Aged Care (Living Longer Living Better)Act 2013 (76 of 2013)

Schedule 3   Amendments commencing on 1 July 2014

Part 1   Amendments

Aged Care Act 1997

142   Section 48-1

Repeal the section, substitute:

48-1 Amount of home care subsidy

(1) The amount of *home care subsidy payable to an approved provider for a home care service in respect of a *payment period is the amount worked out by adding together the amounts of home care subsidy for each care recipient:

(a) in respect of whom there is in force a *home care agreement for provision of home care provided through the service during the period; and

(b) in respect of whom the approved provider was eligible for home care subsidy during the period.

(2) This is how to work out the amount of *home care subsidy for a care recipient in respect of the *payment period.

Home care subsidy calculator

Step 1. Work out the basic subsidy amount using section 48-2.

Step 2. Add to this amount the amounts of any primary supplements worked out using section 48-3.

Step 3. Subtract the amounts of any reductions in subsidy worked out using section 48-4.

Step 4. Add the amounts of any other supplements worked out using section 48-9.

The result is the amount of home care subsidy for the care recipient in respect of the *payment period.

48-2 The basic subsidy amount

(1) The basic subsidy amount for the care recipient in respect of the *payment period is the sum of all the basic subsidy amounts for the days during the period on which the care recipient was provided with home care through the home care service in question.

(2) The basic subsidy amount for a day is the amount determined by the Minister by legislative instrument.

(3) The Minister may determine different amounts (including nil amounts) based on any one or more of the following:

(a) the levels for care recipients being provided with home care;

(b) any other matters specified in the Subsidy Principles;

(c) any other matters determined by the Minister.

48-3 Primary supplements

(1) The primary supplements for the care recipient under step 2 of the home care subsidy calculator are such of the following primary supplements as apply to the care recipient in respect of the *payment period:

(a) the following primary supplements as set out in the Subsidy Principles:

(i) the oxygen supplement;

(ii) the enteral feeding supplement;

(iii) the dementiaand cognition supplement;

(iv) the veterans' supplement;

(v) the workforce supplement;

(b) any other primary supplement set out in the Subsidy Principles for the purposes of this paragraph.

(2) The Subsidy Principles may specify, in respect of each primary supplement, the circumstances in which the supplement will apply to a care recipient in respect of a *payment period.

(3) The Minister may determine by legislative instrument, in respect of each such supplement, the amount of the supplement, or the way in which the amount of the supplement is to be worked out.

48-4 Reductions in subsidy

The reductions in subsidy for the care recipientunder step 3 of the home care subsidy calculator are such of the following reductions as apply to the care recipient in respect of the *payment period:

(a) the compensation payment reduction (see sections 48-5 and 48-6);

(b) the care subsidy reduction (see sections 48-7 and 48-8).

48-5 The compensation payment reduction

(1) The compensation payment reduction for the care recipient in respect of the *payment period is the sum of all compensation payment reductions for days during the period:

(a) on which the care recipient is provided with home care through the home care service in question; and

(b) that are covered by a compensation entitlement.

(2) For the purposes of this section, a day is covered by a compensation entitlement if:

(a) the care recipient is entitled to compensation under a judgement, settlement or reimbursement arrangement; and

(b) the compensation takes into account the cost of providing home care to the care recipient on that day; and

(c) the application of compensation payment reductions to the care recipient for preceding days has not resulted in reductions in subsidy that, in total, exceed or equal the part of the compensation that relates, or is to be treated under subsection (5) or (6) as relating, to future costs of providing home care.

(3) The compensation payment reduction for a particular day is an amount equal to the amount of *home care subsidy that would be payable for the care recipient in respect of the *payment period if:

(a) the care recipient was provided with home care on that day only; and

(b) this section and sections 48-9 and 48-10 did not apply.

(4) However, if:

(a) the compensation payment reduction arises from a judgement or settlement that fixes the amount of compensation on the basis that liability should be apportioned between the care recipient and the compensation payer; and

(b) as a result, the amount of compensation is less than it would have been if liability had not been so apportioned; and

(c) the compensation is not paid in a lump sum;

the amount of the compensation payment reduction under subsection (3) is reduced by the proportion corresponding to the proportion of liability that is apportioned to the care recipient by the judgement or settlement.

(5) If a care recipient is entitled to compensation under a judgement or settlement that does not take into account the future costs of providing home care to the care recipient, the Secretary may, in accordance with the Subsidy Principles, determine:

(a) that, for the purposes of this section, the judgement or settlement is to be treated as having taken into account the cost of providing that home care; and

(b) the part of the compensation that, for the purposes of this section, is to be treated as relating to the future costs of providing home care.

Note: Determinations are reviewable under Part 6.1.

(6) If:

(a) a care recipient is entitled to compensation under a settlement; and

(b) the settlement takes into account the future costs of providing home care to the recipient; and

(c) the Secretary is satisfied that the settlement does not adequately take into account the future costs of providing home care to the care recipient;

the Secretary may, in accordance with the Subsidy Principles, determine the part of the compensation that, for the purposes of this section, is to be treated as relating to the future costs of providing home care.

Note: Determinations are reviewable under Part 6.1.

(7) A determination under subsection (5) or (6) must be in writing and notice of it must be given to the care recipient.

(8) A determination under subsection (5) or (6) is not a legislative instrument.

(9) In this section, the following terms have the same meanings as in the Health and Other Services (Compensation) Act 1995:

48-6 Secretary's powers if compensation information is not given

(1) This section applies if:

(a) the Secretary believes on reasonable grounds that a care recipient is entitled to compensation under a judgement, settlement or reimbursement arrangement; and

(b) the Secretary does not have sufficient information to apply section 48-5 in relation to the compensation.

(2) The Secretary may, by notice in writing given to a person, require the person to give information or produce a document that is in the person's custody, or under the person's control, if the Secretary believes on reasonable grounds that the information or document may be relevant to the application of section 48-5 in relation to the compensation.

(3) The notice must specify:

(a) how the person is to give the information or produce the document; and

(b) the period within which the person is to give the information or produce the document.

Note: Sections 28A and 29 of the Acts Interpretation Act 1901 (which deal with service of documents) apply to notice given under this section.

(4) If the information or document is not given or produced within the specified period, the Secretary may determine compensation payment reductions for the care recipient.

Note: Decisions to determine compensation payment reductions under this section are reviewable under Part 6.1.

(5) The compensation payment reductions must be determined in accordance with the Subsidy Principles.

48-7 The care subsidy reduction

(1) The care subsidy reduction for the care recipient for the *payment period is the sum of all the care subsidy reductions for days during the period on which the care recipient is provided with home care through the home care service in question.

(2) Subject to this section and section 48-8, the care subsidy reduction for a particular day is worked out as follows:

Care subsidy reduction calculator

Step 1. Work out the care recipient's total assessable income on a yearly basis using section 44-24.

Step 2. Work out the care recipient's total assessable income free area using section 44-26.

Step 3. If the care recipient's total assessable income does not exceed the care recipient's total assessable income free area, the care subsidy reduction is zero.

Step 4. If the care recipient's total assessable income exceeds the care recipient's total assessable income free area but not the income threshold , the care subsidy reduction is equal to the lowest of the following:

(a) the sum of the basic subsidy amount for the care recipient and all primary supplements for the care recipient;

(b) 50% of the amount by which the care recipient's total assessable income exceeds the income free area (worked out on a per day basis);

(c) the amount (the first cap ) determined by the Minister by legislative instrument for the purposes of this paragraph.

Step 5. If the care recipient's total assessable income exceeds the income threshold , the care subsidy reduction is equal to the lowest of the following:

(a) the sum of the basic subsidy amount for the care recipient and all primary supplements for the care recipient;

(b) 50% of the amount by which the care recipient's total assessable income exceeds the income threshold (worked out on a per day basis) plus the amount specified in paragraph (c) of step 4;

(c) the amount (the second cap ) determined by the Minister by legislative instrument for the purposes of this paragraph.

(3) If the care recipient has not provided sufficient information about the care recipient's income for the care recipient's care subsidy reduction to be determined, the care subsidy reduction is equal to the lesser of the following:

(a) the sum of the basic subsidy amount for the care recipient and all primary supplements for the care recipient;

(b) the second cap.

(4) If, apart from this subsection, the sum of all the *combined care subsidy reductions made for the care recipient during a *start-date year for the care recipient would exceed the annual cap applying at the time for the care recipient, the care subsidy reduction for the remainder of the start-date year is zero.

(5) If, apart from this subsection, the sum of all the previous *combined care subsidy reductions made for the care recipient would exceed the lifetime cap applying at the time, the care subsidy reduction for the remainder of the care recipient's life is zero.

(6) The income threshold is the amount determined by the Minister by legislative instrument.

(7) The annual cap , for the care recipient, is the amount determined by the Minister by legislative instrument for the class of care recipients of which the care recipient is a member.

(8) The lifetime cap is the amount determined by the Minister by legislative instrument.

48-8 Care subsidy reduction taken to be zero in some circumstances

(1) The care subsidy reduction in respect of the care recipient is taken to be zero for each day, during the *payment period, on which one or more of the following applies:

(a) a determination was in force under subsection (2) in relation to the care recipient;

(b) the care recipient was included in a class of people specified in the Subsidy Principles.

(2) The Secretary may, in accordance with the Subsidy Principles, determine that the care subsidy reduction in respect of the care recipient is to be taken to be zero.

Note: Refusals to make determinations are reviewable under Part 6.1.

(3) The determination ceases to be in force at the end of the period (if any) specified in the determination.

Note: Decisions specifying periods are reviewable under Part 6.1.

(4) In deciding whether to make a determination, the Secretary must have regard to the matters specified in the Subsidy Principles.

(5) Application may be made to the Secretary, in the form approved by the Secretary, for a determination under subsection (2) in respect of a care recipient. The application may be made by:

(a) the care recipient; or

(b) an approved provider that is providing, or is to provide, home care to the care recipient.

(6) The Secretary must notify the care recipient and the approved provider, in writing, of the Secretary's decision on whether to make the determination. The notice must be given:

(a) if an application for a determination was made under subsection (5) - within 28 days after the application was made, or, if the Secretary requested further information in relation to the application, within 28 days after receiving the information; or

(b) if such an application was not made - within 28 days after the decision is made.

(7) A determination under subsection (2) is not a legislative instrument.

48-9 Other supplements

(1) The other supplements for the care recipient under step 4 of the home care subsidy calculator are such of the following supplements as apply to the care recipient in respect of the *payment period:

(a) the hardship supplement (see section 48-10);

(b) any other supplement set out in the Subsidy Principles for the purposes of this paragraph.

(2) The Subsidy Principles may specify, in respect of each other supplement set out for the purposes of paragraph (1)(b), the circumstances in which the supplement will apply to a care recipient in respect of a *payment period.

(3) The Minister may determine by legislative instrument, in respect of each such other supplement, the amount of the supplement, or the way in which the amount of the supplement is to be worked out.

48-10 The hardship supplement

(1) The hardship supplement for the care recipient in respect of the *payment period is the sum of all the hardship supplements for the days during the period on which:

(a) the care recipient was provided with home care through the home care service in question; and

(b) the care recipient was eligible for a hardship supplement.

(2) The care recipient is eligible for a hardship supplement on a particular day if:

(a) the Subsidy Principles specify one or more classes of care recipients to be care recipients for whom paying a daily amount of home care fees of more than the amount specified in the Principles wouldcause financial hardship; and

(b) on that day, the care recipient is included in such a class.

The specified amount may be nil.

(3) The care recipient is also eligible for a hardship supplement on a particular day if a determination is in force under section 48-11 in relation to the care recipient.

(4) The hardship supplement for a particular day is the amount:

(a) determined by the Minister by legislative instrument; or

(b) worked out in accordance with a method determined by the Minister by legislative instrument.

(5) The Minister may determine different amounts (including nil amounts) or methods based on any matters determined by the Minister by legislative instrument.

48-11 Determining cases of financial hardship

(1) The Secretary may, in accordance with the Subsidy Principles, determine that the care recipient is eligible for a hardship supplement if the Secretary is satisfied that paying a daily amount of home care fees of more than the amount specified in the determination would cause the care recipient financial hardship.

Note: Refusals to make determinations are reviewable under Part 6.1.

(2) In deciding whether to make a determination under this section, and in determining the specified amount, the Secretary must have regard to the matters (if any) specified in the Subsidy Principles. The specified amount may be nil.

(3) A determination under this section ceases to be in force at the end of a specified period, or on the occurrence of a specified event, if the determination so provides.

Note: Decisions to specify periods or events are reviewable under Part 6.1.

(4) Application may be made to the Secretary, in the form approved by the Secretary, for a determination under this section. The application may be made by:

(a) the care recipient; or

(b) an approved provider who is providing, or is to provide, home care to the care recipient.

(5) If the Secretary needs further information to determine the application, the Secretary may give to the applicant a notice requesting the applicant to give the further information:

(a) within 28 days after receiving the notice; or

(b) within such other period as is specified in the notice.

(6) The application is taken to have been withdrawn if the information is not given within whichever of those periods applies. The notice must contain a statement setting out the effect of this subsection.

Note: The period for giving the further information can be extended - see section 96-7.

(7) The Secretary must notify the care recipient and the approved provider, in writing, of the Secretary's decision on whether to make the determination. The notice must be given:

(a) within 28 days after receiving the application; or

(b) if the Secretary has requested further information under subsection (5) - within 28 days after receiving the information.

(8) If the Secretary makes the determination, the notice must set out:

(a) any period at the end of which; or

(b) any event on the occurrence of which;

the determination will cease to be in force.

(9) A determination under subsection (1) is not a legislative instrument.

48-12 Revoking determinations of financial hardship

(1) The Secretary may, in accordance with the Subsidy Principles, revoke a determination under section 48-11.

Note: Revocations of determinations are reviewable under Part 6.1.

(2) Before deciding to revoke the determination, the Secretary must notify the care recipient and the approved provider concerned that revocation is being considered.

(3) The notice must be in writing and must:

(a) invite the care recipient and the approved provider to make submissions, in writing, to the Secretary within 28 days after receiving the notice; and

(b) inform them that if no submissions are made within that period, the revocation takes effect on the day after the last day for making submissions.

(4) In making the decision whether to revoke the determination, the Secretary must consider any submissions received within the period for making submissions. The Secretary must make the decision within 28 days after the end of that period.

(5) The Secretary must notify, in writing, the care recipient and the approved provider of the decision.

(6) The notice must be given to the care recipient and the approved provider within 28 days after the end of the period for making submissions.

(7) If the notice is not given within that period, the Secretary is taken to have decided not to revoke the determination.

(8) A revocation has effect:

(a) if the care recipient and the approved provider received notice under subsection (5) on the same day - the day after that day; or

(b) if they received the notice on different days - the day after the later of those days.