1997

                   THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

                                            HOUSE OF REPRESENTATIVES

AGED CARE (CONSEQUENTIAL PROVISIONS) BILL 1997

EXPLANATORY MEMORANDUM

(Circulated by authority of the Minister for Family Services, the Hon. Mrs Judi Moylan, MP)

88188  Cat. No. 96 7581 7  ISBN 0644 501057

                           AGED CARE (CONSEQUENTIAL PROVISIONS) BILL 1997

OUTLINE

This Bill establishes the transitional provisions and consequential amendments  to allow a smooth transition from the current aged care legislative framework to that proposed under the Aged Care Bill 1997.

The Bill repeals provisions of the National Health Act 1953 and the Aged or Disabled Persons Care Act 1954  that are no longer required, limits sections to the period immediately prior to the commencement of the new Aged Care Bill, and contains transitional provisions for the transfer of a number of  functions from the old legislation to the new. 

The Bill also amends the Social Security Act 1991 and the Veterans' Entitlement Act 1986 to stop the payment of Residential Care Allowance now that this allowance will be paid directly to providers of residential aged care rather than to residents. A range of legislation is amended to take account of the new aged care provisions and change definitions.

FINANCIAL IMPACT

There is no financial impact.

AGED CARE (CONSEQUENTIAL PROVISIONS) BILL 1997

NOTES ON CLAUSES

Chapter 1 - Preliminary

Clause 1   Short title

This clause cites the short title as the Aged Care (Consequential Provisions) Act 1997.

Clause 2   Commencement

This clause provides that subject to this clause the Act will commence immediately after the commencement of the Aged Care Act 1997 (the new Act) (other than Division 1 of that Act). 

Items 58 and 59 of Part 2 of Schedule 3 commence immediately after Part 1 of that Schedule commences.  Item 68 of Part 2 of Schedule 3 commences immediately after Part 3 of that Schedule commences.  Items 79 to 87 of Part 2 of Schedule 4 commence immediately after Part 1 of that Schedule commences.  This provision is purely technical to allow for implementation of amendments that would otherwise conflict.

Subclause 5 provides that Schedule 6 will commence on 1 July 1998.

Clause  3  Definitions

This clause provides definitions of terms used in the Bill.

Clause 4  Identifying terms used in the new Act

This clause specifies that many of the terms used in the Bill are defined in the Dictionary in Schedule 1 of the new Act.

It explains that, throughout the Act, defined terms are identified by an asterisk appearing at the start of the term.  The footnote to the term contains a signpost to the Dictionary.  Later occurrences of terms and those that appear in headings, tables or diagrams are not asterisked.

Clause  5  Schedule(s)

This clause provides the amendment, repeal or other effect of Acts as set out in the Schedule.

Chapter 2 - Transitional provisions relating to Chapter 2 of the Aged Care Act 1997

Part 2.1 - Approved providers

Division 1 - Nursing homes

Clause 6  Applications to be an approved operator

This clause provides for applications for approved operator status under the National Health Act 1953 (the 1953 Act) that the Minister has not made a decision on prior to the commencement day of the new Act to be considered as applications for approved provider status under section 8-2 of that Act.

Clause 7  Approved operators and proprietors

This clause provides for persons to become approved providers under the new Act if, under the 1953 Act, they are approved operators and proprietors immediately before the commencement of the new Act. 

Approved operators and proprietors who will automatically become approved providers under the new Act are those for whom subsidy is, or was, payable and those holding approvals in principle for nursing homes.

There are limitations in sub-clause (2) on the type of aged care service that the person is approved to provide.  For example a person who holds an approval in principle for a nursing home prior to the commencement of the new Act, has approval which is limited to that kind of aged care service under that Act.

Approved operators and proprietors who do not meet the transitional requirements must apply under the new Act to be approved as  providers of aged care.

Approved operators who become approved providers under the new Act, and who are not corporations on the commencement day, are granted exemption from the requirement in the new Act that approved providers be incorporated in relation to the services they currently operate.

Clause 8  Continuation of notice under section 39BB

This clause sets out how notifications of revocations of approval, given under the 1953 Act prior to the commencement day, are to be considered under the new Act.

If the Minister had not made a decision by the commencement day on whether to revoke approval, the original notice under the 1953 Act is to be taken as a notice under the new Act. 

If a person has made a submission by the commencement day in response to the original notice under the 1953 Act, that submission will be considered under the new Act.  If a person has not made a submission by the commencement day, and the commencement day occurred after the time limit for submissions under the previous act, then the person is not considered to have made a submission within the required time under the new Act.  In both cases the Secretary must notify the approved provider in writing  of the decision regarding revocation of approval within 28 days after the new Act commences.

If a person has not made a submission by the commencement day, and the commencement day occurred before the deadline for making submissions was reached, then the time period for making submissions under the new Act applies.

Division 2 - Hostels

Clause 9  Applications to be an approved operator

This clause provides that, if the Minister has not made a decision prior to the commencement day of the new Act on applications for approved operator status made under the Aged or Disabled Persons Care Act 1954 (the 1954 Act), then the applications are to be considered as applications for approved provider status under the new Act.

Clause 10  Approved operators

This clause provides for persons who are approved operators under the 1954 Act immediately before the commencement of the new Act to become approved providers under the new Act.

Approved operators who will automatically become approved providers under the new Act are those for whom subsidy is, or was, payable and those holding approvals in principle for a hostel, including where the approval in principle holder has applied for a transfer of places under the 1954 Act.

Approvals obtained in this way under the new Act will be limited to the type of aged care service that the person was approved to provide under the previous legislation.  For example, a person who was approved to provide a type of residential care under the old legislation will be an approved provider of residential care under the new Act.

All persons who apply to be approved providers after the commencement of the new Act must be incorporated.  However, those whose approval is transferred under this clause from the old to the new legislation are exempted from the requirement to be incorporated under the new Act.  For the services they currently operate, the exemption recognises that approved operators under the previous legislation met the conditions of approval at the time they were approved and ensures they are not disadvantaged by the new legislation.

Clause 11  Continuation of notice under section 10AC

This clause sets out how notifications of revocations of approval made under the 1954 Act are to be considered under the new Act.

If the Minister has not made a decision by the commencement day on whether to revoke an approval, the original notice under the 1954 Act is to be taken as a notice under the new Act. 

If a person who received such a notice has responded to it before commencement day, the response will be considered as a submission under the new Act.  If a person has not made a submission by the commencement day, and the commencement day occurred after the deadline in the original notice, then the person will not be considered to have made a submission within the time required under the new Act.  In both cases, within 28 days after the new Act, the Secretary must notify the approved provider in writing, of the decision regarding revocation of approval.

If a person has not made a submission by the commencement day, and commencement day is less than 14 days after the original notice, then the person has 28 days after the commencement day in which to make a submission under the new Act.

Division 3 - Community aged care services

Clause 12  Applications to be an approved provider of community aged care services

Under this clause if, prior to the commencement day, the Minister has not made a decision under the 1954 Act on an application to be an approved provider of community aged care services, then the application is to be considered under the new Act.

 Clause 13  Approved providers of community aged care services

Under this clause, an approved organisation which is providing community aged care services packages under the 1954 Act immediately before the commencement of the new Act, becomes an approved provider under the new Act.

Approved organisations who become approved providers in this way are those for whom subsidy is, or was, payable and those holding approvals as providers of community aged care services.  The approvals are limited to the type of aged care service that the person was previously approved to provide.

Similar transitional provisions to those in Clause 10 exempt previously approved providers from the requirement under the new Act to be incorporated for the services they currently operate.

Clause 14  Continuation of notice under section 10GD

This clause explains how notifications of revocations of approval made under the 1954 Act prior to the commencement of the new Act are to be considered.

If, by the commencement day, the Minister had not made a decision on whether to revoke an approval,  the original notice under the 1954 Act is to be taken as a notice under the new Act. 

If, by the commencement day, a person has made a submission in response to the original notice, any submission which is made will be considered under the new Act.  If a person has not made a submission by the commencement day, and the commencement day occurred after the deadline for submissions, then the person is not considered to have given a submission within the required time frame of the new Act.  In both cases, within 28 days of the commencement of the new Act, the Secretary must notify the approved provider in writing of the decision regarding revocation of approval.

Where a person has not made a submission by the commencement day, and the commencement day occurs before the deadline for submissions in the original notice, then that person has 28 days after the new Act comes into force in which to make a submission.

Part 2.2 - Allocation of Places

Division 1 - Nursing Homes

Clause 15  Applications for approval in principle of nursing homes 

Under this clause if, by the commencement date of the new Act, the Minister has not made a decision on an application for an Approval in Principle under the 1953 Act, the application is taken to be a valid application under the new Act.

Clause 16  Approvals in principle of nursing homes 

A holder of a certificate of approval in principle that is in force under the 1953  Act immediately before the commencement day of the new Act, is taken to have been allocated a number of places under the new Act equal to the number of beds shown on the certificate.

Under the new Act, the allocation will be subject to the specifications and conditions that were set out in the original certificate.  These conditions must be met before the allocation takes effect.  The approval in principle will remain in force under the new Act (as a provisional approval) until the expiry date on the original certificate.  

For example, if a person holds an Approval in Principle for 40 nursing home beds immediately before the commencement day, the Secretary will be taken to have allocated 40 places for residential care subsidy  to the holder under the new Act.  This allocation will be subject to the same conditions on the original approval.  The allocation continues to be provisional until the conditions are met.

This section does not apply to certificates concerning an alteration or addition to a nursing home where there is no change in the number of  beds.

Clause 17  Application to vary or revoke approvals in principle of nursing homes

If, when the new Act commences, the Minister has not made a decision on an application for a variation of an Approval in Principle under the 1953 Act, the application is taken to be an application for a variation of a provisional allocation under the new Act.  However, if the application is to increase the number of beds it will be taken to be a valid application for an allocation of places under the new Act.

If, when the new Act commences, the Minister has not made a decision on an application for revocation of an Approval in Principle under the 1953 Act, the application will be taken to be a notice surrendering the provisional allocation under the new Act.   

Clause 18  Applications for approval of nursing homes without section 39A or 39B certificates

If, when the new Act commences,  the Minister has not made a decision on an application for the approval of premises as an approved nursing home under the 1953 Act, the application will be taken to be a valid application for an allocation of places under the new Act.  

Clause 19  Applications for approval of nursing homes with section 39A certificates 

If, when the new Act commences, the Minister has not made a decision on an application for the approval of nursing home premises which are the subject of an Approval in Principle certificate under the 1953 Act, the application will be treated as a valid application for the allocation of places under the new Act.  The Secretary may specify the conditions which will apply the allocation.

Clause 20  Approvals of nursing homes

This clause provides that where an approval of premises is in force under the 1953 Act, the Secretary is taken under the new Act to have allocated to the proprietor of the nursing home from the commencement day a number of places equal to the number of beds to which the approval relates. 

The allocation will be in respect of residential care subsidy and will be subject to conditions of the original approval under the 1953 Act.  This includes any determination under subsection 40AA(6AAB) of the 1953 Act, any modification made to those conditions under section 40AAA of the 1953 Act, and any alteration made to those conditions under section 40AD of the 1953 Act.  However, it does not include conditions referred to in paragraphs 40AA(6)(ab), (b), (bc), (bd), (commencement day), (cf), (ck and (cl) of the 1953 Act because they will either no longer be relevant, or will be superseded by corresponding provisions under the new Act.   

In addition to these conditions, the allocation is taken to be subject to further conditions under the new Act requiring the places to be allocated in respect of the location at which the premises are situated and any care provided in respect of the places to be provided at that location. 

The allocation will take effect from the commencement day of the new Act. 

Clause 21  Application for approval in principles of transfers

Under this clause if, by the commencement date of the new Act, the Minister has not made a decision on an application for an Approval in Principle under the 1953 Act, for the transfer of an Approval in Principle, the application is taken to be made under the new Act.

If,  by the commencement day of the new Act, the Minister has not made a decision on an application for an Approval in Principle under the 1953 Act for the transfer of an approval, the application is taken to have been made under the new Act.

The application that has been made in the above two situations is taken to be for a variation of the location of the allocation. 

This clause does not apply if some or all the beds in the nursing home were occupied. 

Clause 22  Approvals in principle of transfers

If an Approval in Principle for the transfer of an Approval in Principle is in force under section 39A of the 1953 Act immediately before the commencement day, the Secretary is taken to have approved a variation of a provisional allocation under the new Act.

If an Approval in Principle under section 39B for the transfer of an approval under section 40AA is in force immediately before the commencement day, the Secretary is taken to have approved a variation of an allocation of places under the new Act.

The variation that is taken to have been approved in the above two situations under the new Act is a variation of the location of the allocation.

Clause 23  Applications to alter conditions of approval of nursing homes

If  the Minister has not made a decision by the commencement day on an application under the 1953 Act for an alteration of the conditions of approval of a nursing home to reduce the number of beds, the application is taken for the purposes of the new Act to be:

.	an application for a transfer of  places , if the application was made in conjunction with an application from another person under section 39A of the 1953 Act; or

.	a notice under the new Act to relinquish places, if the purpose of the application is to return places to the Commonwealth.  

In considering the application under the new Act, the Secretary must consider any limitation that would have applied under subsection 40AD(1CA) or (1CB) of the 1953 Act if the application had been considered under that Act.  

The provisions of the new Act which set out the requirements for relinquishing places and for the care needs of care recipients in such cases, do not apply to the notice or the surrender of places under these transitional provisions.

This section does not apply if some or all of the beds in the nursing home were occupied immediately before the commencement day.  If the applicant wishes to continue the process, an application under the relevant section of the new Act would be required to ensure that the care needs of residents are appropriately met. 

Division 2 - Hostels

Clause 24  Applications for approval in principles of hostels 

Under this clause, if at the commencement of the new Act, the Minister has not made a decision on an application for recurrent subsidy for a hostel under the 1954 Act, the application is taken to be a valid application under the new Act. 

Clause 25  Approvals in principle of hostels

This clause provides that, at the commencement of the new Act, a holder of a certificate of approval in principle under the 1954 Act will be taken to have been allocated a number of places under the new Act equal to the number of beds to which the certificate relates. 

The allocation will be taken to be for residential care subsidy and will be subject to the conditions set out in the original certificate.  These conditions must be met prior to a determination by the Secretary that the allocation takes effect under the new Act.  The provisional allocation will remain in force to the expiry day of the original certificate.  

For example, on the commencement day, if a person holds an Approval in Principle for 40 beds, the Secretary will be taken to have allocated to that person on that day 40 places for residential care subsidy under the new Act.  This allocation will be provisional and will be subject to the conditions in the original Approval in Principle. The conditions must be met before the allocation can take effect.

Clause 26  Applications to vary or revoke approvals in principle of hostels

If, on commencement of the new Act, the Minister has not made a decision on an application for a variation of a certificate of Approval in Principle under the 1954 Act, the application will be taken to have been made for a variation of a provisional allocation under the new Act.   However, if an application is for a variation to increase the number of places available, it will be taken to be an application under the new Act.   

If, by the commencement day,  the Minister had not made a decision on an application under the 1954 Act for a revocation of a certificate of approval, the application will be taken to be a notice surrendering the provisional allocation under the new Act. 

A reference to a certificate of Approval in Principle under this clause includes a certificate issued under the 1954 Act.

Clause 27  Applications for approval of hostels without section 9AB certificates

This clause provides that if, when the new Act commences, the Minister has not made a decision on an application for approval of a hostel for financial assistance by way of recurrent subsidy  under the 1954 Act, the application will be taken to be an application for an allocation of places under the new Act.   No application fee will be payable.

Clause 28  Applications for approval of hostels with section 9AB certificates

This clause provides that if, when the new Act commences, the Minister has not made a decision on an application under the 1954 Act for the approval of a hostel which is the subject of an Approval in Principle certificate, the application will be taken to have been for a determination under the new Act that the places are to take effect.  Under clause 23 of this Bill, the beds to which the Approval in Principle relates will be taken to be an allocation of places under the new Act from the commencement day.

The Secretary may specify in a determination under the new Act the conditions which will apply to the allocation. The Secretary must approve an application if  the conditions specified in the certificate have been met.

Clause 29  Approvals of hostels

This clause provides that if,  when the new Act commences, an approval of premises is in force under the 1954 Act,  the Secretary is taken under the new Act to have allocated to the holder of the approval* a number of places equal to the number of beds to which the approval relates.  This allocation will be for either residential care subsidy or community care subsidy, depending on the type of care for which the approval was given.  The allocation will be subject to all the conditions in the original approval and to additional conditions under the new Act limiting the places and care provided to where the premises are located.   

 *  The holder of the approval is taken to be the person who applied under the 1954 Act.

Clause 30  Application for approval in principle of transfers

Under this clause if, by the commencement date of the new Act, the Minister has not made a decision on an application for an Approval in Principle under the 1954 Act,  for the transfer of an Approval in Principle, the application is taken to be made under the new Act.

If, by the commencement day of the new Act, the Minister has not made a decision on an application for the transfer of approved places, the application is taken to have been made under the new Act.

The application that has been made in the above two situations is taken to be for a variation of the provisional allocation or a variation of an allocation. 

This clause does not apply if some or all the beds in the hostel were occupied. 

Clause 31  Applications for revocation of approvals of hostels

If, when the new Act commences, the Minister has not made a decision on an application for revocation of the approval of a hostel under the 1954 Act, the application is taken for the purposes of the new Act to be:

.	an application for a transfer of  places under the new Act, if the application was made in conjunction with an application from another person under the 1954 Act; or

.	a notice under the new Act relinquishing places, if the purpose of the application was to return places to the Commonwealth.  

The provisions of the new Act which set out the requirements for relinquishing places and for the care needs of care recipients in such cases, do not apply to the notice or the surrender of places under these transitional provisions.
 
This clause does not apply if some or all of the beds in the home were occupied immediately before the commencement day.  If the applicant wishes to continue the process, an application under the relevant section of the new Act would be required to ensure that the care needs of residents are appropriately met. 

Division 3 - Community aged care services

Clause 32  Applications for financial assistance for community aged care services packages

This clause provides that if, when the new Act commences,  the Minister has not made a decision on an application for financial assistance for community aged care services packages under the 1954 Act, the application will be taken to be for places in respect of community care subsidy under the new Act.   No application fee will be payable.

Clause 33  Approvals of financial assistance for community aged care services packages

This clause provides that where, when the new Act commences,  an approval for community aged care services is in force under the 1954 Act, the Secretary will be taken to have allocated to the approved provider under the new Act a number of community care places equal to the number of packages for which the approval was given.   

The allocation will be subject to all the conditions in the original approval and to additional conditions under the new Act limiting the approval and any care provided in respect of the places to a specified location.  The allocation will take effect from the day the new Act commences. 

Clause 34  Applications to revoke approvals of financial assistance for community aged care services packages

If when the new Act commences, the Minister has not made decision on an application for revocation of an approval for community aged care services packages under the 1954 Act, the application will be taken to be a notice under the new Act surrendering the allocation. 

The provisions of the new Act which set out the requirements for relinquishing places and for the care needs of care recipients in such cases, do not apply to the notice or the surrender of places under these transitional provisions.

Part 2.3 - Approval of care recipients 

Division 1 - Nursing homes

Clause 35  Applications for approval for admission to a nursing home 

This clause provides for applications for approval for admission to a nursing home under the 1954 Act to be considered under section the new Act if the Minister has not made a decision on them when the new Act commences. 

Clause 36  Approvals for admission to a nursing home  

This clause is about persons who have been approved for admission to a nursing home before the commencement day. 

Subclause (1) provides that a person with a current approval for admission to a nursing home immediately before the commencement day will be taken to be approved under the new Act as a recipient of residential care.  

Sub-clause (2) specifies that the approval under the new Act lapses if residential care is not provided within the period specified in the approval under the previous legislation.   

Subclause (3) enables the Secretary to specify a classification level under the new Act for a person who was approved for admission to a nursing home under the 1953 Act.

Subclause (4) provides for a classification level determined under subclause (3) to be limited to a corresponding level of care (either high or low) under the new Act.

Subclause (5) provides for any limitation on an approval under the 1953 Act to be imposed under the new Act provided there is a corresponding provision.  Examples would include approvals for a limited period of time. 

Clause 37  Admission to a nursing home prior to approval 

This clause is about people admitted to a nursing home before the commencement day who were not approved under the previous legislation.  Provided the person urgently needed the care when admitted, the Secretary can approve the person as a care recipient under the new Act from the date they were admitted.

Division 2 - Hostels 

Clause 38  Eligible persons 

This clause provides for an eligible person who was an approved hostel resident under the 1954 Act to be an approved residential care recipient under the new Act.

A person who meets the definition of an eligible person under the previous legislation and who is being provided with respite care through a residential care service on the commencement day, is taken under the new Act to have an approval limited to respite care.  The period of the approval is the period for which the respite care is provided.

In both cases, the person's approval lapses if residential care is not provided within the period specified in the original approval.   

If the Approval of Care Recipients Principles made under the new Act specify a classification level that applies to approvals provided for in sub-clause 35(1), each of the approvals will be taken to be limited to a level of care corresponding to that classification level.  

Division 3 - Community aged care services

Clause 39 Eligible persons

This clause provides that a person who was approved under the previous legislation as an eligible person to receive a community aged care package, and whose approval is current immediately before the commencement day, is approved as a recipient of community care under the new Act.  The approval is subject to any limitations specified in the original approval and lapses if community care is not provided within the period specified in the original approval.

Part 2.4 - Classification of care recipients 

Division 1 - Nursing homes 

Clause 40  Continuation of classifications under 1953 Act   

This clause enables care classifications of nursing home patients which were current immediately before commencement day to continue in force under the new Act until they expire.

Clause 41  Person admitted to nursing home before commencement day but no    classification in force on that day 

This clause extends beyond the commencement day of the new Act the provisions relating to the classification of nursing home patients in the 1953 Act for persons admitted to nursing homes before commencement day who have not been classified on that day, or for whom a proprietor has not applied for a classification by then.   The classifications when determined will remain in force under the conditions, and for the period provided for, in the 1953 Act and in the principles relating to the classification of patients made under that Act.  

A proprietor who has not applied for classification of such a person prior to commencement day may apply for their classification within 3 months of commencement day.  The application and the classification will be subject to the provisions in the 1953 Act.  If no application is made within that period, the Secretary is taken to have made a determination under the 1953 Act giving the person the lowest classification.

Clause 42  Undecided section 40AFD applications - classification to expire after 	       commencement day 

This clause deals with applications for further classifications of nursing home patients under the 1953 Act which were made before the commencement day to replace a classification which was due to expire on or after the commencement day, but which had not been decided before commencement day.  The application will be treated as an appraisal by an approved provider under the new Act as if it were received by the Secretary on the commencement day.

Clause 43  Review by Secretary 

Sub-clause (1) preserves after commencement day the provisions of the 1953 Act which enable the Secretary to review the classification of a nursing home patient. This will enable the Secretary, after commencement day, to review the classification of a nursing home patient determined before commencement day. 

Sub-clause (2) specifies that where, after the commencement day, the Secretary revokes a classification following such a review, and substitutes another classification, the substituted classification ceases to have effect on the day on which the original classification would have ceased to have effect, if it had not been revoked.

Clause 44  Appeals to Minister

Sub-clause (1) preserves the provisions of the 1953 Act so that, after commencement day,  a person who was a nursing home proprietor under the 1953 Act can appeal to the Minister for a review of a classification determined by the Secretary which resulted in a new classification replacing the one based on the proprietor's assessment of the patient's care needs.   

Sub-clause (2) applies when the Minister, after commencement day, decides to revoke a classification after an appeal from a proprietor and substitutes another in its place.  The substituted classification will cease to have effect on the day on which the original classification would have expired.

Clause 45  Certain suspension conditions taken to be satisfied 

This clause deals with cases where before commencement day, under the 1953 Act, the Minister has suspended a nursing home proprietor from classifying patients.  Suspensions can only be made because, in a substantial number of cases, the Secretary has revoked the classifications of patients after reviewing them and substituted lower classifications for them because they were based on inaccurate information given by the proprietor.  

In these cases, the provisions of the new Act enabling approved providers to be suspended from making appraisals will apply to the proprietor beginning on the commencement day.

Clause 46  Suspensions under 1953 Act from making classifications to continue under new Act

Sub-clause (1) deals with a case where the Secretary has nominated a person or body to make applications for classifications of nursing home patients in place of the proprietor who has been suspended from making classifications of patients.  If such an arrangement is in force immediately before commencement day, then the Secretary is to be taken to have suspended the proprietor from making appraisals under the new Act and to have authorised the nominated person or body to make the appraisals in place of the approved provider.

Sub-clause (2) specifies that the suspension under the new Act takes effect from the commencement day and ceases to have effect at the end of the period specified in the decision made under the 1953 Act, or from the date the decision is set aside by the Minister under the provisions of the 1953 Act.

Clause 47  Review of determinations 

This clause preserves after commencement day the provisions of the 1953 Act enabling a proprietor to appeal to the Minister against a review of a classification of a nursing home patient by the Secretary under the provisions of the 1953 Act. 

Clause 48  Effect of certain determinations 

This clause preserves after commencement day the provisions of the 1953 Act which prevent a proprietor who has been suspended from applying for a classification from doing so, while the decision imposing the suspension is still in force.

Division 2 - Hostels

Clause 49  Classifications under 1954 Act that were in force immediately before 	        commencement day  

Sub-clause (1) provides for classifications made under the 1954 Act which are in force immediately before the commencement day to remain in effect for the period for which the classification was approved.  Similarly, a re-classification of a person whose previous classification expired before commencement day, but who is not re-classified until after commencement day, will be made under the provisions of the 1954 Act. 

Clause 50  Person admitted to hostel before commencement day but no classification in force on that day 

Sub-clause (1) provides that if a person began occupying a hostel place before the commencement day, but had not been classified on that day,  the provisions relating to classifications in the 1954 Act (including relevant instruments under that Act) continue to apply as if they had not been repealed.

Sub-clause (2) specifies that a person is taken to be classified under the 1954 Act if:

(a)	the General Conditions under the 1954 Act require the organisation which provides hostel care to take action for the person to be classified; and

(b)	the organisation had not, at commencement day, taken all those steps;  and

(c)	the organisation takes those steps in respect of the person within 3 months of commencement day.

Part 2.5 - Extra Service Places

Clause 51   Applications for exempt bed status

This clause provides that, where the Minister has not made a decision before commencement day on an application for exempt status  made under the 1953 Act, the application will be considered under the new Act both for extra service status and for the approval of extra service fees.  

The amounts specified in the application are taken to be the provider's extra service fees under the new Act.

Clause 52  Exempt bed status

If,  immediately before the commencement day, a certificate is in force under the 1953 Act granting exempt status to beds in a nursing home, the Secretary is taken to have granted extra service status in respect of the service under the new Act. 

The extra service status will be subject to any conditions:

.	set out in the new Act and in the Extra Service Principles made under the Act;
.	to which the exempt status was subject under the 1953 Act.

The terms and conditions will be taken to have been set out in a notice under the new Act.

If extra service status is taken to be granted under this clause, for the purposes of the new Act its expiry date will be taken to be the day after the end of the exempt status period.  The exempt status period is the period from the commencement day equal to:

(a)	if only one period is specified in the approval certificate - the amount of that period remaining from the commencement day. 
(b)	if more than one period is specified in the certificate and no agreement has been entered into under this clause - the amount of time remaining from the commencement day to the end of whichever period expires first.

If the certificate of approval specifies more than one period, the Secretary and the approved provider may enter into an agreement under this section.  The intent of the agreement would be to allow places to continue as extra service places and be treated as a distinct part of the service for the remaining period of the approval.  The agreement would relate to periods of approval which continue after the first period of approval expires. 

For example, a certificate may specify different periods of approval of exempt status  for different beds in the nursing home.  The exempt status of 10 beds may expire on 
1 January 2003, 5 beds on 7 February 2004 and 15 beds on 10 September 2005. Under this subclause the Secretary and the proprietor may strike an agreement relating to the second and third sets of approvals.  This agreement would allow the second and subsequent sets of approvals to continue and to be treated as distinct parts, notwithstanding the requirements of the new Act.

The proprietor may apply to renew the extra service status of places which are treated as a distinct part. The proprietor would then be required to meet the requirements of the new Act relating to the distinct parts.

Any reference throughout this clause to a certificate being in force includes a certificate that has been granted for periods that have not yet commenced, and which has not lapsed or otherwise been revoked.

Clause 53  Applications to revoke exempt bed status

If, prior to the commencement day,  the Minister has not revoked a certificate of exempt status in response to an application under the 1953 Act for its revocation, the application is taken to be a written request under the new Act for the revocation of extra service status.

The day on which the Secretary received an application under the 1953 Act will be taken to be the day on which the request was received by the Minister under the new Act.

Clause 54  Applications to extend exempt bed status

If, prior to the commencement day,  the Minister has not granted an extension of exempt bed status under the 1953 Act, in response to a written request from a nursing home proprietor, the request will be taken to be an application under the new Act.

Clause 55  Extensions of exempt bed status

If, immediately before the commencement day, a grant of exempt bed status under the 1953 Act was in force, the Secretary is taken to have determined under the new Act that the place is an extra service place, from the commencement day to the last day on which the person occupying the bed immediately before the commencement day, is provided with residential care in respect of the place.

Clause 56  Additional exempt bed fees

If, immediately before the commencement day, a certificate for exempt status is in force under the 1953 Act, the Secretary is taken to have approved extra service fees for the places under the new Act corresponding to those beds.  The amount of the extra service fees is taken to be equal to the amount of the additional exempt beds fees relating to those beds.

If an application is made at a later date under the new Act for approval of extra service fees for any of those places and, the Secretary has not previously approved extra services fees for the places, the reference in the new Act to the last approval is a reference to either:

.	the last day on which a change in the fees relating to those beds took effect under the 1953 Act; or
.	if there has never been a change in the fees relating to those beds - the day on which exempt bed status granted under section the 1953 Act took effect.

Clause 57  Requests for approval of redeterminations of additional exempt bed fees

If, prior to the commencement day,  the Secretary has not made a decision on a request made under the 1953 Act for approval of a redetermination of an additional exempt bed fee, the application is taken to be an application for approval of an extra service fee for the corresponding places under the new Act.

The proposed redetermination of the fee under the 1953 Act is taken to be the extra service fee proposed in the application under the new Act.

Clause 58  Patients occupying exempt beds

This clause sets out how paragraph 36-1(1)(b) of the new Act relates to:

.	care recipients who were exempt patients immediately before the commencement day; and
.	care recipients who had elected to be exempt patients, but who were not yet exempt patients,  immediately before the commencement day.

For the former category, paragraph 36-1 (1)(b) will not apply.  For the latter category:

.	this category of person is taken to be an exempt patient immediately before the commencement day; and
.	paragraph 36-1(1)(b) will apply.	

Part 2.6 - Certification of residential care services

A note states that there are no provisions in relation to Part 2.6 of the new Act.

Chapter 3 - Transitional provisions relating to Chapter 3 of the Aged Care Act 1997

Part 3.1 - Residential care subsidy

Clause 59  Eligibility for residential care subsidy for the day provision of residential care stops

The purpose of this clause is to ensure nursing home proprietors do not lose a day's funding because of the payment arrangements under the new Act.  Under the 1953 Act, one day of Commonwealth benefit is payable in respect of a nursing home patient to cover the day of entry and the day of departure.  In practice, the benefit is paid for the day of departure but not for the day of entry.  

The 1954 Act provides for the subsidy for hostel residents to be paid in full for the day of entry, but not for the day of departure.  The new Act aligns the payment of subsidy for residential care recipients with the payment arrangements for hostel residents by providing that subsidy for a care recipient is not payable on the day the approved provider ceased providing residential care.

This clause ensures there is no disadvantage to former nursing home proprietors by providing for payment of subsidy to be made for the day of entry of a residential care recipient patient, who was in a nursing home immediately prior to the commencement day of the new Act, and continues to receive residential care from the commencement day.  

Clause 60  Additional amounts in respect of staffing and related costs

This is a grand parenting clause which provides that the Minister may specify in writing additional amounts payable in respect of residential care services.

It is intended that these additional amounts will be payable, after the commencement day, where a service has exceptional costs for superannuation, long service leave and workers' compensation.  These payments will be time limited and the number of services to be eligible for the additional payments will progressively be reduced.

Clause 61  Overpayments and underpayments of Commonwealth benefit 

This clause provides that adjustments may be made to advances of subsidies under the new Act after likely and actual overpayments or underpayments of Commonwealth nursing home benefit have been identified for periods prior to the commencement day. 

Definitions for approved nursing home, Commonwealth benefit, overpayment and underpayment are included. 

Clause 62  Nasogastric feeding

This clause provides that a person is entitled to an enteral feeding supplement under the new Act if, on the day prior to the commencement day, the person was a patient in an approved nursing home and the proprietor of the nursing home was eligible for payment of a benefit for the provision of nasogastric feeding in respect of that person.

Clause 63  Eligible oxygen treatment

This clause provides that a person is entitled to an oxygen supplement under the new Act if, on the day prior to the commencement day, the person was a patient in an approved nursing home and the proprietor of the nursing home was eligible for payment of a benefit for the provision of oxygen to that person.

Clause 64  Extra service reductions for exempt residents

This clause deals with the amount of extra service reduction to be made under the new Act where, prior to the commencement day, a person was an exempt patient in a nursing home, or had elected to be an exempt patient, and, after the commencement day, that person was provided with extra service residential care through a corresponding residential care service.  If the person was an exempt patient, the amount of extra service reduction is equal to the proportion of the additional exempt bed fee which was taken into account in reducing the Commonwealth benefit prior to the commencement day.  Similarly, if the person had elected to become an exempt patient, but had not yet become exempt, the proportion of the additional exempt bed fee that would have been taken into account is used.

If, after the commencement day, a person who was provided with care on an extra service basis ceases to receive this kind of care, then this section does not apply to any subsequent  days of residential care.

Clause 65  Compensation payable to nursing home patient

This clause provides that if, immediately prior to the commencement day, a determination is in force under the 1953 Act reducing the amount of Commonwealth benefit payable for a nursing home patient because that person had received a compensation settlement, a corresponding compensation reduction will be made to the care subsidy which is payable under the new Act. 

Clause 66  Daily income tested reduction for exempt residents taken to be zero

This clause provides that, if on the day prior to the commencement day, a person was an exempt patient in a nursing home, or had elected to be an exempt patient but had not yet become one, and that person was provided with residential care through a corresponding residential care service after the commencement day, then the daily income tested reduction for that person will be zero. 

If, after the commencement day, the person leaves the residential care service or ceases to be provided with extra service care in that service, this section does not apply for any subsequent days.

Clause 67  Determinations under section 5 of the Aged Care Income Testing Act 1997

This clause provides that if, immediately prior to the commencement day, a determination under the Aged Care Income Testing Act 1997 was in force, that determination will be taken to be a determination under the new Act beginning on the commencement day .

Part 3.2 - Community care subsidy

A note states that there are no transitional provisions in relation to Part 3.2 of the new Act.

Part 3.3 - Flexible care subsidy

A note states that there are no transitional provisions in relation to Part 3.3 of the new Act.

Chapter 4 - Transitional provisions relating to Chapter 4 of the Aged Care Act 1997

Part 4.1 - Quality of care

A note states that there are no transitional provisions in relation to Part 4.1 of the new Act.

Part 4.2 - User rights

Division 1 - Nursing homes

Clause 68  Extra service amounts for exempt residents

This clause means that a nursing home patient, who has exempt status on the day  before the commencement day, and who is in a service providing extra services after then, will continue to pay the approved additional exempt bed fee under the 1953 Act rather than an extra service amount under the new Act.   Similarly, if a person had elected to be an exempt patient, but had not yet become one by commencement day, they would pay the relevant additional exempt bed fee as set out under the 1953 Act from commencement day.

Clause 69  Agreements between nursing home proprietors and residents

This clause provides that where an agreement was in force immediately before the commencement day, the agreement is taken to be a resident agreement under the new Act.

Division 2 - Hostels

Clause 70  Variable hostel fees

Subclause 1

This subclause is intended as a grand parenting arrangement for residents who occupied a hostel place under the 1954 Act on the day before commencement of the new Act, and who were paying higher hostel variable fees than will apply to them if they continue to occupy the same place in a residential care service after the commencement day.    

For these care recipients, the maximum fee after commencement day will be the interim hostel fee defined in subclause (2), rather than the maximum fee under the new Act.   As soon as one of these care recipient's interim hostel fee drops to the level of the maximum fee under the new Act, the rules relating to fees under the new Act will apply to them.

Subclause 2 

This subclause defines the interim hostel fee.  It is the maximum fee payable on the day before commencement of the new Act, as permitted by the General Conditions under Section 10F of the 1954 Act, less any residential care allowance amount  for the resident on that day.  

This interim hostel fee cannot rise.  However, if the resident's income falls, the resident can seek a review of fees.  The interim hostel fee for the resident will then be reduced to reflect the drop in income.  The reduction will be the difference between the income on the day before commencement day (less any residential care allowance amount payable to the person on that day) and the new daily income, as agreed between the care recipient and the residential care provider.

Subclause 3 

This subclause defines the residential care allowance amount used in subclause (2).  It is the rate of allowance paid to a resident who was receiving an income support payment for the day before commencement of the new Act.

Subclause 4

This subclause defines income as used in subclause (2).  Income excludes income tax and the Medicare levy.

Clause 71  Formal agreements between hostel operators and residents

Subclause 1 

This subclause provides that a formal agreement which, on the day before the commencement day, was in force under the 1954 Act between a hostel operator and a resident, is taken to be a resident agreement under the new Act from the commencement day.

Subclause 2

This subclause provides for situations where a level of hostel variable fees under the 1954 Act is set by a formal agreement.  If the maximum fee payable under the new Act is higher than the variable fees, this subclause ensures that the resident's maximum fee cannot be higher than the fee set in the formal agreement.

Subclause 3

This subclause provides that where, before the commencement day, an entry contribution has been paid or has been agreed to be paid by a hostel resident in a formal agreement, the provisions relating to entry contributions in the General Conditions under Section 10F of the 1954 Act continue to apply.  Conversely, the provisions of the new Act relating to accommodation bonds do not apply.

Subclause 4

This subclause provides for an exception to subclause (3) and applies where a hostel resident has paid, or agreed to pay, an entry contribution before the commencement of the new Act. If, on or after the commencement day, the resident transfers to another residential care service within 28 days of leaving the former hostel,  the amount of the entry contribution refunded is the maximum amount of accommodation bond which can be paid to the second residential care service.  The timing rules applying to the refund of the entry contribution are those applying to refunds of accommodation bond balances where care recipients transfer to another service under the new Act.

Subclause 5

This subclause provides for calculating periods for which retention amounts have been retained from an entry contribution, in cases where a resident transfers to another residential care service.  In these instances, where a hostel resident has a formal agreement relating to payment of an entry contribution, all periods for which retention amounts have been retained by the hostel operator from that entry contribution - both before and after the commencement day of the new Act - are taken to be months for which retention amounts have been retained from an accommodation bond.  The purpose of this section is to calculate any remaining period for which retention amounts can be retained by the second residential care service.

Division 3 - Community aged care services

Clause 72  Formal agreements between hostel operators and residents

Subclause 1 

This subclause provides that a formal agreement which, on the day before the commencement day, was in force under the 1954 Act between an approved provider and an eligible person, is taken to be a community care agreement under the new Act from the commencement day.

Subclause 2

This subclause provides for situations where the amount of the community care fee charged under the 1954 Act is set by a formal agreement.  If the maximum fee payable under the new Act is higher than the community care fee, this subclause ensures that the resident's maximum fee cannot be higher than the fee set in the formal agreement.

Part 4.3 - Accountability

Clause 73  Direction to appoint nursing home advisor

This clause provides that if, immediately prior to the commencement day, a direction to a proprietor to appoint a nursing home advisor was in force, then that direction continues to apply under the new Act.  The responsibilities of the approved provider are taken to include compliance with this direction.

Part 4.4 - Consequences of non-compliance

Division 1 - Nursing homes

Clause 74  Declarations of non-compliance with standards

This clause provides that if, on the day immediately prior to the commencement day of the new Act, a declaration that a nursing home does not satisfy the nursing home standards was in force under the 1953 Act,  the declaration is taken to be a notice of non-compliance under the new Act.  The approved provider is taken not to have made any submissions in response to a  notice of non-compliance under the new Act.

Clause 75  Determinations that Commonwealth benefit payable is not payable 

This clause provides that if, on the day immediately prior to the commencement day of the new Act,  a determination was in force under the 1953 Act for non-compliance with standards, then that determination is taken to be a notice of a sanction imposed under section 66-1(c)(ii) of the new Act.   A determination under the 1953 Act means that, while the determination is in force, Commonwealth benefit is not payable for patients entering a nursing home after the date of the determination. 

The sanction period under the new Act begins on the commencement day and ends on the day the Secretary lifts the sanction.

Clause 76  Suspensions of exempt bed status

This clause provides that where, prior to the commencement day, a suspension of exempt bed status for a nursing home was in force then, under the new Act, a similar suspension is in force after the commencement day for the provision of care on an extra service basis. The sanction period begins on the commencement day and ends on the day the Secretary lifts the sanction.

Clause 77  Declarations of non-compliance with conditions

This clause provides that if, on the day immediately prior to the commencement day of the new Act, a declaration that a nursing home does not satisfy the nursing home standards was in force under the 1953 Act, that declaration is taken to be a notice of non-compliance under the new Act.  The approved provider is taken not to have made any submissions in response to the notice of non-compliance.

Clause 78  Determinations that Commonwealth benefit is not payable

This clause provides that if, on the day immediately prior to the commencement day of the new Act, a determination was in force under the 1953 Act that, because of non-compliance with conditions, Commonwealth benefit is not payable for patients entering a nursing home after the making of the determination, then the determination is taken to be a notice of a sanction imposed under the new Act. 

Division 2 - Hostels

Clause 79  Declarations of failure to meet standards

This clause provides that if, on the day immediately prior to the commencement day of the new Act, a declaration of failure to meet standards was in force under the 1954 Act, then that declaration is taken to be a notice of non-compliance under the new Act. The approved provider will be taken not to have made any submissions in response to the notice.

Clause 80  Suspensions of approvals of financial assistance

This clause provides that, where prior to the commencement day, a determination was in force suspending the approval of a hostel for financial assistance by way of recurrent subsidy, then that determination is taken to be a sanction under the new Act after the commencement day. The sanction suspends the allocation of places to the approved provider.  It begins on the commencement day and ends on the day the Secretary lifts it.

Clause 81  Variations of agreements

This clause provides that where, prior to the commencement day, a determination was in force varying an agreement between a hostel operator and the Minister, then the determination is taken to be a sanction under the new Act after the commencement day. 

If the variation of the agreement reduced the number of beds, then the number of places allocated to the provider under the new Act is reduced by the same number.  If the variation of the agreement reduced the number of respite care places, then the proportion of care to be provided as respite care is reduced by the corresponding amount.

Where the variation of the agreement was to the classes of,  or  proportion of, eligible persons to be accommodated, then a corresponding variation is taken to be made to the conditions of the allocation of places to the approved provider.

Chapter 5 - Transitional provisions relating to Chapter 5 of the Aged Care Act 1997

Part 5.1 - Residential care grants

Clause 82 Applications for capital grants

This clause provides that if, on the commencement day, the Minister has not made a decision on an application for a capital grant for a nursing home or hostel, the application is taken to have been made under the new Act.  The clause waives the requirement under the new Act that the application must comply with the terms of a published invitation.

Where the application has been made in respect of a hostel and an approval in principle certificate was in force on the commencement day, the Secretary must allocate a residential care grant if the applicant has met all the conditions of the approval in principle. 

Clause 83  Variation of certificates (approvals in principle)

This clause provides for a variation of a an approval in principle, which was in force on the commencement day under the 1954 Act, to continue to be in force under the original conditions on and after the commencement day.

Part 5.2 - Community care grants

A note states that there are no provisions in relation to Part 5.2 of the new Act.

Part 5.3 - Assessment grants

A note states that there are no provisions in relation to Part 5.3 of the new Act.

Part 5.4 - Accreditation grants

A note states that there are no provisions in relation to Part 5.4 of the new Act.

Part 5.5 - Advocacy grants

A note states that there are no provisions in relation to Part 5.5 of the new Act.

Part 5.6 - Community visitors grants

A note states that there are no provisions in relation to Part 5.6 of the new Act.

Part 5.7 - Other grants

A note states that there are no provisions in relation to Part 5.7 of the new Act.

Chapter 6 - Transitional provisions relating to Chapter 6 of the Aged Care Act 1997

Part 6.1 - Review of decisions

Clause 84  Reconsiderations of determinations under section 5 of the Aged Care Income Testing Act 1997

This clause provides that if, at the commencement day, the Secretary has not made a decision on a determination made under section 5 of the Aged Care Income Testing Act 1997 which the Secretary had been considering before the commencement day, the reconsideration will be taken to be a reconsideration under the new Act.

Clause 85  Applications under section 11 of the Aged Care Income Testing Act 1997 for reconsideration of determinations under section 5 of that Act

This clause provides that if, at the commencement day, the Secretary is still reconsidering a determination made under section 5 of that Act following an application to do so, the reconsideration will be taken to be a reconsideration under the new Act.

Clause 86  AAT review of decisions relating to determinations under section 5 of the Aged Care Income Testing Act 1997

This clause provides that where a person applied to the Administrative Appeals Tribunal under the Aged Care Income Testing Act 1997  for a review of a decision prior to the commencement day and that review had not been heard before the commencement day, then that application is taken to have been made under the new Act. 

Part 6.2 - Protection of information

Clause 87  Protected information

This clause provides that prior to the commencement day , if information was protected within the meaning of section 15 of the Aged Care Income Testing Act 1997, then after the commencement day that information is taken to be protected under them new Act.

Part 6.3 - Record keeping

A note states that there are no provisions in relation to Part 6.3 of the new Act.

Part 6.4 - Powers of officers

A note states that there are no provisions in relation to Part 6.4 of the new Act.

Part 6.5 - Recovery of overpayments

A note states that there are no provisions in relation to Part 6.5 of the new Act.

Chapter 7 - Miscellaneous

A note states that there are no provisions in relation to Chapter 7 of the new Act.
Schedule 1 - Amendment of the National Health Act 1953

Item 1  Subsection 4(1) (definition of approved)

This item omits the meaning of “approved” and  substitutes the meaning given in Item 2 of this Schedule.

Item 2  After subsection 4(1A)

This item provides that a reference in the 1953 Act to a nursing home being approved is a reference to an approval having been in force immediately prior the commencement day of the new Act.

Item 3  Section 4AAAA

This item repeals this section.

Item 4  Section 39 (definition of approved operator)

This item limits the definition of an approved operator to the definition being in force immediately prior to the commencement day of the new Act.

Item 5  Section 39 (definition of Charter)

This item repeals this definition.

Item 6  Sections 39AAA to 39BB

This item repeals these sections.

Item 7  Subsections 40AA(1) to (5)

This item repeals these subsections and inserts a subsection which provides that this section only applies to Government nursing homes on or after the commencement day of the new Act. 

Item 8  Paragraph 40AA(6)(a)

This item removes the references to “alterations” and “additions” from the paragraph.

Item 9  Paragraphs 40AA(6)(ab), (bc), (bd), (c), (ca), (ch) and (cl)

This item repeals these paragraphs.

Item 10  Subsections 40AA(6A) and (6C)

This item repeals these subsections.

Item 11  Paragraph 40AA(7)(a)

This item repeals the paragraph.

Item 12  Section 40AAA

This item repeals this section.

Item 13  Subsections 40AB(1) and (3)

This item omits reference to “an approved nursing home” and substitutes “a Government nursing home”.

Item 14  Subsection 40AB(3B)

This item omits references to “nursing home” and substitutes “Government nursing home”.

Item 15  Subsection 40AB(4AA)

This item omits the first occurring reference to “ nursing home” and substitutes “Government nursing home”.

Item 16  Subsections 40AB(4A), (5) and (5A)

This item omits reference to “approved nursing home” and substitutes “a Government nursing home”.

Item 17  Section 40ABB

This item repeals this section. 

Item 18  Subsection 40AC(1)

This item omits reference to “approved nursing home” and substitutes “Government nursing home”.

Item 19  Sections 40AD and 40ADB

This item repeals these sections.

Item 20  After subsection 40AE(1)

This item provides that if the Secretary makes a determination under subsection 46E(1) relating to an approved nursing home, the proprietor of the home may request the Minister to review the Secretary's decision.

Item 21  At the end of section 40AE

This item provides that a review by the Secretary of a decision made under this section is not affected by the repeal of the section applying to the alteration of conditions applicable to a nursing home.

Item 22  Section 40AEA

This item omits the reference to subsections “40AE(1) or (2)' and inserts 40AE(1), (1A) or (2).  

Item 23  Paragraph 40AEB(1)(a)

This item omits the reference to subsections “40AE(1) or (2)' and inserts 40AE(1), (1A) or (2).  

Item 24  Subsection 40AEC(1)

This item omits the reference to subsections “40AE(1) or (2)' and inserts 40AE(1), (1A) or (2).  

Item 25  Paragraph 40AEG(1)(a)

This item omits the reference to subsections “40AE(1) or (2)' and inserts 40AE(1), (1A) or (2).  

Item 26  Paragraph 40AEH(3)(a)

This item omits the reference to subsections “40AE(1) or (2)' and inserts 40AE(1), (1A) or (2).  

Item 27  Sections 40AFA to 40AFJ

This item repeals these sections. 

Item 28  At the end of section 40AG

This item limits determinations made under this section to periods prior to the commencement day of the Aged Care Act 1997.

Item  29  At the end of section 40AGA

This item limits determinations made under this section to periods prior to the commencement day of the Aged Care Act 1997.

Item 30  At the end of section 40AH

This item limits determinations made under this section to periods prior to the commencement day of the Aged Care Act 1997.

Item 31  Section 44A

This item repeals this section.

Item 32  At the end of section 45DA

This item provides that the Minister must not publish a statement under this section which contains information relating to periods after the commencement day of the Aged Care Act 1997.

Item 33  At the end of section 45DC

This item provides that the Minister must not publish a statement under this section which contains information relating to periods after the commencement day of the Aged Care Act 1997.

Item 34  Sections 45E, 45EA, 45EB and 45F

This item repeals these sections. 

Item 35  At the end of section 46C

This item provides that an accounting period cannot end on or after the commencement day.

Item 36  At the end of section 47A

This item provides that this section does not apply in respect of a day on or after the commencement day of the new Act.

Item 37  At the end of section 48A

This item provides that this section does not apply in respect of a day on or after the commencement day of the new Act.

Item 38  At the end of section 48AB
 
This item provides that this section does not apply in respect of a day on or after the commencement day of the new Act.

Item 39  At the end of section 48B

This item provides that this section does not apply in respect of a day on or after the commencement day of the new Act.

Item 40  At the end of section 48C

This item provides that this section does not apply in respect of a day on or after the commencement day of the new Act.

Item 41  At the end of section 48D

This item provides that this section does not apply in respect of a day on or after the commencement day of the new Act.

Item 42  At the end of section 48E

This item provides that this section does not apply in respect of a day on or after the commencement day of the new Act.

Item 43  At the end of section 49AA

This item provides that regulations made in respect of respite care cannot be made after the commencement day of the new Act.

Item 44  Section 52 (definition of AIP)

This item amends the definition of an AIP to refer to an AIP granted before the commencement of the new Act.

Item 45  Sections 52A, 52B and 52C

This item repeals these sections. 

Item 46  At the end of section 56 

This item provides that where a nursing home proprietor was receiving Commonwealth benefit prior to the commencement day, and that service is granted extra service status or is certified after the commencement day, then the Commonwealth benefit ceases to be payable.

If only part of the service is granted extra service status then the amount by which the Commonwealth benefit is reduced is pro rated by the number of extra service places compared to the total number of places in the service.

Item 47  Subsections 57(1) and (2)

This item repeals these subsections. 

Item 48  Section 58 (definition of AIP)

This item amends the definition of an AIP to refer to an AIP granted before the commencement of the new Act.

Item 49  Sections 58B, 58C  and 58CA

This item repeals these sections.

Item 50  Subsection 58CE(2)

This item amends the subsection by limiting it to being in force prior to the commencement day of the new Act.

Item 51  At the end of section 58CF 

This item provides that where a nursing home proprietor was receiving Commonwealth benefit prior to the commencement day and, after the commencement day, that service is granted extra service status or is certified, then the Commonwealth benefit ceases to be payable.

If only part of the service is granted extra service status then the amount by which the Commonwealth benefit is reduced is pro rated by the number of extra service places compared to the total number of places in the service.

Item 52  Subsections 58CG(1) and (2)

This item repeals these subsections.

Item 53  Paragraph 58E(3)(a)

This item replaces “approved nursing home” with “Government nursing home “.

Item 54  Section 60A

This item repeals the section.

Item 55  After subsection 64(2)

This item provides that Part VD of the 1953 Act will only apply where notional scale of fees have not been set for any accounting period prior to commencement day or the proprietor of the nursing home has overpayments outstanding.  Definitions of an accounting period,  a final accounting period and a notional scale of fees are also provided. 

Item 56  Subsection 65(1)

This item provides a definition of “investigation period”.

Item 57  Subsection 65C(1)

This item inserts “Subject to section 65GAA , if” at the beginning of the subsection.

Item 58  Subsection 65F(1)

This item inserts “Subject to section 65GAA , if” at the beginning of the subsection.

Item 59  Subsection 65G(3)

This item inserts “Subject to section 65GAA , the Secretary” at the beginning of the subsection.

Item 60  After section 65G

This item inserts a new section 65GAA which specifies that: 

.	if a sale date is after the commencement day, the investigation period ends 				immediately before that commencement;  and

.	an investigation cannot be carried out in respect of a period after commencement day; 		and 

.	if an investigation is ordered after commencement day the first investigation period ends 		on 30 June 1996, and the second investigation period commences on 1 July 1996.

Item 61  At the end of section 105AAB

This item provides that a review under this section by the Minister of a decision is not affected by the repeal of various sections of this Act by this Bill.

Item 62  Schedules 2 and 3

This item repeal the schedules. 

Schedule 2 - Amendment of the Aged or Disabled Persons Care Act 1954

Item 1  Subsection 2(1)(definition of approved)

This item amends the definition of approved to have the meaning provided in clause 8 of this Schedule.

Item  2  Subsection 2(1) (definition of approved operator)

This item amends the definition of approved operator to provide that the approval is an approval in place immediately before the commencement of the Aged Care Act 1997 (other than Division 1 of that Act), in force”.

Item  3  Subsection 2(1) (definition of approved provider)

This item amends the definition of approved provider to an approval in place immediately before the commencement of the Aged Care Act 1997 (other than Division 1 of that Act), in force”.

Item 4  Subsection 2(1) (definition of Charter)

This item repeals the definition of Charter.

Item 5  Subsection 2(1) (at the end of the definition of General Conditions)

This item provides that this definition refers to the General Conditions that were in force immediately before the commencement day of the Aged Care Act 1997. 

Item 6  Subsection 2(1) (definition of hostel care services)

This item provides that the definition is the definition that was in force immediately before the commencement day of the Aged Care Act 1997. 

Item 7  Subsection 2(1) (definition of personal care services)

This item provides that the definition is the definition that was in force immediately before the commencement day of the Aged Care Act 1997. 

Item  8  After subsection 2(1)

This item creates a new section to be included after subsection 2(1) which states that a reference to a hostel being approved is a reference to an approval having been in force, or deemed to be in force, under section 10B, in respect of the hostel, immediately before the commencement of the Aged Care Act 1997 (other then Division 1 of that Act).”

Item 9  Subsection 2(1A)

This item omits the phrase “from time to time”.

Item 10  Subsection 2(1A)

This item provides that the subsection refers to an agreement that was in force immediately before the commencement day of the Aged Care Act 1997. 

Item 11  Section 6

This item repeals section 6.

Item  12  At the end of section 8

This item provides that where a grant of financial assistance was payable in respect of a nursing home prior to the commencement day of the new Act and, after the commencement day, that service is granted extra service status, then the grant ceases to be payable.

If only part of the service is granted extra service status then the amount by which the Commonwealth benefit is reduced is pro rated by the number of extra service places compared to the total number of places in the service.

Item  13  Divisions 1 and 2 of Part III

This item repeals Divisions 1 and 2 of Part III.

Item  14  At the end of section 9A

This item provides that where a grant of financial assistance was payable in respect of a hostel prior to the commencement day of the new Act and, after the commencement day, that service is granted extra service status, then the grant ceases to be payable.

If only part of the service is granted extra service status then the amount by which the Commonwealth benefit is reduced is pro rated by the number of extra service places compared to the total number of places in the service.

Item  15  Sections 10A to 10B

This item repeals sections 10A to 10B.

Item  16  Subsection 10C(1)

This item amends the reference to “approves a hostel” to a reference to a hostel which was approved immediately before the commencement of the Aged Care Act 1997 (other than Division 1 of that Act).

Item 17  Paragraph 10C(1)(b)

This Item omits “as in force from time to time” from the paragraph.

Item 18  At the end of paragraph 10C(1)(c)

This item provides that the agreement referred to in the paragraph is an agreement that was in force immediately before the commencement day of the Aged Care Act 1997. 

Item 19  At the end of section 10D

This item provides that financial assistance is not payable on or after the day on which the Aged Care Act 1997 (other than Division 1 of that Act) commences.

Item  20  Sections 10DA to 10FA

This item repeals these sections.

Item 21  At the end of section 10FB

This item adds a subsection which provides that the Minister must not publish a statement which contains information which relates to periods prior to the commencement day of the Aged Care Act 1997. 

Item 22  Section 10FAA

This item repeals the section.

Item 23  Section 10FK

This item omits from the beginning of the section, “Despite the operation of section 10FB” and replaces it with “If”.

Item  24  Section 10G

This item repeals section 10G.

Item  25  Sections 10GB to 10GG

This item repeals sections 10GB to 10GG.

Item 26  Paragraphs 10 GH(1)(a) and (b)

This item limits the operation of this section to periods prior to the commencement of the Aged Care Act 1997. 

Item  27  Subsection 10GH(5)

This item provides that financial assistance is not payable for any day after the commencement of the Aged Care Act 1997. 

Item  28  Section 10GI

This item repeals section 10GI.

Item  29  Division 3 of Part IIIA

This item repeals Division 3 of Part IIIA.

Item 30  At the end of section 10H

This item provides that a review by the Minister of a decision made under this section is not affected by the repeal of various sections of this Act.

Item 31  Section 10HA 

This item repeals the section.

Item 32  Schedule 1

This item repeals this Schedule.

Schedule 3 - Amendment of Social Security Act 1991

General Outline

Schedule 3 makes consequential amendments to the Social Security Act 1991 (the Social Security Act) that are necessary to implement the aged care structural reform to residential care services.  Part 1 of Schedule 3 repeals residential care allowance and all associated references to that allowance.  Part 2 precludes rent assistance to aged care residents, except in two circumstances.  First, where a person enters approved respite care and continues to maintain, and be liable for, rented accommodation in respect of which he or she was receiving rent assistance prior to admission, then the person can continue to receive rent assistance for up to 52 days of respite care.  Second, where a person currently receiving rent assistance is admitted permanently into residential care, the Secretary will have a discretion to continue to pay rent assistance to that person for up to 14 days to enable the person to continue to receive assistance while finalising his or her existing accommodation arrangements.  Part 3 makes amendments to the review provisions in the Social Security Act to provide for when the Aged Care Income Testing Act 1997 ceases to operate and is overtaken by the Aged Care Act 1997.  Part 4 provides that the value of an accommodation bond is included in a pension assessment as an asset, however, neither an accommodation bond nor an accommodation bond balance is a financial investment and so neither is subject to the rules about deeming income from financial investments.  Part 4 also amends certain definitions that were no longer accurate as a result of the introduction of the new Aged Care Act 1997.  

Part 1 - Abolition of residential care allowance

Item 1  Section 3 (Index of definitions)

This item repeals definitions relating to residential care allowance from the index of definitions.

Items 2  Section 3 (Index of definitions, entry relating to in residential care)  

This item omits subsection 13A(5) from the index of definitions and substitutes it with subsection 23(4CA). 

Item 3  Subsection 11(7)(Note)

This item omits the reference to subsection 13A(5) and substitutes it with subsection 23(4CA).

Item 4  Section 13A

This item repeals section 13A.

Item 5  After subsection 23(4C)

This item inserts new subsection 23(4CA) which defines the situations when a person is considered to be 'in residential care'.  The new definition replaces the existing definition of 'nursing home' and provides that a person is in residential care if he or she is being provided with residential care through an aged care service conducted by an approved provider.  The terms residential care, aged care service and approved provider are incorporated from the Aged Care Act 1997, and have the same meaning as in that Act.  

Item 6  Paragraph 664A(4)(b)

This item omits a reference to residential care allowance.

Item 7  Paragraph 664C(4)(b)

This item omits the reference to residential care allowance.

Item 8  Paragraph 664E(4)(b)

This item omits the reference to residential care allowance.

Item 9  Paragraph 664G(4)(b)

This item omits the reference to residential care allowance.

Item 10  Paragraph 664HA(4)(b)

This item omits the reference to residential care allowance.

Item 11  Point 796-C1 (note)

This item omits the reference to residential care allowance.
 
Item 12  Point 1064-A1 (Method statement, step 3)

This item omits the reference to residential care allowance from the pension rate calculator process.

Item 13  Point 1064-A1 (note 2)

This item omits a reference to residential care allowance.

Item 14  Paragraph 1064-D1(b)

This item repeals this paragraph which states that a person is not qualified for rent assistance if he or she receives an amount of residential care allowance.

Item 15  Point 1066-A1 (Method statement, step 3)  

This item omits the reference to residential care allowance from the overall rate calculation process.

Item 16  Point 1066-A1 (note 2)

This item omits a reference to residential care allowance.

Item 17  Paragraph 1066-D1(aa)

This item repeals this paragraph which states that a person is not qualified for rent assistance if he or she receives an amount of residential care allowance.

Item 18  Point 1066A-A1 (Method statement, step 4)

This item omits the reference to residential care allowance from the overall rate calculation process.

Item 19  Point 1066A-A1 (note 2)

This item omits a reference to residential care allowance.

Item 20  Subparagraph 1066A-EA2(h)(ii)

This item makes a minor technical amendment.

Item 21  Paragraph 1066A-EA2(i)

This item repeals this paragraph which states that a person is not qualified for rent assistance if he or she receives an amount of residential care allowance.

Item 22  Paragraph 1066A-EB2(i)

This item makes a minor technical amendment.

Item 23  Paragraph 1066A-EB2(j)

This item repeals this paragraph which states that a person is not qualified for rent assistance if he or she receives an amount of residential care allowance.

Item 24  Point 1067-A1 (Method statement, step 3)

This item omits the reference to residential care allowance from the overall rate calculation process.

Item 25  Paragraph 1067-F1(ea)

This item repeals this paragraph which states that a person is not qualified for rent assistance if he or she receives an amount of residential care allowance.

Item 26  Point 1067E-A1 (Method statement, step 3)

This item omits the reference to residential care allowance from the overall rate calculation process.

Item 27  Paragraph 1067E-D1(ca)

This item repeals this paragraph which states that a person is not qualified for rent assistance if he or she receives an amount of residential care allowance.

Item 28  Point 1068-A1 (Method statement, step 3)

This item omits the reference to residential care allowance from the overall rate calculation process.

Item 29  Point 1068-F1(ca)

This item repeals this paragraph which states that a person is not qualified for rent assistance if he or she receives an amount of residential care allowance.

Item 30  Point 1068-A1 (note 1)

This item omits a reference to residential care allowance.

Item 31  Point 1068A-A3 (Method statement, step 4, paragraph (b))

This item omits the reference to residential care allowance from the overall rate calculation process.

Item 32  Point 1068A-A3 (note)

This item omits a reference to residential care allowance.

Item 33  Paragraph 1068A-F1(da)

This item repeals this paragraph which states that a person is not qualified for rent assistance if he or she receives an amount of residential care allowance.

Item 34  Point 1069-A1 (Method statement, step 1A)

This item omits the reference to residential care allowance from the overall rate calculation process.

Item 35  Paragraph 1069-E2(1)(ca)

This item repeals this paragraph which states that a person is not qualified for rent assistance if he or she receives an amount of residential care allowance.

Item 36  Paragraph 1069-K3(e)

This item omits a reference to residential care allowance.

Item 37  Subsection 1147(2)

This item omits a reference to residential care allowance.

Item 38  Part 3.12B

This item repeals this part which contains the operative provisions for residential care allowance.

Item 39  Section 1190 (table items 19B, 19C, 19D, 19E, 19F, 19G, 19H and 19I) 

This item repeals references to residential care allowance.

Item 40  Subsection 1191(1) (table items 13B, 13C, 13D, 13E, 13F, 13G, 13H and 13I)

This item repeals references to residential care allowance.

Item 41  Paragraph 1207(1)(a)

This item omits the reference to residential care allowance.

Item 42  Paragraph 1207(1)(c) and (d)

This item omits the reference to residential care allowance.

Item 43  Point 1210-A1 (note 2)

This item omits a reference to residential care allowance.

Item 44  Subclause 28(4) of Schedule 1A

This item omits a reference to residential care allowance.

Item 45  Subclause 28(5) of Schedule 1A

This item omits references to residential care allowance.

Item 46  Subclause 28(6) of Schedule 1A

This item omits a reference to residential care allowance.

Item 47  Subclause 36(3) of Schedule 1A

This item omits a reference to residential care allowance.

Item 48  Clause 63A of Schedule 1A

This item omits this clause as it deals with residential care allowance.

Part 2 - Rent Assistance and related matters 

Item 49  Section 3 (index of definitions)

This item inserts entries into the index of definitions for an 'aged care resident' and 'in residential care on a long term basis'.

Item 50  Subsection 13(4)

This item repeals this subsection, which provides that amounts paid by persons for approved respite care are rent for the purposes of calculating rent assistance.  Amounts paid for approved respite care are no longer taken to be rent for the purposes of rent assistance and so this subsection is no longer required.

Item 51  After subsection 13(8)

This item inserts subsection 13(8A), 13(8B) and 13(8C).  Subsection 13(8A) states that a person is an 'aged care resident' if the person is 'in residential care' and an approval for residential care or flexible care under Part 2.3 of the Aged Care Act 1997 is in force in respect of the person.  

Subsection 13(8B) provides that a person is not an aged care resident if the person is in 'approved respite care' for up to 52 days, and the person was receiving rent assistance in respect of his or her accommodation immediately prior to entering 'approved respite care'.  Subsection 13(8B) therefore enables a person who enters 'approved respite care' to continue to receive rent assistance for the period he or she is in 'approved respite care', provided that period is no more than 52 days, and the person is maintaining previously rented accommodation for which he or she is liable to pay rent.  The person would, of course, still need to satisfy all other qualification criteria for rent assistance.

Subsection 13(8C) provides that the Secretary may determine that a person is not an 'aged care resident' for the purposes of subsection 13(8A).  Where a person is paying rent in respect of his or her accommodation immediately prior to becoming an 'aged care resident', and the person continues to be liable to pay rent for that accommodation then the Secretary may determine that the person is not an 'aged care resident' for up to 14 days after the day on which the person becomes an 'aged care resident'.  By creating this exception to being an 'aged care resident', a person who becomes an 'aged care resident' will be entitled to continue to receive rent assistance for up to 14 days to enable him or her to finalise his or her previous external accommodation arrangements. 

Subsection 13(8D) provides that rent assistance means an amount paid or payable under the Social Security Act to help cover the cost of rent.

Item 52  Subsection 23(1) (definition of nursing home)

This item repeals the definition of a nursing home.  

Item 53  Subparagraph 993(2)(c)(iii)

This item substitutes the reference to a 'nursing home patient' with a reference to being 'in residential care'.  This change reflects the fact that the definition of a nursing home has been replaced by a definition of in residential care.

Item 54  Subsection 993(2) (note 4)

This item inserts a reference to direct the reader to subsection 997(2) which defines the phrase 'in residential care on a long-term basis'

Item 55  Subparagraph 994(c)(vi)

This item substitutes the reference to a nursing home patient with a reference to being in residential care.  This change reflects the fact that the definition of a nursing home has been replaced by a definition of 'in residential care'.

Item 56  Section 994 (note 5)

This item substitutes the reference to a nursing home patient with a reference to being in residential care.  This change reflects the fact that the definition of a nursing home has been replaced by a definition of in residential care.

Item 57  Subsection 997(2)

This item substitutes the definition of a 'nursing home patient on a long term basis' with a definition of 'in residential care on a long term basis'.  The amendment reflects the substitution of the definition of a nursing home with 'in residential care'.  To be in residential care on a long term basis, a person must be in residential care (item 5 refers) and the Secretary must be satisfied that the person will be in residential care for an indefinite period.

Item 58  After paragraph 1064-D1(a)

This item inserts paragraph (b) which operates to preclude an aged care resident from qualification for rent assistance.

Item 59  After paragraph 1066-D1(a)

This item inserts paragraph (aa) which operates to preclude an aged care resident from qualification for rent assistance.

Item 60  After paragraph 1066A-EA2(d)

This item inserts paragraph (da) which operates to preclude an aged care resident from qualification for rent assistance.

Item 61  After paragraph 1066A-EB2(e)

This item inserts paragraph (ca) which operates to preclude an aged care resident from qualification for rent assistance.

Item 62  After paragraph 1067-F1(c)

This item inserts paragraph (ca) which operates to preclude an aged care resident from qualification for rent assistance.

Item 63  Paragraph 1067B(6)(c)

This item substitutes a reference to 'living in a nursing home' with a reference to 'in residential care' to reflect the fact that the defined term 'nursing home' has been substituted by the defined term 'in residential care'.

Item 64  After paragraph 1067E-D1(a)

This item inserts paragraph (aa) which operates to preclude an aged care resident from qualification for rent assistance.

Item 65  After paragraph 1068-F1(aa)

This item inserts paragraph (ab) which operates to preclude an aged care resident from qualification for rent assistance.

Item 66  After paragraph 1068A-F1(b)

This item inserts paragraph (ba) which operates to preclude an aged care resident from qualification for rent assistance.

Item 67  After paragraph 1069-E2(1)(a)

This item inserts paragraph (aa) which operates to preclude an aged care resident from qualification for rent assistance.

Item 68  After clause 106 of Schedule 1A

This item inserts new clause 107 which is an application provision relating to the abolition of residential care allowance and amendments relating to rent assistance.  Clause 103 provides that the amendments to the Social Security Act made by Parts 1 and 2 of Schedule 3 of this Act apply to an instalment of a social security benefit payable in respect of a period starting on or after the day on which those parts commence, and to a payment of a social security pension in respect of a pension period starting after the day on which those parts commence.  This clause ensures that the payment of amounts of rent assistance or residential care allowance are payable where a person is qualified for rent assistance or residential care allowance in respect of some days occurring before the commencement of this Act.

Part 3 - Review provisions

Item 69  Paragraph 1239(1)(e)

This item repeals this paragraph and substitutes it with new paragraph 1239(1)(e) to provide for a decision under section 44-24 of the Aged Care Act 1997 to be reviewed by the Secretary or by a person to whom the Secretary has sub-delegated power under subsection 96-2(7) of that Act.  

Item 70  Paragraph 1240(1)(e)

This item repeals this paragraph and substitutes it with new paragraph 1240(1)(e) to provide that a person affected by a decision under section 44-24 of the Aged Care Act 1997 by the Secretary, or by a person to whom the Secretary has sub-delegated power under subsection 96-2(7) of that Act, may apply to the Secretary for review of that decision.

Item 71  Paragraph 1245(1)(d)

This item repeals this paragraph and substitutes a new paragraph 1245(1)(d) which provides that the provisions of Part 6.2 (Review by the SSAT) applies to all decisions under section 44-24 of the Aged Care Act 1997 by the Secretary, or a person to whom the Secretary has sub-delegated power under subsection 96-2(7) of that Act.  

Item 72  Paragraph 1282(1)(b)

This item repeals this paragraph and substitutes a new paragraph 1282(1)(b) to provide that unless otherwise stated, the application of Part 6.4 (Review by the Administrative Appeals Tribunal) shall also apply to all decisions made under section 44-24 of the Aged Care Act 1997 by the Secretary, or by a person to whom the Secretary has sub-delegated power under subsection 96-2(7) of that Act.

Item 73  After clause 102 of Schedule 1A

This item inserts 4 transitional provisions.  New clause 103 provides that if, before the commencement day, the Secretary was, under section 1239 of this Act, reviewing a decision made under section 5 of the Aged Care Income Testing Act 1997, and, as at the commencement day, the Secretary had not yet affirmed, varied or set the decision aside and substituted a new decision, the review is to have effect, on and after the commencement day, as if it were a review by the Secretary of a decision made under section 44-24 of the Aged Care Act 1997.    

New clause 104 provides that if, before the commencement day, a person had, under section 1240 of this Act, applied to the Secretary for review of a decision made under section 5 of the Aged Care Income Testing Act 1997, and as at the commencement day the Secretary had not yet affirmed, varied, or set the decision aside and substituted a new decision, then the application for review has effect on and after the commencement day as if it were an application made on that day for review of a decision made under section 44-24 of the Aged Care Act 1997.  

New clause 105 provides that if, before the commencement day, the person had, under section 1247 of this Act, applied to the SSAT for review of a decision and the decision related to a determination under section 5 of the Aged Care Income Testing Act 1997, and as at the commencement day, the SSAT had not yet made a decision on the review, then the application for review has effect, on and after the commencement day, as if it were an application for review of a decision relating to a determination made under section 44-24 of the Aged Care Act 1997.

New clause 106 provides that if, before the commencement day, a person had, under section 1282 of this Act, applied to the AAT for review of a decision, and the decision related to a determination under section 5 of the Aged Care Income Testing Act 1997 and as at the commencement day, the AAT had not yet made a decision on review, the application for review has effect, on and after the commencement day, as if it were an application for review of a decision relating to a determination made under section 44-24 of the Aged Care Act 1997.

For each of clauses 103, 104, 105 and 106, 'commencement day' is stated to mean that day on which the Aged Care Act 1997 (other than Division 1 of that Act) commences.

Part 4 - Other Amendments

Item 74  Section 3 (index of definitions)

This item inserts entries into the index of definitions for an accommodation bond and an accommodation bond balance.

Item 75  Subsection 4(9)

This item repeals the existing definition of 'approved respite care' and replaces it with a new definition.  New subsection 4(9) provides that a person is in 'approved respite care' if the person is eligible for a respite care supplement in respect of that day under section 44-12 of the Aged Care Act 1997.  No substantive change to the current treatment of  persons in 'approved respite care' is intended to result from this amendment.

Item 76  After subsection 9(1C)

This item inserts new subsection 9(1D) which puts beyond doubt that both an accommodation bond and an accommodation bond balance are not financial investments for the purposes of the Social Security Act.  

Item 77  Subsection 11(1)

This item inserts a definition of  'accommodation bond' into the Social Security Act and provides that it has the same meaning as in the Aged Care Act 1997.

Item 78  Subsection 11(1)

This item inserts a definition of 'accommodation bond balance' into the Social Security Act and provides that it has the same meaning as in the Aged Care Act 1997.

Item 79  After subsection 11(3A)

This item inserts new subsection 11(3A) which provides that an accommodation bond balance, in respect of an accommodation bond paid by a person, is an asset of the person.  This item makes it clear that an accommodation bond is an asset of a person for the purposes of the Social Security Act.

Schedule 4 - Amendments to the Veterans’ Entitlements Act 1986 

General Outline

This Schedule makes consequential amendments to the Veterans’ Entitlements Act 1986  (the VEA) arising from introduction of the Aged Care Act 1997.  Part 1 removes residential care allowance from the VEA.  Part 2 consolidates the rent and in care definitions contained in the VEA.

Part 1 - Abolition of residential care allowance

Item 1  Paragraph 5H(8)(e) (note)

This item omits a reference to residential care allowance.

Item 2  Paragraph 5H(8)(e) (note)

This item omits a reference to a Residential Care Allowance Module.

Item 3  Subsection 5NB(1) (paragraph (a) of definition of dependent child component)

This item omits a reference to residential care allowance.

Item 4  Subsection 5NB(1) (note 1 to definition of dependent child component)

This item omits a reference to residential care allowance.

Item 5  Subsection 40(1) (note 1)

This item omits a reference to residential care allowance.

Item 6  Paragraph 40C(1)(a)

This item omits a reference to the residential care allowance Module.

Item 7  Paragraph 40C(1)(c)

This item omits a reference to the residential care allowance Module.

Item 8  Paragraph 40C(1)(d)

This item omits a reference to the residential care allowance Module.

Item 9  Paragraph 40C(1A)(a)

This item omits a reference to the residential care allowance Module.

Item 10  Paragraph 40C(1A)(c)

This item omits a reference to the residential care allowance Module.

Item 11  Paragraph 40C(1A)(d)

This item omits a reference to the residential care allowance Module.

Item 12  Subsection 40C(2) (Relevant Modules Table, column 3A)

This item repeals the column dealing with the residential care allowance Module from the Table.

Item 13  Point 41-A1 (Method statement, step 2)

This item omits a reference to the residential care allowance Module.

Item 14  Point 41-A1 (note 2)

This item omits a reference to residential care allowance.

Item 15  Paragraph 41-C2(aa)

This item repeals a paragraph dealing with residential care allowance.

Item 16  Point 41-C2 (note 1A)

This item repeals the note dealing with residential care allowance.

Item 17  Section 41 (Module CAA)

This item repeals, from the service pension rate calculator in section 41, the Module dealing with residential care allowance.

Item 18  Point 42-A1 (Method statement, step 3)

This item omits a reference to the residential care allowance Module.

Item 19  Point 42-A1 (note 2)

This item omits a reference to residential care allowance.

Item 20  Paragraph 42-D2(aa)

This item repeals a paragraph dealing with residential care allowance.

Item 21  Point 42-D2 (note 1A)

This item repeals the note dealing with residential care allowance.

Item 22  Section 42 (Module DAAA)

This item repeals, from the service pension rate calculator in section 42, the Module dealing with residential care allowance.

Item 23  Point 42-DAA12

This item omits a reference to residential care allowance.

Item 24  Point 42-DAA12 (note)

This item omits a reference to residential care allowance.

Item 25  Paragraph 43(4)(d) (formula)

This item works with item 26 to omit a reference to residential care allowance from the formula in the paragraph.

Item 26  Paragraph 43(4)(definition of RA/RCA)

This item works with item 25 to omit a reference to residential care allowance from the formula in the paragraph.

Item 27  Point 43-A1 (Method statement A, step 3)

This item omits a reference to the residential care allowance Module.

Item 28  Paragraph 43-D2(aa)

This item repeals a paragraph dealing with residential care allowance.

Item 29  Point 43-D2 (note 1A)

This item repeals the note dealing with residential care allowance.

Item 30  Section 43 (Module DAA)

This item repeals, from the service pension rate calculator in section 42, the Module dealing with residential care allowance.

Item 31  Point 45-B4 (note)

This item omits a reference to residential care allowance.

Item 32  Paragraphs 45V(1)(b), (d) and (f)

This item omits references to the residential care allowance Module.

Item 33  Paragraphs 45V(2)(b), (d) and (e)

This item omits references to the residential care allowance Module.

Item 34  Paragraph 45V(3)(b)

This item repeals the paragraph and substitutes a paragraph that omits a reference to residential care allowance.

Item 35  Subsection 45V(3)

This item omits a reference to the residential care allowance Module.

Item 36  Point 45X-B1 (Method statement, step 2)

This item omits a reference to the residential care allowance Module.

Item 37  Point 45X-B1 (note 3)

This item omits a reference to residential care allowance.

Item 38  Point 45X-B2 (Method statement, step 3)

This item omits a reference to the residential care allowance Module.

Item 39  Paragraph 45X-D2(aa)

This item repeals a paragraph dealing with residential care allowance.

Item 40  Point 45X-D2 (note 1A)

This item repeals the note dealing with residential care allowance.

Item 41  Section 45X (Module DA)

This item repeals, from the income support supplement rate calculator in section 45X, the Module dealing with residential care allowance.

Item 42  Point 45Y-B1 (Method statement, step 11)

This item omits a reference to the residential care allowance Module.

Item 43  Point 45Y-B2 (Method statement, step 3)

This item omits a reference to the residential care allowance Module.

Item 44  Paragraph 45Y-F2(aa)

This item repeals a paragraph dealing with residential care allowance.

Item 45  Point 45Y-F2 (note 1A)

This item repeals the note dealing with residential care allowance.

Item 46  Section 45Y (Module FA)

This item repeals, from the income support supplement rate calculator in section 45Y, the Module dealing with residential care allowance.

Item 47  Point 45Y-H5 (definition of DC add-ons)

This item omits a reference to residential care allowance.

Item 48  Section 59A (Indexed and Adjusted Amounts Table, rows 6B, 6C and 7AAAA)

This item repeals the rows relating to residential care allowance from the Table.

Item 49  Section 59B ( CPI Indexation Table, rows 3B and 3C)

This item repeals the rows relating to residential care allowance from the Table.

Item 50  Section 59GAA

This item repeals the section dealing with adjustment of residential care allowance.

Item 51  Application

The application provision clarifies that the amendments in Part 1 of Schedule 4 apply to all instalments of pension paid after the commencement day.

Part 2 - Rent assistance and related matters

Item 52  Section 5 (Index of definitions) 

This item inserts references to defined terms listed in the Index of definitions.

Item 53  Section 5 (Index of definitions)

This item repeals references to defined terms listed in the Index of definitions.

Items 54 to 62  Paragraphs 5L(7)(b)(d) and subparagraphs 5L(7)(c)(i), (d)(i),(ii) and (iii), and (e)(i) and (ii).

These items omit references to in a relevant care situation and substitutes words to refer to a person who is in a care situation or is an aged care resident.

Item 63  Subsection 5L(7) (notes 1 and 2)

This item omits the notes in this subsection and substitutes the correct legislative references.

Item 64  Subsection 5L(7A)

This item repeals this subsection.  

Item 65  Subsection 5N(1)

This item defines a residential care charge as the amount a person pays (other than the accommodation bond), or is paid on behalf of a person (eg. certain ex-POWs), to reside in an aged care residence. 

Items 66 and 68  Subsections 5N(1) and (8)

These items repeal the definition of residing in a nursing home from the VEA.  The two categories of person who could still have come within this definition are included in the definition of in a care situation (see item 71 below).

Item 67  Subsection 5N(1) (note to the definition of ineligible property owner)

This item amends this note.

Item 69  Subsection 5N(9)

This item repeals this subsection.

Item 70  Section 5NAA

This item repeals this section.

Item 71  After section 5NB

This item inserts section 5NC in the VEA.  The new section groups together and defines the different in care definitions.  Two new care terms are included in this section to reflect the new terminology arising from the Aged Care Act 1997:  In respite care redefines “approved respite care”, and aged care resident refers to a person who previously would have been classified as in residential care.

Item 72  Subsection 5Q(1) (definition of respite period) 

This item repeals the definition of respite period.

Item 73  Subsection 5R(6)

This item inserts a note after subsection 5R(6).

Items 74 to 76  Paragraphs 5R(6)(b)(c) and subsection 5R(7)

These items omit references to approved respite care and substitute in respite care.

Item 77  Subsection 5R(8)

This item repeals this subsection.

Items 78, 80, 82, 84, 86  Points 41-C2(a), 42-D2(a), 43-D2(a), 45X-D2(a) and 45Y-F2(a)

These items insert a paragraph in the rent assistance rate calculators to exclude an aged care resident from obtaining rent assistance.

Items 79, 81, 83, 85, 87  Points 41-C2, 42-D2, 43-D2, 45X-D2 and 45Y-F2

These items insert Notes in these Points.

Item 88  After subsection 52M(2)

This item inserts a note after this subsection.

Item 89  Application

The application provision clarifies that the amendments in Part 2 of this Schedule apply to all instalments of pension paid after the commencement day.

Part 3 - Other Amendments

Item 90  Subsection 5H(8) 

This item inserts the words “in relation to a person” after “income”.

Item 91  After paragraph 5H(8)(n)

This item inserts two paragraphs to ensure that the aged care subsidy and accommodation bond balance are excluded amounts for the purpose of income testing.

Items 92 and 93  After subsections 5J(2B) and 5L(3A)

These items insert these subsections to ensure that an accommodation bond balance is taken to be an asset, however, for deeming purposes neither an accommodation bond balance or the accommodation bond is a financial asset.

Item 94  Application

The application provision clarifies that the amendments in Part 3 of this Schedule apply to instalments of pension paid after the day on which the Aged Care Act 1997 commenced.

Schedule 5 - Amendment and repeal of other Acts

Aboriginal and Torres Strait Islander Commission Act 1989

Item 1  At the end of paragraph 200(6)(b)

This item adds to the paragraph “a residential care service”, which has the meaning provided in the Aged Care Act.

Aged Care Income Testing Act 1997

Item 2  The whole of the Act 

This item repeals the Act.

Freedom of Information Act 1982

Item 3  Schedule 3

This item inserts references to the Aged Care Act 1997 in appropriate alphabetical positions.

Health and Other Services (Compensation) Act 1995

Item 4  Subsection 3(1) (at the end of the definition of eligible benefit)

This item adds a reference to residential care subsidy to the subsection.

Item 5  Subsection 3(1)

This item adds “ residential care”, which has the meaning provided in the Aged Care Act 1997, to the subsection

Item 6  Subsection 3(1)

This item adds “ residential care subsidy”, which has the meaning provided in the Aged Care Act 1997, to the subsection.

Item 7  Paragraph 4(2)(d)

This item inserts “or residential care” in the paragraph.

Item 8  Division 2 of Part 2 (at end of the heading).

This item inserts “and residential care subsidy” in the heading.

Item 9  Paragraph 9(1)(b)

This item inserts “or residential care” in the paragraph.

Item 10  After subsection 9(2)

This item inserts a new subsection which provides that a residential cares subsidy is not payable if, under a reimbursement arrangement, some or all of the amount payable for residential care has already been reimbursed before a claim for residential care subsidy has been submitted.

Item 11  Paragraph 9(3)(a)

This item repeals the paragraph and substitutes a provision which provides that nursing home or residential care has been provided to the person and nursing home benefit or residential care subsidy has been paid in respect of that care.

Item 12  At end of paragraph 9(3)(b) 

This item inserts “or residential care” in the paragraph.

Item 13  At the end of subsection 9(3)

This item inserts “or residential care subsidy” in the subsection.

Item 14  Paragraph 10(1)(b)

This item repeals the paragraph and substitutes a provision which provides that nursing home or residential care has been provided to the person in the course of treatment or as a result of the injury and nursing home benefit or residential care subsidy has been paid in respect of that care.

Item 15  At the end of paragraph 10(1)(c)

This item inserts “or residential care subsidy” in the paragraph.

Item 16  At the end of subsection 10(1)

This item inserts “or residential care subsidy” in the subsection.

Item 17  Paragraph 10(3)(a)

This item omits the reference to “nursing home”.

Item 18  Paragraph 10(3)(a)

This item inserts “or residential care expenses” in the paragraph.

Item 19  Paragraph 10(3)(b)

This item omits the reference to “nursing home”.

Item 20  Subsection 10(3)
 
This item omits the reference to “nursing home”.

Item 21  Paragraph 17(1)(b)

This item inserts “or residential care” in the paragraph.

Item 22  Subparagraph 21(7)(b)(ii)

This item inserts “or residential care” in the subparagraph.

Item 23  Paragraph 23(5)(b)

This item inserts “or residential care” in the paragraph.

Item 24  Paragraph 23(7)(b)

This item inserts “residential care needs” in the paragraph.

Item 25  Paragraph 23(7)(c)

This item inserts “residential care needs” in the paragraph.

Item 26  Subparagraph 24(9)(b)(ii)

This item inserts “or residential care” in the subparagraph.

Item 27  Subsection 33E(6)

This item inserts “or residential care” in the subsection.

Item 28  At end of subsection 42(1)

This item adds paragraph (f) which provides that the Secretary should make a determination under subsection 44-16(5) of the Aged Care Act 1977.

Home and Community Care Act 1985

Item 29  Subclause 4(1) of the Schedule (definition of long term residential care)

This item adds a reference to “residential care service within the meaning of the Aged Care Act 1977"  to the definition.

Income Tax Assessment Act 1936

Item 30  Subsection 24 ABA(1)(table)

This item omits the reference to the amount included in the payment because residential care charge was paid or payable the taxpayer.

Item 31  Paragraph 24 ACA(1)(aa)

This item repeals this paragraph.

Student and Youth Assistance Act 1973

Item 32  Paragraph 2(6)(c) of Schedule 1 

This item repeals the paragraph.  A new provision is inserted which provides that a person is independent if both of the person's parents are (or, if the person has only one parent, that parent is) being provided with care in a residential care service (within the meaning of the Aged Care Act 1997) and they are likely to be provided with that care for an indefinite period.  

Schedule 6 - Amendment of the National Health Act 1953 relating to domicilary nursing care benefit

Item 1  Paragraph 58G(1)(b)

This item increases the number or respite care days which may be approved for a carer from 42 days to 63 days in a calendar year.