Compilation #0 | Effective 1992-12-21
FRBR Work URI: /akn/au/act/1992/200
TABLE OF PROVISIONS—continued
National Health Amendment Act 1992
No. 200 of 1992
An Act to amend the National Health Act 1953 to provide for a new scheme for the payment and recovery of Commonwealth benefit payable in respect of the provision of nursing home care in approved nursing homes, and for related purposes
[Assented to 21 December 1992]
The Parliament of Australia enacts:
Short title etc.
1.(1) This Act may be cited as the National Health Amendment Act 1992.
3. Section 39 of the Principal Act is amended:
by omitting from subparagraph (a)(i) of the definition of “reference fee” “fee determined in accordance with the scale of fees that would apply for the purposes of subparagraph 40AA(6)(c)(i) in its application” and substituting “notional fee that would apply”;
by omitting from subparagraph (a)(ii) of the definition of “reference fee” “fee determined for the purposes of subparagraph 40AA(6)(c)(i) in its application” and substituting “notional fee applying”;
by inserting the following definition:
“ ‘notional fee’, in relation to the provision of nursing home care (other than care of a kind in respect of which benefit is paid under section 48B, 48C, 48D, 48E or 49) to an approved nursing home patient in an approved nursing home (other than a Government nursing home or a nursing home for disabled people) on a particular day, means the fee applicable in respect of the provision of nursing home care to the patient on that day in accordance with the scale of fees determined by the Secretary under section 46D;”.
4. Section 42A of the Principal Act is repealed.
5. Section 43 of the Principal Act is amended by omitting subsections (1) and (1A).
6. Before section 46 of the Principal Act the following heading is inserted:
“Division 1—Preliminary”.
7. Section 46 of the Principal Act is amended:
(a) by omitting from subsection (1) the definition of “Commonwealth extensive care benefit” and substituting the following definition:
“ ‘extensive care benefit’ means a benefit payable under section 49;”;
(b) by inserting in subsection (1) the following definitions:
“ ‘accounting period’, in relation to an approved nursing home other than a Government nursing home or a nursing home for disabled people, means:
the period determined by the Secretary under subsection 46C(2); or
if that period has been varied under subsection 46C(5) or (6)—that period as so varied;
‘general care benefit’ means an amount that the proprietor of an approved nursing home is entitled to receive by way of benefit under section 47A or section 48A;
‘investigation to be carried out’, in respect of an approved nursing home, has the meaning given by subsection 65(5);
‘notified day for completion of sale’, has the meaning given by subsection 65(1);
‘notional fee’, in relation to the provision of nursing home care (other than care of a kind in respect of which benefit is paid under section 48B, 48C, 48D, 48E or 49) to an approved nursing home patient in an approved nursing home (other than a Government nursing home or a nursing home for disabled people) on a particular day, means the fee applicable in respect of the provision of nursing home care to the patient on that day in accordance with the scale of fees determined by the Secretary under section 46D;
‘notional scale of fees’, in relation to the provision of nursing home care (other than care of a kind in respect of which benefit is paid under section 48B, 48C, 48D, 48E or 49) to approved nursing home patients in an approved nursing home (other than a Government nursing home or a nursing home for disabled people) in an accounting period, means the scale of fees determined by the Secretary under section 46D;
‘overpayment’ has the meaning given by section 46B.”.
8. After section 46A of the Principal Act the following sections are inserted:
Meaning of overpayment
“46B.(1) ‘Overpayment’, in relation to Commonwealth benefit has the meaning given by subsection (2), (3) or (4).
“(2) If the proprietor of an approved nursing home has received, by way of advance on account of Commonwealth benefit that may become payable in respect of an approved nursing home patient in the nursing home on a day, an amount that exceeds the amount payable to the
proprietor in respect of the nursing home patient on that day, the amount of that excess is an overpayment.
“(3) If:
the proprietor of an approved nursing home has received an amount by way of advance on account of Commonwealth benefit that may become payable in respect of an approved nursing home patient in the nursing home on a day; and
that benefit does not become payable;
the amount so received by the proprietor is an overpayment.
“(4) If:
(a) an amount purporting to be Commonwealth benefit is paid to the proprietor of an approved nursing home in respect of an approved nursing home patient in the home; and
(b) Commonwealth benefit is not payable to the proprietor; that amount is an overpayment.
Secretary to determine accounting period in respect of certain approved nursing homes
“46C.(1) This section does not apply to a Government nursing home or a nursing home for disabled people.
“(2) The Secretary must, in relation to an approved nursing home, determine a period to be the accounting period in respect of that nursing home.
“(3) An accounting period in respect of an approved nursing home must not begin before the commencement of this Act.
“(4) The determination must:
be in writing; and
set out the accounting period in respect of the nursing home.
“(5) The Secretary must provide a copy of the determination to the proprietor of the nursing home within 14 days after making it.
“(6) Subject to subsection (10), the Secretary may vary the accounting period in respect of the nursing home at any time.
“(7) If, before the day on which the sale of an approved nursing home is completed:
the Secretary receives notice of the sale; or
is otherwise informed of the sale;
the Secretary must, within 14 days of receiving notice, or becoming informed, of the sale of the nursing home, vary the accounting period in respect of the home.
“(8) If:
(a) an approved nursing home has been sold and the Secretary did
not receive notice of the sale under section 65A or 65B, or was not otherwise informed of the sale, before the day of completion of the sale; or
(b) if the proprietor of an approved nursing home sells the nursing home before the notified day for completion of sale;
the Secretary must, within 14 days after first becoming aware of the sale, vary the accounting period in respect of the home.
“(9) The accounting period, as varied under subsection (7) or (8), must end on the day before the day of completion of the sale.
“(10) The Secretary must not vary the accounting period so that it begins on a day earlier than the last day of the previous accounting period.
“(11) If the Secretary varies the accounting period, he or she must notify the proprietor within 7 days of that variation.
“(12) A notice under subsection (11) must be in writing and set out the new accounting period in respect of the nursing home.
Setting of notional fees
“46D.(1) The Secretary must, within 3 years after the end of an accounting period in respect of an approved nursing home, determine a notional scale of fees in respect of the nursing home.
“(2) A notional scale of fees, in respect of the nursing home is determined:
in relation to the accounting period in respect of the home; and
in respect of the provision of nursing home care (other than care of a kind in respect of which benefit is paid under section 48B, 48C, 48D, 48E or 49) to approved nursing home patients in the nursing home during the accounting period.
“(3) In determining the notional scale of fees, the Secretary:
must take into account the actual expenditure incurred by the proprietor in respect of the provision of that nursing home care to approved nursing home patients in the nursing home during the accounting period; and
may take into account such other things as the Secretary considers relevant.
“(4) The Secretary must, for the purposes of determining the notional scale of fees, order an investigation to be carried out in respect of an approved nursing home to find out the actual expenditure so incurred by the proprietor.
“(5) In determining the notional scale of fees, the Secretary must comply with the relevant principles formulated under subsection 40AA(7).
“(6) The proprietor affected by a decision of the Secretary under subsection (1) may apply, in writing, to the Minister for a reconsideration of that decision by the Minister.
“(7) The application must be made within 28 days after the proprietor receives notice of the decision.
“(8) If the proprietor applies for reconsideration of the decision, the Minister may affirm or revoke the decision or vary it as he or she thinks fit.
“(9) For the purposes of determining the notional scale of fees for the first accounting period in respect of a nursing home after the commencement of this Act, the accounting period is taken to have commenced on a day determined by the Secretary.
“(10) The day determined by the Secretary may be a day before the day this Act commences.
Secretary may pay or recover advances of general care benefit before notional scale of fees is set
“46E.(1) If:
during an accounting period in respect of an approved nursing home; or
after the end of an accounting period in respect of an approved nursing home and before the Secretary has determined a notional scale of fees in respect of the accounting period,
the Secretary reasonably believes that the proprietor of the nursing home will be found (on general care benefit becoming payable) to have, in respect of the accounting period:
received an overpayment of general care benefit; or
been underpaid general care benefit;
the Secretary may determine, in writing, the amount that the Secretary believes to be the amount of the likely overpayment or underpayment.
“(2) If the Secretary determines an amount, the Secretary may, on the Commonwealth’s behalf, recover the amount from, or pay the amount to, the proprietor of the nursing home (as the case requires) in the manner specified in the principles formulated under subsection 40AA(7).
“(3) If the Secretary decides to recover the amount from, or pay the amount to, the proprietor of the nursing home under subsection (2), the Secretary must notify the proprietor, in writing, accordingly.
“(4) If steps have been taken to recover (by the manner specified in the principles) an amount determined under subsection (1) to be a likely overpayment then, for the purpose of establishing whether or not the proprietor of the nursing home has received an overpayment in respect of the accounting period, that amount is to be deducted from
the total amount of advances in respect of general care benefit paid in relation to the nursing home during the accounting period.
“(5) If steps have been taken to pay (by the manner specified in the principles) an amount determined under subsection (1) to be a likely underpayment then, for the purpose of establishing whether or not the proprietor of the nursing home has been underpaid in respect of the accounting period, the amount is to be added to the total amount of advances in respect of general care benefit paid in relation to the nursing home during the accounting period.
“(6) For the purpose of this section, the proprietor of an approved nursing home is underpaid general care benefit if the proprietor has received, by way of advance on account of general care benefit that may become payable in respect of an approved nursing home patient in the nursing home on a day in the accounting period, an amount that is less than the amount payable to the proprietor in respect of the nursing home patient on that day.”.
9. Before section 47 of the Principal Act the following heading is inserted:
“Division 2—Types of benefit payable”.
10. Section 47A of the Principal Act is amended:
(a) by inserting before subsection (1) the following subsection:
“(1A) This section applies to an approved nursing home other than a Government nursing home, an adjusted fee government nursing home, a transferred home or a nursing home for disabled people.”;
by omitting from subsection (1), “Subject to this Part and Part VC, a Commonwealth benefit is payable to the proprietor of an approved nursing home (other than a Government nursing home, a transferred home or a nursing home for disabled people)” and substituting “Subject to this Part, Part VC and Part VD, the proprietor of an approved nursing home in respect of which this section applies is entitled to receive benefit”;
by omitting from subsection (2) “The benefit payable under subsection (1),” and substituting “The benefit that the proprietor of the nursing home is entitled to receive under subsection (1)”;
by omitting from paragraph (2)(a) “the fee payable to the proprietor for the provision of nursing home care for the patient on the relevant day” and substituting “the notional fee”;
by omitting from subsection (3) “The benefit payable” and substituting “The benefit that the proprietor is entitled to receive”.
11. Section 48 of the Principal Act is repealed.
12. Section 48A of the Principal Act is amended:
by omitting from subsection (1) “Subject to this Part and Part VC, a Commonwealth benefit is payable to” and substituting “Subject to this Part, Part VC and Part VD”;
by inserting after “government nursing home” in subsection (1) “is entitled to receive benefit”;
by omitting from subsection (2) “the benefit payable” and substituting “the benefit that the proprietor of the nursing home is entitled to receive”;
by omitting from paragraph (2)(a) “the fee payable for the care of the patient in the nursing home on the relevant day” and substituting “the notional fee”;
by omitting from subsection (2A) “the benefit payable” and substituting “The benefit that the proprietor is entitled to receive”;
(f) by omitting from subsection (4) “the benefit payable” and substituting “the benefit that the proprietor is entitled to receive”.
13. After section 48A of the Principal Act the following section is inserted:
When general care benefit becomes payable
“48AB. The general care benefit to which the proprietor of an approved nursing home is entitled in respect of an approved nursing home patient in the nursing home who receives nursing home care on a day in an accounting period becomes payable on the 30th day after a notional scale of fees has been determined under section 46D in relation to the accounting period.”.
14. After section 49A of the Principal Act the following section is inserted:
Payment of Commonwealth benefit to patient
“49B.(1) If:
the proprietor of an approved nursing home charges fees in respect of the nursing home care provided to an approved nursing home patient during a period; and
the proprietor does not deduct from the fees Commonwealth benefit that is payable, or may become payable, to the proprietor in respect of the patient for the period;
the Secretary may direct that the Commonwealth benefit so payable, or the amount so paid in advance, be paid to the person to whom the fees were charged and not to the proprietor.
“(2) If:
the proprietor of the nursing home has been paid, whether by way of advance on account of Commonwealth benefit or otherwise, an amount of Commonwealth benefit in respect of the patient for the period; and
the proprietor charges fees in respect of nursing home care provided to the patient during the period without deducting the amount of benefit so paid in respect of the patient;
the proprietor must, as the Secretary demands, repay to the Commonwealth that amount.
“(3) If the proprietor of the nursing home has not complied with the Secretary’s demand within 3 months, the amount to which the demand relates may be recovered by the Commonwealth as a debt.
“(4) The Commonwealth must pay an amount equal to the amount received under subsection (2) or (3) to the person to whom the fees concerned were charged.”.
15. After section 49AA of the Principal Act the following heading is inserted:
“Division 3—Miscellaneous”.
Claims for benefit
Section 51 of the Principal Act is amended by omitting from paragraph (1)(a) “payable” and substituting “that is, or may become, payable”.
Sections 51A and 51B of the Principal Act are repealed and the following sections are substituted:
Advances of benefit
“51A. The Minister may, in his or her discretion, authorise the payment to the proprietor of an approved nursing home (other than a Government nursing home) of an advance or advances in respect of Commonwealth benefit that is or may become payable to the proprietor.
Treatment of money overpaid or underpaid by way of an advance
“51B.(1) The proprietor of an approved nursing home is liable to repay to the Commonwealth any overpayment of Commonwealth benefit.
“(2) If:
(a) an amount of Commonwealth benefit payable to the proprietor
of an approved nursing home in respect of an accounting period exceeds the total of the advances paid to the proprietor in respect of that amount; and
(b) the proprietor elects, in writing, that the amount of the excess be paid to him or her in the manner specified in the principles formulated under subsection 40AA(7);
the amount of the excess is payable to the proprietor of the nursing home in accordance with the election.
Recovery of overpayments
“51C.(1) An overpayment of Commonwealth benefit made to the proprietor of an approved nursing home may, in whole or in part, be:
Note: See section 46B for the meaning of overpayment.
deducted from an amount (including an advance) payable, or to be paid, to that proprietor of the nursing home under this Part; or
recovered by the Commonwealth from that proprietor as a debt due to the Commonwealth; or
recovered from that proprietor, or a later proprietor of the nursing home, in a manner determined in accordance with the principles formulated under subsection 40AA(7).
“(2) If:
the proprietor of a nursing home receives an overpayment of Commonwealth benefit in respect of the nursing home; and
that proprietor (‘previous proprietor’) sells the nursing home; and
so much of the amount that has been recovered from the current proprietor as is equal to the amount recovered from the previous proprietor is to be paid to the current proprietor.
“(3) If the current proprietor of the nursing home elects, in writing, that the amount to which he or she is entitled under subsection (2) be paid to him or her in a manner specified in the principles formulated under subsection 40AA(7), the amount is payable to that proprietor in that manner.
“(4) Paragraphs (1)(a) and (b) do not affect the recovery or set-off of amounts that have not been paid under this Part.”.
Heading to Part VC
“PART VD—REQUIREMENTS IN RESPECT OF SALE OF APPROVED NURSING HOMES
“Division 1—Preliminary
Object of Part
“63. The object of this Part is to provide, in relation to the sale of an approved nursing home, for:
Application and operation of Part
“64.(1) This Part applies to the sale of an approved nursing home (other than a Government nursing home or a nursing home for disabled people) whether or not that sale involves a transfer of nursing home beds under section 39B.
“(2) If the vendor is selling the business or undertaking carried on at the nursing home to different purchasers, this Part applies to each of those sales as if each was a sale of an approved nursing home.
“(3) This Part does not apply if the contract of sale of an approved nursing home was entered into before this Part commenced.
“(4) This Part operates as follows:
Interpretation
“65.(1) In this Part, unless the contrary intention appears:
‘business or undertaking’, in relation to an approved nursing home, means the right to operate all of the beds determined under paragraph 40AA(6)(a) as the number of approved beds in relation to the nursing home;
‘Commonwealth benefit’ has the meaning given by subsection 46(1);
‘fee-determining benefit’ means an amount of Commonwealth benefit that may, in accordance with the principles formulated under subsection 40AA(7), be taken into account to reduce or increase fees (as the case may be) when determining a scale of fees in respect of the nursing home;
‘first investigation’, in relation to an approved nursing home that is being sold, means the investigation carried out under paragraph 65C(1)(c);
‘first investigation period’, in relation to an approved nursing home that is being sold, means the period referred to in paragraph 65C(1)(c);
‘investigation to be carried out’ has the meaning given by subsection (5);
‘missed out on receiving’ has the meaning given in subsection (4);
‘notified day for completion of sale’, in relation to a nursing home that is being sold, means the day on which, according to:
the sale of the nursing home is to be completed;
‘notional scale of fees’ has the meaning given by subsection 46(1);
‘overpayment’, in relation to Commonwealth benefit, has the meaning given by section 46B;
‘overpayment outstanding’ has the meaning given by section 65K;
‘purchase of an approved nursing home’ has the meaning given by subsection (2);
‘purchaser payment’, in relation to an approved nursing home that is being sold, means an amount paid by the purchaser of the nursing home in answer to a direction given under section 65H or 65J;
‘purchase price’, in relation to an approved nursing home that is being sold, means:
(i) to accommodate the business or undertaking carried out at the nursing home; or
(ii) in the operation of the business or undertaking; the sum of the amount of money that the purchaser pays for that property and of the amount referred to in paragraph (a);
‘sale of an approved nursing home’ has the meaning given by subsection (3);
‘second investigation’, in relation to an approved nursing home that is being sold, means the investigation carried out under paragraph 65C(1)(d);
‘second investigation period’, in relation to an approved nursing home that is being sold, means the period referred to in paragraph 65C(1)(d);
‘vendor’, in relation to an approved nursing home that is being, or has been, sold, means the proprietor of the nursing home immediately before the sale;
‘vendor payment’, in relation to an overpayment outstanding in respect of an approved nursing home, means an amount paid by the vendor to the Commonwealth under section 65K.
“(2) A purchase of an approved nursing home occurs when the ownership of the business or undertaking carried out at the nursing home is transferred from one person to another person whether or not that transfer results from the payment of an amount of money.
“(3) A sale of an approved nursing home is the transfer of the ownership of the business or undertaking carried out at the nursing home from one person to another person whether or not that transfer occurs as the result of the payment of an amount of money.
“(4) For the purposes of this Part, if:
the proprietor has missed out on receiving the difference between that higher amount and the amount received by the proprietor.
“(5) A reference in this Part to an investigation to be carried out in respect of an approved nursing home is a reference to an investigation of such of the accounts, books, documents or other records relevant to the operation of the nursing home as the Secretary thinks appropriate.
“Division 2—Requirements on sale of approved nursing home
Vendor must give notice of sale of approved nursing home
“65A.(1) The vendor of an approved nursing home who enters into a contract to sell the nursing home must, before the day of completion of the sale, give the Minister notice, in writing, of the following matters:
“(2) The vendor must not complete the sale within:
“(3) If the Secretary determines a period of less than 90 days, he or she must notify the vendor, in writing, of that lesser period.
“(4) If:
“(5) The vendor must give the amended notice at least 14 days before the day of completion of the sale.
“(6) If:
the notice is taken not to have been given.
“(7) If:
(a) the vendor has given notice under subsection (1) and the particulars referred to in paragraph (1)(c) or (d) change; and
(b) the vendor does not give an amended notice;
the notice is taken not to have been given.
Purchaser to give notice of prospective purchase of approved nursing home
“65B.(1) A person who contracts with the vendor of an approved nursing home to purchase the nursing home must give the Minister notice, in writing, of the following matters:
“(2) The person must give notice at least 42 days before the day of completion of the sale.
“(3) If:
the purchaser must give the Secretary notice in writing (‘amended notice’) of the following matters:
“(4) If:
the notice is taken not to have been given.
Investigation of accounts etc. of approved nursing home
“65C.(1) If the Secretary:
the Secretary must order the following investigations to be carried out in respect of the nursing home:
“(2) The purpose of each investigation is to:
Secretary may also determine certain matters
“65D.(1) Before the second investigation in respect of the operation of an approved nursing home is completed, the Secretary must determine, in writing:
“(2) In determining an amount under paragraph (1)(b) the Secretary must comply with any relevant principles in force under subsection (3).
“(3) The Minister may set out, in writing, principles to be complied with by the Secretary with respect to his or her powers under subsection (1).
Parties to a contract of sale to be informed of results of investigation etc.
“65E. If the Secretary has ordered an investigation to be carried out in respect of an approved nursing home under section 65C, the Secretary may, before the notified day for completion of sale of the nursing home, give to each of the parties to the contract of sale notice in writing of:
Proprietor gives less than 90 days notice of settlement of contract of sale or settles in less than 90 days
“65F.(1) If less than 90 days before the proposed day for completion of the sale, the Secretary:
(a) receives notice of the sale of an approved nursing home under section 65A or 65B; or
(b) is otherwise informed of the intended sale of the nursing home; the Secretary must:
(i) the amount that, in the Secretary’s opinion, is an estimate of the overpayment so received; and
(ii) how much of that amount, in the Secretary’s opinion, will not be recovered by the Commonwealth as at the notified day for completion of sale; and
“(2) The purpose of the investigation is to:
missed out on receiving, a fee-determining benefit in respect of the investigation period; and
(d) if the vendor, or an earlier proprietor of that nursing home, has received, or missed out on receiving (as the case may be), a fee-determining benefit—allow the Secretary to work out the amount of benefit.
“(3) A determination under paragraph (1)(e) or (g) must:
“(4) On or before the notified day of completion of the sale, a copy of the determination may be provided to both the vendor and the purchaser of the nursing home.
“(5) In determining an amount under paragraph (1)(e) the Secretary must comply with any relevant principles in force under subsection (6).
“(6) The Minister may set out, in writing, principles to be complied with by the Secretary with respect to his or her powers under paragraph (1)(e).
If no notice of sale given or vendor sells before notified date
“65G.(1) This section applies in the following cases:
(a) if:
(i) an approved nursing home has been sold; and (ii) the Secretary did not receive notice of the sale under section 65A or 65B or was not otherwise informed of the sale before the day of completion of sale;
(b) if the proprietor of an approved nursing home sells the nursing home before the notified day for completion of sale of the home.
“(2) On and from the day that the Secretary becomes aware that the nursing home has been so sold, any obligations imposed on the Secretary under sections 65C, 65D, 65E or 65F cease to operate.
“(3) The Secretary must order an investigation to be carried out in respect of the nursing home in respect of the period beginning on a day determined by the Secretary and ending on the day immediately before the day on which the contract of sale was completed for the purposes of:
or an earlier proprietor of that nursing home has received, or missed out on receiving, a fee-determining benefit in respect of the investigation period.
“(4) The Secretary must:
(a) determine whether the vendor or an earlier proprietor of that nursing home has received an overpayment in respect of the investigation period and, if there has been such an overpayment, determine:
(i) the amount of the overpayment so received; and
(ii) how much of that amount will not be recovered as at the day before the day on which the contract of sale was completed; and
(b) if the investigation period began on a day earlier than the commencement of this Part—determine whether the vendor or an earlier proprietor of that nursing home has received, or missed out on receiving, a fee-determining benefit in respect of the investigation period and, if the Secretary determines that there is such an amount of fee-determining benefit, determine the amount of it.
“(5) A determination under paragraph (4)(a) or (b) must:
“(6) In determining an amount under paragraph (4)(a) the Secretary must comply with any relevant principles in force under subsection (7).
“(7) The Minister may set out, in writing, principles to be complied with by the Secretary with respect to his or her powers under paragraph (4)(a).
“ Division 3 — Payment of certain moneys to the Commonwealth
If paragraphs 65C(1)(c) and (d) investigations done —direction to purchaser to pay amount to the Commonwealth
“65H.(1) If investigations of the kind referred to in paragraphs 65C(1)(c) and (d) have been ordered in respect of an approved nursing home, the Secretary may, in writing, direct the purchaser of the nursing home to pay to the Commonwealth on or before the notified day for completion of sale of the nursing home:
(a) so much of the purchase price as is equal to the sum of:
(i) the amount of the overpayment established by the first investigation undertaken in respect of the operation of the nursing home; and
(ii) the amount determined under paragraph 65D(1)(b) in respect of the nursing home; or
(b) if the purchase price is less than the sum of the amounts referred to in subparagraphs (a)(i) and (ii)—the purchase price.
“(2) If the purchaser payment is more than the overpayment established by the first investigation:
“(3) If the purchaser payment is equal to or less than the overpayment established by the first investigation, the whole of the purchaser payment is taken to be paid in settlement, or part settlement (as the case may be), of the amount due by the vendor to the Commonwealth in respect of the overpayment.
“(4) When the second investigation is completed:
(a) if the trust money is more than the overpayment (if any) established by the second investigation:
(i) so much of it as is equal to the overpayment is taken to have been paid to the Commonwealth in settlement of the amount due to the Commonwealth by the vendor in respect of the overpayment; and
(ii) the remainder of the trust money is to be paid to the vendor; or
(b) if the trust money is equal to or less than the overpayment in respect of the second investigation period, it is taken to have been paid to the Commonwealth in settlement, or part settlement, of the amount due to the Commonwealth by the vendor in respect of the overpayment.
“(5) Money paid to the Commonwealth by the purchaser is taken to have been paid by the purchaser to the vendor as consideration, or part of the consideration, under the contract for the sale of the nursing home.
If amount determined under paragraph 65F(1)(e) —direction to purchaser to pay amount to the Commonwealth
“65J.(1) If, in respect of the sale of an approved nursing home, the Secretary has determined an amount under paragraph 65F(1)(e), the Secretary may, in writing, direct the purchaser of the nursing home to
pay to the Commonwealth on or before the notified day for completion of sale of the nursing home:
“(2) The amount paid under subsection (1) is taken to be money (‘trust money’) held in trust by the Commonwealth for the benefit of the vendor until the investigation carried out under paragraph 65F(1)(c) is completed.
“(3) When the investigation carried out under paragraph 65F(1)(c) is completed:
(a) if the trust money is more than the overpayment (if any) in respect of the period to which the investigation related:
(i) so much of the trust money as is equal to the overpayment is taken to have been paid to the Commonwealth in settlement of the amount due to the Commonwealth by the vendor in respect of the overpayment; and
(ii) the remainder of the trust money is to be paid to the vendor; or
(b) if the trust money is equal to or less than the overpayment in respect of the period to which the investigation related—it is taken to have been paid to the Commonwealth in settlement, or part settlement, of the amount due to the Commonwealth by the vendor in respect of the overpayment.
“(4) Money paid to the Commonwealth by the purchaser is taken to have been paid by the purchaser to the vendor as consideration, or part of the consideration, under the contract for the sale of the nursing home.
Certain moneys to be paid by proprietor of nursing home to the Commonwealth on or before sale of nursing home
“65K.(1) The vendor of an approved nursing home must, on or before the notified day for completion of sale of the nursing home, pay to the Commonwealth an amount equal to the amount that is, under subsection (2), (3), (4), (5) or (6), the overpayment outstanding in respect of the nursing home.
“(2) If:
(a) the Secretary did not receive notice of the sale of the nursing home under section 65A or 65B or was not otherwise informed of the sale before the day of completion of the sale; or
(b) the vendor sells the nursing home before the notified day for completion of sale of the home;
the overpayment outstanding in respect of the nursing home is equal to the sum of the advances in respect of Commonwealth benefit paid to the vendor in respect of approved nursing home patients who received nursing home care in the nursing home during any accounting period in respect of which the Secretary has not determined a notional scale of fees.
“(3) If:
the overpayment outstanding in respect of the nursing home is the amount specified in the determination.
“(4) If:
the overpayment outstanding in respect of the nursing home is the difference between:
“(5) If:
the overpayment outstanding in respect of the nursing home is the sum of:
“(6) If:
the overpayment outstanding in respect of the nursing home is the difference between:
(e) the sum of:
(i) the overpayment (if any) established by the first investigation; and
(ii) the amount specified in the determination; and
(f) the purchaser payment.
Money paid in settlement of an overpayment outstanding —how to deal with it
“65L. A vendor payment in relation to an overpayment outstanding in respect of an approved nursing home is to be dealt with as set out in sections 65M, 65N, 65P, 65Q, 65R and 65S.
Treatment of amount paid in respect of overpayment outstanding to which subsection 65K(2) applies
“65M.(1) This section applies if the overpayment outstanding in respect of the approved nursing home has been determined under subsection 65K(2).
“(2) The vendor payment is held in trust for the vendor’s benefit until the investigation carried out under subsection 65G(3) in respect of the nursing home is completed.
“(3) If the investigation establishes that no overpayment is payable by the vendor, the vendor payment is paid to the vendor.
“(4) If the investigation establishes that there has been, in respect of the investigation period, an overpayment for which the vendor is liable, then:
(a) if the vendor payment is equal to or less than the overpayment— the vendor payment is taken to have been paid to the Commonwealth in settlement or part settlement of the overpayment; or
(b) if the vendor payment is more than the overpayment:
(i) so much of the vendor payment as is equal to the overpayment is taken to have been paid to the Commonwealth in settlement of the overpayment; and
(ii) the balance is paid to the vendor.
Treatment of amount paid in respect of overpayment outstanding to which subsection 65K(3) applies
“65N.(1) This section applies if the overpayment outstanding in respect of the approved nursing home has been determined under subsection 65K(3).
“(2) The vendor payment is held in trust for the vendor’s benefit until the investigation carried out under paragraph 65F(1)(c) in respect of the nursing home is completed.
“(3) If the investigation establishes that no overpayment is payable by the vendor, the vendor payment is paid to the vendor.
“(4) If the investigation establishes that there has been, in respect of the investigation period, an overpayment for which the vendor is liable, then:
(i) so much of the vendor payment as is equal to the overpayment is taken to have been paid to the Commonwealth in settlement of the overpayment; and
(ii) the balance is paid to the vendor.
Treatment of amount paid in respect of overpayment outstanding to which subsection 65K(4) applies
“65P.(1) This section applies if the overpayment outstanding in respect of the approved nursing home has been determined under subsection 65K(4).
“(2) The vendor payment is held in trust for the vendor’s benefit until the investigation carried out under paragraph 65F(1)(c) in respect of the nursing home is completed.
“(3) If the investigation establishes that no overpayment is payable by the vendor, the vendor payment is paid to the vendor.
“(4) If:
(a) the investigation establishes that there has been, in respect of the investigation period, an overpayment for which the vendor is liable; and
(b) the Commonwealth holds in trust a purchaser payment that is equal to, or higher than, the overpayment;
the vendor payment is paid to the vendor.
“(5) If:
then:
(i) so much of the vendor payment as is equal to the outstanding debt is taken to have been paid to the Commonwealth in settlement of that debt; and
(ii) the balance is paid to the vendor.
Treatment of amount paid in respect of overpayment outstanding to which subsection 65K(5) applies
“65Q.(1) This section applies if the overpayment outstanding in respect of the approved nursing home has been determined under subsection 65K(5).
“(2) If the first investigation has established that, in respect of the investigation period, an overpayment is payable by the vendor:
“(3) If the second investigation establishes that, in respect of that investigation period, no overpayment is payable by the vendor, the remainder of the vendor payment is paid to the vendor.
“(4) If the second investigation establishes that there has been, in respect of that investigation period, an overpayment for which the vendor is liable, then:
(a) if the remainder of the vendor payment is equal to or less than the overpayment—the remainder of the vendor payment is taken to have been paid to the Commonwealth in settlement or part settlement of the overpayment; or
(b) if the remainder of the vendor payment is more than the overpayment:
(i) so much of the vendor payment as is equal to the overpayment is taken to have been paid to the Commonwealth in settlement of the overpayment; and
(ii) the balance is paid to the vendor.
Treatment of amount paid in respect of overpayment outstanding to which subsection 65K(6) applies —Step 1: first investigation amount
“65R.(1) This section:
“(2) If the purchaser payment in respect of the nursing home was less than the amount of the overpayment in respect of the first investigation period, then:
“(3) If the purchaser payment is equal to or more than the overpayment, the vendor payment is held in trust for the vendor’s benefit until the second investigation is completed.
Treatment of amount paid in respect of overpayment outstanding to which subsection 65K(6) applies —Step 2: second investigation amount
“65S.(1) This section:
“(2) If the second investigation establishes that no overpayment in respect of that investigation period is payable by the vendor, the balance of the vendor payment is paid to the vendor.
“(3) If:
(a) the second investigation establishes that there has been, in
respect of that investigation period, an overpayment for which the vendor is liable; and
(b) the Commonwealth, under section 65H, holds in trust a part of the purchaser payment in respect of the overpayment that is equal to, or higher than, the overpayment;
the balance of the vendor payment is paid to the vendor.
“(4) If:
then:
(i) so much of the balance of the vendor payment as is equal to the outstanding debt is taken to have been paid to the Commonwealth in settlement of that debt; and
(ii) the remainder is paid to the vendor.
“(5) If:
(a) the second investigation establishes that there has been, in respect of the investigation period, an overpayment for which the vendor is liable; and
(b) no part of the purchaser payment is held in trust;
then:
(i) so much of the balance of the vendor payment as is equal to the overpayment is taken to have been paid to the Commonwealth in settlement of the overpayment; and
(ii) the remainder is paid to the vendor.
Time when principles take effect
“65T.(1) Principles set out under subsections 65D(3), 65F(6) and 65G(8):
“(2) If:
the principles take effect in the form so approved from the day on which that other House approves them in that form.
“(3) If no notice of motion to amend the principles is given in either House of the Parliament under paragraph (2)(a), the principles take effect from the day immediately after the last day on which the notice of motion could have been so given in either House.
Parties to a contract of sale to be informed of certain matters after sale
“65U.(1) If:
the Secretary may give the vendor and the purchaser of the nursing home information as to the amount of that overpayment.
“(2) If:
(i) that an overpayment has been made in respect of the operation of the nursing home during the investigation period; or
(ii) that the vendor, or an earlier proprietor, has received, or missed out on receiving (as the case may be), a fee-determining benefit;
the Secretary may give the vendor and the purchaser information as to the amount of such overpayment or fee-determining benefit.
“(3) After the sale of a nursing home is completed, the Secretary may provide the purchaser of the home with any other information about a scale of fees or a notional scale of fees determined in respect of the home that, in the Secretary’s opinion, the purchaser should have.
“(4) The Secretary may provide the purchaser of the home with any information about a grant of Commonwealth benefit (if any) made in respect of the home.”.
20. Section 105AB of the Principal Act is amended by inserting before subsection (1) the following subsection:
“(1AA) An application may be made to the Tribunal for the review of a decision by the Minister under subsection 46D(8).”.
No. 95, 1953, as amended. For previous amendments, see No. 68, 1955; Nos. 55 and 95, 1956; No. 92, 1957; No. 68, 1958; No. 72, 1959; No. 16, 1961; No. 82, 1962; No. 77, 1963; No. 37, 1964; Nos. 100 and 146, 1965; No. 44, 1966; Nos. 14 and 100, 1967; No. 100, 1968; No. 102, 1969; No. 41, 1970; No. 85, 1971; No. 114, 1972; Nos. 49 and 202, 1973; No. 37, 1974; Nos. 1, 13 and 93, 1975; Nos. 1, 60, 91, 99, 108, 157 and 177, 1976; Nos. 98 and 100, 1977; Nos. 36, 88, 132 and 189, 1978; Nos. 54, 91 and 122, 1979; Nos. 117 and 131, 1980; Nos. 40, 74, 92, 118, 163 and 176, 1981; Nos. 49, 80 and 112, 1982; Nos. 35, 54 and 139, 1983; Nos. 46, 63, 72, 120, 135 and 165, 1984; Nos. 24, 53, 65, 70, 95, 127 and 167, 1985; Nos. 28, 75, 94 and 115, 1986; Nos. 22, 44, 72, 118, 131 and 132, 1987; Nos. 79, 87, 99 and 155, 1988; No. 95, 1989; Nos. 3, 84, 106 and 141, 1990; Nos. 6, 68, 70, 73, 83, 84, 115, 116, 119, 122, 141, 169, 175, 208 and 211, 1991; and Nos. 70, 81, 88 and 136, 1992.
[Minister’s second reading speech made in—
House of Representatives on 4 November 1992
Senate on 12 November 1992]