National Health Amendment Act 1992 (Cth)

National Health Amendment Act 1992 No. 200 of 1992 TABLE OF PROVISIONS PART 1—PRELIMINARY Section 1. Short title etc. 2. Commencement PART 2—AMENDMENTS OF PARTS V AND VA OF THE PRINCIPAL ACT 3. Interpretation 4. Repeal of section 5. Certain person to give notice on death of proprietor 6. Insertion of new heading in Part VA: Division 1—Preliminary 7. Interpretation 8. Insertion of new sections: 46B. Meaning of overpayment 46C. Secretary to determine accounting period in respect of certain approved nursing homes 46D. Setting of notional fees 46E. Secretary may pay or recover advances of general care benefit before notional scale of fees is set 9. Insertion of new heading in Part VA: Division 2—Types of benefit payable 10. Benefits for patients in other approved nursing homes 11. Repeal of section 12. Benefit for nursing home care in transferred homes and adjusted fee Government nursing homes 13. Insertion of new section: 48AB. When general care benefit becomes payable TABLE OF PROVISIONS—continued Section 14. Insertion of new section: 49B. Payment of Commonwealth benefit to patient 15. Insertion of new heading in Part VA: Division 3—Miscellaneous 16. Claims for benefit 17. Repeal and substitution of new sections: 51A. Advances of benefit 51B. Treatment of money overpaid or underpaid by way of an advance 51C. Recovery of overpayments 18. Heading to Part VC 19. Insertion of new Part: PART VD—REQUIREMENTS IN RESPECT OF SALE OF APPROVED NURSING HOMES Division 1—Preliminary 63. Object of Part 64. Application and operation of Part 65. Interpretation Division 2—Requirements on sale of approved nursing home 65A. Vendor must give notice of sale of approved nursing home 65B. Purchaser to give notice of prospective purchase of approved nursing home 65C. Investigation of accounts etc. of approved nursing home 65D. Secretary may also determine certain matters 65E. Parties to a contract of sale to be informed of results of investigation etc. 65F. Proprietor gives less than 90 days notice of settlement of contract of sale or settles in less than 90 days 65G. If no notice of sale given or vendor sells before notified date Division 3—Payment of certain moneys to the Commonwealth 65H. If paragraphs 65C(1)(c) and (d) investigations done—direction to purchaser to pay amount to the Commonwealth 65J. If amount determined under paragraph 65F(1)(e)—direction to purchaser to pay amount to the Commonwealth 65K. Certain moneys to be paid by proprietor of nursing home to the Commonwealth on or before sale of nursing home 65L. Money paid in settlement of an overpayment outstanding—how to deal with it 65M. Treatment of amount paid in respect of overpayment outstanding to which subsection 65K(2) applies 65N. Treatment of amount paid in respect of overpayment outstanding to which subsection 65K(3) applies 65P. Treatment of amount paid in respect of overpayment outstanding to which subsection 65K(4) applies 65Q. Treatment of amount paid in respect of overpayment outstanding to which subsection 65K(5) applies 65R. Treatment of amount paid in respect of overpayment outstanding to which subsection 65K(6) applies—Step 1: first investigation amount 65S. Treatment of amount paid in respect of overpayment outstanding to which subsection 65K(6) applies—Step 2: second investigation amount 65T. Time when principles take effect 65U. Parties to a contract to be informed of certain matters after sale 20. Application for review by Tribunal National Health Amendment Act 1992 No. 200 of 1992 An Act to amend the National Health Act 1953 to provide for a new scheme for the payment and recovery of Commonwealth benefit payable in respect of the provision of nursing home care in approved nursing homes, and for related purposes [Assented to 21 December 1992] The Parliament of Australia enacts: PART 1—PRELIMINARY Short title etc. 1.(1) This Act may be cited as the National Health Amendment Act 1992. (2) In this Act, "Principal Act" means the National Health Act 19531. Commencement 2.(1) Subject to subsection (2), this Act commences on 1 July 1993. (2) Sections 65, 65A and 65B of the Principal Act, as inserted in that Act by section 19, commence on the day on which this Act receives the Royal Assent. PART 2—AMENDMENTS OF PARTS V AND VA OF THE PRINCIPAL ACT Interpretation 3. Section 39 of the Principal Act is amended: (a) by omitting from subparagraph (a)(i) of the definition of "reference fee" "fee determined in accordance with the scale of fees that would apply for the purposes of subparagraph 40AA(6)(c)(i) in its application" and substituting "notional fee that would apply"; (b) by omitting from subparagraph (a)(ii) of the definition of "reference fee" "fee determined for the purposes of subparagraph 40AA(6)(c)(i) in its application" and substituting "notional fee applying"; (c) by inserting the following definition: " 'notional fee', in relation to the provision of nursing home care (other than care of a kind in respect of which benefit is paid under section 48B, 48C, 48D, 48E or 49) to an approved nursing home patient in an approved nursing home (other than a Government nursing home or a nursing home for disabled people) on a particular day, means the fee applicable in respect of the provision of nursing home care to the patient on that day in accordance with the scale of fees determined by the Secretary under section 46D;". Repeal of section 4. Section 42A of the Principal Act is repealed. Certain person to give notice on death of proprietor 5. Section 43 of the Principal Act is amended by omitting subsections (1) and (1A). Insertion of new heading in Part VA 6. Before section 46 of the Principal Act the following heading is inserted: "Division 1—Preliminary". Interpretation 7. Section 46 of the Principal Act is amended: (a) by omitting from subsection (1) the definition of "Commonwealth extensive care benefit" and substituting the following definition: " 'extensive care benefit' means a benefit payable under section 49;"; (b) by inserting in subsection (1) the following definitions: " 'accounting period', in relation to an approved nursing home other than a Government nursing home or a nursing home for disabled people, means: (a) the period determined by the Secretary under subsection 46C(2); or (b) if that period has been varied under subsection 46C(5) or (6)—that period as so varied; 'general care benefit' means an amount that the proprietor of an approved nursing home is entitled to receive by way of benefit under section 47A or section 48A; 'investigation to be carried out', in respect of an approved nursing home, has the meaning given by subsection 65(5); 'notified day for completion of sale', has the meaning given by subsection 65(1); 'notional fee', in relation to the provision of nursing home care (other than care of a kind in respect of which benefit is paid under section 48B, 48C, 48D, 48E or 49) to an approved nursing home patient in an approved nursing home (other than a Government nursing home or a nursing home for disabled people) on a particular day, means the fee applicable in respect of the provision of nursing home care to the patient on that day in accordance with the scale of fees determined by the Secretary under section 46D; 'notional scale of fees', in relation to the provision of nursing home care (other than care of a kind in respect of which benefit is paid under section 48B, 48C, 48D, 48E or 49) to approved nursing home patients in an approved nursing home (other than a Government nursing home or a nursing home for disabled people) in an accounting period, means the scale of fees determined by the Secretary under section 46D; 'overpayment' has the meaning given by section 46B.". 8. After section 46A of the Principal Act the following sections are inserted: Meaning of overpayment "46B.(1) 'Overpayment', in relation to Commonwealth benefit has the meaning given by subsection (2), (3) or (4). "(2) If the proprietor of an approved nursing home has received, by way of advance on account of Commonwealth benefit that may become payable in respect of an approved nursing home patient in the nursing home on a day, an amount that exceeds the amount payable to the proprietor in respect of the nursing home patient on that day, the amount of that excess is an overpayment. "(3) If: (a) the proprietor of an approved nursing home has received an amount by way of advance on account of Commonwealth benefit that may become payable in respect of an approved nursing home patient in the nursing home on a day; and (b) that benefit does not become payable; the amount so received by the proprietor is an overpayment. "(4) If: (a) an amount purporting to be Commonwealth benefit is paid to the proprietor of an approved nursing home in respect of an approved nursing home patient in the home; and (b) Commonwealth benefit is not payable to the proprietor; that amount is an overpayment. Secretary to determine accounting period in respect of certain approved nursing homes "46C.(1) This section does not apply to a Government nursing home or a nursing home for disabled people. "(2) The Secretary must, in relation to an approved nursing home, determine a period to be the accounting period in respect of that nursing home. "(3) An accounting period in respect of an approved nursing home must not begin before the commencement of this Act. "(4) The determination must: (a) be in writing; and (b) set out the accounting period in respect of the nursing home. "(5) The Secretary must provide a copy of the determination to the proprietor of the nursing home within 14 days after making it. "(6) Subject to subsection (10), the Secretary may vary the accounting period in respect of the nursing home at any time. "(7) If, before the day on which the sale of an approved nursing home is completed: (a) the Secretary receives notice of the sale; or (b) is otherwise informed of the sale; the Secretary must, within 14 days of receiving notice, or becoming informed, of the sale of the nursing home, vary the accounting period in respect of the home. "(8) If: (a) an approved nursing home has been sold and the Secretary did not receive notice of the sale under section 65A or 65B, or was not otherwise informed of the sale, before the day of completion of the sale; or (b) if the proprietor of an approved nursing home sells the nursing home before the notified day for completion of sale; the Secretary must, within 14 days after first becoming aware of the sale, vary the accounting period in respect of the home. "(9) The accounting period, as varied under subsection (7) or (8), must end on the day before the day of completion of the sale. "(10) The Secretary must not vary the accounting period so that it begins on a day earlier than the last day of the previous accounting period. "(11) If the Secretary varies the accounting period, he or she must notify the proprietor within 7 days of that variation. "(12) A notice under subsection (11) must be in writing and set out the new accounting period in respect of the nursing home. Setting of notional fees "46D.(1) The Secretary must, within 3 years after the end of an accounting period in respect of an approved nursing home, determine a notional scale of fees in respect of the nursing home. "(2) A notional scale of fees, in respect of the nursing home is determined: (a) in relation to the accounting period in respect of the home; and (b) in respect of the provision of nursing home care (other than care of a kind in respect of which benefit is paid under section 48B, 48C, 48D, 48E or 49) to approved nursing home patients in the nursing home during the accounting period. "(3) In determining the notional scale of fees, the Secretary: (a) must take into account the actual expenditure incurred by the proprietor in respect of the provision of that nursing home care to approved nursing home patients in the nursing home during the accounting period; and (b) may take into account such other things as the Secretary considers relevant. "(4) The Secretary must, for the purposes of determining the notional scale of fees, order an investigation to be carried out in respect of an approved nursing home to find out the actual expenditure so incurred by the proprietor. "(5) In determining the notional scale of fees, the Secretary must comply with the relevant principles formulated under subsection 40AA(7). "(6) The proprietor affected by a decision of the Secretary under subsection (1) may apply, in writing, to the Minister for a reconsideration of that decision by the Minister. "(7) The application must be made within 28 days after the proprietor receives notice of the decision. "(8) If the proprietor applies for reconsideration of the decision, the Minister may affirm or revoke the decision or vary it as he or she thinks fit. "(9) For the purposes of determining the notional scale of fees for the first accounting period in respect of a nursing home after the commencement of this Act, the accounting period is taken to have commenced on a day determined by the Secretary. "(10) The day determined by the Secretary may be a day before the day this Act commences. Secretary may pay or recover advances of general care benefit before notional scale of fees is set "46E.(1) If: (a) during an accounting period in respect of an approved nursing home; or (b) after the end of an accounting period in respect of an approved nursing home and before the Secretary has determined a notional scale of fees in respect of the accounting period, the Secretary reasonably believes that the proprietor of the nursing home will be found (on general care benefit becoming payable) to have, in respect of the accounting period: (c) received an overpayment of general care benefit; or (d) been underpaid general care benefit; the Secretary may determine, in writing, the amount that the Secretary believes to be the amount of the likely overpayment or underpayment. "(2) If the Secretary determines an amount, the Secretary may, on the Commonwealth's behalf, recover the amount from, or pay the amount to, the proprietor of the nursing home (as the case requires) in the manner specified in the principles formulated under subsection 40AA(7). "(3) If the Secretary decides to recover the amount from, or pay the amount to, the proprietor of the nursing home under subsection (2), the Secretary must notify the proprietor, in writing, accordingly. "(4) If steps have been taken to recover (by the manner specified in the principles) an amount determined under subsection (1) to be a likely overpayment then, for the purpose of establishing whether or not the proprietor of the nursing home has received an overpayment in respect of the accounting period, that amount is to be deducted from the total amount of advances in respect of general care benefit paid in relation to the nursing home during the accounting period. "(5) If steps have been taken to pay (by the manner specified in the principles) an amount determined under subsection (1) to be a likely underpayment then, for the purpose of establishing whether or not the proprietor of the nursing home has been underpaid in respect of the accounting period, the amount is to be added to the total amount of advances in respect of general care benefit paid in relation to the nursing home during the accounting period. "(6) For the purpose of this section, the proprietor of an approved nursing home is underpaid general care benefit if the proprietor has received, by way of advance on account of general care benefit that may become payable in respect of an approved nursing home patient in the nursing home on a day in the accounting period, an amount that is less than the amount payable to the proprietor in respect of the nursing home patient on that day.". Insertion of new heading in Part VA 9. Before section 47 of the Principal Act the following heading is inserted: "Division 2—Types of benefit payable". Benefits for patients in other approved nursing homes 10. Section 47A of the Principal Act is amended: (a) by inserting before subsection (1) the following subsection: "(1A) This section applies to an approved nursing home other than a Government nursing home, an adjusted fee government nursing home, a transferred home or a nursing home for disabled people."; (b) by omitting from subsection (1), "Subject to this Part and Part VC, a Commonwealth benefit is payable to the proprietor of an approved nursing home (other than a Government nursing home, a transferred home or a nursing home for disabled people)" and substituting "Subject to this Part, Part VC and Part VD, the proprietor of an approved nursing home in respect of which this section applies is entitled to receive benefit"; (c) by omitting from subsection (2) "The benefit payable under subsection (1)," and substituting "The benefit that the proprietor of the nursing home is entitled to receive under subsection (1)"; (d) by omitting from paragraph (2)(a) "the fee payable to the proprietor for the provision of nursing home care for the patient on the relevant day" and substituting "the notional fee"; (e) by omitting from subsection (3) "The benefit payable" and substituting "The benefit that the proprietor is entitled to receive". Repeal of section 11. Section 48 of the Principal Act is repealed. Benefit for nursing home care in transferred homes and adjusted fee government nursing homes 12. Section 48A of the Principal Act is amended: (a) by omitting from subsection (1) "Subject to this Part and Part VC, a Commonwealth benefit is payable to" and substituting "Subject to this Part, Part VC and Part VD"; (b) by inserting after "government nursing home" in subsection (1) "is entitled to receive benefit"; (c) by omitting from subsection (2) "the benefit payable" and substituting "the benefit that the proprietor of the nursing home is entitled to receive"; (d) by omitting from paragraph (2)(a) "the fee payable for the care of the patient in the nursing home on the relevant day" and substituting "the notional fee"; (e) by omitting from subsection (2A) "the benefit payable" and substituting "The benefit that the proprietor is entitled to receive"; (f) by omitting from subsection (4) "the benefit payable" and substituting "the benefit that the proprietor is entitled to receive". 13. After section 48A of the Principal Act the following section is inserted: When general care benefit becomes payable "48AB. The general care benefit to which the proprietor of an approved nursing home is entitled in respect of an approved nursing home patient in the nursing home who receives nursing home care on a day in an accounting period becomes payable on the 30th day after a notional scale of fees has been determined under section 46D in relation to the accounting period.". 14. After section 49A of the Principal Act the following section is inserted: Payment of Commonwealth benefit to patient "49B.(1) If: (a) the proprietor of an approved nursing home charges fees in respect of the nursing home care provided to an approved nursing home patient during a period; and (b) the proprietor does not deduct from the fees Commonwealth benefit that is payable, or may become payable, to the proprietor in respect of the patient for the period; the Secretary may direct that the Commonwealth benefit so payable, or the amount so paid in advance, be paid to the person to whom the fees were charged and not to the proprietor. "(2) If: (a) the proprietor of the nursing home has been paid, whether by way of advance on account of Commonwealth benefit or otherwise, an amount of Commonwealth benefit in respect of the patient for the period; and (b) the proprietor charges fees in respect of nursing home care provided to the patient during the period without deducting the amount of benefit so paid in respect of the patient; the proprietor must, as the Secretary demands, repay to the Commonwealth that amount. "(3) If the proprietor of the nursing home has not complied with the Secretary's demand within 3 months, the amount to which the demand relates may be recovered by the Commonwealth as a debt. "(4) The Commonwealth must pay an amount equal to the amount received under subsection (2) or (3) to the person to whom the fees concerned were charged.". Insertion of new heading in Part VA 15. After section 49AA of the Principal Act the following heading is inserted: "Division 3—Miscellaneous". Claims for benefit 16. Section 51 of the Principal Act is amended by omitting from paragraph (1)(a) "payable" and substituting "that is, or may become, payable". 17. Sections 51A and 51B of the Principal Act are repealed and the following sections are substituted: Advances of benefit "51A. The Minister may, in his or her discretion, authorise the payment to the proprietor of an approved nursing home (other than a Government nursing home) of an advance or advances in respect of Commonwealth benefit that is or may become payable to the proprietor. Treatment of money overpaid or underpaid by way of an advance "51B.(1) The proprietor of an approved nursing home is liable to repay to the Commonwealth any overpayment of Commonwealth benefit. "(2) If: (a) an amount of Commonwealth benefit payable to the proprietor of an approved nursing home in respect of an accounting period exceeds the total of the advances paid to the proprietor in respect of that amount; and (b) the proprietor elects, in writing, that the amount of the excess be paid to him or her in the manner specified in the principles formulated under subsection 40AA(7); the amount of the excess is payable to the proprietor of the nursing home in accordance with the election. Note: See section 46B for the meaning of overpayment. Recovery of overpayments "51C.(1) An overpayment of Commonwealth benefit made to the proprietor of an approved nursing home may, in whole or in part, be: (a) deducted from an amount (including an advance) payable, or to be paid, to that proprietor of the nursing home under this Part; or (b) recovered by the Commonwealth from that proprietor as a debt due to the Commonwealth; or (c) recovered from that proprietor, or a later proprietor of the nursing home, in a manner determined in accordance with the principles formulated under subsection 40AA(7). "(2) If: (a) the proprietor of a nursing home receives an overpayment of Commonwealth benefit in respect of the nursing home; and (b) that proprietor ('previous proprietor') sells the nursing home; and (c) part or all of the amount of that overpayment is recovered after the sale from the current proprietor of the nursing home under paragraph (1)(c); and (d) part or all of the overpayment is later recovered from the previous proprietor; so much of the amount that has been recovered from the current proprietor as is equal to the amount recovered from the previous proprietor is to be paid to the current proprietor. "(3) If the current proprietor of the nursing home elects, in writing, that the amount to which he or she is entitled under subsection (2) be paid to him or her in a manner specified in the principles formulated under subsection 40AA(7), the amount is payable to that proprietor in that manner. "(4) Paragraphs (1)(a) and (b) do not affect the recovery or set-off of amounts that have not been paid under this Part.". Note: See section 46B for the meaning of overpayment. Heading to Part VC 18. The heading to Part VC of the Principal Act is amended by omitting "AND VB" and substituting ", VB AND VD". 19. After Part VC of the Principal Act the following Part is inserted: "PART VD—REQUIREMENTS IN RESPECT OF SALE OF APPROVED NURSING HOMES "Division 1—Preliminary Object of Part "63. The object of this Part is to provide, in relation to the sale of an approved nursing home, for: (a) the giving of notices of sale and purchase; and (b) the investigation of the nursing home's accounts etc. prior to sale; and (c) the giving of certain information about the nursing home to the vendor and purchaser before the completion of the contract of sale; and (d) the recovery of any overpayment of Commonwealth benefit paid in respect of approved nursing home patients in the nursing home. Application and operation of Part "64.(1) This Part applies to the sale of an approved nursing home (other than a Government nursing home or a nursing home for disabled people) whether or not that sale involves a transfer of nursing home beds under section 39B. Note 1: For the meaning of 'nursing home for disabled people' see subsection 4(1). Note 2: For the meaning of 'Government nursing home' see subsection 4(1). "(2) If the vendor is selling the business or undertaking carried on at the nursing home to different purchasers, this Part applies to each of those sales as if each was a sale of an approved nursing home. "(3) This Part does not apply if the contract of sale of an approved nursing home was entered into before this Part commenced. "(4) This Part operates as follows: (a) notice of sale must be given in accordance with sections 65A and 65B; (b) then: OPERATION OF PART Notice given Requirements on sale— Division 2 sections that apply Payment of certain moneys to the Commonwealth— Division 3 sections that apply If the Secretary receives 90 days or more notice of sale of nursing home and it is sold on or after the notified day for completion of sale Section 65C Section 65H (direction to purchaser) Section 65D Subsections 65K(1), (5) and (6) Section 65E (overpayment outstanding) Section 65Q Section 65R Section 65S If the Secretary receives less than 90 days notice of sale of nursing home and it is sold on or after the notified day for completion of sale Section 65F Section 65J (direction to purchaser) Subsections 65K(1), (3) and (4) Section 65N Section 65P If the Secretary does not become aware of sale until afterwards or it is sold before the notified day for completion of sale Section 65G Subsections 65K(1) and (2) Section 65M Interpretation "65.(1) In this Part, unless the contrary intention appears: 'business or undertaking', in relation to an approved nursing home, means the right to operate all of the beds determined under paragraph 40AA(6)(a) as the number of approved beds in relation to the nursing home; 'Commonwealth benefit' has the meaning given by subsection 46(1); 'fee-determining benefit' means an amount of Commonwealth benefit that may, in accordance with the principles formulated under subsection 40AA(7), be taken into account to reduce or increase fees (as the case may be) when determining a scale of fees in respect of the nursing home; 'first investigation', in relation to an approved nursing home that is being sold, means the investigation carried out under paragraph 65C(1)(c); 'first investigation period', in relation to an approved nursing home that is being sold, means the period referred to in paragraph 65C(1)(c); 'investigation to be carried out' has the meaning given by subsection (5); 'missed out on receiving' has the meaning given in subsection (4); 'notified day for completion of sale', in relation to a nursing home that is being sold, means the day on which, according to: (a) any notice given under the Act by the vendor to the Secretary; or (b) if the vendor has not given notice—any notice given under the Act by the purchaser to the Secretary; or (c) if neither the vendor nor the purchaser has given notice—the information (if any) received by the Secretary; the sale of the nursing home is to be completed; 'notional scale of fees' has the meaning given by subsection 46(1); 'overpayment', in relation to Commonwealth benefit, has the meaning given by section 46B; 'overpayment outstanding' has the meaning given by section 65K; 'purchase of an approved nursing home' has the meaning given by subsection (2); 'purchaser payment', in relation to an approved nursing home that is being sold, means an amount paid by the purchaser of the nursing home in answer to a direction given under section 65H or 65J; 'purchase price', in relation to an approved nursing home that is being sold, means: (a) the amount of money (if any) paid by the purchaser for the transfer of the ownership of the business or undertaking carried out at the nursing home to him or her; or (b) if the vendor is also selling real or personal property used: (i) to accommodate the business or undertaking carried out at the nursing home; or (ii) in the operation of the business or undertaking; the sum of the amount of money that the purchaser pays for that property and of the amount referred to in paragraph (a); 'sale of an approved nursing home' has the meaning given by subsection (3); 'second investigation', in relation to an approved nursing home that is being sold, means the investigation carried out under paragraph 65C(1)(d); 'second investigation period', in relation to an approved nursing home that is being sold, means the period referred to in paragraph 65C(1)(d); 'vendor', in relation to an approved nursing home that is being, or has been, sold, means the proprietor of the nursing home immediately before the sale; 'vendor payment', in relation to an overpayment outstanding in respect of an approved nursing home, means an amount paid by the vendor to the Commonwealth under section 65K.