Part 2—Transitional provisions for Chapter 2 of the new Act
2 Access approvals for service groups home support, assistive technology and home modifications
Access approvals and related decisions
(1) The System Governor is taken to have made the following decisions at the transition time, in relation to an individual to whom subitem (2) applies or who is in a transitional cohort under a determination made under subitem (3):
(c) for an individual referred to in paragraph (2)(a) or (e) of this item—a decision under paragraph 65(2)(a) of the new Act that the individual is approved for the following:
(i) the classification type ongoing for the service group home support;
(d) for an individual referred to in paragraph (2)(b) of this item—a decision under paragraph 65(2)(a) of the new Act that the individual is approved for the following:
(i) the classification type short‑term for the service group home support;
(e) for an individual referred to in paragraph (2)(c) of this item—a decision under paragraph 65(2)(a) of the new Act that the individual is approved for the following:
(i) the classification type hospital transition for the service group home support;
(ii) the classification type hospital transition for the service group assistive technology;
(f) for an individual referred to in paragraph (2)(d) or (f) of this item—a decision under paragraph 65(2)(a) of the new Act that the individual is approved for the following:
(i) the classification types ongoing and short‑term for the service group home support;
(g) for an individual who is in a transitional cohort under a determination made under subitem (3)—a decision under paragraph 65(2)(a) of the new Act that the individual is approved for each service group and each classification type for that service group specified by the determination;
(h) for an individual referred to in any paragraph in subitem (2) of this item and who is not an Aboriginal or Torres Strait Islander person:
(i) a decision under subparagraph 65(2)(b)(i) of the new Act that the individual is approved for all service types in each of those service groups; and
(ii) a decision under subparagraph 65(2)(b)(ii) of the new Act that the individual is approved for all funded aged care services in a service type to which that subparagraph applies.
Individuals to whom transition applies
(2) This subitem applies to the individual if, as at immediately before the transition time, the individual:
(a) was approved under section 22‑1 of the old Act as a recipient of home care; or
(b) was approved under section 22‑1 of the old Act as a recipient of flexible care in the form of short‑term restorative care (within the meaning of the old Principles); or
(c) was approved under section 22‑1 of the old Act as a recipient of flexible care in the form of transition care (within the meaning of the old Principles); or
(d) either:
(i) was accessing flexible care provided in a community setting through a multi‑purpose service (within the meaning of the old Principles); or
(ii) was party to a written agreement with an approved provider (within the meaning of the old Act) of a multi‑purpose service (within the meaning of the old Principles) which provides for the individual to commence accessing flexible care provided in a community setting through that service within the period of 3 months beginning at the transition time; or
(e) had been assessed as eligible for Commonwealth Home Support Programme services; or
(f) had, at any time in the previous 12 months, accessed services under the National Aboriginal and Torres Strait Islander Flexible Aged Care Program.
Part Part 2 - Aged Care (Consequential and Transitional Provisions) Act 2024 - Transitional provisions for Chapter 2 of the new Act | Zoe
(3) The System Governor may, by legislative instrument, determine that individuals included in a specified class are in a transitional cohort for the purposes of this item if:
(a) the individuals in that class were eligible to access aged care (whether under the old Act or under a Commonwealth program) at any time in the 12 month period ending at the transition time; and
(b) the System Governor considers it reasonably necessary to make the determination to ensure continuity of aged care for those individuals.
(4) A determination under subitem (3) may be made after the transition time.
Limitations on funded aged care services to which transition applies for individuals eligible for Commonwealth Home Support Programme
(5) Despite subparagraph (1)(h)(i), that subparagraph does not apply in relation to an individual to whom paragraph (2)(e) applies and a service type (a new Act service type) referred to in that subparagraph unless the individual had been assessed as eligible under the Commonwealth Home Support Programme for a service type that corresponds as nearly as possible to the new Act service type.
Limitations on funded aged care services to which transition applies for individuals who are not Aboriginal or Torres Strait Islander persons
(6) Despite subparagraph (1)(h)(i) or (ii), that subparagraph does not apply in relation to an individual who is not an Aboriginal or Torres Strait Islander person and a service type or funded aged care service referred to in that subparagraph unless:
(a) the individual has a long‑term physical, mental, sensory or intellectual impairment and the impairment may hinder the individual’s participation in society on an equal basis with others as a result of the impairment’s interaction with various barriers; and
(b) any of the following apply:
(i) each of the funded aged care services in the service type, or the funded aged care service, is an in‑home, residential or other community support service and access to the funded aged care services in the service type, or the funded aged care service, is necessary to support the individual to live and be included in the community, and to prevent isolation or segregation of the individual from the community;
(ii) access to the funded aged care services in the service type, or the funded aged care service, will facilitate personal mobility of the individual in the manner and at the time of the individual’s choice;
(iii) the funded aged care services in the service type each involve, or the funded aged care service involves, a mobility aid or device, or assistive technology, live assistance or intermediaries that will facilitate personal mobility of the individual;
(iv) the funded aged care services in the service type are each, or the funded aged care service is, a health service that the individual needs because of the individual’s impairment or because of the interaction of the individual’s impairment with various barriers;
(v) the funded aged care services in the service type are each, or the funded aged care service is, a habilitation or rehabilitation service;
(vi) the funded aged care services in the service type are each, or the funded aged care service is, a service that will assist the individual to access a service mentioned in subparagraph (iv) or (v);
(vii) the funded aged care services in the service type, or the funded aged care service, will minimise the prospects of the individual acquiring a further impairment or prevent the individual from acquiring a further impairment;
(viii) the funded aged care services in the service type are each, or the funded aged care service is, a medical service required by the individual because of sickness.
(7) For the purposes of paragraph (6)(a), an impairment may be long‑term despite the fact it is episodic, fluctuating or varying in intensity over time.
3 Access approvals for service group residential care
(1) The System Governor is taken to have made the following decisions at the transition time, in relation to an individual to whom subitem (2) applies or who is in a transitional cohort under a determination made under subitem (4):
(c) a decision under paragraph 65(2)(a) of the new Act that the individual is approved for the following:
(i) if paragraph (2)(a) of this item applies to the individual—the classification type ongoing for the service group residential care;
(ii) if paragraph (2)(b) of this item applies to the individual—the classification type short‑term for the service group residential care;
(iii) if paragraph (2)(c) or (e) of this item applies to the individual—the classification types ongoing and short‑term for the service group residential care;
(iv) if paragraph (2)(d) of this item applies to the individual—the classification type hospital transition for the service group residential care.
(2) This subitem applies to the individual if, as at immediately before the transition time:
(a) the individual was approved under section 22‑1 of the old Act as a recipient of residential care and that approval did not include a limitation under paragraph 22‑2(1)(c) of the old Act (which deals with the provision of respite care); or
(b) the individual was approved under section 22‑1 of the old Act as a recipient of residential care and that approval included a limitation under paragraph 22‑2(1)(c) of the old Act (which deals with the provision of respite care); or
(c) the individual was approved under section 22‑1 of the old Act as a recipient of residential care and the terms of that approval expressly covers the provision of respite care; or
(d) the individual was approved under section 22‑1 of the old Act as a recipient of residential care and flexible care in the form of transition care (within the meaning of the old Principles); or
(e) subitem (3) applies in relation to the individual and:
(i) the individual was accessing flexible care provided in a residential setting through a multi‑purpose service (within the meaning of the old Principles); or
(ii) the individual was party to a written agreement with an approved provider (within the meaning of the old Act) of a multi‑purpose service (within the meaning of the old Principles) which provides for the individual to commence accessing flexible care provided in a residential setting through that service within the period of 3 months beginning at the transition time; or
(iii) the individual had, at any time in the previous 12 months, received services under the National Aboriginal and Torres Strait Islander Flexible Aged Care Program.
(3) This subitem applies in relation to the individual if:
(a) the individual has, by reason of sickness (within the meaning of the new Act), a continuing need for funded aged care services (including nursing services) in the service group; or
(b) the individual is an Aboriginal or Torres Strait Islander person.
(4) The System Governor may, by legislative instrument, determine that individuals included in a specified class are in a transitional cohort for the purposes of this item if:
(a) the individuals in that class were eligible to access, at any time in the 12 month period ending at the transition time:
(i) residential care, or flexible care provided in a residential setting, under the old Act; or
(ii) care provided in a residential setting under a Commonwealth program; and
(b) the System Governor considers it reasonably necessary to make the determination to ensure continuity of funded aged care services through the service group residential care for those individuals.
(5) A determination under subitem (4) may be made after the transition time.
4 Classification levels, priority category and place allocation decisions
(1) The System Governor must determine, by legislative instrument, for one or more classes of individuals to whom subitem 2(2) applies, or who are in a transitional cohort under a determination made under subitem 2(3), the following:
(a) the classification level taken to be established for each of the individuals in the class under subsection 78(1) of the new Act at the transition time for a classification type for a service group that those individuals are taken to be approved for under subitem 2(1);
(b) if circumstances specified by the determination apply in relation to the individuals in the class and a classification type for a service group specified by the determination—the priority category that each of those individuals is taken to have been assigned for the classification type for the service group under subsection 86(1) of the new Act at the transition time;
(c) if circumstances specified by the determination apply in relation to the individuals in the class and a classification type for a service group specified by the determination—that a place is taken to have been allocated under subsection 92(1) of the new Act at the transition time to each of those individuals for the classification type for the service group.
(2) The System Governor must determine, by legislative instrument, for one or more classes of individuals to whom subitem 3(2) applies, or who are in a transitional cohort under a determination made under subitem 3(4), the following:
(a) the classification level taken to be established for each of the individuals in the class under subsection 78(1) of the new Act at the transition time for a classification type for the service group residential care that those individuals are taken to be approved for under subitem 3(1);
(ab) if circumstances specified by the determination apply in relation to the individuals in the class and a classification type for the service group residential care—the priority category that each of those individuals is taken to have been assigned for the classification type for the service group under subsection 86(1) of the new Act at the transition time;
(b) if circumstances specified by the determination apply in relation to the individuals in the class and a classification type for the service group residential care specified by the determination—that a place is taken to have been allocated under subsection 92(1) of the new Act at the transition time to each of those individuals for the classification type for the service group.
Part 3—Transitional provisions for Chapter 3 of the new Act
Division 1—Provider registration
5 Registration of entities
Deeming of registered providers
(1) The following entities (within the meaning of the new Act) are taken, at the transition time, to be registered as a registered provider under paragraph 105(1)(a) of the new Act:
(a) an entity that is, immediately before the transition time, an approved provider within the meaning of section 7 of the Commission Act;
(b) an entity that is, immediately before the transition time, the holder of an approval under section 63D of the Commission Act that is suspended under section 63N of that Act.
(2) Despite subitem (1), that subitem does not apply in relation to an entity if the System Governor determines, in accordance with any determination made under subitem (14), that the entity is an inactive provider because the entity had not, before the transition time, claimed subsidy (within the meaning of the old Act) for a period of time that the System Governor considers significant.
Registration period
(3) For the purposes of subitem (1), the entity’s registration period for the purposes of section 115 of the new Act is taken to be the period, of no less than 3 months and no more than 3 years and 3 months, determined, in accordance with any determination made under subitem (14), by the System Governor to be appropriate for the provider.
(4) Before making a determination under subitem (3), the System Governor must seek, and take into account, the advice of the Commissioner.
(5) In providing advice for the purposes of subitem (4), the Commissioner must have regard to:
(a) the recency of any audits conducted under the Commission Act in relation to the entity; and
(b) the desirability of ensuring a smooth sequence of audits conducted under section 110 of the new Act.
Registration categories
(6) For the purposes of subitem (1), the entity is, for the purposes of paragraph 105(1)(a) of the new Act, taken to be registered in the registration categories determined by the System Governor (in accordance with any determination made under subitem (14)) to be appropriate for the entity having regard to the following:
(a) the general need for continued delivery of funded aged care services to individuals that correspond as nearly as possible to the types of aged care provided to individuals under the old Act and the services provided under agreements between aged care providers and the Commonwealth;
(b) any types of aged care the entity was, immediately before the transition time, approved to provide under section 63D of the Commission Act;
(c) any services covered in an agreement between the entity and the Commonwealth that was in effect immediately before the transition time;
(d) any types of aged care or services the entity had actually provided to individuals in the period of 12 months ending at the transition time.
Residential care homes and service delivery branches
(7) For the purposes of subitem (1), each of the following places is taken, as determined by the System Governor, having regard to any rules made for the purposes of subsection 10(5) of the new Act and in accordance with any determination under subitem (9) of this item, to be, or be part of, an approved residential care home in relation to the entity for the purposes of paragraph 105(1)(b) and section 112 of the new Act:
(a) any place through which the entity provided either of the following as at immediately before the transition time:
(i) a residential care service that meets its accreditation requirement at the transition time;
(ii) a flexible care service through which the entity provides flexible care in the form of transition care (within the meaning of the old Principles);
(b) any place which, as at immediately before the transition time, was covered by an agreement between the entity and the Commonwealth for the entity to provide flexible care through a multi‑purpose service (within the meaning of the old Principles).
(8) For the purposes of subitem (1), each of the following aged care services through which the entity provided care as at immediately before the transition time is taken to be a service delivery branch of the registered provider for the purposes of the new Act:
(a) a home care service;
(b) a flexible care service through which flexible care is provided as either transition care or short‑term restorative care (within the meaning of the old Principles).
(9) For the purposes of subitem (7), the System Governor may, by legislative instrument and having regard to the matters referred to in that subitem, determine how that subitem applies to different kinds of places.
(10) Despite subitem (7), the System Governor must not determine a place to be, or be part of, an approved residential care home under that subitem unless the System Governor is satisfied that the place, or the places combined, are a residential care home within the meaning of the new Act.
(11) For the purposes of subitem (7), the determination of an approved residential care home must include a determination of the total number of beds for the home, having regard to:
(a) the total number of places allocated under section 14‑1 of the old Act to the entity which include a condition under paragraph 14‑5(3)(b) of that Act that the place is allocated in respect of an aged care service referred to in paragraph (7)(a) of this item in relation to the residential care home; and
(b) any other matter the System Governor considers relevant.
(12) The total number of beds for an approved residential care home determined in accordance with subitem (11) is taken to be the total number of beds in relation to the approved residential care home for the purposes of paragraph 112(1)(b) of the new Act.
Suspended providers
(13) For the purposes of applying the new Act to an entity that is suspended as referred to in paragraph (1)(b) of this item:
(a) the suspension is taken to be a suspension by the Commissioner under section 129 of the new Act; and
(b) the period of suspension for the purposes of subsection 129(2) of the new Act is taken to end at the earlier of the following:
(i) the end of the day (if any) specified under section 63N of the Commission Act as the day the suspension ends;
(ii) the end of the period of 90 days beginning at the transition time.
Determinations by System Governor
(14) For the purposes of subitem (2), (3) or (6), the System Governor may, by legislative instrument and having regard to the matters referred to in that subitem, determine how that subitem applies to different kinds of registered providers.
6 Deemed registered providers
(1) The System Governor may determine, in writing, that an entity is taken to be registered as a registered provider under paragraph 105(1)(a) of the new Act.
(a) the name of the entity; and
(b) the reasons for making the determination; and
(c) the registration period, being 3 months or such longer period as is specified in the determination; and
(d) the day on which the registration period starts; and
(e) each provider registration category in which the entity is taken to be registered under paragraph 105(1)(a) of the new Act; and
(f) if the entity is taken to be registered in the residential care category—each approved residential care home taken to be covered by the entity’s registration; and
(g) the conditions to which the registration is subject under section 142 of the new Act; and
(h) any other matter prescribed by the transitional rules.
(3) The System Governor must not make a determination under subitem (1) unless the System Governor is satisfied that:
(a) the determination will ensure that the provision of certain types of care under the old Act, or services delivered under an agreement between an entity and the Commonwealth, may continue as funded aged care services under the new Act that correspond as nearly as possible to those types of care or services; and
(b) any other requirements prescribed by the transitional rules are met.
(4) The System Governor must give notice of the determination to the entity and the Commissioner.
(5) The Commissioner must record or update the details of the entity’s registration on the Provider Register as soon as practicable after receiving the notice.
7 Deemed approval of residential care homes
(1) For the purposes of paragraph 6(2)(f) of this Schedule, the System Governor may determine, in writing, that a place, or one or more places, are taken to be approved as a residential care home in relation to a registered provider for the purposes of paragraph 105(1)(b) and section 112 of the new Act.
(a) the name of the registered provider; and
(b) the name and address of the residential care home; and
(c) the total number of beds to be covered by the approval; and
(d) the reasons for making the determination; and
(e) the day on which the approval period starts; and
(f) any other matter prescribed by the transitional rules.
(3) The System Governor must not make the determination unless the System Governor is satisfied that both of the following apply:
(a) the place or combination of places meets the definition of residential care home in section 10 of the new Act;
(b) the registered provider and those places meet any other requirements prescribed by the transitional rules.
(4) The System Governor must give notice of the determination to the registered provider and the Commissioner.
(5) The Commissioner must update the details of the registered provider’s registration on the Provider Register as soon as practicable after receiving the notice.
8 Provider Register and information to be provided by registered providers
(1) An entity that is taken to be a registered provider under subitem 6(1) of this Schedule must, within the period of 6 months beginning at the transition time, give the Commissioner a notice, in the approved form, specifying the information referred to in subsection 104(3) of the new Act.
(2) Subitem (1) does not apply if the registered provider makes an application to renew the provider’s registration under subsection 107(1) of the new Act before the end of that period.
(3) Subsection 141(3) (other than paragraphs (3)(a), (e) and (f)) and subsections 141(4), (5) and (6) of the new Act (which deal with the Provider Register) do not apply to an entity referred to in subitem (1) for the period referred to in that subitem.
9 Pending applications for approval as a provider
(1) An application made by a person in accordance with section 63B of the Commission Act for which the Commissioner had not made a decision on the application before the transition time is taken, after that time, to be an application made by the person in accordance with section 104 of the new Act.
(2) For the purposes of subitem (1):
(a) any request, made under subsection 63C(1) of the Commission Act for further information in relation to the application, and for which the period for giving the further information had not ended before the transition time, is taken to be a request made under subsection 588(1) of the new Act; and
(b) the period within which any such further information is required to be given under subsection 588(2) of the new Act is taken to be the period referred to in paragraph (a) of this subitem; and
(c) the period within which the decision on the application must be made under subsection 105(2) of the new Act is taken to be the period within which a decision was required to be made under subsection 63D(1) of the Commission Act.
10 Revocations of provider approvals
Pending notices of revocation of approval
(1) A notice given to a person by the Commissioner in accordance with section 63K of the Commission Act for which the Commissioner had not made a decision before the transition time is taken, after that time, to be a notice given to the person in accordance with section 132 of the new Act.
(2) For the purposes of subitem (1), the period within which the person may make submissions in relation to the matter for the purposes of paragraph 132(2)(b) of the new Act is taken to be the period within which the person was permitted to make submissions in relation to the matter in accordance with paragraph 63K(2)(b) of the Commission Act.
Pending requests for revocation of approval
(3) A request given to the Commissioner in accordance with section 63H of the Commission Act for which the Commissioner had not made a decision before the transition time is taken, after that time, to be a request given to the Commissioner in accordance with subsection 131(3) of the new Act.
Pending revocations of approval on request by provider
(4) If, before the transition time, the Commissioner has revoked the approval of an entity as an approved provider under subsection 63H(3) of the Commission Act but that revocation had not taken effect before the transition time, the Commissioner is taken to have decided to revoke the approval of the entity as a registered provider under subsection 131(3) of the new Act.
(5) For the purposes of subitem (4), if, before the transition time, a notice of the decision had been given under subsection 63H(4) of the Commission Act, the notice is taken to be a notice given under subsection 135(1) of the new Act which includes the same revocation day.
Pending revocations of approval on initiative of Commissioner
(6) If, before the transition time, the Commissioner had revoked the approval of an entity as an approved provider under subsection 63J(1) or (2) of the Commission Act but that revocation had not taken effect before the transition time, the Commissioner is taken to have revoked the approval of the entity as a registered provider under subsection 131(1) of the new Act.
(7) For the purposes of subitem (6), if, before the transition time, a notice of the decision had been given under subsection 63L(2) of the Commission Act, the notice is taken to be a notice given under subsection 134(4) of the new Act which includes the same revocation day.
Notices about revocation sanctions
(8) If:
(a) an entity is, because of subitem 5(1) of this Schedule, taken to be a registered provider under paragraph 105(1)(a) of the new Act; and
(b) a non‑compliance notice (within the meaning of the Commission Act) notifying the entity that the Commissioner is considering imposing a sanction revoking the approval of the entity as an approved provider (whether or not the notice also notifies the entity of other kinds of sanctions the Commissioner is considering imposing) was given to the entity before the transition time; and
the notice is taken, after the transition time, to be a notice given to the entity under subsection 132(1) of the new Act.
(9) For the purposes of subitem (8), the period within which the entity may make submissions in relation to the matter for the purposes of paragraph 132(2)(b) of the new Act is taken to be the period within which the entity was permitted to make submissions in relation to the matter in accordance with paragraph 63S(3)(e) of the Commission Act.
Revocation sanctions that have not come into effect
(10) If:
(a) an entity is, because of subitem 5(1) of this Schedule, taken to be a registered provider under paragraph 105(1)(a) of the new Act; and
(b) a sanction revoking the approval of the entity as an approved provider was imposed on the entity under section 63N of the Commission Act before the transition time; and
(c) the day specified for the purposes of paragraph 63N(5)(f) of the Commission Act in relation to the sanction is the day of the transition time or a later day;
the notice is taken, after the transition time, to be a notice of revocation given to the entity in accordance with section 134 of the new Act that specifies as the revocation day the day that was specified for the purposes of paragraph 63N(5)(f) of the Commission Act.