EXPLANATORY STATEMENT
STATUTORY RULES 1983 NO. 43
ISSUED BY AUTHORITY OF THE MINISTER FOR HEALTH NURSING HOMES ASSISTANCE REGULATIONS (AMENDMENT)
Section 37 of the Nursing Homes Assistance Act 1974 (‘the Act’) provides that the Governor-General may make regulations not inconsistent with the Act, prescribing all matters required or permitted by the Act to be prescribed or necessary or convenient to be prescribed for carrying out or giving effect to the Act.
Sub-section 3(1) of the Act defines a “Government nursing home” as “a prescribed nursing home conducted by or on behalf of the Commonwealth or a State”.
By virtue of sub-section 3(2) of that Act, the effect of prescribing a nursing home as a “Government nursing home” is to exclude the home from the operation of that Act. A nursing home so excluded is precluded from entering into an agreement with the Commonwealth under which the Commonwealth agrees to meet any approved deficit incurred by the home in a financial year.
By virtue of regulation 4B of the National Health Regulations, each of the nursing homes specified as a prescribed “Government nursing home” in the Nursing Homes Assistance Regulations is also a prescribed nursing home for the purposes of the definition of “Government nursing home” in sub-section 4(1) of the National Health Act 1953. This device obviates the need to amend both the Nursing Homes Assistance Regulations and the National Health Regulations when changes are made to the category of “Government nursing homes”.
A nursing home approved under the National Health Act 1953, when prescribed as a “Government nursing home” for the purposes of that Act, is exempt from conditions of approval which are applicable to other nursing homes approved under that Act, including conditions which relate to the level of fees to be charged, the maximum number of beds to be made available to nursing home patients, and the admission of patients. Although exempt from these conditions, such a nursing home will remain eligible for the
payment of nursing home benefits under the National Health Act. Because it is also prescribed as a “Government nursing home” for the purposes of the Nursing Homes Assistance Act, such a nursing home is, as indicated above, precluded from entering into an agreement under the deficit financing arrangements.
Regulation 4 of the Nursing Homes Assistance Regulations provides that the nursing homes specified in Schedule 1 to those regulations are prescribed nursing homes for the purposes of the definition of “Government nursing home” in sub-section 3(1) of the Act. It is necessary from time to time to bring up to date the list of nursing homes in Schedule 1. To this end, the statutory rules prescribe 11 further nursing homes as “Government nursing homes” and revise the description of the premises of 7 nursing homes already prescribed.
The statutory rules came into operation on the date of their notification in the Commonwealth of Australia Gazette.
Overview
The Nursing Homes Assistance Regulations (Amendment) Statutory Rules 1997 were enacted to update the list of nursing homes classified as "Government nursing homes" under the Nursing Homes Assistance Act 1974. This amendment was necessary to ensure that the regulations remain current and effective, reflecting any changes in the category of nursing homes that are prescribed as "Government nursing homes." By incorporating these changes, the regulations maintain their alignment with the broader objectives of the Act, which includes facilitating the exclusion of certain nursing homes from specific provisions and ensuring that the definitions and classifications are consistent across related legislative frameworks. The statutory rules were issued by authority of the Minister for Health and came into operation on the date of their notification in the Commonwealth of Australia Gazette, thereby providing an updated framework for the regulation of nursing homes under the Act.
Scope and Application
The Nursing Homes Assistance Regulations (Amendment) Statutory Rules 1983 No. 43, issued under the authority of the Minister for Health, amend the Nursing Homes Assistance Regulations to update the list of prescribed "Government nursing homes" as defined by the Nursing Homes Assistance Act 1974. These regulations apply to the specific nursing homes listed in Schedule 1 of the regulations, which are now updated to include 11 additional nursing homes and revise the descriptions of 7 previously listed homes. The scope of the Act is limited to those nursing homes that are prescribed as "Government nursing homes", thereby excluding them from certain provisions of the Act, including agreements with the Commonwealth for deficit financing. These prescribed homes are also recognised as "Government nursing homes" under the National Health Act 1953, which exempts them from certain conditions applicable to other approved nursing homes, although they remain eligible for nursing home benefits under the National Health Act. The regulations have a national reach, as they are issued under the authority of the Commonwealth of Australia and are applicable across state and territory boundaries, as amended by these statutory rules.
Key Provisions
The key operative sections of these regulations, as outlined in the explanatory statement, focus on the definition and prescription of “Government nursing homes” under the Nursing Homes Assistance Act 1974 and their subsequent exclusion from certain agreements and conditions. Section 37 of the Act empowers the Governor-General to make regulations, which in this case involve prescribing nursing homes as “Government nursing homes” and updating the list of such homes specified in Schedule 1. Regulation 4 of the Nursing Homes Assistance Regulations currently lists the nursing homes prescribed as “Government nursing homes,” and the statutory rules amend this list by adding 11 more nursing homes and revising the descriptions of 7 existing ones.
The regulations impose specific obligations and requirements on the parties they govern. Nursing homes prescribed as “Government nursing homes” under these regulations are excluded from entering into agreements with the Commonwealth for deficit financing, as per section 3 of the Act. Furthermore, these homes are exempt from certain conditions of approval under the National Health Act 1953, including fee levels, bed availability, and patient admissions, but they remain eligible for nursing home benefits payments. By being prescribed as “Government nursing homes,” these facilities are also aligned with the definitions and regulations under the National Health Act.
The statutory rules outline the consequences for breach of the regulations. While the explanatory statement does not explicitly list offences or penalties, it can be inferred that any non-compliance with the regulations might result in the affected nursing home losing the benefits of being classified as a “Government nursing home.” This could potentially involve losing exemptions from certain conditions of approval and the ineligibility for deficit financing agreements. However, the specific penalties for breach are not detailed in the provided text.
The inclusion of these statutory rules in the Commonwealth of Australia Gazette marks their effective date, indicating that the changes to the list of “Government nursing homes” are legally binding and enforceable from that moment. The amendments ensure that the list remains current and accurate, reflecting the current status of nursing homes that are subject to the specific exclusions and exemptions outlined in the regulations.