Aged Care Legislation Amendment (New Commissioner Functions) Act 2019 (116 of 2019)

Schedule 2   Responsibilities of approved providers etc.

Aged Care Quality and Safety Commission Act 2018

52   Before Part 8

Insert:

Part 7B - Sanctions for non-compliance with aged care responsibilities of approved providers

Division 1 - Introduction

63M Simplified outline of this Part

The Commissioner may impose sanctions under this Part on an approved provider that has not complied, or is not complying, with one or more of the aged care responsibilities of the provider. Certain procedures must be followed if sanctions are to be imposed.

An approved provider may be asked in certain circumstances to give an undertaking or to agree to do one or more things to avoid a sanction being imposed.

Certain sanctions may be lifted by the Commissioner on application by the approved provider.

Division 2 - Imposition of sanctions by the Commissioner

63N Commissioner may impose sanctions for non-compliance with aged care responsibilities

(1) The Commissioner may impose one or more sanctions of a kind mentioned in section 63R on an approved provider if:

(a) the Commissioner is satisfied that the provider has not complied, or is not complying, with one or more of the aged care responsibilities of the provider; and

(b) the Commissioner is satisfied that it is appropriate to impose those sanctions on the provider.

Note 1: The approved provider may request the Commissioner to reconsider the decision under Part 8B.

Note 2: In certain circumstances, the Commissioner must give a notice under section 63S before deciding to impose a sanction under this section.

Commissioner must consider certain matters

(2) In deciding whether an approved provider has not complied, or is not complying, with the aged care responsibility referred to in paragraph 63-1(1)(a) or (h) of the Aged Care Act, the Commissioner may have regard to any information provided by the Secretary in relation to that matter.

(3) In deciding whether it is appropriate to impose sanctions on an approved provider for non-compliance with one or more of the aged care responsibilities of the provider, the Commissioner must consider the following matters:

(a) whether the non-compliance is of a minor or serious nature;

(b) whether the non-compliance has occurred previously and, if so, how many times it has previously occurred;

(c) whether the non-compliance threatens the health, welfare or interests of the care recipients to whom the provider is providing care;

(d) whether the non-compliance would threaten the health, welfare or interests of care recipients to whom the provider may provide care in the future;

(e) if the provider has given an undertaking as required by a notice given to the provider under section 63T - whether or not the provider has complied with the undertaking;

(f) if the provider has agreed to do one or more things as required by a notice given to the provider under section 63U - whether or not the provider has complied with the agreement;

(g) the desirability of deterring future non-compliance;

(h) any other matters specified in the rules.

(4) However, the Commissioner must give paramount consideration to the matters specified in paragraphs (3)(c) and (d).

Notice of decision to impose sanctions

(5) If the Commissioner decides to impose, under subsection (1), one or more sanctions on an approved provider in relation to the provider's non-compliance with one or more aged care responsibilities, the Commissioner must, within 14 days after making the decision, give the provider a written notice that:

(a) sets out the decision; and

(b) sets out the reasons for the decision; and

(c) sets out the details of the provider's non-compliance; and

(d) specifies each of the sanctions and sets out the effect each sanction will have on the provider; and

(e) if a sanction is to revoke or suspend the allocation of some or all of the places allocated to the provider under Part 2.2 of the Aged Care Act - specifies the number of those places subject to the sanction; and

(f) specifies the day on which each of the sanctions comes into effect; and

(g) if a sanction is to cease to have effect on a particular day:

(i) specifies that day; and

(ii) sets out the effect of Division 4 of this Part (which deals with the lifting of sanctions).

Note: In certain circumstances, the Commissioner must comply with sections 63P and 63Q in specifying a day for the purposes of paragraph (f) of this subsection.

(6) The rules may specify matters that the Commissioner must have regard to in doing any one or more of the following:

(a) specifying a day under paragraph (5)(f) in relation to a sanction;

(b) deciding whether or not to specify a day under subparagraph (5)(g)(i) in relation to a sanction;

(c) specifying a day under subparagraph (5)(g)(i) in relation to a sanction.

63P Period within which the revocation of approval of approved provider must take effect in certain circumstances

(1) This section applies if:

(a) the Commissioner decides to impose, under section 63N, a sanction on an approved provider in relation to the provider's non-compliance with one or more aged care responsibilities of the provider; and

(b) the sanction is to revoke the provider's approval; and

(c) no other sanction is to be imposed on the provider in relation to the non-compliance.

(2) The Commissioner must specify a day for the purposes of paragraph 63N(5)(f) in relation to the sanction that is no later than 14 days after the date of the notice given to the approved provider under subsection 63N(5) in relation to the sanction.

63Q When the revocation or suspension of allocation of places is to take effect

(1) This section applies if:

(a) the Commissioner decides to impose, under section 63N, a sanction on an approved provider in relation to the provider's non-compliance with one or more aged care responsibilities of the provider; and

(b) the sanction is to revoke or suspend a particular number of places (the affected places ) allocated to the provider under Part 2.2 of the Aged Care Act; and

(c) immediately before the date (the sanction notice date ) of the notice given to the provider under subsection 63N(5) in relation to the sanction, the affected places are not all vacant places of the provider.

(2) If the sanction relates to an affected place that is a vacant place of the approved provider, the Commissioner must specify, for the purposes of paragraph 63N(5)(f), the sanction notice date as the day on which the sanction comes into effect for the vacant place.

(3) If the sanction relates to an affected place that is an occupied place of the approved provider, the Commissioner must specify, for the purposes of paragraph 63N(5)(f), the first day after the day on which the provider ceases to provide aged care to a care recipient in respect of the occupied place as the day on which the sanction comes into effect for the occupied place.

(4) A vacant place of the approved provider is a place allocated to the provider under Part 2.2 of the Aged Care Act in respect of which the provider is not providing aged care to a care recipient immediately before the sanction notice date.

(5) An occupied place of the approved provider is a place allocated to the provider under Part 2.2 of the Aged Care Act in respect of which the provider is providing aged care to a care recipient immediately before the sanction notice date.

Note: A care recipient who is on leave under section 42-2 of the Aged Care Act from a residential care service is taken to be provided with residential care by the approved provider of the service (see subsection 42-2(1) of that Act).

63R Kinds of sanctions that may be imposed on approved providers

The following are the kinds of sanctions that may be imposed on an approved provider under section 63N:

(a) revoking or suspending the approval of the provider;

(b) restricting the approval of the provider to the aged care services conducted by the provider at a specified time;

(c) restricting the payment of subsidies under the Aged Care Act to the provision of care to care recipients to whom the provider is providing care, through one or more, or all, specified aged care services, at a specified time;

(d) revoking or suspending the allocation of some or all of the places allocated to the provider under Part 2.2 of the Aged Care Act;

(e) varying the conditions to which the allocation of some or all of the places allocated to the provider under Part 2.2 of the Aged Care Act is subject under section 14-5 or 14-6 of that Act;

(f) prohibiting the further allocation of places under Part 2.2 of the Aged Care Act to the provider;

(g) revoking or suspending the extra service status in respect of a residential care service, or a distinct part of a residential care service, conducted by the provider;

(h) prohibiting the granting of extra service status in respect of a residential care service, or a distinct part of a residential care service, conducted by the provider;

(i) prohibiting the charging of an accommodation payment, or an accommodation contribution, for:

(i) one or more, or all, specified residential care services conducted by the provider; or

(ii) one or more, or all, specified flexible care services conducted by the provider;

(j) prohibiting the charging of an accommodation bond, or an accommodation charge, for the entry (within the meaning of the Aged Care Act) of care recipients to:

(i) one or more, or all, specified residential care services conducted by the provider; or

(ii) one or more, or all, specified flexible care services conducted by the provider;

(k) if the provider has charged an amount of accommodation payment or accommodation contribution that is more than the amount the provider is permitted to charge under Division 52G of the Aged Care Act - requiring the provider to refund, in accordance with that Division and within a specified period, an amount equal to the excess amount charged by the provider;

(l) restricting, during a specified period, the use by the provider of a refundable deposit, or an accommodation bond, to one or more specified uses that are permitted under Division 52N of the Aged Care Act;

(m) if the provider is required under Division 52P of the Aged Care Act to refund an amount in accordance with that Division and the provider has not done so - requiring the provider to refund the amount in accordance with that Division within a specified period;

(n) requiring the provider to repay any or all of the amount of a grant paid to the provider under Chapter 5 of the Aged Care Act;

(o) any other sanctions specified in the rules.

Division 3 - Notices that must, or may be given, before sanctions are imposed

63S Commissioner must notify approved provider of intention to impose sanctions on the provider

(1) This section applies if the Commissioner is satisfied that:

(a) an approved provider has not complied, or is not complying, with one or more of the aged care responsibilities of the provider (other than the responsibility referred to in paragraph 63-1(1)(k) or (l) of the Aged Care Act); and

(b) there is no immediate and severe risk to the safety, health and well-being of care recipients to whom the provider is providing care as a result of the non-compliance.

(2) Before the Commissioner decides to impose, under section 63N, one or more sanctions on the approved provider in relation to the non-compliance, the Commissioner must, by written notice, notify the provider that the Commissioner is considering imposing those sanctions on the provider in relation to the non-compliance.

(3) The notice must:

(a) set out details of the approved provider's non-compliance; and

(b) set out the reasons why the Commissioner is considering imposing, under section 63N, one or more sanctions on the provider in relation to the non-compliance; and

(c) set out the kinds of sanctions that the Commissioner is considering imposing on the provider and the effect those sanctions, if imposed, would have on the provider; and

(d) set out broadly what action the Commissioner requires the provider to take to remedy the non-compliance; and

(e) invite the provider to make submissions, in writing, to the Commissioner in relation to the matter within:

(i) 14 days after receiving the notice; or

(ii) if a shorter period is specified in the notice - that shorter period; and

(f) inform the provider that the Commissioner may, after considering any submissions made by the provider:

(i) give the provider a notice under section 63T in relation to the non-compliance; or

(ii) decide to impose, under section 63N, one or more sanctions on the provider in relation to the non-compliance.

(4) The Commissioner must consider any submissions made by the approved provider in accordance with the notice.

63T Approved provider may be required to give undertaking about remedying non-compliance

(1) This section applies if:

(a) an approved provider is given a non-compliance notice in relation to the provider's non-compliance with one or more aged care responsibilities of the provider; and

(b) the provider makes submissions to the Commissioner as required by the notice; and

(c) the Commissioner considers that the submissions:

(i) propose appropriate action to remedy the non-compliance; or

(ii) set out an acceptable reason for the non-compliance; or

(iii) are otherwise satisfactory.

(2) The Commissioner may, by written notice:

(a) require the approved provider to give the Commissioner an undertaking in relation to the non-compliance that complies with subsection (3) within:

(i) 14 days after receiving the notice; or

(ii) if a shorter period is specified in the notice - that shorter period; and

(b) inform the provider that the Commissioner may decide to impose, under section 63N, one or more sanctions on the provider in relation to the non-compliance if:

(i) the provider does not give the required undertaking; or

(ii) the provider does not comply with any such undertaking given by the provider.

(3) An undertaking given by an approved provider in relation to the provider's non-compliance with one or more aged care responsibilities of the provider must:

(a) be given in writing; and

(b) be in a form approved by the Commissioner; and

(c) describe and acknowledge the non-compliance; and

(d) set out what action the provider proposes to take to remedy the non-compliance; and

(e) set out the period within which such action is to be taken; and

(f) include a statement acknowledging that the Commissioner may decide to impose, under section 63N, one or more sanctions on the provider if the provider does not comply with the undertaking; and

(g) meet any other requirements specified in the rules.

Note: Approved providers have a responsibility under paragraph 63-1(1)(k) of the Aged Care Act to comply with the undertaking. Failure to comply with that responsibility may result in a sanction being imposed under section 63N of this Act.

63U Approved provider may be required to agree to certain matters if revocation of approval is being considered

(1) This section applies if:

(a) the Commissioner is satisfied that an approved provider has not complied, or is not complying, with one or more of the aged care responsibilities of the provider (other than the responsibility referred to in paragraph 63-1(1)(l) of the Aged Care Act); and

(b) the Commissioner is satisfied that:

(i) there is an immediate and severe risk to the safety, health and well-being of care recipients to whom the provider is providing care as a result of the non-compliance; or

(ii) if the provider made submissions to the Commissioner in relation to the non-compliance as required by a non-compliance notice given to the provider - the submissions do not satisfy any of subparagraphs 63T(1)(c)(i), (ii) or (iii); or

(iii) if the provider is required by a notice given to the provider under section 63T to give the Commissioner an undertaking in relation to the non-compliance - the provider has failed to give the undertaking; or

(iv) if the provider has given an undertaking as required by a notice given to the provider under section 63T - the provider has failed to comply with the undertaking; and

(c) the Commissioner is considering imposing, under section 63N, a sanction on the provider for the non-compliance; and

(d) the sanction (the revocation sanction ) is the revocation of the approval of the provider.

(2) Before the Commissioner decides to impose, under section 63N, the revocation sanction on the approved provider in relation to the non-compliance, the Commissioner may, by written notice:

(a) require the provider to agree, in writing, to do any one or more things specified in the notice; and

(b) inform the provider that, if the provider does not agree to do those specified things in accordance with the notice, the Commissioner will impose the revocation sanction on the provider in relation to the non-compliance.

Note: Approved providers have a responsibility under paragraph 63-1(1)(l) of the Aged Care Act to comply with the agreement. Failure to comply with that responsibility may result in a sanction being imposed under section 63N of this Act.

(3) For the purposes of subsection (2), the following are the kinds of things that the Commissioner may require an approved provider to do in a notice given under that subsection:

(a) to provide, at the provider's expense and within the period specified in the notice, such training as is specified in the notice for the provider's officers, employees and agents;

(b) to provide, within the period specified in the notice, such security as is specified in the notice for any debts owed by the provider to the Commonwealth;

(c) to appoint, within the period specified in the notice, an eligible adviser who has appropriate qualifications, skills or experience to assist the provider to comply with the provider's aged care responsibilities in relation to either or both of the following matters:

(i) the care and services provided by the provider;

(ii) the governance and business operations of the provider;

(d) to give an eligible adviser appointed by the provider for that purpose all the necessary information required by the adviser to provide that assistance;

(e) to transfer, within the period specified in the notice, any or all of the places allocated to the provider under Part 2.2 of the Aged Care Act to another approved provider;

(f) to do any other things specified in the rules.

(4) The rules may specify matters that the Commissioner must take into account in specifying a period in a notice given under subsection (2) for the purposes of paragraph (3)(c).

Division 4 - Lifting of sanctions imposed on approved providers

63V Application for lifting of sanction imposed on approved provider

(1) If:

(a) a sanction has been imposed on an approved provider under section 63N; and

(b) the notice given to the provider under that section specified a day on which the sanction is to cease to have effect; and

(c) the sanction is still in effect;

the provider may apply to the Commissioner for the sanction to be lifted.

(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 approved provider may, in writing, withdraw the application at any time before the Commissioner makes a decision on the application.

63W Request for further information

(1) If:

(a) an approved provider makes an application under subsection 63V(1); and

(b) the Commissioner needs further information to make a decision on the application;

the Commissioner may, by written notice, request the provider 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 approved provider's request, extend the specified period.

(5) If the approved provider 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 approved provider may make another application under section 63V.

(6) A notice given under subsection (1) must set out the effect of subsection (5).

63X Commissioner must decide whether to lift sanction imposed on approved provider

(1) If an approved provider makes an application under subsection 63V(1) in relation to a sanction imposed on the provider, the Commissioner must decide whether to lift the sanction within:

(a) if a request for further information in relation to the application has been made under subsection 63W(1) - 28 days after receiving the further information; or

(b) otherwise - 28 days after receiving the application.

Note: See Part 8B for the reconsideration of a decision not to lift the sanction.

(2) The Commissioner must lift the sanction imposed on the approved provider if the Commissioner is satisfied that it is appropriate for the sanction to be lifted.

(3) In deciding whether it is appropriate for the sanction imposed on the approved provider to be lifted, the Commissioner must have regard to:

(a) whether the approved provider is complying with the aged care responsibilities of the provider; and

(b) any other matters specified in the rules.

63Y Notification of decision relating to lifting of sanction imposed on approved provider

Decision to lift sanction

(1) If the Commissioner decides, under section 63X, to lift a sanction imposed on an approved provider, the Commissioner must, within 14 days after making the decision, give written notice of the following to the provider:

(a) the decision;

(b) the day on which the sanction will cease to be in effect;

(c) any other matters specified in the rules.

Decision not to lift sanction

(2) If the Commissioner decides, under section 63X, not to lift a sanction imposed on an approved provider, 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.

Secretary must be given copy of notice

(3) The Commissioner must, as soon as is practicable, give the Secretary a copy of a notice given under subsection (1) or (2).