These are the Aged Care Legislation Amendment (Increasing Consumer Choice) Principles 2016.

(1) Each provision of this instrument specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

Commencement information
Column 1	Column 2	Column 3
Provisions	Commencement	Date/Details
1. Sections 1 to 4 and anything in this instrument not elsewhere covered by this table	The day after this instrument is registered.	24 September 2016
2. Schedule 1, Part 1	The day after this instrument is registered.	24 September 2016
3. Schedule 1, Part 2	At the same time as Part 1 of Schedule 1 to the Aged Care Legislation Amendment (Increasing Consumer Choice) Act 2016 commences.	27 February 2017

Note: This table relates only to the provisions of this instrument as originally made. It will not be amended to deal with any later amendments of this instrument.

(2) Any information in column 3 of the table is not part of this instrument. Information may be inserted in this column, or information in it may be edited, in any published version of this instrument.

3 Authority

This instrument is made under the following:

(a) the Aged Care Act 1997;

(b) the Australian Aged Care Quality Agency Act 2013.

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Each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.

Schedule 1—Amendments

Part 1—Amendments commencing day after registration

User Rights Principles 2014

1 Section 4

Insert:

agreement exit amount has the meaning given by paragraph 23(2)(cba).

2 After paragraph 23(2)(cb)

Insert:

(cba) if the provider intends to deduct, on or after 27 February 2017, an exit amount in working out the care recipient’s unspent home care amount when the provider ceases to provide home care to the care recipient—a statement of the maximum exit amount (the agreement exit amount) that may be deducted under the agreement;

3 At the end of Part 5

Add:

Division 2—Transitional provisions relating to the Aged Care Legislation Amendment (Increasing Consumer Choice) Principles 2016

27 Meaning of Amending Principles

In this Division:

Amending Principles means the Aged Care Legislation Amendment (Increasing Consumer Choice) Principles 2016.

28 Application of amendments made by Part 1 of Schedule 1 to the Amending Principles

Paragraph 23(2)(cba) (provisions of home care agreement) of these principles, as inserted by Part 1 of Schedule 1 to the Amending Principles, applies in relation to any home care agreements, whether entered into before or after this section commences.

29 Transitional provision in relation to published exit amounts

(1) If any home care agreement of an approved provider specifies or is to specify an agreement exit amount before 27 February 2017, the approved provider must give to the Secretary before 27 February 2017, for publication by the Secretary, a written notice of the maximum exit amount that may be deducted by the approved provider in working out any care recipient’s unspent home care amount when the approved provider ceases to provide home care to the care recipient.

(2) The notice must be given in a form approved, in writing, by the Secretary.

(3) For the purposes of these principles and the Records Principles 2014, after Part 2 of Schedule 1 to the Amending Principles commences, the notice is taken to have been given by the approved provider under section 21J of these principles, as inserted by that Part.

Part 2—Amendments commencing 27 February 2017

Accountability Principles 2014

4 Section 29

Omit “start to be provided with home care through the service on or after 1 July 2014”, substitute “start or cease to be provided with home care through the service”.

5 Section 30 (heading)

Repeal the heading, substitute:

30 Notification of start of home care through a home care service

6 Subsection 30(1)

Omit “on or after 1 July 2014”.

7 At the end of Division 2 of Part 3

Add:

30A Notification of cessation of home care through a home care service

(1) An approved provider of a home care service must notify the Secretary, in writing, of:

(a) each care recipient who ceases to be provided with home care through the service on or after 27 February 2017; and

(b) the day the care recipient ceases to be provided with that home care.

(2) The notice under subsection (1) must:

(a) be in a form approved, in writing, by the Secretary; and

(b) be given within 31 days after the care recipient ceases to be provided with home care through the service.

Allocation Principles 2014

8 Paragraph 10(d)

Omit “care;”, substitute “care.”.

9 Paragraph 10(e)

Repeal the paragraph.

10 Paragraph 26(d)

Omit “care;”, substitute “care.”.

11 Paragraph 26(e)

Repeal the paragraph.

12 Subsection 28(1)

Omit “or home care subsidy”.

13 Paragraph 28(1)(c)

Repeal the paragraph.

14 Section 29

Omit “or home care subsidy”.

15 Section 29 (paragraph (e) of the example)

Omit “couples;”, substitute “couples.”.

16 Section 29 (paragraph (f) of the example)

Repeal the paragraph.

17 Section 30

Omit “or home care subsidy”.

18 Section 31

Omit “, home care subsidy”.

19 Section 44

Repeal the section.

20 Subsection 48(2) (example for paragraphs (2)(a) and (b))

Omit all the words after “provided in the regions”.

21 Paragraph 64(1)(b)

Repeal the paragraph, substitute:

(b) the aged care service to which the allocation relates, and its location;

22 Subparagraph 64(1)(d)(ii)

Omit “status; or”, substitute “status;”.

23 Subparagraph 64(1)(d)(iii)

Repeal the subparagraph.

24 Subsection 66(2) (example for paragraphs (2)(a) and (b))

Omit all the words after “provided in the regions”.

25 Division 2 of Part 9

Repeal the Division.

Approval of Care Recipients Principles 2014

26 Section 7

Repeal the section, substitute:

7 Home care

Home care—level 1

(1) For paragraph 21‑3(c) of the Act, a person is eligible to be approved as a recipient of home care at level 1 only if:

(a) the person is assessed as having needs that can only be met by a coordinated package of care services; and

(b) the person is assessed as requiring a basic level of home care; and

(d) the person is assessed as being able to live at home with the support of home care at level 1; and

(e) for a person who is not an aged person—there are no other care facilities or care services more appropriate to meet the person’s needs.

Home care—level 2

(2) For paragraph 21‑3(c) of the Act, a person is eligible to be approved as a recipient of home care at level 2 only if:

(a) the person is assessed as having needs that can only be met by a coordinated package of care services; and

(b) the person is assessed as requiring a low level of home care; and

(d) the person is assessed as being able to live at home with the support of home care at level 2; and

(e) for a person who is not an aged person—there are no other care facilities or care services more appropriate to meet the person’s needs.

Home care—level 3

(3) For paragraph 21‑3(c) of the Act, a person is eligible to be approved as a recipient of home care at level 3 only if:

(a) the person is assessed as having needs that can only be met by a coordinated package of care services; and

(b) the person is assessed as requiring an intermediate level of home care; and

(d) the person is assessed as being able to live at home with the support of home care at level 3; and

(e) for a person who is not an aged person—there are no other care facilities or care services more appropriate to meet the person’s needs.

Home care—level 4

(4) For paragraph 21‑3(c) of the Act, a person is eligible to be approved as a recipient of home care at level 4 only if:

(a) the person is assessed as having needs that can only be met by a coordinated package of care services; and

(b) the person is assessed as requiring a high level of home care; and

(d) the person is assessed as being able to live at home with the support of home care at level 4; and

(e) for a person who is not an aged person—there are no other care facilities or care services more appropriate to meet the person’s needs.

27 At the end of Part 6

Add:

18 Transitional provisions relating to the Aged Care Legislation Amendment (Increasing Consumer Choice) Principles 2016

(1) If:

(a) immediately before the commencement of this section, a person met the criteria in paragraphs 7(1)(b) and (d) of the old principles; and

(b) the person did so as a result of an assessment of the person made at any time before the commencement of this section;

on and after the commencement of this section the person is taken, for the purposes of paragraphs 7(2)(b) and (d) of the new principles, to have been assessed as a result of that assessment as:

(d) being able to live at home with the support of home care at level 2.

(2) If:

(a) immediately before the commencement of this section, a person met the criteria in paragraphs 7(2)(b) and (d) of the old principles; and

(b) the person did so as a result of an assessment of the person made at any time before the commencement of this section;

on and after the commencement of this section the person is taken, for the purposes of paragraphs (7)(4)(b) and (d) of the new principles, to have been assessed as a result of that assessment as:

(d) being able to live at home with the support of home care at level 4.

(3) In this section:

new principles means these principles as in force on the day this section commences.

old principles means these principles as in force immediately before the day this section commences.

Approved Provider Principles 2014

28 Section 4 (note)

Repeal the note, substitute:

Note: Key personnel is defined in the Act.

29 Part 2

Repeal the Part.

Quality Agency Principles 2013

30 At the end of section 3.15

Add:

(3) If the CEO makes an assessment contact with the approved provider of a relevant home care service, the approved provider of the service must, on request by the CEO, give self‑assessment information for the service to the CEO.

Note: Self‑assessment information is defined in section 1.4.

Records Principles 2014

31 At the end of section 7

Add:

; (s) copies of notices given under section 21E of the User Rights Principles 2014;

(t) records relating to the payment of the care recipient portion or transfer portion of care recipients’ unspent home care amounts under section 21F of the User Rights Principles 2014;

(u) copies of notices of published exit amounts given under section 21J of the User Rights Principles 2014.

Sanctions Principles 2014

32 After Part 2

Insert:

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.

Subsidy Principles 2014

33 Section 74

Omit “The oxygen”, substitute “(1) The oxygen”.

34 At the end of section 74

Add:

(2) However, a day is to be disregarded for the purposes of subsection (1) if:

(a) more than one approved provider is eligible for home care subsidy for the day for the care recipient; and

(b) the approved provider for the home care service in question was not the first of the approved providers referred to in paragraph (a) to have entered into a home care agreement with the care recipient.

35 Section 76

Omit “74(c)”, substitute “74(1)(c)”.

36 Section 78

Omit “The enteral”, substitute “(1) The enteral”.

37 At the end of section 78

Add:

(2) However, a day is to be disregarded for the purposes of subsection (1) if:

(a) more than one approved provider is eligible for home care subsidy for the day for the care recipient; and

38 Section 80

Omit “78(c)”, substitute “78(1)(c)”.

39 Section 82

Omit “The dementia”, substitute “(1) The dementia”.

40 At the end of section 82

Add:

(2) However, a day is to be disregarded for the purposes of subsection (1) if:

(a) more than one approved provider is eligible for home care subsidy for the day for the care recipient; and

41 Section 84

Omit “The veterans’ supplement”, substitute “(1) The veterans’ supplement”.

42 At the end of section 84

Add:

(2) However, a day is to be disregarded for the purposes of subsection (1) if:

(a) more than one approved provider is eligible for home care subsidy for the day for the care recipient; and

43 Section 98

Omit “The viability”, substitute “(1) The viability”.

44 At the end of section 98

Add:

(2) However, a day is to be disregarded for the purposes of subsection (1) if:

(a) more than one approved provider is eligible for home care subsidy for the day for the care recipient; and

User Rights Principles 2014

45 Section 4

Insert:

care recipient portion has the meaning given by step 7 of the calculator in section 21D.

Commonwealth portion has the meaning given by step 6 of the calculator in section 21D.

exit amount means an amount deducted by an approved provider in working out a care recipient’s unspent home care amount when the approved provider ceases to provide home care to the care recipient.

published exit amount has the meaning given by subsection 21J(1).

transfer portion has the meaning given by step 8 of the calculator in section 21D.

unspent home care amount has the meaning given by section 21C.

46 Paragraph 16(1)(a)

Omit “for their place in the service”, substitute “receiving home care through the service”.

47 Subsection 16(2)

Repeal the subsection, substitute:

(2) This Part also specifies:

(a) for paragraphs 46‑1(1)(f) and 56‑2(l) of the Act and paragraph 46‑1(1)(f) of the Aged Care (Transitional Provisions) Act 1997, the responsibilities of an approved provider of a home care service in relation to care recipients to whom the approved provider provides, or has provided, home care in dealing with the care recipients’ unspent home care amounts and in relation to exit amounts; and

(b) for subsection 61‑1(2) of the Act, requirements that a home care agreement entered into between a care recipient and an approved provider must comply with; and

(c) for clause 1 of Schedule 1 to the Act, and clause 1 of Schedule 1 to the Aged Care (Transitional Provisions) Act 1997, the definition of unspent home care amount; and

(d) for clause 1 of Schedule 1 to the Act, the definition of Commonwealth portion.

48 Paragraph 21B(2)(f)

Repeal the paragraph, substitute:

(f) if, during the month, the transfer portion of the care recipient’s unspent home care amount was received under section 21F by the approved provider—the amount that was received.

49 After Division 3 of Part 3

Insert:

Division 3A—Responsibilities of approved providers of home care—unspent home care amounts and exit amounts

Subdivision A—Definitions

21C Meaning of unspent home care amount

The unspent home care amount of a care recipient is worked out when an approved provider ceases to provide home care to the care recipient. The unspent home care amount is worked out in relation to the period that:

(a) begins on the later of:

(i) 1 July 2015; or

(ii) the day the approved provider begins to provide home care to the care recipient; and

(b) ends on the day the approved provider ceases to provide home care to the care recipient.

Note: An unspent home care amount of a care recipient is not required to be worked out under this section if a care recipient transfers from one home care service to another home care service operated by a single approved provider.

Unspent home care amount

Step 1. Work out the total of the following amounts that are paid to the approved provider in relation to the period:

(a) the amount of home care subsidy for the care recipient;

(b) the amount of home care fees for the care recipient;

(c) the amount (if any) of the transfer portion of the care recipient’s unspent home care amount paid under section 21F by another approved provider (as a result of a previous application of this section).

Note 1: The amount of home care subsidy is worked out under section 48‑1 of the Act or section 48‑1 of the Aged Care (Transitional Provisions) Act 1997.

Note 2: The amount of home care fees is worked out under Division 52D of the Act, or Division 60 of the Aged Care (Transitional Provisions) Act 1997 and section 130 of the Aged Care (Transitional Provisions) Principles 2014.

Step 2. Work out the total amount spent or committed during the period by the approved provider on providing care and services during that period to the care recipient.

Step 3. Subtract the total amount worked out under step 2 from the total amount worked out under step 1. If the result is negative, the amount is taken to be nil.

Step 4. If an exit amount may be deducted by the approved provider in accordance with section 21H, subtract the exit amount from the amount worked out under step 3.

Note: The exit amount must not be more than the unspent home care amount worked out under step 3 (see paragraph 21H(2)(c)).

Step 5. The amount (including a nil amount) worked out under step 3 or 4, as the case requires, is the care recipient’s unspent home care amount.

21D Meaning of Commonwealth portion, care recipient portion and transfer portion

The Commonwealth portion, the care recipient portion and the transfer portion of a care recipient’s unspent home care amount are worked out when an approved provider ceases to provide home care to the care recipient. The portions are worked out in relation to the period that:

(a) begins on the later of:

(i) 1 July 2015; or

(ii) the day the approved provider begins to provide home care to the care recipient; and

(b) ends on the day the approved provider ceases to provide home care to the care recipient.

Commonwealth portion, care recipient portion and transfer portion

Step 1. Work out the total of the following amounts that are paid to the approved provider in relation to the period:

(a) the amount of home care subsidy for the care recipient;

(b) if the approved provider has been paid the transfer portion of the care recipient’s unspent home care amount under section 21F by another approved provider—the Commonwealth portion of that unspent home care amount (worked out under a previous application of this section).

Note: The amount of home care subsidy is worked out under section 48‑1 of the Act or section 48‑1 of the Aged Care (Transitional Provisions) Act 1997.

Step 2. Work out the total of the following amounts that are paid to the approved provider in relation to the period:

(a) the amount of home care fees for the care recipient;

(b) if the approved provider has been paid the transfer portion of the care recipient’s unspent home care amount under section 21F by another approved provider—the care recipient portion of that unspent home care amount (worked out under a previous application of this section).

Note: The amount of home care fees is worked out under Division 52D of the Act, or Division 60 of the Aged Care (Transitional Provisions) Act 1997 and section 130 of the Aged Care (Transitional Provisions) Principles 2014.

Step 3. Add the total amounts worked out under steps 1 and 2.

Step 4. Divide the total amount worked out under step 1 by the total amount worked out under step 3, and express the result as a percentage (the Commonwealth percentage).

Step 5. Divide the total amount worked out under step 2 by the total amount worked out under step 3, and express the result as a percentage (the care recipient percentage).

Step 6. The Commonwealth portion of the care recipient’s unspent home care amount is the Commonwealth percentage of that amount.

Step 7. The care recipient portion of the care recipient’s unspent home care amount is:

(a) the care recipient percentage of that amount; less

(b) the amount of any home care fees that are payable by the care recipient to the approved provider, but have not been paid.

If the result is negative, the care recipient portion is taken to be nil.

Step 8. The transfer portion of a care recipient’s unspent home care amount is the total of the Commonwealth portion and the care recipient portion of that amount.

Subdivision B—Responsibilities to give notices and make payments in relation to unspent home care amounts

21E Responsibility to give notice of unspent home care amount

(1) An approved provider must give a notice in accordance with this section if the approved provider ceases on a particular day (the cessation day) to provide home care to a care recipient.

Note: A notice is not required to be given in accordance with this section if a care recipient transfers from one home care service to another home care service operated by a single approved provider.

(2) The notice must (subject to subsection (3)):

(a) specify:

(i) the cessation day; and

(ii) the care recipient’s unspent home care amount; and

(iii) the Commonwealth portion, care recipient portion and transfer portion of the care recipient’s unspent home care amount; and

(iv) if an exit amount was deducted by the approved provider under step 4 of the calculator in section 21C—the exit amount; and

(v) if unpaid home care fees were deducted by the approved provider under step 7 of the calculator in section 21D—the amount of fees that were deducted; and

(b) explain:

(i) if the approved provider ceases to provide home care to the care recipient because the care recipient has died—the effect of item 1 of the table in subsection 21F(2); and

(ii) otherwise—the effect of items 2 and 3 of that table and the effect of subsection 21F(3).

(3) However, if the Commonwealth portion, the care recipient portion or the transfer portion is nil, the notice must state that the portion is nil.

When notice must be given

(4) The notice must be given within 56 days after the cessation day.

Who notice is given to

(5) The notice must be given to:

(a) the care recipient; or

(b) if the care recipient has died—the care recipient’s legal personal representative.

Note: A copy of the notice may also be required to be given to a new approved provider of a care recipient under subsection 21G(2).

21F Responsibility to pay care recipient portion, Commonwealth portion and transfer portion

(1) A care recipient portion, Commonwealth portion or transfer portion of a care recipient’s unspent home care amount is payable in accordance with this section if:

(a) the approved provider ceases to provide home care to the care recipient on a day (the cessation day); and

(b) that portion is more than nil.

Note 1: The portions are not required to be paid in accordance with this section if a care recipient transfers from one home care service to another home care service operated by a single approved provider.

Note 2: A notice may be required to be given under section 21G in relation to a payment made under this section.

Payment of care recipient portion and transfer portion

(2) The approved provider must pay the care recipient portion and transfer portion in accordance with the following table.

Payment of portions
Item	If …	the approved provider must pay …	to this person …	within this period …
1	the approved provider ceases to provide home care to the care recipient because the care recipient dies	the care recipient portion	the care recipient’s estate	14 days after the approved provider is shown the probate of the will of the care recipient or letters of administration of the estate of the care recipient.
2	the approved provider is notified, within 56 days after the cessation day, that the care recipient has entered into a home care agreement with a new approved provider	the transfer portion	the new approved provider	70 days after the cessation day.
3	neither item 1 nor 2 applies	the care recipient portion	the care recipient	70 days after the cessation day.

When Commonwealth portion becomes due and payable

(3) If item 1 or 3 applies, the Commonwealth portion of the care recipient’s unspent home care amount is due and payable by the approved provider to the Commonwealth at the end of 70 days after the cessation day.

Note: The Commonwealth portion of a care recipient’s unspent home care amount is a recoverable amount and may, under section 95‑3 of the Act, be deducted from other amounts payable to the approved provider.

21G Requirement to provide notice

(1) This section applies if an approved provider ceases on a particular day (the cessation day) to provide home care to a care recipient.

(2) The approved provider (the first provider) must give a copy of the notice given under section 21E relating to the care recipient to another approved provider if the first provider pays the other approved provider the transfer portion of the care recipient’s unspent home care amount. The notice must be given at the time the portion is paid.

(3) The approved provider must, within 70 days after the cessation day, give a notice to the Secretary, in a form approved, in writing, by the Secretary, if:

(a) the Commonwealth portion of the care recipient’s unspent home care amount will become due and payable to the Commonwealth under subsection 21F(3); or

(b) the Commonwealth portion of the care recipient’s unspent home care amount is nil.

Subdivision C—Responsibilities in relation to exit amounts

21H Responsibilities in relation to exit amounts

(1) An exit amount must not be deducted in working out a care recipient’s unspent home care amount when an approved provider ceases to provide home care to the care recipient unless:

(a) the home care agreement entered into between the approved provider and the care recipient specifies an agreement exit amount (whether that amount was specified at the time the agreement was entered into or later); and

(b) a published exit amount was given to the Secretary under section 21J before that agreement exit amount was first specified in the home care agreement.

Note: An exit amount must not be so deducted if the care recipient transfers from one home care service to another home care service operated by a single approved provider.

(2) The exit amount that is deducted must not be more than any of the following:

(a) the published exit amount that was most recently given to the Secretary under section 21J by the approved provider before the agreement first specified the agreement exit amount referred to in paragraph (1)(a);

(b) the agreement exit amount referred to in paragraph (1)(a);

21J Published exit amounts

(1) If any home care agreement of an approved provider specifies or is to specify an agreement exit amount, the approved provider must give to the Secretary, for publication by the Secretary, a written notice of the maximum exit amount (the published exit amount) that may be deducted by the approved provider in working out any care recipient’s unspent home care amount when the approved provider ceases to provide home care to the care recipient.

(2) The notice must be given in a form approved, in writing, by the Secretary.

50 Subsection 22(1) (note)

Omit “from a home care service”, substitute “through a home care service”.

51 Paragraph 23(2)(cba)

Omit “, on or after 27 February 2017,”.

52 Paragraph 23(2)(cc)

Repeal the paragraph, substitute:

(cc) a statement that any care recipient portion or transfer portion of the care recipient’s unspent home care amount will be paid in accordance with Division 3A of this Part;

53 At the end of Division 2 of Part 5

Add:

30 Application of amendments made by Part 2 of Schedule 1 to the Amending Principles

(1) Paragraph 21B(2)(f) (monthly statement of available funds and expenditure to be given to care recipient) of these principles, as inserted by Part 2 of Schedule 1 to the Amending Principles, applies in relation to notices given after this section commences.

(2) Division 3A of Part 3 of these principles, as inserted by Part 2 of Schedule 1 to the Amending Principles, applies in relation to any unspent home care amount of a care recipient if the care recipient is provided with home care on or after the day this section commences.

(3) Paragraph 23(2)(cc) (provisions of home care agreement) of these principles, as inserted by Part 2 of Schedule 1 to the Amending Principles, applies in relation to agreements entered into after this section commences.

31 Transitional provision for exit amounts specified in home care agreements before commencement

If:

(a) before this section commences, an approved provider and a care recipient enter into or vary a home care agreement; and

(b) the agreement as entered into or varied specifies an agreement exit amount; and

then paragraph 21H(2)(a) (exit amount must not be higher than published exit amount) of these principles applies, after this section commences, in relation to the agreement as if the time the agreement first specified the agreement exit amount referred to in paragraph 21H(1)(a) was the start of 27 February 2017.

54 At the end of subclause 1(2) of Schedule 2

Add:

; (f) to choose the approved provider that is to provide home care to him or her, and to have flexibility to change that approved provider if he or she wishes.

55 At the end of subclause 2(3) of Schedule 2

Add:

; (c) before the care recipient changes approved providers, to tell the approved provider and their staff of the day the care recipient intends to cease to receive home care services from the approved provider.