Commonwealth Numbered Acts

COMMUNITY SERVICES AND HEALTH LEGISLATION AMENDMENT ACT (No. 2) 1989 No. 3 of 1990 - SECT 41

41. (1) After section 15 of the Principal Act the following sections are
inserted: Request for review

"15A. (1) A request to the Minister for a review referred to in subsection  14
(1):

   (a)  is to be made only on the appropriate authorised form; and

   (b)  is to be made within 42 days after the day on which notice of the
        Secretary's decision is served on the proprietor of the nursing home.

"(2) The request is to be taken not to have been made if the proprietor does
not, in the request, authorise the deduction of:

   (a)  the lodgment fee of $500 or, if the Minister has, by notice, fixed
        another amount, that other amount; and

   (b)  the Committee processing fee; from any amount or amounts payable to
        the proprietor under an agreement entered into under section 15 or
        under Part Va of the National Health Act  1953 .

"(3) Where a proprietor has, in a request, authorised the deduction of the
lodgment fee payable by the proprietor from any such amount or amounts, the
amount of the lodgment fee may be deducted accordingly.

"(4) A notice under paragraph (2) (a) is a disallowable instrument for the
purposes of section 46a of the Acts Interpretation Act 1901. Request for
review may be withdrawn

"15B. Where the proprietor of a nursing home has requested the Minister to
review a decision, the request may, at any time before the Minister has
confirmed or varied the decision, be withdrawn by notice in writing signed by
the proprietor and lodged with the Secretary. Refund of lodgment fee

"15C. (1) Where:

   (a)  a proprietor has requested the Minister to review a matter; and

   (b)  the lodgment fee has been deducted under subsection 15A (3) from any
        amount or amounts payable to the proprietor; the lodgment fee is to be
        refunded to the proprietor if:

   (c)  the request is withdrawn under section 15B before the end of the
        period of 42 days after the last day on which such a request could
        have been made; or

   (d)  the decision is varied by the Minister in a manner wholly or
        substantially favourable to the proprietor.

"(2) If, before the lodgment fee has been deducted under subsection 15A (3):

   (a)  the request is withdrawn under section 15B within the period referred
        to in paragraph (1) (c); or

   (b)  the decision is varied by the Minister in a manner that is wholly or
        substantially favourable to the proprietor; the lodgment fee is not to
        be so deducted. Referral of request to a Nursing Homes Advisory
        Committee

"15D. (1) Where a request for a review has not been withdrawn under section
15B, the Minister must, not earlier than the end of the period of 42 days
after the last day on which such a request could have been made, refer the
matter to the appropriate Nursing Homes Advisory Committee in accordance with
the agreement under section 15.

"(2) The Minister must not refer the matter to the Committee unless the
proprietor has provided the Minister with:

   (a)  a statement setting out fully and in detail the reasons for the
        request; and

   (b)  a copy of such accounts, books, documents and records as are relevant
        to the review of the decision by the Minister; and

   (c)  such information or documents as the Minister specifies under
        subsection (3).

"(3) The Minister may, by notice published in the Gazette, specify information
or documents that are to be provided to the Minister for the purposes of a
review.

"(4) The Minister may, by notice in writing given to the proprietor, require
the proprietor to supply to the Minister such further information or documents
as the Minister considers necessary for the purpose of deciding the request
and the Minister may refuse to refer the matter to the Committee until that
information or those documents, as the case requires, are supplied to the
Minister. Report of Committee

"15E. Without limiting the generality of the matters that may be included in
the report of the Committee, such a report is to contain a report of the days,
and the hours in those days, during which the Committee met to examine the
matter that is the subject of the report and is to specify the fee payable by
the proprietor of the nursing home to which the report relates, being the fee
calculated under section 15F. Committee processing fee

"15F. (1) The amount of the Committee processing fee is to be:

   (a)  if the relevant period does not exceed 4 hours-the prescribed amount;
        or

   (b)  if the relevant period exceeds 4 hours:

   (i)  in respect of each period of 4 hours included in the relevant
        period-the prescribed amount; and

   (ii) if the relevant period includes an additional period of less than 4
        hours - the prescribed amount in respect of that additional period.

"(2) The amount of the Committee processing fee is not to exceed $1,000 per
day, or, if the Minister has, by notice, fixed another amount, that other
amount.

"(3) Where a proprietor has in a request for review, authorised the deduction
of the Committee processing fee payable to the proprietor from any amount or
amounts payable to the proprietor, the amount of the Committee processing fee
may be deducted from the payment of any such amount or amounts.

"(4) The Committee processing fee may be recovered by the Commonwealth in a
court of competent jurisdiction as a debt due and payable to the Commonwealth.
"(5) A notice referred to in subsection (2) and in the definition of
'prescribed amount' in subsection (6) is a disallowable instrument for the
purposes of section 46A of the Acts Interpretation Act 1901.

"(6) In this section:
'prescribed amount' means $500 or, if the Minister has, by notice, fixed
another amount, that other amount;
'relevant period' means the period, or the aggregate of the periods, during
which the Committee met to examine the matter that is the subject of the
Committee's report. Ministerial review of decisions

"15G. The Minister must, after such investigation of the matter as the
Minister considers necessary, either confirm or vary the decision of the
Secretary, and advise the proprietor accordingly. Refund of Committee
processing fee etc.

"15H. Where:

   (a)  a proprietor has requested the Minister to review a decision; and

   (b)  the decision is varied in a manner that is wholly or substantially
        favourable to the proprietor; then:

   (c)  if the Committee processing fee has been deducted under subsection 15F
        (3) - the fee must be refunded to the proprietor; and

   (d)  if the Committee processing fee has not been so deducted - the fee
        must not be deducted.".

(2) Where:

   (a)  before the commencement of this section a proprietor had, under an
        agreement entered into under section 15 of the Principal Act,
        requested the Minister to review a matter; and

   (b)  the request had not, before that commencement, been referred to the
        appropriate Nursing Homes Advisory Committee; the Minister must, by
        notice in writing given to the proprietor of the nursing home, notify
        the proprietor that unless the proprietor, not later than 28 days
        after receipt of the Minister's notice, authorises the Minister to
        proceed with the request, the request is to be taken to have been
        withdrawn.

(3) Where the proprietor does not authorise the Minister to proceed with the
request as required by subsection (2), the request is to be taken to have been
withdrawn.

(4) Where the proprietor authorises the Minister to proceed with the request
under subsection (2):

   (a)  the request is to be taken to have been validly made under the
        agreement; and

   (b)  the fee specified in the Committee's report may be deducted from any
        amount or amounts payable to the proprietor under the agreement; and

   (c)  in the case of an authorisation that relates to a request made on or
        after 24 August 1988, an authorisation lodgment fee of $500 may be
        deducted from any amount or amounts payable to the proprietor under
        the agreement.