Aged Care Legislation Amendment (New Commissioner Functions) Act 2019 (116 of 2019)
Schedule 1 Approval of providers of aged care
Aged Care Quality and Safety Commission Act 2018
64 After Part 7
Insert:
Part 7A - Approval of providers of aged care etc.
Division 1 - Introduction
63A Simplified outline of this Part
Division 2 of this Part deals with approving providers of aged care. For when a State or Territory, a State or Territory authority or a local government authority is taken to be an approved provider of aged care, see Division 3 of this Part.
Division 4 of this Part deals with the cessation and revocation of an approval to be a provider of aged care. An approval may be revoked by the Commissioner under Division 4 of this Part or Part 7B. An approval ceases to have effect when the approval is revoked or, if the approval of the provider is suspended for a particular period under Part 7B, during the period of the suspension.
Division 2 - Approval of providers of aged care
63B Application for approval as provider of aged care
(1) A person may apply to the Commissioner to be approved as a provider of aged care.
(2) The application must:
(a) be made in writing; and
(b) be in a form approved by the Commissioner; and
(c) be accompanied by any documents or information specified by the Commissioner; and
(d) be accompanied by any fee specified by the Commissioner.
(3) The person may, in writing, withdraw the application at any time before the Commissioner makes a decision on the application.
63C Request for further information
(1) If:
(a) a person makes an application under subsection 63B(1); and
(b) the Commissioner needs further information to make a decision on the application;
the Commissioner may, by written notice, request the person to give further information to the Commissioner within a specified period.
(2) The specified period must not be shorter than 28 days after the notice is given.
(3) However, the specified period may be shorter than 28 days after the notice is given if the circumstances specified in the rules apply in relation to the application.
(4) The Commissioner may, at the person's request, extend the specified period.
(5) If the person does not give the requested further information within:
(a) if the specified period has been extended under subsection (4) - the period as so extended; or
(b) otherwise - the specified period;
the application is taken to be withdrawn at the end of the period.
Note: If the application is taken to be withdrawn under this subsection, the person may make another application under section 63B.
(6) A notice given under subsection (1) must set out the effect of subsection (5).
63D Commissioner must decide whether to approve person as provider of aged care
(1) If a person makes an application under subsection 63B(1), the Commissioner must decide whether to approve the person as a provider of aged care within:
(a) if a request for further information in relation to the application has been made under subsection 63C(1) - 90 days after receiving the further information; or
(b) otherwise - within 90 days after receiving the application.
Note: See Part 8B for the reconsideration of a decision not to approve a person as a provider of aged care.
Approval as provider of aged care
(2) The Commissioner must not approve the person as a provider of aged care unless the Commissioner is satisfied that:
(a) the person is a corporation; and
(b) the person is suitable to provide aged care; and
(c) none of the key personnel of the person is a disqualified individual.
Suitability to provide aged care
(3) In deciding whether the person is suitable to provide aged care, the Commissioner must consider the following matters:
(a) the person's experience in providing, at any time, aged care or other relevant forms of care;
(b) the person's demonstrated understanding of the person's responsibilities as a provider of the type of aged care for which approval is sought;
(c) the systems that the person has, or proposes to have, in place to meet the person's responsibilities as a provider of the type of aged care for which approval is sought;
(d) the person's record of financial management and the methods that the person uses, or proposes to use, in order to ensure sound financial management;
(e) if, at any time, the person has been a provider of aged care or other relevant forms of care - the person's conduct as such a provider and the person's compliance with:
(i) the person's responsibilities as a provider of that care; and
(ii) the person's obligations arising from the receipt of any payments from the Commonwealth for providing that care;
(f) any other matters specified in the rules.
(4) In considering a matter referred to in paragraph (3)(a), (b), (d), (e) or (f), the Commissioner may also consider the matter in relation to any or all of the key personnel of the person.
(5) The rules may specify the matters to which the Commissioner must have regard in considering any of the matters set out in paragraphs (3)(a) to (f).
(6) Subsection (3) does not limit the matters the Commissioner may consider in deciding whether the person is suitable to provide aged care.
63E Notification of decision relating to approval of person as provider of aged care
Decision to approve person as a provider of aged care
(1) If the Commissioner decides to approve the person as a provider of aged care under section 63D, the Commissioner must, within 14 days after making the decision, give written notice of the following to the person:
(a) the decision;
(b) the day the approval comes into effect;
(c) whether the approval is given in respect of all types of aged care or only in respect of a certain type or types of aged care;
(d) if the approval is in respect of residential care or flexible care - that the approval is in respect of each residential care service or flexible care service in respect of which:
(i) an allocation of a place to the person in respect of the service is in effect under Part 2.2 of the Aged Care Act (including a place transferred to the person under that Part); or
(ii) a provisional allocation of a place to the person in respect of the service is in force under that Part (including a place transferred to the person under that Part);
(e) if the approval is in respect of home care - that the approval is in respect of each home care service in relation to which the person notifies the Secretary of the information required by section 9-1A of the Aged Care Act;
(f) if the Commissioner is satisfied that there are one or more circumstances that materially affect the person's suitability to provide aged care - those circumstances and the steps the person must take to notify the Commissioner and obtain the Commissioner's agreement before there is any change to those circumstances.
(2) The notice must also set out the following matters:
(a) the obligations of approved providers under Division 9 of the Aged Care Act to notify of, or give, certain information;
(b) the circumstances in which the approval may be suspended or revoked under Division 4 of this Part, or Part 7B, of this Act;
(c) the circumstances in which the approval may be restricted under Part 7B of this Act and the effect of section 7-2 of the Aged Care Act.
Note: Under Part 7B of this Act, the Commissioner may restrict a person's approval as a provider of aged care to certain aged care services or to certain care recipients.
Decision not to approve person as provider of aged care
(3) If the Commissioner decides not to approve the person as a provider of aged care under section 63D, the Commissioner must, within 14 days after making the decision, give written notice of the following to the person:
(a) the decision;
(b) the reasons for the decision;
(c) how the person may apply for the reconsideration of the decision.
Secretary must be given copy of notice
(4) The Commissioner must, as soon as is practicable, give the Secretary a copy of a notice given under subsection (1) or (3).
Division 3 - Deemed approval of States, Territories and local government etc.
63F States, Territories and local government etc. taken to be approved providers etc.
(1) Subject to subsection (3), a person or body of the following kind (the entity ) may give the Commissioner a written notice requesting that this section applies in relation to the entity:
(a) a State or Territory;
(b) a State or Territory authority;
(c) a local government authority.
(2) If the entity gives the Commissioner a notice under subsection (1), each of the following apply for the purposes of this Act, the rules, the Aged Care Act and the Aged Care Principles:
(a) the entity is taken to be an approved provider;
(b) the approval of the entity is taken to come into effect on the first day after the day the notice is received by the Commissioner;
(c) the approval of the entity is taken to be in respect of:
(i) all types of aged care; and
(ii) all types of aged care services that are provided, or will be provided, by the entity.
Note: As the entity is an approved provider, the entity's approval may be suspended or revoked under Division 4 of this Part, or Part 7B, of this Act.
(3) If:
(a) an entity is taken to be an approved provider under paragraph (2)(a); and
(b) the approval of the entity is revoked under Division 4 of this Part or Part 7B;
then:
(c) the entity is not permitted to give the Commissioner another notice under subsection (1); and
(d) if the entity subsequently applies under section 63B for approval as a provider of aged care - the entity is taken, for the purposes of the application, to be a corporation.
Division 4 - Cessation and revocation of approval
63G When approval as provider of aged care ceases to have effect
Suspension of approval
(1) If the approval of an approved provider is suspended for a particular period under Part 7B, the approval does not have effect during the period.
Revocation of approval
(2) The approval of an approved provider ceases to have effect if the approval is revoked under this Division or Part 7B.
63H Revocation of approval on request of approved provider
Request for revocation
(1) An approved provider may request the Commissioner to revoke the approval of the provider.
(2) The request must:
(a) be made in writing; and
(b) be in a form approved by the Commissioner; and
(c) be accompanied by any documents or information specified by the Commissioner; and
(d) be accompanied by any fee specified by the Commissioner; and
(e) specify the day (the revocation day ) on which the revocation is to take effect; and
(f) be made at least 60 days, or such other number of days as specified in the rules, before the revocation day.
Revocation of approval
(3) If an approved provider makes a request under subsection (1), the Commissioner must, within 28 days after the request is made, revoke the approval of the provider if the Commissioner is satisfied that:
(a) if the provider provides a residential care service or flexible care service - the allocation of places to the provider in respect of the service either:
(i) has ceased to have effect under paragraph 18-1(1)(a) or (b) of the Aged Care Act; or
(ii) will cease to have effect under that paragraph before the revocation day; and
(b) if the provider provides a home care service - appropriate arrangements have been made to ensure that the care recipients (if any) to whom the provider will no longer be approved to provide home care after the revocation day will continue to be provided with care after that day.
Notification of revocation decision
(4) If the Commissioner decides to revoke the approval of the approved provider under subsection (3), the Commissioner must give the provider written notice of the decision and the revocation day.
(5) The notice under subsection (4) must be given at least 14 days before the revocation day.
(6) If the Commissioner decides not to revoke the approval of the approved provider under subsection (3), the Commissioner must, within 14 days after making the decision, give written notice of the following to the provider:
(a) the decision;
(b) the reasons for the decision;
(c) how the provider may apply for reconsideration of the decision.
(7) The Commissioner must, as soon as is practicable, give the Secretary a copy of a notice given under subsection (4) or (6).
63J Revocation of approval of approved provider if Commissioner is satisfied of certain matters
Revocation of actual approval
(1) If an approved provider was approved under section 63D, the Commissioner must revoke the approval of the provider if the Commissioner is satisfied that:
(a) in a case in which the provider was, or was taken to be, a corporation at the time of the approval - the provider has ceased to be a corporation; or
(b) the provider has ceased to be suitable to provide aged care; or
(c) the provider's application for approval contained information that was false or misleading in a material particular.
Note: The approved provider may request the Commissioner to reconsider the decision under Part 8B.
Revocation of deemed approval
(2) If a person or body is taken, under section 63F, to be an approved provider, the Commissioner must revoke the approval of the person or body if the Commissioner is satisfied that the person or body is not suitable to provide aged care.
Note: The person or body may request the Commissioner to reconsider the decision under Part 8B.
Suitability to provide aged care
(3) In deciding whether a person or body (the entity ) has ceased to be, or is not, suitable to provide aged care, the Commissioner must consider the following matters:
(a) the entity's experience in providing, at any time, aged care or other relevant forms of care;
(b) the entity's demonstrated understanding of the entity's responsibilities as a provider of the type of aged care to which the entity's approval relates;
(c) the systems that the entity has in place to meet the entity's responsibilities as a provider of the type of aged care to which the entity's approval relates;
(d) the entity's record of financial management and the methods that the entity uses in order to ensure sound financial management;
(e) if, at any time, the entity has been a provider of aged care or other relevant forms of care - the entity's conduct as such a provider and the entity's compliance with:
(i) the entity's responsibilities as a provider of that care; and
(ii) the entity's obligations arising from the receipt of any payments from the Commonwealth for providing that care;
(f) any other matters specified in the rules.
(4) In considering a matter referred to in paragraph (3)(a), (b), (d), (e) or (f), the Commissioner may also consider the matter in relation to any or all of the key personnel of the entity.
(5) The rules may specify the matters to which the Commissioner must have regard in considering any of the matters referred to in subsection (3).
(6) Subsection (3) does not limit the matters the Commissioner may consider in deciding whether the entity is suitable to provide aged care.
63K Notice of intention to revoke approval as provider of aged care
(1) Before the Commissioner decides to revoke the approval of an approved provider under section 63J, the Commissioner must, by written notice, notify the provider that the revocation is being considered.
(2) The notice must:
(a) set out the Commissioner's reasons for considering the revocation; and
(b) invite the approved provider to make submissions, in writing, to the Commissioner about the matter within 28 days after receiving the notice; and
(c) inform the provider that if no submissions are made within that period, any revocation may take effect as early as 7 days after the end of that period.
(3) In deciding whether to revoke the approval of an approved provider under section 63J, the Commissioner must consider any submissions made by the provider to the Commissioner within the period referred to in paragraph (2)(b) of this section.
(4) The Commissioner must decide whether to revoke the approval of an approved provider under section 63J within 28 days after the end of the period referred to in paragraph (2)(b) of this section.
63L Notice of revocation of approval as provider of aged care etc.
(1) If the Commissioner decides, under section 63J, to revoke the approval of a person or body (the entity ) as an approved provider, the Commissioner must, within 14 days after making the decision, give written notice of the following to the entity:
(a) the decision;
(b) the reasons for the decision;
(c) how the entity may apply for reconsideration of the decision.
Notice of revocation day
(2) Subject to subsection (4), the Commissioner must also give the entity a written notice that specifies the day (the revocation day ) on which the revocation of the entity's approval takes effect.
Note: A notice under this subsection may be given to the entity whether or not a notice has been given to the entity under subsection (5).
(3) The notice under subsection (2):
(a) must be given at least 7 days before the revocation day; and
(b) may be given at the same time the notice under subsection (1) is given to the entity or at a later time.
(4) The Commissioner must not give a notice under subsection (2) to the entity unless the Commissioner is satisfied that appropriate arrangements have been made to ensure that the care recipients to whom the entity will no longer be approved to provide aged care after the revocation day will continue to be provided with care after that day.
Notice of limitation on approval prior to revocation day
(5) Subject to subsection (8), the Commissioner may also give the entity a written notice that specifies:
(a) that the entity's approval is limited, or further limited, to any one or more of the following:
(i) one or more specified types of aged care;
(ii) one or more specified aged care services;
(iii) one or more specified classes of care recipient; and
(b) the day (the approval limitation day ) on which the limitation takes effect.
(6) A notice under subsection (5):
(a) must specify a day as the approval limitation day that is at least 7 days after the notice is given; and
(b) may be given at the same time the notice under subsection (1) is given to the entity or at a later time.
(7) The Commissioner may give the entity more than one notice under subsection (5).
(8) The Commissioner must not give the entity a notice under subsection (5) unless the Commissioner is satisfied that appropriate arrangements have been made to ensure that the care recipients to whom the entity will no longer be approved to provide aged care after the approval limitation day specified in the notice will continue to be provided with care after that day.