EXPLANATORY STATEMENT
STATUTORY RULES 1990 No. 292
NATIONAL HEALTH REGULATIONS (AMENDMENT)
Section 140 of the National Health Act 1953 (the Act) provides that the Governor-General may make regulations for the purposes of the Act.
Sub-paragraph 40AA(6)(c)(ii) of the Act provides in part that no extra charge over the approved scale of fees will be payable by or on behalf of a qualified nursing home patient unless the charge is in respect of a matter that is not related to the nursing home care provided for the patient, and the service for which the charge is made has been requested by the patient.
Section 4 of the Act defines “nursing home care” to mean accommodation and nursing care of a kind provided in a nursing home, including any prescribed service of a kind provided in a nursing home.
Regulations to prescribe services have not previously been made for the purposes of section 4. A purpose of the proposed Regulations is to tighten the administration of the Act with regard to the levying of extra charges on residents of approved nursing homes.
By virtue of sub-paragraph 40AA(6)(c)(ii) and Section 4, patients cannot be charged extra fees for prescribed services, and regulations 3 and 8 define such services, to provide clear guidance for the industry.
Details of the Regulations are attached.
ATTACHMENT
National Health Act Regulations (Amendment)
Regulation 1
This provides that regulations 3 and 8 commence on 1 October 1990 (the remaining regulations commence on gazettal).
Regulation 2
This is a formal provision.
Regulation 3
This inserts a new regulation (regulation 4A) in the principal Regulations.
The new sub-regulation 4A(1) has the effect of prescribing, for the purposes of sub-section 4(1) of the act, services included in the definition of nursing home care. These services are found at column 2 of schedule 1A (created by amending regulation 8) of the regulations.
The new sub-regulation 4A(2) provides for clarification, where necessary, of the services set out in column 2, by detailing specific inclusions or exclusions to those services, but without limiting the generality of those defined services.
The new sub-regulation 4A(3) provides that, for the purposes of schedule 1A, “health professional” shall be taken as including the Director of Nursing at the nursing home.
Regulations 4-7
These are minor technical amendments.
Regulation 8
This inserts a new schedule, Schedule 1A, which details the services prescribed pursuant to the new sub-regulation 4A(1). Column 1 of the Schedule 1A details the item number of each prescribed service. Column 2 details the services prescribed by the new sub-regulation 4A(1). Column 3 provides for clarification of the prescribed services as provided in the new sub-regulation 4A(2).
Overview
The National Health Regulations (Amendment) Statutory Rules 1990 No. 292 were enacted to address the need for clearer regulations regarding the extra charges that can be levied on qualified nursing home patients. This amendment was introduced to provide tighter administration of the National Health Act 1953, particularly concerning the extra fees charged to residents of approved nursing homes. The policy objective of these regulations is to ensure that any additional charges made to patients are strictly related to services not included in the approved scale of fees for nursing home care, and that such charges must be for services requested by the patient. The National Health Regulations (Amendment) aim to define more precisely what constitutes "nursing home care" by specifying the services that are included in this definition, thereby providing clearer guidance to the industry and protecting patients from unwarranted extra fees.
Scope and Application
The National Health Regulations (Amendment) are designed to provide clearer guidance and tighter administration of the National Health Act 1953 with respect to the services that can be prescribed as nursing home care, and thereby the services for which additional charges cannot be levied on qualified nursing home patients. The Act applies to qualified nursing home patients and their care providers, specifically within the context of approved nursing homes. The geographic reach of this legislation is nationwide, applying across all states and territories of Australia, as it is a Commonwealth regulation. The regulations are intended to prevent extra charges over the approved scale of fees unless the charges are for matters unrelated to the nursing home care provided, and the service has been requested by the patient. The regulations are detailed in an attached schedule, which lists the prescribed services that fall under nursing home care, thereby preventing additional fees for these services. Any changes or further specifications to the regulations can be implemented through subordinate instruments, thereby extending or restricting the application of the Act as necessary.
Key Provisions
The key provisions of the National Health Regulations (Amendment) primarily involve the introduction of new regulations concerning the services prescribed for the purposes of sub-section 4(1) of the National Health Act 1953 (the Act). Regulation 3 introduces a new sub-regulation 4A(1) which prescribes specific services included in the definition of nursing home care, which are detailed in column 2 of Schedule 1A. This sub-regulation aims to provide clear guidance on what constitutes nursing home care, thereby limiting the scope of extra charges that can be levied on patients beyond the approved scale of fees (section 40AA(6)(c)(ii)). Additionally, sub-regulation 4A(2) offers clarification on these prescribed services, ensuring there is no ambiguity regarding what is included or excluded from the definition of nursing home care. Regulation 8 creates Schedule 1A, which lists and details the prescribed services, along with any necessary clarifications.
The new regulations impose specific obligations on nursing homes and the providers of nursing home care. They must ensure that any charges made to patients are strictly for services that are not related to the approved scale of nursing home care. This means that nursing homes cannot impose extra charges for services that are prescribed and included in the definition of nursing home care. Furthermore, nursing homes must adhere to the definitions and clarifications provided in Schedule 1A, ensuring that their practices align with the prescribed services outlined by the Act. These obligations necessitate that nursing homes maintain detailed records and justifications for any charges made to patients, thereby ensuring transparency and compliance with the legislative requirements.
Failure to comply with the provisions of the Act and the new regulations may result in legal consequences for nursing homes and their administrators. The Act does not explicitly state the penalties for breaches; however, it is likely that such breaches could be considered violations under other relevant sections of the Act or associated legislation. For instance, penalties could include fines, corrective orders, or even criminal charges if the breach is deemed to be of a serious nature. The exact penalties would depend on the specific circumstances of the breach and the jurisdiction’s regulatory framework. It is crucial for nursing homes to understand and adhere to these provisions to avoid potential legal ramifications.