Commonwealth Numbered Acts Commonwealth Numbered Acts
1 Subsection 129AAD(2)
After "should have been paid,", insert "or whether a determination under subsection 129ACA(2) should be made,".
2 At the end of subsection 129AAD(2)
Add "of this section".
3 Subsection 129AAD(3)
Repeal the subsection, substitute:
(3) The CEO may give a notice to a person under subsection (2) in respect of a professional service only if the CEO has given the person a reasonable opportunity to respond to a written request to produce to the CEO, or a Departmental employee (within the meaning of the Human Services (Medicare) Act 1973 ), documents relevant to either or both of the following:
(a) ascertaining whether the amount paid, purportedly by way of benefit or payment under this Act, in respect of the service, should have been paid;
(b) whether the CEO should make a determination under subsection 129ACA(2) in relation to the amount paid, purportedly by way of benefit or payment under this Act, in respect of the service.
4 Subsection 129AAD(5)
Omit "the purpose", substitute "a purpose".
5 Subsection 129AAD(5) (note)
Omit "section 129AC", substitute "sections 129AC and 129ACA".
6 After paragraph 129AAD(8)(b)
Insert:
(ba) specify the circumstances in which a determination may be made under subsection 129ACA(2) in relation to an amount; and
(bb) contain a statement that the person may provide a written response to the CEO which states:
(i) if the person considers a determination under subsection 129ACA(2) should, or should not, be made and the person's reasons for this; and
(ii) the percentage that the person considers should be determined for the purposes of paragraph 129ACA(3)(b); and
(bc) specify any matter, or contain any statement, prescribed by the Minister under paragraph 129ACA(9)(d); and
7 Subparagraph 129AADA(2)(b)(ii)
After "subsection 129AAI(4)", insert "or 129ACA(5)".
8 Subsection 129AADA(3)
After "subsection 129AAJ(1)", insert "or 129ACB(1)".
9 Subsection 129AADA(3)
After "subsection 129AAJ(5)", insert "129ACB(6)".
10 Subsection 129AAG(1) (note)
Omit "section 129AC", substitute "sections 129AC and 129ACA".
11 After subsection 129AAI(1)
Insert:
(1A) To avoid doubt, subsection (1) does not apply to an amount if subsection 129ACA(1) applies to the amount.
12 Subsection 129AAJ(1)
After "subsection 129AAI(1)", insert "(other than a decision mentioned in subsection 129AAI(1A))".
13 After subsection 129AC(1)
Insert:
(1AA) Subsection (1) does not apply to an amount if subsection 129ACA(1) applies to the amount.
14 After section 129AC
Insert:
129ACA Shared debt determinations
Making shared debt determinations
(1) If:
(a) as a result of the making of a false or misleading statement, an amount paid, purportedly by way of benefit or payment under this Act, exceeds the amount (if any) that should have been paid in respect of a professional service rendered, or purportedly rendered by a person; and
(b) the Chief Executive Medicare (the CEO ) makes a determination under subsection (2) in relation to the amount;
the excess (the recoverable amount ) is recoverable as a debt due to the Commonwealth from that person (the primary debtor ) (or from the estate of that person) and another person (the secondary debtor ) (or from the estate of that person) specified in the determination.
(2) The CEO may make a written determination under this subsection in relation to an amount if:
(a) notice has been given under subsection (7) in relation to the recoverable amount to the primary debtor and the secondary debtor; and
(b) any of the following apply:
(i) the secondary debtor employed or otherwise engaged the primary debtor to render professional services of the kind mentioned in paragraph (1)(a);
(ii) the secondary debtor had an arrangement or agreement with the primary debtor relating to professional services of that kind;
(iii) the secondary debtor is a person in a class of persons prescribed under paragraph (9)(a);
(iv) the secondary debtor is not a person in a class of persons prescribed under paragraph (9)(b); and
(c) the CEO reasonably believes the determination should be made having regard to the following:
(i) whether the relationship of the secondary debtor with the primary debtor was such that the secondary debtor could have controlled or influenced the circumstances that led to the making of the false or misleading statement to which the debt relates;
(ii) whether the secondary debtor directly or indirectly obtained a financial benefit from the making of the false or misleading statement;
(iii) whether any other factors in all the circumstances of the case make it fair and reasonable for the determination to be made.
(3) The determination must be given to the primary debtor, or estate, and the secondary debtor, or estate, and set out the following:
(a) the decision to make a determination to claim the recoverable amount under subsection (1) as a debt due to the Commonwealth;
(b) an amount (the shared amount ) equal to a percentage of the recoverable amount that is recoverable from the secondary debtor or estate;
(c) an amount (the remaining amount ) equal to the recoverable amount less the shared amount that is recoverable from the primary debtor or estate;
(d) the reasons for the decision;
(e) the right to seek review of the decision under section 129ACB.
(4) The percentage determined by the CEO for the purposes of paragraph (3)(b) must be the percentage prescribed under paragraph (9)(c), unless the CEO reasonably believes in all the circumstances of the case that it is fair and reasonable that a different percentage be determined.
(5) The CEO must not serve a notice on a person or an estate claiming a shared amount or remaining amount (as the case may be) as a debt before the end of the period of 28 days after the determination referred to in subsection (2) is given to the person or estate.
(6) An amount is recoverable under subsection (1) whether or not:
(a) the amount was paid to the primary debtor or secondary debtor (or the estates of those persons); and
(b) any person has been convicted of an offence in relation to the making of the statement.
Notice of intention to make shared debt determinations
(7) Before making a determination under subsection (2) in relation to a recoverable amount, the CEO must give the following to the primary debtor or estate and the other person or estate the CEO is considering specifying in the determination as the secondary debtor:
(a) written notice that the CEO is considering making a determination under that subsection in relation to the recoverable amount;
(b) a copy of any document produced under subsection 129AAD(2) or (3) in relation to the recoverable amount.
(8) A person who is given a notice under subsection (7) may, within 14 days after the notice is given, provide a written response to the CEO which states:
(a) the reasons why the person considers a determination under subsection (2) should, or should not, be made; and
(b) the percentage that the person considers should be determined for the purposes of paragraph 129ACA(3)(b).
Minister may make legislative instrument
(9) The Minister may, by legislative instrument, prescribe the following:
(a) classes of persons for the purposes of subparagraph (2)(b)(iii);
(b) classes of persons for the purposes of subparagraph (2)(b)(iv);
(c) a percentage for the purposes of subsection (4);
(d) matters or statements for the purposes of paragraph 129AAD(8)(bc).
Giving notices to State and Territory Health Departments
(10) If:
(a) either of the following is given to a person in relation to a professional service:
(i) a determination under subsection (2);
(ii) a notice mentioned in subsection (5); and
(b) the professional service was rendered, or purportedly rendered, in or at a hospital mentioned in subsection (11) of a State or Territory;
then, a copy of the determination or notice may be given to the head (however described) of the Health Department (within the meaning of the National Health Reform Act 2011 ) of that State or Territory.
(11) For the purposes of subsection (10), a hospital is a facility in that State or Territory for which:
(a) a declaration is in force under paragraph 121-5(6)(a) of the Private Health Insurance Act 2007 ; and
(b) a statement is included in the declaration (as mentioned in subsection 121-5(8) of that Act) that the hospital is a public hospital.
129ACB Review of decisions relating to shared debt determinations
(1) If the Chief Executive Medicare (the CEO ) makes a determination under subsection 129ACA(2) to claim a recoverable amount as a debt, the primary debtor and secondary debtor (or the estates of those persons) may apply in writing to the CEO, in the form approved in writing by the CEO, for a review of the decision to make the determination.
(2) An application under subsection (1) for review of a decision must be made within 28 days after the person or estate is notified of the decision under subsection 129ACA(3).
(3) If the CEO receives an application under subsection (1) from a person or estate, the CEO must provide written notice of the application and a copy of the application to each other person or estate mentioned in that subsection.
(4) The other person or estate may give a written submission to the CEO within the period specified in the notice (which must not be less than 28 days after the day the notice is given) which states:
(a) whether the decision should be confirmed, varied or revoked; and
(b) the person's reasons for why the decision should be confirmed, varied or revoked.
(5) On receiving the application and any written submissions under subsection (4), the CEO must:
(a) review the decision; and
(b) confirm, vary or revoke the decision.
(6) The CEO must give to the applicant and each other person mentioned in subsection (1) written notice of the decision (the reconsidered decision ) on the review.
(7) Applications may be made to the Administrative Appeals Tribunal for review of reconsidered decisions.
(8) However, subsection (7) applies only if a garnishee notice is given under subsection 129AEG(1) in relation to the debt to which the reconsidered decision relates.
(9) Despite paragraph 29(1)(d) of the Administrative Appeals Tribunal Act 1975 , if a garnishee notice is given under subsection 129AEG(1) in relation to the debt to which the reconsidered decision relates, an application mentioned in subsection (7) of this section must be made within the period of 28 days after the day the garnishee notice is given.
(10) To avoid doubt:
(a) a decision referred to in subsection 129ACA(2) may be reviewed by the CEO under subsection (5) of this section once only; and
(b) a reconsidered decision takes effect:
(i) on the day specified in the reconsidered decision; or
(ii) if a day is not specified--on the day on which the reconsidered decision is made; and
(c) a reconsidered decision may specify a percentage of zero for the purposes of subsection 129ACA(4).
15 Subsection 129AEA(1)
After "Chief Executive Medicare", insert "(the CEO )".
16 Paragraphs 129AEA(2)(e) and (3)(e)
Omit "Chief Executive Medicare", substitute "CEO".
17 At the end of section 129AEA
Add:
Subsection 129ACA(2) applies
(4) A person is liable for an administrative penalty in respect of a professional service if:
(a) the CEO has made a determination under subsection 129ACA(2) in relation to a recoverable amount in respect of the service; and
(b) notice has been served on the person (as mentioned in subsection 129ACA(5)) claiming the shared amount or remaining amount (as the case may be) of that recoverable amount as a debt due to the Commonwealth; and
(c) the recoverable amount is more than:
(i) $2,500; or
(ii) if a higher amount is prescribed by the regulations--that higher amount.
18 Subsection 129AEB(2)
Omit "and (4)", substitute ", (4) and (5)".
19 At the end of subsection 129AEB(2)
Add:
; (d) the recoverable amount referred to in paragraph 129AEA(4)(a).
20 Subsection 129AEB(3) (table)
After "129AAI(1)" (wherever occurring), insert "or 129ACA(3)".
21 Paragraph 129AEB(4)(a)
After "section 129AAD", insert "or subsection 129ACA(7)".
22 After subsection 129AEB(4)
Insert:
Shared debt determinations
(5) If the administrative penalty is in respect of a professional service for which a determination has been made under subsection 129ACA(2):
(a) apply subsections (3) and (4) in relation to the primary debtor and not the secondary debtor; and
(b) apportion the base penalty amount calculated in accordance with paragraph (a) of this subsection between the primary debtor and secondary debtor in the same way as the recoverable amount in respect of the professional service was apportioned in accordance with the determination made under subsection 129ACA(2).
23 Subsection 129AEC(1)
After "129AC", insert "or 129ACA".
24 Subsections 129AECA(1), (2), (3) and (4)
After "subsection 129AAI(4)", insert "or 129ACA(5)".
25 After paragraph 129AEF(1)(a)
Insert:
(aa) an amount under paragraph 129ACA(3)(b) or (c) where any rights of review by the CEO under section 129ACB have been exhausted or have expired;
26 Subsection 129AEG(1)
After "paragraph 129AEF(1)(a)", insert ", (aa)".
27 Application provision
The amendments made by this Schedule apply in relation to an amount paid, purportedly by way of benefit or payment under the Health Insurance Act 1973 if:
(a) the amount is paid on or after 1 July 2018; and
(b) none of the following has been given in relation to the amount before the commencement of this item:
(i) a notice under subsection 129AAD(2) of that Act;
(ii) a request under subsection 129AAD(3) of that Act;
(iii) a notice under subsection 129AAI(1) of that Act.
28 Saving provision
Despite the repeal and substitution of subsection 129AAD(3) of the Health Insurance Act 1973 by this Schedule, that subsection, as in force immediately before the commencement of this item, continues to apply on and after the commencement of this item in relation to written requests given before the commencement of this item.