Part 4.4—Consequences of non-compliance

## Part 4.2—User rights ### Division 1—Nursing homes #### 68 Extra service amounts for exempt residents (1) For the purposes of the new Act, if: (a) a person: (i) was an exempt patient in an approved nursing home immediately before the commencement day (disregarding the effect of paragraph 58(2)(e)); or (ii) is taken to be such a patient under paragraph 58(2)(e); and (b) on the commencement day, or on a day occurring after the commencement day, the person is \*provided with \*residential care through a \*residential care service corresponding to that nursing home; section 58-5 of the new Act has effect, in relation to the day on which the residential care is provided, as if: (c) the reference in paragraph 58-5(b) of the new Act to 25% of the extra service fee referred to in paragraph (a) of that section were omitted; and (d) in its place there were substituted a reference to: (i) for a person referred to in subparagraph (1)(a)(i)—the proportion of the additional exempt bed fee (within the meaning of Part V of the 1953 Act) that was, immediately before the commencement day, being taken into account in reduction of the Commonwealth benefit payable in respect of the bed occupied by the person; or (ii) for a person referred to in subparagraph (1)(a)(ii)—the notional amount (see subsection (3)) in respect of the person. (2) If, after the commencement day: (a) the person ceases to be \*provided with \*residential care through the \*residential care service (other than because the person is on \*leave); or (b) the person is provided with residential care through the residential care service, but not on an extra service basis within the meaning of Division 36 of the new Act; this section does not apply in respect of any subsequent day on which the person is provided with residential care through that residential care service. > Note: Under section 52 of this Act, the exempt bed status of nursing homes can be taken to be \*extra service status for the purposes of the new Act. See also section 68 of this Act relating to extra service amounts for exempt residents. (3) In this section: > exempt patient means an exempt patient within the meaning of section 39AD of the 1953 Act. > notional amount, in respect of a person, means an amount equal to the proportion of the additional exempt bed fee (within the meaning of Part V of the 1953 Act) that would, immediately before the commencement day, have been taken into account in reduction of the Commonwealth benefit payable in respect of the bed occupied by the person if the person had been an exempt patient immediately before that day. #### 69 Agreements between nursing home proprietors and residents If: (a) immediately before the commencement day, an agreement substantially in the form determined under section 40ABB of the 1953 Act was in force; and (b) the agreement was entered into between a person in relation to whom an approval under subsection 40AB(3) of the 1953 Act had been given and the proprietor (within the meaning of that Act) of an approved nursing home; for the purposes of paragraph 56-1(g) of the new Act, the agreement is taken to be a \*resident agreement that: (c) the \*approved provider conducting the \*residential care service that corresponds to the nursing home had, on the commencement day, offered to enter into with the person to whom the approval was given; and (d) the approved provider and that person had entered into on the commencement day. ### Division 2—Hostels #### 70 Variable hostel fees (1) If: (a) a person was, immediately before the commencement day, occupying a hostel place (within the meaning of the 1954 Act) in a hostel; and (b) on a day (the day in question) that is: (i) the commencement day; or (ii) a day occurring after the commencement day; the person is \*provided with \*residential care through a \*residential care service corresponding to that hostel; and (c) the person’s interim hostel fee (see subsection (2)) exceeds the maximum daily amount of resident fees payable by the care recipient, as worked out under section 58-2 of the new Act, in respect of the day in question; and (d) if the day in question is not the commencement day—in respect of the commencement day, and any other day after the commencement day but before the day in question, paragraphs (b) and (c) had applied; paragraph 58(1)(a) of the new Act has effect as if the reference in subparagraph 58(1)(a)(i) of the new Act to the maximum daily amount set under section 58-2 of the new Act were a reference to the interim hostel fee set under subsection (2) of this section. (2) The person’s interim hostel fee is whichever is the lesser of the following: (a) the fee that was payable, in accordance with the General Conditions formulated under section 10F of the 1954 Act, for the provision, on the day before the commencement day, of: (i) any hostel care services (within the meaning of the 1954 Act); and (ii) any personal care services (within the meaning of the 1954 Act); in respect of the hostel place that the person occupied, minus any residential care allowance amount for the person; (b) if the person’s income on the day in question, as reviewed at the person’s request by the \*approved provider conducting the \*residential care service, is less than the person’s income on the day before the commencement day (minus any residential care allowance amount for the person)—the amount of the fee referred to in paragraph (a), reduced by the difference between the 2 amounts of income. (3) For the purposes of subsection (2), if, on the day before the commencement of Part 1 of Schedule 3 to this Act: (a) the person is receiving an \*income support payment; and (b) an amount of residential care allowance, worked out under Part 3.12B of the Social Security Act 1991, is included in the person’s rate of payment; the residential care allowance amount for the person is the amount of residential care allowance (worked out on a per day basis) to be so included in respect of the day before that commencement. (4) In working out the person’s income for the purposes of paragraph (2)(b), amounts of income tax or medicare levy payable by the person in respect of the income are to be deducted. #### 71 Formal agreements between hostel operators and residents (1) Subject to this section, if: (a) immediately before the commencement day, a Formal Agreement (within the meaning of the General Conditions formulated under section 10F of the 1954 Act) was in force; and (b) the Formal Agreement was entered into between an eligible person (within the meaning of the 1954 Act) and an approved operator (within the meaning of the 1954 Act) of a hostel; for the purposes of paragraph 56-1(g) of the new Act, the Formal Agreement is taken to be a \*resident agreement that: (c) the \*approved provider conducting the \*residential care service that corresponds to the hostel had, on the commencement day, offered to enter into with the eligible person; and (d) the approved provider and the eligible person had entered into on the commencement day. (2) If: (a) ongoing fees are payable under the Formal Agreement by the person for the provision of accommodation and care; and (b) the amount of ongoing fees payable in respect of the commencement day or a subsequent day would exceed the amount of the resident fee that may be charged under paragraph 58-1(a) of the new Act in respect of that day; the amount of the resident fee that may be charged under that paragraph in respect of that day is an amount not exceeding the amount of ongoing fees payable in respect of that day. (3) If: (a) before the commencement day, the person had, under the Formal Agreement, paid, or agreed to pay, an entry contribution (within the meaning of the General Conditions formulated under section 10F of the 1954 Act) to the approved operator; and (b) immediately before the commencement day, the person was an existing resident (within the meaning of section 10F of the 1954 Act), or a new resident (within the meaning of that section), of the hostel; then: (c) on and after the commencement day, paragraph 56-1(a) of the new Act applies as if the requirements referred to in that paragraph were the requirements of the General Conditions formulated under section 10F of the 1954 Act, as they relate to entry contributions; and (d) subject to paragraph (e), on and after the commencement day, Division 57 of the new Act does not apply in relation to the entry contribution; and (e) on and after the day that Schedule 2 to the Aged Care Amendment (2005 Measures No. 1) Act 2006 commenced: (i) the Prudential Standards made under section 57‑4 of the new Act; and (ii) section 57‑21B of the new Act; apply in relation to the entry contribution. (4) If: (a) before the commencement day, the person had, under the Formal Agreement, paid, or agreed to pay, an entry contribution (within the meaning of the General Conditions formulated under section 10F of the 1954 Act) to the approved operator; and (b) on or after the commencement day, the person ceases being provided with \*residential care through the \*residential care service (the original service) that corresponds to the hostel (other than because the care recipient is on \*leave); and (c) the person enters another residential care service within 28 days after the day on which the person ceased being provided with care by the original service; for the purposes of the new Act: (d) the amount of the entry contribution that is refundable to the person under the Formal Agreement is taken to be the maximum amount of the \*accommodation bond for the entry of the person to the other service; and (e) the amount of the entry contribution that is so refundable is to be refunded to the person in accordance with subsection 57-21(3) as if that amount were an \*accommodation bond balance. (5) For the purposes of subsection 57-20(5) of the new Act, if: (a) before the commencement day, the person had, under the Formal Agreement, paid, or agreed to pay, an entry contribution (within the meaning of the General Conditions formulated under section 10F of the 1954 Act) to the approved operator; and (b) before, on or after the commencement day, the approved operator has retained an amount from the entry contribution in respect of a period; each month included in that period is taken to be a month in respect of which a retention amount was deducted from an \*accommodation bond balance in respect of an \*accommodation bond previously paid by the person. ### Division 3—Community aged care services #### 72 Formal agreements between hostel operators and residents (1) Subject to this section, if: (a) immediately before the commencement day, a formal agreement (within the meaning of the Community Aged Care Services General Conditions formulated under section 10GI of the 1954 Act) was in force; and (b) the formal agreement was entered into between an eligible person (within the meaning of the 1954 Act) and an approved provider (within the meaning of the 1954 Act) of a community aged care service; for the purposes of paragraph 56-2(e) of the new Act, the formal agreement is taken to be a \*community care agreement that: (c) the \*approved provider conducting the \*community care service that corresponds to the community aged care service had, on the commencement day, offered to enter into with the eligible person; and (d) the \*approved provider and the eligible person had entered into on the commencement day. (2) If: (a) ongoing fees are payable under the formal agreement by the person for the provision of care; and (b) the amount of ongoing fees payable in respect of the commencement day or a subsequent day would exceed the amount of the community care fee that may be charged under paragraph 60-1(a) of the new Act in respect of that day; the amount of the community care fee that may be charged under that paragraph in respect of that day is an amount not exceeding the amount of ongoing fees payable in respect of that day. ## Part 4.3—Accountability #### 73 Direction to appoint nursing home advisor (1) Despite the repeal of section 45EB of the 1953 Act, if: (a) immediately before the commencement day, a direction under that section was in force; and (b) the direction was to the proprietor (within the meaning of the 1953 Act) of an approved nursing home to appoint a nursing home adviser in respect of the home; for the purposes of the new Act, the direction continues to apply as if the direction were a direction to the \*approved provider conducting the \*residential care service that corresponds to the nursing home to appoint an adviser in respect of that service. (2) For the purposes of the new Act, the responsibilities of an approved provider under section 63-1 of the new Act are taken to include complying with a direction referred to in subsection (1). ## Part 4.4—Consequences of non-compliance ### Division 1—Nursing homes #### 74 Declarations of non-compliance with standards If: (a) immediately before the commencement day, a declaration under subsection 45E(1) of the 1953 Act was in force; and (b) the declaration was a declaration to the proprietor (within the meaning of the 1953 Act) of an approved nursing home that the home did not satisfy the standards determined under section 45D of the 1953 Act; for the purposes of the new Act: (c) the declaration is taken to be a notice of non-compliance under section 67-2 of the new Act given to the \*approved provider conducting the \*residential care service that corresponds to the nursing home; and (d) the approved provider is taken not to have made any submissions in response to the notice of non-compliance. #### 75 Determinations that Commonwealth benefit payable is not payable (1) If: (a) immediately before the commencement day, a determination under subsection 45E(2) of the 1953 Act was in force; and (b) the determination was a determination to the proprietor (within the meaning of the 1953 Act) of an approved nursing home that Commonwealth benefit is not payable to the proprietor in respect of a patient admitted to the nursing home after the making of the determination; for the purposes of the new Act, the determination is taken to be a sanction that: (c) is imposed under subparagraph 66‑1(c)(ii) of the new Act, on the commencement day, on the \*approved provider conducting the \*residential care service that corresponds to the nursing home; and (d) restricts that approved provider’s approval as a provider of \*aged care services to care recipients to whom the approved provider \*provided care before the making of the determination. (2) The sanction period for that sanction under section 68-2 of the new Act: (a) begins on the commencement day; and (b) ends on the day the Secretary lifts the sanction under section 68-3 of the new Act. #### 76 Suspensions of exempt bed status (1) If: (a) immediately before the commencement day, a suspension under paragraph 45E(4A)(a) of the 1953 Act was in force; and (b) the suspension was a suspension of exempt bed status in respect of beds in an approved nursing home; for the purposes of the new Act, the suspension is taken to be a sanction that: (c) is imposed, under paragraph 66‑1(g) of the new Act, on the commencement day; and (d) constitutes a suspension: (i) if the suspension was a suspension of exempt bed status in respect of all of the beds in the nursing home—of the \*extra service status of the \*residential care service that corresponds to the nursing home; or (ii) if the suspension was a suspension of exempt bed status in respect of some only of the beds in the nursing home—of the extra service status of a \*distinct part of the residential care service that includes the \*places corresponding to those beds. (2) The sanction period for that sanction under section 68-2 of the new Act: (a) begins on the commencement day; and (b) ends on the day the Secretary lifts the sanction under section 68-3 of the new Act. #### 77 Declarations of non-compliance with conditions If: (a) immediately before the commencement day, a declaration under subsection 45EA(1) of the 1953 Act was in force; and (b) the declaration was a declaration to the proprietor (within the meaning of the 1953 Act) of an approved nursing home that the home did not satisfy one or more conditions applicable to the nursing home under that Act; for the purposes of the new Act: (c) the declaration is taken to be a notice of non-compliance under section 67-2 of the new Act given to the \*approved provider conducting the \*residential care service that corresponds to the nursing home; and (d) the approved provider is taken not to have made any submissions in response to the notice of non-compliance. #### 78 Determinations that Commonwealth benefit is not payable (1) If: (a) immediately before the commencement day, a determination under subsection 45EA(2) of the 1953 Act was in force; and (b) the determination was a determination to the proprietor (within the meaning of the 1953 Act) of an approved nursing home that Commonwealth benefit is not payable to the proprietor in respect of a patient admitted to the nursing home after the making of the determination; for the purposes of the new Act, the determination is taken to be a sanction that: (c) is imposed, under subparagraph 66‑1(c)(ii) of the new Act, on the commencement day, on the \*approved provider conducting the \*residential care service that corresponds to the nursing home; and (d) restricts that approved provider’s approval as a provider of \*aged care services to care recipients to whom the approved provider \*provided care before the making of the determination. (2) The sanction period for that sanction under section 68-2 of the new Act: (a) begins on the commencement day; and (b) ends on the day the Secretary lifts the sanction under section 68-3 of the new Act. #### 78A Breaches of conditions before commencement day If: (a) a particular condition is covered by paragraph 20(1)(b); and (b) before the commencement day, there was a failure to comply with the condition; and (c) as at the commencement day, no declaration under subsection 45EA(1) of the 1953 Act had been made in relation to the failure; Part 4.4 of the new Act applies to the failure as if the failure had happened after the commencement day. ### Division 2—Hostels #### 79 Declarations of failure to meet standards If: (a) immediately before the commencement day, a declaration under section 10FI of the 1954 Act was in force; and (b) the declaration was a declaration that an approved operator (within the meaning of the 1954 Act) was not meeting standards in respect of the provision of care services (within the meaning of that Act) in a hostel; for the purposes of the new Act: (c) the declaration is taken to be a notice of non-compliance under section 67-2 of the new Act given to the \*approved provider conducting the \*residential care service that corresponds to the hostel; and (d) the approved provider is taken not to have made any submissions in response to the notice of non-compliance. #### 80 Suspensions of approvals of financial assistance (1) If: (a) immediately before the commencement day, a determination was in force under section 10FAA of the 1954 Act; and (b) the determination was a determination suspending approval of a hostel for financial assistance by way of recurrent subsidy; for the purposes of the new Act, the determination is taken to be a sanction that: (c) is imposed, under paragraph 66‑1(d) of the new Act, on the commencement day, on the \*approved provider conducting the \*residential care service that corresponds to the hostel; and (d) suspends the allocation of the \*places taken, under section 29 of this Act, to have been allocated under section 14-1 of the new Act to the approved provider in respect of the hostel. (2) The sanction period for that sanction under section 68-2 of the new Act: (a) begins on the commencement day; and (b) ends on the day the Secretary lifts the sanction under section 68-3 of the new Act. #### 81 Variations of agreements (1) If: (a) immediately before the commencement day, a determination was in force under section 10FAA of the 1954 Act; and (b) the determination was a determination varying an agreement entered into under section 10FA of the 1954 Act in respect of a hostel; for the purposes of the new Act, the determination is taken to be a sanction imposed, under paragraph 66‑1(e) of the new Act, on the commencement day, on the \*approved provider conducting the \*residential care service that corresponds to the hostel. (2) For the purposes of subsection (1), if the variation of the agreement reduced the number of approved hostel places specified in the agreement, the number of \*places taken, under section 29 of this Act, to have been allocated to the \*approved provider under section 14-1 of the new Act is taken to be reduced by the same number. (3) For the purposes of subsection (1), if the variation of the agreement reduced the number of approved respite care places specified in the agreement, the proportion of \*care to be \*provided by the \*approved provider as \*respite care is taken to be reduced by a corresponding amount. (4) For the purposes of subsection (1), if: (a) there was a variation of the classes of eligible persons (within the meaning of the 1954 Act) specified in the agreement to be accommodated in approved places—a corresponding variation is taken to have been made to the conditions to which the \*approved provider’s allocation of \*places is taken to be subject under section 14-5 of the new Act; or (b) there was a variation to the proportion or number of places specified in relation to each such class—a variation corresponding to that variation is taken to have been made to the conditions to which the approved provider’s allocation of \*places is taken to be subject under section 14-5 of the new Act. (5) In this section: > approved hostel places has the same meaning as in subparagraph 10FAA(2)(b)(i) of the 1954 Act. > approved places has the same meaning as in subparagraph 10FAA(2)(b)(iii) of the 1954 Act. > approved respite places has the same meaning as in subparagraph 10FAA(2)(b)(ii) of the 1954 Act. #### 81A Breaches of conditions before commencement day If: (a) a particular condition is covered by paragraph 29(1)(b); and (b) before the commencement day, there was a failure to comply with the condition; and (c) as at the commencement day, no declaration under section 10FAA or 10FI of the 1954 Act had been made in relation to the failure; Part 4.4 of the new Act applies to the failure as if the failure had happened after the commencement day. Chapter 5—Transitional provisions relating to Chapter 5 of the Aged Care Act 1997 ## Part 5.1—Residential care grants #### 82 Applications for capital grants (1) If: (a) a person, had, before the commencement day, applied under section 6, 9AB or 9A of the 1954 Act for financial assistance by way of a grant in respect of a nursing home (within the meaning of the 1954 Act) or a hostel, as the case requires; and (b) as at the commencement day, the Minister had not yet made a decision on the application; the application is taken, for the purposes of the new Act, to be a valid application made, on the commencement day, under section 71-1 of the new Act for the allocation of a \*residential care grant. (2) The Secretary is taken to have waived under section 72-5 of the new Act the requirements referred to in paragraph (b) of that section so far as they relate to that application and any allocation of a \*residential care grant made in connection with that application. (3) If: (a) the application had been made under section 9A of the 1954 Act in respect of a hostel; and (b) at the time of the application, a certificate was in force under section 9AB of the 1954 Act for financial assistance by way of a grant in respect of that hostel; the Secretary must allocate a \*residential care grant in connection with the application if the Secretary is satisfied: (c) the applicant has met the conditions, and provided the information and documents, referred to in subparagraph 9AB(3)(a)(i) as in force immediately before the commencement of the Aged Care Act 1997 (other than Division 1 of that Act), in relation to that certificate; and (d) the applicant has so met the conditions and provided the information and documents within: (i) the period of 12 months after the certificate was issued; or (ii) if that period of 12 months has been varied in accordance with a determination under subsection 9AB(11)—that period as so varied. #### 83 Variation of certificates (approvals in principle) Despite the repeal of section 9AB of the 1954 Act by this Act, subsections 9AB(11) and (12) of the 1954 Act continue to apply in relation to a certificate, issued under that section, that was in force immediately before the commencement day as if: (a) the repeal of section 9AB of the 1954 Act had not happened; and (b) the principles formulated under section 9AB(13) of the 1954 Act that were in force immediately before the commencement day continued in force.