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2008-2009-2010
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
HEALTH INSURANCE AMENDMENT (PROFESSIONAL SERVICES REVIEW) BILL 2010
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Health and Ageing, the Hon.
Nicola Roxon, MP)
HEALTH INSURANCE AMENDMENT (PROFESSIONAL SERVICES REVIEW) BILL 2010
OUTLINE
This Bill makes amendments to the provisions for the Professional Services
Review (PSR) Scheme and the Medicare Participation Review Committee (MPRC)
in Parts VAA and VB of the Health Insurance Act 1973 (the Act).
My Department has consulted with a range of stakeholders regarding these
changes, including the Australian Medical Association, Allied Health
Professions Australia, Optometrists Association of Australia and the
Australian Dental Association. During this consultation, all stakeholders
indicated ongoing support for the PSR Scheme.
The PSR Scheme is a peer review process for investigating whether a
practitioner has inappropriately rendered or initiated Medicare or
Pharmaceutical Benefits Scheme (PBS) services.
Practitioners who are found to have engaged in inappropriate practice may
be reprimanded, counselled and/or disqualified from providing these
services for up to three years.
The MPRC is an independent statutory committee that makes determinations
about whether certain practitioners should maintain the right to
participate in Medicare.
At present, a practitioner must be referred to the MPRC if they have
committed a relevant civil or criminal offence, or been found to have
engaged in inappropriate practice on two or more occasions.
The proposed amendments do not alter the purpose of the PSR Scheme or the
MPRC process. These amendments improve administration, clarify issues and
address evidentiary matters.
The Bill addresses issues raised by the Federal Court in 2003 in the case
of Daniel by requiring the Medicare Australia CEO to request a review by
the Director of PSR, if the CEO becomes aware of a 'prescribed pattern of
services'.
The amendment provides that a 'prescribed pattern of services' may be the
sole reason for the CEO's request.
This request must be made because a 'prescribed pattern of services' is
deemed to be inappropriate practice, unless a PSR Committee is satisfied
that exceptional circumstances exist. The final determination that a
'prescribed pattern of services' constitutes inappropriate practice can
only be made under the PSR Scheme. It is not a decision that can be taken
by the Medicare Australia CEO.
The Bill contains proposed amendments that arise from recommendations of
the 2007 review of the PSR Scheme (Review of the Professional Services
Review Scheme - Report of the Steering Committee - May 2007).
The Review was undertaken by a Steering Committee comprising the Department
of Health and Ageing, Medicare Australia and the Australian Medical
Association (AMA) (the Review Committee). Over 70 organisations
representing medical and allied health practitioners, medical boards,
medical defence organisations, health complaints organisations and
consumers were consulted during the Review.
At present the PSR Scheme and the MPRC apply only to medical practitioners,
dentists, chiropractors, physiotherapists, podiatrists, optometrists and
osteopaths who provide services under Medicare and the PBS.
In the 2009 calendar year, practitioners not covered by PSR and MPRC
arrangements, provided 3.6 million services at a cost to Medicare of $350
million. These practitioners include audiologists; diabetes educators;
dieticians; exercise physiologists; mental health nurses; occupational
therapists; psychologists; social workers and speech pathologists.
The Bill provides for a determination to be made that a health professional
is a practitioner for the purposes of the PSR Scheme and the MPRC
(Recommendation 12 of the Review Committee). This will enable the PSR
Scheme and the MPRC to be applied to allied health professionals who
provide Medicare services.
The Bill gives effect to Recommendation 9 of the Review Committee by
removing the requirement for the Director of PSR to refer practitioners,
who have been found to have engaged in inappropriate practice on two or
more occasions, to the MPRC.
The Bill provides for the Director and the Determining Authority to apply a
disqualification period of up to five years to those practitioners. This
is equivalent to the sanction available to the MPRC. This change clearly
separates the review of inappropriate practice under a PSR process, from
the review of a practitioner by an MPRC because they have committed a civil
or criminal offence. It also means that these practitioners will not have
to undergo a further administrative review, after the completion of the PSR
Scheme process.
The Bill provides for improvements to streamline the administration of the
Scheme related to Recommendation 4 of the Review Committee by:
. providing an extension of time for a PSR Committee or the Determining
Authority process in some circumstances, such as where a person is unable
to participate in the process due to illness;
. providing for a PSR Committee or the Determining Authority to take no
further action in some circumstances, such as where the person dies;
. providing for a final determination to take effect 7 days after the day
on which an appeal is withdrawn or discontinued by the person;
The Bill includes amendments to the PSR Scheme's public-protective
function. If the conduct of a person under review poses a threat to
patient life or health, the Director must contact the relevant body. That
is, the body in each State or Territory that is authorised to recall
patients for independent medical review, such as the Chief Medical Officer.
The Bill also requires the Director to notify the relevant registration
body. The relevant bodies will be specified in Regulations after
consultation with stakeholders.
The Bill makes a number of other minor administrative changes to the
Scheme. These are:
. clarifying that Medicare services which are requested, may be reviewed by
PSR, whether or not they have been rendered;
. authorising the Director of PSR to give information about a person to the
Determining Authority, on one occasion, up until the Authority makes its
draft determination;
. protecting patients by requiring persons who are disqualified due to a
PSR or MPRC process to display a notice to inform patients that services
will not attract medicare benefits; and
. amending certain provisions to clarify that the instrument referred to is
a legislative instrument under the Legislative Instruments Act 2003.
The Bill contains one amendment not directly related to the PSR Scheme or
the MPRC. It amends section 133(2) of the Act which currently provides for
Regulations to be made in relation to referrals to consultant physicians
and specialists.
Over the last decade a broad range of health practitioners have become able
to provide Medicare services. The Bill provides for Regulations to be made
to prescribe the manner in which patients are referred for a Medicare
service by a referring practitioner to another practitioner.
This change will enable the current Regulations applying to referrals to
consultant physicians and specialists to be expanded so that they apply to
any referral made for a Medicare service.
The provisions in this Bill will ensure that the PSR Scheme continues to
operate effectively to prevent Commonwealth funds being paid for services
provided by practitioners who engage in inappropriate practice.
Financial Impact Statement
In the 2009 calendar year, the total cost of the 3.6 million Medicare
benefits paid for services provided by practitioners that were not covered
by PSR and MPRC arrangements was $350 million.
HEALTH INSURANCE AMENDMENT (PROFESSIONAL SERVICES REVIEW) BILL 2010
NOTES ON CLAUSES
Clause 1 - Short Title
This clause provides that the Bill, once enacted, may be cited as the
Health Insurance Amendment (Professional Services Review) Act 2010.
Clause 2 - Commencement
This clause provides that sections 1 to 3 (which cover the Short Title,
Commencement and Schedule(s) to the Act) and Schedule 2 of the Bill, once
enacted, will commence on the day after the Bill receives Royal Assent.
Schedule 1 of the Bill will commence on a day to be fixed by Proclamation.
However, if any of the provision(s) in Schedule 1 do not commence within
the period of 6 months beginning on the day on which this Act receives the
Royal Assent, those provisions commence on the first day after the end of
that 6-month period.
Clause 3 - Schedule(s)
This clause provides that each Act that is specified in a Schedule to this
Bill is amended or repealed as set out in the applicable items in the
Schedule concerned, and any other item in a Schedule to this Bill has
effect according to its terms. The Bill contains two Schedules which amend
the Health Insurance Act 1973 (the HIA). Schedule 1 includes application
and transitional provisions.
Schedule 1 - Main amendments
Health Insurance Act 1973
Schedule 1 amends the HIA to:
. require the Medicare Australia CEO to request that the Director of
Professional Services Review ("the Director") review the provision of
services by a person if he or she becomes aware that the person has
provided the services in circumstances that constitute a prescribed
pattern of services. This may be the sole reason for the referral;
. authorise the Minister for Health and Ageing to determine by legislative
instrument that certain health professionals are practitioners, and
certain vocations are professions, for the purposes of the Professional
Services Review Scheme and the Medicare Participation Review Committee
arrangements;
. clarify the authority of a Professional Services Review Committee to
investigate medicare services that have been initiated but not rendered;
. provide that the Director may give case-relevant information about a
person under review to the Determining Authority on one occasion up until
the Authority makes its draft determination;
. extend the time for a Professional Services Review Committee to make its
final report when progress is halted in specified circumstances;
. extend the time for the Determining Authority to make a determination
when progress is halted in specified circumstances;
. provide for a Professional Services Review Committee or the Determining
Authority (as the case requires) to take no further action if they are
satisfied that a proper investigation is impossible, that the making of a
proper determination is impossible, or that it is impossible for action
specified in a section 92 negotiated agreement to take effect.
Circumstances that could trigger this action include the death of a
person under review or where the person is permanently incapacitated;
. provide for a final determination to take effect 7 days after the day on
which an application instituting a proceeding is withdrawn, a proceeding
is dismissed or determined, an appeal is withdrawn or discontinued, or an
appeal is dismissed or determined;
. remove the requirement for the Director to refer a person who has
received a final determination of inappropriate practice and/or
negotiated a section 92 agreement on two or more occasions to the
Chairperson of a Medicare Participation Review Committee;
. provide for the Director (in relation to a section 92 negotiated
agreement) and the Determining Authority (in relation to a final
determination of inappropriate practice under section 106TA) to
disqualify a person under review for up to five years in certain
circumstances (where the person is a person against whom a previous final
determination or agreement under section 92 has taken effect);
. require the Director to refer material about the conduct of a person
under review to a State or Territory body, and an appropriate person or
body, at any stage of the Professional Services Review process, if the
conduct of the person poses a significant threat to the life or health of
patients or demonstrates a failure to comply with professional standards;
. provide that persons who are partly or fully disqualified must display
notice of that disqualification in their practices to notify patients
that services will not attract medicare benefits;
. enable regulations to be made which prescribe the kind of information
that must be included in any patient referral for a medicare service by a
referring practitioner to another practitioner.
Schedule 2 - Other amendments
Health Insurance Act 1973
Schedule 2 amends the HIA to:
. to clarify the operation of section 124FAA in relation to practitioners
who have been referred to the Medicare Participation Review Committee
because of one or more section 92 agreements;
. makes minor technical amendments to certain provisions to make it clear
that the instrument referred to is a legislative instrument under the
Legislative Instruments Act 2003.
Schedule 1 - Main amendments
PART 1 - Prescribed pattern of services
This part inserts provisions relating to prescribed patterns of services
into Division 1, Part VAA of the HIA. These amendments are in response to
the judgments in Daniel v Health Insurance Commission and Others [2003] FCA
772 and Kelly v. Daniel [2004] FCAFC 14.
The purpose of the amendments is to make it clear that the Medicare
Australia CEO must request the Director of Professional Services Review to
review the provision of services by a person during the period specified in
the request (refer to existing subsection 86(1)) if the Medicare Australia
CEO becomes aware that the circumstances in which the services were
rendered or initiated by a person constitute a prescribed pattern of
services.
If the Medicare Australia CEO makes a request based on prescribed pattern
of services, the request may also include reasons dealing with
inappropriate practice other than prescribed pattern of services.
The amendments also make it clear that, when the Director, who may make a
referral to a Professional Services Review Committee with respect to a
prescribed pattern of services, makes a referral the referral may include
reasons other than the prescribed pattern of services. Alternatively, the
reasons may relate solely to the services being rendered or initiated in
circumstances that constitute a prescribed pattern of services.
Item 1: Subsection 81(1)
Item 1 inserts the a definition of the term prescribed pattern of services
into existing subsection 81(1) and provides that the term will have the
meaning given by new section 82A.
Item 2: After subsection 82(1)
Item 2 amends section 82 by inserting new subsections relating to
prescribed pattern of services after existing subsection 82(1). The
amendments in item 2 are intended to replace existing section 106KA which
is repealed at item 10.
New subsection 82(1A) provides that, subject to subsections 82(1B) and
(1C), a practitioner engages in inappropriate practice in rendering or
initiating services during a particular period (the relevant period) if the
circumstances in which some, or all, of the services were rendered or
initiated constitute a prescribed pattern of services.
New subsection 82(1B) provides an exception to new subsection 82(1A) so
that a practitioner does not engage in inappropriate practice in rendering
or initiating services on a particular day in the relevant period if a
Professional Services Review Committee could reasonably conclude that
exceptional circumstances existed on that particular day which affected the
rendering or initiating of the services.
New subsection 82(1C) provides that new subsection 82(1B) does not affect
the operation of new subsection 82(1A) in respect of the remaining day or
days during the relevant period on which the practitioner rendered or
initiated services even if the circumstances in which the services were
rendered or initiated on that day or those days would not, if considered
alone, have constituted a prescribed pattern of services.
This means that where a Professional Services Review Committee concludes
that exceptional circumstances exist for one or more days during a
particular period, services provided on other days included in that period
may still constitute a prescribed pattern of services.
New subsection 82(1D) provides that the regulations may prescribe
circumstances which constitute exceptional circumstances for the purposes
of new subsection 81(1B) but that the prescribed circumstances are not
exhaustive.
The note inserts the heading "Unacceptable conduct" to existing subsection
82(1).
Item 3: Paragraphs 82(2)(a) and (b)
Item 3 amends paragraphs 82(2)(a) and (b) by omitting the words "within the
meaning of subsection (1)" and substituting the words "under subsection (1)
or (1A)". This amendment is a technical consequential amendment, required
as a result of the addition of new subsection 82(1A) (item 2 refers).
Note 1 inserts the heading "Causing or permitting inappropriate practice"
to existing subsection 82(2).
Note 2 inserts the heading "Matters to which Committee must have regard" to
existing subsection 82(3).
Item 4: At the end of Division 1 of Part VAA
Item 4 inserts new section 82A at the end of existing Division 1 of Part
VAA. As was the case with new subsections 82(1A) to (1D), this new section
is intended to replace aspects of existing section 106KA. New section 82A
concerns the meaning of the term prescribed pattern of services.
New subsection 82A(1) provides that the circumstances in which services are
rendered or initiated by a practitioner constitute a prescribed pattern of
services if they are circumstances prescribed by the regulations for the
purposes of section 82A.
New subsection 82A(2) provides that the circumstances prescribed may relate
to services of a particular kind or description that are rendered or
initiated either by practitioners in a particular profession, or by an
identified group or groups of practitioners in a particular profession.
New subsection 82A(3) provides that the regulations may prescribe
circumstances which include the rendering or initiation of more than a
specified number of either services or services of a particular kind, on
each of more than a specified number of days during a specified period.
New section 82A permits flexibility in the regulation-making power.
Different combinations of numbers of days and services can be used to
determine what constitutes a prescribed pattern of service for different
health professions, or for individual specialties within professions. This
recognises that significant variation exists in the way in which different
health professions and individual specialties within professions practice
and that the point at which the quality of the clinical service provided to
patients may be undermined varies between professions and specialties.
Item 5: Division 3 of Part VAA (heading)
Item 5 amends the heading of Division 3 of Part VAA by repealing the
existing heading, "Division 3 - Medicare Australia CEO may request review"
and substituting the new heading "Division 3 - Role of Medicare Australia
CEO". This amendment is a technical amendment which will better reflect
Division 3 of Part VAA of the HIA after the commencement of Schedule 1 of
this Bill, once enacted.
Item 6: Subsection 86(1)
Item 6 amends existing subsection 86(1) by omitting "The" and substituting
"Subject to subsection (1A), the". This is a technical consequential
amendment, required as a result of the insertion of new subsection 86(1A)
(item 7 refers).
The note repeals the heading "Medicare Australia CEO may request Director
to review provision of services" to existing section 86 and replaces it
with the heading "Requests by Medicare Australia CEO to Director to review
provision of services". This is a technical amendment which will better
reflect existing section 86 of the HIA after the commencement of Schedule 1
of this Bill, once enacted.
Item 7: After subsection 86(1)
Item 7 inserts new subsection 86(1A) after existing subsection 86(1). It
provides that if the Medicare Australia CEO becomes aware that the
circumstances in which services were rendered or initiated by a person
constitute a prescribed pattern of services, the Medicare Australia CEO is
required to make a request to the Director of Professional Services Review
under existing subsection 86(1) in relation to the services. New subsection
86(1A) places this obligation upon the Medicare Australia CEO even if there
is a possibility that a Professional Services Review Committee could
reasonably conclude that exceptional circumstances existed on a particular
day which affected the rendering or initiating of particular services on
that day (refer to item 2 and new subsection 82(1B)).
Item 8: At the end of subsection 86(3)
Item 8 inserts, at the end of existing subsection 86(3), a note which
explains that if, under subsection 86(1), the Medicare Australia CEO
requests the Director of Professional Services Review to review the
provision of services by a person during a specified period because of
subsection 86(1A), the request may include reasons other than the
prescribed pattern of services.
Item 9: At the end of subsection 93(6)
Item 9 inserts, at the end of existing subsection 93(6), a note which
explains that, where the Director of Professional Services Review decides
to make a referral to a Professional Services Review Committee, the reasons
given by the Director (as to why the Director thinks the person under
review may have engaged in inappropriate practice in providing the services
to which the referral relates - refer to existing paragraph 93(6)(a)) may
relate solely to the services being rendered or initiated in circumstances
that constitute a prescribed pattern of services.
Item 10: Section 106KA
Item 10 repeals existing section 106KA. Existing section 106KA is
essentially replaced by new subsections 82(1A) to 82(1D) (item 2 refers)
and new section 82A (item 4 refers).
Item 11: Paragraph 106KB (1)(b)
Item 11 omits from existing paragraph 106KB(1)(b) the reference to "106KA"
and substitutes the words "for the purposes of subsection 82(1A) or (1B)".
This is a technical consequential amendment and is required as a result of
the deletion of existing section 106KA (item 10 refers) and the insertion
of new subsections 82(1A) and 82(1B) (item 2 refers).
Item 12: Application
The application provision provides that the repeals and amendments of the
HIA described in Part 1 of Schedule 1 of the Bill do not apply in relation
to requests made under section 86 of the HIA before the commencement of
item 12 of Schedule 1 of the Bill, once enacted. The "old law" (existing
section 106KA, existing section 106KB and any regulations which are in
force immediately before the commencement of item 12 of Schedule 1 of the
Bill, once enacted) will continue to apply in relation to such requests.
PART 2 - Allied Health Practitioners
This part inserts provisions relating to allied health practitioners into
Part VAA, Divisions 1 and 2 of the HIA.
Division 1 - Amendments
Item 13: Subsection 81(1) (at the end of the definition of practitioner)
Item 13 broadens the definition of practitioner in subsection 81(1) by
including a new paragraph (i) which allows the Minister for Health and
Ageing to determine new categories of health professionals (providing
health services within the meaning of subsection 3C(8) of the HIA) for the
purposes of Part VAA of the Professional Services Review Scheme. This
amendment is made as a result of the Commonwealth broadening the categories
of health professionals permitted to provide Medicare-eligible services to
include categories not specified under subsection 81(1) of the HIA. The
new categories of health professionals who provide health services within
the meaning of subsection 3C(8) of the HIA and who cannot currently be
reviewed under the Professional Services Review Scheme include aboriginal
health workers; audiologists; clinical psychologists; diabetes educators;
dieticians; exercise physiologists; mental health workers; mental health
nurses; occupational therapists; psychologists; social workers; and speech
pathologists.
This gives effect to Recommendation 12 of the Review of the Professional
Services Review Scheme - Report of the Steering Committee - May 2007.
Item 14: Subsection 81(1) (at the end of the definition of profession)
Item 14 broadens the definition of profession in subsection 81(1) by
including a new paragraph (h) which allows the Minister for Health and
Ageing to determine categories of professions for the purposes of Part VAA
of the Professional Services Review Scheme.
Item 15: After subsection 81(1)
Item 15 allows the Minister for Health and Ageing to determine by
legislative instrument:
(a) new categories of health professionals as practitioners for the
purposes of Part VAA of the Professional Services Review Scheme, if
the health professional is providing a health service referred to in
subsection 3C(8) of the HIA; and
(b) that a particular vocation engaged in by the health professional
is a profession for the purposes of Part VAA of the Professional
Services Review Scheme.
The Note inserts the heading 'Meaning of provides services.' to subsection
81(2) of the HIA.
Item 16: Paragraph 106ZPA(1)(c)
Item 16 removes paragraph 106ZPA(1)(c) and adds a new paragraph
106ZPA(1)(c) to ensure that, a member of the profession of each new
category of health professional added for the purposes of the Professional
Services Review Scheme, may sit on the Determining Authority.
Item 17: Paragraph 106ZPB(2)(c)
Item 17 removes paragraph 106ZPB(2)(c) and adds a new paragraph
106ZPB(2)(c) to ensure that practitioners under Part VAA of the
Professional Services Review Scheme are represented on the Determining
Authority.
Item 18: Subsection 106ZPB(3)
Item 18 amends subsection 106ZPB(3) by inserting 'other than a medical
practitioner' after the phrase 'a practitioner' to make it clear that when
the Minister for Health and Ageing is making appointments to the
Determining Authority, the Minister must consult the Australian Medical
Association about the appointment of medical practitioners, or other
appropriate organisations about the appointment of other health
practitioners.
Item 19: Subsection 106ZPB(3)
Item 19 omits subparagraphs 106ZPA(1)(c)(ii) to (vii) and adds paragraph
106ZPA(1)(c). The new paragraph provides that the Minister cannot appoint
a practitioner to the Determining Authority unless the practitioner is a
member of a group listed in paragraph 106ZPA(1)(c ) of the HIA. This
amendment is a technical consequential amendment, required as a result of
the insertion of new paragraph 106ZPA(1)(c) (item 16 refers).
Item 20: Subsection 106ZPH(3)
Item 20 repeals subsection 106ZPH(3) and substitutes a new subsection in
respect of acting appointments to the Determining Authority. The new
subsection provides that where the Minister appoints a person to act for a
member of the Determining Authority, that person must be the same kind of
practitioner as the member of the Determining Authority.
Item 21: Subsection 124B(1) (at the end of the definition of practitioner)
Item 21 broadens the definition of practitioner in subsection 124B(1) which
is used for the purpose of Part VB - Medicare Participation Review
Committee by including a new paragraph (i) which will allow the Minister
for Health and Ageing to determine categories of health professionals
(providing health services within the meaning of s.3C(8) of the HIA) for
the purposes of Part VB of the HIA.
This amendment is made as a result of the Commonwealth broadening the
categories of practitioners permitted to provide health services within the
meaning of s.3C(8) of the HIA to include a broad range of other health
professionals. These new categories of health professionals include:
aboriginal health workers; audiologists; diabetes educators; clinical
psychologists; dieticians; exercise physiologists; mental health workers;
mental health nurses; occupational therapists; psychologists; social
workers; and speech pathologists.
The Medicare Participation Review Committee determines what administrative
action should be taken against a practitioner who has, for example, been
successfully prosecuted for a relevant criminal offence or has been found
to have engaged in inappropriate practice under the Professional Services
Review Scheme on two or more occasions.
Item 22: At the end of section 124B
Item 22 amends subsection 124B by adding new paragraph (7) which will
enable the Minister for Health and Ageing to determine by legislative
instrument that new categories of health professionals are practitioners
for the purposes of Part VB if they provide a health service referred to in
subsection 3C(8) of the HIA.
Item 23: At the end of section 124EB(2)
Item 23 amends subsection 124EB(2) by adding new paragraphs (d), (e), (f),
(g) and (h) to ensure that the Chairperson appoints a member of the
Medicare Participation Review Committee, from a list provided to the
Minister by a professional organisation, who is a health professional of
the same kind as the practitioner being reviewed by the Medicare
Participation Review Committee.
Division 2 - Transitional and application provisions
Item 24: Transitional - review of services rendered or initiated by
certain allied health practitioners
Item 24 is a transitional provision which applies to services rendered or
initiated by the newly added health practitioners after the Minister makes
a determination in relation to them under subsection 81(1A) of the HIA.
Item 24 provides that the Medicare Australia CEO must not make a request
under section 86 in relation to services provided by a person, if those
services were provided before the person was determined to be a
practitioner for the purposes of the Professional Services Review Scheme.
The reference to a request under section 86 of the HIA covers requests
under subsection 86(1) and requests required to be made under subsection
86(1A) of the HIA.
Item 25: Application - acts or omission of certain allied health
practitioners
Item 25 limits the application of Part VB of the HIA to relevant acts and
omissions committed by health professionals after they become practitioners
for the purposes of subsection 124B of the HIA. This means that relevant
offences and civil contraventions committed in relation to services
provided before the Minister determines that a health professional is a
practitioner for the purposes of Part VB, cannot be referred to a Medicare
Participation Review Committee.
Paragraph (3) provides that if an act or omission occurs around the time
the determination is made, and some services relating to the act or
omission occur prior to the determination being made and some occur after
the determination is made, then the act or omission is taken to have occur
prior to the making of the determination. This means that where a relevant
offence or civil contravention relates to services provided over a period
of time, including some provided before a person becomes a practitioner for
the purposes of Part VB, that relevant offence or civil contravention is
outside the scope of the Medicare Participation Review Committee.
Item 26: Application of item 23
Item 26 provides that the amendments made by item 23 in relation to
subsection 124EB(2) only apply to a Medicare Participation Review Committee
established after the commencement of the item.
Part 3 - Meaning of service
This Part relates to existing paragraph (a) of the definition of service
for the purposes of Part VAA of the HIA, in existing subsection 81(1).
The purpose of the amendment is to clarify that the Professional Services
Review Scheme applies in respect of a service that has been initiated, if
at the time it was initiated, medicare benefit would have been payable in
respect of the service had it been rendered at that time. This is the
case:
. whether or not the initiated service has been or will be rendered; and
. even where no medicare benefit is payable for the initiating service.
Item 27: Subsection 81(1) (paragraph (a) of the definition of service)
Item 27 repeals existing paragraph (a) of the definition of service in
subsection 81(1) and substitutes new paragraphs (a) and (ab).
New paragraph (a) provides that service means a service that has been
rendered if, at the time it was rendered, medicare benefit was payable in
respect of the service. This new paragraph effectively replicates existing
paragraph (a) of the definition of service in so far as it relates to a
service that has been rendered.
New paragraph (ab) provides that service means a service that has been
initiated (whether or not it has been or will be rendered) if, at the time
it was initiated, medicare benefit would have been payable in respect of
the service had it been rendered at that time.
This is the case even where no medicare benefit is payable for the
initiating service.
For example, a practitioner refers a patient for a diagnostic imaging
service such as an x-ray and a medicare benefit is payable for the x-ray
(the initiated service) but is not payable for the consultation with the
referring practitioner. New paragraph (ab) clarifies that the initiated
service will come within the definition of service if a medicare benefit
would have been payable for the service if it had been rendered at the time
it was initiated.
A review of initiated services which have not yet been rendered is relevant
to the consideration of whether or not a practitioner has engaged in
inappropriate practice.
For example, a chiropractor may advertise that every new patient for the
month of March will receive 'a free set of spinal x-rays' at the first
consultation. The chiropractor may then refer each new patient for a
service for which a medicare benefit would be payable if rendered e.g. an x-
ray. If the chiropractor is subsequently a person under review, his or her
conduct in initiating such services may be taken into account in forming a
view about inappropriate practice even though the initiated services may
not have been rendered (or may never be rendered). This is because the
chiropractor has initiated services which, if rendered, would result in the
expenditure of public revenue for services that may not be clinically
relevant.
Part 4 - Extension of time for certain processes
This Part relates to an extension of time in certain circumstances for a
Professional Services Review Committee to provide its final report and for
the Determining Authority to issue a draft or final determination.
Item 28: Subsection 106G(3)
Item 28 repeals existing subsection 106G(3) and replaces it with a new
subsection 106G(3). New subsection 106G(3) provides that where the
circumstances in column 1 of the table occur, the Professional Services
Review Committee may determine in writing that the period of six months
referred to in existing paragraph 106G(2)(a) (which sets out the timeframe
by which the Committee must give its final report to the Determining
Authority or, where relevant, the person under review) is extended for a
period that does not exceed the specified period in column 2 of the table
for that item.
New subsection 106G(3) differs from existing subsection 106G(3) by the
insertion of a new circumstance (set out at item 2 of the table). The new
circumstance is where the person under review is fully disqualified under
existing section 105 for failing to appear, give evidence or answer a
question when required by the Professional Services Review Committee. The
maximum period of extension is the period in which the person under review
is fully disqualified under section 105.
New subsection 106G(3) also differs by making it clear in item 4 of the
table that a circumstance is that the Professional Services Review
Committee's consideration of the referral is suspended because of an
injunction or other court order.
The other circumstances in new subsection 106G(3) are as follows:
. the person under review is unable because of illness to attend a hearing
being conducted by the Professional Services Review Committee;
. a notice is given to a person under existing subsection 105A(2) (to
produce documents or give information) and the person fails to comply
with a requirement of the notice;
. the Professional Services Review Committee's consideration of the
referral is suspended under existing paragraph 106N(2)(b) (because the
Committee refers material to the Medicare Australia CEO if it suspects
that the person under review may have committed a relevant offence or
relevant civil contravention).
New subsection 106G(3) also sets out the maximum periods of extension for
each item in the table.
Item 29: After subsection 106G(4)
Item 29 inserts new subsection 106G(4A) which clarifies that the period of
six months referred to in existing paragraph 106G(2)(a) (which sets out the
timeframe by which the Professional Services Review Committee must give its
final report to the Determining Authority or, where relevant, the person
under review) may be extended under new subsection 106G(3) more than once.
Item 30: Subsection 106S(2)
Item 30 repeals existing subsection 106S(2) and substitutes new subsections
106S(2) and 106S(2A).
Existing subsection 106S(1) provides that the Director may give the
Determining Authority any information that the Director considers is
relevant to the Authority making its draft determination or final
determination in accordance with existing section 106U. The current
subsection 106S(2) provides that any information which the Director gives
the Determining Authority under subsection 106S(1) must be given no later
than the day on which the Professional Services Review Committee's final
report is given to the Determining Authority under existing subsection
106L(3).
New subsection 106S(2) provides that the Director may give information to
the Determining Authority under existing subsection 106S(1) on one occasion
only.
New subsection 106S(2A) provides that the Director must not give
information to the Determining Authority under existing subsection 106S(1)
after the Authority has made its draft determination in accordance with
existing section 106U.
The purpose of new subsections 106S(2) and 106S(2A) is to extend the time
that the Director currently has for giving information to the Determining
Authority from the day on which the Professional Services Review
Committee's final report is given to when the Determining Authority makes
its draft determination. This amendment is necessary because there is no
other provision under which the Director may pass information to the
Determining Authority even though instances have arisen when the Director
has acquired case-relevant information after the date upon which the
Determining Authority had received the Professional Services Review
Committee's final report. In such instances, the Director was unable to
pass the information to the Determining Authority.
The information the Director may provide to the Determining Authority may
be to the advantage of the person under review, for example, if the
practitioner has taken demonstrable steps to address the conduct under
review in relation to the provision of services. However, the information
provided may not be to the person's advantage, for example, if it
demonstrates that the person has persisted with conduct relevant to the
review.
New subsections 106S(2) and 106S(2A) prevent the Director from giving
information more than once and from giving information after the Authority
has made its draft determination. These limitations ensure that the person
under review has adequate opportunities to make submissions in relation to
the information given, which affords natural justice to the person under
review (refer to new section 106SA at item 31).
Item 31: Subsection 106SA
Item 31 repeals existing section 106SA and substitutes a new section 106SA.
New subsection 106SA(1) is headed "Invitation to make submissions" and
provides that the Determining Authority must give the person under review a
written invitation to make written submissions to the Authority, having
regard to the Professional Services Review Committee's final report and any
information given by the Director under new section 106S (item 30 refers),
about the directions the Authority should make in the draft determination
relating to the person.
The note at the end of subsection 106SA(1) provides that existing section
106U sets out the directions the Determining Authority can make.
New subsection 106SA(2) provides that an invitation under new subsection
106SA(1) must state that the person under review may make submissions
within one month after the day on which the invitation is given to the
person.
The note at the end of subsection 106SA(2) provides that the period for
making submissions may be extended under new subsection 106SA(5) (because
the person applied for an extension and the other requirements of new
subsection 106SA(5) were fulfilled). The note also provides that the period
for making submissions may be affected by new section 106TB (which applies
when the time for doing an act is affected by a court order - item 36
refers).
New subsection 106SA(3) is headed "Invitation to be given after Committee's
final report is given to Authority" and provides that the Determining
Authority must give an invitation to the person under review to make a
submission under new subsection 106SA(1) within one month after being given
the Professional Services Review Committee's final report.
The note at the end of subsection 106SA(3) provides that the period for
giving the invitation may be affected by new section 106TB (which applies
when the time for doing an act is affected by a court order - item 36
refers).
New subsection 106SA(4) is headed "Further invitation to be given in
certain circumstances" and provides that if, the Director gives the
Determining Authority information under section 106S (item 30 refers),
after the Determining Authority has given the person under review an
invitation under new subsection 106SA(1), the Determining Authority must,
within 14 days after being given the information from the Director, give
the person a further invitation under new subsection 106SA(1). Subsection
(3) does not apply to the further invitation.
That is, where a person under review has been invited to make a submission
in relation to the Professional Services Review Committee's final report
under subsection 106SA(1), and the Director then gives further information
under subsection 106S(1) to the Determining Authority (before the
Determining Authority makes a draft determination), the Determining
Authority must within 14 days of being given the information from the
Director, invite the person under review to make submission in relation to
the information and give the person one month in which to make a
submission. The submission periods relating to the Professional Services
Review Committee's final report and any new information run concurrently.
The submission period relating to the Committee's final report is not
extended by an invitation regarding new information given under new
subsection 106SA(4).
The note at the end of subsection 106SA(4) provides that the period for
giving the invitation may be affected by new section 106TB (which applies
when the time for doing an act is affected by a court order - item 36
refers).
New subsection 106SA(5) provides that the Determining Authority may extend
a period within which the person under review may make submissions if the
person applies, in writing, for the period to be extended, and the
application is made before the end of the period, and the Authority
considers that it is reasonable to extend the period. An example of when
subsection 106SA(5) might apply is where a person has sought additional
data from Medicare Australia in order to support the person's submission to
the Determining Authority.
Item 32: Subsection 106T(1)
Item 32 repeals existing subsection 106T(1) and substitutes new subsections
106T(1) and 106T(1A).
New subsection 106T(1) provides that the Determining Authority must, after
taking into account any submissions made by the person under review in
accordance with new section 106SA (which is about submission periods - item
31 refers), make a draft determination in accordance with existing section
106U (which sets out the directions that the Determining Authority can
make) relating to the person, and give copies of the draft determination to
the person and to the Director.
New subsection 106T(1A) provides that the Determining Authority must comply
with new subsection 106T(1) within 1 month after the last day on which the
person under review may make submissions in accordance with section 106SA
(which is about submission periods - item 31 refers).
The note at the end of subsection 106T(1A) provides that the period for
giving the invitation may be affected by new section 106TB (which applies
when the time for doing an act is affected by a court order - item 36
refers).
Item 33: At the end of subsection 106T(2)
Item 33 adds a note to the end of existing subsection 106T(2) to provide
that the period for making submissions may be affected by new section 106TB
(which applies when the time for doing an act is affected by a court order
- item 36 refers).
Item 34: Subsection 106T(4)
Item 34 amends existing subsection 106T(4) by omitting the words "that
paragraph" and substituting the words "subsection (1A)". This amendment is
a technical consequential amendment required as a result of new subsection
106T(1A) (item 30 refers).
Item 35: At the end of subsection 106TA(1)
Item 35 adds a note to the end of existing subsection 106TA(1) to provide
that the period for making submissions may be affected by new section 106TB
(which applies when the time for doing an act is affected by a court order
- item 36 refers).
Item 36: After section 106TA
Item 36 inserts new section 106TB, which is about how time periods for
doing an act in new Subdivision C are affected if an injunction or other
court order operates.
A person under review may seek review by the Federal Court at any stage of
the process set out in Part VAA of the Act. The purpose of new section
106TB is to automatically extend the time for the Determining Authority to
make a draft or final determination where a court order affects the time
for doing an act.
New subsection 106TB(1) provides that section 106TB applies in relation to
an act that is required or permitted by Subdivision C to be done within a
particular period (referred to as the original action period) if an
injunction or other court order prevents the act, or a further act of that
kind, from being done within that period.
New subsection 106TB(2) provides that, despite any other provision of
Subdivision C, and subject to any order of a court, the original action
period stops running at the beginning of the period (referred to as the
suspension period) during which the injunction or other court order
prevents the act from being done; and a new period (referred to as the new
action period) for doing the act, being a period of the same length as the
original action period, starts running on the day after the end of the
suspension period.
For example, where the Determining Authority has been provided with the
Professional Services Review Committee's final report, the Determining
Authority is required to invite the person under review to make a
submission within one month after being given the Committee's final report
(new subsection 106SA(3) - item 31 refers). This is the original action
period. If an injunction prevents the Determining Authority from inviting
the person, that is, there is a suspension period preventing the act from
being done, then, once the suspension period ends, due to the injunction no
longer being in force, the Determining Authority has one month from the day
after the end of the suspension period to invite the person to make a
submission. That is, the new action period for making the invitation for a
submission is one month (which is equivalent to the original action period)
and it runs from the day after the end of the suspension period.
New subsection 106TB(3) provides that if a court order operates during a
submission period (sections 106SA and 106T refer), the person's submission
period starts afresh irrespective of whether or not the person made a
submission. If a person made a submission prior to the court order taking
effect, the person is taken to have already made that submission for the
purposes of any new action periods. The purpose of this subsection is to
clarify that a person is not required to make another submission where they
have already provided a submission prior to the court order taking effect.
Item 37: Application of items 30, 31, 32 and 34
Item 37 is an application provision which provides that the amendments made
by items 30, 31, 32 and 34 of Schedule 1 do not apply in relation to the
making of a draft determination or a final determination in relation to a
person under review under Part VAA, if the Professional Services Review
Committee's final report in relation to the person was given to the
Determining Authority under subsection 106L(3) of the HIA before the
commencement of this item.
Part 5 - No further action to be taken in certain circumstances
This Part provides that a Professional Services Review Committee or the
Determining Authority may take no further action in certain circumstances.
Item 38: Subsection 106G(6)
Subsection 106G(6) allows the Director, in certain circumstances, to give
the Professional Services Review Committee written notice that the Director
is satisfied that circumstances exist that make a proper investigation by
the Committee impossible. The Director must also give this notice to the
CEO of Medicare Australia and the person under review within seven days of
giving the notice to the Professional Services Review Committee.
Subsection 106G(6) is removed and replaced with a new section 106GA which
deals with not only the notification by the Director but also the
notification by the Professional Services Review Committee in circumstances
where a proper investigation is impossible by the Committee (refer to item
39).
Item 39: After section 106G
Circumstances may arise when it becomes impossible for the Professional
Services Review Committee to conduct a proper investigation or for the
Determining Authority to make a Determination in relation to the person
under review, for example when the person under review dies or is
permanently incapacitated.
Item 39 inserts section 106GA. The purpose of subsection 106GA(1) is that
it allows the Director, in certain circumstances, to notify the
Professional Services Review Committee that the Director is satisfied that
circumstances exist that would make a proper investigation by the Committee
impossible. The notice by the Director must set out the reasons for the
decision.
Subsection 106GA(2) provides for the Professional Services Review Committee
to notify the Director, in certain circumstances, that the Committee is
satisfied that circumstances exist that would make a proper investigation
by the Committee impossible. The notice by the Professional Services
Review Committee must set out the reasons for the decision.
Subsection 106GA(3) provides that if the Director or the Professional
Services Review Committee gives a notice, the Director must give a copy of
that notice to the CEO of Medicare Australia and the person under review
within 7 days of the Director receiving the notice from the Committee or
the Director giving the notice to the Committee.
Item 40: Division 5 of Part VAA (heading)
Item 40 replaces the heading 'Division 5- Determination by the Determining
Authority' with 'Division 5 - Determining Authority
Subdivision A - Establishment etc. of the Determining Authority' clarifying
that subdivision A of Division 5 of Part VAA of the HIA deals with both the
establishment and functions of the Determining Authority.
Item 41: Before section 106R
Item 41 adds the following provisions into the HIA:
(i) The heading 'Subdivision B - Ratification of agreements by the
Determining Authority' which identifies the provisions in Part VAA dealing
with the ratification of section 92 agreements between the Director and the
person under review by the Determining Authority.
(ii) Subsection 106QA is an application provision that applies in
circumstances where a section 92 agreement between the Director and the
person under review is given to the Determining Authority for ratification.
(iii) Section 106QB broadly deals with circumstances that may arise when it
becomes impossible for the Determining Authority to ratify a section 92
agreement between the Director and the person under review, such as when
the person dies or is permanently incapacitated. Subsection 106QB(1)
allows the Director to give a written notice to the Determining Authority
that he or she is satisfied that it is not possible for an action in a
section 92 agreement to take effect. The written notice must explain the
reasons for this decision. Subsection 106QB(2) allows the Determining
Authority to give a written notice to the Director that the Authority is
satisfied that it is not possible for an action in a section 92 agreement
to take effect. The written notice must explain the reasons for this
decision. If a written notice is given by the Director to the Determining
Authority in relation to a person under review pursuant to subsection
106QB(1) or a notice is given by the Determining Authority to the Director
in relation to a person under review pursuant to subsection 106QB(2), then
any decision under section 106R ceases to have effect in relation to the
section 92 agreement, and the Director must, within 7 days, after giving or
receiving the notice (as the case may be) give a copy of the notice to the
CEO of Medicare Australia and the person under review (subsection
106QB(3)).
The note replaces the heading to section 106R with 'Authority must ratify
or refuse to ratify agreement'.
Item 42: Subsection 106R(1)
Item 42 removes subsection 106R(1) and adds a new subsection 106R(1) that
provides that the Determining Authority must decide whether or not to
ratify a section 92 agreement within one month after the day on which it
receives the agreement from the Director.
This amendment is a technical consequential amendment, required as a result
of the insertion of a new subdivision B (item 41 refers).
Item 43: After section 106R
Item 43 adds the following provisions into the HIA:
(i) The heading 'Subdivision C - Determinations by the Determining
Authority' to identify the sections dealing with the making of the
determinations by the Determining Authority.
(ii) Subsection 106RA is an application provision and applies in
circumstances where a final report from the Professional Services Review
Committee in relation to a person under review is given to the Determining
Authority under subsection 106L(3).
(iii) Section 106RB broadly deals with circumstances that may arise when it
becomes impossible for the Determining Authority to make a proper draft or
final determination in relation to a person under review, such as when the
person dies or is permanently incapacitated. Subsection 106RB(1) allows
the Director to give a written notice to the Determining Authority that he
or she is satisfied that it is not possible for a proper draft or final
determination to be made by the Determining Authority in relation to a
person under review. The notice must explain the reasons for this
decision. Subsection 106RB(2) allows the Determining Authority to give a
written notice to the Director that the Determining Authority is satisfied
that it is not possible for a proper draft or final determination to be
made by the Determining Authority in relation to a person under review.
The notice must explain the reasons for this decision. If a written notice
is given by the Director to the Determining Authority in relation to a
person under review pursuant to subsection 106RB(1), or a written notice is
given by the Determining Authority to the Director in relation to a person
under review pursuant to subsection 106RB(2), then Subdivision C (dealing
with the provision of draft and final determination by the Determining
Authority) ceases to have effect in relation to the person under review and
the Director must within 7 days after giving or receiving the notice (as
the case may be) give a copy of the notice to the CEO of Medicare Australia
and the person under review (subsection 106RB(3)).
Part 6 - Date of effect for final determinations
Item 44: Subsection 106V(2)
Section 106V specifies when a final determination of the Determining
Authority takes effect.
Existing subsection 106V(1) provides that subject to subsection 106V(2),
the final determination takes effect on the 35th day after the day on which
the Determining Authority gives a copy of it to the person under review.
Existing subsection 106V(2) defines the dates from which the final
determination takes effect when the person under review institutes court
proceedings in respect of the final determination.
Item 44 repeals existing subsection 106V(2) and substitutes new subsection
106V(2).
New subsection 106V(2) differs from existing subsection 106V(2):
. by addressing the issue of when the final determination takes effect if
either an application instituting a proceeding is withdrawn or a
proceeding is discontinued; and
. by changing the timeframe within which the final determination takes
effect when a person under review withdraws or discontinues an appeal.
New subsection 106V(2) provides that, if before that 35th day (i.e. before
the 35th day after the day on which the Determining Authority gives a copy
of the final determination to the person under review - refer to subsection
106V(1)), a proceeding is instituted in a court in respect of the final
determination, the determination takes effect (subject to any court order)
at the end of the period specified in paragraph (a), (b), (c) or (d) as the
case requires.
Under paragraph (a) of new subsection 106V(2), if an application
instituting a proceeding is withdrawn or the proceeding is discontinued,
the determination takes effect (subject to any court order) at the end of 7
days after the day on which the application is withdrawn or the proceeding
is discontinued.
Under paragraph (c) of new subsection 106V(2), if an appeal is instituted
but the appeal is then withdrawn or discontinued, the determination takes
effect (subject to any court order) at the end of 7 days after the day on
which the appeal is withdrawn or discontinued. New paragraph 106V(2)(c)
corresponds to existing paragraph 106V(2)(b) but reduces the timeframe
within which the determination takes effect from 35 days (after the day the
appeal is withdrawn or discontinued) to 7 days (after the day the appeal is
withdrawn or discontinued) where the appeal is instituted in a court other
than the High Court.
Under paragraphs (b) and (d) of new subsection 106V(2), if a proceeding or
an appeal is dismissed or determined, the determination takes effect
(subject to any court order) at the end of the prescribed number of days
after the day on which the proceeding or the appeal is dismissed or
determined. The prescribed number of days is set out in existing
subsection 106V(3) and differs depending upon the court in which the
proceeding or appeal is instituted. New paragraphs 106V(2)(b) and (d) in
effect replicate existing paragraphs 106V(2)(a) and (c).
Item 45: Application
Item 45 provides that new subsection 106V(2) does not apply in relation to
a final determination that was made by the Determining Authority under
existing section 106TA before the commencement of item 45.
Part 7 - Referrals to Medicare Participation Review Committee
Part 7 relates to the interaction between the Professional Services Review
Scheme which is set out in Part VAA of the HIA and Medicare Participation
Review Committees which are established under Part VB of the HIA. Medicare
Participation Review Committees are statutory committees established on a
case by case basis to make determinations on a range of matters relating to
practitioners such as in relation to:
. practitioners who have commissioned relevant offences or relevant civil
contraventions ; or
. approved pathology practitioners or authorities who are reasonably
believed to have breached pathology undertakings; or
. practitioners or persons who are reasonably believed to have engaged in
prohibited diagnostic imaging practices; or
. practitioners who have been found to have engaged in inappropriate
practice on two separate occasions under the Professional Services Review
Scheme.
Currently, under subsection 106X(2), where a practitioner has been found to
have engaged in inappropriate practice by a Professional Services Review
Committee resulting in final determinations of a Determining Authority
taking effect on two occasions, the Director must give to the Chairperson
of a Medicare Participation Review Committee a written notice setting out
the details of all final determinations that have taken effect against the
person. An agreement between a practitioner and the Director under section
92 is taken to be a final determination of the Determining Authority for
the purposes of section 106X (see paragraph 92(4)(f)).
Under subsection 124E(2A), a Medicare Participation Review Committee must
be established where the Chairperson receives a notice under section 106X.
The Medicare Participation Review Committee then determines whether any
further action should be taken against the practitioner to that determined
by the Determining Authority. Under section 124FAA, the Medicare
Participation Review Committee may determine that no further action be
taken against the practitioner in addition to that action being taken under
the final determination made by the Determining Authority under section
106TA. Alternatively, the Medicare Participation Review Committee may
determine that the practitioner is disqualified (partly or fully) from
providing professional services for a specified period not exceeding 5
years. A determination by the Medicare Participation Review Committee that
a practitioner is disqualified replaces any period of disqualification
under a final determination made under section 106TA that is still in force
when the Medicare Participation Review Committee's determination is made.
This Part removes the obligation imposed upon the Director under section
106X to refer practitioners who have been found to have engaged in
inappropriate practice on two separate occasions (through either final
determinations under section 106TA or negotiated agreements under section
92) to a Medicare Participation Review Committee. Instead, the Director
(for agreements made under section 92) and the Determining Authority (for
final determinations made under section 106TA) will be able to impose
sanctions which are equivalent to those which are currently available to a
Medicare Participation Review Committee under section 124FAA.
This gives effect to Recommendation 9 of the Review of the Professional
Services Review Scheme - Report of the Steering Committee - May 2007.
Item 46: Subparagraph 19B(2)(a)(i)
Item 46 amends existing subparagraph 19B(2)(a)(i) by omitting the reference
to ",124FAA(2)(e)". This is a technical consequential amendment, resulting
because existing section 124FAA is repealed by Schedule 1 of this Bill
(item 64 refers).
Item 47: Subparagraph 19B(2)(b)(i)
Item 47 amends existing subparagraph 19B(2)(b)(i) by omitting the reference
to ",124FAA(2)(d)". This is a technical consequential amendment, resulting
because existing section 124FAA is repealed by Schedule 1 of this Bill
(item 64 refers).
Item 48: Subparagraph 19B(2)(c)(iii)
Item 48 amends existing subparagraph 19B(2)(c)(iii) by omitting the
reference to ",124FAA(2)(e)". This is a technical consequential amendment,
resulting because existing section 124FAA is repealed by Schedule 1 of this
Bill (item 64 refers).
Item 49: Subparagraph 19B(2)(d)(iii)
Item 49 amends existing subparagraph 19B(2)(d)(iii) by omitting the
reference to ",124FAA(2)(d)". This is a technical consequential amendment,
resulting because existing section 124FAA is repealed by Schedule 1 of this
Bill (item 64 refers).
Item 50: Subsection 19D(11)(paragraph (a) of the definition of
disqualified practitioner)
Item 50 amends existing subsection 19D(11) at paragraph (a) of the
definition of the term disqualified practitioner by omitting the words
",124FAA(2)(d) or (e)". This is a technical consequential amendment,
resulting because existing section 124FAA is repealed by Schedule 1 of this
Bill (item 64 refers).
Item 51: Paragraphs 92(2)(f) and (g)
Item 51 amends existing paragraphs 92(2)(f) and 92(2)(g) by omitting the
words "of not more than 3 years". This is a technical consequential
amendment, resulting because of the insertion of new subsection 92(2A)
(item 52 refers).
Item 52: After subsection 92(2)
Existing paragraph 92(2)(f) provides that the action that may be specified
under a section 92 agreement includes that the person is to be
disqualified, for a specified period of 3 years or less starting when the
agreement takes effect, in respect of one or more of the following:
. provision of specified services, or provision of services other than
specified services;
. provision of services to a specified class of persons, or provision of
services to persons other than persons included in a specified class of
persons;
. provision of services within a specified location, or provision of
services otherwise than in a specified location.
Existing paragraph 92(2)(g) provides that the action that may be specified
under a section 92 agreement includes that a person is to be fully
disqualified for a specified period of 3 years or less starting when the
agreement takes effect.
Item 52 inserts new subsection 92(2A) which provides that, for the purposes
of existing paragraphs 92(2)(f) and 92(2)(g), the period specified must not
be more than 5 years (if the person is a practitioner in relation to whom
an agreement under section 92, or a final determination under section
106TA, has previously taken effect) or 3 years (in any other case).
Item 53: Paragraph 92(4)(e)
Item 53 amends existing paragraph 92(4)(e) by omitting "jurisdiction; and",
and substituting "jurisdiction.". This amendment is consequential upon the
repeal of existing paragraph 92(4)(f) (item 54 refers).
Item 54: Paragraph 92(4)(f)
Item 54 repeals existing paragraph 92(4)(f) which is no longer required
(item 58 refers).
Item 55: Paragraph 106U(1)(g)
Item 55 amends existing paragraph 106U(1)(g) by inserting after
"disqualified" the words ", for a specified period starting when the
determination takes effect,". This item clarifies paragraph 106U(1)(g) so
that it is clear that the period during which a practitioner is partially
disqualified starts when the determination takes effect.
Item 56: At the end of paragraph 106U(1)(h)
Item 56 amends existing paragraph 106U(1)(h) by inserting ", for a
specified period starting when the determination takes effect". This item
clarifies paragraph 106U(1)(h) so that it is clear that the period during
which a practitioner is fully disqualified starts when the determination
takes effect.
Item 57: At the end of paragraph 106U(3) and (4)
Item 57 repeals existing subsections 106U(3) and (4), substituting new
subsection 106U(3). (There is no new subsection 106U(4)). New subsection
106U(3) provides that, for the purposes of paragraphs 106U(1)(g) and (h)
(which concern directions included in a draft or final determination that a
practitioner be partly or fully disqualified for a specified period - items
55 and 56 refer), the period specified must not be more than 5 years (if
the person under review is a practitioner in relation to whom an agreement
under section 92, or a final determination under section 106TA, has
previously taken effect) or 3 years (in any other case).
Item 58: Section 106X
Section 106X requires the Director of Professional Services Review to
notify the Chairperson of a Medicare Participation Review Committee when a
practitioner has received two or more findings of inappropriate practice
through either a negotiated agreement under section 92 and/or a 106TA final
determination.
Item 58 repeals section 106X because new subsections 92(2A) and 106U(3)
will apply to practitioners who have received two or more findings of
inappropriate practice through either a negotiated agreement under section
92 and/or a 106TA final determination.
Item 59: Subsection 106ZPR(2)
Item 59 repeals subsection 106ZPR(2) as it is no longer required (item 54
refers).
Item 60: Subsection 124E(2A)
Under existing subsection 124E(2A), a Medicare Participation Review
Committee must be established where the Chairperson receives a notice under
existing section 106X. Item 60 repeals subsection 124E(2A) as it is no
longer required (item 58 refers).
Item 61: Subsection 124E(5)
Item 61 amends existing subsection 124E(5) by omitting "106X or". This is
a technical consequential amendment, resulting from the repeal of existing
section 106X (item 58 refers).
Item62: Subsection 124E(5)
Item 62 amends existing subsection 124E(5) by omitting ", (2A)". This is a
technical consequential amendment, resulting from the repeal of existing
subsection 124E(2A) (item 60 refers).
Item 63: Subsection 124EA(1)
Item 63 amends existing subsection 124EA(1) by omitting ", (2A)". This is
a technical consequential amendment, resulting from the repeal of existing
subsection 124E(2A) (item 60 refers).
Item 64: Section 124FAA
Existing section 124FAA sets out the permissible determinations that a
Medicare Participation Review Committee established under subsection
124E(2A) must make in relation to a practitioner. Item 64 repeals section
124FAA as it is no longer required (item 58 refers). Item 64 commences on
proclamation (see clause 2 of the Bill).
Note that item 9 of Schedule 2 of this Bill amends existing section 124FAA.
This amendment commences on the day after Royal Assent (i.e. before
proclamation).
Item 65: Subsection 124H(7)
Item 65 amends existing subsection 124H(7), by omitting the reference to
existing subsection 124FAA(2). This is a technical consequential
amendment, resulting from the repeal of existing section 124FAA (item 64
refers).
Item 66: Subsection 124J(8)
Item 66 amends subsection 124J(8) by omitting ", (2A)". This is a
technical consequential amendment resulting from the repeal of existing
subsection 124E(2A) (item 60 refers).
Item 67: Subsection 124S(9)
Item 67 amends existing subsection 124S(9) by omitting "or paragraph
124FAA(2)(d) or (e)". This is a consequential amendment, resulting from
the repeal of section 124FAA (item 64 refers).
Item 68: Application
Item 68 provides that the repeals and amendments of the HIA made by Part 8
do not apply in relation to a request to review the provision of services
by a person that was made under section 86 of that Act before the
commencement of this item.
Part 8 - Referrals to appropriate regulatory bodies
This Part is about the Director's referral obligations and powers under the
HIA in relation to significant threats to life or health.
Item 69: Paragraph 93(8)(a)
Item 69 amends existing paragraph 93(8)(a) by omitting the words "an
appropriate body" and substituting the words "a person or body". This
amendment is a technical consequential amendment, required as a result of
new subsections 106XA(2) to (4) (item 71 refers).
Item 70: Subsection 93(8)
Item 70 amends existing subsection 93(8) by omitting the words "the
appropriate body" and substituting the words "the person or body". This
amendment is a technical consequential amendment, required as a result of
new subsections 106XA(2) to (4) (item 71 refers).
Item 71: Subsections 106XA(2) to (4)
Item 71 repeals existing subsections 106XA(2) to (4) and substitutes new
subsections 106XA(2) to (4). New subsections 106XA(2) to (4): (i) broaden
the circumstances in which the Director is required to notify bodies of
conduct by a person under review that poses a significant threat to the
life or health of another person; (ii) requires the Director, where he or
she has formed an opinion under new subsection 106XA(3), to prepare and
send a written statement attaching relevant material to certain persons and
bodies; and (iii) defines 'appropriate person or body' for the purposes of
section 106XA.
Existing subsection 106XA(1) provides that where a Professional Services
Review Committee or the Determining Authority forms the opinion that
conduct by a person under review may cause a significant threat to the life
or health of another person, the Committee or the Determining Authority
must provide a written statement of their concerns, with material on which
their opinion is based, to the Director.
New subsection 106XA(2) provides that if the Director receives from a
Professional Services Review Committee or the Determining Authority a
statement and material under existing subsection 106XA(1) in relation to
conduct by a person under review, the Director must send the statement and
material to:
. a State or Territory body that is responsible for the administration of
health services or the protection of public health and safety in the
State or Territory in which the conduct occurred (for example, a State or
Territory Health Department, Chief Medical Officer or Health Care
Complaints Commission); and
. each appropriate person or body for the person under review (see new
subsection 106XA(4)) (for example, a Medical Board or other registration
body).
New subsection 106XA(3) is headed "Opinion formed by Director". New
subsection 106XA(3) provides that if, under Part VAA in relation to a
person under review, the Director forms the opinion that the conduct of a
person under review has caused, is causing, or is likely to cause a
significant threat to the life or health of any other person, the Director
must prepare a written statement of his or her concerns; attach to the
statement the material (or copies of material) on which his or her opinion
is based; and send the statement and material to:
. the State or Territory body that is responsible for the administration of
health service or the protection of public health and safety in the State
or Territory in which the conduct occurred (for example, a State or
Territory Health Department, Chief Medical Officer or Health Care
Complaints Commission); and
. each appropriate person or body for the person under review (see new
subsection 106XA(4)) (for example, a Medical Board or other registration
body).
New subsection 106XA(4) is headed "Meaning of appropriate person or body"
and provides that, for the purposes of new paragraph 106XA(2)(b) and new
subparagraph 106XA(3)(c)(ii), an appropriate person or body for a person
under review is a person or body that is specified in the regulations and
has the power to take action against the person under review. For example,
where a person under review is a medical practitioner, an appropriate body
would be the body responsible for registering medical practitioners, such
as a Medical Board.
Note 1 provides that the heading to existing section 106XA "Referring to an
appropriate regulatory body any significant threat to life or health" is
replaced by the heading "Significant threat to life or health". This is a
technical, consequential amendment.
Note 2 inserts the following heading to existing subsection 106A(1)
"Opinion formed by Committee or Determining Authority". This is a
technical, consequential amendment.
Item 72: Paragraph 106XB(2)(a)
Item 72 repeals existing paragraph 106XB(2)(a) and substitutes with a new
paragraph. New paragraph 106XB(2)(a) provides that if, under Part VAA in
relation to a person under review who is a practitioner, the Director forms
the opinion that the practitioner has failed to comply with professional
standards, then under existing paragraph 106XB(2)(c) the Director must
prepare and send a statement with relevant material to the appropriate body
referred to in subsection 106XB(3).
New paragraph 106XB(2)(a) differs from existing paragraph 106XB(2)(a) by
broadening the circumstances in which the Director may form an opinion
about whether the conduct of a person under review amounts to a failure to
comply with professional standards. Existing paragraph 106XB(2)(a) is
limited to the Director forming an opinion in the course of the Director's
review rather than at any stage of the process under Part VAA, for example,
in connection with functions and powers exercised by the PSR Committee or
the Determining Authority. The effect of new paragraph 106XB(2)(c) is that
the Director must prepare and send a statement under paragraph 106XB(2)(c)
to the appropriate body where they have formed an opinion at any stage of
the process, under Part VAA of the HIA that a practitioner has failed to
comply with professional standards.
The note provides that the heading to section 106XB, "Referring to
appropriate regulatory body any non-compliance by a practitioner with
professional standards" is replaced by the heading "Non-compliance by a
practitioner with professional standards". This is a consequential,
technical amendment.
Part 9 - Disqualified practitioners
Item 73: Subparagraphs 19B(2)(a)(ii) and (c)(iv)
Item 73 amends existing subparagraphs 19B(2)(a)(ii) and (c)(iv) by omitting
the word "partly" and substituting the word "fully". This amendment
corrects minor errors in existing subparagraphs 19B(2)(a)(ii) and (c)(iv)
which require correction to reflect the policy intent.
The amendment to subparagraph 19B(2)(a)(ii) means that a medicare benefit
is not payable in respect of a professional service if, at the time that
the service was rendered, the person who rendered the service (or on whose
behalf the service was rendered) was a practitioner who was taken to be
fully disqualified because a determination by a Medicare Participation
Review Committee was in effect under paragraphs 124F(2)(f) or 124FF(2)(e)
or 124FF(2)(f) in relation to another person.
The amendment to subparagraph 19B(2)(c)(ii) means that a medicare benefit
is not payable in respect of a professional service if the service was
initiated by a person (other than the person who rendered the service) and
the person who initiated the service (or on whose behalf the service was
initiated) was a practitioner who was taken to be fully disqualified
because a determination by a Medicare Participation Review Committee was in
effect under paragraph 124F(2)(f) or 124FF(2)(e) or 124FF(f) in relation to
another person.
Item 74: Subsection 19D(1)
Item 74 amends existing subsection 19D(1) to include the words "or 106ZPM"
after the words "section 19B".
Existing section 106ZPM sets out the circumstances in which a person under
review may be taken to be fully disqualified for the purposes of section
19D for intentionally failing to comply with a notice to produce documents
or give information within the period specified in the notice.
Under existing subsection 19D(1), the Minister may serve on a disqualified
practitioner a written instrument directing that with effect from a
particular day, the practitioner shall not render or initiate a specified
professional service or services for which medicare benefit is payable
(under existing section 19B) unless, before rendering or initiating such a
service (or services) to a patient, the practitioner provides a notice to,
or otherwise informs, the patient about the particulars of the
practitioner's disqualification and its effect.
This amendment to existing subsection 19D(1) is intended to ensure that
practitioners disqualified under section 106ZPM also have the notification
obligations imposed upon them under subsection 19D(1).
Item 75: Subsection 19D(11)(paragraph (c) of the definition of
disqualified practitioner)
Item 75 amends existing subsection 19D(11) at paragraph (c) of the
definition of the term disqualified practitioner by omitting the word
"fully". This is a technical amendment to clarify that, for the purposes
of section 19D, paragraph (c) of the definition of disqualified
practitioner also covers a practitioner who is partly disqualified under an
agreement between the practitioner and the Director under existing section
92 that is in effect.
Item 76: Subsection 19D(11)(paragraph (e) of the definition of
disqualified practitioner)
Item 76 amends existing subsection 19D(11) at paragraph (e) of the
definition of the term disqualified practitioner by omitting "paragraph
106U(1)(h) that the practitioner be fully disqualified" and substituting
"paragraph 106U(1)(g) or (h)". This is a technical amendment to clarify
that, for the purposes of section 19D, paragraph (e) of the definition of
disqualified practitioner also covers a practitioner who is partly
disqualified in accordance with existing paragraph 106U(1)(g).
Item 77: Subsection 19D(11)(note to the definition of disqualified
practitioner)
Item 77 repeals the note to existing subsection 19D(11).
Part 10- Patient referrals
Item 78: After section 132
Existing subsection 133(2) provides that in circumstances where an item
specifies a medical service that is to be rendered by a consultant
physician or a specialist, to a patient who has been referred to him or
her, regulations may require that, for the purposes of the item, the
patient be referred in a manner prescribed by the regulations.
However as a result of changes in health policy over the last decade a much
broader range of practitioners (including a range of allied health
practitioners) are now able to provide, on receipt of a referral, services
for which medicare benefit is payable. The purpose of the amendment at
item 78 is to enable regulations to be made which prescribe the manner in
which patients are referred for a service for which medicare benefit is
payable by a referring practitioner to another practitioner (who may not
necessarily be a consultant physician or specialist).
Item 78 inserts new section 132A.
New subsection 132A(1) provides that, if an item specifies a service that
is to be rendered by a practitioner to a patient who has been referred to
the practitioner, the regulations may require that, for the purposes of the
item, the patient is to be referred in a manner prescribed by the
regulations.
New subsection 132A(2) defines the terms item and practitioner for the
purposes of new section 132A.
New subsection 132A(2) provides that the term item includes an item
relating to a service specified in a determination in force under
subsection 3C(1). This provision is necessary because a service that is
specified in a determination made under subsection 3C(1) is, pursuant to
that determination, only treated (for the purposes of specified provisions
of the HIA, the National Health Act 1953 and regulations made under those
Acts), as if there were an item in a table that related to the service.
There is no actual item in a table that relates to the service.
The term practitioner is defined as having the same meaning as in section
124B. Existing subsection 124B(1) defines the term practitioner and is
amended by this Bill to include a health professional of a kind determined
by the Minister to be a practitioner for the purposes of Part VB (item 21
refers)). This ensures that the term practitioner, as it is used in
section 132A, will cover the broad range of practitioners specified in the
definition of practitioner in section 124B.
Item 79: Subsection 133(2)
This item repeals subsection 133(2). Subsection 133(2) is no longer
required as it has been replaced by new subsection 132A (item 78 refers).
Schedule 2 - Other amendments
Items 1 to 8 of Schedule 2 of the Bill make a number of technical
amendments to the HIA as a consequence of the commencement of the
Legislative Instruments Act 2003. These amendments do not in any way
affect the operation of the provisions of the HIA.
Item 9 of Schedule 2 of the Bill amends existing section 124FAA to clarify
its operation with respect to practitioners who are subject to section 92
agreements. Although Schedule 1 of the Bill will repeal section 124FAA with
effect from a day to be fixed by Proclamation, the repeal only applies in
relation to section 86 requests made after the repeal takes effect. The
"old law" (section 124FAA amended as proposed in item 9) will continue to
operate in relation to requests made before that repeal.
Item 1: Subsection 86(5)
Item 1 amends existing subsection 86(5) by inserting ", by legislative
instrument," after "Minister may". This is a minor technical amendment as
a consequence of the Legislative Instruments Act 2003. The amendment makes
it clear that the instrument referred to in the subsection is a legislative
instrument under the Legislative Instruments Act 2003.
Item 2: Subsection 86(6)
Item 2 repeals existing subsection 86(6) as the subsection refers to
section 46A of the Acts Interpretation Act 1901 which was repealed by the
Legislative Instruments Act 2003. The subsection is repealed because it is
redundant.
Item 3: Subsection 93(4)
Item 3 amends existing subsection 93(4) by omitting the reference to "in
writing" and substituting a reference to "by legislative instrument". This
is a minor technical amendment as a consequence of the Legislative
Instruments Act 2003. The amendment makes it clear that the instrument
referred to in the subsection is a legislative instrument under the
Legislative Instruments Act 2003.
Item 4: Subsection 93(5)
Item 4 repeals subsection 93(5) as the subsection refers to section 46A of
the Acts Interpretation Act 1901 which was repealed by the Legislative
Instruments Act 2003. The subsection is repealed because it is redundant.
Item 5: Subsection 106K(3)
Item 5 amends subsection 106K(3) by omitting the reference to "make
written" and substituting a reference to ", by legislative instrument,
make". This is a minor technical amendment as a consequence of the
Legislative Instruments Act 2003. The amendment makes it clear that the
instrument referred to in the subsection is a legislative instrument under
the Legislative Instruments Act 2003.
Item 6: Subsection 106K(5)
Item 6 repeals subsection 106K(5) as the subsection refers to section 46A
of the Acts Interpretation Act 1901 which was repealed by the Legislative
Instruments Act 2003. The subsection is repealed because it is redundant.
Item 7: Subsection 106Q(3)
Item 7 amends subsection 106Q(3) by inserting ", by legislative
instrument," after "Minister may". This is a minor technical amendment as
a consequence of the Legislative Instruments Act 2003. The amendment makes
it clear that the instrument referred to is a legislative instrument under
the Legislative Instruments Act 2003.
Item 8: Subsection 106Q(4)
Item 8 repeals subsection 106Q(4) as the subsection refers to section 46A
of the Acts Interpretation Act 1901 which was repealed by the Legislative
Instruments Act 2003. The subsection is repealed because it is redundant.
Item 9: At the end of section 124FAA
Item 9 inserts new subsection 124FAA(7). New subsection 124FAA(7)
clarifies that in section 124FAA, a reference to a final determination
under section 106TA includes a reference to a section 92 agreement entered
into between a person under review and the Director of Professional
Services Review that, under paragraph 92(4)(f), is taken to be a final
determination for the purposes of section 106X.
This amendment makes it clear that where a person under review has been
referred to a Medicare Participation Review Committee under section 106X
(because two section 92 agreements or a section 92 agreement and a final
determination under section 106TA have taken effect in relation to the
person), paragraph 124FAA(2)(a) allows the Medicare Participation Review
Committee to take no action in addition to the action taken under the
section 92 agreements or the section 92 agreement and final determination
(as the case requires) that gave rise to the Medicare Participation Review
Committee being established under subsection 124E(2A).
This amendment also makes it clear that if the Medicare Participation
Review Committee determines under section 124FAA that a practitioner is
disqualified, that determination has the effect of replacing any period of
disqualification set out in a section 92 agreement or final determination
(as the case requires) that is still in force at the time that the Medicare
Participation Review Committee's determination under section 124FAA is
made.