EXPLANATORY NOTE
VETERANS’ ENTITLEMENTS ACT 1986
Section 88A
Veterans' Entitlements Treatment (Residential Care) Determination 20/2000
Background
- The Repatriation Commission ('the Commission') may accept financial liability for the provision of residential care to veterans, and war widows and entitled dependants. Prior to the first introduction of section 88A of the Veterans' Entitlements Act 1986 ('the Act') and the Determinations made under it, the financial liability of the Commission in relation to the provision of residential care was governed solely by the Treatment Principles made under the Act. The situation now is that the revised section 88A and the attached Determination together with the Treatment Principles govern the liability of the Commission for the provision of residential care.
2. The method by which the Commission accepts financial liability for veterans etc in residential care is as follows. Under the Aged Care Act 1997, the Commonwealth subsidises the costs incurred by people in residential care. If the costs are in relation to veterans or their entitled dependants then the Treatment Principles provide that the Commission is to be taken to have arranged for the provision of the residential care and accepted financial liability for it. There are complementary provisions in the Aged Care Act 1997.
3. The Commission can only accept financial liability for the costs of residential care
where they have been incurred by a person eligible to receive that care. Part V of the Act governs the eligibility of veterans etc for treatment (eg residential care). Prior to the introduction of section 88A, some veterans were eligible for treatment in respect of any condition (Gold Card holders), while others were only eligible for treatment in respect of specific conditions ie war/defence-caused injuries/diseases, malignant neoplasm, pulmonary tuberculosis or post-traumatic stress disorder (White Card holders). Veterans' entitled dependants were and are eligible for treatment of all conditions.
4. A problem arose in the case of white card holders in residential care. These veterans were only eligible for "residential care " applied to the specific conditions for which they were eligible to have treated. Thus, a white card holder in residential care was only eligible for "residential care " in respect of a war/defence-caused injury/disease, malignant neoplasm, pulmonary tuberculosis or post-traumatic stress disorder. The difficulty, however, was that the relevant "billing system" did not and could not differentiate between "residential care " applied to, say, a war-caused condition ie a condition for which a veteran was eligible to receive treatment, and a condition for which a veteran was not eligible to receive treatment.
An Audit report disclosed that by accepting financial liability for the residential care costs of veterans on the basis of a person being a Gold Card holder or a White Card holder, without, in the case of a White Card holder, making a distinction (if one could be made), between the "eligible conditions" and "non-eligible conditions" being treated, the Commission may have been unlawfully accepting financial liability for certain residential care ie the residential care applied to "non-eligible conditions".
Example. A White Card holder receives "residential care " for a war-caused leg injury. "Residential Care " is also applied to a non-war caused skin condition (e.g nurse bathing the skin). Previously the Commission accepted financial liability for the amount of the subsidy to be paid toward the residential care applied to all the White Card holder's conditions ie the leg and skin conditions, when really it should only have accepted financial liability for the amount of the subsidy to be paid toward the "residential care" applied to the White Card holder's leg condition because that was the only condition for which the White Card holder was eligible to receive treatment.
5. The difficulty in practice of distinguishing between treatment applied to "eligible" and
"non eligible" conditions arose in other areas of Commission-funded treatment e.g HOMEFRONT, and so it was decided to amend the Act to enable the Commission to determine new grounds of eligibility for treatment which would allow it to accept financial liability for treatment applied to conditions which previously were "ineligible" for treatment. The Act was amended by the introduction (first time) of section 88A which enabled the Commission to determine, in writing, that a veteran included in a specified class, is eligible to be provided with treatment of a specified kind under Part V of the Act.
On 17 April 2000 the Repatriation Commission made a Determination under section 88A of the Act which enabled the veterans in question to receive residential care in respect of conditions in addition to war-caused etc conditions, namely the Veterans' Entitlements Treatment (Residential Care)Determination 2/2000 ("Determination 2/2000"). Determination 2/2000 commenced on 30 March 2000.
6. However Determination 2/2000 was repealed, by implication, by the Veterans' Affairs Legislation Amendment (Budget Measures) Act 2000 which repealed the provision under which Determination 2/2000 was made (ie section 88A of the Act) and which replaced that provision with a more comprehensive determination-making power ("new Section 88A"). Veterans who were eligible for treatment under Determination 2/2000 will be deemed to be eligible for treatment under the attached Determination.
What is the Instrument about?
7. The attached Determination is made under the new section 88A and is in the same terms as Determination 2/2000. The Determination was made after the enactment of the Veterans' Affairs Legislation Amendment (Budget Measures) Act 2000 and before that Act commenced, which was on Royal Assent. Section 4 of the Acts Interpretation Act 1901 permitted this course of action.
8. The purpose of the attached Determination is to allow the Commission to accept financial liability for the residential care subsidy payable in respect of the "residential care" applied to a condition of a White Card holder for which the White Card holder is not otherwise eligible to receive treatment e g the skin condition in the example above. Neither the attached Determination nor the Treatment Principles, at the time the attached Determination was made, allow the Commission to accept financial liability for any "resident fee" to be paid in respect of a White Card holder's "residential care" (a "resident fee" is a financial contribution made by a nursing home resident). Further, the attached Determination in conjunction with the Treatment Principles does not allow the Commission to accept financial liability for medical treatment or other types of treatment applied to the condition which is the subject of the attached Determination e.g the skin condition in the example above. Any eligibility for such treatment of such condition must be found in another Determination or in the Treatment Principles.
What is the cost?
9. Costs will be met from the standing appropriation of monies for medical and other treatment services provided under Part V of the Veterans' Entitlements Act 1986.
Will pre-existing rights be affected?
10. The Determination commenced before gazettal. The Determination will not infringe subsection 48(2) of the Acts Interpretation Act 1901 because it does not disadvantage any person or impose liabilities upon any person. The Determination is beneficial legislation.