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This is a Bill, not an Act. For current law, see the Acts databases.
2013-2014
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Dental Benefits Legislation Amendment
Bill 2014
No. , 2014
(Health)
A Bill for an Act to amend legislation in relation to
dental benefits, and for other purposes
No. , 2014
Dental Benefits Legislation Amendment Bill 2014
i
Contents
1
Short title ........................................................................................... 1
2
Commencement ................................................................................. 1
3
Schedule(s) ........................................................................................ 2
Schedule 1--Amendments
3
Part 1--Professional Services Review Scheme
3
Dental Benefits Act 2008
3
Health Insurance Act 1973
7
Part 2--Waiver of debts arising in relation to the Chronic
Disease Dental Scheme
12
Health Insurance Act 1973
12
Part 3--Compliance
15
Dental Benefits Act 2008
15
Part 4--Delegation of Ministerial powers
30
Dental Benefits Act 2008
30
Part 5--Dental providers
31
Dental Benefits Act 2008
31
Part 6--Provision of information
32
Dental Benefits Act 2008
32
Part 7--Technical amendment
33
Dental Benefits Act 2008
33
No. , 2014
Dental Benefits Legislation Amendment Bill 2014
1
A Bill for an Act to amend legislation in relation to
1
dental benefits, and for other purposes
2
The Parliament of Australia enacts:
3
1 Short title
4
This Act may be cited as the Dental Benefits Legislation
5
Amendment Act 2014.
6
2 Commencement
7
This Act commences on the day after this Act receives the Royal
8
Assent.
9
2
Dental Benefits Legislation Amendment Bill 2014
No. , 2014
3 Schedule(s)
1
Each Act that is specified in a Schedule to this Act is amended or
2
repealed as set out in the applicable items in the Schedule
3
concerned, and any other item in a Schedule to this Act has effect
4
according to its terms.
5
Amendments Schedule 1
Professional Services Review Scheme Part 1
No. , 2014
Dental Benefits Legislation Amendment Bill 2014
3
Schedule 1
--Amendments
1
Part 1
--Professional Services Review Scheme
2
Dental Benefits Act 2008
3
1 Section 4
4
Insert:
5
disqualified practitioner: a dental practitioner is a disqualified
6
practitioner if:
7
(a) the dental practitioner is fully disqualified under an
8
agreement in effect under section 92 of the Health Insurance
9
Act 1973; or
10
(b) the dental practitioner is fully disqualified under section 105
11
of that Act; or
12
(c) a final determination under section 106TA of that Act
13
containing a direction under paragraph 106U(1)(h) of that
14
Act that the dental practitioner be fully disqualified is in
15
effect.
16
Note:
Under section 106ZPM of the Health Insurance Act 1973 (which deals
17
with failure to produce certain documents or give certain information),
18
a person may be taken to be a disqualified practitioner for the
19
purposes of sections 20B to 20E of this Act.
20
partly disqualified practitioner: a dental practitioner is a partly
21
disqualified practitioner in relation to a dental service if:
22
(a) the dental practitioner is partly disqualified under an
23
agreement in effect under section 92 of the Health Insurance
24
Act 1973 in respect of the service; or
25
(b) a final determination under section 106TA of that Act
26
containing a direction under paragraph 106U(1)(g) of that
27
Act that the dental practitioner be partly disqualified is in
28
effect in respect of the service.
29
2 Section 10
30
Omit:
31
•
Dental benefit is not payable in certain circumstances.
32
Schedule 1 Amendments
Part 1 Professional Services Review Scheme
4
Dental Benefits Legislation Amendment Bill 2014
No. , 2014
substitute:
1
•
Dental benefit is not payable in certain circumstances,
2
including where a dental service is provided by a practitioner
3
who has been disqualified under the Health Insurance Act
4
1973.
5
•
The Minister may direct a disqualified practitioner to give
6
notice of his or her disqualification.
7
3 After section 20
8
Insert:
9
20A Dental benefit is not payable in respect of a dental service
10
rendered by a disqualified practitioner
11
Dental benefit is not payable in respect of a dental service if, at the
12
time when the service was rendered, the person who rendered the
13
service, or the dental provider on whose behalf the service was
14
rendered, was:
15
(a) a disqualified practitioner; or
16
(b) a partly disqualified practitioner in relation to the service.
17
20B Minister may direct disqualified practitioner to give notice of
18
disqualification
19
(1) The Minister may, by written instrument served on a disqualified
20
practitioner or a partly disqualified practitioner (the practitioner),
21
direct the practitioner, and persons acting on behalf of the
22
practitioner, not to render a specified dental service in respect of
23
which, under section 20A of this Act or section 106ZPM of the
24
Health Insurance Act 1973, dental benefit is not payable unless,
25
before beginning to render the service, the practitioner or a person
26
acting on behalf of the practitioner:
27
(a) gives a copy of the notice under subsection (2) to the person
28
(the service recipient) to whom the dental service is to be
29
rendered; and
30
(b) if the practitioner or person acting on behalf of the
31
practitioner has reasonable grounds for believing that the
32
service recipient is, or may be, unable to read and understand
33
Amendments Schedule 1
Professional Services Review Scheme Part 1
No. , 2014
Dental Benefits Legislation Amendment Bill 2014
5
the notice--takes reasonable steps to explain the contents of
1
the notice to the service recipient or to another person who
2
has care of the service recipient.
3
Note:
Failure to comply with a direction given under this section is an
4
offence (see section 20C).
5
(2) The instrument must:
6
(a) be accompanied by a notice:
7
(i) setting out particulars of the disqualification; and
8
(ii) explaining such of the effects of the disqualification as
9
the Minister considers appropriate; and
10
(b) specify the day on which the direction comes into effect,
11
which must not be before the instrument is served on the
12
practitioner.
13
Period during which direction remains in force
14
(3) Unless sooner revoked, a direction under subsection (1) in relation
15
to a disqualified practitioner, or a partly disqualified practitioner,
16
remains in force until the practitioner ceases to be a disqualified
17
practitioner or a partly disqualified practitioner.
18
Legislative instrument
19
(4) An instrument made under subsection (1), or a notice
20
accompanying the instrument under subsection (2), is not a
21
legislative instrument.
22
20C Strict liability offence--failure to comply with direction to give
23
notice of disqualification
24
(1) A person (the first person) commits an offence if:
25
(a) the first person is a disqualified practitioner or a partly
26
disqualified practitioner; and
27
(b) an instrument is served on the first person under section 20B;
28
and
29
(c) the instrument contains a direction; and
30
(d) the first person:
31
(i) fails to comply with the direction; or
32
(ii) causes or permits a person acting on his or her behalf to
33
fail to comply with the direction.
34
Schedule 1 Amendments
Part 1 Professional Services Review Scheme
6
Dental Benefits Legislation Amendment Bill 2014
No. , 2014
Penalty: 1 penalty unit.
1
(2) An offence against subsection (1) is an offence of strict liability.
2
Note:
For strict liability, see section 6.1 of the Criminal Code.
3
(3) Subsection (1) does not apply if the first person has a reasonable
4
excuse.
5
Note:
A defendant bears an evidential burden in relation to the matter in
6
subsection (3): see subsection 13.3(3) of the Criminal Code.
7
20D Minister may direct disqualified practitioner to display notice
8
of disqualification
9
(1) The Minister may, by written instrument served on a disqualified
10
practitioner or a partly disqualified practitioner (the practitioner),
11
direct the practitioner to display one or more notices under
12
subsection (2):
13
(a) in a specified place or places; and
14
(b) in a specified manner.
15
Note:
Failure to comply with a direction given under this subsection is an
16
offence (see section 20E).
17
(2) The instrument must:
18
(a) be accompanied by one or more notices:
19
(i) setting out particulars of the disqualification; and
20
(ii) explaining such of the effects of the disqualification as
21
the Minister considers appropriate; and
22
(b) specify the day on which the direction comes into effect,
23
which must not be before the instrument is served on the
24
practitioner.
25
(3) No more than one direction under subsection (1) may be in force in
26
relation to the practitioner at any time.
27
Period during which direction remains in force
28
(4) Unless sooner revoked, a direction under subsection (1) in relation
29
to a disqualified practitioner, or a partly disqualified practitioner,
30
remains in force until the practitioner ceases to be a disqualified
31
practitioner or a partly disqualified practitioner.
32
Amendments Schedule 1
Professional Services Review Scheme Part 1
No. , 2014
Dental Benefits Legislation Amendment Bill 2014
7
Legislative instrument
1
(5) An instrument made under subsection (1), or a notice
2
accompanying the instrument under subsection (2), is not a
3
legislative instrument.
4
20E Strict liability offence--failure to comply with direction to
5
display notice of disqualification
6
(1) A person commits an offence if:
7
(a) the person is a disqualified practitioner or a partly
8
disqualified practitioner; and
9
(b) an instrument is served on the practitioner under section 20D;
10
and
11
(c) the instrument contains a direction; and
12
(d) the person fails to comply with the direction.
13
Penalty: 1 penalty unit.
14
(2) An offence against subsection (1) is an offence of strict liability.
15
Note:
For strict liability, see section 6.1 of the Criminal Code.
16
(3) A person who commits an offence against subsection (1) commits
17
a separate offence in respect of each day (including the day of a
18
conviction under this section or any later day) during which the
19
offence continues.
20
(4) Subsection (1) does not apply if the person has a reasonable
21
excuse.
22
Note:
A defendant bears an evidential burden in relation to the matter in
23
subsection (4): see subsection 13.3(3) of the Criminal Code.
24
4 Paragraphs 35(a) and (b)
25
After "this Act", insert "or the Health Insurance Act 1973".
26
Health Insurance Act 1973
27
5 Subsection 3(1)
28
Insert:
29
Schedule 1 Amendments
Part 1 Professional Services Review Scheme
8
Dental Benefits Legislation Amendment Bill 2014
No. , 2014
dental benefit has the same meaning as in the Dental Benefits Act
1
2008.
2
relevant dental benefits offence means:
3
(a) an offence against section 50, 51, 52, 53 or 54 of the Dental
4
Benefits Act 2008; or
5
(b) an offence against:
6
(i) section 6 of the Crimes Act 1914; or
7
(ii) section 11.1, 11.4 or 11.5 of the Criminal Code;
8
that relates to an offence referred to in paragraph (a) of this
9
definition; or
10
(c) an offence against section 134.1, 134.2, 135.1, 135.2, 135.4,
11
136.1, 137.1, 144.1, 145.1, 145.4 or 145.5 of the Criminal
12
Code that relates to a claim for payment in respect of the
13
rendering of a dental service (within the meaning of the
14
Dental Benefits Act 2008).
15
6 Section 79A
16
After "medicare benefits", insert ", dental benefits".
17
7 Subsections 80A(1) and (2)
18
After "medicare benefit", insert "or dental benefit".
19
8 Subsection 81(1) (paragraph (a) of the definition of service)
20
After "medicare benefit", insert "or dental benefit".
21
9 Subsection 81(1) (note at the end of the definition of
22
service)
23
After "Note", insert "1".
24
10 Subsection 81(1) (at the end of the definition of service)
25
Add:
26
Note 2:
See the Dental Benefits Act 2008 for when a dental benefit is payable.
27
11 Section 89A (heading)
28
Repeal the heading, substitute:
29
Amendments Schedule 1
Professional Services Review Scheme Part 1
No. , 2014
Dental Benefits Legislation Amendment Bill 2014
9
89A Director may refer material to Chief Executive Medicare if
1
certain offences or civil contraventions are suspected
2
12 Subsection 89A(1)
3
After "section 124B,", insert "or a relevant dental benefits offence,".
4
13 Paragraphs 92(2)(b) and (c)
5
After "medicare benefit" (wherever occurring), insert "or dental
6
benefit".
7
14 Subsection 92(2) (note)
8
Repeal the note, substitute:
9
Note:
Medicare benefits and dental benefits are not payable in respect of
10
services rendered or initiated by, or on behalf of, disqualified
11
practitioners (see section 19B of this Act in relation to medicare
12
benefits, and section 20A of the Dental Benefits Act 2008 in relation to
13
dental benefits).
14
15 Paragraph 92(4)(e)
15
After "medicare benefit", insert "or dental benefit".
16
16 Section 106N (heading)
17
Repeal the heading, substitute:
18
106N Committee may refer material to Chief Executive Medicare if
19
certain offences or civil contraventions are suspected
20
17 Subsection 106N(1)
21
After "section 124B,", insert "or a relevant dental benefits offence,".
22
18 Paragraphs 106U(1)(c) and (ca)
23
After "medicare benefit" (wherever occurring), insert "or dental
24
benefit".
25
19 Paragraph 106U(1)(cb)
26
After "medicare benefits" (wherever occurring), insert "or dental
27
benefits".
28
Schedule 1 Amendments
Part 1 Professional Services Review Scheme
10
Dental Benefits Legislation Amendment Bill 2014
No. , 2014
20 Subsection 106U(1) (note)
1
Repeal the note, substitute:
2
Note:
Medicare benefits and dental benefits are not payable in respect of
3
services rendered or initiated by, or on behalf of, disqualified
4
practitioners (see section 19B of this Act in relation to medicare
5
benefits, and section 20A of the Dental Benefits Act 2008 in relation to
6
dental benefits).
7
21 Subsection 106ZPM(1)
8
After "medicare benefit", insert "or dental benefit".
9
22 Subsection 106ZPM(2)
10
After "medicare benefits", insert "and dental benefits".
11
23 Paragraph 106ZPM(4)(a)
12
After "medicare benefits", insert "and dental benefits".
13
24 Subsection 106ZPM(4)
14
Omit all the words after "the person is", substitute:
15
taken to be:
16
(c) fully disqualified at that time for the purposes of section 19D;
17
and
18
(d) a disqualified practitioner for the purposes of sections 20B to
19
20E of the Dental Benefits Act 2008.
20
25 Subsection 106ZR(1)
21
After "this Act" (wherever occurring), insert "or the Dental Benefits Act
22
2008".
23
26 Subsection 129AAC(1)
24
Omit "or relevant civil contravention", substitute ", relevant civil
25
contravention or relevant dental benefits offence".
26
27 Application of amendments
27
(1)
The amendments made by this Part (other than items 12, 17 and 26)
28
apply in relation to services provided on or after the day this Part
29
commences.
30
Amendments Schedule 1
Professional Services Review Scheme Part 1
No. , 2014
Dental Benefits Legislation Amendment Bill 2014
11
(2)
The amendments made by items 12 and 17 apply in relation to relevant
1
dental benefits offences committed on or after the day this Part
2
commences.
3
(3)
The amendment made by item 26 applies in relation to relevant dental
4
benefits offences whether committed before, on or after the day this Part
5
commences.
6
Schedule 1 Amendments
Part 2 Waiver of debts arising in relation to the Chronic Disease Dental Scheme
12
Dental Benefits Legislation Amendment Bill 2014
No. , 2014
Part 2
--Waiver of debts arising in relation to the
1
Chronic Disease Dental Scheme
2
Health Insurance Act 1973
3
28 After section 129AEC
4
Insert:
5
129AED Waiver and repayment of certain debts arising under the
6
Chronic Disease Dental Scheme
7
When this section applies
8
(1) This section applies in relation to a purported payment of medicare
9
benefit in respect of a service referred to in Schedule 1 to the
10
Health Insurance (Dental Services) Determination 2007 if:
11
(a) the service was provided by a dental practitioner; and
12
(b) the payment exceeded the amount (if any) that should have
13
been paid; and
14
(c) there was a failure to comply with subsection 10(2)
15
(quotation for dental services and reporting) of the
16
Determination in relation to the service; and
17
(d) the Chief Executive Medicare is satisfied that the excess is
18
solely attributable to the failure to comply with
19
subsection 10(2) of the Determination.
20
Note:
The Determination was made under subsection 3C(1) of this Act. It
21
ceased at midnight 30 November 2012 (see section 2A of the
22
Determination).
23
(2) However, this section does not apply in relation to a purported
24
payment of medicare benefit in respect of a service that was
25
rendered on or after 1 April 2010 unless, before the end of
26
30 November 2014, the dental practitioner provides or has
27
provided the Chief Executive Medicare with evidence that the
28
documents that, under subsection 10(2) of the Determination,
29
should have been given to the patient and general practitioner
30
before the relevant course of treatment began have since been
31
given to those persons.
32
Amendments Schedule 1
Waiver of debts arising in relation to the Chronic Disease Dental Scheme Part 2
No. , 2014
Dental Benefits Legislation Amendment Bill 2014
13
Waiver and repayment of debts
1
(3) If the excess, or part of the excess, is recoverable under
2
section 129AC as a debt due to the Commonwealth, the Chief
3
Executive Medicare must, on behalf of the Commonwealth, waive
4
the debt.
5
(4) If the excess, or part of the excess:
6
(a) has been repaid to the Commonwealth by a person (or a
7
person's estate); or
8
(b) has otherwise been recovered by the Commonwealth from a
9
person (or a person's estate), including by way of set-off;
10
the Chief Executive Medicare must, on behalf of the
11
Commonwealth, pay to the person (or to the person's estate) the
12
amount paid or recovered.
13
(5) An amount payable under subsection (4) is reduced by any amount
14
already paid by the Commonwealth in respect of the repaid or
15
recovered amount.
16
(6) A reference in subsection (3), (4) or (5) to an excess includes:
17
(a) any amount of administrative penalty for which the dental
18
practitioner is liable to the Commonwealth under
19
section 129AEA in relation to the excess; and
20
(b) any interest paid or payable in relation to the excess under
21
subsection 129AC(2) or (3).
22
129AEE Notice of decision to waive, or not to waive, a debt
23
(1) The Chief Executive Medicare must give written notice of the
24
following decisions:
25
(a) a decision to waive a debt under subsection 129AED(3);
26
(b) a decision to pay an amount under subsection 129AED(4);
27
(c) a decision not to waive a debt under subsection 129AED(3),
28
or not to pay an amount under subsection 129AED(4),
29
because the Chief Executive Medicare is not satisfied of the
30
matter referred to in paragraph 129AED(1)(d).
31
(2) The notice must be given to the dental practitioner who provided
32
the service referred to in subsection 129AED(1), or to his or her
33
estate.
34
Schedule 1 Amendments
Part 2 Waiver of debts arising in relation to the Chronic Disease Dental Scheme
14
Dental Benefits Legislation Amendment Bill 2014
No. , 2014
(3) A failure to give notice under this section of a decision does not
1
affect the validity of the decision.
2
Amendments Schedule 1
Compliance Part 3
No. , 2014
Dental Benefits Legislation Amendment Bill 2014
15
Part 3
--Compliance
1
Dental Benefits Act 2008
2
29 Section 3
3
Omit:
4
•
This Act also makes provision in relation to the disclosure of
5
information, offences against this Act and other matters.
6
substitute:
7
•
This Act also makes provision in relation to the obtaining of
8
documents relevant to ascertaining whether amounts should
9
have been paid, the disclosure of information, offences against
10
this Act and other matters.
11
30 Section 4
12
Insert:
13
Human Services employee means a Departmental employee,
14
within the meaning of the Human Services (Medicare) Act 1973.
15
medical practitioner has the same meaning as in the Health
16
Insurance Act 1973.
17
medicare number has the same meaning as in subsection 84(1) of
18
the National Health Act 1953.
19
31 After Part 4
20
Insert:
21
Schedule 1 Amendments
Part 3 Compliance
16
Dental Benefits Legislation Amendment Bill 2014
No. , 2014
Part 4A--Power to obtain documents etc. relevant
1
to ascertaining whether amounts should
2
have been paid
3
4
32A Simplified outline
5
The following is a simplified outline of this Part:
6
•
The Chief Executive Medicare may require the production of
7
documents etc. relevant to ascertaining whether amounts
8
should have been paid.
9
•
A failure to comply may lead to debt recovery action or to a
10
civil penalty.
11
•
The Chief Executive Medicare and Human Services
12
employees may deal with documents etc. produced.
13
32B When this Part applies
14
(1) This Part applies if the Chief Executive Medicare:
15
(a) has a reasonable concern that an amount paid, purportedly by
16
way of dental benefit, in respect of one or more dental
17
services, may exceed the amount (if any) that should have
18
been paid; and
19
(b) has taken into account advice given to him or her by a dental
20
practitioner, or a medical practitioner, who is a Human
21
Services employee about the types of documents that contain
22
information relevant to ascertaining whether amounts paid in
23
respect of dental services of the same kind or kinds as the
24
service or services referred to in paragraph (a) should have
25
been paid; and
26
(c) has taken reasonable steps to consult with a relevant
27
professional body about the types of documents that contain
28
information relevant to ascertaining whether amounts paid in
29
respect of dental services of the same kind or kinds as the
30
service or services referred to in paragraph (a) should have
31
been paid.
32
Amendments Schedule 1
Compliance Part 3
No. , 2014
Dental Benefits Legislation Amendment Bill 2014
17
Note:
For the purposes of paragraph (a), the Chief Executive Medicare may,
1
for example, have a reasonable concern about payments made in
2
respect of:
3
(a) dental services rendered by or on behalf of individual dental
4
providers; or
5
(b) dental services rendered by or on behalf of particular kinds of
6
dental providers; or
7
(c) the rendering of dental services to which specific items, or
8
groups of items, relate.
9
(2) In forming a reasonable concern for the purposes of subsection (1),
10
the Chief Executive Medicare is not to take account of whether the
11
service is clinically relevant.
12
Definition
13
(3) In this section:
14
relevant professional body means a body declared by the Minister
15
under subsection (4) to be a relevant professional body.
16
(4) The Minister may, by legislative instrument, declare a body to be a
17
relevant professional body for the purposes of this section.
18
32C Chief Executive Medicare may require person to produce
19
documents etc.
20
Power to give notice requiring production of documents etc.
21
(1) If the Chief Executive Medicare believes on reasonable grounds
22
that:
23
(a) a person:
24
(i) who rendered a dental service in respect of which an
25
amount has been paid that is the subject of the Chief
26
Executive Medicare's concern referred to in
27
paragraph 32B(1)(a); or
28
(ii) on whose behalf such a dental service was rendered; or
29
(b) another person, not being:
30
(i) the person in respect of whom the dental service was
31
rendered; or
32
(ii) the person who incurred the dental expenses in respect
33
of the service;
34
Schedule 1 Amendments
Part 3 Compliance
18
Dental Benefits Legislation Amendment Bill 2014
No. , 2014
has possession, custody or control of one or more documents
1
relevant to ascertaining whether the amount paid in respect of the
2
dental service should have been paid, the Chief Executive
3
Medicare may, by written notice given to the person, require the
4
person to do any or all of the things mentioned in subsection (2)
5
within a period specified in the notice.
6
Note:
For a person referred to in paragraph (a), failure to comply with a
7
notice may lead to debt recovery action (see section 56A). For a
8
person referred to in paragraph (b), failure to comply with a notice
9
may lead to a civil penalty (see section 32D).
10
(2) The Chief Executive Medicare may require the person, in relation
11
to each dental service specified in the notice:
12
(a) subject to subsection (3), to produce to the Chief Executive
13
Medicare, or a Human Services employee, any document, or
14
extract of any document, that is relevant for the purpose set
15
out in subsection (1); or
16
(b) to make a copy of any such document or extract and to
17
produce that copy to the Chief Executive Medicare or a
18
Human Services employee.
19
(3) If a document, extract or copy contains clinical details relating to
20
an individual, the person to whom the notice is given is not
21
required to produce the document, extract or copy to a person other
22
than a Human Services employee who is a dental practitioner or a
23
medical practitioner.
24
Limitations on power to give notice: person must first have been
25
given opportunity to respond to a request
26
(4) The Chief Executive Medicare must not give a notice to a person
27
under subsection (1) in respect of a dental service unless the Chief
28
Executive Medicare has given the person a reasonable opportunity
29
to respond to a written request (other than under this section) to
30
produce to the Chief Executive Medicare, or a Human Services
31
employee, documents relevant to ascertaining whether the amount
32
paid, purportedly by way of dental benefit, in respect of the
33
service, should have been paid.
34
Amendments Schedule 1
Compliance Part 3
No. , 2014
Dental Benefits Legislation Amendment Bill 2014
19
Limitations on power to give notice: notice can only be given in
1
respect of dental service rendered in the last 2 years
2
(5) A notice under subsection (1) can only be given in respect of a
3
dental service that was rendered in the period of 2 years
4
immediately before the notice is given.
5
Content of notice
6
(6) A notice under subsection (1) must:
7
(a) specify details of each dental service (including the item, date
8
on which the service was rendered and medicare number of
9
the person in respect of whom the service was rendered) in
10
relation to which the document, extract or copy is to be
11
produced; and
12
(b) specify the reason or reasons for the Chief Executive
13
Medicare's concern that an amount paid, purportedly by way
14
of dental benefit, in respect of each such service may exceed
15
the amount (if any) that should have been paid; and
16
(c) specify the information relevant to ascertaining whether
17
amounts paid in respect of each such service should have
18
been paid; and
19
(d) specify how the document, extract or copy is to be produced;
20
and
21
(e) contain a statement to the effect that the person to whom the
22
notice is given is not expected to produce a document, extract
23
or copy containing clinical details relating to an individual
24
unless the document, extract or copy is necessary to
25
ascertaining whether the amount paid in respect of the service
26
should have been paid; and
27
(f) specify the period within which, and place at which, the
28
document, extract or copy is to be produced.
29
The period specified under paragraph (f) must be a period ending
30
at least 21 days after the day on which the notice is given.
31
Note:
For the purpose of paragraphs (b) and (c) the notice will include the
32
reason for the Chief Executive Medicare's concern about the payment
33
and explain the factual issue that the person is required to substantiate.
34
Schedule 1 Amendments
Part 3 Compliance
20
Dental Benefits Legislation Amendment Bill 2014
No. , 2014
Health information within the meaning of the Privacy Act 1988
1
(7) The power under this section to require a document, extract or
2
copy to be produced includes the power to require the production
3
of a document, extract or copy containing health information
4
(within the meaning of the Privacy Act 1988) about an individual.
5
Section is not limited by other provisions
6
(8) This section is not limited by:
7
(a) any other provision of this Act; or
8
(b) any provision of the Human Services (Medicare) Act 1973 or
9
any other Act;
10
that relates to the powers of the Chief Executive Medicare to
11
require the production of documents.
12
32D Civil penalty--failure to comply with requirement in notice
13
(1) A person referred to in paragraph 32C(1)(b) contravenes this
14
section if:
15
(a) the person is given a notice under section 32C requiring the
16
person to do something in respect of a dental service; and
17
(b) the person fails to comply with the requirement within the
18
period specified in the notice.
19
Civil penalty:
20
(a) for an individual--20 penalty units; and
21
(b) for a body corporate--100 penalty units.
22
(2) It is a defence in proceedings against a person for a contravention
23
of subsection (1) if the person proves (on the balance of
24
probabilities) that:
25
(a) the failure to comply is brought about by another person over
26
whom the person has no control or by a non-human act or
27
event over which the person has no control; and
28
(b) the person could not reasonably be expected to guard against
29
the failure.
30
(3) Part VIA of the Health Insurance Act 1973 applies in relation to
31
this section as if subsection (1) of this section were a civil penalty
32
provision as defined in section 125B of that Act.
33
Amendments Schedule 1
Compliance Part 3
No. , 2014
Dental Benefits Legislation Amendment Bill 2014
21
Note:
Part VIA of the Health Insurance Act 1973 provides a regime for the
1
obtaining of orders for a civil penalty.
2
32E Self-incrimination etc.
3
(1) A person is not excused from producing a document, extract or
4
copy when required to do so under section 32C on the ground that
5
doing so would tend to incriminate the person or expose the person
6
to a penalty.
7
(2) However, in the case of an individual:
8
(a) the document, extract or copy produced; and
9
(b) producing the document, extract or copy; and
10
(c) any information, document or thing obtained as a direct or
11
indirect consequence of producing the document, extract or
12
copy;
13
are not admissible in evidence against the individual in:
14
(d) any criminal proceedings, other than:
15
(i) proceedings for an offence against this Act dealing with
16
false or misleading statements; and
17
(ii) proceedings for an offence against section 137.1 or
18
137.2 of the Criminal Code (which deals with false or
19
misleading information or documents) that relates to
20
this Act; or
21
(e) any civil proceedings, other than a civil proceeding arising
22
under section 32D, or Division 4 of Part 6, of this Act.
23
32F Chief Executive Medicare or Human Services employee may
24
deal with documents etc. produced
25
Power to inspect, copy and retain document etc.
26
(1) If a document, extract or copy has been produced under
27
section 32C in respect of a dental service, the Chief Executive
28
Medicare, or a Human Services employee, may do all or any of the
29
things mentioned in subsection (2) for the purpose of ascertaining
30
whether the information contained in the document, extract or copy
31
properly substantiates that an amount paid, purportedly by way of
32
dental benefit, in respect of the service, should have been paid.
33
Note:
If the information does not properly substantiate the amount, debt
34
recovery action may be taken (see section 56A).
35
Schedule 1 Amendments
Part 3 Compliance
22
Dental Benefits Legislation Amendment Bill 2014
No. , 2014
(2) The Chief Executive Medicare or Human Services employee may:
1
(a) inspect the document, extract or copy; and
2
(b) make a copy of, or take an extract from, the document,
3
extract or copy; and
4
(c) retain the document, extract or copy in his or her possession
5
for such reasonable period as he or she thinks fit.
6
Rights of person otherwise entitled to possession of document or
7
extract
8
(3) The person otherwise entitled to possession of the document or
9
extract is entitled to be supplied, as soon as practicable, with a
10
copy certified by the Chief Executive Medicare, or a Human
11
Services employee, to be a true copy.
12
(4) The certified copy must be received in all courts and tribunals as
13
evidence as if it were the original.
14
(5) Until a certified copy is supplied, the Chief Executive Medicare, or
15
a Human Services employee, must, at such times and places as he
16
or she thinks appropriate, permit the person otherwise entitled to
17
possession of the document or extract, or a person authorised by
18
that person, to inspect and make copies of, or take extracts from,
19
the document or extract.
20
Section is not limited by other provisions
21
(6) This section is not limited by:
22
(a) any other provision of this Act; or
23
(b) any provision of the Human Services (Medicare) Act 1973 or
24
any other Act;
25
that relates to the powers of the Chief Executive Medicare, or a
26
Human Services employee, to deal with a document, extract or
27
copy as described in subsection (2) of this section.
28
Human Services employees
29
(7) A Human Services employee referred to in this section may be an
30
employee other than the employee to whom the document, extract
31
or copy was required to be produced.
32
Amendments Schedule 1
Compliance Part 3
No. , 2014
Dental Benefits Legislation Amendment Bill 2014
23
32 Paragraph 34(2)(b)
1
Repeal the paragraph, substitute:
2
(b) a Human Services employee;
3
33 Section 47
4
Omit:
5
•
Division 4 of this Part deals with the recovery of amounts paid
6
because of false or misleading statements.
7
substitute:
8
•
Division 4 of this Part deals with the recovery of amounts paid
9
under this Act.
10
34 Division 4 of Part 6 (heading)
11
Repeal the heading, substitute:
12
Division 4--Recovery of amounts paid under this Act
13
35 Section 56 (heading)
14
Repeal the heading, substitute:
15
56 Recovery of amounts paid: false or misleading statements
16
36 At the end of subsection 56(2)
17
Add:
18
Note:
See section 56D for review of decisions.
19
37 After section 56
20
Insert:
21
Schedule 1 Amendments
Part 3 Compliance
24
Dental Benefits Legislation Amendment Bill 2014
No. , 2014
56A Recovery of amounts paid: requirements under Part 4A to
1
produce documents
2
Failure to produce document: notice to person referred to in
3
paragraph 32C(1)(a)
4
(1) If:
5
(a) a person referred to in paragraph 32C(1)(a) is required, by a
6
notice given under section 32C, to produce a document,
7
extract or copy in respect of a dental service; and
8
(b) the person does not comply with the requirement within the
9
period specified in the notice;
10
the amount paid, purportedly by way of dental benefit, in respect of
11
the service, is recoverable as a debt due to the Commonwealth
12
from the person, or the estate of the person.
13
(2) Subsection (1) does not apply if the person concerned satisfies the
14
Chief Executive Medicare that the person's non-compliance is due
15
to circumstances beyond the person's control.
16
Note:
See section 56D for review of decisions.
17
Amount not properly substantiated: notice to person referred to in
18
paragraph 32C(1)(a)
19
(3) If:
20
(a) a person referred to in paragraph 32C(1)(a) is required, by a
21
notice given under section 32C, to produce a document,
22
extract or copy in respect of a dental service; and
23
(b) the person complies with the requirement within the period
24
specified in the notice; and
25
(c) the information contained in the document, extract or copy
26
does not properly substantiate (wholly or partly) that the
27
amount paid, purportedly by way of dental benefit, in respect
28
of the service, should have been paid;
29
then, to the extent that the amount is not properly substantiated, the
30
amount is recoverable as a debt due to the Commonwealth from
31
the person, or the estate of the person.
32
(4) Subsection (3) does not apply if the person concerned satisfies the
33
Chief Executive Medicare that the reason that the information
34
contained in the document, extract or copy does not properly
35
Amendments Schedule 1
Compliance Part 3
No. , 2014
Dental Benefits Legislation Amendment Bill 2014
25
substantiate the amount is due to circumstances beyond the
1
person's control.
2
Note:
See section 56D for review of decisions.
3
Amount not properly substantiated: notice to person referred to in
4
paragraph 32C(1)(b)
5
(5) If:
6
(a) a person (the notice recipient) referred to in
7
paragraph 32C(1)(b) is required, by a notice given under
8
section 32C, to produce a document, extract or copy in
9
respect of a dental service; and
10
(b) the notice recipient complies with the requirement within the
11
period specified in the notice; and
12
(c) the information contained in the document, extract or copy
13
does not properly substantiate (wholly or partly) that the
14
amount paid, purportedly by way of dental benefit, in respect
15
of the service, should have been paid;
16
then, to the extent that the amount is not properly substantiated, the
17
amount is recoverable as a debt due to the Commonwealth from:
18
(d) the person who rendered the service, or on whose behalf the
19
service was rendered; or
20
(e) the estate of that person.
21
(6) Subsection (5) does not apply if the person from whom the amount
22
concerned is recoverable satisfies the Chief Executive Medicare
23
that the reason that the information contained in the document,
24
extract or copy does not properly substantiate the amount is due to
25
circumstances beyond the control of the person and the notice
26
recipient.
27
Note:
See section 56D for review of decisions.
28
Amount is recoverable from a person under this section whether or
29
not the amount was paid to that person
30
(7) An amount is recoverable from a person as mentioned in
31
subsection (1), (3) or (5) whether or not the amount was paid to
32
that person.
33
Schedule 1 Amendments
Part 3 Compliance
26
Dental Benefits Legislation Amendment Bill 2014
No. , 2014
56B Notice of decision that document etc. produced substantiates
1
that amount paid should have been paid
2
Amount paid substantiated
3
(1) If:
4
(a) a person produces to the Chief Executive Medicare, or to a
5
Human Services employee, a document, extract or copy
6
relating to a dental service after being requested, or required
7
under section 32C, to do so; and
8
(b) the Chief Executive Medicare decides that the information
9
contained in the document, extract or copy properly
10
substantiates that the amount paid, by way of dental benefit,
11
in respect of the service, should have been paid;
12
the Chief Executive Medicare must give the person written notice
13
of the decision.
14
Circumstances beyond control exist
15
(2) If the Chief Executive Medicare is satisfied, for the purposes of
16
subsection 56A(2) or (4), that circumstances beyond a person's
17
control exist, the Chief Executive Medicare must give the person
18
written notice of the decision.
19
(3) If the Chief Executive Medicare is satisfied, for the purposes of
20
subsection 56A(6), that circumstances exist beyond the control of:
21
(a) the person from whom the amount concerned is recoverable;
22
and
23
(b) the recipient of the notice concerned;
24
the Chief Executive Medicare must give written notice of the
25
decision to the person from whom the amount concerned is
26
recoverable.
27
Notice may include notice of other decisions
28
(4) The Chief Executive Medicare's written notice to a person of a
29
decision may include written notice of other decisions referred to
30
in this section, or section 56C, that also are required to be given to
31
the person.
32
Amendments Schedule 1
Compliance Part 3
No. , 2014
Dental Benefits Legislation Amendment Bill 2014
27
56C Notice of decision to claim amount as debt
1
(1) If an amount is recoverable under subsection 56(2), or 56A(1), (3)
2
or (5), as a debt due to the Commonwealth from a person, or from
3
an estate, the Chief Executive Medicare must give written notice to
4
the person or estate of:
5
(a) the decision to claim the amount as a debt; and
6
(b) the reasons for the decision; and
7
(c) the right of the person or estate to seek review of the decision
8
under subsection 56D(1).
9
(2) The written notice may also include notice of other decisions
10
referred to in this section, or section 56B, that also are required to
11
be given to the person or estate. The notice may also, as
12
appropriate, state that the Chief Executive Medicare was not
13
satisfied, for the purposes of subsection 56A(2), (4) or (6), that
14
circumstances beyond a person's control existed.
15
(3) A failure to comply with the requirements of subsection (1) does
16
not affect the validity of the decision.
17
(4) The Chief Executive Medicare must not serve a notice on a person
18
or an estate claiming an amount as a debt before the end of the
19
period of 28 days after written notice of the decision referred to in
20
subsection (1) is given to the person or estate.
21
56D Review of decision to claim amounts as debt
22
(1) If the Chief Executive Medicare makes a decision referred to in
23
subsection 56C(1) about a person or an estate, the person or estate
24
may apply in writing to the Chief Executive Medicare, in the form
25
approved in writing by the Chief Executive Medicare, for a review
26
of the decision.
27
(2) In making an application under subsection (1), the person or estate
28
may provide the Chief Executive Medicare with additional
29
information to substantiate (wholly or partly) that the amount paid,
30
purportedly by way of dental benefit in respect of the service,
31
should have been paid.
32
(3) An application for review of a decision must be made within 28
33
days after the person or estate is notified of the decision.
34
Schedule 1 Amendments
Part 3 Compliance
28
Dental Benefits Legislation Amendment Bill 2014
No. , 2014
(4) On receiving an application for review of a decision, the Chief
1
Executive Medicare must:
2
(a) review the decision; and
3
(b) confirm, vary or revoke the decision.
4
(5) The Chief Executive Medicare must give to the applicant written
5
notice of the decision on the review within 28 days after receiving
6
the application for review.
7
(6) To avoid doubt, a decision referred to in subsection 56C(1)
8
(including such a decision varied under this section) may be
9
reviewed under this section once only.
10
38 Section 57 (heading)
11
Repeal the heading, substitute:
12
57 Interest payable on recoverable amounts
13
39 Subsection 57(1)
14
After "section 56", insert "or 56A".
15
40 Section 58 (heading)
16
Repeal the heading, substitute:
17
58 Recovering amounts by reducing future payments
18
41 Subsections 58(1) and (2)
19
Repeal the subsections, substitute:
20
(1) The Chief Executive Medicare may reduce one or more amounts of
21
dental benefit payable to a person if:
22
(a) the following conditions are satisfied:
23
(i) an amount or amounts have previously been paid under
24
this Act to the person purportedly by way of dental
25
benefit;
26
(ii) the amount or amounts referred to in subparagraph (i)
27
exceed the amount (if any) that should have been paid to
28
the person (whether or not the excess is recoverable as
29
mentioned in paragraph (b)); or
30
Amendments Schedule 1
Compliance Part 3
No. , 2014
Dental Benefits Legislation Amendment Bill 2014
29
(b) an amount is recoverable from the person under section 56 or
1
56A.
2
(2) The reduction limit is the excess referred to in
3
subparagraph (1)(a)(ii), or the amount referred to in
4
paragraph (1)(b), as the case requires.
5
42 Subsection 58(3)
6
Omit "overpayment amount", substitute "reduction limit".
7
43 Paragraph 58(4)(b)
8
After "section 56", insert "or 56A".
9
44 Subsection 58(4)
10
Omit "overpayment amount", substitute "reduction limit".
11
45 At the end of Division 4 of Part 6
12
Add:
13
58A Amounts recoverable once only
14
To avoid doubt, an amount paid purportedly by way of dental
15
benefit is recoverable under this Division once only.
16
46 Application of amendments
17
The amendments made by this Part apply in relation to amounts paid,
18
purportedly by way of dental benefits, whether before or after the
19
commencement of the amendments.
20
Schedule 1 Amendments
Part 4 Delegation of Ministerial powers
30
Dental Benefits Legislation Amendment Bill 2014
No. , 2014
Part 4
--Delegation of Ministerial powers
1
Dental Benefits Act 2008
2
47 Section 63
3
Omit:
4
(c)
the delegation of the Secretary's functions or powers
5
under this Act; and
6
substitute:
7
(c)
the delegation of the functions and powers of the
8
Minister or the Secretary under this Act; and
9
48 Before subsection 66(1)
10
Insert:
11
Delegation by Minister
12
(1A) The Minister may, by writing, delegate any or all of his or her
13
functions or powers under this Act to:
14
(a) the Secretary; or
15
(b) an SES employee, or acting SES employee, in the
16
Department.
17
Note:
The expressions SES employee and acting SES employee are defined
18
in section 2B of the Acts Interpretation Act 1901.
19
(1B) In exercising powers or performing functions delegated under
20
subsection (1A), the delegate must comply with any directions of
21
the Minister.
22
Delegation by Secretary
23
Amendments Schedule 1
Dental providers Part 5
No. , 2014
Dental Benefits Legislation Amendment Bill 2014
31
Part 5
--Dental providers
1
Dental Benefits Act 2008
2
49 Paragraph 6(1)(a)
3
Repeal the paragraph, substitute:
4
(a) a dental practitioner who has general registration, or
5
specialist registration, in the dentists division of the dental
6
profession under a law of a State or Territory;
7
Schedule 1 Amendments
Part 6 Provision of information
32
Dental Benefits Legislation Amendment Bill 2014
No. , 2014
Part 6
--Provision of information
1
Dental Benefits Act 2008
2
50 At the end of paragraph 41(1)(c)
3
Add:
4
(vi) the Veterans' Entitlements Act 1986; or
5
Amendments Schedule 1
Technical amendment Part 7
No. , 2014
Dental Benefits Legislation Amendment Bill 2014
33
Part 7
--Technical amendment
1
Dental Benefits Act 2008
2
51 Section 4 (paragraph (b) of the definition of this Act)
3
Omit "Services", substitute "Benefits".
4