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Monday, 21 May 2012
Page: 4873


Mr DUTTON (Dickson) (11:00): I move:

That this bill be now read a second time.

The Medicare Chronic Disease Dental Scheme has been the most successful dental program in Australia's history. Over 17 million services have been provided to approximately one million patients since 2007. So one must ask the question: why would the government seek to discredit this scheme? The answer is simply that Tony Abbott, as health minster, introduced the scheme.

Nearly 12,000 dental practitioners have provided services under the scheme. Their patients have chronic health conditions and many have not seen a dentist in years. The dental problems, often complex, risk exacerbating an underlying chronic health condition. The services provided by these dentists have ensured timely access to treatment, which has greatly improved the health and quality of life of their patients.

Dentists treated patients after receiving a referral from a general practitioner and mostly did so at no cost to the patient. Whilst many dentists had never had any involvement with Medicare previously, they appreciated the enormous benefit of the scheme for their patients. Despite claims of expenditure blow-outs, the average claim per patient is $1,716, well below the allowable $4,250.

Unfortunately, the goodwill of dental practitioners and the success of the scheme for patients are being seriously undermined by the actions of the government. This bill will require the minister to remedy a serious situation facing dental practitioners who have participated in the Chronic Disease Dental Scheme. The practitioners concerned are being ordered to fully reimburse Medicare as a result of minor administrative oversights.

The government establishment an audit taskforce in June 2010 after its attempts to close the scheme were rejected by the Senate. There is no argument against a transparent and appropriate audit process to detect cases of fraud, misuse of taxpayers' funds or the provision of inappropriate services. However, the situation this bill seeks to redress is where dentists have been found to be non-compliant and action has been pursued against them for minor, technical mistakes with paperwork. In most cases, the dentists being caught by the audit process have provided appropriate services to patients in need but merely did not comply fully with a technical requirement to provide general practitioners with treatment plans, and to provide patients with treatment plans and quotations for services prior to commencing treatment. This is not fraud.

It is important to remember that this was the first interaction most dentists had with Medicare. In many cases, dentists attempted to rectify the situation as soon as they became aware of the requirement. Some dentists, once aware, immediately sent treatment plans to GPs before an audit had even commenced.

In recognition of this, investigating compliance officers have in some cases recommended that an 'educational letter' be sent to the dentist and no further action be required. That would seem to be the sensible course of action. Incredibly, even when that option has been recommended by the compliance officers, dentists still received letters of demand for repayment of Medicare benefits. Dentists have had their reputations ruined, some are facing bankruptcy, and professional trust in government funded dental schemes is being destroyed as a result of this process.

Last year Minister Plibersek, the then Minister for Human Services, was reported in the media as having told the Australian Dental Association that 'there is no scope for the Department of Human Services to not follow through on recovery action'. The argument being relied on by the government is that section 10, subsection 2, of the Health Insurance (Dental Services) Determination 2007 provides that the government has no choice but to pursue full recovery action in even the most minor, technical non-compliance cases. There are a number of problems with this argument.

In evidence to the Finance and Public Administration Legislation Committee inquiry earlier this month, an Assistant Secretary of the Department of Human Services said:

The minister has asked us to advise the committee that, notwithstanding the government's intention to close the scheme completely, he accepts that some but not all of the concerns that have been raised do require further consideration and that is a matter that is now underway within normal departmental processes …

While it is somewhat a relief that the government now at least acknowledges that there is problem, it is perplexing that the ministers responsible still refuse to do anything about it.

There have been 94 audits completed and 65 practitioners have been found to be non-compliant according to evidence provided by the Department of Human Services—that is, 70 per cent of dentists audited are in breach of the scheme. At additional estimates hearings in February, evidence was provided showing that of the dentists found to be non-compliant, over 80 per cent had provided all the services that were claimed. So on the government's own figures, the vast majority—over 80 per cent—of dentists found to be non-compliant, and potentially labelled as rorters, have provided the services claimed. That 80 per cent of dentists are being pursued, some to the point of bankruptcy and professional ruin, because forms were not sent on the correct date.

Despite the government claiming that there is no room for discretion in applying the law, there have been a limited number of instances where there has been education action and no recovery has occurred. However, this has not been consistently applied. Submissions to the inquiry and also to my office provide many examples where this should have occurred but has not. Nevertheless, it does indicate that there is capacity to apply sensible discretion, which, for whatever reason, has not been pursued.

Minister Plibersek even advised the ADA on 29 July 2011 that: 'Where the dental practitioner is found to be generally compliant with the requirements of the CDDS, this will generally be the end of the audit.' Unfortunately, the government does not appear to have applied this advice with any degree of consistency or predictability.

Even if the minister was correct originally, and there is no discretion in applying the relevant sections of the determination in these instances, the most obvious solution is for the minister to amend the determination. It is not unusual for any government to make technical amendments to legislation or regulations occasionally to address an unusual policy outcome. The government has no excuse in this situation. There is a very serious problem with how this audit program is being administered—and the Department of Human Services and the minister have even belatedly acknowledged those concerns. More sensible discretion needs to be applied to distinguish the very few practitioners who have committed fraud from those who have made minor and relatively inconsequential administrative errors. If the government believes it cannot, for whatever reason, ensure sensible discretion is applied, then appropriate changes should be made to the determination to at least provide a sensible outcome.

Another argument put by the government is that practitioners should have been aware of every detail in the legislation and regulations of the scheme. Indeed, Minister Plibersek said on 12 October 2011: 'We have written to every dentist in Australia telling them about the scheme and the requirements of the scheme.' However, the Department of Health and Ageing has stated that registration databases were not used to communicate with dentists but, rather, the databases of the Australian Dental Association, the Australian Dental Prosthetics Association and Medicare Australia were used. Therefore, by their own admission, not all practitioners received the information, let alone been made aware of the technical paperwork requirements. The ADA has advised that there would have been 13,000 registered practitioners at the time, but only 10,000 booklets were sent out. Further, the ADA advised that a survey of practitioners found that over 30 per cent had never received any information on the scheme and, even as late as 2010, 80 per cent were unaware of the administrative compliance requirements and penalties.

It is estimated that a dentist keeps only about 30 per cent of the Medicare benefit for providing a service. The remainder of the revenue pays for treatment and practice expenses. The demand for 100 per cent reimbursement of Medicare benefits for failure to send a form on time means that dentists have to repay money for treatment that has been provided and for which expenses have been incurred. The financial consequences of this action for those concerned are dire.

In the interests of commonsense and fairness, a solution needs to be found for the 80 per cent of practitioners audited who have acted in good faith but been found non-compliant. This bill provides a reasonable and measured response. It requires the minister to take action to redress the inequity that has arisen, and which could arise, from the operation of section 10, subsection 2 of the determination. The minister must take action within 30 days of the commencement of the act.

The inequity defined in the bill is the requirement for the practitioner to repay Medicare benefits because they did not, before providing the services, give patients, in writing, plans of courses of treatment; give patients quotations for dental services; and give copies or written summaries of the plans to the general practitioners who referred the patients.

The bill requires the minister to take one or more of the following actions: amend the determination; provide for the Commonwealth to waive its right to payments of debts arising under section 129AC of the Health Insurance Act 1973 in relation to dental services; provide for act-of-grace payments to be made in relation to the dental services; provide for the inequity to be redressed through the income tax system; and take such other action as is necessary to redress the inequity.

Schedule 1 of the bill provides for amendments to the determination as an option for the minister to provide redress. Specifically, the proposed amendment states that subsection 2 does not apply in relation to a dental service if, at the time the service was provided, the practitioner did not know about that subsection, or did not fully understand or appreciate the effect of that subsection or was under a reasonable misapprehension about the need to comply with that subsection. The amendment is to apply to a dental services provided before the commencement of the schedule and for which a Medicare benefit was not payable because of the operation of section 10.

The bill also requires the minister to prepare a report of the action that has been taken to redress the inequity that has arisen, and which could arise, from the operation of section 10 and cause a copy of the report to be tabled in each house of the parliament.

Labor ministers have long made clear their intention to close the Medicare scheme. The policy justifications have been flimsy at best. No attempt has been made to refine the scheme and address issues as a government funded initiative would normally require. Government rhetoric has been instead focused on sabotaging and undermining a successful program that was initiated by Tony Abbott as health minister. The government is more concerned about the politics of dental care than good policy.

The government has even dumped its own planned replacement for the scheme. In 2008, Labor proposed the Commonwealth Dental Health Program. The program promised one million services by providing funding to the states and territories. The Commonwealth did not assess the capacity of the public dental workforce to provide the services. In reality, the number of services provided would have been significantly less than that promised. Irrespective, it would not have come close to matching the 12 million services that have been provided under the Medicare scheme.

Labor never delivered its much promised Commonwealth Dental Health Program and it was finally scrapped in this year's budget. Despite the government's rhetoric about dental health, there was only about $60 million in net new funding out of the $500 million announced in this budget—it was simply made up of a re-announcement of existing measures. More promises have again been made but it remains to be seen whether anything will be delivered.

Any government funded dental scheme is going to require the participation and cooperation of the dental professions. The government is in the process of destroying the trust of those professionals. Dr Johnson, a particularly brave doctor from Tasmania who has to pay back $24,000, which is three times more than she received as an employee in a dental practice, spoke for many in the profession when she said, 'There is now no chance of getting a public dental scheme off the ground because dentists as a whole will no longer trust the government.'

This bill should not be required. No government and no minister should have let good intentioned health professionals be treated in this way. The bill requires the minister to redress this intolerable situation and provides a range of sensible options for doing so. Any member of parliament who genuinely supports fairness and common sense in administrative processes, who wants to ensure patients continue to have access to timely dental health care and who recognises the importance of the dental health professions in meeting this growing area of health need, must support this bill.

In closing I want to appeal in particular to the Independents. I think they are people of good intent, particularly those who have had a great injustice delivered upon them by this government. The Independents have dentists in their regions, and dentists across regional Australia have been affected, in particular, by the measures contained in the government's rather draconian approach to this problem.

As I have outlined today, for the majority of dentists the work has been completed to a high standard and to the patients' satisfaction. The issue for dentists in electorates right around the country, including those held by Independent members in this parliament, needs to be addressed and it is able to be addressed by this bill. This bill does not go over the top. It provides, as I say, a measured and reasonable approach. It provides a solution for the dentists to continue to practise, particularly in regional, rural and outer metropolitan areas. That is why I think the Independents should support the bill that has been proposed today.