AGED CARE AMENDMENT (TRANSITION CARE AND ASSETS TESTING) BILL 2005

i Aged Care Amendment (Transition Care and Assets Testing) Bill 2005 No. , 2005

Contents

Short title.......................................................................................1

Commencement .............................................................................1

Schedule(s)....................................................................................2

Schedule 1--Leave from residential care for flexible care

Aged Care Act 1997

Schedule 2--Assets testing

Aged Care Act 1997

Aged Care Amendment (Transition Care and Assets Testing) Bill 2005 No. , 2005 1

A Bill for an Act to amend the Aged Care Act 1997,

and for related purposes

The Parliament of Australia enacts:

1 Short title

This Act may be cited as the Aged Care Amendment (Transition

Care and Assets Testing) Act 2005.

2 Commencement

(1) Each provision of this Act specified in column 1 of the table

commences, or is taken to have commenced, in accordance with

column 2 of the table. Any other statement in column 2 has effect

according to its terms.

2 Aged Care Amendment (Transition Care and Assets Testing) Bill 2005 No. , 2005

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

1. Sections 1 to 3

and anything in

this Act not

elsewhere covered

by this table

The day on which this Act receives the

Royal Assent.

2. Schedule 1

The day on which this Act receives the

Royal Assent.

3. Schedule 2

The later of:

(a) the day on which this Act receives the

Royal Assent; and

(b) 1 July 2005.

Note:

This table relates only to the provisions of this Act as originally

passed by the Parliament and assented to. It will not be expanded to

deal with provisions inserted in this Act after assent.

(2) Column 3 of the table contains additional information that is not

part of this Act. Information in this column may be added to or

edited in any published version of this Act.

3 Schedule(s)

Each Act that is specified in a Schedule to this Act is amended or

repealed as set out in the applicable items in the Schedule

concerned, and any other item in a Schedule to this Act has effect

according to its terms.

Leave from residential care for flexible care Schedule 1

Aged Care Amendment (Transition Care and Assets Testing) Bill 2005 No. , 2005 3

Schedule 1--Leave from residential care for

flexible care

Aged Care Act 1997

1 After subsection 42-2(3)

Insert:

(3A) A care recipient is on

leave under this section from a residential

care service on a day if:

(a)

flexible care subsidy is payable in respect of the care

recipient and the day; and

(b) the requirements specified in the Residential Care Subsidy

Principles for the purposes of this paragraph are met.

Note:

A lower classification level for working out the amount of the

residential care subsidy may apply to the care recipient if he or she is

on leave for at least 30 days continuously under subsections (2) and

(3A). See section 44-4.

2 Subsection 42-2(4)

Omit "and (3)", substitute ", (3) and (3A)".

3 Paragraph 44-4(1)(a)

Repeal the paragraph, substitute:

(a) the care recipient either:

(i) is on

extended hospital leave; or

(ii) is on

leave from a residential care service under

subsection 42-2(3A) and has been on leave continuously

for at least 30 days (including that day) first under

subsection 42-2(2) and later under subsection 42-2(3A);

and

4 Application

Subparagraph 44-4(1)(a)(ii) of the Aged Care Act 1997 applies whether

the period described in the subparagraph started before, on or after the

commencement of the subparagraph.

5 At the end of subsection 44-4(1)

Schedule 1 Leave from residential care for flexible care

4 Aged Care Amendment (Transition Care and Assets Testing) Bill 2005 No. , 2005

Add:

Note:

Subsection 42-2(3A) is about leave from a residential care service for

flexible care. Subsection 42-2(2) is about leave from such a service for

attending a hospital for hospital treatment.

6 Subsection 44-6(3)

After "hospital", insert "or in hospital and

flexible care".

Assets testing Schedule 2

Aged Care Amendment (Transition Care and Assets Testing) Bill 2005 No. , 2005 5

Schedule 2--Assets testing

Aged Care Act 1997

1 Subsection 44-7(1)

Omit "and, at the applicable time under subsection (2)", substitute ", the

applicable time under subsection (2) is before 1 July 2005 and, at the

applicable time".

Note:

The following heading to subsection 44-7(1) is inserted "If the applicable time is before

1 July 2005".

2 After subsection 44-7(1)

Insert:

If the applicable time is on or after 1 July 2005

(1A) A person is also a concessional resident if the person is being

provided with residential care (other than

respite care) through a

residential care service, the applicable time under subsection (2) is

on or after 1 July 2005 and there is in force a determination

covered by subsection (1B) or (1C).

(1B) This subsection covers a determination, made under

section 44-8AA before the person

entered the residential care

service, that the conditions in paragraphs (1)(a), (b) and (c) would

have been met for the person at the time specified in the

determination if the references in subparagraphs (1)(b)(ii) and (iii)

to the entry time had been references to the time specified in the

determination.

(1C) This subsection covers a determination, made under

section 44-8AA when or after the person

entered the residential

care service, that the conditions in paragraphs (1)(a), (b) and (c)

were met at the applicable time under subsection (2).

3 Subsection 44-7(2)

Omit "for the purposes of subsection (1)".

Note 1: The following heading to subsection 44-7(2) is inserted "What is the applicable time?".

Note 2: The following heading to subsection 44-7(3) is inserted "If there is financial hardship

(whatever the applicable time)".

Schedule 2 Assets testing

6 Aged Care Amendment (Transition Care and Assets Testing) Bill 2005 No. , 2005

4 Subsection 44-8(1)

Omit "and, at the applicable time under subsection (2)", substitute ", the

applicable time under subsection (2) is before 1 July 2005 and, at the

applicable time".

Note:

The following heading to subsection 44-8(1) is inserted "If the applicable time is before

1 July 2005".

5 After subsection 44-8(1)

Insert:

If the applicable time is on or after 1 July 2005

(1A) A person is also an assisted resident if the person is being provided

with residential care (other than

respite care) through a residential

care service, the applicable time under subsection (2) is on or after

1 July 2005 and there is in force a determination covered by

subsection (1B) or (1C).

(1B) This subsection covers a determination, made under

section 44-8AA before the person

entered the residential care

service, that the conditions in paragraphs (1)(a), (b) and (c) would

have been met for the person at the time specified in the

determination if the references in subparagraphs (1)(b)(ii) and (iii)

to the entry time had been references to the time specified in the

determination.

(1C) This subsection covers a determination, made under

section 44-8AA when or after the person

entered the residential

care service, that the conditions in paragraphs (1)(a), (b) and (c)

were met at the applicable time under subsection (2).

6 Subsection 44-8(2)

Omit "for the purposes of subsection (1)".

Note:

The following heading to subsection 44-8(2) is inserted "What is the applicable time?".

7 After section 44-8

Insert:

Assets testing Schedule 2

Aged Care Amendment (Transition Care and Assets Testing) Bill 2005 No. , 2005 7

44-8AA Determinations for sections 44-7 and 44-8

Making determinations

(1) The Secretary may make a determination (the resident status

determination) described in section 44-7 or 44-8 if:

(a) the person mentioned in that section has applied, in a form

approved by the Secretary, for the resident status

determination; and

(b) the Secretary has made a determination (the asset value

determination) under section 44-8AB of the value of the

person's assets at the time that is specified in the resident

status determination; and

that are to be set out in the resident status determination.

Note:

The time specified in a determination covered by subsection 44-7(1C)

or 44-8(1C) is the applicable time under subsection 44-7(2) or

44-8(2).

Giving notice of decision on resident status determination

(2) Within 14 days after deciding whether or not to grant the

application, the Secretary must notify the person in writing of:

(a) the decision; and

(b) if the Secretary made the resident status determination--the

content of the determination.

When the resident status determination comes into force

(3) The resident status determination comes into force on the day it is

made or an earlier day stated in the determination to be the day on

which the determination comes into force.

(4) However, if the determination is made after the person

enters the

residential care service mentioned in subsection 44-7(1A) or

44-8(1A), the day stated must not be before the day the

determination is made, unless the Secretary is satisfied that

exceptional circumstances justify the determination coming into

force on the day stated.

Schedule 2 Assets testing

8 Aged Care Amendment (Transition Care and Assets Testing) Bill 2005 No. , 2005

When the resident status determination ceases to be in force

(5) The resident status determination ceases to be in force when the

asset value determination ceases to be in force, if:

(a) the person was not being provided with residential care

(other than

respite care) through a residential care service

when the resident status determination came into force; and

(b) the person has not been provided with such care between:

(i) the time the resident status determination came into

force; and

(ii) the time the asset value determination ceases to be in

force.

Note:

Subsections 44-8AB(3) and (4) explain how to work out when the

asset value determination ceases to be in force.

(6) The Secretary may by written instrument revoke the resident status

determination if he or she ceases to be satisfied of any of the

matters relating to the person that are set out in the determination.

The determination ceases to be in force on a day specified in the

instrument (which may be before the instrument is made).

(7) Within 14 days after revoking the resident status determination, the

Secretary must give written notice of the revocation and the day on

which the determination ceases being in force to:

(a) the person; and

(b) each approved provider (if any) who has provided the person

with residential care (other than

respite care) through a

residential care service since the determination ceased to be

in force.

44-8AB Determination of value of person's assets

Making determinations

(1) The Secretary must determine the value, at the time specified in the

determination, of a person's assets in accordance with

section 44-10, if the person:

(a) applies in the approved form for the determination; and

(b) gives the Secretary sufficient information to make the

determination.

The time specified must be at or before the determination is made.

Assets testing Schedule 2

Aged Care Amendment (Transition Care and Assets Testing) Bill 2005 No. , 2005 9

Note:

The determination may affect the maximum amount of

accommodation bond or charge for the person under section 57-12 or

57A-6, as well as whether the person is a concessional resident under

section 44-7 or an assisted resident under section 44-8.

Giving notice of the determination

(2) Within 14 days after making the determination, the Secretary must

give the person a copy of the determination.

When the determination is in force

(3) The determination is in force for the period specified in, or worked

out under, the determination.

(4) However, the Secretary may by written instrument revoke the

determination if he or she is satisfied that it is incorrect. The

determination ceases to be in force on a day specified in the

instrument (which may be before the instrument is made).

(5) Within 14 days after revoking the determination, the Secretary

must give written notice of the revocation and the day the

determination ceases being in force to:

(a) the person; and

(b) if the Secretary is aware that the person has given an

approved provider a copy of the determination--the

approved provider.

8 Section 44-9

Omit "concessional resident or an assisted resident", substitute

"concessional resident under subsection 44-7(1) or an assisted resident

under subsection 44-8(1)".

9 At the end of section 44-9

Add:

Note:

This section does not affect whether a person is a concessional

resident under subsection 44-7(1A) or an assisted resident under

subsection 44-8(1A).

10 Subsection 44-10(1)

Omit "or 44-8", substitute ", 44-8 or 44-8AB".

11 Subsection 44-10(2)

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10 Aged Care Amendment (Transition Care and Assets Testing) Bill 2005 No. ,

2005

Omit "If the care recipient is a

homeowner, the value of the home

owned by the care recipient is to be disregarded in working out the

value of the care recipient's assets if, at the time of the care recipient's

entry to the residential care service, the home", substitute "In working

out the value at a particular time of the assets of a person who is or was

homeowner then, disregard the value of a home that, at the time,".

12 Paragraph 44-10(2)(a)

Omit "care recipient", substitute "person".

13 Subparagraphs 44-10(2)(b)(ii) and (c)(ii)

Omit "of the care recipient's entry to the residential care service".

14 Paragraph 57-2(1)(e)

Omit "7 days", substitute "21 days".

15 Subsection 57-2(2)

Omit "7 days" (first occurring), substitute "21 days".

16 At the end of subsection 57-12(1)

Add:

Note:

The operation of this section may be modified if, before entering an

accommodation bond agreement, the care recipient gives the approved

provider a determination under section 44-8AB of the value of the

care recipient's assets. See subsection (5).

17 At the end of section 57-12

Add:

(5) However, subsections (1), (2) and (3) are modified as described in

the table, and subsection (4) does not apply, if, before entering the

accommodation bond agreement, the care recipient gives the

approved provider a copy of a determination that:

(a) is a determination under section 44-8AB of the value of the

care recipient's assets at a time (the valuation time) that is

before or at the time (the entry time) the care recipient

enters the residential care service; and

(b) is in force at the entry time, if that is after the valuation time.

Assets testing Schedule 2

Aged Care Amendment (Transition Care and Assets Testing) Bill 2005 No. , 2005

Modifications of subsections (1), (2) and (3)

If:

Subsections (1), (2) and (3) have effect as if:

1 The valuation

time is before

the entry time

(a) the references in paragraphs (1)(b) and (3)(a) to the time of

the care recipient's

entry to the residential care service

were references to the valuation time; and

(b) the value of the care recipient's assets at the valuation time

were the value specified in the determination

2 The valuation

time is at the

entry time

The value of the care recipient's assets at the entry time were

the value specified in the determination

18 Subsection 57-16(2) (note 2)

Omit "7 days", substitute "21 days".

19 Paragraph 57A-2(1)(e)

Omit "7 days", substitute "21 days".

20 Subsection 57A-2(2)

Omit "7 days" (first occurring), substitute "21 days".

21 At the end of subsection 57A-6(1)

Add:

Note:

The operation of this section may be modified if, before entering into

an accommodation charge agreement, the care recipient gives the

approved provider a determination under section 44-8AB of the value

of the care recipient's assets. See subsection (4).

22 At the end of section 57A-6

Add:

(4) However, subsections (1) and (2) are modified as described in the

table, and subsection (3) does not apply, if, before entering into the

accommodation charge agreement, the care recipient gives the

approved provider a copy of a determination that:

(a) is a determination under section 44-8AB of the value of the

care recipient's assets at a time (the valuation time) that is

before or at the time (the entry time) the care recipient

enters the residential care service; and

(b) is in force at the entry time, if that is after the valuation time.

Schedule 2 Assets testing

12 Aged Care Amendment (Transition Care and Assets Testing) Bill 2005 No. ,

2005

Modifications of subsections (1) and (2)

If:

Subsections (1) and (2) have effect as if:

1 The valuation

time is before

the entry time

(a) the reference in paragraph (1)(b) to the time of the care

recipient's

entry to the residential care service were a

reference to the valuation time; and

(b) the value of the care recipient's assets at the valuation time

were the value specified in the determination; and

value by reference to the

basic age pension amount at the

valuation time (instead of the entry time)

2 The valuation

time is at the

entry time

The value of the care recipient's assets at the entry time were

the value specified in the determination

23 Section 85-1 (after table item 39)

Insert:

39A

To grant or refuse an application for a

determination described in subsection

44-7(1A) or 44-8(1A) (which is relevant to

a person's status as a

concessional

resident or an

assisted resident)

subsection 44-8AA(1)

39B

To revoke a determination described in

subsection 44-7(1A) or 44-8(1A)

subsection 44-8AA(6)

39C

To determine the value of a person's assets

subsection 44-8AB(1)

39D

To revoke a determination of the value of

a person's assets

subsection 44-8AB(4)

24 After subsection 96-2(2)

Insert:

(2A) The Secretary may, in writing, delegate the Secretary's powers

under section 44-8AA and 44-8AB to any or all of the following:

(a) the

CEO;

(b) the Secretary of the Department administering the Veterans'

Entitlements Act 1986.

Note:

The Secretary's powers under section 44-8AA relate to determinations

affecting whether persons are concessional residents or assisted

residents. The Secretary's powers under section 44-8AB relate to

determinations of the value of persons' assets.

Assets testing Schedule 2

Aged Care Amendment (Transition Care and Assets Testing) Bill 2005 No. , 2005

25 After subsection 96-2(3)

Insert:

(3A) The Secretary may, in writing, delegate to either or both of the

following:

(a) the

CEO;

(b) the Secretary of the Department administering the Veterans'

Entitlements Act 1986;

the Secretary's powers under section 85-4 or 85-5 relating to a

decision:

in subsection 44-7(1A) or 44-8(1A); or

(d) to revoke a determination made under subsection 44-8AA(1);

(e) to determine under section 44-8AB the value of a person's

assets; or

(f) to revoke a determination under that section of the value of a

person's assets.

26 After subsection 96-2(6)

Insert:

(6A) If, under subsection (2A) or (3A), the Secretary delegates a power

mentioned in that subsection to the

CEO, the CEO may, by

writing, sub-delegate the power to an

employee of the

Services

Delivery Agency.

(6B) If, under subsection (2A) or (3A), the Secretary delegates a power

mentioned in that subsection to the Secretary of the Department

administering the Veterans' Entitlements Act 1986, the Secretary of

that Department may, by writing, sub-delegate the power to an

APS employee in that Department.

27 Application of amendments

Entry and approval on or after 1 July 2005

(1)

The amendments made by this Schedule apply in relation to the entry of

a person into a residential care service (whether for the first time or not)

if:

(a) the entry occurs on or after 1 July 2005; and

Schedule 2 Assets testing

14 Aged Care Amendment (Transition Care and Assets Testing) Bill 2005 No. ,

2005

(b) the person is approved under section 22-1 of the Aged Care

Act 1997 on or after 1 July 2005 as a recipient of residential

care.

Entry on or after 1 July 2005, approval before 1 July 2005

(2)

The amendments also apply in relation to the entry of a person into a

residential care service (whether for the first time or not) if:

(a) the entry occurs on or after 1 July 2005; and

(b) the person was approved under section 22-1 of the Aged Care

Act 1997 before 1 July 2005 as a recipient of residential care;

and

Division 23 of that Act by the time of the entry; and

(d) the person chooses that the amendments apply.

(3)

The person is taken to have made such a choice if he or she has applied

in the approved form for the Secretary to determine the value of the

person's assets at a time that is before or at the time of entry. This does

not limit the ways in which the person may make such a choice.

Exception to application--re-entry into care within 28 days

(4)

Despite subitems (1) and (2), the amendments do not apply in relation

to the person entering the residential care service (the new service) if:

(a) the entry occurs within 28 days after the person was last

provided with residential care (other than respite care)

through a residential care service (the earlier service) and the

person had paid an accommodation bond for entry to the

earlier service; and

(b) the amendments did not apply in relation to the person's most

recent earlier entry into the earlier service; and

(i) the person was provided with a low level of residential

care through the earlier service; and

(ii) the person is provided with a high level of residential

care through the new service.

Note:

If the amendments do not apply, then the Aged Care Act 1997 as in force without the

amendments applies to the person.

Commonwealth of Australia Bills

AGED CARE AMENDMENT (TRANSITION CARE AND ASSETS TESTING) BILL 2005