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This is a Bill, not an Act. For current law, see the Acts databases.
2019-2020
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Aged Care Amendment (Aged Care
Recipient Classification) Bill 2020
No. , 2020
(Health)
A Bill for an Act to amend the
Aged Care Act 1997
,
and for related purposes
No. , 2020
Aged Care Amendment (Aged Care Recipient Classification) Bill 2020
i
Contents
1
Short title ........................................................................................... 1
2
Commencement ................................................................................. 1
3
Schedules ........................................................................................... 2
Schedule 1--Amendments
3
Aged Care Act 1997
3
No. , 2020
Aged Care Amendment (Aged Care Recipient Classification) Bill 2020
1
A Bill for an Act to amend the
Aged Care Act 1997
,
1
and for related purposes
2
The Parliament of Australia enacts:
3
1 Short title
4
This Act is the
Aged Care Amendment (Aged Care Recipient
5
Classification) Act 2020
.
6
2 Commencement
7
(1) Each provision of this Act specified in column 1 of the table
8
commences, or is taken to have commenced, in accordance with
9
column 2 of the table. Any other statement in column 2 has effect
10
according to its terms.
11
12
2
Aged Care Amendment (Aged Care Recipient Classification) Bill 2020
No. , 2020
Commencement information
Column 1
Column 2
Column 3
Provisions
Commencement
Date/Details
1. The whole of
this Act
The later of:
(a) 1 March 2021; and
(b) the day after this Act receives the Royal
Assent.
Note:
This table relates only to the provisions of this Act as originally
1
enacted. It will not be amended to deal with any later amendments of
2
this Act.
3
(2) Any information in column 3 of the table is not part of this Act.
4
Information may be inserted in this column, or information in it
5
may be edited, in any published version of this Act.
6
3 Schedules
7
Legislation that is specified in a Schedule to this Act is amended or
8
repealed as set out in the applicable items in the Schedule
9
concerned, and any other item in a Schedule to this Act has effect
10
according to its terms.
11
Amendments
Schedule 1
No. , 2020
Aged Care Amendment (Aged Care Recipient Classification) Bill 2020
3
Schedule 1--Amendments
1
2
Aged Care Act 1997
3
1 Section 5-1
4
After:
5
•
the recipient of the care--the recipient must (in most cases) be
6
approved in respect of the type of
*
aged care provided (see
7
Part 2.3). In the case of home care, the recipient must be a
8
*
prioritised home care recipient (see Part 2.3A). In the case of
9
residential care or flexible care, the recipient can be classified
10
in respect of the level of care that is required (see Part 2.4).
11
insert:
12
Part 2.4A provides for the classification of recipients of residential
13
care and some kinds of flexible care on the initiative of the
14
Secretary. The effect of these classifications is limited (see
15
section 29F-1).
16
2 Paragraph 16-11(2)(a)
17
After "records", insert "held by the transferor".
18
3 After Part 2.4
19
Insert:
20
Part 2.4A--Classification of care recipients on
21
Secretary's initiative
22
Division 29B--Introduction
23
29B-1 What this Part is about
24
On the Secretary's initiative, the Secretary may classify care
25
recipients approved under Part 2.3 for residential care, or for some
26
Schedule 1
Amendments
4
Aged Care Amendment (Aged Care Recipient Classification) Bill 2020
No. , 2020
kinds of flexible care, according to the level of care they need. The
1
effect of a classification under this Part is limited (see
2
section 29F-1).
3
Note:
Care recipients who are approved under Part 2.3 for home care only
4
are not classified under this Part.
5
Table of Divisions
6
29B
Introduction
7
29C
How are care recipients classified?
8
29D
How are care recipients reclassified?
9
29E
How are classifications changed?
10
29F
Limited effect of classifications under this Part
11
29B-2 The Classification Principles
12
The classification of care recipients under this Part is also dealt
13
with in the Classification Principles. The provisions of this
14
Part indicate when a particular matter is or may be dealt with in
15
these Principles.
16
Note:
The Classification Principles are made by the Minister under
17
section 96-1.
18
Division 29C--How are care recipients classified?
19
29C-1 Application of this Division
20
This Division applies in relation to the following:
21
(a) a care recipient who is approved under Part 2.3 for residential
22
care;
23
(b) a care recipient who is approved under Part 2.3 for flexible
24
care and whose flexible care is of a kind specified in the
25
Classification Principles.
26
Note:
The Classification Principles may exclude a class of care recipients
27
from classification under this Part--see section 29C-6.
28
Amendments
Schedule 1
No. , 2020
Aged Care Amendment (Aged Care Recipient Classification) Bill 2020
5
29C-2 Classification of care recipients
1
How care recipients may be classified
2
(1) The Secretary may classify a care recipient for
*
respite care or
3
*
non-respite care (the
relevant kind of care
) according to the level
4
of care the care recipient needs, relative to the needs of other care
5
recipients, if:
6
(a) there is no classification of the care recipient for the relevant
7
kind of care under this Part; or
8
(b) the Secretary decides to reclassify the care recipient for the
9
relevant kind of care under this Part (see section 29D-1).
10
Note:
Classifications are reviewable under Part 6.1.
11
(2) However, the Secretary must not classify the care recipient unless
12
the level of care needed by the care recipient, relative to the needs
13
of other care recipients, has been assessed under section 29C-3 for
14
the purposes of making the classification.
15
Requirements for classification
16
(3) The classification must specify the appropriate
*
classification level
17
for the care recipient for the relevant kind of care (see
18
section 29C-5). The Classification Principles may specify methods
19
or procedures that the Secretary must follow in determining the
20
appropriate classification level for the care recipient.
21
(4) In classifying the care recipient, the Secretary must take into
22
account:
23
(a) the assessment of the care needs of the care recipient
24
mentioned in subsection (2); and
25
(b) any other matters specified in the Classification Principles.
26
Notice of classification
27
(5) The Secretary must notify the care recipient, and any approved
28
provider that is providing care to the care recipient, of the
29
following in writing:
30
(a) whether the classification is for
*
respite care or
*
non-respite
31
care;
32
(b) the classification of the care recipient;
33
(c) the day the classification takes effect;
34
Schedule 1
Amendments
6
Aged Care Amendment (Aged Care Recipient Classification) Bill 2020
No. , 2020
(d) if the classification of the care recipient is a reclassification
1
(see section 29D-1)--that it is a reclassification.
2
When classification takes effect
3
(6) The classification takes effect on the day specified in the
4
Classification Principles.
5
(7) For the purposes of subsection (6), the Classification Principles
6
may specify a day before the classification was made, so long as
7
the day is not before the commencement of this Part.
8
Note:
Classifications under this Part have a limited effect--see
9
section 29F-1.
10
29C-3 Secretary may assess care recipient
11
(1) While a care recipient is being provided with
*
respite care or
12
*
non-respite care (the
relevant kind of care
), the Secretary may
13
assess the level of care needed by the care recipient, relative to the
14
needs of other care recipients, for the following purposes:
15
(a) classifying (including reclassifying) the care recipient under
16
this Part for the relevant kind of care;
17
(b) deciding whether to reclassify the care recipient under this
18
Part for the relevant kind of care (see section 29D-1).
19
(2) The Classification Principles may specify procedures that the
20
Secretary must follow in making the assessment.
21
(3) If the approval of a care recipient under Part 2.3 covers the
22
provision of
*
respite care and the circumstances specified in the
23
Classification Principles apply:
24
(a) an assessment of the care recipient's care needs made under
25
section 22-4 for the purposes of the approval is taken to be an
26
assessment of the level of care needed by the care recipient
27
under this section; and
28
(b) the assessment is taken to have been made for the purposes of
29
classifying (or reclassifying) the care recipient under this Part
30
for respite care.
31
Amendments
Schedule 1
No. , 2020
Aged Care Amendment (Aged Care Recipient Classification) Bill 2020
7
29C-4 Care recipients may have classifications for both respite and
1
non-respite care
2
A classification of a care recipient under this Part for
*
respite care,
3
and a classification of the care recipient under this Part for
4
*
non-respite care, may both be in effect at the same time.
5
29C-5 Classification levels
6
(1) The Classification Principles may set out the
*
classification levels
7
for classifications of care recipients under this Part.
8
(2) Without limiting subsection (1), the Classification Principles may
9
set out different
*
classification levels for classifications for
*
respite
10
care and classifications for
*
non-respite care.
11
(3) The Classification Principles may specify the criteria, in respect of
12
each
*
classification level, for determining which level applies to a
13
care recipient.
14
29C-6 Exclusion of classes of care recipients
15
(1) The Classification Principles may exclude a class of care recipients
16
from classification under this Part. A care recipient who is in such
17
a class cannot be classified under this Part for the period specified
18
in the Classification Principles in relation to that class.
19
(2) A classification of a care recipient under this Part does not cease
20
merely because, under subsection (1), the care recipient becomes
21
excluded from classification under this Part.
22
29C-7 Classifications of persons who cease to be care recipients
23
(1) A classification of a person under this Part is not in effect if the
24
person has ceased to be a care recipient in relation to whom this
25
Division applies (see section 29C-1).
26
(2) However, if the person becomes such a care recipient again at a
27
time, the classification continues from that time.
28
Schedule 1
Amendments
8
Aged Care Amendment (Aged Care Recipient Classification) Bill 2020
No. , 2020
29C-8 Use of computer programs to make decisions
1
(1) The Secretary may arrange for the use, under the Secretary's
2
control, of computer programs for making decisions on the
3
classification of care recipients under section 29C-2.
4
(2) A decision made by the operation of a computer program under
5
such an arrangement is taken to be a decision made by the
6
Secretary.
7
(3) The Secretary may, under section 29C-2, substitute a decision for a
8
decision the Secretary is taken to have made under subsection (2) if
9
the Secretary is satisfied that the decision made by the operation of
10
the computer program is incorrect.
11
(4) Subsection (3) does not limit any other provision of this Act that
12
provides for the review or reconsideration of a decision.
13
Division 29D--How are care recipients reclassified?
14
29D-1 Reclassification of care recipients
15
(1) The Secretary may reclassify a care recipient under section 29C-2
16
for
*
respite care or
*
non-respite care if an approved provider that is
17
providing that kind of care to the care recipient requests, in writing,
18
that the Secretary reclassify the care recipient.
19
Note:
A decision not to reclassify a care recipient is reviewable under
20
Part 6.1.
21
(2) The Secretary must not reclassify the care recipient unless the
22
Secretary is satisfied that the care needs of the care recipient have
23
changed significantly.
24
Note:
The Secretary may assess the care needs of the care recipient for the
25
purposes of deciding whether to reclassify the care recipient--see
26
paragraph 29C-3(1)(b).
27
(3) For the purposes of subsection (2), the Classification Principles
28
may specify the circumstances in which the care needs of the care
29
recipient are taken to have changed significantly.
30
(4) If the Secretary decides not to reclassify the care recipient, the
31
Secretary must notify the care recipient and the approved provider
32
of the decision in writing.
33
Amendments
Schedule 1
No. , 2020
Aged Care Amendment (Aged Care Recipient Classification) Bill 2020
9
Note:
For notice requirements if the Secretary decides to reclassify the care
1
recipient, see subsection 29C-2(5).
2
Division 29E--How are classifications changed?
3
29E-1 Changing classifications
4
(1) The Secretary must change a classification of a care recipient under
5
this Part if the Secretary is satisfied that:
6
(a) the assessment of the level of care needed by the care
7
recipient, relative to the needs of other care recipients, that
8
was made for the purposes of the classification (see
9
section 29C-3) was incorrect or inaccurate; or
10
(b) the classification was, for any other reason, incorrect.
11
Note:
Changes of classifications are reviewable under Part 6.1.
12
(2) The classification cannot be changed under this section in any
13
other circumstances.
14
Note:
The Secretary may reclassify the care recipient in certain
15
circumstances--see section 29D-1.
16
(3) Before changing the classification, the Secretary must review it,
17
having regard to:
18
(a) any material on which the classification was based that the
19
Secretary considers relevant; and
20
(b) any matters specified in the Classification Principles as
21
matters to which the Secretary must have regard; and
22
(c) any other material or information that the Secretary considers
23
relevant (including material or information that has become
24
available since the classification was made).
25
(4) If the Secretary changes the classification:
26
(a) the change takes effect on the same day that the classification
27
took effect (see subsection 29C-2(6)); and
28
(b) the Secretary must notify the care recipient, and any
29
approved provider that is providing care to the care recipient,
30
in writing, of the change.
31
Schedule 1
Amendments
10
Aged Care Amendment (Aged Care Recipient Classification) Bill 2020
No. , 2020
Division 29F--Limited effect of classifications under this
1
Part
2
29F-1 Limited effect of classifications under this Part
3
Application of this section
4
(1) This section applies to:
5
(a) a classification of a care recipient under this Part; and
6
(b) a
*
classification level to which a care recipient has been
7
classified under this Part.
8
Effect of classifications
9
(2) Unless expressly provided otherwise, the classification or
10
*
classification level does not have effect, and is not to be treated as
11
a classification or classification level of the care recipient, for the
12
purposes of the following:
13
(a) this Act, other than:
14
(i) paragraph 16-11(2)(a) (which deals with the transfer of
15
certain records); and
16
(ii) this Part;
17
(b) the
Aged Care (Transitional Provisions) Act 1997
;
18
(c) any legislative instrument made under this Act, other than
19
Classification Principles made for the purposes of a provision
20
of this Part;
21
(d) any legislative instrument made under the
Aged Care
22
(Transitional Provisions) Act 1997
;
23
(e) any other law of the Commonwealth.
24
(3) Without limiting subsection (2), the
*
classification level cannot
25
affect:
26
(a) any amount of
*
subsidy payable under Chapter 3 of this Act
27
or Chapter 3 of the
Aged Care (Transitional Provisions) Act
28
1997
; or
29
(b) any amount that an approved provider may charge the care
30
recipient for the provision of care and services.
31
4 Before paragraph 63-1(1)(i)
32
Insert:
33
Amendments
Schedule 1
No. , 2020
Aged Care Amendment (Aged Care Recipient Classification) Bill 2020
11
(ha) to allow delegates of the Secretary access to the service, as
1
required under the Accountability Principles, in order to
2
assess, under section 29C-3, the care needs of care recipients
3
provided with care through the service;
4
5 Section 85-1 (after table item 31)
5
Insert:
6
7
32
To classify a care recipient
subsection 29C-2(1)
32A
To not reclassify a care recipient
subsection 29D-1(1)
32B
To change the classification of a care recipient
subsection 29E-1(1)
6 Subsections 85-5(4A) and 85-6(1)
8
Omit "subsection 29-1(1) (a decision to change the classification of a
9
care recipient)", substitute "subsection 29-1(1) or 29E-1(1) (which deal
10
with a decision to change the classification of a care recipient under
11
Part 2.4 or 2.4A)".
12
7 Section 86-4
13
After "section 22-4", insert "or 29C-3".
14
8 After paragraph 86-4(b)
15
Insert:
16
(ba) if the person is a care recipient--assessing the level of care
17
the person needs, relative to the needs of other care
18
recipients;
19
9 At the end of section 86-4
20
Add:
21
; (d) monitoring, reporting on, and conducting research into, the
22
quality or safety of aged care.
23
10 Section 96-1 (cell at table item
9, column headed "Part or
24
provision")
25
Repeal the cell, substitute:
26
27
Parts 2.4 and 2.4A,
section 85-6 and
Schedule 1
Amendments
12
Aged Care Amendment (Aged Care Recipient Classification) Bill 2020
No. , 2020
subsection 96-2(15)
11 After subsection 96-2(14)
1
Insert:
2
Person to make assessment under section 29C-3
3
(15) The Secretary may, in writing, delegate the Secretary's powers and
4
functions under section 29C-3 (Secretary may assess care
5
recipients) to a person who satisfies the criteria specified in the
6
Classification Principles for the purposes of this subsection.
7
12 After section 96-2
8
Insert:
9
96-2A Identity cards for certain delegates
10
(1) The Secretary must cause an identity card to be issued to each
11
person to whom the Secretary's powers and functions under
12
section 29C-3 are delegated under subsection 96-2(15).
13
Note:
Section 29C-3 provides for assessments of the care needs of care
14
recipients for the purposes of making classifications under Part 2.4A.
15
Form of identity card
16
(2) The identity card must:
17
(a) be in the form approved in an instrument under
18
subsection (3); and
19
(b) include a photograph of the person that is no more than 5
20
years old.
21
(3) The Secretary may, by notifiable instrument, approve a form for
22
the purposes of subsection (2).
23
Offence
24
(4) A person commits an offence of strict liability if:
25
(a) the person has been issued with an identity card under this
26
section; and
27
(b) the person ceases to be a delegate of the Secretary under
28
subsection 96-2(15); and
29
Amendments
Schedule 1
No. , 2020
Aged Care Amendment (Aged Care Recipient Classification) Bill 2020
13
(c) the person does not return the identity card to the Secretary
1
within 14 days after ceasing to be such a delegate.
2
Penalty: 1 penalty unit.
3
(5) Subsection (4) does not apply if the identity card was lost or
4
destroyed.
5
Note:
A defendant bears an evidential burden in relation to the matter in this
6
subsection--see subsection 13.3(3) of the
Criminal Code
.
7
Requirement to carry and show identity card
8
(6) When a person to whom the Secretary's powers and functions
9
under section 29C-3 are delegated under subsection 96-2(15) is
10
exercising those powers or performing those functions:
11
(a) the delegate must, at all times, carry the delegate's identity
12
card; and
13
(b) if a person who apparently represents an approved provider
14
requests the delegate to show the delegate's identity card--
15
the delegate must:
16
(i) do so when requested; or
17
(ii) if it is not reasonably practicable to do so when
18
requested--do so as soon as reasonably practicable after
19
that.
20
13 Clause 1 of Schedule 1 (at the end of the definition of
21
classification level
)
22
Add "or Part 2.4A".
23
14 Clause 1 of Schedule 1
24
Insert:
25
non-respite care
means residential care, or flexible care of a kind
26
specified in the Classification Principles for the purposes of
27
paragraph 29C-1(b), other than respite care.
28