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1998
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
HEALTH LEGISLATION AMENDMENT
(HEALTH CARE
AGREEMENTS) BILL 1998
EXPLANATORY
MEMORANDUM
(Circulated by authority of the Minister for Health and Family
Services,
the Hon. Dr Michael Wooldridge, MP)
ISBN: 0644 517247
HEALTH LEGISLATION AMENDMENT
(HEALTH CARE AGREEMENTS) BILL 1998
OUTLINE
The purpose of this Bill is to establish a legislative basis for the
Commonwealth to enter into agreements with the States and Territories, to be
known as Australian Health Care Agreements, for the provision of designated
health care services for eligible people over the period 1 July 1998 to
30 June 2003.
The Australian Health Care Agreements will
replace existing agreements under section 24 of the Health Insurance Act
1973, known as Medicare Agreements, which expire on
30 June 1998.
FINANCIAL IMPACT STATEMENT
The financial impact will depend on the details of agreements entered into
between the Commonwealth and the States and Territories under section 26 of the
Health Insurance Act 1973 as amended by this Bill, but the Commonwealth
expects to provide around $29 billion over the period 1998-99 to
2002-03.
HEALTH LEGISLATION AMENDMENT
(HEALTH CARE AGREEMENTS) BILL 1998
Notes on Clauses
Clause 1 Short title
This clause cites the title of the
proposed legislation as the Health Legislation Amendment (Health Care
Agreements) Act 1998.
Clause 2 Commencement
This clause
provides that the Act will commence on the day on which it receives Royal
Assent, except for the provisions establishing the Health Care Information
Commissioner which are to commence from a date to be proclaimed, and which are
taken to be repealed if they are not proclaimed within twelve months of Royal
Assent.
Clause 3 Schedule(s)
This clause provides that Acts
specified in the Schedules are amended as set out in the Schedules, and that
other provisions have effect according to their terms.
Schedule 1 - Amendment of the Health Insurance Act 1973 and related matters
Item 1 Subsection 3(1) (definition of hospital)
This
item is a consequential amendment resulting from replacing the definition of
“recognized hospital” with a definition of “public
hospital”.
Item 2 Subsection 3(1) (definition of Information
Commissioner)
This item inserts a definition of “Information
Commissioner” as the Health Care Information Commissioner established
under new Part IIIA.
Item 3 Subsection 3(1) (definition of patient
contribution)
This item is a consequential amendment resulting from
replacing the definition of “recognized hospital” with a definition
of “public hospital”.
Item 4 Subsection 3(1) (definition
of private hospital)
This item, in conjunction with item 1 in
Schedule 2, has the effect of moving the definition of “private
hospital” from the Health Insurance Act 1973 to the National
Health Act 1953. This will put together in the National Health Act similar
provisions relating to the definition of private hospital and private day
hospital.
Item 5 Subsection 3(1) (definition of public
hospital)
This item inserts a definition of “public
hospital” as a hospital (other than a private hospital or day hospital
facility) where hospital services to public patients are wholly or partly funded
by a State, or a hospital declared as a public hospital by the Minister. Under
the Act as it presently stands the term “recognized hospital”
effectively means a “public hospital” as the term is commonly
understood, and the amendment is intended to clarify the meaning of the
Act.
Item 6 Subsection 3(1) (definition of recognized
hospital)
This item is a consequential amendment resulting from
replacing the definition of “recognized hospital” with a definition
of “public hospital”.
Item 7 Transitional
provision
This item preserves existing regulations made under the Act
that refer to “recognized hospital” or “recognised
hospital” and that would otherwise cease to have effect as that term is
replaced by “public hospital”.
Item 8 Subsection
3(15)
This item is a consequential amendment resulting from replacing
the definition of “recognized hospital” with a definition of
“public hospital”.
Item 9 Subsection
3(15)
This item provides that for the purpose of the definition of
“public hospital”, “State” includes the Australian
Capital Territory.
Item 10 Subparagraph
16A(5AA)(d)(iii)
This item is a consequential amendment resulting
from replacing the definition of “recognised hospital” with a
definition of “public hospital”.
Item 11 Paragraph
17(1)(a)
This item is a consequential amendment resulting from
replacing the definition of “recognized hospital” with a definition
of “public hospital”.
Item 12 Part III - Payments for
designated health services
This item repeals Part III and replaces it
with a new Part III which will include four Divisions:
. Division 1 -
Preliminary including new sections 24 and 25;
. Division 2 - Agreements
with the State for provision of designated health services and related matters
from 1 July 1998 including new sections 26 to 32;
. Division 3 -
National Health Development Special Assistance including new sections 33 to 36;
. Division 4 - Miscellaneous including new sections 37 and 38.
Part III - Payments for designated health services
Division 1 - Preliminary
Purpose of Part
New section 24 enables the Commonwealth to
enter into five year agreements with the States, beginning on 1 July 1998 and
ceasing on 30 June 2003, regarding the provision of designated health services
and related matters. The section also provides for the payment of financial
assistance for designated health services and related matters, and for projects
and programs designed to improve the efficiency and effectiveness of the
delivery of, or reduce the demand for, designated health services, or to improve
patient outcomes in relation to delivery of such services.
Definitions
New section 25 defines terms used in the Part and
provides that some terms must be further defined in the agreements.
Division 2 - Agreements with the States for provision of designated health services and related matters from 1 July 1998
Entry into agreements
New section 26 provides that the
Commonwealth may enter into agreements with the States covering the five years
starting on 1 July 1998 concerning the provision by the States of designated
health services and related matters; the provision by the Commonwealth of
financial assistance for those services; the provision by the Commonwealth of
financial assistance for projects and programs designed to improve the
efficiency and effectiveness of the delivery of, or reduce the demand for,
designated health services, or to improve patient outcomes in relation to
delivery of such services; and the means of determining contributions to the
operating expenses of the Information Commissioner by the Commonwealth and
States.
Other matters to be dealt with in an agreement
New
subsection 27(1) provides that each agreement must set out the method of
working out the financial assistance that is payable to a State in respect of a
financial year and the manner and time the money will be paid.
New
subsection 27(2) provides that all financial assistance to a State is provided
on the terms and conditions that the State enters into an agreement, adheres to
the Health Care Agreement Principles and develops a Public Patients'
Charter.
New subsection 27(3) provides that the Commonwealth may vary or
terminate or suspend the financial assistance if the State fails to comply with
the conditions in this Act or any agreement made pursuant to this Act.
Financial assistance conditional on entry into
agreement
New section 28 states that the State must have an agreement
with the Commonwealth before the Commonwealth will provide any financial
assistance.
Financial assistance conditional on adherence to Health
Care Agreement Principles
New subsection 29(1) provides that
financial assistance is not payable to a State if the agreement does not provide
for adherence to the Health Care Agreement Principles.
New subsection
29(2) details the Health Care Agreement Principles.
Financial
assistance conditional on development of a Public Patients'
Charter
New subsection 30(1) defines a Public Patients' Charter as a
document for the dissemination of information about the provision of designated
health services and the mechanism for submitting and having complaints about
services dealt with.
New subsection 30(2) requires that the agreement
must specify minimum standards for the content of the Charter and the structure
and operation of the complaints body and for access to the Charter, and a date
by which the State must have in place a Charter meeting the standards.
New subsection 30(3) specifies that financial assistance is not payable
to the State unless the State meets the standards and date specified in the
agreement.
Variation of agreements
New section 31 provides
that variations to the agreement complying with the conditions of the Act may be
made in writing between the parties to the agreement or on behalf of the parties
by the Commonwealth and State Health Ministers.
Tabling of
agreements
New section 32 states that an agreement must be tabled in
each House of the Parliament within 15 sitting days of that House after 1 July
1998, or the day on which it is made, whichever is last.
Division 3 - National Health Development Special Assistance
Purpose of assistance
New section 33 provides for the
Commonwealth to provide financial assistance for projects and programs designed
to improve the efficiency and effectiveness of, or reduce the demand for, the
delivery of designated health services, or to improve patient outcomes in
relation to delivery of such services.
Minister's power to approve
initiatives and authorise payment
New subsection 34(1) provides that
financial assistance under this Division is to be in the form of payment of
amounts by the Commonwealth to one or more States or to other parties.
New subsection 34(2) provides the Minister may authorise payment of
specified amounts for projects and programs approved as health service delivery
initiatives.
New subsection 34(3) provides that the Minister may only
approve a project or program if s/he is satisfied that:
(a) the project
or program is likely to improve the efficiency or effectiveness of the delivery
of, or reduce the demand for, designated health services, or to improve patient
outcomes in relation to the delivery of such services; and
(b) the
approval of the project or program is consistent with the guidelines detailed
under new section 36.
Conditions for provision of financial
assistance
New subsection 35(1) specifies that financial assistance
under this Division is provided on condition that the State complies with
Division 2 and additional terms and conditions specified by the
Minister.
New subsection 35(2) provides that the Minister may vary the
financial assistance payable to an organisation or individual if they have not
complied with a condition of funding.
The guidelines
New
subsection 36(1) specifies that the Minister may issue written guidelines
specifying the criteria for approving projects and programs under this
Division.
New subsection 36(2) states that any guidelines made under new
subsection 36(1) are disallowable instruments under section 46A of the Acts
Interpretation Act 1901.
Division 4 - Miscellaneous
Appropriation
New section 37 provides that the amount of
financial assistance referred to in new paragraph 26(b) or (c) is payable
out of the Consolidated Revenue Fund.
Advances
New section
38 states that the Minister may make advances in respect of amounts that may
become payable under Part III and subject to conditions determined by the
Minister.
Item 13 Part IIIA - The Health Care Information
Commissioner
This item inserts a new Part IIIA which will include
four Divisions:
. Division 1 - Preliminary including new section
38A;
. Division 2 - Establishment, functions and powers of the
Information Commissioner including new sections 38B to 38J;
. Division 3
- Matters relating to the Information Commissioner's appointment etc. including
new sections 38K to 38S; and
. Division 4 - Miscellaneous including new
sections 38T to 38W.
Part IIIA - The Health Care Information
Commissioner
Division 1 - Preliminary
New section 38A provides a definition for State which includes the
Australian Capital Territory and the Northern Territory.
Division 2 - Establishment, functions and powers of the Information Commissioner
The Information Commissioner
New section 38B establishes a
Health Care Information Commissioner.
The functions of the Information
Commissioner
New subsection 38C(1) outlines the functions of the
Health Care Information Commissioner. The Commissioner will be able
to:
. collect and analyse patient level data supplied by the Commonwealth
and the States; and
. provide reports to the Commonwealth and the States
on health service provision; and
. disseminate other information to the
Commonwealth, a State or to any other person if the Commissioner considers that
it is in the public interest to do so; and
. do other things as
prescribed in the Agreement; and
. do anything incidental to or conducive
to the performance of any of the above functions.
New subsection 38C(2)
states that the Commissioner must ensure that no individual patient can be
identified in any reports provided to the Commonwealth, the States or to any
other person on health service provision or any other information.
The
powers of the Information Commissioner
New subsection 38D(1) states
that the Health Care Information Commissioner has the power to do whatever is
necessary to ensure the functions detailed in new section 38C are
done.
New subsection 38D(2) confers powers on the Health Care Information
Commissioner to enter into contracts and
agreements.
Secrecy
New subsection 38E(1) provides that
under subsection 130(3A) of the Act the Secretary of the Department or the
Managing Director of the Health Insurance Commission may divulge information
relating to medicare benefits to the Commissioner.
New subsection 38E(2)
provides that under paragraph 135A(3)(b) of the National Health Act 1953
the Secretary of the Department may divulge information relating to
pharmaceutical benefits to the Commissioner.
Regard to Health
Ministers' resolutions
New section 38F states that the Health Care
Information Commissioner must have regard to resolutions of the Health
Ministers' Conference when performing functions and exercising
powers.
Use of reports
New section 38G states that the
Health Care Information Commissioner's reports may be used for purposes which
are specified in the Health Care Agreements.
Minister may issue
guidelines
New section 38H allows the Minister to make guidelines
concerning the use and secrecy of any personal information collected by the
Commissioner. Such guidelines are disallowable instruments under section 46A of
the Acts Interpretation Act 1901.
Minister's
directions
New section 38J states that the Minister may give written
directions to the Health Care Information Commissioner in relation to the
performance of the Commissioner's functions or the exercise of the
Commissioner's powers and the Commissioner must comply with the
directions.
Division 3 - Matters relating to the Information
Commissioner's appointment etc
Appointment of the Information
Commissioner
New section 38K provides that the Health Care
Information Commissioner will be appointed by the Minister, after consultation
with State Ministers for Health, for a period ending no later than
31 December 2003, on a full or part time basis.
Acting
appointment
New section 38L provides that an acting Health Care
Information Commissioner may be appointed by the Minister, and legitimises
actions by a person purporting to act as the Information Commissioner even if
their appointment was invalid.
Remuneration
New section
38M provides that remuneration of the Health Care Information Commissioner is
determined by the Remuneration Tribunal and that any allowances are to be
prescribed.
Disclosure of interest by the Information
Commissioner
New section 38N specifies that the Health Care
Information Commissioner must give written notice to the Minister if s/he has a
material personal interest in a matter that is being, or about to be
considered.
Outside employment
New subsection 38P(1)
prohibits a full-time Health Care Information Commissioner from having any other
paid work unless the Minister assents to this in writing.
New subsection
38P(2) provides that a part-time Health Care Information Commissioner cannot
engage in paid work which the Minister considers will conflict with the
Commissioner's functions.
Leave of absence
New section 38Q
governs the leave which the Health Care Information Commissioner may take.
Resignation
New section 38R provides for the method by
which the Health Care Information Commissioner may resign.
Termination
of appointment
New subsection 38S(1) specifies that the Minister may
terminate the Health Care Information Commissioner's appointment if the Health
Care Information Commissioner is found to be misbehaving or physically or
mentally incapable.
New subsection 38S(2) provides that the Minster must
terminate the Health Care Information Commissioner's appointment on the grounds
of:
. bankruptcy;
. absence from duty without leave for a
specified period of time; or
. failure to comply with new section 38P
(approval for outside employment).
Division 4 - Miscellaneous
Funding of the Information Commissioner
New section 38T
provides that the Health Care Agreements may require States to contribute to the
costs of the Health Care Information
Commissioner.
Staff
New subsection 38U(1) provides that the
staff of the Health Care Information Commissioner may be persons appointed or
employed under the Public Service Act 1922, persons whose services are
made available under subsection (4) and persons engaged under subsection
(6).
New subsection 38U(2) provides that the Health Care Information
Commissioner has all the powers of a Secretary in relation to staff appointed or
employed under the Public Service Act 1922, and new subsection 38U(3) provides
that the Health Care Information Commissioner is taken to be a Secretary for the
purposes of section 26 of the Public Service Act 1922.
New
subsection 38U(4) provides that the Health Care Information Commissioner may
make arrangements for officers of the Commonwealth, State or Territory public
service to work for him or her, and new subsection 38U(5) provides that any
person made available under subsection (4) must perform duties assigned by the
Health Care Information Commissioner and is subject to direction by him or
her.
New subsection 38U(6) provides that the Health Care Information
Commissioner may employ other staff, and new subsection 38U(7) provides that the
Commissioner may determine the terms and conditions under which they will
work.
Delegation
New section 38V states that the Health
Care Information Commissioner may delegate all or any of his or her powers and
functions to any member of the staff of the Health Care Information
Commissioner.
Protection from civil actions
New section 38W
states that the Health Care Information Commissioner and staff are protected
from civil proceedings in respect of loss, damage or injury of any kind suffered
by another person as a result of any act done or omitted to be done in good
faith in the performance of their duty.
Item 14 Paragraph
130(5A)(c)
This item is a consequential amendment resulting from
replacing the definition of “recognised hospital” with a definition
of “public hospital”.
Item 15 Schedule 2A
This
item repeals Schedule 2A.
Schedule 2 - Amendment of the National
Health Act 1953 and related matters
Item 1 Section
4
This item inserts a definition of “private hospital”
consistent with the definition in subsection 3(1) of the Health
Insurance Act 1973 which is to be repealed.
Item 2 At the end of
section 5B
This item adds a new subsection 5B(7) which provides that
for the purpose of subsection (3) “State” includes the Australian
Capital Territory and the Northern Territory.
Item 3 After section
5B
This item inserts section 5C “declarations in relation to
private hospitals” after section 5B.
Declarations in relation to
private hospitals
New subsection 5C(1) states that the Minister may
declare specified premises to be a private hospital for the purposes of this Act
and the Health Insurance Act 1973 and new subsection 5C(3) states
that the Minister may declare this to take effect from a day earlier than the
day on which the declaration is made (other than a day earlier than the day on
which the premises specified in the declaration were licensed, under the law of
the State in which they are located, to operate as a private
hospital).
New subsection 5C(2) states that the Minister may declare
specified premises not to be a private hospital.
New paragraph 5C(4)(a)
provides that a private hospital must provide patient identifiable data to a
registered private health insurance organisation which has an applicable
benefits arrangement with the patient.
New paragraph 5C(4)(b) provides
that a private hospital must provide patient de-identified data to a data bureau
established by the Commonwealth for the purpose of receiving and disseminating
such data.
New subsection 5C(5) provides that a decision whether to make
a declaration under this section must be in accordance with any guidelines in
force.
New subsection 5C(6) and (7) provide that the Minister may make
guidelines relating to the making of decisions relating to private hospitals and
that the guidelines are disallowable instruments for the purposes of section 46A
of the Acts Interpretation Act 1901.
New subsection 5C(8)
preserves declarations and guidelines made under subsections 23EA(1), (2) and
(5) of the Health Insurance Act 1973 as if they were made under new
subsections (1), (2) and (6) of this section.
New subsection 5C(9)
provides that for the purpose of subsection (3) “State” includes the
Australian Capital Territory and the Northern Territory.
Item
4 Subsection 84(1) (definition of public hospital)
This item repeals
the definition of “public hospital”.
Item 5 Transitional
provision
This item has the same meaning as Item 7 in Schedule 1.
Item 6 Subsection 84(1) (definition of public hospital
authority)
This item is a consequential amendment resulting from
replacing the definition of “recognised hospital” with a definition
of “public hospital”, and now states the definition of
“public hospital authority”, in relation to a public hospital, means
the governing body of the hospital.
Item 7 After section
105AA
This item inserts section 105AAA “Applications for review
by Tribunal of decisions under section 5C” after section 105AA.
Applications for review by Tribunal of decisions under section
5C
New section 105AAA reflects the transfer from the Health
Insurance Act 1973 to the National Health Act 1953 of the Minister's
power to declare a private hospital and the right of appeal to the
Administrative Appeals Tribunal for review of decisions.