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2008-2009
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
HEALTH INSURANCE AMENDMENT
(NEW ZEALAND OVERSEAS TRAINED DOCTORS) BILL 2009
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Health and Ageing,
the Hon Nicola Roxon, MP)
HEALTH INSURANCE AMENDMENT
(NEW ZEALAND OVERSEAS TRAINED DOCTORS) BILL 2009
OUTLINE
The Health Insurance Amendment (New Zealand Overseas Trained Doctors) Bill
2009 (the Bill) proposes to streamline the operation of section 19AB of the
Health Insurance Act 1973 (the HIA) and remove a number of anomalies.
Section19AB of the HIA came into force through an amendment made to the HIA
in 1996. It provides that Medicare benefits are not payable in respect of
professional services provided by (or on behalf of) an overseas trained
doctor or a former overseas medical student, except in certain
circumstances. Its purpose was, and remains, to influence distribution of
the medical workforce in rural and remote areas of Australia, ensuring
communities in rural and remote Australia have appropriate access to
medical services.
Overseas trained doctors and former overseas medical students have
generally been restricted from providing professional services which
attract Medicare benefits for a period of ten years. That period currently
commences on the date that the person becomes both a medical practitioner
and a permanent Australian (being an Australian permanent resident or
citizen) and is commonly referred to as the 'ten year moratorium'.
Overseas trained doctors and former overseas medical students may be
granted an exemption from these restrictions. The guidelines issued under
section 19AB of the HIA provide that a primary consideration in granting
such an exemption is that an applicant must work in a district of workforce
shortage.
The main provision proposed in the Bill relates to the removal of current
restrictions applicable to New Zealand permanent resident and citizen
doctors who have obtained their primary medical education at an accredited
medical school in Australian or New Zealand. The change effectively
removes these doctors from the classification of 'overseas trained doctor'
and 'former overseas medical student' in section 19AB of the HIA.
Another important provision proposed in the Bill is the removal of the
requirement for overseas trained doctors to have both Australian permanent
residency or citizenship and medical registration in order for the ten year
moratorium period to commence.
The Bill also introduces a period in which medical practitioners can appeal
against the refusal of a section 19AB exemption application or a decision
to impose conditions in connection with a granted exemption.
The amendments will apply to certain medical practitioners, that is, some
overseas trained doctors and former overseas medical students who are
currently subject to section 19AB of the HIA, from 1 April 2010 or on Royal
Assent, whichever is the later date. Following the commencement of the
amendments, individuals will not need to apply for a release from a
subsection 19AB(3) exemption or moratorium if they will no longer be
subject to section 19AB.
Financial Impact Statement
The financial impact of this Bill for the Department of Health and Ageing
is small. It is an anticipated ongoing saving of approximately $0.2
million per annum.
HEALTH INSURANCE AMENDMENT
(NEW ZEALAND OVERSEAS TRAINED DOCTORS) BILL 2009
NOTES ON CLAUSES
Clause 1 - Short Title
This clause provides that the Bill, once enacted, may be cited as the
Health Insurance Amendment (New Zealand Overseas Trained Doctors) Act 2009.
Clause 2 - Commencement
This clause provides that sections 1 to 3 will commence on Royal Assent and
that Schedule 1 will commence on 1 April 2010 or on Royal Assent, whichever
is the later date.
This timing will provide sufficient time to ensure that affected medical
practitioners are notified of the changes and for Medicare Australia to
implement the necessary system changes.
Clause 3 - Schedule(s)
Each Act that is specified in a Schedule to this Bill is amended or
repealed as set out in the applicable items in the Schedule concerned, and
any other item has effect according to its terms. Schedule 1 amends the
Health Insurance Act 1973 (the HIA) and provides application provisions.
SCHEDULE 1-AMENDMENT TO THE HEALTH INSURANCE ACT 1973
Part 1 - Amendments
Items 1 and 3
These items amend subsections 19AB(1) and (2) to replace the term 'former
overseas medical student' with 'foreign graduate of an accredited medical
school'.
Section 19AB of the HIA places restrictions on a category of individuals
known as former overseas medical students. This category of individuals is
defined in the HIA as persons whose primary medical qualification was
obtained from an Australian medical school and who were not Australian
citizens or permanent residents when they first enrolled at a medical
school located in Australia.
The term 'former overseas medical student' is commonly misunderstood and
results in significant confusion among doctors. The term is currently
intended to refer to a person who is a foreign person who graduates from an
Australian medical school. The amendments aim to remove this confusion by
replacing the term with the new term 'foreign graduate of an accredited
medical school', which reflects the intended meaning more accurately. The
new definition of this new term is inserted by item 6.
Items 2 and 4
These items amend subparagraphs 19AB(1)(f)(ii) and 19AB(2)(f)(ii) by
replacing the reference to the date on which the person 'became a permanent
Australian' with the date on which the person 'first became a medical
practitioner'.
Section 19AB provides that certain medical practitioners are restricted
from providing professional services for which a Medicare benefit is
payable for a period of ten years. If a person becomes a medical
practitioner prior to becoming an Australian permanent resident or citizen
(permanent Australian), the HIA currently specifies that the ten year
period commences from the date on which the person becomes a permanent
Australian (paragraphs 19AB(1)(f) and 19AB(2)(f)). This means that some
medical practitioners who were initially temporary resident doctors and who
subsequently gained Australian permanent residency or citizenship have been
subject to the restrictions in section 19AB for periods significantly in
excess of ten years.
A significant number of temporary resident doctors, including New Zealand
trained doctors, work in districts of workforce shortage for two to five
years before gaining Australian permanent residency or citizenship. When
the ten year moratorium is applied to their tenure, these doctors may be
obliged to work in a district of workforce shortage for up to fifteen
years.
The experience of temporary resident doctors is not in keeping with the
original intent of the HIA. The Supplementary Explanatory Memorandum for
the Health Insurance Amendment Bill (No. 2) 1996, clause 3, provides:
"19AB(1) - a medical practitioner who is either an overseas trained
doctor or an Australian trained doctor who began studies as an
overseas full paying student, is required to wait ten years from the
date he or she obtains Australian medical registration (ten year
moratorium) before they can render services which attract Medicare
benefits. These doctors will be able to take up salaried medical
positions for which billing against Medicare is not required (eg.
salaried hospital positions)."
This amendment proposes that the ten year moratorium will commence from the
time the medical practitioner is first registered as a medical practitioner
in Australia and will cease after ten years, provided the medical
practitioner has become a permanent Australian during that period.
It is anticipated that a number of overseas trained doctors will be taken
to have completed their ten year moratorium upon the commencement of this
amendment. Documentation will not be required to recognise the status of
such persons, that is, the Department of Health and Ageing will not require
the special lodgement of any documentation (e.g. visas or citizenship
documentation) in support of this change in status. Such medical
practitioners will still be required to have a Medicare provider number for
each location at which they practise as this requirement will remain
unchanged.
If a medical practitioner has not become a permanent Australian before the
end of the ten year period after gaining medical registration, the
restrictions will remain in force until such time as the medical
practitioner gains Australian permanent residency or citizenship.
Item 5
This item inserts into subsection 19AB(7) the definition of accredited
medical school. The term means a school located in either Australia or New
Zealand that is accredited by the Australian Medical Council (the AMC).
This term is used in the definition of foreign graduate of an accredited
medical school (item 6 refers).
Item 6
This item inserts into subsection 19AB(7) the definition of foreign
graduate of an accredited medical school (items 1 and 3 refer). The term
means a person who obtains their primary medical qualification from an
accredited medical school in Australia or New Zealand, and who was not, at
the time he or she enrolled in that school, a New Zealand or Australian
citizen or a permanent resident (item 9 also refers). Consequently,
foreign graduates of an accredited medical school will continue to include
those persons who were not Australian or New Zealand permanent residents or
citizens at the time that they enrolled in an accredited Australian or New
Zealand medical school.
This definition recognises that the AMC accredits both Australian and New
Zealand medical schools and ensures that New Zealand citizens and permanent
residents are treated similarly to Australian citizens and permanent
residents for the purpose of section 19AB of the HIA.
The amendment also addresses that, although New Zealand citizens are
generally entitled to stay permanently in Australia on a Special Category
Visa, these visas are not permanent visas pursuant to the Migration Act
1958. Currently, New Zealand citizens who complete their medical
qualifications at Australian medical schools come within the definition of
'former overseas medical student' as these students are not Australian
permanent residents. Since eligibility is measured from the time a student
enrols in their primary medical degree, obtaining Australian citizenship or
permanent residency once such persons have commenced studies offers no
relief.
The effect of the amendment is that professional services provided by New
Zealand permanent residents or citizens who obtained their primary medical
degree from an Australian or New Zealand medical school and who had
previously been subject to the ten year moratorium or a subsection 19AB(3)
exemption, will attract Medicare benefits from the commencement date of the
Bill (i.e. 1 April 2010 or on Royal Assent, whichever is the later date).
Such persons will no longer be subject to moratorium periods by operation
of section 19AB of the HIA and any subsection 19AB(3) exemptions held by
such persons will cease to have effect.
The amendment applies only to section 19AB of the HIA. New Zealand
permanent residents and citizens will still need to comply with section
19AA of the HIA.
Item 7
This item repeals the definition of former overseas medical student. This
term is no longer used in the HIA as a result of the changes made to
subsections 19AB(1) and (2).
Item 8
This item amends the definition of overseas trained doctor in subsection
19AB(7) by including a reference to an accredited medical school.
Many Australian citizens elect to study at New Zealand medical schools.
These medical schools are accredited by the AMC to the same standards as
Australian medical schools. However, as these Australians did not gain
their primary medical degree in Australia, they are currently subject to
section 19AB of the HIA as they fit within the current definition of
overseas trained doctors.
The amendment will have the effect of excluding Australian graduates of New
Zealand medical schools from the amended definition of overseas trained
doctor. Consequently, graduates of an accredited Australian or New Zealand
medical school will not be overseas trained doctors.
The amendment takes into account the Department of Health and Ageing's
awareness that overseas trained doctors enter Australia via New Zealand,
with the majority of these doctors obtaining New Zealand passports as a
result of New Zealand's different entry and citizenship laws. It is not
intended that this proposed amendment be extended to medical practitioners
whose primary medical education was obtained outside of Australia or New
Zealand.
Item 9
This item amends the definition of permanent Australian to replace the term
'permanent resident' with 'a holder of a permanent visa (within the meaning
of the Migration Act 1958)'.
Item 10
This item repeals the definition of permanent resident. This term is no
longer used in section 19AB of the HIA as a result of the changes made to
the definition of permanent Australian in subsection 19AB(7) to clarify the
meaning of 'permanent resident' within section 19AB of the HIA (item 9
refers).
Items 11 and 12
These items insert two new subsections into section 19AC.
Section 19AC of the HIA allows for the review of decisions made under
subsection 19AB(3) in respect of applications for an exemption from
subsection 19AB(1) or (2). Section 19AC provides that an individual who
has been refused an exemption may apply for a review of that decision by
the Minister (or delegate). Similarly, an applicant may apply for a review
of a decision to impose one or more conditions in connection with an
exemption under subsection 19AB(4).
The Minister (or delegate) must make a decision on the reconsideration
within 28 days after receiving the application. The Minister (or delegate)
is taken to have made a decision confirming the original decision if he or
she fails to notify the applicant of his or her decision within 28 days
after receiving the application for reconsideration. Following an
unsuccessful reconsideration, an application may be made to the
Administrative Appeals Tribunal.
Currently there is no provision made in section 19AC that stipulates a time
limit for seeking a review through section 19AC. As no time limits are
specified, applicants may apply for a review of a decision more than twelve
months after the original decision was made by the Minister (or delegate).
New subsection 19AC(2A) provides a 90 day period for an applicant to apply
for a review of a decision by which the Minister (or delegate) refused to
grant an exemption under subsection 19AB(3). New subsection 19AC(3A)
provides a 90 day period for an applicant to apply for a review of a
decision by which the Minister (or delegate) imposed conditions in
connection with an exemption. This will have the effect of reducing the
likelihood that the conditions relating to the original consideration of
the application will have varied significantly prior to the review. The
amendment is also intended to assist in improving management of the review
process.
In the case of a 'deemed' refusal of an exemption application, the effect
of the amendment will be that an application for review may be made within
the 90 period beginning on the day after the end of the 28 day period
referred to in subsection 19AC(2).
Part 2 - Application provisions
This Part provides for the application of the amendments made by this Bill.
Item 13 - Definitions
This item inserts the definitions of exemption condition decision and
exemption refusal decision for interpretation of items 15 and 16.
Item 14 - amendment of section 19AB
This item provides for the application of the amendments made by this Bill.
This item provides that the amendments to section 19AB of the HIA will
apply in relation to professional services provided from 1 April 2010 or
Royal Assent, whichever is the later date.
Item 15 - exemption refusal decisions
This item provides that subsection 19AC(2A) (inserted by item 12) will
apply in relation to exemption refusal decisions (item 13 refers) made on
or after 1 April 2010 or Royal Assent, whichever is the later date.
In relation to exemption refusal decisions made prior to the date of
commencement, the applicant will have 90 days from the date of commencement
to apply for a review. This means, for example, if a person was given an
exemption refusal decision on 1 July 2009 (to which there was previously no
time limitation on submitting a review application) that person will have
90 days from the commencement of these amendments to submit a review
application.
Item 16 - exemption condition decisions
This item provides that subsection 19AC(3A) (inserted by item 12) will
apply in relation to exemption condition decisions (item 13 refers) made on
or after
1 April 2010 or Royal Assent, whichever is the later date.
In relation to exemption condition decisions made prior to the date of
commencement, the applicant will have 90 days from the date of commencement
to apply for a review. This means, for example, if a person was given an
exemption condition decision on 1 July 2009 (to which there was previously
no time limitation on submitting a review application) that person will
have 90 days from the commencement of these amendments to submit a review
application.