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NATIONAL HEALTH AMENDMENT ACT 1992 No. 200, 1992 - SECT 19
19. After Part VC of the Principal Act the following Part is inserted:
"PART VD-REQUIREMENTS IN RESPECT OF SALE OF APPROVED NURSING HOMES
"Division 1-Preliminary
Object of Part
"63. The object of this Part is to provide, in relation to the sale of an
approved nursing home, for:
(a) the giving of notices of sale and purchase; and
(b) the investigation of the nursing home's accounts etc. prior to sale;
and
(c) the giving of certain information about the nursing home to the vendor
and purchaser before the completion of the contract of sale; and
(d) the recovery of any overpayment of Commonwealth benefit paid in
respect of approved nursing home patients in the nursing home.
Application and operation of Part
"64.(1) This Part applies to the sale of an approved nursing home (other than
a Government nursing home or a nursing home for disabled people) whether or
not that sale involves a transfer of nursing home beds under section 39B. Note
1: For the meaning of 'nursing home for disabled people' see subsection 4(1).
Note 2: For the meaning of 'Government nursing home' see subsection 4(1).
"(2) If the vendor is selling the business or undertaking carried on at the
nursing home to different purchasers, this Part applies to each of those sales
as if each was a sale of an approved nursing home.
"(3) This Part does not apply if the contract of sale of an approved nursing
home was entered into before this Part commenced.
"(4) This Part operates as follows:
(a) notice of sale must be given in accordance with sections 65A and 65B;
(b) then:
OPERATION OF PART
Notice given Requirements Payment of certain
on sale- moneys to the
Division 2 Commonwealth-
sections Division 3 sections
that apply that apply
If the Secretary receives Section 65C Section 65H (direction
90 days or more notice of sale Section 65D to purchaser)
of nursing home and it is sold Section 65E Subsections 65K(1),
on or after the notified day for (5) and (6)
completion of sale (overpayment
outstanding)
Section 65Q
Section 65R
Section 65S
If the Secretary receives Section 65F Section 65J (direction
less than 90 days notice of to purchaser)
sale of nursing home and it Subsections
is sold on or after the 65K(1), (3) and (4)
notified day for completion Section 65N
of sale Section 65P
If the Secretary does not Section 65G Subsections 65K(1) and
become aware of sale until (2) Section 65M
afterwards or it is sold
before the notified day
for completion of sale Interpretation
"65.(1) In this Part, unless the contrary intention appears:
'business or undertaking', in relation to an approved nursing home, means the
right to operate all of the beds determined under paragraph 40AA(6)(a) as the
number of approved beds in relation to the nursing home;
'Commonwealth benefit' has the meaning given by subsection 46(1);
'fee-determining benefit' means an amount of Commonwealth benefit that may, in
accordance with the principles formulated under subsection 40AA(7), be taken
into account to reduce or increase fees (as the case may be) when determining
a scale of fees in respect of the nursing home;
'first investigation', in relation to an approved nursing home that is being
sold, means the investigation carried out under paragraph 65C(1)(c);
'first investigation period', in relation to an approved nursing home that is
being sold, means the period referred to in paragraph 65C(1)(c);
'investigation to be carried out' has the meaning given by subsection (5);
'missed out on receiving' has the meaning given in subsection (4);
'notified day for completion of sale', in relation to a nursing home that is
being sold, means the day on which, according to:
(a) any notice given under the Act by the vendor to the Secretary; or
(b) if the vendor has not given notice-any notice given under the Act by
the purchaser to the Secretary; or
(c) if neither the vendor nor the purchaser has given notice-the
information (if any) received by the Secretary; the sale of the
nursing home is to be completed;
'notional scale of fees' has the meaning given by subsection 46(1);
'overpayment', in relation to Commonwealth benefit, has the meaning given by
section 46B;
'overpayment outstanding' has the meaning given by section 65K;
'purchase of an approved nursing home' has the meaning given by subsection
(2);
'purchaser payment', in relation to an approved nursing home that is being
sold, means an amount paid by the purchaser of the nursing home in answer to a
direction given under section 65H or 65J;
'purchase price', in relation to an approved nursing home that is being sold,
means:
(a) the amount of money (if any) paid by the purchaser for the transfer of
the ownership of the business or undertaking carried out at the
nursing home to him or her; or
(b) if the vendor is also selling real or personal property used:
(i) to accommodate the business or undertaking carried out at the
nursing home; or
(ii) in the operation of the business or undertaking; the sum of the
amount of money that the purchaser pays for that property and
of the amount referred to in paragraph (a);
'sale of an approved nursing home' has the meaning given by subsection (3);
'second investigation', in relation to an approved nursing home that is being
sold, means the investigation carried out under paragraph 65C(1)(d);
'second investigation period', in relation to an approved nursing home that is
being sold, means the period referred to in paragraph 65C(1)(d);
'vendor', in relation to an approved nursing home that is being, or has been,
sold, means the proprietor of the nursing home immediately before the sale;
'vendor payment', in relation to an overpayment outstanding in respect of an
approved nursing home, means an amount paid by the vendor to the Commonwealth
under section 65K.
"(2) A purchase of an approved nursing home occurs when the ownership of the
business or undertaking carried out at the nursing home is transferred from
one person to another person whether or not that transfer results from the
payment of an amount of money.
"(3) A sale of an approved nursing home is the transfer of the ownership of
the business or undertaking carried out at the nursing home from one person to
another person whether or not that transfer occurs as the result of the
payment of an amount of money.
"(4) For the purposes of this Part, if:
(a) a proprietor of an approved nursing home has, before the commencement
of this Act, received an amount of Commonwealth benefit in respect of
the provision of nursing home care to an approved nursing home patient
on a day; and
(b) a reconciliation of the actual and estimated expenditure by the
proprietor in respect of the provision of that care has been done in
accordance with principles formulated under subsection 40AA(7); and
(c) on the basis of the reconciliation it appears that the proprietor
should have been entitled to receive, in respect of the provision of
that care, an amount of Commonwealth benefit that is higher than the
amount received by the proprietor; the proprietor has missed out on
receiving the difference between that higher amount and the amount
received by the proprietor.
"(5) A reference in this Part to an investigation to be carried out in respect
of an approved nursing home is a reference to an investigation of such of the
accounts, books, documents or other records relevant to the operation of the
nursing home as the Secretary thinks appropriate.
"Division 2-Requirements on sale of approved nursing home Vendor must give
notice of sale of approved nursing home
"65A.(1) The vendor of an approved nursing home who enters into a contract to
sell the nursing home must, before the day of completion of the sale, give the
Minister notice, in writing, of the following matters:
(a) the name and address of the nursing home;
(b) the name and address of the other party to the contract;
(c) the proposed day and time of completion of the sale;
(d) the address at which completion will take place. Penalty: $20,000.
"(2) The vendor must not complete the sale within:
(a) 90 days of giving notice; or
(b) such lesser period as the Secretary may determine at the request of
the vendor. Penalty: $20,000.
"(3) If the Secretary determines a period of less than 90 days, he or she must
notify the vendor, in writing, of that lesser period.
"(4) If:
(a) the vendor has given notice under subsection (1); and
(b) the particulars referred to in paragraphs (1)(c) or (d) change; the
vendor must give the Secretary notice in writing ('amended notice') of
the following matters:
(c) the date and time of completion of the sale;
(d) the address at which completion will take place.
"(5) The vendor must give the amended notice at least 14 days before the day
of completion of the sale. Penalty: $5,000.
"(6) If:
(a) the vendor has given notice under subsection (1); and
(b) the notice does not contain particulars as to the proposed date and
time of completion of the sale of the nursing home; the notice is
taken not to have been given.
"(7) If:
(a) the vendor has given notice under subsection (1) and the particulars
referred to in paragraph (1)(c) or (d) change; and
(b) the vendor does not give an amended notice; the notice is taken not to
have been given. Purchaser to give notice of prospective purchase of
approved nursing home
"65B.(1) A person who contracts with the vendor of an approved nursing home to
purchase the nursing home must give the Minister notice, in writing, of the
following matters:
(a) that he or she has entered into a contract to purchase a nursing home;
(b) the name of the vendor and the name and address of the nursing home;
(c) the proposed time and day of completion of the sale;
(d) the address at which completion will take place;
(e) his or her name and address.
"(2) The person must give notice at least 42 days before the day of completion
of the sale.
"(3) If:
(a) the purchaser has given notice under subsection (1); and
(b) the particulars referred to in paragraph (1)(c) or (d) change; the
purchaser must give the Secretary notice in writing ('amended notice')
of the following matters:
(c) the date and time of completion of the sale;
(d) the address at which completion will take place.
"(4) If:
(a) the purchaser had given notice under subsection (1); and
(b) the notice does not contain particulars as to the proposed date and
time of completion of the sale of the nursing home; the notice is
taken not to have been given. Investigation of accounts etc. of
approved nursing home
"65C.(1) If the Secretary:
(a) has received notice of 90 days or more of the intended sale of an
approved nursing home; or
(b) been otherwise informed of the sale 90 days or more before the
proposed day of sale; the Secretary must order the following
investigations to be carried out in respect of the nursing home:
(c) an investigation in respect of the period beginning on a day
determined by the Secretary and ending on the last preceding 30 June;
and
(d) an investigation in respect of the period beginning on the immediately
preceding 1 July and ending at the end of the day immediately before
the day on which the contract of sale is completed.
"(2) The purpose of each investigation is to:
(a) establish whether the vendor, or an earlier proprietor of that nursing
home, has received an overpayment in respect of the nursing home, in
respect of the investigation period; and
(b) if there has been such an overpayment-allow the Secretary to work out
the amount of the overpayment and how much of it (if any) has not been
recovered as at the last day in the investigation period; and
(c) if the investigation period began on a day earlier than the
commencement of this Part-establish whether the vendor, or an earlier
proprietor of that nursing home, has received, or missed out on
receiving, a fee-determining benefit in respect of the investigation
period; and
(d) if the vendor, or an earlier proprietor of the nursing home, has
received, or missed out on receiving (as the case may be), a
fee-determining benefit-allow the Secretary to work out the amount of
benefit. Secretary may also determine certain matters
"65D.(1) Before the second investigation in respect of the operation of an
approved nursing home is completed, the Secretary must determine, in writing:
(a) whether, in the Secretary's opinion, the vendor, or an earlier
proprietor of the nursing home, has received an overpayment in respect
of the nursing home, in respect of the second investigation period;
and
(b) the amount (if any) that, in the Secretary's opinion, is a fair
estimate of the total amount of any such overpayment.
"(2) In determining an amount under paragraph (1)(b) the Secretary must comply
with any relevant principles in force under subsection (3).
"(3) The Minister may set out, in writing, principles to be complied with by
the Secretary with respect to his or her powers under subsection (1). Note:
See section 65T for when the principles come into force. Parties to a contract
of sale to be informed of results of investigation etc.
"65E. If the Secretary has ordered an investigation to be carried out in
respect of an approved nursing home under section 65C, the Secretary may,
before the notified day for completion of sale of the nursing home, give to
each of the parties to the contract of sale notice in writing of:
(a) the amount of any overpayment established by the investigation carried
out under paragraph 65C(1)(c); and
(b) the means by which that amount was calculated; and
(c) the amount of any fee-determining benefit that the vendor, or an
earlier proprietor of that nursing home, has received or missed out on
receiving; and
(d) the means by which that amount of fee-determining benefit was
calculated; and
(e) if the Secretary has determined an amount for the purposes of
paragraph 65D(1)(b)-the amount and the means by which the amount was
calculated; and
(f) the amount of any grant of Commonwealth benefit paid in respect of the
nursing home; and
(g) any other information about a scale of fees or a notional scale of
fees determined in respect of the nursing home that, in the
Secretary's opinion, the person purchasing the home should have.
Proprietor gives less than 90 days notice of settlement of contract of
sale or settles in less than 90 days
"65F.(1) If less than 90 days before the proposed day for completion of the
sale, the Secretary:
(a) receives notice of the sale of an approved nursing home under section
65A or 65B; or
(b) is otherwise informed of the intended sale of the nursing home; the
Secretary must:
(c) order an investigation to be carried out in respect of the nursing
home in respect of the period beginning on a day determined by the
Secretary and ending on the day immediately before the day on which
the contract of sale is to be completed; and
(d) determine whether, in the Secretary's opinion, the vendor or an
earlier proprietor of that nursing home has received an overpayment in
respect of the investigation period; and
(e) if the Secretary determines that, in his or her opinion, the vendor or
an earlier proprietor has received an overpayment in respect of the
investigation period-determine:
(i) the amount that, in the Secretary's opinion, is an estimate of
the overpayment so received; and
(ii) how much of that amount, in the Secretary's opinion, will not
be recovered by the Commonwealth as at the notified day for
completion of sale; and
(f) if the investigation period began on a day earlier than the
commencement of this Part-determine whether, in the Secretary's
opinion, the vendor, or an earlier proprietor of the nursing home, has
received, or missed out on receiving, a fee-determining benefit in
respect of the investigation period; and
(g) if the Secretary determines that, in his or her opinion, the vendor or
an earlier proprietor of the nursing home has received, or missed out
on receiving (as the case may be), afee-determining benefit-determine
an amount that is, in the Secretary's opinion, a fair estimate of that
amount.
"(2) The purpose of the investigation is to:
(a) establish whether the vendor, or an earlier proprietor of that nursing
home, has received an overpayment in respect of the nursing home in
respect of the investigation period; and
(b) if there has been such an overpayment-allow the Secretary to work out
the amount of the overpayment and how much of it (if any) is still
owing on the last day in the investigation period; and
(c) if the investigation period began on a day earlier than the
commencement of this Part-establish whether the vendor, or an earlier
proprietor of that nursing home, has received, or missed out on
receiving, a fee-determining benefit in respect of the investigation
period; and
(d) if the vendor, or an earlier proprietor of that nursing home, has
received, or missed out on receiving (as the case may be), a
fee-determining benefit-allow the Secretary to work out the amount of
benefit.
"(3) A determination under paragraph (1)(e) or (g) must:
(a) be in writing; and
(b) state the amount determined by the Secretary; and
(c) set out the means by which the amount is determined.
"(4) On or before the notified day of completion of the sale, a copy of the
determination may be provided to both the vendor and the purchaser of the
nursing home.
"(5) In determining an amount under paragraph (1)(e) the Secretary must comply
with any relevant principles in force under subsection (6).
"(6) The Minister may set out, in writing, principles to be complied with by
the Secretary with respect to his or her powers under paragraph (1)(e). Note:
See section 65T for when the principles come into force. If no notice of sale
given or vendor sells before notified date
"65G.(1) This section applies in the following cases:
(a) if:
(i) an approved nursing home has been sold; and
(ii) the Secretary did not receive notice of the sale under section
65A or 5B or was not otherwise informed of the sale before the
day of completion of sale;
(b) if the proprietor of an approved nursing home sells the nursing home
before the notified day for completion of sale of the home.
"(2) On and from the day that the Secretary becomes aware that the nursing
home has been so sold, any obligations imposed on the Secretary under sections
65C, 65D, 65E or 65F cease to operate.
"(3) The Secretary must order an investigation to be carried out in respect of
the nursing home in respect of the period beginning on a day determined by the
Secretary and ending on the day immediately before the day on which the
contract of sale was completed for the purposes of:
(a) determining whether the vendor or an earlier proprietor of that
nursing home has received an overpayment in respect of the
investigation period; and
(b) if the investigation period began on a day earlier than the
commencement of this Part-determining whether the vendor or an earlier
proprietor of that nursing home has received, or missed out on
receiving, a fee-determining benefit in respect of the investigation
period.
"(4) The Secretary must:
(a) determine whether the vendor or an earlier proprietor of that nursing
home has received an overpayment in respect of the investigation
period and, if there has been such an overpayment, determine:
(i) the amount of the overpayment so received; and
(ii) how much of that amount will not be recovered as at the day
before the day on which the contract of sale was completed; and
(b) if the investigation period began on a day earlier than the
commencement of this Part-determine whether the vendor or an earlier
proprietor of that nursing home has received, or missed out on
receiving, a fee-determining benefit in respect of the investigation
period and, if the Secretary determines that there is such an amount
of fee-determining benefit, determine the amount of it.
"(5) A determination under paragraph (4)(a) or (b) must:
(a) be in writing; and
(b) state the amount determined by the Secretary; and
(c) set out the means by which the amount is determined.
"(6) In determining an amount under paragraph (4)(a) the Secretary must comply
with any relevant principles in force under subsection (7).
"(7) The Minister may set out, in writing, principles to be complied with by
the Secretary with respect to his or her powers under paragraph (4)(a). Note:
See section 65T for when the principles come into force.
"Division 3-Payment of certain moneys to the Commonwealth If paragraphs
65C(1)(c) and (d) investigations done-direction to purchaser to pay amount to
the Commonwealth
"65H.(1) If investigations of the kind referred to in paragraphs 65C(1)(c) and
(d) have been ordered in respect of an approved nursing home, the Secretary
may, in writing, direct the purchaser of the nursing home to pay to the
Commonwealth on or before the notified day for completion of sale of the
nursing home:
(a) so much of the purchase price as is equal to the sum of:
(i) the amount of the overpayment established by the first
investigation undertaken in respect of the operation of the
nursing home; and
(ii) the amount determined under paragraph 65D(1)(b) in respect of
the nursing home; or
(b) if the purchase price is less than the sum of the amounts referred to
in subparagraphs (a)(i) and (ii) the purchase price.
"(2) If the purchaser payment is more than the overpayment established by the
first investigation:
(a) so much of the purchaser payment as equals the overpayment is taken to
have been paid in settlement of the amount due by the vendor to the
Commonwealth in respect of the overpayment; and
(b) the balance of the purchaser payment is taken to be money ('trust
money') held in trust by the Commonwealth for the benefit of the
proprietor of the nursing home until the second investigation carried
out in respect of the nursing home is completed.
"(3) If the purchaser payment is equal to or less than the overpayment
established by the first investigation, the whole of the purchaser payment is
taken to be paid in settlement, or part settlement (as the case may be), of
the amount due by the vendor to the Commonwealth in respect of the
overpayment.
"(4) When the second investigation is completed:
(a) if the trust money is more than the overpayment (if any) established
by the second investigation:
(i) so much of it as is equal to the overpayment is taken to have
been paid to the Commonwealth in settlement of the amount due
to the Commonwealth by the vendor in respect of the
overpayment; and
(ii) the remainder of the trust money is to be paid to the vendor;
or
(b) if the trust money is equal to or less than the overpayment in respect
of the second investigation period, it is taken to have been paid to
the Commonwealth in settlement, or part settlement, of the amount due
to the Commonwealth by the vendor in respect of the overpayment.
"(5) Money paid to the Commonwealth by the purchaser is taken to have been
paid by the purchaser to the vendor as consideration, or part of the
consideration, under the contract for the sale of the nursing home. If amount
determined under paragraph 65F(1)(e)-direction to purchaser to pay amount to
the Commonwealth
"65J.(1) If, in respect of the sale of an approved nursing home, the Secretary
has determined an amount under paragraph 65F(1)(e), the Secretary may, in
writing, direct the purchaser of the nursing home to pay to the Commonwealth
on or before the notified day for completion of sale of the nursing home:
(a) if the purchase price is equal to or less than the amount
determined-the purchase price; or
(b) if the purchase price is more than the amount determined-so much of
the purchase price as is equal to the amount so determined.
"(2) The amount paid under subsection (1) is taken to be money ('trust money')
held in trust by the Commonwealth for the benefit of the vendor until the
investigation carried out under paragraph 65F(1)(c) is completed.
"(3) When the investigation carried out under paragraph 65F(1)(c) is
completed:
(a) if the trust money is more than the overpayment (if any) in respect of
the period to which the investigation related:
(i) so much of the trust money as is equal to the overpayment is
taken to have been paid to the Commonwealth in settlement of
the amount due to the Commonwealth by the vendor in respect of
the overpayment; and
(ii) the remainder of the trust money is to be paid to the vendor;
or
(b) if the trust money is equal to or less than the overpayment in respect
of the period to which the investigation related-it is taken to have
been paid to the Commonwealth in settlement, or part settlement, of
the amount due to the Commonwealth by the vendor in respect of the
overpayment.
"(4) Money paid to the Commonwealth by the purchaser is taken to have been
paid by the purchaser to the vendor as consideration, or part of the
consideration, under the contract for the sale of the nursing home. Certain
moneys to be paid by proprietor of nursing home to the Commonwealth on or
before sale of nursing home
"65K.(1) The vendor of an approved nursing home must, on or before the
notified day for completion of sale of the nursing home, pay to the
Commonwealth an amount equal to the amount that is, under subsection (2), (3),
(4), (5) or (6), the overpayment outstanding in respect of the nursing home.
Penalty: $50,000.
"(2) If:
(a) the Secretary did not receive notice of the sale of the nursing home
under section 65A or 65B or was not otherwise informed of the sale
before the day of completion of the sale; or
(b) the vendor sells the nursing home before the notified day for
completion of sale of the home; the overpayment outstanding in respect
of the nursing home is equal to the sum of the advances in respect of
Commonwealth benefit paid to the vendor in respect of approved nursing
home patients who received nursing home care in the nursing home
during any accounting period in respect of which the Secretary has not
determined a notional scale of fees. Note: For the meaning of
'notional scale of fees' see section 46.
"(3) If:
(a) the Secretary has made a determination under paragraph 65F(1)(e) in
respect of the nursing home; and
(b) a copy of the determination has been given to the vendor on or before
the day of completion of the sale; and
(c) no purchaser payment has been made in respect of the sale of the
nursing home; and
(d) subsection (2) does not apply; the overpayment outstanding in respect
of the nursing home is the amount specified in the determination.
"(4) If:
(a) the Secretary has made a determination under paragraph 65F(1)(e) in
respect of the nursing home; and
(b) a copy of the determination has been given to the vendor on or before
the day of completion of the sale; and
(c) a purchaser payment has been made in respect of the sale of the
nursing home; and
(d) subsection (2) does not apply; the overpayment outstanding in respect
of the nursing home is the difference between:
(e) the amount specified in the determination; and
(f) the purchaser payment.
"(5) If:
(a) an investigation has been carried out under paragraph 65C(1)(c) in
respect of the nursing home; and
(b) an amount has been determined under paragraph 65D(1)(b); and
(c) no purchaser payment has been made in respect of the sale of the
nursing home; and
(d) subsection (2) does not apply; the overpayment outstanding in respect
of the nursing home is the sum of:
(e) the amount of overpayment (if any) established by the first
investigation; and
(f) the amount specified in the determination.
"(6) If:
(a) investigations have been undertaken under paragraphs 65C(1)(c) and (d)
in respect of the operation of the nursing home; and
(b) an amount has been determined under paragraph 65D(1)(b); and
(c) a purchaser payment has been made in respect of the sale of the
nursing home; and
(d) subsection (2) does not apply; the overpayment outstanding in respect
of the nursing home is the difference between:
(e) the sum of:
(i) the overpayment (if any) established by the first
investigation; and
(ii) the amount specified in the determination; and
(f) the purchaser payment. Money paid in settlement of an overpayment
outstanding-how to deal with it
"65L. A vendor payment in relation to an overpayment outstanding in respect of
an approved nursing home is to be dealt with as set out in sections 65M, 65N,
65P, 65Q, 65R and 65S. Note: For the meaning of 'vendor payment' see
subsection 65(1). Treatment of amount paid in respect of overpayment
outstanding to which subsection 65K(2) applies
"65M.(1) This section applies if the overpayment outstanding in respect of the
approved nursing home has been determined under subsection 65K(2).
"(2) The vendor payment is held in trust for the vendor's benefit until the
investigation carried out under subsection 65G(3) in respect of the nursing
home is completed.
"(3) If the investigation establishes that no overpayment is payable by the
vendor, the vendor payment is paid to the vendor.
"(4) If the investigation establishes that there has been, in respect of the
investigation period, an overpayment for which the vendor is liable, then:
(a) if the vendor payment is equal to or less than the overpayment-the
vendor payment is taken to have been paid to the Commonwealth in
settlement or part settlement of the overpayment; or
(b) if the vendor payment is more than the overpayment:
(i) so much of the vendor payment as is equal to the overpayment is
taken to have been paid to the Commonwealth in settlement of
the overpayment; and
(ii) the balance is paid to the vendor. Treatment of amount paid in
respect of overpayment outstanding to which subsection 65K(3)
applies
"65N.(1) This section applies if the overpayment outstanding in respect of the
approved nursing home has been determined under subsection 65K(3).
"(2) The vendor payment is held in trust for the vendor's benefit until the
investigation carried out under paragraph 65F(1)(c) in respect of the nursing
home is completed.
"(3) If the investigation establishes that no overpayment is payable by the
vendor, the vendor payment is paid to the vendor.
"(4) If the investigation establishes that there has been, in respect of the
investigation period, an overpayment for which the vendor is liable, then:
(a) if the vendor payment is equal to or less than the overpayment-the
vendor payment is taken to have been paid to the Commonwealth in
settlement or part settlement of the overpayment; or
(b) if the vendor payment is more than the overpayment:
(i) so much of the vendor payment as is equal to the overpayment is
taken to have been paid to the Commonwealth in settlement of
the overpayment; and
(ii) the balance is paid to the vendor. Treatment of amount paid in
respect of overpayment outstanding to which subsection 65K(4)
applies
"65P.(1) This section applies if the overpayment outstanding in respect of the
approved nursing home has been determined under subsection 65K(4).
"(2) The vendor payment is held in trust for the vendor's benefit until the
investigation carried out under paragraph 65F(1)(c) in respect of the nursing
home is completed.
"(3) If the investigation establishes that no overpayment is payable by the
vendor, the vendor payment is paid to the vendor.
"(4) If:
(a) the investigation establishes that there has been, in respect of the
investigation period, an overpayment for which the vendor is liable;
and
(b) the Commonwealth holds in trust a purchaser payment that is equal to,
or higher than, the overpayment; the vendor payment is paid to the
vendor.
"(5) If:
(a) the investigation establishes that there has been, in respect of the
investigation period, an overpayment for which the vendor is liable;
and
(b) the Commonwealth holds in trust a purchaser payment that is less than
the overpayment; then:
(c) if the vendor payment is equal to or less than the difference
('outstanding debt') between the overpayment and the purchaser
payment-the vendor payment is taken to have been paid to the
Commonwealth in settlement or part settlement of the outstanding debt;
or
(d) if the vendor payment is more than the outstanding debt:
(i) so much of the vendor payment as is equal to the outstanding
debt is taken to have been paid to the Commonwealth in
settlement of that debt; and
(ii) the balance is paid to the vendor. Treatment of amount paid in
respect of overpayment outstanding to which subsection 65K(5)
applies
"65Q.(1) This section applies if the overpayment outstanding in respect of the
approved nursing home has been determined under subsection 65K(5).
"(2) If the first investigation has established that, in respect of the
investigation period, an overpayment is payable by the vendor:
(a) so much of the vendor payment as is equal to the overpayment is taken
to be paid in settlement, or part settlement, of the overpayment; and
(b) the remainder of the vendor payment is held in trust for the benefit
of the vendor until the second investigation is completed.
"(3) If the second investigation establishes that, in respect of that
investigation period, no overpayment is payable by the vendor, the remainder
of the vendor payment is paid to the vendor.
"(4) If the second investigation establishes that there has been, in respect
of that investigation period, an overpayment for which the vendor is liable,
then:
(a) if the remainder of the vendor payment is equal to or less than the
overpayment-the remainder of the vendor payment is taken to have been
paid to the Commonwealth in settlement or part settlement of the
overpayment; or
(b) if the remainder of the vendor payment is more than the overpayment:
(i) so much of the vendor payment as is equal to the overpayment is
taken to have been paid to the Commonwealth in settlement of
the overpayment; and
(ii) the balance is paid to the vendor. Treatment of amount paid in
respect of overpayment outstanding to which subsection 65K(6)
applies-Step 1: first investigation amount
"65R.(1) This section:
(a) applies if the overpayment outstanding in respect of the approved
nursing home has been determined under subsection 65K(6); and
(b) sets out how that part of the vendor payment as is equal to the
overpayment established by the first investigation is to be dealt
with. Note: The treatment of so much of the vendor payment that
relates to the amount (if any) established by the second investigation
is dealt with under section 65S.
"(2) If the purchaser payment in respect of the nursing home was less than the
amount of the overpayment in respect of the first investigation period, then:
(a) so much of the vendor payment as is equal to the difference between
the overpayment and the purchaser payment is taken to have been paid
in settlement, or part settlement, of the overpayment outstanding; and
(b) the balance is held in trust for the vendor's benefit until the second
investigation is completed.
"(3) If the purchaser payment is equal to or more than the overpayment, the
vendor payment is held in trust for the vendor's benefit until the second
investigation is completed. Treatment of amount paid in respect of overpayment
outstanding to which subsection 65K(6) applies-Step 2: second investigation
amount
"65S.(1) This section:
(a) applies if the overpayment outstanding in respect of the nursing home
has been determined under subsection 65K(6); and
(b) sets out how the balance of the vendor payment, held in trust, is to
be dealt with when the second investigation is completed.
"(2) If the second investigation establishes that no overpayment in respect of
that investigation period is payable by the vendor, the balance of the vendor
payment is paid to the vendor.
"(3) If:
(a) the second investigation establishes that there has been, in respect
of that investigation period, an overpayment for which the vendor is
liable; and
(b) the Commonwealth, under section 65H, holds in trust a part of the
purchaser payment in respect of the overpayment that is equal to, or
higher than, the overpayment; the balance of the vendor payment is
paid to the vendor.
"(4) If:
(a) the second investigation establishes that there has been, in respect
of that investigation period, an overpayment for which the vendor is
liable; and
(b) the Commonwealth holds in trust a part of the purchaser payment in
respect of the overpayment that is less than the overpayment; then:
(c) if the balance of the vendor payment is equal to or less than the
difference ('outstanding debt') between the overpayment and the
purchaser payment-the balance of the vendor payment is taken to have
been paid to the Commonwealth in settlement or part settlement of the
outstanding debt; or
(d) if the balance of the vendor payment is more than the outstanding
debt:
(i) so much of the balance of the vendor payment as is equal to the
outstanding debt is taken to have been paid to the Commonwealth
in settlement of that debt; and
(ii) the remainder is paid to the vendor. Note: See examples in the
following tables:
Example of operation of paragraphs 65S(4)(a), (b) and (c)
Facts
1. The amount of the overpayment (OP) established by the second
investigation is $65,000.
2. The purchaser payment held in trust (PP) is $30,000.
3. The balance of the vendor payment (VP) is $35,000.
Application
To work out how the vendor payment is treated under paragraphs
65S(4)(a), (b) and (c).
Step 1 $65,000 (OP)
- $30,000 (PP)
$35,000 (Outstanding debt)
Step 2 $35,000 (Outstanding debt)
- $35,000 (VP)
0
Result
1. $35,000 (VP) is taken is paid in settlement of the overpayment
outstanding.
2. No money is paid to vendor.
Example of operation of paragraphs 65S(4)(a), (b) and (d)
Facts
1. The amount of the overpayment (OP) established by the second
investigation is $65,000.
2. The purchaser payment held in trust (PP) is $30,000.
3. The balance of the vendor (VP) is $60,000.
Application
To work out how the vendor payment is treated under paragraphs
65S(4)(a), (b) and (d).
Step 1 $65,000 (OP)
- $30,000 (PP)
$35,000 (Outstanding debt)
Step 2 $60,000 (VP)
- $35,000 (Outstanding debt)
$25,000
Result
1. $35,000 (VP) is taken to be paid in settlement of the
overpayment outstanding.
2. $25,000 is paid to vendor.
"(5) If:
(a) the second investigation establishes that there has been, in respect
of the investigation period, an overpayment for which the vendor is
liable; and
(b) no part of the purchaser payment is held in trust; then:
(c) if the balance of the vendor payment is equal to or less than the
overpayment-the balance of the vendor payment is taken to have been
paid to the Commonwealth in settlement or part settlement of the
overpayment; or
(d) if the balance of the vendor payment is more than the overpayment:
(i) so much of the balance of the vendor payment as is equal to the
overpayment is taken to have been paid to the Commonwealth in
settlement of the overpayment; and
(ii) the remainder is paid to the vendor. Time when principles take
effect
"65T.(1) Principles set out under subsections 65D(3), 65F(6) and 65G(8):
(a) are to be laid before each House of the Parliament within 15 sitting
days of that House after they have been set out; and
(b) take effect only as provided by the following provisions of this
section.
"(2) If:
(a) notice of a motion to amend the principles is given in either House of
the Parliament within 15 sitting days after they have been laid before
that House; and
(b) the principles, whether or not as amended, are subsequently approved
by that House; and
(c) the other House approves the principles in the form approved by the
first-mentioned House; the principles take effect in the form so
approved from the day on which that other House approves them in that
form.
"(3) If no notice of motion to amend the principles is given in either House
of the Parliament under paragraph (2)(a), the principles take effect from the
day immediately after the last day on which the notice of motion could have
been so given in either House. Parties to a contract of sale to be informed of
certain matters after sale
"65U.(1) If:
(a) an investigation has been undertaken under paragraph 65C(1)(d) in
respect of the operation of a nursing home; and
(b) that investigation establishes that an overpayment in respect of the
second investigation period is payable; the Secretary may give the
vendor and the purchaser of the nursing home information as to the
amount of that overpayment.
"(2) If:
(a) an investigation is carried out under paragraph 65F(1)(c) or
subsection 65G(3) in respect of a nursing home; and
(b) the investigation establishes either:
(i) that an overpayment has been made in respect of the operation
of the nursing home during the investigation period; or
(ii) that the vendor, or an earlier proprietor, has received, or
missed out on receiving (as the case may be), a fee-determining
benefit; the Secretary may give the vendor and the purchaser
information as to the amount of such overpayment or
fee-determining benefit.
"(3) After the sale of a nursing home is completed, the Secretary may provide
the purchaser of the home with any other information about a scale of fees or
a notional scale of fees determined in respect of the home that, in the
Secretary's opinion, the purchaser should have.
"(4) The Secretary may provide the purchaser of the home with any information
about a grant of Commonwealth benefit (if any) made in respect of the home.".
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