Federal Register of Legislation - Australian Government

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Guides & Guidelines as made
This instrument provides guidelines to be applied by the Medicare Participation Review Committees in making their decisions.
Administered by: Health
Registered 09 Dec 2009
Tabling HistoryDate
Tabled HR02-Feb-2010
Tabled Senate02-Feb-2010

 

 

COMMONWEALTH OF AUSTRALIA

 

Health Insurance Act 1973

 

GUIDELINES UNDER SUBSECTION 124H(1)

 

 

 

I, NICOLA ROXON, Minister for Health and Ageing, acting under subsection 124H(1) of the Health Insurance Act 1973 (the Act) hereby

 

          Make the guidelines set out in the Schedule, to be applied by Medicare Participation Review Committees when making determinations under subsection 124F(2) and subsection 124G(2) of the Act in relation to a relevant offence(s) or a relevant civil contravention(s) which has been the subject of a notice issued under section 124D of the Act.

 

Dated       17 November 2009

 

 

This instrument will commence on the day after registration on the Federal Register of Legislative Instruments.

 

 

 

 

 

Nicola Roxon

Minister for Health and Ageing

 

 

 

 


SCHEDULE

 

The following Guidelines are to be applied by Medicare Participation Review Committees when making determinations under subsection 124F(2) and subsection 124G(2) of the Health Insurance Act 1973 in relation to a relevant offence(s) or to a pecuniary penalty order made in respect of a relevant civil contravention(s) which has been the subject of a notice issued under section 124D of that Act.

 

 

PART I - PRELIMINARY

 

Interpretation

 

1        In these Guidelines

 

the Act” means the Health Insurance Act 1973;

 

Committee” means a Medicare Participation Review Committee established under the Act;

 

convicted” refers to a conviction for an offence as referred to insubsection 124B(2) of the Act;

 

offence of strict liability” means an offence of the type described in section 6.1 of the Criminal Code Act 1995.

 

pecuniary penalty order” has the meaning given in section 3 of the Act;

 

practitioner” has the meaning given in section 124B of the Act;

 

provider has the meaning given in subsections 23DZZID of the Act.

 

relevant civil contravention has the meaning given in section 124B of the Act; and

 

relevant offence has the meaning given in section 124B of the Act.

 

 

Compliance with Guidelines

 

2        In making determinations under subsection 124F(2) and subsection 124G(2) of the Act in relation to a relevant offence(s) or a relevant civil contravention(s), being the subject of a notice under section 124D of the Act, a Committee is required to have regard to the matters set out in Parts II and III of these Guidelines.


Exercise of powers under the Act

 

3        Subject to section 124F(3)(b) of the Act, nothing in these Guidelines shall be read as limiting the powers conferred on a Committee by the Act.

 

4        Nothing in these Guidelines shall be read as limiting the authority of a Committee to consider, when making a determination to which these Guidelines apply, matters the Committee considers relevant to the making of the determination, being matters not dealt with in these Guidelines.

 

5        Subject to these Guidelines, a Committee established in relation to a practitioner or provider may when

 

(a)     making a determination under subsection 124F(2); or

(b)     considering making a determination under subsection 124G(2) that subsection 124G(1) does not apply,

 

inform itself on any matter in such manner as it considers appropriate.

 

6        The Committee shall bear in mind that its consideration under these Guidelines of any relevant offence or relevant civil contravention dealt with by a court may not extend to a review of the decision of the court regarding that offence or civil contravention.

 

 

PART II - MATTERS RELEVANT TO DETERMINATIONS UNDER SUBSECTION 124F(2)

 

Making of determinations under subsection 124F(2)

 

7        In making a determination under subsection 124F(2) of the Act regarding either a conviction for a relevant offence(s) or a pecuniary penalty order made in respect of a relevant civil contravention(s), a Committee shall have regard to the following matters:

 

(1)     The nature and circumstances regarding the commission of the relevant offence(s) or relevant civil contravention(s), including

 

(a)     the number of offences or civil contraventions;

(b)     the date of commission of each offence or civil contravention;

(c)     the facts of each offence or civil contravention;

(d)     the penalty, if any, imposed by the court on the practitioner or provider for each offence or civil contravention; and

(e)     the reasons for the court’s decision and any other statements made by the court regarding its consideration of each offence or civil contravention.

 

(2)     The nature and circumstances regarding the commission of any previous relevant offence(s) of which the practitioner or provider has been convicted, or any previous relevant civil contravention(s) for which a pecuniary penalty order has been made against either the practitioner or provider, including

 

(a)     the number of offences or civil contraventions;

(b)     the date of commission of each offence or civil contravention;

(c)     the facts of each offence or civil contravention;

(d)     the penalty, if any, imposed by the court on the practitioner or provider for each offence or civil contravention;

(e)     the reasons for the court’s decision and any other statements made by the court regarding its consideration of each offence or civil contravention;

(f)      any previous determination by a Committee regarding an offence or civil contravention by the practitioner or provider and the reasons given in a notice under subsection 124Q(1) for making the determination;

(g)     where any such determination imposed a period of disqualification on a practitioner, the length and date of termination of and the services covered by, the disqualification; and

(h)     where any such determination specified a period during which medicare benefits were not payable for specified services rendered by or on behalf of a provider, the length and date of termination of the period and the services specified in the determination.

 

Other relevant considerations

 

8        In making a determination under subsection 124F(2) of the Act in relation to a practitioner or provider, a Committee shall have regard to the following matters:

 

(a)     the length of time the practitioner or provider has been in active professional practice as a practitioner or provider;

(b)     the effect which any particular determination which the Committee may make could have regarding the practitioner or provider ;

(c)     the potential effect of a particular determination  on the patients of the practitioner or provider and/or the community they serve, regarding provision and quality of medical services; and

(d)     any other matters which the Committee considers relevant.

 

Disqualification periods

 

9        Where a Committee has dealt with a practitioner under subsection 124F(2) of the Act and is of the opinion that a determination of disqualification should be made against the practitioner, the Committee shall have regard to the following presumptions:

 

(1)     Where the practitioner

 

(a)     has been convicted of a relevant offence which is an offence of strict liability; or

(b)     has been ordered by the Federal Court to pay a pecuniary penalty order for a relevant civil contravention; and

(c)     has not previously been

(i)                  convicted of a relevant offence; or

(ii)                ordered by the Federal Court to pay a pecuniary penalty order for a relevant civil contravention,

 

then disqualification for a period not exceeding 6 months would be appropriate.

 

(2)     Where the practitioner

 

(a)     has been convicted of a relevant offence which is an offence of strict liability; or

(b)     has been ordered by the Federal Court to pay a pecuniary penalty for a relevant civil contravention; and

(c)     has previously been

(i)      convicted of a relevant offence; or

(ii)     ordered by the Federal Court to pay a pecuniary penalty for a relevant civil contravention; and

(c)     has not previously been disqualified by a Committee,

 

then disqualification for a period of at least 3 months but not exceeding 2 years would be appropriate.

 

(3)     Where the practitioner

 

(a)     has been convicted of a relevant offence which is not an offence of strict liability; and

(b)     has not previously been convicted of a relevant offence,

 

then disqualification for a period of at least 6 months but not exceeding 3 years would be appropriate.

 

(4)     Where the practitioner

 

(a)     has been convicted of a relevant offence which is not an offence of strict liability; and

(b)     has previously been convicted of a relevant offence; and

(c)     has not previously been disqualified by a Committee,

 

then disqualification for at least twelve months would be appropriate.

 

(5)     Where the practitioner

 

(a)     has been convicted of a relevant offence which is an offence of strict liability; or

(b)     has been ordered by the Federal Court to pay a pecuniary penalty order for a relevant civil contravention; and

(c)     has on one or more occasions been disqualified by a Committee,

 

                   then disqualification for at least twelve months would be appropriate.

 

(6)     Where the practitioner

 

 (a)    has been convicted of a relevant offence which is not an offence of strict liability; and

 (b)    has on one or more occasions been disqualified by a Committee,

 

then disqualification for at least 2 years would be appropriate.

 

 

A practitioner who is subject to the making of a determination under this clause 9 shall be entitled to be heard on why any presumption as to period of disqualification that otherwise would apply should not apply

 

 

Payment of medicare benefits

 

10      Where a Committee has dealt with a provider (who is not a practitioner) under subsection 124F(2) and is of the opinion that some action should be taken against the provider, the Committee shall have regard to the following presumptions:

 

(1)     Where the provider

 

(a)     has been ordered by the Federal Court to pay a pecuniary penalty order for a relevant civil contravention; and

(b)     has not previously been

(i)                  convicted of a relevant offence, being an offence against Division 3 of Part IIBA of the Act; or

(ii)                ordered by the Federal Court to pay a pecuniary penalty order for a relevant civil contravention,

 

it would be appropriate for the Committee to determine that medicare benefits are not payable for kinds of serviced specified in the determination rendered by or on behalf of the provider for a period not exceeding 6 months.

 

(2)     Where the provider

 

(a)     has been ordered by the Federal Court to pay a pecuniary penalty for a relevant civil contravention; and

(b)     has previously been

(i)           convicted of a relevant offence, being an offence against Division 3 of Part IIBA of the Act; or

(ii)     ordered by the Federal Court to pay a pecuniary penalty for a relevant civil contravention; and

(c)     has not previously been subject to a determination by a Committee which specifies a period during which medicare benefits are not payable for kinds of services specified in the determination rendered by or on behalf of the provider,

 

it would be appropriate for the Committee to determine that medicare benefits are not payable for kinds of services specified in a determination rendered by or on behalf of the provider for a period of at least 6 months but not exceeding 2 years.

 

(3)     Where the provider

 

(a)     has been convicted of a relevant offence, being an offence against Division 3 of Part IIBA of the Act; and

(b)     has not previously been convicted of a relevant offence, being an offence against Division 3 of Part IIBA of the Act,

 

it would be appropriate for the Committee to determine that medicare benefits are not payable for kinds of services specified in the determination, rendered by or on behalf of the provider for a period of at least 6 months but not exceeding 3 years.

 

(4)     Where the provider

 

(a)     has been convicted of a relevant offence, being an offence against Division 3 of Part IIBA of the Act; and

(b)     has previously been

(i)           convicted of a relevant offence, being an offence against Division 3 of Part IIBA of the Act; or

(ii)     ordered by the Federal Court to pay a pecuniary penalty for a relevant civil contravention; and`

 (c)    has not previously been subject to a determination by a Committee which specifies a period during which medicare benefits are not payable for kinds of  services specified in a determination rendered by or on behalf of the provider,

 

it would be appropriate for the Committee to determine that medicare benefits are not payable for kinds of serviced specified in the determination, rendered by or on behalf of the provider for a period of at least 12 months.

 

(5)     Where the provider

 

(a)     has been ordered by the Federal Court to pay a pecuniary penalty order for a relevant civil contravention; and

(b)     has on one or more occasions previously been subject to a determination by a Committee which specifies a period during which medicare benefits are not payable for kinds of services specified in a determination, rendered by or on behalf of the provider,

 

it would be appropriate for the Committee to determine that medicare benefits are not payable for kinds of serviced specified in the determination, rendered by or on behalf of the provider for a period of at least 12 months.

 

(6)     Where the provider

 

 (a)    has been convicted of a relevant offence, being an offence against Division 3 of Part IIBA of the Act ; and

 (b)    has on one or more occasions previously been subject to a determination by a Committee which specifies a period during which medicare benefits are not payable for kinds of serviced specified in a determination, rendered by or on behalf of the provider,

 

then disqualification for at least two years would be appropriate.

 

A provider who is subject to the making of a determination under this clause 10 shall be entitled to be heard on why any presumption as to period of non payment of medicare benefits that otherwise would apply should not apply

 

 

PART III - MATTERS RELEVANT TO DETERMINATIONS UNDER SUBSECTION 124G(2)

 

Making of determinations under subsection 124G(2)

 

11      The following apply in making a determination under subsection 124G(2) regarding a person:

 

(1)          The Committee is required to consider the following matters:

(a)     any submission made to the Committee by the person in accordance with subsection 124G(3);

(b)     the nature and seriousness of and the circumstances concerning the commission of each relevant offence for which the person has been convicted, or each relevant civil contravention where a pecuniary penalty order has been made regarding the person;

(c)     whether the person has previously been convicted of a relevant offence or has previously been the subject of a relevant civil contravention for which a pecuniary penalty order has been made;

(d)     whether the person has at any time been subject to a determination made under paragraphs 124F(2)(d), (e), (f) or (g) or a determination made under subsection 124G(2) of the Act; and

(e)     any other matters the Committee considers relevant.

 

(2)          The Committee shall not make a determination under subsection 124G(2) unless the Committee is satisfied that were a hearing to be conducted, there would be little or no reasonable prospect that further evidence or material would become available to the Committee, which might, in the Committee's opinion, result in the making of a determination by the Committee under paragraphs 124F(2)(b), (c), (d),(e), (f) or (g) of the Act.