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2022-2023 THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA HOUSE OF REPRESENTATIVES HEALTH INSURANCE AMENDMENT (PRESCRIBED DENTAL PATIENTS AND OTHER MEASURES) BILL 2023 EXPLANATORY MEMORANDUM (Circulated by authority of the Minister for Health and Aged Care, the Hon Mark Butler MP)HEALTH INSURANCE AMENDMENT (PRESCRIBED DENTAL PATIENTS AND OTHER MEASURES) BILL 2023 OUTLINE The purpose of the Health Insurance Amendment (Prescribed Dental Patients and Other Measures) Bill 2023 (the Bill) is to amend the Health Insurance Act 1973 (the Act) to: • improve access to the Medicare Benefits Schedule for eligible persons requiring treatment for cleft and craniofacial conditions by removing the age restrictions in Section 3BA of the Act, which defines 'prescribed dental patients' (Schedule 1); • enable Services Australia to use a computerised system to action decisions made by a specified body to place doctors on, and remove doctors from, the Register of Approved Placements (Schedule 2); and • rectify inconsistencies between Part VD of the Act and the Health Insurance (Bonded Medical Program) Rule 2020 in relation to the length of a bonded participant's return of service obligation (RoSO), and make related amendments to further enhance the administration of the Bonded Medical Program to ensure it can achieve its original policy intent (Schedule 3). Schedule 1 - Amendments relating to prescribed dental patients Schedule 1 to the Bill amends the Act to improve access to Medicare benefits for eligible persons requiring ongoing treatment for their cleft and craniofacial conditions. To be eligible for Medicare benefits under current arrangements, people with cleft and craniofacial conditions must satisfy specific age requirements defined by section 3BA 'Prescribed dental patients' of the Act. An age limit of 22 years was established on the basis that patients with cleft and craniofacial conditions would generally have completed most specialist dental work associated with their condition once their facial maturation was complete. However, the age limitations have created difficulties for some patients who do not reach facial maturity by the age of 22 years. The removal of age limits does not change the policy intent of the scheme, as services provided under the Medicare Benefits Schedule (MBS) must still be associated with a course of major dental or skeletal treatment to correct or improve primary growth and developmental irregularities, or if clinically relevant, undertake repairs that are in connection with that course of treatment. The Bill allows a small cohort of patients currently denied Medicare reimbursement for treatment based on age alone, to access Medicare benefits for the treatment that they need. The Bill also confers eligibility to Medicare benefits for disadvantaged patients who have been unable to access treatment before reaching age 22, or those who have had their treatment delayed beyond age the age of 22, for example due to COVID-19. The Bill will not significantly alter average patient numbers and will support improvements to patient treatment plans. 1
Schedule 2 - Amendments relating to register of approved placements Schedule 2 to the Bill ensures that the Chief Executive Medicare can allow Services Australia to develop a computerised system to action decisions made by a specified body to place doctors on, and remove doctors from, the Register of Approved Placements. To be eligible to access a Medicare benefit, doctors who have made a permanent commitment to Australia must either hold fellowship of an Australian medical college or participate in an approved workforce or training program. A medical practitioner who is granted entry into these programs must be placed on the Register of Approved Placements. Workforce and training programs are managed by a specified body who is also responsible for determining eligibility. The specified bodies are listed in the Regulations and include the Department of Health and Aged Care and the general practice colleges. Services Australia administers the Register of Approved Placements based on notices provided by the specified body. Services Australia does not make an independent assessment or decision, rather, they process the notices provided by the specified body in order to facilitate Medicare access. Schedule 3 - Amendments relating to the bonded medical program The Bonded Medical Program provides a Commonwealth-supported place in a course of study in medicine at an Australian university in exchange for a participant completing a Return of Service Obligation (RoSO) working as a doctor in a regional, rural, or remote community. Schedule 3 to the Bill corrects the inconsistency between references to 'three years' and '12 months' in Part VD of the Act and the definitions of how a participant can accrue a 'week' of RoSO (as outlined in the definitions of a 'full-time basis', 'part- time basis' and 'per-day basis' contained in section 4 of the Health Insurance (Bonded Medical Program) Rule 2020), such that all references are expressed in weeks. The amendments will also ensure that the Minister has the authority to make 'Rules' in relation to how a week of RoSO will be calculated. This will provide clarity to bonded participants whilst also supporting the preferred mechanism of automated RoSO calculation in the Bonded Return of Service System (BRoSS). BRoSS is the online web portal that supports bonded participants to self-manage their participation in the Bonded Medical Program. Further minor amendments will enhance administrative arrangements, including that an appropriate balance is struck between not having the administrative penalty automatically apply to bonded participants seeking to comply with their reporting obligations, whilst still allowing an administrative penalty to be applied to recalcitrant bonded participants. Financial Impact Statement Nil. 2
Statement of Compatibility with Human Rights Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 HEALTH INSURANCE AMENDMENT (PRESCRIBED DENTAL PATIENTS AND OTHER MEASURES) BILL 2023 This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. Overview of the Bill The purpose of the Health Insurance Amendment (Prescribed Dental Patients and Other Measures) Bill 2023 (the Bill) is to amend the Health Insurance Act 1973 (the Act) to: • improve access to the Medicare Benefits Schedule (MBS) for eligible persons requiring treatment for cleft and craniofacial conditions (Schedule 1); • enable Services Australia to use a computerised system to action decisions made by a specified body to place doctors on, and remove doctors from, the Register of Approved Placements (Schedule 2); and • rectify inconsistencies between Part VD of the Act and the Health Insurance (Bonded Medical Program) Rule 2020 in relation to the length of a bonded participant's return of service obligation (RoSO), and make related amendments to further enhance the administration of the Bonded Medical Program, to ensure it can achieve its original policy intent (Schedule 3). Human rights implications The Bill engages the right to health through the following articles of the International Covenant on Economic, Social and Cultural Rights (ICESCR): • Article 12(1): The right of individuals to the enjoyment of the highest attainable standard of physical and mental health. • Article 6: The right to work, including the right of everyone to the opportunity to gain a living by work which he/she freely chooses or accepts, and will take appropriate steps to safeguard this right. • Article 7(c): The right of everyone to the enjoyment of just and favourable conditions of work, including equal opportunity for everyone to be promoted in his/her employment to an appropriate higher level, subject to no considerations other than those of seniority and competence. The Bill assists with the progressive realisation of the right of all individuals to enjoy the highest attainable standard of physical and mental health. This is achieved through the obligation to provide timely and appropriate health care, which is 'available, accessible, acceptable, and of a high quality'. Accessibility includes both physical 3
accessibility to health services and economic accessibility, namely the provision of health services which are affordable to all, through the MBS. Schedule 1 - Prescribed dental patients Schedule 1 to the Bill engages the right to health in Article 12(1) of the ICESCR. Right to health The Bill improves access to Medicare benefits for eligible persons requiring ongoing treatment for cleft and craniofacial conditions and recognises the extent of clinical conditions treated under the scheme. The Bill allows a small population of patients, who are currently denied Medicare reimbursement for treatment based on age alone, to access Medicare benefits for the treatment they require. This includes patients such as those who, before reaching the age of 22 years, are denied treatment by their parents, or patients whose treatment has been delayed; for example, due to the COVID-19 pandemic. Schedule 2 - Register of approved placements Schedule 2 to the Bill engages the right to health in Article 12(1), the right to work in Article 6, and the right of just and favourable conditions of work in Article 7(c) of the ICESCR. Right to health The Bill amends the Act to provide an opportunity to streamline administrative processes for medical practitioners placed on the Register of Approved Placements. It also allows the Chief Executive of Medicare to correct any incorrect action that has been identified or notified to Services Australia. Medical practitioners who need to be placed on the Register of Approved Placements will be restricted from accessing a Medicare benefit. Providing medical practitioners with a digital option to replace the manual application process will reduce the timeframe for access to Medicare benefits, thereby allowing medical practitioners to provide services to the community sooner. Right to work The Bill will support the right to work under Articles 6 and 7(c) of the ICESCR by supporting the rights of medical practitioners, specialists and consultant physicians to gain equitable and timely access to Medicare rebates, which directly affects their employability in private practice. Medical practitioners who need to be placed on the Register of Approved Placements will not be able to provide Medicare eligible services to patients until the placement is granted. The vast majority of workforce and training programs on the Register of Approved Placements support general practice. Due to the range of general practice services available, patients are unlikely to attend a practice if a Medicare benefit is not payable. This will have the practical effect of preventing these medical practitioners from working. The Bill will provide an opportunity to reduce the timeframes for access to Medicare benefits, thereby supporting medical practitioners to gain or maintain employment in general practice. 4
Schedule 3 - Bonded medical program Schedule 3 to the Bill engages the right to work in Article 6 and the right to health in Article 12(1). The Bill amends the Act to implement improvements to the Bonded Medical Program established under Part VD of the Act. The Government is committed to better distributing the medical workforce to regional, rural and remote communities, which on average have less access to doctors than people in metropolitan areas. The Bonded Medical Program provides a Commonwealth-supported place in a course of study in medicine at an Australian university in exchange for a participant completing a Return of Service Obligation (RoSO) working as a doctor in a regional, rural or remote community. The Bonded Medical Program commenced on 1 January 2020, replacing legacy contract-based schemes with new, simpler arrangements. Since 2020, new medical students at Australian universities have entered directly into the Bonded Medical Program. It is intended that participants in two legacy schemes - the Medical Rural Bonded Scholarship (MRBS) Scheme and the Bonded Medical Places (BMP) Scheme - can decide whether to opt in to the Bonded Medical Program, where many have. The Bill will enhance implementation of the Program. The proposed amendments will address unintended consequences - related to the application of the administrative penalty - in the interests of participants and will also support achievement of the Commonwealth's Program objectives. Right to Work In this context, the current Bonded Medical Program provides participants with flexibility to work with limited restriction. It provides full opportunity for entrants to voluntarily apply to register in the Bonded Medical Program or for legacy scheme participants (includes existing MRBS Scheme and BMP Scheme participants) to voluntarily opt in. The amendments in the Bill address unintended consequences for participants and simplify how they might complete their RoSO. Due to the options available to participants to choose in which eligible location and when to work over an 18 year period, there would be very limited restriction on the participant's right to work. The limited restriction that will exist is in keeping with the benefit provided to participants of a Commonwealth supported place in a course of study in medicine at an Australian university and a medical career. Right to Health The Bill enhances the implementation of the Bonded Medical Program. It further promotes equity of access to health services and, as such, supports the right to health by facilitating greater access to essential medical services in geographic areas in Australia identified as having less access to services. Participants will be required to complete their RoSO in a regional, rural or remote area or an area of workforce shortage which will improve health service delivery in 5
these areas. In turn, this will provide greater opportunity for people in these areas to access health services. The requirement to complete the RoSO is a limitation that is considered minimal and well balanced with the benefits to those living in regional, rural or remote areas and the objective of the Program to provide more access to medical services in those areas. Conclusion The Bill is consistent with Articles 6, 7(c) and 12(1) of the ICESCR. The Bill is compatible with human rights. The Hon Mark Butler MP, Minister for Health and Aged Care 6
HEALTH INSURANCE AMENDMENT (PRESCRIBED DENTAL PATIENTS AND OTHER MEASURES) BILL 2023 NOTES ON CLAUSES Clause 1 - Short Title Clause 1 provides that the title of the Act, once enacted, may be cited as the Health Insurance Amendment (Prescribed Dental Patients and Other Measures) Act 2023. Clause 2 - Commencement Clause 2 provides that: • Sections 1 and 2 of the Bill, and anything in the Bill not covered in Schedules 1, 2 and 3, commence on the day the Act receives the Royal Assent; • Schedules 1 and 2 of the Bill commence on 1 November 2023; and • Schedule 3 of the Bill commences, retrospectively, on 1 January 2020. Clause 3 - Schedule(s) Clause 3 provides that legislation specified in a Schedule to the Act is amended or repealed as set out in the applicable items in the Schedule, and any other item has effect according to its terms. This is a technical provision which gives operational effect to the amendments contained in the Schedules. SCHEDULE 1 -- PRESCRIBED DENTAL PATIENTS Health Insurance Act 1973 Item 1 - Subsection 3(1) (definition of accredited dental practitioner) Item 1 repeals the definition of an accredited dental practitioner in subsection 3(1), which specifies a dental practitioner who is accredited by the Minister in writing for the purposes of this definition. This is a consequential amendment subject to repealing section 3BA of the Act (refer to Item 4 of Schedule 1). Item 2 - Subsection 3(1) (definition of prescribed dental patient) Item 2 repeals the definition of a prescribed dental patient in subsection 3(1). This is a consequential amendment subject to repealing section 3BA of the Act (refer to Item 4 of Schedule 1). Item 3 - Subsection 3(1) (paragraph (ba) of the definition of a professional service) Item 3 amends the definition of a professional service for a prescribed dental patient by repealing paragraph (ba), which provides that a professional service specified in an item that is expressed to relate to a professional attendance by an accredited dental practitioner, being a clinically relevant service that is rendered by an accredited dental practitioner to a prescribed dental patient. This is a consequential amendment subject to repealing section 3BA of the Act (refer to Item 4 of Schedule 1). Item 4 - Section 3BA Item 4 repeals section 3BA which is in relation to prescribed dental patients. This change will confer eligibility for Medicare benefits to patients who were unable to attain treatment before reaching 22 years of age. 7
Item 5 - Subsection 3C(8) (paragraph (c) of the definition of health service) Item 5 amends the definition of a health service in subsection 3C(8) by repealing paragraph (c), which specifies that a health service means the supply of prostheses in connection with a service rendered by an accredited dental practitioner to a prescribed dental patient. This is a consequential amendment subject to repealing section 3BA of the Act (refer to Item 4). Item 6 - Subsection 3C(8) (paragraph (d) of the definition of health service) Item 6 amends the definition of a health service in subsection 3C(8) by amending paragraph (d) to remove the reference to other circumstances described in paragraph (c) of this subsection. This amendment specifies that a health service means the supply of prostheses in connection with dental treatment. This is a consequential amendment subject to repealing paragraph (c) of subsection 3C(8) (refer to Item 5 of Schedule 1). SCHEDULE 2 - USE OF COMPUTER PROGRAMS TO MANAGE REGISTER OF APPROVED PLACEMENTS Health Insurance Act 1973 Item 1 - After section 3GB Item 1 inserts a new section 3GC Use of computer programs to manage Register of Approved Placements after section 3GB of the Act to provide for the use of computer programs to manage the Register of Approved Placements. New subsection 3GC (1) provides the Chief Executive Medicare may arrange the use, under the Chief Executive Medicare's control, of computer programs for taking actions required by section 3GA (Register of Approved Placements) or section 3GB (Removal of Approved Placements) of the Act. Streamlining the processing of applications for Medicare Provider Numbers has been identified as crucial to supporting doctors to take up training programs, particularly general practitioner training. This commitment relates to the broader 2021-22 Budget measure Guaranteeing Medicare- changes to the Medicare Benefits Schedule to provide $33.5 million over four years from 2021-22 to respond to recommendations from the Medicare Benefits Schedule (MBS) Review Taskforce to align the MBS with contemporary practice, tighten clinical indicators, list new items, remove obsolete items, and restrict inappropriate co-claiming. This subsection allows advice regarding approval to place individual doctors on approved programs by the authorised body to be transmitted to Services Australia electronically, and for the Register of Approved Placements to be updated electronically on the basis of this approval. New subsection 3GC(2) states that an action completed electronically is taken to be an action by the Chief Executive Medicare. The purpose of this new subsection ensures electronic recording of an approved placement on, or removal from the Register of Approved Placements remains within the delegation of the Chief Executive Medicare. 8
New subsection 3GC(3) gives the Chief Executive Medicare discretion to substitute an action made under subsection (2) if the Chief Executive Medicare is satisfied that the action taken by the operation of the computer program is incorrect. SCHEDULE 3 - BONDED MEDICAL PROGRAM Health Insurance Act 1973 Item 1 - Subsection 124ZF(1) Item 1 amends subsection 124ZF(1) of the Act by replacing "3 years" with "156 weeks". This change will provide that a bonded participant must work as a medical practitioner in an eligible location for a period of 156 weeks, as opposed to 3 years. Requiring bonded participants to complete their return of service obligation (RoSO) in an amount of weeks rather than years simplifies this requirement by making it consistent with how RoSO is calculated under the Health Insurance [Bonded Medical Program] Rule 2020 and allows for automated calculation in the Bonded Return of Service System (BRoSS) (which is referred to as the 'web portal' in Part VD of the Act). The number of weeks that will be required is to the benefit of the bonded participant, noting that 156 weeks is slightly shorter than 3 years. Item 2 - Paragraph 124ZG (1) (e) Item 2 amends paragraph 124ZG(1)(e) by replacing "as soon as practicable after the request is made" with "by the end of the period specified in the request or, if that period is extended under subsection (4), by the end of the extended period". This change will afford a bonded participant an appropriate period to respond to the request for information from the Secretary. Item 3 At the end of section 124ZG Item 3 amends section 124ZG which relates to the conditions of the Bonded Medical Program, by inserting two new subsections. New subsection 124ZG(3) provides that for the purposes of paragraph 124ZG(1)(e) which relates to the Secretary requesting information or documents from the bonded participant, the request must be made in writing, and that the specified period must not end sooner than 14 days after the day the request is made. New subsection 124ZG(4) provides that the Secretary may, by written notice given to the bonded participant, extend the period specified in a request made as mentioned in paragraph (1)(e). Item 4 Paragraph 124ZK(1)(b) Item 4 amends paragraph 124ZK(1)(b) by removing "(d) or" . This change will provide that a person is liable for an administrative penalty if the person is a bonded participant, and breaches a condition mentioned in paragraph 124ZG(1)(e), which relates to the Secretary requesting information or documents from the bonded participant. 9
Item 5 After paragraph 124ZT(3)(b) Item 5 amends paragraph 124ZT(3) which provides for matters that the Bonded Medical Program may include, to insert a new matter (ba) "how to calculate a week for the purposes of the 156 week period mentioned in subsection 124ZF(1), including when a week commences and the hours that constitute a week of work;". This amendment clarifies that it is within the scope of the Minister's authority to make a 'rule' specifying that a week, for the purposes of calculating RoSO, will commence on a Sunday and finish on the following Saturday. Similarly, the amendment clarifies that the Minister can make 'rules' defining the amount of effort required, in any given period, that would constitute 'eligible work' to count towards the RoSO. Combined, these amendments will provide clarity to bonded participants on how the Bonded Medical Program will be administered. Item 6 Paragraph 124ZV(2)(a) Item 6 amends paragraph 124ZV(2)(a) by replacing "3 years" with "156 weeks". This change is consistent with the change outlined Item 1 above. Item 7 Paragraph 124ZV(2)(b) Item 7 amends paragraph 124ZV(2)(b) by replacing "3 years" with "156 weeks". This change is consistent with the change outlined Item 1 above. Item 8 - Paragraph 124ZV(2)(b) Item 8 amends paragraph 124ZV(2)(b) by replacing "12 months" with "52 weeks". Consistent with the change outlined Item 1 above, all bonded participants will have their RoSO in an amount of weeks. There are some bonded participants - being those described in s124ZE(2) that have opted-in to the Bonded Medical Program from the Bonded Medical Places Scheme - who, based on their personal circumstances of having joined that Scheme in the years 2016 through 2019, had a RoSO of 12 months, as opposed to a longer period for other bonded participants described under s124ZE(1)-(3). Section 124ZV(2)(b) clarifies that these bonded participants carry forward the shorter amount of RoSO into the Bonded Medical Program. The change simply converts that amount of RoSO from a period of '12 months', to a period of '52 weeks'. Item 9 - Paragraph 124ZW(2)(a) Item 9 amends paragraph 124ZW(2)(a) by replacing "3 years" with "156 weeks". This change is consistent with the change outlined Item 1 above. 10
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