National Health (Nursing Home Respite Care) Regulations (Cth)

National Health (Nursing Home Respite Care) Regulations

Statutory Rules 1989 No. 173 as amended

made under the

National Health Act 1953

This compilation was prepared on 8 June 2004

taking into account amendments up to SR 1990 No. 404

Prepared by the Office of Legislative Drafting,

Attorney-General’s Department, Canberra

Contents

Part 1 Preliminary

Part 2 Provision of respite care in approved nursing homes

Division 1 General

Division 2 Leave respite care

Division 3 Benefit respite care

Part 3 Benefit respite care supplement

Part 4 Miscellaneous

 

Part 1Preliminary

  1Citation [see Note 1]

 These Regulations may be cited as the National Health (Nursing Home Respite Care) Regulations.

2Commencement

 These Regulations commence on 1 July 1989.

3Interpretation

 In these Regulations, unless the contrary intention appears:

benefit respite care means respite care provided under Division 3 of Part 2 to a benefit respite care patient.

benefit respite care bed day, in relation to an approved nursing home, means a day in respect of which benefit respite care supplement is payable to the proprietor of the nursing home for the occupation of a bed in the nursing home by a benefit respite care patient.

benefit respite care patient means:

• (a)

  a person:

  • (i)

    whose admission to an approved nursing home is approved under section 40AB of the Act; and

  • (ii)

    who is a qualified nursing home patient; or

• (b)

  a Repatriation nursing home patient who is not a leave respite care patient.

benefit respite care supplement means an amount payable by the Commonwealth under regulation 36.

leave respite care means respite care provided under Division 2 of Part 2 to a leave respite care patient.

leave respite care bed means a bed in an approved nursing home temporarily occupied by a leave respite care patient.

leave respite care patient means a person:

• (a)

  whose admission to an approved nursing home is approved by the Minister under section 40AB of the Act; and

• (b)

  who occupies a bed in an approved nursing home temporarily vacated by:

  • (i)

    a qualified nursing home patient; or

  • (ii)

    a Repatriation nursing home patient.

 under an agreement made under subsection 4AA (2) of the Act.

but does not include a Repatriation nursing home patient.

qualified nursing home patient means a person who occupies a bed in an approved nursing home for the purpose of nursing home care, but does not include:

• (a)

  a leave respite care patient; or

• (b)

  a member of the staff of the nursing home receiving nursing home care in the member’s own quarters; or

• (c)

  subject to subsection (1C) of the Act, a newly born child whose mother also occupies a bed in the nursing home; or

• (d)

  a Repatriation nursing home patient;

the Act means the National Health Act 1953.

Part 2Provision of respite care in approved nursing homes

Division 1General

4Respite care scheme

 For the purposes of providing respite care in approved nursing homes, a scheme is established for the provision of:

• (a)

  leave respite care; and

• (b)

  benefit respite care;

to a person:

• (c)

  whose application for admission to an approved nursing home has been approved by the Minister under section 40AB of the Act; or

• (d)

  who is a Repatriation nursing home patient.

5Provision of leave respite care

 Leave respite care may be provided under Division 2 to a leave respite care patient in an approved nursing home.

6Provision of benefit respite care

 Benefit respite care may be provided under Division 3 to a benefit respite care patient in an approved nursing home.

7Notification of patient’s status on admission

• (1)

  On the day of the admission to an approved nursing home of a person whose application for admission to an approved nursing home has been approved by the Minister under section 40AB of the Act or a person who is a Repatriation nursing home patient, the proprietor of the nursing home to which the person is admitted must, where the patient is admitted as a leave respite care patient or a benefit respite care patient, give a written statement to the person admitted.

• (2)

  The statement referred to in subregulation (1) must state:

  • (a)

    that the patient is:

    • (i)

      a leave respite care patient; or

    • (ii)

      a benefit respite care patient;

   as the case may be; and

  • (b)

    in the case of a leave respite care patient, the maximum number of days for which the proprietor of the nursing home expects that the patient will occupy a bed temporarily vacated by another patient under an agreement made under subsection 4AA (2) of the Act; and

  • (c)

    in the case of a benefit respite care patient:

    • (i)

      the maximum number of days for which the patient may, under regulation 21, be a benefit respite care patient in the nursing home in the financial year that includes the day of admission; and

    • (ii)

      the date on which the proprietor of the nursing home expects to discharge the patient from the nursing home, having regard to any other arrangements made by the proprietor in relation to the occupation of beds in the nursing home.

Division 2Leave respite care

9Application to Government and non-Government nursing homes

 Leave respite care may be provided in an approved nursing home, being either:

• (a)

  a Government nursing home; or

• (b)

  not a Government nursing home.

10Benefit respite care supplement not payable

 The proprietor of an approved nursing home is not entitled to be paid a benefit respite care supplement in respect of a leave respite care patient.

12Classification not applicable

Section 40AFA of the Act does not apply to leave respite care patients.

Division 3Benefit respite care

13Limitation to non-Government nursing homes

 Benefit respite care may be provided only in an approved nursing home that is not a Government nursing home.

14Determination of number of benefit respite care bed days inrelation to a nursing home

• (1)

  On application in writing made by the proprietor of a nursing home, the Minister may determine in writing the number of benefit respite care bed days for the nursing home for a financial year or for a period in a financial year.

   (2) In making a determination, the Minister must have regard to:

  • (a)

    the number of beds in the nursing home; and

  • (b)

    any maximum number of benefit respite care bed days determined under subregulation 20 (1) for the State or Territory in which the nursing home is situated; and

  • (c)

    any maximum number of benefit respite care bed days determined under subregulation 20 (1) for the region in which the nursing home is situated.

15Revocation or variation of a determination made under regulation 14

 The Minister may, on application in writing made by the proprietor of a nursing home or otherwise, revoke or vary a determination made under regulation 14 in relation to the nursing home.

18Minister to give notice of certain decisions

 Where the Minister makes a decision under regulation 14 or 15 otherwise than in accordance with an application, the Minister is to give the proprietor of the nursing home to which the decision relates notice in writing of the decision.

20Determination of maximum number of benefit respite care bed days

• (1)

  The Minister may, by notice in writing published in the Gazette, determine the maximum number of benefit respite care bed days for a relevant period:

  • (a)

    for a State or Territory; or

  • (b)

    for a region in a State or Territory.

• (2)

  In making a determination, the Minister must have regard to:

  • (a)

    the number of nursing homes in the State or Territory or region, as the case may be; and

  • (b)

    the number of beds in those nursing homes; and

  • (c)

    the need for benefit respite care bed days in the State or Territory or region.

• (3)

  In this regulation, elevant period means:

  • (a)

    the period commencing on 1 January 1991 and ending on 30 June 1991; or

  • (b)

    a financial year.

21Limitation on duration of occupancy of a bed as a benefit respite care patient

• (1)

  A person may be a benefit respite care patient in a particular nursing home for not more than a total of 63 days in a financial year.

• (2)

  For the purpose of calculating the number of days that a person is a benefit respite care patient in an approved nursing home:

  • (a)

    the day of the person’s admission as such a patient and the day on which the person ceases to be such a patient are counted as 1 day; and

  • (b)

    where on a day the person:

    • (i)

      ceases to be a leave respite care patient in a nursing home; and

    • (ii)

      immediately becomes a benefit respite care patient without an intervening period of absence from the nursing home;

  the person is taken to have been admitted to the nursing home as a benefit respite care patient on that day; and

  • (c)

    where on a day the person:

    • (i)

      ceases to be a benefit respite care patient in a nursing home; and

    • (ii)

      immediately becomes a leave respite care patient without an intervening period of absence from the nursing home;

  the person is taken to have been discharged from the nursing home on that day.

23Classification applicable

Section 40AFA of the Act applies to benefit respite care patients.

24Application of section 4AA of the Act

 Section 4AA of the Act does not apply to benefit respite care patients.

25Occupation of a bed temporarily vacated by another patient

 A benefit respite care patient is not permitted to occupy a bed in an approved nursing home temporarily vacated, pursuant to an agreement made under subsection 4AA (2) of the Act, by:

• (a)

  a qualified nursing home patient; or

• (b)

  a Repatriation nursing home patient.

27Application of this Part to nursing homes for disabled people

 The provisions of this Part do not apply to a nursing home for disabled people.

31Certificate of approval under section 41 of the Act

 Upon a determination by the Minister under regulation 14 of the number of benefit respite care bed days for an approved nursing home, or upon any variation of such a determination, the Minister must:

• (a)

  if the determination or variation is made at the same time as the approval referred to in subsection 41 (1) of the Act, include that number as a condition in the certificate of approval issued to the proprietor of the nursing home under section 41 of the Act; or

• (b)

  if the determination or variation is made after a certificate has been issued to the proprietor of the nursing home under section 41 of the Act, issue to the proprietor a new certificate that includes that number as a condition applicable to the nursing home.

32Booking fee

• (1)

  In this regulation:

  additional exempt bed fee has the same meaning as in Part V of the Act.

  basic fee, in relation to a person who books a place in a nursing home as a benefit respite care patient for a day, means:

  • (a)

    if the nursing home is not an exempt nursing home, the sum of:

    • (i)

      the amount applicable under subparagraph 47 (2) (b) (iii) of the Act; and

    • (ii)

      any additional patient contribution applicable to the patient under subsection 40AI (1) of the Act.

   for that day; or

  • (b)

    if the nursing home is an exempt nursing home, the sum of:

    • (i)

      the amount applicable under subparagraph 47 (2) (b) (iii) of the Act; and

    • (ii)

      the lowest additional exempt bed fee for an exempt bed in the nursing home; and

    • (iii)

      an amount equal to the proportion of that additional exempt bed fee that the proprietor of the nursing home agreed should be taken into account in reducing the Commonwealth benefit payable from time to time in respect of that exempt bed.

   for that day;

  exempt bed has the same meaning as in Part V of the Act;

  exempt nursing home means a nursing home in which all the beds for patients are exempt beds within the meaning of Part V of the Act.

• (2)

  The proprietor of a nursing home may charge a person a fee for booking a place for the person as a benefit respite care patient of the nursing home.

• (3)

  The booking fee must not exceed:

  • (a)

    25% of the basic fee for each of the days in the period for which the booking was made; or

  • (b)

    the basic fee for the first 7 days of that period.

  whichever is the lesser.

• (4)

  Where, not less than 7 days before the period for which a booking was made by a person, the person gives the proprietor of the nursing home notice in writing of the cancellation of the booking, the booking fee must be refunded in full not later than 14 days after the proprietor receives notice.

• (5)

  Where a booking for a person is cancelled without notice of cancellation being given in accordance with subregulation (4):

  • (a)

    the fee must be refunded in full as soon as practicable if the booking was cancelled because the person was admitted to hospital, or died, after making the booking; and

  • (b)

    the fee may be retained by the proprietor of the nursing home if the booking was cancelled for any other reason.

• (6)

  Where a person becomes a respite care patient of a nursing home in accordance with a booking:

  • (a)

    the liability of the person to pay fees to the proprietor must be reduced by the amount of the booking fee; and

  • (b)

    if the booking fee exceeds the fees payable by the person, the excess need not be refunded by the proprietor unless the person ceased to be a benefit respite care patient because the person was admitted to hospital or died.

Part 3Benefit respite care supplement

  35Interpretation

• (1)

  In this Part, unless the contrary intention appears:

  supplement day, in relation to a patient in an approved nursing home, means a day in respect of which a benefit respite care supplement is payable by the Commonwealth to the proprietor of the nursing home under regulation 36.

36Benefit respite care supplement

• (1)

  Subject to regulation 21, an amount, calculated in accordance with regulation 37, is payable by the Commonwealth by way of benefit to a proprietor of a nursing home in respect of each day on which a bed in that nursing home is occupied by a benefit respite care patient, not being a Repatriation nursing home patient.

• (3)

  A benefit respite care supplement:

  • (a)

    does not form part of the fee payable under the Act to the proprietor of an approved nursing home for the provision of nursing home care for a patient in that nursing home; and

  • (b)

    is payable under subregulation (1) in addition to that fee.

• (4)

  A person who has been a benefit respite care patient in a nursing home for a total of 63 days in a financial year ceases to have a classification referred to in section 40AFA of the Act until the person is classified under that section in relation to a later period.

37Calculation of amount of supplement

• (1)

  The amount payable to the proprietor of a nursing home under subregulation 36 (1) in relation to a patient in respect of a supplement day is an amount calculated in accordance with the following formula:

  where SAM has the same meaning as in paragraph 40AG (7) (g) of the Act.

• (2)

  Where, but for this subregulation, an amount referred to in subregulation (1) would be an amount that includes a fraction of a cent, the fraction of a cent shall be regarded as one cent.

Part 4Miscellaneous

  38Modifications under subsection 49AA (2) of the Act

• (2)

  The provisions of the Act specified in the Schedule apply with the modification prescribed in the Schedule in relation to the scheme providing for respite care in approved nursing homes contained in these Regulations.

ScheduleModifications of the Act under subsection 49AA (2) of the Act

(regulation 38)

  

Part 1Principal Modifications

1Subsection 4 (1):

Omit the definitions of the following expressions:

short-term respite care patient;

qualified nursing home patient.

2After subsection 4 (1A):

Insert the following subsection:

‘(1AA) The following expressions have the same meaning as in the National Health (Nursing Home Respite Care) Regulations:

benefit respite care patient;

leave respite care patient;

qualified nursing home patient..

3Paragraph 4AA (5) (e):

After ‘Part VA’, insert ‘(other than the benefit respite care supplement)’.

4After subsection 4AA (6):

Insert the following subsection:

‘(6A) In this section, a reference to:

• (a)

  a qualified nursing home patient; or

• (b)

  a Repatriation nursing home patient;

does not include a person who is a benefit respite care patient.’.

5Section 39 (definition of Commonwealth benefit):

add at the end ‘but does not include an amount payable as benefit respite care supplement’.

6Subsection 39AA (4):

Omit ‘and the notice in force under sub-section (3)’, substitute ‘, the notice in force under subsection (3) and the notice in force under regulation 20 of the National Health (Nursing Home Respite Care) Regulations’.

7Subparagraph 40AA (6) (bb) (i):

Omit ‘whose admission to the nursing home has been approved by the Minister under section 40ABA’, substitute ‘who is a leave respite care patient”.

8Subsection 40AA (11):

Omit the subsection.

9Subsection 40AA (13):

Omit ‘ or 40ABA’.

10After subsection 40AA (6A):

Insert the following subsection:

‘(6AB) The condition referred to in paragraph 40AA (6) (cd) does not prohibit the proprietor of a nursing home from charging a benefit respite care patient a booking fee in accordance with regulation 32 of the National Health (Nursing Home Respite Care) Regulations.’.

11Paragraph 40AB (5A) (a):

Omit ‘immediately after the end of’, substitute ‘ on’.

12Subsection 40AB (5B):

Omit ‘ section 40ABA’, substitute ‘this Part’.

13Paragraph 40E (6) (b):

After ‘Commonwealth benefit’, insert ‘and benefit respite care supplement’.

14Subsection 50 (2):

Add at the end ‘(other than any benefit respite care supplement paid)’.

Part 2Further Modifications

1Paragraphs 40AA (6) (ba) and (bb) and subsection 40AD (1AA):

After’“qualified nursing home patient’, insert ‘(other than a benefit respite care patient)’.

2Paragraphs 40AA (6) (ba) and (bb) and subsection 40AB (1AA):

After ‘Repatriation nursing home patient’ (wherever occurring), insert ‘(other than a benefit respite care patient)’.

3Subsection 40AB (5A):

After ‘qualified nursing home patient’ (first occurring), insert ‘(other than a benefit respite care patient)’.

4Paragraph 4AA (10) (a); subparagraphs 40AA (6) (bb) (ii) and (iii); subparagraph 40AA (6) (c) (ii); paragraph 40AA (6) (ca); subparagraphs 40AA (6) (d) (i) and (ii); subsection 40AA (6B); paragraph 40AA (10) (a) and subsections 40AB (5A) and (5B):

Omit ‘short-term’ (wherever occurring), substitute ‘leave’.

5Subsections 40AFA (2) and 45E (2) and paragraph 45E (6) (a):

Omit ‘is not payable’, substitute ‘and benefit respite care supplement are not payable’.

6Subsections 47 (2), 47 (2A), 47A (1) and 48A (1):

After ‘Commonwealth benefit’ (wherever occurring), insert ‘(not being a benefit respite care supplement)’.

7Subsections 48 (1), 48 (2) and 49 (1):

After ‘Commonwealth benefit’ (first occurring), insert ‘(not being a benefit respite care supplement)’.

 

Notes to the National Health (Nursing Home Respite Care) Regulations

Note 1

The National Health (Nursing Home Respite Care) Regulations (in force under the National Health Act 1953) as shown in this compilation comprise Statutory Rules 1989 No. 173 amended as indicated in the Tables below.

Table of Statutory Rules

Year and number	Date of notification in Gazette	Date of commencement	Application, saving or transitional provisions
1989 No. 173	30 June 1989	1 July 1989
1990 No. 404	17 Dec 1990	1 Jan 1991	—

Table of Amendments

ad. = added or inserted  am. = amended rep. = repealed rs. = repealed and substituted
Provision affected	How affected
Part 1
R. 3.........................................	am. 1990 No. 404
Part 2
Division 1
R. 7.........................................	am. 1990 No. 404
Division 2
R. 8.........................................	rep. 1990 No. 404
R. 11.......................................	rep. 1990 No. 404
Division 3
R. 14.......................................	rs. 1990 No. 404
Rr. 16, 17...............................	rep. 1990 No. 404
R. 18.......................................	am. 1990 No. 404
R. 19.......................................	rep. 1990 No. 404
R. 20.......................................	rs. 1990 No. 404
R. 21.......................................	rs. 1990 No. 404
R. 22.......................................	rep. 1990 No. 404
R. 26.......................................	rep. 1990 No. 404
Rr. 28–30...............................	rep. 1990 No. 404
R. 31............................................. .............................................	rs. 1990 No. 404
R. 32.......................................	rs. 1990 No. 404
Rr. 33, 34...............................	rep. 1990 No. 404

Part 4
R. 35.......................................	am. 1990 No. 404
R. 36.......................................	am. 1990 No. 404
R. 37.......................................	am. 1990 No. 404
R. 38.......................................	am. 1990 No. 404
Schedule
Schedule................................	rs. 1990 No. 404