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Thursday, 21 October 2021
Page: -1


Mr TUDGE (AstonMinister for Education and Youth) (10:14): I move:

That this bill be now read a second time.

Australians have access to a world-class health system, and this has never been more evident than during the COVID-19 pandemic. Our health system's response has been second to none. The commitment and dedication of our healthcare practitioners to protecting the lives and health of all Australians has been unwavering. And for this I thank them.

Medicare, including the Medicare Benefits Schedule, or MBS, and the Pharmaceutical Benefits Scheme, or PBS, continue to provide Australians access to free hospital care, and more affordable health care and medicines, and the Child Dental Benefits Scheme, or CDBS, provides access to dental services to children.

Australian government expenditure on the MBS, PBS and CDBS is projected to be nearly $44 billion in 2021-22.

As stewards of this investment in the health of Australians, the government is committed to protecting the integrity and financial viability of Medicare, ensuring that Australians may continue to have access to our world-class health system.

While the vast majority of healthcare providers do the right thing when claiming Medicare benefits, there is unfortunately a small number that don't. In most cases, these are a result of mistakes and administrative errors, but in some cases it is as a result of incorrect or inappropriate claiming and, at worst, fraud.

The department supports practitioners, healthcare organisations and peak bodies to correctly claim health payments with a clear focus on education, engagement and consultation. However, rigorous, effective health practitioner compliance is vital to protecting the financial integrity of Medicare and identifying healthcare practitioners that are not doing the right thing.

Historically, compliance activities have been concentrated on the behaviour of individual practitioners, on the principle that practitioners are ultimately responsible for what is billed under their Medicare provider numbers. While this principle remains critical, the government seeks to adapt its compliance arrangements to an environment where corporate entities employing or otherwise engaging practitioners are increasingly involved in, and influence the provision of, healthcare services.

The primary intent of the bill is to both strengthen the compliance powers of the Professional Services Review, or the PSR, and add a degree of flexibility to the PSR's ability to address the inappropriate practice of corporate entities.

This bill is in four parts: part 1 amends the PSR scheme; part 2 certain debt recovery decisions; part 3 miscellaneous debt recovery arrangements; and part 4 the giving of false or misleading information.

The PSR addresses the behaviour of practitioners that may have engaged in inappropriate practice through review by the director or by committees comprised of professional peers of the person under review. As an alternative to lengthy, resource-intensive review by a committee, the director may enter into written agreements with practitioners who are prepared to acknowledge their inappropriate practice and agree to specified actions.

The PSR may also review the practice of corporate entities that have knowingly, recklessly or negligently caused or permitted their practitioners to engage in inappropriate practice. Currently, such conduct by a corporate entity may be reviewed only by a PSR committee. The bill amends section 92, which authorises the making of agreements with the director, to ensure all persons under review have the opportunity to negotiate an agreement.

There can be significant consequences for a company referred to a PSR committee, including publication of findings. However, agreements made under section 92 are confidential and this encourages cooperation.

In essence, the bill extends provisions for written agreements, currently applicable only to individual practitioners, to include:

(a) a practitioner who personally renders or initiates services;

(b) an individual (who may be a practitioner) who employs or otherwise engages practitioners;

(c) an officer (who may be a practitioner) of a body corporate which employs or otherwise engages practitioners; or

(d) a body corporate which employs or otherwise engages practitioners.

The new provisions allow the director to come to agreement with a person under review, including a corporate entity, who acknowledges inappropriate practice and agrees to specified actions, including reprimand by the director and repayment of Medicare or dental benefits.

The specified actions for corporate entities may include:

repayment of benefits paid for services that were rendered or initiated during the review period;

reprimand by the director;

counselling by the director; and

a requirement for the person under review to provide remediating education to persons employed or engaged.

To be clear, a corporate entity's acknowledgment of inappropriate practice has no bearing on the practitioners it employs or otherwise engages. Individual practitioners will not be named in agreements with corporations or other persons who employ or otherwise engage practitioners (and such agreements are themselves confidential).

In entering into an agreement with the director, a corporate entity or other person who employs or otherwise engages practitioners would merely acknowledge that they are engaged in inappropriate practice by knowingly, recklessly or negligently causing or permitting one or more of the practitioners to engage in inappropriate practice. That acknowledgement is not binding on any individual practitioner nor are any findings made in relation to individual practitioners.

If an individual practitioner was the subject of a separate referral, the practitioner would have the option to seek an agreement with the director or to proceed to review by a committee. The acknowledgement by the person who employed or otherwise engaged the practitioner would not be put before the committee and a finding of inappropriate practice could be made only following an examination of an appropriate sample of clinical records and evidence from the practitioner and any other witnesses.

As a consequence of the new provisions relating to corporate entities, and to maintain its peer-review function, the bill adjusts the composition of the PSR Determining Authority so that it may include additional members of the same profession as the relevant practitioners engaged or employed by the same person under review.

The government's commitment to improved compliance is embodied in new sanctions against behaviour that stymies the government's ability to review inappropriate practice and to recover Commonwealth debts created by agreements between persons under review and the director of the PSR.

The bill creates an exception to the general rule that section 92 agreements are confidential by giving the director the discretion to publish details of an agreement, where the person under review has not fulfilled their obligations. The person under review will have an opportunity to make submissions about the issue of their compliance or otherwise before the director is notified. To further protect the integrity of the scheme against persons, particularly corporate entities, reneging on agreed terms, the government will have the power to garnishee bank accounts, bringing repayments under section 92 agreements in line with other debt recovery provisions currently permitted under the Health Insurance Act 1973. Garnishee notices will only be issued if persons under review do not promptly engage with the department on repayments o breach an agreement to pay by instalments.

Access to information is essential for the PSR to carry out reviews. The bill introduces offences for persons under review that fail to appear at committee hearings or fail to give evidence or answer questions where required by committees. Maximum penalties for noncompliance will be fines of 150 penalty units, or $33,300 at current rates, for corporate entities and 30 units ($6,660) for non-practitioner individuals.

The bill also provides for offences where a person fails to respond to a notice to provide documents to the director or to a PSR committee, with fines of up to 30 penalty units. The PSR will also be able to take court action seeking a civil penalty of up to 30 penalty units (currently $6,660) for each day that a corporate entity contravenes the act by failing to respond to a notice to provide documents. Further, the director will be able to apply for court orders to comply with notices.

Following recent observations of the Federal Court regarding jurisdictional fact, the bill also clarifies that a referral to the PSR may be made where it merely appears that there is the possibility that a person may have engaged in inappropriate practice in the provision of services. Under the PSR scheme, it is ultimately up to the PSR to investigate whether a person has provided services, and whether the conduct of the person under review in relation to the rendering or initiation of those services amounted to inappropriate practice.

The bill also addresses inconsistencies arising from the introduction of legislation in 2018 to improve debt recovery powers under the Health Insurance Act 1973, National Health Act 1953 and Dental Benefits Act 2008. The bill introduces amendments clarifying, as follows:

the application of debt recovery provisions;

that interest on Commonwealth debt is recoverable;

use of financial information powers;

recovery from estates; and

that administrative penalties for debts under the Shared Debt Recovery Scheme arise if the total debt, whether comprised of one or more services, exceeds $2,500, rather than when a service exceeds $2,500.

Finally, the bill amends the National Health Act and the Dental Benefits Act to mirror recent changes to the Health Insurance Act. The December 2020 amendments made clear that the Commonwealth can recover incorrect payments made as a result of the giving of false or misleading information. I commend this bill to the House.

Debate adjourned.