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Health Legislation Amendment Bill (No. 1) 2003

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2002-2003

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

SENATE

 

 

 

 

 

 

 

 

HEALTH LEGISLATION AMENDMENT BILL (No. 1) 2003

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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

Senator the Honourable Kay Patterson)  

 



HEALTH LEGISLATION AMENDMENT BILL (No. 1) 2003

 

OUTLINE

 

 

This bill contains amendments relating to two areas in the Health portfolio.

 

AMENDMENTS TO THE HEALTH AND OTHER SERVICES COMPENSATION SCHEME RELATING TO ASCERTAINING AN AMOUNT OF COMPENSATION

 

Under the Health and Others Services (Compensation) Act 1995 , (the HOSC Act) and the Health and Other Services (Compensation) Care Charges Act 1995 (the Charges Act), the Commonwealth is able to recover an amount equivalent to the medicare and nursing home/residential care benefits that have been provided in relation to a compensable injury.

 

The administrative program underlying these Acts is the Compensation Recoveries Program (the Program) managed by the Health Insurance Commission (the HIC).

 

The purpose of Schedule 1 of this Bill is to clarify the circumstances in the HOSC Act under which medicare and residential care benefits paid to compensation claimants can be recovered.  The Federal Court recently ruled that because the exact amount of compensation payable was not fixed or ascertainable at the time of the judgement or settlement, the HOSC Act did not apply.  The proposed amendments will ensure that the Commonwealth can identify and recover the debt owed to it by successful claimants under those circumstances.

 

The principal amendments are to the HOSC Act.  The bill also makes consequential amendments to the Charges Act.

 

The amendments are based on the premise that the HOSC Act will apply to judgements or settlement in compensation cases regardless of whether the amount of money is fixed at the time of the judgement or settlement or ascertainable at a later date.

 

AMENDMENTS TO HEALTH INSURANCE ACT 1973 RELATING TO THE AUSTRALIAN CHILDHOOD IMMUNISATION REGISTER

 

The Bill makes changes to the legislative provisions covering the Australian Childhood Immunisation Register. The main change relates to an expansion of the Register, to cover previous foreign immunisation encounters of children where these are notified to the Health Insurance Commission by Australian recognised immunisation providers or prescribed bodies.  This change means that the Register will contain a complete immunisation record for more children.  The Bill also updates two of the definitions underpinning the scheme, those relating to the “Australian Procedures Handbook” and “vaccine preventable disease”. 

 

 

FINANCIAL IMPACT STATEMENT

 

The financial impact of the amendments relating to the Australian Childhood Immunisation Register is small (less than $100,000 per year in administrative costs). The HOSC Act and Charges Act amendments will have no significant financial impact.

 



 

 

HEALTH LEGISLATION AMENDMENT BILL (No. 1) 2003

 

 

NOTES ON CLAUSES

 

 

 

Clause 1 - Short title

 

This is a formal provision that specifies the short title of the Bill.

 

Clause 2 - Commencement

 

Clause 2 provides the commencement provisions for the Act.   Sections 1-3 and Schedule 1 of the Bill commence on the day it receives Royal Assent.

 

The Schedule 2 amendments have a delayed commencement (90 days after Royal Assent) to give the Health Insurance Commission time to make the necessary changes to its administrative systems.

 

Clause 3 - Schedule(s)

 

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

 
 
Schedule 1 Part 1 - Amendment of the HeaLTH AND OTHER SERVICES (COMPENSATION) aCT 1995
 
Item 1
 
This item inserts paragraph (c) in subsection 3(4) to extend the time period beyond the judgement or settlement date, under which an amount of compensation can be determined or ascertained. 

 

Item 2
 
This item inserts paragraph (4A) into subsection 3(4) to allow that an amount of compensation is fixed at the time it is ascertained.  That time of ascertaining can be after the date of a judgement or settlement decision.  

 

Item 3
 

This item extends the time period in paragraph 8(1)(a) where an amount of compensation can be ascertained to include a period later than when the judgement or settlement is made.

 

Item 4
 
This item extends the time frame in paragraph 8(6)(c) to exclude circumstances where subsections (7) and (8) and section 37 do not apply if the amount of compensation was fixed or ascertainable at a period after judgement or settlement and during the time of a bulk payment agreement being entered into.
 
Item 5
 
This item extends the time frame in paragraph 8(7)(a) for the judgement or settlement to include the period when an amount of compensation is fixed or ascertainable to not apply to claimants who have entered into a bulk payment agreement during that period.

 

Item 6

 

This item extends the time period in paragraph 8(8) to extend the period from the judgement or settlement to include a period where the amount of compensation is fixed or ascertainable to not effect the validity of a payment of money pursuant to a notice under section 24.

 

Item 7

 

This item extends the capacity of paragraph 10(1)(a) to ascertain an amount of compensation at a later period to the judgement or settlement decision in relation to the recovery of past payments of nursing home benefits or residential care subsidies.

 

Item 8

 

This item extends the time frame in paragraph 10(6)(c) for the judgement or settlement to include the period when an amount of compensation is fixed or ascertainable to not apply to claimants who have entered into a bulk payment agreement.

 

Item 9

 

This item extends the time frame in paragraph 10(7)(a) for the judgement or settlement to include the period when an amount of compensation is fixed or ascertainable to not apply to claimants who have entered into a bulk payment agreement.

 

Item 10

 

This item extends the time period in paragraph 10(8) from the judgement or settlement to include a period where the amount of compensation is fixed or ascertainable to not effect the validity of a payment of money pursuant to a notice under section 24. This application applies to the recovery of past payments of nursing home benefits or residential care subsidies.

 

Item 11

 

This item extends the time period in paragraph 18(4)(a) for the judgement or settlement to include the period when an amount of compensation is fixed or ascertainable at a later period in relation allowing an extension of time for a claimant to complete a statement of past benefits.

 

Item 12

 

This item extends the time period in paragraph 18(4)(b) for the judgement or settlement to include the period when an amount of compensation is fixed or ascertainable in relation to the period of time being extended where the Managing Director had not given a notice under section 21, in respect of the claim for compensation, during the 6 months preceding the judgement or settlement.

 

Item 13

 

This item rewords paragraph 18(7)(b) to enable an extension of the time period for the judgement or settlement to include the period when an amount of compensation is fixed or ascertainable when the managing Director must give a notice for the purposes of subsection 6.

 

Item 14

 

This item extends the time period in paragraph 18(7)(c) that a claimant has from the date of the judgement or settlement to include the period when an amount of compensation is fixed or ascertainable to advise which services on the notice of past benefits were not rendered in the course of treatment for the specific injury and that the claimant’s failure to notify was reasonable in the circumstances.

 

Item 15

 

This item extends the time period in subsection 21(5) for the judgement or settlement to include the period when an amount of compensation is fixed or ascertainable in relation to the notice of past benefits being regarded as a notice of charge under section 24.

 

Item 16

 

This item extends the time frame in subsection 21(5) for the judgement or settlement to include the period when an amount of compensation is fixed or ascertainable in relation to the notice of past benefits being regarded as a notice of charge under section 24.

 

Item 17

 

This item extends the time period in paragraph 22(1)(b) for the Managing Director has within 6 months prior to the settlement or the day on which an amount of compensation was fixed under the settlement, to allow a settlement to be made.

 

Item 18

 

This item provides in paragraph 23(3)(e) for a situation where the notifiable person must notify the Commission of a judgement or settlement where an amount of compensation may not be ascertainable at the time of the judgement or settlement.

 



Item 19

 

This item provides a cross reference to new subsection (3A) at the bottom at paragraph 23(3)(f).

 

Item 20

 

This item provides in subsection 23(3) a new paragraph (3A) allowing for the notifiable person to notify the Commission of an amount of compensation, when that amount was ascertained, if that amount was ascertained at a date later then at the time of the judgement or settlement.

 

Item 21

 

This item amends subsection 23(4) to include the new provision (3A) at Item 20.  It includes the provision to include amounts of compensation that are ascertained after the judgement or settlement.

 

Item 22

 

This item amends subsection 23(5) to include the new provision (3A) at Item 20.  It includes the provision to include amounts of compensation that are ascertained after the judgement or settlement.

 

Item 23

 

This item amends subsection 23(6) to include the new provision (3A) at Item 20.  It includes the provision to include amounts of compensation that are ascertained after the judgement or settlement.

 

Item 24

 

This item extends the time period in paragraph 23A(1)(a) for the judgement or settlement to include the period when an amount of compensation is fixed or ascertainable in relation to a notice when no relevant past benefits apply to the compensation claim.

 

Item 25

 

This item extends the coverage of paragraph 23A(1)(b) to include the new provision at subsection 3(A) when the Commission has received a notice from the notifiable person in relation to the judgement or settlement.

 

Items 26

 

This item extends the time frame in paragraph 23A(1)(c) for the judgement or settlement to include the period when an amount of compensation is fixed or ascertainable where no relevant past benefits apply and the Managing Director had not given the notifiable person a notice under section 21.

 

Item 27

 

This item applies to subparagraphs 23A(1)(d)(i) and (ii) where the Managing Director had not given the notifiable person a notice under section 21 before the start of the 6 month period or where the Managing Director had given the notice but there the Commonwealth had not paid any eligible benefits and where an amount of compensation was fixed at the time of judgement or settlement.

 

Item 28

 

This item extends the time period in paragraphs 23A(2)(a) and (b) for the judgement or settlement to include the period when an amount of compensation is fixed or ascertainable where no eligible benefits had been paid to the claimant.

 

Item 29

 

This item extends the time period in paragraph 24(4)(a) for the judgement or settlement to include the period where an amount of compensation is fixed or ascertainable where the Managing Director had not given a notice under section 21.

 

Item 30

 

This item extends the time period in paragraph 24(6) for the judgement or settlement to include the period when an amount of compensation is fixed or ascertainable for a notice under section 21 to become a notice of charge.

 

Item 31

 

This item extends the time period in paragraph 32(1)(b) for the judgement or settlement to include the period when an amount of compensation is fixed or ascertainable to make it an offence for the insurer or compensation payer to withhold from the compensable person an amount set out in the notice under paragraph 21(2)(b).

 

Item 32

 

This item extends the time frame in paragraph 33B(1)(a) for the judgement or settlement to include the period when an amount of compensation is fixed or ascertainable for an advance payment to be made where a notice under section 21 had not been given.

 

Item 33

 

This item rewords subsection 35(2) to exclude the operation of Divisions 1 and 2 in relation to an amount of compensation fixed under a judgement or settlement if the amount was fixed prior to the start of the bulk billing agreement.

 

Item 34

 

This item extends the time period in paragraph 36(1)(c) for the judgement or settlement to include the period when an amount of compensation is fixed or ascertainable at a later period than at judgement or settlement where a settlement can be made during a bulk billing agreement.

 

Item 35

 

This item extends the time frame in paragraph 36(3)(a) for the judgement or settlement to include the period when an amount of compensation is fixed or ascertainable at a later period than at judgement or settlement before the bulk billing agreement was made.

 

Item 36

 

This item extends the time frame in paragraph 36(3)(c) for the judgement or settlement to include the period when an amount of compensation is fixed under a further judgement or settlement referred to in subsection 36(1) during periods of a bulk billing agreement.

 

Item 37

 

This item extends the time frame in paragraph 36(4)(a) for the judgement or settlement to include the period when an amount of compensation is fixed or ascertainable during periods of a bulk billing agreement.

 

Item 38

 

This item extends the time frame in subsection 36(5) for the judgement or settlement to include the period when an amount of compensation is fixed or ascertainable to not effect the validity of a payment of money pursuant to a notice under section 24 or 25 if the payment occurred before the amount of compensation was fixed or becomes ascertainable.

 

Item 39

 

This is an application provision.  The amendments will apply only to matters where a judgement or settlement occurs after the amendments commence.

 

 

 

 

 



Schedule 1 - Part 2 - Amendment of the HeaLTH AND OTHER SERVICES (COMPENSATION) CARE CHARGES aCT 1995

 

 

Item 40

 

This item extends the provisions of paragraph 6(1)(a) to apply to a charge on compensation amounts in respect of past payments for medicare benefits regardless of whether the amount was fixed at the time of judgement or settlement or was fixed or ascertainable at a later period.

 

Item 41

 

This item extends the time period in paragraph 6(6)(c) for the judgement or settlement to include the period when an amount of compensation is fixed or ascertainable to not apply to claimants who have entered into a bulk payment agreement prior to that date.

 

Item 42

 

This item extends the time period in paragraph 6(7)(a) for the judgement or settlement to include the period when an amount of compensation, is fixed or ascertainable at a later period than judgement or settlement, to not apply to claimants who have entered into a bulk payment agreement prior to that period.

 

Item 43

 

This item clarifies subsection 6(8) to refer to an amount of compensation in respect of a past medicare benefit, where compensation was fixed at judgement or settlement rather than at a judgement or settlement that may not have fixed the amount of compensation.  The fixing of the amount of compensation does not affect the validity of a payment of money pursuant to a notice under section 24 of the HOSC Act if the payment occurred before the amount was fixed.

 

Item 44

 

This item provides for paragraph 8(1)(a) to apply to a charge on compensation amounts in respect of past payments of nursing home benefits or residential care subsidy regardless of whether the amount was fixed at the time of judgement or settlement or was fixed or ascertainable at a later period.

 

Item 45

 

This item extends the time period in paragraph 8(6)(c) for the judgement or settlement to include the period when an amount of compensation is fixed or ascertainable to not apply to claimants who have entered into a bulk payment agreement prior to that period.

 

Item 46

 

This item extends the time period in paragraph 8(7)(a) for the judgement or settlement to include the period when an amount of compensation that apply to nursing home benefit or residential care subsidy, is fixed or ascertainable at a later period than judgement or settlement, to not apply to claimants who have entered into a bulk payment agreement prior to that period.

 

 

Item 47

 

This item clarifies subsection 8(8) to refer to an amount of compensation in respect of a past nursing home or residential care subsidy, where compensation was fixed at judgement or settlement rather than at a judgement or settlement that may not have fixed the amount of compensation.  The fixing of the amount of compensation does not affect the validity of a payment of money pursuant to a notice under section 24 of the HOSC Act if the payment occurred before the amount was fixed.

 

Item 48

 

This item provides for the amendments made to this Schedule to apply to a claim for compensation where a judgement or settlement has been made after the commencement of this item.

 



Schedule 2 - Amendments relating to the Australian Childhood Immunisation Register : Health Insurance Act 1973

 

Item 1 inserts a new definition, that of “Australian immunisation encounter”, in the definitions provision of Part IVA, section 46A.  This definition is necessary to distinguish immunisation encounters which occur within Australia, from those which occur outside Australia.  

 

Items 2 and 3 repeal the section 46A definition of “Australian Immunisation Procedures Handbook”, and substitute a definition of “Australian Immunisation Handbook”.  These changes reflect the change in title of the handbook and in Commonwealth publication practices (under which publication now may be privately sourced). 

 

Item 4 inserts a new definition, of “foreign immunisation encounter”, in section 46A. The definition links to the new definition of “vaccine preventable disease”.

 

Item 5 adds a new provision, to the section 46A definition of “immunisation”, referring to vaccines administered outside Australia.  This is necessary, to support the expansion of the Part IVA provisions to cover foreign immunisation encounters, as the vaccines administered overseas will not be covered by the other limbs of the definition of “immunisation” (since they will not be vaccines that are either registered or approved under, or exempt goods within the meaning of, the Therapeutic Goods Act 1989 ).

 

Item 6 repeals the section 46A definition of “immunisation encounter”.  This definition is replaced by the new definitions, “Australian immunisation encounter” and “foreign immunisation encounter” (Items 1 and 4, above).

 

Item 7 repeals the definition of “information”, in section 46A, and substitutes a new definition of the term, which contemplates both Australian and foreign immunisation encounters.  The meaning of “information” is now expanded in the new definitions of “information relating to a child’s Australian immunisation encounter” and “information relating to a child’s foreign immunisation encounter” (see Items 8 and 9, below).

 

Item 8 inserts a new definition of “information relating to a child’s Australian immunisation encounter”, which mirrors the inclusions and exclusions set out in the previous section 46A definition of “information”.

 



Item 9 inserts a new definition of “information relating to a child’s foreign immunisation encounter”.  Such information can include an interpretation of information relating to the foreign immunisation encounter, where such interpretation is provided by the Australian-based recognised immunisation provider or prescribed body who is notifying details of the foreign immunisation encounter to the Health Insurance Commission. (Such interpretative information, for example, might relate to the equivalence of the overseas-administered vaccine to a vaccine ordinarily administered in Australia, as a registered, approved or exempt vaccine under the Therapeutic Goods Act 1989 .)

 

Item 10 repeals the definition of “vaccine preventable disease” and substitutes a more generic definition of the term, referring to the diseases listed as “vaccine preventable diseases” in the Australian Immunisation Handbook.  The previous provision listed the relevant diseases within the section 46A definition itself (for example, diphtheria, measles, mumps).  The new provision will more readily accommodate changes, from time to time, in the Australian schedule of childhood immunisations.

 

Item 11 repeals paragraph 46B(b) and replaces it with a new paragraph that refers to both Australian immunisation encounters and foreign immunisation encounters, where these are notified to the Health Insurance Commission by recognised immunisation providers or prescribed bodies.  Section 46B sets out the functions of the Health Insurance Commission in relation to the Australian Childhood Immunisation Register, and paragraph 46B(b) relates to the recording of immunisation encounters on that Register.

 

Item 12 is a minor change to sub-paragraph 46B(d)(iv), consequential on the expansion of the Register to include foreign immunisation encounters.  This change clarifies that payments covering notifiers’ administrative costs are only to be made in respect of the notification of Australian immunisation encounters (not also in respect of the notification of previous foreign immunisation encounters).  Most notifications of foreign immunisation encounters are anticipated to be made in conjunction with the notification of an Australian immunisation encounter (where the Australian immunisation provider has taken a history of past immunisations administered by others).