Statutory Rules 1990 No. 4041

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National Health (Nursing Home Respite Care) Regulations2 (Amendment)

I, THE GOVERNOR-GENERAL of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, hereby make the following Regulations under the National Health Act 1953.

Dated 10 December 1990.

BILL HAYDEN

Governor-General

By His Excellency’s Command,

Peter Staples

Minister of State for Aged, Family and Health Services

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1. Commencement

1.1 These Regulations commence on 1 January 1991.

2. Amendment

2.1 The National Health (Nursing Home Respite Care) Regulations are amended as set out in these Regulations.

(S.R. 402/90)—Cat. No. 15/26.11.1990

3. Regulation 3 (Interpretation)

3.1 Omit the definitions of “benefit respite care”, “benefit respite care bed”, “benefit respite care patient” and “leave respite care”.

3.2 Insert the following definitions:

“ ‘benefit respite care’ means respite care provided under Division 3 of Part 2 to a benefit respite care patient;

‘benefit respite care bed day’, in relation to an approved nursing home, means a day in respect of which benefit respite care supplement is payable to the proprietor of the nursing home for the occupation of a bed in the nursing home by a benefit respite care patient:

‘benefit respite care patient’ means:

(a) a person:

(i) whose admission to an approved nursing home is approved under section 40ab of the Act; and

(ii) who is a qualified nursing home patient; or

(b) a Repatriation nursing home patient who is not a leave respite care patient:

‘leave respite care’ means respite care provided under Division 2 of Part 2 to a leave respite care patient:

‘leave respite care patient’ means a person:

(a) whose admission to an approved nursing home is approved by the Minister under section 40ab of the Act; and

(b) who occupies a bed in an approved nursing home temporarily vacated by:

(i) a qualified nursing home patient; or

(ii) a Repatriation nursing home patient;

under an agreement made under subsection 4aa (2) of the Act;

but does not include a Repatriation nursing home patient;

‘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:

(a) a leave respite care patient; or

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

(d) a Repatriation nursing home patient;”.

4. Regulation 7 (Statement to be given to patient on admission)

4.1 Paragraphs 7 (2) (b) and (c):

Omit the paragraphs, substitute:

“(b) in the case of a leave respite care patient, the maximum number of days for which the proprietor of the nursing home expects

that the patient will occupy a bed temporarily vacated by another patient under an agreement made under subsection 4aa (2) of the Act: and

(i) the maximum number of days for which the patient may, under regulation 21, be a benefit respite care patient in the nursing home in the financial year that includes the day of admission; and

(ii) the date on which the proprietor of the nursing home expects to discharge the patient from the nursing home, having regard to any other arrangements made by the proprietor in relation to the occupation of beds in the nursing home.”.

5. Regulation 8 (Transfer of patient between leave respite care and benefit respite care beds)

5.1 Omit the regulation.

6. Regulation 11 (Leave respite care not relevant to benefit respite care)

6.1 Omit the regulation.

7. Regulation 14 (Approval of nursing home—determination in relation to the number of benefit respite care beds)

7.1 Omit the regulation, substitute:

Determination of number of benefit respite care bed days in relation to a nursing home

“14. (1) On application in writing made by the proprietor of a nursing home, the Minister may determine in writing the number of benefit respite care bed days for the nursing home for a financial year or for a period in a financial year.

“(2) In making a determination, the Minister must have regard to:

(a) the number of beds in the nursing home; and

(b) any maximum number of benefit respite care bed days determined under subregulation 20 (1) for the State or Territory in which the nursing home is situated; and

(c) any maximum number of benefit respite care bed days determined under subregulation 20(1) for the region in which the nursing home is situated.”.

8. Regulation 16 (Approval in principle of a nursing home—determination of the number of benefit respite care beds)

8.1 Omit the regulation.

9. Regulation 17 (Revocation or variation of a determination made under regulation 16)

9.1 Omit the regulation.

10. Regulation 18 (Minister to give notice of certain decisions)

10.1 Omit ‘‘, 15, 16 or 17”, substitute “or 15”.

11. Regulation 19 (Approval in principle of transfer of nursing home beds—application of regulations 16 and 17)

11.1 Omit the regulation.

12. Regulation 20 (Determination of maximum benefit respite care bed numbers)

12.1 Omit the regulation, substitute:

Determination of maximum number of benefit respite care bed days

“20. (1) The Minister may, by notice in writing published in the Gazette, determine the maximum number of benefit respite care bed days for a relevant period:

(a) for a State or Territory: or

(b) for a region in a State or Territory.

“(2) In making a determination, the Minister must have regard to:

(a) the number of nursing homes in the State or Territory or region, as the case may be; and

(b) the number of beds in those nursing homes; and

“(3) In this regulation, ‘relevant period’ means:

(a) the period commencing on 1 January 1991 and ending on 30 June 1991; or

(b) a financial year.”.

13. Regulation 21 (Limitation on length of occupancy of benefit respite care beds)

13.1 Omit the regulation, substitute:

Limitation on duration of occupancy of a bed as a benefit respite care patient

“21. (1) A person may be a benefit respite care patient in a particular nursing home for not more than a total of 63 days in a financial year.

“(2) For the purpose of calculating the number of days that a person is a benefit respite care patient in an approved nursing home:

(a) the day of the person’s admission as such a patient and the day

on which the person ceases to be such a patient are counted as 1 day; and

(b) where on a day the person:

(i) ceases to be a leave respite care patient in a nursing home; and

(ii) immediately becomes a benefit respite care patient without an intervening period of absence from the nursing home;

the person is taken to have been admitted to the nursing home as a benefit respite care patient on that day; and

(i) ceases to be a benefit respite care patient in a nursing home; and

(ii) immediately becomes a leave respite care patient without an intervening period of absence from the nursing home;

the person is taken to have been discharged from the nursing home on that day.”.

14. Regulation 22 (Occupation of a benefit respite care bed)

14.1 Omit the regulation.

15. Regulation 26 (Use of benefit respite care beds)

15.1 Omit the regulation.

16. Regulation 28 (Movement of a patient, within a nursing home, from or to a benefit respite care bed—calculation of benefit or supplement)

16.1 Omit the regulation.

17. Regulation 29 (Declaration of benefit respite care beds for a fixed period)

17.1 Omit the regulation.

18. Regulation 30 (Variation of seasonal approved period)

18.1 Omit the regulation.

19. Regulation 31 (Certificate of approval under section 41 of the Act)

19.1 Omit the regulation, substitute:

Certificate of approval under section 41 of the Act

“31. Upon a determination by the Minister under regulation 14 of the number of benefit respite care bed days for an approved nursing home, or upon any variation of such a determination, the Minister must:

(a) if the determination or variation is made at the same time as the approval referred to in subsection 41 (1) of the Act, include that number as a condition in the certificate of approval issued

to the proprietor of the nursing home under section 41 of the Act; or

(b) if the determination or variation is made after a certificate has been issued to the proprietor of the nursing home under section 41 of the Act, issue to the proprietor a new certificate that includes that number as a condition applicable to the nursing home.”.

20. Regulation 32 (Notice relating to dedication of benefit respite care beds for seasonal approval period)

20.1 Omit the regulation, substitute:

Booking fee

“32. (1) In this regulation:

‘additional exempt bed fee’ has the same meaning as in Part V of the Act;

“basic fee’, in relation to a person who books a place in a nursing home as a benefit respite care patient for a day means:

(a) if the nursing home is not an exempt nursing home, the sum of:

(i) the amount applicable under subparagraph 47 (2) (b) (iii) of the Act; and

(ii) any additional patient contribution applicable to the patient under subsection 40AI (1) of the Act; for that day; or

(b) if the nursing home is an exempt nursing home, the sum of:

(i) the amount applicable under subparagraph 47 (2) (b) (iii) of the Act: and

(ii) the lowest additional exempt bed fee for an exempt bed in the nursing home; and

(iii) an amount equal to the proportion of that additional exempt bed fee that the proprietor of the nursing home agreed should be taken into account in reducing the Commonwealth benefit payable from time to time in respect of that exempt bed;

for that day;

‘exempt bed’ has the same meaning as in Part V of the Act;

‘exempt nursing home’ means a nursing home in which all the beds for patients are exempt beds within the meaning of Part V of the Act.

“(2) The proprietor of a nursing home may charge a person a fee for booking a place for the person as a benefit respite care patient of the nursing home.

“(3) The booking fee must not exceed:

(a) 25% of the basic fee for each of the days in the period for which the booking was made; or

(b) the basic fee for the first 7 days of that period;

whichever is the lesser.

“(4) Where, not less than 7 days before the period for which a booking was made by a person, the person gives the proprietor of the nursing home notice in writing of the cancellation of the booking, the booking fee must be refunded in full not later than 14 days after the proprietor receives notice.

“(5) Where a booking for a person is cancelled without notice of cancellation being given in accordance with subregulation (4):

(a) the fee must be refunded in full as soon as practicable if the booking was cancelled because the person was admitted to hospital, or died, after making the booking; and

(b) the fee may be retained by the proprietor of the nursing home if the booking was cancelled for any other reason.

“(6) Where a person becomes a respite care patient of a nursing home in accordance with a booking:

(a) the liability of the person to pay fees to the proprietor must be reduced by the amount of the booking fee; and

(b) if the booking fee exceeds the fees payable by the person, the excess need not be refunded by the proprietor unless the person ceased to be a benefit respite care patient because the person was admitted to hospital or died.”.

21. Regulation 33 (First day of approval of a bed as a benefit respite care bed)

21.1 Omit the regulation.

22. Regulation 34 (Last day of approval of certain benefit respite care beds)

22.1 Omit the regulation.

23. Regulation 35 (Interpretation)

23.1 Subregulation (1) (definition of “benefit respite care supplement”):

Omit the definition.

23.2 Subregulation (2):

Omit the subregulation.

24. Regulation 36 (Benefit respite care supplement)

24.1 Subregulation (1):

Omit “subregulation (2)”, substitute “regulation 21”.

24.2 Subregulation (1):

Omit “benefit respite care” (first occurring).

24.3 Subregulation (2):

Omit the subregulation.

24.4 Subregulations (4) and (5):

Omit the subregulations, substitute:

“(4) A person who has been a benefit respite care patient in a nursing home for a total of 63 days in a financial year ceases to have a classification referred to in section 40afa of the Act until the person is classified under that section in relation to a later period.”.

25. Regulation 37 (Calculation of amount of supplement)

25.1 Subregulation (1):

Omit “regulation 22”, substitute “subregulation 36 (1)”.

25.2 Subregulation (1):

Omit the formula, substitute:

“”.

26. Regulation 38 (Modifications under subsection 49aa (2) of the Act)

26.1 Subregulation (1):

Omit the subregulation.

27. Schedule (Modifications of the Act for the purposes of subsection 49aa (2) of the Act)

27.1 Omit the Schedule, substitute:

SCHEDULE Regulation 38

MODIFICATIONS OF THE ACT UNDER SUBSECTION 49AA (2) OF THE ACT

PART 1—PRINCIPAL MODIFICATIONS

1. Subsection 4 (1):

Omit the definitions of the following expressions:

“short-term respite care patient”:

‘“qualified nursing home patient”.

2. After subsection 4 (1a):

Insert the following subsection:

“(1aa) The following expressions have the same meaning as in the National Health (Nursing Home Respite Care) Regulations:

‘benefit respite care patient’:

‘leave respite care patient’;

‘qualified nursing home patient’.”.

3. Paragraph 4aa (5) (e):

After “Part Va”, insert “(other than the benefit respite care supplement).

4. After subsection 4aa (6):

Insert the following subsection:

“(6a) In this section a reference to:

(a) a qualified nursing home patient: or

(b) a Repatriation nursing home patient;

does not include a person who is a benefit respite care patient.”.

5. Section 39 (definition of “Commonwealth benefit”):

Add at the end “but does not include an amount payable as benefit respite care supplement”.

6. Subsection 39aa (4):

Omit “and the notice in force under sub-section (3)”. substitute “, the notice in force under subsection (3) and the notice in force under regulation 20 of the National Health (Nursing Home Respite Care) Regulations”.

7. Subparagraph 40AA (6) (bb) (i):

Omit “whose admission to the nursing home has been approved by the Minister under section 40aba”, substitute “who is a leave respite care patient”.

8. Subsection 40aa (11):

Omit the subsection.

9. Subsection 40aa (13):

Omit “or 40aba”.

10. After subsection 40aa (6a):

Insert the following subsection:

“(6ab) The condition referred to in paragraph 40aa (6) (cd) does not prohibit the proprietor of a nursing home from charging a benefit respite care patient a booking fee in accordance with regulation 32 of the National Health (Nursing Home Respite Care) Regulations.”.

11. Paragraph 40ab (5a) (a):

Omit “immediately after the end of, substitute “on”.

12. Subsection 40ab (5b):

Omit “section 40aba”, substitute “this Part”.

13. Paragraph 40e (6) (b):

After “Commonwealth benefit”, insert “and benefit respite care supplement”.

14. Subsection 50 (2):

Add at the end “(other than any benefit respite care supplement paid)”.

PART 2—FURTHER MODIFICATIONS

1. Paragraphs 40aa (6) (ba) and (bb) and subsection 40ad (1aa):

After “qualified nursing home patient”, insert “(other than a benefit respite care patient)”.

2. Paragraphs 40aa (6) (ba) and (bb) and subsection 40ab (1aa):

After “Repatriation nursing home patient” (wherever occurring), insert “(other than a benefit respite care patient)”.

3. Subsection 40ab (5a):

After “qualified nursing home patient” (first occurring), insert “(other than a benefit respite care patient)”.

4. Paragraph 4aa (10) (a); subparagraphs 40aa (6) (bb) (ii) and (iii): subparagraph 40aa (6) (c) (ii); paragraph 40aa (6) (ca); subparagraphs 40aa (6) (d) (i) and (ii); subsection 40aa (6b); paragraph 40aa (10) (a) and subsections 40ab (5a) and (5b):

Omit “short-term” (wherever occurring), substitute “leave”.

5. Subsections 40afa (2) and 45e (2) and paragraph 45e (6) (a):

Omit “is not payable”, substitute “and benefit respite care supplement are not payable”.

6. Subsections 47 (2), 47 (2a), 47a (1) and 48a (1):

After “Commonwealth benefit” (wherever occurring), insert “(not being a benefit respite care supplement)”.

7. Subsections 48 (1), 48 (2) and 49 (1):

After “Commonwealth benefit” (first occurring), insert “(not being a benefit respite care supplement)”.

NOTES

1. Notified in the Commonwealth of Australia Gazette on 17 December 1990.

2. Statutory Rules 1989 No. 173.

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