2004-2005 The Parliament of the Commonwealth of Australia HOUSE OF REPRESENTATIVES Presented and read a first time Aged Care Amendment (2005 Measures No. 1) Bill 2005 No. , 2005 (Ageing) A Bill for an Act to amend the law relating to aged care, and for related purposes [Page Break] 1 Short title ...........................................................................................1 2 Commencement.................................................................................1 3 Schedule(s) ........................................................................................2 Schedule 1--Flexible care 3 Aged Care Act 1997 3 Schedule 2--Entry contributions 10 Aged Care Act 1997 10 Aged Care (Consequential Provisions) Act 1997 12 Schedule 3--Prudential requirements 13 Aged Care Act 1997 13 Schedule 4--Refunds of accommodation bond balances 15 Aged Care Act 1997 15 Schedule 5--Requirement to give information 17 Aged Care Act 1997 17 Schedule 6--Annual report 19 Aged Care Act 1997 19 Schedule 7--Regulations 20 Aged Care Amendment (2005 Measures No. 1) Bill 2005 No. , 2005 ii [Page Break] 2 care, and for related purposes 3 The Parliament of Australia enacts: 4 1 Short title 5 This Act may be cited as the Aged Care Amendment (2005 6 Measures No. 1) Act 2005. 7 2 Commencement 8 (1) Each provision of this Act specified in column 1 of the table 9 commences, or is taken to have commenced, in accordance with 10 column 2 of the table. Any other statement in column 2 has effect 11 according to its terms. 12 Aged Care Amendment (2005 Measures No. 1) Bill 2005 No. , 2005 1 [Page Break] Column 1 Column 2 Column 3 Provision(s) Commencement Date/Details 1. Sections 1 to 3 The day on which this Act receives the and anything in Royal Assent. this Act not elsewhere covered by this table 2. Schedules 1 to A single day to be fixed by Proclamation. 7 However, if any of the provision(s) do not commence within the period of 6 months beginning on the day on which this Act receives the Royal Assent, they commence on the first day after the end of that period. 1 Note: This table relates only to the provisions of this Act as originally 2 passed by the Parliament and assented to. It will not be expanded to 3 deal with provisions inserted in this Act after assent. 4 (2) Column 3 of the table contains additional information that is not 5 part of this Act. Information in this column may be added to or 6 edited in any published version of this Act. 7 3 Schedule(s) 8 Each Act that is specified in a Schedule to this Act is amended or 9 repealed as set out in the applicable items in the Schedule 10 concerned, and any other item in a Schedule to this Act has effect 11 according to its terms. 2 Aged Care Amendment (2005 Measures No. 1) Bill 2005 No. , 2005 [Page Break] 1 2 Schedule 1--Flexible care 3 4 Aged Care Act 1997 5 1 Paragraph 56-3(a) 6 Repeal the paragraph, substitute: 7 (a) to comply with the requirements of Division 57, and the User 8 Rights Principles, in relation to any *accommodation bond 9 charged for the care recipient's *entry to the flexible care 10 service through which the care is, or is to be, provided; 11 (aa) to comply with the requirements of the User Rights 12 Principles in relation to any *accommodation charge charged 13 for the care recipient's entry to the flexible care service 14 through which the care is, or is to be, provided; 15 2 Section 57-1 16 After "residential care service", insert "or flexible care service". 17 3 Subsection 57-2(1) 18 After "residential care service" (first occurring), insert ", or flexible care 19 service,". 20 4 Subparagraph 57-2(1)(aa)(i) 21 Omit "the person", substitute "if the accommodation bond is charged 22 for the entry of the care recipient to a residential care service--the care 23 recipient". 24 5 At the end of paragraph 57-2(1)(aa) 25 Add: 26 (iv) if the accommodation bond is charged for the entry of 27 the care recipient to a flexible care service--the care 28 recipient requires a level of care that corresponds to a 29 *low level of residential care provided through a 30 residential care service; 31 6 Paragraph 57-2(1)(a) Aged Care Amendment (2005 Measures No. 1) Bill 2005 No. , 2005 3 [Page Break] 1 Before "the residential care service", insert "if the accommodation bond 2 is charged for the entry of the care recipient to a residential care 3 service--". 4 7 Paragraph 57-2(1)(c) 5 After "residential care service", insert "or flexible care service". 6 8 Paragraph 57-2(1)(f) 7 After "residential care service", insert "or flexible care service". 8 9 Paragraph 57-2(1)(k) 9 Before "the approved provider", insert "if the accommodation bond is 10 charged for the entry of the care recipient to a residential care service-- 11 ". 12 10 After paragraph 57-2(1)(k) 13 Insert: 14 (ka) if the accommodation bond is charged for the entry of the 15 care recipient to a flexible care service--the approved 16 provider must not use the accommodation bond for a purpose 17 that is not related to providing flexible care to care recipients, 18 or that does not comply with the prudential requirements (see 19 section 57-3); 20 11 Paragraph 57-2(1)(n) 21 Before "the approved provider", insert "if the accommodation bond is 22 charged for the entry of the care recipient to a residential care service-- 23 ". 24 12 After paragraph 57-2(1)(n) 25 Insert: 26 (na) if the accommodation bond is charged for the entry of the 27 care recipient to a flexible care service--the approved 28 provider must use the income derived from the 29 accommodation bond and the retention amount to improve 30 the quality and range of flexible care services; 31 13 Subsection 57-9(1) 32 After "residential care service" (first occurring), insert ", or flexible care 33 service,". 4 Aged Care Amendment (2005 Measures No. 1) Bill 2005 No. , 2005 [Page Break] 1 14 Paragraph 57-9(1)(a) 2 After "residential care service" (wherever occurring), insert "or flexible 3 care service". 4 15 Paragraph 57-9(1)(b) 5 After "residential care service", insert "or flexible care service". 6 16 Paragraph 57-9(1)(g) 7 After "residential care service" (wherever occurring), insert "or flexible 8 care service". 9 17 Paragraph 57-9(1)(h) 10 After "residential care service", insert "or flexible care service". 11 18 Subsection 57-12(1) 12 After "residential care service" (first occurring), insert "or flexible care 13 service". 14 19 Paragraph 57-12(1)(b) 15 After "residential care service", insert "or flexible care service". 16 20 Paragraph 57-12(2)(a) 17 After "residential care service", insert ", or flexible care service,". 18 21 Subsection 57-12(2) 19 After "residential care service" (second occurring), insert "or flexible 20 care service". 21 22 Paragraph 57-12(3)(a) 22 After "residential care service", insert "or flexible care service". 23 23 Paragraph 57-12(5)(a) 24 After "residential care service", insert "or flexible care service". 25 24 Subsection 57-12(5) (table item 1) 26 After "residential care service", insert "or flexible care service". 27 25 Paragraph 57-13(a) Aged Care Amendment (2005 Measures No. 1) Bill 2005 No. , 2005 5 [Page Break] 1 Omit "a residential care service (the original service)", substitute "an 2 aged care service (the original service) that is a residential care service 3 or a flexible care service". 4 Note: The heading to section 57-13 is altered by omitting "residential" and substituting 5 "certain aged". 6 26 Paragraph 57-13(b) 7 After "residential care", insert ", or flexible care,". 8 27 Paragraph 57-13(c) 9 Omit "residential care service", substitute "aged care service that is a 10 residential care service or a flexible care service". 11 28 Subsection 57-15(2) 12 After "residential care", insert "or flexible care". 13 29 At the end of subsection 57-16(1) 14 Add "or flexible care service". 15 30 Subsection 57-16(2) 16 Omit "If", substitute "If the care recipient has entered a residential care 17 service and". 18 31 Subsection 57-16(2) (note 1) 19 Repeal the note, substitute: 20 Note 1: However, under sections 57-18 and 57-20, amounts representing 21 income derived and retention amounts are payable from: 22 (a) the date a care recipient *enters a residential care service that is 23 *certified or a flexible care service; or 24 (b) the date on which a residential care service is certified, if it was 25 not certified at the time a care recipient entered it. 26 32 Subsection 57-16(2) (note 2) 27 Repeal the note, substitute: 28 Note 2: Paragraph 57-2(1)(e) in most cases requires the *accommodation bond 29 agreement to have been entered into before, or within 21 days after, 30 the care recipient's *entry to the service--this applies even if the care 31 recipient has entered a residential care service that was not *certified 32 at the time of the care recipient's entry to the service. 6 Aged Care Amendment (2005 Measures No. 1) Bill 2005 No. , 2005 [Page Break] 1 33 Paragraph 57-18(3)(a) 2 After "residential care service", insert "or flexible care service". 3 34 Subsection 57-18(6) (definition of due date) 4 Repeal the definition, substitute: 5 due date means: 6 (a) in relation to an *accommodation bond payable by a care 7 recipient for *entry to a residential care service--whichever 8 of the following days is applicable: 9 (i) the day on which the care recipient entered the 10 residential care service; 11 (ii) if the residential care service was not *certified on that 12 day--the day on which the residential care service was 13 certified; or 14 (b) in relation to an accommodation bond payable by a care 15 recipient for entry to a flexible care service--the day on 16 which the care recipient entered the flexible care service. 17 35 Subsection 57-20(3) 18 Repeal the subsection, substitute: 19 (3) Subject to subsections (4) and (5), a retention amount may be 20 deducted from an *accommodation bond balance for each month, 21 or part of a month, during which the care recipient concerned is: 22 (a) provided with residential care through the residential care 23 service in respect of which the *accommodation bond was 24 paid; or 25 (b) provided with flexible care through the flexible care service 26 in respect of which the accommodation bond was paid. 27 36 Paragraph 57-20(4)(a) 28 After "residential care service", insert "or flexible care service". 29 37 Paragraph 57-20(4)(b) 30 After "if the service", insert "is a residential care service and". 31 38 Subsection 57-20(5) (note) 32 After "residential care", insert "or flexible care". Aged Care Amendment (2005 Measures No. 1) Bill 2005 No. , 2005 7 [Page Break] 1 39 Paragraph 57-20(6)(a) 2 After "residential care service", insert "or flexible care service". 3 40 Subsection 57-21(1) 4 After "residential care service" (first occurring), insert "or flexible care 5 service". 6 41 Paragraph 57-21(1)(b) 7 Repeal the paragraph, substitute: 8 (b) the care recipient ceases to be provided with: 9 (i) residential care by a residential care service conducted 10 by the approved provider (other than because the care 11 recipient is on *leave); or 12 (ii) flexible care provided in a residential setting by a 13 flexible care service conducted by the approved 14 provider; or 15 42 Paragraph 57-21(1)(c) 16 Before "the", insert "in respect of an accommodation bond paid for the 17 entry to a residential care service--". 18 43 Paragraph 57-21(3)(a) 19 Omit "residential care service", substitute "service to receive residential 20 care". 21 44 Subsection 57-22(1) 22 After "*leave)", insert ", or ceases to be provided with flexible care by a 23 flexible care service". 24 45 Subparagraph 57-22(1)(a)(ii) 25 Omit "the care recipient", substitute "in a case where the service is a 26 residential care service--the care recipient". 27 46 Subparagraph 57-22(2)(a)(i) 28 After "residential care", insert "or flexible care (as applicable)". 29 47 Paragraph 57-23(1)(a) 8 Aged Care Amendment (2005 Measures No. 1) Bill 2005 No. , 2005 [Page Break] 1 Omit "a residential care service (the original service)", substitute "an 2 aged care service (the original service) that is a residential care service 3 or a flexible care service". 4 48 Paragraph 57-23(1)(b) 5 After "residential care", insert "or flexible care". 6 49 Paragraph 57-23(1)(c) 7 Omit "residential care service (the later service)", substitute "aged care 8 service (the later service) that is a residential care service or a flexible 9 care service and". 10 50 Paragraph 66-1(j) 11 Repeal the paragraph, substitute: 12 (j) prohibiting the charging of *accommodation bonds, or the 13 accrual of *accommodation charges, for the *entry of care 14 recipients to: 15 (i) one or more specified residential care services; or 16 (ii) all residential care services; or 17 (iii) one or more specified flexible care services; or 18 (iv) all flexible care services; 19 conducted by the approved provider; Aged Care Amendment (2005 Measures No. 1) Bill 2005 No. , 2005 9 [Page Break] 1 2 Schedule 2--Entry contributions 3 4 Aged Care Act 1997 5 1 After paragraph 56-1(a) 6 Insert: 7 (aa) to comply with the requirements of: 8 (i) the Prudential Standards made under section 57-4; and 9 (ii) section 57-21B; 10 in relation to any *entry contribution given or loaned under a 11 *formal agreement binding the approved provider and the 12 care recipient; 13 2 Before paragraph 56-3(b) 14 Insert: 15 (ab) to comply with the requirements of: 16 (i) the Prudential Standards made under section 57-4; and 17 (ii) section 57-21B; 18 in relation to any *entry contribution given or loaned under a 19 *formal agreement binding the approved provider and the 20 care recipient; 21 3 Division 57 (heading) 22 Repeal the heading, substitute: 23 Division 57--What are the responsibilities relating to 24 accommodation bonds and entry contributions? 25 4 At the end of section 57-1 26 Add: 27 If an approved provider has been given or loaned an *entry 28 contribution, several rules must be followed. The rules set out in 29 this Division relate particularly to prudential arrangements and 30 payment of interest on *entry contribution balances. Other rules are 10 Aged Care Amendment (2005 Measures No. 1) Bill 2005 No. , 2005 [Page Break] 1 set out in section 71 of the Aged Care (Consequential Provisions) 2 Act 1997. 3 5 Before section 57-22 4 Insert: 5 57-21B Payment of interest on entry contribution balance 6 (1) An approved provider that is required under a *formal agreement to 7 refund an *entry contribution balance must pay an amount 8 representing interest on the entry contribution balance in the 9 circumstances (if any) specified in the User Rights Principles. 10 (2) The amount is to be worked out in accordance with the User Rights 11 Principles. 12 (3) The amount must be paid to the person specified in the User Rights 13 Principles in the way specified in the User Rights Principles. 14 6 Clause 1 of Schedule 1 15 Insert: 16 entry contribution, relating to a care recipient, means any 17 payment, made before 1 October 1997, of money or other valuable 18 consideration required by an *operator to be given or loaned in 19 return for, or in contemplation of, *entry of the care recipient to a 20 hostel (within the meaning of the Aged or Disabled Persons Care 21 Act 1954). 22 7 Clause 1 of Schedule 1 23 Insert: 24 entry contribution balance, in relation to an *entry contribution, is, 25 at a particular time, an amount equal to the difference between the 26 amount of the entry contribution and any amounts that have been, 27 or are permitted to be, deducted under a *formal agreement as at 28 that time. 29 8 Clause 1 of Schedule 1 30 Insert: Aged Care Amendment (2005 Measures No. 1) Bill 2005 No. , 2005 11 [Page Break] 1 formal agreement means a legally binding agreement in writing, 2 entered into before 1 October 1997, between: 3 (a) a care recipient; and 4 (b) an *operator. 5 9 Clause 1 of Schedule 1 6 Insert: 7 operator means an organisation that was approved for the payment 8 of financial assistance by way of recurrent subsidy under 9 section 10B of the Aged or Disabled Persons Care Act 1954 10 immediately before the commencement of this Act (other than 11 Division 1). 12 Aged Care (Consequential Provisions) Act 1997 13 10 Subsection 71(3) 14 Omit "on and after the commencement day", substitute "then". 15 11 Paragraph 71(3)(c) 16 Before "paragraph 56-1(a)", insert "on and after the commencement 17 day,". 18 12 Paragraph 71(3)(d) 19 Repeal the paragraph, substitute: 20 (d) subject to paragraph (e), on and after the commencement day, 21 Division 57 of the new Act does not apply in relation to the 22 entry contribution; and 23 (e) on and after the day that Schedule 2 to the Aged Care 24 Amendment (2005 Measures No. 1) Act 2005 commenced: 25 (i) the Prudential Standards made under section 57-4 of the 26 new Act; and 27 (ii) section 57-21B of the new Act; 28 apply in relation to the entry contribution. 12 Aged Care Amendment (2005 Measures No. 1) Bill 2005 No. , 2005 [Page Break] 1 2 Schedule 3--Prudential requirements 3 4 Aged Care Act 1997 5 1 Subdivision 57-B 6 Repeal the Subdivision, substitute: 7 Subdivision 57-B--Prudential requirements 8 57-3 Compliance with prudential requirements 9 An approved provider complies with the prudential requirements if 10 the approved provider complies with the Prudential Standards 11 made under section 57-4. 12 57-4 Prudential Standards 13 (1) The User Rights Principles may set out Prudential Standards. 14 Prudential Standards are standards providing for: 15 (a) protection of *accommodation bond balances of care 16 recipients; and 17 (b) protection of *entry contribution balances of care recipients; 18 and 19 (c) sound financial management of approved providers; and 20 (d) provision of information about the financial management of 21 approved providers. 22 (2) The following are examples of matters with which the Prudential 23 Standards may deal: 24 (a) corporate governance requirements for approved providers; 25 (b) financial reporting requirements for approved providers; 26 (c) liquidity requirements for approved providers; 27 (d) capital requirements for approved providers; 28 (e) insurance requirements for approved providers; 29 (f) information retention and provision requirements for 30 approved providers. 31 2 Paragraphs 57-9(2)(b) and (c) Aged Care Amendment (2005 Measures No. 1) Bill 2005 No. , 2005 13 [Page Break] 1 Repeal the paragraphs. 2 3 Section 85-1 (table item 50) 3 Repeal the item. 14 Aged Care Amendment (2005 Measures No. 1) Bill 2005 No. , 2005 [Page Break] 1 2 Schedule 4--Refunds of accommodation 3 bond balances 4 5 Aged Care Act 1997 6 1 Before paragraph 57-21(3)(a) 7 Insert: 8 (aa) if the care recipient dies--within 14 days after the day on 9 which the approved provider is shown the probate of the will 10 of the care recipient or letters of administration of the estate 11 of the care recipient; or 12 2 Subparagraph 57-21(3)(a)(i) 13 Omit "7 days", substitute "14 days". 14 3 Subparagraph 57-21(3)(a)(ii) 15 Omit "7 days" (wherever occurring), substitute "14 days". 16 4 Subparagraph 57-21(3)(a)(iii) 17 Omit "7 days", substitute "14 days". 18 5 Paragraph 57-21(3)(b) 19 Omit "2 months", substitute "14 days". 20 6 Paragraph 57-21(3)(b) 21 Omit "paragraph (1)(a), (b)", substitute "paragraph (1)(b)". 22 7 After section 57-21 23 Insert: 24 57-21A Payment of interest on accommodation bond balance 25 (1) An approved provider that is required under this Subdivision to 26 refund an *accommodation bond balance must pay an amount 27 representing interest on the accommodation bond balance in the 28 circumstances (if any) specified in the User Rights Principles. Aged Care Amendment (2005 Measures No. 1) Bill 2005 No. , 2005 15 [Page Break] 1 (2) The amount is to be worked out in accordance with the User Rights 2 Principles. 3 (3) The amount must be paid to the person specified in the User Rights 4 Principles in the way specified in the User Rights Principles. 16 Aged Care Amendment (2005 Measures No. 1) Bill 2005 No. , 2005 [Page Break] 1 2 Schedule 5--Requirement to give information 3 4 Aged Care Act 1997 5 1 After section 9-3 6 Insert: 7 9-3A Obligation to give information relating to accommodation 8 bonds, entry contributions etc. 9 (1) The Secretary may, at any time, request an approved provider to 10 give to the Secretary specified information relating to any of the 11 following: 12 (a) *accommodation bonds charged by the approved provider; 13 (b) the amount of one or more *accommodation bond balances at 14 a particular time; 15 (c) the amount equal to the total of the accommodation bond 16 balances that the approved provider would have had to 17 refund at a specified earlier time if certain assumptions 18 specified in the request were made; 19 (d) *entry contributions given or loaned under a *formal 20 agreement binding the approved provider; 21 (e) the amount of one or more *entry contribution balances at a 22 particular time; 23 (f) the amount equal to the total of the entry contribution 24 balances that the approved provider would have had to 25 refund at a specified earlier time if certain assumptions 26 specified in the request were made. 27 The request must be in writing. 28 (2) The approved provider must comply with the request within 28 29 days after the request was made, or within such shorter period as is 30 specified in the request. 31 Note: Approved providers have a responsibility under Part 4.3 to comply 32 with this obligation. Failure to comply with a responsibility can result 33 in a sanction being imposed under Part 4.4. Aged Care Amendment (2005 Measures No. 1) Bill 2005 No. , 2005 17 [Page Break] 1 (3) An approved provider that is a *corporation commits an offence if 2 it fails to comply with the request within the period referred to in 3 subsection (2). 4 Penalty: 30 penalty units. 5 (4) The request must contain a statement setting out the effect of 6 subsections (2) and (3). 7 2 At the end of paragraph 62-1(b) 8 Add: 9 or (iv) for the purpose of complying with an obligation under 10 section 9-3A or subsection 93-1(1) or a requirement 11 under the Prudential Standards made under 12 section 57-4; 13 3 Paragraph 63-1(1)(c) 14 Omit "and 9-3(2)", substitute ", 9-3(2) and 9-3A(2)". 18 Aged Care Amendment (2005 Measures No. 1) Bill 2005 No. , 2005 [Page Break] 1 2 Schedule 6--Annual report 3 4 Aged Care Act 1997 5 1 Subsection 63-2(1) 6 Omit "30 September", substitute "30 November". Aged Care Amendment (2005 Measures No. 1) Bill 2005 No. , 2005 19 [Page Break] 1 2 Schedule 7--Regulations 3 4 1 Regulations 5 (1) The Governor-General may make regulations prescribing matters: 6 (a) required or permitted by this Act to be prescribed; or 7 (b) necessary or convenient to be prescribed for carrying out or 8 giving effect to this Act. 9 (2) In particular, regulations may be made prescribing matters of a 10 transitional nature (including prescribing any saving or application 11 provisions) relating to the amendments or repeals made by this Act. 20 Aged Care Amendment (2005 Measures No. 1) Bill 2005 No. , 2005