Commonwealth Numbered Acts

COMMUNITY SERVICES AND HEALTH LEGISLATION AMENDMENT ACT (No. 2) 1990 No. 141 of 1990 - SECT 19

19. After Part IIA of the Principal Act the following Part is inserted:

"PART IIB - SPECIAL PROVISIONS RELATING TO DIAGNOSTIC IMAGING SERVICES

"Division 1 - Requests for, and records relating to, diagnostic
imaging services Form etc. of requests

"23DQ. (1) The regulations may specify:

   (a)  the form in which a subsection 16B (1) request by a medical
        practitioner must be made; and

   (b)  the information that must be included in the request.

"(2) A practitioner must not, without reasonable excuse, make a subsection 16B
(1) request, or permit such a request to be made on his or her behalf, if the
request contravenes regulations made for the purposes of subsection (1) of
this section. Penalty: $1,000.

"(3) A medical practitioner who renders R-type diagnostic imaging services in
the course of conducting his or her practice must not, without reasonable
excuse, provide (whether directly or indirectly) to a practitioner a document
for use by practitioners in making a subsection 16B (1) request if, in using
the document for that purpose, a practitioner would contravene regulations
made for the purposes of subsection (1) of this section. Penalty: $1,000.
Retention of requests etc.

"23DR. (1) A medical practitioner who has rendered an R-type diagnostic
imaging service pursuant to a subsection 16B (1) request must retain the
written request for the period of 18 months commencing on the day on which the
service was rendered.

"(2) A medical practitioner must, if requested to do so by the General Manager
of the Commission, produce to an officer of the Commission, as soon as
practicable and in any case before the end of the day after the day on which
the request is made under this subsection, a request retained by the
practitioner under subsection (1).

"(3) An officer of the Commission may make and retain copies of, or take and
retain extracts from, any request produced to the officer under subsection
(2).

"(4) A medical practitioner who, without reasonable excuse, contravenes
subsection (1) or (2) is guilty of an offence. Penalty: $1,000. Other records
of diagnostic imaging services

"23DS. (1) The regulations may require medical practitioners to prepare and
maintain records of diagnostic imaging services rendered by them, and, in
particular, may impose requirements relating to:

   (a)  the form in which the records are to be prepared; and

   (b)  the information that must be included in the records; and

   (c)  the manner in which the records must be kept.

"(2) A medical practitioner must not, without reasonable excuse, contravene a
requirement imposed by regulations made for the purposes of subsection (1).

"(3) Where the regulations require a medical practitioner to prepare and
maintain a record of a diagnostic imaging service that the practitioner has
rendered, the practitioner must retain the record for the period of 18 months
commencing on the day on which the service was rendered.

"(4) A medical practitioner must, if requested to do so by the General Manager
of the Commission, produce to an officer of the Commission, as soon as
practicable and in any case within 7 days after the day on which the request
is made, a record retained by the practitioner under subsection (3).

"(5) An officer of the Commission may make and retain copies of, or take and
retain extracts from, any record produced to the officer under subsection (4).

"(6) A medical practitioner who, without reasonable excuse, contravenes
subsection (2), (3) or (4) is guilty of an offence. Penalty: $1,000.
                "Division 2 - Remote area exemptions
Interpretation

"23DT. In this Division, unless the contrary intention appears: `R-type
diagnostic imaging service' does not include an R-type diagnostic imaging
service for which there is a corresponding NR-type diagnostic imaging service.
Remote areas

"23DU. (1) The Minister may determine, in writing, which areas within
Australia are taken to be remote areas for the purposes of this Division.

"(2) Such a determination is a disallowable instrument for the purposes of
section 46A of the Acts Interpretation Act 1901. Application for remote area
exemption

"23DV. A medical practitioner may apply in writing to the Minister, in the
form approved by the Minister, for a remote area exemption. Request for
further information

"23DW. The Minister may, within 60 days after such an application is made,
give the applicant written notice requesting the applicant to give to the
Minister such further information relating to the application as is specified
in the notice. Grant of remote area exemption

"23DX. The Minister must, by written notice given to the applicant, grant a
remote area exemption to the applicant if the Minister is satisfied that:

   (a)  the application is in the form approved by the Minister; and

   (b)  the applicant's practice is situated in an area that is a remote area
        for the purposes of this Division; and

   (c)  the facilities for rendering R-type diagnostic imaging services in the
        area in which the practice is situated (including facilities provided
        by practitioners visiting the area regularly) are such that, were
        subsection 16B (1) to apply to the rendering of those services,
        patients in the area would suffer physical or financial hardship.
        Restrictions on remote area exemptions

"23DY. (1) If the Minister is satisfied that the physical or financial
hardship referred to in paragraph 23DX (c) would only be suffered in respect
of the rendering of certain R-type diagnostic imaging services, the Minister
may, in the notice granting the remote area exemption, restrict the remote
area exemption to those services.

"(2) The notice must contain the reasons for any such restriction.

"(3) The person to whom the remote area exemption is granted may, at any time,
apply in writing to the Minister, in the form approved by the Minister, for:

   (a)  the restriction to be removed; or

   (b)  its scope to be reduced.

"(4) The Minister may, within 60 days after such an application is made, give
the applicant written notice requesting the applicant to give to the Minister
such further information relating to the application as is specified in the
notice.

"(5) If the Minister is satisfied that physical or financial hardship of a
kind referred to in paragraph 23DX (c) will be suffered if the restriction is
not removed, or its scope is not reduced, the Minister must, by written notice
given to the applicant, remove the restriction, or reduce its scope,
accordingly. Refusal of application

"23DZ. (1) The Minister may refuse an application under section 23DV or
subsection 23DY (3) by giving the applicant written notice of the refusal and
of the reasons for the refusal.

"(2) If:

   (a)  in the case of an application under section 23DV:

   (i)  at the end of 60 days after the application is made, a request has not
        been made to the applicant under section 23DW and the applicant has
        not been granted a remote area exemption; or

   (ii) a request has been made under section 23DW and, at the end of 60 days
        after the request was made, the applicant has not been granted a
        remote area exemption; or

   (b)  in the case of an application under subsection 23DY (3):

   (i)  at the end of 60 days after the application is made, a request has not
        been made to the applicant under subsection 23DY (4) and the Minister
        has not given the applicant a written notice under subsection 23DY
        (5); or

   (ii) a request has been made under subsection 23DY (4) and, at the end of
        60 days after the request was made, the Minister has not given the
        applicant a written notice under subsection 23DY (5); the Minister is
        taken, for the purposes of section 23DZD, to have refused the
        application on the last of the 60 days. Duration of remote area
        exemption

"23DZA. Subject to section 23DZC, a remote area exemption remains in force for
3 years. Renewal of remote area exemption

"23DZB. (1) A medical practitioner to whom a remote area exemption has been
granted may, at any time within the 6 months before its expiry, apply in
writing to the Minister, in the form approved by the Minister, for renewal of
the remote area exemption.

"(2) This Division, other than section 23DV, applies to the application for
renewal as if it were an application under that section. Revocation of remote
area exemption

"23DZC. (1) The Minister may revoke a remote area exemption that has been
granted to a medical practitioner if the Minister is satisfied that:

   (a)  the practitioner's practice is no longer situated in an area that is a
        remote area for the purposes of this Division; or

   (b)  the facilities for rendering R-type diagnostic imaging services in the
        area in which the practice is situated (including facilities provided
        by practitioners visiting the area regularly) are no longer such that,
        were subsection 16B (1) to apply to the rendering of those services,
        patients in the area would suffer physical or financial hardship; or

   (c)  where a Medicare Participation Review Committee has advised the
        Minister under subsection 124FF (6) that the remote area exemption
        should be revoked - the remote area exemption should be revoked for
        the reasons given by the Committee in its advice.

"(2) The Minister must not revoke the remote area exemption unless:

   (a)  the practitioner has been given a written notice:

   (i)  stating that revocation of the remote area exemption is being
        considered; and

   (ii) setting out the grounds for considering revocation; and

   (iii) stating that the practitioner may, within 6 months after the notice
        is given, make written submissions to the Minister as to why the
        remote area exemption should not be revoked; and

   (b)  due consideration has been given to any such submissions made by or on
        behalf of the practitioner during those 6 months. Review of decisions

"23DZD. Applications may be made to the Administrative Appeals Tribunal for
review of:

   (a)  a decision under subsection 23DY (1) to restrict a remote area
        exemption to certain R-type diagnostic imaging services; or

   (b)  a decision under subsection 23DY (5) reducing the scope of a remote
        area exemption; or

   (c)  a decision refusing to grant a remote area exemption; or

   (d)  a decision refusing an application under subsection 23DY (3) for:

   (i)  a restriction on a remote area exemption to be removed; or

   (ii) the scope of such a restriction to be reduced; or

   (e)  a decision under section 23DZC revoking a remote area exemption.
        Statements to accompany notification of decisions

"23DZE. (1) Where a person whose interests are affected by a decision of a
kind referred to in section 23DZD is given written notice of the decision, the
notice must include a statement to the effect that, if the person is
dissatisfied with the decision, application may, subject to the
Administrative  Appeals Tribunal Act 1975 , be made to the Administrative
Appeals Tribunal for review of the decision and, except where subsection 28
(4) of that Act applies, also include a statement to the effect that the
person may request a statement under section 28 of that Act.

"(2) A failure to comply with subsection (1) does not affect the validity of
the decision.

"Division 3 - Prohibited diagnostic imaging practices Interpretation

"23DZF. In this Division: `practitioner' includes a chiropractor; `service
provider' means a person who:

   (a)  renders diagnostic imaging services; or

   (b)  carries on the business of rendering diagnostic imaging services; or

   (c)  is a proprietor of premises at which diagnostic imaging services are
        rendered; or

   (d)  employs a person who:

   (i)  renders diagnostic imaging services; or

   (ii) carries on the business of rendering diagnostic imaging services.
        Prohibited diagnostic imaging practices

"23DZG. For the purposes of this Act, a person is taken to be engaged in a
prohibited diagnostic imaging practice if:

   (a)  the person is a service provider who directly or indirectly offers any
        inducement (whether by way of money, property or other benefit or
        advantage), or threatens any detriment or disadvantage, to a
        practitioner or any other person in order to encourage the
        practitioner to request the rendering of a diagnostic imaging service;
        or

   (b)  the person is a service provider who, without reasonable excuse:

   (i)  directly or indirectly invites a practitioner to request the rendering
        of a diagnostic imaging service; or

   (ii) does any act or thing that the person knows, or ought reasonably to
        know, is likely to have the effect of directly or indirectly
        encouraging a practitioner to request the rendering of a diagnostic
        imaging service; or

   (c)  the person is a practitioner, or the employer of a practitioner, who,
        without reasonable excuse, asks, receives or obtains, or agrees to
        receive or obtain, any property, benefit or advantage of any kind for
        himself or herself, or any other person, from a service provider or a
        person acting on behalf of the service provider; or

   (d)  the person is a practitioner who:

   (i)  accepts a request from another practitioner to render a diagnostic
        imaging service; and

   (ii) in respect of any service (including a service for the use of
        diagnostic imaging equipment) connected with the rendering of the
        diagnostic imaging service, makes a payment, directly or indirectly:

                (A)  to the other practitioner; or

                (B)  if the diagnostic imaging service is not provided in a
                     hospital - to a person who is the other practitioner's
                     employer or to an employee of such a person; or

   (e)  the person is a practitioner who accepts a request from another
        practitioner to render a diagnostic imaging service where there is in
        force an arrangement under which:

   (i)  the 2 practitioners share, directly or indirectly, the cost of
        employing staff, or of buying, renting or maintaining items of
        equipment; and

   (ii) the amounts payable under the arrangement are not fixed at normal
        commercial rates; or

   (f)  the person is a practitioner who accepts a request from another
        practitioner to render a diagnostic imaging service where there is in
        force an arrangement under which:

   (i)  the 2 practitioners share a particular space in a building; or

   (ii) one practitioner provides, directly or indirectly, space in a building
        for the use or occupation of the other practitioner or permits the
        other practitioner to use or occupy space in a building;
and the amounts payable under the arrangement are not fixed at normal
commercial rates; or

   (g)  the person is a specialist in the speciality of diagnostic radiology
        who stations diagnostic imaging equipment or employees of the
        specialist at the premises of another practitioner (whether it is a
        full-time arrangement or not), so that diagnostic imaging services may
        be rendered to the practitioner's patients by or on behalf of the
        specialist. Notices etc. in relation to possible prohibited diagnostic
        imaging practices

"23DZH. (1) Where the Minister has reasonable grounds for believing that a
person has engaged in a prohibited diagnostic imaging practice, the Minister
must give notice in writing to the person:

   (a)  setting out particulars of the prohibited diagnostic imaging practice
        and the grounds for the belief; and

   (b)  inviting the person to make submissions to the Minister within the
        period of 28 days commencing on the day the notice is given, to show
        cause why the Minister should not take further action in relation to
        the person.

"(2) Where the person makes a submission to the Minister, within the period
referred to in paragraph (1) (b), the Minister must have regard to the
submission in determining whether to take any further action in relation to
the person under section 23DZJ. Minister may take further action

"23DZJ. (1) Where the Minister gives notice to a person under subsection 23DZH
(1), the Minister must give notice in writing to a Chairperson of a Medicare
Participation Review Committee setting out the particulars referred to in
paragraph (1) (a) of that subsection if:

   (a)  at the end of the period referred to in paragraph (b) of that
        subsection, the person has not made submissions to the Minister; or

   (b)  the person makes submissions to the Minister within that period and
        the Minister is satisfied that there are reasonable grounds for
        believing that the person has engaged in a prohibited diagnostic
        imaging practice (being the grounds and prohibited diagnostic imaging
        practice specified in the notice under subsection 23DZH (1)).

"(2) Where the Minister gives notice to a person under subsection 23DZH (1),
the Minister must decide that no further action is to be taken in relation to
the person if:

   (a)  the person makes submissions to the Minister within the period
        referred to in paragraph (b) of that subsection; and

   (b)  the Minister is satisfied that the person has not engaged in the
        prohibited diagnostic imaging practice specified in the notice.

"(3) The Minister must give to the person written notice of the Minister's
decision under this section.".