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Health Insurance Amendment (Professional Services Review) Bill 1999

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1999

 

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

THE HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

HEALTH INSURANCE AMENDMENT (PROFESSIONAL SERVICES REVIEW)

BILL 1999

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Minister for Health and Aged Care

the Hon. Dr Michael Wooldridge, MP)

 



 

HEALTH INSURANCE AMENDMENT

(PROFESSIONAL SERVICES REVIEW) BILL 1999

 

Outline

 

This Bill makes amendments to the provisions for the Professional Services Review (PSR) Scheme in Parts VAA and VA of the Health Insurance Act 1973 (the Act) to facilitate the continuing effectiveness of the Scheme following a majority judgment by the Full Federal Court in Anthony Adams v Steven Yung

 

The PSR Scheme provides for a system of peer review to determine whether a practitioner has inappropriately rendered or initiated services which attract a Medicare benefit, or has inappropriately prescribed under the Pharmaceutical Benefits Scheme, and to apply sanctions to those who practise inappropriately.

 

The proposed amendments to the Act will enhance the administration of the Scheme to ensure that the process is legally effective.  The changes do not alter the purpose of the Scheme but improve the administration of the process, clarify the methods of investigating inappropriate practice, and address evidentiary difficulties.

 

The proposed amendments were recommended by a comprehensive review of the Scheme ( Report of the Review Committee of the Professional Services Review Scheme - March 1999) undertaken by a committee chaired by the Australian Medical Association (AMA) and comprising representatives of the Health Insurance Commission (HIC), the Director of Professional Services Review (Director) and the Department of Health and Aged Care.  The AMA Federal Council formally endorsed the amendments to the Scheme at their meeting on 11-12 March 1999.

 

The Bill provides for improvements to the administration of the Scheme including:

 

·                             increasing the investigation, case preparation and negotiation powers of the Director PSR (Recommendations 12 and 17-22 of the Report of the Review Committee);

 

·                             providing legal support to the peer review committees and introducing more comprehensive training and operating protocols (Recommendations 23 and 25-27 of the Report of the Review Committee);

 

·                             allowing greater legal support to the person under review (Recommendations 24, 28-31 and 37-38 of the Report of the Review Committee);

 

·                             replacing the Determining Officer (currently in the Department of Health and Aged Care) with a Determining Authority comprising  a permanent chair (medical practitioner), a permanent lay person and a third member who is a representative of the profession of the person under review (Recommendations 34-36 and 39 of the Report of the Review Committee); and

 

 

 

 

 

·                             removing the PSR Tribunals from the process whilst retaining the right of review on points of law. This recognises that review on the merits of the final determination is not appropriate in a Scheme in which the key judgment is a professional judgment by the practitioner's peers about the practitioner's conduct.  The person under review will of course have full rights to seek judicial review at any stage of the process. (Recommendations 1 and 41 of the Report of the Review Committee).

 

The Bill also provides for a range of different methods of investigating inappropriate practice. This includes the introduction of:

 

·                             deeming provisions in respect of high volume servicing per day.   Once a practitioner reaches or exceeds the specified volume of services (the level will be separately agreed with each specialty) he or she will be deemed to have been practising inappropriately unless exceptional circumstances can be demonstrated to the satisfaction of the committee of peers (Recommendations 3-7 of the Report of the Review Committee);

 

·                             sampling methodologies to be used by Committees to make findings in relation to the provision of particular identifiable services and to be able to extrapolate the results to a larger number of similar services within the referral period (Recommendation 2 of the Report of the Review Committee); and

 

·                             generic findings to allow Committees to make a finding of inappropriate practice where, on the evidence available, it is not possible to identify or quantify specific services. This would apply where there is an absence, deficiency or illegibility of clinical or practice records and a Committee cannot base its inquiry on the deeming provisions or sampling (Recommendation 8 of the Report of the Review Committee). 

 

Other related matters to be contained in the Bill include:

 

·                             provision to allow for the publication of details, including the name of the practitioner once a final determination of inappropriate practice is made (Recommendation 42 of the Report of the Review Committee); and

 

·                             the introduction from 1 November 1999 of a requirement that a Committee must, in determining whether a practitioner has engaged in inappropriate practice, have regard to whether or not the practitioner kept adequate and contemporaneous medical records (Recommendation 45 of the Report of the Review Committee).

 

In addition to the changes recommended in the Report of the Review Committee, the Bill makes a number of minor machinery and other administrative changes to the Scheme.  These are:

 

·                             the ability to continue a consideration of inappropriate practice where fraud is suspected and these concerns have been referred back to the HIC;

 

·                             the revised powers for Committees to require the production of documents and information to apply to referrals made prior to the commencement of this Bill;

·                             administrative penalties to apply for the person under review or other persons for failing to produce documents or information under sections 106ZPM and 106ZPN; and

 

·                             clarification of when the actual date on which a determination is implemented in section 106V of the Act.

 

FINANCIAL IMPACT STATEMENT

 

An additional $11.9 million over the next four years is being provided to improve the capacity of the Scheme to ensure that Medicare funds are not paid for inappropriate medical practice.  The Scheme also helps to ensure that the Medicare Benefits Scheme, which costs in the region of $6.9 billion a year, is protected against abuse and over servicing.



 

Notes on Clauses

 

Clause 1 - Short Title

 

Specifies the short title of the Act as the Health Insurance Amendment (Professional Services Review) Act 1999.

 

Clause 2 - Commencement

 

Subsection (1) provides for sections 1, 2 and 3 to commence on the day on which the Act receives the Royal Assent.

 

Subsection (2) provides for Items 8 and 27 of Schedule 1 to commence either on 1 November 1999 or the first day of the month immediately following the month in which the Act receives the Royal Assent.

 

Subsection (3) provides for the remaining items in Schedule 1 to commence on the first day of the month after the day on which the Act receives the Royal Assent.

 

Clause 3 - Schedule

 

Ensures that the amendments, repeals and items in the Schedule can take effect.

 

Schedule 1 - The Professional Services Review Scheme

 

The Bill comprises one schedule with 2 Parts.  Part 1 amends the Health Insurance Act 1973 .  Part 2 contains applications, savings and transitional provisions.

 

Part 1 - Amendments

 

Items 1-5

 

Amends section 19B to provide that a medicare benefit is not payable in respect of services rendered by a practitioner who has been disqualified (either partly or fully) under the terms of an agreement made between the Director and the person under review under section 92 (see Item 35).

 

Item 6

 

Substitutes the reference in subsection 80(5) to 'Determining Officer' with 'Determining Authority' as a consequence of the abolition of the Determining Officer and the introduction of the Determining Authority (see Items 46 and 47).

 

Item 7

 

Inserts a new section 80A to limit, if necessary, the operation of paragraphs 92(2)(b) and 106U(1)(ca) and (cb).  Those provisions deal with the repayment of medicare benefits pursuant to a written agreement between the Director and the person under review or a determination by the Determining Authority. 

 

In each case the requirement to repay medicare benefits applies irrespective of whether or not the benefit was paid to the person under review. 

 

New subsection 80A(1) confines those provisions to medicare benefit which has been assigned to the person under review, while new subsection 80A(2) confines those provisions to the circumstances where the person under review rendered a bill for the services for which the medicare benefit was paid.

 

Item 8

 

Inserts into section 81 a definition of adequate and contemporaneous medical records necessary for the purposes of subsection 82(3).  Medical records must meet the standards prescribed in specific regulations being developed by the Government in consultation with the AMA which will be available for implementation from 1 November 1999.  This gives effect to Recommendation 45 of the Report of the Review Committee.

 

Items 9-25

 

Inserts, amends or repeals and substitutes various definitions into section 81 to reflect the changed operation of the Scheme.

 

Item 26

 

Clarifies that the prescribing or dispensing of a pharmaceutical benefit is a rendered service.

 

Item 27

 

Inserts a new subsection 82(3) that requires a Committee to have regard to whether or not a practitioner kept adequate and contemporaneous medical records in determining whether the practitioner's conduct is inappropriate.  Standards for these records will be defined in regulations. This requirement will assist a Committee in identifying inappropriate practice as it will be able to find that what was not recorded was not performed, or at least that the records were inadequate.  The subsection takes effect either on 1 November 1999 or the first day of the month immediately following the month in which the Act receives the Royal Assent .

 

Item 28

 

Inserts a new subsection 83(3) to provide that the functions, duties and powers of the Director are those conferred by this Part of the Act or the regulations.  These have been considerably enhanced to improve the effectiveness of the Scheme (Recommendation 12 of the Report of the Review Committee).

 

Item 29

 

Repeals subsections 86(2) to (4) and substitutes new subsections 86(2), (3), (4), (4A) and (4B) to redefine the referral process as a progressive action comprising several discrete stages.  This gives effect to Recommendation 14 of the Report of the Review Committee.

 

 

Subsections 86(2), (3) and (4) define the initial referral of a practitioner under the Scheme as an 'investigative referral' by the HIC to the Director.  An investigative referral contains data relating to all services provided by the person under review during the referral period, and provides the reasons why the HIC considers the person under review may have engaged in inappropriate practice.

 

Subsection 86(4A) empowers the Director to request further information from the HIC.    This makes explicit that any subsequent investigations conducted by the Director, although confined to the referral period, are not limited to the scope of the matters set out in the investigative referral.  This is an important change as previously the referral by the HIC      set the boundaries within which a Committee could examine a practitioner's professional conduct.

 

Subsection 86(4B) makes clear that the HIC is required to respond to requests for further information by the Director.

 

Items 30-32

 

Amends subsections 87(1), (3) and 88(1) as a consequence of the amendments made by Item 29 by inserting the word 'investigative' before referral.

 

Item 33

 

Repeals section 89 and substitutes new sections 89, 89A, and 89B that provide for the new investigation and enhanced negotiation powers of the Director encompassing the ability to engage case officers such as legal and clinical advisers.  This will allow for the effective work-up of a case referred by the HIC to the DPSR.  Such case preparation will include examination of clinical and practice records, preparing samples of services or types of services for a Committee if appropriate, and the analysis of the total number of consultation services to apply to the deeming provisions in respect of high volume servicing.

 

New Section 89 - Investigation by Director

 

Subsection 89(1) provides that on receipt of an investigative referral from the HIC, the Director must conduct an investigation into the referred services in such manner as he or she thinks appropriate.  The effect of this may mean a subsequent referral to a Committee becomes unnecessary.  Alternatively, it will provide a Committee with sufficient information for a more comprehensive hearing, and maximise the use of their time and resources.

 

Subsection 89(2) specifies that the Director does not have to conduct an investigation if he or she decides to take no action or no further action under new section 93A.

 

New Section 89A - Director may refer material to HIC if fraud is suspected

 

Subsection 89A(1) provides the Director with the ability to send particular concerns back to the HIC for examination if fraud is suspected during consideration of the investigative referral.

 

Subsection 89A(2) allows the Director to either continue to examine the substantive part of the investigative referral, or suspend the examination. 

 

New Section 89B - Power of Director to require the production of documents or the giving of information

 

Section 89B provides the Director with the power to require the production of evidence relating to the person under review or any other person whom the Director believes to have possession, custody or control of relevant documents.  Previously such powers were limited to a Committee only.  It is necessary that the Director have these powers in order to perform investigations required under section 89.  This gives effect to Recommendation 17 of the Report of the Review Committee.  The changes being made to powers for the Director by section 89B are mirrored in the new section 105A for Committees (Item 43).

 

New subsection 89B(1) defines the term 'relevant documents' as being documents relevant to the investigation by the Director.  The documents include clinical or practice records of services rendered or initiated during the referral period by not only the person under review but also practitioners employed by the person under review or practitioners employed by a body corporate of which the person under review is an officer. 

 

Under new subsection 89B(2), the Director can, by written notice, require the person under review or any other person whom the Director believes to have possession, custody, control of (or be able to obtain) relevant documents, to produce those documents to the Director or to a person nominated by the Director.   If the person to whom the notice is served neither has the documents nor can obtain them, he or she must advise the Director accordingly and, if the person knows (or can ascertain) the name and address of the person who has or can obtain them, give that name and address to the Director.

 

New subsection 89B(3) sets out what must be contained in a written notice issued by the Director.  It must state the period within which, and the place at which, the documents are to be produced.  It must also state the period within which the name and address of a person who has, or can obtain, the relevant documents are to be given.  The minimum period of time so provided is stated by new subsection 89B(4) to be 14 days after the day on which the notice is given.

 

Subsection 89B(5) requires the Director to set out in the notice details of the consequences if the notified person fails to comply with the notice. The penalties that apply in respect of such offences are contained in section 106ZPM and 106ZPN.  The notice is, however, not rendered invalid should those details not be included. 

 

Subsection 89B(6) permits the Director or a person nominated by the Director, to inspect the document, retain it for a reasonable period of time, or make copies of it, or extracts from it.

 

Item 34

 

Amends subsection 90(1) by inserting the word 'investigative' before 'referral' to make clear that this subsection concerns investigative referrals only.

 

Item 35

 

 

Repeals sections 91 (dismissing referrals as lacking sufficient foundation), 92 (dismissing referrals if partial disqualification is agreed) and 93 (decisions to set up Committees) and substitutes new sections 91, 92, 93, 93A, 93B, and 93C to set out how the Director can respond to an investigative referral from the HIC. 

 

New Section 91 - Dismissing investigative referrals as lacking sufficient foundation

 

Section 91 provides that the Director may dismiss an investigative referral if he or she is satisfied that there are insufficient grounds on which a Committee could reasonably find that the person under review had engaged in inappropriate practice.

 

New Section 92 - Agreement entered into between Director and person under review

 

This section only applies if the person under review is a practitioner (subsection 92(1)).  It provides that the Director and the person under review can enter into an agreement where the practitioner acknowledges that his or her conduct during the referral period constituted inappropriate practice.

 

Under section 92 that is being repealed, the only action that could be included in an agreement was partial disqualification.  An agreement made under the new subsection 92(2) may also specify that the practitioner agrees to one or more of the following actions; a reprimand; the repayment or non-payment of medicare benefits; and/or full or partial disqualification from medicare or prescribing under the pharmaceutical benefits scheme. This gives effect to Recommendation 20 of the Report of the Review Committee. 

 

Given the widened range of actions that can now be included in an agreement, the legislation now requires that for an agreement to take effect, it must be ratified by the Determining Authority under subsection 92(3).   This gives effect to Recommendation 21 of the Report of the Review Committee.

 

The date of effect of an agreement can either be specified as part of the agreement, or if it is not specified, is 14 days after ratification - subsection 92(4).  Paragraph 92(4)(f) provides that once a negotiated settlement is ratified it is considered a final determination for the purposes of referral to a Medicare Participation Review Committee under section 106X. 

 

Where the Determining Authority refuses to ratify an agreement, subsection 92(5) enables  the Director and the person under review to enter into another agreement. 

 

The previous requirement in the Act that communications between the Director and a practitioner in relation to proposals for an agreement cannot be disclosed to any Panel member (other than a Panel member consulted by the Director under paragraph 90(1)(a)) has been retained under subsection 92(6).

 

Subsection 92(7) clarifies the applicability of Part VII of the National Health Act 1953 to one of the sanctions available under an agreement in subsection 92(2).

 

New Section 93 - Decisions to set up Committees

 

Subsection 93(1) provides for the Director to set up a Committee and make an 'adjudicative referral' to the Committee to consider whether conduct by the person under review constitutes engaging in inappropriate practice. 

 

Subsection 93(2) provides the Director with the discretion in circumstances where the investigative referral is a referral made by a Committee to the Director under new subsection 106H(2) to make the adjudicative referral to the original Committee or to set up a new Committee.   Such a referral is otherwise treated as a new referral, including that the person under review has the right to challenge the membership of the Committee.

 

Subsection 93(3) provides for the form and content of an adjudicative referral to comply with any guidelines made by the Minister under subsection 93(4).  Any such guidelines are disallowable instruments under subsection 93(5).  This gives effect to Recommendation 27 of the Report of the Review Committee.

 

Under subsection 93(6) an adjudicative referral by the Director must include a written report giving the reasons why the Director thinks the conduct by the person under review may have been inappropriate. 

 

Subsection 93(7) provides that the services to be investigated by a Committee must be set out in the adjudicative referral, and are not limited to the reasons given by the HIC under paragraph 86(4)(b).  

 

Subsection 93(8) concerns where the Director has formed an opinion that any conduct by the person under review caused, was causing, or was likely to cause, a significant threat to the life or health of a person, or failed to comply with professional standards.  If the Director had subsequently sent a statement setting out these concerns to the appropriate body, he or she is required to include a statement to that effect in the adjudicative referral. 

 

Subsection 93(9) requires the Director to disregard any such opinion he or she formed when making such an adjudicative referral. 

 

New Section 93A - Decision to take no action

 

Subsection 93A(1) provides that the Director can decide to take no action or no further action in respect of an investigative referral.  Subsection 93A (2) provides that if the Director has been unable to investigate or complete his or her investigation into the referred services within 6 months of receiving an investigative referral from the HIC, the Director is taken to have decided to take no action in respect of the referral. This provision gives effect to Recommendation 19 of the Report of the Review Committee.

 

New Section 93B - Director must take action in respect of referral in certain circumstances

 

Section 93B has been included as a safeguard to subsection 93A(2).  It provides that the Director must take action if he or she receives a subsequent investigative referral in relation to the same practitioner.  This gives effect to Recommendation 19 of the Report of the Review Committee. 

 

The Director must take action on this subsequent referral (subsection 93B(2)) by either dismissing it, entering into an agreement with the practitioner under section 92, or setting up a Committee in accordance with section 93 (subsection 93B(3)).  This must occur before the end of the period of 6 months after the day on which the Director received the further referral. 

 

New Section 93C - What happens if no action taken within 9 months after investigative referral

 

Section 93C provides that once the Director has taken action (by notifying the practitioner that an investigation into the referred services is to be conducted, entering an agreement with the person under review under, or making an adjudicative referral to a Committee) the Director has a further 3 months to progress the investigation by either dismissing the referral, entering into an agreement with the person under review under section 92, or convening a Committee.   If the Director does none of these within the 3-month period the investigative referral is taken to have lapsed.

 

Specific provision has been made to allow for extensions to the period in which the Director must action an investigative referral under section 93C.  This has been done to provide for circumstances where an investigation by the Director has been suspended under paragraph 89A(2)(b) due to suspicion of fraud, or where there has been a failure to comply with a notice given under subsection 89B(2). 

 

Item 36

 

Amends subsections 94(1) and (2) by inserting the word 'investigative' before referral.

 

Item 37

 

Repeals subsection 94(3) and substitutes a new subsection specifying that a notice of a decision by the Director to set up a Committee must include both the instrument making the adjudicative referral and the report attached to the adjudicative referral.

 

Item 38

 

Amends subsection 94(4) by inserting 'investigative' before referral.

 

Items 39-40

 

Remakes subsection 95(6) to allow the Director to appoint either one or two, rather than 2, additional Panel members to a Committee if he or she considers that the appointment(s) would give the Committee a wider range of clinical expertise.  Paragraph 95(1)(c) is amended as a consequence by inserting 'not more than' before '2'.

 

Item 41

 

Amends paragraphs 99(7)(b) and (d) by substituting the term 'Determining Authority' for the term 'Determining Officer'.  The change gives effect to Recommendation 34 of the Report of the Review Committee in that the Determining Officer is replaced with a Determining Authority.

 

Item 42

 

Repeals section 100, which allows the Chairperson of a Committee, with the Director’s approval, to engage consultants who have suitable qualifications and experience.  Under the revised arrangements, it becomes the responsibility of the Director to provide services to a Committee (and the Determining Authority) which may include engaging consultants.  This is covered by Item 61 at new section 106ZPL.

 

Item 43

 

Repeals sections 103 (rights of persons under review at hearings), 104 (requiring persons under review to give evidence, etc), 105 (consequences of not complying with requirements) and 105A (persons to produce documents prior to hearing) relating to Committee activities.  These sections currently contain a mix of requirements for appearance at hearings and production of documents by both the person under review and other persons.  The Item reorganises these provisions into sections that:

 

-                  cover the rights of the person under review at Committee hearings (new section 103);

-                  require the person under review to appear at a Committee hearing and give evidence (new section 104);

-                  set out the consequences of the person under review failing to appear and give evidence (new section 105); and

-                  require the person under review or another person to produce documents or other information to a Committee (new section 105A).

 

New Section 103 - Rights of persons under review at hearings

 

Subsection 103(1) now precisely articulates the person under review’s entitlements at a hearing.  Subject to any reasonable limitations or restrictions that the Committee may impose, these entitlements include: attending the hearing; being accompanied by a lawyer or another adviser; calling witnesses to give evidence (Recommendation 24 of the Report of the Review Committee) other than evidence as to his or her character which is can only be provided as a written statement; questioning a person giving evidence at a hearing; addressing the Committee on questions of law arising during the hearing; and, at the conclusion of the taking of evidence, making a final address to the Committee on questions of law, the conduct of the hearing and the merits of the matters to which the hearing relates (Recommendation 28 of the Report of the Review Committee).

 

Subsections 103(2) and 103(3) have been remade to respectively define the rights of lawyers and advisers (other than lawyers) accompanying the person under review at a hearing and put into effect Recommendation 28 of the Report of the Review Committee.  Subject to any reasonable limitations or restrictions that the Committee may impose, a lawyer or a legal adviser may give advice to the person under review and, after the conclusion of taking of evidence, make a final address to the Committee on behalf of the person under review on the conduct of the hearing and the merits of the matters.  In addition, the lawyer may address the Committee on questions of law during the hearing.

 

Subsection 103(4) restricts a final address to either a lawyer or another adviser if the person under review is accompanied by both at the hearing.

 

Subsection 103(5) sets out that any expenses incurred by engaging a lawyer or another person to accompany them to a hearing is to be at the expense of the person under review.                                                                                                                              

 

New Section - 104 Requiring persons under review to appear and give evidence at hearing

 

Subsection 104(1) has been reworked to make it clear that the Committee’s notice of hearing must require the person under review to appear at the hearing and give evidence to the Committee.  The Act as it stood offered the person under review the option of either appearing at the hearing and giving evidence, appearing at the hearing and producing documents, or both. 

 

Subsection 104(2) provides for the situation where a person under review fails to attend a hearing or to give evidence.  In these circumstances, the Committee has an option to set another hearing date at least 28 days after the new notice of hearing.  If it chooses to do so, it must advise the person under review accordingly in writing.  In addition, a Committee must notify the Director of a failure to attend or a refusal to give evidence and the Director must disqualify the person under review under subsection 105(3).

 

Subsection 104(3) provides that the requirement to fix another hearing date does not apply if both the person under review and the Chairman believe that answering a question might tend to be self-incriminating for the person under review.

 

New Section 105 - Consequences of failing to appear and give evidence

 

Subsection 105(1) is reworked to provide the Committee with a discretion to continue to conduct a hearing if the person under review fails to appear or, if he or she does appear and refuses or fails to give evidence or answer a question asked by a Committee member. Under these circumstances, a Committee may hold a hearing without the person under review.  The Act as it stands only allows this course of action after the Committee has set a second hearing date and advised the person under review accordingly.

 

Subsection 105(2) specifies that the Committee may not proceed with the hearing if the person under review notifies the Committee that he or she has a medical condition which prevents compliance with its requirements under subsection 104(2), and if the person has complied with any reasonable requirements of the Committee regarding medical examinations which confirm the medical condition.

 

Under subsection 105(3), if a person under review (who is a practitioner) fails to comply with subsection 105(1), then the Director must fully disqualify the person from medicare and advise the HIC.

 

Subsection 105(4) specifies that if the person under review subsequently complies with a requirement under this section, the Chairperson must advise the Director accordingly and the rights accorded to the person under review by section 103 are to be reinstated.  Subsection 105(5) requires the Director, as soon as practicable after being so advised, to revoke the disqualification and give the HIC written notice of the revocation.

 

Subsection 105(6) has the effect that the section does not apply if the person under review fails to answer a question that both the person and the Chairperson believe if answered would be self-incriminating.

 

New Section 105A - Power of Committee to require the production of documents or the giving of information

 

Section 105A allows a Committee to obtain documents identified as being relevant to the inquiry both before and during the hearing.  The new section also provides the Committee with the power to access documents, which are in the possession, custody or control of someone other than the person under review.

 

New subsection 105A(1) defines the term “relevant documents” as being documents relevant to the matters referred to the Committee.  The documents include clinical or practice records of services rendered or initiated by not only the person under review but also practitioners employed by the person under review or practitioners employed by a body corporate of which the person under review is an officer. 

 

Under new subsection 105A(2), a Committee can, by written notice signed by a Committee member either before or during a hearing, require the person under review or any other person whom the Committee believes to have possession, custody, control of (or be able to obtain) relevant documents to produce those documents to a Committee member or to a person nominated by the Committee member.

 

If the person to whom the notice is served neither has the documents nor can obtain them, he or she must advise the Committee accordingly and, if the person knows (or can ascertain) the name and address of the person who has or can obtain them, give that name and address to the Committee.

 

New subsection 105A(3) sets out what must be contained in a written notice issued by the Committee.  It must state the period within which, and the place at which, the documents are to be produced.  It must also state the period within which the name and address of the person who has, or can obtain, the relevant documents are to be given. The minimum period of time so provided is stated by new subsection 105A(4) to be 14 days after the day on which the notice is given.

 

Subsection 105A(5) requires a Committee to set out in the notice details of the consequences if the notified person fails to comply with the notice. The notice is, however, not rendered invalid should those details not be included. 

 

Subsection 105A(6) permits a Committee member, or person nominated by the Committee, to inspect the document, retain it for a reasonable period of time or make copies of it or extracts from it.

 

Item 44

 

Repeals Subdivision D of Division 4 of Part VAA and replaces it with a new Subdivision C - Action to be taken by Committees.

 

New Subsection - 106G Application of Subdivision

 

New subsection 106G(1) establishes that the matters forming the subject of a Committee’s inquiry are those outlined in the adjudicative referral, that is, the referral from the Director to the Committee. 

 

Under new subsection 106G(2), unless the Director has approved one or more extensions of time requested by the Committee Chairperson, or another Committee member if the Chairperson is not available, the Committee must give the Determining Authority its final report within 6 months after receiving the adjudicative referral.  Extensions of time are not to exceed one month at each request. 

 

New subsections 106G(3) and 106G(4) allow the Committee, in certain circumstances, to make a written determination to further extend the 6 months available to it to provide the Determining Authority with a final report.  Those circumstances are when the person under review is unable to attend hearings because of illness, or fails to comply with requirements contained in a written notice from the Committee to that person or another person, or the Committee suspends its inquiry because it suspects fraud may have been committed.  Under these circumstances, the period available is extended by the time for which the Committee makes such a written determination.

 

New Section - 106H Matters to be considered by a Committee

 

New section 106H addresses those matters contained in Recommendation 15 of the Report of the Review Committee, that is, a Committee be able to raise new concerns which may become an additional referral by the Director. 

 

Subsection 106H(1) limits the matters in respect of which a Committee may make findings to those services specified in the adjudicative referral. 

 

New subsection 106H(2) provides for issues not part of an original adjudicative referral but which are subsequently identified by a Committee during the inquiry process to be sent back to the Director for investigation. 

 

New subsection 106H(3) provides for referrals of this kind from the Committee to the Director to be considered to be another investigative referral.  The provisions applying to the referral of matters from the HIC to the Director also apply to any referral by a Committee to the Director.

 

New Section 106J - Committee is not required to have regard to all services covered by the adjudicative referral

 

New section 106J provides that a Committee may, but is not required to, have regard to conduct in connection with rendering or initiating all of the referred services.

 

This provision, together with the new sections 106K, 106KA and 106KB address one of the major practical difficulties for Committees arising from the majority judgment of the Full Federal Court in the Yung case, namely that a Committee must consider each of the individual services contained in the referral. 

 

While a Committee can examine individual services it is not required to do so, particularly in circumstances where the Committee has regard to a sample of services (under section 106K); or where services form part of a prescribed pattern of services (under section 106KA); or where, by reason of no records or no adequate records, the Committee makes a generic finding of inappropriate practice (under section 106KB).

 

New Section 106K - Committee may have regard to samples of services

 

New section 106K gives effect to Recommendation 2 of the Report of the Review Committee by providing a legislative basis for the application of sampling as one of a number of possible approaches a Committee might take in quantifying the extent of inappropriate practice the person under review can be found to have engaged in.  It allows a Committee to sample services included in a particular class of referred services, to make findings about specific services in the sample, and to extrapolate the results to a larger number of similar services in the referral, provided the methodology is statistically sound. 

 

The PSR Scheme had originally provided for a Committee to be able to apply the findings from a sample of services rendered or initiated by the person under review to the whole class of services of concern.  Those provisions were repealed in November 1997 as the sampling procedures proved to be administratively complex, cumbersome and unworkable in practice. 

 

However, during the course of its review of the PSR Scheme, the Review Committee received and accepted expert statistical advice that, if properly constructed, the use of sampling protocols could offer a quantifiable way of addressing some of the issues of inappropriate practice. 

 

Subsection 106K(1) sets out that a Committee may consider a sample in a particular class of the referred services when considering conduct in connection with the rendering or initiation of those services, rather than having to consider all the services in the referral.   

 

Subsection 106K(2) allows 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 the services included in the sample, then that person’s conduct in connection with the entire class of services from which the sample is drawn is taken to have constituted engaging in inappropriate practice.  

 

New subsections 106K(3) and 106K(5) empower the Minister to detail, by disallowable instrument, the form and content of the sampling methodologies to be used in relation to the identification of particular services.

 

New subsection 106K(4) allows a Committee to use a sampling methodology not specified by Ministerial Determination provided the Committee has received advice from an accredited statistician that the sampling methodology is statistically valid.

 

New Section 106KA - Patterns of Service

 

New section 106KA provides Committees with an alternative empirically valid method of inquiry where the focus of their investigations is extremely high volumes of services per day. 

 

To apply sampling protocols in these circumstances would require a Committee to examine such a high number of individual services to arrive at a conclusion that would sustain a viable and worthwhile level of sanction that the process would be impractical.  This was one of the major criticisms of the former Medical Services Committees of Inquiry process.  It was found that the only effective way to tackle high volume cases on the basis of patterns of services was to be able to establish a process whereby a Committee could establish what volume of services was unacceptable to a practitioner’s peers which could be sustained in Court.  The prevailing absence of any standards on volumes of services that are generally unacceptable has prevented Committees from using this approach.

 

With the support of the profession and after extensive discussions with a number of professional organisations, agreement was reached that a deeming provision be introduced (Recommendation 3 of the Review Committee Report) such that once a specified number of services per day is reached, the practitioner would be required to justify the provision of such a high volume of services to a Committee.

 

New subsection 106KA(1) and (2) provide that where the referred services constitute a 'prescribed pattern of services', the person's conduct in respect of those services is taken to have constituted engaging in inappropriate practice unless the person can satisfy the Committee that the services were rendered or initiated under exceptional circumstances.

 

New subsection 106KA(1) establishes the linkage between a 'prescribed pattern of services' and the inappropriate practice by deeming those services to be inappropriate.  New subsection 106KA(2) establishes the exceptional circumstances exception to the deeming provision in subsection 106KA(1).  The deeming provision in subsection 106KA(1) will not apply in respect of a particular day or days where a person under review satisfies a Committee that services on that day or days were rendered or initiated under exceptional circumstances. 

This approach recognises that while the exceptional circumstances may relate only to specified services on a particular day they nevertheless impact on the whole day.  This gives the person under review the benefit of any doubt, and also avoids the need to examine individual services on the day in question.

 

Subsection 106KA(3) specifies that the details of exceptional circumstances can be set out in the regulations (as stated in the Recommendation 6 of the Report of the Review Committee).  New subsection 106KA(5) specifies that a practitioner may also validly present a claim for exceptional circumstances even though those circumstances may not have been described in the regulations.   Any claim of exceptional circumstances will need to be based on general evidence such as, for general practice, the absence of alternative medical services to the practitioner's patients or unusual occurrences causing unusual levels of need for consultation services. This gives effect to Recommendation 5 of the Report of the Review Committee.

 

Because the practice patterns of the various specialty groups and professions to which the PSR arrangements apply vary so substantially, it is not possible to define a single deeming point to cover every practitioner group.  The regulations will, therefore, prescribe a different number of services and a different number of days in respect of different categories of practitioner.  New subsection 106KA(4) provides the authority for the setting of those different specialty or profession specific deeming points, a matter also addressed in Recommendations 4 and 6 of the Report of the Review Committee. 

 

New subsection 106KA(6) makes it clear that the deeming provisions will not be applied retrospectively.  They will only apply to services rendered or initiated after the starting date of this new legislation. 

 

New subsection 106KA(7) specifies that, where a practitioner’s servicing pattern falls within the range of the deeming provisions, a Committee is not compelled to limit the scope of its inquiry to patterns of service issues.  In other words, nothing prevents a Committee from making a finding of inappropriate practice on services less than the deeming provisions.  A Committee may, for instance, decide to deal with such a referral by way of sampling under section 106K.

 

The deeming point in no way represents some marker below which a practitioner is automatically considered to be practising appropriately and above which is automatically considered to have engaged in inappropriate practice.  The deeming point does nothing more than to shift the evidentiary burden to the person under review.  The only automatic outcome from reaching or exceeding the deeming point is that the practitioner will be referred to a Committee of his or her peers.  The practitioner will then be given the opportunity to demonstrate to the satisfaction of that Committee that exceptional circumstances prevailed during the referral period which allowed him or her to practice appropriately.

 

New Section 106KB - Generic Findings of Inappropriate Practice

 

As provided for in Recommendation 8 of the Report of the Review Committee, new subsection 106KB(1) addresses the situation where there is an absence, deficiency or illegibility of clinical or practice records and a Committee inquiry based on statistical sampling or patterns of practice is not possible. 

 

New subsection 106KB(2) provides the Committee with the authority to, in these circumstances, base its findings on any information it is able to obtain including HIC data, the Director’s investigations and evidence obtained at Committee hearings.

 

New subsection 106KB(3) provides for a Committee to make a generic finding of inappropriate practice where, on the evidence available, it is not possible to identify or quantify specific services.  Given that it is not possible to identify or quantify services, any determination arising from such a finding of inappropriate practice will not include the option of seeking a repayment of medicare benefits (Recommendation 11 of the Report of the Review Committee).

 

New Section - 106KC Notification by Committee to Director of matters that are not related to the referral

 

As specified in Recommendation 33 of the Review Committee Report, new subsection 106KC(1) empowers the Committee to notify the Director in writing of any matters arising out of an inquiry which, while unrelated to the referral being inquired into, the Committee considers to be of significant concern to the profession of the person under review, so that it may be considered by the HIC or another appropriate body.

 

New subsection 106KC(2) requires the Director to give particulars of any such notification to the HIC or another appropriate body.

 

New Section - 106KD Preparation of draft report

 

The changes to the preparation of reports by a Committee to include draft reports, arise from Recommendation 29 of the Report of the Review Committee.

 

New subsection 106KD(1) requires a Committee to prepare a written draft report expressing the respective preliminary findings of its members.  

 

New subsection 106KD(2) provides that if the person under review is a practitioner, and if that practitioner agrees in writing, the draft report may include recommendations as to his or her partial or full disqualification from medicare, as well as the nature and period of disqualification. 

 

New subsection 106KD(3) requires the Committee to give the person under review a copy of the draft report and invite the practitioner to make submissions suggesting changes to it within 21 days of its being received by the practitioner. 

 

New Section 106L - Final report of Committee

 

New subsection 106L(1), which responds to Recommendation 30 of the Report of the Review Committee, requires the Committee to take any submissions made by the person under review into account and prepare a final report setting out the respective findings of its members.

 

New subsection 106L(2) provides that if the person under review is a practitioner, and if that practitioner agrees in writing, the final report may include recommendations as to partial or full disqualification from medicare, as well as the nature and period of disqualification.

 

New subsection 106L(3) requires the Committee to give copies of the final report to the person under review and Director.

 

New subsection 106L(4) requires the Committee to give the final report to the Determining Authority not earlier than 28 days after the day on which copies are given to the person under review.  This 28-day delay has been provided to allow the person under review to exercise a right of appeal to the Federal Court on a point of law.  This gives effect to Recommendation 31 of the Report of the Review Committee.

 

New Section - 106M Referral of matter to a regulatory body to be mentioned in the Committee’s report

 

This section gives effect to Recommendation 32 of the Report of the Review Committee.

 

New subsection 106M(1) refers to situations where a Committee, during the course of an inquiry into an adjudicative referral from the Director, forms an opinion that any conduct by the person under review caused, or was likely to cause, a significant threat to the life or health of a person or that the person under review failed to comply with professional standards, and has sent a statement of those concerns to the Director.

 

New subsection 106M(2) requires the Committee to set out the terms of any statement to the Director in either its draft or final report, depending upon the stage of the inquiry at which it formed that opinion. 

 

New subsection 106M(3) requires the Committee to disregard any opinion so formed when making its findings on the question of whether the person under review engaged in inappropriate practice for the purposes of its draft or final report.

 

New Section - 106N Committee may refer material to HIC if fraud is suspected

 

Remakes subsection 106N(1) so that a Committee, if it thinks a person being reviewed may have committed particular offences, need no longer suspend its consideration of the complete adjudicative referral but may send the details of the matters it thinks may have constituted the offence to the HIC. 

 

New subsection 106N(2) gives the Committee the option of either stopping its inquiry or continuing its inquiry as it thinks appropriate.

 

Item 45

 

Repeals the heading of Division 5 of Part VAA and substitutes it with a new heading - Determinations by the Determining Authority.

 

Item 46

 

Repeals the heading Subdivision A of Division 5 of Part VAA.

 

Item 47

 

Repeals section 106Q (the Determining Officer), section 106R (copies of Committee reports to be given to persons under review), section 106S (draft determinations relating to persons under review) and section 106T (final determinations relating to persons under review).  The Item reorganises these sections to give effect to the replacement of the Determining Officer with a Determining Authority as set out in Recommendation 34 of the Report of the Review Committee.

 

New Section 106Q - The Determining Authority

 

New subsection 106Q(1) provides for the establishment of a Determining Authority.

 

New subsection 106Q(2) provides for the Authority’s functions and powers to be conferred on it under Part VAA of the Act.

 

New subsections 106Q(3) and (4) allow the Minister to give the authority guidelines as to how to perform its functions and exercise its powers and that any such Ministerial guidelines be a disallowable instrument (Recommendation 39 of the Report of the Review Committee).

 

New Section - 106R Agreements sent to Authority for ratification

 

New subsection 106R(1) requires the Determining Authority to make a decision either ratifying or refusing to ratify an agreement entered into between the Director and the person under review within 1 month after receiving the agreement (Recommendation 21 of the Report of the Review Committee).

 

New subsection 106R(2) provides that if the Determining Authority fails to make a decision within that month, the agreement is taken to have been ratified.

 

New subsection 106R(3) requires the Determining Authority to notify the Director and the person under review in writing within 7 days after the decision has been made or deemed to have been made.

 

New subsection 106R(4) requires the Determining Authority to specify, should it refuse to ratify an agreement, its reasons for that refusal in the notice to the Director and person under review.

 

New subsection 106R(5) provides that a failure to notify the Director or person under review or to provide reasons for any refusal to ratify an agreement does not affect the validity of the decision.

 

New Section 106S - If no finding by a Committee of inappropriate practice

 

New section 106S requires the Determining Authority, on receipt of a final report from a Committee which does not contain a unanimous or majority finding of inappropriate practice, to give written notice to that effect the person under review, the Director and the Commission and advise that the Authority will not be taking any action as a result of the report. 

 

New Section 106T - Draft determinations relating to persons under review

 

New subsection 106T(1) requires the Determining Authority, on receipt of a final report from a Committee containing a unanimous or majority finding of inappropriate practice, to make a draft determination and give a copy of it to the person under review and the Director within 1 month after the day of making it (Recommendation 37 of the Report of the Review Committee).

 

New subsection 106T(2) requires the Determining Authority to provide the person under review with a statement inviting him or her to make written submissions within 14 days suggesting changes to the directions contained in the draft determination (Recommendation 37 of the Report of the Review Committee).

 

New subsection 106T(3) provides for the person under review to make those written submissions within the 14-day period after the day of receipt of a draft determination.

 

New subsection 106T(4) provides that a failure to provide the person under review and the Director with the draft determination within the one month period specified in subsection 106S(1) does not affect the validity of the draft determination.

 

New Section 106TA - Final determinations relating to persons under review if Committee makes a finding of inappropriate practice

 

Subsection 106TA(1) provides that the Determining Authority is required to take submissions from the person under review into account (Recommendation 38 of the Review Committee Report) and specifies the period of time provided to the Determining Authority to make a final determination as being one month after the 14 day time period for the presentation of submissions from the person under review has expired. 

 

Subsection 106TA(2) provides that a failure to make the final determination within the one month period does not affect the validity of the final determination.

 

Item 48

 

Makes a minor amendment to subsection 106U(1) so that the reference to a determination is a reference to both a draft and a final determination.

 

Item 49

 

Repeals paragraph 106U(1)(c) and substitutes new paragraphs 106U(1)(c), (ca) and (cb) to clarify the circumstances under which a medicare benefit is repayable following a finding of inappropriate practice. 

 

These changes are necessary as a consequence of new sections 106K, 106KA and 106KB which relate to sampling of services, patterns of services and generic findings respectively.

 

New paragraph 106U(1)(c) provides that a determination may contain a direction that any medicare benefit payable in respect of a service in respect of which there is a finding of inappropriate practice cease to be payable.

 

New paragraph 106U(1)(ca) provides that a determination may contain a direction for the repayment of medicare benefit to the Commonwealth in respect of a particular identified service which is the subject of a finding of inappropriate practice.   This provision also clarifies that there can be no repayment of medicare benefit following a finding of inappropriate practice using the generic findings methodology.

 

New paragraph 106U(1)(cb) provides that a determination may contain a direction for repayment of medicare benefit to the Commonwealth in respect of a particular class of services which are the subject of a finding of inappropriate practice using the sampling methodology in section 106K(2).

 

Item 50

 

Inserts a new subsection 106U(1A) which requires any medicare benefits that are to be repaid under paragraph 106U(1)(cb), to be repaid at the lower level of benefit applicable to the service or services (that is, item or items in the General Medical Services Table) found to have constituted inappropriate practice.  

 

This recognises that different levels of benefit may be payable in respect of different types of services as well as in respect of the same service performed at different times, and that the use of the sampling methodology may therefore result in findings where it is not possible to directly link benefits paid to services rendered.  Adopting this approach of only requiring repayment of the lowest amount of benefit paid ensures that the Determining Authority can direct the repayment of medicare benefits pursuant to a finding of inappropriate practice using the sampling methodology without unduly disadvantaging the person under review.

 

Item 51

 

Inserts a new section 106UAA requiring the Determining Authority, in making a determination, to not take account of any opinions it might have formed in sending a statement to the Director under section 106XA that the person under review’s conduct might represent a significant threat to the life or health of another person, or under section 106XB that the person under review failed to comply with professional standards.

 

Item 52

 

Substitutes in section 106UA, the term 'Determining Authority' for 'Determining Officer'.

 

Item 53

 

Reworks section 106V so that, subject to appeals, the date the final determination takes effect is extended from 28 days to 35 days after the Determining Authority gives a copy to the person under review - subsection 106V(1).  This will ensure that a final determination does not take effect until all avenues of appeal have been exhausted.  New section 106V gives effect (in part) to Recommendation 40 of the Report of the Review Committee. 

 

Subsection 106V(2) defines the dates from which the final determination takes effect when the person under review institutes court proceedings. 

 

Subsection 106V(3) defines the prescribed number of days applying to the calculation of the effective date of the final determination depending on which court the appeal is lodged.

 

Item 54

 

Substitutes in section 106W, the term 'Determining Authority' for 'Determining Officer'.

 

Item 55

 

Repeals Subdivision B of Division 5 of Part VAA that becomes unnecessary because of the abolition of the position of the Determining Officer and its replacement by a Determining Authority.  This gives effect (in part) to Recommendation 34 of the Report of the Review Committee.

 

Item 56

 

Inserts a new Division 5A to expand on the existing provisions for the referral of the person under review to specified bodies where there are concerns about possible significant threats to the life or health of any person (reworked section 106XA) or concerns that the person under review may not have complied with professional standards (new section 106XB).  These changes give effect to Recommendation 32 of the Report of the Review Committee.

 

New Section 106XA - Referring to an appropriate regulatory body any significant threat to life or health

 

Subsection 106XA(1) provides for that process where a Committee or the Determining Authority, in performing their functions under the Act, form a view that the conduct of the person under review is such to be a significant threat to the life or health of a person. 

The Committee or Determining Officer must give a written statement to that effect to the Director, along with details on which the opinion is based. 

 

Subsection 106XA(2) requires the Director to refer a matter to an appropriate regulatory body if, during the course of his or her investigation of the person under review under section 89, the Director forms a view that the conduct of the person under review represents or may represent a significant threat to the life or health of a person.  The subsection also requires the Director to refer any concerns of this kind identified by a Committee to an appropriate regulatory body and specifies the way in which such referrals are to be made.

 

Subsection 106XA(3) provides for referrals of practitioners to be directed to the appropriate registering, licensing or practice regulating bodies that have the power to take action against the practitioner.  For instance, in the case of medical practitioners, this will be the State or Territory medical board.

 

Subsection 106XA(4) provides similar powers for the referral of persons other than practitioners to the appropriate registration or licensing authority of that person. 

 

New Section 106XB - Referring to appropriate regulatory body any non-compliance by a practitioner with professional standards

 

New section 106XB mirrors the provisions in section 106XA but where the concerns identified now relate to a person under review’s failure to comply with professional standards.  Subsection 106XB(3) provides for the specification in regulations of the body to which a concern should be referred. 

 

In the context of sections 106XA and 106XB it is intended that 'conduct' should be given its widest possible meaning.

 

Item 57

 

Substitutes a new heading for Division 6 of Part VAA

 

Division 6 - Provisions relating to the Director, Panel members,

staff and consultants, the Determining Authority and the

provision of services to a Committee or the Authority

 

The changes in new section 106ZM to 106ZP give effect to Recommendation 18 of the Report of the Review Committee.

 

Item 58

 

Amends subsection 106ZM(1) to allow the Director to engage people to perform services in connection with the performance of his or her functions or duties, or the exercise of his or her powers.  This will enable the Director, amongst other things, to engage staff to carry out investigative referrals made by the HIC, and provide services to a Committee and the Determining Authority.

 

Item 59

 

Amends subsection 106ZN(1) to allow the Director to also obtain assistance from a Commonwealth authority in connection with his or her expanded role of investigation and providing services to a Committee and the Determining Authority.

 

Item 60

 

Amends subsection 106ZP(1) to allow the Director to engage people as consultants to assist him or her with the expanded role of investigation and providing services to a Committee and the Determining Authority. 

 

Item 61

 

Inserts new Subdivisons D and E to Division 6 of Part VAA

 

Subdivision D - Provisions relating to Determining Authority

 

Sections 106ZPA to 106ZPI gives effect to Recommendation 35 of the Report of the Review Committee, and are common provisions for these types of committees in legislation.  The provisions are also similar to the arrangements for Committees under sections 95 and 106ZG to 106ZL of the Act.

 

New Section 106ZPA - Constitution of Determining Authority

 

New subsection 106ZPA(1) specifies the composition of the Determining Authority as being a medical practitioner Chairman, a member who is not a practitioner (that is, a lay person) and seven other members representing each of the professions to whom the Scheme applies (defined under section 81, ‘profession’). 

 

New subsection 106ZPA(2) prescribes the constitution of the Determining Authority when performing its functions of either ratifying an agreement entered into between the Director and the person under review under section 92 or in considering a report from a Committee.  The Determining Authority is to consist of the Chairman (a medical practitioner), a non-practitioner member and a member belonging to the same profession as the person under review.   

 

New Section 106ZPB - Appointment of members of the Authority

 

New subsection 106ZPB(1) specifies that members of the Authority are to be appointed by the Minister.

 

New subsection 106ZPB(2) requires the Minister to consult with the AMA over the appointment of the Chairman (medical practitioner), the non-practitioner member (lay person) and the other medical practitioner member before appointing people to those positions.

 

New subsection 106ZPB(3) requires the Minister to consult with those organisations or associations representing the professions, other than the medical profession, that the Minister considers appropriate before appointing people to those positions.

 

New Section 106ZPC - Term of office

 

New section 106ZPC specifies the term of appointment of members of the Determining Authority as being no longer than 5 years and allows for the reappointment of members.

 

New Section 106ZPD - Terms and conditions of appointment

 

New section 106ZPD provides that members of the Determining Authority are appointed on a part time basis and that the terms and conditions of appointment are to be specified in the instrument of appointment.

 

New Section 106ZPE - Outside employment

 

New section 106ZPE prohibits a member from engaging in any outside paid employment, which the Minister considers, would constitute a conflict of interest with the member’s functions and duties.

 

New Section 106ZPF - Resignation

 

New section 106ZPF provides that a member’s resignation must be in writing, signed by the member, and delivered to the Minister.

 

New Section 106ZPG - Termination of appointment

 

New section 106ZPG provides for the Minister to be able to terminate a member’s appointment and specifies the grounds for termination, namely misbehaviour, physical or mental incapacity, bankruptcy or engagement in paid employment that would constitute a conflict of interest with the member’s duties on the Determining Authority.

 

New Section 106ZPH - Acting appointments

 

Subsection 106ZPH(1) provides for the Minister to appoint persons to act when a vacancy occurs and during periods of absence by a member (Gives effect in part to Recommendation 36 of the Report of the Review Committee). 

 

Subsection 106ZPH(2) requires an appointee acting as Chairman to be a medical practitioner.

 

Subsection 106ZPH(3) requires any acting appointee to be a member of the profession of the person whose absence created the vacancy.

 

Subsection 106ZPH(4) requires the Minister to consult with the relevant professional organisations before making any acting appointment.

 

Subsection 106ZPH(5) empowers the Minister to terminate an acting appointment at any time. 

 

Subsection 106ZPH(6) provides that the activities of people occupying acting positions remain valid even though the occasion for an appointment may not have arisen, the appointment process may have been defective in some way, an appointment may have ceased to have effect or the occasion to act had not arisen or had ceased.

 

New Section 106ZPI - Remuneration and allowances

 

Subsections 106ZPI(1) and (2) provide that any remuneration or allowances payable to a member are to be at rates specified by the Remuneration Tribunal or, in the absence of any Remuneration Tribunal determination, as specified in the regulations. 

 

Subsection 106ZPI(3) specifies that the section has effect subject to the Remuneration Tribunal Act 1973.

 

New Section 106ZPJ - Protection of members of the Authority

 

New section 106ZPJ provides for members to have the same protection and immunities available to Justices of the High Court and mirrors provisions being repealed that applied to Tribunals in Part VA of the Act.

 

New Section 106ZPK - Meetings of the Determining Authority

 

New subsection 106ZPK(1) requires the Chairman to convene meetings to consider either the ratification of an agreement between the Director and the person under review or a Committee report.  It should be noted that any such meeting does not need to be convened as a face-to-face meeting, but can be done as a telephone link-up, video-conference, or by other appropriate means.

 

New subsection 106ZPK(2) requires these meetings to be held in private.

 

New subsection 106ZPK(3) requires the Chairman to preside at any meeting of the Determining Authority. 

 

New subsection 106ZPK(4) specifies that issues are to be decided by a majority vote of members constituting that Determining Authority.

 

New subsection 106ZPK(5) provides that each member has one vote. 

 

New subsection 106ZPK(6) provides that, subject to any conditions imposed by the Act and regulations, meetings may be conducted as members see fit (Recommendations 10 and 39 of the Report of the Review Committee).

 

Subdivision E - Provision of services to a Committee and

the Determining Authority

 

New Section 106ZPL - Director to arrange for provision of services

 

This section gives effect to Recommendations 23 and 25 of the Report of the Review Committee.

 

New subsection 106ZPL(1) imposes a requirement on the Director to provide the Committees and Determining Authority with support services. 

 

The arrangements for separation of certain services between the Director, a Committee and the Determining Authority is to ensure procedural fairness and to minimise any perception of bias.   For example, a legal adviser will assist a Committee or the Determining Authority in undertaking its duties, but will in no way be a party to the decision making process.

 

New subsection 106ZPL(2) specifies that persons who provided other than clerical or administrative support to the Director on a matter referred by the HIC must not provide similar support on that matter to either a Committee or the Determining Authority. 

 

Similarly, new subsection 106ZPL(3) precludes persons who provided other than clerical or administrative support to a Committee from also providing similar support to the Determining Authority on that matter. 

 

New subsection 106ZPL(4) specifies that for the period a person provides services to a Committee or the Determining Authority, that person is not subject to any directions by the Director. 

 

New subsection 106ZPL(5) defines services for this section as including clerical or administrative services, investigative services, advisory services provided by a practitioner and legal services.  The term 'legal services' is defined in section 81 (item 21).

 

Item 62

 

Inserts a number of new sections dealing with enforcement issues in Division 7 of Part VAA of the Act.

 

New sections 106ZPM and 106ZPN mirror provisions currently in sections 105 and 105A of the Act and have now been sited in a consolidated area dealing with failure to comply with various provisions.

 

New Section 106ZPM - Failure of person under review to produce documents or give information

 

New section 106ZPM provides for the full disqualification from medicare of the person under review or an employee of that person or a person employed by a body corporate of which the person under review is an officer, if that person receives a notice under subsections 89B(2) or 105A(2) to produce a document or provide information and either intentionally refuses to produce that document or that information or fails to comply with the requirement within the period specified in the notice.  The period of disqualification encompasses the time from the end of the period specified in the notice until the document is produced or the information is given.

 

New Section 106ZPN - Failure by person other than person under review to produce documents or give information

 

New section 106ZPN makes similar provisions to new section 106ZPM for persons other than a person under review who intentionally refuse or fail to comply with a requirement to produce a document or provide information as specified in a notice given under subsections 89B(2) or 105A(2).  The maximum penalty for that offence is set at 20 penalty units.   This is an offence to which section 4K of The Crimes Act 1914 applies.  This means the maximum penalty that could be applied is to be calculated on the basis of 20 penalty units being applied to each day each document is not provided.  Disqualification for a person, other than a person under review, is not appropriate in this instance as the person may not be a practitioner accessing medicare, but may in fact be the owner/operator of a medical centre who is in control or possession of the medical records being sought.

 

New Section 106ZPO - False or misleading answers

 

This section mirrors subsection 104(4)(a) of the current Act and has now been situated in this consolidated area dealing with failure to comply with various provisions.

 

New section 106ZPO provides for persons who, when asked a question by a Committee member at a hearing, give an answer they know to be false or misleading, to be guilty of an offence carrying a maximum penalty of imprisonment for 12 months.

 

New Section 106ZPP - False or misleading documents

 

This section mirrors subsection 104(4)(b) of the current Act and has now been situated in this consolidated area dealing with failure to comply with various provisions.

 

New section 106ZPP provides for persons who, in response to a notice by the Director or Committee, produce a document which they know to be false or misleading or intentionally refuse or fail to identify the respects in which the document is false or misleading, to be guilty of an offence carrying a maximum penalty of imprisonment for 12 months.

 

New Section 106ZPQ - No privilege against self-incrimination

 

This section mirrors subsection 105A(6) of the current Act and has now been situated in this consolidated area dealing with failure to comply with various provisions.

 

New subsection 106ZPQ(1) provides that self-incrimination is not a valid reason for refusing to produce documents for inspection. 

 

New subsection 106ZPQ(2) limits the uses able to be made in proceedings of documents and any other information or matter obtained as a direct result of the production of documents produced at a hearing.  Those documents or information are not admissible in evidence against the person producing the material in criminal or civil proceedings except in connection with a prosecution of an offence under section 106ZPP or any proceedings before a Committee or the Determining Authority.

 

New Section 106ZPR - Publication of particulars of reports and determinations

 

This section gives effect to Recommendation 42 of the Report of the Review Committee Report.

 

New subsection 106ZPR(1) enables the Director, when a final determination has come into effect, to permit publication of a range of information about the person under review.  This includes the person’s name and address, profession or specialty, the nature of the conduct in respect of which a finding of inappropriate practice was made and the directions contained in the determination. 

 

New subsection 106ZPR(2) excludes from publication ratified agreements between the Director and person under review, consistent with Recommendation 42 of the Report of the Review Committee.

 

New subsection 106ZPR(3) provides the Director with statutory protection against defamation in publishing this information.  However, notwithstanding the statutory protection from any defamation action, the Director would nevertheless be subject to judicial review and to damages claims if the power is abused.

 

Item 63

 

Repeals Part VA, that is, reference to the Professional Services Review Tribunals and gives effect to Recommendations 1 and 41 of the Report of the Review Committee.   The removal of the Tribunals recognises that review on the merits of the final determination is not appropriate in a Scheme in which the key judgment is a professional judgment by the practitioner's peers about the practitioner's conduct.  The person under review will of course have full rights to seek judicial review at any stage of the process.

 

Item 64

 

New subsection 130(5E) authorises the HIC to provide the Director, a Committee, the Determining Authority or anyone providing services to these persons or bodies with information to help them in the performance of their functions or duties or powers. 

 

New subsection 130(5F) defines services as being clerical or administrative services, investigative services, advisory services provided by a practitioner and legal services.

 

Part 2 - Application, saving and transitional provisions

 

Item 65 - Application of amendments

 

Provides for these amendments to only apply to referrals made after the commencement of this Schedule.  Referrals made before the commencement of this Schedule continue to be dealt with under the Act in force immediately before the commencement of this Schedule. 

 

Item 66 - Saving provision

 

Provides that where a Committee had engaged a consultant under section 100 of the Act immediately before the commencement of this Schedule, that consultant is to now be taken to have been engaged by the Director.  The consultant will be considered to be engaged under the arrangements contained under sections 106ZP and 106ZPL. 

 

Item 67 - Transitional provisions

 

Sub-item (1) requires the Director to continue to arrange for the provision of services to a Committee considering a referral made before the commencement of this Schedule.

 

Sub-item (2) provides that a person providing services under sub-item (1) is not to be subject to the direction or control of the Director in connection with those services.

 

Sub-item (3) allows for the provisions of new section 105A (and the sanctions linked to 105A, that is, new sections 106ZPM and 106ZPN) to apply to ‘old matters’ as well as ‘new matters’.  That is, a Committee considering an ‘old matter’ has all the powers and sanctions available to it to obtain documents or information under the provisions in new section 105A.  This is consistent with Recommendation 43 of the Report of the Review Committee.

 

Sub-item (4) allows the HIC to provide information to the Director, a Committee, the Determining Officer or any person assisting those offices in the exercise of their powers.

 

Item 68 - Definitions

 

Provides various definitions for Part 2 of Schedule 1.