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2008-2009-2010
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
NATIONAL HEALTH AMENDMENT
(CONTINENCE AIDS PAYMENT SCHEME) BILL 2010
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Ageing)
NATIONAL HEALTH AMENDMENT
(CONTINENCE AIDS PAYMENT SCHEME) BILL 2010
OUTLINE
The purpose of the Bill is to amend the National Health Act 1953 (the Act).
The amendments will provide the Minister with the legislative authority to
formulate a scheme (via legislative instrument) providing for payments to
eligible persons as a contribution towards the cost of purchasing products
that help manage incontinence.
The scheme to be formulated by the Minister will be known as the Continence
Aids Payments Scheme (the CAP Scheme). The Scheme will replace the
Continence Aids Assistance Scheme (CAA Scheme).
Under the CAA Scheme, eligible people with severe and permanent
incontinence are provided each year with up to $489.95 (indexed annually)
worth of products that help manage continence. The CAA Scheme is managed
by a sole provider on behalf of the Department of Health and Ageing.
Under the CAP Scheme, eligible people will instead receive a payment as a
contribution towards the cost of products. The new arrangements will
provide greater choice to the consumer, promote competition and are
expected to reduce the administrative costs associated with the continence
aids program.
The amount of the contribution payment will be specified in the legislative
instrument.
The Medicare Australia CEO will deliver the program.
The Bill contains provisions for review of decisions made under the CAP
Scheme as well as transitional arrangements for clients of the CAA Scheme.
Clients of the CAA Scheme will be taken to participate in the CAP Scheme,
and be eligible to participate in the CAP Scheme, from 1 July 2010,
provided they give certain information to the Medicare Australia CEO to
facilitate a contribution payment being made to their nominated bank
account. After 30 June 2011, they must meet the eligibility criteria
specified in the Scheme.
The Bill provides the Secretary and the Medicare Australia CEO with
information-gathering powers for the purposes of determining whether a
person is eligible for a contribution payment or determining the
contribution amount that is payable.
Financial Impact Statement
The Bill delivers on the 2009-10 Budget commitment to introduce the
Continence Aids Payment Scheme.
Funds for the CAPS payments from 1 July 2010 are included in the
Department's Forward Estimates.
NATIONAL HEALTH AMENDMENT
(CONTINENCE AIDS PAYMENT SCHEME) BILL 2010
NOTES ON CLAUSES
Clause 1 - Short Title
This clause provides that the Bill, once enacted, is to be cited as the
National Health Amendment (Continence Aids Payment Scheme) Act 2010.
Clause 2 - Commencement
This clause provides that the Bill, once enacted, will have a staggered
timetable for commencement. Sections 1 to 3 will commence on Royal
Assent. Schedule 1 inserts provisions into the Act relating to the making
of the Scheme, review rights, information gathering powers and transitional
arrangements for people in the CAA Scheme, will commence on 1 July 2010.
Clause 3 - Schedule
The Bill makes amendments to the National Health Act 1953.
PART 1 - CONTINENCE AIDS PAYMENT SCHEME AMENDMENTS
Item 1 - References to legislative instrument in subsections 6(1), (2), (5)
and (6)
Amendments to these provisions will extend the existing references to
'regulations' in subsections 6(1), (2), (5) and (6) of the Act to
'regulations or another legislative instrument'. This is to accommodate
the fact that the Continence Aids Payment Scheme will be a legislative
instrument for the purposes of the Legislative Instruments Act 2003. These
amendments also provide for the Minister or Secretary to make delegations
in respect of the performance of functions, or the exercise of powers, set
out in the CAP Scheme.
Item 2
This item inserts a new Part (Part III - Continence Aids Payment Scheme)
into the Act. Part III contains sections 12 to 15 inclusive, which are
outlined below.
Section 12 - Authority for Continence Aids Payment Scheme
This section empowers the Minister to formulate a scheme under which the
Commonwealth will make payments to assist people to meet some of the costs
of purchasing continence and continence-related products.
The CAP Scheme will be a legislative instrument for the purposes of the
Legislative Instruments Act 2003 and is subject to disallowance.
The legislative instrument may make provision for:
. an application process;
. the conditions that must be satisfied before a payment can be made;
. the amount of contribution payable in each financial year that a
person participates in the Scheme; and
. investigations that may be conducted in order to check a person's
continued compliance with the eligibility requirements.
Paragraph 12(3)(e) authorises the CAP Scheme to confer functions and powers
on the Medicare Australia CEO.
Section 13 - Power to request information
To assist in the administration and delivery of the CAP Scheme, section 13
gives the Secretary and the Medicare Australia CEO power to request
information in certain circumstances.
The information requested must be relevant to determining whether a person
is eligible to participate in the CAP Scheme (and is therefore eligible to
receive a payment) or the amount of the contribution payment that is
payable.
The Secretary or Medicare Australia CEO (referred to as an official in
proposed subsection 13(2)) may request a person to give the information to
the requesting official.
By way of example, it is anticipated that the power to request information
may be used in conjunction with:
. the application process that is contemplated by paragraph 12(3)(a);
or
. investigating whether people who are participating in the Scheme are
in fact eligible to do so, as contemplated by paragraph 12(3)(d).
A request for information can be directed to any person, provided that the
official believes, on reasonable grounds, that the person may be in a
position to provide relevant information.
A request for information must be made in writing. The request must
identify the nature of the information requested and nominate a date by
which the person is to comply. The request may require that the
information to be provided is verified by statutory declaration.
A person must be given at least 28 days from the date on which the request
for information is made to comply with the request for information.
A failure to comply with a request for information made under this section
is a strict liability offence. The meaning of strict liability is set out
in section 6.1 of the Criminal Code Act 1995. The penalty for non-
compliance with a request for information made under this section is 30
penalty units. A penalty unit is currently $110 (see section 4AA of the
Crimes Act 1914).
Subsection 13(5) outlines the circumstances in which a person will be
excused from complying with a request for information.
Section 14 - Reviewing decisions about whether an applicant is eligible for
the Scheme
If the Medicare Australia CEO decides that a person is not eligible to
participate in the CAP Scheme, that decision must be notified to the
person, in writing. The notice of the decision must include, among other
things, the reasons why the person is not eligible to participate in the
Scheme and must also explain that person's review rights.
Subsection 14(3) provides that the CAP Scheme will set out a procedure
whereby a person who is aggrieved by a decision that a person is not
eligible to participate in the CAP Scheme may request a reconsideration of
that decision by the Medicare Australia CEO.
If an application for review is made in accordance with subsection 14(2)
and the procedure outlined in the CAPS Scheme, the Medicare Australia CEO
must review the decision.
The Medicare Australia CEO must give the aggrieved person a notice which
sets out the decision and the day when the decision has effect. In the
event that the Medicare Australia CEO decides that the person is not
eligible to participate in the Scheme, the reasons for the decision and
details of the person's review rights must also be included in the notice.
Subsection 14(5) provides that an application for review of a
reconsideration decision may be made to the Administrative Appeals
Tribunal.
Section 15 - Reviewing decisions about whether a person participating in
the Scheme is eligible to do so
Section 15 is similar in its operation to section 14. It is specifically
directed to a decision concerning a person who is participating in the
Scheme and who is not eligible, or is no longer eligible, to do so.
People who are clients under the CAA Scheme, immediately prior to 1 July
2010, are to be automatically transitioned to the Scheme in accordance with
the transitional provisions referred to below. If the Medicare Australia
CEO decides that a former client of the CAA Scheme is no longer eligible,
after 1 July 2011, to participate in the Scheme, that decision will be
reviewable under section 15.
Item 3 - Transitional provisions
Subitem 3(1) provides for the transfer of people who are clients under the
CAA Scheme immediately prior to 1 July 2010 to the CAP Scheme.
Subitem 3(2) provides that the former CAA Scheme client is taken to
participate, and to be eligible to participate, in the CAP Scheme from 1
July 2010 if they provide a transfer form and bank details to the Medicare
Australia CEO by 30 November 2010. This information will facilitate a
contribution payment being made to the person's nominated bank account.
A transfer form is approved by the Secretary, whether before or after item
3 commences. This allows CAA Scheme clients to take steps before 1 July
2010 to provide the form and bank details to the Medicare Australia CEO
before the CAP Scheme commences so that there is no delay in their first
payment under the Scheme. However, they have until 30 November 2010 to
provide the information to take advantage of the transition provision.
Subitem 3(3) provides that the person is entitled to receive a payment
under the CAP Scheme for the financial year starting on 1 July 2010. The
Scheme will set out details of the payment and when it is to be made.
Subitem 3(4) ensures that the Medicare Australia CEO cannot make a decision
that the person is not eligible to participate in the CAP Scheme until 1
July 2011. To remain eligible after that date, the person must meet the
eligibility criteria specified in the CAP Scheme.