Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2002-2003
THE PARLIAMENT OF THE
COMMONWEALTH OF AUSTRALIA
SENATE
EXPLANATORY
MEMORANDUM
Circulated by authority of the Minister for Health and
Ageing,
Senator the Honourable Kay Patterson)
HEALTH LEGISLATION AMENDMENT BILL (No. 1) 2003
This bill contains amendments relating to two areas in the Health
portfolio.
AMENDMENTS TO THE HEALTH AND OTHER SERVICES COMPENSATION
SCHEME RELATING TO ASCERTAINING AN AMOUNT OF COMPENSATION
Under the
Health and Others Services (Compensation) Act 1995, (the HOSC Act) and
the Health and Other Services (Compensation) Care Charges Act 1995 (the
Charges Act), the Commonwealth is able to recover an amount equivalent to the
medicare and nursing home/residential care benefits that have been provided in
relation to a compensable injury.
The administrative program underlying
these Acts is the Compensation Recoveries Program (the Program) managed by the
Health Insurance Commission (the HIC).
The purpose of Schedule 1 of this
Bill is to clarify the circumstances in the HOSC Act under which medicare and
residential care benefits paid to compensation claimants can be recovered. The
Federal Court recently ruled that because the exact amount of compensation
payable was not fixed or ascertainable at the time of the judgement or
settlement, the HOSC Act did not apply. The proposed amendments will ensure
that the Commonwealth can identify and recover the debt owed to it by successful
claimants under those circumstances.
The principal amendments are to the
HOSC Act. The bill also makes consequential amendments to the Charges
Act.
The amendments are based on the premise that the HOSC Act will apply
to judgements or settlement in compensation cases regardless of whether the
amount of money is fixed at the time of the judgement or settlement or
ascertainable at a later date.
The Bill makes changes to the legislative provisions covering the
Australian Childhood Immunisation Register. The main change relates to an
expansion of the Register, to cover previous foreign immunisation encounters of
children where these are notified to the Health Insurance Commission by
Australian recognised immunisation providers or prescribed bodies. This change
means that the Register will contain a complete immunisation record for more
children. The Bill also updates two of the definitions underpinning the scheme,
those relating to the “Australian Procedures Handbook” and
“vaccine preventable disease”.
FINANCIAL IMPACT STATEMENT
NOTES ON CLAUSES
This is a formal provision that specifies the short title of the
Bill.
Clause 2 provides the commencement provisions for the Act. Sections 1-3
and Schedule 1 of the Bill commence on the day it receives Royal
Assent.
The Schedule 2 amendments have a delayed commencement (90 days
after Royal Assent) to give the Health Insurance Commission time to make the
necessary changes to its administrative systems.
Clause 3 –
Schedule(s)
This clause provides that each Act that is specified in
the Schedule is to be amended or repealed as set out in the applicable items in
the Schedule.
This item extends the time period in paragraph 8(1)(a) where an amount of
compensation can be ascertained to include a period later than when the
judgement or settlement is made.
This item extends the time period in paragraph 8(8) to extend the period
from the judgement or settlement to include a period where the amount of
compensation is fixed or ascertainable to not effect the validity of a payment
of money pursuant to a notice under section 24.
This item extends the capacity of paragraph 10(1)(a) to ascertain an
amount of compensation at a later period to the judgement or settlement decision
in relation to the recovery of past payments of nursing home benefits or
residential care subsidies.
This item extends the time frame in paragraph 10(6)(c) for the judgement
or settlement to include the period when an amount of compensation is fixed or
ascertainable to not apply to claimants who have entered into a bulk payment
agreement.
This item extends the time frame in paragraph 10(7)(a) for the judgement
or settlement to include the period when an amount of compensation is fixed or
ascertainable to not apply to claimants who have entered into a bulk payment
agreement.
This item extends the time period in paragraph 10(8) from the judgement
or settlement to include a period where the amount of compensation is fixed or
ascertainable to not effect the validity of a payment of money pursuant to a
notice under section 24. This application applies to the recovery of past
payments of nursing home benefits or residential care subsidies.
This item extends the time period in paragraph 18(4)(a) for the judgement
or settlement to include the period when an amount of compensation is fixed or
ascertainable at a later period in relation allowing an extension of time for a
claimant to complete a statement of past benefits.
Item
12
This item extends the time period in paragraph 18(4)(b) for the
judgement or settlement to include the period when an amount of compensation is
fixed or ascertainable in relation to the period of time being extended where
the Managing Director had not given a notice under section 21, in respect of the
claim for compensation, during the 6 months preceding the judgement or
settlement.
This item rewords paragraph 18(7)(b) to enable an extension of the time
period for the judgement or settlement to include the period when an amount of
compensation is fixed or ascertainable when the managing Director must give a
notice for the purposes of subsection 6.
This item extends the time period in paragraph 18(7)(c) that a claimant
has from the date of the judgement or settlement to include the period when an
amount of compensation is fixed or ascertainable to advise which services on the
notice of past benefits were not rendered in the course of treatment for the
specific injury and that the claimant’s failure to notify was reasonable
in the circumstances.
This item extends the time period in subsection 21(5) for the judgement
or settlement to include the period when an amount of compensation is fixed or
ascertainable in relation to the notice of past benefits being regarded as a
notice of charge under section 24.
This item extends the time frame in subsection 21(5) for the judgement or
settlement to include the period when an amount of compensation is fixed or
ascertainable in relation to the notice of past benefits being regarded as a
notice of charge under section 24.
This item extends the time period in paragraph 22(1)(b) for the Managing
Director has within 6 months prior to the settlement or the day on which an
amount of compensation was fixed under the settlement, to allow a settlement to
be made.
This item provides in paragraph 23(3)(e) for a situation where the
notifiable person must notify the Commission of a judgement or settlement where
an amount of compensation may not be ascertainable at the time of the judgement
or settlement.
This item provides a cross reference to new subsection (3A) at the bottom
at paragraph 23(3)(f).
This item provides in subsection 23(3) a new paragraph (3A) allowing for
the notifiable person to notify the Commission of an amount of compensation,
when that amount was ascertained, if that amount was ascertained at a date later
then at the time of the judgement or settlement.
This item amends subsection 23(4) to include the new provision (3A) at
Item 20. It includes the provision to include amounts of compensation that are
ascertained after the judgement or settlement.
This item amends subsection 23(5) to include the new provision (3A) at
Item 20. It includes the provision to include amounts of compensation that are
ascertained after the judgement or settlement.
This item amends subsection 23(6) to include the new provision (3A) at
Item 20. It includes the provision to include amounts of compensation that are
ascertained after the judgement or settlement.
This item extends the time period in paragraph 23A(1)(a) for the
judgement or settlement to include the period when an amount of compensation is
fixed or ascertainable in relation to a notice when no relevant past benefits
apply to the compensation claim.
This item extends the coverage of paragraph 23A(1)(b) to include the new
provision at subsection 3(A) when the Commission has received a notice from the
notifiable person in relation to the judgement or settlement.
This item extends the time frame in paragraph 23A(1)(c) for the judgement
or settlement to include the period when an amount of compensation is fixed or
ascertainable where no relevant past benefits apply and the Managing Director
had not given the notifiable person a notice under section 21.
This item applies to subparagraphs 23A(1)(d)(i) and (ii) where the
Managing Director had not given the notifiable person a notice under section 21
before the start of the 6 month period or where the Managing Director had given
the notice but there the Commonwealth had not paid any eligible benefits and
where an amount of compensation was fixed at the time of judgement or
settlement.
This item extends the time period in paragraphs 23A(2)(a) and (b) for the
judgement or settlement to include the period when an amount of compensation is
fixed or ascertainable where no eligible benefits had been paid to the
claimant.
Item 29
This item extends the time period in
paragraph 24(4)(a) for the judgement or settlement to include the period where
an amount of compensation is fixed or ascertainable where the Managing Director
had not given a notice under section 21.
Item 30
This item
extends the time period in paragraph 24(6) for the judgement or settlement to
include the period when an amount of compensation is fixed or ascertainable for
a notice under section 21 to become a notice of charge.
Item
31
This item extends the time period in paragraph 32(1)(b) for the
judgement or settlement to include the period when an amount of compensation is
fixed or ascertainable to make it an offence for the insurer or compensation
payer to withhold from the compensable person an amount set out in the notice
under paragraph 21(2)(b).
Item 32
This item extends the
time frame in paragraph 33B(1)(a) for the judgement or settlement to include the
period when an amount of compensation is fixed or ascertainable for an advance
payment to be made where a notice under section 21 had not been given.
This item rewords subsection 35(2) to exclude the operation of Divisions
1 and 2 in relation to an amount of compensation fixed under a judgement or
settlement if the amount was fixed prior to the start of the bulk billing
agreement.
This item extends the time period in paragraph 36(1)(c) for the judgement
or settlement to include the period when an amount of compensation is fixed or
ascertainable at a later period than at judgement or settlement where a
settlement can be made during a bulk billing agreement.
This item extends the time frame in paragraph 36(3)(a) for the judgement
or settlement to include the period when an amount of compensation is fixed or
ascertainable at a later period than at judgement or settlement before the bulk
billing agreement was made.
This item extends the time frame in paragraph 36(3)(c) for the judgement
or settlement to include the period when an amount of compensation is fixed
under a further judgement or settlement referred to in subsection 36(1) during
periods of a bulk billing agreement.
This item extends the time frame in paragraph 36(4)(a) for the judgement
or settlement to include the period when an amount of compensation is fixed or
ascertainable during periods of a bulk billing agreement.
This item extends the time frame in subsection 36(5) for the judgement or
settlement to include the period when an amount of compensation is fixed or
ascertainable to not effect the validity of a payment of money pursuant to a
notice under section 24 or 25 if the payment occurred before the amount of
compensation was fixed or becomes ascertainable.
This is an application provision. The amendments will apply only to
matters where a judgement or settlement occurs after the amendments
commence.
SCHEDULE 1 - PART 2 – AMENDMENT OF
THE HEALTH AND OTHER SERVICES (COMPENSATION) CARE CHARGES ACT
1995
This item extends the provisions of paragraph 6(1)(a) to apply to a
charge on compensation amounts in respect of past payments for medicare benefits
regardless of whether the amount was fixed at the time of judgement or
settlement or was fixed or ascertainable at a later period.
This item extends the time period in paragraph 6(6)(c) for the judgement
or settlement to include the period when an amount of compensation is fixed or
ascertainable to not apply to claimants who have entered into a bulk payment
agreement prior to that date.
This item extends the time period in paragraph 6(7)(a) for the judgement
or settlement to include the period when an amount of compensation, is fixed or
ascertainable at a later period than judgement or settlement, to not apply to
claimants who have entered into a bulk payment agreement prior to that period.
This item clarifies subsection 6(8) to refer to an amount of compensation
in respect of a past medicare benefit, where compensation was fixed at judgement
or settlement rather than at a judgement or settlement that may not have fixed
the amount of compensation. The fixing of the amount of compensation does not
affect the validity of a payment of money pursuant to a notice under section 24
of the HOSC Act if the payment occurred before the amount was fixed.
This item provides for paragraph 8(1)(a) to apply to a charge on
compensation amounts in respect of past payments of nursing home benefits or
residential care subsidy regardless of whether the amount was fixed at the time
of judgement or settlement or was fixed or ascertainable at a later period.
This item extends the time period in paragraph 8(6)(c) for the judgement
or settlement to include the period when an amount of compensation is fixed or
ascertainable to not apply to claimants who have entered into a bulk payment
agreement prior to that period.
This item extends the time period in paragraph 8(7)(a) for the judgement
or settlement to include the period when an amount of compensation that apply to
nursing home benefit or residential care subsidy, is fixed or ascertainable at a
later period than judgement or settlement, to not apply to claimants who have
entered into a bulk payment agreement prior to that period.
This item clarifies subsection 8(8) to refer to an amount of compensation
in respect of a past nursing home or residential care subsidy, where
compensation was fixed at judgement or settlement rather than at a judgement or
settlement that may not have fixed the amount of compensation. The fixing of
the amount of compensation does not affect the validity of a payment of money
pursuant to a notice under section 24 of the HOSC Act if the payment occurred
before the amount was fixed.
Item 48
This item provides for
the amendments made to this Schedule to apply to a claim for compensation where
a judgement or settlement has been made after the commencement of this item.
Schedule 2 – Amendments relating to the
Australian Childhood Immunisation Register : Health Insurance Act
1973
Item 4 inserts a new definition, of “foreign immunisation
encounter”, in section 46A. The definition links to the new definition of
“vaccine preventable disease”.
Item 5 adds a new
provision, to the section 46A definition of “immunisation”,
referring to vaccines administered outside Australia. This is necessary, to
support the expansion of the Part IVA provisions to cover foreign immunisation
encounters, as the vaccines administered overseas will not be covered by the
other limbs of the definition of “immunisation” (since they will not
be vaccines that are either registered or approved under, or exempt goods within
the meaning of, the Therapeutic Goods Act 1989).
Item 6
repeals the section 46A definition of “immunisation encounter”.
This definition is replaced by the new definitions, “Australian
immunisation encounter” and “foreign immunisation encounter”
(Items 1 and 4, above).
Item 7 repeals the definition of
“information”, in section 46A, and substitutes a new definition of
the term, which contemplates both Australian and foreign immunisation
encounters. The meaning of “information” is now expanded in the new
definitions of “information relating to a child’s Australian
immunisation encounter” and “information relating to a child’s
foreign immunisation encounter” (see Items 8 and 9, below).
Item
8 inserts a new definition of “information relating to a child’s
Australian immunisation encounter”, which mirrors the inclusions and
exclusions set out in the previous section 46A definition of
“information”.
Item 9 inserts a new definition of
“information relating to a child’s foreign immunisation
encounter”. Such information can include an interpretation of information
relating to the foreign immunisation encounter, where such interpretation is
provided by the Australian-based recognised immunisation provider or prescribed
body who is notifying details of the foreign immunisation encounter to the
Health Insurance Commission. (Such interpretative information, for example,
might relate to the equivalence of the overseas-administered vaccine to a
vaccine ordinarily administered in Australia, as a registered, approved or
exempt vaccine under the Therapeutic Goods Act 1989.)
Item
10 repeals the definition of “vaccine preventable disease” and
substitutes a more generic definition of the term, referring to the diseases
listed as “vaccine preventable diseases” in the Australian
Immunisation Handbook. The previous provision listed the relevant diseases
within the section 46A definition itself (for example, diphtheria, measles,
mumps). The new provision will more readily accommodate changes, from time to
time, in the Australian schedule of childhood immunisations.
Item
11 repeals paragraph 46B(b) and replaces it with a new paragraph that refers
to both Australian immunisation encounters and foreign immunisation encounters,
where these are notified to the Health Insurance Commission by recognised
immunisation providers or prescribed bodies. Section 46B sets out the functions
of the Health Insurance Commission in relation to the Australian Childhood
Immunisation Register, and paragraph 46B(b) relates to the recording of
immunisation encounters on that Register.