HEALTH LEGISLATION AMENDMENT ACT (NO. 2) 1998 No. 37, 1998 - SCHEDULE 5 -- The Private Health Insurance Complaints Commissioner

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HEALTH LEGISLATION AMENDMENT ACT (NO. 2) 1998 No. 37, 1998 - SCHEDULE 5

-- The Private Health Insurance Complaints Commissioner

Part 1--Amendments

National Health Act 1953

1 Part VIC (heading)

Repeal the heading, substitute:

PART VIC -- Private Health Insurance Ombudsman

2 Subsection 82ZQ(1) (definition of Complaints Commissioner )

Repeal the definition, substitute:

Health Insurance Ombudsman means the Private Health Insurance Ombudsman referred to in section 82ZR.

3 Division 2 of Part VIC (heading)

Repeal the heading, substitute:

DIVISION 2 -- Private Health Insurance Ombudsman

4 Subsection 82ZR(1)

Omit "Complaints Commissioner", substitute "Ombudsman".

Note: The heading to section 82ZR is altered by omitting " Complaints Commissioner " and substituting " Ombudsman ".

5 Subsection 82ZR(1) (note)
Omit "Complaints Commissioner", substitute " Health Insurance Ombudsman".
6 Subsection 82ZR(4)
Omit "Complaints Commissioner", substitute "Health Insurance Ombudsman".
7 Section 82ZRAA
Omit "Complaints Commissioner" (wherever occurring), substitute "Health Insurance Ombudsman".

Note: The heading to section 82ZRAA is altered by omitting " Complaints Commissioner " and substituting " Health Insurance Ombudsman ".
8 Section 82ZRA, paragraph 82ZRB(1)(a), section 82ZRC and subsection 82ZS(1)
Omit "Complaints Commissioner" (wherever occurring), substitute "Health Insurance Ombudsman".

Note: The heading to section 82ZRC is altered by omitting " Complaints Commissioner " and substituting " Health Insurance Ombudsman ".
9 Paragraph 82ZS(1)(a)
Omit "a contributor to the health benefits fund conducted by a registered organization", substitute "covered by a private health insurance policy".
10 At the end of section 82ZS
Add:
(3) In this section:
private health insurance policy means a contract of insurance that was entered into by a registered organization in the course of carrying on a health insurance business within the meaning of section 67.
11 Section 82ZSB
Repeal the section, substitute:
SECT 82ZSB Health Insurance Ombudsman may deal with complaints
(1) Subject to subsections (3) and (4) and sections 82ZSBA and 82ZSC, the Health Insurance Ombudsman may deal with a complaint by:

(a) trying at any time to effect a settlement of the complaint by mediating between the complainant and the person or body against whom the complaint was made; or
(b) whether or not mediation has been tried under paragraph (a)--referring the complaint to a registered organization and requesting the organization:

(i) to conduct an investigation in relation to the complaint; and
(ii) to report to the Health Insurance Ombudsman its findings and any action it proposes to take.
(2) Subject to subsections (3) and (4), the Health Insurance Ombudsman may investigate a complaint if:

(a) the complaint is not resolved by mediation under paragraph (1)(a) to the complainant's satisfaction; or
(b) the Health Insurance Ombudsman is not satisfied with the outcome of a request under paragraph (1)(b).
(3) The Health Insurance Ombudsman must not take any action under subsection (1) or (2) unless the complainant agrees to the action being taken.
(4) The Health Insurance Ombudsman must not take, or continue to take, any action under paragraph (1)(a) or subsection (2) if the complainant withdraws the complaint.
12 Subsection 82ZSBA(1)
Omit "Complaints Commissioner's", substitute "Health Insurance Ombudsman's".

Note: The heading to section 82ZSBA is altered by omitting " Complaints Commissioner " and substituting " Health Insurance Ombudsman ".
13 Subsection 82ZSBA(1)
Omit "Complaints Commissioner must, subject to subsection (2)", substitute "Health Insurance Ombudsman must, subject to subsections (2) and (2A)".
14 Subsection 82ZSBA(2)
Omit "Complaints Commissioner", substitute "Health Insurance Ombudsman".
15 After subsection 82ZSBA(2)
Insert:
(2A) The Health Insurance Ombudsman must not refer the matter to the Australian Competition and Consumer Commission if the complainant withdraws the complaint.
16 Subsection 82ZSBA(3)
Omit "Complaints Commissioner", substitute "Health Insurance Ombudsman".
17 Paragraph 82ZSBA(3)(b)
Omit "Complaints Commissioner's", substitute "Health Insurance Ombudsman's".
18 Subsections 82ZSBA(4) and (5)
Omit "Complaints Commissioner" (wherever occurring), substitute "Health Insurance Ombudsman".
19 Subsection 82ZSC(1)
Omit "Complaints Commissioner's", substitute "Health Insurance Ombudsman's".

Note: The heading to section 82ZSC is altered by omitting " Complaints Commissioner " and substituting " Health Insurance Ombudsman ".
20 Subsection 82ZSC(1)
Omit "Complaints Commissioner must, subject to subsection (2)", substitute "Health Insurance Ombudsman must, subject to this section".
21 Subsection 82ZSC(2)
Omit "Complaints Commissioner", substitute "Health Insurance Ombudsman".
22 At the end of section 82ZSC
Add:
(3) The Health Insurance Ombudsman must not refer the matter to the other body if the complainant withdraws the complaint.
23 Section 82ZSD
Omit "Complaints Commissioner", substitute "Health Insurance Ombudsman".

Note: The heading to section 82ZSD is altered by omitting " Complaints Commissioner " and substituting " Health Insurance Ombudsman ".
24 At the end of section 82ZSD
Add:

; or (c) recommend that a hospital, day hospital facility or medical practitioner take a specific course of action in relation to the complaint.
25 Subsection 82ZSE(1)
Omit "Complaints Commissioner" (first occurring), substitute "Health Insurance Ombudsman".

Note: The heading to section 82ZSE is altered by omitting " Complaints Commissioner " and substituting " Health Insurance Ombudsman ".
26 Paragraph 82ZSE(1)(a)
Omit "Complaints Commissioner", substitute "Health Insurance Ombudsman".
27 Paragraph 82ZSE(1)(b)
Repeal the paragraph, substitute:

(b) any recommendation to a registered organization made by the Health Insurance Ombudsman under paragraph 82ZSD(a) or (b); or
(c) any recommendation to a hospital, day hospital facility or medical practitioner made by the Health Insurance Ombudsman under paragraph 82ZSD(c).
28 Subsection 82ZSE(2)
Repeal the subsection, substitute:
(2) The Health Insurance Ombudsman must inform the complainant in writing of:

(a) any action taken by a registered organization as a result of an action referred to in paragraph (1)(a); and
(b) any action taken by a registered organization as a result of a recommendation referred to in paragraph (1)(b); and
(c) any action taken by a hospital, day hospital facility or medical practitioner as a result of a recommendation referred to in paragraph (1)(c).
29 Section 82ZSF
Repeal the section.
30 Subsection 82ZSG(1)
Omit "Complaints Commissioner", substitute "Health Insurance Ombudsman".

Note: The heading to section 82ZSG is altered by omitting " Complaints Commissioner " and substituting " Health Insurance Ombudsman ".
31 After paragraph 82ZSG(1)(a)
Insert:

(aa) the Health Insurance Ombudsman has dealt, or is dealing, adequately with the complaint; or
(ab) the complainant is capable of assisting the Health Insurance Ombudsman with the investigation into the complaint but does not do so when requested by the Health Insurance Ombudsman; or
(ac) the complainant has exercised, or exercises, a right to have the matter to which the complaint relates reviewed by a court or by a tribunal constituted by or under:

(i) a law of the Commonwealth; or
(ii) a law of a State or Territory; or

(ad) the complainant does not have a sufficient interest in the subject matter of the complaint; or
32 After subsection 82ZSG(1)
Insert:
(1A) The Health Insurance Ombudsman may decide not to investigate, or not to continue to investigate, a complaint if he or she believes that:

(a) the complainant has, or had, a right to have the matter to which the complaint relates reviewed by a court or by a tribunal constituted by or under:

(i) a law of the Commonwealth; or
(ii) a law of a State or Territory;

but has not exercised that right; and
(b) it is reasonable for the complainant to exercise, or it would have been reasonable for the complainant to have exercised, that right.
33 Subsections 82ZSG(2), (3) and (4)
Omit "Complaints Commissioner", substitute "Health Insurance Ombudsman".
34 Subsection 82ZSG(5)
Repeal the subsection, substitute:
(5) If the Health Insurance Ombudsman decides not to investigate, or not to continue to investigate, a complaint, he or she must:

(a) tell the complainant of the decision and the reasons for the decision; and
(b) if requested by the complainant--give the complainant written notice of the decision and the reasons for the decision.
35 At the end of Division 3 of Part VIC
Add:
SECT 82ZSH Minister may direct Health Insurance Ombudsman to investigate, or to continue to investigate, a complaint
(1) If:

(a) a person makes a complaint; and
(b) the Health Insurance Ombudsman decides not to investigate, or not to continue to investigate, the complaint;
the person may apply, in writing, to the Minister for a direction by the Minister to the Health Insurance Ombudsman to investigate, or to continue to investigate, the complaint.
(2) If the Minister so directs, the Health Insurance Ombudsman must:

(a) investigate, or continue to investigate, the complaint; and
(b) report to the Minister on the findings of his or her investigation.
36 Division 4 of Part VIC (heading)
Repeal the heading, substitute:
DIVISION 4 -- Health Insurance Ombudsman may conduct investigations
37 Sections 82ZT, 82ZTA, 82ZTB, 82ZTBB and 82ZTC and subsection 82ZTD(1)
Omit "Complaints Commissioner" (wherever occurring), substitute "Health Insurance Ombudsman".

Note: The headings to sections 82ZT, 82ZTA, 82ZTB, 82ZTBB and 82ZTC are altered by omitting " Complaints Commissioner " and substituting " Health Insurance Ombudsman ".
38 Division 5 of Part VIC (heading)
Repeal the heading, substitute:
DOIVISION 5 -- Provisions relating to the Health Insurance Ombudsman
39 Section 82ZU, subsections 82ZUA(1) and 82ZUB(1) and sections 82ZUBA and 82ZUC
Omit "Complaints Commissioner" (wherever occurring), substitute "Health Insurance Ombudsman".

Note: The heading to section 82ZUBA is altered by omitting " Complaints Commissioner " and substituting " Health Insurance Ombudsman ".
40 Subsection 82ZUC(2)
Omit "Complaints Commissioner's", substitute "Health Insurance Ombudsman's".
41 Sections 82ZUD and 82ZUE
Omit "Complaints Commissioner", substitute "Health Insurance Ombudsman".
42 Subsections 82ZUF(1) and (2)
Omit "Complaints Commissioner's", substitute "Health Insurance Ombudsman's".
43 Subsection 82ZUF(2) and section 82ZUG
Omit "Complaints Commissioner" (wherever occurring), substitute "Health Insurance Ombudsman".
44 Subsection 82ZV(1)
Omit "Complaints Commissioner", substitute "Health Insurance Ombudsman".
45 Section 82ZVA
Omit "Complaints Commissioner" (wherever occurring), substitute "Health Insurance Ombudsman".
46 At the end of Division 6 of Part VIC
Add:
SECT 82ZVD Delegation
(1) Subject to subsection (2), the Health Insurance Ombudsman may, by writing under the seal of the Health Insurance Ombudsman, delegate to a member of staff referred to in section 82ZUG all or any of the Health Insurance Ombudsman's powers and functions.
(2) The Health Insurance Ombudsman must not delegate any of his or her powers and functions under the Commonwealth Authorities and Companies Act 1997 .
SECT 82ZVE Health Insurance Ombudsman, and staff, not personally liable
(1) Subject to subsection (2) and section 135A, neither the Health Insurance Ombudsman nor a member of staff referred to in section 82ZUG is personally liable to an action or other proceeding for damages in relation to anything done or omitted to be done in good faith:

(a) in the performance or purported performance of any function of the Health Insurance Ombudsman; or
(b) in the exercise or purported exercise of any power of the Health Insurance Ombudsman.
(2) Subsection (1) does not apply to anything done or omitted to be done before the commencement of this section.
Part 2--Transitional provisions
47 Private Health Insurance Complaints Commissioner as at commencement
A person who, immediately before the commencement of this Part, held office under subsection 82ZRA(1) of the National Health Act 1953 , continues to hold office, subject to that Act, for the remainder of the person's term of office as if the person had been appointed to the office of Private Health Insurance Ombudsman under that subsection as in force after the commencement of this Part.
48 Continuation of conciliation after commencement
Section 82ZSF of the National Health Act 1953 as in force immediately before the commencement of this Part continues to apply in relation to a request made by a complainant under that section before that commencement as if that section had not been repealed.
49 Application of new subsection 82ZSG(5)
Subsection 82ZSG(5) of the National Health Act 1953 as substituted by this Act applies only to complaints made after the commencement of this Part.

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