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2002
THE PARLIAMENT OF THE COMMONWEALTH OF
AUSTRALIA
HOUSE OF REPRESENTATIVES
EXPLANATORY MEMORANDUM
(Circulated by the authority of the Minister for Health
and Ageing,
Senator the Hon Kay Patterson)
The Health Insurance Amendment (Professional Services Review and Other
Matters) Bill makes a number of amendments to the Health Insurance Act
1973 (the Act).
The main items contained in the Bill
• clarify the administrative arrangements of the Professional
Services Review (PSR) Scheme contained in Part VAA of the Act following comments
made by the Federal Court in Pradhan v Holmes and Others; and
• validates investigative and adjudicative referrals currently
under consideration by PSR Committees to the extent that the matters referred
relate to particular specified conduct or services.
The Bill amends the
age of access for services under the Cleft Lip and Cleft Palate Scheme;
The Bill also contains several minor technical amendments that remove
redundant definitions in section 3 of the Act relating to health care cards and
pensioner concession cards.
The PSR Scheme is concerned with the conduct of health professionals
participating in Medicare. It provides for the examination of an individual
health practitioner’s conduct by a PSR Committee (a committee of peers) to
ascertain whether the practitioner has engaged in ‘inappropriate
practice’ (as defined in section 82 of the Act) and, if so, to provide for
certain action to be taken in relation to the practitioner.
The essence
of the scheme is one of peer review to ensure that the technical and
professional issues of providing services are appropriately considered in the
review process.
The PSR Scheme was substantially amended in 1999
following a detailed review of the Scheme by a Review Committee constituted by
representatives of the Australian Medical Association (‘AMA’), which
chaired the Committee; the Director of Professional Services Review (‘the
Director’); the Health Insurance Commission (‘the
Commission’); and the Department of Health and Ageing (the Department).
The amendments were contained in the Health Insurance Amendment (Professional
Services Review) Act 1999 (the Amendment Act).
The Federal Court
considered these amendments in Pradhan v Holmes & Others and made
findings, which suggested that the amendments may not have the effect intended
by the Review Committee. The proposed amendments address certain issues
identified by the Federal Court and clarify the intended operation of the Scheme
as envisaged by the recommendations of the Review Committee.
The proposed
amendments also validate the investigative and adjudicative referrals, which are
currently before PSR Committees to the extent that those referrals specify the
conduct to be examined and do not involve examination of conduct at
large.
Given the complexity of the scheme, the amendments to Part VAA of
the Act are quite extensive. However, the main amendments are as
follows:
• the inclusion of a new objects clause (section 79A) and
a provision which outlines the main features of the Scheme (section
80);
• replacing the current investigative referral process with a
request from the Commission that the Director examine certain services rendered
or initiated by a practitioner for which a Medicare benefit has been claimed
(section 86). The purpose of the request is to initiate a process of further
review and investigation into the conduct of the practitioner in connection with
those services by the Director and, where the Director decides to make a
referral to a PSR Committee, by that Committee. This process of investigation
and inquiry can only examine the referred services during a specified period but
is otherwise not limited in any way by the Commission’s request or, where
a referral has been made to a PSR Committee, by the Director’s referral.
In other words, both the Director and the PSR Committee may identify additional
species of conduct arising from the referred services that may constitute
inappropriate practice. In addition, a Committee may refer back to the Director
a request to review the provision of services, other than referred services,
during the specified period.
• the inclusion of a new Division 3A
dealing with the review by the Director of the Commission’s request. The
Director must first decide whether to review the provision of services (section
88A). Following a review the Director must either decide to take no further
action in relation to the review (section 91), or give the person a written
report setting out the reasons why the Director has not made a decision under
s.91 and an invitation to make submissions to the Director within 1 month about
the action the Director should take in relation to the review (section 89C).
After taking those submissions into account the Director can either take no
further action in relation to the review (section 91), enter into an agreement
with the person under review (section 92) or make a referral to a Committee
(section 93).
• Strengthening the provisions relating to a
Committee’s investigation of a person under review by making it clear that
the Committee is not to be confined by the Director’s (or the
Commission’s ) grounds of why the conduct of the person under review may
be inappropriate (section 106H). The PSR Committee may inquire into any
practice issues arising from the referred services and should form its own view
with reference to the profession’s established standards of appropriate
practice. However before making a finding of inappropriate practice, the
Committee must notify the person under review of its intention to do so and give
that person an opportunity to respond.
• Enhanced procedural
fairness opportunities at various stages of the Scheme: the Director is required
to give the person under review notice of his intention to refer the person to a
PSR Committee (see above); an express requirement that a person under review
must be notified of a Committee’s intention to make a finding of
inappropriate practice and given an opportunity to respond before such a finding
is made (see above); and the person under of review will be given an opportunity
to make submissions in respect of appropriate directions before a draft
determination is made by the Determining Authority (section 106SA). This is in
addition to the existing opportunity a person under review has to comment on the
draft determination.
The Bill validates the investigative and
adjudicative referrals made in respect of the 36 cases currently before PSR
Committees which are substantially similar to those invalidated by the Federal
Court in Pradhan v Holmes & Others. In that case, the Federal Court
invalidated both referrals on the basis that they were not limited to specified
conduct and purported to authorise an investigation into conduct at large.
Although the Full Federal Court has, in another decision, recently declined to
accept the approach taken in Pradhan to invalidate such referrals, some
uncertainty remains. The Bill validates these referrals to the extent that the
matters referred relate to specified conduct by severing those parts of the
referrals which, in the Federal Court's view, purported to authorise an
investigation into conduct at large'.
In addition to the amendments
occasioned by the decision in Pradhan v Holmes & Others, the Bill
also contains the following amendments to the PSR
Scheme:
• Specifying the material or information which may be given
by the Director to the Determining Authority;
• Requiring
practitioners disqualified from Medicare under the PSR Scheme to comply with
provisions applicable to practitioners otherwise disqualified under the Act,
particularly to display a notice of disqualification at their practice
location/s;
• Replace an optometrist’s right of appeal of the
Minister’s determination to a PSR Tribunal with a right of appeal to the
Administrative Appeals Tribunal;
• Technical corrections of
incorrect cross-references, from section 106T to 106TA, in a number of
provisions relating to the PSR Scheme;
• The commencement date of 1
August 1999 in relation to other relevant provisions of the Amendment Act
applies to matters referred prior to 1 August 1999;
• The removal
of existing inconsistencies and the operation of the disqualification provisions
under the PSR Scheme where a person under review does not comply with a PSR
Committee’s request to attend, give evidence and answer questions at a PSR
Committee hearing;
• The provisions of section 105A of the Act,
concerning the power of a PSR Committee to require the production of documents
or the giving of information during the PSR process, apply to matters referred
prior to 1 August 1999 (‘old matters’), the date of the commencement
of the relevant provisions of the Amendment Act.
AMENDMENTS
RELATING TO CLEFT LIP AND CLEFT PALATE SCHEME
This amendment will
enable eligible persons requiring ongoing treatment for cleft lip and cleft
palate conditions to claim Medicare benefits under the Cleft Lip and Cleft
Palate Scheme until their 28th birthday. Under the current
arrangements, in order to be eligible for Medicare a patient must, in addition
to the usual Medicare eligibility requirements, be a “prescribed dental
patient”. This is currently defined as a person who has not attained the
age of 22 years. The full definition is in section 3(1) of the Act and states
that a “prescribed dental patient” is:
A person who has not
attained the age of 22 years and in respect of whom there is a certificate
issued in accordance with the approved form by a medical practitioner or a
dental practitioner who is approved in writing by you or your delegate for the
purposes of this definition stating that the person is suffering
from:
(i) a cleft lip and cleft palate condition, or
(ii) a condition
determined by you, by notice published in the Gazette, to be a condition to
which this definition applies.
The current age limit was established on
the basis that Cleft Lip and Cleft Palate patients would generally have
completed most specialist dental work associated with their condition once their
facial growth was complete.
However, the age limit of 22 years has
created some difficulties, as some patients require ongoing treatment beyond
their 22nd birthday as their facial growth continues, or where scheduled surgery
had not been possible until after attaining 22 years of age.
The
Department has consulted with the Australian Dental Association (ADA) and the
Australian Council of Dental Specialists (ACDS) regarding a revision of the
Medicare Benefits Schedule (MBS) items and conditions that relate to access to
Medicare Benefits for the treatment of Cleft Lip and Cleft Palate conditions.
The ADA and the ACDS have recommended that an age limit of 28 would be
appropriate. This amendment would not alter the patient numbers undergoing
treatment, but would allow for a more structured treatment plan. Additionally,
the total cost for the increase in the age limit would not be significant to
Medicare.
MISCELLANEOUS AND TECHNICAL AMENDMENTS
Schedule 3
of the Bill contains miscellaneous and technical amendments, which repeal
redundant provisions in the Health Insurance Act 1973.
The amendments in the Bill concerning the Professional Services Review Scheme
will have no significant impact upon the finances of the Commonwealth.
The financial impact of the amendments to the Cleft Lip and Cleft Palate
Scheme, to increase the age limit to 28 years for the ongoing treatment for
cleft lip and cleft palate services, will amount to only a small financial
increase to Medicare.
The Department has been advised that a minimal
number of existing patients would require continuing care beyond that which is
now provided. The average cost per patient resulting from the proposed
amendment was unlikely to increase, as the treatment involved would not alter.
The only significant change would be the timing at which each stage of treatment
was undertaken.
Some procedures that were previously ineligible because
of the age restriction would have been undertaken as procedural items in the
Oral and Maxillofacial part of the Medicare Schedule, hence the cost expected
from the increase in the age limit will not be significant to Medicare.
NOTES ON CLAUSES
This section cites the short title of the proposed legislation as the Health Insurance Amendment (Professional Services Review and Other Matters) Act 2002.
Sets out the commencement dates for the Clauses in the Bill.
Subclause
(1) provides that each of the provisions specified in Column 1 of the table
commence, or is taken to have commenced, on the day or at the time specified in
Column 2 of the table. The effect of the details in the table is that
–
1. Sections 1-3 and any thing in this Act not covered elsewhere
by this table commences on the day on which this Act receives Royal
Assent;
2. Items 1 to 118 of Schedule 1 commence on the first day of the
month immediately following the month in which this Act receives the Royal
Assent;
3. Items 119 to 123 of Schedule 1 commence on the day on which this
Act receives the Royal Assent;
4. Schedule 2 commences on the day on which
this Act receives the Royal Assent;
5. Items 1-8 of Schedule 3 commence
immediately after the Social Security Legislation Amendment (Concession
Cards) Act 2001 commenced.
Subclause (2) states that Column 3 of the
table in subclause (1) is for additional information that is not part of this
Act. This information may be included in any published version of this Act.
Clause 3: Schedule(s)
This clause notes that each Act
that is specified in a Schedule to this Act is amended or repealed as set out in
the applicable items in the Schedule concerned, and any other item in a Schedule
to this Act has effect according to its terms.
SCHEDULE 1 – PROFESSIONAL SERVICES REVIEW
Item 2 amends the definition of “disqualified
practitioner’ in subsection 19D(11) to add practitioners who become fully
disqualified in accordance with sections 92 or 105, in relation to a direction
under paragraph 106U(1)(h), or for the purposes of section 106ZPM. The item
also adds a note to the effect that Medicare benefits are not payable in respect
of services rendered or initiated by, or on behalf of, disqualified
practitioners.
The effect of this provision is to apply the
requirements of section 19D to practitioners who become fully disqualified under
the PSR arrangements, including that a notice of disqualification is displayed
at their practice location/s to ensure patients attending those disqualified
practitioners are aware the services do not attract a medicare
benefit.
Item 3 and 4 amend subparagraphs 23B(7)(a)(ii) and
23B(7)(b)(ii) respectively to make a technical correction of a cross-reference
from section 106T to section 106TA.
Items 5 and 6 provide for AAT
review of the Minister’s refusal to accept an undertaking by a person who
wishes to become a participating optometrist. Previously such persons could
seek review by the Professional Services Review Tribunal under Part VA of the
Act. However, Part VA was repealed by the Health Insurance Amendment
(Professional Services Review) Act 1999. No person has been disadvantaged.
Items 7, 8 and 9 amend subsection 23DA(1) (paragraph (e)
of the definition of relevant person), paragraph 23DC(6)(d) and paragraph
23DF(7)(c) respectively to make a technical correction of a cross-reference from
section 106T to section 106TA.
Item 10 repeals section 80 and
substitutes new sections 79A and 80.
New Section 79A – Object of
this Part
New section 79A sets out the object of Part VAA of the Act.
This Part contains the provisions authorising the PSR Scheme. The new section
states that the object of Part VAA of the Act is to protect the integrity of
Commonwealth medicare and pharmaceutical benefits programs. In doing so, the
provisions of Part VAA protect patients and the community from the risks
associated with inappropriate practice and protects the Commonwealth from having
to met services costs arising from inappropriate practice.
New
Section 80 – Main features of the Professional Services Review Scheme
New section 80 outlines the main features of the PSR Scheme
authorised by the provisions of Part VAA.
Section 81 –
Definitions
Items 11-24 amend subsection 81 which contain definitions
of terms and phrases used in Part VAA.
Item 11 repeals the
definition of ‘adjudicative referral’ as this term is no
longer used under the revised arrangements authorised by the amendments to Part
VAA.
Item 12 inserts a new definition of ‘Committee
Investigation’, which under the new arrangements means an
investigation by a Committee under Division 4.
Item 13 inserts a
new definition of ‘Director’s Review’, which under the
new arrangements means a review undertaken by the Director under Division
3A.
Item 14 repeals the definition of
‘findings’ and substitutes a new definition, which removes
the reference to an adjudicative referral and specifies that
‘findings’ means the Committee’s findings as to whether
or not the person under review engaged in inappropriate practice in providing
any or all of the services specified in the referral made by the Director to the
Committee.
Item 15 repeals the definition of
‘investigative referral’ as this term is no longer used under
the revised arrangements authorised by the amendments to Part
VAA.
Item 16 amends the definition of ‘legal
services’ to remove the reference to an ‘adjudicative
referral’ as this term is no longer used under the revised arrangements
authorised by the amendments to Part VAA.
Item 17 repeals the
definition of ‘person under review’ and substitutes a new
definition of this term which indicates when a person, the subject of a request
from the Commission under new section 86 (see Item 30 below), becomes a
‘person under review’. In effect a person in respect of whom a
request has been made by the Commission becomes a ‘person under
review’ following the decision by the Director of PSR to undertake a
review (paragraph (a)) or when a Committee investigation is undertaken into
whether the person engaged inappropriate practice (paragraph (b)).
Item 18 inserts a new definition of ‘provides
services’, which has the same meaning given by new subsection 81(2)
(see Item 24 below).
Item 19 repeals the definition of
‘referral’ and substitutes a new definition which defines the
term as a referral by the Director to a Committee under section 93.
Item 20 repeals the definition of ‘referral
period’ as this term is no longer used under the revised arrangements
authorised by the amendments to Part VAA.
Item 21 repeals the
definition of ‘referred services’ and substitutes a new
definition of this term which provides that, in relation to a Committee
investigation, referred services means the services specified in the referral
made to the Committee under section 93.
Item 22 inserts a new
definition of ‘review period’ as being the period specified
in the request from the Commission under new section 86 (see Item 30 below).
The review period confines the Director’s review and the Committee’s
investigation to the provision of services by a person in that period.
Item 23 adds a note, at the end of the definition of
‘service’, referring to those provisions of the Act that
provide when a medicare benefit is payable with reference to section
10.
Item 24 adds a new subsection 81(2) which defines when
a person provides services. Services may be provided by a practitioner, by the
practitioner’s employer or by a person at a body corporate which employs
the practitioner. The principal effect of this new definition is to identify,
for the purposes of the review process authorised by Part VAA, the person who is
responsible for the provision of services.
Items 25, 26, 27 and 28
amend paragraphs 82(1)(a), (b), (c) and (d) respectively by omitting the word
‘referred’, consequential upon the repeal of the definition of
‘referred services’ (see item 21 above).
Item 29
repeals the heading of existing Division 3 of Part VAA – ‘Referrals
by the Health Insurance Commission’ and substitutes a new heading
‘Division 3 – Health Insurance Commission may request a
review’.
Item 30 repeals sections 86 to 89 and substitutes
the following new sections and new division 3A to clarify the different roles of
the Commission and the Director in the PSR process.
New Section 86
– Commission may request Director to review provision of
services
New Section 86 provides that the Commission may request the
Director to review the provision of services by a person. The request by the
Commission relates to the provision of services during the period specified in
the request. The request emanates from an examination by the Commission of the
person’s Medicare and Pharmaceutical benefits claiming profile. On the
basis of inferences drawn from the statistical data, the Commission may request
a review by the Director. The Commission’s request is merely an
initiating step within the PSR review process, following which particular
aspects of the services provision (in other words, conduct) by a person may be
reviewed by the Director and investigated by a Committee. The concept of the
request by the Commission replaces the current ‘investigative
referral’.
Subsection 86(1) provides that the Commission may
request the Director to review the provision of services by a person during the
period specified in the request. Any subsequent review by the Director or
investigation by a Committee following a referral are confined to the period
specified in the request made by the Commission.
Under subsection 86(2)
the period specified in the request by the HIC must be a period within the 2
year period immediately preceding the request.
Subsection 86(3)
specifies that the request made by the Commission must include reasons for the
request.
Subsections 86(4), (5) and (6) relate to guidelines concerning
the request by the Commission and provide that the content and form of the
request must comply with any guidelines made by the Minister. Guidelines so
made are disallowable instruments for the purposes of section 46A of the Acts
Interpretation Act 1901.
New Section 87 – Commission must
notify person of request
New section 87 provides that the Commission
must give the person, in respect of whom a request has been made under new
section 86, written notice of the request.
Subsection 87(1) states that
the Commission must give the person written notice of the request within 7 days
after making the request.
Subsection 87(2) provides that a failure to
comply with subsection 87(1) does not affect the validity of the
request.
New Division 3A – Review by Director
New
Division 3A concerns the review by the Director of the provision of services by
a person following a request by the Commission made under new subsection 86(1).
The new Division outlines the review process undertaken and the action that may
be taken by the Director.
New section 88 – Director may request
further information
New section 88 empowers the Director to request
further information in relation to the request made by the Commission made under
new section 86.
Subsections 88(1) and 88(2) provide that the Director,
in receipt of a request by the Commission to review the provision of services by
a person, may request further information from the Commission in relation to the
provision of any or all of those services provided during the period specified
in the request. The note included at subsection 88(1) makes it clear that the
Director’s request may be made to decide whether to undertake a review or
for the purposes of a review.
Subsection 88(3) states that the Commission
must comply with a request by the Director under subsection 88(1) so far as it
is capable of doing so.
New section 88A - Director must decide whether
to review
New section 88A concerns the decision by the Director
whether to review the request made by the Commission.
Subsection 88A(1)
provides that the Director must decide, within 1 month of receipt of a request
by the Commission to review the provision of services by a person, whether or
not to undertake the review.
By virtue of subsection 88A(2) the Director
must decide to undertake a review if, after reviewing the request and other
relevant information obtained by the Director, it appears to the Director that
there is a possibility that the person has engaged in inappropriate practice in
providing services during the review period.
Subsection 88A(3) states
that if the Director does not make a decision within the 1 month period, the
Director is taken to have decided, at the end of that period, to undertake the
review.
Subsections 88A(4) and (5) provide that the Director must,
within 7 days after the decision is made, give written notice of the decision to
the person and the Commission. Failure to give the notice within the time does
not affect the validity of the decision.
Subsection 88A(6) provides
that if the Director decides to undertake a review, the notice given to the
person under paragraph subsection 88(4)(a) must set out the terms of section
89(B) (this provision concerns the power of the Director to require the
production of documents or the giving of information for the purpose of
undertaking a review).
Subsection 88A(7) provides that failure to comply
with the requirement of subsection (6) does not affect the validity of the
decision.
Subsection 88A(8) specifies that if the Director decides not to
undertake a review, the notice given to the Commission under paragraph
subsection 88(4)(b) must include the grounds for the decision.
New
section 88B – Scope of the review
New section 88B concerns the
scope of the review by the Director of PSR. The section provides that if the
Director decides to undertake the review, the Director may review any or all of
the services provided during the period specified in the request and may
undertake the review in such manner as he or she considers appropriate.
Further, in undertaking the review, the Director is not limited by the reasons
included in the request under subsection 86(3).
New section 89 –
When Director must review
New section 89 provides that if the
Director receives a request (the ‘current request’) by the
Commission in relation to a person who was the subject of a previous request
where the Director decided not to undertake a review, the Director must review
the current request. The provisions of subsections 88A (4) to (6), concerning
notification of the review to the person under review and the Commission, and
the scope of the Director’s review (section 88B), apply to the review of
the current request.
Item 31 amends subsection 89A(1) by replacing
‘the referred services’ with ‘services provided by the person
during the review period’.
Items 32 and 33 amend paragraphs
89A(2)(a) and 89A(2)(b) by replacing ‘investigation’ with
‘review’, consistent with the new arrangements provided under new
Division 3A.
Item 34 amends the definition of ‘relevant
documents’ in subsection 89B(1) by omitting the word
‘investigation’ and substituting ‘review’, consistent
with the new arrangements provided under new Division 3A.
Item 35
amends the definition of ‘relevant documents’ in
subsection 89B(1) by omitting the word ‘referral‘ and substituting
‘review’, consistent with the new arrangements provided under new
Division 3A.
Item 36 amends subsection 89B(2) by omitting
‘conducting an investigation under section 89’ and substituting
‘review’, consistent with the new
arrangements provided under new Division 3A.
Item 37 amends
subsection 89B(6) by replacing ‘pursuant’ with ‘in
response’.
Item 38 inserts new section 89C.
New
section 89C - Director’s action following review
Section 89C
specifies the action the Director must take following a review of the provision
of services.
Subsection 89C(1) provides that following a review, the
Director must either decide to take no further action in relation to the review
or give the person a written report stating the reasons why the Director has not
decided to take no further action and an invitation to make written submissions
to the Director, within 1 month, about the action the Director should take in
relation to the review.
Subsection 89C(2) provides that if the person is
given a report and an invitation under paragraph 89C(1)(b), the Director must,
as soon as practicable after taking into account any submissions made by the
person within the time specified, decide to take no further action under section
91, enter into an agreement with the person under section 92, or make a referral
to a Committee under section 93.
Item 39 amends
subsection 90(1) by replacing the reference to the Director’s
decision on an investigative referral with the Director’s decision on a
review under section 89C.
Item 40 repeals section 91 and
substitutes a new section
New section 91 Decision to take no further
action
This new subsection replaces the reference to the
Director’s decision to dismiss an investigative referral with the
Director’s decision to take no further action in relation to a review,
consistent with the new arrangements provided under new Division 3A.
Subsection 91(1) provides that the Director may decide to take no
further action in relation to a review where he or she is satisfied that: there
are insufficient grounds to warrant proceeding to a Committee; or circumstances
that would make a proper investigation by a Committee impossible (for example,
death of the person under review).
Subsection 91(2) provides that where
the Director decides to take no further action, the Director must, within 7
days, give the Commission and the person under review written notice of this
decision and a report setting out the grounds for the decision.
Item
41 repeals subsection 92(1) and substitutes a new subsection 92(1) which
provides that the Director and the person under review (who must be a
practitioner) can enter into a written agreement, under which the person
acknowledges that he or she engaged in inappropriate practice in connection with
the rendering and initiation of specified services during the review period, and
specifies the action that is to take effect in relation to the person..
Item 42 amends paragraph 92(2)(e) by providing that the Part VII
authority for the purposes of the National Health Act 1953, in respect of
a medical or dental practitioner, may
be suspended for a period of not more
than 3 years as part of action, which may take effect under an agreement between
the Director and the practitioner.
Item 43 adds a note at the end
of subsection 92(2) to the effect that, in accordance with section 19B, medicare
benefits are not payable in respect of services rendered or initiated by, or on
behalf of, disqualified practitioners.
Item 44 amends paragraph
92(4)(d) the effect of which is that the Director must ensure action specified
in subsection 92(2) to give effect to an agreement is taken.
Item
45 inserts a new section 92A.
New section 92A – If agreement
is not ratified
New section 92A deals with the situation where the
Determining Authority refuses to ratify an agreement.
In this situation
there is a further three months period in which the Director can either make a
decision under section 91 to take no further action, or seek to have a further
agreement ratified by the Determining Authority, or make a referral to a
Committee. Otherwise, the Director is taken to have made a referral to a
Committee.
The note to this section clarifies that further agreements can
be made under subsection 92(5) following a refusal by the Determining Authority
to ratify an agreement.
Item 46 repeals subsections 93(1) and (2)
and substitutes new subsections 93(1) and (2).
Subsection 93(1) provides
for the Director to set up a Committee and make a referral to the Committee to
investigate whether the person under review engaged in inappropriate practice in
providing services specified in the Director’s referral.
Subsection 93(2) provides that the Director may make the referral to the
Committee from whom a request arose under section 106J, instead of setting up a
new Committee.
The heading to section 93 is replaced by the heading
‘Referral to a Committee’.
Items 47 and 48 amend
subsections 93(3) and (4) by omitting references to ‘adjudicative’
as this term is no longer used under the revised arrangements authorised by the
amendments to Part VAA.
Item 49 repeals subsections 93(6) and (7)
and substitutes the following new subsections.
Subsection 93(6) provides
that if the Director makes a referral to a Committee, the Director must prepare
a written report for the Committee, giving reasons why the Director thinks that
the person under review may have engaged in inappropriate practice in providing
the services to which the referral relates. The Director’s report must be
attached to the referral.
Subsection 93(7) provides that the Director
must, within 7 days after making the referral, give a copy of the referral and
the report to the person under review.
Under subsection 93(7A) the
copies given to the person under review must be accompanied by a written notice
setting out the terms of sections 102 (Notice of hearings), 106H (Committee
findings, scope of investigation, etc.) and 106K (Committee may have regard to
samples of services).
Subsection 93(7B) states that the services that may
be specified in the referral are any or all of the services provided by the
person under review during the review period.
Subsection 93(7C) provides
that the services specified in the Director’s referral are not limited by
the Director’s report under subparagraph 89C(1)(b)(i)
Subsection
93(7D) provides that failure to comply with subsection (7) or (7A) does not
affect the validity of the referral.
Item 50 amends subsection 93(8)
by deleting the reference to ‘investigation into the referred
services’ and replacing it with ‘review that gave rise to the
referral’, consistent with the revised arrangements.
Item 51 and
52 amend subsections 93(8) and 93(9) by omitting the reference to
‘adjudicative’ as this term is no longer used under the revised
arrangements.
Item 53 repeals sections 93A to 94 and substitutes
new section 94.
New section 94 – Director taken to have made a
decision after 12 months.
Subsection 94(1) provides that if,
following a decision to undertake a review, the Director has not decided to:
take no further action; entered into an agreement; or made a referral to a
Committee, within 12 months after making the decision to review, the Director is
taken to have made a decision to take no further action in relation to the
review.
The note added indicates that, by virtue of section 92A, if an
agreement between the Director and the person under review is not ratified by
the Determining Authority within 3 months, the Director is taken to have made a
referral to a Committee.
Subsection 94(2) provides that the 12 months
period may be extended by the Director if the review is suspended under
paragraph 89A(2)(b) (where material is referred to the Commission because fraud
is suspected), or because of an injunction or other court action. The
extension must be in writing and be for a specified period that is not longer
than the period of suspension.
Subsection 94(3) provides that the 12
months period may also be extended if there is failure to comply with a notice
given under subsection 89B(2) (where the director requires the production of
documents or the giving of information). The extension must be in writing and
be for a specified period that is not longer than the period during which the
person failed to comply with the requirement under subsection 89B(2).
By virtue of subsection 94(4), new section 94 does not apply in relation
to a review undertaken because of section 89 (When Director must
review).
Item 54 repeals subsection 95(2) and substitutes new
subsections 95(1A) and (2). The new subsections clarify the composition of a
Committee, even when the person under review is not the practitioner who
rendered or initiated the services.
Subsection 95(1A) provides that if
the person under review is not the practitioner who rendered or initiated all of
the referred the services, Panel members must be members of professions or
specialties relevant to the fields of practice of the practitioners(s) who
rendered or initiated the referred services.
Section 95(2) provides that
if the person under review was the practitioner who rendered or initiated all of
the referred services, the Chairperson and other Panel members must be
practitioners who belong to the profession in which the practitioner was
practising when the referred services were rendered or initiated.
Item
55 amends subsection 95(6) to clarify that the provision relates to
‘services specified in the referral’.
Item 56 amends
subsection 95(7) by inserting ‘or any of the practitioners’ after
‘practitioner’ as one or more practitioners may have rendered or
initiated the referred services.
Item 57 amends paragraph 96(2)(c)
to provide that a challenge by the person under review to the appointment of a
Committee member must, in addition to other specified requirements, be given to
the Director within 7 days of the person being given a copy of the referral and
the report under subsection 93(7).
Item 58 makes consequential
amendments to subsection 96(4) by omitting reference to subsections 95(2) and
substituting 95(1A), (2).
Item 59 inserts new section 96A which
deals with the cessation and appointment of Committee members before and during
a Committee’s investigation.
New section 96A If
Committee Members are unavailable
Subsection 96A(1) provides that if,
before the start of a Committee’s investigation, a Committee member ceases
to be a Panel member or, for any other reason, is unable to take part in the
investigation, the Director may appoint another Panel member to the Committee as
a replacement.
Subsection 96A(2) provides that where the Committee has
started its investigation and, before completion of the final report, a
Committee member ceases to be a Panel member or, for any other reason, is unable
to take any further part in the investigation or preparation of reports, the
remaining Committee members may, with the consent of the person under review,
constitute the Committee for the purposes of completing its investigation and
preparing the Committee’s reports.
Subsection 96A(3) provides
that if the person under review does not consent to the remaining Committee
members continuing the investigation, the Director must set up another Committee
under section 93(1).
Item 60 amends subsection 98(3) the effect
of which is to relate the provisions to the person under review who provides
services in accordance with new subsection 81(2).
Item 61 repeals
subsection 99(7) as a consequence of the inclusion of new section 96A (see item
59).
Item 62 amends subsection 101(2) by deleting the phrase
‘after considering the matters that are the subject of the
referral’, to clarify that the scope of the Committee’s
investigations are not limited to the reasons given in the Director’
report or the Commission’s request (see Item 106H).
Items 63
amends subsection 101(2) the effect of which is to relate the provisions to
the person under review who provides services in accordance with new subsection
81(2).
Item 64 amends subsection 102(3) to clarify that the
particulars contained in a notice of a Committee hearing must relate to
‘referred services’, being services specified in a referral made to
a Committee under section 93.
Item 65 adds new subsection 102(4)
which provides that a notice of hearing may require the person under review to
appear at a hearing of a Committee and give evidence. Presently, the notice of
hearing must require the person under review to attend. This amendment relates
to the amendments made by Item 66.
New section 104 - Consequences of failing to appear, give evidence or
answer a question when required
New section 104 specifies the
consequences of a person under review failing to appear, give evidence or answer
questions when required at a Committee hearing.
New subsection 104(1)
provides that new section 104 has effect if the notice of hearing requires the
person under review to attend and give evidence at a Committee hearing and the
person under review fails to appear or appears at the hearing but refuses or
fails to give evidence or answer questions.
Under new subsection 104(2)
the Committee may notify the Director if the person under review is a
practitioner and fails to attend a hearing or appears but refuses or fails to
give evidence or answer questions. (At present it is mandatory for the
Chairperson of a Committee to notify the Director in these circumstances
following which the Director of PSR must disqualify the person under review).
The amendment enables the Committee, in deciding whether to notify the Director
of PSR, to take into account factors beyond the person under review’s
control, for example, a motor accident on the way to the hearing or the death of
a close family member around the time of the hearing.
New subsection
104(3) provides the Committee with an option to proceed with the hearing or to
propose to hold another hearing in accordance with section 102.
New
subsection 104(4) provides that if the person under review subsequently appears,
gives evidence and answers questions at a Committee hearing, then the Committee
must advise the Director accordingly and the rights accorded to the person under
review by section 103 are reinstated.
New subsection 104(5) specifies
that the Committee may not notify the Director of a person’s failure to
appear or refuse to give evidence or answer questions at a Committee hearing or
may not proceed with the hearing, if the person under review notifies the
Committee that he or she has a medical condition and if the person has complied
with any reasonable requirements of the Committee regarding medical examinations
which confirm the medical condition. The circumstances applying under new
subsection 104(5) preclude the application of new subsection 104(2) and new
paragraph 104(3)(a).
Under new subsection 104(6) the requirements that
the Committee notify the Director of the person’s failure to attend, give
evidence or answer questions at a Committee hearing and the exercise of the
option by the Committee to hold another hearing do not apply if both the person
under review and the Committee believe that answering a question might tend to
be self-incriminating for the person under review.
New Section 105 -
Disqualification for failing to appear, give evidence or answer a question when
required
New section 105 provides for disqualification of a person
under review for failing to appear, give evidence as required or to answer every
question when required at a Committee hearing.
New subsection 105(1)
provides that, if upon receipt of a notice from the Committee under new
subsection 104(2) the person under review (who is a practitioner) has failed to
appear, give evidence or has refused to answer questions at a Committee hearing,
then the Director must fully disqualify the person from Medicare and advise the
Commission.
Under new subsection 105(2) the Director must revoke the
disqualification and advise the Commission of the revocation as soon as
practicable after the Director is informed by the Committee under new paragraph
subsection 104(4)(e) that the person has appeared, given evidence and answered
questions.
New subsection 105(3) provides that a disqualified person may
request the Committee, in writing, to hold another hearing under section 102 and
the Committee must comply with the request as soon as practicable.
Under
new subsection 105(4) a request by a disqualified person under new subsection
105(3) to hold another hearing must be made no later than 1 month after the day
on which a copy of the Committee’s draft report is given to the person
under subsection 106KD(3).
Item 67 amends the definition of
‘relevant documents’ in subsection 105A(1) by
including reference to the Director’s referral.
Item 68
amends the definition of ‘relevant documents’ in
subsection 105A(1) by including reference to the review
period.
Item 69 repeals subsection 106G(1) and substitutes a new
subsection 106G(1) which applies the provisions of Subdivision C – Action
to be taken by Committees, to the investigation by a Committee of the provision
of services specified in the Director’s referral.
Item 70
amends paragraph 106G(2) the effect of which is to ensure that the final
report of a Committee which does not contain a finding of inappropriate
practice, is to be given to the person under review.
Item 71 omits
the reference to an adjudicative referral from paragraph 106G(2)(a).
Item 72 amends paragraph 106G(2)(b) the effect of which is to
enable the Director to extend the Committee investigation period for 3 months at
a time, rather than 1 month at a time as currently occurs.
Item 73
adds new subsections 106G(5) and 106G(6).
New susbsection 106G(5)
provides that failure to comply with subsection 106G(2) does not affect the
validity of a final report of the Committee.
New subsection 106G(6)
provides that if the Director gives to a Committee written notice that existing
circumstances make a proper investigation by a Committee impossible, the
provisions of Division 4 of Part VAA of the Act (relating to Professional
Services Review Committees) cease to have effect concerning the Committee. A
copy of the Director’s notice is to be given to the Commission and the
person under review.
Item 74 repeals sections 106H and 106J and
substitutes the following new sections
New Section 106H –
Committee findings, scope of investigations, etc.
Subsection 106H (1)
specifies that a Committee is to make findings only in respect of the referred
services, that is services specified in the referral.
Subsection 106H(2)
provides that a Committee is not required to have regard to conduct in
connection with rendering or initiating all of the referred services but may do
so if the Committee considers it appropriate in the circumstances. The note
added indicates that, under section 106K a Committee can make findings about a
sample of the referred services and apply those findings across the relevant
class of referred services.
Under subsection 106H(3) the
Committee’s investigation is not limited by the reasons or anything else
in the Director’s report to the Committee under paragraph 93(6)(a) or any
request under section 86 or 106J. The Committee is able to investigate other
matters related to the referred services, not previously identified, which arise
during the course of its investigation of the referred services.
Subsection 106H(4) provides that before the Committee makes a finding of
inappropriate practice, it must notify the person under review of this
intention, provide the person with the reasons, and give the person an
opportunity to respond. The Committee may satisfy this obligation through
raising questions at the time a particular service is examined, at the end of a
hearing day, or through the provision of a draft report setting out its
preliminary findings.
Subsection 106H(5) provides that a Committee
complies with subsection 106H(4) by providing the person under review with its
draft report in accordance with section 106KD.
New Section 106J
– Committee may request Director’s review
Subsection
106J(1) provides that if it appears to a Committee that, during its
investigation, a practitioner may have engaged in inappropriate practice during
the review period in the provision of services other than the referred services,
the Committee may request the Director to review the provision of those
services.
By virtue of subsections 106J(2) and 106J(3) a request by the
Committee must be made in the same manner as a request by the Commission to the
Director under new section 86 and, for this purpose, specified references in
sections 87 and 88 and subsections 88A(1), (4) and (8) are to be read as
references to the Commission and/or the Committee as appropriate. However,
subsection 86(4) does not apply.
Item 75 repeals subsections
106K(1) and (2) and substitutes new subsections 106K(1) and (2). Section 106K
provides that a Committee may have regard to samples of
services.
Subsection 106K(1) provides that the Committee, in its
investigation of the provision of services, may have regard only to a sample of
services included in a particular class of the referred services.
New
subsection 106K(2) provides that where a Committee makes a finding of
inappropriate practice about conduct in connection with the rendering or
initiation of all, or a proportion of, services included in the sample, then
that person is taken to have engaged in inappropriate practice in the provision
of all, or a proportion, of the services in the class from which the sample is
chosen
Item 76 repeals subsections 106KA(1) and (2) and
substitutes new subsections 106KA(1) and (2).
Subsection 106KA(1)
provides that, subject to new subsection 106KA(2) and existing section
106KA(2A), where the rendering or initiating of the referred services
constituted a ‘prescribed pattern of services’, the person under
review is taken to have engaged in inappropriate practice in the provision of
services during the relevant period.
Subsection 106KA(2) provides that
the person is not taken to have engaged in inappropriate practice under
subsection 106KA(1) if, on a particular day or days during the relevant period,
exceptional circumstances (prescribed in the regulations) existed that affected
the rendering or initiating of services. The operation of exceptional
circumstances does not affect the operation of subsection 106KA(1) in respect of
the remaining day or days in the relevant period on which the person provided
services.
Item 77 amends subsection 106KA(2A) by relating the
person under review to the person who provided the services as defined in new
subsection 81(2).
Item 78 amends subsection 106KA(7) by omitting
the reference to conduct during a particular period and including the reference
to ‘the provision of services during a particular
period’.
Items 79, 80 and 81 amend paragraphs 106KB(3)(a)
and 106KB(3)(b) and subsection 106KB(3) respectively by relating the person
under review to the person who provided the services as defined in new
subsection 81(2).
Item 82 repeals subsection 106KC(1) and inserts
a new subsection, the effect of which is that the Committee is able to notify
the Director of any matter of significant concern, which arises during its
investigation, whether or not the matter is related to the
referral
Item 83 inserts a new subsection 106KD(1A) which
specifies that the draft report of the Committee must set out the reasons
for the preliminary findings.
Item 84 amends subsection 106KD(3)
to remove the obligation from the Committee to seek submissions on its draft
report in cases where the report does not contain a finding of inappropriate
practice.
Item 85 amends subsection 106KD(3) to increase the
period a person under review has to write submissions suggesting changes to the
draft report from 21 days to 1 month.
Item 86 inserts new section
106KE dealing with a Committee’s final report.
New Section 106KE
Draft report contains no finding of inappropriate practice
Subsection 106KE(1) provides that if the draft report of a Committee
does not contain a finding of inappropriate practice, the draft report is the
Committee’s final report and copies must be given to the person under
review, the Director, and the Commission.
Subsection 106KE(2) provides that
the copies of the Committee’s report must include, or be accompanied by, a
written statement that the report is the Committee’s final report, the
report does not contain a finding of inappropriate practice, and no further
action will be taken as a result of the report. Copies of the report must be
provided to the person under review, the Director, and the
Commission.
Item 87 inserts new subsection 106L(1A) which provides
that amended section 106L – Final report of Committee, applies if
the person under review is given a copy of the Committee’s draft report
and invited to make submissions under subsection 106KD(3).
Item 88
substitutes a period of ‘1 month’ in lieu of ’21
days’ in subsection 106L(1), to establish consistency throughout the PSR
review process.
Item 89 inserts a new subsection 106L(1B) which
provides that a final report of a Committee cannot include a finding of
inappropriate practice unless the finding and the reasons for the finding were
included in the draft report under section 106KD.
Item 90 repeals
subsections 106L(3) and (4) and substitutes new subsection 106L(3), (4) and
(5).
Subsection 106L(3) provides that the Committee must provide copies
of the final report to the person under review and the Director, and that no
earlier than 1 month after that date, then give the final report to the
Determining Authority.
Subsection 106L(4) provides that the copy of the final
report given to the person under review must be accompanied by a written notice
setting out the terms of new paragraph 106L(3)(b);
Subsection 106L(5)
provides that the copies of the Committee’s report must include, or be
accompanied by, a written statement that the report is the Committee’s
final report, the report does not contain a finding of inappropriate practice,
and no further action will be taken as a result of the report. Copies of the
report must be provided to the person under review, the Director, and the
Commission.
Item 91 amends subsection 106M(1) by removing the
reference to matters in an adjudicative referral and substituting reference to
the Committee’s investigation.
Item 92 substitutes
‘and’ for ‘or’ in paragraph 106M(2)(a).
Item
93 omits the word ‘otherwise’ from paragraph
106M(2)(b).
Item 94 repeals section 106S and substitutes new
sections 106S and 106SA.
New Section 106S – Director may give
Determining Authority information
The purpose of new section 106S is
to provide that the Director may give the Determining Authority information.
Examples of information which might be relevant are the nature and circumstances
of any previous conduct of the person that has resulted in a criminal conviction
or disciplinary action (by a registering or licensing body), responses to any
counselling, ratification of a section 92 agreement, a final determination that
has taken effect, and any particular needs of the locality in which the person
under review practices.
Subsection 106S(1) provides that the Director may
give to the Determining Authority any information the Director considers
relevant to the authority making a draft or final determination in accordance
section 106U.
Subsection 106S(2) provides that the information must be
given by the Director no later than the day on which the Committee’s final
report is given to the Determining Authority under subsection 106L(3). The
effect of this provision is that the Determining Authority will consider the
information given by the Director at the same time that it has available the
Committee’s final report.
Under subsection 106S(3) the Director
must also give to the person under review the information given to the
Determining Authority at the time it is provided to the Determining
Authority.
Subsection 106S(4) provides that the Determining Authority
must consider the information given by the Director in making its draft or final
determination in accordance with section 106U.
New section 106SA
– Authority to invite submissions before making a draft
determination
Subsection 106SA provides that the Determining
Authority must, after being given the final report by the Committee, give the
person under review a written invitation to make written submissions to the
Authority within 1 month about the directions the Authority should make as a
result of the report. The note added states that section 106U sets out the
directions the Determining Authority can make.
Item 95 repeals
subsection 106T(1) and substitutes a new subsection which requires that the
Determining Authority, on receipt of a final report from a Committee and within
1 month after the report is given to it, make a draft determination which takes
account of any submissions received, and give copies of the draft determination
to the person under review and the Director. The two notes added provide for the
title of sections 106T and 106TA to be amended by the deletion of
‘relating to person under review if Committee makes a finding of
inappropriate practice’.
Item 96 amends paragraph 106U(1)(c)
the effect of which is to relate the provision to the person who provides
services in accordance with new subsection 81(2).
Item 97 amends
paragraph 106U(1)(f) by omitting the words “revoked or”, as a part
VII authority can only be temporarily suspended.
Item 98 adds a
note at the end of subsection 106U(1) to the effect that medicare benefits are
not payable in respect of services rendered or initiated by, or on behalf of,
disqualified practitioners.
Item 99 inserts new subsection
106U(2A) which provides that a direction under paragraph 106U(1)(f) must specify
a period of suspension of up to 3 years to start when the determination takes
effect.
Item 100 amends section 106W by adding a requirement that
the copy of the final determination given to the Commission under section 106L,
must be accompanied by a copy of the final report of the PSR
Committee.
Item 101 amends paragraph 106XA(2)(a) (Section 106XA -
Referring to an appropriate regulatory body any significant threat to life or
health) by including reference to a ‘Director’s review’ in
lieu of an investigation under section 89.
Item 102 amends
paragraph 106XA(2)(a) by clarifying that the conduct relates to ‘conduct
by the person under review’.
Item 103 repeals paragraph
106XB(2)(a) and substitutes a new paragraph which refers to an opinion being
formed by the Director in the course of a Director’s review rather than an
investigation under section 89.
Item 104 repeals paragraph
106ZPA(2)(e) and substitutes new paragraphs (e) and (f) which clarify the
composition of the Determining Authority when considering whether to ratify an
agreement or a particular report made to the Authority by the Committee.
Item 105 amends subsection 106ZPL(2) by including reference to a
‘Director’s review’ in lieu of an investigation under section
89.
Item 106 amends paragraph 106ZPL(2)(a) by including reference
to ‘a referral resulting from the review’ and omitting the reference
to an adjudicative referral resulting from the investigation.
Item 107
amends subparagraph 106ZPL(2)(b)(i) by omitting ‘investigation’
and substituting ‘review’.
Item 108 amends
subparagraph 106ZPL(2)(b)(ii) by including reference to ‘a referral
resulting from the review’ and omitting the reference to ‘an
adjudicative referral resulting from the investigation’.
Item
109 amends subsection 106ZPL(3) by omitting reference to an
‘adjudicative’ referral.
Subsection 106ZPM(2) provides that, where the Director considers that
subsection 106ZPM(1) applies to stop payment of a medicare benefit, the Director
must give such a notice to the person.
Subsection 106ZPM(3) provides that
the Director must give a copy of the notice to the Commission.
Under
subsection 106ZPM(4) the person is to be taken to be fully disqualified for the
purposes of section 19D if subsection 106ZPM(1) prevents the payment of a
medicare benefit and the Director has given a notice under new subsection
106ZPM(2).
Item 112 amends paragraph 106ZPR(1)(c) to remove the
reference to referred services.
Item 113 repeals subsection
106ZR(2), as the provision is no longer required.
Item 117 Application – items 2, 5, and
6
Subitem (1) provides that the amendment made to
subsection 19D(11) by item 2 applies to a person who becomes disqualified
under the PSR arrangements on or after the commencement of that Item under
section 92, section 105 and paragraph 106U(1)(h) or for the purposes of section
106ZPM.
Subitem (2) provides that the amendments made to section
23D and the addition of new section 23DAA, by items 5 and 6, apply to
determinations made by the Minister after the commencement of item 63 of
Schedule 1 to the Health Insurance Amendment (Professional Services Review)
Act 1999 at which time the removal of the previous right of appeal to
a PSR Tribunal became effective.
Subitem (3) applies the
provisions of section 23D as amended by item 5 to determinations made by the
Minister after the commencement of item 63 of the Health Insurance Amendment
(Professional Services Review) Act 1999 and before the commencement of this
subitem.
Item 118 Saving and transitional – Part VAA of
the Health Insurance Act 1973
Investigative and
adjudicative referrals made before commencement – old law to
apply
Subitem (1) provides that the Health Insurance Act
1973, in force prior to the commencement of the amendments made by
this Schedule, continues to apply to investigative and adjudicative referrals
made prior to the commencement of these amendments.
Subitem (2)
specifies that subitem (1) has effect subject to subitems (3) and (4)
below.
Referrals to Committees to be made under new
law
Subitem (3) provides that any referral to a Committee
under section 93 of the Health Insurance Act 1973, made after the
commencement of this Schedule, is to be made under, and dealt with in accordance
with, that Act as in force after that commencement, and
• if the
referral is made as a result of an investigative referral, the review period is
the period that was the referral period for the investigative referral;
or
• if the referral is made as a result of the Director’s
investigation of a matter referred to the Director by a Committee under
subsection 106H(2) of the Health Insurance Act 1973 as in force
immediately before the commencement of this Schedule, the review period is the
period that was the referral period for the investigative referral that gave
rise to the adjudicative referral made to the Committee.
Referrals
back to Director to be made as requests
Subitem (4) provides
that if, after the commencement of this Schedule, a Committee makes a referral
(the Committee referral) to the Director under subsection 106H(2) of the
Health Insurance Act 1973 as in force immediately before the commencement
of this Schedule, the Committee referral is to be dealt with as if it were a
request under section 106J, as amended by this Schedule; and the review period
for the request is the period that was the referral period for the investigative
referral that gave rise to the adjudicative referral
made to the Committee.
Director may give information to
Determining Authority on commencement
Subitem (5) provides
that the amendments made by item 94 to section 106S, which provide that
the Director may on or after the commencement of that item give information to
the Determining Authority, apply even if the Committee’s final report to
which the information relates was prepared before the commencement of that item.
Item 119 – Validation of referrals
The purpose of
this provision is to validate investigative and adjudicative referrals that are
currently before Professional Services Review Committees.
The Bill validates the investigative and
adjudicative referrals made in respect of the 36 cases currently before PSR
Committees which are substantially similar to those invalidated by the Federal
Court in Pradhan v Holmes & Others. In that case, the Federal Court
invalidated both referrals on the basis that they were not limited to specified
conduct and purported to authorise an investigation into conduct at large.
Although the Full Federal Court has, in another
decision, recently declined to accept the approach taken in Pradhan to
invalidate such referrals, some uncertainty remains. The Bill validates
these referrals to the extent that the matters referred relate to specified
conduct by severing those parts of the referrals which, in the Federal Court's
view, purported to authorise an investigation into conduct at large.
HEALTH INSURANCE AMENDMENT (PROFESSIONAL SERVICES REVIEW) ACT
1999
Items 120, 121, 122 and 123 amend the transitional
provisions contained in Part 2 of Schedule 1 of the Health Insurance
Amendment (Professional Services Review) Act 1999 (the Amendment Act) to
clarify the original intention of those provisions.
The amending Act
enhanced the Committee’s powers in relation to the production of documents
in new section 105A. Although the Amendment Act generally does not apply to
matters referred by the Health Insurance Commission to the Director before its
commencement on 1 August 1999, an exception was made in respect of new section
105A and the related sanctions contained in new sections 106ZPM and 106ZPN. The
Explanatory Memorandum to the Amendment Act indicated that the purpose of the
amendment was to allow a Committee, in considering an ‘old matter’
to have all the powers and sanctions available to it to obtain documents or
information under section 105A. However, item 67(3) of the Amendment Act does
not give effect to this policy intent. These amendments address this technical
defect and ensure the implementation of the original policy intent.
Item 120 amends item 65 of Schedule 1 of the Amendment Act by
inserting a reference to new subitem 67(3A). This is consequential upon the
amendment made by item 122.
Item 121 amends subitem 67(3) of
Schedule 1 of the Amendment Act to provide that section 105A, in force prior to
the amendments made by Item 43 of the Amendment Act, ceases to apply to an
‘old matter’ on or after the commencement of Schedule 1 to the
Health Insurance Amendment (Professional Services Review and Other Matters)
Act 2002.
Item 122 amends subitem 67(3) of Schedule 1 of the
Amendment Act by inserting new subsection (3A). Under new paragraphs (3A)(a)
and (b) a Committee may exercise the powers conferred by section 105A concerning
the production of documents or the giving of information in relation to an
‘old matter’.
Item 123 amends Item 68 of Schedule 1
of the Amendment Act, by inserting a definition to clarify the commencement of
Schedule 1. The definition clarifies the commencement date for all Items in
Schedule 1 (other than Items 8 and 27 relating to medical records) as being 1
August 1999.
SCHEDULE 2 – CLEFT LIP AND CLEFT PALATE
Item 1 repeals the definition of ‘prescribed dental
patient’.
Item 2 inserts a new definition of
‘prescribed dental patient’ to mean the following:
- (1) a
person who is under 22 years of age and has been issued with a certificate
stating that the person is suffering from a cleft lip and cleft palate
condition, and/or
- (2) a person who is between 22 and 27 years of age who
has been issued with a certificate stating that the person is suffering from a
cleft lip and cleft palate condition, and whose treatment commenced prior to
turning 22 years of age, and/or
- (3) a person who is under 22 years of age
and has been issued with a certificate stating that they suffer from a condition
determined by the Minister.
The definition also outlines the definition
of an approved medical practitioner or approved dental practitioner and how
certificates must be issued. It also includes how a determination by the
Minister must be made.
Item 3 clarifies that certificates already
issued, or determinations already made by the Minister remain in force after the
commencement of this Schedule.
Until 2001 legislation underpinning the issue of health care cards and
pensioner concession cards by the Family and Community Services Portfolio was
contained in the Health Insurance Act 1973 and the National Health Act
1953. The Social Security Legislation Amendment (Concession Cards) Act
2001 removed those provisions and substituted equivalent ones in the
Social Security Act.
However, there remain some definitions and
a subsection in section 3 of the Health Insurance Act, which relate to
the previous arrangements for such cards. These are now redundant since they
have no effect. The amendments in Schedule 3 of the Bill repeal these items.
These amendments are purely technical and will not have any impact on Centrelink
clients or on access to, or benefits under, the Pharmaceutical Benefits Scheme.