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Health Insurance Amendment (General Practitioners and Quality Assurance) Bill 2020



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ISSN 1328-8091

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BILLS DIGEST NO. 96, 2019-20 11 MAY 2020

Health Insurance Amendment (General Practitioners and Quality Assurance) Bill 2020 Jennifer Phillips Social Policy Section

Contents

Purpose of the Bill ........................................................... 2

Structure of the Bill ......................................................... 2

Background ..................................................................... 2

Specialist general practitioners ................................... 2

Registration and access to Medicare rebates ........... 3 National Registration and Accreditation Scheme ....... 4 Committee consideration ................................................ 4

Senate Standing Committee for Selection of Bills ...... 4 Senate Standing Committee for the Scrutiny of Bills .............................................................................. 5

Policy position of non-government parties/independents...................................................... 5

Position of major interest groups..................................... 5

Financial implications ...................................................... 5

Statement of Compatibility with Human Rights................ 5

Parliamentary Joint Committee on Human Rights ..... 6 Key issues and provisions ................................................ 6

Schedule 1—definitions and repeals .......................... 6

Schedule 2—Quality assurance confidentiality .......... 7

Date introduced: 27 February 2020

House: House of Representatives

Portfolio: Health

Commencement: Sections 1 to 3, on Royal Assent. Schedule 1, on a single day to be fixed by Proclamation. If the provisions do not commence within the period of 12 months beginning on the day this Act receives the Royal Assent, they commence the day after the end of that period. Schedule 2 on the day after Royal Assent.

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through the Australian Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the Federal Register of Legislation website.

All hyperlinks in this Bills Digest are correct as at May 2020.

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Health Insurance Amendment (General Practitioners and Quality Assurance) Bill 2020 2

Purpose of the Bill The purpose of the Health Insurance Amendment (General Practitioners and Quality Assurance) Bill 2020 (the Bill) is to amend the Health Insurance Act 1973 (HIA) to simplify administrative processes for recognition as a specialist general practitioner (GP) for Medicare purposes; align Medicare eligibility for GPs with the National Registration and Accreditation Scheme (NRAS) registration requirements; and replace references to repealed legislation in relation to the definition of a quality assurance activity under the Qualified Privilege Scheme.1 The Bill will also repeal the Health Practitioner Regulation (Consequential Amendments) Act 2010 (2010 Consequential Amendments Act).

Structure of the Bill The Bill contains two Schedules:

• Schedule 1 amends the HIA to:

- provide a new definition of GP as a medical practitioner who is registered under the Health Practitioner Regulation National Law Act 2009 (Qld) (National Law) in the speciality of general practice, making them eligible for higher Medicare rebates

- align the definitions for medical practitioner, midwife, nurse practitioner, optometrist, osteopath, chiropractor, dental practitioner, physiotherapist, and podiatrist with the National Law.

Part 3 of Schedule 1 provides for the repeal of the 2010 Consequential Amendments Act which will require consequential amendments to the Health Insurance Regulations 2018 and the Health Insurance (General Medical Services Table) Regulations (No. 1) 2020.2

• Schedule 2 amends the definition of a ‘quality assurance activity’ in Part VC of the HIA, by removing the reference to the Health Care (Appropriation) Act 1998, which was repealed on 1 July 2009, and replacing it with the reference to the Federal Financial Relations Act 2009 (FFRA).

Background

Specialist general practitioners Prior to 1989 formal training for general practice was voluntary, and it remained that medical practitioners who were not specialists were, by default, GPs.3 In 1989 the Government introduced vocational registration to recognise general practice as a discipline in its own right. Between 1989 and 1995, medical practitioners already practicing in general practice who met the eligibility criteria could apply to be grandfathered on to the Vocational Register of General Practitioners.4 Since 1996, under section 19AA of the HIA, doctors who are permanent residents or citizens of Australia must become vocationally recognised to receive a Medicare provider number.5 The introduction of the vocational register created two groups of GPs, those who are vocationally

1. Explanatory Memorandum, Health Insurance Amendment (General Practitioners and Quality Assurance) Bill 2020, p. 1. 2. The Explanatory Memorandum refers to the Health Insurance (General Medical Services Table) Regulations 2019, these Regulations are remade annually. The Health Insurance (General Medical Services Table) Regulations 2019 were repealed by the Health Insurance (General Medical Services Table) Regulations (No. 1) 2020.

3. R Jolly, Health Practitioner Regulation (Consequential Amendments) Bill 2010, Bills digest, 132, 2009-10, Parliamentary Library, Canberra, 2010, p. 11. 4. Australian Medical Association (AMA), ‘AMA Policy on Non-Vocationally Registered General Practitioners - 2013’, AMA, 2013, p. 1. 5. Department of Health (DoH), ‘Section 19AA’, DoH website, updated 7 May 2020.

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Health Insurance Amendment (General Practitioners and Quality Assurance) Bill 2020 3

registered and those who are not, with vocationally registered GPs being eligible for higher Medicare rebates than those who are not.6

Vocational recognition is achieved by attaining Fellowship through either the Royal Australian College of General Practitioners (RACGP) or the Australian College of Rural and Remote Medicine (ACRRM).

Non-vocationally registered GPs are primarily those who qualified as a medical practitioner prior to 1996 and who have not been included on the vocational register. Prior to 1 January 2019, there were some programs in place, known as ‘Other Medical Practitioner’ (OMPs) programs, which allowed medical practitioners not holding recognition by a specialist college to receive higher Medicare rebates; however, under measures announced in the Stronger Rural Health Strategy - Streamlining General Practice Training as part of the 2018-19 Budget, these programs have closed to new entrants and will be phased out by 30 June 2023.7 According to the Department of Health, the ability to receive higher rebates without specialist qualifications has removed the incentive for GPs with specialist qualifications to formally register their specialty with the Medical Board of Australia. The Department estimates up to 7,700 GPs may be in this position.8 Once passed, the effect of the amendments in the Bill will be to require these GPs to register as a specialist GP to continue to access the higher Medicare rebate.

To ensure that non-vocationally registered GPs who are currently eligible for higher rebates are not disadvantaged by this Bill, grandfathering and transition arrangements will be made in the Health Insurance Regulations.9 Consequential amendments to the Health Insurance Regulations are intended to take effect at the same time as the commencement of the amendments in Schedule 1 to this Act.10

The Bill will not impact on Medicare eligibility for international medical graduates or those Australian-trained graduates currently on a workforce program or undertaking training with either the RACGP or the ACRRM.11

Registration and access to Medicare rebates Currently, under the HIA, a GP who has attained Fellowship needs to apply to both Australian Health Practitioner Regulation Agency (Ahpra) (through the Medical Board of Australia) and to Services Australia (Medicare) for recognition as a specialist and to receive the higher Medicare rebate amount.12 The Bill seeks to remove this duplicative process for GPs by allowing Services Australia, through an automated data exchange, to utilise national registration data held by Ahpra to confirm a GP’s eligibility for higher Medicare rebates.13 Further, as outlined in the Explanatory Memorandum to the Bill, Services Australia is also required to liaise with the RACGP or ACRRM to

6. On 1 July 2018, a new Medicare Benefits Schedule (MBS) rebate structure for GPs was introduced for non-VR doctors. Under this structure non-VR doctors can claim 80 per cent of the equivalent VR GP item for services. 7. DoH, ‘Other Medical Practitioners (OMPs) programs’, DoH website, last updated 11 December 2018; Australian Government, Budget measures: budget paper no.2: 2018-19, pp. 106-107. 8. DoH, ‘Questions and answers: Health Insurance Amendment (General Practitioners and Quality Assurance) Bill 2020’, DoH

website, n.d. 9. M Coulton (Minister for Regional Health, Regional Communications and Local Government), ‘Second reading speech: Health Insurance Amendment (General Practitioners and Quality Assurance) Bill 2020’, House of Representatives, Debates,

27 February 2020, p. 1945. 10. Explanatory Memorandum, op. cit., p. 6. 11. Coulton, op. cit. 12. Ibid. 13. Ibid.

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Health Insurance Amendment (General Practitioners and Quality Assurance) Bill 2020 4

confirm that GPs hold valid fellowship with their college, are a specialist GP and are compliant with Continuing Professional Development (CPD) requirements.14 The Bill will remove this requirement (see National Registration and Accreditation Scheme section for further detail).

National Registration and Accreditation Scheme In 2008, the Council of Australian Governments (COAG) signed the Intergovernmental Agreement for a National Registration and Accreditation Scheme (NRAS) for the health professions. The NRAS ‘ensures that all regulated health professionals are registered against consistent, high quality, national professional standards and can practise across state and territory borders without having to re-register in each jurisdiction’.15

The NRAS commenced on 1 July 2010 with the enactment of the Health Practitioner Regulation National Law Act 2009 (the National Law) in all states and territories except Western Australia, which joined the NRAS on 18 October 2010. While referred to as the National Law, the NRAS is not a Commonwealth law. As the Commonwealth does not have a clear power to regulate all aspects of health professionals, the legislative framework for implementation of the NRAS was enacted by the state and territory legislatures. Each state and territory has its own variant of the National Law.16

Under the NRAS, the Medical Board of Australia (MBA) and Ahpra are responsible for maintaining a public register of health practitioners regulated under the NRAS. In addition, under the National Law, all specialist practitioners are required to make an annual declaration to the Ahpra to state they are compliant with mandatory CPD requirements. The amendments to the HIA will allow Services Australia to use this declaration to confirm specialist GPs are eligible for higher Medicare rebates, removing the need to liaise with the GP and RACGP or ACRRM. This change will align the requirements for GPs to access higher Medicare rebates with those of other specialties.17 As outlined in the Explanatory Memorandum:

This Ahpra data provides information on those practitioners who hold registration in the specialty of general practice with the MBA and will be used to determine a GP’s access to Medicare rebates. The Bill therefore provides a new definition of GP as a medical practitioner who is registered under the National Law in the specialty of general practice or a medical practitioner prescribed by the [Health Insurance Regulations]. As a consequence of the new definition of a ‘general practitioner’ provided in the Bill, the Chief Executive Medicare will no longer be required to make determinations in relation to a GP, simplifying processes for specialist recognition as a general practitioner for Medicare purposes.

18

Committee consideration

Senate Standing Committee for Selection of Bills At its meeting of 27 February 2020, the Selection of Bills Committee determined that it would defer consideration of the Bill until its next meeting.19

14. Explanatory Memorandum, op. cit., p. 3. 15. Council of Australian Governments (COAG), ‘National Registration and Accreditation Scheme for health professions’, COAG website. 16. Australian Health Practitioner Regulation Agency (AHPRA), ‘Legislation’, AHPRA and National Boards website,

5 February 2020. 17. Explanatory Memorandum, op. cit., p. 3. 18. Ibid., pp. 1-2. 19. Senate Standing Committee for Selection of Bills, Report, 3, 2020, The Senate, Canberra, 27 February 2020.

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Senate Standing Committee for the Scrutiny of Bills In its report on 2 April 2020, the Senate Standing Committee for the Scrutiny of Bills (the Committee) expressed concern regarding item 2 in Schedule 2 of the Bill relating to the declaration of quality assurance activities under section 124X of the HIA.20 The proposed item will allow retrospective validation of declarations made by the Minister on or after 1 July 2009 where at the time the declaration was made, the activity was a quality assurance activity within the meaning of the amended subsection 124W(1).

The Committee highlighted a long-standing concern regarding provisions that have the effect of applying retrospectively as legislation with such provisions will, or might, have a detrimental effect on individuals. The Committee noted that while the Explanatory Memorandum provided an explanation for the inclusion of retrospectivity it ‘remains unclear to the committee whether the retrospective validation of declarations will, or may, have a detrimental effect on any persons’.21 As such, the Committee requested that the Minister provide more detailed advice as to ‘the necessity and appropriateness of retrospectively validating declarations made by the Minister under section 124X’.22 At the time of writing, further advice had not been provided.

Policy position of non-government parties/independents At the time of writing, non-government parties/independents had made no comment on the Bill.

Position of major interest groups In a news article published on their website, the Australian Medical Association (AMA) expressed support for the Bill, noting that it would cut red tape for GPs.23

Financial implications The financial impact of the Bill to the Commonwealth includes changes to Services Australia payment systems at cost of $1.4 million over two years. Funding for this change was announced in the 2018-19 Budget as part of the Stronger Rural Health Strategy. The amendment to the statutory protective framework for quality assurance activities in Part VC of the HIA is cost-neutral.24

Statement of Compatibility with Human Rights As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.25

20. Senate Standing Committee for the Scrutiny of Bills, Scrutiny digest, 4, 2020, The Senate, Canberra, 2 April 2020, pp. 8-9. 21. Ibid., p. 9. 22. Ibid. 23. Australian Medical Association (AMA), ‘New Bill will cut red tape for GPs’, AMA website, 27 February 2020. 24. Explanatory Memorandum, op. cit., p. 2. 25. The Statement of Compatibility with Human Rights can be found at pages 3-5 of the Explanatory Memorandum to the Bill.

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Parliamentary Joint Committee on Human Rights In its report on 9 April 2020, the Parliamentary Joint Committee on Human Rights noted it had no comment on the Bill, as the Bill does not engage, or only marginally engages, human rights; promotes human rights; and/or permissibly limits human rights.26

Key issues and provisions

Schedule 1—definitions and repeals Schedule 1 of the Bill primarily contains definition changes and minor amendments, as well as the repeal of redundant sections of the HIA.

Items 1-3 amend subsection 3(1) of the HIA, to ensure definitions of certain health practitioners are consistent with definitions of health practitioners regulated under the National Law.27 For clarity, a new definition of National Law is inserted into subsection 3(1) of the HIA by item 7 of Schedule 1 to the Bill, being:

(a) for a State or Territory (other than Western Australia)—the Health Practitioner Regulation National Law set out in the Schedule to the Health Practitioner Regulation National Law Act 2009 (Qld), as it applies (with or without modification) as a law of the State or Territory; or

(b) for Western Australia—the Health Practitioner Regulation National Law (WA) Act 2010 (WA), so far as that Act corresponds to the Health Practitioner Regulation National Law set out in the Schedule to the Health Practitioner Regulation National Law Act 2009 (Qld).

Item 4 repeals the current definition of general practitioner in subsection 3(1) of the HIA and substitutes a new definition which makes reference to registration under the National Law. Paragraph (b) of the definition is intended to capture non-specialist GPs who are currently eligible for higher Medicare rebates by virtue of being on the Vocational Register. Grandfathering arrangements for this group of practitioners are intended to be defined in the Health Insurance Regulations.28

general practitioner means:

(a) a medical practitioner who is registered under the National Law in the speciality of general practice; or

(b) a medical practitioner of a kind prescribed by the regulations for the purposes of this paragraph.

Item 25 is a consequential provision which repeals sections 3EA, 3EB, 3F, 3G and 3H of the HIA. These sections relate to determinations made by the Chief Executive Medicare, which will no longer be required. As noted in the Background section, any GPs currently receiving higher Medicare rebates due to being eligible for the vocational register of General Practitioners (medical practitioners from 1989 to 1996 who worked predominately in general practice and whom the RACGP certifies have met CPD requirements to be vocationally registered to allow access to higher rebates), will be dealt with in the Health Insurance Regulations under grandfathering and

26. Parliamentary Joint Committee on Human Rights, Human rights scrutiny report, 4, 2020, 9 April 2020, p. 28. 27. Explanatory Memorandum, op. cit., p. 7. 28. Ibid.

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Health Insurance Amendment (General Practitioners and Quality Assurance) Bill 2020 7

transitional arrangements. The Explanatory Memorandum notes that in 2010, the Medical Board of Australia transitioned those practitioners who were vocationally registered general practitioners to appear on the public register as specialists without fellowship of the RACGP or ACRRM.

The repeal of section 3H by item 25 is necessary as the repeal of sections 3EA, 3EB, 3F and 3G of the HIA will make it redundant.

Part II of the HIA relates to the payment of Medicare benefits. In particular sections 19AA and 19AB provide that Medicare benefits are not payable in respect of services rendered by certain medical practitioners and by certain overseas trained doctors respectively. Items 29 and 31 in Schedule 1 to the Bill insert a new definition of registered medical practitioner into sections 19AA and 19AB, in equivalent terms. The term registered medical practitioner (for the purpose of those sections) means a person:

• registered under the National Law in the medical profession or

• registered or licensed as a medical practitioner under a law of a state or territory that provided for the registration or licensing of medical practitioners (within the meaning of that law).

These amendments ‘protect current arrangements’ in restricting access to general practice Medicare rebates by applying the specific definition of registered medical practitioner which only applies to sections 19AA and 19AB of the HIA.29

Item 56 of Schedule 1 to the Bill repeals the 2010 Consequential Amendments Act. The purpose of the 2010 Consequential Amendments Act, which was enacted by the Parliament in May 2010 and received Royal Assent on 31 May 2010, was to provide for consequential amendments to Commonwealth legislation to recognise and support implementation of the NRAS for the Health Professions and streamline processes involved in the recognition of doctors under the HIA for the purpose of claiming Medicare.30 Schedule 1 of the 2010 Consequential Amendments Act was due to commence on a day to be fixed by proclamation.31 However, as a result of:

… complexities in the translation of HIA specialties and consultant physician categories with [Medical Board of Australia] specialties and the costs of Services Australia system changes, Schedule 1 of the Consequential Amendments Act was not proclaimed. 32

As the Bill will enact the changes proposed in the 2010 Consequential Amendments Act in regards to general practitioners, it will be made redundant and hence will be repealed.

The Explanatory Memorandum notes that aligning of definitions for other medical specialties with Medical Board of Australia specialties is proposed to occur at a later date, following the completion of the GP changes and a period of stakeholder engagement.33

Schedule 2—Quality assurance confidentiality The Commonwealth Qualified Privilege Scheme encourages health professionals to undertake quality assurance activities in connection with the provision of certain health services, with the aim of improving health care services.

29. Ibid., p. 11. 30. Jolly, op. cit., p. 2. 31. Department of the Prime Minister and Cabinet (PM&C), Report on unproclaimed legislation, PM&C, August 2019, p. 5. 32. Explanatory Memorandum, op. cit., p. 13. 33. Ibid.

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Part VC of the HIA provides for confidentiality of declared quality assurance activities. Section 124X of the HIA allows the Minister to declare a quality assurance activity to be an activity to which Part VC applies. To be eligible for a declaration under section 124X of the HIA, a quality assurance program must be funded under at least one of the Commonwealth Health funded programs covered by the definition of quality assurance activity in section 124W. That definition currently refers to ‘the former Health Care (Appropriation) Act 1998’, which is not the current Act used for Commonwealth funding for hospital services.34

Item 1 in Schedule 2 to the Bill repeals and replaces subparagraph (a)(iii) in the definition of quality assurance activity so that the reference to ‘the former Health Care (Appropriation) Act 1998’, is removed and replaced with a reference to the Federal Financial Relations Act 2009 (FFRA), ensuring that public hospital services are specifically included in the definition of quality assurance activity.35

Item 2 in Schedule 2 to the Bill applies retrospective validation of declarations made by the Minister on or after 1 July 2009 where at the time the declaration was made, the activity was a quality assurance activity within the meaning of the amended subsection 124W(1). As noted above, the Senate Standing Committee for the Scrutiny of Bills expressed its concern about provisions that have the effect of applying retrospectively as legislation with such provisions will, or might, have a detrimental effect on individuals.36

34. Coulton, op. cit., p. 3. 35. Explanatory Memorandum, op. cit., p. 14. 36. Senate Standing Committee for the Scrutiny of Bills, op. cit.

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