EXPLANATORY STATEMENT
Issued by the Authority of the Minister for Health and Ageing
Health Insurance Act 1973
Guidelines under ss.124H(1) for determinations under ss.124F(2) and 124G(2)
Medicare Participation Review Committees (MPRCs) are independent statutory committees established under subsection 124E(1) of the Health Insurance Act 1973 (the Act).
The MPRCs make determinations in relation to providers of diagnostic imaging and pathology services and practitioners providing Medicare services who have been convicted of relevant criminal offences; engaged in ‘inappropriate practice’ on more than one occasion; breached a pathology undertaking or engaged in prohibited diagnostic imaging practices.
Subsection 124H(1) of the Act authorises the Health Minister to make Guidelines to be applied by MPRCs in making their determinations. The Guidelines list factors that an MPRC should consider in arriving at its determination and provide for sanctions. Guidelines are not mandatory and are made at the Minister’s discretion. However the MPRC Chairs and key stakeholders have indicated that the Guidelines assist with decision-making.
Where a practitioner or provider is found to have committed a relevant offence or civil contravention, the MPRC considers their continued eligibility for the Medicare scheme. MPRCs can impose a range of sanctions from no action to up to five years disqualification from the Medicare scheme.
The new guidelines relate to MPRC determinations made under ss.124F(2) and 124G(2) of the Act and replace guidelines which lapsed at the end of 2007.
A consultation draft was provided to sixty key organisations representing medical and allied health professionals and the providers of pathology and diagnostic imaging services. Those organisations who responded expressed support for the new guidelines.
A clause by clause explanation of the Guidelines is set out in Attachment 1.
The Guidelines commence the day after their registration on the Federal Register of Legislative Instruments.
MEDICARE BENEFITS BRANCH
DEPARTMENT OF HEALTH AND AGEING
AUGUST 2009
ATTACHMENT 1
GUIDELINES UNDER SUBSECTION 124H(1) OF THE HEALTH INSURANCE ACT 1973 FOR MAKING DETERMINATIONS UNDER SUBSECTIONS 124F(2) AND 124G(2)
1. Ministerial Statement
The Guidelines are made by the Minister for Health and Ageing under subsection 124H(1) of the Act.
2. Commencement
The guidelines will commence on the day after registration.
Schedule
Part I
Section 1 provides definitions for specified terms.
Section 2 requires MPRCs to have regard to the matters set out in Parts II and III of the guidelines when making determinations in relation to a relevant offence or a pecuniary penalty order in respect of a relevant civil contravention by a provider of pathology or diagnostic imaging services, or a practitioner.
A ‘relevant offence’ is defined in ss.124B(1) of the Act as knowingly making false statements; bribery in relation to private hospital services; charging of fees for providers of public hospital services for public patients; the making of threats and failure to keep or provide records of medicare services to Medicare Australia in relation to pathology and diagnostic imaging services; furnishing false or misleading returns or information; and various offences against the Crimes Act 1914 and Criminal Code 1995.
A ‘relevant civil contravention’ is defined in Division 2 of Part IIBA of the Act and relates to specified actions by providers or requesters of pathology and diagnostic imaging services including asking for or accepting prohibited benefits; offering or providing prohibited benefits; and making threats.
The Guidelines do not limit the powers conferred on the Committee by the Act (section 3). Section 4 and 5 provides that the Committee may take into account matters it considers relevant to making a determination, where those matters are not covered by the Guidelines.
Section 6 provides that MPRCs may not review a judicial decision regarding an offence or civil contravention committed by the subject of their determination.
Part II
Section 7 sets out the kind of information an MPRC should consider when making a determination in relation to a relevant offence or civil contravention. Matters to be taken into consideration include whether the practitioner or provider has been convicted of any previous offence or been given a pecuniary penalty order in relation to a previous civil contravention and any comments made by the court regarding the reasons for its decision. .
Section 8 provides that the MPRC in making a determination may consider a range of other matters including the potential impact any period of disqualification may have on the community the practitioner or provider serves.
Sections 9 provides a range of penalties for practitioners who have been convicted of a relevant offence or ordered by the Federal Court to pay a pecuniary penalty order for a relevant civil contravention. There are six offences described with disqualification periods of between three months and five years depending on the type of offence or civil contravention and whether it is a first or subsequent offence by the practitioner.
The length of the disqualification periods an MPRC may apply have been increased for two offences:
- under subsection 9(2) where a practitioner has been convicted of a relevant offence which is an offence of strict liability but has not previously been disqualified by an MPRC, the disqualification period is at least three months but not more than two years. Under the previous guidelines a disqualification period of not less than three months but not more than twelve months applied [previous subsection 8(2)]; and
- under subsection 9(3) where a practitioner has been convicted of a relevant offence (which is not an offence of strict liability) and has not previously been convicted of a relevant offence, the disqualification period is at least six months but mot more than three years. Under the previous guidelines a disqualification period of at least six but not more than 18 months applied [previous subsection 8(3)].
These increases are considered necessary to deter inappropriate and prohibited practices. The disqualification periods for the remaining offences have been carried over from the 1991 Guidelines.
Section 10 relates to providers of pathology and diagnostic imaging services who are not practitioners. It sets out a range of sanctions for the civil penalty provisions and offences created by the Health Insurance Amendments (Inappropriate and Prohibited Practices and Other Measures) Act 2007. There are six sanctions described with disqualification periods of up to five years depending on the type of civil contravention or offence and whether it is a first or subsequent offence by the provider.
Part III
Section 11 sets out the matters which Committees are required to consider when making a determination under subsection 124G(2) as to whether or not a hearing should not occur.
MEDICARE BENEFITS BRANCH
DEPARTMENT OF HEALTH AND AGEING
AUGUST 2009