EXPLANATORY STATEMENT
Issued by the Authority of the Minister for Health and Ageing
Health Insurance Act 1973
Health Insurance (Permitted benefits – diagnostic imaging services) Determination 2008
This Determination is made under section 23DZZIG of the Health Insurance Act 1973 (the Act).
The Act provides for payments of Medicare benefits in respect of professional services rendered to eligible persons.
The Health Insurance Amendment (Inappropriate and Prohibited Practices and Other Measures) Act 2007 makes a number of amendments to the Act in relation to pathology and diagnostic imaging services. The main purpose of the amendments is to strengthen and streamline existing provisions in the Act which prohibit arrangements between providers of pathology or diagnostic imaging services and practitioners who request those services that act as inducements to request services. The amendments are effective from 1 March 2008.
The Act, as amended by the Amending Act, regulates behaviour whereby providers (or persons connected to them) offer or provide benefits to requesters (or persons connected to them). It also regulates behaviour whereby requesters (or persons connected to them) seek or accept benefits from providers (or persons connected to them). Such behaviour may be prohibited by the Act unless the benefit in question is a “permitted benefit”. The Act prescribes a number of benefits which are permitted, and these generally relate to transactions that are of an arms-length bone-fide commercial nature.
Section 23DZZIG of the Act as amended allows the Minister to determine by legislative instrument that a specified class of benefits, that would otherwise be unlawful under the Act, be permitted benefits.
This Determination sets out certain benefits that are permitted, and the conditions under which they are permitted, in relation to diagnostic imaging. A separate determination applies to pathology. In summary, the types of benefits permitted under this Determination under the prescribed conditions are:
- items that help requesters to read films or make requests, for example image viewing equipment and computer software;
- stationing staff or diagnostic imaging equipment in hospitals and in requesters clinical rooms in remote areas and during surgical procedures;
- providing diagnostic imaging services to a patient who is a requester or a person connected to the requester for free or at a discounted rate;
- educational material;
- educational sessions;
- certain gifts and hospitality; and
- promotional material.
It is important to note that providers of diagnostic imaging services are under no compulsion to provide the benefits included in the Determination. This is a business decision for providers. The Determination simply makes it lawful under the Act if providers do supply them.
Peak professional and industry bodies representing diagnostic imaging provider and requester groups, along with Medicare Australia, were consulted in the development of the provisions in this Determination. A list of provider and requester groups consulted is shown at Attachment B.
A detailed explanation of the provisions in the Determination is contained in Attachment A.
The Determination commences on 1 March 2008.
ATTACHMENT A
Health Insurance (Permitted benefits – diagnostic imaging services) Determination 2008 (No. )
Explanation of Clauses
Section 1
This section provides that the name of the Determination is the Health Insurance (Permitted benefits – diagnostic imaging services) Determination 2008.
Section 2
Section 2 provides that the Determination commences on 1 March 2008, to align with the date of commencement of the Amending Act.
Section 3
This section defines terms used in the Determination. It also lists examples of terms used in the Determination that, in accordance with statutory conventions, take their meaning from the Principal Act, in this case the Health Insurance Act 1973.
Section 4
Under section 23DZZIG of the Act, the Minister may by legislative instrument determine that a specified class of benefits that are asked for or accepted by, or offered or provided to a specified class of persons be permitted benefits. Subsection 4(1) provides that the benefits listed in Schedule 1 are permitted benefits, subject to subsection 4(2), where:
- a requester (or a person connected to the requester) asks for, or accepts the benefit from, a diagnostic imaging provider (or a person connected to the provider);
- a diagnostic imaging provider (or someone connected to them) offers to or provides the benefit to a requester (or someone connected to the requester).
The concept of a person being “connected” to another takes its meaning from section 23DZZIJ of the Act.
Subsection 4(2) provides that even if a benefit is listed in Schedule 1, it is not permitted if it is related to the number or type or value of requests made by a requester or exceeds the normal supply for the needs of the practice over a given time. For example, it would not be permitted to supply imaging viewing equipment only on the proviso that the requester ordered a certain number of diagnostic imaging services.
Schedule 1
This Schedule lists those benefits that are permitted and the conditions, if any, under which the benefits are permitted.
Item 1
Diagnostic imaging service providers often provide diagnostic imaging related items to assist requesters in either reading films/images or making requests, for example light boxes, requesting software and digital imaging reading software.
This item provides that is a permitted benefit for a provider to provide such items free of charge (and irrespective of their value) to a requester as long as they are of a type that:
- does not exclude the requester from dealing with other providers of diagnostic imaging services; and either
- can only be used for purposes connected with requests for diagnostic imaging services; or
- for items that have multiple uses, has special features that aid the requester in requesting diagnostic imaging services or viewing diagnostic images.
For example, it would be permissible to provide CDs containing requesting or viewing software or special computer screens that enable multiple images to be viewed. However, it would not be permissible to provide a full computer operating system, unless it had special features to assist the requester in requesting or viewing diagnostic services or viewing the images.
It would also not be permissible if the item precludes the requester from using other providers of diagnostic imaging services. For example, if computer software was provided, it cannot be of a type that prevents other providers loading their software into the requester’s computer.
Item 2
Paragraph 23DZZIF(7)(b) of the Amending Act reflects the pre 1 March 2008 provisions in the Act prohibiting a diagnostic imaging provider from stationing staff or equipment at the premises of a requesting practitioner. There was an exception to this rule where the requester’s practice was in a remote area. A remote area was defined as a location that is more than 30 kilometres from an imaging practice or hospital under the direction of a specialist radiologist under a Ministerial determination made pursuant to subsection 23DU(1) of the Act.
In order to have gained an exemption to station staff or equipment at a requester’s premises, the provider was required to apply to Medicare Australia, and then reapply every three years.
While the prohibition on stationing staff or equipment at a requester’s premises has been preserved, the exemption provisions were not included in the new amendments.
Paragraph (a) makes it a permitted benefit for a diagnostic imaging provider to station staff or diagnostic imaging equipment in the premises of a requesting practitioner in a remote area. This exemption helps to ensure that remote areas have appropriate access to diagnostic imaging services.
To remove unnecessary administrative burdens on practices, it will be no longer necessary for providers to apply to Medicare Australia for an exemption. Instead, providers simply need to satisfy themselves that they are compliant with this provision.
During the consultation process for developing this Determination it became evident that it is regarded as appropriate clinical practice for a provider to station staff and or equipment in certain clinical settings where it is in the best interests of the patient to for requesting practitioners to have immediate results of the services they have requested.
For example: in hospital operating theatres, surgeons often require radiological services during operative procedures; in breast clinics, it is often necessary for biopsies to be taken under x-ray or ultrasound guidance.
Paragraphs (b) and (c) permit a provider of diagnostic imaging services to station staff or diagnostic imaging in the premises of a requesting practitioner where the premises is a hospital (for example, in an emergency department) or during the course of a surgical procedure (for example, a biopsy taken in a clinic).
Item 3
It is understood that, as a professional courtesy, a provider may wish to provide free or discounted diagnostic imaging services where the patient is a requester or a person connected to a requester, such as a family member.
The legislation is not intended to prohibit competition by providers on the basis of the quality or the cost of service they provide.
This item makes it a permitted benefit for a provider to provide free or discounted services to a requester, or a person connected to a requester.
Items 4 and 5
Providers are well placed to provide appropriate, relevant and targeted educational information to assist requesters and patients to make efficient and effective use of diagnostic imaging services.
Item 4 makes it a permitted benefit for providers to supply free educational material about diagnostic imaging, including information that may be passed on to patients.
Item 5 makes it a permitted benefit for a diagnostic imaging provider to host relevant education sessions on diagnostic imaging for requesters and their staff where:
- the primary objective of the event is to provide relevant information about diagnostic imaging, for example, to discuss appropriate requesting of services or understanding reports of diagnostic imaging services;
- the venue is appropriate for the educational purpose of the meeting;
- any hospitality is secondary to the educational purpose of the event and the cost of any hospitality provided, having regard to the venue and conduct of the event, is reasonable. For example, if the event is a formal seminar in an expensive hotel, it would be reasonable to pay more for hospitality then if the event was a small meeting held in the offices of the provider;
- the participant’s travel and accommodation costs, if any, are not met by the provider; and
- the event does not include and is not held in conjunction with any sporting event or other entertainment.
The provisions in the Medicines Australia Guidelines to Code of Conduct Edition 15 covering relationships between pharmaceutical companies and health practitioners were drawn upon in developing the above criteria.
Item 6
This item permits the provision of gifts or hospitality only if:
- they are not cash or convertible to cash, for example shares;
- they are provided infrequently and only for a significant occasion, for example, flowers for a condolence tribute or hospitality at Christmas; and
- they not given as an inducement, consideration or reward for requesting services. For example, it would not be in order for a provider to discriminate between large and small volume requesters; and
- the cost of the gift or hospitality is reasonable in the circumstances. For example, it would be reasonable to provide a modest hamper at Christmas, but it would be inappropriate to give the requester a case of expensive alcoholic spirits.
Item 7
This item permits a diagnostic imaging provider to promote their business with requesters through the provision of request forms and other promotional material, so long as the material being provided is labelled as coming from the provider and has no resale value to the recipient of the benefit. .
The purpose of requiring the material to be identified is to avoid creating the opportunity for gifts to be disguised as promotional items.
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ATTACHMENT B
List of organisations consulted
Government
State and Territory Health Departments
Medicare Australia
Diagnostic Imaging Provider Groups
Australasian Society for Ultrasound in Medicine
Australian and New Zealand Association of Physicians in Nuclear Medicine
Australian and New Zealand Society of Nuclear Medicine
Australian Diagnostic Imaging Association
Royal Australian and New Zealand College of Radiologists
National Association of Specialist Obstetricians and Gynaecologists
Royal Australian and New Zealand College of Obstetricians and Gynaecologists
Cardiac Society of Australia and New Zealand
Australian Institute of Radiography
Australian Sonographers’ Association
Requester Groups
Australasian College of Sports Physicians
Australasian Podiatry Council
Australasian Society of Cardiac and Thoracic Surgeons
Australian and New Zealand Association of Oral and Maxillofacial Surgeon
Australian and New Zealand College of Anaesthetists
Australian and New Zealand Society of Vascular Surgery
Australian Association of Practice Managers
Australian College of Rural and Remote Medicine
Australian Dental Association
Australian General Practice Network Limited
Australian Medical Association
Australian Osteopathic Association
Australian Physiotherapy Association
Australian Society of Anaesthetists
Australian Society of Orthopaedic Surgeons
Chiropractors’ Association of Australia
Committee of Presidents of Medical Colleges
Royal Australasian College of Dental Surgeons
Royal Australasian College of Medical Administrators
Royal Australasian College of Physicians
Royal Australasian College of Surgeons
Royal Australian and New Zealand College of Ophthalmologists
Royal Australian College of General Practitioners
Rural Doctors Association of Australia
Urological Society of Australia and New Zealand