Provider obligations

Enforcing obligations

The transition to the new Act affects these enforcement activities:

agreements and requirements to agree where we have required providers to do specific things to protect older people and fix non-compliance
undertakings and enforceable undertakings where we have required providers to do something to respond to non-compliance
determinations relating to provider governance responsibilities where providers have requested to be exempt from these requirements
determinations relating to the suitability of key personnel where we have decided key personnel are not suitable to be involved in the delivery of funded aged care services
regulatory notices we have issued to providers to respond to non-compliance
sanctions issued to providers who have not complied with their obligations
suspension of provider approval
revocation of provider approval.

Agreements and requirements to agree

Agreements entered by providers in response to a requirement to agree will mostly transition to agreements under the new Act after Transition Day.

A provider subject to an agreement with us under a requirement to agree will still need to comply with the agreement.

If a provider has agreed to transfer places allocated to them under the old law, this agreement will end. This is because providers will not hold places under the new Act.

If a provider has agreed to transfer places allocated to them, and the transfer hasn’t happened by Transition Day, we will consider applying a condition of registration that achieves the same effect.

If a provider has agreed to provide training, securities or appoint an advisor, or made any other agreement, this agreement will transition to an equivalent agreement under the new Act.

We may also impose a condition on a provider’s registration to comply with an agreement. If they breach a condition, we can take compliance and enforcement action against them.

A condition may require the provider to:

not deliver care and services to new people
set a cap on the number of people they deliver care to
reduce the number of people they deliver care to by transferring them to another provider.

If the provider does not comply with the conditions in the agreement, we can revoke their registration or take other compliance and enforcement actions.

Undertakings and enforceable undertakings

Enforceable undertakings and undertakings will continue after Transition Day on the same terms providers entered them under the old law.

The wording of undertakings may need to be varied if they rely on specific provisions under the old law. Undertakings that simply require certain actions will not need to be varied.

Before Transition Day, we will review enforceable undertakings to decide if they need to be varied to transition to the new Act. If an undertaking needs to be varied, we’ll ask you to vary it with our consent. Providers can also ask to vary an undertaking to be consistent with the new Act.

From now to Transition Day, we’ll make sure that new enforceable undertakings specify the relevant old law, actions and deadlines. This is to make sure obligations are certain so providers can comply after transitioning to the new Act.

From Transition Day:

providers must comply with enforceable undertakings
we will record enforceable undertakings on the Provider Register \
providers must continue to comply with undertakings under section 63T of the Commission Act. The requirement includes actions they must take and when they must take them.

If a provider doesn’t comply with these undertakings, we will take a regulatory response. Instead of imposing sanctions, which do not exist under the new Act, we might vary or impose conditions on a provider’s registration.

Determinations of provider governance responsibilities

Determinations we made exempting provider governance responsibilities that finish on or after Transition Day will transition to an equivalent determination under new Act. They will have the same end date.

Providers can continue to rely on an exemption granted before Transition Day to meet their obligations under the new Act until the end date of the original exemption.

Determinations of suitability of key personnel

Determinations we have made on the suitability of key personnel that finish on or after Transition Day will transition to an equivalent determination under new Act. They will have the same end date.

Supporting processes, such as notices of intention to make a determination and specified end dates made under the old law, will transition to equivalent processes under the new Act.

A notice relating to a determination will be a notice issued under the new Act. This means we might pursue penalties under the new Act if you don’t comply with a notice issued under the old law.

If you don’t remove key personnel as required by a notice of determination made before Transition Day, you may face criminal prosecution and significant fines.

Regulatory notices

Regulatory notices issued before Transition Day will transition to equivalent regulatory notices under the new Act.

Compliance notices will transition to compliance notices under the new Act.

Notices of non-compliance allowing providers to make submissions in response to the notice after Transition Day will transition to a notice of possible variation under the new Act.

Notices to attend and answer questions, give information or produce documents will transition to equivalent notices under the new law.

The day for compliance with a notice issued under the old law will be taken to be the day specified for compliance for the purposes of the new Act.

Providers need to take any actions specified in regulatory notices issued before Transition Day. If they don’t comply with the requirement they may face penalties or other regulatory actions.

Sanctions

Sanctions restricting the services a provider can deliver or the payment of subsidies to a service will:

transition to conditions on registration
change to make sure they can take effect under the new Act.

Under the new Act, we have more options to deal with providers who don’t comply with a condition on registration. That includes regulatory notices, civil penalties, banning orders and varying, suspending or revoking registration.

Sanctions varying, revoking, suspending or prohibiting the allocation of places will end on Transition Day. Providers will not hold allocated places under the new Act.

Sanctions suspending, revoking or prohibiting extra service status will end on Transition Day. Extra service status will not exist under the new Act.

Sanctions prohibiting providers from charging accommodation payments, contributions or bonds will end on Transition Day. Providers will not collect these payments under the new Act.

Sanctions restricting the use of Refundable Accommodation Deposits will end on Transition Day. Lump sum deposits and their permitted uses will change under the new Act.

For sanctions that end on Transition Day, we’ll consider imposing conditions on registration under the new Act. This might include restricting the use of refundable deposits or imposing a cap on the number of people a registered provider can deliver funded aged care services to.

Sanctions requiring providers to refund or repay amounts paid to them will continue. Providers will need to comply with these sanctions after Transition Day.

Conditions on registration may be varied or revoked on our initiative or on application by the provider.

We will record Commissioner-imposed conditions on registration in the Provider Register.

Suspensions

Sanctions suspending provider approval that have not ended on Transition Day will transition to a suspension of registration under the new Act. These suspensions of registration will have the same end date as the sanctions suspending provider approval.

Applications to reconsider the suspension of registration will replace applications to lift sanctions suspending approval on Transition Day. After Transition Day:

suspensions of registration under the new Act are for 90 days or when we are satisfied the provider has met its requirements
providers will not be able to ask us to lift a sanction suspending approval or suspension of registration
our review and reconsiderations team will manage existing applications to lift a sanction suspending a provider’s approval
we will record suspensions in the Provider Register.

Transition to the new Act does not change that providers with suspended approval will not be able to receive subsidies until after we lift the suspension or it ends after 90 days.

We will send details of current suspensions to the Department. They will make sure providers do not receive subsidies after Transition Day.

Revocations

Revocations of approval will transition to revocation of registration under the new Act. This includes revocations we started and in response to a provider's application.

Where a sanction revokes approval but has not come into effect on Transition Day, it will transition to a notice of decision to revoke registration under the new Act.

Procedural fairness steps we take for revocation, such as a notice of intention to revoke approval, satisfy the equivalent requirements under the new Act.

If we have decided to revoke approval, the revocation will happen whether the notice of revocation day is before or after Transition Day.

If we have decided to revoke approval but have not made a notice of revocation day, we will issue the notice after Transition Day even though we made the decision before Transition Day.

This means:

revocation processes on Transition Day will continue
the date specified for revocation will continue as the date the provider’s registration will be revoked under the new Act.

We will record revocations in the Provider Register.

Transition to the new Act will not change: