made under the provision concerned; and

                     (b)  action taken by the Administrative Appeals Tribunal under the Administrative Appeals Tribunal Act 1975 in relation to a review of:

                              (i)  a decision of the Minister made under the provision concerned (including a decision that has been varied under section 105AAB); and

                             (ii)  a decision under section 105AAB to revoke a decision covered by subparagraph (i) of this paragraph.

             (4)  A reference in paragraph (2)(b) to action the Minister intends to take under a particular provision includes a reference to action that the Minister intends to take under section 105AAB in relation to a decision of the Minister made under the provision concerned.

             (5)  The information made available must not be such as to enable the identification of an individual patient of a nursing home.

             (6)  Before making the information available, the Secretary must allow the proprietor of the nursing home not less than 30 days to consider the information and to make submissions to the Secretary about the information.

             (7)  If it appears to the Secretary in the light of any submission made by the proprietor that the information should be altered, the Secretary is to alter the information accordingly before it is made available.

             (8)  Subsections (6) and (7) do not apply if the Secretary considers that there is an urgent need to make the information available in order to protect the welfare or interests of persons who are, or may become, patients of the nursing home.

             (9)  The Minister must not publish a statement that contains information that relates to a day on or after the day on which the Aged Care Act 1997 (other than Division 1 of that Act) commences.


 

Part VACommonwealth benefits in respect of nursing home care

Division 1Preliminary

46  Interpretation

             (1)  In this Part, unless the contrary intention appears:

accounting period, in relation to an approved nursing home other than a Government nursing home or a nursing home for disabled people, means:

                     (a)  the period determined by the Secretary under subsection 46C(2); or

                     (b)  if that period has been varied under subsection 46C(5) or (6)—that period as so varied.

authorized means authorized in writing, by the Secretary.

Commonwealth benefit means an amount payable by the Commonwealth by way of benefit in accordance with this Part.

extensive care benefit means a benefit payable under section 49.

general care benefit means an amount that the proprietor of an approved nursing home is entitled to receive by way of benefit under section 47A or section 48A.

investigation to be carried out, in respect of an approved nursing home, has the meaning given by subsection 65(5).

notified day for completion of sale, has the meaning given by subsection 65(1).

notional fee, in relation to the provision of nursing home care (other than care of a kind in respect of which benefit is paid under section 48B, 48C, 48D, 48E or 49) to an approved nursing home patient in an approved nursing home (other than a Government nursing home or a nursing home for disabled people) on a particular day, means the fee applicable in respect of the provision of nursing home care to the patient on that day in accordance with the scale of fees determined by the Secretary under section 46D.

notional scale of fees, in relation to the provision of nursing home care (other than care of a kind in respect of which benefit is paid under section 48B, 48C, 48D, 48E or 49) to approved nursing home patients in an approved nursing home (other than a Government nursing home or a nursing home for disabled people) in an accounting period, means the scale of fees determined by the Secretary under section 46D.

overpayment has the meaning given by section 46B.

             (2)  For the purposes of this Part, the day of admission and the day of discharge or death of a qualified nursing home patient shall be counted together as one day.

46A  Approved nursing home patients

                   Subject to section 46AB, for the purposes of this Part, a person is an approved nursing home patient on a day if:

                     (a)  the person is a qualified nursing home patient on that day; and

                     (b)  the person was admitted to a nursing home:

                              (i)  pursuant to an approval under this Act; or

                             (ii)  before 1 July 1987 pursuant to an approval under the Nursing Homes Assistance Act 1974; and

                     (c)  a determination under section 40AC in relation to the person has not been made or, if such a determination has been made, has not taken effect.

46AB  Benefit payable for up to 2 days prior to admission

                   For the purposes of this Part, if an approved nursing home patient was admitted to the nursing home concerned on a day after the day on which the person was notified that there was a vacancy in the nursing home, the patient is taken to have been an approved nursing home patient receiving nursing home care:

                     (a)  if the person was so notified on the day before being so admitted—on the day immediately preceding admission; or

                     (b)  if the person was so notified on a day prior to the day before being so admitted—on the 2 days immediately preceding admission.

46B  Meaning of overpayment

             (1)  Overpayment, in relation to Commonwealth benefit has the meaning given by subsection (2), (3) or (4).

             (2)  If the proprietor of an approved nursing home has received, by way of advance on account of Commonwealth benefit that may become payable in respect of an approved nursing home patient in the nursing home on a day, an amount that exceeds the amount payable to the proprietor in respect of the nursing home patient on that day, the amount of that excess is an overpayment.

             (3)  If:

                     (a)  the proprietor of an approved nursing home has received an amount by way of advance on account of Commonwealth benefit that may become payable in respect of an approved nursing home patient in the nursing home on a day; and

                     (b)  that benefit does not become payable;

the amount so received by the proprietor is an overpayment.

             (4)  If:

                     (a)  an amount purporting to be Commonwealth benefit is paid to the proprietor of an approved nursing home in respect of an approved nursing home patient in the home; and

                     (b)  Commonwealth benefit is not payable to the proprietor;

that amount is an overpayment.

46C  Secretary to determine accounting period in respect of certain approved nursing homes

             (1)  This section does not apply to a Government nursing home or a nursing home for disabled people.

             (2)  The Secretary must, in relation to an approved nursing home, determine a period to be the accounting period in respect of that nursing home.

             (3)  An accounting period in respect of an approved nursing home must not begin before the commencement of the National Health Amendment Act 1992.

             (4)  The determination must:

                     (a)  be in writing; and

                     (b)  set out the accounting period in respect of the nursing home.

             (5)  The Secretary must provide a copy of the determination to the proprietor of the nursing home within 14 days after making it.

             (6)  Subject to subsection (10), the Secretary may vary the accounting period in respect of the nursing home at any time.

             (7)  If, before the day on which the sale of an approved nursing home is completed:

                     (a)  the Secretary receives notice of the sale; or

                     (b)  is otherwise informed of the sale;

the Secretary must, within 14 days of receiving notice, or becoming informed, of the sale of the nursing home, vary the accounting period in respect of the home.

             (8)  If:

                     (a)  an approved nursing home has been sold and the Secretary did not receive notice of the sale under section 65A or 65B, or was not otherwise informed of the sale, before the day of completion of the sale; or

                     (b)  if the proprietor of an approved nursing home sells the nursing home before the notified day for completion of sale;

the Secretary must, within 14 days after first becoming aware of the sale, vary the accounting period in respect of the home.

             (9)  The accounting period, as varied under subsection (7) or (8), must end on the day before the day of completion of the sale.

           (10)  The Secretary must not vary the accounting period so that it begins on a day earlier than the last day of the previous accounting period.

           (11)  If the Secretary varies the accounting period, he or she must notify the proprietor within 7 days of that variation.

           (12)  A notice under subsection (11) must be in writing and set out the new accounting period in respect of the nursing home.

           (13)  The Secretary must not:

                     (a)  determine an accounting period that would end on or after the day on which the Aged Care Act 1997 (other than Division 1 of that Act) commences; or

                     (b)  vary an accounting period so that it would end on or after the day on which the Aged Care Act 1997 (other than Division 1 of that Act) commences.

46D  Setting of notional fees

             (1)  The Secretary must, within 3 years after the end of an accounting period in respect of an approved nursing home, determine a notional scale of fees in respect of the nursing home.

             (2)  A notional scale of fees, in respect of the nursing home is determined:

                     (a)  in relation to the accounting period in respect of the home; and

                     (b)  in respect of the provision of nursing home care (other than care of a kind in respect of which benefit is paid under section 48B, 48C, 48D, 48E or 49) to approved nursing home patients in the nursing home during the accounting period.

             (3)  In determining the notional scale of fees, the Secretary:

                     (a)  must take into account the actual expenditure incurred by the proprietor in respect of the provision of that nursing home care to approved nursing home patients in the nursing home during the accounting period; and

                     (b)  may take into account such other things as the Secretary considers relevant.

             (4)  The Secretary must, for the purposes of determining the notional scale of fees, order an investigation to be carried out in respect of an approved nursing home to find out the actual expenditure so incurred by the proprietor.

             (5)  In determining the notional scale of fees, the Secretary must comply with the relevant principles formulated under subsection 40AA(7).

             (6)  The proprietor affected by a decision of the Secretary under subsection (1) may apply, in writing, to the Minister for a reconsideration of that decision by the Minister.

             (7)  The application must be made within 28 days after the proprietor receives notice of the decision.

             (8)  If the proprietor applies for reconsideration of the decision, the Minister may affirm or revoke the decision or vary it as he or she thinks fit.

             (9)  For the purposes of determining the notional scale of fees for the first accounting period in respect of a nursing home after the commencement of this Act, the accounting period is taken to have commenced on a day determined by the Secretary.

           (10)  The day determined by the Secretary may be a day before the day this Act commences.

46E  Secretary may pay or recover advances of general care benefit before notional scale of fees is set

             (1)  If:

                     (a)  during an accounting period in respect of an approved nursing home; or

                     (b)  after the end of an accounting period in respect of an approved nursing home and before the Secretary has determined a notional scale of fees in respect of the accounting period;

the Secretary reasonably believes that the proprietor of the nursing home will be found (on general care benefit becoming payable) to have, in respect of the accounting period:

                     (c)  received an overpayment of general care benefit; or

                     (d)  been underpaid general care benefit;

the Secretary may determine, in writing, the amount that the Secretary believes to be the amount of the likely overpayment or underpayment.

             (2)  If the Secretary determines an amount, the Secretary may, on the Commonwealth’s behalf, recover the amount from, or pay the amount to, the proprietor of the nursing home (as the case requires) in the manner specified in the principles formulated under subsection 40AA(7).

             (3)  If the Secretary decides to recover the amount from, or pay the amount to, the proprietor of the nursing home under subsection (2), the Secretary must notify the proprietor, in writing, accordingly.

             (4)  If steps have been taken to recover (by the manner specified in the principles) an amount determined under subsection (1) to be a likely overpayment then, for the purpose of establishing whether or not the proprietor of the nursing home has received an overpayment in respect of the accounting period, that amount is to be deducted from the total amount of advances in respect of general care benefit paid in relation to the nursing home during the accounting period.

             (5)  If steps have been taken to pay (by the manner specified in the principles) an amount determined under subsection (1) to be a likely underpayment then, for the purpose of establishing whether or not the proprietor of the nursing home has been underpaid in respect of the accounting period, the amount is to be added to the total amount of advances in respect of general care benefit paid in relation to the nursing home during the accounting period.

             (6)  For the purpose of this section, the proprietor of an approved nursing home is underpaid general care benefit if the proprietor has received, by way of advance on account of general care benefit that may become payable in respect of an approved nursing home patient in the nursing home on a day in the accounting period, an amount that is less than the amount payable to the proprietor in respect of the nursing home patient on that day.


 

Division 2Types of benefit payable

47  Basic benefit for Government nursing homes and nursing homes for disabled people

             (1)  Subject to this Part and to Part VC, there is payable to the proprietor of a Government nursing home or a nursing home for disabled people in respect of each approved nursing home patient, for each day (not being a day before the commencement of this section) on which the patient receives nursing home care in that nursing home a Commonwealth benefit of:

                     (a)  where the nursing home is situated in the State of New South Wales—$13.65 or such higher amount as is determined by the Minister;

                     (b)  where the nursing home is situated in the State of Victoria—$19.65 or such higher amount as is determined by the Minister;

                     (c)  where the nursing home is situated in the State of Queensland—$11.80 or such higher amount as is determined by the Minister;

                     (d)  where the nursing home is situated in the State of South Australia—$17.40 or such higher amount as is determined by the Minister;

                     (e)  where the nursing home is situated in the State of Western Australia—$11.75 or such higher amount as is determined by the Minister;

                      (f)  where the nursing home is situated in the State of Tasmania—$14.85 or such higher amount as is determined by the Minister;

                     (g)  where the nursing home is situated in the Australian Capital Territory—$13.65 or such higher amount as is determined by the Minister; or

                     (h)  where the nursing home is situated in the Northern Territory—$17.40 or such higher amount as is determined by the Minister.

             (2)  Where:

                     (a)  an approved nursing home patient referred to in subsection (1) is receiving nursing home care in a nursing home that is not a Government nursing home; and

                     (b)  the sum of:

                              (i)  the amount of Commonwealth benefit that would, but for this subsection, be payable in pursuance of subsection (1) in respect of that patient for a day;

                             (ii)  the amount (if any) of Commonwealth extensive care benefit in respect of that patient for that day; and

                            (iii)  $6.70, or if a higher amount is determined by the Minister for the purposes of this subparagraph, the amount so determined;

                            exceeds the fees charged in respect of the nursing home care of that patient for that day;

the amount of Commonwealth benefit payable in pursuance of subsection (1) shall be reduced by the amount of the excess.

          (2A)  Subsection (2) does not apply to reduce an amount of Commonwealth benefit payable in respect of fees that are bed retention fees for the purposes of section 4AA.

          (2B)  A determination by the Minister under subsection (1) or (2) shall be made by notice in writing.

47A  Benefits for patients in other approved nursing homes

          (1A)  This section applies to an approved nursing home other than a Government nursing home, an adjusted fee government nursing home, a transferred home or a nursing home for disabled people.

             (1)  Subject to this Part, Part VC and Part VD, the proprietor of an approved nursing home in respect of which this section applies is entitled to receive benefit in respect of each approved nursing home patient in the home for each day on which the patient receives nursing home care in the home.

             (2)  The benefit that the proprietor of the nursing home is entitled to receive under subsection (1) in respect of an approved nursing home patient occupying a bed other than an exempt bed is equal to the difference between:

                     (a)  the notional fee; and

                     (b)  the sum of:

                              (i)  the amount for the time being applicable for the purpose of subparagraph 47(2)(b)(iii); and

                             (ii)  the additional patient contribution (if any) applicable to the patient.

             (3)  The benefit that the proprietor is entitled to receive under subsection (1) in respect of each approved nursing home patient occupying an exempt bed in a nursing home is equal to the difference between:

                     (a)  the reference fee, within the meaning of section 39, in relation to that patient; and

                     (b)  the sum of:

                              (i)  the amount for the time being applicable for the purposes of subparagraph 47(2)(b)(iii); and

                             (ii)  an amount equal to the proportion of the additional exempt bed fee, within the meaning of section 39, that the proprietor agreed, in the proprietor’s application for exempt bed status in respect of beds in that home, should be taken into account in reducing the Commonwealth benefit payable from time to time in respect of each of those beds if the application were granted.

             (4)  This section does not apply in respect of a day on or after the day on which the Aged Care Act 1997 (other than Division 1 of that Act) commences.

48A  Benefit for nursing home care in transferred homes and adjusted fee government nursing homes

             (1)  Subject to this Part, Part VC and Part VD the proprietor of a transferred home or of an adjusted fee government nursing home is entitled to receive benefit in respect of each approved nursing home patient or Repatriation nursing home patient for each day on which the patient receives nursing home care in the home.

             (2)  Subject to subsections (2A), (3) and (4), the benefit that the proprietor of the nursing home is entitled to receive under subsection (1), in respect of each approved nursing home patient and each Repatriation nursing home patient occupying a bed other than an exempt bed, is equal to the difference between:

                     (a)  the notional fee; and

                     (b)  the amount for the time being applicable for the purpose of subparagraph 47(2)(b)(iii).

          (2A)  The benefit payable under subsection (1) in respect of each approved nursing home patient and each Repatriation nursing home patient occupying an exempt bed in a nursing home is equal to the difference between:

                     (a)  the reference fee, within the meaning of section 39, in relation to that patient; and

                     (b)  the sum of:

                              (i)  the amount for the time being applicable for the purposes of subparagraph 47(2)(b)(iii); and

                             (ii) an amount equal to the proportion of the additional exempt bed fee, within the meaning of section 39, that the proprietor agreed, in the proprietor’s application for exempt bed status in respect of beds in that home, should be taken into account in reducing the Commonwealth benefit payable from time to time in respect of each of those beds if the application were granted.

             (3)  In relation to a patient who is entitled to be provided with medical treatment under the Veterans’ Entitlements Act 1986 in respect of war-caused injury or disease, subsection (2) has effect as if the amount being taken into account for the purpose of paragraph (2)(b) were the amount per day that the patient is liable to pay for nursing home care provided under that Act.

             (4)  If the Secretary is satisfied that, because of special circumstances related to the capacity of a patient in a transferred home to pay fees for nursing home care, the benefit that the proprietor is entitled to receive in respect of the patient should be increased, the Secretary may, by written instrument, determine that the amount to be taken into account under paragraph (2)(b) shall be decreased to the amount specified in the determination, and subsection (2) shall have effect accordingly.

             (5)  This section does not apply in respect of a day on or after the day on which the Aged Care Act 1997 (other than Division 1 of that Act) commences.

48AB  When general care benefit becomes payable

             (1)  The general care benefit to which the proprietor of an approved nursing home is entitled in respect of an approved nursing home patient in the nursing home who receives nursing home care on a day in an accounting period becomes payable on the 30th day after a notional scale of fees has been determined under section 46D in relation to the accounting period.

             (2)  This section does not apply in respect of a day on or after the day on which the Aged Care Act 1997 (other than Division 1 of that Act) commences.

48B  Top-up benefit

             (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 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.

             (4)  This section does not apply in respect of a day on or after the day on which the Aged Care Act 1997 (other than Division 1 of that Act) commences.

             (5)  In this section:

registered nurse includes:

                     (a)  a person who is registered under a law of a State or Territory as:

                              (i)  a psychiatric nurse; or

                             (ii)  a mental nurse; or

                            (iii)  a geriatric nurse; and

                     (b)  in respect of the Territory of Cocos (Keeling) Islands or the Territory of Christmas Island, a nurse who has such qualifications (if any) as are determined by the Minister by notice in writing published in the Gazette.

48C  Isolated nursing home benefit

             (1)  The Minister may formulate in writing:

                     (a)  principles for determining whether an approved nursing home is an isolated nursing home for the purposes of this section; and

                     (b)  principles determining whether all, or specified classes of, isolated nursing homes are eligible for the payment of Commonwealth benefits under this section; and

                     (c)  principles for the payment of a Commonwealth benefit of an amount determined by, or in accordance with, the principles to the proprietor of an eligible nursing home in respect of each approved nursing home patient or Repatriation nursing home patient in the home for each day on which the patient receives nursing home care in the home.

             (2)  Principles for the purposes of paragraph (1)(c) may provide for different amounts per patient per day to be payable as Commonwealth benefit in respect of different nursing homes in accordance with criteria set out in the principles.

             (3)  If, under the principles, the proprietor of an approved nursing home is eligible for a Commonwealth benefit in respect of a patient receiving nursing home care in the home, the Commonwealth benefit is payable to the proprietor in accordance with the principles.

             (4)  This section does not apply in respect of a day on or after the day on which the Aged Care Act 1997 (other than Division 1 of that Act) commences.

48D  Benefit in respect of patients receiving nasogastric feeding

             (1)  The Minister may formulate in writing:

                     (a)  principles determining whether the proprietor of an approved nursing home is eligible for the payment of Commonwealth benefits under this section; and

                     (b)  principles for the payment of a Commonwealth benefit to the proprietor of an approved nursing home in respect of each approved nursing home patient or Repatriation nursing home patient in the home who is in need of, and is receiving, nasogastric feeding.

             (2)  Principles for the purposes of paragraph (1)(b) may provide for different amounts to be payable as Commonwealth benefit in respect of different patients in a nursing home in accordance with criteria set out in the principles.

             (3)  If, under the principles, the proprietor of an approved nursing home is eligible for a Commonwealth benefit in respect of a person who is in need of, and is receiving, nasogastric feeding, the Commonwealth benefit is payable to the proprietor in accordance with the principles.

             (4)  This section does not apply in respect of a day on or after the day on which the Aged Care Act 1997 (other than Division 1 of that Act) commences.

48E  Benefit in respect of patients receiving oxygen

             (1)  The Minister may formulate in writing:

                     (a)  principles for determining the circumstances under which the administration of oxygen to a patient is to be considered an eligible oxygen treatment for the purposes of this section; and

                     (b)  principles determining whether the proprietor of an approved nursing home is eligible for the payment of Commonwealth benefits under this section; and

                     (c)  principles for the payment of a Commonwealth benefit to the proprietor of an approved nursing home in respect of each approved nursing home patient or Repatriation nursing home patient in the home who is in need of, and is receiving, eligible oxygen treatment.

             (2)  Principles for the purposes of paragraph (1)(c) may provide for different amounts to be payable as Commonwealth benefit in respect of different patients in a nursing home in accordance with criteria set out in the principles.

             (3)  If, under the principles, the proprietor of an approved nursing home is eligible for a Commonwealth benefit in respect of a person who is in need of, and is receiving, eligible oxygen treatment, the Commonwealth benefit is payable to the proprietor in accordance with the principles.

             (4)  This section does not apply in respect of a day on or after the day on which the Aged Care Act 1997 (other than Division 1 of that Act) commences.

49  Extensive care benefit

             (1)  Subject to this Part and to Part VC, if on any day an approval under section 40AF is in force in respect of:

                     (a)  an approved nursing home patient in relation to an approved nursing home; or

                     (b)  a Repatriation nursing home patient in relation to a transferred home;

there is payable for that day (in addition to any other Commonwealth benefit payable under this Part) to the proprietor of the approved nursing home or transferred home, as the case may be, in respect of the patient in respect of whom the approval is given, a Commonwealth benefit of $6 or such higher amount as is determined by the Minister by notice in writing.

             (2)  On 1 July 1988, subsection (1) ceases to apply to:

                     (a)  approved nursing home patients; and

                     (b)  Repatriation nursing home patients;

in nursing homes other than Government nursing homes and nursing homes for disabled people.

49AA  Respite Care

             (1)  The Governor-General may make regulations providing for the formulation, implementation and regulation of a scheme providing for respite care in approved nursing homes.

             (2)  Regulations made for the purpose of subsection (1) may provide that a specified provision of this Act does not apply, or applies with prescribed modifications, in relation to a scheme referred to in subsection (1).

             (3)  The power conferred by subsection (2) to make modifications by regulation includes the power to omit any matter or add any new matter.

             (4)  The power to make regulations conferred by subsection (1) shall not be taken not to include the power to make provision in relation to a matter by reason only of the fact that a provision is made by this Act in relation to that matter or another matter.

             (5)  Where regulations made for the purposes of subsection (1) are inconsistent with a provision of this Act that relates to the subject-matter of the regulations, the regulations shall prevail and that provision shall, to the extent of the inconsistency, be of no effect.

             (6)  Regulations made for the purposes of subsection (1) must not be made in respect of the provision of respite care in approved nursing homes on or after the day on which the Aged Care Act 1997 (other than Division 1 of that Act) commences.


 

Division 3Miscellaneous

49A  Commonwealth benefit not payable if approval of nursing home suspended

                   The proprietor of an approved nursing home is not entitled to Commonwealth benefit in respect of any day that is included in a period of suspension of the approval of the nursing home.

49B  Payment of Commonwealth benefit to patient

             (1)  If:

                     (a)  the proprietor of an approved nursing home charges fees in respect of the nursing home care provided to an approved nursing home patient during a period; and

                     (b)  the proprietor does not deduct from the fees Commonwealth benefit that is payable, or may become payable, to the proprietor in respect of the patient for the period;

the Secretary may direct that the Commonwealth benefit so payable, or the amount so paid in advance, be paid to the person to whom the fees were charged and not to the proprietor.

             (2)  If:

                     (a)  the proprietor of the nursing home has been paid, whether by way of advance on account of Commonwealth benefit or otherwise, an amount of Commonwealth benefit in respect of the patient for the period; and

                     (b)  the proprietor charges fees in respect of nursing home care provided to the patient during the period without deducting the amount of benefit so paid in respect of the patient;

the proprietor must, as the Secretary demands, repay to the Commonwealth that amount.

             (3)  If the proprietor of the nursing home has not complied with the Secretary’s demand within 3 months, the amount to which the demand relates may be recovered by the Commonwealth as a debt.

             (4)  The Commonwealth must pay an amount equal to the amount received under subsection (2) or (3) to the person to whom the fees concerned were charged.

50  Payment of Commonwealth benefit and nursing home fund benefit in respect of same patient for same period

             (1)  Where the proprietor of a nursing home who has been paid a Commonwealth benefit in respect of a patient for a period receives, or, under the rules of a registered organization, becomes entitled to receive, a nursing home fund benefit in respect of that patient for that period, the proprietor shall notify the Secretary, in writing, accordingly.

Penalty:  $2,000.

             (2)  A proprietor referred to in subsection (1) shall, on demand by the Secretary, repay to the Commonwealth the amount of Commonwealth benefit referred to in that subsection.

             (3)  Where, at the expiration of 3 months after the making of a demand under subsection (2), the proprietor has not complied with the demand, the amount to which the demand relates may be recovered by the Commonwealth as a debt due to the Commonwealth.

             (4)  In this section, nursing home fund benefit means an amount payable under the rules of a registered hospital benefits organization in respect of a person who was an insured nursing home patient for the purposes of this Act at any time before the commencement of this subsection.

51  Claims for benefit

             (1)  For the purpose of obtaining payment of Commonwealth benefit, the proprietor of an approved nursing home shall, as soon as practicable after the end of each month or such other period as the Secretary approves, submit:

                     (a)  a claim, in the authorized form, for Commonwealth benefit that is, or may become, payable in respect of that month or that period; and

                     (b)  such information relating to the claim as is shown in the authorized form to be required or as the Secretary requests.

             (2)  Subject to section 51A, payment of Commonwealth benefit shall not be made except in respect of amounts included in a claim submitted in accordance with this section.

51A  Advances of benefit

                   The Secretary may, in his or her discretion, authorise the payment to the proprietor of an approved nursing home (other than a Government nursing home) of an advance or advances in respect of Commonwealth benefit that is or may become payable to the proprietor.

51B  Treatment of money overpaid or underpaid by way of an advance

             (1)  The proprietor of an approved nursing home is liable to repay to the Commonwealth any overpayment of Commonwealth benefit.

             (2)  If:

                     (a)  an amount of Commonwealth benefit payable to the proprietor of an approved nursing home in respect of an accounting period exceeds the total of the advances paid to the proprietor in respect of that amount; and

                     (b)  the proprietor elects, in writing, that the amount of the excess be paid to him or her in the manner specified in the principles formulated under subsection 40AA(7);

the amount of the excess is payable to the proprietor of the nursing home in accordance with the election.

Note:          See section 46B for the meaning of overpayment.

51C  Recovery of overpayments

             (1)  An overpayment of Commonwealth benefit made to the proprietor of an approved nursing home may, in whole or in part, be:

                     (a)  deducted from an amount (including an advance) payable, or to be paid, to that proprietor of the nursing home under this Part; or

                     (b)  recovered by the Commonwealth from that proprietor as a debt due to the Commonwealth; or

                     (c)  recovered from that proprietor, or a later proprietor of the nursing home, in a manner determined in accordance with the principles formulated under subsection 40AA(7).

             (2)  If:

                     (a)  the proprietor of a nursing home receives an overpayment of Commonwealth benefit in respect of the nursing home; and

                     (b)  that proprietor (previous proprietor) sells the nursing home; and

                     (c)  part or all of the amount of that overpayment is recovered after the sale from the current proprietor of the nursing home under paragraph (1)(c); and

                     (d)  part or all of the overpayment is later recovered from the previous proprietor;

so much of the amount that has been recovered from the current proprietor as is equal to the amount recovered from the previous proprietor is to be paid to the current proprietor.

             (3)  If the current proprietor of the nursing home elects, in writing, that the amount to which he or she is entitled under subsection (2) be paid to him or her in a manner specified in the principles formulated under subsection 40AA(7), the amount is payable to that proprietor in that manner.

             (4)  Paragraphs (1)(a) and (b) do not affect the recovery or set-off of amounts that have not been paid under this Part.

Note:          See section 46B for the meaning of overpayment.


 

Part VABCommonwealth benefit in respect of newly built nursing homes

Division 1Preliminary

52  Interpretation

                   In this Part:

AIP means an approval-in-principle granted, before the commencement of the Aged Care Act 1997 (other than Division 1 of that Act), by the Minister under section 52C.

eligible premises means newly built premises approved as an approved nursing home on or after 1 November 1991.


 

Division 2Approval-in-principle of an approval of a grant in respect of a newly built nursing home

52D  Minister may revoke an AIP at any time before an approval of grant is given

             (1)  The Minister may revoke an AIP in respect of a proposed nursing home if the Minister is satisfied that a condition of the AIP has not been complied with.

             (2)  Before revoking the AIP, the Minister must give written notice to the holder of the AIP that:

                     (a)  states that the Minister is considering revoking it; and

                     (b)  sets out the condition of the AIP that, in the Minister’s opinion, has not been complied with; and

                     (c)  sets out the facts and reasons supporting the Minister’s opinion.

             (3)  The holder of the AIP may, within 14 days after receiving the notice, make a written submission to the Minister stating reasons why the AIP should not be revoked.

             (4)  The Minister may revoke the AIP if:

                     (a)  the holder of the AIP did not make a submission; or

                     (b)  after considering any submission made by the holder of the AIP, the Minister still thinks that a condition of the AIP has not been complied with.

             (5)  The Minister must comply with any relevant principles in force under subsection (6).

             (6)  The Minister may, in writing, set out principles to be complied with in deciding whether to revoke an AIP.

             (7)  If the Minister revokes an AIP, the Minister must notify the person who held it accordingly.


 

Division 3Approval of grant of Commonwealth benefit in respect of a newly built nursing home

53  Application for Commonwealth benefit

                   The proprietor of eligible premises may apply, in writing, to the Minister for the grant of a Commonwealth benefit in respect of the premises.

54  Principles applicable for grant of Commonwealth benefit

             (1)  The Minister must formulate in writing:

                     (a) principles in accordance with which the grant of a Commonwealth benefit under this Part may be approved; and

                     (b)  principles for determining the amount of the benefit.

             (2)  Without limiting the matters to which the principles may refer, the principles must require the Minister to take into account in deciding whether to approve the grant of a Commonwealth benefit to the proprietor of the nursing home:

                     (a)  the honesty of the applicant; and

                     (b)  the likely efficiency of the applicant as proprietor of the nursing home; and

                     (c)  if the applicant has, at any time, been the proprietor or co-proprietor of a nursing home or has, at any time, had a substantial role in the control of a nursing home:

                              (i)  the extent to which the standards determined under section 45D for the provision of nursing home care were then met in the nursing home; and

                             (ii)  the extent to which patients in the nursing home were then properly classified; and

                            (iii)  the extent to which agreements, substantially complying with the form of agreement formulated by the Minister under section 40ABB, were then entered into between the proprietor of the nursing home and approved nursing home patients in the nursing home; and

                            (iv)  the extent to which the applicant complied with requests for information under paragraph 40AA(6)(ce) or section 60B or 61B; and

                     (d)  whether any grant for capital works costs in respect of the nursing home has been made by the Commonwealth under any other Act.

55  Approval of grant

             (1)  On receiving an application under section 53 for the grant of a Commonwealth benefit in respect of eligible premises, the Minister may, in accordance with the principles, approve the grant of a Commonwealth benefit to the applicant.

          (1A)  The Minister may refuse to approve a grant of Commonwealth benefit to an applicant unless:

                     (a)  the applicant holds a current AIP; and

                     (b)  the Minister is satisfied that the conditions to which the AIP is subject have been complied with.

             (2)  The approval of the Minister must be in writing and set out:

                     (a)  the total amount of the benefit; and

                     (b)  the rate at which the benefit will be paid; and

                     (c)  the period over which the benefit will be paid; and

                     (d)  any conditions subject to which the benefit is payable.

56  Entitlement to benefit

             (1)  Where the grant of a Commonwealth benefit to the proprietor of eligible premises has been approved by the Minister, the Commonwealth benefit is payable to the proprietor in accordance with the approval of the Minister.

             (2)  The Commonwealth benefit ceases to be payable if:

                     (a)  immediately before the commencement day, a Commonwealth benefit was payable to the proprietor; and

                     (b)  on or after the commencement day, the residential care service that corresponds to the eligible premises:

                              (i)  is granted extra service status under Division 32 of the Aged Care Act 1997; or

                             (ii)  is certified under Division 38 of that Act.

             (3)  If:

                     (a)  immediately before the commencement day, a Commonwealth benefit was payable to the proprietor; and

                     (b)  on or after the commencement day, a distinct part of the residential care service that corresponds to the eligible premises is granted extra service status under Division 32 of the Aged Care Act 1997;

the amount of the Commonwealth benefit that would, apart from this section, be payable to the proprietor is to be reduced in accordance with subsection (4).

             (4)  The amount of the Commonwealth benefit is to be reduced by an amount worked out using the formula:

Example:    Assume the amount of the Commonwealth benefit is $10,000 per month, and that the distinct part of the residential care service that is granted extra service status contains 20 places and the total number of places in the service is 40. The amount of the Commonwealth benefit is to be reduced by:

             (5)  In this section:

commencement day means the day on which the Aged Care Act 1997 (other than Division 1 of that Act) commences.

distinct part has the same meaning as in the Aged Care Act 1997.

residential care service has the same meaning as in the Aged Care Act 1997.

57  Appropriation

             (3)  Payments of Commonwealth benefit under this Part on or after 1 July 1992 are to be made out of money appropriated by Parliament for that purpose.


 

Part VACCommonwealth benefit in respect of upgraded nursing homes

Division 1Preliminary

58  Interpretation

                   In this Part:

AIP means an approval-in-principle granted, before the commencement of the Aged Care Act 1997 (other than Division 1 of that Act), by the Minister under section 58CA.

eligible nursing home means an approved nursing home that, in accordance with the principles determined by the Minister under section 58A, is eligible for the payment of Commonwealth benefit under section 58CE.

58A  Principles applicable to determining eligible nursing homes

                   The Minister must set out in writing principles determining whether all, or specified classes of, approved nursing homes are eligible for the payment of the Commonwealth benefit under section 58CE.


 

Division 2Approval-in-principle of a grant in respect of an upgraded nursing home

58CB  Minister may revoke an approval-in-principle at any time before an approval of grant is given

             (1)  The Minister may revoke an AIP in respect of an eligible nursing home if the Minister is of the opinion that a condition of the AIP has not been complied with.

             (2)  Before the Minister revokes the AIP, he or she must give written notice to the holder of the AIP that:

                     (a)  states that the Minister is considering revoking it; and

                     (b)  sets out the condition of the AIP that the Minister thinks has not been complied with; and

                     (c)  sets out the facts and reasons supporting the Minister’s opinion.

             (3)  The holder of the AIP may, within 14 days after receiving the notice, make a written submission to the Minister stating reasons why the AIP should not be revoked.

             (4)  The Minister may then revoke the AIP if:

                     (a)  the holder of the AIP did not make a submission; or

                     (b)  after considering any submission made by the holder of the AIP, the Minister still thinks that a condition of the AIP has not been complied with.

             (5)  The Minister, in exercising powers under subsection (4), must comply with any relevant principles in force under subsection (6).

             (6)  The Minister may set out in writing principles to be complied with in respect to his or her powers under subsection (4).

             (7)  If the Minister revokes an AIP the Minister must notify the person who held it accordingly.

             (8)  The Minister may revoke an AIP before it expires.


 

Division 3Approval of grant of Commonwealth benefit in respect of upgraded nursing homes

58CC  Application for Commonwealth benefit

                   If the proprietor of an eligible nursing home holds a current AIP he or she may apply, in writing, to the Minister for the grant of a Commonwealth benefit in respect of the upgrading of the nursing home.

58CD  Principles applicable for grant of Commonwealth benefit

                   The Minister must set out in writing principles for determining the amount of a grant of Commonwealth benefit.

58CE  Approval of grant

             (1)  Subject to subsection (2), on receiving an application under section 58CC for the grant of a Commonwealth benefit in respect of the upgrading of a nursing home, the Minister may, in accordance with the principles, approve the grant of a Commonwealth benefit to the applicant.

             (2)  The Minister must not approve the grant of a benefit to an applicant unless the applicant declares in writing that the condition of the AIP referred to in subparagraph 58CA(2)(c)(ii), as in force immediately before the commencement of the Aged Care Act 1997 (other than Division 1 of that Act), has been complied with.

Note:          The condition requires that the upgrading work on the home be completed and paid for before the persons applies for a grant under section 58CC.

             (3)  The approval of the Minister must be in writing and set out:

                     (a)  the total amount of the grant; and

                     (b)  the rate at which the benefit will be paid; and

                     (c)  the period over which the benefit will be paid; and

                     (d)  any conditions subject to which the benefit is payable.

58CF  Entitlement to benefit

             (1)  If the grant of a Commonwealth benefit to the proprietor of an eligible nursing home has been approved by the Minister, the Commonwealth benefit is payable to the proprietor in accordance with the Minister’s approval.

             (2)  The Commonwealth benefit ceases to be payable if:

                     (a)  immediately before the commencement day, a Commonwealth benefit was payable to the proprietor; and

                     (b)  on or after the commencement day, the residential care service that corresponds to the eligible nursing home:

                              (i)  is granted extra service status under Division 32 of the Aged Care Act 1997; or

                             (ii)  is certified under Division 38 of that Act.

             (3)  If:

                     (a)  immediately before the commencement day, a Commonwealth benefit was payable to the proprietor; and

                     (b)  on or after the commencement day, a distinct part of the residential care service that corresponds to the eligible nursing home is granted extra service status under Division 32 of the Aged Care Act 1997;

the amount of the Commonwealth benefit that would, apart from this section, be payable to the proprietor is to be reduced in accordance with subsection (4).

             (4)  The amount of the Commonwealth benefit is to be reduced by an amount worked out using the formula:

Example:    Assume the amount of the Commonwealth benefit is $10,000 per month, and that the distinct part of the residential care service that is granted extra service status contains 20 places and the total number of places in the service is 40. The amount of the Commonwealth benefit is to be reduced by:

             (5)  In this section:

commencement day means the day on which the Aged Care Act 1997 (other than Division 1 of that Act) commences.

distinct part has the same meaning as in the Aged Care Act 1997.

residential care service has the same meaning as in the Aged Care Act 1997.

58CG  Appropriation

             (3)  Payments of Commonwealth benefit under this Part on or after 1 July 1993 are to be made out of money appropriated by the Parliament for that purpose.


 

Part VCAdministration of Parts V, VA, VAB and VD

  

58K  Interpretation

             (1)  In this Part, unless the contrary intention appears:

authorised officer means a person who is an authorised officer for the purposes of this Part because of an appointment under subsection (2).

Commonwealth benefit means an amount payable by the Commonwealth by way of benefit in accordance with Part VA or VAB.

             (2)  The Minister may, by writing signed by the Minister, appoint:

                     (a)  a specified person;

                     (b)  a person for the time being holding, or performing the duties of, a specified office; or

                     (c)  persons included in a specified class of persons;

to be an authorised officer, or authorised officers, for the purposes of this Part.

59  Commonwealth benefit not payable where compensation etc. is payable to patient

             (1)  Where:

                     (a)  the proprietor of an approved nursing home has lodged a claim for Commonwealth benefit in respect of a person who is, or was, a qualified nursing home patient in the nursing home receiving nursing home care in the course of treatment of, or as a result of, an injury; and

                     (b)  the patient has received, or established the right to receive, in respect of that injury, a payment by way of compensation or damages (including a payment in settlement of a claim for compensation or damages) under the law that is or was in force in a State or internal Territory, being a payment the amount of which was, in the opinion of the Minister, determined having regard to any expenses in respect of nursing home care incurred, or likely to be incurred (whether by the patient or by another person) in the course of the treatment of, or as a result of, that injury;

the Minister may determine that the whole or a specified part of the payment referred to in paragraph (b) shall, for the purposes of this section, be deemed to relate to the expenses incurred in respect of the nursing home care referred to in paragraph (a).

             (2)  Where:

                     (a)  the Minister has made a determination under subsection (1); and

                     (b)  the amount of the Commonwealth benefit that would, but for this section, be payable in respect of the days on which the patient to whom the determination relates occupies a bed for the purpose of receiving nursing home care to which the determination relates is not in excess of the amount so determined;

Commonwealth benefit is not payable in respect of those days.

             (3)  Where:

                     (a)  the Minister has made a determination under subsection (1); and

                     (b)  the amount of the Commonwealth benefit that would, but for this section, be payable in respect of days on which the patient to whom the determination relates occupies a bed for the purpose of receiving nursing home care to which the determination relates is in excess of the amount so determined;

the amount of the Commonwealth benefit in respect of those days shall not exceed the amount of that excess.

             (4)  Subject to subsection (4A), where, at the time at which a claim for Commonwealth benefit is lodged, it appears to the Minister that the claim may become a claim that will give rise to a determination under subsection (1), the Minister may direct that no Commonwealth benefit be paid at that time in respect of the claim but that there be made to the claimant a provisional payment of such amount of Commonwealth benefit as the Minister thinks fit.

          (4A)  A direction under subsection (4) cannot be made on or after the day on which the Health and Other Services (Compensation) Act 1995 commences.

             (5)  If and when a determination under subsection (1) is made with respect to a claim referred to in subsection (4), the claimant is liable to repay to the Commonwealth:

                     (a)  where, by virtue of subsection (2), no Commonwealth benefit is payable in respect of any days on which the patient to whom the determination relates occupies a bed for the purpose of receiving the nursing home care to which the determination relates—an amount equal to the provisional payment; or

                     (b)  in any other case—the amount by which the amount of the provisional payment exceeds the amount of the Commonwealth benefit payable in respect of the days on which the patient to whom the determination relates occupies a bed for the purpose of receiving the nursing home care to which the determination relates.

             (6)  An amount that a person is liable to repay under subsection (5) is recoverable as a debt due to the Commonwealth.

             (7)  In this section, injury includes a disease.

60B  Information to be furnished by proprietor of approved nursing home

                   For the purposes of Parts V, VA and VAB, the Secretary may, by notice in writing served on the proprietor of the nursing home, request the proprietor to furnish to the Secretary or to an officer of the Department specified in the notice such information as the Secretary specifies, and the proprietor shall, within 28 days after the day on which the notice is served, furnish the information to the Secretary or to the specified officer.

Penalty:  Imprisonment for 6 months.

61  Records to be kept by proprietors of approved nursing homes

             (1)  The proprietor of an approved nursing home shall keep such records as will enable claims for Commonwealth benefits to be verified and enable compliance with the conditions to which the approval of the nursing home is subject to be verified.

Penalty:  100 penalty units.

          (1A)  The proprietor of an approved nursing home shall keep records setting out such particulars in relation to the nursing home as are prescribed.

Penalty:  100 penalty units.

          (1B)  The proprietor of an approved nursing home shall comply with any provision of the regulations relating to the manner in which records for the purpose of subsection (1A) are to be kept.

Penalty:  100 penalty units.

             (2)  Where the Secretary considers that it would facilitate the administration of this Act in relation to a particular approved nursing home (not being a Government nursing home) if the proprietor of the approved nursing home were required to keep further records with respect to the nursing home in addition to the records referred to in subsection (1), the Secretary may, by notice in writing served on the proprietor of that approved nursing home, require the proprietor, on and after a date specified in the notice (not being a date earlier than the date of service of the notice), to keep such further records accordingly.

             (3)  A notice under subsection (2) shall specify:

                     (a)  the particulars of the further records required to be kept by the proprietor of the approved nursing home concerned; and

                     (b)  the manner in which those further records are to be kept.

             (4)  The proprietor of an approved nursing home shall comply with any notice served on the proprietor under subsection (2).

Penalty:  100 penalty units.

          (4A)  The proprietor of an approved nursing home must keep the records, in respect of the nursing home, referred to in subsections (1), (1A) and (2) for the period of 7 financial years beginning on 1 July after the financial year to which the records relate.

Penalty:  200 penalty units.

          (4B)  If, on the day subsection (4A) commences, the proprietor of an approved nursing home has records of the kind referred to in subsection (1), (1A) or (2) in respect of the nursing home, subsection (4A) applies to those records.

             (5)  Nothing in subsection (1) or (2) of this section or in subsection 40AA(6) shall be taken, by implication, to limit the generality of regulations that may be made by virtue of subsection (1A).

Note:          For the definition and value of a penalty unit, see section 4AA of the Crimes Act 1914.

61AA  Records to be kept by former proprietors for 12 months

             (1)  This section applies in relation to the sale of an approved nursing home that occurs after the commencement of this section.

             (2)  A former proprietor of an approved nursing home must retain all the accounts, books, documents and other records relating to the operation of the nursing home that he or she, as proprietor of the nursing home, was required to keep under this Part for a period of 12 months beginning on the day on which the former proprietor ceased to be the proprietor of the nursing home.

Penalty:  $3,000.

             (3)  The former proprietor must hold the accounts, books, documents and other records at a place approved, in writing, by the Secretary.

Penalty:  $3,000.

             (4)  A copy of the Secretary’s approval must be given to the former proprietor within 7 days of the approval being given.

61A  Books and records to be kept at nominated place

             (1)  The proprietor of an approved nursing home shall keep all accounts, books, documents and other records relating to the operation of the nursing home at the nursing home or some other place approved by the Secretary.

Penalty:  Imprisonment for 12 months.

             (2)  An approval under subsection (1):

                     (a)  shall be by instrument in writing; and

                     (b)  may be in respect of nursing homes generally or in respect of a particular nursing home.

61B  Power to require persons to answer questions and produce documents

             (1)  An authorised officer may, by notice signed by him or her, require a person whom he or she believes on reasonable grounds to be capable of giving information relevant to the operation of this Act in relation to the conduct of an approved nursing home to attend at a reasonable time and place specified in the notice and there to answer questions and to produce such accounts, books, documents and other records in relation to the conduct of the home as are referred to in the notice.

             (2)  A notice under subsection (1) requiring a person to produce an account, book, document or record shall set out the effect of subsection (3).

             (4)  An authorised officer may make and retain copies of, or take and retain extracts from, any accounts, books, documents or other records produced pursuant to this section.

             (5)  A person is not excused from answering a question or producing any accounts, books, documents or other records when required so to do under this section on the ground that the answer to the question, or the production of the accounts, books, documents or other records, might tend to incriminate the person or make the person liable to a penalty, but the answer of the person to any such question, the production by the person of any such account, book, document or other record, or any information or thing (including any account, book, document or other record) obtained as a direct or indirect consequence of the answer or the production, is not admissible in evidence against the person in criminal proceedings, other than proceedings under, or arising out of or by virtue of, subsection (3) or paragraph 61E(2)(a).

             (6)  Where the proprietor of an approved nursing home, or a person employed by such a proprietor, has failed to attend or to answer a question, or to produce any account, book, document or other record, when required so to do under this section, Commonwealth benefit is not payable to the proprietor, unless the Secretary otherwise directs in writing, until the proprietor or that person, as the case may be, has attended, answered the question or produced the account, book, document or other record, as the case may be.

61C  Power to examine on oath etc.

             (1)  An authorised officer may examine, on oath or affirmation, a person attending in pursuance of section 61B and, for that purpose, may administer an oath or affirmation to the person.

             (2)  The oath or affirmation to be made by a person for the purposes of subsection (1) is an oath or affirmation that the answers he or she will give to questions asked of him or her will be true.

61D  Entry on premises and inspection of books etc.

             (1)  An authorised officer may, with the consent of the occupier of any premises, enter the premises and exercise the functions of an authorised officer under this section in relation to the premises.

             (2)  If an authorised officer has reasonable grounds for believing that there are on any premises accounts, books, documents or other records relating to the operation of an approved nursing home, the authorised officer may apply to a Justice of the Peace for a warrant authorising the authorised officer to enter the premises and inspect any such accounts, books, documents or records.

             (3)  If the Justice of the Peace is satisfied, by information on oath or affirmation, that:

                     (a)  there are on the premises accounts, books, documents or other records relating to the operation of an approved nursing home;

                     (b)  the premises are not premises that may be entered under section 42; and

                     (c)  the occupier of the premises has not consented to the authorised officer entering the premises for the purpose of inspecting such accounts, books, documents or records;

 the Justice of the Peace shall grant a warrant authorising the authorised officer, with such assistance as the authorised officer thinks necessary, to enter the premises during such hours of the day or night as the warrant specifies or, if the warrant so provides, at any time, and if necessary by force, and:

                     (d)  to inspect any such accounts, books, documents or records that are on the premises; and

                     (e)  to make and retain copies of, or extracts from, any such accounts, books, documents or records.

             (4)  An authorised officer who enters premises under this section is authorised to search the premises for any accounts, books, documents or records that may be inspected under this section.

61E  Offences

             (1)  A person shall not refuse or fail:

                     (a)  to attend before an authorised officer;

                     (b)  to take an oath or make an affirmation; or

                     (c)  to answer a question or produce an account, book, document or other record;

when so required pursuant to this Act.

Penalty:  Imprisonment for 6 months.

             (2)  Subsection (1) does not apply if the person has a reasonable excuse.

Note:          The defendant bears an evidential burden in relation to the matter in subsection (2). See subsection 13.3(3) of the Criminal Code.

62  Offences

             (1)  A person shall not make a statement, either orally or in writing, or issue or present a document containing information, that is false or misleading in a material particular and is capable of being used in, in connection with or in support of:

                    (aa)  an application under section 39A, 39AB, 39BA or 39B;

                     (a)  an application under section 40AA for approval of premises as an approved nursing home;

                     (b)  an application under section 40AD to alter the conditions applicable to a nursing home;

                     (c)  a request to the Minister under section 40AE to review a decision of the Secretary; or

                      (f)  a claim for Commonwealth benefit.

Penalty:  Imprisonment for 5 years.

             (2)  A person shall not, in pursuance of a request made under subsection 43A(1) or section 60B, furnish information or a document that is false or misleading in a material particular.

Penalty:  Imprisonment for 5 years.

          (2A)  A person shall not furnish, for the purposes of a requirement of a regulation made by virtue of section 49AA or a requirement made under such a regulation, information or a document that is false or misleading in a material particular.

Penalty:  Imprisonment for 5 years.

             (3)  In a prosecution of a person for an offence against this section, it is a defence if the person did not know, and had no reason to suspect, that the statement, information or document to which the prosecution relates was false or misleading, as the case may be.

Note:          The defendant bears an evidential burden in relation to the matter in subsection (3). See subsection 13.3(3) of the Criminal Code.


 

Part VDRequirements in respect of sale of approved nursing homes

Division 1Preliminary

63  Object of Part

                   The object of this Part is to provide, in relation to the sale of an approved nursing home, for:

                     (a)  the giving of notices of sale and purchase; and

                     (b)  the investigation of the nursing home’s accounts etc. prior to sale; and

                     (c)  the giving of certain information about the nursing home to the vendor and purchaser before the completion of the contract of sale; and

                     (d)  the recovery of any overpayment of Commonwealth benefit paid in respect of approved nursing home patients in the nursing home; and

                     (e)  the collection and recovery of any nursing home charge payable in respect of the nursing home.

64  Application and operation of Part

             (1)  This Part applies to the sale of an approved nursing home (other than a Government nursing home or a nursing home for disabled people) whether or not that sale involves a transfer of nursing home beds under section 39B.

Note 1:       For the meaning of nursing home for disabled people see subsection 4(1).

Note 2:       For the meaning of Government nursing home see subsection 4(1).

             (2)  If the vendor is selling the business or undertaking carried on at the nursing home to different purchasers, this Part applies to each of those sales as if each was a sale of an approved nursing home.

          (2A)  This Part does not apply if the contract of sale of an approved nursing home was entered into:

                     (a)  if the Secretary has determined a notional scale of fees in relation to the final accounting period in respect of the home—after the Secretary has determined notional scale of fees in relation to:

                              (i)  that final accounting period; and

                             (ii)  each accounting period if any, in respect of the home, occurring before that final accounting period;

                            and after any overpayments outstanding in respect of the nursing home have been paid to or recovered by the Commonwealth, or deducted from amounts payable or to be paid under Part VA; or

                     (b)  in any other case—after the end of the period of 3 years during which the Secretary could determine a notional scale of fees in relation to the final accounting period in respect of the home.

          (2B)  In subsection (2A):

accounting period has the meaning given in Part VA.

final accounting period means the last accounting period, in relation to the home, that ended before the commencement of the Aged Care Act 1997 (other than Division 1 of that Act).

notional scale of fees means a notional scale of fees determined in respect of the home under section 46D.

             (3)  This Part does not apply if the contract of sale of an approved nursing home was entered into before this Part commenced.

             (4)  This Part operates as follows:

                     (a)  notice of sale must be given in accordance with sections 65A and 65B;

                     (b)  then:

OPERATION OF PART





Notice given



Requirements on sale—Division 2 sections that apply

Payment of certain charge money to the Commonwealth—Division 2A sections that apply

Payments of certain moneys to the Commonwealth—Division 3 sections still apply

If the Secretary receives 90 days or more notice of sale of nursing home and it is sold on or after the notified day for completion of sale

Section 65C
Section 65D
Section 65E

Subdivision 1
Section 65GS (direction to purchaser)

Section 65H (direction to purchaser)
Subsections 65K(1), (5) and (6) (overpayment outstanding)
Section 65Q
Section 65R
Section 65S

If the Secretary receives less than 90 days notice of sale of nursing home and it is sold on or after the notified day for completion of sale

Section 65F

Subdivision 1
Section 65GT (directions to purchaser and vendor)
Section 65GU

Section 65J
(direction to purchaser)
Subsections 65(1), (3) and (4)
Section 65N
Section 65P

If the Secretary does not become aware of sale until afterwards or it is sold before the notified day for completion of sale

Section 65G

Subdivision 1 at section 65GA
Section 65GB

Subsections 65K(1) and (2)
Section 65M

65  Interpretation

             (1)  In this Part, unless the contrary intention appears:

assessment means an assessment under section 65GE.

business or undertaking, in relation to an approved nursing home, means the right to operate all of the beds determined under paragraph 40AA(6)(a) as the number of approved beds in relation to the nursing home.

chargepayer means a person who is, or has been, or may be liable to nursing home charge.

Commonwealth benefit has the meaning given by subsection 46(1).

fee-increasing benefit means an amount of Commonwealth benefit that may, in accordance with the principles formulated under subsection 40AA(7), be taken into account to increase fees when determining a scale of fees in respect of a nursing home.

fee-reducing benefit means an amount of Commonwealth benefit that may, in accordance with the principles formulated under subsection 40AA(7), be taken into account to decrease fees when determining a scale of fees in respect of a nursing home.

first investigation, in relation to an approved nursing home that is being sold, means the investigation carried out under paragraph 65C(1)(c).

first investigation period, in relation to an approved nursing home that is being sold, means the period referred to in paragraph 65C(1)(c).

investigation period means the first investigation period, or the second investigation period, in relation to an approved nursing home that is being sold.

investigation to be carried out has the meaning given by subsection (5).

late-payment penalty means penalty under section 65GM.

missed out on receiving has the meaning given in subsection (4).

notified day for completion of sale, in relation to a nursing home that is being sold, means the day on which, according to:

                     (a)  any notice given under the Act by the vendor to the Secretary; or

                     (b)  if the vendor has not given notice—any notice given under the Act by the purchaser to the Secretary; or

                     (c)  if neither the vendor nor the purchaser has given notice—the information (if any) received by the Secretary;

the sale of the nursing home is to be completed.

notional scale of fees has the meaning given by subsection 46(1).

nursing home charge means charge imposed by the Nursing Home Charge (Imposition) Act 1994.

overpayment, in relation to Commonwealth benefit, has the meaning given by section 46B.

overpayment outstanding has the meaning given by section 65K.

purchase of an approved nursing home has the meaning given by subsection (2).

purchase price, in relation to an approved nursing home that is being sold, means:

                     (a)  the amount of money (if any) paid by the purchaser for the transfer of the ownership of the business or undertaking carried out at the nursing home to him or her; or

                     (b)  if the vendor is also selling real or personal property used:

                              (i)  to accommodate the business or undertaking carried out at the nursing home; or

                             (ii)  in the operation of the business or undertaking;

the sum of the amount of money that the purchaser pays for that property and of the amount referred to in paragraph (a).

purchaser payment, in relation to an approved nursing home that is being sold, means an amount paid by the purchaser of the nursing home in answer to a direction given under section 65H or 65J.

remainder of the purchase price, in relation to the sale of an approved nursing home, means so much of the purchase price of the nursing home that has not, before the settlement of the contract of sale of the nursing home, been paid to:

                     (a)  the vendor of the nursing home in settlement of the contract; or

                     (b)  the Commonwealth in answer to a direction under section 65GS or 65GT.

sale of an approved nursing home has the meaning given by subsection (3).

second investigation, in relation to an approved nursing home that is being sold, means the investigation carried out under paragraph 65C(1)(d).

second investigation period, in relation to an approved nursing home that is being sold, means the period referred to in paragraph 65C(1)(d).

vendor, in relation to an approved nursing home that is being, or has been, sold, means the proprietor of the nursing home immediately before the sale.

vendor advance, in relation to an amount determined by the Secretary under paragraph 65F(1)(g), in respect of an approved nursing home, means an amount paid by the vendor of the nursing home to the Commonwealth in answer to a direction given under section 65GT.

vendor payment, in relation to an overpayment outstanding in respect of an approved nursing home, means an amount paid by the vendor to the Commonwealth under section 65K.

             (2)  A purchase of an approved nursing home occurs when the ownership of the business or undertaking carried out at the nursing home is transferred from one person to another person whether or not that transfer results from the payment of an amount of money.

             (3)  A sale of an approved nursing home is the transfer of the ownership of the business or undertaking carried out at the nursing home from one person to another person whether or not that transfer occurs as the result of the payment of an amount of money.

             (4)  For the purposes of this Part, if:

                     (a)  a proprietor of an approved nursing home has, before 1 July 1993, received an amount of Commonwealth benefit in respect of the provision of nursing home care to an approved nursing home patient on a day; and

                     (b)  a reconciliation of the actual and estimated expenditure by the proprietor in respect of the provision of that care has been done in accordance with principles formulated under subsection 40AA(7); and

                     (c)  on the basis of the reconciliation it appears that the proprietor should have been entitled to receive, in respect of the provision of that care, an amount of Commonwealth benefit that is higher than the amount received by the proprietor;

the proprietor has missed out on receiving the difference between that higher amount and the amount received by the proprietor.

             (5)  A reference in this Part to an investigation to be carried out in respect of an approved nursing home is a reference to an investigation of such of the accounts, books, documents or other records relevant to the operation of the nursing home as the Secretary thinks appropriate.


 

Division 2Requirements on sale of approved nursing home

65A  Vendor must give notice of sale of an approved nursing home

             (1)  The vendor of an approved nursing home who enters into a contract to sell the nursing home must, before the day of completion of the sale, give the Minister notice, in writing, of the following matters:

                     (a)  the name and address of the nursing home;

                     (b)  the name and address of the other party to the contract;

                     (c)  the proposed day and time of completion of the sale;

                     (d)  the address at which completion will take place;

                     (e)  the purchase price of the nursing home.

Penalty:  $20,000.

             (2)  The vendor must not complete the sale within:

                     (a)  90 days of giving notice; or

                     (b)  such lesser period as the Secretary may determine at the request of the vendor.

Penalty:  $20,000.

             (3)  If the Secretary determines a period of less than 90 days, he or she must notify the vendor, in writing, of that lesser period.

             (4)  If:

                     (a)  the vendor has given notice under subsection (1); and

                     (b)  the particulars referred to in paragraphs (1)(c) or (d) change;

the vendor must give the Secretary notice in writing (amended notice) of the following matters:

                     (c)  the date and time of completion of the sale;

                     (d)  the address at which completion will take place.

             (5)  The vendor must give the amended notice at least 14 days before the day of completion of the sale.

Penalty:  $5,000.

             (6)  If:

                     (a)  the vendor has given notice under subsection (1); and

                     (b)  the notice does not contain particulars as to the proposed date and time of completion of the sale of the nursing home;

the notice is taken not to have been given.

             (7)  If:

                     (a)  the vendor has given notice under subsection (1) and the particulars referred to in paragraph (1)(c) or (d) change; and

                     (b)  the vendor does not give an amended notice;

the notice is taken not to have been given.

65B  Purchaser to give notice of prospective purchase of approved nursing home

             (1)  A person who contracts with the vendor of an approved nursing home to purchase the nursing home must give the Minister notice, in writing, of the following matters:

                     (a)  that he or she has entered into a contract to purchase a nursing home;

                     (b)  the name of the vendor and the name and address of the nursing home;

                     (c)  the proposed time and day of completion of the sale;

                     (d)  the address at which completion will take place;

                     (e)  his or her name and address;

                      (f)  the purchase price of the nursing home.

             (2)  The person must give notice at least 42 days before the day of completion of the sale.

             (3)  If:

                     (a)  the purchaser has given notice under subsection (1); and

                     (b)  the particulars referred to in paragraph (1)(c) or (d) change;

the purchaser must give the Secretary notice in writing (amended notice) of the following matters:

                     (c)  the date and time of completion of the sale;

                     (d)  the address at which completion will take place.

             (4)  If:

                     (a)  the purchaser had given notice under subsection (1); and

                     (b)  the notice does not contain particulars as to the proposed date and time of completion of the sale of the nursing home;

the notice is taken not to have been given.

65C  Investigation of accounts etc. of approved nursing homes

             (1)  Subject to section 65GAA, if the Secretary:

                     (a)  has received notice of 90 days or more of the intended sale of an approved nursing home; or

                     (b)  been otherwise informed of the sale 90 days or more before the proposed day of sale;

the Secretary must order the following investigations to be carried out in respect of the nursing home:

                     (c)  an investigation in respect of the period beginning on a day determined by the Secretary and ending on the 30 June last past; and

                     (d)  an investigation in respect of the period beginning on the 1 July last past and ending at the end of the day immediately before the day on which the contract of sale is completed.

             (2)  The purpose of each investigation is to:

                     (a)  establish whether the vendor, or an earlier proprietor of that nursing home, has received an overpayment in respect of the nursing home, in respect of the investigation period; and

                     (b)  if there has been such an overpayment—allow the Secretary to work out the amount of the overpayment and how much of it (if any) has not been recovered as at the last day in the investigation period; and

                     (c)  if the investigation period began on a day earlier than the commencement of this Part—establish whether the vendor, or an earlier proprietor of that nursing home, has, in respect of the investigation period:

                              (i)  received a fee-reducing benefit; or

                             (ii)  missed out on receiving fee-increasing benefit; and

                     (d)  if the vendor, or an earlier proprietor of the nursing home, has:

                              (i)  received a fee-reducing benefit; or

                             (ii)  missed out on receiving fee-increasing benefit;

                            allow the Secretary to work out the amount of benefit.

             (3)  The investigation under paragraph 65C(1)(d) must be completed within 90 days from the day on which the contract of sale of the nursing home was completed.

65D  Secretary may also determine certain matters

             (1)  Before the second investigation in respect of the operation of an approved nursing home is completed, the Secretary must determine, in writing:

                     (a)  whether, in the Secretary’s opinion, the vendor, or an earlier proprietor of the nursing home, has received an overpayment in respect of the nursing home, in respect of the second investigation period; and

                     (b)  the amount (if any) that, in the Secretary’s opinion, is a fair estimate of the total amount of any such overpayment.

             (2)  In determining an amount under paragraph (1)(b) the Secretary must comply with any relevant principles in force under subsection (3).

             (3)  The Minister may set out, in writing, principles to be complied with by the Secretary with respect to his or her powers under subsection (1).

Note:          See section 65T for when the principles come into force.

65E  Parties to a contract of sale to be informed of results of investigation etc.

                   If the Secretary has ordered an investigation to be carried out in respect of an approved nursing home under section 65C, the Secretary may, before the notified day for completion of sale of the nursing home, give to each of the parties to the contract of sale notice in writing of:

                     (a)  the amount of any overpayment established by the investigation carried out under paragraph 65C(1)(c); and

                     (b)  the means by which that amount was calculated; and

                     (c)  if the vendor or an earlier proprietor of that nursing home has received a fee-reducing benefit—the amount of that benefit; and

                    (ca)  if the vendor or an earlier proprietor of that nursing home has missed out on receiving fee-increasing benefit—the amount of that benefit; and

                     (d)  the means by which the amount of fee-reducing or fee-increasing benefit was calculated; and

                     (e)  if the Secretary has determined an amount for the purposes of paragraph 65D(1)(b)—the amount and the means by which the amount was calculated; and

                      (f)  the amount of any grant of Commonwealth benefit paid in respect of the nursing home; and

                     (g)  any other information about a scale of fees or a notional scale of fees determined in respect of the nursing home that, in the Secretary’s opinion, the person purchasing the home should have.

65F  Proprietor gives less than 90 days notice on settlement of contract of sale or settles in less than 90 days

             (1)  Subject to section 65GAA, if less than 90 days before the proposed day for completion of the sale, the Secretary:

                     (a)  receives notice of the sale of an approved nursing home under section 65A or 65B; or

                     (b)  is otherwise informed of the intended sale of the nursing home;

the Secretary must:

                     (c)  order an investigation to be carried out in respect of the nursing home in respect of the period beginning on a day determined by the Secretary and ending on the day immediately before the day on which the contract of sale is to be completed; and

                     (d)  determine whether, in the Secretary’s opinion, the vendor or an earlier proprietor of that nursing home has received an overpayment in respect of the investigation period; and

                     (e)  if the Secretary determines that, in his or her opinion, the vendor or an earlier proprietor has received an overpayment in respect of the investigation period—determine:

                              (i)  the amount that, in the Secretary’s opinion, is an estimate of the overpayment so received; and

                             (ii)  how much of that amount, in the Secretary’s opinion, will not be recovered by the Commonwealth as at the notified day for completion of sale; and

                      (f)  if the investigation period began on a day earlier than the commencement of this Part—determine whether, in the Secretary’s opinion, the vendor, or an earlier proprietor of the nursing home, has, in respect of the investigation period:

                              (i)  received a fee-reducing benefit; or

                             (ii)  missed out on receiving fee-increasing benefit; and

                     (g)  if the Secretary determines that, in his or her opinion, the vendor or an earlier proprietor of the nursing home has:

                              (i)  received a fee-reducing benefit; or

                             (ii)  missed out on receiving fee-increasing benefit;

                            determine an amount that is, in the Secretary’s opinion, a fair estimate of that amount.

             (2)  The purpose of the investigation is to:

                     (a)  establish whether the vendor, or an earlier proprietor of that nursing home, has received an overpayment in respect of the nursing home in respect of the investigation period; and

                     (b)  if there has been such an overpayment—allow the Secretary to work out the amount of the overpayment and how much of it (if any) is still owing on the last day in the investigation period; and

                     (c)  if the investigation period began on a day earlier than the commencement of this Part—establish whether the vendor, or an earlier proprietor of that nursing home, has, in respect of the investigation period:

                              (i)  received a fee-reducing benefit; or

                             (ii)  missed out on receiving fee-increasing benefit; and

                     (d)  if the vendor, or an earlier proprietor of that nursing home, has:

                              (i)  received a fee-reducing benefit; or

                             (ii)  missed out on receiving fee-increasing benefit;

                            allow the Secretary to work out the amount of benefit.

          (2A)  An investigation must be completed within 90 days from the day on which the contract of sale of the nursing home was completed.

             (3)  A determination under paragraph (1)(e) or (g) must:

                     (a)  be in writing; and

                     (b)  state the amount determined by the Secretary; and

                     (c)  set out the means by which the amount is determined.

             (4)  On or before the notified day of completion of the sale, a copy of the determination may be provided to both the vendor and the purchaser of the nursing home.

             (5)  In determining an amount under paragraph (1)(e) the Secretary must comply with any relevant principles in force under subsection (6).

             (6)  The Minister may set out, in writing, principles to be complied with by the Secretary with respect to his or her powers under paragraph (1)(e).

Note:          See section 65T for when the principles come into force.

65G  If no notice of sale given or vendor sells before notified date

             (1)  This section applies in the following cases:

                     (a)  if:

                              (i)  an approved nursing home has been sold; and

                             (ii)  the Secretary did not receive notice of the sale under section 65A or 65B or was not otherwise informed of the sale before the day of completion of sale;

                     (b)  if the proprietor of an approved nursing home sells the nursing home before the notified day for completion of sale of the home.

             (2)  On and from the day that the Secretary becomes aware that the nursing home has been so sold, any obligations imposed on the Secretary under sections 65C, 65D, 65E or 65F cease to operate.

             (3)  Subject to section 65GAA, the Secretary must order an investigation to be carried out in respect of the nursing home in respect of the period beginning on a day determined by the Secretary and ending on the day immediately before the day on which the contract of sale was completed for the purposes of:

                     (a)  determining whether the vendor or an earlier proprietor of that nursing home has received an overpayment in respect of the investigation period; and

                     (b)  if the investigation period began on a day earlier than the commencement of this Part—determining whether the vendor or an earlier proprietor of that nursing home has, in respect of the investigation period:

                              (i)  received a fee-reducing benefit; or

                             (ii)  missed out on receiving fee-increasing benefit.

          (3A)  An investigation must be completed within 90 days from the day on which the Secretary becomes aware that the nursing home has been sold.

             (4)  The Secretary must:

                     (a)  determine whether the vendor or an earlier proprietor of that nursing home has received an overpayment in respect of the investigation period and, if there has been such an overpayment, determine:

                              (i)  the amount of the overpayment so received; and

                             (ii)  how much of that amount will not be recovered as at the day before the day on which the contract of sale was completed; and

                     (b)  if the investigation period began on a day earlier than the commencement of this Part—determine whether the vendor or an earlier proprietor of that nursing home has, in respect of the investigation period:

                              (i)  received a fee-reducing benefit; or

                             (ii)  missed out on receiving fee-increasing benefit;

                            and if the Secretary determines that there is such an amount of benefit, determine the amount of it.

             (5)  A determination under paragraph (4)(a) or (b) must:

                     (a)  be in writing; and

                     (b)  state the amount determined by the Secretary; and

                     (c)  set out the means by which the amount is determined.

             (6)  In determining an amount under paragraph (4)(a) the Secretary must comply with any relevant principles in force under subsection (7).

             (7)  The Minister may set out, in writing, principles to be complied with by the Secretary with respect to his or her powers under paragraph (4)(a).

Note:          See section 65T for when the principles come into force.

65GAA  Effect on investigation periods of commencement of the Aged Care Act 1997

             (1)  If, apart from this section, an investigation period would end after the commencement of the Aged Care Act 1997 (other than Division 1 of that Act), the investigation period is taken, for the purposes of this Part, to end immediately before that commencement.

             (2)  The Secretary must not order an investigation to be carried out in respect of an approved nursing home in respect of a period that begins on or after the commencement of the Aged Care Act 1997 (other than Division 1 of that Act).

             (3)  If, on or after the day on which the Aged Care Act 1997 (other than Division 1 of that Act) commences, the Secretary under subsection 65C(1), orders an investigation to be carried out:

                     (a)  paragraph 65C(1)(c) applies in relation to such an investigation as if the reference to the 30 June last past were a reference to 30 June 1996; and

                     (b)  paragraph 65C(1)(d) applies in relation to such an investigation as if the reference to the 1 July last past were a reference to 1 July 1996.


 

Division 2ANursing home charge

Subdivision 1Assessment

65GA  Notice of fee-reducing benefit

             (1)  If:

                     (a)  an investigation under paragraph 65C(1)(c) or 65F(1)(c) or subsection 65G(3) in respect of an approved nursing home is completed after the commencement of this section; and

                     (b)  the investigation establishes that the vendor or an earlier proprietor of the nursing home has received a fee-reducing benefit in respect of the investigation period;

                   the Secretary must work out whether some or all of that fee-reducing benefit was received in respect of the period beginning on the day determined by the Secretary under paragraph 65C(1)(c) or 65F(1)(c) or subsection 65G(3) (as the case may be) and ending on 30 June 1993 (charge period).

             (2)  If the vendor or an earlier proprietor of the nursing home has received fee-reducing benefit in respect of the charge period, the Secretary may give to the vendor a written notice setting out the amount of a fee-reducing benefit in respect of the charge period.

65GB  Liability to pay nursing home charge

             (1)  If the Secretary gives a notice under section 65GA to the vendor of the nursing home, nursing home charge is payable in respect of the nursing home in accordance with this Division.

             (2)  The vendor of the nursing home is liable to pay the nursing home charge.

65GC  Amount of nursing home charge

                   The amount of nursing home charge payable by the vendor of the approved nursing home equals the amount of fee-reducing benefit stated in the notice under section 65GA.

65GD  Notice of liability to pay nursing home charge

                   As soon as possible after the Secretary has given notice under section 65GA in respect of an approved nursing home, the Secretary must give to the vendor a notice, in writing, stating:

                     (a)  that the vendor is liable to pay nursing home charge in respect of the nursing home; and

                     (b)  the amount of the charge payable; and

                     (c)  the day on which the charge is payable.

65GE  Assessment

             (1)  The working out by the Secretary of the amount of fee-reducing benefit that has been received by the vendor or an earlier proprietor of an approved nursing home during the charge period is taken to be an assessment of the nursing home charge payable by the vendor in respect of the nursing home.

             (2)  The notice given under section 65GA in respect of the vendor’s liability to pay nursing home charge is taken to be a notice of assessment.

65GF  Amendment of assessments

             (1)  The Secretary may amend an assessment on his or her initiative.

             (2)  The amendment must be made within 3 years from the day on which nursing home charge became payable.

             (3)  If:

                     (a)  a chargepayer applies to the Secretary for an amendment of the assessment; and

                     (b)  the application is made within 3 years from the day on which that nursing home charge became payable; and

                     (c)  within that period the chargepayer lodges all information the Secretary needs to decide the application;

the Secretary may amend the assessment when considering the application even if that period has elapsed.

             (4)  The Secretary may amend an assessment as he or she thinks fit whether or not any nursing home charge has been paid under it.

             (5)  If the Secretary amends an assessment, the Secretary must give to the chargepayer notice of the amended assessment.

             (6)  If the amended assessment increases the amount of nursing home charge payable, the notice must:

                     (a)  set out the extra amount payable; and

                     (b)  the day on which it is payable.

             (7)  Nothing in this section prevents the amendment of an assessment to give effect to:

                     (a)  the decision on any review or appeal; or

                     (b)  a reduction of any particular following an objection or pending any review or appeal.

65GG  Refund of overpaid amounts

             (1)  If:

                     (a)  an assessment of a person’s liability is amended; and

                     (b)  because of that amendment the person’s liability to nursing home charge is reduced;

then:

                     (c)  the amount by which the nursing home charge is reduced is taken, in spite of section 65GC, never to have been payable; and

                     (d)  the Secretary must:

                              (i)  refund any overpaid amount; or

                             (ii)  apply any overpaid amount against the person’s liability (if any) in respect of an overpayment established by an investigation under paragraph 65C(1)(c) or (d) or paragraph 65F(1)(c) or subsection 65G(3) and then refund the remainder (if any).

             (2)  In this section, overpaid amount includes any late-payment penalty.

65GH  Amended assessment to be an assessment

                   An amended assessment is taken to be an assessment for all the purposes of this Part.

65GI  Objections

             (1)  If:

                     (a)  a person has been assessed as liable to pay nursing home charge; and

                     (b)  the person is dissatisfied with the assessment;

he or she may, within 42 days after having been given notice of the assessment, lodge a written objection to the assessment stating fully the grounds on which the person relies.

             (2)  The Minister must consider the objection and may either reject it or allow all or part of it.

             (3)  The Minister must give the person written notice of the decision.

             (4)  If an assessment has been amended in any particular, an assessed person’s right to object to the amended assessment is limited to a right to object to alterations or additions in relation to, or matters relating to, the particular.

65GJ  Validity of assessment

                   The validity of an assessment is not affected because any provision of this Act has not been complied with.

65GK  Evidentiary effect of notice of assessment etc.

             (1)  The production of:

                     (a)  a notice of assessment; or

                     (b)  a document that is signed by the Secretary and appears to be a copy of a notice of assessment;

is conclusive evidence that the assessment was duly made and that the amounts and other particulars in the assessment are correct.

             (2)  The production of a certificate signed by the Secretary certifying that an amount was, at the date of the certificate, due and payable by the person is evidence of the matters stated in the certificate.

             (3)  This section does not apply in proceedings under the Administrative Appeals Tribunal Act 1975 or the Administrative Decisions (Judicial Review) Act 1977 on a review or appeal relating to the assessment.

Subdivision 2Collection and recovery

65GL  Secretary may extend time for payment

             (1)  The Secretary may, in a particular case, extend the time for payment of nursing home charge, or allow it to be paid by instalments on days fixed by the Secretary.

             (2)  In this section:

nursing home charge includes late-payment penalty.

65GM  Penalty for late payment

             (1)  If an amount of nursing home charge remains unpaid after the day on which it was payable, the chargepayer is liable to pay a penalty at the rate of 16% per year on the unpaid amount.

             (2)  The penalty is calculated from the day on which the charge became payable.

             (3)  The fact that a judgment is entered or given in a court for the payment of nursing home charge, or of a composite amount that includes nursing home charge, does not of itself cause the charge to stop being unpaid for the purposes of subsection (1).

             (4)  If the judgment debt bears interest, the penalty payable under subsection (1) is reduced by the following amount:

             (5)  The Secretary may remit some or all of the penalty if:

                     (a)  the Secretary is satisfied that the person did not contribute to the delay in payment and has taken reasonable steps to mitigate the causes of the delay; or

                     (b)  the Secretary is satisfied:

                              (i)  that the person contributed to the delay but has taken reasonable steps to mitigate the causes of the delay; and

                             (ii)  having regard to the nature of the reasons that caused the delay, that it would be fair and reasonable to remit some or all of the penalty; or

                     (c)  the Secretary is satisfied that there are special circumstances that make it reasonable to remit some or all of the penalty.

65GN  Recovery of unpaid nursing home charge

             (1)  Unpaid nursing home charge may be recovered as a debt in any court of competent jurisdiction.

             (2)  In this section:

nursing home charge includes late payment penalty.

65GO  Recovery of nursing home charge from persons with joint liability

             (1)  If there are 2 or more persons jointly liable to pay nursing home charge they are each liable for the whole of the charge.

             (2)  A person who has paid nursing home charge may recover the following contribution from any other person jointly liable to pay:

             (3)  The person entitled to the contribution:

                     (a)  may recover it as a debt in any court of competent jurisdiction; or

                     (b)  may retain or deduct it out of money in the person’s hands that belongs to, or is payable to, the contributor.

             (4)  In this section:

nursing home charge includes late-payment penalty.

65GP  Recovery of nursing home charge from trustee of deceased chargepayer

             (1)  This section applies if:

                     (a)  an approved nursing home is on sale; and

                     (b)  the proprietor of the nursing home dies before the sale is completed; and

                     (c)  either:

                              (i)  the proprietor’s liability to pay nursing home charge has not been assessed at the day of his or her death; or

                             (ii)  nursing home charge payable in respect of the nursing home has not been paid at the day of his or her death.

             (2)  Any notice of assessment that would have been given to the chargepayer under this Division if he or she had not died is to be given to the trustee of his or her estate.

             (3)  Any nursing home charge:

                     (a)  that was payable, and that had not been paid, by the chargepayer at the time of his or her death; or

                     (b)  that would have become payable by the chargepayer if he or she had not died;

is payable by the trustee of his or her estate.

             (4)  The Secretary has the same powers and remedies against the trustee of the estate for the recovery of any nursing home charge referred to in subsection (3) as the Secretary would have against the chargepayer if he or she had not died.

             (5)  A trustee who is dissatisfied with an assessment made under this section may object in the manner set out in section 65GI.

             (6)  In this section:

nursing home charge includes late-payment penalty.

65GQ  Recovery of nursing home charge from unadministered deceased estate

             (1)  This section applies if administration of a chargepayer’s estate did not begin within 6 months after the chargepayer’s death.

             (2)  The Secretary may make an assessment of the nursing home charge that would have been payable by the deceased if he or she had not died.

             (3)  If the chargepayer resided in a State or Territory at the time of death, the Secretary must publish notice of the assessment twice in a daily newspaper circulating in the State or Territory.

             (4)  A person who claims an interest in the deceased chargepayer’s estate, and who is dissatisfied with the assessment, may object in the manner set out in section 65GI.

             (5)  If a person is granted probate of the chargepayer’s will, or letters of administration of the chargepayer’s estate, and the person is dissatisfied with the assessment, the person may object in the manner set out in section 65GI.

             (6)  In this section:

administration of a chargepayer’s estate is taken to begin when either probate of the chargepayer’s will is granted, or letters of administration of the chargepayer’s estate are granted.

nursing home charge includes late-payment penalty.

Subdivision 3Advance payments

65GR  Overview of Subdivision

             (1)  This Subdivision provides for a collection mechanism to allow the Commonwealth to collect an amount from the vendor of an approved nursing home, the purchaser, or both, before the sale of the nursing home.

             (2)  The Commonwealth may collect the amount if:

                     (a)  it is likely that, upon assessment, a vendor will be found to be liable to pay nursing home charge in respect of the nursing home; or

                     (b)  the vendor has been assessed as liable to pay nursing home charge in respect of the nursing home.

65GS  If paragraph 65C(1)(c) investigation done—direction to purchaser to pay amount to the Commonwealth

             (1)  If:

                     (a)  an investigation of the kind referred to in paragraph 65C(1)(c) has been carried out in respect of an approved nursing home; and

                     (b)  the vendor is liable to pay nursing home charge in respect of the nursing home;

the Secretary may, in writing, direct the purchaser of the nursing home to pay to the Commonwealth on or before the notified day for completion of sale of the nursing home:

                     (c)  so much of the purchase price as equals the nursing home charge; or

                     (d)  if the purchase price is less than the charge—the purchase price.

             (2)  The amount paid by the purchaser in answer to a direction is taken to be paid in settlement, or part settlement (as the case may be), of the amount due by the vendor to the Commonwealth in respect of the charge.

             (3)  Money paid to the Commonwealth by the purchaser is taken to have been paid by the purchaser to the vendor as consideration, or part of the consideration, under the contract for the sale of the nursing home.

65GT  If paragraph 65F(1)(c) investigation has been ordered—vendor’s and purchaser’s liability to pay advance

             (1)  This section applies if the Secretary determines, under paragraph 65F(1)(g), an amount that is, in the Secretary’s opinion, a fair estimate of an amount of fee-reducing benefit that, in the Secretary’s opinion, the vendor, or an earlier proprietor of an approved nursing home, has received in respect of the investigation period.

             (2)  The Secretary must determine whether some or all of that estimated fee-reducing benefit was received in respect of the charge period.

             (3)  If the Secretary determines that a fee-reducing benefit was received in respect of the charge period, the Secretary may direct the purchaser to pay to the Commonwealth, on or before the notified day for completion of sale of the nursing home:

                     (a)  so much of the purchase price as equals the estimated amount of fee-reducing benefit in respect of the charge period; or

                     (b)  if the purchase price is less than the estimated amount of fee-reducing benefit in respect of the charge period—the purchase price.

             (4)  The Secretary may direct the vendor to pay to the Commonwealth, on or before the notified day for completion of sale of the nursing home:

                     (a)  if the Secretary has not given the purchaser a direction under subsection (3)—the estimated amount of fee-reducing benefit in respect of the charge period; or

                     (b)  if the purchaser has been so directed and the purchase price is less than the estimated amount of fee-reducing benefit in respect of the charge period—the difference between that estimated amount and the purchase price.

             (5)  The vendor must comply with the direction.

Penalty:  500 penalty units.

Note:          For the definition and value of a penalty unit, see section 4AA of the Crimes Act 1914.

             (6)  The amount paid under subsection (3) or (4) is taken to be money held in trust (trust money) by the Commonwealth for the benefit of the vendor until the investigation under paragraph 65F(1)(c) is completed.

             (7)  Money paid to the Commonwealth by the purchaser is taken to have been paid by the purchaser to the vendor as consideration, or part of the consideration, under the contract for the sale of the nursing home.

             (8)  In this section:

investigation period, in respect of an approved nursing home, means the period applying under paragraph 65F(1)(c).

65GU  Treatment of money paid in advance under section 65GT

             (1)  When the investigation under paragraph 65F(1)(c) in respect of an approved nursing home is completed, the trust money is to be treated as set out under subsections (2), (3) and (4).

             (2)  If the investigation establishes that the vendor is not liable to pay nursing home charge, the money is held until the vendor’s liability to pay an overpayment in respect of the nursing home is determined.

             (3)  If the vendor has such a liability the trust money is to be applied by the Secretary against the liability and the balance (if any) is to be repaid to the vendor.

             (4)  If the investigation establishes that the vendor is liable to pay nursing home charge in respect of the nursing home, then:

                     (a)  if the trust money is equal to or less than the nursing home charge—the trust money is taken to have been paid to the Commonwealth in settlement or part settlement of the amount due in respect of the charge; or

                     (b)  if the trust money is more than the charge:

                              (i)  so much of the trust money as equals the charge is taken to have been paid to the Commonwealth in settlement of the amount due to the Commonwealth by the vendor in respect of the charge; and

                             (ii)  the remainder (if any) of the trust money is to be applied by the Secretary against any liability of the vendor to the Commonwealth in respect of an overpayment established by an investigation under paragraph 65F(1)(c) or (d); and

                            (iii)  the balance of the trust money (if any) is paid to the vendor.

65GV  Directions to be in writing

             (1)  A direction to a purchaser of an approved nursing home under section 65GS or 65GT must be in writing and set out:

                     (a)  details of the amount of the purchase price the purchaser is directed to pay; and

                     (b)  the day on which the amount is payable.

             (2)  A direction to a vendor of an approved nursing home under section 65GT must be in writing and set out:

                     (a)  if a purchaser of the nursing home has been directed to pay some or all of the purchase price of the nursing home to the Commonwealth—details of the amounts the purchaser was directed to pay; and

                     (b)  the day on which the vendor advance is payable.

             (3)  A direction must not specify a day later than the notified day for completion of the sale of the nursing home as the day on which the amount is payable.

65GW  Scale of fees may take account of unpaid nursing home charge

             (1)  The principles formulated under subsection 40AA(7) may provide that in determining a scale of fees, or notional scale of fees, in respect of an approved nursing home, the Secretary may:

                     (a)  take into account whether any nursing home charge remains unpaid (outstanding charge) in respect of the nursing home; and

                     (b)  reduce the fees that the proprietor may charge accordingly.

             (2)  If, after the scale of fees or notional scale of fees is determined, the outstanding charge is paid to the Commonwealth, the Secretary must determine a new scale of fees in respect of the nursing home.

             (3)  The new scale of fees must reflect that there is no outstanding charge in respect of the nursing home.

Note:          In determining a notional scale of fees in respect of the nursing home, the Secretary will determine whether or not the proprietor, during the accounting period, received the correct amount of general care benefit in respect of the provision of nursing home care in the nursing home. The fact that the proprietor’s fees were reduced to take account of outstanding nursing home charge will be taken into account in setting the notional fees. If the proprietor, given his or her actual expenditure on providing nursing home care, should have received a higher level of general care benefit in respect of the nursing home, the notional fees will be adjusted to reflect that the proprietor was underpaid general care benefit.


 

Division 3Payment of certain moneys to the Commonwealth

65H  If paragraphs 65C(1)(c) and (d) investigations done—direction to purchaser to pay amount to the Commonwealth

             (1)  If:

                     (a)  investigations of the kind referred to in paragraphs 65C(1)(c) and (d) have been ordered in respect of an approved nursing home; and

                     (b)  the Secretary has not directed the purchaser of the nursing home to pay an amount under section 65GS in respect of the nursing home;

the Secretary may, in writing, direct the purchaser of the nursing home to pay to the Commonwealth on or before the notified day for completion of sale of the nursing home:

                     (c)  so much of the purchase price as equals the sum of:

                              (i)  the amount of the overpayment established by the first investigation; and

                             (ii)  the amount determined under paragraph 65D(1)(b) in respect of the nursing home; or

                     (d)  if the purchase price is less than the sum of those amounts—the purchase price.

          (1A)  If:

                     (a)  investigations of the kind referred to in paragraphs 65C(1)(c) and (d) have been ordered in respect of an approved nursing home; and

                     (b)  the Secretary has directed the purchaser under section 65GS to pay some or all of the purchase price in respect of the nursing home to the Commonwealth;

the Secretary may, in writing, direct the purchaser of the nursing home to pay to the Commonwealth on or before the notified day for completion of sale of the nursing home:

                     (c)  so much of the remainder of the purchase price as equals the sum of:

                              (i)  the amount of the overpayment established by the first investigation; and

                             (ii)  the amount determined under paragraph 65D(1)(b) in respect of the nursing home; or

                     (d)  if the remainder of the purchase price is less than the sum of the amounts—the remainder of the purchase price.

             (2)  If the purchaser payment is more than the overpayment established by the first investigation:

                     (a)  so much of the purchaser payment as equals the overpayment is taken to have been paid in settlement of the amount due by the vendor to the Commonwealth in respect of the overpayment; and

                     (b)  the balance of the purchaser payment is taken to be money (trust money) held in trust by the Commonwealth for the benefit of the proprietor of the nursing home until the second investigation carried out in respect of the nursing home is completed.

             (3)  If the purchaser payment is equal to or less than the overpayment established by the first investigation, the whole of the purchaser payment is taken to be paid in settlement, or part settlement (as the case may be), of the amount due by the vendor to the Commonwealth in respect of the overpayment.

             (4)  When the second investigation is completed:

                     (a)  if the trust money is more than the overpayment (if any) established by the second investigation:

                              (i)  so much of it as is equal to the overpayment is taken to have been paid to the Commonwealth in settlement of the amount due to the Commonwealth by the vendor in respect of the overpayment; and

                             (ii)  the remainder of the trust money is to be paid to the vendor; or

                     (b)  if the trust money is equal to or less than the overpayment in respect of the second investigation period, it is taken to have been paid to the Commonwealth in settlement, or part settlement, of the amount due to the Commonwealth by the vendor in respect of the overpayment.

             (5)  Money paid to the Commonwealth by the purchaser is taken to have been paid by the purchaser to the vendor as consideration, or part of the consideration, under the contract for the sale of the nursing home.

65J  If amount determined under paragraph 65F(1)(e)—direction to purchaser to pay amount to the Commonwealth

             (1)  If, in respect of the sale of an approved nursing home:

                     (a)  the Secretary has determined an amount under paragraph 65F(1)(e); and

                     (b)  the Secretary has not directed the purchaser of the nursing home to pay an amount under section 65GT;

the Secretary may, in writing, direct the purchaser of the nursing home to pay to the Commonwealth on or before the notified day for completion of sale of the nursing home:

                     (c)  if the purchase price is equal to or less than the amount determined—the purchase price; or

                     (d)  if the purchase price is more than the amount determined—so much of the purchase price as equals the amount so determined.

          (1A)  If, in respect of the sale of an approved nursing home:

                     (a)  the Secretary has determined an amount under paragraph 65F(1)(e); and

                     (b)  the Secretary has directed the purchaser under section 65GT to pay some or all of the purchase price of the nursing home to the Commonwealth;

the Secretary may, in writing, direct the purchaser of the nursing home to pay to the Commonwealth on or before the notified day for completion of sale of the nursing home:

                     (c)  if the remainder of the purchase price is equal to or less than the amount determined—the remainder of the purchase price; or

                     (d)  if the purchase price is more than the amount determined—so much of the purchase price as equals the amount so determined.

             (2)  The amount paid under subsection (1) is taken to be money (trust money) held in trust by the Commonwealth for the benefit of the vendor until the investigation carried out under paragraph 65F(1)(c) is completed.

             (3)  When the investigation carried out under paragraph 65F(1)(c) is completed:

                     (a)  if the trust money is more than the overpayment (if any) in respect of the period to which the investigation related:

                              (i)  so much of the trust money as is equal to the overpayment is taken to have been paid to the Commonwealth in settlement of the amount due to the Commonwealth by the vendor in respect of the overpayment; and

                             (ii)  the remainder of the trust money is to be paid to the vendor; or

                     (b)  if the trust money is equal to or less than the overpayment in respect of the period to which the investigation related—it is taken to have been paid to the Commonwealth in settlement, or part settlement, of the amount due to the Commonwealth by the vendor in respect of the overpayment.

             (4)  Money paid to the Commonwealth by the purchaser is taken to have been paid by the purchaser to the vendor as consideration, or part of the consideration, under the contract for the sale of the nursing home.

65K  Certain moneys to be paid by proprietor of nursing home to the Commonwealth on or before sale of nursing home

             (1)  The vendor of an approved nursing home must, on or before the notified day for completion of sale of the nursing home, pay to the Commonwealth an amount equal to the amount that is, under subsection (2), (3), (4), (5) or (6), the overpayment outstanding in respect of the nursing home.

Penalty:  $50,000.

             (2)  If:

                     (a)  the Secretary did not receive notice of the sale of the nursing home under section 65A or 65B or was not otherwise informed of the sale before the day of completion of the sale; or

                     (b)  the vendor sells the nursing home before the notified day for completion of sale of the home;

the overpayment outstanding in respect of the nursing home is equal to the sum of the advances in respect of Commonwealth benefit paid to the vendor in respect of approved nursing home patients who received nursing home care in the nursing home during any accounting period in respect of which the Secretary has not determined a notional scale of fees.

Note:          For the meaning of notional scale of fees see section 46.

             (3)  If:

                     (a)  the Secretary has made a determination under paragraph 65F(1)(e) in respect of the nursing home; and

                     (b)  a copy of the determination has been given to the vendor on or before the day of completion of the sale; and

                     (c)  no purchaser payment has been made in respect of the sale of the nursing home; and

                     (d)  subsection (2) does not apply;

the overpayment outstanding in respect of the nursing home is the amount specified in the determination.

             (4)  If:

                     (a)  the Secretary has made a determination under paragraph 65F(1)(e) in respect of the nursing home; and

                     (b)  a copy of the determination has been given to the vendor on or before the day of completion of the sale; and

                     (c)  a purchaser payment has been made in respect of the sale of the nursing home; and

                     (d)  subsection (2) does not apply;

the overpayment outstanding in respect of the nursing home is the difference between:

                     (e)  the amount specified in the determination; and

                      (f)  the purchaser payment.

             (5)  If:

                     (a)  an investigation has been carried out under paragraph 65C(1)(c) in respect of the nursing home; and

                     (b)  an amount has been determined under paragraph 65D(1)(b); and

                     (c)  no purchaser payment has been made in respect of the sale of the nursing home; and

                     (d)  subsection (2) does not apply;

the overpayment outstanding in respect of the nursing home is the sum of:

                     (e)  the amount of overpayment (if any) established by the first investigation; and

                      (f)  the amount specified in the determination.

             (6)  If:

                     (a)  investigations have been undertaken under paragraphs 65C(1)(c) and (d) in respect of the operation of the nursing home; and

                     (b)  an amount has been determined under paragraph 65D(1)(b); and

                     (c)  a purchaser payment has been made in respect of the sale of the nursing home; and

                     (d)  subsection (2) does not apply;

the overpayment outstanding in respect of the nursing home is the difference between:

                     (e)  the sum of:

                              (i)  the overpayment (if any) established by the first investigation; and

                             (ii)  the amount specified in the determination; and

                      (f)  the purchaser payment.

65L  Money paid in settlement of an overpayment outstanding—how to deal with it

                   A vendor payment in relation to an overpayment outstanding in respect of an approved nursing home is to be dealt with as set out in sections 65M, 65N, 65P, 65Q, 65R and 65S.

Note:          For the meaning of vendor payment see subsection 65(1).

65M  Treatment of amount paid in respect of overpayment outstanding to which subsection 65K(2) applies

             (1)  This section applies if the overpayment outstanding in respect of the approved nursing home has been determined under subsection 65K(2).

             (2)  The vendor payment is held in trust for the vendor’s benefit until the investigation carried out under subsection 65G(3) in respect of the nursing home is completed.

             (3)  If the investigation establishes that no overpayment is payable by the vendor, the vendor payment is paid to the vendor.

             (4)  If the investigation establishes that there has been, in respect of the investigation period, an overpayment for which the vendor is liable, then:

                     (a)  if the vendor payment is equal to or less than the overpayment—the vendor payment is taken to have been paid to the Commonwealth in settlement or part settlement of the overpayment; or

                     (b)  if the vendor payment is more than the overpayment:

                              (i)  so much of the vendor payment as is equal to the overpayment is taken to have been paid to the Commonwealth in settlement of the overpayment; and

                             (ii)  the balance is paid to the vendor.

65N  Treatment of amount paid in respect of overpayment outstanding to which subsection 65K(3) applies

             (1)  This section applies if the overpayment outstanding in respect of the approved nursing home has been determined under subsection 65K(3).

             (2)  The vendor payment is held in trust for the vendor’s benefit until the investigation carried out under paragraph 65F(1)(c) in respect of the nursing home is completed.

             (3)  If the investigation establishes that no overpayment is payable by the vendor, the vendor payment is paid to the vendor.

             (4)  If the investigation establishes that there has been, in respect of the investigation period, an overpayment for which the vendor is liable, then:

                     (a)  if the vendor payment is equal to or less than the overpayment—the vendor payment is taken to have been paid to the Commonwealth in settlement or part settlement of the overpayment; or

                     (b)  if the vendor payment is more than the overpayment:

                              (i)  so much of the vendor payment as is equal to the overpayment is taken to have been paid to the Commonwealth in settlement of the overpayment; and

                             (ii)  the balance is paid to the vendor.

Note:          Subsection 65GU(4) directs the Secretary to apply money paid in relation to a vendor’s liability to pay nursing home charge:

                         (a)     in the first instance—against the charge; and

                         (b)     then—against any liability of the vendor in respect of an overpayment.

65P  Treatment of amount paid in respect of overpayment outstanding to which subsection 65K(4) applies

             (1)  This section applies if the overpayment outstanding in respect of the approved nursing home has been determined under subsection 65K(4).

             (2)  The vendor payment is held in trust for the vendor’s benefit until the investigation carried out under paragraph 65F(1)(c) in respect of the nursing home is completed.

             (3)  If the investigation establishes that no overpayment is payable by the vendor, the vendor payment is paid to the vendor.

             (4)  If:

                     (a)  the investigation establishes that there has been, in respect of the investigation period, an overpayment for which the vendor is liable; and

                     (b)  the Commonwealth holds in trust a purchaser payment that is equal to, or higher than, the overpayment;

the vendor payment is paid to the vendor.

             (5)  If:

                     (a)  the investigation establishes that there has been, in respect of the investigation period, an overpayment for which the vendor is liable; and

                     (b)  the Commonwealth holds in trust a purchaser payment that is less than the overpayment;

then:

                     (c)  if the vendor payment is equal to or less than the difference (outstanding debt) between the overpayment and the purchaser payment—the vendor payment is taken to have been paid to the Commonwealth in settlement or part settlement of the outstanding debt; or

                     (d)  if the vendor payment is more than the outstanding debt:

                              (i)  so much of the vendor payment as is equal to the outstanding debt is taken to have been paid to the Commonwealth in settlement of that debt; and

                             (ii)  the balance is paid to the vendor.

65Q  Treatment of amount paid in respect of overpayment outstanding to which subsection 65K(5) applies

             (1)  This section applies if the overpayment outstanding in respect of the approved nursing home has been determined under subsection 65K(5).

             (2)  If the first investigation has established that, in respect of the investigation period, an overpayment is payable by the vendor:

                     (a)  so much of the vendor payment as is equal to the overpayment is taken to be paid in settlement, or part settlement, of the overpayment; and

                     (b)  the remainder of the vendor payment is held in trust for the benefit of the vendor until the second investigation is completed.

             (3)  If the second investigation establishes that, in respect of that investigation period, no overpayment is payable by the vendor, the remainder of the vendor payment is paid to the vendor.

             (4)  If the second investigation establishes that there has been, in respect of that investigation period, an overpayment for which the vendor is liable, then:

                     (a)  if the remainder of the vendor payment is equal to or less than the overpayment—the remainder of the vendor payment is taken to have been paid to the Commonwealth in settlement or part settlement of the overpayment; or

                     (b)  if the remainder of the vendor payment is more than the overpayment:

                              (i)  so much of the vendor payment as is equal to the overpayment is taken to have been paid to the Commonwealth in settlement of the overpayment; and

                             (ii)  the balance is paid to the vendor.

65R  Treatment of amount paid in respect of overpayment outstanding to which subsection 65K(6) applies—Step 1: first investigation amount

             (1)  This section:

                     (a)  applies if the overpayment outstanding in respect of the approved nursing home has been determined under subsection 65K(6); and

                     (b)  sets out how that part of the vendor payment as is equal to the overpayment established by the first investigation is to be dealt with.

Note:          The treatment of so much of the vendor payment that relates to the amount (if any) established by the second investigation is dealt with under section 65S.

             (2)  If the purchaser payment in respect of the nursing home was less than the amount of the overpayment in respect of the first investigation period, then:

                     (a)  so much of the vendor payment as is equal to the difference between the overpayment and the purchaser payment is taken to have been paid in settlement, or part settlement, of the overpayment outstanding; and

                     (b)  the balance is held in trust for the vendor’s benefit until the second investigation is completed.

             (3)  If the purchaser payment is equal to or more than the overpayment, the vendor payment is held in trust for the vendor’s benefit until the second investigation is completed.

65S  Treatment of amount paid in respect of overpayment outstanding to which subsection 65K(6) applies—Step 2: second investigation amount

             (1)  This section:

                     (a)  applies if the overpayment outstanding in respect of the nursing home has been determined under subsection 65K(6); and

                     (b)  sets out how the balance of the vendor payment, held in trust, is to be dealt with when the second investigation is completed.

             (2)  If the second investigation establishes that no overpayment in respect of that investigation period is payable by the vendor, the balance of the vendor payment is paid to the vendor.

             (3)  If:

                     (a)  the second investigation establishes that there has been, in respect of that investigation period, an overpayment for which the vendor is liable; and

                     (b)  the Commonwealth, under section 65H, holds in trust a part of the purchaser payment in respect of the overpayment that is equal to, or higher than, the overpayment;

the balance of the vendor payment is paid to the vendor.

             (4)  If:

                     (a)  the second investigation establishes that there has been, in respect of that investigation period, an overpayment for which the vendor is liable; and

                     (b)  the Commonwealth holds in trust a part of the purchaser payment in respect of the overpayment that is less than the overpayment;

then:

                     (c)  if the balance of the vendor payment is equal to or less than the difference (outstanding debt) between the overpayment and the purchaser payment—the balance of the vendor payment is taken to have been paid to the Commonwealth in settlement or part settlement of the outstanding debt; or

                     (d)  if the balance of the vendor payment is more than the outstanding debt:

                              (i)  so much of the balance of the vendor payment as is equal to the outstanding debt is taken to have been paid to the Commonwealth in settlement of that debt; and

                             (ii)  the remainder is paid to the vendor.

Note:          See examples in the following tables:

Example 1

Example of operation of paragraphs 65S(4)(a), (b) and (c)

Facts

1.   The amount of the overpayment (OP) established by the second investigation is $65,000.

2.   The purchaser payment held in trust (PP) is $30,000.

3.   The balance of the vendor payment (VP) is $35,000.

Application

To work out how the vendor payment is treated under paragraphs 65S(4)(a), (b) and (c).

Step 1                                    $65,000 (OP)

                                           —$30,000 (PP)

                                               $35,000 (Outstanding debt)

Step 2                                    $35,000 (Outstanding debt)

                                           —$35,000 (VP)

                                                      0

Result

1.   $35,000 (VP) is taken as paid in settlement of the overpayment outstanding.

2.   No money is paid to vendor.

Example 2

Example of operation of paragraphs 65S(4)(a), (b) and (d)

Facts

1.   The amount of the overpayment (OP) established by the second investigation is $65,000.

2.   The purchaser payment held in trust (PP) is $30,000.

3.   The balance of the vendor payment (VP) is $60,000.

Application

To work out how the vendor payment is treated under paragraphs 65S(4)(a), (b) and (d).

Step 1                                    $65,000 (OP)

                                           —$30,000 (PP)

                                               $35,000 (Outstanding debt)

Step 2                                    $60,000 (VP)

                                           —$35,000 (Outstanding debt)

                                               $25,000

Result

1.   $35,000 (VP) is taken as paid in settlement of the overpayment outstanding.

2.   $25,000 is paid to vendor.

             (5)  If:

                     (a)  the second investigation establishes that there has been, in respect of the investigation period, an overpayment for which the vendor is liable; and

                     (b)  no part of the purchaser payment is held in trust;

then:

                     (c)  if the balance of the vendor payment is equal to or less than the overpayment—the balance of the vendor payment is taken to have been paid to the Commonwealth in settlement or part settlement of the overpayment; or

                     (d)  if the balance of the vendor payment is more than the overpayment:

                              (i)  so much of the balance of the vendor payment as is equal to the overpayment is taken to have been paid to the Commonwealth in settlement of the overpayment; and

                             (ii)  the remainder is paid to the vendor.


 

Division 4Miscellaneous

65SA  Interest payable on repayments to vendors made under Division 3

             (1)  If the Commonwealth is liable to repay an amount to the vendor under section 65H, 65J, 65M, 65N, 65P, 65Q or 65S, the Commonwealth is also liable to pay interest on that amount at the rate determined by the regulations.

             (2)  If an amount of purchaser payment is repayable under section 65H or 65J, the interest is payable in respect of the period beginning on the day on which the contract for sale of the nursing home was completed and ending on the day on which the repayment is made.

             (3)  If an amount of vendor payment is repayable under section 65M, the interest is payable in respect of the period beginning on the day on which the vendor paid the overpayment outstanding to the Commonwealth under subsection 65K(2) and ending on the day on which the repayment is made.

             (4)  If an amount of vendor payment is repayable under section 65N, 65P, 65Q or 65S, the interest is payable in respect of the period beginning on the day on which the vendor paid the money to the Commonwealth in answer to a direction under that section and ending on the day on which the repayment is made.

65SB  Interest payable on repayments to vendors made under Division 2A

             (1)  If the Commonwealth is liable to repay an amount to the vendor under section 65GU, the Commonwealth is also liable to pay interest on that amount, at the rate determined by the regulations, in respect of the periods set out below.

             (2)  If only the purchaser has made a payment in answer to a direction under section 65GT, the interest is payable in respect of the period beginning on the day on which the contract for sale of the nursing home was completed and ending on the day on which the repayment is made.

             (3)  If:

                     (a)  both a payment by the purchaser and a vendor advance has been made in answer to directions under section 65GT; or

                     (b)  only a vendor advance has been made under such a direction;

the interest is payable in respect of the period beginning on the day on which the vendor paid the money to the Commonwealth in answer to a direction under section 65GT and ending on the day on which the repayment is made.

65T  Time when principles take effect

             (1)  Principles set out under subsections 65D(3), 65F(6) and 65G(7):

                     (a)  are to be laid before each House of the Parliament within 15 sitting days of that House after they have been set out; and

                     (b)  take effect only as provided by the following provisions of this section.

             (2)  If:

                     (a)  notice of a motion to amend the principles is given in either House of the Parliament within 15 sitting days after they have been laid before that House; and

                     (b)  the principles, whether or not as amended, are subsequently approved by that House; and

                     (c)  the other House approves the principles in the form approved by the first-mentioned House;

the principles take effect in the form so approved from the day on which that other House approves them in that form.

             (3)  If no notice of motion to amend the principles is given in either House of the Parliament under paragraph (2)(a), the principles take effect from the day immediately after the last day on which the notice of motion could have been so given in either House.

65U  Parties to a contract of sale to be informed of certain matters after sale

             (1)  If:

                     (a)  an investigation has been undertaken under paragraph 65C(1)(d) in respect of the operation of a nursing home; and

                     (b)  that investigation establishes that an overpayment in respect of the second investigation period is payable;

the Secretary may give the vendor and the purchaser of the nursing home information as to the amount of that overpayment.

             (2)  If:

                     (a)  an investigation is carried out under paragraph 65F(1)(c) or subsection 65G(3) in respect of a nursing home; and

                     (b)  the investigation establishes either:

                              (i)  that an overpayment has been made in respect of the operation of the nursing home during the investigation period; or

                             (ii)  that the vendor, or an earlier proprietor, has received a fee-reducing benefit or missed out on receiving fee-increasing benefit (as the case may be);

the Secretary may give the vendor and the purchaser information as to the amount of such overpayment or fee-reducing benefit or fee-increasing benefit.

             (3)  After the sale of a nursing home is completed, the Secretary may provide the purchaser of the home with any other information about a scale of fees or a notional scale of fees determined in respect of the home that, in the Secretary’s opinion, the purchaser should have.

             (4)  The Secretary may provide the purchaser of the home with any information about a grant of Commonwealth benefit (if any) made in respect of the home.


 

Part VIHealth benefits organizations

Division 1General

66  Interpretation

             (1)  In this Part, unless the contrary intention appears:

breach of the Act, in relation to a registered organization, means a failure by the organization to conduct its health insurance business as required by section 67B.

Court means the Federal Court of Australia.

improper discrimination means a discrimination that is related to all or any of the following matters:

                     (a)  the suffering by a person from a chronic disease, illness or other medical condition or from a disease, illness or medical condition of a particular kind;

                     (b)  the gender, race, sexual orientation or religious belief of a person;

                    (ba)  the age of a person, except to the extent that the person’s age may be taken into account under section 73BAAA and Schedule 2;

                  (baa)  the place of residence of a person, except to the extent that the person’s place of residence may be taken into account under section 73AAL;

                    (bb)  any other characteristic of a person (including but not limited to matters such as occupation or leisure pursuits) that is likely to result in an increased requirement for professional services;

                     (c)  the frequency of the rendering of professional services to a person;

                     (d)  the amount, or extent, of the benefits to which a person becomes, or has become, entitled during a period;

                     (e)  any matter prescribed for the purposes of this paragraph.

officer, in relation to a registered organization, includes:

                     (a)  if the organization is a company under the Corporations Act 2001—a director of the company; and

                     (b)  the public officer of the organization; and

                     (c)  if the organization is an incorporated association—a member of the management committee of that association; and

                     (d)  if the organization is an unincorporated entity—a member of the governing body of the entity; and

                     (e)  if a person has been appointed as a receiver of the property of the organization and manages, or has, under the terms of the receiver’s appointment, power to manage the affairs of the organization—that receiver.

the Committee means the Registration Committee referred to in section seventy of this Act.

             (2)  A reference in this Part to the principles of community rating is a reference to the general requirements imposed on a registered organization by virtue of the operation of subsections 73AAH(2) and (3) and also to the particular requirements imposed on a registered organization under sections 73AAI and 73AAJ.

67  Health insurance business to be carried on only by registered organisations

             (1)  A person (other than a registered organization) shall not carry on health insurance business.

             (2)  A person who contravenes subsection (1) is, in respect of each day on which the person contravenes that subsection (including the day of a conviction of an offence against this subsection or any subsequent day), guilty of an offence punishable on conviction by a fine not exceeding:

                     (a)  if the person is a body corporate, $20,000; or

                     (b)  if the person is a natural person, $2,000.

             (3)  A person shall not be taken to contravene subsection (1) by reason only that the person is carrying on business for the purpose of discharging liabilities assumed by the person before the commencement of this section.

             (4)  In this section:

accident and sickness insurance business means the business of undertaking liability, by way of insurance, to pay a lump sum, or to make periodic payments, on the happening of a personal accident, disease or sickness, but does not include:

                     (a)  any such business where liability is undertaken with respect to loss arising out of a liability to pay fees or charges in relation to the provision in Australia of hospital treatment or an ancillary health benefit; or

                     (b)  business of a kind prescribed for the purposes of this paragraph.

ancillary health benefit means:

                     (a)  relevant health services;

                     (b)  services involving the supply, alteration, maintenance or repair of hearing aids, spectacles, contact lenses, artificial teeth, eyes or limbs (including parts of teeth or limbs) or other medical, surgical, prosthetic or dental aids, equipment or appliances;

                     (c)  drugs or medicinal preparations;

                     (d)  ambulance services;

                     (e)  services by an attendant of a person who is sick or disabled; or

                      (f)  any other benefit, or benefit included in a class of benefits, prescribed for the purposes of this paragraph;

but does not include:

                     (g)  the rendering in Australia of a professional service for which medicare benefit is, or but for subsection 18(4) of the Health Insurance Act 1973 would be, payable;

                     (h)  hospital treatment; or

                      (j)  any other benefit, or benefit included in a class of benefits, prescribed for the purposes of this paragraph.

employee health benefits scheme means an arrangement that provides for an employer to arrange payment in respect of the whole or part of the fees and charges incurred by an employee of the employer in relation to hospital treatment or an ancillary health benefit, even if the arrangement:

                     (a)  is a minor or incidental part of the employer’s business; or

                     (b)  does not require the employee to pay any contributions; or

                     (c)  does not require the employee to pay contributions that reflect the value of the benefits that the employer is providing under the arrangement; or

                     (d)  provides for the employer to make payments in relation to hospital treatment, or an ancillary health benefit, provided to a person other than the employee; or

                     (e)  confers on the employer or another person a discretion whether to make payments;

but does not include an arrangement that the Minister determines in writing not to be an employee health benefits scheme.

health insurance business means the business of undertaking liability, by way of insurance:

                     (a)  with respect to loss arising out of a liability to pay fees or charges in relation to the provision in Australia of hospital treatment or an ancillary health benefit; or

                    (ab)  with respect to the happening of an occurrence that ordinarily requires the provision of hospital treatment or relevant health services, whether or not payment of benefits to the insured is dependent upon one or more of the following:

                              (i)  such treatment or services being provided to the insured;

                             (ii)  the insured requiring such treatment or services;

                            (iii)  fees or charges being payable by the insured in relation to the provision of such treatment or services; or

                     (b)  with respect to, or with respect to the happening of an occurrence connected with, the provision in Australia of hospital treatment or an ancillary health benefit;

but does not include:

                     (c)  accident and sickness insurance business;

                     (d)  liability insurance business; or

                     (e)  business of a kind prescribed for the purposes of this paragraph.

Note:          Subsections (5) and (6) deal with the application of this definition in respect of employee health benefits schemes.

hospital includes a day hospital facility.

hospital treatment means accommodation and nursing care, whether provided for the purpose of permitting the provision of professional attention or, in the case of a nursing-home type patient, as an end in itself, and includes:

                     (a)  the provision at, or on behalf of, a hospital of relevant health services to a patient of the hospital; and

                     (b)  the provision at a hospital of a facility for a patient of the hospital.

insurance means insurance to which paragraph 51(xiv) of the Constitution applies.

liability insurance business means the business of undertaking liability, by way of insurance, with respect to any loss arising out of a liability to pay compensation or damages, and includes motor vehicle insurance business and workers’ compensation insurance business.

motor vehicle insurance business means the business of undertaking liability, by way of insurance, with respect to any loss arising out of a liability to pay compensation or damages by reason of the use of a motor vehicle.

relevant health services means medical, surgical, diagnostic, nursing, dental, chiropody, chiropractic, eye therapy, occupational therapy, physiotherapy, speech therapy or similar services or treatment.

workers’ compensation insurance business means the business of undertaking liability, by way of insurance, with respect to any loss arising out of a liability to pay compensation or damages to an employee by reason of an event occurring in circumstances connected with the employee’s employment.

             (5)  Subject to subsection (6), an employee health benefits scheme is not precluded from constituting a health insurance business within the meaning of this section, even though it does not constitute a business of undertaking liability by way of insurance, if:

                     (a)  the employer is a body corporate to which paragraph 51(xx) of the Constitution applies; or

                     (b)  the employer is a body corporate incorporated in a Territory; or

                     (c)  the employer carries on business in a Territory.

             (6)  Subsection (5) does not apply in relation to an employee health benefits scheme to the extent (if any) that the scheme constitutes State insurance within the meaning of paragraph 51(xiv) of the Constitution.

67A  Injunctions for contravention of section 67

             (1)  Where, on the application of the Minister, the Council or any other person, the Court is satisfied that a person has engaged, or is proposing to engage, in conduct that constitutes or would constitute a contravention of subsection 67(1), the Court may grant an injunction in such terms as the Court determines to be appropriate.

             (2)  Where in the opinion of the Court it is desirable to do so, the Court may grant an interim injunction pending determination of an application under subsection (1).

             (3)  The Court may rescind or vary an injunction granted under subsection (1) or (2).

             (4)  The power of the Court to grant an injunction restraining a person from engaging in conduct may be exercised:

                     (a)  whether or not it appears to the Court that the person intends to engage again, or to continue to engage, in conduct of that kind; and

                     (b)  whether or not the person has previously engaged in conduct of that kind.

             (5)  The power of the Court to grant an injunction requiring a person to do an act or thing may be exercised:

                     (a)  whether or not it appears to the Court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that act or thing; and

                     (b)  whether or not the person has previously refused or failed to do that act or thing.

67B  Conduct of health insurance business

                   A registered organization must conduct its health insurance business in accordance with:

                     (a)  the provisions of this Act and the regulations; and

                     (b)  any term or condition of registration that is imposed on the organization by or under this Act; and

                     (c)  any direction of the Minister given under section 73BEJ that has been served on the organization; and

                     (d)  the Council’s rules; and

                     (e)  the provisions of the constitution and rules of the organization, other than provisions that are inconsistent with:

                              (i)  this Act or the regulations; or

                             (ii)  a term or condition of registration referred to in paragraph (b); or

                            (iii)  a direction referred to in paragraph (c);

and not otherwise.


 

Division 2Registration

68  Application for registration as health benefits organization

             (1)  Subject to subsection (2), an organization may apply to the Council for registration as a registered health benefits organization.

             (2)  An organization is not entitled to apply for such registration unless:

                     (a)  it is a company limited by shares, by guarantee or by both shares and guarantee; and

                     (b)  its constitution and its rules provide:

                              (i)  that the organization is established for the purpose of conducting a health benefits fund and for no other purpose unless that purpose is incidental to the conduct of that fund; and

                             (ii)  that there is to be credited to that fund the whole of the income of the organization arising out of the carrying on by the organization of business as a registered health benefits organization (including any income arising from the investment of money not immediately required for the payment of benefits).

             (3)  Subsection (2) does not imply that an organization established for profit may not seek to be registered as a health benefits organization.

69  Lodgment of application and giving of information by applicant organisations

          (1A)  An application for registration as a registered organization must be lodged with the Council.

             (1)  The regulations shall make provision for and in relation to the manner and form in which applications for registration as a registered health benefits organisation are to be lodged and the documents and information which are to be furnished in support of, or in connexion with, applications.

             (2)  The Council shall refuse to entertain an application for registration as a registered health benefits organisation unless the applicant organization furnishes, in accordance with the regulations, particulars relating to the affairs, finances, rules and conduct of the organization.

70  Registration Committee

             (1)  For the purposes of this Part, there shall be a Registration Committee which shall consist of:

                     (a)  the Commonwealth Actuary or a person appointed by the Commonwealth Actuary to act in his or her stead; and

                    (ab)  a person appointed by the Council; and

                     (b)  an officer of the Department appointed by the Secretary.

             (2)  The regulations may make provision for and in relation to the procedure of the Committee.

71  Application to be referred to Committee

                   The Council shall refer an application for registration as a registered health benefits organisation, the documents and information furnished in support of, or in connexion with, the application and such other information as the Council thinks fit to the Committee for examination and report to the Council.

72  Report of the Committee

                   The Committee shall submit to the Council a report on the application and, in its report, recommend to the Council that registration of the organization be granted or refused.

72A  Matters to be taken into account by Committee and by Council

                   The Committee, in making a recommendation with respect to an application for registration of an organization, and the Council, in exercising the Council’s powers with respect to such an application, must consider whether the organization is eligible to be registered and must also take into account:

                     (a)  the number of persons who contribute, or are likely to contribute, to the fund of the organization;

                     (b)  the rates of contributions to that fund;

                     (c)  the rules of the organization relating to that fund and, in particular, whether those rules contain appropriate provisions, having regard to the provisions of this Act;

                    (ca)  whether the organization will, if it is registered, meet the solvency standard established under Division 3A and the capital adequacy standard established under Division 3B;

                     (d)  in respect of that fund—the ratio that the likely amount of the management and administrative expenses in respect of the conduct of that fund bears to the likely amount of contributions to that fund; or

                     (e)  any other matter that the Council or the Committee, as the case may be, considers relevant, having regard to the public interest.

73  Registration and permission to carry on business as registered health benefits organisation

             (1)  The Council may, after considering the report of the Committee in relation to an application under section 68 grant, subject to such terms and conditions (if any) as the Council thinks fit, or refuse, the application.

       (2AA)  For the purposes of subsection (1), there shall be a register called “The Register of Health Benefits Organizations” and, where the Council, under subsection (1), grants an application for registration, the name of the applicant organization and such other particulars as are prescribed shall be entered forthwith upon the register and the organization shall be taken to be registered with effect from 1 February 1984 or the date on which the organization made the application, whichever is the later.

        (2AB)  Where the Council determines, under subsection (1) that the registration of an organization shall be subject to terms and conditions, that registration shall be taken to be subject to those terms and conditions with effect from the date from which the registration of the organization is to be taken to have effect.

          (2A)  The Council must not grant an application by an organization for registration as a registered health benefits organization if the constitution or the rules of the organization permit improper discrimination.

Note:          Improper discrimination is defined in subsection 66(1).

             (3)  The entries in the register relating to an organization shall be signed by the Council.

             (4)  The register shall not be open for inspection except by a person authorized in writing by the Council.

             (5)  The Council shall furnish to each applicant organization notification in writing of its registration and the terms and conditions (if any) subject to which the organization is registered or of the refusal to register the organization, as the case requires.

             (6)  When the Council grants or refuses an application for registration of an organization, the Council must, as soon as practicable, and not later than 7 days after granting or refusing that application, inform the Secretary of the grant or refusal.

             (7)  Where the Council grants an application for registration of an organization, the Council shall, within one month after the Council has so granted the application, publish in the Gazette a notification to that effect setting out:

                     (a)  the name of the organization;

                     (c)  the date of registration;

                     (d)  the fact that the registration is subject to conditions set out in this Division; and

                     (e)  if the grant is subject to any other terms or conditions—those other terms and conditions.

             (8)  Where the Council refuses an application for registration of an organization, the Council shall, within one month after so refusing the application, publish in the Gazette a notification of the refusal.

73AA  Unincorporated registered organizations must become incorporated

             (1)  If a registered organization was, immediately before the commencement of Schedule 1 to the Health Legislation Amendment Act (No. 3) 1999, not incorporated under any law of the Commonwealth or of a State or Territory, the governing body of that unincorporated entity must:

                     (a)  within the time specified by the Minister by a notice in writing to the organization; or

                     (b)  within such further time as the Minister allows;

arrange for the health insurance business of the organization to be transferred to a company of a kind that would be eligible under section 68 to apply for registration as a health benefits organization.

             (2)  The Minister must consult the registered organization concerned about what time should be specified or allowed under paragraph (1)(a) or (b).

             (3)  If a registered organization to which subsection (1) applies fails to comply with that subsection, the registration of the organization ceases to have effect on the expiration of the time specified by the Minister under that subsection or of that time as extended by the Minister under that subsection.

             (4)  When the health insurance business of the organization has been transferred in accordance with the requirements of subsection (1), the Council must issue a written certificate to that effect and, upon the date of issue of that certificate, the company is to be taken:

                     (a)  to be the registered organization in lieu of the previous registered organization; and

                     (b)  for all purposes relating to the health insurance business—to be its successor in title.

73AAB  Registered organization to maintain eligibility status

                   The registration of a registered organization ceases to have effect if:

                     (a)  in the case of a registered organization that is, or is taken to be, a company incorporated under the Corporations Act 2001 (including an organization that has had business transferred to it under subsection 73AA(1))—it ceases to be such a company at any time; or

                     (b)  in the case of a registered organization that is an incorporated association—it loses its status as a corporate entity at any time after its registration; or

                     (c)  in the case of any registered organization—it amends its constitution or rules in such a way that a health benefits fund cannot be conducted by it in accordance with this Act.

73AAC  Certain duties of registered organization regarding assets of its health benefits fund

             (1)  In making any decision, or taking any action, relating to the application, investment or management of the assets of the health benefits fund conducted by it, a registered organization must give priority to the interests of the contributors to the fund.

             (2)  An act or decision of a registered organization in relation to the health benefits fund conducted by it does not contravene subsection (1) if, having regard to the circumstances existing at the time of the act or decision, it is reasonable to believe that the act or decision gives priority to the interests of contributors to the fund.

             (3)  Nothing in subsection (1) prevents a registered organization doing anything that the registered organization is permitted or required to do under this Act.

73AAD  Payments from health benefits fund

             (1)  A registered organization must not apply, or deal with, the assets of the health benefits fund conducted by it, whether directly or indirectly, except in accordance with this section.

             (2)  An organization must ensure that payments from the health benefits fund conducted by it are used only for the following purposes:

                     (a)  to meet the liabilities incurred in relation to the coverage of the contributors;

                     (b)  to make payments to the Health Benefits Reinsurance Trust Fund;

                     (c)  to make investments for the health insurance business;

                     (d)  if the registered organization has been established for profit—to distribute profits generated by the conduct of the health insurance business to shareholders in the organization;

                     (e)  any other purpose that is directly related to the health insurance business.

73AAE  Restrictions on certain financial transactions by registered organizations

             (1)  If:

                     (a)  a registered organization:

                              (i)  borrows money for the purposes of the health benefits fund conducted by it; or

                             (ii)  enters into a contract of guarantee which makes the assets of the fund wholly or partly available to meet a liability of the organization; or

                            (iii)  gives a charge over the assets of the fund; and

                     (b)  the Council or, if the fund or organization is under administration or being wound up, the administrator or liquidator of the fund or organization, believes that the transaction is manifestly not in the interests of the contributors to the fund;

the Council, administrator or liquidator may apply to the Court to set aside, or vary the terms of, the transaction.

             (2)  If, on an application under subsection (1), the Court is satisfied the transaction is manifestly not in the interests of contributors to the fund, the Court may:

                     (a)  set aside the transaction; or

                     (b)  make any order that the Court considers appropriate with respect of the persons or the property (other than the assets of the fund) that should most appropriately bear the burden of the transaction.

             (3)  For the purpose of determining whether a transaction is or is not manifestly in the interests of the contributors to the fund, the Court may have regard to any matter it considers relevant including, but not limited to, the following:

                     (a)  if the transaction involves a borrowing:

                              (i)  whether the borrowing is for the benefit of persons other than the contributors to the fund; or

                             (ii)  whether the amount of the borrowing is clearly excessive in relation to the health insurance business conducted by the registered organization;

                     (b)  if the transaction involves entering into a contract of guarantee—whether the contract was entered into solely in connection with a transaction made for the benefit of the fund;

                     (c)  if the transaction involves the giving of a charge:

                              (i)  whether the charge secures liabilities other than liabilities relating to the health insurance business conducted by the registered organization; or

                             (ii)  whether the amount secured by a charge over the assets of the fund exceeds the sum borrowed for the purposes of the health insurance business conducted by the registered organization;

                     (d)  in the case of any transaction:

                              (i)  whether because of the transaction, or because of any act done, or omission made, in connection with the transaction, the registered organization does not comply with section 73BCD or 73BCI, or with any direction given under section 73BCE or 73BCJ; or

                             (ii)  whether the transaction contravenes, or is not permitted by, the rules of the fund or the constitution of the registered organization.

             (4)  Despite subsection (2), the Court must not set aside a transaction if the Court is satisfied:

                     (a)  that the party who entered into the transaction with a registered organization entered into the transaction in good faith and without knowledge of any matter referred to in subsection (3) that applies to the transaction; and

                     (b)  that setting aside or varying the transaction would cause substantial hardship to that party.

             (5)  The Court has jurisdiction to hear and determine applications under this section and to make any necessary orders in respect of those applications.


 

Division 3Conditions of registration

73AAF  Registration is subject to conditions in this Division and in Schedule 1

                   The registration of an organization as a registered health benefits organization is, with effect from the date of its registration, subject to the conditions set out in this Division and the conditions set out in Schedule 1.

73AAG  Matters ancillary to particular conditions in Schedule 1

             (1)  Determinations made under paragraph (bj) of the conditions set out in Schedule 1 are disallowable instruments for the purposes of section 46A of the Acts Interpretation Act 1901.

             (2)  The Minister may determine, in writing, guidelines relating to the establishment by an organization, under its rules and in accordance with the conditions set out in paragraph (ma) of Schedule 1, of loyalty bonus schemes.

             (3)  Such guidelines:

                     (a)  may cover all or any of the following:

                              (i)  the circumstances in which organizations can offer financial benefits, goods or services under a loyalty bonus scheme;

                             (ii)  the types of actual and contingent financial benefits that can be offered to a contributor, a dependant of a contributor or a third party under such a scheme;

                            (iii)  the types of goods or services that can be offered by the organization or, at the instigation of the organization, by a third party, to a contributor or dependant; and

                     (b)  are disallowable instruments for the purposes of section 46A of the Acts Interpretation Act 1901.

             (4)  The Minister may, having regard to the management expenses incurred by all organizations, make a determination in writing of the maximum percentage of discount that organizations, under their rules and in accordance with paragraph (s) of Schedule 1, may offer to contributors in respect of their rates of contribution.

             (5)  Determinations under subsection (4) are disallowable instruments for the purposes of section 46A of the Acts Interpretation Act 1901.

73AAH  General condition concerning community rating

             (1)  It is a condition of registration of a registered organization that the organization will ensure that its constitution and rules, and its actions, are at all times consistent with the principles of community rating.

             (2)  The constitution or rules of a registered organization will not be consistent with the principles of community rating if the constitution or rules permit the organization to undertake any activity that constitutes improper discrimination against a person who seeks to become, or who is, a contributor to the health benefits fund conducted by the organization or against a dependant of such a person.

Note:          Improper discrimination is defined in subsection 66(1).

             (3)  An action of a registered organization will not be consistent with the principles of community rating if the action results in the undertaking of any activity that constitutes an improper discrimination against a person who seeks to become, or who is, a contributor to the health benefits fund conducted by the organization or against a dependant of such a person.

Note:          Improper discrimination is defined in subsection 66(1).

             (4)  Determining entitlement to ancillary health benefits claimed in respect of a period by or on behalf of a contributor to a health benefits fund conducted by a registered health benefits organization, or by or on behalf of a dependant of such a contributor, by reference solely to the quantum of ancillary health benefits already claimed in respect of that period is consistent with the principles of community rating referred to in subsections (2) and (3).

73AAI  Community rating condition concerning admission of persons as contributors and cancellations of membership

             (1)  It is a condition of registration of a registered organization that the organization will not:

                     (a)  refuse to permit a person who is not a contributor to the health benefits fund conducted by the organization from contributing, in respect of the person and the person’s dependants (if any), for any health insurance product that is presently provided by the organization (other than a closed health insurance product); or

                     (b)  refuse to permit a person who is a contributor to the health benefits fund conducted by the organization from contributing, in respect of the contributor and the contributor’s dependants (if any), for any health insurance product (other than a closed health insurance product) that is presently provided by the organization; or

                     (c)  cancel the membership of a person as a contributor to the health benefits fund conducted by the organization;

if that refusal or cancellation amounts to improper discrimination against that person.

Note:          Improper discrimination is defined in subsection 66(1).

             (2)  In this section:

closed health insurance product, in relation to a registered organization, means a health insurance product of that organization that the organization has permanently closed to new or transferring contributors.

health insurance product, in relation to a registered organization, means:

                     (a)  any applicable benefits arrangement; or

                     (b)  any table of ancillary health benefits;

that the registered organization offers to members of the health benefits fund conducted by it.

73AAJ  Community rating condition concerning quantum and payment of benefits

                   It is a condition of registration of a registered organization that the organization will not, in determining, in relation to any contributor, or to any contributor included in a class of contributors, to the health benefits fund conducted by it:

                     (a)  whether or not benefits are payable in accordance with an applicable benefits arrangement of the organization (whether or not modified by an election of the kind referred to in the condition set out in paragraph (ba) of Schedule 1); or

                     (b)  if benefits are payable in accordance with an applicable benefits arrangement of the organization (whether or not modified by an election of the kind referred to in the condition set out in paragraph (ba) of Schedule 1)—the amount of the benefits so payable; or

                     (c)  whether or not the contributor is entitled to make or revoke an election of the kind referred to in the condition set out in paragraph (ba) of Schedule 1; or

                     (d)  the amount of the contributions payable in respect of an applicable benefits arrangement of the organization;

have regard to any matter that would cause the determination to constitute improper discrimination in respect of any contributor, or any contributor included in a class of contributors, to whom or to which the determination relates.

Note:          Improper discrimination is defined in subsection 66(1).

73AAK  Limited exception from community rating for restricted membership organizations

                   Despite the conditions in sections 73AAH, 73AAI and 73AAJ:

                     (a)  the constitution and rules of a restricted membership organization may restrict membership of that organization in the manner set out in the paragraphs of the definition of restricted membership organization in subsection 4(1); and

                     (b)  any action taken solely to ensure that persons abide by the constitution and those rules so far as they relate to membership of the health benefits fund conducted by that organization is not a breach of these conditions.

73AAL  Discrimination on basis of place of residence

                   Nothing in this Act prevents a registered health benefits organization:

                     (a)  from charging different rates of contribution; or

                     (b)  from paying different levels of benefit;

in respect of persons who are contributors to the health benefits fund conducted by the organization, or in respect of persons who are dependants of such contributors, where such contributors or dependants have their place of residence in one State or Territory as distinct from another.

73A  Condition concerning entry into, and records relating to, refund agreements

             (1)  It is a condition of registration of a registered organization that:

                     (a)  except in the circumstances set out in subsection 92B(2), the organization will not enter into a refund agreement or become an agent of a party to a refund agreement for the purposes of the refund agreement; and

                     (b)  the organization will keep a record, in a form approved by the Secretary:

                              (i)  of the names of all members of the organization who were, immediately before the commencement of this section, and who have continued to be, parties to refund agreements with registered organizations; and

                             (ii)  of the addresses of all such members last known to the organization.

             (2)  In this section, refund agreement has the same meaning as in Part VII.

73AB  Condition concerning provision of information required under Hospital Casemix Protocol

             (1)  It is a condition of registration of a registered organization that it must, in accordance with this section, give to the Department:

                     (a)  the information required under the Hospital Casemix Protocol; or

                     (b)  so much of that information as is in the organization’s possession or control;

except so far as the Secretary has agreed that the information need not be given.

             (2)  The information must be provided in respect of:

                     (a)  each period of one calendar month; or

                     (b)  if the Secretary determines in writing that a longer period is to apply in relation to the organization—that longer period.

             (3)  The information must be provided:

                     (a)  not earlier than 3 months after the period under subsection (2) to which it relates; and

                     (b)  not later than one week after the end of that 3 months.

             (4)  The information must relate to each patient, in relation to whom the organization was given information by a hospital or day hospital facility, who was discharged by the hospital or day hospital facility during the period under subsection (2) to which the information relates.

          (4A)  Subsection (4) applies to information given by a hospital or day hospital facility whether or not it was given under a hospital purchaser-provider agreement in compliance with a requirement of a kind referred to in paragraph 73BD(2)(c).

             (5)  Information given under this section is taken, for the purposes of the Privacy Act 1988, to have been obtained only for the purposes of modelling, evaluation and research by the Department.

73ABB  Registered health benefits organization to comply with requirements of health insurance incentives legislation

                   It is a condition of registration of a registered organization that it must not contravene a requirement imposed on it by or under the Private Health Insurance Incentives Act 1997 or the Private Health Insurance Incentives Act 1998.

73ABBA  Registered health benefits organization to pay Reinsurance Trust Fund levy and late payment penalty

                   It is a condition of registration of a registered health benefits organization that the organization pay:

                     (a)  any Reinsurance Trust Fund levy it is liable to pay; and

                     (b)  a late payment penalty in respect of an unpaid amount of that levy.

73ABC  Registered organization to make agreements under Division 4 available to public

             (1)  Subject to subsection (3), it is a condition of registration of a registered organization that it makes available for scrutiny, by any person, including an officer of the Department, who requests it:

                     (a)  copies of hospital purchaser-provider agreements that the registered organization has entered into; and

                     (b)  copies of practitioner agreements given to the registered organization under subsection 73BDAA(2A); and

                     (c)  copies of medical purchaser-provider agreements that the registered organization has entered into.

             (2)  A request may relate to all agreements of one or more kinds, or to one or more specified agreements.

             (3)  Any copies that the registered organization makes available under subsection (1) (whether to an officer of the Department or to any other person) must have deleted from them:

                     (a)  any information or matter that could identify an individual or a medical practice; and

                     (b)  any information or matter relating to amounts payable:

                              (i)  by the registered organization, or a hospital or day hospital facility, in respect of the rendering of medical treatment by or on behalf of a medical practitioner; or

                             (ii)  by the registered organization in respect of the provision of hospital treatment by a hospital or day hospital facility.

73ABD  Further conditions and revocation or variation of conditions—Council’s powers

             (1)  The Council may, after consulting the Minister:

                     (a)  impose a further condition to which the registration of an organization is subject; or

                     (b)  revoke or vary a condition imposed by the Council under paragraph (a) or section 73.

             (2)  If the Council makes a decision imposing, revoking or varying a condition under subsection (1) in relation to an organization, the Council must cause notice in writing of that decision to be served on the public officer of the organization.

             (3)  If the Council imposes, revokes or varies a condition under subsection (1) in relation to an organization, the Council must, within 1 month after taking that action, publish in the Gazette a notification setting out:

                     (a)  the name of the organization; and

                     (b)  the particulars of the action so taken, including:

                              (i)  where a condition has been revoked—the condition so revoked; or

                             (ii)  where a condition has been varied—the condition as so varied; or

                            (iii)  where a condition has been imposed—the condition so imposed; and

                     (c)  the date on which the action was taken.

             (4)  In this section, condition includes a term.

73B  Further conditions and revocation or variation of conditions—Minister’s powers

             (1)  The Minister may, after consulting the Council:

                     (a)  impose a further condition to which the registration of an organization or organizations generally are subject; or

                     (b)  revoke or vary a condition referred to in paragraph (a).

          (1A)  If the Minister makes a decision revoking, varying or imposing a condition under subsection (1) in relation to an organization or organizations generally, the Minister is to cause notice in writing of that decision to be served on the public officer of the organization, or of each organization, to which the condition relates.

             (2)  Where the Minister revokes, varies or imposes a condition under subsection (1) in relation to an organization or organizations, the Minister shall, within 1 month after taking that action, publish in the Gazette, and free of charge on the Department’s website not later than 5 working days after the action is taken by the Minister, a notification setting out:

                     (a)  the name of the organization or organizations;

                     (b)  the particulars of the action so taken, including:

                              (i)  where a condition has been revoked—the condition so revoked;

                             (ii)  where a condition has been varied—the condition as so varied; or

                            (iii)  where a condition has been imposed—the condition so imposed; and

                     (c)  the date on which the action was taken.

             (3)  In this section, condition includes a term.

73BAAA  Lifetime Health Cover

                   It is a condition of registration of a registered organization that it must comply with Schedule 2.

73BAA  Waiver of waiting periods

             (1)  Nothing in this Act prevents a registered health benefits organization from waiving, in whole or in part, in relation to a contributor to the health benefits fund conducted by the organization or to any dependant of the contributor, the requirement of a waiting period applicable to that contributor or dependant, provided that any action under this subsection that results in the extension of a waiting period applicable to a contributor or his or her dependant for an ailment, illness or condition (including a pre-existing ailment) is prescribed in accordance with subsection (3).

             (2)  For the avoidance of doubt, subsection (1) applies to waiting periods established before, as well as to waiting periods established on or after, the day on which this section commences.

             (3)  Regulations for the purposes of subsection (1) in respect of an ailment, illness or condition (including a pre-existing ailment) must not be made unless the Minister has taken into account the following matters:

                     (a)  evidence that the ailment, illness or condition is associated with opportunistic membership of health benefits funds; and

                     (b)  the potential for an extended waiting period to discriminate against people with the ailment, illness or condition; and

                     (c)  the impact of an extended waiting period on:

                              (i)  the principle of community rating; and

                             (ii)  the public health system; and

                     (d)  such other matters as the Minister considers relevant.


 

Division 3AAHealth Benefits Reinsurance Trust Fund

73BB  Determinations in relation to records to be maintained to assist Council in respect of Health Benefits Reinsurance Trust Fund

             (1)  The Council may determine all or any of the following:

                     (a)  the records that a registered health benefits organization is to maintain to enable the Council to perform its functions in relation to the Health Benefits Reinsurance Trust Fund;

                     (b)  the information drawn from those records that a registered health benefits organization is to give to the Council;

                     (c)  the time within which the information is to be given;

                     (d)  the form in which the information is to be given.

Note:          For the Health Benefits Reinsurance Trust Fund see section 73BC.

             (2)  The determination is to be in writing.

             (3)  The determination is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

73BC  Health Benefits Reinsurance Trust Fund

             (1)  This section provides for:

                     (a)  the establishment of the Health Benefits Reinsurance Trust Fund; and

                     (b)  payments to be made into the Fund in relation to amounts that registered health benefits organizations pay by way of:

                              (i)  Reinsurance Trust Fund levy; and

                             (ii)  late payment penalty in respect of an unpaid amount of that levy; and

                     (c)  payments to be made out of the Fund to registered health benefits organizations for the purpose of reallocating the amounts of benefits paid by the organizations.

The Commonwealth, States and Territories may also make payments into the Fund.

             (2)  There is established by this subsection a fund, to be known as the Health Benefits Reinsurance Trust Fund.

             (3)  Income received from the investment of moneys standing to the credit of the Fund forms part of the Fund.

             (4)  Amounts received from the States or Territories for payment into the Fund form part of the Fund.

             (5)  There shall be paid into the Fund:

                     (a)  such amount as is appropriated by the Parliament for payment into the Fund;

                     (b)  if an amount of Reinsurance Trust Fund levy is paid by a registered health benefits organization—an amount equal to that amount of levy; and

                    (ba)  if an amount of late payment penalty in respect of an unpaid amount of that levy is paid by a registered health benefits organization—an amount equal to that amount of penalty; and

                     (c)  the amount standing to the credit of the former Fund immediately before the commencement of this subsection.

       (5AA)  The Consolidated Revenue Fund is appropriated for the purposes of paragraphs (5)(b) and (ba).

          (5A)  There shall be paid out of the Fund amounts decided under subsection (12).

          (5B)  The Minister shall determine in writing principles relating to the operation of the Fund.

          (5C)  The principles must include:

                     (a)  the principles for determining the rate of Reinsurance Trust Fund levy imposed on a levy day; and

                     (b)  principles for determining the method of, and the matters to be taken into account in, calculating the amounts to be paid out of the Fund to registered health benefits organizations.

          (5D)  Where the Minister determines or varies the principles, he or she shall as soon as practicable:

                     (a)  notify the Council of the principles or variation, as the case may be; and

                     (b)  cause a copy of the principles or particulars of the variation, as the case may be, to be published in the Gazette.

           (5E)  The Council shall exercise its functions and powers in relation to the Fund in accordance with the principles.

           (12)  The Council may decide that an amount is to be paid out of the Fund to a registered health benefits organization.

           (13)  In this section:

former Fund means the Health Benefits Reinsurance Trust Fund that was established pursuant to this Act and in existence immediately before the commencement of this subsection.

Fund means the Health Benefits Reinsurance Trust Fund established by subsection (2).

levy day means:

                     (a)  a Reinsurance Trust Fund levy day specified in the regulations made for the purposes of section 6 of the Reinsurance Trust Fund Levy Act; or

                     (b)  a supplementary Reinsurance Trust Fund levy day specified in a determination by the Minister under section 6 of that Act.


 

Division 3AThe solvency standard for registered organizations

73BCA  Purpose of Division

                   The purpose of this Division is to establish, and require registered organizations to comply with, standards of solvency in order to ensure that the health benefits fund conducted by each such organization remains solvent.

73BCB  Council to establish solvency standards

             (1)  The Council must, as soon as practicable but, in any case, not later than 1 January 2001, establish, in writing, a solvency standard for the purposes of this Division.

             (2)  The solvency standard may be expressed:

                     (a)  to set different standards of solvency:

                              (i)  for health benefits funds conducted by different registered organizations; or

                             (ii)  for different classes of health benefits funds; or

                     (b)  to apply to a health benefits fund only in circumstances specified in the standard.

             (3)  The Council must, before establishing a solvency standard, consult with the Australian Government Actuary concerning that standard.

             (4)  If, in establishing a standard, the Council decides:

                     (a)  not to adopt advice concerning a standard from the Australian Government Actuary; or

                     (b)  to adopt advice concerning a standard from the Australian Government Actuary with variations;

the Council must publish in the Gazette a statement that sets out the Council’s reasons for not adopting, or for varying, that advice.

             (5)  A solvency standard is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

73BCC  Purpose of solvency standard

                   The purpose of the solvency standard is to ensure, as far as practicable, that at any time the financial position of the health benefits fund conducted by a registered organization is such that the organization will be able, out of the assets of the fund, to meet all liabilities referable to the health insurance business of the organization as those liabilities become due.

73BCD  Registered organizations to comply with solvency standards

             (1)  Subject to subsection (2), every registered organization must comply with the solvency standard as it applies in respect of that organization.

             (2)  The Council may declare, by notice in writing, that the solvency standard does not apply to a particular registered organization, or does not apply in particular circumstances, or for a particular period, specified in the notice.

             (3)  The Council may:

                     (a)  in a declaration under subsection (2); or

                     (b)  by a separate notice in writing;

impose conditions to be complied with by any organization that is to get the benefit of the declaration.

             (4)  If an organization fails to comply with a condition referred to in subsection (3), the declaration is taken to cease to apply to the organization.

             (5)  If the Council is satisfied that a declaration under subsection (2), or a condition referred to in subsection (3), is no longer required or should be varied, the Council must, by notice in writing, revoke or vary the declaration or condition accordingly.

             (6)  If a registered organization requests the Council, in writing, to revoke or vary a declaration under subsection (2), or a condition referred to in subsection (3), the Council must, within 28 days after receiving the request:

                     (a)  if the Council is satisfied that the declaration or condition is no longer necessary or should be varied—revoke or vary the declaration or condition; or

                     (b)  in any other case—refuse to revoke or vary the declaration or condition.

             (7)  If the Council does not, within the 28 days referred to in subsection (6), either revoke or vary or refuse to revoke or vary the declaration or condition concerned, the Council is to be taken, for the purposes of this Act, to have refused to revoke or vary the declaration or condition at the end of that period.

             (8)  The Council must give to the registered organization written notice of a decision made under subsection (6) and, if the Council refuses to revoke or vary the declaration or condition concerned, provide a statement of reasons for so refusing.

             (9)  In this section, a reference to a declaration or condition includes a reference to a declaration or condition as varied.

73BCE  Council may give solvency directions

             (1)  If, having regard to:

                     (a)  the nature and value of the assets in the health benefits fund of a registered organization; or

                     (b)  the nature and extent of the liabilities that are referable to that health benefits fund; or

                     (c)  any other matters that the Council considers relevant;

the Council is satisfied that there are reasonable grounds for believing that the organization may not be able to meet, out of the assets of the fund, all liabilities referable to the business of the fund as they become due, the Council may give written directions (solvency directions) to the organization.

             (2)  Solvency directions are directions that, in the opinion of the Council, are reasonably necessary to ensure, as far as practicable, that a registered organization will be able to meet the liabilities of the health benefits fund conducted by the organization out of the assets of the fund as they become due.

             (3)  The Council may give a solvency direction to a registered organization even if, when the direction is given, the organization meets the requirements of the solvency standard applicable to that organization in respect of the fund and there are reasonable grounds to believe that the organization will meet that standard at all times while the direction is in force.

             (4)  A registered organization must comply with a solvency direction given to it under subsection (1).

             (5)  Subject to subsections (6) and (7), a solvency direction remains in force for a period specified in the direction, not exceeding 3 years, commencing on the day when the direction is given. However, nothing prevents the Council from issuing a further solvency direction in the same terms to take effect immediately after the expiration of a previous direction.

             (6)  If the Council is satisfied that a particular solvency direction is no longer required or should be varied, the Council must, by written notice given to the registered organization, revoke or vary the direction accordingly

             (7)  If a registered organization to which a solvency direction has been given requests the Council, in writing, to revoke or vary the direction, the Council must, within 28 days after receiving the request:

                     (a)  if the Council is satisfied that the direction is no longer necessary or should be varied—revoke or vary the direction; or

                     (b)  in any other case—refuse to revoke or vary the direction.

             (8)  If the Council does not, within the 28 days referred to in subsection (7), either revoke or vary or refuse to revoke or vary the solvency direction concerned, the Council is to be taken, for the purposes of this Act, to have refused to revoke or vary the direction at the end of that period.

             (9)  The Council must give to the registered organization written notice of a decision made under subsection (7) and, if the Council refuses to revoke or vary the direction concerned, provide a statement of reasons for so refusing.

           (10)  In this section, a reference to a solvency direction includes a reference to a solvency direction as varied.


 

Division 3BThe capital adequacy standard for registered organizations

73BCF  Purpose of Division

                   The purpose of this Division is to establish, and require registered organizations to comply with, a standard in order to maintain the capital adequacy of the health benefits funds they conduct.

73BCG  Council to establish capital adequacy standard

             (1)  The Council must, on the same day as it establishes a solvency standard under section 73BCB, establish, in writing, a capital adequacy standard for the purposes of this Division.

             (2)  The capital adequacy standard may be expressed:

                     (a)  to set different standards of capital adequacy:

                              (i)  for health benefits funds conducted by different registered organizations; or

                             (ii)  for different classes of health benefits funds; or

                     (b)  to apply to a health benefits fund only in circumstances specified in the standard.

             (3)  The Council must, before establishing a capital adequacy standard, consult with the Australian Government Actuary concerning that standard.

             (4)  A capital adequacy standard is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

73BCH  Purpose of capital adequacy standard

                   The purpose of the capital adequacy standard is to ensure, as far as practicable, that there are sufficient assets in the health benefits fund conducted by each registered organization to provide adequate capital for the conduct of the health insurance business in accordance with this Act and in the interests of the contributors to the fund.

73BCI  Registered organization to comply with capital adequacy standard

             (1)  Subject to subsection (2), every registered organization must comply with the capital adequacy standard as it applies in respect of that organization.

             (2)  The Council may declare, by notice in writing, that the capital adequacy standard does not apply to a particular registered organization, or does not apply in particular circumstances, or for a particular period, specified in the notice.

             (3)  The Council may:

                     (a)  in a declaration under subsection (2); or

                     (b)  by a separate notice in writing;

impose conditions to be complied with by any organization that is to get the benefit of the declaration.

             (4)  If an organization fails to comply with a condition referred to in subsection (3), the declaration is taken to cease to apply to the organization.

             (5)  If the Council is satisfied that a declaration under subsection (2), or a condition referred to in subsection (3), is no longer required or should be varied, the Council must, by notice in writing, revoke or vary the declaration or condition accordingly.

             (6)  If a registered organization requests the Council, in writing, to revoke or vary a declaration under subsection (2), or a condition referred to in subsection (3), the Council must, within 28 days after receiving the request:

                     (a)  if the Council is satisfied that the declaration or condition is no longer necessary or should be varied—revoke or vary the declaration or condition; or

                     (b)  in any other case—refuse to revoke or vary the declaration or condition.

             (7)  If the Council does not, within the 28 days referred to in subsection (6), either revoke or vary or refuse to revoke or vary the declaration or condition concerned, the Council is to be taken, for the purposes of this Act, to have refused to revoke or vary the declaration or condition at the end of that period.

             (8)  The Council must give to the registered organization written notice of a decision made under subsection (6) and, if the Council refuses to revoke or vary the declaration or condition concerned, provide a statement of reasons for so refusing.

             (9)  In this section, a reference to a declaration or condition includes a reference to a declaration or condition as varied.

73BCJ  Council may give capital adequacy directions

             (1)  If, having regard to:

                     (a)  the nature of the business of a health benefits fund conducted by a registered organization; or

                     (b)  the nature or value of the assets of the fund; or

                     (c)  any other matter that the Council considers relevant;

the Council is satisfied that there are reasonable grounds for believing that the assets of the fund will not provide adequate capital for the conduct of the health insurance business in accordance with this Act and in the interests of the contributors to the fund, the Council may give written directions (capital adequacy directions) to the organization.

             (2)  Capital adequacy directions are directions that, in the opinion of the Council, are reasonably necessary to ensure, as far as practicable, that the assets of the health benefits fund conducted by a registered organization will provide adequate capital for the purposes described in subsection (1).

             (3)  The Council may give a capital adequacy direction to a registered organization even if, when the direction is given, the organization meets the requirements of the capital adequacy standard applicable to that organization in respect of the fund and there are reasonable grounds to believe that the organization will meet that standard at all times while the direction is in force.

             (4)  A registered organization must comply with a capital adequacy direction given to it under subsection (1).

             (5)  Subject to subsections (6) and (7), a capital adequacy direction remains in force for a period specified in the direction, not exceeding 3 years, commencing on the day on which the direction is given. However, nothing prevents the Council from giving a further direction in the same terms to take effect immediately after the expiry of a previous direction.

             (6)  If the Council is satisfied that a particular capital adequacy direction is no longer required or that it should be varied, the Council must, by written notice given to the registered organization, revoke or vary the direction accordingly.

             (7)  If a registered organization to which a capital adequacy direction has been given requests the Council, in writing, to revoke or vary the direction, the Council must, within 28 days after receiving the request:

                     (a)  if the Council is satisfied that the direction is no longer necessary or should be varied—revoke or vary the direction; and

                     (b)  in any other case—refuse to revoke or vary the direction.

             (8)  If the Council does not, within the 28 days referred to in subsection (7), either revoke or vary or refuse to revoke or vary the direction concerned, the Council is to be taken, for the purposes of this Act, to have refused to revoke or vary the direction at the end of that period.

             (9)  The Council must give to the registered organization written notice of its decision under subsection (7) and, if the Council refuses to revoke or vary the direction concerned, provide a statement of the reasons for so refusing.

           (10)  In this section, a reference to a capital adequacy direction includes a reference to a capital adequacy direction as varied.


 

Division 4Purchaser-provider agreements

73BD  Hospital purchaser-provider agreements

             (1)  A registered organization may enter into an agreement, with a hospital or a day hospital facility, that includes provisions to the effect that:

                     (a)  except to the extent (if any) provided in the agreement, the hospital or day hospital facility agrees to accept payment by the organization in satisfaction of any amount that would, apart from the agreement, be owed to the hospital or day hospital facility, in relation to an episode of hospital treatment, by an eligible contributor (see subsection (3)); and

                     (b)  payments by the organization to the hospital or day hospital facility in respect of episodes of hospital treatment are to be casemix episodic payments (see subsection (4)).

             (2)  The agreement must also:

                     (a)  specify the level of accommodation that the hospital or day hospital facility is to provide to eligible contributors (see subsection (3)) to the health benefits fund in respect of such episodes of hospital treatment; and

                     (b)  require the hospital or day hospital facility to render, in respect of an episode of hospital treatment, a single account covering:

                              (i)  all hospital services and related services; and

                             (ii)  all professional services (if any) to which a practitioner agreement with the hospital or day hospital facility applies;

but not covering any professional services to which no such practitioner agreement applies; and

                     (c)  require the hospital or day hospital facility to give to the organization, within the time specified in subsection (5), the information specified in the Hospital Casemix Protocol prescribed by regulation made for the purposes of this paragraph, except so far as the Secretary has agreed that the information need not be given; and

                     (d)  require the hospital or day hospital facility, in accordance with subsection (6), to inform any eligible contributor in respect of whom hospital treatment is to be provided at the hospital or day hospital facility of the amounts that the eligible contributor will be liable to pay in respect of the hospital treatment; and

                     (e)  require the hospital or day facility to provide, in respect of an episode of hospital treatment, all reasonable assistance to the organization to enable the organization to verify:

                              (i)  the essential variables for accurate casemix assignment; and

                             (ii)  the payability of amounts by the organization under the agreement; and

                            (iii)  the payability of other amounts by the organization relating to professional services rendered in connection with the hospital treatment.

             (3)  For the purposes of paragraphs (1)(a), (2)(a) and (2)(d) and subsection (6), a person is an eligible contributor in relation to an episode of hospital treatment if:

                     (a)  the person is a contributor to the health benefits fund conducted by the organization; and

                     (b)  under the terms on which the person is a contributor, the person is covered (wholly or partly) in respect of the episode of hospital treatment.

             (4)  For the purposes of paragraph (1)(b), a payment by the organization to the hospital or day hospital facility in respect of an episode of hospital treatment is a casemix episodic payment if:

                     (a)  the episode of hospital treatment is an episode of a kind:

                              (i)  specified in the List of Australian National Diagnosis Related Groups prescribed by the regulations; or

                             (ii)  otherwise specified in the regulations; and

                     (b)  the amount and structure of the payment is as set out in the agreement or may be worked out in accordance with the agreement.

             (5)  Information referred to in paragraph (2)(c) must be given to the organization within 6 weeks after the patient to whom the information relates has been discharged from the hospital or day hospital facility in question.

             (6)  For the purposes of paragraph (2)(d), the eligible contributor must be informed:

                     (a)  where practicable, at any time before the admission for the hospital treatment in question; or

                     (b)  otherwise—as soon after the admission as the circumstances reasonably permit.

             (7)  Nothing in this section is to be taken as precluding natural persons from making arrangements for themselves, or for other natural persons wholly or partially dependent upon them, for the provision to them of hospital, medical or related services directly with hospitals.

73BDAA  Extension of hospital purchaser-provider agreements to cover rendering of some professional services

             (1)  This section applies if:

                     (a)  a hospital or a day hospital facility has entered into an agreement (the practitioner agreement) with a medical practitioner relating to the rendering of professional services by the medical practitioner to patients of the hospital or day hospital facility; and

                     (b)  under the practitioner agreement, the medical practitioner agrees, except to the extent (if any) provided in the agreement, to accept payment by the hospital or day hospital facility in satisfaction of any amount that would, apart from the agreement, be owed to the medical practitioner in relation to professional services to which the agreement applies; and

                     (c)  the practitioner agreement requires the medical practitioner, in accordance with subsection (3), to inform any eligible contributor (see subsection (4)) in respect of whom such professional services are rendered of any amounts that the eligible contributor will be liable to pay to the medical practitioner in respect of the professional services; and

                     (d)  the practitioner agreement requires the hospital or day hospital facility to maintain the medical practitioner’s professional freedom, within the scope of accepted clinical practice, to identify appropriate treatments in the rendering of professional services to which the agreement applies.

             (2)  A hospital purchaser-provider agreement between a registered organization and the hospital or day hospital facility may include provisions to the effect that:

                     (a)  except to the extent (if any) provided in the hospital purchaser-provider agreement, the hospital or day hospital facility agrees to accept payment by the organization in satisfaction of any amount that would, apart from the hospital purchaser-provider agreement, be owed to the hospital or day hospital facility, in relation to a professional service to which the practitioner agreement applies, by an eligible contributor (see subsection (4)); and

                     (b)  the organization agrees to accept assignments under subsection 20A(2A) of the Health Insurance Act 1973 of the medicare benefits payable in respect of the professional service.

          (2A)  Subject to subsection (2B), if the hospital purchaser-provider agreement includes such provisions, it must include a provision requiring the hospital or day hospital facility to give to the registered organization a copy of the practitioner agreement.

          (2B)  The copy given to the registered organization must have deleted from it any information or matter relating to amounts payable by the hospital or day hospital facility in respect of the rendering of medical treatment by or on behalf of the medical practitioner.

             (3)  For the purposes of paragraph (1)(c), the eligible contributor must be informed:

                     (a)  where practicable, at any time before the professional service is rendered; or

                     (b)  otherwise—as soon after the professional service is rendered as the circumstances reasonably permit.

             (4)  For the purposes of paragraphs (1)(c) and (2)(a) and subsection (3), a person is an eligible contributor in relation to a professional service if:

                     (a)  the person is a contributor to the health benefits fund conducted by the organization; and

                     (b)  under the terms on which the person is a contributor, the person is covered (wholly or partly) in respect of the professional service.

             (5)  A reference in this section to a professional service is a reference to a professional service:

                     (a)  that is rendered to a patient by a medical practitioner while hospital treatment is provided to the patient in a hospital or a day hospital facility; and

                     (b)  in respect of which a medicare benefit is payable.

             (6)  In this section:

medical practitioner includes:

                     (a)  an accredited dental practitioner; and

                     (b)  a dental practitioner approved by the Minister for the purposes of the definition of professional service in subsection 3(1) of the Health Insurance Act 1973; and

                     (c)  a person on whose behalf a medical practitioner (within the meaning of subsection 3(1) of the Health Insurance Act 1973), or a dental practitioner of a kind referred to in paragraph (a) or (b), renders a professional service.

73BDA  Medical purchaser-provider agreements

             (1)  A registered organization may enter into an agreement, with a medical practitioner, that includes provisions to the effect that:

                     (a)  except to the extent (if any) provided in the agreement, the medical practitioner agrees to accept payment by the organization in satisfaction of any amount that would, apart from the agreement, be owed to the medical practitioner, in relation to a professional service, by an eligible contributor (see subsection (4)); and

                     (b)  the organization agrees to accept assignments under subsection 20A(2A) of the Health Insurance Act 1973 of the medicare benefits payable in respect of the professional service;

and that specifies the amount that is payable by the organization to the medical practitioner under the agreement, or specifies the way in which such an amount is to be worked out.

             (2)  The agreement must also:

                     (b)  require the medical practitioner to specify, in each account for an amount described in paragraph (1)(a), any amounts that an eligible contributor (see subsection (4)) will be liable to pay to the medical practitioner in respect of the professional service in question; and

                     (c)  require the medical practitioner, in accordance with subsection (5), to inform the eligible contributor in respect of whom the professional service is to be rendered of any amounts that the eligible contributor can reasonably be expected to pay to the medical practitioner in respect of the professional service; and

                     (d)  require the organization to maintain the medical practitioner’s professional freedom, within the scope of accepted clinical practice, to identify appropriate treatments in the rendering of professional services to which the agreement applies.

             (3)  The agreement may apply to all professional services rendered by the medical practitioner or may be limited to professional services of the kinds specified in the agreement.

             (4)  For the purposes of paragraphs (1)(a), (2)(b) and (2)(c) and subsection (5), a person is an eligible contributor in relation to a professional service if:

                     (a)  the person is a contributor to the health benefits fund conducted by the organization; and

                     (b)  under the terms on which the person is a contributor, the person is covered (wholly or partly) in respect of the professional service.

             (5)  For the purposes of paragraph (2)(c), the eligible contributor must be informed:

                     (a)  where practicable, at any time before the professional service is rendered; or

                     (b)  otherwise—as soon after the professional service is rendered as the circumstances reasonably permit.

             (6)  A reference in this section to a professional service is a reference to a professional service:

                     (a)  that is rendered to a patient by a medical practitioner while hospital treatment is provided to the patient in a hospital or a day hospital facility; and

                     (b)  in respect of which a medicare benefit is payable.

             (7)  In this section:

medical practitioner includes:

                     (a)  an accredited dental practitioner; and

                     (b)  a dental practitioner approved by the Minister for the purposes of the definition of professional service in subsection 3(1) of the Health Insurance Act 1973; and

                     (c)  a person on whose behalf a medical practitioner (within the meaning of subsection 3(1) of the Health Insurance Act 1973), or a dental practitioner of a kind referred to in paragraph (a) or (b), renders a professional service.

             (8)  Nothing in this section is to be taken as preventing natural persons from making arrangements for themselves, or for other natural persons wholly or partially dependent upon them, for the provision to them of medical or related services in a hospital, directly with a medical practitioner.

73BDB  Certain documents not liable to duty etc.

                   The following are not subject to any duty or charge under any law of a State or Territory, or any law of the Commonwealth that applies only in relation to a Territory:

                     (a)  a hospital purchaser-provider agreement, to the extent that the agreement provides for payments of a kind referred to in paragraph 73BD(1)(a) or 73BDAA(2)(a) or assignments of medicare benefits of a kind referred to in paragraph 73BDAA(2)(b);

                     (b)  a practitioner agreement, to the extent that the agreement provides for payments of a kind referred to in paragraph 73BDAA(1)(b);

                     (c)  a medical purchaser-provider agreement, to the extent that the agreement provides for payments of a kind referred to in paragraph 73BDA(1)(a) or assignments of medicare benefits of a kind referred to in paragraph 73BDA(1)(b);

                     (d)  a gap cover scheme of a registered organization to the extent that the scheme provides:

                              (i)  for payment by the registered organization to medical practitioners participating in the scheme for the provision of professional services to eligible contributors; or

                             (ii)  for assignment, in accordance with subsection 20A(2AA) of the Health Insurance Act 1973, to the organization, approved billing agents, hospitals, day hospital facilities or other persons, of medicare benefits payable in respect of professional services.

             (2)  In this section:

medical practitioner has the same meaning as in subsection 73BDA(7).

73BDC  Application of the Trade Practices Act 1974

             (1)  Subject to subsection (2), this Division does not affect the operation of the Trade Practices Act 1974.

             (2)  Nothing in this Division is to be taken as specifically authorising or approving any act or thing for the purposes of subsection 51(1) of the Trade Practices Act 1974.


 

Division 4AGap cover schemes

73BDDA  Purpose of gap cover schemes

                   The purpose of a gap cover scheme is to enable a registered organization to offer insurance coverage for the cost of particular hospital treatment and associated professional attention for the person or persons insured where:

                     (a)  the cost of the treatment or attention is greater than the Schedule fee (within the meaning of Part II of the Health Insurance Act 1973) for the treatment or attention; and

                     (b)  there is not a hospital purchaser-provider agreement, a medical purchaser-provider agreement or a practitioner agreement between the registered organization and the service provider concerned; and

                     (c)  the person insured pays a specified amount or percentage under a known gap policy or the full cost of the treatment or attention is covered under a no gap policy.

73BDD  Registered organizations may apply to Minister for approval of gap cover schemes

             (1)  A registered organization may, at any time, prepare a gap cover scheme.

             (2)  Subject to regulations made for the purpose of this section, the registered organization may apply to the Minister for approval of such a scheme. The scheme is of no effect unless an approval by the Minister is in force in relation to it.

             (3)  The Minister’s approval of such a scheme does not limit the application of the Trade Practices Act 1974 or the Competition Code of any participating jurisdiction (within the meaning of section 150A of that Act).

             (4)  Any arrangement that is entered into for the purposes of such a scheme does not constitute a hospital purchaser-provider agreement, a medical purchaser-provider agreement or a practitioner agreement.

             (5)  The regulations must provide, in relation to the approval of gap cover schemes by the Minister under this section, for:

                     (a)  the form and content of, and the manner of dealing with, applications for approval of such schemes; and

                     (b)  the criteria to be taken into account by the Minister in determining whether to approve such schemes; and

                     (c)  the power of the Minister to impose conditions on the operation of such schemes and to vary such conditions; and

                     (d)  an index or method for measuring the inflationary impact of gap cover schemes on the total cost of treatment and the rise in private health insurance premiums.

             (6)  Without limiting the criteria to be specified in regulations made for the purposes of paragraph (5)(b), criteria must include the following:

                     (a)  the provision of particulars sufficient to demonstrate, to the satisfaction of the Minister, that the operation of the gap cover scheme for which approval is sought will not have an inflationary impact;

                     (b)  the requirement that a person providing hospital treatment or associated professional attention under a gap cover scheme for which approval is sought must disclose to the insured person any financial interest that the first-mentioned person has in any products or services recommended or given to the insured person.

             (7)  The Minister must not approve a gap cover scheme unless the scheme provides for insured persons to be informed in writing, where the circumstances make it appropriate, of any amounts that the person can reasonably be expected to pay for treatment and the insured person acknowledges receipt of the advice.

73BDE  Review and revocation of gap cover schemes

             (1)  Subject to regulations made for the purposes of this subsection, each registered organization must provide an annual report to the Minister and the Council in respect of any gap cover scheme that it operates.

             (2)  Regulations made for the purposes of subsection (1):

                     (a)  must provide for the form and content of each report; and

                     (b)  must provide for the date by which each report is to be provided to the Minister and to the Council; and

                     (c)  may provide for the Minister to permit the provision of a report after the date provided for under paragraph (b) in specified circumstances; and

                     (d)  may provide for the initial report in respect of a gap cover scheme to be provided in respect of a period of more or less than a year in circumstances specified in the regulations; and

                     (e)  may provide for reporting on the proportion of cases in which advice about the expected costs of treatment was provided to insured persons in advance.

             (3)  Where a scheme fails to perform in accordance with:

                     (a)  the requirements of paragraph 73BDD(6)(b); or

                     (b)  any prescribed criteria for approval; or

                     (c)  any condition imposed by the Minister;

the Minister must establish a review of the operation of the scheme to determine whether it should continue to operate, or continue to operate subject to further conditions.

             (4)  The Minister may revoke a scheme if:

                     (a)  the Minister has established a review of the scheme under subsection (3); and

                     (b)  a period of 12 months has elapsed since the review was completed; and

                     (c)  the scheme has failed to rectify any faults identified by the review.

             (5)  A registered organization may seek variation or revocation of a scheme in prescribed circumstances and the Minister may:

                     (a)  approve such variations subject to any additional conditions that he or she thinks necessary to achieve the objects of gap free schemes; or

                     (b)  revoke the scheme.

73BDEA  Regulations

                   Subject to section 73BDE, the regulations may make provision relating to the operation and regulation of gap cover schemes approved by the Minister.


 

Division 5Enforcement and remedies

Subdivision APerformance indicators and preliminary explanations

73BEA  Performance indicators

             (1)  The regulations must set out performance indicators to be used by the Minister in monitoring the operations of registered organizations.

             (2)  The performance indicators are to be framed:

                     (a)  to assist the Minister in detecting breaches of the Act; and

                     (b)  to alert the Minister to any practice followed by a registered organization which may require investigation; and

                     (c)  to alert the Minister to any practice followed by one or more registered organizations that may be contrary to government health policy and therefore require a regulatory response.

             (3)  The Department must publish on its website guidance to the public on how the Department will interpret and apply the performance indicators provided for by this section.

73BEB  Minister may require registered organizations to explain their operations

             (1)  If, having regard:

                     (a)  to any information that is available to the Minister at any time concerning a registered organization; or

                     (b)  to such information and to performance indicators in force at that time;

the Minister believes that the organization may be in breach of the Act, the Minister may write to the organization expressing the Minister’s concerns and requesting the organization to provide an explanation of its operations relevant to those concerns.

             (2)  In requesting an explanation of particular operations of a registered organization, the Minister must specify the time within which the organization is required to provide that explanation.

             (3)  If the organization is unable to provide an explanation within the time specified by the Minister, it may, within that time, explain to the Minister the reason for that inability and request the Minister to extend the time for it to provide the explanation.

             (4)  If the Minister refuses to extend the time limit for providing the explanation, the Minister must inform the organization accordingly and indicate the reasons for the refusal.

73BEC  Consequences of a failure to provide a satisfactory explanation

             (1)  On receipt of an explanation from a registered organization the Minister must, as soon as practicable, consider the explanation and inform the organization either:

                     (a)  that the Minister is satisfied with the explanation; or

                     (b)  that the Minister is not satisfied with the explanation and proposes to take a specified course of action.

             (2)  Subject to subsection (3), the courses of action that the Minister may specify are any of the following:

                     (a)  to conduct an investigation of the operations of the organization under Subdivision B;

                     (b)  to request the organization to commit to an enforceable undertaking in terms satisfactory to the Minister under Subdivision C;

                     (c)  to give the organization a direction under Subdivision D;

                     (d)  to impose a further condition to which the registration of the organization is subject under section 73B;

                     (e)  if the circumstances set out in Subdivision E apply—under section 14A-1 of the Private Health Insurance Incentives Act 1998, to revoke the status of the organization as a participating fund;

                      (f)  to apply to the Court for an order requiring the organization to undertake particular action by way of redressing a breach of the Act or for an order imposing a pecuniary penalty on an officer of the organization under Subdivision F;

                     (g)  to take action under Part VIA.

             (3)  The Minister:

                     (a)  may specify a course of action set out in paragraph (2)(b), (c) or (d) in relation to a registered organization whether or not the Minister is satisfied, having regard to the explanation and to any other relevant information known to the Minister, that the organization has breached, or is likely to have breached, the Act; but

                     (b)  must not specify a course of action set out in paragraph (2)(e), (f) or (g) unless, having regard to such explanation and information, the Minister is satisfied that the organization has breached the Act.

Subdivision BInvestigations

73BED  Minister may conduct investigation

             (1)  The Minister may, by notice in writing served on a person who is or has been an officer, employee or agent of a registered organization, require the person to do all or any of the following:

                     (a)  to give, within a time specified in the notice, to the Minister or to a person specified in the notice, such information as relates to an area of operations of the organization that is specified in the notice;

                     (b)  to produce, at a time and place specified in the notice, such of the records, books, accounts and other documents of the organization as are in the person’s custody or under the person’s control and relate to an area of operations of the organization that is specified in the notice;

                     (c)  to attend, at a time and place specified in the notice, before the Minister or a person specified in the notice and give evidence relating to an area of operations of the organization that is specified in the notice.

             (2)  The Minister may require the information to be furnished, or the evidence to be given, on oath or affirmation and either orally or in writing and, for that purpose, the Minister or the person specified in the notice may administer an oath or affirmation.

             (3)  If, in the opinion of the Minister it is desirable for the purposes of an investigation that the records, books, accounts and other documents of a registered organization be examined, the Minister may authorise, in writing, a person to examine and report on those records, books, accounts and other documents.

             (4)  A person authorised under subsection (3) must, at all reasonable times, have full and free access to any premises at which the records, books, accounts and other documents are kept and may take extracts from, or copies of, the records, books, accounts and other documents.

             (5)  In this section:

registered organization includes an organization whose registration was cancelled under section 79 within 12 months before the date:

                     (a)  of the notice under subsection (1); or

                     (b)  of the authorisation under subsection (3);

as the case requires.

73BEE  Offences relating to requirements under section 73BED

             (1)  A person must not fail to comply with a requirement contained in a notice served on the person under subsection 73BED(1).

Penalty:  10 penalty units.

             (2)  A person must not fail to be sworn or to make an affirmation when required to do so under subsection 73BED(2).

Penalty:  10 penalty units.

             (3)  An offence against subsection (1) or (2) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

             (4)  A person is not excused from answering a question or producing a document when required to do so under subsection 73BED(1) on the ground that the answer to the question, or the production of the document, might tend to incriminate the person or make the person liable to a penalty. However, the answer, or the production of the document, or anything obtained as a direct or indirect consequence of the answer or the production, is not admissible in evidence against the person in any proceedings, other than proceedings for an offence against subsection (5).

             (5)  A person must not give information or make a statement to the Minister or to any other officer in accordance with a requirement under subsection 73BED(1), knowing that the information or statement is false or misleading in a material particular.

Penalty:  Imprisonment for 6 months.

73BEF  Minister may consult Council

                   If, in the course of an investigation, the Minister has reason to believe that issues concerning:

                     (a)  the solvency standard, or the capital adequacy standard, for a registered organization; or

                     (b)  the governance of a registered organization;

are in question, the Minister may:

                     (c)  consult the Council on that matter; and

                     (d)  if the Minister considers it prudent to do so—direct the Council, under section 82J, to take over any part of the investigation that relates to those issues.

73BEG  Consequences of investigation

                   Upon the completion of an investigation under this Subdivision:

                     (a)  if the Minister is satisfied with the performance of the organization—the Minister must advise the registered organization in writing to that effect; and

                     (b)  if the Minister is satisfied that there has been a breach of the Act—the Minister must advise the organization of the nature of the breach and may:

                              (i)  request the organization to commit to an enforceable undertaking in terms satisfactory to the Minister under Subdivision C; or

                             (ii)  give a direction to the organization under Subdivision D that, in the opinion of the Minister, addresses the breach; or

                            (iii)  impose a further condition on the organization under section 73B that, in the opinion of the Minister, addresses the breach; or

                            (iv)  if the circumstances set out in Subdivision E apply—under section 14A-1 of the Private Health Insurance Incentives Act 1998, revoke the status of the organization as a participating fund; or

                             (v)  apply to the Court for an order requiring the organization to undertake particular action by way of redressing the breach or for an order imposing a pecuniary penalty on an officer of the organization under Subdivision F; or

                            (vi)  take action under Part VIA; and

                     (c)  if the Minister is not satisfied that there has been a breach of the Act but considers that the performance of the organization can be improved—the Minister may:

                              (i)  request the organization to commit to an enforceable undertaking under Subdivision C; or

                             (ii)  give a direction to the organization under Subdivision D; or

                            (iii)  impose a further condition on the organization under section 73B;

                            that, in the opinion of the Minister, is likely to improve its performance.

Subdivision CEnforceable undertakings

73BEH  The Minister may accept written undertakings given by a registered organization

             (1)  The Minister may accept a written undertaking given by a registered organization at the Minister’s request if, in the view of the Minister, compliance with the undertaking will:

                     (a)  be likely to improve the performance of the organization; or

                     (b)  if the Minister is satisfied that the organization has breached the Act—be likely to ensure that the organization will cease to be in breach of the Act.

             (2)  The registered organization may withdraw or vary the undertaking at any time with the consent of the Minister.

73BEI  Enforcement of undertakings

             (1)  If the Minister considers that the registered organization that gave an undertaking under this Subdivision has breached any of its terms, the Minister may apply to the Court for an order under subsection (2).

             (2)  If the Court is satisfied that the registered organization has breached a term of the undertaking, the Court may make one or more of the following orders:

                     (a)  an order directing the organization to comply with the terms of the undertaking;

                     (b)  if there is a breach of the Act—any other order of a kind set out in Subdivision F that the Court considers appropriate.

Subdivision DMinisterial directions

73BEJ  Directions given by Minister to registered organizations

             (1)  If, having regard to:

                     (a)  the failure of a registered organization to provide an explanation of its operations sought by the Minister under Subdivision A; or

                     (b)  the nature of an explanation so sought that is provided to the Minister;

the Minister considers that it will assist in the prevention of improper discrimination to do so, the Minister may give a direction to the organization:

                     (c)  requiring it to modify its constitution or its rules in a particular respect; or

                     (d)  requiring it to modify its day-to-day operations in a particular respect.

             (2)  If, having regard to the outcome of an investigation conducted under Subdivision B, the Minister concludes that there appears to be a breach of the Act involving improper discrimination by the organization, the Minister may give a direction to the organization:

                     (a)  requiring it to modify its constitution or rules; or

                     (b)  requiring it to modify its day-to-day operations;

so as to address that breach.

             (3)  If, having regard to the outcome of an investigation under Subdivision B, the Minister concludes that, while there does not appear to be a breach of the Act, it will assist in the prevention of improper discrimination to do so, the Minister may give a direction to the organization requiring it:

                     (a)  to modify its constitution or its rules in a particular respect; or

                     (b)  to modify its day-to-day operations in a particular respect.

             (4)  A direction referred to in subsection (1), (2) or (3) may, if the Minister considers it proper to do so, include, as a part of the direction, requirements with respect to the reconsideration by the organization to which the direction relates, of an application or claim made to the organization and dealt with by it before the direction takes effect.

             (5)  An organization must, in reconsidering an application or claim in accordance with a direction of the kind referred to in subsection (4), deal with the application or claim as if the direction had been in force at the time when the application or claim was first considered.

Note:          Improper discrimination is defined in subsection 66(1).

             (6)  A direction given by the Minister in accordance with this section must be published free of charge by the Secretary on the Department’s website not later than 5 working days after the direction is given.

73BEK  Direction requirements

                   A direction given by the Minister under this Act to a registered organization:

                     (a)  must be in writing; and

                     (b)  must be signed by the Minister; and

                     (c)  may be served on the organization by serving a copy on the public officer of the organization.

Subdivision ERemoval of entitlement to offer rebate as a premium reduction

73BEL  Minister may revoke registered organization’s status as participating fund

                   If the Minister is satisfied, whether as a result of conducting an investigation under Subdivision B or otherwise, that a registered organization:

                     (a)  has failed to comply with a direction given by the Minister under section 73BEJ; or

                     (b)  has failed to comply with a community rating condition applicable to the organization under section 73AAH, 73AAI or 73AAJ;

the Minister may, under section 14A-1 of the Private Health Insurance Incentives Act 1998, revoke the status of the organization as a participating fund.

Subdivision FCourt imposed sanctions

73BEM  Minister may apply to the Court for orders redressing breach of Act or imposing pecuniary penalties

             (1)  If the Minister is satisfied, whether as a result of conducting an investigation under Subdivision B or otherwise, that a registered organization has breached the Act, the Minister may apply to the Court for any one or more of the following orders:

                     (a)  an order requiring the organization to pay compensation to an individual for any injury or loss sustained as a result of the breach;

                     (b)  an order imposing a pecuniary penalty on a officer of the organization;

                     (c)  an adverse publicity order in relation to the organization;

                     (d)  any other order that the Minister considers will be appropriate to redress the breach.

             (2)  In this section, an adverse publicity order, in relation to a registered organization that has breached the Act, means an order requiring the organization to undertake either or both of the following actions:

                     (a)  to disclose in a way, and to the person or persons, specified in the order, such information to correct or counter the effect of the breach as is so specified;

                     (b)  to publish, in the way specified in the order, an advertisement to correct or counter the effect of the breach in the terms specified in, or determined in accordance with, the order.

73BEN  Imposition and enforcement of orders by the Court

             (1)  If:

                     (a)  the Minister makes an application under subsection 73BEM(1) for a particular order in relation to a registered organization other than an order imposing a pecuniary penalty on an officer of the organization; and

                     (b)  the Court is satisfied:

                              (i)  that the organization to which an application relates has breached the Act; and

                             (ii)  that the order applied for is appropriate to redress the breach;

the Court may make the order applied for.

             (2)  If:

                     (a)  the Minister makes an application under subsection 73BEM(1) for an order imposing a pecuniary penalty on an officer of a registered organization; and

                     (b)  the Court is satisfied that:

                              (i)  the registered organization to which the application relates has breached the Act; and

                             (ii)  an officer of the organization failed to take reasonable steps to prevent the occurrence of that breach;

the Court may, subject to subsection (3), order the officer to pay to the Commonwealth a pecuniary penalty, not exceeding $10,000, in respect of the officer’s failure referred to in subparagraph (2)(b)(ii), as the Court considers appropriate.

             (3)  The Court must not make an order under subsection (2) if it is satisfied that a court has ordered the officer to pay damages in the nature of punitive damages in respect of:

                     (a)  the breach referred to in subparagraph (2)(b)(i); or

                     (b)  the officer’s failure referred to in subparagraph (2)(b)(ii).

             (4)  In hearing and determining an application for an order under subsection (1) or (2), the Court is to apply the rules of evidence and procedure that it applies in hearing and determining civil matters. A reference in this section to the Court being satisfied of a matter is a reference to the Court being satisfied of the matter on the balance of probabilities.

             (5)  An order under subsection (1) or (2) may be enforced as a judgment of the Court.

73BEO  Restrictions relating to payment of pecuniary penalties

                   A registered organization must not:

                     (a)  permit money from the health benefits fund conducted by it to be used for the payment of a pecuniary penalty imposed on an officer by an order under subsection 73BEN(2); or

                     (b)  reimburse the officer in respect of a pecuniary penalty imposed on the officer by an order under that subsection.

Subdivision GMiscellaneous

73BEP  Jurisdiction

                   The Court has jurisdiction to hear and determine applications under this Division and to make any necessary orders in respect of those applications.


 

Division 5ARemoval of hospitals etc. from non-contracted benefits

73E  Definitions

                   In this Division, unless the contrary intention appears:

determination means a determination under section 73EA.

treatment means:

                     (a)  hospital treatment, and related services, provided by or on behalf of a hospital or day hospital facility; and

                     (b)  any professional service rendered to a patient while that hospital treatment is provided to the patient at the hospital or day hospital facility.

73EA  Determinations relating to non-contracted benefits in respect of particular treatments at particular hospitals etc.

             (1)  A registered organization, a State, a Territory or the National Health and Medical Research Council may apply in writing to the Minister for a determination relating to episodes of treatment of a particular kind provided at a hospital or day hospital facility specified in the application.

             (2)  If the Minister is satisfied that the standard of treatment of that kind provided at that hospital or day hospital facility is unacceptable, the Minister may, by written notice given to the hospital or day hospital facility, determine that subparagraph (ii) of the condition set out in paragraph (bh) of Schedule 1 no longer applies in respect of episodes of treatment of that kind provided at that hospital or day hospital facility.

             (3)  The determination must be made in accordance with the guidelines issued under section 73EB.

             (4)  The Minister must:

                     (a)  cause copies of the determination to be given to each registered organization; and

                     (b)  cause a copy of the determination to be published in the Gazette.

             (5)  If the Minister decides not to make a determination, he or she must notify in writing the registered organization that applied for the determination, and the hospital or day hospital facility in question, accordingly.

73EB  Guidelines for making determinations

             (1)  The Minister must issue written guidelines setting out the grounds for deciding whether the standard of treatment of a particular kind provided at a hospital or day hospital facility is unacceptable.

             (2)  The guidelines may also specify matters to which the Minister must have regard in considering whether any such grounds, or particular grounds, exist.

             (3)  Guidelines issued under this section are disallowable instruments for the purposes of section 46A of the Acts Interpretation Act 1901.

73EC  Effect of determinations

             (1)  A registered organization is not obliged under an applicable benefits arrangement to pay a benefit in relation to the provision of an episode of treatment if:

                     (a)  at all times during which the episode of treatment was being provided, a determination was in force in respect of episodes of treatment of that kind; and

                     (b)  the episode of treatment in question was provided at the hospital or day hospital facility to which the determination applied; and

                     (c)  the benefit would, but for this subsection, be a benefit of a kind referred to in subparagraph (ii) of the condition set out in paragraph (bh) of Schedule 1.

             (2)  Subsection (1) has effect despite:

                     (a)  subparagraph (ii) of the condition set out in paragraph (bh) of Schedule 1; and

                     (b)  the applicable benefits arrangement in question.

             (3)  This section does not affect the payability of benefits by a registered organization in respect of episodes of treatment provided in a hospital or day hospital facility with which the registered organization has a hospital purchaser-provider agreement.

73ED  Revocation of determinations

             (1)  A hospital or day hospital facility to which a determination applies in respect of a particular kind of episodes of treatment may apply in writing to the Minister for the determination to be revoked.

             (2)  If the Minister is satisfied that there are no longer grounds on which he or she could reasonably find, in accordance with the guidelines issued under section 73EB, that the standard of treatment of that kind provided by that hospital or day hospital facility is unacceptable, the Minister must, by written notice given to the hospital or day hospital facility, revoke the determination.

             (3)  The Minister must not revoke the determination without having first:

                     (a)  caused each registered organization to be notified that he or she is considering whether to revoke the determination; and

                     (b)  caused to be published in the Gazette a notice to the effect that he or she is considering whether to revoke the determination.

             (4)  If the Minister revokes the determination, he or she must:

                     (a)  cause copies of the notice of revocation to be given to each registered organization; and

                     (b)  cause a copy of the notice of revocation to be published in the Gazette.

             (5)  If the Minister decides not to revoke the determination, he or she must notify in writing the hospital or day hospital facility that applied for the revocation, and each registered organization, accordingly.

73EE  Date of effect of revocation

             (1)  Subject to subsection (2), a revocation of a determination has effect:

                     (a)  on the day specified in the notice of revocation as the day on which it is to have effect; or

                     (b)  if no such day is specified in the notice—on the day on which a copy of the notice is published in the Gazette.

             (2)  If, apart from this subsection, the revocation would have effect within 12 months after the day on which the determination was made, the revocation is taken to come into effect 12 months after that day.


 

Division 6Miscellaneous

73F  The Private Patients’ Hospital Charter

             (1)  The Minister may, by notice published in the Gazette, issue a statement, to be called the Private Patients’ Hospital Charter, that:

                     (a)  informs people of what they could, as contributors, reasonably require from registered organizations, medical practitioners, hospitals and day hospital facilities; and

                     (b)  advises people of matters to consider in making decisions about becoming contributors to such funds.

             (2)  The Private Patients’ Hospital Charter is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

73G  Liability for disclosure of information

             (1)  No action (whether criminal or civil) lies against a person for breach of a duty of confidence, or breach of a similar obligation, in relation to the disclosure of information under a hospital purchaser-provider agreement in compliance with a requirement of a kind referred to in paragraph 73BD(2)(c) or (e).

             (2)  No action (whether criminal or civil) lies against a hospital or a day hospital facility, or a person acting on behalf of a hospital or a day hospital facility, for breach of a duty of confidence, or breach of a similar obligation, in relation to the disclosure of information if the disclosure is reasonably necessary in connection with:

                     (a)  making a payment under an applicable benefits arrangement or assessing whether or not to make such a payment; or

                     (b)  any other matter relating to the operation of an applicable benefits arrangement.

          (2A)  No action (whether criminal or civil) lies against:

                     (a)  a registered organization; or

                     (b)  a person acting on behalf of a registered organization;

for breach of a duty of confidence, or breach of a similar obligation, in relation to the disclosure of information to:

                     (c)  a hospital with which the organization has a hospital purchaser-provider agreement; or

                     (d)  a day hospital facility with which the organization has such an agreement;

if the disclosure is reasonably necessary in connection with the hospital or day hospital facility complying with the requirement referred to in paragraph 73BD(2)(d).

             (3)  This section has effect despite:

                     (a)  any law (whether written or unwritten) of the Commonwealth, a State or a Territory; and

                     (b)  any contract, arrangement or understanding;

to the contrary.

74  Public officer of registered organisation

             (1)  A registered organization shall, within 14 days after the receipt by it of the notification of its registration, appoint a person to be the public officer of the organization for the purposes of this Act and shall, within 7 days after the making of the appointment, furnish to the Secretary and to the Council a notification of the appointment.

Penalty:  $1,000.

             (2)  A person who, having been appointed a public officer of a registered organization under the National Health (Medical Benefits) Regulations or the Hospital Benefits Regulations, held that appointment immediately before the commencement of this Part shall be deemed to have been appointed in accordance with subsection (1) and the provisions of this Part (except the requirement for notification of the appointment under that subsection) apply to and in relation to that public officer accordingly.

             (3)  The public officer shall perform, on behalf of the registered organization, all acts which are required or permitted to be performed by the registered organization by or under this Act.

             (4)  Anything done by the public officer of a registered organization in his or her capacity as public officer shall be deemed to be done by the registered organization.

             (6)  A registered organization:

                     (a)  may, at any time, revoke the appointment of a person as its public officer; and

                     (b)  shall, where a person ceases to be its public officer by death or otherwise, forthwith appoint another person to be its public officer in the place of that first-mentioned person.

Penalty:  $1,000.

             (7)  The registered organization shall, within 7 days after the making of an appointment under subsection (6), furnish to the Secretary and to the Council a notification of the appointment.

Penalty:  $1,000.

             (8)  A person who has ceased to be the public officer of a registered organization remains liable for a contravention of, or failure to comply with, any of the provisions of this Act by a registered organization while the person was the public officer of that organization.

             (9)  A registered organization shall appoint a person to act in the place of the public officer of the organization whenever that public officer is absent from duty.

Penalty:  $1,000.

           (10)  Where a person (in this subsection referred to as the acting officer) is acting in the place of the public officer of a registered organization by virtue of an appointment (in this subsection referred to as the acting appointment) referred to in subsection (9), then, for the purposes of this Act (including the purposes of any imposition of a sanction under Division 5):

                     (a)  the acting officer shall be deemed to be the public officer of the organization during the whole of the period of the acting appointment; and

                     (b)  the person in whose place the acting officer is acting shall be deemed not to be the public officer of the organization during any part of the period of the acting appointment.

           (11)  An offence under this section is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

74BA  Inducing contributors to transfer to other funds etc.

                   A registered organisation shall not:

                     (a)  offer to a contributor to the health benefits fund conducted by the organisation an inducement or encouragement;

                     (b)  subject, or threaten to subject, such a contributor to a penalty or disadvantage (whether financial or otherwise);

                     (c)  refrain from offering to such a contributor a benefit; or

                     (d)  hinder or impede the provision of a benefit to such a contributor;

if doing so has the result of persuading the contributor to transfer to the health benefits fund conducted by another organisation or simply to cease to contribute to the fund conducted by the first-mentioned organisation.

Penalty:  $50,000.

74C  Registered organization to keep records and furnish information

             (1)  A registered organization shall keep such financial and other records concerning the operation of the health benefits fund conducted by it as are prescribed.

             (2)  In this section, records does not include records referred to in the condition of registration set out in paragraph (h) of the Schedule.

74D  Returns of information by registered organizations

                   The regulations may provide for a registered organization to furnish to the Secretary, at such times as are and in such manner as is, prescribed, such information drawn from the records kept by the organization in accordance with this Act (including a condition of registration set out in the Schedule) as is prescribed.

75  Provision of services by organizations

             (1)  If a registered organization provides, or arranges for the provision of, services or treatment of any kind for all or any of its contributors or dependants of those contributors, the Minister may, at the written request of the organization, direct that, to such extent as the Minister directs, the provision of those services or of that treatment is to be treated, for the purposes of this Act, as the payment by the organization of benefits in respect of those services or that treatment.

             (2)  A request by a registered organization under subsection (1):

                     (a)  must be made by sending it to the Secretary; and

                     (b)  may specify the extent to which the organization desires to treat the provision of the services or treatment to which the request relates in the manner referred to in that subsection.

             (3)  The Minister must, as soon as practicable after a request is made by a registered organization under subsection (1), give, or refuse to give, the direction requested by the organization.

             (4)  As soon as practicable after the Minister gives a direction under subsection (1) in relation to an organization, the Minister must notify the organization accordingly and forward a copy of the direction to the organization.

             (5)  As soon as practicable after the Minister refuses to give a direction that has been requested by an organization, the Minister must notify the organization accordingly.

             (6)  If the Minister notifies an organization:

                     (a)  that the Minister has refused to give a direction requested by the organization; or

                     (b)  that the Minister has given a direction requested by the organization but has directed that the provision of the services or treatment concerned is to be treated in the manner referred to in subsection (1) otherwise than as specified in the request;

the Minister must give to the organization, with the notification, particulars of the Minister’s reasons for so doing.

             (7)  This section applies in relation to an organization that has made an application for registration under this Part as if that organization were a registered organization, but any direction of the Minister given under this section with respect to that organization does not take effect unless and until that organization becomes a registered organization.

78  Changes of rules etc. by registered organisations

             (1)  If, after the registration of an organization under this Part, the registered organization changes its rules, the registered organization must ensure that the Secretary receives notification of the change in accordance with this section.

          (1A)  The notification must be received:

                     (a)  if the change relates to rates of contribution by contributors and paragraph (ab) does not apply—no later than 14 days, or such other period (if any) declared in writing by the Minister, before the change is to come into effect; or

                    (ab)  if:

                              (i)  the change relates to rates of contribution by contributors; and

                             (ii)  the organization applies to the Minister to reduce the period referred to in paragraph (a) in relation to a particular notification; and

                            (iii)  before the change is to come into effect the Minister determines a lesser period;

                            no later than that lesser period before the change is to come into effect; or

                     (b)  in any other case—before the change is to come into effect.

          (1B)  Within a reasonable time after receiving the notification, the Secretary must give the organization written acknowledgment of its receipt.

             (2)  The notification must be in writing in a form approved by the Minister.

          (2A)  A declaration under paragraph (1A)(a) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

             (3)  Where subsection (1), (2) or (7) is not complied with in relation to a change, that change shall not come into operation.

             (4)  Where the Minister is of the opinion that a change:

                     (a)  would or might result in a breach of this Act or of a condition of registration of an organisation;

                     (b)  imposes an unreasonable or inequitable condition affecting the rights of any contributors; or

                     (c)  might, having regard to the advice of the Council, adversely affect the financial stability of a health benefits fund;

the Minister may, by declaration in writing, declare that the change shall not come into operation.

          (4A)  Where the Minister is of the opinion that a change that would increase rates of contribution by contributors would be contrary to the public interest, the Minister may, by declaration in writing, declare that the change shall not come into operation.

          (4B)  The Minister must cause a copy of a declaration under subsection (4A) to be laid before each House of the Parliament within 15 sitting days after the declaration is made.

          (4C)  A declaration under subsection (4A) must set out the grounds on which the Minister formed the opinion that a change that would increase rates of contributions by contributors would be contrary to the public interest.

             (5)  The Secretary shall tell the Council of any declaration made by the Minister under subsection (4) or (4A).

             (6)  Where the Minister makes a declaration under subsection (4) or (4A) in relation to a notification by an organisation, the Secretary shall tell the organisation of the declaration.

             (7)  A registered organization that proposes to make any rule change that is, or could be, detrimental to the interests of all or any of its contributors must, before the rule change comes into effect, take all reasonable steps to ensure that affected contributors are informed of the nature of the change in terms that can reasonably be expected to be understood.

             (8)  The Minister must cause a report of changes in the rates of contribution by contributors of registered organizations to be laid before each House of the Parliament within 15 sitting days after the end of a quarter.

             (9)  The report shall relate only to changes in rates of contribution by contributors:

                     (a)  that have been notified by the registered organization to the Secretary in accordance with subsection (1); and

                     (b)  in respect of which the Minister has not made any declaration under either of subsections (4) and (4A).

           (10)  If, during any quarter, there has been no notification by a registered organization of a change relating to rates of contribution by contributors, to which paragraphs (9)(a) and (b) apply, there is no requirement for a report under subsection (8) to be provided to the Minister in respect of that quarter.

           (11)  In this section:

quarter means a period of 3 months beginning on 1 January, 1 April, 1 July or 1 October of any year.

79  Cancellation of registration of organisation

             (3)  The Council shall cancel the registration of a registered organisation if the health benefits fund conducted by the organization has been wound up in accordance with Part VIA.

             (4)  The Council shall cancel the registration of a registered health benefits organization, being a restricted membership organization, if the health benefits fund conducted by the organization has been wound up in accordance with Part VIA.

             (5)  The Council must cancel the registration of a registered organization if the Council is satisfied that the business of the health benefits fund conducted by the organisation has, in accordance with an approval granted under Part VIB, been transferred to another registered organisation or to other registered organisations (as the case may be).

             (6)  The Council shall cancel the registration of a registered health benefits organization, being a restricted membership organization, if the Council is satisfied that the business of the health benefits fund conducted by it has, in accordance with an approval granted under Part VIB, been transferred to the fund conducted by another registered organization.

             (7)  The Council may cancel the registration of a registered organization if the Council is satisfied:

                     (a)  that the organization has repeatedly contravened an obligation imposed on the organization by or under this Act or has contravened a number of such obligations; or

                     (b)  that a contravention by the organization of such an obligation has serious implications for the interests of contributors to the health benefits fund conducted by the organization.

             (8)  For the purposes of subsection (7), and without limiting the generality of that subsection, any contravention of an obligation imposed by or under this Act on that organization that substantially and adversely affects:

                     (a)  the non-discriminatory nature of the health benefits fund conducted by the organization; or

                     (b)  the financial management of the organization or of the health benefits fund conducted by it;

has a serious implication for contributors to the fund.

             (9)  If the Council revokes the registration of an organization, the Council must, as soon as practicable, and not later than 7 days after the revocation, inform the Secretary of that revocation.

81  Notification of registrations etc.

             (1)  The Council shall publish in the Gazette in the month of January in each year a notice showing particulars of all subsisting registrations of organizations under section 73.

             (2)  Whenever an organization is registered or the registration of an organization is cancelled, the Council shall publish in the Gazette a notice of the registration or cancellation, as the case may be.

82  Offences

             (2)  A person shall not make a representation that an organization, association or body which is not a registered organization is a registered organization.

             (3)  A person shall not make a representation which implies that a person who pays contributions to an organization is or may be entitled to receive, by reason of being a member of that organization, a payment from the Commonwealth of an amount in respect of hospital treatment received by the second-mentioned person.

             (6)  A person shall not publish or display or cause to be published or displayed an advertisement or notice which indicates that an organization is an organization the rules of which provide for the payment of benefits for hospital treatment unless the advertisement or notice states:

                     (a)  in the case of an organization which is a registered health benefits organization—that the organization is a registered health benefits organization; or

                     (b)  in any other case—that the organization is not a registered health benefits organization.

Penalty:  $10,000 or imprisonment for 5 years, or both.


 

Part VIAAPrivate Health Insurance Administration Council

Division 1Preliminary

82A  Interpretation

                   In this Part, unless the contrary intention appears:

Chief Executive Officer means the Chief Executive Officer of the Council referred to in section 82PH.

Commissioner means the Commissioner of Private Health Insurance Administration referred to in paragraph 82C(1)(a).

guidelines means the guidelines referred to in section 82F.

member means a member of the Council and includes the Commissioner.


 

Division 2Establishment and constitution of Council

82B  Establishment

             (1)  There is established a Private Health Insurance Administration Council.

             (2)  The Council:

                     (a)  is a body corporate with perpetual succession;

                     (b)  shall have a common seal;

                     (c)  may acquire, hold and dispose of real and personal property; and

                     (d)  may sue and be sued in its corporate name.

Note:         Subject to section 82PAA, the Commonwealth Authorities and Companies Act 1997 applies to the Council. That Act deals with matters relating to Commonwealth authorities, including reporting and accountability, banking and investment, and conduct of officers.

             (3)  The common seal of the Council shall be kept in such custody as the Council directs and shall not be used except as authorised by the Council.

             (4)  All courts, judges and persons acting judicially shall take judicial notice of the imprint of the common seal of the Council appearing on a document and shall presume that it was duly affixed.

82BA  Purposes of Council

             (1)  The Council is established for the following purposes:

                     (a)  to regulate registered organizations in accordance with this Act, other laws of the Commonwealth and any directions given by the Minister;

                     (b)  to develop policies about the performance of its regulatory functions.

             (2)  In carrying out its purposes, the Council must take all reasonable steps to achieve an appropriate balance between the following objectives:

                     (a)  the objective of fostering an efficient and competitive health insurance industry;

                     (b)  the objective of protecting the interests of consumers;

                     (c)  the objective of minimising the level of health insurance premiums;

                     (d)  the objective of ensuring the prudential safety of individual registered organizations.

82C  Constitution of Council

             (1)  The Council consists of the following members:

                     (a)  a Commissioner of Private Health Insurance Administration;

                     (b)  at least 2, and not more than 4, other members.

             (2)  The performance of the functions, or the exercise of the powers, of the Council is not affected only because there is a vacancy or vacancies in the membership of the Council.

82D  Appointment of members

             (1)  The members of the Council are to be appointed in writing by the Minister in accordance with the guidelines (if any) made under subsection 82F(1).

          (1A)  One of the members of the Council may be appointed in writing by the Minister, in accordance with the guidelines (if any) under subsection 82F(1), to be the Deputy Commissioner.

             (2)  The Commissioner is to be appointed on a full-time basis or on a part-time basis.

             (3)  A member, other than the Commissioner, is to be appointed on a part-time basis.

             (4)  If a member is appointed as Deputy Commissioner, that appointment is on a part-time basis.

             (4)  A person cannot be appointed as a member of the Council if that person is a director, officer or employee of a body regulated by the Council.

82F  Guidelines

             (1)  The Minister may, by written instrument, make guidelines, not inconsistent with this Part, relating to:

                     (a)  the appointment of the Commissioner, of the other members, and of a member as Deputy Commissioner;

                     (b)  the terms and conditions of their offices; and

                     (c)  their periods of appointment.

             (3)  An instrument referred to in subsection (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.


 

Division 3Functions and powers of Council

82G  Functions

             (1)  The functions of the Council are:

                     (a)  to administer the Health Benefits Reinsurance Trust Fund;

                     (b)  to obtain from each registered organisation regular reports about the financial affairs of the organisation, including reports supported by actuarial certification;

                    (ba)  to obtain from the Department, for the purposes of modelling, evaluation and research, aggregated data derived from information referred to in the Hospital Casemix Protocol, being information of a kind determined in writing by the Minister for the purposes of this paragraph;

                    (bb)  to obtain regular reports from registered organisations about matters relating to the incentives scheme within the meaning of the Private Health Insurance Incentives Act 199 7 or the incentive payments scheme, or the premiums reduction scheme, within the meaning of the Private Health Insurance Incentives Act 199, including reports supported by actuarial certification;

                    (bc)  to obtain regular reports from registered organizations about matters relating to the operation of gap cover schemes and to provide advice to the Minister on the operation of those schemes with particular reference to the extent to which the schemes genuinely reduce or eliminate the cost to consumers of hospital treatment and associated professional attention;

                    (bd)  to publish on the Internet, and make available for inspection at its offices, details of all gap cover schemes approved by the Minister under section 73BDD, including details of any terms and conditions that apply to the relationship between a registered organization and individual medical providers;

                     (c)  to establish standards of the following kinds to be complied with by registered organizations:

                              (i)  solvency standards;

                             (ii)  capital adequacy standards;

                            (iii)  uniform standards for reporting to the Council;

                     (d)  to examine, from time to time, the financial affairs of registered organisations, by means of the inspection and analysis of the records, books and accounts of the organisations and any other relevant information;

                    (db)  to appoint, under section 82R, inspectors for the purpose of investigating the affairs of registered organizations under Part VIA and to exercise other related powers and functions under that Part;

                     (e)  to review, by carrying out independent actuarial assessment, the value of the assets of each health benefits fund;

                      (f)  to appoint, on the basis of a report of an inspector or otherwise, persons as administrators of health benefits funds or of registered organizations and to terminate such appointments;

                     (g)  to receive, under section 82XZC, reports of administrators of health benefits funds or registered organizations concerning the administration of those funds or organizations and to deal with such reports in accordance with section 82XZD;

                    (ga)  to give approvals related to the voluntary winding up of health benefit funds or registered organizations in the circumstances set out in Subdivision 3 or 4 of Division 4 of Part VIA, as the case requires;

                    (gb)  to apply to a court for the winding up of insolvent health benefits funds or insolvent registered organizations in accordance with Subdivision 5 or 6 of Division 4 of Part VIA, as the case requires;

                     (k)  where it is necessary, for the purpose of making a proper examination of the financial affairs of a registered organisation, for the Council to incur unusually high costs—to impose an appropriate fee on the organisation concerned;

                      (l)  to distribute copies of the Private Patients’ Hospital Charter issued under section 73F to registered organizations for distribution and display by the organizations;

                     (la)  to make copies of the Charter available to members of the public on request at each of its offices accessible to the public;

                     (lb)  where appropriate, to publicise the existence and availability of the Charter in its brochures and other documents, concerning health insurance, made available to the public;

                    (m)  to make statistics, and other financial information, relating to a registered organisation or registered organisations, publicly available in accordance with the Council’s rules;

                   (ma)  to collect and disseminate information about private health insurance, for the purpose of enabling people to make informed choices about private health insurance;

                     (n)  to receive applications from registered organisations for review of certificates given under subsection 3B(1) of the Health Insurance Act 1973 and to refer the applications to the Secretary;

                     (p)  to impose fees in relation to applications for review of certificates given under subsection 3B(1) of the Health Insurance Act 1973;

                      (r)  to make rules, not inconsistent with this Act, for the purpose of the performance of its functions and the exercise of its powers;

                      (s)  to advise the Minister about the financial operations and affairs of registered organisations;

                    (sa)  to cooperate with other regulatory agencies on matters affecting registered organizations and the private health insurance industry generally;

                    (sb)  to provide the Private Health Insurance Ombudsman, from time to time, with information in the possession of the Council that is, in the view of the Council, likely to be of use in the production, after the end of each financial year, of the State of the Health Funds Report referred to in paragraph 82ZRC(ba);

                      (t)  functions incidental to any other functions of the Council; and

                     (u)  any other functions conferred on the Council by this, or any other, Act.

             (2)  Determinations under paragraph (1)(ba) are disallowable instruments for the purposes of section 46A of the Acts Interpretation Act 1901.

             (3)  The Secretary must provide the aggregated data referred to in paragraph (1)(ba) to the Council.

82H  Powers

                   The Council has power to do all things necessary or convenient to be done for, or in connection with the performance of its functions.

82J  Directions by Minister

             (1)  The Minister may, by notice in writing to the Commissioner, give directions with respect to the performance of the Council’s functions or the exercise of its powers, and the Council shall comply with any such direction.

             (2)  Before giving a direction under subsection (1), the Minister shall consult the Council about the proposed direction.

             (3)  The Minister shall cause a copy of each direction to be laid before each House of the Parliament within 15 sitting days of the House after the direction is given.

82K  Examination of records, books and accounts of registered organisations

             (1)  Where, in the opinion of the Commissioner it is desirable, for the proper performance of the Council’s functions that the records, books and accounts of a registered organisation be examined, the Commissioner may, by signed instrument, authorise:

                     (a)  the Chief Executive Officer;

                     (b)  a member of staff of the Council; or

                     (c)  a consultant engaged by the Council;

to examine and report on those records, books and accounts.

             (2)  The person authorised under subsection (1) shall, at all reasonable times, have full and free access to any premises in which the records, books and accounts are kept and may take extracts from, or make copies of, the records, books and accounts.

             (3)  The Commissioner may, by written notice given to a person who is or has been an officer, servant or agent of a registered organisation, require that person:

                     (a)  to give the Council, within the time specified in the notice, such information relating to the affairs of the registered organisation as is stated by the notice to be required;

                     (b)  to attend, at a time and place specified in the notice, before the Council and give evidence relating to the affairs of the registered organisation; or

                     (c)  to produce, at a time and place specified in the notice, all records, books and accounts in the person’s custody or under the person’s control relating to the affairs of the registered organisation.

             (4)  The Commissioner may require the information or evidence, to be given on oath and either orally or in writing and, for that purpose, the Commissioner, or a person authorised in writing by the Commissioner to do so, may administer an oath or affirmation.

             (5)  A person shall not:

                     (a)  refuse or fail to comply with a requirement contained in a notice served on the person under subsection (3); or

                     (b)  refuse to be sworn or to make an affirmation.

Penalty:  $1,000 or imprisonment for 6 months, or both.

          (5A)  An offence under subsection (5) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

             (6)  In this section:

registered organisation includes an organisation the registration of which was cancelled under section 79 within 12 months before the date of the notice under subsection (3).

82L  Registered organisation to give information to the Council annually

             (1)  A registered organisation which makes any report to all or any of its members at any time after 30 June 1989, shall, within one month after making the report or within such further time as the Council allows, give a copy of the report to the Council.

             (2)  A registered organisation shall, within 3 months after the end of each year commencing with the year ending on 30 June 1989, or within such further time as the Council allows give to the Council:

                     (a)  such financial accounts and statements in respect of that year as the Council requires to be given for use in preparing the report referred to in section 82PA; and

                     (b)  such other statements in respect of that year as are required by the Council’s rules;

certified on behalf of the organisation in accordance with the Council’s rules to be true and correct.

Penalty:  $1,000.

          (2A)  An offence under subsection (2) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

             (3)  If the registered organisation was a participating fund for that year, the report must also include details, in a form determined by the Council, of the following:

                     (a)  if that year was the year that commenced on 1 July 1997—persons in respect of whom private health insurance policies issued by the registered organization were in force during that year and who were participants in the incentives scheme for that year;

                    (aa)  if that year was the year that commenced on 1 July 1998 or a later year—persons in respect of whom appropriate private health insurance policies issued by the registered organization were in force during that year;

                     (b)  reductions of premium payable for that year as a result of the operation of the scheme;

                     (c)  receipt of money from the Commission under the Private Health Insurance Incentives Act 1997, or the Private Health Insurance Incentives Act 1998, for that year.

             (4)  Without limiting subsection (3), the report must include a statement by an auditor as to whether, in the opinion of the auditor, the registered organisation has complied with the provisions of the Private Health Insurance Incentives Act 1997, or the Private Health Insurance Incentives Act 1998, during that year.

             (5)  In this section:

appropriate private health insurance policy means an appropriate private health insurance policy within the meaning of the Private Health Insurance Incentives Act 1998.

participant in the incentives scheme has the same meaning as in the Private Health Insurance Incentives Act 1997.

participant in the premiums reduction scheme has the same meaning as in the Private Health Insurance Incentives Act 1998.

participating fund means a participating fund within the meaning of the Private Health Insurance Incentives Act 1997 or the Private Health Insurance Incentives Act 1998, as the case may be.

private health insurance policy means a private health insurance policy within the meaning of the Private Health Insurance Incentives Act 1997.

82M  Registered organisation to comply with Council’s reporting requirements

                   It is a condition of registration of a registered organisation that the organisation comply, within a reasonable time, with such requirements as the Council, in the performance of its functions, imposes on the organisation.


 

Division 4Administration

82N  Meetings of Council

             (1)  Subject to subsection (2), the Commissioner shall convene a meeting of the Council when:

                     (a)  the Commissioner thinks it necessary for the efficient performance of the Council’s functions; or

                     (b)  directed to do so by written notice of the Minister; or

                     (c)  requested in writing to do so by at least 2 members.

             (2)  The Commissioner shall convene a meeting at least once every 6 months.

             (3)  The Commissioner shall determine the time and place at which a meeting is to be held.

             (4)  A majority of the members constitutes a quorum.

             (5)  The Commissioner shall preside at all meetings.

             (6)  A question arising at a meeting is decided by a majority of the votes of the members present and voting. The Commissioner has a deliberative vote and, if necessary, also has a casting vote.

             (7)  Subject to this section, the Commissioner shall determine the procedure of the meeting.

82P  Delegation by Council

                   The Council may, by writing under its common seal, delegate to:

                     (a)  the Chief Executive Officer; or

                     (b)  another member of staff of the Council;

all or any of the functions and powers of the Council, other than functions and powers under the Commonwealth Authorities and Companies Act 1997.

82PA  Report on registered organisations

             (1)  The Council shall, as soon as practicable after 30 September in each year give the Minister a report on the operations of registered organisations during the year ending on 30 June in that year.

             (2)  The report shall include, in respect of the health benefits fund conducted by a registered organisation during the year to which the report relates, the following information in respect of the fund:

                     (a)  contributions payable to the fund;

                     (b)  other amounts payable to the fund;

                     (c)  fund benefits payable out of the fund;

                     (d)  management expenses;

                     (e)  other amounts payable out of the fund;

                      (f)  the balance of the fund as at the end of that year;

                     (g)  details of how the reserves of the fund have been invested;

                     (h)  such other information as the Minister requires to be included.

          (2A)  The report must also contain such information as the Minister determines about matters relating to the involvement of registered organisations in the incentives scheme within the meaning of the Private Health Insurance Incentives Act 1997 or the incentive payments scheme, or the premiums reduction scheme, within the meaning of the Private Health Insurance Incentives Act 1998.

          (2B)  In particular, the report must contain information about any statement by an auditor under subsection 82L(4) that, in the opinion of the auditor, the registered organisation concerned has not complied with the provisions of the Private Health Insurance Incentives Act 1997, or the Private Health Insurance Incentives Act 1998, during the year.

             (3)  The Minister shall lay each report under this section before each House of the Parliament within 15 sitting days of that House after it is received by the Minister.

Note:          An annual report on the Council’s operations must also be prepared under section 9 of the Commonwealth Authorities and Companies Act 1997.

82PAA  Modification of the Commonwealth Authorities and Companies Act 1997

                   Section 14 of the Commonwealth Authorities and Companies Act 1997 does not apply in relation to the Council.


 

Division 5Offices of members

82PB  Validity of appointments

                   The appointment of a person as Commissioner or as another member is not invalid because of a defect or irregularity in connection with the person’s appointment.

82PC  Acting Commissioner

             (1)  The Minister may appoint a person to act as Commissioner:

                     (a)  during a vacancy in the office of Commissioner (whether or not an appointment has been previously made to the office); or

                     (b)  during any period, or during all periods, when, the Commissioner is absent from duty or from Australia or is, for any other reason, unable to perform the duties of the office;

but a person appointed to act during a vacancy shall not continue to act for more than 12 months.

             (2)  Anything done by or in relation to a person purporting to act as Commissioner is not invalid because:

                     (a)  the occasion for the appointment had not arisen;

                     (b)  there was a defect or irregularity in connection with the appointment;

                     (c)  the appointment had ceased to have effect; or

                     (d)  the occasion for the person to act as Commissioner had not arisen or had ceased.

82PCA  Deputy Commissioner to act as Commissioner in certain circumstances

             (1)  The Deputy Commissioner is to act as Commissioner:

                     (a)  during a vacancy in the office of Commissioner (whether or not an appointment has been made to the office) if no-one has been appointed to act as Commissioner; or

                     (b)  during any period, or during all periods, when the Commissioner, and any person appointed to act as Commissioner, are absent from duty or from Australia or are, for any other reason, unable to perform the duties of the Commissioner.

             (2)  The Deputy Commissioner must not act as Commissioner during a vacancy in the office of Commissioner for more than 12 months.

             (3)  Anything done by or in relation to a person purporting to act as Commissioner under this section is not invalid because the occasion for the person to act as Commissioner had not arisen or had ceased.

82PCB  Powers and duties of persons acting as Commissioner

             (1)  Subject to any direction by the Commissioner, an acting Commissioner, or the Deputy Commissioner when acting as Commissioner, has all the powers and functions of the Commissioner under this Act.

             (2)  A power or function of the Commissioner under this Act or any other Act, when exercised or performed by an acting Commissioner, or by the Deputy Commissioner when acting as Commissioner, is to be taken, for the purposes of this Act or any other Act, to have been exercised or performed by the Commissioner.

             (3)  The exercise of a power or the performance of a function of the Commissioner under this Act or any other Act by an acting Commissioner, or by the Deputy Commissioner when acting as Commissioner, does not prevent the exercise of the power or the per