EXPLANATORY STATEMENT

 

Select Legislative Instrument 2009 No. 197

 

Issued by the authority of the Minister for Human Services

 

Medicare Australia Act 1973

 

Medicare Australia Amendment Regulations 2009 (No. 1)

 

Authority

 

1.      Section 4 of the Medicare Australia Act 1973 (the Act) establishes Medicare Australia. Section 8AG of the Medicare Australia Act provides for the appointment of a Chief Executive Officer (CEO) of Medicare Australia (Medicare). The CEO is, under the Minister for Human Services and through the Secretary to the Department of Human Services, responsible for managing Medicare.

 

2.      Section 5 of the Act confers functions on the CEO. Relevantly, paragraph 5(1) (e) of the Act provides that the CEO has any functions that are prescribed by the regulations.

 

3.      Under subsection 7 (2) of the Act, Medicare’s CEO is authorised to enter into ‘service arrangements’ with the ‘principal officers’ of ‘Commonwealth authorities’. These terms are defined in the Act.

 

4.      Under the Act, the ‘principal officer’ of a Commonwealth authority which is a Department is the Secretary of the Department. The principal officer of a Commonwealth authority that is not a Department is the person identified as the principal officer of the authority by regulations made under section 44 of the Act.

 

5.      Paragraph (b) of the definition of ‘principal officer’ in the Act provides that the regulations may identify the person who is the principal officer of a Commonwealth authority.

 

Background

 

6.      Accordingly, the Amendment Regulations amend the Medicare Australia Regulations 1975 (the Principal Regulations) by identifying the principal officers of some Commonwealth authorities which are not Departments. This amendment enables Medicare’s CEO to enter into ‘service arrangements for the provision of Commonwealth services’, under subsection 7 (2) of the Act, with the principal officers of some Commonwealth authorities that are not Departments of State.

 

7.      The Principal Regulations also prescribe certain aged care payments and related functions under the Aged Care Act as functions of the CEO. Since 20 October 2005, the CEO has performed certain functions under the Aged Care Act 1997 (the Aged Care Act) on behalf of the Secretary to the Department of Health and Ageing (the Health Secretary).

8.      The Amendment Regulations update cross references to the Aged Care Act as amended by Aged Care Amendment (Residential Care) Act 2007 (the Residential Care Act) and the Aged Care Amendment (2008 Measures No. 1) Act 2008 (2008 Measures No. 1 Act). These amendments relate to the renewal and change of classifications, and the reconsideration and review of decisions made under the Aged Care Act.

 

9.      Details of the Amendment Regulations are set out below.

 

10.  The Amendment Regulations commence on the day after they are registered.

 

11.  Medicare was consulted in relation to item of the Amendment Regulations that enables Medicare’s CEO to enter into service arrangements with other Commonwealth authorities that are not Departments.

 

12.  Consultation also occurred with the Department of Health and Ageing and the Department of Human Services regarding the amendments related to the Aged Care Act.

 

13.  Because the amendments are machinery in nature, do not substantially change the law and will not have any direct, or a substantial indirect, effect on business or on competition, there has not been any consultation regarding the Amendment Regulations outside of Government. Accordingly, consultation with the aged care sector and the wider community was considered unnecessary.

 

Details of the Medicare Australia Amendment Regulations 2009 (No. 1)

 

Regulation 1 — Name of Regulations

1.      This regulation provides that the Regulations are the Medicare Australia Amendment Regulations 2009 (No. 1).

 

Regulation 2 — Commencement

2.      This regulation provides that the Regulations commence on the day after they are registered.

 

Regulation 3 — Amendment of the Medicare Australia Regulations 1975

3.      This regulation provides that Schedule 1 amends the Medicare Australia Regulations 1975.

 

Schedule 1 — Amendments

 

Item [1] — Regulation 3, definition of reappraisal period

4.      This item updates the reference to repealed section 28-3 of the Aged Care Act and defines reappraisal period by reference to section 27-2 of the Aged Care Act.

 

Item [2] — After regulation 3

5.      Item [2] inserts new regulation 3A which provides that a person is a principal officer for paragraph (b) of the definition of ‘principal officer’ in the Act if:

(a)    the person is the Chief Executive of a prescribed Agency that is a Commonwealth authority; or

(b)   the person performs the functions of a chief executive of a Commonwealth authority that is a Commonwealth authority (as defined in the Commonwealth Authorities and Companies Act 1997 (the CAC Act)).

6.      In relation to paragraph (a), the terms ‘Chief Executive’ and ‘prescribed Agency’ apply the meaning of those terms that is found in section 5 of the Financial Management and Accountability Act 1997 (the FMA Act).

7.      The FMA Act defines the term ‘prescribed Agency’ to mean, ‘a body, organisation or group of persons prescribed by the Regulations…’ The FMA Act also defines ‘Chief Executive’ for a ‘prescribed Agency’ as ‘the person identified by the regulations as the Chief Executive of the Agency’.

8.      Schedule 1 to the Financial Management and Accountability Regulations 1997 lists the Chief Executive positions of the prescribed Agencies that only handle public money.

9.      New paragraph 3A (b) enables the CEO to enter into service agreements with Commonwealth authorities that are governed by the CAC Act. To accommodate the fact that the heads of CAC Act agencies are known by a variety of titles, the reference to ‘chief executive’ applies the usual dictionary meaning of those words.

10.  In order to provide clarity and certainty in relation to the kinds of entities with whom the CEO may enter into service agreements, the term ‘Commonwealth authority’ is repeated twice in order to differentiate between the meaning of that term in Act and its meaning in the CAC Act.

Item [3] — After regulation 4

11.  This item inserts new regulation 4A into Part 2 of the Principal Regulations. New regulation 4A sets out the prescribed functions of the CEO for paragraph 5 (1) (e) of the Act.

 

Item [4] — Paragraph 6 (b)

12.  This item removes the reference in paragraph 6 (b) to receiving an appraisal ‘from a person applying for approval to become a recipient of one or more types of aged care’. In practice, an appraisal is likely to be received from the approved provider that is providing care to the care recipient, from a person acting on behalf of that approved provider or from a person authorised by the Health Secretary to make appraisals.

13.  Paragraph 6 (b) now provides that the CEO can, on behalf of the Health Secretary, receive an appraisal made under section 25-3 of the Aged Care Act, (for the purpose of sections 26-1 and 26-2 of the Aged Care Act) without having regard to whom the appraisal is from.

 

Item [5] — Regulation 7

14.  This item substitutes existing regulation 7 with a new regulation that refers to the amended provisions of the Aged Care Act. The CEO’s functions under new regulation 7 still relate to the renewal and change of classifications.

15.  New regulation 7 provides that it is a prescribed function of the CEO to carry out the following on behalf of the Health Secretary:

(a) receive a reappraisal of the level of care needed by a care recipient and to renew the classification of a care recipient for the purposes of section 27-6 of the Aged Care Act;

(b) make a decision about whether a reappraisal of the level of care needed by a care recipient was sent in time to be received within the reappraisal period under subsection 27-8 (2), having regard to relevant information under subsection 27-8 (3) of the Aged Care Act;

(c) notify an approved provider under subsection 27-8 (4) of the Aged Care Act if the CEO, acting on behalf of the Health Secretary, is not satisfied that a reappraisal received outside the reappraisal period was sent in sufficient time;

(d) change a classification of a care recipient in accordance with subsection 29‑1 (1) of the Aged Care Act;

(e) review a classification of a care recipient (in accordance with subsection 29‑ (3) of the Aged Care Act), before changing a classification under subsection 29-1 (1) of the Aged Care Act;

(f) give notice to an approved provider that is providing care to a care recipient that the classification of the care recipient has changed (in accordance with subsection 29-1 (4) of the Aged Care Act).

 

Item [6] — Regulation 11

16.  This item substitutes existing regulation 11 with a new regulation. New regulation 11 provides that it is a prescribed function of the CEO, on behalf of the Health Secretary, to exercise the powers and perform the functions of the Health Secretary under Part 6.1 of the Aged Care Act (Reconsideration and Review of Decisions), in relation to specified reviewable decisions, and to act in any legal proceedings (which would include proceedings before a tribunal) relating to the exercise of those powers or the performance of those functions.

17.  New regulation 11 continues to refer to items 28-31, 40, 41 and 44-47 of the table in section 85-1 of the Aged Care Act but adds items 39AA, 39AB, 49A and 49B. The new items relate to decisions under sections 43-4A (items 39AA and 39AB) and 47-4A (items 49A and 49B) which were introduced into the Aged Care Act by the 2008 Measures No. 1 Act. The CEO has functions in relation to sections 43‑4A and 47-4A of the Aged Care Act, which are found in Parts 3.1 and 3.2 of that Act, under regulation 9 of the Principal Regulations.