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Other as amended, taking into account amendments up to Veterans’ Affairs (Extended Eligibility for Treatment) Amendment Instrument 2018
Administered by: Veterans' Affairs
Registered 13 Dec 2018
Start Date 06 Dec 2018
Table of contents.

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Veterans’ Affairs (Extended Eligibility for Treatment) Instrument 2015

Instrument 2015 No. R21

made under under section 88A of the

Veterans’ Entitlements Act 1986

Compilation No. 1

Compilation date:                              6 December 2018

Includes amendments up to:            F2018L01663

Registered:                                         13 December 2018

 

About this compilation

This compilation

This is a compilation of the Veterans’ Affairs (Extended Eligibility for Treatment) Instrument 2015 that shows the text of the law as amended and in force on 6 December 2018 (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If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes.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

1............ Name.............................................................................................................................. 1

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

4............ Schedules....................................................................................................................... 1

5............ Definitions..................................................................................................................... 1

5A......... Meaning of mental health condition............................................................................... 3

6............ Extended Eligibility for Residential Care (including Residential Care (Respite)), Respite Care and non-subsidised residential care (respite)................................................................................ 4

7............ Extended Eligibility for Treatment under the Veterans’ Home Care Program................ 6

8............ Extended Eligibility for a limited VHC-type service...................................................... 6

9............ Extended Eligibility for Treatment of Unidentifiable Condition..................................... 9

Endnote 1—About the endnotes                                                                                                        3

Endnote 2—Abbreviation key                                                                                                            4

Endnote 3—Legislation history                                                                                                         5

Endnote 4—Amendment history                                                                                                       6

 


1  Name

       This is the Veterans’ Affairs (Extended Eligibility for Treatment) Instrument 2015.

3  Authority

This instrument is made under the Veterans’ Entitlements Act 1986.

4  Schedules

       Each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.

5  Definitions

 

Domestic Assistance, in the context of the Treatment Principles, has the meaning it has in the Treatment Principles and in the context of the MRCA Treatment Principles has the meaning it has in the MRCA Treatment Principles.

 

defence-caused, in relation to an injury or disease, has the meaning given in section 70 of the VEA.

 

former member has the meaning it has in section 5 of the MRCA.

 

hazardous service has the meaning it has in subsection 68(1) of the VEA.

 

homecare treatment means treatment under the Veterans’ Home Care Program or the MRCA Home Care Program, as the case may be, comprised of:

 

a Home Care service (category A); or

a Home Care service (category B); or

a Home Care service (category C).

 

Note: these categories of treatment are defined in the Treatment Principles and in the MRCA Treatment Principles.

 

Home and Garden Maintenance in the context of the Treatment Principles, has the meaning it has in the Treatment Principles and in the context of the MRCA Treatment Principles has the meaning it has in the MRCA Treatment Principles.

 

limited VHC-type service has the meaning it has in the Treatment Principles.

 

Note: a limited VHC-type service is a service identical to Domestic Assistance or Home and Garden Maintenance.

 

member has the meaning it has in section 5 of the MRCA.

 

mental health condition – see section 5A.

 

MRCA means the Military Rehabilitation and Compensation Act 2004.

 

MRCA Home Care Program has the meaning it has in the MRCA Treatment Principles.

 

MRCA Treatment Principles means the legislative instrument of that name made by the Military Rehabilitation and Compensation Commission under paragraph 286(1)(a) of the MRCA.

 

non-subsidised residential care (respite) means respite provided under Part C of Part 10 of the Treatment Principles.

 

peacekeeping service has the meaning it has in subsection 68(1) of the VEA.

 

relevant service means:

(a) operational service, hazardous service, warlike service, non-warlike service, peacekeeping service — as covered by the VEA;

(b) warlike service or non-warlike service — as covered by the MRCA.

 

residential care has the meaning it has in the Treatment Principles.

 

Note (1): residential care does not include medical treatment or allied health treatment (to the extent it is not residential care).

Note (2): generally the Repatriation Commission and the Military Rehabilitation and Compensation Commission accept financial responsibility for the cost of residential care where the cost is not attributable to the Commissions under the Aged Care Act 1997 e.g. the cost known as the “Resident fee” under Division 52C of Part 3A.1 of the Aged Care Act 1997 but in some instances the Treatment Principles and MRCA Treatment Principles may enable a Commission to accept financial responsibility for such a cost.

 

residential care (respite) has the meaning it has in the Treatment Principles.

 

Note (1): residential care (respite) does not include medical treatment or allied health treatment (to the extent it is not residential care (respite).

Note (2): generally the Repatriation Commission and the Military Rehabilitation and Compensation Commission accept financial responsibility for the cost of residential care (respite) where the cost is not attributable to the Commissions under the Aged Care Act 1997 e.g. the cost known as the “Resident fee” under Division 52C of Part 3A.1 of the Aged Care Act 1997 but in some instances the Treatment Principles and MRCA Treatment Principles may enable a Commission to accept financial responsibility for such a cost.

 

respite has the meaning it has in the Treatment Principles.

 

Respite Care has the meaning it has in the Treatment Principles.

 

service injury or disease has the meaning it has in section 5 of the MRCA.

 

service condition means:

(a) a war-caused injury;

(b) a war-caused disease;

(c) a defence-caused injury arising from peacekeeping service or hazardous service;

(d) a defence-caused disease arising from peacekeeping service or hazardous

      service;or

(e) a service injury or disease arising from war-like service or non-warlike service.

 

Treatment Principles means the legislative instrument of that name made by the Repatriation Commission under section 90 of the VEA.

 

VEA means the Veterans’ Entitlements Act 1986.

 

veteran has the meaning it has in paragraph (a) of the definition of “veteran” in subsection 5C(1) of the VEA and includes the extended meaning of “veteran” in subsection 81(2) of the VEA (i.e. member of the Forces; member of a Peacekeeping Force).

 

Veterans’ Home Care Program has the meaning it has in the Treatment Principles.

 

war-caused, in relation to an injury or disease, has the meaning given in section  9 of the VEA.

 

The following terms are defined in the VEA:

 

·         child – 5F(1)

·         continuous full-time service – 5C(1)

·         MRCA – 5Q(1)

·         partner – 5E(1)

5A  Meaning of mental health condition

             (1)  In this instrument:

mental health condition means a mental disorder that could be assessed and diagnosed by a mental health professional in accordance with recognised criteria for such assessment and diagnosis.

             (2)  In this section:

mental health professional means a person who is:

(a)   a medical practitioner (whether a general practitioner or a psychiatrist) who is registered with the Australian Health Practitioner Regulation Agency to practise as a medical practitioner; or

(b)   a psychologist who is registered with the Australian Health Practitioner Regulation Agency to practise as a psychologist and who holds a post-graduate qualification in clinical psychology.

Note:    Medical reference resources used by Australian mental health professionals in the assessment and diagnosis of mental disorders include DSM-5 (fifth edition of the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders) and Chapter V of ICD-10-AM (the International Statistical Classification of Diseases and Related Health Problems, 10th Revision, Australian Modification).

6  Extended Eligibility for Residential Care (including Residential Care (Respite)), Respite Care and non-subsidised residential care (respite)

 

(1) A veteran included in the class of person specified in Part A is eligible to be provided with the kind of treatment specified in Part B.

 

Note: see paragraph 88A(1)(a) of the VEA.

 

(2) A person who was a dependant of a veteran and who is, or was, a member or former member included in the class of person specified in Part A is eligible to be provided with the kind of treatment specified in Part B.

 

Note (1) see paragraph 88A(1)(c) of the VEA.  It is necessary for this provision to also cover members/former members who are former dependants of veterans because paragraph 88A(1)(d) of the VEA, the provision that could cover such members/former members, only applies if the person is not covered under another paragraph of section 88A and members/former members who were dependants of veterans would be covered by paragraph 88A(1)(c).

Note (2) a person who was the dependant of a veteran includes a child of the veteran who has turned 16 and is not under 25 and in full-time education.

 

(3) A member or former member, being a person who is not a veteran, a dependant of a veteran or former dependant of a veteran, included in the class of person specified in Part A is eligible to be provided with the kind of treatment specified in Part B.

 

Note (1) see paragraph 88A(1)(d) of the VEA.

 

(4) A person who is a dependant of a veteran, member or former member, being a dependant included in the class of person specified in Part AA, is eligible to be provided with the kind of treatment for that person specified in Part B.

 

Note: although dependants are eligible for the kind of treatment in Part B (as distinct from how the treatment is applied) without the need for this instrument, that eligibility is for the application of that kind of treatment to an injury or disease.  This instrument extends that eligibility to eligibility for the application of the treatment to a condition that is not an injury or disease e.g. a condition due to the effects of ageing.

 

Part A – Class of Person

A person eligible for treatment under the VEA or MRCA in respect of:

(a)   a war-caused injury or a war-caused disease; or

(b)   a defence-caused injury or a defence-caused disease; or

(c)   a service injury or disease; or

(d)   malignant neoplasia; or

(e)   pulmonary tuberculosis; or

(f)    a mental health condition.

 

Part AA – Class of Person

 

A dependant of a veteran under the VEA or a dependant of a member or former member under the MRCA.

 

Part B – Kind of Treatment

 

for a person in Part A:

 

·         residential care;

·         residential care (respite);

·         Respite Care; and

·         non-subsidised residential care (respite);

 

under the Treatment Principles under the VEA — for any injury, disease or condition (e.g. frailty) that is not mentioned in Part A.

 

for a person in Part AA:

 

·         residential care;

·         residential care (respite);

·         Respite Care; and

·         non-subsidised residential care (respite);

 

under the Treatment Principles under the VEA for any condition that is not an injury or disease (e.g. frailty).

 

Note (1): an example of how this instrument operates is where a former member with a mobility impairment of the right leg, being a service injury or disease, is receiving residential care treatment for the condition and the person also has a mobility impairment of the left leg, that is not a service injury or disease

 

In practice residential care treatment (e.g. personal assistance) would not differentiate between the two conditions albeit, strictly speaking, but for this instrument the application of the residential care treatment to the non-service-related condition would not be covered under Department of Veterans’ Affairs treatment arrangements. 

 

This instrument grants the person eligibility for residential care treatment of the non-service-related condition thereby resolving a technical eligibility issue.

 

Note (3): Although this instrument confers eligibility on a member or former member for a treatment partly available under the MRCA i.e. residential care/residential care (respite) applied to a service injury or disease, the remainder of the treatment i.e. residential care/residential care (respite) applied to a non-service injury or disease, can, under this instrument, only be provided under the VEA.

7  Extended Eligibility for Treatment under the Veterans’ Home Care Program

 

(1) A person included in a class of person in Part A is eligible to be provided with the kind of treatment specified in Part B.

 

Part A – Class of Person

 

A person eligible for home care treatment for an injury or disease under the Veterans’ Home Care Program or the MRCA Home Care Program (primary treatment).

 

Part B – Kind of Treatment

 

home care treatment under the Veterans’ Home Care Program (secondary treatment) for:

 

(a) any condition of the person that is not a service condition; and

(b) any condition of the person that is not an injury or disease;

 

on the basis that the secondary treatment is provided as part of, and on the same terms as, the primary treatment.

 

Note (1): this provision enables home care treatment under the Veterans’ Home Care Program to be applied whole-of-person.  Accordingly if a veteran or former member is only eligible for treatment under the Veterans’ Home Care Program or the MRCA Home Care Program, as the case may, for a service condition, this instrument enables the treatment to be provided for any other condition, including a non-service condition, or a condition that is not an injury or disease e.g. a condition due to the effects of ageing. 

 

Note (2): similarly, a dependant of a veteran, member or of a former member, being a dependant eligible for treatment for any injury or disease under the Veterans’ Home Care Program or the MRCA Home Care Program, is eligible under this instrument for the application of home care treatment to a condition of the dependant that is not an injury or disease e.g. a condition due to the effects of ageing

8  Extended Eligibility for a limited VHC-type service

 

  (1) A partner or former partner of a veteran included in the class of person specified in Part A is eligible to be provided with the kind of treatment specified in Part B.

 

Note (1) see paragraphs 88A(1)(b) and (c) of the VEA.

 

(2) A child or former child of a veteran included in the class of person specified in Part A is eligible to be provided with the kind of treatment specified in Part B

 

Note (1) see paragraphs 88A(1)(b) and (c) of the VEA.

Note (2) a person who was the dependant of a veteran includes a child of the veteran who has turned 16 and is not under 25 and in full-time education.

 

(3) A partner or former partner of a member or of a former member included in the class of person specified in Part A is eligible to be provided with the kind of treatment specified in Part B

 

Note (1) see paragraph 88A(1)(d) of the VEA.

 

(4) A child or former child of a member or of a former member included in the class of person specified in Part A is eligible to be provided with the kind of treatment specified in Part B.

 

Note (1) see paragraph 88A(1)(d) of the VEA.

 

Part A – Class of Person (Family Member)

 

A person (family member) who was sharing a home with a person (beneficiary) when the beneficiary died or needed to leave the home for treatment and immediately before either of these events:

 

Note: a beneficiary may be a veteran (including a deceased veteran), a member or former member or a former partner (by death) of a veteran, member of former member.

 

(a) the beneficiary was eligible to receive Domestic Assistance or Home and Garden Maintenance under the Treatment Principles or the MRCA Treatment Principles; and

 

(b) the family member was:

 

(i) the partner of the beneficiary — the beneficiary being a veteran, member or former member; or

(ii) the former partner of the beneficiary (by reason of the death of the beneficiary) — the beneficiary having been a veteran, member or former member; or

(iii) a child of the beneficiary:

 

(A) where the beneficiary is or was a veteran, member or former member; or

(B) where the beneficiary was the partner of a veteran, member or former member and the child is the child of the veteran, member or former member.

 

(iv) a former child of the beneficiary who was a full-time carer of the beneficiary:

 

(A) where the beneficiary is or was a veteran, member or former member; or

(B) where the beneficiary was the partner of a veteran, member or former member and the child is the former child of the veteran, member or former member.

 

(v) a former child of the beneficiary — being a former child with a serious disability:

 

(A) where the beneficiary is or was a veteran, member or former member; or

(B) where the beneficiary was the partner of a veteran, member or former member and the child is the former child of the veteran, member or former member.

 

Note (1): the person to whom the class of person relates is the “family member” not the “beneficiary”.

 

Note (2): "child" under the VEA has a different meaning to its normal meaning and means a person who has not turned 16 unless the person is undertaking full time education in which case the person is a child until turning 25.  Accordingly under the VEA a child ceases to be a child upon turning 16 or 25, as the case may be.  The child is then a former child. 

 

Note (3) Although the terms “partner”, “former partner”, “child”, former child”, are mentioned in relation to a member or former member (i.e. people covered by the MRCA), as this instrument is made under the VEA, the definitions of “child” and “partner” in the VEA and not the MRCA prevail.

           

Note (4): the Treatment Principles limit the delivery of a limited VHC-type service to, generally speaking, 12 weeks.

 

Part B – Kind of Treatment

 

       (a) for a person in the class of person in Part A who is entitled to a limited VHC-type service under the Treatment Principleslimited VHC-type service.

 

Note (1): a limited VHC-type service is a service identical to Domestic Assistance or Home and Garden Maintenance which a relevant beneficiary was eligible to receive.

Note (2): example - a partner of a veteran, where the veteran was eligible for home and garden maintenance under the Treatment Principles and who left the home for treatment, is, in conjunction with this instrument, entitled to a limited VHC-type service under the Treatment Principles.

 

(b) for a person in the class of person in Part A who is not entitled to a limited VHC-type service under the Treatment Principles limited VHC-type service as if the person is entitled to a limited VHC-type service under the Treatment Principles and as if the relevant beneficiary of the Domestic Assistance or Home and Garden Maintenance under the MRCA Treatment Principles was eligible for those services under the Treatment Principles.

 

Note (1): example - a partner of a member, where the member was eligible for domestic assistance under the MRCA Treatment Principles and who left the home for treatment, is not prima facie entitled to a limited VHC-type service under the Treatment Principles but by virtue of this instrument is taken to be entitled to a limited VHC-type service under the Treatment Principles.

 

Note (2): although a person is taken to be eligible for a limited VHC-type service under the Treatment Principles and the relevant beneficiary is taken to be eligible for Domestic Assistance or Home and Garden Maintenance, as the case may be, under the Treatment Principles, nevertheless the terms on which the limited VHC-type service is to be provided are the same terms that applied to the provision of Domestic Assistance or Home and Garden Maintenance to the relevant beneficiary under the MRCA Treatment Principles.

 

Note (3): example – if a former member was eligible for 10 hours Home and Garden Maintenance under the MRCA Treatment Principles then a partner of the former member is eligible for a limited VHC-type service under the Treatment Principles of Home and Garden Maintenance of 10 hours only.

9  Extended Eligibility for Treatment of Unidentifiable Condition

 

(1) A veteran included in the class of person specified in Part A is eligible to be provided with the kind of treatment specified in Part B.

 

Note (1) see paragraph 88A(1)(a) of the VEA.

 

(2) A member or former member included in the class of person specified in Part A is eligible to be provided with the kind of treatment specified in Part B.

 

Note (1) see paragraph 88A(1)(d) of the VEA.

 

Part A – Class of Person

 

A person in the following circumstances:

 

(a) the person is a veteran or member or former member who rendered continuous full-time relevant service; and

 

(b) the person lodged a claim for pension under the VEA or for compensation under the MRCA within 15 years after the date of the end of the relevant service in respect of a physical or mental condition (unidentifiable condition) that could be a service condition; and

 

(c) the Commonwealth (as represented by the Department of Veterans’ Affairs) notified the person that the person’s condition is an unidentifiable condition i.e. a medical condition that does not satisfy diagnostic criteria in current evidence-based medicine;and

 

(d) the person’s claim for pension or compensation has not been determined by the Repatriation Commission or the Military Rehabilitation and Compensation Commission, as the case requires.

 

Part B – Kind of Treatment

 

Treatment under, and subject to:

 

·           the Treatment Principles; or

·           the Repatriation Pharmaceutical Benefits Scheme; or

·           the Repatriation Private Patient Principles; or

·           an arrangement between the Repatriation Commission and a health care provider pursuant to Part V of the Act.

 

(3) Eligibility for treatment in Part B commences on and from the date that is 3 months before the date the claim lodged by the person in Part A was received at an Office of the Department of Veterans’ Affairs in Australia, to and including the date the person’s claim for pension or compensation under the VEA or MRCA, as the case may be, is determined.

 

Schedule 1 Repeal

 

The following instruments are revoked:

 

Veterans' Entitlements Treatment (Gulf War Health Study) Determination 22/2000

 

Veterans' Entitlements Treatment (Accident and Personal Safety) Determination 18/2000

 

Veterans' Entitlements Treatment (Veterans' Home Care - Veterans' Dependants) Determination 7/2001

 

Veterans’ Entitlements Treatment (Veterans’ Home Care) Determination 13/2000

 

Veterans' Entitlements Treatment (Unidentifiable Condition) Determination 19/2000

 

Veterans' Entitlements Treatment (Residential and Respite Care) Determination 4/2001

 

Veterans' Entitlements Treatment (Residential Care) Determination 20/2000

 

Veterans' Entitlements Treatment (Centre for Military and Veterans’ Health) Determination 6/2003


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

 

ad = added or inserted

o = order(s)

am = amended

Ord = Ordinance

amdt = amendment

orig = original

c = clause(s)

par = paragraph(s)/subparagraph(s)

C[x] = Compilation No. x

    /sub‑subparagraph(s)

Ch = Chapter(s)

pres = present

def = definition(s)

prev = previous

Dict = Dictionary

(prev…) = previously

disallowed = disallowed by Parliament

Pt = Part(s)

Div = Division(s)

r = regulation(s)/rule(s)

ed = editorial change

reloc = relocated

exp = expires/expired or ceases/ceased to have

renum = renumbered

    effect

rep = repealed

F = Federal Register of Legislation

rs = repealed and substituted

gaz = gazette

s = section(s)/subsection(s)

LA = Legislation Act 2003

Sch = Schedule(s)

LIA = Legislative Instruments Act 2003

Sdiv = Subdivision(s)

(md) = misdescribed amendment can be given

SLI = Select Legislative Instrument

    effect

SR = Statutory Rules

(md not incorp) = misdescribed amendment

Sub‑Ch = Sub‑Chapter(s)

    cannot be given effect

SubPt = Subpart(s)

mod = modified/modification

underlining = whole or part not

No. = Number(s)

    commenced or to be commenced

 

Endnote 3—Legislation history

 

Name

Registration

Commencement

Application, saving and transitional provisions

Veterans’ Affairs (Extended Eligibility for Treatment) Instrument 2015

14 July 2015 (F2015L01145)

15 July 2015 (s 2)

 

Veterans’ Affairs (Extended Eligibility for Treatment) Amendment Instrument 2018

5 Dec 2018 (F2018L01663)

6 Dec 2018 (s 2)

 

Endnote 4—Amendment history

 

Provision affected

How affected

s 2........................................

rep LA s 48D

s 5........................................

am F2018L01663

s 5A.....................................

ad F2018L01663

s 6........................................

am F2018L01663