Social Security (Long-term Residential Care) Amendment Act 2004

1: Title
1: This Act is the Social Security (Long-term Residential Care) Amendment Act 2004.
2: In this Act, the Social Security Act 1964 the principal Act
1: Preliminary
2: Commencement
This Act comes into force on 1 July 2005.
3: Purpose
The purpose of this Act is to amend, consolidate, and clarify provisions relating to long-term residential care provided to older people, and in particular—
a: to progressively increase the value of assets that people may retain before being required to use their assets to pay for the cost of contracted care services provided to them; and
b: to provide that people aged 50 to 64 who are single
c: to clarify the obligations of people receiving long-term residential care in a hospital or rest home to pay for that care; and
d: to clarify the funder's obligations to pay for contracted care services associated with long-term residential care; and
e: to limit the amount that residents who are assessed as requiring long-term residential care indefinitely are required to pay for that care; and
f: to clarify the procedures associated with needs assessment; and
g: to amend the means assessment and clarify the procedures associated with it. Paragraph (b) amended 1 July 2005 7 Social Security Amendment Act 2005 by substituting the word single unmarried
2: Amendments to principal Act
4: Minor amendments to principal Act relating to new Part 4
1: Section 61EA(4) paragraph (c)
c: is a resident assessed as requiring care (as defined in section 136 section 141 or section 142
2: Section 69C(5)﻿(b) subparagraph (ii)
ii: a resident assessed as requiring care (as defined in section 136 section 141 or section 142
3: Section 75(3) a person who is a patient in a hospital receiving residential care disability services that are wholly or partly funded under the New Zealand Public Health and Disability Act 2000 section 69F of this Act a person who is a resident assessed as requiring care (as defined in section 136 section 141 or section 142 Long-term residential care
5: New Part 4 inserted
The principal Act is amended by inserting, after section 135
4: Long-term residential care in hospital or rest home
136: Interpretation
In this Part, unless the context otherwise requires,— applicable asset threshold Part 1 of Schedule 27 contracted care
a: services that are provided to a resident assessed as requiring care that are—
i: provided in a hospital or rest home; and
ii: provided and paid for in accordance with an agreement made under the New Zealand Public Health and Disability Act 2000 section 88 of that Act
b: in relation to a person, the kinds of services referred to in paragraph (a) cost of contracted care services New Zealand Public Health and Disability Act 2000 section 88 of that Act date of means assessment section 145 DHB section 19 of the New Zealand Public Health and Disability Act 2000 elderly victim of crime section 155 eligible person
a: is either—
i: aged 65 or over; or
ii: aged between 50 and 64, and is single
b: is eligible for publicly funded health and disability services under an Eligibility Direction issued under section 32 section 112, of the New Zealand Public Health and Disability Act 2000 exempt person section 155 funder New Zealand Public Health and Disability Act 2000 maximum contribution Gazette section 152 needs assessment section 137 provider region resident assessed as requiring care
a: has been needs assessed as requiring long-term residential care in a hospital or rest home indefinitely; and
b: is receiving contracted care services from a provider. Needs assessment
137: Needs assessment
1: A DHB may conduct a needs assessment of an eligible person at any time.
2: An eligible person may apply at any time to a DHB for a needs assessment.
3: A needs assessment of an eligible person must ascertain whether the person requires long-term residential care in a hospital or rest home indefinitely.
4: A DHB that receives a request under subsection (2)
5: The date of a person's needs assessment is the date shown as such on the assessment.
6: A copy of the assessment must be provided to—
a: the person to whom it applies; and
b: the provider (if any) who is currently providing long-term residential care to the person.
7: For the purposes of a needs assessment (and, in particular, consent to a needs assessment), the Code of Health and Disability Services Consumers' Rights (made under section 74 of the Health and Disability Commissioner Act 1994
a: the needs assessment were a service; and
b: the person assessed were a consumer of that service; and
c: the DHB or its delegate were a provider of that service.
138: Effect of being assessed as requiring long-term residential care in hospital or rest home indefinitely
1: An eligible person who has been needs assessed as requiring long-term residential care in a hospital or rest home indefinitely—
a: is or becomes a resident assessed as requiring care if he or she receives contracted care services from a provider, and sections 139 to 142
b: is entitled, under section 144 Schedule 27
2: When a person is notified of the results of a needs assessment, the DHB must advise the person to whom it relates—
a: of the amount of the maximum contribution; and
b: of the person's and the funder's respective liabilities under sections 139 to 142
c: about how to apply for a means assessment. Liability to pay
139: Personal obligation to pay for care
1: A resident assessed as requiring care is liable to pay the cost of contracted care services provided to him or her.
2: The most that a resident assessed as requiring care may be required to pay towards the cost of contracted care services provided to him or her is the maximum contribution.
3: The amount that a resident assessed as requiring care is liable to pay under subsection (1) sections 140, 141, or 142
4: Nothing in this section affects the liability of a resident assessed as requiring care to pay, under an agreement between the resident and a provider, for any services provided to the resident that are not contracted care services.
140: Funder's liability in respect of persons whose assets are above applicable asset threshold or who have not been means assessed
1: This section applies to—
a: a resident assessed as requiring care who has been means assessed and found to have assets above the applicable asset threshold; and
b: a resident assessed as requiring care who has not been means assessed, or for whom the result of a means assessment is not yet known.
2: If the cost of contracted care services provided to a person to whom this section applies exceeds the maximum contribution, the funder must pay the difference between the maximum contribution and the cost of contracted care services provided to the person.
3: The funder's liability under subsection (2)
a: the date on which the person is needs assessed as requiring long-term residential care in a hospital or rest home indefinitely; or
b: the date on which the person commences receiving contracted care services from a provider.
141: Funder's liability in respect of persons whose assets are equal to or below applicable asset threshold
1: This section applies to a resident assessed as requiring care who—
a: has been means assessed as to assets under Part 2 of Schedule 27
b: has had a contribution determined following a means assessment as to income under Part 3 of Schedule 27
2: In the case of a person to whom this section applies, the funder must pay the difference between the cost of contracted care services provided to the person and the person's contribution determined following a means assessment as to income.
3: The funder's liability under subsection (2) subsection (4)
4: If the person's assets are equal to or less than the applicable asset threshold more than 28 days before the date of means assessment that establishes that fact, the funder's liability arises on the date that is 28 days before the date of means assessment.
142: Funder's liability in respect of exempt persons and elderly victims of crime
1: In the case of an exempt person, the funder must pay the difference between the cost of contracted care services provided to the person and the amount of any benefit received by the person under this Act.
2: In the case of an elderly victim of crime, the funder must pay the full cost of contracted care services provided to the person.
3: The funder's liability under subsection (1) or subsection (2)
a: on the date on which the person, being a resident assessed as requiring care, is confirmed under regulations made under section 155
b: in the case of a person to whom section 10 of the Social Security (Long-term Residential Care) Amendment Act 2004
143: Residents assessed as requiring care aged 50 to 64 not required to pay out of assets
1: This section applies to every resident assessed as requiring care who is aged 50 to 64 years, is single
2: Every person to whom this section applies must be treated for the purposes of section 141
3: By way of explanation, the effect of subsection (2)
a: may not be means tested as to assets, and, if the person has already been means tested as to assets, the result of that test is to be disregarded; and
b: is not required to pay for contracted care services out of assets, but is required to pay only the contribution (as determined by a means test as to income under Part 3 of Schedule 27 Means assessment
144: Application for means assessment
1: An eligible person who has been needs assessed as requiring long-term residential care in a hospital or rest home indefinitely may apply at any time for a means assessment.
2: An application for a means assessment must be made on a form provided for the purpose by the chief executive.
3: The chief executive must arrange for a means assessment to be conducted as soon as practicable after receiving an application.
145: Date of means assessment
In this Part, date of means assessment
a: in the case of a first means assessment conducted under this Part, the date on which the application for the means assessment is received:
b: in the case of a review of a means assessment for which the person has applied under section 150(1)﻿(a)
c: in the case of a review under section 150(1)﻿(b)
d: in the case of a review under section 150(1)﻿(c)
e: in the case of a review under section 150(2)
146: Means assessment as to assets
1: The first stage of a means assessment is a means assessment as to assets, conducted under Part 2 of Schedule 27
2: The means assessment as to assets must assess the value of the non-exempt assets of the person as at the date of means assessment and must determine whether those assets are above, equal to, or less than the applicable asset threshold.
3: By way of explanation, if a person's assets are assessed as being above the applicable asset threshold, the person must (in accordance with section 139 section 140
147: Means assessment as to income
1: The second stage of a means assessment is a means assessment as to income, conducted under Part 3 of Schedule 27
2: A means assessment as to income must be conducted if the person's assets, as assessed by a means assessment as to assets, are equal to or less than the applicable asset threshold.
3: The means assessment as to income must assess the annual income of the person as at the date of means assessment and must determine a weekly contribution, up to the maximum contribution, that the person must pay from income towards the cost of contracted care services provided to the person.
4: A means assessment as to income must also determine—
a: whether the assets of the person became equal to or less than the applicable asset threshold more than 28 days before the date of means assessment; or
b: the date, being a date during the 28 days before the date of means assessment, on which the person's assets became equal to or less than the applicable asset threshold.
5: The purpose of subsection (4) section 141
148: Notice of means assessment (including reviews)
1: Every means assessment (including a reviewed means assessment), whether it relates only to assets or to both assets and income, must be in writing and a copy must be provided to the person to whom it relates.
2: The provider, the funder, and the Ministry of Health must be advised, with respect to every person who is means assessed or whose means assessment is reviewed, whether the person has assets above the applicable threshold or, if the person's assets are equal to or less than the applicable threshold, what the person's weekly contribution from income is assessed as being.
149: Obligation to advise change of circumstances and right to apply for review
1: Every person listed in subsection (2) or partner
a: knows or ought to know of the change of circumstances; and
b: knows or ought to know that the change might mean that the means assessment is no longer accurate.
2: The people with the obligation under subsection (1)
a: the person who has been means assessed:
b: the spouse or partner
c: the holder of an enduring power of attorney (given in accordance with Part 9 of the Protection of Personal and Property Rights Act 1988 or partner
d: the provider who provides services to the person who has been means assessed.
3: Every funder is obliged to take all practicable steps to ensure that every resident assessed as requiring care—
a: is advised of the right, under section 150(1)﻿(a)
b: is notified whenever a change is made to the tests used in means assessments (such as an increase to applicable asset thresholds, or a change to the personal allowance) that might mean that, if the person's means assessment were reviewed, the result would be different from the result of the person's latest means assessment.
150: Review of means assessment
1: The chief executive must review a person's means assessment in each of the following circumstances:
a: the person applies for a review on a form provided for the purpose by the chief executive:
b: the chief executive has reason to believe that there was a mistake in the earlier assessment, whether as a result of wrong information being supplied or otherwise:
c: in the case of a person who has a spouse or partner
i: the spouse or partner
ii: the death of the spouse or partner
iii: the chief executive determining under section 63 or partner
2: In the case only of a person who has been means assessed and been found to have assets above the applicable threshold, the chief executive may review the person's means assessment at any time if the chief executive considers that the person's assets have fallen, or are about to fall, to a level where they are equal to or less than the applicable asset threshold.
3: Nothing in subsection (2) subsection (1)﻿(a)
4: A review must assess the assets and, if necessary, the income of the person as at the date of means assessment.
5: Section 147(4)
151: Conjugal status for purpose of means assessment
1: The chief executive's discretion under section 63 single
2: The chief executive may not determine that, for the purposes of this Part, a person is single or partner
a: is a resident assessed as requiring care; or
b: has become unable to affirm his or her marriage or civil union Miscellaneous
152: Maximum contributions set by
Gazette
1: The Director-General of Health must, by notice in the Gazette
2: The amount of maximum contribution set for each region is the lowest amount that a funder in the region must pay (in accordance with agreements made under the New Zealand Public Health and Disability Act 2000 section 88 of that Act
3: However, if the amount identified under subsection (2)
153: Residential care loan scheme
A person who has been means assessed as to assets may apply for a loan under the residential care loan scheme operated by the Ministry of Health if—
a: the person's assets are above the applicable asset threshold; and
b: the person meets the criteria for eligibility for the residential care loan scheme as notified by the Director-General of Health in the Gazette
154: Clothing allowance
1: Regulations may be made under section 155
a: residents assessed as requiring care who have been means assessed and found to have assets equal to or less than the applicable asset threshold:
b: residents assessed as requiring care who have entered into a loan agreement with the Crown under the residential care loan scheme.
2: The amount of the clothing allowance must be set by regulations made under section 155
155: Regulations relating to this Part
1: The Governor-General may, by Order in Council, make regulations for all or any of the following matters:
a: prescribing the benefit entitlements and rates of benefit payable to the spouse or partner
b: identifying a class or classes of exempt persons:
c: prescribing how a person is to be assessed as being, or no longer being, an elderly victim of crime:
d: providing, in accordance with section 154
e: prescribing, for the purpose of means assessment, rules relating to deprivation of property, income, or both, and the circumstances in which those rules apply:
f: prescribing the gifting period and the allowable gifts, or the value of any allowable gifts, for the purpose of Part 2 of Schedule 27
g: amending the maximum value of pre-paid funerals for the purposes of paragraph (d) exempt assets Part 2 of Schedule 27
h: prescribing assets, or an amount of assets, that are exempt assets for the purpose of paragraph (f) exempt assets Part 2 of Schedule 27
i: increasing the income-from-assets exemption in accordance with subsection (2)
j: prescribing an amount or type of income, or an amount of a certain type of income, that is not to be included in a means assessment as to income, as provided for in paragraph (k) income Part 3 of Schedule 27
k: prescribing the amount of personal allowance, as defined in Part 3 of Schedule 27
l: providing for any other matters contemplated by this Part, necessary for its administration, or necessary for giving it full effect.
2: The income-from-assets exemption (as defined in Part 3 of Schedule 27
3: If the adjusted amount of income-from-assets exemption is not a whole number of dollars—
a: it must be rounded up to the nearest whole number of dollars; but
b: the adjustment made in the following year must be based on the income-from-assets exemption as it was before it was rounded up.
4: The Director-General of Health must, as soon as practicable after 1 July in each year, give notice in the Gazette
5: This section does not limit any other power given in this Act to make regulations. eligible person: paragraph (a)﻿(ii) in the new section 136 was amended 1 July 2005 7 Social Security Amendment Act 2005 by substituting the word single unmarried Subsection (1) amended 1 July 2005 7 Social Security Amendment Act 2005 by substituting the word single unmarried Subsections (1) (2)﻿(b) (c) amended 1 July 2005 7 Social Security Amendment Act 2005 by inserting the words or partner spouse Subsection (1)﻿(c) amended 1 July 2005 7 Social Security Amendment Act 2005 by inserting the words or partner spouse Subsections (1) (2) amended 1 July 2005 7 Social Security Amendment Act 2005 by substituting the word single unmarried Subsection (2) amended 1 July 2005 7 Social Security Amendment Act 2005 by inserting the words or partner spouse Subsection (2)﻿(b) amended 1 July 2005 7 Social Security Amendment Act 2005 by inserting the words or civil union Subsection (1)﻿(a) amended 1 July 2005 7 Social Security Amendment Act 2005 by inserting the words or partner spouse
6: New Schedule 27 substituted for Twenty-seventh Schedule
The principal Act is amended by repealing Schedule 27 Schedule 1 Transitional provisions
7: Definitions used for purpose of transitional provisions
In this section and sections 8 to 11 commencement date financial means assessment section 69F section 69F section 69F
8: Assessment as needing residential care disability services indefinitely to be treated as needs assessment under section 137
1: Every person who, immediately before the commencement date, had been notified as being, or had been treated as having been, assessed as requiring residential care disability services indefinitely (as referred to in section 69F(1) section 137
2: If an assessment has been conducted for the purposes of section 69F section 137
9: Financial means assessment under section 69F to be treated as means assessment under Part 4 of principal Act
1: The result of a financial means assessment conducted under section 69F Part 4
2: A copy of every financial means assessment under section 69F section 148
3: A financial means assessment conducted under section 69F section 150 Part 4 sections 146 147 Part 4 27
10: Exempt persons and elderly victims of crime
1: Until regulations are made under section 155
2: If, as a result of regulations referred to in subsection (1)
3: If, as a result of regulations referred to in subsection (1)
11: No refunds in respect of periods before commencement date
1: No person is entitled, as a result of this Act coming into force, to a refund of any amount that the person has paid, or to a rebate of any amount that the person is liable to pay, for residential care disability services provided before the commencement date.
2: No provider is entitled, as a result of this Act coming into force, to payment from a funder in respect of services provided to a person, or class of persons, before the commencement date.
3: However, nothing in subsection (1) (2) Related amendments
12: Related amendments to
New Zealand Superannuation and Retirement Income Act 2001
1: Section 17 New Zealand Superannuation and Retirement Income Act 2001 subsection (1)
1: This section applies to any person who is not a resident assessed as requiring care (as defined in section 136 of the Social Security Act 1964 or partner section 141 or section 142 of that Act
2: Section 17 New Zealand Superannuation and Retirement Income Act 2001 subsection (3)
3: Any benefit payable to a person to whom this section applies is not subject to abatement in respect of any income of the person that has been included in a means assessment of the person's spouse or partner Part 4 of that Act
3: Section 19 New Zealand Superannuation and Retirement Income Act 2001 subsection (5)
5: Subsection (3) section 136 of the Social Security Act 1964 section 141 or section 142 of that Act
4: Section 20(1)﻿(b) New Zealand Superannuation and Retirement Income Act 2001 subparagraph (ii)
ii: a resident assessed as requiring care (as defined in section 136 of the Social Security Act 1964 section 141 or section 142 of that Act The heading to section 12 amended 1 July 2005 9(1) New Zealand Superannuation and Retirement Income Amendment Act 2005 by substituting the words New Zealand Superannuation and Retirement Income Act 2001 New Zealand Superannuation Act 2001 Subsection (1) amended 1 July 2005 7 Social Security Amendment Act 2005 by inserting in the new s 17(1) the words or partner spouse Subsection (2) amended 1 July 2005 7 Social Security Amendment Act 2005 by inserting in the new s 17(3) the words or partner spouse Section 12 amended 1 July 2005 9(1) New Zealand Superannuation and Retirement Income Amendment Act 2005 by substituting the words New Zealand Superannuation and Retirement Income Act 2001 New Zealand Superannuation Act 2001 Consequential amendments
13: Consequential amendments to principal Act and other Acts
1: The principal Act is consequentially amended in the manner set out in Schedule 2
2: The Acts specified in Schedule 3
14: Consequential revocations
The following regulations are revoked:
a: Social Security (Asset Limits) Order 1998 (SR 1998/309)
b: Social Security (Disability Services-Financial Assessment) Regulations 1994 (SR 1994/32)