159Determination that certain conditions relating to the governing body of a registered provider do not apply

159  Determination that certain conditions relating to the governing body of a registered provider do not apply

Application for determination

 (1) A registered provider may apply to the Commissioner for a determination that either or both of the following conditions (the governance conditions) do not apply in relation to the provider:

 (a) the condition set out in paragraph 157(2)(a);

 (b) the condition set out in paragraph 157(2)(b).

Note: The Commissioner is not required to make a decision on the application if this subsection is not complied with: see section 589.

Making of determination

 (3) If a registered provider makes an application under subsection (1), the Commissioner may determine that either or both of the governance conditions do not apply in relation to the provider if the Commissioner is satisfied that it is reasonable to do so.

 (4) In deciding whether to make the determination in relation to the registered provider, the Commissioner may take into account the following matters:

 (a) the number of funded aged care services that the provider delivers;

 (b) the number of individuals to whom the provider delivers those services;

 (c) the geographic area in which those services are delivered;

 (d) the annual turnover in the provider’s responsible persons;

 (e) the membership of the governing body of the provider;

 (f) any arrangements that the provider has made, or proposes to make, to assist:

 (i) the members of the governing body of the provider to act objectively and independently in the best interests of the provider; or

 (ii) the governing body of the provider to seek, when it considers it necessary to do so, advice from a person with experience in the provision of clinical care;

 (g) any other requirements applying to the provider under a law of the Commonwealth or a law of a State or Territory in which the provider delivers funded aged care services;

 (h) any other matter prescribed by the rules.

Notice of determination etc.

 (5) If the Commissioner decides to make the determination in relation to the registered provider, the Commissioner must give the provider written notice of the following:

 (a) the making of the determination;

 (b) the governance condition to which the determination relates;

 (c) the period for which the determination is in force.

Note: The determination may remain in force for a period specified by the Commissioner or until it is revoked under section 160.

 (6) If the Commissioner decides not to make the determination in relation to the registered provider, the Commissioner must give the provider written notice of the following: