Aged Care (Consequential Provisions) Act 1997

Overview

The Aged Care (Consequential Provisions) Act 1997 was enacted by the Parliament of Australia to provide for transitional measures and consequential amendments following the introduction of the Aged Care Act 1997. This Act addresses the need for a smooth transition from the previous legislative framework governing aged care services to the new regime established by the Aged Care Act 1997, ensuring continuity and consistency in the delivery of aged care services, subsidies, and approvals. It encompasses a wide range of amendments to various existing Acts, including the National Health Act 1953, the Aged or Disabled Persons Care Act 1954, and the Social Security Act 1991, among others, to align them with the new aged care provisions. The policy objective is to facilitate the implementation of the new aged care system by addressing potential gaps and ensuring that existing approvals, applications, and benefits are appropriately transferred and recognised under the new legislative framework.

Scope and Application

The Aged Care (Consequential Provisions) Act 1997 applies to the transitional arrangements and consequential amendments necessitated by the enactment of the Aged Care Act 1997. The Act applies to entities such as approved nursing homes and hostels that were recognised under previous legislation like the National Health Act 1953 and the Aged or Disabled Persons Care Act 1954, as well as to individuals who were receiving or eligible to receive care under these prior laws. It also extends to the applications and approvals processes that were in place before the commencement of the Aged Care Act 1997. The Act operates on a Commonwealth level, affecting entities and individuals throughout Australia. Exclusions and repeals are evident, particularly concerning the residential care allowance and its replacement with other forms of care subsidies and benefits. The scope of the Act is further extended and defined through amendments and Schedules that adjust various legislative provisions to align with the new framework set out by the Aged Care Act 1997. Transitional provisions are detailed to ensure continuity of services, approvals, and classifications from the old system to the new, effectively maintaining the status quo for ongoing applications and approvals until they are processed under the new Act.

Key Provisions

• The Aged Care (Consequential Provisions) Act 1997 (Act) enacts transitional provisions and makes consequential amendments in connection with the Aged Care Act 1997 (new Act). The Act ensures the smooth transition of certain activities, approvals, and obligations from the old legislative framework to the new one. It includes provisions relating to the approval of providers, the classification of care recipients, and the allocation of subsidies and grants, among other things. Section 6 of the Act provides that if a person had applied for approval as an approved operator under section 39BA of the National Health Act 1953 (1953 Act) before the commencement day and the Minister had not made a decision on the application by that day, the application is taken to be an application made under section 8-2 of the new Act for approval as a provider of aged care. Similarly, section 9 provides that if an organisation had applied for approval as an approved operator under section 10AB of the Aged or Disabled Persons Care Act 1954 (1954 Act) before the commencement day and the Minister had not made a decision on the application, the application is considered to be made under section 8-2 of the new Act for approval as a provider of aged care. Section 12 provides that if an organisation had applied for approval under section 10GC of the 1954 Act before the commencement day and the Minister had not made a decision on the application, the application is taken to be an application made under section 8-2 of the new Act for approval as a provider of aged care.
• The Act imposes various obligations on the parties and entities it governs. For example, section 7 of the Act provides that a person who was an approved operator or the proprietor of an approved nursing home immediately before the commencement day is taken to be an approved provider under the new Act if certain conditions are met. Section 22 of the Act states that if an application is made to alter the conditions of approval of a nursing home, and the alteration sought is a reduction in the number of beds, the application is treated as a transfer of places or a relinquishment of places depending on the circumstances. Section 40 of the Act provides that if a determination under subsection 40AFA(5) of the 1953 Act giving a classification to a particular person was in force immediately before the commencement day, the determination continues in force as if section 40AFA of the 1953 Act had not been repealed. Additionally, section 52 of the Act provides that if a certificate under section 39AB of the 1953 Act stating that the beds included in an approved nursing home are exempt beds was in force immediately before the commencement day, the Secretary is taken to have granted extra service status in respect of the residential care service corresponding to the nursing home, subject to certain conditions.
• Breaches of the provisions of the new Act can lead to various consequences and penalties. Section 67 of the Act provides that if a declaration under subsection 45E(1) of the 1953 Act was in force immediately before the commencement day and the declaration was to the proprietor of an approved nursing home that the home did not satisfy the standards determined under section 45D of the 1953 Act, the declaration is taken to be a notice of non-compliance given to the approved provider conducting the residential care service. Section 68 of the Act provides that if a determination under subsection 45EA(2) of the 1953 Act was in force immediately before the commencement day and the determination was a determination to the proprietor 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, the determination is taken to be a sanction imposed on the approved provider conducting the residential care service that restricts their approval as a provider of aged care services to care recipients to whom they provided care before the making of the determination. Furthermore, section 78A of the Act provides that if a particular condition is covered by paragraph 20(1)(b) and there was a failure to comply with the condition before the commencement day, and 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. These provisions outline some of the potential consequences for non-compliance with the new Act.

Legal classification tags

Area of Law

Elder Law

Administrative Law

Instrument

Act

Concepts

Definitions & Interpretation

Transitional Provisions

Repeal & Amendment

Licensing & Registration

Enforcement Powers

Review & Sunset Clauses