This Scheme is the Continence Aids Payment Scheme 2010.
3 Interpretation
(1) In this Scheme:
Act means the National Health Act 1953.
Amendment Act means the National Health Amendment (Continence Aids Payment Scheme) Act 2010.
approved form, when used in a provision of this Scheme, means a form approved, whether before or after the commencement of this Scheme, by the Secretary or Chief Executive Medicare in writing for the purposes of that provision.
authorised payment recipient, for a participating person, means the person referred to subsection 19(3).
authorised representative means a person referred to in subsection 17(3).
CAPS payment, for a participating person, means:
(a) for a financial year—the amount specified in subsection 9(1); or
(b) for part of a financial year—the amount calculated in accordance with, subsection 9(2).
continence aid means a product intended to assist in the management of incontinence and, for the avoidance of doubt, includes continence‑related products.
correspondence recipient means a person referred to in section 18.
eligibility criteria has the meaning given by section 4.
eligible neurological condition means a condition listed in Part 1 of the Schedule.
eligible other condition means a condition listed in Part 2 of the Schedule.
health professional means:
(a) a person engaged in a health care related vocation or profession who must be registered or licensed (however described) under a Commonwealth, State or Territory law in order to practise that vocation or profession; or
(b) a person who is an eligible Aboriginal health worker under the Health Insurance (Allied Health Services) Determination 2009 made under the Health Insurance Act 1973.
Note: Section 10 of the Acts Interpretation Act 1901 deals with references to legislation that has been amended or replaced.
legal representative means a person with legal authority under a law of a State or Territory to act for another person such as a guardian or attorney under a power of attorney.
organisation means an entity, including a body politic, with an Australian Business Number which provides, will provide or will facilitate the provision of continence aids to a participating person, but does not include a person:
(a) with legal authority under a law of a State or Territory to act for the applicant or participating person; or
(b) a person referred to in paragraphs 17(2)(a) to (c) or 19(1)(a) to(c).
participating person means:
(a) a person approved under section 5 to participate in this Scheme; or
(b) a person taken to participate, and to be eligible to participate, in this Scheme under item 3 of the Amendment Act,
unless the person’s participation has ceased to have effect under this Scheme.
Note: Item 3 of the Amendment Act and section 8 of this Scheme deal with when a person’s participation ceases to have effect.
permanent and severe incontinence means frequent and uncontrollable moderate to large loss of urine or faeces which impacts on a person’s quality of life and which is unlikely to improve with medical, surgical or clinical treatment regimes.
Secretary includes a person authorised by the Secretary to act on his or her behalf in approving forms for, or related to, this Scheme.
(2) Nothing in this Scheme is intended to affect the operation of any law of a State or Territory that deals with legal representatives.
(3) References to a legal representative in particular provisions and not in others is not intended to limit a legal representative’s powers to act for the represented person.
Part 2—Participation in the Scheme
4 Eligibility criteria
(1) The eligibility criteria for a person to participate in this Scheme are that the person:
(a) suffers from permanent and severe incontinence:
(i) caused by an eligible neurological condition; or
(ii) Caused by an eligible other condition; and the person has or is eligible to have a pensioner concession card issued under Division 1 of Part 2A.1 of the Social Security Act 1991 or is the dependant of a holder of a pensioner concession card, as defined in section 6A of the Social Security Act 1991; or
(iii) caused by an eligible other condition and the person has a Department of Veterans’ Affairs Pensioner Concession Card or entitlement, whether as a primary cardholder or a dependant of a cardholder; and
(b) is an Australian citizen or permanent resident within the meaning of those terms in the Australian Citizenship Act 2007; and
(c) is not ineligible because of subsection (2).
Note: Item 3 of the Amendment Act provides that a person who was receiving assistance under the Continence Aids Assistance Scheme immediately before 1 July 2010 is taken to participate in this Scheme from 1 July 2010 subject to complying with that section and, after 30 June 2011, meeting the eligibility criteria in this section.
(2) A person in any of the following categories is not eligible to participate in this Scheme:
(a) (for the avoidance of doubt) people who suffer from transient, rather than permanent and severe, incontinence;
(b) children under 5 years of age;
(c) care recipients, under the Aged Care Act 1997:
(i) whose classification level includes any of the following:
(A) high ADL domain category;
(B) high CHC domain category;
(C) high behaviour category;
(D) a medium domain category in at least 2 domains;
(ii) who are receiving a home care package and the care recipient’s care plan includes continence aids;
Note: The following expressions are defined in the Classification Principles 2014
ADL domain
CHC domain
behaviour domain
domain
domain category
(ca) NDIS participants where an NDIS plan is in effect for the NDIS participant and the NDIS plan contains a statement specifying that reasonable and necessary supports (that include continence aids) will be funded under the National Disability Insurance Scheme;
(d) people eligible to receive assistance for continence aids under the Rehabilitation Appliances Program (or replacement program if the name of that program is changed) through the Department of Veterans’ Affairs;
(e) Australian citizens or permanent residents who have resided outside Australia for a continuous period of three years (including any periods of leave from the country in which that person resides);
(f) a person serving a prison sentence.
(3) For a person who:
(a) is eligible to participate in this Scheme under subparagraph 4(1)(a)(iii); and
(b) meets the other eligibility criteria for participation in this Scheme; and
(c) applied to participate in this Scheme between 1 July 2010 and the commencement of the Continence Aids Payment Scheme Variation 2011 (No.2);
the CAPS payment is the amount calculated in accordance with section 9 with effect from the date of application.
(4) Subsection (3) applies, even if the person’s application was rejected, provided that the person would have been eligible to participate in this Scheme if subparagraph 4(1)(a)(iii) had been in effect at that time.
(5) For the purposes of this section:
NDIS participant means a participant within the meaning of the National Disability Insurance Scheme Act 2013.
NDIS plan means a plan, for an NDIS participant, within the meaning of the National Disability Insurance Scheme Act 2013.
5 Application to participate in the Scheme
(1) A person may apply to the Chief Executive Medicare to participate in this Scheme.
(2) The Chief Executive Medicare must approve a person to participate in this Scheme if:
(a) the applicant meets the eligibility criteria; and
(b) the application is made on the approved form; and
(c) the application:
(i) includes a statement prepared and signed by a health professional certifying that the applicant has been diagnosed by a doctor with an eligible neurological condition or eligible other condition, as the case may be, which has caused permanent and severe incontinence; and
Note: Health professional is defined in subsection 3(1).
(ii) includes any other document or information required by the approved form.
Note: Section 14 of the Amendment Act provides that if an application is refused the Chief Executive Medicare must give the applicant a signed notice that includes the reasons for the decision and advising that the person may apply to the Chief Executive Medicare for a review of the decision. The application for review of the decision is dealt with in section 24 of this Scheme.
(3) If a person has provided a completed application, in the approved form, to the Chief Executive Medicare before this Scheme commences, the application is taken to have been made under this section on the day this Scheme commences.
6 Notification to Chief Executive Medicare
(1) A participating person, legal representative or authorised representative must notify the Chief Executive Medicare promptly on becoming aware that the participating person does not meet the eligibility criteria.
Note: Example: A participating person must notify the Chief Executive Medicare if the person
begins receiving a high level of residential care in a residential care facility: see subparagraph 4(2)(c)(i).
(2) A legal representative or authorised representative must notify the Chief Executive Medicare promptly on becoming aware that the participating person has died.
7 Decision that a person has ceased to be eligible
If notification has not been given under subsection 6(1), but the Chief Executive Medicare is satisfied that a participating person does not meet the eligibility criteria, the Chief Executive Medicare must decide, by determination in writing, that the person is not eligible to participate in this Scheme and the date on which the person ceased to be eligible.
Note 1: Item 3 of the Amendment Act provides that, until 1 July 2011, the Chief Executive Medicare cannot make a decision about ineligibility in respect of a person to whom that item applies.
Note 2: Section 15 of the Amendment Act provides that if the Chief Executive Medicare decides that a participating person is not eligible to participate in the scheme, he or she must give the person a signed notice that includes the reasons for the decision and advising that the person may apply to the Chief Executive Medicare for a review of the decision. The application for review of the decision is dealt with in section 24 of this Scheme.
8 When participation ceases to have effect
A person’s participation in this Scheme ceases to have effect:
(a) if notification is given under paragraph 6(1)—from the date the person ceased to meet the eligibility criteria; or
(b) if the Chief Executive Medicare decides that the person is not eligible to participate—from the date specified in the determination under section 7.
Note: Where a person entitled to a CAPS payment has died, payment will be made to the estate: see paragraph 10(1)(c).
Part 3—Payments
9 Amount of CAPS payment
(1) The amount of the CAPS payment for a financial year is $609.70.
(2) However, if a person is approved under section 5 as a participating person after the beginning of a financial year, the CAPS payment for the person for that financial year is calculated on a pro rata basis, being the period starting on the date the application under section 5 was received and ending on 30 June (inclusive) of the financial year.
Note: Example: A person applies on 1 August 2010. The person’s CAPS payment is calculated for the period 1 August to 30 June 2011 (inclusive).
(3) A participating person may not receive:
(a) more than the amount of the CAPS payment for a financial year in any one financial year;
(b) more than one payment for the same period in a financial year.
10 Payment procedure
(1) The Chief Executive Medicare must pay a CAPS payment, or an instalment of a CAPS payment, to which a participating person has become entitled under this Scheme to:
(a) the person; or
(b) if there is an authorised payment recipient for the person—the authorised payment recipient; or
(c) if the person has died, the person’s estate.
(2) The CAPS payment must be made:
(a) in one transaction unless the person has elected, in the approved
form, to receive the payment in two instalments (except where subsection 11(4) applies); and
(b) by way of electronic funds transfer to the bank account notified, in the approved form, to the Chief Executive Medicare.
11 Payment by instalments
(1) A person may elect to receive the CAPS payment in two instalments, worked out in accordance with this section, in a financial year.
(2) If the person is a participating person on 1 July in the financial year:
(a) the first instalment is half of the CAPS payment specified in subsection 9(1), to be paid no later than 30 July in the financial year; and
(b) the second instalment is the remaining half of the CAPS payment, to be paid on or after 1 January but no later than 31 January in the financial year.
(3) If an application under section 5 is received after 1 July but before 1 January in the financial year and is approved, the CAPS payment for the financial year is the amount calculated in accordance with subsection 9(2) with:
(a) the first instalment a pro rata amount calculated for the period starting on the day the application was received and ending on 31 December (inclusive) in that financial year, to be paid within 30 days of approval of the application; and
(b) the second instalment is the remaining amount of the CAPS payment, to be paid on or after 1 January but no later than 31 January in the financial year.
(4) If an application under section 5 is received after 31 December in the financial year and is approved, the CAPS payment for that financial year is the amount calculated in accordance with 9(2), to be paid within 30 days of approval of the application.
(5) However, despite anything in this Scheme, a second instalment must not be paid if the person’s participation has ceased to have effect before January in the financial year.
12 Payment to transferred person
(1) This section applies to a person who is a participating person because of item 3 of the Amendment Act (transferred person).
(2) The transferred person is entitled to the CAPS payment specified in subsection 9(1):
(a) for the 2010–11 financial year;
(b) and each subsequent financial year as long as the person’s participation has not ceased on a date before 1 July of that financial year.
(3) For the financial year beginning on 1 July 2010, the Chief Executive Medicare must:
(a) make the CAPS payment for the person no later than 30 days after receiving the completed transfer form (transfer form) mentioned in item 3 of the Amendment Act; or
(b) if the person elects to receive the CAPS payment in two instalments, pay half the CAPS payment no later than 30 days after receiving the transfer form and half after 1 January 2011 but no later than 31 January 2011.
(4) For a financial year after 30 June 2011, the CAPS payment for the person must be paid no later than 31 July in that financial year or, if the person has elected to receive the CAPS payment in two instalments, in the manner specified in paragraph 11(2).
(5) If the person gives the transfer form to the Chief Executive Medicare before 1 July 2010, the form is taken to have been provided on 1 July 2010.
13 Payment to approved person
(1) This section applies to a person who is a participating person because of an approval under section 5 of this Scheme (approved person).
(2) The approved person is entitled to:
(a) the CAPS payment specified in subsection 9(1) or 9(2), whichever applies in the circumstances, in the financial year in which the application is approved; and
(b) the CAPS payment specified in subsection 9(1) in each subsequent financial year as long as the person’s participation has not ceased on a date before 1 July of that financial year.
(3) The Chief Executive Medicare must make a CAPS payment for the approved person:
(a) if the person is a participating person on 1 July in the financial year:
(i) by 30 July in the financial year; or
(ii) if the payment is by instalments, in the manner specified in subsection 11(2); or
(b) if an application under section 5 is received after 1 July but before 31 December in the financial year and is approved:
(i) within 30 days of approving the application; or
(ii) if the payment is by instalments, in the manner specified in subsection 11(3);or
(c) if an application under section 5 is received after 31 December in the financial year and is approved—within 30 days of approving the application.
14 Notification of details of payments
(1) The Chief Executive Medicare, as soon as practicable after making a CAPS payment, must give a written statement containing details about the payment to:
(a) the participating person or his or her correspondence recipient; and
(b) if the payment was made to an organisation—the organisation.
Part 4—Representatives and organisations
15 Interpretation
(1) In this part:
assisted person means:
(a) a person applying to participate in this Scheme; or
(b) a participating person,
who is unable to act on his or her own behalf because of a physical or mental impairment.
16 Ceasing representation of a person
In this Part:
(a) if a person is recognised as representing another person because of a particular status under the social security law or veterans’ entitlements law, and the person ceases to hold that status, the person’s representation of the other person under this Scheme is also taken to cease;
(b) if a person may authorise, in accordance with this Part, another to do something, the person may also revoke the authorisation by notice in writing to the Chief Executive Medicare;
(c) if a person is authorised, in accordance with this Part, to do something and wishes to end the arrangement, the person may cease the arrangement by notice in writing to the Chief Executive Medicare.
17 Authorised representative
(1) This section applies to an assisted person who does not have a legal representative.
(2) The assisted person may be represented for the purposes of this Scheme, other than to receive payments, by one of the following, subject to subsection (3):
(a) the assisted person’s correspondence nominee appointed under section 123C of the Social Security (Administration) Act 1999; or
(b) the assisted person’s Department of Veterans’ Affairs (DVA) trustee, as recognised by DVA for the purposes of veterans’ entitlements (see the Veterans’ Entitlements Act 1986); or
(c) if the person does not have a representative mentioned in paragraph (a) or (b)—a responsible person approved as an authorised representative under section 20.
(3) A person mentioned in subsection (2) who signs the application form for an assisted person, or nominates him or herself, in the approved form, after the application has been made, as the person authorised to represent the assisted person is taken to be the assisted person’s authorised representative.
(4) An authorised representative must act in the interests of the assisted person at all times.
18 Correspondence recipient
An applicant, participating person or an assisted person’s legal representative or authorised representative may authorise, in the approved form, another person (correspondence recipient) to receive correspondence under this Scheme for the applicant or participating person.
19 Authorised payment recipient
(1) One of the following people may receive payments as agent for a participating person if the conditions mentioned in subsection (2) are satisfied:
(a) the person recognised as the participating person’s payment nominee for the purposes of the social security law; or
(b) the person recognised as the participating person’s trustee or agent for the purposes of veterans’ entitlements; or
(c) a responsible person approved as an authorised payment recipient under section 20; or
(d) an organisation authorised in accordance with subsection 21(2).
(2) The conditions are:
(a) the person who is to receive the payments as agent for the participating person has been notified to the Chief Executive Medicare, in the approved form, that that person is to receive the payments; and
(b) if the applicant or participating person has a legal representative—the Chief Executive Medicare has not been notified by the legal representative that the CAPS payments are to be made to another person in accordance with this Scheme.
(3) The person who is to receive the payments as agent for the participating person is the authorised payment recipient of the participating person.
20 Responsible person for a participating person
(1) The Secretary may approve an individual to represent an assisted person or a minor:
(a) as an authorised representative to act for the person; or
(b) as an authorised payment recipient to receive payments as agent of the person; or
(c) as both (a) and (b).
(2) However, the Secretary must not approve an individual unless the Secretary is satisfied that:
(a) if the assisted person has a legal representative, or representation by a person referred to in paragraph 17(2)(a) or (b) or 19(1)(a) or (b)—the representative does not oppose the approval; and
(b) the individual provides care or assistance to the person; and
(c) the arrangement for the receipt of CAPS payments is for the benefit of the person; and
(d) the individual seeking approval will use the funds only for the purpose for which they are provided.
(3) The Secretary may revoke an approval if satisfied that it is appropriate to do so in the circumstances, having regard to the matters mentioned in this section.
21 Organisations authorised to receive CAPS payments
(1) In paragraphs 4(c), (d), (e) and (f) and subsections (5) and (6), a reference to a “participating person” includes a former participating person and, where the context permits, an authorised representative or correspondence nominee.
(2) An applicant, participating person, or assisted person’s legal representative, authorised representative or authorised payment recipient, other than an organisation, may authorise, in the approved form, an organisation to receive CAPS payments, or instalments of CAPS payments, as the authorised payment recipient for a person entitled to the payment.
(3) If the organisation agrees to receive the CAPS payments as agent, the organisation must provide details to the Chief Executive Medicare for the payments in the approved form.
(4) The organisation must comply with the following obligations:
(a) assist the participating person to obtain continence aids that are appropriate to his or her needs; and
(b) assist the participating person to use the CAPS payment as a contribution towards to the cost of purchasing continence aids; and
(c) inform the participating person of any unused CAPS payment amount 30 days before the end of the financial year to which the payment relates; and
(d) refund to the estate of a participating person who has died any unused portion of a CAPS payment; and
(e) refund to the participating person any unused portion of a CAPS payment if notified, in writing, that:
(i) the person has ceased to meet the eligibility criteria; or
(ii) the person wishes to terminate the payment arrangement with the organisation; and
(f) refund to the participating person any unused portion of a CAPS payment if the participating person was not entitled to the payment at the time it was made; and
(g) inform the Chief Executive Medicare promptly on becoming aware that the participating person does not meet the eligibility criteria.
(5) An organisation which receives a CAPS payment as agent for a participating person must:
(a) keep records that:
(i) are in a collated and accessible form; and
(ii) contain details of the amounts received and the dates the amounts were received; and
(iii) contain details of how the amounts were used; and
(b) in relation to each of those records, retain the record for the period ending 3 years after 30 June of the year in which the record was made.
(6) An organisation must provide details on the use of a CAPS payment if requested to do so by the participating person or his or her authorised representative.
(7) The Secretary may direct, in writing, the Chief Executive Medicare to decline to make a CAPS payment to an organisation if the Secretary is satisfied that the arrangement for the payment:
(a) is not operating to the benefit of the participating person; or
(b) the organisation has not complied with an obligation imposed by this Scheme in respect of any participating person.
(8) If a direction is given under subsection (7):
(a) the Chief Executive Medicare must comply with the direction; and
(b) the Secretary must inform the participating person and the organisation in writing that the organisation is no longer able to act as an authorised payment recipient.
Part 5—Miscellaneous
22 Debts
If a participating person or former participating person has received, either directly or through an agent, a CAPS payment to which the person was not entitled, the amount paid is a debt due to the Commonwealth, recoverable by the Chief Executive Medicare.
23 Investigations
The Chief Executive Medicare may conduct investigations, as he or she thinks appropriate, in order to ensure that an applicant or a participating person meets the eligibility criteria.
24 Review of decisions
(1) For sections 14 and 15 of the Act, a person aggrieved by a decision under section (5) or (7) of this Scheme may apply, in the way set out in subsection (2), to the Chief Executive Medicare for review of the decision.
(2) The application for review must:
(a) be made by written notice given to the Chief Executive Medicare within 28 days, or such longer period as the Chief Executive Medicare allows, after the day on which the person received notice of the decision; and
(b) set out the reasons for making the request.
Note: Sections 14 and 15 of the Act provide for the reconsideration of decisions by the Chief Executive Medicare and review of such decisions by the Administrative Appeals Tribunal.