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This is a Bill, not an Act. For current law, see the Acts databases.
2002
The Parliament of
the
Commonwealth of
Australia
HOUSE OF
REPRESENTATIVES
Presented and read a first
time
Health
Insurance Amendment (Professional Services Review and Other Matters) Bill
2002
No. ,
2002
(Health and
Ageing)
A Bill for an Act to amend the
Health Insurance Act 1973, and for other purposes
Contents
Health Insurance Act
1973 3
Health Insurance Amendment (Professional Services Review) Act
1999 34
Health Insurance Act
1973 36
Health Insurance Act
1973 38
A Bill for an Act to amend the Health Insurance Act
1973, and for other purposes
The Parliament of Australia enacts:
This Act may be cited as the Health Insurance Amendment (Professional
Services Review and Other Matters) Act 2002.
(1) Each provision of this Act specified in column 1 of the table
commences, or is taken to have commenced, on the day or at the time specified in
column 2 of the table.
|
Commencement information |
||
|---|---|---|
|
Column 1 |
Column 2 |
Column 3 |
|
Provision(s) |
Commencement |
Date/Details |
|
1. Sections 1 to 3 and anything in this Act not elsewhere covered by
this table |
The day on which this Act receives the Royal Assent |
|
|
2. Schedule 1, items 1 to 118 |
The first day of the month immediately following the month in which this
Act receives the Royal Assent |
|
|
3. Schedule 1, items 119 to 123 |
The day on which this Act receives the Royal Assent |
|
|
4. Schedule 2 |
The day on which this Act receives the Royal Assent |
|
|
5. Schedule 3 |
Immediately after the commencement of the Social Security Legislation
Amendment (Concession Cards) Act 2001 |
|
Note: This table relates only to the provisions of this Act
as originally passed by the Parliament and assented to. It will not be expanded
to deal with provisions inserted in this Act after assent.
(2) Column 3 of the table is for additional information that is not part
of this Act. This information may be included in any published version of this
Act.
Each Act that is specified in a Schedule to this Act is amended or
repealed as set out in the applicable items in the Schedule concerned, and any
other item in a Schedule to this Act has effect according to its
terms.
1 At the end of subsection
10(1)
Add:
Note: For eligible person, medical
expenses, medicare benefit and professional
service see subsection 3(1).
2 Subsection 19D(11) (at the end of the
definition of disqualified practitioner)
Add:
; or (c) who is fully disqualified under an agreement that is in effect
under section 92; or
(d) who is fully disqualified under section 105; or
(e) in relation to whom a final determination under section 106TA
containing a direction under paragraph 106U(1)(h) that the practitioner be fully
disqualified is in effect; or
(f) who is fully disqualified for the purposes of this section under
section 106ZPM.
Note: Medicare benefits are not payable in respect of
services rendered or initiated by, or on behalf of, disqualified practitioners
(see section 19B).
3 Subparagraph
23B(7)(a)(ii)
Omit “section 106T”, substitute
“section 106TA”.
4 Subparagraph
23B(7)(b)(ii)
Omit “section 106T”, substitute
“section 106TA”.
5 Subsection 23D(2)
Repeal the subsection, substitute:
(2) A determination takes effect at the end of the 28 day period beginning
on the day on which the notification of the determination was served on the
person.
(3) If an application for review of the determination is made under
section 23DAA within the period allowed for the application,
subsection (2) operates subject to any order by the Administrative Appeals
Tribunal or by a court in relation to the application.
6 At the end of
Part II
Add:
Application may be made to the Administrative Appeals Tribunal for review
of a determination (within the meaning of section 23D).
Note: Under section 27A of the Administrative
Appeals Tribunal Act 1975, the decision-maker must notify persons whose
interests are affected by the making of the decision of their right to have the
decision reviewed. In notifying any such persons, the decision-maker must have
regard to the Code of Practice determined under section 27B of that
Act.
7 Subsection 23DA(1) (paragraph (e) of the
definition of relevant person)
Omit “section 106T”, substitute
“section 106TA”.
8 Paragraph 23DC(6)(d)
Omit “section 106T”, substitute
“section 106TA”.
9 Paragraph 23DF(7)(c)
Omit “section 106T”, substitute
“section 106TA”.
10 Section 80
Repeal the section, substitute:
The object of this Part is to protect the integrity of the Commonwealth
medicare benefits and pharmaceutical benefits programs and, in doing
so:
(a) protect patients and the community in general from the risks
associated with inappropriate practice; and
(b) protect the Commonwealth from having to meet the cost of services
provided as a result of inappropriate practice.
(1) This section summarises the main features of the Professional Services
Review Scheme established by this Part.
(2) The Professional Services Review Scheme is a scheme for reviewing and
investigating the provision of services by a person to determine whether the
person has engaged in inappropriate practice.
(3) The Commission can request the Director to review the provision of
services by a person and the Director must decide whether to undertake a
review.
(4) Following a review, the Director must:
(a) decide to take no further action in relation to the review;
or
(b) enter into an agreement with the person under review; or
(c) make a referral to a Committee.
(5) If the Director enters into an agreement with the person under review,
the agreement must be ratified by the Determining Authority before it takes
effect. Having an agreement ratified avoids a Committee investigation.
(6) A referral to a Committee initiates an investigation by the Committee
into the provision of the services specified in the referral. The Committee can
investigate any aspect of the provision of the referred services and its
investigation is not limited by any reasons given in a request for review or a
Director’s report following a review.
(7) Committee members must belong to professions or specialities relevant
to the investigation.
(8) Committees can hold hearings and require the person under review to
attend and give evidence. Committees also have the power to require the
production of documents (including clinical records).
(9) Committees can base findings on investigations of samples of
services.
(10) If a Committee finds that the person under review has engaged in
inappropriate practice, the finding will be reported to the Determining
Authority. The Determining Authority decides what action to take.
(11) Provision is made throughout the scheme for the person under review
to make submissions before key decisions are made or final reports are
given.
(12) A Committee cannot make a finding of inappropriate practice unless it
has given the person under review:
(a) notice of its intention to do so; and
(b) the reasons for the finding; and
(c) an opportunity to respond.
11 Subsection 81(1) (definition of
adjudicative referral)
Repeal the definition.
12 Subsection 81(1)
Insert:
Committee investigation means an investigation by a Committee
under Division 4.
13 Subsection 81(1)
Insert:
Director’s review means a review undertaken by the
Director under Division 3A.
14 Subsection 81(1) (definition of
findings)
Repeal the definition, substitute:
findings, in relation to a draft report or final report of a
Committee, means the Committee’s findings as to whether the person under
review engaged in inappropriate practice in the provision of some or all of the
services specified in the referral made to the Committee.
15 Subsection 81(1) (definition of
investigative referral)
Repeal the definition.
16 Subsection 81(1) (paragraph (a) of the
definition of legal services)
Omit “an adjudicative”, substitute “a”.
17 Subsection 81(1) (definition of person
under review)
Repeal the definition, substitute:
person under review means:
(a) in relation to a Director’s review of the provision of services
by a person—that person; or
(b) in relation to a Committee investigation into whether a person engaged
in inappropriate practice—that person.
18 Subsection 81(1)
Insert:
provides services has the meaning given by
subsection (2).
19 Subsection 81(1) (definition of
referral)
Repeal the definition, substitute:
referral means a referral to a Committee under
section 93.
20 Subsection 81(1) (definition of referral
period)
Repeal the definition.
21 Subsection 81(1) (definition of referred
services)
Repeal the definition, substitute:
referred services, in relation to a Committee investigation,
means the services specified in the referral made to the Committee under
section 93.
22 Subsection 81(1)
Insert:
review period, in relation to:
(a) a request by the Commission under section 86 (the initial
request); or
(b) a Director’s review arising from the initial request;
or
(c) a Committee investigation arising from the Director’s review;
or
(d) a request by a Committee under subsection 106J(1) arising from the
Committee investigation;
means the period specified in the initial request.
23 Subsection 81(1) (at the end of the
definition of service)
Add:
Note: See Part II, and in particular section 10,
for when a medicare benefit is payable.
24 At the end of
section 81
Add:
(2) For the purposes of this Part, a person provides
services if the services are rendered or initiated by:
(a) the person; or
(b) a practitioner employed by the person; or
(c) a practitioner employed by a body corporate of which the person is an
officer.
25 Paragraph 82(1)(a)
Omit “referred”.
26 Paragraph 82(1)(b)
Omit “referred”.
27 Paragraph 82(1)(c)
Omit “referred”.
28 Paragraph 82(1)(d)
Omit “referred”.
29 Division 3 of Part VAA
(heading)
Repeal the heading, substitute:
30 Sections 86 to 89
Repeal the sections, substitute:
(1) The Commission may, in writing, request the Director to review the
provision of services by a person during the period specified in the
request.
Note: For provides services see subsection
81(2).
(2) The period specified in the request must fall within the 2 year period
immediately preceding the request.
(3) The request must include reasons for the request.
(4) The content and form of the request must comply with any guidelines
made under subsection (5).
(5) The Minister may make guidelines about the content and form of
requests for review.
(6) The guidelines:
(a) must be in writing; and
(b) are disallowable instruments for the purposes of section 46A of
the Acts Interpretation Act 1901.
(1) If the Commission requests the Director to review the provision of
services by a person, the Commission must, within 7 days after making the
request, give the person written notice of the request.
(2) Failure to comply with subsection (1) does not affect the
validity of the request.
(1) If the Commission requests the Director to review the provision of
services by a person, the Director may request the Commission to provide further
information in relation to the provision of those services.
Note: The Director may request further information from the
Commission either for the purpose of making a decision whether to undertake a
review or for the purposes of a review.
(2) A request under subsection (1) may relate to any or all of the
services provided by the person during the review period.
(3) The Commission must comply with a request under subsection (1) so
far as it is capable of doing so.
(1) If the Commission requests the Director to review the provision of
services by a person, the Director must, within 1 month after receiving the
request, decide whether or not to undertake the review.
(2) The Director must decide to undertake the review if, after considering
the request and any other relevant information the Director has obtained, it
appears to the Director that there is a possibility that the person has engaged
in inappropriate practice in providing services during the review
period.
(3) If the Director does not make a decision under subsection (1)
within the period of 1 month specified in that subsection, the Director is taken
to have decided, at the end of that period, to undertake the review.
(4) The Director must give written notice of the decision to:
(a) the person; and
(b) the Commission.
(5) The notice must be given within 7 days after the decision is made but
failure to give the notice within that time does not affect the validity of the
decision.
(6) If the Director decides to undertake the review, the notice given to
the person under review under paragraph (4)(a) must set out the terms of
section 89B.
(7) Failure to comply with subsection (6) does not affect the
validity of the decision.
(8) If the Director decides not to undertake the review, the notice given
to the Commission under paragraph (4)(b) must include the grounds for the
decision.
If the Director decides to undertake the review, he or she:
(a) may review any or all of the services provided by the person under
review during the review period; and
(b) may undertake the review in such manner as he or she thinks
appropriate; and
(c) in undertaking the review, is not limited by the reasons included in
the request under subsection 86(3).
If:
(a) the Commission makes a request (the current request) to
the Director to review the provision of services by a person; and
(b) the Director decided not to undertake a review in relation to the most
recent previous request made by the Commission in relation to the
person;
the Director must undertake a review in relation to the current request,
and subsections 88A(4) to (6) and section 88B apply as if the Director had
decided to undertake the review.
31 Subsection 89A(1)
Omit “the referred services”, substitute “services
provided by the person during the review period”.
32 Paragraph 89A(2)(a)
Omit “investigation”, substitute
“review”.
33 Paragraph 89A(2)(b)
Omit “investigation”, substitute
“review”.
34 Subsection 89B(1) (definition of relevant
documents)
Omit “investigation”, substitute
“review”.
35 Subsection 89B(1) (definition of relevant
documents)
Omit “referral”, substitute “review”.
36 Subsection 89B(2)
Omit “conducting an investigation under section 89”,
substitute “undertaking a review”.
37 Subsection 89B(6)
Omit “pursuant”, substitute “in
response”.
38 After section 89B
Insert:
(1) Following a review of the provision of services by a person, the
Director must either:
(a) make a decision under section 91 to take no further action in
relation to the review; or
(b) give the person under review:
(i) a written report setting out the reasons why the Director has not made
a decision under section 91; and
(ii) an invitation to make written submissions to the Director, within 1
month, about the action the Director should take in relation to the
review.
(2) If the Director gives the person under review a report and invitation
under paragraph (1)(b), the Director must, as soon as practicable after
taking into account any submissions made as mentioned in
subparagraph (1)(b)(ii):
(a) decide to take no further action in relation to the review in
accordance with section 91; or
(b) enter into an agreement with the person under review under
section 92; or
(c) make a referral to a Committee under section 93.
39 Subsection 90(1)
Omit “the investigative referral”, substitute “a
review”.
40 Section 91
Repeal the section, substitute:
(1) The Director may decide to take no further action in relation to a
review if he or she is satisfied that:
(a) there are insufficient grounds on which a Committee could reasonably
find that the person under review has engaged in inappropriate practice in
providing services during the review period; or
(b) circumstances exist that would make a proper investigation by a
Committee impossible.
(2) Within 7 days after making a decision to take no further action in
relation to a review, the Director must give the Commission and the person under
review:
(a) written notice of the decision; and
(b) a written report setting out the grounds for the decision.
41 Subsection 92(1)
Repeal the subsection, substitute:
(1) If the person under review is a practitioner, the Director and the
person may enter into a written agreement under which:
(a) the person acknowledges that the person engaged in inappropriate
practice in connection with rendering or initiating specified services during
the review period; and
(b) specified action in relation to the person (being action of a kind
mentioned in subsection (2)) is to take effect.
42 Paragraph 92(2)(e)
Omit “revoked or suspended”, substitute “suspended for a
period of not more than 3 years starting when the agreement takes
effect”.
43 At the end of subsection
92(2)
Add:
Note: Medicare benefits are not payable in respect of
services rendered or initiated by, or on behalf of, disqualified practitioners
(see section 19B).
44 Paragraph 92(4)(d)
Omit “paragraph (2)(a), (c), (f) or (g)”, substitute
“subsection (2)”.
45 After section 92
Insert:
If:
(a) the Director enters into an agreement with the person under review;
and
(b) the Determining Authority refuses to ratify the agreement;
and
(c) before the end of the period of 3 months after the refusal:
(i) the Director has not made a decision under section 91 to take no
further action in relation to the review; or
(ii) the Determining Authority has not ratified a further agreement
between the Director and the person under review; or
(iii) the Director has not made a referral to a Committee to investigate
whether the person under review engaged in inappropriate practice in providing
services during the review period;
then, the Director must make such a referral.
Note: Subsection 92(5) provides for the making of further
agreements following a refusal by the Determining Authority to ratify an
agreement.
46 Subsections 93(1) and
(2)
Repeal the subsections, substitute:
(1) The Director may, by writing, set up a Committee in accordance with
Division 4, and make a referral to the Committee to investigate whether the
person under review engaged in inappropriate practice in providing the services
specified in the referral.
(2) If the referral arises from a request made by a Committee to the
Director under subsection 106J(1), the Director may, instead of setting up a
Committee under subsection (1), make the referral to the Committee that
made the request.
Note: The heading to section 93 is replaced by the
heading “Referral to a Committee”.
47 Subsection 93(3)
Omit “an adjudicative”, substitute “a”.
48 Subsection 93(4)
Omit “adjudicative”.
49 Subsections 93(6) and
(7)
Repeal the subsections, substitute:
(6) If the Director makes a referral, the Director must:
(a) prepare a written report for the Committee, in respect of the services
to which the referral relates, giving reasons why the Director thinks the person
under review may have engaged in inappropriate practice in providing the
services; and
(b) attach the report to the referral.
(7) Within 7 days after making the referral, the Director must give a copy
of the referral and report to the Commission and the person under
review.
(7A) The copy given to the person under review must be accompanied by a
written notice setting out the terms of sections 102, 106H and
106K.
(7B) The services that may be specified in the referral are any or all of
the services provided by the person under review during the review
period.
(7C) Subsection (7B) is not limited by the terms of the
Director’s report under subparagraph 89C(1)(b)(i).
(7D) Failure to comply with subsection (7) or (7A) does not affect
the validity of the referral.
50 Subsection 93(8)
Omit “Director’s investigation into the referred
services”, substitute “review that gave rise to the
referral”.
51 Subsection 93(8)
Omit “adjudicative”.
52 Subsection 93(9)
Omit “adjudicative”.
53 Sections 93A to 94
Repeal the sections, substitute:
(1) If:
(a) the Director decides to review the provision of services by a person;
and
(b) before the end of the period of 12 months after making the decision,
the Director has not:
(i) made a decision under section 91 to take no further action in
relation to the review; or
(ii) entered into an agreement with the person under section 92
(whether or not the agreement has been ratified by the Determining Authority);
or
(iii) referred the provision of one or more of the services to a
Committee;
then, the Director is taken to have made a decision at the end of that
period to take no further action in relation to the review.
Note: Sections 92A and 106R set out time limits for the
ratification of agreements made under section 92.
(2) If the review is suspended:
(a) under paragraph 89A(2)(b); or
(b) because of an injunction or other court order;
the Director may determine, in writing, that the period of 12 months
referred to in subsection (1) is extended by a specified period that is not
longer than the period of the suspension.
(3) If a notice is given under subsection 89B(2) to the person under
review, or to another person, and the person concerned fails to comply with a
requirement of the notice, the Director may determine, in writing, that the
period of 12 months referred to in subsection (1) is extended by a
specified period that is not longer than the period during which the person
fails to comply with the requirement.
(4) This section does not apply in relation to a review undertaken because
of section 89.
54 Subsection 95(2)
Repeal the subsection, substitute:
(1A) If the person under review is not the practitioner who rendered or
initiated all of the referred services, the Panel members referred to in
paragraph (1)(b) must be members of professions or specialties relevant to
the field or fields of practice of the practitioner or practitioners who
rendered or initiated the referred services.
(2) If the person under review is the practitioner who rendered or
initiated all of the referred services, the Chairperson, and the other Panel
members referred to in paragraph (1)(b), must be practitioners who belong
to the profession in which the practitioner was practising when the services
were rendered or initiated.
55 Subsection 95(6)
Omit “matter to which the referral relates”, substitute
“services specified in the referral”.
56 Subsection 95(7)
After “practitioner”, insert “, or any of the
practitioners,”.
57 Paragraph 96(2)(c)
Omit “notice under section 94”, substitute “a copy
of the referral under subsection 93(7)”.
58 Subsection 96(4)
Omit “subsections 95(2)”, substitute “subsections 95(1A),
(2)”.
59 At the end of Subdivision A of
Division 4 of Part VAA
Add:
(1) If, before the Committee starts its investigation, a Committee member
ceases to be a Panel member or, for any other reason, is unable to take part in
the investigation, the Director may appoint another Panel member to the
Committee as a replacement.
(2) If:
(a) the Committee has started its investigation; and
(b) before the Committee completes its final report, a Committee member
ceases to be a Panel member or, for any other reason, is unable to take any
further part in the investigation or preparation of reports;
the remaining Committee members may, if the person under review consents,
constitute the Committee for the purpose of:
(c) if the Committee’s investigation is not yet
complete—completing its investigation; and
(d) preparing the Committee’s reports.
(3) If the person under review does not consent to the remaining Committee
members constituting the Committee, the Director must set up another Committee
under subsection 93(1).
60 Subsection 98(3)
Omit “a matter that is the subject of”, substitute “the
provision of the services specified in”.
61 Subsection 99(7)
Repeal the subsection.
62 Subsection 101(2)
Omit “, after considering the matters that are the subject of the
referral,”.
63 Subsection 101(2)
Omit “connection with rendering or initiating”, substitute
“providing”.
64 Subsection 102(3)
Omit “matter”, substitute “referred
services”.
65 At the end of
section 102
Add:
(4) The notice may require the person under review to appear at the
hearing and give evidence to the Committee.
66 Sections 104 and
105
Repeal the sections, substitute:
(1) This section has effect if:
(a) the notice under section 102 requires the person under review to
appear at the hearing and give evidence to the Committee; and
(b) the person under review:
(i) fails to appear at the hearing; or
(ii) appears at the hearing but refuses or fails to give evidence or to
answer a question that the person is asked by a Committee member in the course
of the hearing.
(2) If the person under review is a practitioner, the Committee may
notify the Director of the person’s failure to appear at the hearing or
refusal or failure to give the evidence or to answer the question.
(3) The Committee may, in any case:
(a) proceed with the hearing, despite section 103, even though the
person under review fails to appear or appears but refuses or fails to give
evidence or to answer a question; or
(b) propose to hold another hearing in accordance with
section 102.
(4) If the person under review subsequently:
(a) appears at a hearing; and
(b) gives evidence as required; and
(c) answers every question that the person is asked by a Committee member
in the course of the hearing;
then:
(d) paragraph (3)(a) ceases to apply; and
(e) the Committee must inform the Director that the person has appeared
and given evidence and answered questions (as required).
(5) Subsection (2) and paragraph (3)(a) do not apply
if:
(a) before the hearing takes place, the person notifies the Committee that
he or she has a medical condition preventing him or her from appearing or from
giving evidence or answering questions; and
(b) the person has complied with any reasonable requirements of the
Committee that he or she undergo medical examination to establish the existence
and extent of the medical condition; and
(c) the results of the medical condition indicate that the person has a
medical condition preventing him or her from appearing or from giving evidence
or answering questions.
(6) Subsection (2) and paragraphs (3)(b) and (4)(c) do not apply
in relation to a question if:
(a) the person under review refuses to answer the question on the ground
that the answer to the question might tend to incriminate him or her;
and
(b) the Committee believes that the answer might tend to do so.
(1) As soon as practicable after receiving a notice under subsection
104(2), the Director must:
(a) fully disqualify the person under review; and
(b) give the Commission written notice of the disqualification.
(2) As soon as practicable after being informed under paragraph 104(4)(e),
the Director must:
(a) revoke the disqualification; and
(b) give the Commission written notice of the revocation.
(3) If the person under review is disqualified under subsection (1),
the person may request the Committee, in writing, to hold another hearing in
accordance with section 102. The Committee must comply with the request as
soon as practicable.
(4) A request under subsection (3) must be made no later than 1 month
after the day on which a copy of a draft report is given to the person under
subsection 106KD(3).
67 Subsection 105A(1) (definition of relevant
documents)
Omit “matters referred”, substitute “referral
made”.
68 Subsection 105A(1) (definition of relevant
documents)
Omit “referral”, substitute “review”.
69 Subsection 106G(1)
Repeal the subsection, substitute:
(1) This Subdivision applies for the purposes of the investigation by a
Committee of the provision of services specified in the referral made to the
Committee.
70 Subsection 106G(2)
After “Determining Authority”, insert “or, if
section 106KE or subsection 106L(5) applies, the person under
review”.
71 Paragraph 106G(2)(a)
Omit “adjudicative”.
72 Paragraph 106G(2)(b)
Omit “one month” (wherever occurring), substitute “3
months”.
73 At the end of
section 106G
Add:
(5) Failure to give the final report to the Determining Authority within
the period of 6 months, or that period as extended, does not affect the validity
of that report.
(6) However, if the Director gives the Committee written notice that he or
she is satisfied that existing circumstances make a proper investigation by the
Committee impossible:
(a) this Division ceases to have effect in relation to the Committee;
and
(b) the Director must, within 7 days after giving the notice to the
Committee, give a copy of the notice to the Commission and the person under
review.
74 Sections 106H and
106J
Repeal the sections, substitute:
(1) The Committee is to make findings only in respect of the referred
services.
(2) However, the Committee is not required to have regard to conduct in
connection with rendering or initiating all of the referred services but may do
so if the Committee considers it appropriate in the circumstances.
Note: Under section 106K, a Committee can make findings
about a sample of the referred services and apply those findings across the
relevant class of referred services.
(3) The Committee’s investigation of the referred services is not
limited by:
(a) the reasons given in the Director’s report to the Committee
under paragraph 93(6)(a) or anything else in that report; or
(b) the reasons given in any request under section 86 or 106J or
anything else in such a request.
(4) Before the Committee makes a finding of inappropriate practice, it
must:
(a) notify the person under review of its intention to do so;
and
(b) provide the person under review with the reasons on which the
Committee intends to base its finding; and
(c) give the person under review an opportunity to respond.
Note: Section 25D of the Acts Interpretation Act
1901 provides for findings on material questions of fact to be included with
the reasons under paragraph (b).
(5) The Committee complies with subsection (4) if it provides a draft
report to the person under review in accordance with
section 106KD.
(1) Despite subsection 106H(1), if it appears to the Committee that a
person may have engaged in inappropriate practice in the provision of services
other than the referred services during the review period, the Committee may
request the Director to review the provision of those services.
(2) A request under subsection (1) is to be made in the manner in
which requests are made to the Director by the Commission, except that
subsection 86(4) does not apply.
(3) For the purposes of such a request:
(a) references in section 87 and subsection 88A(1) to the Commission
are to be read as references to the Committee; and
(b) the first reference in section 88 to the Commission is to be read
as a reference to the Committee; and
(c) the other references in section 88 to the Commission are to be
read as references to the Committee or the Commission; and
(d) references in subsections 88A(4) and (8) to the Commission are to be
read as references to both the Commission and the Committee.
75 Subsections 106K(1) and
(2)
Repeal the subsections, substitute:
(1) The Committee may, in investigating the provision of services included
in a particular class of the referred services, have regard only to a sample of
the services included in the class.
(2) If the Committee finds that a person has engaged in inappropriate
practice in providing all, or a proportion, of the services included in the
sample, then, the person under review is taken, for the purposes of this Part,
to have engaged in inappropriate practice in the provision of all, or that
proportion, as the case may be, of the services included in the class from which
the sample is chosen.
76 Subsections 106KA(1) and
(2)
Repeal the subsections, substitute:
(1) Subject to subsections (2) and (2A), if, during a particular
period (the relevant period), the circumstances in which some or
all of the referred services were rendered or initiated constituted a prescribed
pattern of services, the person under review is taken, for the purposes of this
Part, to have engaged in inappropriate practice in providing those
services.
(2) If the person under review satisfies the Committee that, on a
particular day or particular days during the relevant period, exceptional
circumstances existed that affected the rendering or initiating of services
provided by the person, the person is not taken by subsection (1) to have
engaged in inappropriate practice on that day or those days.
77 Subsection 106KA(2A)
Omit “rendered or initiated”, substitute
“provided”.
78 Subsection 106KA(7)
Omit “conduct during a particular period in connection with rendering
or initiating services”, substitute “the provision of services
during a particular period”.
79 Paragraph 106KB(3)(a)
Omit “connection with rendering or initiating”, substitute
“the provision of”.
80 Paragraph 106KB(3)(b)
Omit “connection with the rendering or initiation”, substitute
“the provision”.
81 Subsection 106KB(3)
Omit “person engaged in inappropriate practice in connection with
rendering or initiating”, substitute “person engaged in
inappropriate practice in the provision of”.
82 Subsection 106KC(1)
Repeal the subsection, substitute:
(1) If, in the course of the Committee’s investigation, the
Committee becomes aware of any matter that the Committee considers to be of
concern to the profession of which the practitioner who rendered or initiated
the referred services is a member, the Committee must notify the Director in
writing of that matter so that it may be considered by the Commission or another
appropriate authority or body.
Note: The heading to section 106KC is altered by
omitting “that are not related to the referral” and
substituting “of concern to profession”.
83 After subsection
106KD(1)
Insert:
(1A) The draft report must set out the reasons for the preliminary
findings.
84 Subsection 106KD(3)
Omit “The Committee must”, substitute “Unless
section 106KE applies, the Committee must”.
85 Subsection 106KD(3)
Omit “within 21 days”, substitute “within 1
month”.
86 After section 106KD
Insert:
(1) If the draft report does not contain a finding by all, or a majority,
of the Committee members that the person under review engaged in inappropriate
practice in providing some or all of the referred services:
(a) the draft report is the final report of the Committee; and
(b) the Committee must give copies of the report to:
(i) the person under review; and
(ii) the Director; and
(iii) the Commission.
(2) The copies must include, or be accompanied by, a written notice
stating that:
(a) the report is the final report of the Committee; and
(b) the report does not contain a finding by all, or a majority, of the
Committee members that the person under review engaged in inappropriate
practice; and
(c) no further action will be taken as a result of the report.
87 Before subsection
106L(1)
Insert:
(1A) This section applies if the person under review has been given a
notice under subsection 106KD(3) inviting submissions on changes to the draft
report.
88 Subsection 106L(1)
Omit “period of 21 days”, substitute “period of 1
month”.
89 After subsection 106L(1)
Insert:
(1B) The final report must not include a finding of inappropriate practice
unless the finding and the reasons for the finding were included in the draft
report under section 106KD.
90 Subsections 106L(3) and
(4)
Repeal the subsections, substitute:
(3) Unless subsection (5) applies, the Committee must:
(a) give copies of the final report to the person under review and the
Director; and
(b) give the final report to the Determining Authority not earlier than 1
month after the day on which a copy of the report is given to the person under
review.
(4) The copy given to the person under review under paragraph (3)(a)
must be accompanied by a written notice setting out the terms of
paragraph (3)(b).
(5) If the final report does not contain a finding by all, or a majority,
of the Committee members that the person under review engaged in inappropriate
practice in the provision of some or all of the referred services:
(a) the Committee must give copies of the report to:
(i) the person under review; and
(ii) the Director; and
(iii) the Commission; and
(b) the copies must include, or be accompanied by, a written notice
stating that:
(i) the report does not contain a finding by all, or a majority, of the
Committee members that the person under review engaged in inappropriate
practice; and
(ii) no further action will be taken as a result of the report.
91 Subsection 106M(1)
Omit “considering the matters dealt with in an adjudicative
referral”, substitute “its investigation”.
92 Paragraph 106M(2)(a)
Omit “or”, substitute “and”.
93 Paragraph 106M(2)(b)
Omit “otherwise—”.
94 Section 106S
Repeal the section, substitute:
(1) 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
section 106U.
(2) The information must be given no later than the day on which the
Committee’s final report is given to the Determining Authority under
subsection 106L(3).
(3) If the Director gives the Determining Authority information under
subsection (1) at a particular time, the Director must also give the
information to the person under review at that time.
(4) The Determining Authority must consider the information in making its
draft determination or final determination in accordance with
section 106U.
If a final report of a Committee is given to the Determining Authority,
the Authority must, within 1 month after the report is given, give the person
under review a written invitation to make to the Authority, within 1 month after
the day on which the invitation is given to the person, written submissions
about the directions the Authority should make as a result of the
report.
Note: Section 106U sets out the directions the
Authority can make.
95 Subsection 106T(1)
Repeal the subsection, substitute:
(1) The Determining Authority must, within 1 month after the end of the
period allowed under section 106SA for the person under review to make
submissions, and after taking into account any such submissions:
(a) make a draft determination in accordance with section 106U
relating to the person under review; and
(b) give copies of the draft determination to the person under review and
to the Director.
Note 1: The heading to section 106T is altered by
omitting “relating to person under review if Committee makes a finding
of inappropriate practice”.
Note 2: The heading to section 106TA is altered by
omitting “relating to person under review if Committee makes a finding
of inappropriate practice”.
96 Paragraph 106U(1)(c)
Omit “connection with the rendering or initiation”, substitute
“the provision”.
97 Paragraph 106U(1)(f)
Omit “revoked or”.
98 At the end of subsection
106U(1)
Add:
Note: Medicare benefits are not payable in respect of
services rendered or initiated by, or on behalf of, disqualified practitioners
(see section 19B).
99 After subsection 106U(2)
Insert:
(2A) A direction under paragraph (1)(f) must specify a period of
suspension of up to 3 years, to start when the determination takes
effect.
100 At the end of
section 106W
Add:
(2) The copy given to the Commission must be accompanied by a copy of the
final report, given to the Determining Authority under section 106L, that
gave rise to the final determination.
101 Paragraph 106XA(2)(a)
Omit “investigating under section 89 conduct of the person under
review”, substitute “a Director’s review”.
102 Paragraph 106XA(2)(a)
After “conduct by the person”, insert “under
review”.
103 Paragraph 106XB(2)(a)
Repeal the paragraph, substitute:
(a) in the course of a Director’s review in which the person under
review is a practitioner, the Director forms the opinion that the practitioner
has failed to comply with professional standards; or
104 Paragraph 106ZPA(2)(e)
Repeal the paragraph, substitute:
(e) in the case of an agreement—the member referred to in
paragraph (1)(c) who is a practitioner in the same profession as the person
who entered into the agreement with the Director; and
(f) in the case of a report—the member or members referred to in
paragraph (1)(c) who are practitioners in the same professions as the
person or persons who rendered or initiated the services to which the report
relates.
105 Subsection 106ZPL(2)
Omit “an investigation by the Director under section 89”,
substitute “a Director’s review”.
106 Paragraph 106ZPL(2)(a)
Omit “an adjudicative referral resulting from the
investigation”, substitute “a referral resulting from the
review”.
107 Subparagraph
106ZPL(2)(b)(i)
Omit “investigation”, substitute
“review”.
108 Subparagraph
106ZPL(2)(b)(ii)
Omit “an adjudicative referral resulting from the
investigation”, substitute “a referral resulting from the
review”.
109 Subsection 106ZPL(3)
Omit “an adjudicative”, substitute “a”.
110 Section 106ZPM
After “service rendered”, insert “or
initiated”.
111 At the end of
section 106ZPM
Add:
(2) If the Director considers that subsection (1) prevents medicare
benefits from being payable in respect of services rendered or initiated by the
person under review, the Director must give a notice to that effect to the
person.
(3) The Director must give a copy of a notice under subsection (2) to
the Commission.
(4) If:
(a) subsection (1) prevents medicare benefits from being payable in
respect of services rendered or initiated by the person under review at a time;
and
(b) the Director gave a notice under subsection (2) to the person
before that time;
the person is taken to be fully disqualified at that time for the purposes
of section 19D.
112 Paragraph 106ZPR(1)(c)
Omit “in connection with the referred services”.
113 Subsection 106ZR(2)
Repeal the subsection.
114 Paragraph 124FAA(2)(a)
Omit “section 106T”, substitute
“section 106TA”.
115 Subsection 124FAA(6)
Omit “section 106T”, substitute
“section 106TA”.
116 Section 129AD
Omit “section 106T”, substitute
“section 106TA”.
117 Application—items 2, 5 and
6
(1) The amendment made by item 2 applies in relation to a person who,
on or after the day on which that item commences, becomes:
(a) fully disqualified under an agreement that is in effect under
section 92 of the Health Insurance Act 1973; or
(b) fully disqualified under section 105 of that Act; or
(c) fully disqualified in accordance with a direction under paragraph
106U(1)(h) of that Act contained in a final determination under
section 106TA of that Act; or
(d) fully disqualified for the purposes of section 19D of that Act
under section 106ZPM of that Act.
(2) The amendments made by items 5 and 6 apply in relation to
determinations made after the commencement of item 63 of Schedule 1 to
the Health Insurance Amendment (Professional Services Review) Act
1999.
(3) If such a determination was made before the commencement of this item,
subsection 23D(3) of the Health Insurance Act 1973 (as amended by this
Schedule) operates as if the reference in that subsection to the period allowed
for the application were a reference to the period of 28 days beginning on the
day of that commencement.
118 Saving and transitional—Part VAA
of the Health Insurance Act 1973
Investigative and adjudicative referrals made
before commencement—old law to apply
(1) Despite the amendments made by this Schedule, the Health Insurance
Act 1973, as in force immediately before the commencement of this Schedule,
continues to apply in relation to an investigative referral, or adjudicative
referral, made before the commencement of this Schedule as if the amendments had
not been made.
(2) Subitem (1) has effect subject to subitems (3) and
(4).
Referrals to Committees to be made under new
law
(3) Any referral to a Committee under section 93 of the Health
Insurance Act 1973, made after the commencement of this Schedule, is to be
made under, and dealt with in accordance with, that Act as in force after that
commencement, and:
(a) if the referral is made as a result of an investigative referral, the
review period for the referral is the period that was the referral period for
the investigative referral; or
(b) if the referral is made as a result of the Director’s
investigation of a matter that was referred to the Director by a Committee under
subsection 106H(2) of the Health Insurance Act 1973, as in force
immediately before the commencement of this Schedule, the review period for the
referral is the period that was the referral period for the investigative
referral that gave rise to the adjudicative referral made to the
Committee.
Referrals back to Director to be made as
requests
(4) If, after the commencement of this Schedule, a Committee makes a
referral (the Committee referral) to the Director under subsection
106H(2) of the Health Insurance Act 1973, as in force immediately before
the commencement of this Schedule:
(a) the Committee referral is to be dealt with as if it were a request
under section 106J of the Health Insurance Act 1973 as amended by
this Schedule; and
(b) the review period for the request is to be the period that was the
referral period for the investigative referral that gave rise to the
adjudicative referral made to the Committee.
Director may give information to Determining
Authority on commencement
(5) For the purposes of section 106S of the Health Insurance Act
1973 (as substituted by item 94), the Director may, on or after
the commencement of that item, give information to the Determining Authority
under that section even if the Committee’s final report to which the
information relates was prepared before the commencement of that item.
119 Validation of referrals
(1) This item applies to:
(a) adjudicative referrals, made before the commencement of this Schedule,
that purported to refer:
(i) conduct that, in addition to the conduct specified in the referral,
“otherwise constituted engaging in inappropriate practice”;
or
(ii) conduct that “may have constituted engaging in inappropriate
practice including by, but not limited to” the conduct specified in the
referral; and
(b) investigative referrals that:
(i) gave rise to an adjudicative referral of a kind mentioned in
paragraph (a); and
(ii) included the following sentence:
The attached material is provided for information only and is not
intended in any way to limit the conduct referred.
(2) An adjudicative referral to which this item applies and any action
taken or thing done in relation to that referral, is taken to have, and always
to have had, the same force and effect it would have had if the referral had not
purported to refer conduct not specified in the referral.
(3) An investigative referral to which this item applies and any action
taken or thing done in relation to that referral, is taken to have, and always
to have had, the same force and effect it would have had if the sentence set out
in subparagraph (1)(b)(ii) had not been included in the referral.
Health Insurance Amendment
(Professional Services Review) Act 1999
120 Item 65 of
Schedule 1
Omit “67(3)”, substitute “67(3), (3A)”.
121 At the end of subitem 67(3) of
Schedule 1
Add “but not on or after the commencement of Schedule 1
to the Health Insurance Amendment (Professional Services Review and Other
Matters) Act 2002”.
122 After subitem 67(3) of
Schedule 1
Insert:
(3A) Despite item 65, on or after the commencement of
Schedule 1 to the Health Insurance Amendment (Professional
Services Review and Other Matters) Act 2002:
(a) a Committee may exercise the power conferred on it by
section 105A of the Health Insurance Act 1973 (as amended by this
Schedule) in respect of an old matter; and
(b) the amendments made by this Schedule to the Health Insurance Act
1973 apply in relation to the exercise of the power by the
Committee.
123 Item 68 of
Schedule 1
Insert:
commencement of this Schedule means the commencement of this
Schedule (other than items 8 and 27).
1 Subsection 3(1) (definition of prescribed
dental patient)
Repeal the definition, substitute:
prescribed dental patient has the meaning given by
section 3BA.
2 After section 3B
Insert:
(1) A person is a prescribed dental patient if:
(a) an approved medical practitioner or dental practitioner has issued a
certificate that states that the person is suffering from a cleft lip or a cleft
palate condition; and
(b) the person has not attained the age of 22 years.
(2) A person is also a prescribed dental patient
if:
(a) before the person attained the age of 22 years, an approved medical
practitioner or dental practitioner issued a certificate that states that the
person is suffering from a cleft lip or a cleft palate condition; and
(b) the person has attained the age of 22 years, but has not attained the
age of 28 years; and
(c) the person’s treatment for the condition started before the
person attained the age of 22 years.
(3) A person is also a prescribed dental patient
if:
(a) an approved medical practitioner or dental practitioner has issued a
certificate that states that the person is suffering from a condition determined
by the Minister to be a condition to which this definition applies;
and
(b) the person has not attained the age of 22 years.
(4) In this section, an approved medical practitioner or
approved dental practitioner is a medical practitioner or dental
practitioner who is approved by the Minister in writing for the purposes of this
section.
(5) A certificate mentioned in paragraph (1)(a), (2)(a) or (3)(a)
must be issued in accordance with the approved form.
(6) A determination by the Minister under paragraph (3)(a) must be
made by notice published in the Gazette.
3 Saving of certificates and
determinations
A certificate, or a determination, in force under the definition of
prescribed dental patient in subsection 3(1) of the Health
Insurance Act 1973 immediately before this Schedule commences, continues in
effect after this Schedule commences as if it had been made under
section 3BA of that Act.
1 Subsection 3(1) (definition of base
rate)
Repeal the definition.
2 Subsection 3(1) (definition of benefit
dependant)
Repeal the definition.
3 Subsection 3(1) (definition of Family
Assistance Act)
Repeal the definition.
4 Subsection 3(1) (definition of family tax
benefit)
Repeal the definition.
5 Subsection 3(1) (definition of entitled to
be paid family tax benefit by instalment)
Repeal the definition.
6 Subsection 3(1) (definition of service
arrangements)
Repeal the definition.
7 Subsection 3(1) (definition of youth
allowance)
Repeal the definition.
8 Subsection 3(13)
Repeal the subsection.