Commonwealth Numbered Regulations - Explanatory Statements

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HEALTH INSURANCE (PROFESSIONAL SERVICES REVIEW) AMENDMENT REGULATION 2012 (NO. 2) (SLI NO 298 OF 2012)

EXPLANATORY STATEMENT

 

 

Select Legislative Instrument 2012 No. 298

 

Health Insurance Act 1973

 

Health Insurance (Professional Services Review) Amendment Regulation 2012 (No. 2)

 

Subsection 133(1) of the Health Insurance Act 1973 (the Act) provides that the

Governor-General may make regulations, not inconsistent with the Act, prescribing all matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act. 

 

Part VAA of the Act establishes the Professional Services Review (PSR) Scheme.  The PSR Scheme is intended to provide an effective peer review mechanism to deal quickly and fairly with concerns about possible inappropriate practice.  The objective of the scheme is to protect the integrity of the Medicare and Pharmaceutical Benefits Schemes (MBS and PBS respectively) from inappropriate practice in relation to MBS billing and PBS prescribing.

Under the Act, 'inappropriate practice' is conduct in connection with rendering services that the practitioner's peers would conclude was unacceptable to the general body of their profession, such as over-servicing patients or over-prescribing drugs listed on the PBS.

 

The purpose of the regulation is to implement consequential changes to the Health Insurance (Professional Services Review) Regulations 1999 (the Principal Regulations), necessary due to the passage of the Health Insurance Amendment (Professional Services Review) Act 2012 (the PSR Act).

 

On 27 June 2012 the PSR Act received the Royal Assent. The purpose of the PSR Act is to improve the efficiency of the Professional Services Review (PSR) Scheme and broaden its scope by:

 

*      clarifying administrative arrangements and streamlining the peer review process;

*      including services rendered or initiated by allied health practitioners within the scope of the Scheme;

*      authorising the Determining Authority to consider matters that are required to be referred to Medicare Participating Review Committees (MPRC) and impose equivalent sanctions; and

*      retrospectively validating actions taken in relation to PSR matters that have been brought into question as a result of Federal Court litigation.  

 

Part 1 of Schedule 2 of the PSR Act repeals section 106KA and reinserts the provisions relating to a prescribed pattern of services into new subsections 82(1A) to 82(1D) and new section 82A.  New section 82A of the Act outlines that the regulations may prescribe the circumstances in which services that are rendered or initiated by a practitioner constitute a prescribed pattern of services.  

 

Regulation 10 of the Principal Regulations outlines that a prescribed pattern of services is that 80 or more such services are rendered on each of 20 or more days in a 12 month period.  Regulation 11 of the Principal Regulations provides that when a prescribed pattern of services is found, there may be exceptional circumstances that give rise to an exemption to these provisions.

 

Schedule 1 to the regulation contains consequential amendments to ensure that the regulations refer to the correct provisions in the Act that will be changed when the new provisions in the PSR Act come into force on 27 December 2012.

 

Part 8 of the PSR Act contains provisions relating to the powers of the Director of PSR, the PSR Committees or the Determining Authority to refer matters to appropriate regulatory bodies.  These provisions relate to matters where the conduct of a practitioner may give rise to a threat to the life or health of another person or show non-compliance with professional standards.

 

Previously these provisions were part of the Act, but Part 8 of Schedule 2 to the PSR Act amends the Act and allows for regulations to specify appropriate persons or bodies that the Director of PSR may refer a person under review to.

 

Schedule 1 to the regulation contains a list of appropriate persons or bodies to which the Director may refer a person under review for non-compliance with professional standards or if there is a significant risk to life or health of another person.

 

Details of the regulation are set out in the Attachment.

 

The Act specifies no conditions which need to be met before the power to make the regulation may be exercised. 

 

The regulation is a legislative instrument for the purposes of the Legislative Instruments Act 2003. 

The regulation commences on 27 December 2012.

 

Consultation

 

No specific consultation was undertaken in relation to this amendment, however these changes are based on amendments to the Health Insurance Act 1973 by the Health Insurance Amendment (Professional Services Review) Act 2012 (the PSR Act).  The PSR Act underwent an extensive consultation process. An exposure draft of the PSR Act was released for consultation on 1 April 2010 and key professional bodies, such as the Australian Medical Association and Allied Health Professions Australia indicated their support of the Act.

 

 

                                                                       Authority:     Subsection 133(1) of the

                                                                                                Health Insurance Act 1973 


 

ATTACHMENT

 

Details of the Health Insurance (Professional Services Review) Amendment Regulation 2012 (No. 2)

 

Section 1 - Name of regulation

 

This section provides for the regulation to be referred to as the Health Insurance (Professional Services Review) Amendment Regulation 2012 (No. 2).

 

Section 2 - Commencement

 

This section provides for the regulation to commence on 27 December 2012.

 

Section 3 - Amendment of Health Insurance (Professional Services Review) Regulations 1999

 

This section amends the Health Insurance (Professional Services Review) Regulations 1999 (the Principal Regulations).

 

Schedule 1 - Amendments

 

Item [1] - Regulation 3, note

This item clarifies the list of words and expressions used in the Principal Regulations as having the same meaning given to them in the Act.

 

Item [2] - Regulation 8, excluding the heading

This item replaces reference to repealed section 106KA of the Act with the amended section 82 of the Act.

 

Item [3] - Regulation 9

This item amends regulation 9 by replacing reference to repealed subsection 106KA(3) of the Act with new section 82A of the Act.

 

Item [4] - Regulation 10, excluding the heading

This item repeals regulation 10, except for the heading, and replaces it with new regulation 10 that clarifies that the circumstances that constitute a prescribed pattern of services are relevant to new section 82A of the Act. 

 

Item [5] - Regulation 11

This item amends regulation 11 by replacing reference to repealed subsection 106KA(5) of the Act with new section 82 (1D) of the Act.

 

Item [6] - Part 4

This item repeals and substitutes Part 4 of the Principal Regulations.  The new Part 4 allows the Director of PSR to refer a person under review to a specified list of appropriate persons or bodies listed in Schedule 1 (see item [7]) for conduct  involving a significant threat to the life or health of another person, or for non-compliance with professional standards.

 

This item introduces new regulation 13, which is the same as the old regulation 12.  New regulation 12 introduces new provisions as per new subsection 106XA(4) of the Act.  This new regulation provides that the appropriate person or body for conduct involving a significant threat to life or health is a person or body specified in Schedule 1 to the regulations.  These persons or bodies also need to have the power to take action against the person under review in relation to any conduct by that person that has caused, or is likely to cause, a significant threat to the life or health of another person.

 

Item [7] - Schedules 1 and 2

This item substitutes Schedules 1 and 2 to the Principal Regulations and replaces them with a new combined Schedule 1.  This item lists the same bodies and persons listed in the previous Schedule.  This item allows a person under review to be referred to this list of persons or bodies for either non-compliance with professional standards and/or if the conduct of the person under review has caused, or is likely to cause, a significant threat to the life or health of another person.

 

 

Text Box: Statement of Compatibility with Human Rights Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 Health Insurance (Professional Services Review) Amendment Regulation 2012 (No. 2) This Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. Overview of the Legislative Instrument The instrument amends the Health Insurance (Professional Services Review) Regulations 1999 (the regulations) to update references to sections in the Health Insurance Act 1973 (the Act) that have been repealed or amended by the Health Insurance Amendment (Professional Services Review) Act 2012. Items 1 -5 of Schedule 1 of the amending regulations corrects references to sections in the Act that have been amended by Part 1 of Schedule 2 of the PSR Act. These are minor consequential amendments stemming from Part 1 of Schedule 2 of the PSR Act that clarifies the provisions relating to a prescribed pattern of services. Items 6 and 7 of Schedule 1 of the amending regulations substitute existing Part 4 and Schedules, of the regulations with a new regulation that clarifies that any professional person or body previously listed as being able to have a person under review referred to them by the Director of PSR for non-compliance with professional standards, may also have a person under review referred to them if their conduct has caused, or is likely to cause, a significant threat to life or health or another person. This change gives effect to Part 8 of the PSR Act. The amended regulations commences on 27 December 2012. Human rights implications This Legislative Instrument does not engage any of the applicable rights or freedoms. Conclusion This Legislative Instrument is compatible with human rights as it does not raise any human rights issues. Richard Bartlett First Assistant Secretary Medical Benefits Division Department of Health and Ageing  

 

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