4Approval of nursing home

4 Approval of nursing home

(1) The proprietor of a nursing home to which this Act applies may make application, in accordance with the authorized form, for approval of the premises occupied by the nursing home as an approved nursing home for the purposes of this Act. (2) Subject to subsections (3), (3A), (3B) and (4), where: (a) an application is made under subsection (1); and (b) the Minister is satisfied that the premises to which the application relates are a nursing home; the Minister shall approve the premises as a nursing home for the purposes of this Act. (3) Where: (a) application is made for approval of premises as an approved nursing home; and (b) the Minister is of the opinion that approved nursing homes (including premises proposed to be approved as nursing homes under this Act) and premises approved, or proposed to be approved, as nursing homes under the National Health Act 1953 in the locality in which the premises to which the application relates are situated make adequate provision for nursing home care in that locality; the Minister may refuse the application unless the applicant is the holder of a certificate in force under subsection 3A(2) that relates to the premises and the Minister is satisfied that the premises comply with any specifications set out in the certificate. (3A) Where application is made under subsection (1) for approval of premises as an approved nursing home and: (a) the applicant is not the holder of a certificate in force under subsection 3A(2) that relates to the premises; or (b) the applicant is the holder of a certificate in force under subsection 3A(2) that relates to the premises but the Minister is not satisfied that the premises comply with any specifications set out in the certificate; the Minister may refuse the application. (3B) The Minister, in exercising his or her powers under subsection (3A) to refuse an application for approval of premises as an approved nursing home, shall comply with any relevant principles in force under subsection (3C). (3C) The Minister may, by instrument in writing, formulate principles to be complied with by him or her with respect to his powers under subsection (3A) to refuse an application for approval of premises as an approved nursing home. (3D) In formulating principles under subsection (3C), the Minister shall have regard to all matters he or she considers relevant, including, but without limiting the generality of the foregoing: (a) the suitability of an applicant under subsection (1) to be the proprietor of an approved nursing home; (b) the need to control unnecessary growth in the numbers of approved nursing homes; and (c) the availability of forms of care other than nursing home care within the meaning of this Act or the National Health Act 1953, including domiciliary and day care provided by hostels, hospitals and other institutions and by community services. (4) Where: (a) the approval of premises as a nursing home has been revoked under section 11 of this Act or under subsection 44(2) of the National Health Act 1953‑1972 or of that Act as subsequently amended on a ground related to a failure to comply with a condition applicable to the nursing home; and (b) the person who was the proprietor of the nursing home at any time when the condition was not complied with applies for approval of those premises, or of any other premises, as a nursing home; the Minister may refuse the application. (5) If the Minister does not grant an approval in accordance with an application under this section, he or she shall refuse the application and notify the applicant, in writing, accordingly. (6) The approval of premises under this section as an approved nursing home is subject to the following conditions: (a) a condition that the number of beds available for qualified nursing home patients will not at any time exceed such number of beds as is determined from time to time by the Minister as the approved number of beds in relation to the nursing home and that no alterations of, or addition to, the premises the purpose of which is, or the effect of which will be, to enable the number of beds in the nursing home for qualified nursing home patients to be increased will be commenced unless the proprietor of the nursing home is the holder of a certificate in force under subsection 3A(3) approving those alterations or additions; (aa) a condition that, where the Minister determines, in writing, that the admission of persons to the nursing home as qualified nursing home patients is to be in accordance with a special purpose of the nursing home specified in the determination, the operations of the nursing home are to be carried out in a manner consistent with that determination; (b) a condition that a person will not be admitted to the nursing home as a qualified nursing home patient unless the admission of the person to a nursing home has been approved by the Minister under section 40AB of the National Health Act 1953‑1974; (c) any other conditions determined by the Minister for the purpose of: (i) ensuring that the needs of qualified nursing home patients in the nursing home are satisfactorily provided for; (ia) ensuring that, to the extent that the principles and objectives formulated by the Minister under section 5 of the Disability Services Act 1986 are applicable in relation to the provision to qualified nursing home patients in the nursing home of: (A) nursing home care; or (B) any services that, as specified in the agreement entered into under section 15 by the Commonwealth with the proprietor of the nursing home, are to be provided for qualified nursing home patients in the nursing home; that care and those services are provided in a manner that furthers those principles and objectives; or (ii) otherwise protecting the welfare and interests of qualified nursing home patients in the nursing home. (6AA) Where, immediately before the date on which application was made for approval of premises as an approved nursing home, the proprietor of the nursing home was the holder of a certificate in force under subsection 3A(2) in relation to the nursing home, the Minister shall not exercise the powers under paragraph (6)(aa) to determine a special purpose in relation to the nursing home in a manner inconsistent with that certificate. (6AB) Where the Minister, under paragraph (6)(a), determines, or has at any time determined, the approved number of beds in relation to a nursing home, the Minister may determine, in writing, that such number of those beds as is specified in the second determination are approved in relation to a particular special needs group or particular special needs groups. (6AC) The Minister may, on application in writing made by the proprietor of a nursing home or otherwise, revoke or vary a determination made under subsection (6AB) in relation to the nursing home. (6A) Without limiting the generality of subparagraph (6)(c)(ii), conditions determined under paragraph (6)(c) by virtue of that subparagraph may include conditions relating to the liability of the proprietor of a nursing home and other persons for any loss, injury or damage incurred or suffered by qualified nursing home patients in the nursing home. (6B) Where, immediately before the date on which application was made for approval of premises as an approved nursing home, the proprietor of the nursing home was the holder of a certificate in force under subsection 3A(2) in relation to the nursing home, the Minister shall not exercise his or her powers under paragraph (6)(a) to determine a number of beds in relation to the nursing home in a manner inconsistent with that certificate. (7) Where: (a) a person is admitted to an approved nursing home as a qualified nursing home patient without the approval referred to in paragraph (6)(b) being obtained prior to the admission; and (b) the Minister is satisfied: (i) that the circumstances of the admission were such that it was not practicable for the prior approval to be sought; and (ii) that, if application for approval had been made under section 40AB of the National Health Act 1953‑1974 at or before the time of the admission, the application would have been approved; the Minister shall approve the admission but, if not so satisfied, shall refuse to approve the admission and, in either case, shall notify the person, in writing, accordingly. (8) An approval under subsection (7) has effect, for the purposes of this Act, as if it had been given under section 40AB of the National Health Act 1953‑1974 before the admission. (9) Without limiting the generality of directions that may be given under section 35 to a delegate of a power under subsection (7) of this section, such a direction may make provision: (a) requiring the delegate to exercise his or her delegated powers in accordance with the views of a group of persons; (b) for the manner in which that group is to be constituted; and (c) for the procedures to be followed in ascertaining the views of that group. (10) Where the Minister grants under this section an approval of premises as an approved nursing home, he or she shall determine the period, which may be a period commencing before the date on which he or she grants the approval but not before the date as from which the agreement entered into between the Commonwealth and the proprietor of the nursing home for the purposes of this Act is to operate, in respect of which the approval shall, subject to this Act, be in force. (11) Where premises that are an approved nursing home under this Act are subsequently approved as an approved nursing home under the National Health Act 1953‑1974, the approval of the premises under this Act shall be deemed to be revoked on the date as from which the approval of the premises under that last‑mentioned Act has effect. (12) Where premises are approved as an approved nursing home under this Act as from a date earlier than the date on which the approval is granted: (a) if a person has paid to the proprietor of the approved nursing home, in respect of nursing home care and other services provided by the proprietor of the nursing home for a qualified nursing home patient during the period that commenced on that first‑mentioned date and ended on that second‑mentioned date, charges that exceed the charges payable in respect of that care and those services in accordance with the agreement entered into by the Commonwealth and the proprietor of the nursing home for the purposes of this Act—the proprietor is liable to pay to the person an amount equal to the excess; and (b) if the nursing home was, immediately before the approval was granted, approved as an approved nursing home under the National Health Act 1953‑1974: (i) any moneys paid or payable to the proprietor of the nursing home under that Act in respect of the period referred to in paragraph (a) shall be deemed to be moneys advanced to the proprietor by the Commonwealth under the agreement entered into between the proprietor and the Commonwealth for the purposes of this Act in relation to the nursing home. (13) Subject to subsection (14), the Minister shall not, after the commencement of this subsection, grant an approval under this section. (14) The Minister may, not later than 30 June 1992, on application made under subsection (1), grant an approval under this section if: (a) the applicant is the holder of a certificate in force under section 3A in respect of the premises to which the application relates; or (b) the application relates to premises in respect of which an approval previously granted under this section is in force at the time when the application is made. (15) After the commencement of this subsection, the Minister may not determine under subsection (10) a period ending after 30 June 1992. (16) If, before the commencement of this subsection, the Minister had determined under subsection (10) a period ending after 30 June 1992, the period so determined shall, for the purposes of this Act, be taken to be a period ending at the end of 30 June 1992.