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This is a Bill, not an Act. For current law, see the Acts databases.
2016-2017-2018
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Health Legislation Amendment
(Improved Medicare Compliance and
Other Measures) Bill 2018
No. , 2018
(Health)
A Bill for an Act to amend the law relating to
health, and for related purposes
No. , 2018
Health Legislation Amendment (Improved Medicare Compliance and
Other Measures) Bill 2018
i
Contents
1
Short title ........................................................................................... 1
2
Commencement ................................................................................. 1
3
Schedules ........................................................................................... 2
Schedule 1--Shared debt determination amendments
3
Health Insurance Act 1973
3
Schedule 2--Professional Services Review Scheme amendments
13
Health Insurance Act 1973
13
Schedule 3--Other amendments of the Health Insurance Act
1973
16
Health Insurance Act 1973
16
Schedule 4--Amendment of the Dental Benefits Act 2008
35
Dental Benefits Act 2008
35
Schedule 5--Amendment of the National Health Act 1953
48
National Health Act 1953
48
No. , 2018
Health Legislation Amendment (Improved Medicare Compliance and
Other Measures) Bill 2018
1
A Bill for an Act to amend the law relating to
1
health, and for related purposes
2
The Parliament of Australia enacts:
3
1 Short title
4
This Act is the Health Legislation Amendment (Improved Medicare
5
Compliance and Other Measures) Act 2018.
6
2 Commencement
7
(1) Each provision of this Act specified in column 1 of the table
8
commences, or is taken to have commenced, in accordance with
9
column 2 of the table. Any other statement in column 2 has effect
10
according to its terms.
11
12
2
Health Legislation Amendment (Improved Medicare Compliance and
Other Measures) Bill 2018
No. , 2018
Commencement information
Column 1
Column 2
Column 3
Provisions
Commencement
Date/Details
1. Sections 1 to 3
and anything in
this Act not
elsewhere covered
by this table
The day this Act receives the Royal Assent.
2. Schedule 1
1 July 2019.
1 July 2019
3. Schedules 2 to
5
1 July 2018.
1 July 2018
Note:
This table relates only to the provisions of this Act as originally
1
enacted. It will not be amended to deal with any later amendments of
2
this Act.
3
(2) Any information in column 3 of the table is not part of this Act.
4
Information may be inserted in this column, or information in it
5
may be edited, in any published version of this Act.
6
3 Schedules
7
Legislation that is specified in a Schedule to this Act is amended or
8
repealed as set out in the applicable items in the Schedule
9
concerned, and any other item in a Schedule to this Act has effect
10
according to its terms.
11
Shared debt determination amendments Schedule 1
No. , 2018
Health Legislation Amendment (Improved Medicare Compliance and
Other Measures) Bill 2018
3
Schedule 1--Shared debt determination
1
amendments
2
3
Health Insurance Act 1973
4
1 Subsection 129AAD(2)
5
After "should have been paid,", insert "or whether a determination
6
under subsection 129ACA(2) should be made,".
7
2 At the end of subsection 129AAD(2)
8
Add "of this section".
9
3 Subsection 129AAD(3)
10
Repeal the subsection, substitute:
11
(3) The CEO may give a notice to a person under subsection (2) in
12
respect of a professional service only if the CEO has given the
13
person a reasonable opportunity to respond to a written request to
14
produce to the CEO, or a Departmental employee (within the
15
meaning of the Human Services (Medicare) Act 1973), documents
16
relevant to either or both of the following:
17
(a) ascertaining whether the amount paid, purportedly by way of
18
benefit or payment under this Act, in respect of the service,
19
should have been paid;
20
(b) whether the CEO should make a determination under
21
subsection 129ACA(2) in relation to the amount paid,
22
purportedly by way of benefit or payment under this Act, in
23
respect of the service.
24
4 Subsection 129AAD(5)
25
Omit "the purpose", substitute "a purpose".
26
5 Subsection 129AAD(5) (note)
27
Omit "section 129AC", substitute "sections 129AC and 129ACA".
28
6 After paragraph 129AAD(8)(b)
29
Insert:
30
Schedule 1 Shared debt determination amendments
4
Health Legislation Amendment (Improved Medicare Compliance and
Other Measures) Bill 2018
No. , 2018
(ba) specify the circumstances in which a determination may be
1
made under subsection 129ACA(2) in relation to an amount;
2
and
3
(bb) contain a statement that the person may provide a written
4
response to the CEO which states:
5
(i) if the person considers a determination under
6
subsection 129ACA(2) should, or should not, be made
7
and the person's reasons for this; and
8
(ii) the percentage that the person considers should be
9
determined for the purposes of
10
paragraph 129ACA(3)(b); and
11
(bc) specify any matter, or contain any statement, prescribed by
12
the Minister under paragraph 129ACA(9)(d); and
13
7 Subparagraph 129AADA(2)(b)(ii)
14
After "subsection 129AAI(4)", insert "or 129ACA(5)".
15
8 Subsection 129AADA(3)
16
After "subsection 129AAJ(1)", insert "or 129ACB(1)".
17
9 Subsection 129AADA(3)
18
After "subsection 129AAJ(5)", insert "129ACB(6)".
19
10 Subsection 129AAG(1) (note)
20
Omit "section 129AC", substitute "sections 129AC and 129ACA".
21
11 After subsection 129AAI(1)
22
Insert:
23
(1A) To avoid doubt, subsection (1) does not apply to an amount if
24
subsection 129ACA(1) applies to the amount.
25
12 Subsection 129AAJ(1)
26
After "subsection 129AAI(1)", insert "(other than a decision mentioned
27
in subsection 129AAI(1A))".
28
13 After subsection 129AC(1)
29
Insert:
30
Shared debt determination amendments Schedule 1
No. , 2018
Health Legislation Amendment (Improved Medicare Compliance and
Other Measures) Bill 2018
5
(1AA) Subsection (1) does not apply to an amount if
1
subsection 129ACA(1) applies to the amount.
2
14 After section 129AC
3
Insert:
4
129ACA Shared debt determinations
5
Making shared debt determinations
6
(1) If:
7
(a) as a result of the making of a false or misleading statement,
8
an amount paid, purportedly by way of benefit or payment
9
under this Act, exceeds the amount (if any) that should have
10
been paid in respect of a professional service rendered, or
11
purportedly rendered by a person; and
12
(b) the Chief Executive Medicare (the CEO) makes a
13
determination under subsection (2) in relation to the amount;
14
the excess (the recoverable amount) is recoverable as a debt due to
15
the Commonwealth from that person (the primary debtor) (or from
16
the estate of that person) and another person (the secondary
17
debtor) (or from the estate of that person) specified in the
18
determination.
19
(2) The CEO may make a written determination under this subsection
20
in relation to an amount if:
21
(a) notice has been given under subsection (7) in relation to the
22
recoverable amount to the primary debtor and the secondary
23
debtor; and
24
(b) any of the following apply:
25
(i) the secondary debtor employed or otherwise engaged
26
the primary debtor to render professional services of the
27
kind mentioned in paragraph (1)(a);
28
(ii) the secondary debtor had an arrangement or agreement
29
with the primary debtor relating to professional services
30
of that kind;
31
(iii) the secondary debtor is a person in a class of persons
32
prescribed under paragraph (9)(a);
33
Schedule 1 Shared debt determination amendments
6
Health Legislation Amendment (Improved Medicare Compliance and
Other Measures) Bill 2018
No. , 2018
(iv) the secondary debtor is not a person in a class of
1
persons prescribed under paragraph (9)(b); and
2
(c) the CEO reasonably believes the determination should be
3
made having regard to the following:
4
(i) whether the relationship of the secondary debtor with
5
the primary debtor was such that the secondary debtor
6
could have controlled or influenced the circumstances
7
that led to the making of the false or misleading
8
statement to which the debt relates;
9
(ii) whether the secondary debtor directly or indirectly
10
obtained a financial benefit from the making of the false
11
or misleading statement;
12
(iii) whether any other factors in all the circumstances of the
13
case make it fair and reasonable for the determination to
14
be made.
15
(3) The determination must be given to the primary debtor, or estate,
16
and the secondary debtor, or estate, and set out the following:
17
(a) the decision to make a determination to claim the recoverable
18
amount under subsection (1) as a debt due to the
19
Commonwealth;
20
(b) an amount (the shared amount) equal to a percentage of the
21
recoverable amount that is recoverable from the secondary
22
debtor or estate;
23
(c) an amount (the remaining amount) equal to the recoverable
24
amount less the shared amount that is recoverable from the
25
primary debtor or estate;
26
(d) the reasons for the decision;
27
(e) the right to seek review of the decision under
28
section 129ACB.
29
(4) The percentage determined by the CEO for the purposes of
30
paragraph (3)(b) must be the percentage prescribed under
31
paragraph (9)(c), unless the CEO reasonably believes in all the
32
circumstances of the case that it is fair and reasonable that a
33
different percentage be determined.
34
(5) The CEO must not serve a notice on a person or an estate claiming
35
a shared amount or remaining amount (as the case may be) as a
36
Shared debt determination amendments Schedule 1
No. , 2018
Health Legislation Amendment (Improved Medicare Compliance and
Other Measures) Bill 2018
7
debt before the end of the period of 28 days after the determination
1
referred to in subsection (2) is given to the person or estate.
2
(6) An amount is recoverable under subsection (1) whether or not:
3
(a) the amount was paid to the primary debtor or secondary
4
debtor (or the estates of those persons); and
5
(b) any person has been convicted of an offence in relation to the
6
making of the statement.
7
Notice of intention to make shared debt determinations
8
(7) Before making a determination under subsection (2) in relation to a
9
recoverable amount, the CEO must give the following to the
10
primary debtor or estate and the other person or estate the CEO is
11
considering specifying in the determination as the secondary
12
debtor:
13
(a) written notice that the CEO is considering making a
14
determination under that subsection in relation to the
15
recoverable amount;
16
(b) a copy of any document produced under
17
subsection 129AAD(2) or (3) in relation to the recoverable
18
amount.
19
(8) A person who is given a notice under subsection (7) may, within
20
14 days after the notice is given, provide a written response to the
21
CEO which states:
22
(a) the reasons why the person considers a determination under
23
subsection (2) should, or should not, be made; and
24
(b) the percentage that the person considers should be
25
determined for the purposes of paragraph 129ACA(3)(b).
26
Minister may make legislative instrument
27
(9) The Minister may, by legislative instrument, prescribe the
28
following:
29
(a) classes of persons for the purposes of
30
subparagraph (2)(b)(iii);
31
(b) classes of persons for the purposes of
32
subparagraph (2)(b)(iv);
33
(c) a percentage for the purposes of subsection (4);
34
Schedule 1 Shared debt determination amendments
8
Health Legislation Amendment (Improved Medicare Compliance and
Other Measures) Bill 2018
No. , 2018
(d) matters or statements for the purposes of
1
paragraph 129AAD(8)(bc).
2
Giving notices to State and Territory Health Departments
3
(10) If:
4
(a) either of the following is given to a person in relation to a
5
professional service:
6
(i) a determination under subsection (2);
7
(ii) a notice mentioned in subsection (5); and
8
(b) the professional service was rendered, or purportedly
9
rendered, in or at a hospital mentioned in subsection (11) of a
10
State or Territory;
11
then, a copy of the determination or notice may be given to the
12
head (however described) of the Health Department (within the
13
meaning of the National Health Reform Act 2011) of that State or
14
Territory.
15
(11) For the purposes of subsection (10), a hospital is a facility in that
16
State or Territory for which:
17
(a) a declaration is in force under paragraph 121-5(6)(a) of the
18
Private Health Insurance Act 2007; and
19
(b) a statement is included in the declaration (as mentioned in
20
subsection 121-5(8) of that Act) that the hospital is a public
21
hospital.
22
129ACB Review of decisions relating to shared debt determinations
23
(1) If the Chief Executive Medicare (the CEO) makes a determination
24
under subsection 129ACA(2) to claim a recoverable amount as a
25
debt, the primary debtor and secondary debtor (or the estates of
26
those persons) may apply in writing to the CEO, in the form
27
approved in writing by the CEO, for a review of the decision to
28
make the determination.
29
(2) An application under subsection (1) for review of a decision must
30
be made within 28 days after the person or estate is notified of the
31
decision under subsection 129ACA(3).
32
(3) If the CEO receives an application under subsection (1) from a
33
person or estate, the CEO must provide written notice of the
34
Shared debt determination amendments Schedule 1
No. , 2018
Health Legislation Amendment (Improved Medicare Compliance and
Other Measures) Bill 2018
9
application and a copy of the application to each other person or
1
estate mentioned in that subsection.
2
(4) The other person or estate may give a written submission to the
3
CEO within the period specified in the notice (which must not be
4
less than 28 days after the day the notice is given) which states:
5
(a) whether the decision should be confirmed, varied or revoked;
6
and
7
(b) the person's reasons for why the decision should be
8
confirmed, varied or revoked.
9
(5) On receiving the application and any written submissions under
10
subsection (4), the CEO must:
11
(a) review the decision; and
12
(b) confirm, vary or revoke the decision.
13
(6) The CEO must give to the applicant and each other person
14
mentioned in subsection (1) written notice of the decision (the
15
reconsidered decision) on the review.
16
(7) Applications may be made to the Administrative Appeals Tribunal
17
for review of reconsidered decisions.
18
(8) However, subsection (7) applies only if a garnishee notice is given
19
under subsection 129AEG(1) in relation to the debt to which the
20
reconsidered decision relates.
21
(9) Despite paragraph 29(1)(d) of the Administrative Appeals Tribunal
22
Act 1975, if a garnishee notice is given under
23
subsection 129AEG(1) in relation to the debt to which the
24
reconsidered decision relates, an application mentioned in
25
subsection (7) of this section must be made within the period of 28
26
days after the day the garnishee notice is given.
27
(10) To avoid doubt:
28
(a) a decision referred to in subsection 129ACA(2) may be
29
reviewed by the CEO under subsection (5) of this section
30
once only; and
31
(b) a reconsidered decision takes effect:
32
(i) on the day specified in the reconsidered decision; or
33
Schedule 1 Shared debt determination amendments
10
Health Legislation Amendment (Improved Medicare Compliance and
Other Measures) Bill 2018
No. , 2018
(ii) if a day is not specified--on the day on which the
1
reconsidered decision is made; and
2
(c) a reconsidered decision may specify a percentage of zero for
3
the purposes of subsection 129ACA(4).
4
15 Subsection 129AEA(1)
5
After "Chief Executive Medicare", insert "(the CEO)".
6
16 Paragraphs 129AEA(2)(e) and (3)(e)
7
Omit "Chief Executive Medicare", substitute "CEO".
8
17 At the end of section 129AEA
9
Add:
10
Subsection 129ACA(2) applies
11
(4) A person is liable for an administrative penalty in respect of a
12
professional service if:
13
(a) the CEO has made a determination under
14
subsection 129ACA(2) in relation to a recoverable amount in
15
respect of the service; and
16
(b) notice has been served on the person (as mentioned in
17
subsection 129ACA(5)) claiming the shared amount or
18
remaining amount (as the case may be) of that recoverable
19
amount as a debt due to the Commonwealth; and
20
(c) the recoverable amount is more than:
21
(i) $2,500; or
22
(ii) if a higher amount is prescribed by the regulations--that
23
higher amount.
24
18 Subsection 129AEB(2)
25
Omit "and (4)", substitute ", (4) and (5)".
26
19 At the end of subsection 129AEB(2)
27
Add:
28
; (d) the recoverable amount referred to in
29
paragraph 129AEA(4)(a).
30
Shared debt determination amendments Schedule 1
No. , 2018
Health Legislation Amendment (Improved Medicare Compliance and
Other Measures) Bill 2018
11
20 Subsection 129AEB(3) (table)
1
After "129AAI(1)" (wherever occurring), insert "or 129ACA(3)".
2
21 Paragraph 129AEB(4)(a)
3
After "section 129AAD", insert "or subsection 129ACA(7)".
4
22 After subsection 129AEB(4)
5
Insert:
6
Shared debt determinations
7
(5) If the administrative penalty is in respect of a professional service
8
for which a determination has been made under
9
subsection 129ACA(2):
10
(a) apply subsections (3) and (4) in relation to the primary debtor
11
and not the secondary debtor; and
12
(b) apportion the base penalty amount calculated in accordance
13
with paragraph (a) of this subsection between the primary
14
debtor and secondary debtor in the same way as the
15
recoverable amount in respect of the professional service was
16
apportioned in accordance with the determination made
17
under subsection 129ACA(2).
18
23 Subsection 129AEC(1)
19
After "129AC", insert "or 129ACA".
20
24 Subsections 129AECA(1), (2), (3) and (4)
21
After "subsection 129AAI(4)", insert "or 129ACA(5)".
22
25 After paragraph 129AEF(1)(a)
23
Insert:
24
(aa) an amount under paragraph 129ACA(3)(b) or (c) where any
25
rights of review by the CEO under section 129ACB have
26
been exhausted or have expired;
27
26 Subsection 129AEG(1)
28
After "paragraph 129AEF(1)(a)", insert ", (aa)".
29
Schedule 1 Shared debt determination amendments
12
Health Legislation Amendment (Improved Medicare Compliance and
Other Measures) Bill 2018
No. , 2018
27 Application provision
1
The amendments made by this Schedule apply in relation to an amount
2
paid, purportedly by way of benefit or payment under the Health
3
Insurance Act 1973 if:
4
(a) the amount is paid on or after 1 July 2018; and
5
(b) none of the following has been given in relation to the
6
amount before the commencement of this item:
7
(i) a notice under subsection 129AAD(2) of that Act;
8
(ii) a request under subsection 129AAD(3) of that Act;
9
(iii) a notice under subsection 129AAI(1) of that Act.
10
28 Saving provision
11
Despite the repeal and substitution of subsection 129AAD(3) of the
12
Health Insurance Act 1973 by this Schedule, that subsection, as in force
13
immediately before the commencement of this item, continues to apply
14
on and after the commencement of this item in relation to written
15
requests given before the commencement of this item.
16
Professional Services Review Scheme amendments Schedule 2
No. , 2018
Health Legislation Amendment (Improved Medicare Compliance and
Other Measures) Bill 2018
13
Schedule 2--Professional Services Review
1
Scheme amendments
2
3
Health Insurance Act 1973
4
1 Paragraphs 81(2)(b) and (c)
5
After "employed", insert "or otherwise engaged".
6
2 Paragraphs 82(2)(a) and (b)
7
After "employed", insert "or otherwise engaged".
8
3 Subsection 89B(1) (paragraphs (b) and (c) of the definition
9
of relevant documents)
10
After "employed", insert "or otherwise engaged".
11
4 Paragraph 104(5)(c)
12
Omit "condition indicate", substitute "examination indicate".
13
5 Subsection 105A(1) (paragraphs (b) and (c) of the definition
14
of relevant documents)
15
After "employed", insert "or otherwise engaged".
16
6 Section 106B
17
Omit "(other than the person under review)".
18
7 Subsection 106M(3)
19
Omit "subsection (2)", substitute "subsection (1)".
20
8 Paragraphs 106U(1)(ca) and (cb)
21
Repeal the paragraphs, substitute:
22
(ca) if any medicare benefit or dental benefit for a service:
23
(i) that was rendered or initiated by the person under
24
review or an associated person; and
25
(ii) in connection with the rendering or initiation of which
26
the person under review or an associated person is
27
stated in a report under section 106L (other than a report
28
Schedule 2 Professional Services Review Scheme amendments
14
Health Legislation Amendment (Improved Medicare Compliance and
Other Measures) Bill 2018
No. , 2018
based on a finding made under subsection 106K(2) or
1
106KB(3)) to have engaged in inappropriate practice;
2
has been paid (whether or not to the person under review)--
3
that the person under review repay to the Commonwealth the
4
whole or a part of the medicare benefit or dental benefit that
5
was paid for that service;
6
(cb) if any medicare benefits or dental benefits for a class of
7
services:
8
(i) that were rendered or initiated by the person under
9
review or an associated person; and
10
(ii) in connection with the rendering or initiation of which,
11
or of a proportion of which, the person under review or
12
an associated person is stated in a report under
13
section 106L, based on a finding made under
14
subsection 106K(2), to have engaged in inappropriate
15
practice;
16
have been paid (whether or not to the person under review)--
17
that the person under review repay to the Commonwealth the
18
whole or a part of the medicare benefits or dental benefits
19
that were paid for the services or that proportion of the
20
services, as the case may be;
21
9 Subsection 106U(5)
22
Insert:
23
associated person, in relation to a person under review, means:
24
(a) an employee of the person under review; or
25
(b) a person otherwise engaged by the person under review; or
26
(c) an employee of a body corporate of which the person under
27
review is an officer; or
28
(d) a person otherwise engaged by a body corporate of which the
29
person under review is an officer.
30
10 Subsection 106XA(1)
31
Omit "person under review", substitute "practitioner".
32
11 Subsection 106XA(2)
33
Omit "under review" (wherever occurring).
34
Professional Services Review Scheme amendments Schedule 2
No. , 2018
Health Legislation Amendment (Improved Medicare Compliance and
Other Measures) Bill 2018
15
12 Subsection 106XA(3)
1
Omit "a person under review", substitute "a person who renders
2
professional services".
3
13 Subparagraph 106XA(3)(c)(ii)
4
Omit "under review".
5
14 Subsection 106XA(4)
6
Omit "a person under review", substitute "a person who renders
7
professional services".
8
15 Paragraph 106XA(4)(b)
9
Omit "under review".
10
16 Subsection 106XB(1)
11
Omit "under review".
12
17 Paragraph 106XB(2)(a)
13
Omit "under review".
14
18 Subsection 106ZPM(1)
15
After "employed" (wherever occurring), insert "or otherwise engaged".
16
Schedule 3 Other amendments of the Health Insurance Act 1973
16
Health Legislation Amendment (Improved Medicare Compliance and
Other Measures) Bill 2018
No. , 2018
Schedule 3--Other amendments of the Health
1
Insurance Act 1973
2
3
Health Insurance Act 1973
4
1 Subsection 3(1)
5
Insert:
6
civil penalty order means an order under subsection 125A(2).
7
2 At the end of section 4
8
Add:
9
(3) If:
10
(a) a person renders a professional service; and
11
(b) a claim is made for an amount to be paid under this Act in
12
respect of the service; and
13
(c) the service is specified in an item in the general medical
14
services table; and
15
(d) the item mentions the creation (however described) of a
16
document; and
17
(e) the document is created by the person;
18
the person must retain the document for the period of 2 years
19
beginning on the day the service is rendered.
20
Civil penalty:
5 penalty units.
21
(4) Subsection (3) does not apply if the person has a reasonable
22
excuse.
23
Note:
A person who wishes to rely on subsection (4) in proceedings for a
24
civil penalty order bears an evidential burden in relation to the matter
25
in that subsection (see section 130H).
26
3 Paragraph 20BA(1)(d)
27
Omit "18 months", substitute "2 years".
28
4 After section 20BA
29
Insert:
30
Other amendments of the Health Insurance Act 1973 Schedule 3
No. , 2018
Health Legislation Amendment (Improved Medicare Compliance and
Other Measures) Bill 2018
17
20BB Confirmation of other referrals
1
(1) If:
2
(a) a person renders a health service that is taken to be a
3
professional service because of a determination in force
4
under subsection 3C(1); and
5
(b) the service is taken, in accordance with the determination, to
6
be specified in an item of the general medical services table;
7
and
8
(c) the item mentions being referred by a medical practitioner, a
9
general practitioner, a specialist or a consultant physician;
10
and
11
(d) a claim is made for an amount to be paid under this Act in
12
respect of the service;
13
the person must retain the referral for the period of 2 years
14
beginning on the day the service is rendered.
15
(2) The Chief Executive Medicare may, by written notice, require the
16
person to produce the referral to a medical practitioner who is a
17
Departmental employee (within the meaning of the Human
18
Services (Medicare) Act 1973) within the period specified in the
19
notice.
20
(3) The period specified in the notice must not be less than 7 days after
21
the day the notice is given.
22
(4) A person commits an offence of strict liability if:
23
(a) the person is required to keep a referral under subsection (1);
24
and
25
(b) the person is given a notice under subsection (2); and
26
(c) the person fails to comply with the notice within the period
27
specified in the notice.
28
Penalty: 5 penalty units.
29
(5) Subsection (4) does not apply if the person has a reasonable
30
excuse.
31
Note:
The defendant bears an evidential burden in relation to the matter in
32
subsection (5) (see subsection 13.3(3) of the Criminal Code).
33
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(6) A medical practitioner who is a Departmental employee (within the
1
meaning of the Human Services (Medicare) Act 1973) may make
2
and retain copies of, or take and retain extracts from, any referral
3
produced in accordance with a notice under subsection (2).
4
5 Subsections 23DK(1) and (2), 23DKA(3), 23DR(1) and
5
23DS(3)
6
Omit "18 months", substitute "2 years".
7
6 Subsection 129AAD(3)
8
Omit "(other than under this section)".
9
7 Subsection 129AAD(4)
10
Repeal the subsection, substitute:
11
(4) A notice may only be given in respect of a professional service for
12
which a claim for an amount to be paid under this Act in respect of
13
the service was made during the period mentioned in
14
subsection (4A).
15
(4A) The period is 2 years immediately before the day a written request
16
under subsection (3) was first given to the person in relation to one
17
or more professional services specified in the notice.
18
8 After subsection 129AAD(9)
19
Insert:
20
(9A) If requested to do so under subsection (3), a person is authorised to
21
produce any document relevant to the request, including a
22
document containing health information (within the meaning of the
23
Privacy Act 1988) about an individual.
24
9 After subsection 129AAD(10)
25
Insert:
26
Giving notices to State and Territory Health Departments
27
(10A) If:
28
(a) either of the following is given to a person in relation to a
29
professional service rendered by the person:
30
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19
(i) a notice under subsection (2);
1
(ii) a written request mentioned in subsection (3); and
2
(b) the professional service was rendered, or purportedly
3
rendered, in or at a hospital mentioned in subsection (10B) of
4
a State or Territory;
5
then, a copy of the notice or request may be given to the head
6
(however described) of the Health Department (within the meaning
7
of the National Health Reform Act 2011) of that State or Territory.
8
(10B) For the purposes of subsection (10A), a hospital is a facility in that
9
State or Territory for which:
10
(a) a declaration is in force under paragraph 121-5(6)(a) of the
11
Private Health Insurance Act 2007; and
12
(b) a statement is included in the declaration (as mentioned in
13
subsection 121-5(8) of that Act) that the hospital is a public
14
hospital.
15
10 After section 129AAD
16
Insert:
17
129AADA Requirement to keep documents relating to notice to
18
produce
19
(1) If the Chief Executive Medicare (the CEO) gives a person a notice
20
under subsection 129AAD(2), or a request mentioned in
21
subsection 129AAD(3), in respect of a professional service, the
22
person must keep, for the period mentioned in subsection (2) of
23
this section, any document that is relevant to whether an amount
24
should have been paid under this Act in respect of the service.
25
Civil penalty:
26
(a) for an individual--20 penalty units; and
27
(b) for a body corporate--100 penalty units.
28
(2) The period:
29
(a) begins on the day the notice or request (as the case may be) is
30
given; and
31
(b) ends:
32
(i) if a notice is given under subsection 129AAH(1) that
33
the amount paid, by way of benefit or payment under
34
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Health Legislation Amendment (Improved Medicare Compliance and
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this Act in respect of the service, should have been
1
paid--on the day the notice is given; or
2
(ii) if a notice is given as mentioned in
3
subsection 129AAI(4) claiming an amount as a debt in
4
respect of the service--on the day the notice is given.
5
(3) However, if an application for review of the decision to claim the
6
amount as a debt is made under subsection 129AAJ(1), the period
7
ends on the day a notice is given under subsection 129AAJ(5)
8
notifying the person of the outcome of the review.
9
(4) Subsection (1) does not apply if the person has a reasonable
10
excuse.
11
Note:
A person who wishes to rely on subsection (4) in proceedings for a
12
civil penalty order bears an evidential burden in relation to the matter
13
in that subsection (see section 130H).
14
11 At the end of section 129AAH
15
Add:
16
Giving notices to State and Territory Health Departments
17
(5) If:
18
(a) any of the following is given to a person in relation to a
19
professional service rendered by the person:
20
(i) a notice under subsection (1);
21
(ii) a notice under subsection (2);
22
(iii) a notice under subsection (3); and
23
(b) the professional service was rendered, or purportedly
24
rendered, in or at a hospital mentioned in subsection (6) of a
25
State or Territory;
26
then, a copy of the notice may be given to the head (however
27
described) of the Health Department (within the meaning of the
28
National Health Reform Act 2011) of that State or Territory.
29
(6) For the purposes of subsection (5), a hospital is a facility in that
30
State or Territory for which:
31
(a) a declaration is in force under paragraph 121-5(6)(a) of the
32
Private Health Insurance Act 2007; and
33
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21
(b) a statement is included in the declaration (as mentioned in
1
subsection 121-5(8) of that Act) that the hospital is a public
2
hospital.
3
12 Paragraph 129AAI(1)(c)
4
Omit "the right", substitute "any right".
5
13 At the end of section 129AAI
6
Add:
7
(5) Subsection (4) does not apply in relation to claiming an amount as
8
a debt if the person or estate has notified the CEO as mentioned in
9
subsection 129AAJ(1A) in relation to the debt.
10
(6) If:
11
(a) any of the following is given to a person in relation to a
12
professional service rendered by the person:
13
(i) a notice under subsection (1);
14
(ii) a notice mentioned in subsection (4); and
15
(b) the professional service was rendered, or purportedly
16
rendered, in or at a hospital mentioned in subsection (7) of a
17
State or Territory;
18
then, a copy of the notice may be given to the head (however
19
described) of the Health Department (within the meaning of the
20
National Health Reform Act 2011) of that State or Territory.
21
(7) For the purposes of subsection (6), a hospital is a facility in that
22
State or Territory for which:
23
(a) a declaration is in force under paragraph 121-5(6)(a) of the
24
Private Health Insurance Act 2007; and
25
(b) a statement is included in the declaration (as mentioned in
26
subsection 121-5(8) of that Act) that the hospital is a public
27
hospital.
28
14 After subsection 129AAJ(1)
29
Insert:
30
(1A) Subsection (1) does not apply if the person or estate has notified
31
the CEO, in the form approved in writing by the CEO, that the
32
Schedule 3 Other amendments of the Health Insurance Act 1973
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person or estate waives the right to review of the decision to claim
1
the amount as a debt.
2
15 Subsection 129AAJ(5)
3
After "decision", insert "(the reconsidered decision)".
4
16 Subsection 129AAJ(6)
5
Repeal the subsection, substitute:
6
(6) A failure to comply with the requirements of subsection (5) does
7
not affect the validity of the review or of the reconsidered decision.
8
(7) Applications may be made to the Administrative Appeals Tribunal
9
for review of reconsidered decisions.
10
(8) However, subsection (7) applies only if a garnishee notice is given
11
under subsection 129AEG(1) in relation to the debt to which the
12
reconsidered decision relates.
13
(9) Despite paragraph 29(1)(d) of the Administrative Appeals Tribunal
14
Act 1975, if a garnishee notice is given under
15
subsection 129AEG(1) in relation to the debt to which the
16
reconsidered decision relates, an application mentioned in
17
subsection (7) of this section must be made within the period of 28
18
days after the day the garnishee notice is given.
19
(10) To avoid doubt:
20
(a) a decision to which subsection (1) applies may be reviewed
21
by the CEO under subsection (4) once only; and
22
(b) a reconsidered decision takes effect:
23
(i) on the day specified in the reconsidered decision; or
24
(ii) if a day is not specified--on the day on which the
25
reconsidered decision is made.
26
17 Subsection 129AC(4)
27
Repeal the subsection.
28
18 Section 129AD (heading)
29
Repeal the heading, substitute:
30
Other amendments of the Health Insurance Act 1973 Schedule 3
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23
129AD Recovery of certain determined amounts
1
19 Paragraph 129AEA(1)(a)
2
Omit all of the words after "has served a notice", substitute "(as
3
mentioned in subsection 129AAI(4)) on the person claiming an amount
4
(the total amount) as a debt due to the Commonwealth under
5
subsection 129AC(1); and".
6
20 Paragraph 129AEA(1)(c)
7
Repeal the paragraph.
8
21 Subsection 129AEB(2)
9
Omit ", (4), (5) and (6)", substitute "and (4)".
10
22 Subsection 129AEB(3) (table item
1, column headed "If
11
... ")
12
Omit "(whether by notice under section 129AAD or otherwise)",
13
substitute "under subsection 129AAD(2) or (3)".
14
23 Subsection 129AEB(3) (cell at table item 2, column headed
15
"If ... ")
16
Repeal the cell, substitute:
17
Schedule 3 Other amendments of the Health Insurance Act 1973
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Health Legislation Amendment (Improved Medicare Compliance and
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(a) after the Chief Executive Medicare (the CEO)
contacts the person under
subsection 129AAD(3) about the service; and
(b) before the CEO gives a notice to the person
under subsection 129AAD(2) that specifies the
service; and
(c) before the CEO gives notice to the person
under subsection 129AAI(1) of a decision to
claim an amount as a debt in relation to the
service;
the person voluntarily tells the CEO, or a
Departmental employee (within the meaning of the
Human Services (Medicare) Act 1973), in the form
approved in writing by the CEO, that an amount
paid, purportedly by way of benefit or payment
under this Act, in respect of the service exceeds the
amount (if any) that should have been paid
24 Subsection 129AEB(3) (cell at table item 3, column headed
1
"If ... ")
2
Repeal the cell, substitute:
3
(a) after the Chief Executive Medicare (the CEO)
gives a notice to the person under
subsection 129AAD(2) that specifies the
service; and
(b) before the end of the period specified in the
notice; and
(c) before the CEO gives notice to the person
under subsection 129AAI(1) of a decision to
claim an amount as a debt in relation to the
service;
the person tells the CEO, or a Departmental
employee (within the meaning of the Human
Services (Medicare) Act 1973), in the form
approved in writing by the CEO, that an amount
paid, purportedly by way of benefit or payment
under this Act, in respect of the service exceeds the
amount (if any) that should have been paid
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Health Legislation Amendment (Improved Medicare Compliance and
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25
25 Subsections 129AEB(5) and (6)
1
Repeal the subsections.
2
26 Section 129AEC (heading)
3
After "penalty", insert "and review of assessments".
4
27 Section 129AEC
5
Before "The Chief Executive Medicare", insert "(1)".
6
28 Section 129AEC
7
Omit "The Chief Executive Medicare must give to a person who is
8
liable for an administrative penalty written notice of the following",
9
substitute "The Chief Executive Medicare (the CEO) must give to a
10
person who the CEO has assessed, in accordance with sections 129AEA
11
and 129AEB, is liable to an administrative penalty, written notice of the
12
assessment which includes the following".
13
29 At the end of section 129AEC
14
Add:
15
(2) A person may apply to the Administrative Appeals Tribunal for
16
review of an assessment by the CEO of the person's liability to pay
17
an administrative penalty for which notice has been given under
18
subsection (1).
19
(3) However, subsection (2) applies only if a garnishee notice is given
20
under subsection 129AEG(1) in relation to the debt to which the
21
administrative penalty relates.
22
(4) Despite paragraph 29(1)(d) of the Administrative Appeals Tribunal
23
Act 1975, if a garnishee notice is given under
24
subsection 129AEG(1) in relation to the debt to which the
25
administrative penalty relates, an application mentioned in
26
subsection (2) of this section must be made within the period of 28
27
days after the day the garnishee notice is given.
28
30 After section 129AEC
29
Insert:
30
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129AECA Power to obtain information relating to a debt
1
(1) The Chief Executive Medicare (the CEO) may, by written notice
2
given to a person or estate who owes a debt to the Commonwealth
3
for which notice has been served as mentioned in
4
subsection 129AAI(4), require the person or estate to do either or
5
both of the following:
6
(a) give to the CEO, or a Departmental employee (within the
7
meaning of the Human Services (Medicare) Act 1973),
8
information in writing that is relevant to the person's
9
financial situation;
10
(b) produce to the CEO, or a Departmental employee (within the
11
meaning of the Human Services (Medicare) Act 1973), a
12
document that is in the person's custody or under the
13
person's control and is relevant to the person's financial
14
situation.
15
(2) An individual who owes a debt to the Commonwealth for which
16
notice has been served as mentioned in subsection 129AAI(4)
17
must, within 14 days after the notice is served, notify the CEO, or a
18
Departmental employee (within the meaning of the Human
19
Services (Medicare) Act 1973), of an address for the purposes of
20
giving documents to the individual relating to the debt.
21
Civil penalty:
20 penalty units.
22
(3) If:
23
(a) an individual owes a debt to the Commonwealth for which
24
notice has been served as mentioned in
25
subsection 129AAI(4); and
26
(b) the individual has notified an address to the CEO, or a
27
Departmental employee (within the meaning of the Human
28
Services (Medicare) Act 1973) under subsection (2) of this
29
section; and
30
(c) the address changes;
31
then the individual must notify the CEO, or a Departmental
32
employee (within the meaning of the Human Services (Medicare)
33
Act 1973), of the change within 14 days after the change.
34
Civil penalty:
20 penalty units.
35
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27
(4) If the CEO reasonably believes that a person may have information
1
or a document:
2
(a) that would help the CEO locate another person (the debtor)
3
who owes a debt due to the Commonwealth for which notice
4
has been served as mentioned in subsection 129AAI(4); or
5
(b) that is relevant to the debtor's financial situation;
6
the CEO may, by written notice given to the person, require the
7
person to give the information in writing, or produce the document,
8
to the CEO or a Departmental employee (within the meaning of the
9
Human Services (Medicare) Act 1973).
10
(5) A notice under subsection (1) or (4) must specify the following:
11
(a) how the person is to give the information in writing or
12
produce the document;
13
(b) the period (which must be at least 14 days after the day the
14
notice is given) within which the person is to give the
15
information or produce the document;
16
(c) that the notice is given under subsection (1) or (4) (as the
17
case requires).
18
(6) A person contravenes this subsection if:
19
(a) the person is given a notice under subsection (1) or (4)
20
requiring the person to give information in writing or produce
21
a document; and
22
(b) the person fails to comply with the requirement within the
23
period specified in the notice.
24
Civil penalty:
25
(a) for an individual--20 penalty units; and
26
(b) for a body corporate--100 penalty units.
27
(7) Subsection (2), (3) or (6) does not apply if the person has a
28
reasonable excuse.
29
Note:
A person who wishes to rely on subsection (7) in proceedings for a
30
civil penalty order bears an evidential burden in relation to the matter
31
in that subsection (see section 130H).
32
31 After section 129AEE
33
Insert:
34
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Health Legislation Amendment (Improved Medicare Compliance and
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No. , 2018
129AEF Recoverable amounts may be set off
1
(1) This section applies in relation to an amount (the recoverable
2
amount) recoverable from a person, or from the estate of that
3
person, as a debt due to the Commonwealth if the amount is one of
4
the following:
5
(a) an amount under subsection 129AC(1), (1A), (1C), (1E) or
6
(1G) where:
7
(i) any rights of review by the Chief Executive Medicare
8
(the CEO) under section 129AAJ have been exhausted
9
or have expired; and
10
(ii) the 3 month period referred to in
11
subparagraph 129AC(2)(c)(i) has expired;
12
(b) an amount under section 129AD where:
13
(i) the amount is specified in a final determination under
14
section 106TA; and
15
(ii) the Commonwealth is the payee;
16
(c) an amount under section 129AE.
17
(2) The CEO may, on behalf of the Commonwealth, set off the whole
18
or a part of the recoverable amount against the whole or a part of
19
an amount payable (the payable amount) to the person or estate
20
under this Act.
21
(3) However, an amount set off under subsection (2) must not exceed:
22
(a) 20% of the payable amount; or
23
(b) if the CEO and the person or estate agree to a higher
24
percentage of the amount payable--that percentage.
25
(4) To avoid doubt, the payable amount is taken to have been paid in
26
full to the person or estate if the payable amount, less any amount
27
set off against the amount under subsection (2), is paid to the
28
person or estate.
29
129AEG Garnishee notices
30
Garnishee notice
31
(1) If a recoverable amount referred to in paragraph 129AEF(1)(a) or
32
(c) is recoverable from a person (the debtor), or from the estate of
33
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29
that person, the Chief Executive Medicare (the CEO) may give a
1
written notice (the garnishee notice) to a person who owes, or may
2
later owe, money to the debtor or estate.
3
When third party is taken to owe money
4
(2) A person (the third party) is taken to owe money (the available
5
money) to the debtor or estate if the third party:
6
(a) is a person by whom the available money is due or accruing
7
to the debtor or estate; or
8
(b) holds the money for, or on account of, the debtor or estate; or
9
(c) holds the money on account of some other person for
10
payment to the debtor or estate; or
11
(d) has authority from some other person to pay the money to the
12
debtor or estate.
13
(3) The third party is taken to owe the available money to the debtor or
14
estate even if:
15
(a) the money is not due, or is not so held, or payable under the
16
authority, unless a condition is fulfilled; and
17
(b) the condition has not been fulfilled.
18
How much is payable under the notice
19
(4) The garnishee notice must:
20
(a) require the third party to pay to the Commonwealth the lesser
21
of, or a specified amount not exceeding the lesser of:
22
(i) the recoverable amount; or
23
(ii) the available money; or
24
(b) if there will be amounts of the available money from time to
25
time--require the third party to pay to the Commonwealth a
26
specified amount, or a specified percentage, of each amount
27
of the money, until the recoverable amount is recovered.
28
When amount must be paid
29
(5) The garnishee notice must require the third party to pay an amount
30
under paragraph (4)(a), or each amount under paragraph (4)(b),
31
within the period specified in the notice.
32
Schedule 3 Other amendments of the Health Insurance Act 1973
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Health Legislation Amendment (Improved Medicare Compliance and
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Debtor must be notified
1
(6) The CEO must send a copy of the garnishee notice to the debtor or
2
estate.
3
Setting off amounts
4
(7) If a person other than the third party has paid an amount to the
5
Commonwealth that satisfies all or part of the recoverable amount:
6
(a) the CEO must notify the third party of that fact; and
7
(b) any amount that the third party is required to pay under the
8
garnishee notice is reduced by that amount.
9
Indemnity
10
(8) If an amount is paid by the third party in accordance with the
11
garnishee notice:
12
(a) the payment is taken to have been authorised by:
13
(i) the debtor or estate; and
14
(ii) any other person who is entitled to all or a part of the
15
amount; and
16
(b) the third party is indemnified for the payment.
17
Garnishee notice to Commonwealth, State or Territory
18
(9) If the third party mentioned in subsection (2) is the
19
Commonwealth, a State or a Territory, the CEO may give the
20
garnishee notice to a person who is (as the case requires):
21
(a) employed by the Commonwealth, State or Territory; and
22
(b) required, or authorised, to disburse public money under a law
23
of the Commonwealth, State or Territory.
24
Section binds the Crown
25
(10) This section binds the Crown in right of the Commonwealth, of
26
each of the States, of the Australian Capital Territory and of the
27
Northern Territory.
28
(11) However, this section does not make the Crown liable to be
29
prosecuted for an offence.
30
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31
(12) To avoid doubt, this section does not imply that the Crown is, or is
1
not, bound by any other provision of this Act.
2
Review of decisions
3
(13) The debtor or estate may apply to the Administrative Appeals
4
Tribunal for review of a decision by the CEO to give a garnishee
5
notice to a person under subsection (1).
6
129AEH Failure to comply with garnishee notice
7
(1) A person commits an offence if:
8
(a) the person is given a garnishee notice under section 129AEG;
9
and
10
(b) the person fails to comply with the notice.
11
Penalty: 20 penalty units.
12
(2) The court may, in addition to imposing a penalty on a person
13
convicted of an offence against subsection (1) in relation to failing
14
to pay an amount under the notice, order the person to pay to the
15
Commonwealth an amount not exceeding that amount.
16
32 After section 130G
17
Insert:
18
130H Exceptions etc. to civil penalty provisions--burden of proof
19
If, in proceedings for a civil penalty order against a person for a
20
contravention of a civil penalty provision, the person wishes to rely
21
on any exception, exemption, excuse, qualification or justification
22
provided by the law creating the civil penalty provision, then the
23
person bears an evidential burden in relation to that matter.
24
130J Obligations not affected by State or Territory laws
25
Nothing contained in a law of a State or a Territory, or in the
26
general law, operates to prevent a person from:
27
(a) giving information; or
28
(b) producing a document; or
29
(c) giving evidence;
30
Schedule 3 Other amendments of the Health Insurance Act 1973
32
Health Legislation Amendment (Improved Medicare Compliance and
Other Measures) Bill 2018
No. , 2018
that the person is required, or authorised, to give or produce under
1
a provision of this Act.
2
33 Application of record-keeping provisions
3
(1)
The amendment of section 4 of the Health Insurance Act 1973 made by
4
this Schedule applies in relation to documents created on or after the
5
commencement of this item (regardless of whether the professional
6
service to which the document relates was rendered before, on or after
7
the commencement of this item).
8
(2)
The amendments of paragraph 20BA(1)(d) and subsections 23DK(1)
9
and (2), 23DKA(3), 23DR(1) and 23DS(3) of the Health Insurance Act
10
1973 made by this Schedule apply in relation to referrals, requests,
11
confirmations and records:
12
(a) required to be first retained on or after the commencement of
13
this item; or
14
(b) that were required to be retained at the commencement of
15
this item.
16
(3)
To avoid doubt, nothing in subitem (2) is taken to change the time at
17
which a referral, request, confirmation or record was first required to be
18
retained.
19
(4)
Section 20BB of the Health Insurance Act 1973, as inserted by this
20
Schedule, applies in relation to referrals created on or after the
21
commencement of this item.
22
34 Application of certain notice provisions and
23
administrative penalty provisions
24
(1)
Subsection 129AAD(9A) of the Health Insurance Act 1973, as inserted
25
by this Schedule, applies in relation to documents produced, in response
26
to a request made under subsection 129AAD(3) of that Act, on or after
27
the commencement of this item (regardless of whether the request was
28
made before, on or after the commencement of this item).
29
(2)
Subsections 129AAD(10A), 129AAH(5) and 129AAI(6) of the Health
30
Insurance Act 1973, as inserted or added by this Schedule, apply in
31
relation to notices or requests given to a person on or after the
32
commencement of this item.
33
Other amendments of the Health Insurance Act 1973 Schedule 3
No. , 2018
Health Legislation Amendment (Improved Medicare Compliance and
Other Measures) Bill 2018
33
(3)
Section 129AADA of the Health Insurance Act 1973, as inserted by this
1
Schedule, applies in relation to:
2
(a) notices given under subsection 129AAD(2) of that Act; and
3
(b) requests made under subsection 129AAD(3) of that Act;
4
on or after the commencement of this item.
5
(4)
Subsection 129AAJ(6) of the Health Insurance Act 1973, as substituted
6
by this Schedule, applies in relation to applications for review made on
7
or after the commencement of this item.
8
(5)
The amendments to subsection 129AEB(3) of the Health Insurance Act
9
1973 made by this Schedule apply in relation to professional services
10
for which the Chief Executive Medicare first contacts the person, under
11
subsection 129AAD(3) of that Act, on or after the commencement of
12
this item.
13
(6)
Section 129AECA of the Health Insurance Act 1973, as inserted by this
14
Schedule, applies in relation to debts for which notice is served under
15
subsection 129AAI(4) of that Act on or after the commencement of this
16
item (regardless of whether the debt became due to the Commonwealth
17
before, on or after the commencement of this item).
18
(7)
Section 129AEF of the Health Insurance Act 1973, as inserted by this
19
Schedule, applies in relation to recoverable amounts as mentioned in
20
any of paragraphs 129AEF(1)(a) to (d) of that Act that become debts
21
due to the Commonwealth on or after the commencement of this item.
22
35 Application of garnishee and other provisions
23
(1)
Sections 129AEG and 129AEH of the Health Insurance Act 1973, as
24
inserted by this Schedule, apply in relation to money that is owed, or
25
may later be owed, by a third party on or after the commencement of
26
this item (regardless of whether the recoverable amount became a debt
27
due to the Commonwealth before, on or after the commencement of this
28
item).
29
(2)
Section 130J of the Health Insurance Act 1973, as inserted by this
30
Schedule, applies to information given, documents produced, or
31
evidence given on or after the commencement of this item.
32
Schedule 3 Other amendments of the Health Insurance Act 1973
34
Health Legislation Amendment (Improved Medicare Compliance and
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No. , 2018
36 Saving provisions
1
(1)
Despite the repeal and substitution of subsection 129AAD(4) of the
2
Health Insurance Act 1973 by this Schedule, that subsection, as in force
3
immediately before the commencement of this item, continues to apply
4
in relation to notices given before that commencement.
5
(2)
Despite the repeal of subsection 129AC(4) of the Health Insurance Act
6
1973 by this Schedule, that subsection, as in force immediately before
7
the commencement of this item, continues to apply on and after that
8
commencement in relation to the setting off of recoverable amounts for
9
which the person's agreement was obtained before the commencement
10
of this item.
11
37 Transitional provision
12
If a written request mentioned in subsection 129AAD(3) of the Health
13
Insurance Act 1973 as in force immediately before the commencement
14
of this item was given to a person before the commencement of this
15
item, the request is taken, on and after the commencement of this item,
16
to be a request under that subsection as amended by this Schedule.
17
Amendment of the Dental Benefits Act 2008 Schedule 4
No. , 2018
Health Legislation Amendment (Improved Medicare Compliance and
Other Measures) Bill 2018
35
Schedule 4--Amendment of the Dental
1
Benefits Act 2008
2
3
Dental Benefits Act 2008
4
1 Subsection 32C(4)
5
Omit "(other than under this section)".
6
2 Subsection 32C(5)
7
Repeal the subsection, substitute:
8
Limitations on power to give notice
9
(5) A notice under subsection (1) can only be given in respect of a
10
dental service for which an amount was claimed under this Act in
11
the period of 2 years immediately before the day a written request
12
under subsection (4) was first given to the person in relation to one
13
or more dental services specified in the notice.
14
3 After subsection 32C(7)
15
Insert:
16
(7A) If requested to do so under subsection (4), a person is authorised to
17
produce any document relevant to the request, including a
18
document containing health information (within the meaning of the
19
Privacy Act 1988) about an individual.
20
4 Section 56A (heading)
21
Repeal the heading, substitute:
22
56A Recovery of amounts paid: notices to produce documents and
23
administrative penalties
24
5 At the end of section 56A
25
Add:
26
Schedule 4 Amendment of the Dental Benefits Act 2008
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Health Legislation Amendment (Improved Medicare Compliance and
Other Measures) Bill 2018
No. , 2018
Administrative penalties
1
(8) If:
2
(a) a person is given a notice under subsection 56G(1) of the
3
person's liability to pay an administrative penalty; and
4
(b) the person does not pay the penalty by the day set out in the
5
notice as the day by which the penalty becomes due for
6
payment;
7
the amount set out in the notice is recoverable as a debt due to the
8
Commonwealth from the person or the estate of the person.
9
6 Subsection 56C(1)
10
Omit "or (5)", substitute ", (5) or (8)".
11
7 At the end of section 56C
12
Add:
13
(5) Subsection (4) does not apply in relation to claiming an amount as
14
a debt if the person or estate has notified the Chief Executive
15
Medicare as mentioned in subsection 56D(1A) in relation to the
16
debt.
17
8 After subsection 56D(1)
18
Insert:
19
(1A) Subsection (1) does not apply if the person or estate has notified
20
the Chief Executive Medicare, in the form approved in writing by
21
the Chief Executive Medicare, that the person or estate waives the
22
right to review of the decision to claim the amount as a debt.
23
9 Subsection 56D(5)
24
After "decision", insert "(the reconsidered decision)".
25
10 Subsection 56D(6)
26
Repeal the subsection, substitute:
27
(6) A failure to comply with the requirements of subsection (5) does
28
not affect the validity of the review or of the reconsidered decision.
29
Amendment of the Dental Benefits Act 2008 Schedule 4
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(7) Applications may be made to the Administrative Appeals Tribunal
1
for review of reconsidered decisions.
2
(8) However, subsection (7) applies only if a garnishee notice is given
3
under subsection 58AA(2) in relation to the debt to which the
4
reconsidered decision relates.
5
(9) Despite paragraph 29(1)(d) of the Administrative Appeals Tribunal
6
Act 1975, if a garnishee notice is given under subsection 58AA(2)
7
in relation to the debt to which the reconsidered decision relates, an
8
application mentioned in subsection (7) of this section must be
9
made within the period of 28 days after the day the garnishee
10
notice is given.
11
(10) To avoid doubt:
12
(a) a decision referred to in subsection (1) may be reviewed by
13
the CEO under subsection (4) of this section once only; and
14
(b) a reconsidered decision takes effect:
15
(i) on the day specified in the reconsidered decision; or
16
(ii) if a day is not specified--on the day on which the
17
reconsidered decision is made.
18
11 After section 56D
19
Insert:
20
56E Liability for administrative penalty
21
A person is liable for an administrative penalty for a dental service
22
rendered by, or on behalf of, the person if:
23
(a) the Chief Executive Medicare has served notice (as
24
mentioned in subsection 56C(4)) on the person claiming an
25
amount (the total amount) as a debt due to the
26
Commonwealth; and
27
(b) the total amount consists of, or includes, an amount (the
28
recoverable amount) in respect of the service recoverable as
29
a debt due to the Commonwealth from the person under any
30
of the following provisions:
31
(i) subsection 56(2);
32
(ii) subsection 56A(1), (3) or (5); and
33
(c) the total amount is more than:
34
Schedule 4 Amendment of the Dental Benefits Act 2008
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Health Legislation Amendment (Improved Medicare Compliance and
Other Measures) Bill 2018
No. , 2018
(i) $2,500; or
1
(ii) if a higher amount is prescribed by the regulations--that
2
higher amount.
3
56F Amount of administrative penalty
4
(1) The amount of the administrative penalty for a dental service is
5
worked out in accordance with this section.
6
Base penalty amount
7
(2) Subject to subsections (3) and (4), the amount (the base penalty
8
amount) of the administrative penalty for a dental service is 20%
9
of the recoverable amount mentioned in paragraph 56E(b) in
10
respect of the service.
11
Reductions in base penalty amount
12
(3) A person's base penalty amount for a dental service is reduced in
13
accordance with the following table.
14
15
Reductions in base penalty amount
Item
Column 1
Column 2
If ...
the base penalty
amount is
reduced by ...
1
before the Chief Executive Medicare contacts the
person under subsection 32C(1) or (4) about the dental
service, the person voluntarily tells the Chief Executive
Medicare, or a Human Services employee, in the form
approved in writing by the Chief Executive Medicare,
that an amount paid, purportedly by way of benefit or
payment under this Act, in respect of the service
exceeds the amount (if any) that should have been paid
100%
2
(a) after the Chief Executive Medicare contacts the
person about the service under subsection 32C(4);
and
(b) before the Chief Executive Medicare gives a notice
to the person under subsection 32C(1) that specifies
the service; and
50%
Amendment of the Dental Benefits Act 2008 Schedule 4
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Health Legislation Amendment (Improved Medicare Compliance and
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39
Reductions in base penalty amount
Item
Column 1
Column 2
If ...
the base penalty
amount is
reduced by ...
(c) before the Chief Executive Medicare gives notice to
the person under subsection 56C(1) of a decision to
claim an amount as a debt in relation to the service;
the person voluntarily tells the Chief Executive
Medicare, or a Human Services employee, in the form
approved in writing by the Chief Executive Medicare,
that an amount paid, purportedly by way of benefit or
payment under this Act, in respect of the service
exceeds the amount (if any) that should have been paid
3
(a) after the Chief Executive Medicare gives a notice to
the person under subsection 32C(1) that specifies
the service; and
(b) before the end of the period specified in the notice;
and
(c) before the Chief Executive Medicare gives notice to
the person under subsection 56C(1) of a decision to
claim an amount as a debt in relation to the service;
the person tells the Chief Executive Medicare, or a
Human Services employee, in the form approved in
writing by the Chief Executive Medicare, that an
amount paid, purportedly by way of benefit or payment
under this Act, in respect of the service exceeds the
amount (if any) that should have been paid
25%
1
Increases in base penalty amount
2
(4) A person's base penalty amount for a dental service is increased by
3
25% if:
4
(a) the Chief Executive Medicare gives a notice to the person
5
under subsection 32C(1) that specifies the service; and
6
(b) the person does not comply with the notice in respect of the
7
service, or any other dental service specified in the notice,
8
within the period specified in the notice.
9
Schedule 4 Amendment of the Dental Benefits Act 2008
40
Health Legislation Amendment (Improved Medicare Compliance and
Other Measures) Bill 2018
No. , 2018
Interaction between reduction and increase
1
(5) If a base penalty amount is subject to both a reduction and an
2
increase, apply the reduction first.
3
56G Notice of administrative penalty and review of assessments
4
(1) The Chief Executive Medicare must give to a person who the Chief
5
Executive Medicare has assessed, in accordance with sections 56E
6
and 56F, is liable for an administrative penalty, written notice of
7
the assessment which includes the following:
8
(a) the person's liability to pay an administrative penalty in
9
respect of one or more dental services;
10
(b) the dental service to which each administrative penalty
11
relates;
12
(c) if there is more than one dental service--the total of the
13
administrative penalties;
14
(d) the day by which the penalty becomes due for payment
15
(which must be at least 14 days after the day on which the
16
notice is given);
17
(e) the fact that the notice is given under this section.
18
(2) The notice may also deal with a debt due to the Commonwealth
19
under section 56 or 56A arising in relation to the dental service.
20
(3) A person may apply to the Administrative Appeals Tribunal for
21
review of an assessment by the Chief Executive Medicare of the
22
person's liability to pay an administrative penalty for which notice
23
has been given under subsection (1).
24
(4) However, subsection (3) applies only if a garnishee notice is given
25
under subsection 58AA(2) in relation to the debt to which the
26
administrative penalty relates.
27
(5) Despite paragraph 29(1)(d) of the Administrative Appeals Tribunal
28
Act 1975, if a garnishee notice is given under subsection 58AA(2)
29
in relation to the debt to which the administrative penalty relates,
30
an application mentioned in subsection (3) of this section must be
31
made within the period of 28 days after the day the garnishee
32
notice is given.
33
Amendment of the Dental Benefits Act 2008 Schedule 4
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Health Legislation Amendment (Improved Medicare Compliance and
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41
56H Power to obtain information relating to a debt
1
(1) The Chief Executive Medicare may, by written notice given to a
2
person who owes a debt to the Commonwealth for which notice
3
has been served as mentioned in subsection 56C(4), require the
4
person to do either or both of the following:
5
(a) give to the Chief Executive Medicare, or a Human Services
6
employee, information in writing that is relevant to the
7
person's financial situation;
8
(b) produce to the Chief Executive Medicare, or a Human
9
Services employee, a document that is in the person's
10
custody or under the person's control and is relevant to the
11
person's financial situation.
12
(2) An individual who owes a debt to the Commonwealth for which
13
notice has been served as mentioned in subsection 56C(4) must,
14
within 14 days after the notice is served, notify the Chief Executive
15
Medicare of an address for the purposes of giving documents to the
16
individual relating to the debt.
17
Civil penalty:
20 penalty units.
18
(3) If:
19
(a) an individual owes a debt to the Commonwealth for which
20
notice has been served as mentioned in subsection 56C(4);
21
and
22
(b) the individual has notified the Chief Executive Medicare of
23
an address under subsection (2) of this section; and
24
(c) the address changes;
25
then the individual must notify the Chief Executive Medicare of
26
the change within 14 days after the change.
27
Civil penalty:
20 penalty units.
28
(4) If the Chief Executive Medicare reasonably believes that a person
29
may have information or a document:
30
(a) that would help the Chief Executive Medicare locate another
31
person (the debtor) who owes a debt to the Commonwealth
32
for which notice has been served as mentioned in
33
subsection 56C(4); or
34
(b) that is relevant to the debtor's financial situation;
35
Schedule 4 Amendment of the Dental Benefits Act 2008
42
Health Legislation Amendment (Improved Medicare Compliance and
Other Measures) Bill 2018
No. , 2018
the Chief Executive Medicare may, by written notice given to the
1
person, require the person to give the information in writing, or
2
produce the document, to the Chief Executive Medicare or a
3
Human Services employee.
4
(5) A notice under subsection (1) or (4) must specify the following:
5
(a) how the person is to give the information in writing or
6
produce the document;
7
(b) the period (which must be at least 14 days after the day the
8
notice is given) within which the person is to give the
9
information in writing or produce the document;
10
(c) that the notice is given under subsection (1) or (4) (as the
11
case requires).
12
(6) A person contravenes this subsection if:
13
(a) the person is given a notice under subsection (1) or (4)
14
requiring the person to give information or produce a
15
document; and
16
(b) the person fails to comply with the requirement within the
17
period specified in the notice.
18
Civil penalty:
19
(a) for an individual--20 penalty units; and
20
(b) for a body corporate--100 penalty units.
21
(7) Part VIA of the Health Insurance Act 1973 applies in relation to
22
this section as if subsections (2), (3) and (6) of this section were
23
civil penalty provisions as defined in section 125B of that Act.
24
Note:
Part VIA of the Health Insurance Act 1973 provides a regime for the
25
obtaining of orders for a civil penalty.
26
(8) Subsection (2), (3) or (6) does not apply if the person has a
27
reasonable excuse.
28
Note:
A person who wishes to rely on subsection (8) in proceedings for a
29
civil penalty order bears an evidential burden in relation to the matter
30
in that subsection (see section 130H of the Health Insurance Act
31
1973).
32
12 After section 58
33
Insert:
34
Amendment of the Dental Benefits Act 2008 Schedule 4
No. , 2018
Health Legislation Amendment (Improved Medicare Compliance and
Other Measures) Bill 2018
43
58AA Garnishee notices
1
(1) This section applies in relation to an amount:
2
(a) that is a recoverable amount (the debt) under
3
subsection 56(2) or 56A(1), (3), (5) or (8); and
4
(b) that is recoverable from a person (the debtor) or from the
5
estate of that person; and
6
(c) in relation to which any rights of review by the Chief
7
Executive Medicare under section 56D have been exhausted
8
or have expired.
9
(2) If a person (the third party) owes or may later owe money to the
10
debtor or estate, the Chief Executive Medicare may give a written
11
notice (the garnishee notice) to the third party.
12
Third party regarded as owing money in these circumstances
13
(3) The third party is taken to owe money (the available money) to the
14
debtor or estate if the third party:
15
(a) is a person by whom the available money is due or accruing
16
to the debtor or estate; or
17
(b) holds the money for, or on account of, the debtor or estate; or
18
(c) holds the money on account of some other person for
19
payment to the debtor or estate; or
20
(d) has authority from some other person to pay the money to the
21
debtor or estate.
22
(4) The third party is taken to owe the available money to the debtor or
23
estate even if:
24
(a) the money is not due, or is not so held, or payable under the
25
authority, unless a condition is fulfilled; and
26
(b) the condition has not been fulfilled.
27
How much is payable under the notice
28
(5) The garnishee notice must:
29
(a) require the third party to pay to the Commonwealth the lesser
30
of, or a specified amount not exceeding the lesser of:
31
(i) the debt; or
32
(ii) the available money; or
33
Schedule 4 Amendment of the Dental Benefits Act 2008
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Health Legislation Amendment (Improved Medicare Compliance and
Other Measures) Bill 2018
No. , 2018
(b) if there will be amounts of the available money from time to
1
time--require the third party to pay to the Commonwealth a
2
specified amount, or a specified percentage, of each amount
3
of the money, until the debt is satisfied.
4
When amount must be paid
5
(6) The garnishee notice must require the third party to pay an amount
6
under paragraph (5)(a), or each amount under paragraph (5)(b),
7
within the period specified in the notice.
8
Debtor must be notified
9
(7) The Chief Executive Medicare must send a copy of the garnishee
10
notice to the debtor or estate.
11
Setting off amounts
12
(8) If a person other than the third party has paid an amount to the
13
Commonwealth that satisfies all or part of the debt:
14
(a) the Chief Executive Medicare must notify the third party of
15
that fact; and
16
(b) any amount that the third party is required to pay under the
17
garnishee notice is reduced by that amount.
18
Indemnity
19
(9) If an amount is paid by the third party in accordance with the
20
garnishee notice:
21
(a) the payment is taken to have been authorised by:
22
(i) the debtor or estate; and
23
(ii) any other person who is entitled to all or a part of the
24
amount; and
25
(b) the third party is indemnified for the payment.
26
Garnishee notice to Commonwealth, State or Territory
27
(10) If the third party is the Commonwealth, a State or a Territory, the
28
Chief Executive Medicare may give the notice to a person who is
29
(as the case requires):
30
(a) employed by the Commonwealth, State or Territory; and
31
Amendment of the Dental Benefits Act 2008 Schedule 4
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Health Legislation Amendment (Improved Medicare Compliance and
Other Measures) Bill 2018
45
(b) required, or authorised, to disburse public money under a law
1
of the Commonwealth, State or Territory.
2
Section binds the Crown
3
(11) This section binds the Crown in right of the Commonwealth, of
4
each of the States, of the Australian Capital Territory and of the
5
Northern Territory.
6
(12) However, this section does not make the Crown liable to be
7
prosecuted for an offence.
8
(13) To avoid doubt, this section does not imply that the Crown is, or is
9
not, bound by any other provision of this Act.
10
Review of decisions
11
(14) The debtor or estate may apply to the Administrative Appeals
12
Tribunal for review of a decision by the Chief Executive Medicare
13
to give a garnishee notice to a person under subsection (2).
14
58AB Failure to comply with garnishee notice
15
(1) A person commits an offence if:
16
(a) the person is given a garnishee notice under section 58AA;
17
and
18
(b) the person fails to comply with the notice.
19
Penalty: 20 penalty units.
20
(2) The court may, in addition to imposing a penalty on a person
21
convicted of an offence against subsection (1) in relation to failing
22
to pay an amount under the notice, order the person to pay to the
23
Commonwealth an amount not exceeding the amount specified in
24
the notice.
25
13 Section 63 (after paragraph (a))
26
Insert:
27
(aa)
the operation of certain State and Territory laws; and
28
Schedule 4 Amendment of the Dental Benefits Act 2008
46
Health Legislation Amendment (Improved Medicare Compliance and
Other Measures) Bill 2018
No. , 2018
14 After section 64
1
Insert:
2
64A Obligations not affected by State or Territory laws
3
Nothing contained in a law of a State or a Territory, or in the
4
general law, operates to prevent a person from:
5
(a) giving information; or
6
(b) producing a document; or
7
(c) giving evidence;
8
that the person is required, or authorised, to give or produce under
9
a provision of this Act.
10
15 Application provisions
11
(1)
Subsection 32C(7A) of the Dental Benefits Act 2008, as inserted by this
12
Schedule, applies in relation to documents produced, in response to a
13
request made under subsection 32C(4) of that Act, on or after the
14
commencement of this item (regardless of whether the request was
15
made before, on or after the commencement of this item).
16
(2)
Sections 56E, 56F and 56G of the Dental Benefits Act 2008, as inserted
17
by this Schedule, apply in relation to dental services for which notice is
18
served (as mentioned in subsection 56C(4) of that Act) on or after the
19
commencement of this item.
20
(3)
Section 56H of the Dental Benefits Act 2008, as inserted by this
21
Schedule, applies in relation to debts for which notice is served (as
22
mentioned in subsection 56C(4) of that Act) on or after commencement
23
of this item (regardless of whether the debt became due to the
24
Commonwealth before, on or after the commencement of this item).
25
(4)
Sections 58AA and 58BB of the Dental Benefits Act 2008, as inserted
26
by this Schedule, apply in relation to money that is owed, or may later
27
be owed, by a third party on or after the commencement of this item
28
(regardless of whether the recoverable amount became a debt due to the
29
Commonwealth before, on or after the commencement of this item).
30
(5)
Section 64A of the Dental Benefits Act 2008, as inserted by this
31
Schedule, applies to information given, documents produced, or
32
evidence given on or after the commencement of this item.
33
Amendment of the Dental Benefits Act 2008 Schedule 4
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Health Legislation Amendment (Improved Medicare Compliance and
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47
16 Saving provision
1
Despite the repeal and substitution of subsection 32C(5) of the Dental
2
Benefits Act 2008 by this Schedule, that subsection, as in force
3
immediately before the commencement of this item, continues to apply
4
in relation to notices given before that commencement.
5
17 Transitional provision
6
If a written request mentioned in subsection 32C(4) of the Dental
7
Benefits Act 2008 as in force immediately before the commencement of
8
this item was given to a person before the commencement of this item,
9
the request is taken, on and after the commencement of this item, to be a
10
request under that subsection as amended by this Schedule.
11
Schedule 5 Amendment of the National Health Act 1953
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Health Legislation Amendment (Improved Medicare Compliance and
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No. , 2018
Schedule 5--Amendment of the National
1
Health Act 1953
2
3
National Health Act 1953
4
1 Subsection 4(1)
5
Insert:
6
civil penalty provision has the same meaning as in the Regulatory
7
Powers Act.
8
Regulatory Powers Act means the Regulatory Powers (Standard
9
Provisions) Act 2014.
10
2 Before section 99AA
11
Insert:
12
Division 3AA--Recovery of payments for the supply of
13
pharmaceutical benefits
14
3 Paragraph 99AA(2)(a)
15
After "is supplied", insert ", or purportedly supplied,".
16
4 Paragraph 99AA(2)(b)
17
After "supply", insert "or purported supply".
18
5 After section 99AB
19
Insert:
20
99ABA Recovery of amounts for false or misleading statements
21
(1) This section applies if, as a result of the making of a false or
22
misleading statement, an amount paid, purportedly by way of
23
benefit or payment under this Act, exceeds the amount (if any) that
24
should have been paid.
25
(2) The amount of the excess is recoverable as a debt due to the
26
Commonwealth from:
27
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(a) the person by or on behalf of whom the statement was made;
1
or
2
(b) the estate of that person.
3
(3) Subsection (2) applies whether or not:
4
(a) the amount was paid to the person; and
5
(b) any person has been convicted of an offence in relation to the
6
making of the statement.
7
99ABB Notice to produce documents
8
(1) This section applies if:
9
(a) an amount is paid to a person under this Act by the
10
Commonwealth in respect of the supply, or purported supply,
11
of a pharmaceutical benefit; and
12
(b) the person was an approved pharmacist, approved medical
13
practitioner or approved hospital authority when the amount
14
was paid; and
15
(c) the person is required, under a provision of this Act, the
16
regulations or another legislative instrument under this Act,
17
to keep a document relating to the supply of the
18
pharmaceutical benefit.
19
(2) The Secretary may, by written notice given to the person, require
20
the person to produce the document, or a copy of the document, to
21
the Secretary.
22
(3) The person must produce the document or copy to the Secretary
23
within the period specified in the notice, which must not be less
24
than 21 days after the day the notice is given.
25
(4) If the person fails to comply with the notice, the amount paid to the
26
person in respect of the supply, or purported supply, of the
27
pharmaceutical benefit is recoverable as a debt due to the
28
Commonwealth from the person or the estate of the person.
29
(5) Subsection (4) does not apply if the person satisfies the Secretary
30
that the person's non-compliance is due to circumstances beyond
31
the person's control.
32
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99ABC Notice of decision to claim amounts as debts
1
(1) If an amount is recoverable under subsection 99ABA(2) or
2
99ABB(4) as a debt due to the Commonwealth from a person or
3
the estate of the person, the Secretary must give written notice to
4
the person or estate of:
5
(a) the decision to claim the amount as a debt; and
6
(b) the reasons for the decision; and
7
(c) any right of the person or estate to seek review of the
8
decision under section 99ABD.
9
(2) The Secretary's written notice to the person or estate of a decision
10
may include written notice of other decisions referred to in this
11
section that are also required to be given to the person or estate.
12
(3) A failure to comply with the requirements of subsection (1) does
13
not affect the validity of the decision.
14
(4) The Secretary must not serve a notice on a person or an estate
15
claiming an amount as a debt before the end of the period of 28
16
days after written notice of the decision referred to in
17
subsection (1) is given to the person or estate.
18
(5) Subsection (4) does not apply in relation to claiming an amount as
19
a debt if the person or estate has notified the Secretary as
20
mentioned in subsection 99ABD(2) in relation to the debt.
21
99ABD Review of decisions to claim amounts as debts
22
(1) If the Secretary makes a decision referred to in
23
subsection 99ABC(1) about a person or an estate, the person or
24
estate may apply in writing to the Secretary, in the form approved
25
in writing by the Secretary, for a review of the decision.
26
(2) Subsection (1) does not apply if the person or estate has notified
27
the Secretary, in the form approved in writing by the Secretary,
28
that the person waives the person's right to review of the decision
29
to claim the amount as a debt.
30
(3) In making an application under subsection (1), the person or estate
31
may provide the Secretary with additional information to
32
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substantiate (wholly or partly) that the amount paid under this Act
1
in respect of the pharmaceutical benefit should have been paid.
2
(4) An application for review of a decision must be made within 28
3
days after the person or estate is notified of the decision.
4
(5) On receiving an application for review of a decision, the Secretary
5
must:
6
(a) review the decision; and
7
(b) confirm, vary or revoke the decision.
8
(6) The Secretary must give to the applicant written notice of the
9
decision (the reconsidered decision) on the review within 28 days
10
after receiving the application for review.
11
(7) A failure to comply with the requirements of subsection (6) does
12
not affect the validity of the review or of the reconsidered decision.
13
(8) An application may be made to the Administrative Appeals
14
Tribunal for review of a reconsidered decision.
15
(9) However, subsection (8) applies only if a garnishee notice is given
16
under subsection 99ABJ(2) in relation to the debt to which the
17
reconsidered decision relates.
18
(10) Despite paragraph 29(1)(d) of the Administrative Appeals Tribunal
19
Act 1975, if a garnishee notice is given under subsection 99ABJ(2)
20
in relation to the debt to which the reconsidered decision relates, an
21
application mentioned in subsection (8) of this section must be
22
made within the period of 28 days after the day the garnishee
23
notice is given.
24
(11) To avoid doubt:
25
(a) a decision mentioned in subsection (1) may be reviewed by
26
the Secretary under subsection (5) once only; and
27
(b) a reconsidered decision takes effect:
28
(i) on the day specified in the reconsidered decision; or
29
(ii) if a day is not specified--on the day on which the
30
reconsidered decision is made.
31
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99ABE Liability for administrative penalty
1
A person is liable for an administrative penalty in respect of the
2
supply or purported supply of a pharmaceutical benefit if:
3
(a) the Secretary has served a notice (as mentioned in
4
subsection 99ABC(4)) on the person claiming an amount (the
5
total amount) as a debt due to the Commonwealth under
6
subsection 99ABC(1); and
7
(b) the total amount consists of, or includes, an amount (the
8
recoverable amount) in respect of the benefit recoverable as
9
a debt due to the Commonwealth from the person; and
10
(c) the total amount is more than:
11
(i) $2,500; or
12
(ii) if a higher amount is prescribed by the regulations--that
13
higher amount.
14
99ABF Amount of administrative penalty
15
(1) The amount of the administrative penalty for a pharmaceutical
16
benefit is worked out in accordance with this section.
17
(2) The amount (the base penalty amount) of the administrative
18
penalty for a pharmaceutical benefit is 20% of the recoverable
19
amount mentioned in paragraph 99ABE(b) in respect of the
20
benefit.
21
(3) However, a person's base penalty amount for a pharmaceutical
22
benefit is reduced by 50% if:
23
(a) the Secretary gives a notice to the person under
24
subsection 99ABB(2) relating to the benefit; and
25
(b) before the end of the period specified in the notice, the
26
person voluntarily tells the Secretary, in the form approved in
27
writing by the Secretary, that the amount paid to the person
28
under this Act in respect of the benefit exceeds the amount (if
29
any) that should have been paid.
30
99ABG Notice of administrative penalty and review of assessments
31
(1) The Secretary must give to a person who the Secretary has
32
assessed, in accordance with sections 99ABE and 99ABF, is liable
33
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for an administrative penalty, written notice of the assessment
1
which includes the following:
2
(a) the person's liability to pay an administrative penalty in
3
respect of one or more pharmaceutical benefits;
4
(b) the pharmaceutical benefit to which each administrative
5
penalty relates;
6
(c) if there is more than one pharmaceutical benefit--the total of
7
the administrative penalties;
8
(d) the day by which the penalty becomes due for payment
9
(which must be at least 14 days after the day on which the
10
notice is given);
11
(e) the fact that the notice is given under this section.
12
(2) The notice may also deal with a debt due to the Commonwealth
13
under subsection 99ABA(2) or 99ABB(4) arising in relation to the
14
pharmaceutical benefit.
15
(3) If:
16
(a) a person is given a notice under subsection (1) of the person's
17
liability to pay an administrative penalty; and
18
(b) the person does not pay the penalty by the day set out in the
19
notice as the day by which the penalty becomes due for
20
payment;
21
the amount set out in the notice is recoverable as a debt due to the
22
Commonwealth from the person or the estate of the person.
23
(4) A person may apply to the Administrative Appeals Tribunal for
24
review of an assessment by the Secretary of the person's liability to
25
pay an administrative penalty for which notice has been given
26
under subsection (1).
27
(5) However, subsection (4) applies only if a garnishee notice is given
28
under subsection 99ABJ(2) in relation to the debt to which the
29
administrative penalty relates.
30
(6) Despite paragraph 29(1)(d) of the Administrative Appeals Tribunal
31
Act 1975, if a garnishee notice is given under subsection 99ABJ(2)
32
in relation to the debt to which the administrative penalty relates,
33
an application mentioned in subsection (4) of this section must be
34
made within the period of 28 days after the day the garnishee
35
notice is given.
36
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99ABH Power to obtain information relating to a debt
1
(1) The Secretary may, by written notice given to a person who owes a
2
debt to the Commonwealth for which notice has been served as
3
mentioned in subsection 99ABC(4), require the person to do either
4
or both of the following:
5
(a) give to the Secretary information in writing that is relevant to
6
the person's financial situation;
7
(b) produce to the Secretary a document that is in the person's
8
custody or under the person's control and is relevant to the
9
person's financial situation.
10
(2) An individual who owes a debt to the Commonwealth for which
11
notice has been served as mentioned in subsection 99ABC(4) must,
12
within 14 days after the notice is served, notify the Secretary of an
13
address for the purposes of giving documents to the individual
14
relating to the debt.
15
Civil penalty:
20 penalty units.
16
(3) If:
17
(a) an individual owes a debt to the Commonwealth for which
18
notice has been served as mentioned in
19
subsection 99ABC(4); and
20
(b) the individual has notified the Secretary of an address under
21
subsection (2) of this section; and
22
(c) the address changes;
23
then the individual must notify the Secretary of the change within
24
14 days after the change.
25
Civil penalty:
20 penalty units.
26
(4) If the Secretary reasonably believes that a person may have
27
information or a document:
28
(a) that would help the Secretary locate another person (the
29
debtor) who owes a debt to the Commonwealth for which
30
notice has been served as mentioned in
31
subsection 99ABC(4); or
32
(b) that is relevant to the debtor's financial situation;
33
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the Secretary may, by written notice given to the person, require
1
the person to give the information in writing, or produce the
2
document, to the Secretary.
3
(5) A notice under subsection (1) or (4) must specify the following:
4
(a) how the person is to give the information in writing or
5
produce the document;
6
(b) the period (which must be at least 14 days after the day the
7
notice is given) within which the person is to give the
8
information in writing or produce the document;
9
(c) that the notice is given under subsection (1) or (4) (as the
10
case requires).
11
(6) A person contravenes this subsection if:
12
(a) the person is given a notice under subsection (1) or (4)
13
requiring the person to give information in writing or produce
14
a document; and
15
(b) the person fails to comply with the requirement within the
16
period specified in the notice.
17
Civil penalty:
20 penalty units.
18
(7) Subsection (2), (3) or (6) does not apply if the person has a
19
reasonable excuse.
20
Note:
A person who wishes to rely on this subsection bears an evidential
21
burden in relation to the matters in this subsection (see section 96 of
22
the Regulatory Powers Act).
23
99ABI Amounts recoverable once only
24
To avoid doubt, an amount recoverable from a person, or an estate
25
of a person, in respect of the supply, or purported supply, of a
26
pharmaceutical benefit is recoverable under this Division once
27
only.
28
99ABJ Garnishee notices
29
(1) This section applies in relation to an amount that is:
30
(a) a debt due to the Commonwealth under
31
subsection 99ABA(2), 99ABB(4) or 99ABG(3) (the debt);
32
and
33
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(b) recoverable from a person (the debtor) or from the estate of
1
that person; and
2
(c) in relation to which any rights to review by the Secretary
3
under section 99ABD have been exhausted or have expired.
4
(2) If a person (the third party) owes or may later owe money to the
5
debtor or estate, the Secretary may give a written notice (the
6
garnishee notice) to the third party.
7
Third party regarded as owing money in these circumstances
8
(3) The third party is taken to owe money (the available money) to the
9
debtor or estate if the third party:
10
(a) is a person by whom the available money is due or accruing
11
to the debtor or estate; or
12
(b) holds the money for, or on account of, the debtor or estate; or
13
(c) holds the money on account of some other person for
14
payment to the debtor or estate; or
15
(d) has authority from some other person to pay the money to the
16
debtor or estate.
17
(4) The third party is taken to owe the available money to the debtor or
18
estate even if:
19
(a) the money is not due, or is not so held, or payable under the
20
authority, unless a condition is fulfilled; and
21
(b) the condition has not been fulfilled.
22
How much is payable under the notice
23
(5) The garnishee notice must:
24
(a) require the third party to pay to the Commonwealth the lesser
25
of, or a specified amount not exceeding the lesser of:
26
(i) the debt; or
27
(ii) the available money; or
28
(b) if there will be amounts of the available money from time to
29
time--require the third party to pay to the Commonwealth a
30
specified amount, or a specified percentage, of each amount
31
of the money, until the debt is satisfied.
32
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When amount must be paid
1
(6) The garnishee notice must require the third party to pay an amount
2
under paragraph (5)(a), or each amount under paragraph (5)(b),
3
within the period specified in the notice.
4
Debtor must be notified
5
(7) The Secretary must send a copy of the garnishee notice to the
6
debtor or estate.
7
Setting off amounts
8
(8) If a person other than the third party has paid an amount to the
9
Commonwealth that satisfies all or part of the debt:
10
(a) the Secretary must notify the third party of that fact; and
11
(b) any amount that the third party is required to pay under the
12
garnishee notice is reduced by that amount.
13
Indemnity
14
(9) If an amount is paid by the third party in accordance with the
15
garnishee notice:
16
(a) the payment is taken to have been authorised by:
17
(i) the debtor or estate; and
18
(ii) any other person who is entitled to all or a part of the
19
amount; and
20
(b) the third party is indemnified for the payment.
21
Garnishee notice to Commonwealth, State or Territory
22
(10) If the third party is the Commonwealth, a State or a Territory, the
23
Secretary may give the notice to a person who is (as the case
24
requires):
25
(a) employed by the Commonwealth, State or Territory; and
26
(b) required, or authorised, to disburse public money under a law
27
of the Commonwealth, State or Territory.
28
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Section binds the Crown
1
(11) This section binds the Crown in right of the Commonwealth, of
2
each of the States, of the Australian Capital Territory and of the
3
Northern Territory.
4
(12) However, this section does not make the Crown liable to be
5
prosecuted for an offence.
6
(13) To avoid doubt, this section does not imply that the Crown is, or is
7
not, bound by any other provision of this Act.
8
Review of decisions
9
(14) The debtor or estate may apply to the Administrative Appeals
10
Tribunal for review of a decision by the Secretary to give a
11
garnishee notice to a person under subsection (2).
12
99ABK Failure to comply with garnishee notice
13
(1) A person commits an offence if:
14
(a) the person is given a garnishee notice under section 99ABJ;
15
and
16
(b) the person fails to comply with the notice.
17
Penalty: 20 penalty units.
18
(2) The court may, in addition to imposing a penalty on a person
19
convicted of an offence against subsection (1) in relation to failing
20
to pay an amount under the notice, order the person to pay to the
21
Commonwealth an amount not exceeding that amount.
22
99ABL Recoverable amounts may be set off
23
(1) This section applies in relation to an amount (the recoverable
24
amount) if:
25
(a) the amount is recoverable from a person as a debt due to the
26
Commonwealth under subsection 99ABA(2), 99ABB(4) or
27
99ABG(3); and
28
(b) any review rights under section 99ABD in relation to the
29
amount have been exhausted or have expired.
30
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(2) The Secretary may, on behalf of the Commonwealth, set off the
1
whole or a part of the recoverable amount against the whole or a
2
part of an amount payable (the payable amount) to the person or
3
estate under this Act.
4
(3) To avoid doubt:
5
(a) an amount set off under subsection (2) may be equal to or
6
less than 100% of the payable amount; and
7
(b) the payable amount is taken to have been paid in full to the
8
person or estate if the payable amount, less any amount set
9
off against the payable amount under this section, is paid to
10
the person or estate.
11
6 After section 134C
12
Insert:
13
134D Civil penalty provisions
14
Enforceable civil penalty provisions
15
(1) Each civil penalty provision of this Act is enforceable under Part 4
16
of the Regulatory Powers Act.
17
Note:
Part 4 of the Regulatory Powers Act allows a civil penalty provision to
18
be enforced by obtaining an order for a person to pay a pecuniary
19
penalty for the contravention of the provision.
20
Authorised applicant and relevant court
21
(2) For the purposes of Part 4 of the Regulatory Powers Act, as that
22
Part applies in relation to the civil penalty provisions of this Act:
23
(a) the Secretary is an authorised applicant; and
24
(b) each of the following is a relevant court:
25
(i) the Federal Court of Australia;
26
(ii) the Federal Circuit Court of Australia;
27
(iii) a court of a State or Territory that has jurisdiction in
28
relation to matters arising under this Act.
29
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134E Obligations not affected by State or Territory laws
1
Nothing contained in a law of a State or a Territory, or in the
2
general law, operates to prevent a person from:
3
(a) giving information; or
4
(b) producing a document; or
5
(c) giving evidence;
6
that the person is required, or authorised, to give or produce under
7
a provision of this Act.
8
7 Application provisions
9
(1)
Section 99ABA of the National Health Act 1953, as inserted by this
10
Schedule, applies in relation to false or misleading statements made in
11
relation to an amount on or after the commencement of this item.
12
(2)
Section 99ABB of the National Health Act 1953, as inserted by this
13
Schedule, applies in relation to documents relating to the supply of a
14
pharmaceutical benefit required to be first kept on or after the
15
commencement of this item.
16
(3)
Section 99ABH of the National Health Act 1953, as inserted by this
17
Schedule, applies in relation to debts for which notice is served (as
18
mentioned in subsection 99ABC(4) of that Act) on or after the
19
commencement of this item (regardless of whether the debt became due
20
to the Commonwealth before, on or after the commencement of this
21
item).
22
(4)
Sections 99ABJ and 99ABK of the National Health Act 1953, as
23
inserted by this Schedule, apply in relation to money that is owed, or
24
may later be owed, by a third party on or after the commencement of
25
this item (regardless of whether the debt became due to the
26
Commonwealth before, on or after the commencement of this item).
27
(5)
Section 99ABL of the National Health Act 1953, as inserted by this
28
Schedule, applies in relation to debts for which notice has been served:
29
(a) as mentioned in subsection 99ABC(4) of that Act; or
30
(b) under subsection 99ABG(1) of that Act;
31
on or after the commencement of this item (regardless of whether the
32
debt became due to the Commonwealth before, on or after the
33
commencement of this item).
34
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(6)
Section 134E of the National Health Act 1953, as inserted by this
1
Schedule, applies to information given, documents produced, or
2
evidence given on or after the commencement of this item.
3