Save Search

Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Health Legislation Amendment (Podiatric Surgery and Other Matters) Bill 2004

Bill home page  


Download WordDownload Word


Download PDFDownload PDF

 

 

2002-2003-2004

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

HEALTH LEGISLATION AMENDMENT (PODIATRIC SURGERY AND OTHER MATTERS) BILL 2004

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Minister for Health and Ageing,

the Hon Tony Abbott MP)



HEALTH LEGISLATION AMENDMENT (PODIATRIC SURGERY AND OTHER MATTERS) BILL 2004

 

OUTLINE

 

The Health Legislation Amendment (Podiatric Surgery and Other Matters) Bill 2004 proposes a number of amendments to legislation within the Health and Ageing portfolio.

 

Part 1 - Amendments relating to payment of benefits for hospital treatment associated with podiatric surgery

This Part provides for amendments to the Health Insurance Act 1973 to enable private health insurance funds to provide benefits, under an applicable benefits arrangement (hospital cover policy), for the hospital treatment costs (the accommodation and nursing care costs) associated with foot surgery performed on admitted patients by accredited podiatrists. The amendments do not permit private health insurance funds to provide benefits under an applicable benefits arrangement for the fees charged by accredited podiatrists for their services. The intention is to ensure that an admitted private patient being treated by an accredited podiatrist is able to access benefits, under an applicable benefits arrangement, for the hospital treatment costs as they would if a medical practitioner provided a professional service.

 

Part 2 - Provision of Hospital Casemix Protocol Data

This Part provides for amendments relating to the provision by hospitals of Hospital Casemix Protocol data to the Department of Health and Ageing (the Department). Under the Health Insurance Act 1973 , private hospitals are required to supply patient de-identified data to a data bureau. An independent data bureau operated until 2002. However, due to inefficiencies in its operation, the independent data bureau, with industry agreement, was disbanded in 2002. From this time the data bureau has been administered from within the Department. The proposed amendments reflect this change in arrangements.

 

While private hospitals have been required to provide Hospital Casemix Protocol data to the Department (and also to private health insurance funds), an equivalent obligation has never been imposed on day hospital facilities. This creates a gap in the range of data that is supplied to both health funds and the Department.  This Bill will correct this anomaly.

 

Part 3 - Amendments relating to Pharmaceutical Benefits Scheme

This Part provides for amendments relating to the Pharmaceutical Benefits Scheme (PBS).  The amendments provide for the continuing supply of pharmaceutical benefits in the event of the death of a pharmacist who was approved to supply pharmaceutical benefits at or from particular premises (an approved pharmacist ).

 

Currently under the National Health Act 1953 , pharmaceutical benefits can only be supplied by an approved pharmacist. The approved pharmacist is entitled, to be paid, by the Commonwealth, for the supply of pharmaceutical benefits.

 

All States and Territories make legislative provision for the legal personal representative of the estate of a deceased pharmacist to carry on the deceased pharmacist’s business, provided that the practice of pharmacy in the business is conducted by a registered pharmacist.

 

Section 90 of the National Health Act 1953 provides for legal personal representatives of deceased approved pharmacists to apply for approval to supply pharmaceutical benefits.  However, this provision has been found to be deficient in a number of respects.  In some cases, the time period involved in obtaining an approval under section 90 is lengthy.  This is particularly so if it is only viable for a legal personal representative to apply for approval after probate or letters of administration are granted.

 

In some instances, the legal personal representative requests an Act of Grace payment be made to the estate of the deceased approved pharmacist in relation to pharmaceutical benefits supplied during the period following the death of the approved pharmacist and before the granting of a section 90 approval.  In some cases the amount claimed is large, and the ongoing viability of a pharmacy has been jeopardised by having to carry this financial burden. 

 

The amendments enable a person who is, or is likely to become, an executor or administrator of the estate of a deceased approved pharmacist, to apply for permission to supply pharmaceutical benefits at or from the particular premises in respect of which the deceased pharmacist was approved.  The amendments thereby enable the executor or administrator of the estate to receive payment for pharmaceutical benefits supplied.

 

The amendments also clarify that in circumstances where a beneficiary of a deceased approved pharmacist is not a pharmacist himself or herself, the beneficiary may only apply under section 90 for approval to supply pharmaceutical benefits in circumstances where he or she has acquired the deceased approved pharmacist’s interest in the pharmacy.

 

Part 4 - Miscellaneous amendments of other health legislation

This Part corrects minor errors in the Health and Other Services (Compensation) Act 1995 and the Health Insurance Amendment (Diagnostic Imaging, Radiation Oncology and Other Measures) Act 2003 to correct drafting errors. 

 

FINANCIAL IMPACT STATEMENT

There is negligible financial impact from the Bill.

 



REGULATION IMPACT STATEMENT

HEALTH LEGISLATION AMENDMENT (PODIATRIC SURGERY AND OTHER MATTERS) BILL 2004



PODIATRIC SURGERY REGULATORY IMPACT STATEMENT

 

Background

 

At present there are approximately 25 registered podiatric surgeons in Australia who, combined, perform approximately 1,500 surgical operations per year in podiatrists’ rooms.  Fewer than ten out of approximately 540 private hospitals and private day hospital facilities have granted these podiatric surgeons admitting rights.  The number of podiatric surgeons and the number of hospitals and day hospitals in which they are permitted to perform surgical operations are not expected to increase significantly in the foreseeable future.

 

The Australasian College of Podiatric Surgeons, established in 1976, is the national organisation that trains podiatric surgeons.  It develops, implements and monitors guidelines for the practice of podiatric surgery and provides national standards and clinical practice protocols.  The College is affiliated with the Australasian Podiatry Council, the national organisation and umbrella group of Australian Podiatry Associations in each State.  The Australasian Podiatry Council prepares national policies and clinical practice guidelines for podiatrists.  Podiatric surgeons have been allowed to perform foot surgery since the 1970s under current State and Territory jurisdictions (except the Northern Territory, which currently does not have legislation permitting podiatric surgeons to perform surgery).

 

Problems

 

Currently, under the Health Insurance Act 1973 , private health insurance funds cannot pay benefits from their hospital tables for foot surgery performed by podiatric surgeons as benefits can only be paid to medical practitioners.  It is considered that this may be contrary to the Competition Principles Agreement (CPA), subsection 5(1) and was identified by the National Competition Council as a reform issue in its 2002 assessment (Chapter 6, pg.88 http://www.ncc.gov.au/publication.asp?publicationID=164&activityID=30 ).  This is because podiatric surgeons are not included as providers of professional attention under the Health Insurance Act 1973 subsection 3(1).  The definition of professional attention in the Health Insurance Act 1973 currently includes registered medical practitioners, nurses with obstetric qualifications and dental practitioners.  If the patient has ancillary health insurance cover, some funds may provide limited benefits from their ancillary tables towards the cost of podiatric surgery.  However, the patient usually has to pay the full cost of hospital accommodation and nursing care.

 

The Department of Health and Ageing’s consideration of the proposal to change the definition of professional attention has always been on the understanding that adding new items to the Medicare Benefits Schedule would not be considered and the Australasian Podiatry Council has acknowledged this.  Extending Medicare benefits coverage to a wider range of allied health care providers (which includes podiatrists) has been considered on other occasions and each time it has been decided that it is not possible to extend these arrangements given the economic climate.  This is still the case.

 

During early consultations about the proposal to amend the legislation, concerns about safety, quality and training regarding podiatric surgeons were raised with the Department for the first time by certain medical groups.  These groups were encouraged to raise their concerns with the relevant authorities in the various States and Territories.  While the comments are noted, the proposed amendment is solely to allow funds to pay benefits for accommodation from their hospital tables and does not change current foot surgery practices.

 

Objective

 

The objective is to ensure greater competition amongst providers of foot surgery by allowing for greater recompense for consumers of private health insurance.

 

The pre-existing policy authority is the Health Insurance Act 1973.

 

Options

 

Option 1: Make a legislative change to enable privately insured admitted patients in hospitals and day hospital facilities to receive benefits from a fund’s hospital tables for accommodation and nursing care when surgery is performed by accredited podiatrists.

 

A legislative amendment to the Health Insurance Act 1973 would be necessary to enable private health insurance funds to pay benefits from hospital tables for surgery performed by podiatric surgeons.

 

Option 2: No change to the existing legislation

 

The second option would be to continue the present arrangement and not change the existing legislation.

 

Impact Analysis

 

Given the purpose of the Bill, the impact on the following interest groups is not considered to be significant:

·          the Australian Government;

·          privately insured patients of podiatric surgeons;

·          health funds;

·          hospitals and day hospital facilities;

·          orthopaedic surgeons and medical practitioners in general; and

·          podiatric surgeons.

 

This issue relates to privately insured patients and has no impact on public (Medicare) patients in public hospitals.

 

The aggregated data available to the Department of Health and Ageing does not specify the number and types of surgery performed by podiatric surgeons in hospitals or rooms.

 

Option 1: Make a legislative change to enable private patients in hospitals and day hospital facilities to receive benefits for surgery performed by podiatric surgeons.

 

Impact of the option on the Australian Government:

·          the impact of Option 1 on the Australian Government is expected to be minimal as amending the definition of professional attention to include podiatric surgeons would not extend the payment of health fund benefits from hospital tables to podiatric surgeons’ or anaesthetists’ fees as there will continue to be no Medicare Benefits Schedule item.  Given the number of podiatric surgeons in Australia it is considered that any increased cost to the 30% rebate scheme would be negligible; and

·          the Australian Government would be ensuring it complied with the Competition Principles Agreement (CPA).

Impact of the option on privately insured patients of podiatric surgeons:

·          would decrease out of pocket costs for those undergoing podiatric surgery as an admitted patient.  Actual out of pocket costs depend on the level of each patient’s cover so cannot be quantified;

·          would enhance choice for the consumer; and

·          including accredited podiatrists under the definition of professional attention would not have a significant impact on the cost of private health insurance to consumers.  Of the 1,573,000 podiatric services performed in 2002-2003 only around 1,500 were surgical procedures and of those, only procedures performed on admitted patients would be eligible for payment from hospital tables under the proposed amendment.  The proposed amendment would therefore have a relatively limited impact given that it would only enable the payment of private health insurance hospital benefits for a small number of services that are already being provided.

Impact on health funds:

·          amending the current definition of professional attention under subsection 3(1) of the Health Insurance Act 1973 would allow accredited podiatrists to come within the definition of hospital treatment also under subsection 3(1) of the Health Insurance Act 1973 .  This would enable health funds to pay benefits from their hospital tables for accommodation and nursing care costs associated with podiatric surgery performed on admitted patients.  It would not permit health funds to pay benefits towards the cost of the accredited podiatrist’s or associated anaesthetists’ fees as there would continue to be no Medicare Benefits Schedule items available.  If a patient has ancillary cover they may be able to claim some professional fees according to the rules of his/her health fund;

·          enabling funds to pay benefits from their hospital tables, consumers would be provided with more choice;

·          would increase the attractiveness of the private health insurance product by allowing funds to offer cover for accommodation and nursing costs associated with procedures performed on admitted patients by podiatric surgeons;

·          reduces the burden of payments to the elderly and chronically ill by providing access to reinsurance. Under reinsurance, health fund benefit costs for the elderly and chronically ill are pooled and shared among all health funds.  In this way regardless of their membership composition, funds can charge competitive contribution rates for similar cover.  Foot surgery is mostly required by the aged and chronically ill and due to the ageing of the population, demand for services may increase over time;

·          would increase marginally the amount of benefits paid out, but given the number of podiatric surgeons in Australia it is considered that any cost involved would be negligible; and most likely offset by increased fund income as insurance becomes more attractive; and

·          health funds expressed concerns that other allied health professionals would also seek inclusion as one who provides professional attention.  Should this occur the Government would consider each case on its merit.

Impact on hospitals and day hospital facilities:

·          nil impact

Impact on surgeons and medical practitioners in general:

·          does not alter current arrangements.

Impact on podiatric surgeons:

·          minimal impact.  Podiatric surgeons would still have to negotiate with health funds for a fee for their services; and

·          would be able to offer a more attractive service as their privately insured patients may be eligible for rebates for hospital accommodation and nursing care.

 

Option 2: No change to the existing legislation

 

Impact of the option on the Australian Government:

·          the Australian Government may not be in compliance with the Competition Principles Agreement (CPA) and the National Competition Council will continue to raise concerns over this issue.  Restricting competition can impose costs through higher prices, reduced choice and impeding innovation and efficiency.

Impact of the option on privately insured patients of podiatric surgeons:

·          continues to financially disadvantage privately insured admitted patients who choose to have foot surgery performed by a podiatric surgeon.  However cost depends on level of cover held by the patient and therefore cannot be quantified.

Impact on health funds:

·          would not increase the attractiveness of their products to consumers.

Impact on hospitals and day hospital facilities:

·          nil.

Impact on surgeons and medical practitioners in general:

·          no impact as the change does not alter current arrangements.

Impact on podiatric surgeons:

·          minimal impact.  Podiatric surgeons would still have to negotiate with health funds for a fee for their services.

 

Consultation

 

In July 1998 stakeholders and other industry groups were consulted as to whether podiatric surgeons should be recognised as providers of professional attention .  State and Territory Governments were consulted on the same issue in 1999 and the views expressed over the years have essentially remained the same for all parties.

 

The Department has undertaken consultations with the following organisations:

·          Australian and New Zealand College of Anaesthetists

·          Australasian Day Surgery Association

·          Australian Health Insurance Association Ltd

·          Australian Health Service Alliance

·          Australian Medical Association Ltd

·          Australian Orthopaedic Association

·          Australian Private Hospitals Association Ltd

·          Australian Regional Health Group Ltd

·          Australian Society of Anaesthetists

·          Consumer’s Health Forum of Australia

·          Health Insurance Restricted Membership Association of Australia

·          Medibank Private

·          Medical Benefits Fund of Australia Ltd

·          Royal Australasian College of Surgeons

·          Royal Australian College of General Practitioners.

·          Australian Capital Territory Department of Health and Community Care

·          New South Wales Health Department

·          Territory Health Services (Northern Territory)

·          Queensland Health

·          Department of Human Services (South Australia)

·          Department of Health and Human Services (Tasmania)

·          Department of Human Services (Victoria)

·          Health Department of Western Australia

·          Australasian Podiatry Council

·          Australasian College of Podiatric Surgeons

 

In summary

·          Comments received from some medical groups suggested that podiatric surgeons have a role in the treatment of patients but that a medical practitioner should be responsible for pre-operative diagnosis, operation, and post-operative management.  During consultations they expressed concerns that levels of training are not sufficient to perform non-superficial procedures and that patients would be at risk.

·          Health funds are concerned that the amendment may set a precedent for allied health services, which may lead to more expenditure.

·          State and Territory health authorities are generally supportive of the amendment believing there would be little impact on current arrangements as there are few podiatric surgeons.

·          The Podiatric Council and Australasian College of Podiatric Surgeons fully support the amendment.

 

Recommended Option

 

Option 1 is the preferred option, as it will ensure competition among providers of foot surgery by allowing for greater recompense for consumers of private health insurance.

 

Implementation and Review

 

The preferred option will be implemented through amendments to the Health Insurance Act 1973 .  Amendments will be implemented by existing Departmental staff and will require no additional resources.

 

Provisions under legislation will be considered as part of the normal evaluation from time to time of private health insurance arrangements.

 



 

HEALTH LEGISLATION AMENDMENT (PODIATRIC SURGERY AND OTHER MATTERS) BILL 2004



Notes on Clauses

 

Clause 1 - Short title

 

This clause specifies the short title of the Bill as the Health Legislation Amendment (Podiatric Surgery and Other Matters) Act 2004 .

 

Clause 2 - Commencement

This clause sets out the commencement arrangements for provisions of this Act.  Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table.  Any other statement in column 2 has effect according to its terms.

 

Clause 3 - Schedule(s)

 

This clause provides that each Act that is specified in the Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule.

 

SCHEDULE 1 - AMENDMENT OF LEGISLATION RELATING TO HEALTH
 

Part 1 - Amendments relating to payment of benefits for hospital treatment associated with podiatric surgery

 

Item 1 inserts a definition of accredited podiatrist into subsection 3(1) of the Health Insurance Act 1973 . It provides that an accredited podiatrist is a podiatrist accredited by the Minister in writing under section 3AAA for the purposes of this definition.

 

The term podiatrist used in this definition is currently defined in subsection 3(1) of the Health Insurance Act 1973 as meaning “a person registered or licensed to practise podiatry under a law of a State or Territory that provides for the registration or licensing of podiatrists”. A distinction is drawn between podiatrists and accredited podiatrists to reflect the fact that not all podiatrists have surgical qualifications. The Minister will only accredit those podiatrists who have appropriate surgical qualifications.

 

Item 2 corrects a minor technical error.

 

Item 3 inserts a new paragraph into the definition of professional attention in subsection 3(1) of the Health Insurance Act 1973 to specify that podiatric treatment provided by an accredited podiatrist is a form of professional attention.

 

The effect of this amendment is to allow private health insurance funds to offer benefits, under an applicable benefits arrangement, for the hospital treatment costs associated with foot surgery provided by accredited podiatrists. Under section 5A of the National Health Act 1953 health funds can provide benefits under an applicable benefits arrangement for hospital treatment and any professional services rendered to a patient by a medical practitioner while the hospital treatment is being provided.

 

The term hospital treatment is defined in subsection 3(1) of the Health Insurance Act 1973, in part, as meaning “accommodation and nursing care ... provided for  the purpose of permitting the provision of professional attention”. The amendment to the definition of professional attention has the effect of expanding the definition of hospital treatment to include accommodation and nursing care provided for the purpose of permitting podiatric treatment by an accredited podiatrist.

 

This amendment does not have the effect of permitting health funds to provide benefits, under an applicable benefits arrangement, for the fees charged by a podiatrist for his/her services under an applicable benefits arrangement because such services are not “professional services rendered by a medical practitioner” for the purpose of section 5A of the National Health Act 1953.  



Item 4 inserts new sections 3AAA and 3AAB into the Health Insurance Act 1973

 

Section 3AAA permits the Minister to accredit podiatrists and make guidelines for making accreditation decisions.

 

Subsection 3AAA(1) authorises the Minister to determine guidelines for making a decision as to whether a podiatrist is to be accredited.

 

Subsection 3AAA(2) provides that the Minister must make any decision as to whether a podiatrist should be accredited in accordance with the guidelines.

 

Subsection 3AAA(3) provides that the guidelines are disallowable instruments for the purposes of s 46A of the Acts Interpretation Act 1901.

 

Section 3AAB allows for review by the Administrative Appeals Tribunal of a decision by the Minister to refuse to accredit a podiatrist.

 

Part 2 - Provision of Hospital Casemix Protocol Data

 

Item 5 repeals paragraphs 23EA(3A)(b) and (c) of the Health Insurance Act 1973 and substitutes a new paragraph 23EA(3A)(b), which requires private hospitals to provide the Department, instead of the now defunct independent data bureau, with Hospital Casemix Protocol data in a de-identified patient state. The Department will be required to observe the Privacy Act 1988 and the secrecy provisions in section 130 of the Health Insurance Act 1973 and section 135A of the National Health Act 1953 in using this data.

 

Item 6 inserts a new subsection 5B(3A) in the National Health Act 1953 , which requires declared day hospital facilities to provide both private health insurance funds and the Department with the same Hospital Casemix Protocol data that private hospitals are already obliged to provide under subsection 23EA(3A) of the Health Insurance Act 1973 . The Department will be required to observe the Privacy Act 1988 and the secrecy provisions in section 135A of the National Health Act 1953 and section 130 of the Health Insurance Act 1973 in using this data. 

 

Part 3 - Amendments relating to Pharmaceutical Benefits Scheme

 

Item 7 repeals the existing definition of pharmacist in subsection 4(1) of the National Health Act 1953 and substitutes a new definition.  Under section 91 (see item 13 below), a person who is, or is likely to become, the executor or administrator of the estate of a deceased approved pharmacist, may apply for permission to supply pharmaceutical benefits.  Prior to this amendment, paragraph (b) of the definition of pharmacist enabled a legal personal representative of a deceased approved pharmacist to apply for approval to supply pharmaceutical benefits under section 90.  As a result of section 91, paragraph (b) of the definition of pharmacist is no longer required.

 

Item 8 repeals the existing definition of approved pharmacist in subsection 84(1) of the National Health Act 1953 and substitutes a new definition.  The amendment to paragraph 84(1)(a) provides that the definition of an approved pharmacist extends to persons treated as having that status by virtue of any law of the Commonwealth other than section 91 (see item 13 below) of the Act.  For example, see paragraph 83(3)(a) of the National Health Act 1953 .

 

Paragraph 84(1)(b) provides that the definition of approved pharmacist extends to persons treated as having that status by virtue of section 91 (see item 13 below), but ensures that such persons do not obtain the right to apply for approvals (under section 90) in respect of more than one pharmacy by virtue of subsection 90(3).  This would not prevent an entirely separate application being made under section 91 (see item 13 below) in respect of a second pharmacy.

 

Item 9 repeals paragraph 90(3AA)(b) of the National Health Act 1953 and substitutes a new paragraph 90(3AA)(b) which clarifies the drafting of paragraph 90(3AA)(b) to reflect the legal position that a change in the ownership of a pharmacy does not result from the death of the owner or one of the owners.  Rather, a change in the ownership of a pharmacy results from the acquisition, following the death of a person who was the owner or one of the owners of a pharmacy, of that person’s interest in the business of the pharmacy.

 

Item 10 inserts new subsections 90(3AC) and 90(3AD).  Subsection 90(3AC) defines when an acquisition of an interest in the business of a pharmacy occurs for the purposes of paragraph 90(3AA)(b).  Subsection 90(3AC) provides that a person will only be taken to have acquired a deceased person’s interest in the business of a pharmacy once probate of the deceased person’s will, or letters of administration of the deceased person’s estate, have been granted by the relevant jurisdictional court, and the deceased person’s interest in the business of the pharmacy has been transferred to that person. 

 

In some jurisdictions, upon the grant of probate or administration, ownership in assets covered by that grant is treated as having vested in the executor or administrator with effect from the date of death, in order to avoid a gap in legal title (for explanatory purposes, here referred to as the “doctrine of relation back”).  Subsection 90(3AD) is related to subsection 90(3AC).  It is included to prevent the person to whom the interest in the pharmacy is transferred following a grant or probate or administration, from contending that a permission subsisting under section 91 (see item 13 below) at any time between the date of death of the pharmacist concerned and the date of that transfer, is affected by the doctrine of relation back.

 

Item 11 inserts references to subsections 90(3AC) and 90(3AD) in subsection 90(3C).

 

Division 4B establishes (see section 99J) the Australian Community Pharmacy Authority (‘the Authority’).  Section 99Y provides that unless sooner repealed, Division 4B ceases to have effect at the end of 30 June 2005.  This means that the Authority ceases to have effect at the end of 30 June 2005, unless Division 4B is sooner repealed.

 

Subsection 90(3A) provides that, subject to subsection 90(3AA), an application under section 90 must be referred to the Authority.  Subsection 90(3C) sets out the provisions (subsections (3A), (3AA), (3AB) and (3B)) that will cease to have effect at the end of 30 June 2005. Because new subsections 90(3AC) and 90(3AD) are collectively relevant to the operation of 90(3AA), it is intended that they will cease at the end of 30 June 2005, if subsection 90(3AA) is to cease.

 

Item 12 inserts a new subsection 90(7) to clarify the operation of subsection 90(6) in relation to a beneficiary of a deceased approved pharmacist.  The amendment provides that in circumstances where a beneficiary of a deceased approved pharmacist is not a pharmacist himself or herself, the beneficiary may only apply under section 90 (by virtue of subsection 90(6)) for approval to supply pharmaceutical benefits, in circumstances where he or she has acquired the deceased approved pharmacist’s interest in the pharmacy.

 

Item 13 inserts new section 91.  The purpose of section 91 is to enable a person who is, or who claims to be, the executor or administrator of the estate of a deceased approved pharmacist, to apply for permission to supply pharmaceutical benefits at or from premises in respect of which the deceased pharmacist had been approved.  This section applies to any situation where an approved pharmacist dies, whether the deceased was the sole approved pharmacist in respect of the premises or was one of a number of pharmacists approved in respect of the premises.

 

Subsection 91(1) sets out the circumstances in which a person may apply for permission to supply pharmaceutical benefits at or from the premises of a deceased approved pharmacist (that is, approved under section 90), and provides for the Secretary to grant such permission.

 

Paragraph 91(1)(a) sets out the first requirement of subsection 91(1), being that there is a person who is an approved pharmacist (that is, approved under section 90) in respect of a pharmacy at particular premises.

 

Paragraph 91(1)(b) sets out the second requirement of subsection 91(1), being that the approved pharmacist dies at any time on or after the commencement of section 91.  This new paragraph makes clear that new section 91 does not apply retrospectively.  That is, section 91 only applies to situations where an approved pharmacist dies at any time on or after the section commences. 

 

Paragraph 91(1)(c) sets out the third requirement of subsection 91(1), by specifying the following categories of persons who may apply for permission (see new paragraph 91(1)(d)) under section 91:

·          a person who, either following or prior to the grant of probate of the will of the deceased pharmacist, claims to be the executor or one of the executors of the will; or

·          a person who is the person, or one of the persons, to whom the administration of the estate of the deceased pharmacist has been granted; or

·          a person who is the person, or one of the persons, who intends to apply to for administration of the deceased pharmacist’s estate.

 

It should be noted that the Secretary’s power to grant a permission is discretionary.  Where an application is made to the Secretary for permission to supply pharmaceutical benefits at or from premises in respect of which a deceased pharmacist was approved, the Secretary may grant such a permission if he or she reasonably believes that the applicant is, or on the grant of probate or letters of administration of the estate is likely to be, such an executor or administrator.

 

Subsection 91(2) sets out the requirements for making an application under subsection 91(1).  The application must be:

·          made in a form approved by the Secretary; and

·          made as soon as reasonably practicable after the death of the approved pharmacist; and

·          accompanied by documentary evidence relating to the identity of the applicant and the nature of the applicant’s claim to be a person referred to in paragraph 91(1)(c).

 

The Secretary has the power to determine, in writing, the kind of documentary evidence that must be provided for the purposes of the application. 

 

Subsection 91(3) provides that such a determination is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901 .

 

Subsection 91(4) enables the Secretary, for the purpose of considering an application under section 91, to require the applicant to provide such further information or documents as the Secretary specifies.  The Secretary must give the applicant written notice setting out the additional information or documents that are required to be produced and specifying the period within which they must be produced.

 

In circumstances where the Secretary requires an applicant to provide further information or produce further documents within a specified period (see new subsection 91(4)), and the applicant does not provide the information or produce the documents within the specified period, subsection 91(5 ) provides that the Secretary may treat the application as having been withdrawn.  The purpose of this amendment is to protect the Secretary from having to make a decision to grant or refuse a permission in the circumstances set out in new subsection 91(5).   

 

Subsection 91(6) requires the Secretary to provide the applicant with written notice of his or her decision to grant or refuse permission.  Where the Secretary decides to refuse permission, the notice must include reasons for the refusal.

 

Where the Secretary grants an applicant permission to supply pharmaceutical benefits at or from premises in respect of which a deceased pharmacist was approved, subsection 91(7) sets out the effect of the grant of permission.

 

Paragraph 91(7)(a) provides that a person who is granted permission under subsection 91(1) is treated, for all purposes of the Act, as if that person is, and since the referral day in relation to the permission (see subsection 91(8) below), had been, approved under section 90 as an approved pharmacist.  The purpose of this provision is to make clear that the person who is granted permission under subsection 91(1) is to be treated, as a matter of law, as if he or she had been granted an approval under subsection 90(1).

 

Paragraph 91(7)(b) provides that where a person is granted permission under subsection 91(1), any pharmaceutical benefits that are supplied by a pharmacist, who is not an approved pharmacist, after the referral day in relation to the permission (see new subsection 91(8) below) and before the grant of that permission, are treated as if they were supplied by the person to whom that permission is granted.

 

For example, in circumstances where, during the period following the death of an approved pharmacist, and before a person is granted permission under subsection 91(1), a pharmacist who is not an approved pharmacist, supplies pharmaceutical benefits at or from premises in respect of which the deceased pharmacist was approved, the supply is treated as if it had been a supply of pharmaceutical benefits by the person to whom the permission is granted.

 

Similarly, in circumstances where a person has been granted permission under subsection 91(1) in respect of particular premises (for explanatory purposes here referred to as “the prior permission”) and that prior permission is revoked, and a subsequent permission is granted in respect of the same premises (for explanatory purposes here referred to as “the current permission”), if during the period following the revocation of the prior permission and before the granting of the current permission, a pharmacist, who is not an approved pharmacist, supplies pharmaceutical benefits at or from the premises, the supply is treated as if it had been a supply of pharmaceutical benefits by the person to whom the current permission is granted.

 

The purpose of paragraph 91(7)(b) is to ensure that payment may be made under section 99 of the Act for pharmaceutical benefits supplied, at or from premises in respect of which a deceased pharmacist had been approved, by a pharmacist who is not an approved pharmacist, during the period:

·          following the death of the approved pharmacist and prior to the grant of a permission under subsection 91(1); or

·          between the revocation of one permission and the granting of a subsequent permission in relation to those premises.

 

Paragraph 91(7)(c) is an interpretative provision.  Because a permission granted under section 91 is treated (by virtue of paragraph 91(7)(a)) as an approval under section 90, then a reference in the Act to “an approval granted under section 90” is to be interpreted as including a reference to an approval treated as having been granted under section 90.

 

Paragraph 91(7)(d) provides that if a permission is granted to a person under subsection 91(1), because that permission is treated as an approval under section 90 (by virtue of paragraph 91(7)(a)), the permission is subject to all conditions to which an approval granted under section 90 is subject.  The new paragraph makes clear that the conditions include any conditions imposed by means of a determination made under paragraph 92A(1)(f) of the Act.

 

Paragraph 91(7)(e) provides that if a permission is granted to a person under subsection 91(1), the rights and obligations of an approved pharmacist under the Act apply to that person.  As such, this person will be subject to the offence provisions that are applicable to approved pharmacists (for example, see section 103).

 

Subsection 91(8) is an interpretative provision.  It explains how the term referral day is to be interpreted for the purposes of subsection 91(7).  The referral day is the day on which a permission granted under subsection 91(1) commences.

 

Paragraph 91(8)(a) provides that unless paragraph (b) applies, the referral day is the day following the date of death of the deceased pharmacist to whom the application for permission related.  Paragraph 91(8)(b) provides that if there has been a prior permission granted under section 91 in relation to the premises to which the permission relates, the referral day is the day following the date that the prior permission was revoked.

 

The practical application of the term referral day is explained above in relation to paragraph 91(7)(b).

 

Subsection 91(9) provides that a permission granted to a person under subsection 91(1) in relation to the premises in respect of which a deceased pharmacist was approved under section 90, continues, unless it is sooner revoked (see new subsections 91(11) and 91(12) below), until that person or another person is approved under section 90 in respect of those premises.

 

Subsection 91(10) makes clear that the Secretary is not permitted to grant permission to a person, under subsection 91(1), to supply pharmaceutical benefits at or from premises in respect of which a deceased pharmacist had been approved under section 90, if that person is not permitted, under the law of the State or Territory in which the premises are situated, to carry on the deceased pharmacist’s business.  Subsection 91(10) mirrors the limit on the Secretary’s powers set out in subsection 90(4) in relation to the granting of approval under subsection 90(1).

 

Subsection 91(11) places an obligation on the person granted permission under subsection 91(1) to notify the Secretary in writing as soon as he or she becomes aware that:

·          probate of the will, or administration of the estate, of the deceased approved pharmacist has been granted; and

·          he or she is not, or is not included among persons who are, granted that probate or administration.

 

Subsection 91(12) provides that the Secretary must revoke a permission granted under subsection 91(1) if the Secretary becomes aware, as a result of being notified under subsection 91(11) or by other means, that:

·          probate of the will, or administration of the estate, of the deceased approved pharmacist has been granted; and

·          the person granted a permission under subsection 91(1) is not, or is not included among persons who are, granted that probate or administration.

 

The purpose of subsections 91(11) and 91(12) is to ensure that a permission granted under subsection 91(1) to supply pharmaceutical benefits at or from premises in respect of which a deceased pharmacist had been approved under section 90, is revoked when the Secretary becomes aware that the person who was granted that permission is not, or is not included among the persons who are, granted probate of the will or administration of the estate of the deceased pharmacist.

 

Subsection 91(13) clarifies that in circumstances where a partnership agreement provides for the disposal of the pharmacy business of a deceased approved pharmacist to any surviving partner or partners, section 91 is not to be interpreted as overriding the operation of the terms of that agreement.

 

Item 14 inserts a new subsection 105AB(7AA) which provides that the Secretary's decisions under section 91 to (a) grant or refuse an application, (b) treat an application as having been withdrawn or (c) revoke a permission are reviewable by the Administrative Appeals Tribunal.

 

Part 4 - Miscellaneous amendments of other health legislation

 

Items 15 and 16 amend minor typographical errors in paragraphs 21(6)(c) and 24(8)(c) of the Health and Other Services (Compensation) Act 1995

 

Item 17 corrects a misdescribed amendment in Item 8, Schedule 1 of the Health Insurance Amendment (Diagnostic Imaging, Radiation Oncology and Other Measures) Act 2003 .  The amendments previously made by Item 8 of Schedule 1 unsuccessfully attempted to extend the definition of proprietor in section 3(1) of the Health Insurance Act 1973 to specify the proprietor of a diagnostic imaging premises and radiation oncology premises.  The amendment was unsuccessful because there were two definitions of proprietor in the Health Insurance Act 1973, and the amendment did not clarify which definition was to be amended.

 

Item 18 repeals Item 5 of Schedule 2 of the Health Insurance Amendment (Diagnostic Imaging, Radiation Oncology and Other Measures) Act 2003 .  This is substituted by the Item 8 of Schedule 1 (as above).  The corrected Item 8 will replace the two existing definitions of proprietor in section 3(1) of the Health Insurance Act 1973 with a consolidated and expanded definition of proprietor .