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2002-2003-2004
THE PARLIAMENT OF THE
COMMONWEALTH OF AUSTRALIA
HOUSE OF
REPRESENTATIVES
HEALTH LEGISLATION AMENDMENT (PODIATRIC
SURGERY AND OTHER MATTERS) BILL 2004
EXPLANATORY
MEMORANDUM
(Circulated
by authority of the Minister for Health and Ageing,
the Hon Tony Abbott
MP)
The Health Legislation Amendment (Podiatric Surgery and Other Matters)
Bill 2004 proposes a number of amendments to legislation within the Health
and Ageing portfolio.
This Part provides for amendments to the Health Insurance Act 1973 to
enable private health insurance funds to provide benefits, under an applicable
benefits arrangement (hospital cover policy), for the hospital treatment costs
(the accommodation and nursing care costs) associated with foot surgery
performed on admitted patients by accredited podiatrists. The amendments do not
permit private health insurance funds to provide benefits under an applicable
benefits arrangement for the fees charged by accredited podiatrists for their
services. The intention is to ensure that an admitted private patient being
treated by an accredited podiatrist is able to access benefits, under an
applicable benefits arrangement, for the hospital treatment costs as they would
if a medical practitioner provided a professional service.
This Part provides for amendments relating to the provision by hospitals of
Hospital Casemix Protocol data to the Department of Health and Ageing (the
Department). Under the Health Insurance Act 1973, private hospitals are
required to supply patient de-identified data to a data bureau. An independent
data bureau operated until 2002. However, due to inefficiencies in its
operation, the independent data bureau, with industry agreement, was disbanded
in 2002. From this time the data bureau has been administered from within the
Department. The proposed amendments reflect this change in
arrangements.
While private hospitals have been required to provide
Hospital Casemix Protocol data to the Department (and also to private health
insurance funds), an equivalent obligation has never been imposed on day
hospital facilities. This creates a gap in the range of data that is supplied to
both health funds and the Department. This Bill will correct this
anomaly.
This Part provides for amendments relating to the Pharmaceutical Benefits
Scheme (PBS). The amendments provide for the continuing supply of
pharmaceutical benefits in the event of the death of a pharmacist who was
approved to supply pharmaceutical benefits at or from particular premises (an
approved pharmacist).
Currently under the National Health Act
1953, pharmaceutical benefits can only be supplied by an approved
pharmacist. The approved pharmacist is entitled, to be paid, by the
Commonwealth, for the supply of pharmaceutical benefits.
All States and
Territories make legislative provision for the legal personal representative of
the estate of a deceased pharmacist to carry on the deceased pharmacist’s
business, provided that the practice of pharmacy in the business is conducted by
a registered pharmacist.
Section 90 of the National Health Act 1953
provides for legal personal representatives of deceased approved pharmacists
to apply for approval to supply pharmaceutical benefits. However, this
provision has been found to be deficient in a number of respects. In some
cases, the time period involved in obtaining an approval under section 90 is
lengthy. This is particularly so if it is only viable for a legal personal
representative to apply for approval after probate or letters of administration
are granted.
In some instances, the legal personal representative
requests an Act of Grace payment be made to the estate of the deceased approved
pharmacist in relation to pharmaceutical benefits supplied during the period
following the death of the approved pharmacist and before the granting of a
section 90 approval. In some cases the amount claimed is large, and the ongoing
viability of a pharmacy has been jeopardised by having to carry this financial
burden.
The amendments enable a person who is, or is likely to become,
an executor or administrator of the estate of a deceased approved pharmacist, to
apply for permission to supply pharmaceutical benefits at or from the particular
premises in respect of which the deceased pharmacist was approved. The
amendments thereby enable the executor or administrator of the estate to receive
payment for pharmaceutical benefits supplied.
The amendments also clarify
that in circumstances where a beneficiary of a deceased approved pharmacist is
not a pharmacist himself or herself, the beneficiary may only apply under
section 90 for approval to supply pharmaceutical benefits in circumstances where
he or she has acquired the deceased approved pharmacist’s interest in the
pharmacy.
This Part corrects minor errors in the Health and Other Services
(Compensation) Act 1995 and the Health Insurance Amendment (Diagnostic
Imaging, Radiation Oncology and Other Measures) Act 2003 to correct drafting
errors.
There is negligible financial impact from the Bill.
REGULATION IMPACT STATEMENT
HEALTH LEGISLATION
AMENDMENT (PODIATRIC SURGERY AND OTHER MATTERS) BILL 2004
At present there are approximately 25 registered podiatric surgeons in
Australia who, combined, perform approximately 1,500 surgical operations per
year in podiatrists’ rooms. Fewer than ten out of approximately 540
private hospitals and private day hospital facilities have granted these
podiatric surgeons admitting rights. The number of podiatric surgeons and the
number of hospitals and day hospitals in which they are permitted to perform
surgical operations are not expected to increase significantly in the
foreseeable future.
The Australasian College of Podiatric Surgeons,
established in 1976, is the national organisation that trains podiatric
surgeons. It develops, implements and monitors guidelines for the practice of
podiatric surgery and provides national standards and clinical practice
protocols. The College is affiliated with the Australasian Podiatry Council,
the national organisation and umbrella group of Australian Podiatry Associations
in each State. The Australasian Podiatry Council prepares national policies and
clinical practice guidelines for podiatrists. Podiatric surgeons have been
allowed to perform foot surgery since the 1970s under current State and
Territory jurisdictions (except the Northern Territory, which currently does not
have legislation permitting podiatric surgeons to perform surgery).
Currently, under the Health Insurance Act 1973, private
health insurance funds cannot pay benefits from their hospital tables for foot
surgery performed by podiatric surgeons as benefits can only be paid to medical
practitioners. It is considered that this may be contrary to the Competition
Principles Agreement (CPA), subsection 5(1) and was identified by the
National Competition Council as a reform issue in its 2002 assessment (Chapter
6, pg.88
http://www.ncc.gov.au/publication.asp?publicationID=164&activityID=30
). This is because podiatric surgeons are not included as providers of
professional attention under the Health Insurance Act 1973
subsection 3(1). The definition of professional attention in the
Health Insurance Act 1973 currently includes registered medical
practitioners, nurses with obstetric qualifications and dental practitioners.
If the patient has ancillary health insurance cover, some funds may provide
limited benefits from their ancillary tables towards the cost of podiatric
surgery. However, the patient usually has to pay the full cost of hospital
accommodation and nursing care.
The Department of Health and
Ageing’s consideration of the proposal to change the definition of
professional attention has always been on the understanding that adding
new items to the Medicare Benefits Schedule would not be considered and the
Australasian Podiatry Council has acknowledged this. Extending Medicare
benefits coverage to a wider range of allied health care providers (which
includes podiatrists) has been considered on other occasions and each time it
has been decided that it is not possible to extend these arrangements given the
economic climate. This is still the case.
During early consultations
about the proposal to amend the legislation, concerns about safety, quality and
training regarding podiatric surgeons were raised with the Department for the
first time by certain medical groups. These groups were encouraged to raise
their concerns with the relevant authorities in the various States and
Territories. While the comments are noted, the proposed amendment is solely to
allow funds to pay benefits for accommodation from their hospital tables and
does not change current foot surgery practices.
The objective is to ensure greater competition amongst providers of foot
surgery by allowing for greater recompense for consumers of private health
insurance.
The pre-existing policy authority is the Health Insurance
Act 1973.
Option 1: Make a legislative change to enable privately insured
admitted patients in hospitals and day hospital facilities to receive benefits
from a fund’s hospital tables for accommodation and nursing care when
surgery is performed by accredited podiatrists.
A legislative
amendment to the Health Insurance Act 1973 would be necessary to enable
private health insurance funds to pay benefits from hospital tables for surgery
performed by podiatric surgeons.
Option 2: No change to the existing
legislation
The second option would be to continue the present
arrangement and not change the existing legislation.
Given the purpose of the Bill, the impact on the following interest
groups is not considered to be significant:
• the Australian
Government;
• privately insured patients of podiatric surgeons;
• health funds;
• hospitals and day hospital facilities;
• orthopaedic surgeons and medical practitioners in general;
and
• podiatric surgeons.
This issue relates to privately
insured patients and has no impact on public (Medicare) patients in public
hospitals.
The aggregated data available to the Department of Health and
Ageing does not specify the number and types of surgery performed by podiatric
surgeons in hospitals or rooms.
Option 1: Make a legislative change to
enable private patients in hospitals and day hospital facilities to receive
benefits for surgery performed by podiatric surgeons.
Impact of
the option on the Australian Government:
• the impact of Option
1 on the Australian Government is expected to be minimal as amending the
definition of professional attention to include podiatric surgeons would
not extend the payment of health fund benefits from hospital tables to podiatric
surgeons’ or anaesthetists’ fees as there will continue to be no
Medicare Benefits Schedule item. Given the number of podiatric surgeons in
Australia it is considered that any increased cost to the 30% rebate scheme
would be negligible; and
• the Australian Government would be ensuring
it complied with the Competition Principles Agreement
(CPA).
Impact of the option on privately insured patients of podiatric
surgeons:
• would decrease out of pocket costs for those
undergoing podiatric surgery as an admitted patient. Actual out of pocket costs
depend on the level of each patient’s cover so cannot be
quantified;
• would enhance choice for the consumer;
and
• including accredited podiatrists under the definition of
professional attention would not have a significant impact on the cost of
private health insurance to consumers. Of the 1,573,000 podiatric services
performed in 2002-2003 only around 1,500 were surgical procedures and of those,
only procedures performed on admitted patients would be eligible for payment
from hospital tables under the proposed amendment. The proposed amendment would
therefore have a relatively limited impact given that it would only enable the
payment of private health insurance hospital benefits for a small number of
services that are already being provided.
Impact on health
funds:
• amending the current definition of
professional attention under subsection 3(1) of the Health Insurance
Act 1973 would allow accredited podiatrists to come within the definition of
hospital treatment also under subsection 3(1) of the Health Insurance
Act 1973. This would enable health funds to pay benefits from their
hospital tables for accommodation and nursing care costs associated with
podiatric surgery performed on admitted patients. It would not permit health
funds to pay benefits towards the cost of the accredited podiatrist’s or
associated anaesthetists’ fees as there would continue to be no Medicare
Benefits Schedule items available. If a patient has ancillary cover they may be
able to claim some professional fees according to the rules of his/her health
fund;
• enabling funds to pay benefits from their hospital tables,
consumers would be provided with more choice;
• would increase the
attractiveness of the private health insurance product by allowing funds to
offer cover for accommodation and nursing costs associated with procedures
performed on admitted patients by podiatric surgeons;
• reduces the
burden of payments to the elderly and chronically ill by providing access to
reinsurance. Under reinsurance, health fund benefit costs for the elderly and
chronically ill are pooled and shared among all health funds. In this way
regardless of their membership composition, funds can charge competitive
contribution rates for similar cover. Foot surgery is mostly required by the
aged and chronically ill and due to the ageing of the population, demand for
services may increase over time;
• would increase marginally the amount
of benefits paid out, but given the number of podiatric surgeons in Australia it
is considered that any cost involved would be negligible; and most likely offset
by increased fund income as insurance becomes more attractive;
and
• health funds expressed concerns that other allied health
professionals would also seek inclusion as one who provides professional
attention. Should this occur the Government would consider each case on its
merit.
Impact on hospitals and day hospital facilities:
• nil impact
Impact on surgeons and medical
practitioners in general:
• does not alter current
arrangements.
Impact on podiatric surgeons:
• minimal
impact. Podiatric surgeons would still have to negotiate with health funds for
a fee for their services; and
• would be able to offer a more
attractive service as their privately insured patients may be eligible for
rebates for hospital accommodation and nursing care.
Option 2: No
change to the existing legislation
Impact of the option on the
Australian Government:
• the Australian Government may not be
in compliance with the Competition Principles Agreement (CPA) and the
National Competition Council will continue to raise concerns over this issue.
Restricting competition can impose costs through higher prices, reduced choice
and impeding innovation and efficiency.
Impact of the option on
privately insured patients of podiatric surgeons:
• continues
to financially disadvantage privately insured admitted patients who choose to
have foot surgery performed by a podiatric surgeon. However cost depends on
level of cover held by the patient and therefore cannot be quantified.
Impact on health funds:
• would not increase
the attractiveness of their products to consumers.
Impact on hospitals
and day hospital facilities:
• nil.
Impact on
surgeons and medical practitioners in general:
• no impact as
the change does not alter current arrangements.
Impact on podiatric
surgeons:
• minimal impact. Podiatric surgeons would still
have to negotiate with health funds for a fee for their services.
In July 1998 stakeholders and other industry groups were consulted as to
whether podiatric surgeons should be recognised as providers of professional
attention. State and Territory Governments were consulted on the same issue
in 1999 and the views expressed over the years have essentially remained the
same for all parties.
The Department has undertaken consultations with
the following organisations:
• Australian and New Zealand College of
Anaesthetists
• Australasian Day Surgery
Association
• Australian Health Insurance Association
Ltd
• Australian Health Service Alliance
• Australian Medical
Association Ltd
• Australian Orthopaedic
Association
• Australian Private Hospitals Association
Ltd
• Australian Regional Health Group Ltd
• Australian
Society of Anaesthetists
• Consumer’s Health Forum of
Australia
• Health Insurance Restricted Membership Association of
Australia
• Medibank Private
• Medical Benefits Fund of
Australia Ltd
• Royal Australasian College of Surgeons
• Royal
Australian College of General Practitioners.
• Australian Capital
Territory Department of Health and Community Care
• New South Wales
Health Department
• Territory Health Services (Northern
Territory)
• Queensland Health
• Department of Human Services
(South Australia)
• Department of Health and Human Services
(Tasmania)
• Department of Human Services (Victoria)
• Health
Department of Western Australia
• Australasian Podiatry
Council
• Australasian College of Podiatric Surgeons
In
summary
• Comments received from some medical groups suggested that
podiatric surgeons have a role in the treatment of patients but that a medical
practitioner should be responsible for pre-operative diagnosis, operation, and
post-operative management. During consultations they expressed concerns that
levels of training are not sufficient to perform non-superficial procedures and
that patients would be at risk.
• Health funds are concerned that the
amendment may set a precedent for allied health services, which may lead to more
expenditure.
• State and Territory health authorities are generally
supportive of the amendment believing there would be little impact on current
arrangements as there are few podiatric surgeons.
• The Podiatric
Council and Australasian College of Podiatric Surgeons fully support the
amendment.
Option 1 is the preferred option, as it will ensure competition among
providers of foot surgery by allowing for greater recompense for consumers of
private health insurance.
The preferred option will be implemented through amendments to the
Health Insurance Act 1973. Amendments will be implemented by existing
Departmental staff and will require no additional resources.
Provisions
under legislation will be considered as part of the normal evaluation from time
to time of private health insurance arrangements.
HEALTH LEGISLATION AMENDMENT (PODIATRIC SURGERY AND OTHER
MATTERS) BILL 2004
Clause 1 - Short title
This clause specifies the short
title of the Bill as the Health Legislation Amendment (Podiatric Surgery and
Other Matters) Act 2004.
Clause 2 - Commencement
This clause sets out the commencement arrangements for provisions of this
Act. Each provision of this Act specified in column 1 of the table commences,
or is taken to have commenced, in accordance with column 2 of the table. Any
other statement in column 2 has effect according to its terms.
Clause
3 - Schedule(s)
This clause provides that each Act that is specified
in the Schedule to this Act is amended or repealed as set out in the applicable
items in the Schedule.
Part 1 – Amendments relating to payment of benefits for hospital
treatment associated with podiatric surgery
Item 1 inserts a
definition of accredited podiatrist into subsection 3(1) of the Health
Insurance Act 1973. It provides that an accredited podiatrist is a
podiatrist accredited by the Minister in writing under section 3AAA for the
purposes of this definition.
The term podiatrist used in this
definition is currently defined in subsection 3(1) of the Health Insurance
Act 1973 as meaning “a person registered or licensed to practise
podiatry under a law of a State or Territory that provides for the registration
or licensing of podiatrists”. A distinction is drawn between
podiatrists and accredited podiatrists to reflect the fact that
not all podiatrists have surgical qualifications. The Minister will only
accredit those podiatrists who have appropriate surgical
qualifications.
Item 2 corrects a minor technical
error.
Item 3 inserts a new paragraph into the definition of
professional attention in subsection 3(1) of the Health Insurance Act
1973 to specify that podiatric treatment provided by an accredited
podiatrist is a form of professional attention.
The effect of this
amendment is to allow private health insurance funds to offer benefits, under an
applicable benefits arrangement, for the hospital treatment costs associated
with foot surgery provided by accredited podiatrists. Under section 5A of the
National Health Act 1953 health funds can provide benefits under an
applicable benefits arrangement for hospital treatment and any professional
services rendered to a patient by a medical practitioner while the hospital
treatment is being provided.
The term hospital treatment is
defined in subsection 3(1) of the Health Insurance Act 1973, in part, as
meaning “accommodation and nursing care ... provided for the purpose of
permitting the provision of professional attention”. The amendment to the
definition of professional attention has the effect of expanding the
definition of hospital treatment to include accommodation and nursing
care provided for the purpose of permitting podiatric treatment by an accredited
podiatrist.
This amendment does not have the effect of permitting health
funds to provide benefits, under an applicable benefits arrangement, for the
fees charged by a podiatrist for his/her services under an applicable benefits
arrangement because such services are not “professional services rendered
by a medical practitioner” for the purpose of section 5A of the
National Health Act 1953.
Item 4 inserts new sections 3AAA
and 3AAB into the Health Insurance Act 1973.
Section
3AAA permits the Minister to accredit podiatrists and make guidelines
for making accreditation decisions.
Subsection 3AAA(1) authorises
the Minister to determine guidelines for making a decision as to whether a
podiatrist is to be accredited.
Subsection 3AAA(2) provides that
the Minister must make any decision as to whether a podiatrist should be
accredited in accordance with the guidelines.
Subsection 3AAA(3)
provides that the guidelines are disallowable instruments for the purposes of s
46A of the Acts Interpretation Act 1901.
Section 3AAB
allows for review by the Administrative Appeals Tribunal of a decision by the
Minister to refuse to accredit a podiatrist.
Item 5 repeals paragraphs 23EA(3A)(b) and (c) of the Health
Insurance Act 1973 and substitutes a new paragraph 23EA(3A)(b), which
requires private hospitals to provide the Department, instead of the now defunct
independent data bureau, with Hospital Casemix Protocol data in a de-identified
patient state. The Department will be required to observe the Privacy Act
1988 and the secrecy provisions in section 130 of the Health Insurance
Act 1973 and section 135A of the National Health Act 1953 in using
this data.
Item 6 inserts a new subsection 5B(3A) in the
National Health Act 1953, which requires declared day hospital facilities
to provide both private health insurance funds and the Department with the same
Hospital Casemix Protocol data that private hospitals are already obliged to
provide under subsection 23EA(3A) of the Health Insurance Act 1973. The
Department will be required to observe the Privacy Act 1988 and the
secrecy provisions in section 135A of the National Health Act 1953 and
section 130 of the Health Insurance Act 1973 in using this data.
Item 7 repeals the existing definition of pharmacist in subsection 4(1) of the National Health Act 1953 and substitutes a new definition. Under section 91 (see item 13 below), a person who is, or is likely to become, the executor or administrator of the estate of a deceased approved pharmacist, may apply for permission to supply pharmaceutical benefits. Prior to this amendment, paragraph (b) of the definition of pharmacist enabled a legal personal representative of a deceased approved pharmacist to apply for approval to supply pharmaceutical benefits under section 90. As a result of section 91, paragraph (b) of the definition of pharmacist is no longer required.
Item 8 repeals the existing definition of approved pharmacist
in subsection 84(1) of the National Health Act 1953 and substitutes a new
definition. The amendment to paragraph 84(1)(a) provides that the definition of
an approved pharmacist extends to persons treated as having that status
by virtue of any law of the Commonwealth other than section 91 (see item 13
below) of the Act. For example, see paragraph 83(3)(a) of the National
Health Act 1953.
Paragraph 84(1)(b) provides that the definition of
approved pharmacist extends to persons treated as having that status by virtue
of section 91 (see item 13 below), but ensures that such persons do not obtain
the right to apply for approvals (under section 90) in respect of more than one
pharmacy by virtue of subsection 90(3). This would not prevent an entirely
separate application being made under section 91 (see item 13 below) in respect
of a second pharmacy.
Item 9 repeals paragraph 90(3AA)(b) of the
National Health Act 1953 and substitutes a new paragraph 90(3AA)(b) which
clarifies the drafting of paragraph 90(3AA)(b) to reflect the legal position
that a change in the ownership of a pharmacy does not result from the death of
the owner or one of the owners. Rather, a change in the ownership of a pharmacy
results from the acquisition, following the death of a person who was the owner
or one of the owners of a pharmacy, of that person’s interest in the
business of the pharmacy.
Item 10 inserts new subsections 90(3AC)
and 90(3AD). Subsection 90(3AC) defines when an acquisition of an interest in
the business of a pharmacy occurs for the purposes of paragraph 90(3AA)(b).
Subsection 90(3AC) provides that a person will only be taken to have acquired a
deceased person’s interest in the business of a pharmacy once probate of
the deceased person’s will, or letters of administration of the deceased
person’s estate, have been granted by the relevant jurisdictional court,
and the deceased person’s interest in the business of the pharmacy has
been transferred to that person.
In some jurisdictions, upon the grant
of probate or administration, ownership in assets covered by that grant is
treated as having vested in the executor or administrator with effect from the
date of death, in order to avoid a gap in legal title (for explanatory purposes,
here referred to as the “doctrine of relation back”). Subsection
90(3AD) is related to subsection 90(3AC). It is included to prevent the person
to whom the interest in the pharmacy is transferred following a grant or probate
or administration, from contending that a permission subsisting under section 91
(see item 13 below) at any time between the date of death of the pharmacist
concerned and the date of that transfer, is affected by the doctrine of relation
back.
Item 11 inserts references to subsections 90(3AC) and
90(3AD) in subsection 90(3C).
Division 4B establishes (see section 99J)
the Australian Community Pharmacy Authority (‘the Authority’).
Section 99Y provides that unless sooner repealed, Division 4B ceases to have
effect at the end of 30 June 2005. This means that the Authority ceases to have
effect at the end of 30 June 2005, unless Division 4B is sooner
repealed.
Subsection 90(3A) provides that, subject to subsection 90(3AA),
an application under section 90 must be referred to the Authority. Subsection
90(3C) sets out the provisions (subsections (3A), (3AA), (3AB) and (3B)) that
will cease to have effect at the end of 30 June 2005. Because new subsections
90(3AC) and 90(3AD) are collectively relevant to the operation of 90(3AA), it is
intended that they will cease at the end of 30 June 2005, if subsection 90(3AA)
is to cease.
Item 12 inserts a new subsection 90(7) to clarify the
operation of subsection 90(6) in relation to a beneficiary of a deceased
approved pharmacist. The amendment provides that in circumstances where a
beneficiary of a deceased approved pharmacist is not a pharmacist himself or
herself, the beneficiary may only apply under section 90 (by virtue of
subsection 90(6)) for approval to supply pharmaceutical benefits, in
circumstances where he or she has acquired the deceased approved
pharmacist’s interest in the pharmacy.
Item 13 inserts new
section 91. The purpose of section 91 is to enable a person who is, or who
claims to be, the executor or administrator of the estate of a deceased approved
pharmacist, to apply for permission to supply pharmaceutical benefits at or from
premises in respect of which the deceased pharmacist had been approved. This
section applies to any situation where an approved pharmacist dies, whether the
deceased was the sole approved pharmacist in respect of the premises or was one
of a number of pharmacists approved in respect of the
premises.
Subsection 91(1) sets out the circumstances in which a
person may apply for permission to supply pharmaceutical benefits at or from the
premises of a deceased approved pharmacist (that is, approved under section 90),
and provides for the Secretary to grant such permission.
Paragraph
91(1)(a) sets out the first requirement of subsection 91(1), being that
there is a person who is an approved pharmacist (that is, approved under section
90) in respect of a pharmacy at particular premises.
Paragraph
91(1)(b) sets out the second requirement of subsection 91(1), being that the
approved pharmacist dies at any time on or after the commencement of section 91.
This new paragraph makes clear that new section 91 does not apply
retrospectively. That is, section 91 only applies to situations where an
approved pharmacist dies at any time on or after the section commences.
Paragraph 91(1)(c) sets out the third requirement of subsection
91(1), by specifying the following categories of persons who may apply for
permission (see new paragraph 91(1)(d)) under section 91:
• a person
who, either following or prior to the grant of probate of the will of the
deceased pharmacist, claims to be the executor or one of the executors of the
will; or
• a person who is the person, or one of the persons, to whom
the administration of the estate of the deceased pharmacist has been granted;
or
• a person who is the person, or one of the persons, who intends to
apply to for administration of the deceased pharmacist’s estate.
It
should be noted that the Secretary’s power to grant a permission is
discretionary. Where an application is made to the Secretary for permission to
supply pharmaceutical benefits at or from premises in respect of which a
deceased pharmacist was approved, the Secretary may grant such a permission if
he or she reasonably believes that the applicant is, or on the grant of probate
or letters of administration of the estate is likely to be, such an executor or
administrator.
Subsection 91(2) sets out the requirements for
making an application under subsection 91(1). The application must
be:
• made in a form approved by the Secretary; and
• made as
soon as reasonably practicable after the death of the approved pharmacist;
and
• accompanied by documentary evidence relating to the identity of
the applicant and the nature of the applicant’s claim to be a person
referred to in paragraph 91(1)(c).
The Secretary has the power to
determine, in writing, the kind of documentary evidence that must be provided
for the purposes of the application.
Subsection 91(3) provides
that such a determination is a disallowable instrument for the purposes of
section 46A of the Acts Interpretation Act 1901.
Subsection
91(4) enables the Secretary, for the purpose of considering an application
under section 91, to require the applicant to provide such further information
or documents as the Secretary specifies. The Secretary must give the applicant
written notice setting out the additional information or documents that are
required to be produced and specifying the period within which they must be
produced.
In circumstances where the Secretary requires an applicant to
provide further information or produce further documents within a specified
period (see new subsection 91(4)), and the applicant does not provide the
information or produce the documents within the specified period, subsection
91(5) provides that the Secretary may treat the application as having
been withdrawn. The purpose of this amendment is to protect the Secretary from
having to make a decision to grant or refuse a permission in the circumstances
set out in new subsection 91(5).
Subsection 91(6) requires the
Secretary to provide the applicant with written notice of his or her decision to
grant or refuse permission. Where the Secretary decides to refuse permission,
the notice must include reasons for the refusal.
Where the Secretary
grants an applicant permission to supply pharmaceutical benefits at or from
premises in respect of which a deceased pharmacist was approved, subsection
91(7) sets out the effect of the grant of permission.
Paragraph
91(7)(a) provides that a person who is granted permission under subsection
91(1) is treated, for all purposes of the Act, as if that person is, and since
the referral day in relation to the permission (see subsection 91(8) below), had
been, approved under section 90 as an approved pharmacist. The purpose of this
provision is to make clear that the person who is granted permission under
subsection 91(1) is to be treated, as a matter of law, as if he or she had been
granted an approval under subsection 90(1).
Paragraph 91(7)(b)
provides that where a person is granted permission under subsection 91(1), any
pharmaceutical benefits that are supplied by a pharmacist, who is not an
approved pharmacist, after the referral day in relation to the permission (see
new subsection 91(8) below) and before the grant of that permission, are treated
as if they were supplied by the person to whom that permission is
granted.
For example, in circumstances where, during the period following
the death of an approved pharmacist, and before a person is granted permission
under subsection 91(1), a pharmacist who is not an approved pharmacist, supplies
pharmaceutical benefits at or from premises in respect of which the deceased
pharmacist was approved, the supply is treated as if it had been a supply of
pharmaceutical benefits by the person to whom the permission is
granted.
Similarly, in circumstances where a person has been granted
permission under subsection 91(1) in respect of particular premises (for
explanatory purposes here referred to as “the prior permission”) and
that prior permission is revoked, and a subsequent permission is granted in
respect of the same premises (for explanatory purposes here referred to as
“the current permission”), if during the period following the
revocation of the prior permission and before the granting of the current
permission, a pharmacist, who is not an approved pharmacist, supplies
pharmaceutical benefits at or from the premises, the supply is treated as if it
had been a supply of pharmaceutical benefits by the person to whom the current
permission is granted.
The purpose of paragraph 91(7)(b) is to
ensure that payment may be made under section 99 of the Act for pharmaceutical
benefits supplied, at or from premises in respect of which a deceased pharmacist
had been approved, by a pharmacist who is not an approved pharmacist, during the
period:
• following the death of the approved pharmacist and prior to
the grant of a permission under subsection 91(1); or
• between the
revocation of one permission and the granting of a subsequent permission in
relation to those premises.
Paragraph 91(7)(c) is an
interpretative provision. Because a permission granted under section 91 is
treated (by virtue of paragraph 91(7)(a)) as an approval under section 90, then
a reference in the Act to “an approval granted under section 90” is
to be interpreted as including a reference to an approval treated as having been
granted under section 90.
Paragraph 91(7)(d) provides that if a
permission is granted to a person under subsection 91(1), because that
permission is treated as an approval under section 90 (by virtue of paragraph
91(7)(a)), the permission is subject to all conditions to which an approval
granted under section 90 is subject. The new paragraph makes clear that the
conditions include any conditions imposed by means of a determination made under
paragraph 92A(1)(f) of the Act.
Paragraph 91(7)(e) provides that
if a permission is granted to a person under subsection 91(1), the rights and
obligations of an approved pharmacist under the Act apply to that person. As
such, this person will be subject to the offence provisions that are applicable
to approved pharmacists (for example, see section 103).
Subsection
91(8) is an interpretative provision. It explains how the term referral
day is to be interpreted for the purposes of subsection 91(7). The referral
day is the day on which a permission granted under subsection 91(1)
commences.
Paragraph 91(8)(a) provides that unless paragraph (b)
applies, the referral day is the day following the date of death of the deceased
pharmacist to whom the application for permission related. Paragraph 91(8)(b)
provides that if there has been a prior permission granted under section 91 in
relation to the premises to which the permission relates, the referral day is
the day following the date that the prior permission was revoked.
The
practical application of the term referral day is explained above in
relation to paragraph 91(7)(b).
Subsection 91(9) provides that a
permission granted to a person under subsection 91(1) in relation to the
premises in respect of which a deceased pharmacist was approved under section
90, continues, unless it is sooner revoked (see new subsections 91(11) and
91(12) below), until that person or another person is approved under section 90
in respect of those premises.
Subsection 91(10) makes clear that
the Secretary is not permitted to grant permission to a person, under subsection
91(1), to supply pharmaceutical benefits at or from premises in respect of which
a deceased pharmacist had been approved under section 90, if that person is not
permitted, under the law of the State or Territory in which the premises are
situated, to carry on the deceased pharmacist’s business. Subsection
91(10) mirrors the limit on the Secretary’s powers set out in subsection
90(4) in relation to the granting of approval under subsection 90(1).
Subsection 91(11) places an obligation on the person granted
permission under subsection 91(1) to notify the Secretary in writing as soon as
he or she becomes aware that:
• probate of the will, or administration
of the estate, of the deceased approved pharmacist has been granted;
and
• he or she is not, or is not included among persons who are,
granted that probate or administration.
Subsection 91(12) provides
that the Secretary must revoke a permission granted under subsection 91(1) if
the Secretary becomes aware, as a result of being notified under subsection
91(11) or by other means, that:
• probate of the will, or
administration of the estate, of the deceased approved pharmacist has been
granted; and
• the person granted a permission under subsection 91(1)
is not, or is not included among persons who are, granted that probate or
administration.
The purpose of subsections 91(11) and 91(12) is to ensure
that a permission granted under subsection 91(1) to supply pharmaceutical
benefits at or from premises in respect of which a deceased pharmacist had been
approved under section 90, is revoked when the Secretary becomes aware that the
person who was granted that permission is not, or is not included among the
persons who are, granted probate of the will or administration of the estate of
the deceased pharmacist.
Subsection 91(13) clarifies that in
circumstances where a partnership agreement provides for the disposal of the
pharmacy business of a deceased approved pharmacist to any surviving partner or
partners, section 91 is not to be interpreted as overriding the operation of the
terms of that agreement.
Item 14 inserts a new subsection
105AB(7AA) which provides that the Secretary's decisions under section 91 to (a)
grant or refuse an application, (b) treat an application as having been
withdrawn or (c) revoke a permission are reviewable by the Administrative
Appeals Tribunal.
Item 17 corrects a misdescribed amendment in Item 8, Schedule 1 of
the Health Insurance Amendment (Diagnostic Imaging, Radiation Oncology and
Other Measures) Act 2003. The amendments previously made by Item 8 of
Schedule 1 unsuccessfully attempted to extend the definition of
proprietor in section 3(1) of the Health Insurance Act 1973 to
specify the proprietor of a diagnostic imaging premises and radiation oncology
premises. The amendment was unsuccessful because there were two definitions of
proprietor in the Health Insurance Act 1973, and the amendment did
not clarify which definition was to be amended.
Item 18 repeals
Item 5 of Schedule 2 of the Health Insurance Amendment (Diagnostic Imaging,
Radiation Oncology and Other Measures) Act 2003. This is substituted by the
Item 8 of Schedule 1 (as above). The corrected Item 8 will replace the two
existing definitions of proprietor in section 3(1) of the Health
Insurance Act 1973 with a consolidated and expanded definition of
proprietor.