Ged Kearney (Cooper, Australian Labor Party, Assistant Minister for Health and Aged Care) Share this | Link to this | Hansard source

I present a supplementary explanatory memorandum to the bill and ask leave of the House to move government amendments (1) and (2), as circulated, together.

Leave granted.

I move government amendments (1) and (2), as circulated, together:

(1) Clause 2, page 2 (at the end of the table), add:

(2) Page 40 (after line 4), at the end of the Bill, add:

Schedule 4 — Additional amendments to improve medicare integrity

Part 1 — Amendments relating to administrative inquiries and recovery of overpayments

Division 1 — Administrative inquiries

Health Insurance Act 1973

1 After section 129AAC

Insert:

129AACA Notice to give information etc. relevant to Act administration

Chief Executive Medicare may require person to give information etc.

(1) If the Chief Executive Medicare reasonably suspects that a person has relevant material, the Chief Executive Medicare may, by notice in writing, require the person to give the relevant material:

(a) if the relevant material contains clinical details relating to an individual—to a specified APS employee in the Department who is a medical practitioner; or

(b) otherwise—to a specified APS employee in the Department.

Content of notice

(2) The notice must:

(a) specify all of the following:

(i) the relevant material;

(ii) the grounds on which the Chief Executive Medicare suspects that the person has the relevant material;

(iii) how the relevant material is to be given;

(iv) each person to whom the relevant material is to be given;

(v) the contact details of an APS employee in the Department who may be contacted in relation to the notice;

(vi) the period within which the person is required to give the relevant material; and

(b) contain a statement about the effect of section 129AACB (consequences of failure to give information etc. relevant to Act administration).

Period to comply with notice

(3) The period specified for the purposes of subparagraph (2)(a)(vi) must be a period ending at least 21 days after the day on which the notice is given.

(4) The Chief Executive Medicare may, in writing, extend the period within which the person is required to give the relevant material. The Chief Executive Medicare may do so before or after the end of the period.

Section not limited

(5) This section is not limited by:

(a) any other provision of this Act; or

(b) any provision of the Human Services (Medicare) Act 1973 or any other Act;

that relates to powers to require information, a document or a thing to be given.

Meaning of relevant material

(6) In this section, relevant material means information, a document or a thing that is relevant to the administration of this Act and includes information, a document or a thing that relates to:

(a) compliance with a requirement under this Act or an instrument made under this Act; or

(b) an amount paid under this Act; or

(c) a person's entitlement to a benefit or payment under this Act.

129AACB Consequences of failure to give information etc. relevant to Act administration

(1) A person contravenes this subsection if:

(a) the person is given a notice under subsection 129AACA(1) requiring the person to give information, a document or a thing; and

(b) the person fails to comply with the requirement within:

(i) if the Chief Executive Medicare has, under subsection 129AACA(4), extended the period specified in the notice—the extended period; or

(ii) otherwise—the period specified in the notice.

Strict liability offence

(2) A person commits an offence of strict liability if the person contravenes subsection (1).

Penalty: 30 penalty units.

Civil penalty

(3) A person is liable for a civil penalty if the person contravenes subsection (1).

Civil penalty:

(a) for an individual—30 penalty units; and

(b) for a body corporate—150 penalty units.

(4) Subsection (3) does not apply if:

(a) the contravention is brought about by:

(i) another person over whom the defendant has no control; or

(ii) a non-human act or event over which the defendant has no control; and

(b) the defendant could not reasonably be expected to guard against the contravention.

Note: A person who wishes to rely on this subsection in proceedings for a civil penalty order bears an evidential burden in relation to the matter in this subsection (see section 130H).

2 Section 129AAD (heading)

Repeal the heading, substitute:

129AAD Notice to produce documents relating to professional services

Division 2 — Recovery of overpayments

Health Insurance Act 1973

3 Subsection 129AAJ(3)

Omit "28", substitute "45".

4 Subsection 129AAJ(4)

After "must", insert ", unless the application has been withdrawn by the applicant".

5 After section 129AAJ

Insert:

129AAK Recovery of amounts — overpayments in general

Amounts recoverable under this subsection

(1) An amount is recoverable under this subsection, as a debt due to the Commonwealth, if:

(a) the amount was paid purportedly under this Act in respect of a professional service to a person who was not entitled to be paid the amount under this Act in respect of that professional service; or

(b) the amount was paid purportedly by way of benefit or payment under this Act to a person who was not entitled to be paid the amount under this Act by way of that benefit or payment; or

(c) the amount was paid purportedly by way of benefit or payment under this Act, and the benefit or the right to the payment was assigned other than in accordance with section 20A.

From whom the amount may be recovered

(2) The amount may be recovered from:

(a) if subsection (3) applies to the amount—the person mentioned in paragraph (3)(b), or the estate of that person; or

(b) otherwise—the person to whom the amount was paid, or the estate of that person.

(3) This subsection applies to the amount if:

(a) the amount was paid, purportedly by way of benefit or payment under this Act, in respect of a professional service; and

(b) a person:

(i) rendered or purportedly rendered the service; or

(ii) is identified, in a claim for benefit or payment under this Act, as having rendered the service; and

(c) the amount was not in fact payable in respect of the service because:

(i) at the time the service was rendered or purportedly rendered, the person, the service, or the rendering or purported rendering of the service, did not meet a requirement under this Act or an instrument made under this Act; or

(ii) the person, the service, or the rendering or purported rendering of the service, breached a contract between the person and the Commonwealth; or

(iii) the service was rendered or purportedly rendered by a person who was, at the time, partly or fully disqualified under this Act or an instrument or agreement made under this Act.

Note: For the purposes of paragraph (c), an example of an amount not in fact payable in respect of a professional service is a medical benefit that, in accordance with section 19AA, is not payable because the service was rendered by a medical practitioner who did not meet the requirements under that section.

Recovery does not preclude other enforcement actions

(4) The recovery, by the Commonwealth, of an amount recoverable under subsection (1) does not preclude any other action being taken under this Act or any other Act in relation to any non-compliance with a requirement under this Act, or an instrument made under this Act, that resulted in the amount being recoverable under subsection (1).

6 Section 129AC (heading)

Repeal the heading, substitute:

129AC Recovery of amounts — false or misleading information, failure to produce document etc.

7 Subsection 129AED(3)

After "section", insert "129AAK or".

Part 2 — Contingent amendments relating to recovery of overpayments

Division 1 — Amendments if Modernising My Health Record amendments commence before or at the same time as Part 1

Health Insurance Act 1973

8 Subsection 129AAI(1)

After "or (8)", insert ", 129AAK(1)".

9 After paragraph 129AEF(1)(a)

Insert:

(aaaa) an amount under subsection 129AAK(1) where any rights of review by the CEO under section 129AAJ have been exhausted or have expired;

10 Subsection 129AEG(1)

After "(a),", insert "(aaaa),".

Division 2 — Amendments if Modernising My Health Record amendments do not commence before or at the same time as Part 1

Health Insurance Act 1973

11 Subsection 129AAI(1)

Before "129AC(1)", insert "129AAK(1) or".

12 After paragraph 129AEF(1)(a)

Insert:

(aaaa) an amount under subsection 129AAK(1) where any rights of review by the Chief Executive Medicare (the CEO) under section 129AAJ have been exhausted or have expired;

13 Subparagraph 129AEF(1)(aa)(i)

Omit "the Chief Executive Medicare (the CEO)", substitute "the CEO".

14 Subsection 129AEG(1)

After "(a),", insert "(aaaa),".

Division 3 — Amendments if Modernising My Health Record amendments commence after Part 1

Health Insurance Act 1973

15 Subsection 129AAI(1)

Omit "(8) or", substitute "(8),".

16 Paragraph 129AEF(1)(aaaa)

Omit "Chief Executive Medicare (the CEO)", substitute "CEO".

Part 3 — Use and derivative use immunity

Health Insurance Act 1973

17 At the end of subsection 106ZPQ(1)

Add:

Note: Under subsections 89B(2) and 105A(2), a person may be required to produce documents relevant to the Director's review of the provision of services by a person, and documents relevant to the referral made to the Committee.

18 Before subsection 106ZPQ(2)

Insert:

Use and derivative use immunity

19 Subsection 106ZPQ(2)

Omit all the words after "evidence against", substitute:

the person in any criminal or civil proceedings (including proceedings for the purposes of the National Law) other than the following:

(a) proceedings for an offence against subsection 106ZPN(1) (failing to produce documents or give information) or section 106ZPP (false or misleading documents);

(b) proceedings before a Committee or the Determining Authority;

(c) proceedings to recover an amount that is:

(i) recoverable under this Part as a debt due to the Commonwealth; or

(ii) otherwise required by or under this Part to be repaid to the Commonwealth;

(d) any other proceedings in relation to compliance with a requirement under this Part.

Note: For the purposes of subparagraph (c)(ii), an example of an amount required by or under this Part to be repaid to the Commonwealth is an amount that is to be repaid to the Commonwealth in accordance with a final determination under section 106TA.

20 At the end of section 106ZPQ

Add:

Admissibility of information passed on under certain provisions

(3) Subsection (2) does not prevent information, a document or other thing being admitted in evidence in proceedings against the person if:

(a) the information, document or other thing is obtained by:

(i) an appropriate person or body for the person (within the meaning of subsection 106XA(4)); or

(ii) the appropriate body, or one of the appropriate bodies, referred to in subsection 106XB(3) in relation to the person; and

(b) the information, document or other thing is obtained under subsection 106XA(2) or (3) or subsection 106XB(2); and

(c) the proceedings are for the purposes of the National Law.

Admissibility of certain derivative materials

(4) Subsection (2) does not prevent information, a document or other thing being admitted in evidence in proceedings against the person if the information, document or other thing:

(a) is not a document produced under subsection 89B(2) or 105A(2); but

(b) is, as a result of the production of a document under subsection 89B(2) or 105A(2), created or obtained by:

(i) an appropriate person or body for the person (within the meaning of subsection 106XA(4)); or

(ii) the appropriate body, or one of the appropriate bodies, referred to in subsection 106XB(3) in relation to the person.

21 Application provision

The amendments madeby this Part to section 106ZPQ of the Health Insurance Act 1973 apply in relation to the admission of the following in any criminal or civil proceedings instituted on or after the commencement of this Part:

(a) a document produced before, on or after that commencement under subsection 89B(2) or 105A(2) of that Act;

(b) information, a document or other thing created or obtained before, on or after that commencement as a result of the production of a document before, on or after that commencement under subsection 89B(2) or 105A(2) of that Act.

Part 4 — Transitional rules for amendments made by this Schedule

22 Transitional rules

The Minister may, by legislative instrument, make rules prescribing matters of a transitional nature (including prescribing any saving or application provisions) relating to the enactment of this Schedule.

These amendments insert additional integrity measures into the bill, which also implement the findings of the Philip review into Medicare integrity. They make several changes to the Health Insurance Act 1973. They improve existing powers to obtain information about potential fraud and noncompliance and enable the recovery of amounts if they should not have been paid. They improve the ability of regulators to protect patient safety by removing some restrictions on the admission of information obtained under the Professional Services Review notice to produce powers as evidence in relevant proceedings, including proceedings for the purposes of the national law.

The Philip review recommended the expansion of powers to ensure all types of serious noncompliance can be effectively dealt with and a reduction in regulation and legislation that hinders compliance activities. The Philip review concluded that there are limitations and restrictions around current compliance processes. For example, if incorrect payments are identified, current provisions don't always enable amounts to be appropriately recovered. This is because some recovery mechanisms rely on outdated claiming processes and requests for hard-copy documents. These matters are restricting the ability of the Department of Health and Aged Care to protect the integrity of Medicare programs and payments. These changes will enable appropriate inquiries to be made about Medicare payments if available information suggests potential noncompliance or fraud. If payments are found to be incorrect, amounts could be recovered. Further changes will remove some restrictions on the admission of information obtained under the Professional Services Review agency's notice to produce powers as evidence in proceedings, including proceedings under the Health Practitioner Regulation National Law.

The existing restrictions will no longer apply in respect of prosecutions related to a failure to produce documents, proceedings to recover debts relating to the Professional Services Review scheme and some other proceedings relating to noncompliance. The restrictions will also not apply in respect of documents produced to PSR under notice and passed on to the Australian Health Practitioner Regulation Agency, AHPRA, or a national board under certain provisions in the Health Insurance Act or information obtained or generated by AHPRA or a national board from its own investigation triggered by documents produced to PSR under notice. This will enable AHPRA and associated health practitioner boards to use PSR related material to trigger their own investigation into allegations involving risks to patient safety. This will also allow AHPRA and health practitioner boards to admit evidence in national law proceedings if it was referred to them under the legislation for the reasons of a significant threat to life or health or noncompliance with professional standards. These changes are required to ensure all appropriate steps are taken to protect patient safety and that the existing requirement to refer the information to AHPRA and health practitioner boards is not frustrated.

In sum, these changes will enhance the Department of Health and Aged Care's capacity to address these identified risks to patient safety and manage and address the consequences of noncompliance and potential fraud. In doing so, these measures will further the government's efforts to strengthen Medicare and will assist to protect the integrity and sustainability of Medicare and its programs. I commend the amendments.

Question agreed to.

Bill, as amended, agreed to.