Commonwealth Numbered Acts

HEALTH INSURANCE (PATHOLOGY SERVICES) AMENDMENT ACT 1997 No. 129 of 1997 - SCHEDULE 1

SCHEDULE 1ÐAMENDMENT OF THE HEALTH INSURANCE ACT 1973 1. Paragraph
23DC(10A)(a)
Before "may not specify", insert "subject to section 23DDA,". 2. After section
23DD
Insert:
23DDA Backdated undertakings

(1) A notice given under subsection 23DC(10) in respect of an undertaking (the
current undertaking) given by a person under subsection 23DC(1) may specify,
as the day on which the undertaking is taken to have come into force, a day
earlier than the day on which the undertaking was accepted if:

   (a)  one month before the day on which the Minister accepted the
        undertaking, an undertaking (the previous undertaking) previously
        given by the person under subsection 23DC(1) had been in force; and

   (b)  the previous undertaking ceased to be in force during the month ending
        on the day before that day; and

   (c)  the current undertaking, and the application for the Minister's
        acceptance of the current undertaking, were not given under subsection
        23DC(1) before the previous undertaking ceased to be in force; and

   (d)  he Minister is satisfied that the reason for the current undertaking
        and application not being given before the previous undertaking ceased
        to be in force was:

        (i)    minor inadvertence on the person's part; or

        (ii)   circumstances beyond the person's control; and

   (e)  the Minister is satisfied that it is in the public interest to specify
        an earlier day as the day on which the current undertaking is taken to
        have come into force; and (f) the person has paid the acceptance fee
        in respect of the current undertaking.

(2) The earlier day specified in the notice given under subsection 23DC(10)
must be the day after the day on which the previous undertaking ceased to be
in force.

(3) Without limiting the matters to which the Minister may have regard in
considering for the purposes of paragraph (1)(e) whether it would be in the
public interest to specify an earlier day, the Minister must have regard to:

   (a)  whether the person would suffer financial hardship if an earlier day
        was not specified; and

   (b)  whether substantial inconvenience would be caused to other persons who
        would not be eligible to receive medicare benefit for the rendering of
        certain professional services if an earlier day was not specified. 3.
        Paragraph 23DF(11A)(a)
Before "may not specify", insert "subject to section 23DGA,". 4. After section
23DG
Insert:
23DGA Backdated undertakings

(1) A notice given under subsection 23DF(11) in respect of an undertaking (the
current undertaking) given by a person under subsection 23DF(1) may specify,
as the day on which the undertaking is taken to have come into force, a day
earlier than the day on which the undertaking was accepted if:

   (a)  one month before the day on which the Minister accepted the
        undertaking, an undertaking (the previous undertaking) previously
        given by the person under subsection 23DF(1) had been in force; and

   (b)  the previous undertaking ceased to be in force during the month ending
        on the day before that day; and

   (c)  the current undertaking, and the application for the Minister's
        acceptance of the current undertaking, were not given under subsection
        23DF(1) before the previous undertaking ceased to be in force; and

   (d)  the Minister is satisfied that the reason for the current undertaking
        and application not being given before the previous undertaking ceased
        to be in force was:

        (i)    minor inadvertence on the person's part; or

        (ii)   circumstances beyond the person's control; and

   (e)  the Minister is satisfied that it is in the public interest to specify
        an earlier day as the day on which the current undertaking is taken to
        have come into force; and

   (f)  the person has paid the acceptance fee in respect of the current
        undertaking.

(2) The earlier day specified in the notice given under subsection 23DF(11)
must be the day after the day on which the previous undertaking ceased to be
in force.

(3) Without limiting the matters to which the Minister may have regard in
considering for the purposes of paragraph (1)(e) whether it would be in the
public interest to specify an earlier day, the Minister must have regard to:

   (a)  whether the person would suffer financial hardship if an earlier day
        was not specified; and

   (b)  whether substantial inconvenience would be caused to other persons who
        would not be eligible to receive medicare benefit for the rendering of
        certain professional services if an earlier day was not specified. 5.
        Paragraph 23DN(4)(a)
Before "takes effect", insert "subject to section 23DNAAA,". 6. After section
23DNA
Insert:
23DNAAA Backdated approvals

(1) An approval (the current approval) under subsection 23DN(1) in respect of
premises may specify, as the day on which the approval is taken to have taken
effect, a day earlier than the day on which the application for the approval
was received by the Minister if:

   (a)  one month before the day on which the approval was given, an approval
        (the previous approval) previously given under subsection 23DN(1) in
        respect of the premises had been in force; and

   (b)  the previous approval ceased to have effect during the month ending on
        the day before that day; and

   (c)  the application for the current approval was not received by the
        Minister before the previous approval ceased to have effect; and

   (d)  the Minister is satisfied that the reason for the application for the
        current approval not being made before the previous approval ceased to
        have effect was:

        (i)    minor inadvertence on the person's part; or

        (ii)   circumstances beyond the person's control; and

   (e)  the Minister is satisfied that it is in the public interest to specify
        an earlier day as the day on which the current approval is taken to
        have taken effect; and

   (f)  the person has paid the acceptance fee in respect of the current
        approval.

(2) The earlier day specified in the approval must be the day after the day on
which the previous approval ceased to have effect.

(3) Without limiting the matters to which the Minister may have regard in
considering for the purposes of paragraph (1)(e) whether it would be in the
public interest to specify an earlier day, the Minister must have regard to:

   (a)  whether the person would suffer financial hardship if an earlier day
        was not specified; and

   (b)  whether substantial inconvenience would be caused to other persons who
        would not be eligible to receive medicare benefit for the rendering of
        certain professional services if an earlier day was not specified. 7.
        Saving provisionÐpayments made in respect of pathology services If:

   (a)  one or more of the following applies to the rendering of a pathology
        service:

        (i)    it was rendered by a person who was not at the time an approved
               pathology practitioner but in respect of whom there had, not
               more than one month beforehand, been in force an undertaking
               given by the person, and accepted by the Minister, under
               section 23DC;

        (ii)   it was rendered in a laboratory that was not at the time an
               accredited pathology laboratory but in respect of which there
               had, not more than one month beforehand, been in force an
               approval under section 23DN;

        (iii)  the proprietor of the laboratory was not at the time an
               approved pathology authority but, not more than one month
               beforehand, there had been in force in respect of the
               proprietor an undertaking given by the proprietor, and accepted
               by the Minister, under section 23DF; and

   (b)  after the service was rendered, the Minister has, in respect of
        whichever one or more of subparagraphs (a)(i), (ii) and (iii) are
        applicable, specified the following as mentioned in sections 23DDA,
        23DNAAA and 23DGA (as the case requires):

        (i)    the day on which a subsequent undertaking (given by the person
               referred to in subparagraph (a)(i), and accepted by the
               Minister, under section 23DC) entered into force is taken to be
               the day after the day on which the undertaking referred to in
               that subparagraph ceased to be in force;

        (ii)   the day on which a subsequent approval (given under section
               23DN in respect of the laboratory referred to in subparagraph
               (a)(ii)) took effect is taken to be the day after the day on
               which the approval referred to in that subparagraph ceased to
               have effect;

        (iii)  the day on which a subsequent undertaking (given by the
               proprietor referred to in subparagraph (a)(iii), and accepted
               by the Minister, under section 23DF) entered into force is
               taken to be the day after the day on which the undertaking
               referred to in that subparagraph ceased to be in force; and

   (c)  before the Minister so specified, the Commonwealth purported to make a
        payment of medicare benefit in respect of the rendering of the
        service; and

   (d)  medicare benefit would have been payable in respect of the rendering
        of the service if any undertaking or approval referred to in paragraph
        (a) that was not, at the time the service was rendered, in force had
        been in force at that time; any right of the Commonwealth to recover
        the payment is, by force of this item, extinguished. 8. Section 23DNK
Repeal the section, substitute: 23DNK Notice that specimen collection centre
is licensed

(1) The approved pathology authority operating a licensed collection centre
must:

   (a)  ensure that at all times there is on display in a prominent place at
        the centre a notice that lets the public know that the centre is
        licensed under this Division; and

   (b)  ensure that the notice is clearly visible from outside the centre when
        the centre is closed. Penalty: 10 penalty units.

(2) Subsection (1) does not apply if the notice is on display in a prominent
place at the centre but:

   (a)  displaying the notice so that it is clearly visible from outside the
        centre would cause the approved pathology authority to be in breach of
        a lawful arrangement entered into by the approved pathology authority
        for the use or occupation of any premises, or any part of any
        premises; and

   (b)  the arrangement was in force at the time the Health Insurance 
        (Pathology Services) Amendment Act 1997 commenced.

(3) The only burden of proof that a defendant bears in respect of any matter
referred to in subsection (2) is the burden of adducing or pointing to
evidence that suggests a reasonable possibility that the matter in question
existed. 9. After subsection 23DO(2B)
Insert:

(2C) If:

   (a)  the Minister accepts an undertaking under subsection 23DC(1) or
        23DF(1), or approves premises as an accredited pathology laboratory
        under subsection 23DN(1); and

   (b)  the day on which the undertaking or approval is taken to have come
        into force or taken effect is not a day specified as mentioned in
        section 23DDA, 23DNAAA or 23DGA (as the case requires); the person who
        gave the undertaking, or applied for the approval, may apply to the
        Minister for reconsideration by the Minister of the decision not to
        specify a day, as mentioned in that section, in respect of the
        undertaking or approval.

(2D) If a person applies to the Minister under subsection (2C) for
reconsideration of the decision not to specify that day, the Minister may:

   (a)  affirm the decision; or

   (b)  determine that the notice given under subsection 23DC(10) or 23DF(11)
        in respect of the undertaking, or the approval under subsection
        23DN(1) in respect of the premises, is to be treated, for the purposes
        of this Act, as having specified that day. 10. Subsection 23DO(3)
After "(2B),", insert "(2D),". 11. Paragraph 23DO(5)(c)
After "(2B),", insert "(2D),". 12. After subsection 129AAA(3A)
Insert:

(3B) For the avoidance of doubt, the reference in paragraph (3A)(b) to an
approved pathology practitioner rendering professional services does not
include a reference to the rendering of professional services on behalf of the
approved pathology practitioner. 13. At the end of section 133 Add:

(3) Without limiting the scope of subsection (1), that subsection includes the
power to make regulations relating to enabling a person who is alleged to have
committed:

   (a)  an offence against section 19DB or Part IIA; or

   (b)  an offence against this Act, or against the regulations, that is
        specified in the regulations and that relates (directly or indirectly)
        to:

        (i)    the making of a claim for a benefit or payment in respect of
               the rendering of a pathology service; or

        (ii)   any other matter connected with the provision of pathology
               services; to pay to the Commonwealth, as an alternative to
               prosecution, a specified penalty, not exceeding an amount equal
               to one-fifth of the maximum penalty for committing the offence
               in question.

[Minister's second reading speech made in -
House of Representatives on 27 June 1997
Senate on 28 August 1997]