Commonwealth Consolidated Acts Commonwealth Consolidated Acts(1) On and after the commencement of the Aged Care Act 1997 (other than Division 1 of that Act), this section applies only to an approved nursing home that is a Government nursing home.
(5A) The approval of premises as an approved nursing home is subject to the condition that, where a Commonwealth benefit is payable, or has been paid, to the proprietor of the nursing home in respect of a patient for a period, the proprietor shall deduct the amount of that benefit from the fees charged in respect of nursing home care for that patient during that period.
(5B) For the purposes of the operation of the condition set out in subsection (5A), any Commonwealth benefit that would be payable to the proprietor of the nursing home but for the suspension of the approval of the nursing home shall be deemed to be payable to that proprietor.
(6) The approval of premises as an approved nursing home is subject to the following conditions:
(a) a condition that the number of beds available in the nursing home for qualified nursing home patients or Repatriation nursing home patients will not at any time exceed such number of beds as is determined from time to time by the Minister as the approved number of beds in relation to the nursing home;
(aa) a condition that, where the Minister determines, in writing, that the admission of persons to the nursing home as qualified nursing home patients is to be in accordance with a special purpose of the nursing home specified in the determination, the operations of the nursing home are to be carried out in a manner consistent with that determination;
(b) a condition that a person will not be admitted to the nursing home as a qualified nursing home patient unless an approval under subsection 40AB(3) in relation to the person is in force or the circumstances are such that it is not practicable for such an approval to be obtained before the admission of the person;
(ba) a condition that, where an agreement is entered into under subsection 4AA(2) between the proprietor and a qualified nursing home patient, or a Repatriation nursing home patient, of the nursing home, or a person acting on behalf of such a patient, with respect to the absence of the patient, the proprietor shall comply with the agreement;
(bb) a condition that, where a qualified nursing home patient, or a Repatriation nursing home patient, of the nursing home (in this paragraph referred to as the permanent patient ) is absent from the nursing home pursuant to an agreement of the kind referred to in paragraph (ba), the proprietor shall not:
(i) allow the bed that the permanent patient occupied before the absence of the permanent patient (in this paragraph referred to as the permanent patient's bed ) to be occupied during the absence of the permanent patient by a person other than a person who is a leave respite care patient or who is a Repatriation nursing home patient;
(ii) in a case where the nursing home is not a Government nursing home or transferred home, charge a short‑term respite care patient who occupies the permanent patient's bed during the absence of the permanent patient a fee in respect of nursing home care that exceeds the difference between:
(A) the maximum fee that, had the permanent patient been receiving nursing home care in the nursing home as a qualified nursing home patient (other than a qualified nursing home patient in respect of whom an approval under section 40AF is in force) on that day, the permanent patient could have been charged for the nursing home care without contravening the condition set out in subparagraph (c)(i); and
(B) the amount of the Commonwealth benefit that, had the permanent patient been receiving nursing home care in the nursing home as a qualified nursing home patient (other than a qualified nursing home patient in respect of whom an approval under section 40AF is in force) on that day, would have been payable under section 47; or
(iii) where the nursing home is a transferred home, charge a short‑term respite care patient who occupies the permanent patient's bed during the absence of the permanent patient a fee in respect of nursing home care that exceeds the amount applicable for the purpose of subparagraph 47(2)(b)(iii);
(cb) a condition that, where the proprietor of the nursing home:
(i) enters into an agreement under subsection 4AA(2) or is given a notice under such an agreement; or
(ii) enters into an agreement referred to in paragraph (bc);
the proprietor, subject to any request made under paragraph (cc), is to file the agreement or notice, and keep the agreement or notice filed, with the records of the nursing home kept in compliance with section 61;
(cc) a condition that, where the Minister, by notice in writing served on the proprietor of the nursing home, requests the proprietor to produce to an officer of the Department specified in the request, in accordance with the request, such documents, being:
(i) agreements entered into by the proprietor under subsection 4AA(2) or notices given to the proprietor under such agreements; or
(ii) agreements referred to in paragraph (bc) entered into by the proprietor;
as are specified in the request, the proprietor is to comply with the request to the extent that the proprietor is capable of doing so;
(cd) a condition that, except in accordance with the conditions referred to in subparagraph (6)(bb)(ii) or (iii) or paragraph (c), the proprietor of the nursing home shall not, in respect of the admission to the home of a person who, on admission, would become a qualified nursing home patient, charge any fee or solicit any contribution or financial assistance to the nursing home or any other body or organisation, whether from that person or otherwise;
(cda) a condition that the proprietor of the nursing home must not, in respect of a proposed admission to the home of a person as a short‑term respite care patient, request, solicit or accept from that person or any other person, a payment that exceeds, or together with another payment exceeds, the amount of the fee that, under the regulations, the proprietor of the nursing home may request the person to pay in respect of the proposed admission;
(cdb) a condition that, where:
(i) an amount has been paid to the proprietor of the nursing home in respect of the proposed admission to the home of a person as a short‑term respite care patient; and
(ii) that person is not subsequently so admitted to the home;
the proprietor of the nursing home must, except in circumstances where the regulations otherwise provide, refund that amount to the payee in accordance with the regulations;
(ce) a condition that the proprietor of the nursing home will:
(i) at such times, and in respect of such periods, as are determined by the Secretary; and
(ii) in a form approved by the Secretary;
submit to the Secretary, in a manner approved by the Secretary, such information relating to the employment of nursing staff and personal care staff in connection with the nursing home as is required by the Secretary by written instrument;
(cf) a condition that the proprietor of the nursing home is to allow a person authorised for the purposes of this paragraph to enter the nursing home at any reasonable time for the purpose of ascertaining whether the nursing home care provided in the nursing home satisfies the standards determined under section 45D and is to provide the authorised person with all reasonable facilities and assistance, including access to patients, staff and documents, in achieving that purpose;
(cg) a condition that the proprietor of the nursing home must:
(i) allow a person who is designated by the Minister to be a community visitor in relation to the nursing home to enter the nursing home at any reasonable time for the purpose of meeting with patients; and
(ii) provide the person with all reasonable facilities and assistance in achieving that purpose;
(cj) a condition that the proprietor of the nursing home is to allow a person (not being an officer of the Department) engaged in the provision of advocacy services on behalf of patients of nursing homes, being a person who is, or who is employed by a person or group of persons who are, approved by the Minister to provide such advocacy services, to enter the nursing home at any reasonable time for the purpose of meeting with patients and is to provide the person with all reasonable facilities and assistance in achieving that purpose;
(ck) a condition that the nursing home care provided in the nursing home satisfies the standards determined under section 45D;
(d) any other conditions determined by the Minister for the purpose of:
(i) ensuring that the needs of qualified nursing home patients, short‑term respite care patients or Repatriation nursing home patients in the nursing home are satisfactorily provided for; or
(ii) otherwise protecting the welfare and interests of qualified nursing home patients, short‑term respite care patients or Repatriation nursing home patients in the nursing home.
(6AAA) Where, immediately before the date on which application was made for approval of premises as an approved nursing home, the proprietor of the nursing home was the holder of a certificate in force under subsection 39A(2) or 39B(5) in relation to the nursing home, the Minister shall not exercise the powers under paragraph (6)(aa) to determine a special purpose in relation to the nursing home in a manner inconsistent with that certificate.
(6AAB) Where the Minister, under paragraph (6)(a), determines, or has at any time determined, the approved number of beds in relation to a nursing home, the Minister may determine, in writing, that such number of those beds as is specified in the second determination are approved in relation to a particular special needs group or particular special needs groups.
(6AAC) The Minister may, on application in writing made by the proprietor of a nursing home or otherwise, revoke or vary a determination made under subsection (6AAB) in relation to the nursing home.
(6AA) Where, immediately before the date on which application was made for approval of premises as an approved nursing home, the proprietor of the nursing home was the holder of a certificate in force under subsection 39A(2) or 39B(5) in relation to the nursing home, the Minister shall not exercise the powers under paragraph (6)(a) to determine a number of beds in relation to the nursing home in a manner inconsistent with that certificate.
(6B) Without limiting the generality of subparagraph (6)(d)(ii), conditions determined under paragraph (6)(d) by virtue of that subparagraph may include conditions relating to the liability of the proprietor of a nursing home and other persons for any loss, injury or damage incurred or suffered by qualified nursing home patients, short‑term respite care patients or Repatriation nursing home patients in the nursing home.
(6BA) A person who is a community visitor referred to in paragraph (6)(cg) may inform an officer of the Department or the proprietor of the relevant nursing home of any matter relating to the provision of nursing home care in the nursing home that comes to the notice of the person, including matters brought to the person's notice by a patient.
(6BB) Despite the provisions of any State law, a person, including the proprietor of a nursing home, may do anything reasonably required to enable compliance with a condition specified in subsection (6).
(7) The Minister may, by written instrument, formulate principles for the determination of:
(b) any matter required by this Act to be determined in accordance with principles formulated under this subsection.
(7B) In formulating principles under subsection (7), the Minister shall have regard to:
(a) the need to ensure that nursing homes are efficiently and economically operated;
(b) the need to ensure that the cost to nursing home patients of nursing home care is not excessive or unreasonable; and
(c) any other matters the Minister considers to be relevant.
(8) Where:
(a) a person is admitted to an approved nursing home as a qualified nursing home patient without prior approval under section 40AB being obtained to the admission; and
(b) the Minister is satisfied:
(i) that the circumstances of the admission were such that it was not practicable for prior approval to be obtained; and
(ii) that, if an application had been made under section 40AB at the time of the admission, the application would have been approved;
the Minister shall approve the admission but, if not so satisfied, shall refuse to approve the admission and, in either case, shall notify the person, in writing, accordingly.
(9) An approval under subsection (8) of an admission has effect for the purposes of this Act as if:
(a) it had been given under subsection 40AB(3) before the admission; and
(b) it were expressed to have effect for a period that includes the day of the admission.
(12) For the purposes of calculating the amount referred to in sub-subparagraph (6)(bb)(ii)(B), the effect (if any) of section 59 shall be disregarded.
(13) Where a person is admitted to an approved nursing home as a qualified nursing home patient or as a short‑term respite care patient without approval having been obtained under section 40AB, the proprietor of the nursing home shall, as soon as practicable and, in any case, within 3 days after the day of admission, notify the Secretary of the admission of the person.
(14) An application for approval under subsection (8) shall be in accordance with the authorised form and shall be sent, by prepaid post, to the Secretary.
(15) Subject to subsection (16), approval under subsection (8) of the admission of a person to a nursing home shall not be given unless:
(a) notification has been given in accordance with subsection (13); and
(b) the application for approval is made within 3 days after the day of admission.
(16) Notwithstanding subsection (15), approval under subsection (8) may be given where:
(a) an application is made in accordance with subsection (14) by the proprietor of a nursing home;
(b) because of special circumstances, it was not practicable for the application to be made within the period specified in subsection (15);
(c) notification was given in accordance with subsection (13); and
(d) the application was made as soon as was practicable.
(17) The period of 3 days referred to in subsection (15) shall be ascertained exclusive of Saturday, Sunday and any day that is a public holiday in the place in which the nursing home is situated.
(18) Where a person is admitted to an approved nursing home as a qualified nursing home patient without approval under section 40AB, the proprietor of the nursing home shall, while the person remains a patient in the home without approval under subsection (8) or section 40AB, make the deduction required by subsection (5A) in the amount that would have been required if the person were an approved nursing home patient.
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