STACY WAKE and MINISTER FOR HEALTH AND AGEING

[2009] AATA 143

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 143

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/0197

GENERAL ADMINISTRATIVE DIVISION		)
Re		STACY WAKE

Applicant

And MINISTER FOR HEALTH AND AGEING

Respondent

DECISION

Tribunal Senior Member Robin Hunt

Date6 March 2009

PlaceSydney

Decision The application is dismissed under subsection 42A(4) of the Administrative Appeals Tribunal Act 1975 for lack of jurisdiction.

.................[sgd]..........................

Robin Hunt
  Senior Member

CATCHWORDS

HEALTH – Health Insurance Act 1973 – claim for Medicare benefit – no reconsideration of refusal decision – no reviewable decision – no tribunal jurisdiction – application dismissed.

Health Insurance Act 1973 ss 19CA(2)

Administrative Appeals Tribunal Act 1975, s 42A(4)

REASONS FOR DECISION

6 March 2009 Robin Hunt, Senior Member

1.      The applicant, Stacy Wake, applied to the tribunal for review of a decision to reject her son’s claim for payment of a Medicare benefit for the costs of treatment received by her son. On 16 October 2007, a customer service officer employed by Medicare Australia wrote to her son informing him that the service for which he claimed was not covered by Medicare. On 3 January 2009, the applicant wrote to the tribunal seeking the overturning of this decision.

2.      Entitlement to Medicare benefits is dealt with in the Health Insurance Act 1973 (“the Act”). The Minister for Health and Ageing may review some decisions concerning payment of Medicare Benefits. Benefits under the Act may be paid in respect of certain procedures or professional services carried out by a medical practitioner. The term ‘medical practitioner’ is defined in section 3(1) to mean ‘a person registered or licensed as a medical practitioner under a law of a State or Territory.’ What is meant by ‘professional service’ is also defined. The services defined include some services carried out on behalf of a medical practitioner which are covered by an item in the general medical services table. This table is located in regulations made under the Act.

3.      The refusal letter, of 16 October 2007, explains that Mr Wake’s claim is ‘not covered by Medicare.’ The letter does not offer a further explanation. Presumably, the officer decided the service provided does not fall within the items set out in the medical services table or it was not provided on behalf of a medical practitioner. I note that the claim form before me does not have the name of the service provider where the name of a medical practitioner is usually inserted in the space provided. The Medicare officer did not offer reconsideration to Mr Wake, but invited him to make a telephone call if he had any questions.

4.      After receiving the refusal letter from Medicare, Mr Wake might have asked for reconsideration of this decision. An individual may apply to the Minister for reconsideration of a refusal in some circumstances and the Minister must make a decision on the reconsideration within 28 days. An applicant may then apply to this tribunal for review of the reconsideration decision. However, the applicant wrote directly to the tribunal without first seeking reconsideration.

5. Reconsideration of a decision refusing to direct payment of a Medicare benefit may be sought under some circumstances pursuant to section 19CA(2) of the Act. The provision requires application for reconsideration to be made within 28 days. Once a decision has been made, an applicant may apply to this tribunal for review of the reconsideration decision. The applicant has not followed this process.

6. It follows that the tribunal does not have a reviewable decision before it and therefore has no jurisdiction. As there is no reviewable decision before the tribunal I must dismiss the applicant’s application under section 42A(4) of the Administrative Appeals Tribunal Act 1975.

decision

7. The application is dismissed under subsection 42A(4) of the Administrative Appeals Tribunal Act 1975 for lack of jurisdiction in the tribunal.

I certify that the 7 preceding paragraphs are a true copy of the reasons for the decision herein of Robin Hunt, Senior Member.

Signed: ...........[sgd]..........................................................................
  Associate

Date of Hearing  6 March 2009
Date of Oral Decision                6 March 2009
Date of Written Reasons          6 March 2009
Appearance for the Applicant   Self-represented