Commonwealth of Australia Explanatory Memoranda

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HEALTHCARE IDENTIFIERS (CONSEQUENTIAL AMENDMENTS) BILL 2010

                               2008-2009-2010




               THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA




                                   SENATE




                      HEALTHCARE IDENTIFIERS BILL 2010

         HEALTHCARE IDENTIFIERS (CONSEQUENTIAL AMENDMENTS) BILL 2010







                    SUPPLEMENTARY EXPLANATORY MEMORANDUM




             Amendments to be Moved on Behalf of the Government











     (Circulated by the authority of the Minister for Health and Ageing,
                       The Honourable Nicola Roxon MP)
             AMENDMENTS TO THE HEALTHCARE IDENTIFIERS BILL 2010

OUTLINE

The purpose of these amendments is to:

(a)  remove the ability for the regulations to prescribe a service
      operator;

(b)  ensure that, subject to appropriate safeguards, service providers that
      supply certain information technology and health information
      management services under contract ("contracted service providers")
      are able to carry out tasks on behalf of healthcare providers in
      relation to the Healthcare Identifiers Service; and

(c)  clarify the operation of a number of clauses.

Identity of the service operator

Subclause 6(1) of the Healthcare Identifiers Bill 2010 (the "Bill")
provides that the Chief Executive Officer of Medicare Australia is the
service operator of the Healthcare Identifiers Service.  However, subclause
6(2) provides that the regulations may prescribe another person to be the
service operator instead.

The amendments will remove the ability for the regulations to prescribe
another person as the service operator.

Contracted service providers

Clause 36 of the Bill provides that, where an entity is authorised under
the Bill for a particular purpose, that authorisation applies to a person
employed by the entity whose duties involve supporting that purpose.  As
stated in the Explanatory Memorandum to the Bill:

    This clause [36] will enable for example, nominated employees of
    healthcare providers to use and disclose healthcare identifiers where
    their employer is authorised to do so. This recognises the roles that
    employees may have. The authorisation of employees who do not have a
    healthcare identifier to access the Healthcare Identifiers Service is
    subject to the requirements set out in clause 17, i.e. where the entity
    has given notice of the authorisation to the service operator.


There are a number of contracted service providers that supply information
technology and health information management services to healthcare
providers to assist healthcare providers manage and communicate health
information.  The authorisation in current clause 36 of the Bill does not
extend to contracted service providers, or their employees.

The amendments ensure that arrangements which healthcare providers have
entered into, or might enter into, with contracted service providers are
not precluded under the Bill or the regulations.  The primary amendment is
to clause 36 of the Bill.  To support that amendment, a new definition of
contracted service provider will be inserted into clause 5 and a number of
consequential amendments will made to other clauses of the Bill.

The amendments establish appropriate safeguards by only authorising
contracted service providers to act on behalf of healthcare providers in
certain circumstances.

The amendments do not extend authorisation to sub-contractors of contracted
service providers.

Authorisations

The authorisation for the application of provisions of the Act differ.  In
some provisions, the authorisation is expressly stated to apply to 'this
Act and the regulations'.  In other instances the authorisations are stated
to apply 'under this Act'.

To remove doubt a new definition is to be included under section 5 to
provide that use of the term "under this Act" includes under the
regulations and other necessary changes made to refer to the regulations
where appropriate.


  AMENDMENTS TO THE HEALTHCARE IDENTIFIERS (CONSEQUENTIAL AMENDMENTS) BILL
                                    2010

OUTLINE

The purpose of these amendments is to make a number of minor amendments to
the Bill (once enacted) to refer to the Information Commissioner, rather
than the Privacy Commissioner.  These amendments will take place once the
relevant provisions of the Australian Information Commissioner Act 2010
commence.


FINANCIAL IMPACT STATEMENT

There will be no financial impact as a result of the amendments.

HEALTHCARE IDENTIFIERS BILL 2010

NOTES ON AMENDMENTS

Amendment 1

This amendment inserts a new definition of contracted service provider in
clause 5 of the Bill.

To fall within the definition of contracted service provider, an entity
must provide information technology services relating to communication of
health information or health information management services under contract
to a healthcare provider.  The types of services that fall within the
definition would include, for example, secure electronic messaging services
to allow communications between healthcare providers and services that
establish a secure electronic connection between a healthcare provider and
the service operator to allow the downloading of healthcare identifiers.

The definition of contracted service provider is intended to ensure that
only those service providers who supply the prescribed services under
contract are authorised under amended clause 36 of the Bill.

Amendment 2

This amendment replaces the definition of service operator in clause 5 of
the Bill with a new definition which provides that service operator means
the Chief Executive Officer of Medicare Australia.

As a result of this amendment, any future decision to replace the Chief
Executive Officer of Medicare Australia as the service operator will
require the Bill (once enacted) to be amended.  This will allow the
Australian Parliament to fully scrutinise any proposal to replace the Chief
Executive of Medicare Australia as the service operator.

Amendment 3

This amendment provides that under this Act includes under the regulations.
 This amendment fixes a technical drafting issue that, left unchanged, may
have limited the power to do certain things to those situations specified
in the Bill.

Amendment 4

This amendment will omit clause 6 of the Bill.  Clause 6 is no longer
required as a result of the amended definition of service operator.


Amendments 5 to 9

These amendments insert a new subclause 17(1)(c) into the Bill, and make a
number of consequential changes to clause 17 and the notes to that clause.


New subclause 17(1)(c) provides that, for the purpose of an identified
healthcare provider communicating or managing health information as part of
providing healthcare to a healthcare recipient, the service operator is
authorised to disclose a healthcare identifier to a contracted service
provider of an identified healthcare provider so long as the healthcare
providers has, by notice to the service operator, authorised the contracted
service provider to act on its behalf under clause 17.

New subclause 17(1)(c) puts in place safeguards by requiring a contracted
service provider, to which disclosure is to be made, to be authorised by
the healthcare provider to which they are contracted.  This requirement is
similar to the authorisation that is currently necessary for employees who
do not have a healthcare identifier under existing subclause 17(1)(b).

Amendments 10 and 11

These amendments insert a new subclause 31(2)(c) into the Bill, and makes a
consequential change to clause 31.

New subclause 31(2)(c) provides that the service operator may disclose the
professional or business details of a healthcare provider who is listed in
the Healthcare Provider Directory to a contracted service provider of an
identified healthcare provider so long as the healthcare provider has, by
notice to the service operator, authorised the contracted service provider
to act on its behalf under clause 31.

New subclause 31(2)(c) puts in place safeguards by requiring a contracted
service provider, to which disclosure is to be made, to be authorised by
the healthcare provider to which they are contracted.  This requirement is
similar to the authorisation that is currently necessary for employees
under existing subclause 31(2)(b).

Amendment 12

This amendment, which adds the words "and the regulations" to clause 35, is
to be made for the same reason as the changes under amendment 3.

Amendment 13

This amendment inserts a new clause 36 into the Bill.

New clause 36 states that where an entity (referred to as the first entity)
is authorised under the Bill for a particular purpose, the authorisation
applies to:

    . an individual employed by the first entity whose duties involve
      implementing that purpose;


    . a contracted service provider of the first entity provided that the
      first entity is a healthcare provider and the duties of the contracted
      service provider involve implementing that purpose by providing
      information technology services relating to the communications of
      health information, or health information management services, to the
      healthcare provider; or

    . an individual employee of a contracted service provider mentioned
      immediately above whose duties involve implementing that purpose.

New clause 36 recognises the role that employees of healthcare providers,
contracted service providers and employees of contracted service providers
may have.  The authorisation of employees who do not have a healthcare
identifier to access the Healthcare Identifiers Service, and contracted
service providers, is subject to the requirements set out in clauses 17 and
31, i.e. where the healthcare provider has given notice of the
authorisation to the service operator.

Amendments 14 to 16

These amendments, which add the words "or the regulations" and "and the
regulations" to clause 37, are to be made for the same reason as the
changes under amendment 3.

HEALTHCARE IDENTIFIERS (CONSEQUENTIAL AMENDMENTS) BILL 2010

NOTES ON AMENDMENTS

Amendment 1

This amendment specifies when the changes outlined below commence.

Amendment 2

This amendment inserts a new Schedule 3 into the Healthcare Identifiers
(Consequential Amendments) Bill 2010.  The amendments (when they commence
in accordance with the timeframes specified in amendment 1) will amend the
Bill (once enacted) to refer to the Information Commissioner rather than
the Privacy Commissioner.  These amendments are necessary as a result the
Australian Information Commissioner Act 2010.