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WORKERS' COMPENSATION AND REHABILITATION (NATIONAL INJURY INSURANCE SCHEME) AMENDMENT ACT 2016 - SECT 50

Insertion of new pt 5A

50 Insertion of new pt 5A

After section 117—
insert—

Part 5A - Treatment, care and support payments

Division 1 - Assessing entitlement

Subdivision 1 - Preliminary

117A Definitions for division In this division—

"childrens functional independence measure instrument" means the functional independence measure instrument adapted for paediatrics and described on the department’s website.

"functional independence measure instrument" means a clinical tool used to assess the functional ability of a person by scoring motor and cognitive items against a scale and described on the department’s website.

Subdivision 2 - Eligibility criteria

117B Purpose of subdivision For section 232M(2)(a) of the Act, this subdivision prescribes the eligibility criteria for particular serious personal injuries.
117C Eligibility criteria for permanent spinal cord injury
(1) The eligibility criteria for a permanent spinal cord injury resulting in a permanent neurological deficit are—
(a) the permanent neurological deficit is classified as grade A, B, C or D on the ASIA impairment scale, as assessed under the ISNCSCI; and
(b) the injury has resulted in a residual significant impact on the function of the autonomic nervous system, evidenced by a score of 0 for an item relating to bladder, bowel or sexual function, as assessed under the ISAFSCI.
(2) In this section—

"ASIA impairment scale" means the scale, known as the American Spinal Injury Association impairment scale, used for measuring impairment resulting from a spinal cord injury and published by the American Spinal Injury Association.

"ISAFSCI" means the document called ‘International standards to document remaining autonomic function after spinal cord injury’, published by the American Spinal Injury Association.

"ISNCSCI" means the document called ‘International standards for neurological classification of spinal cord injury’, published by the American Spinal Injury Association.
117D Eligibility criteria for traumatic brain injury
(1) The eligibility criteria for a traumatic brain injury resulting in a permanent impairment are—
(a) any or all of the following apply—
(i) the injury results in post-traumatic amnesia lasting 7 days or more as evidenced by an assessment using an approved scale;
(ii) the worker is or was in a coma, other than an induced coma, for 1 hour or more as a result of the injury;
(iii) brain imaging shows a significant brain abnormality as a result of the injury; and
(b) the worker’s functional ability as a result of the injury is assessed as 5 or less for a motor or cognitive item using—
(i) for an adult—the functional independence measure instrument; or
(ii) for a child—the childrens functional independence measure instrument.
(2) In this section—

"approved scale" , for assessing post-traumatic amnesia, means—
(a) the Westmead PTA scale; or
(b) a clinically accepted scale similar to the Westmead PTA scale approved by the Regulator for this definition.

"Westmead PTA scale" means the clinical tool, known as the Westmead Post-traumatic Amnesia Scale, used to assess the period a person suffers post-traumatic amnesia.
117E Eligibility criterion for the amputation of a leg through or above the femur
(1) The eligibility criterion for the amputation of a leg through or above the femur is that the amputation involves the loss of 65% or more of the length of the femur.
(2) For subsection (1), the percentage of the length of the femur lost must be worked out by—
(a) comparing the length of the femur before and after the amputation using X-rays taken before and after the amputation; or
(b) if X-rays of the femur are not available—comparing the length of the femur of the amputated leg with the length of the contralateral femur.
(3) To remove any doubt, it is declared that the eligibility criterion in subsection (1) may be satisfied even if the worker suffers from a personal injury that is the amputation of more than 1 limb or parts of different limbs.
117F Eligibility criteria for the amputation of more than 1 limb or parts of different limbs
(1) The eligibility criteria for the amputation of more than 1 limb or parts of different limbs are—
(a) the amputations involve the loss of 50% or more of the length of each of the worker’s tibias; or
(b) both of the worker’s upper limbs are amputated at or above the first metacarpophalangeal joint of the thumb and index finger of each hand; or
(c) the amputations involve—
(i) the loss of 50% or more of the length of 1 of the worker’s tibias; and
(ii) 1 of the worker’s upper limbs being amputated at or above the first metacarpophalangeal joint of the thumb and index finger of the same hand.
(2) For subsection (1), the percentage of the length of the tibia lost must be worked out by—
(a) comparing the length of the tibia before and after the amputation using X-rays taken before and after the amputation; or
(b) if X-rays of the tibia are not available—comparing the length of the tibia of the amputated leg with the length of the contralateral tibia; or
(c) if the length of the contralateral tibia can not be determined—using the estimated knee height based on overall height before the amputation.
117G Eligibility criteria for a full thickness burn to all or part of the body
The eligibility criteria for a full thickness burn to all or part of the body are—
(a) the full thickness burn is to—
(i) for a worker younger than 16 years—more than 30% of the total body surface area; or
(ii) for a worker 16 years or older—more than 40% of the total body surface area; or
(iii) both hands; or
(iv) the face; or
(v) the genital area; and
(b) the worker’s functional ability as a result of the injury is assessed as 5 or less for a motor or cognitive item using—
(i) for an adult—the functional independence measure instrument; or
(ii) for a child—the childrens functional independence measure instrument.
117H Eligibility criterion for an inhalation burn resulting in a permanent respiratory impairment
The eligibility criterion for an inhalation burn resulting in a permanent respiratory impairment is that the worker’s functional ability as a result of the injury is assessed as 5 or less for a motor or cognitive item using—
(a) for an adult—the functional independence measure instrument; or
(b) for a child—the childrens functional independence measure instrument.
117I Eligibility criterion for permanent blindness caused by trauma
(1) The eligibility criterion for permanent blindness caused by trauma is that the injured person has a visual defect, or a combination of visual defects, that result in visual loss that is, or is equivalent to—
(a) visual acuity of less than 6/60 in both eyes, assessed using the Snellen scale after correction by suitable lenses; or
(b) the constriction of the worker’s field of vision to 10 degrees or less of the arc around central fixation in the worker’s better eye, regardless of corrected visual acuity (equivalent to 1/100 white test object).
(2) In this section—

"Snellen scale" means the scale for measuring visual acuity using rows of letters printed in decreasing sizes.

Subdivision 3 - Assessing eligibility criteria

117J Requirements for using functional independence measure instrument or childrens functional independence measure instrument to assess injuries
An assessment using the functional independence measure instrument or childrens functional independence measure instrument may be used for deciding whether a serious personal injury meets the eligibility criteria for the injury only if the assessment is carried out by a person who is—
(a) accredited by the Australasian Rehabilitation Outcomes Centre to carry out the assessment; and
(b) approved by the insurer to carry out the assessment.

Division 2 - Assessing worker’s needs

Subdivision 1 - Assessment process

117K Assessment generally
(1) For section 232O(2)(a) of the Act, this section prescribes requirements about assessing a matter mentioned in section 232O(1)(a) of the Act.
(2) In carrying out the assessment, the insurer must, to the extent practicable, consult with the worker about the following matters—
(a) the treatment, care and support needs resulting from the serious personal injury the worker considers are necessary and reasonable;
(b) the treatment, care or support needed by the worker for any other injury resulting from the same event as the serious personal injury;
(c) the worker’s abilities and limitations;
(d) the worker’s individual goals.
(3) The insurer may also consult with any other person the insurer considers appropriate.
117L Intervals for carrying out assessments For section 232O(2)(a) of the Act, an assessment under section 232O(1)(a) of the Act for an eligible worker must be carried out—
(a) as soon as practicable after the insurer decides the worker is entitled to treatment, care and support payments; and
(b) if an assessment has been previously carried out for the worker—within 1 year after the last assessment was carried out.

Subdivision 2 - Matters for deciding necessary and reasonable treatment, care and support needs

117M Purpose of subdivision
(1) For section 232N(b) of the Act, this subdivision prescribes matters the insurer must consider in deciding whether an eligible worker’s treatment, care and support needs resulting from the worker’s serious personal injury are necessary and reasonable in the circumstances.
(2) This subdivision does not limit the matters the insurer may consider in making a decision mentioned in subsection (1).
117N Benefit to worker
(1) The insurer must consider whether providing treatment, care or support for, or relating to, the worker’s treatment, care and support needs—
(a) is likely to maximise the worker’s independence, participation in the community and employment; and
(b) will assist the worker in managing the injury.
(2) In considering the matters mentioned in subsection (1), the insurer must also have regard to the following matters—
(a) whether the treatment, care or support relates directly to the worker’s individual goals;
(b) whether the treatment, care or support will improve or maintain the worker’s ability to conduct daily activities or participate in the community or employment;
(c) whether the treatment, care or support has been provided to the worker previously, resulting in an improvement to, or assistance in managing, the worker’s injury;
(d) whether the treatment, care or support has a measurable outcome;
(e) whether the worker has agreed or is likely to agree that the treatment, care or support will benefit the worker in the ways mentioned in subsection (1);
(f) any associated risks of the treatment, care or support to the worker, weighed against the expected benefit of the treatment, care or support to the worker.
117O Appropriateness of service
(1) The insurer must consider whether treatment, care or support for, or relating to, the worker’s treatment, care and support needs—
(a) is consistent with other treatment, care or support being received by the worker; and
(b) is consistent with current clinical practice and other industry best practice for the treatment, care or support of persons with similar injuries.
(2) In considering the matters mentioned in subsection (1), the insurer must also have regard to the following matters—
(a) whether the treatment, care or support will be consistent with the worker’s future treatment, care or support needs;
(b) whether the treatment, care or support relates directly to the worker’s individual goals;
(c) whether the treatment, care or support could be harmful to the worker;
(d) whether similar treatment, care or support is already being, or is to be, provided to the worker for the injury;
(e) whether there is evidence that supports the effectiveness of the treatment, care or support.
Examples of evidence—
• peer-reviewed journal articles
• inclusion of the treatment in clinical guidelines and frameworks
• successful clinical trials
• inclusion in the medical benefits schedule administered by the Commonwealth
117P Appropriateness of provider
(1) The insurer must consider whether treatment, care or support for, or relating to, the worker’s treatment, care and support needs is provided by an appropriate provider.
(2) In considering the matter mentioned in subsection (1), the insurer must also have regard to the following matters—
(a) whether the provider, or the provider’s staff, are appropriately qualified to provide the treatment, care or support;
(b) whether the provider is appropriate having regard to, for example, the worker’s location, age, culture and ethnicity;
(c) whether the provider is acceptable to the worker;
(d) whether the provider has or may have a conflict of interest in providing the treatment, care or support to the worker;
(e) whether the provider’s fee is reasonable;
(f) if, under section 232K(2) of the Act, the treatment, care or support must be provided by a registered provider—whether the provider is a registered provider.
117Q Cost-effectiveness
(1) The insurer must consider whether treatment, care or support for, or relating to, the worker’s treatment, care and support needs is cost-effective.
(2) In considering the matter mentioned in subsection (1), the insurer must also have regard to the following matters—
(a) the likely benefit to the worker of receiving the treatment, care or support weighed against the cost of providing the treatment, care or support to the worker;
(b) the cost of the treatment, care or support compared with the cost of the same or similar treatment, care or support provided by other suitable providers;
(c) whether there is a more cost-effective way to provide the treatment, care or support;
Examples—
• considering whether leasing equipment would be more cost-effective than purchasing new equipment
• considering whether the treatment, care or support can be more appropriately funded under another scheme
(d) whether the cost of the treatment, care or support is reasonable having regard to the period for which it is required;
(e) whether the cost of the treatment, care or support exceeds an amount prescribed for the treatment, care or support under section 232R(4) of the Act.

Subdivision 3 - Other matters relating to assessing needs

117R Additional requirement about assessing particular treatment, care or support
(1) This section applies if the insurer is assessing a worker’s needs for, or relating to—
(a) home modification; or
(b) transport modification; or
(c) workplace modification; or
(d) attendant care and support services that are personal assistance services or services to assist a person to participate in the community.
(2) In carrying out the assessment, the insurer must obtain and consider information about the needs mentioned in subsection (1) from a person who is appropriately qualified to give advice about the needs.
Example of appropriately qualified persons—
an occupational therapist specialising in home or workplace modifications
117S Treatment, care or support that must be provided by a registered provider
For section 232K(2)(b) of the Act, the following treatment, care or support is prescribed—
(a) a home modification;
(b) workplace modification;
(c) a service for the coordination of treatment, care or support.
Example for paragraph (c)—
a case manager engaged to coordinate a worker’s treatment, care and support

Subdivision 4 - Support plans and service requests

117T Support plans
(1) For section 232O(3) of the Act, this section prescribes requirements about an eligible worker’s support plan.
(2) The support plan must state—
(a) the name of the worker; and
(b) the outcomes of the assessment under section 232O(1)(a) of the Act; and
(c) the matters stated in section 117K(2), if known by the insurer; and
(d) any treatment, care and support needs resulting from the worker’s serious personal injury the insurer considers are necessary and reasonable in the circumstances; and
(e) any treatment, care or support resulting from any other injury resulting from the same event as the serious personal injury that the insurer considers is necessary and reasonable in the circumstances; and
(f) any other treatment, care or support for the serious personal injury, or any other injury resulting from the same event as the serious personal injury, the insurer agrees to, wholly or partly, pay for under chapter 4A of the Act, having regard to the following matters—
(i) whether the treatment, care or support is needed by the worker as a result of the injury;
(ii) whether it would be fair and reasonable in the circumstances for the insurer to pay for the treatment, care or support, wholly or partly;
(iii) whether providing the treatment, care or support will, or is likely to, reduce the worker’s treatment, care and support needs for the injury;
(iv) whether the insurer considers, wholly or partly, paying for the treatment, care or support is more practical or cost-effective than the insurer paying for the worker’s treatment, care and support needs for the injury, without compromising the level of treatment, care or support received by the worker under chapter 4A of the Act;
(v) whether the treatment, care or support is excluded treatment, care or support;
(vi) where the treatment, care or support is to be provided, including, for example, whether the treatment, care or support is to be provided outside Australia; and
(g) the intervals at which an assessment under section 232O(1)(a) of the Act will be carried out for the worker.
(3) The support plan must be consistent with an existing decision on a service request relating to the worker.
(4) However, subsection (3) applies only to the extent the support plan relates to the period covered by the existing decision.
117U Amending support plans
(1) For section 232O(5) of the Act, this section prescribes requirements about amending an eligible worker’s support plan under section 232O(4)(a) of the Act.
(2) An amendment of the support plan must be consistent with an existing decision on a service request relating to the worker.
(3) However, subsection (2) applies only to the extent the support plan relates to the period covered by the existing decision.
117V Deciding service request
(1) For section 232P(4) of the Act, this section prescribes the matters an insurer must consider in deciding a service request relating to an eligible worker.
(2) The insurer must consider the following matters—
(a) whether or not the requested service relates to—
(i) the worker’s treatment, care and support needs resulting from the worker’s serious personal injury; or
(ii) the worker’s need for treatment, care or support resulting from another injury resulting from the same event as the worker’s serious personal injury;
(b) if the requested service relates to the treatment, care and support needs mentioned in paragraph (a)(i)—whether or not the needs are necessary and reasonable in the circumstances;
(c) if the requested service relates to the treatment, care or support mentioned in paragraph (a)(ii)—whether or not the treatment, care or support is necessary and reasonable in the circumstances;
(d) if the requested service does not relate to treatment, care and support needs or treatment, care or support mentioned in paragraph (a), or the insurer does not consider the needs or the treatment, care or support mentioned in the paragraph are necessary and reasonable in the circumstances—whether or not the insurer considers the insurer should, wholly or partly, pay for the requested service under chapter 4A of the Act, having regard to the matters mentioned in section 117T(2)(f).

Division 3 - Payment options

117W Circumstances in which payment request may be made
(1) For section 232Q(3)(b) of the Act, this section prescribes the circumstances for making a payment request for an expense for the treatment, care or support of an eligible worker.
(2) A payment request may not be made for the expense if—
(a) the person has entered into a funding agreement with the insurer for the treatment, care or support; and
(b) the expense was incurred in the period covered by the funding agreement.
(3) A payment request must be made within 6 months after the expense is incurred.
(4) However, the insurer may accept a later payment request if the insurer considers it is fair and reasonable in the circumstances to accept the request.
117X Deciding payment request
(1) For section 232R(2) of the Act, this section prescribes matters about an insurer deciding a payment request for an expense for the treatment, care or support of an eligible worker.
(2) If the insurer makes an information request and the person of whom it is made does not provide the information requested by the stated day or a later day agreed between the insurer and the person—
(a) the payment request lapses; and
(b) the insurer is not required to approve or refuse the request.
(3) The insurer must approve the payment request if—
(a) the expense is incurred in the eligibility period for the worker; and
(b) the treatment, care or support the request relates to is an approved service for the worker.
(4) To remove any doubt, it is declared that the insurer may approve the payment request even though the treatment, care or support the request relates to is not an approved service for the worker.
(5) In this section—

"approved service" does not include treatment, care or support that is excluded treatment, care or support, unless—
(a) if a support plan has been made for the eligible worker—the excluded treatment, care or support is specifically stated in the support plan to be—
(i) treatment, care or support for, or relating to, the worker’s treatment, care and support needs resulting from the worker’s serious personal injury the insurer considers is necessary and reasonable in the circumstances; or
(ii) treatment, care or support resulting from another injury resulting from the same event as the worker’s serious personal injury the insurer considers is necessary and reasonable in the circumstances; or
(iii) treatment, care or support the insurer agrees to, wholly or partly, pay for under chapter 4A of the Act; or
(b) if a support plan has not been made for the eligible worker—the excluded treatment, care or support is specifically approved under an approval of a service request relating to the worker.

"information request" , for a payment request, means a written request made by the insurer—
(a) asking a relevant person for further information about the payment request by a stated day of at least 10 business days after the insurer makes the request; and
(b) stating that, if the requested information is not given to the insurer by the stated day, the payment request will lapse.

"relevant person" , for an information request, means—
(a) the person who made the payment request; or
(b) if the person who made the payment request is not the eligible worker—the eligible worker.
117Y Limit on amount payable under payment request For section 232R(4) of the Act, the amount prescribed is—
(a) for medical treatment or rehabilitation—the amount stated in the relevant table of costs; or
(b) for hospitalisation of the worker as an in-patient at a private hospital—the amount stated in section 217(3) of the Act; or
(c) for hospitalisation of the worker as an in-patient at a public hospital—the amount stated in section 218A(3) of the Act.

Division 4 - Review of entitlement

117Z Review of worker’s entitlement
(1) This section prescribes matters for a review of a worker’s entitlement to treatment, care and support payments under section 232S of the Act.
(2) The insurer must give the worker written notice of the review at least 20 business days before carrying out the review.
(3) In carrying out the review, the insurer may ask the worker to give the insurer information needed to make a decision about the worker’s entitlement at the end of the review.



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