Sanctions Principles 2014

made under section 96-1 of the

Aged Care Act 1997

Compilation No. 2

Compilation date:                              27 February 2017

Includes amendments up to:            F2017L00114

Registered:                                         27 February 2017

This compilation includes a commenced amendment made by F2016L01492.

About this compilation

This compilation

This is a compilation of the Sanctions Principles 2014 that shows the text of the law as amended and in force on 27 February 2017 (the compilation date).

The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law.

Uncommenced amendments

The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Legislation Register (www.legislation.gov.au). The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the series page on the Legislation Register for the compiled law.

Application, saving and transitional provisions for provisions and amendments

If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes.

Editorial changes

For more information about any editorial changes made in this compilation, see the endnotes.

Modifications

If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the series page on the Legislation Register for the compiled law.

Self-repealing provisions

If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes.

Contents

Part 1—Preliminary                                                                                                                                        1

1............ Name of principles........................................................................................................ 1

3............ Authority....................................................................................................................... 1

4............ Definitions..................................................................................................................... 1

Part 2—Reasonable steps to ensure suitability of key personnel                                        2

5............ Purpose of this Part....................................................................................................... 2

6............ Reasonable steps to be taken......................................................................................... 2

Part 2A—Sanctions                                                                                                                                         3

6A......... Purpose of this Part....................................................................................................... 3

6B......... Sanction for failing to pay care recipient portion or transfer portion of unspent home care amount         3

Part 3—Administration of sanctions                                                                                                    4

7............ Purpose of this Part....................................................................................................... 4

8............ Class of persons excluded from being appointed as an adviser..................................... 4

9............ Matters to be taken into account in specifying period for appointing an adviser............ 4

10.......... Class of persons excluded from being appointed as an administrator............................ 4

11.......... Matters to be taken into account in specifying period for appointing an administrator.. 4

Part 4—When sanctions cease to apply                                                                                              5

13.......... Purpose of this Part....................................................................................................... 5

14.......... Matters to which Secretary must have regard in deciding on sanction period................ 5

15.......... Other matters to which Secretary must have regard in deciding whether to lift sanction 5

16.......... Application for sanction to be lifted............................................................................... 6

Endnotes                                                                                                                                                                 7

Endnote 1—About the endnotes                                                                                                        7

Endnote 2—Abbreviation key                                                                                                            8

Endnote 3—Legislation history                                                                                                         9

Endnote 4—Amendment history                                                                                                     10

Part 1—Preliminary

1  Name of principles

                   These principles are the Sanctions Principles 2014.

3  Authority

                   These principles are made under section 96‑1 of the Aged Care Act 1997.

4  Definitions

                   In these principles:

Accreditation Standards means the Accreditation Standards specified in the Quality of Care Principles 2014.

Act means the Aged Care Act 1997.

Home Care Standards means the Home Care Common Standards specified in the Quality of Care Principles 2014.

non‑compliance, by an approved provider, means a failure by the approved provider to comply with one or more of the approved provider’s responsibilities under Part 4.1, 4.2 or 4.3 of the Act.

police certificate, for a person, means a report prepared by the Australian Federal Police, CrimTrac or the police force or police service of a State or Territory, about the person’s criminal conviction record.

Note:          A number of expressions used in these principles are defined in the Act, including the following:

(a)    disqualified individual;

(b)    key personnel.

Part 2—Reasonable steps to ensure suitability of key personnel

5  Purpose of this Part

                   For subsection 63‑1A(2) of the Act, this Part specifies reasonable steps that an approved provider must take to ensure that none of its key personnel is a disqualified individual.

6  Reasonable steps to be taken

                   The following reasonable steps are specified:

                     (a)  in relation to each of the approved provider’s key personnel—the approved provider must:

                              (i)  ensure that the person understands the obligations of key personnel and of approved providers under the Act in relation to disqualified individuals; and

                             (ii)  if the approved provider reasonably believes that the person may be mentally incapable of performing his or her duties as one of the approved provider’s key personnel—make arrangements for the person to be examined by a registered medical practitioner; and

                            (iii)  if the approved provider has ascertained that the person is a disqualified individual—ensure that the person ceases to be one of the approved provider’s key personnel;

                     (b)  in relation to a person who proposes to become, or becomes, one of the approved provider’s key personnel—the approved provider must:

                              (i)  obtain (with the person’s written consent) a police certificate for the person; and

                             (ii)  conduct a search of bankruptcy records; and

                            (iii)  conduct previous employment and referee checks;

                     (c)  if the approved provider reasonably believes that a person who is one of the approved provider’s key personnel may be a disqualified individual—the approved provider may take any of the steps referred to in paragraph (b), or other appropriate steps, to ascertain if the person is a disqualified individual;

                     (d)  if the Secretary seeks information from the approved provider as to the steps taken by the approved provider to ensure that a person who is one of the approved provider’s key personnel is not a disqualified individual—the approved provider must provide that information to the Secretary.

Part 2A—Sanctions

6A  Purpose of this Part

                   For paragraph 66‑1(l) of the Act, this Part specifies sanctions that may be imposed on an approved provider that has not complied, or is not complying, with one or more of its responsibilities under Part 4.1, 4.2 or 4.3 of the Act.

6B  Sanction for failing to pay care recipient portion or transfer portion of unspent home care amount

                   If an approved provider has not paid the care recipient portion or transfer portion of a care recipient’s unspent home care amount as required under section 21F of the User Rights Principles 2014, the Secretary may, by notice under section 67‑5 of the Act, require the provider to make the payment within the period specified in the notice.

Part 3—Administration of sanctions

7  Purpose of this Part

                   This Part specifies:

                     (a)  for subsection 66A‑2(1) of the Act—the class of persons excluded from being appointed as an adviser; and

                     (b)  for subsection 66A‑2(4) of the Act—the matters that the Secretary must take into account in specifying the period within which an approved provider must appoint an adviser; and

                     (c)  for section 66A‑3(1) of the Act—the class of persons excluded from being appointed as an administrator; and

                     (d)  for subsection 66A‑3(4) of the Act—the matters that the Secretary must take into account in specifying the period within which an approved provider must appoint an administrator.

8  Class of persons excluded from being appointed as an adviser

                   For subsection 66A‑2(1) of the Act, disqualified individuals are excluded from being appointed as an adviser.

9  Matters to be taken into account in specifying period for appointing an adviser

                   For subsection 66A‑2(4) of the Act, in specifying the period within which an approved provider must appoint an adviser, the Secretary must take into account:

                     (a)  the location of the aged care service specified in the section 67-5 notice, including whether it is in a metropolitan, regional, rural or remote location;

                     (b)  the nature of the approved provider’s non-compliance; and

                     (c)  any other relevant matter.

10  Class of persons excluded from being appointed as an administrator

                   For subsection 66A‑3(1) of the Act, disqualified individuals are excluded from being appointed as an administrator.       

11  Matters to be taken into account in specifying period for appointing an administrator

                   For subsection 66A‑3(4) of the Act, in specifying the period within which an approved provider must appoint an administrator, the Secretary must take into account:

                     (a)  the location of the aged care service specified in the section 67-5 notice, including whether it is in a metropolitan, regional, rural or remote location;

                     (b)  the nature of the approved provider’s non-compliance; and

                     (c)  any other relevant matter.

Part 4—When sanctions cease to apply

13  Purpose of this Part

                   This Part specifies:

                     (a)  for subsection 68‑2(2) of the Act—the matters to which the Secretary must have regard in deciding on the length of a sanction period in relation to a sanction that has been imposed on an approved provider for non‑compliance with its responsibilities under Part 4.1, 4.2 or 4.3 of the Act; and

                     (b)  for paragraph 68‑3(b) of the Act—other matters to which the Secretary must have regard in deciding whether it is appropriate for a sanction to be lifted; and

                     (c)  for paragraph 68‑4(2)(b) of the Act—the requirements that an application to lift a sanction must meet.

14  Matters to which Secretary must have regard in deciding on sanction period

                   For subsection 68‑2(2) of the Act, the matters to which the Secretary must have regard in deciding on the length of a sanction period, in relation to a sanction that has been imposed on an approved provider for non‑compliance with its responsibilities under Part 4.1, 4.2 or 4.3 of the Act, are as follows:

                     (a)  whether the non‑compliance is of a minor or serious nature;

                     (b)  whether the non‑compliance has happened before, and, if so, how often;

                     (c)  whether the non‑compliance threatens or threatened the health, welfare or interests of care recipients;

                     (d)  whether the non‑compliance would threaten the health, welfare or interests of future care recipients;

                     (e)  whether the approved provider has failed to comply with any undertaking to remedy the non‑compliance;

                      (f)  the period likely to be needed to establish whether any improvement in compliance can be sustained.

15  Other matters to which Secretary must have regard in deciding whether to lift sanction

                   For paragraph 68‑3(b) of the Act, the other matters to which the Secretary must have regard in deciding whether it is appropriate to lift a sanction that has been imposed on an approved provider are:

                     (a)  the matters referred to in section 14; and

                     (b)  whether any changes made by the approved provider are likely to result in a sustained improvement in the approved provider’s compliance with its responsibilities under Part 4.1, 4.2 or 4.3 of the Act.

16  Application for sanction to be lifted

                   For paragraph 68‑4(2)(b) of the Act, an application by an approved provider for a sanction to be lifted must provide details of the following matters:

                     (a)  what the approved provider has done to remedy the non‑compliance for which the sanction was imposed;

                     (b)  any assessment, carried out while the sanction has been in effect:

                              (i)  against the Accreditation Standards of the approved provider’s management systems, staffing and organisational development; or

                             (ii)  against the Home Care Standards of the home care services (if any) provided by the approved provider;

                     (c)  any consultations with staff, care recipients, or care recipients’ relatives about the non‑compliance;

                     (d)  the approved provider’s proposals for sustaining its compliance with its responsibilities under Part 4.1, 4.2 or 4.3 of the Act.

Endnotes

Endnote 1—About the endnotes

The endnotes provide information about this compilation and the compiled law.

The following endnotes are included in every compilation:

Endnote 1—About the endnotes

Endnote 2—Abbreviation key

Endnote 3—Legislation history

Endnote 4—Amendment history

Abbreviation key—Endnote 2

The abbreviation key sets out abbreviations that may be used in the endnotes.

Legislation history and amendment history—Endnotes 3 and 4

Amending laws are annotated in the legislation history and amendment history.

The legislation history in endnote 3 provides information about each law that has amended (or will amend) the compiled law. The information includes commencement details for amending laws and details of any application, saving or transitional provisions that are not included in this compilation.

The amendment history in endnote 4 provides information about amendments at the provision (generally section or equivalent) level. It also includes information about any provision of the compiled law that has been repealed in accordance with a provision of the law.

Editorial changes

The Legislation Act 2003 authorises First Parliamentary Counsel to make editorial and presentational changes to a compiled law in preparing a compilation of the law for registration. The changes must not change the effect of the law. Editorial changes take effect from the compilation registration date.

If the compilation includes editorial changes, the endnotes include a brief outline of the changes in general terms. Full details of any changes can be obtained from the Office of Parliamentary Counsel.

Misdescribed amendments

A misdescribed amendment is an amendment that does not accurately describe the amendment to be made. If, despite the misdescription, the amendment can be given effect as intended, the amendment is incorporated into the compiled law and the abbreviation “(md)” added to the details of the amendment included in the amendment history.

If a misdescribed amendment cannot be given effect as intended, the abbreviation “(md not incorp)” is added to the details of the amendment included in the amendment history.

Endnote 2—Abbreviation key

Endnote 3—Legislation history

Endnote 4—Amendment history