HEALTH INSURANCE AMENDMENT ACT 1977 No. 75, 1977
HEALTH INSURANCE AMENDMENT ACT 1977 No. 75 of 1977 - SECT. 1. Short title.
HEALTH INSURANCE AMENDMENT ACT 1977 No. 75 of 1977 An Act to amend the Health Insurance Act 1973. BE IT ENACTED by the Queen, and the Senate and House of Representatives of the Commonwealth of Australia, as follows:- Short title, &c. 1. (1) This Act may be cited as the Health Insurance Amendment Act 1977.*1* (2) The Health Insurance Act 1973*2* is in this Act referred to as the Principal Act. HEALTH INSURANCE AMENDMENT ACT 1977 No. 75 of 1977 - SECT. 2. Commencement.
2. (1) Subject to sub-section (2), this Act shall come into operation on the day on which it receives the Royal Assent.*1* (2) Sub-section 6 (1) and section 9 shall come into operation on a date to be fixed by Proclamation. HEALTH INSURANCE AMENDMENT ACT 1977 No. 75 of 1977 - SECT. 3. Interpretation.
3. Section 3 of the Principal Act is amended- (a) by inserting after the definition of ''approved bed'' in sub- section (1) the following definition:- '' 'approved pathology practitioner' means- (a) the Commonwealth; (b) a person in respect of whom there is in force an undertaking given by him and accepted by the Minister under section 16C; or (c) an authority (being a corporation) established by a law of the Commonwealth and specified by the Minister in writing for the purposes of this definition;''; (b) by inserting after the definition of ''participating optometrist'' in sub-section (1) the following definition:- '' 'pathology service' means a medical service to which an item in Part 7 of the table relates;''; (c) by inserting after the definition of ''practitioner'' in sub-section (1) the following definition:- '' 'prescribed pathology service' means a pathology service specified, or falling within a class of pathology services specified, by the regulations for the purposes of this definition;''; (d) by omitting from paragraph (b) of the definition of ''professional service'' in sub-section (1) the word ''or''; and (e) by adding at the end of the definition of ''professional service'' in sub-section (1) the following word and paragraph:- '' or (d) a pathology service that, within the meaning of section 16A, is rendered by or on behalf of an approved pathology practitioner other than a medical practitioner;''; HEALTH INSURANCE AMENDMENT ACT 1977 No. 75 of 1977 - SECT. 4.
4. After section 4 of the Principal Act the following sections are inserted:- Minister may vary Part 7 of table. ''4A. (1) The Minister may refer to the Medical Benefits Advisory Committee, for its consideration and recommendation, the question whether the table should be varied, in accordance with sub-section (2), in a manner specified in the reference. ''(2) The table may be varied under this section- (a) by varying or inserting an item in Part 7 or by omitting an item from that Part; (b) by omitting, varying or inserting a rule of interpretation relating to that Part; or (c) by substituting another amount for an amount set out in an item in that Part.
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''(3) If, after consideration of a question referred to it under sub- section (1), the Committee recommends to the Minister a variation of the table, whether or not in the manner specified in the reference by the Minister, the Minister may make a determination varying the table in accordance with the recommendation. ''(4) A determination made under this section- (a) shall be published in the Gazette; (b) has effect from the date of publication or such later date as is specified in the determination; and (c) shall not be deemed to be a Statutory Rule within the meaning of the Rules Publication Act 1903. ''(5) On the coming into effect of a determination made under this section, the table has effect, subject to this section, as if it were varied in accordance with the determination. ''(6) A determination made under this section, unless sooner revoked or disallowed, ceases to have effect on the expiration of the period of 6 months commencing on the date of the coming into effect of the determination. ''(7) A determination made under this section that has effect, or, but for this sub-section, would have effect, from a date within the period of 12 months commencing on the date of the coming into effect of an earlier determination made under this section does not have effect to the extent that it purports to make the same, or substantially the same, provision as was made by the earlier determination. ''(8) A determination made under this section does not have effect to the extent that it is inconsistent with regulations made for the purposes of section 4 and commencing on or after the date of the publication of the determination in the Gazette. ''(9) The provisions of section 48 (except paragraphs (1) (a) and (b) and sub-section (2)), and of section 49, of the Acts Interpretation Act 1901 apply, by force of this sub-section, to a determination made under this section in like manner as those provisions apply to regulations. Multiple pathology services. ''4B. (1) This section has effect without limiting the generality of sections 4 and 4A. ''(2) A regulation for the purposes of section 4 or a determination under section 4A may make provision, by way of a rule of interpretation, for two or more pathology services to be treated, in specified circumstances, as one pathology service. ''(3) Where, in accordance with the table, two or more pathology services are to be treated as one pathology service, the Minister may, if he is satisfied in a particular case that the circumstances justify his so doing, direct that any of the services that, but for this sub-section, would be treated as one service shall not be so treated.''. HEALTH INSURANCE AMENDMENT ACT 1977 No. 75 of 1977 - SECT. 5. Interpretation.
5. Section 8 of the Principal Act is amended by inserting in sub- section (1), after the word ''Part'', the words ''(except sections 16B and 16C)''. HEALTH INSURANCE AMENDMENT ACT 1977 No. 75 of 1977 - SECT. 6.
6. (1) Section 16A of the Principal Act is repealed and the following section substituted:- Pathology services. ''16A. (1) A medical benefit is not payable in respect of a pathology service unless a practitioner determined that the service was necessary, the provisions of sub-section (2) were complied with in respect of the service, and- (a) in the case of a pathology service (other than a prescribed pathology service or a service to which paragraph (b) applies)-the service was rendered by or on behalf of an approved pathology practitioner in pursuance of a request addressed to that approved pathology practitioner- (i) by the practitioner who determined that the service was necessary; or (ii) by another approved pathology practitioner who is not the practitioner who determined that the service was necessary, being a request made in writing as prescribed or, if made otherwise than in writing, subsequently confirmed in writing as prescribed;
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(b) in the case of a pathology service, other than a prescribed pathology service, determined to be necessary by an approved pathology practitioner (being a medical practitioner) or by the employee (being a medical practitioner) of an approved pathology practitioner in the course of that employment-the service was rendered by or on behalf of that approved pathology practitioner; or (c) in the case of a prescribed pathology service-the service was rendered by or on behalf of a medical practitioner other than an approved pathology practitioner (in this paragraph referred to as 'the first-mentioned practitioner') and- (i) the service was determined to be necessary by the first- mentioned practitioner; or (ii) the service was rendered in pursuance of a request made by the person who determined that the service was necessary, being a medical practitioner (other than an approved pathology practitioner) who, at the time the request was made, was a member of a group of practitioners of which the first-mentioned practitioner was then a member. ''(2) There shall be recorded on the account, or on the receipt, for fees in respect of the service or, if an agreement has been entered into under sub-section 20 (3) in relation to the medical benefit in respect of the service, on the form of agreement, such particulars as are prescribed. ''(3) Where a pathology service has been rendered by or on behalf of an approved pathology practitioner in pursuance of a request made or confirmed as described in paragraph (1) (a), then- (a) if the approved pathology practitioner fails to retain the written request or the written confirmation of the request for a period of 18 months after the date on which the service was rendered; or (b) if, on being served as prescribed, at any time within 18 months after the date on which the service was rendered, with a notice in writing signed by the Minister requiring the approved pathology practitioner to produce the written request or the written confirmation of the request to an officer of the Department of Health specified in the notice, the approved pathology practitioner fails to comply with the requirement within 14 days after being served with the notice, the approved pathology practitioner is guilty of an offence and is punishable on conviction by a fine not exceeding $1,000. ''(4) In any proceedings for an offence against sub-section (3), an averment of the prosecutor, contained in the information or complaint, that a specified pathology service was rendered by or on behalf of a specified approved pathology practitioner on a specified date is prima facie evidence of the matters averred. ''(5) For the purposes of this section- (a) where a service is rendered by a person (in this paragraph referred to as 'the employee') in the course of his employment by another person, then, except in a case to which paragraph (b) applies, it shall be deemed to be rendered by that other person, and not by the employee; (b) where a person (in this paragraph referred to as 'the employee') is employed by two or more persons jointly and a service is rendered by the employee in the course of that employment, it shall be deemed to be rendered by the employer principally reponsible for the matter being dealt with by the employee, and not by the employee; (c) a service shall be taken to be rendered on behalf of a person if, and only if, it is rendered by another person, not being an approved pathology practitioner, by arrangement with that person; (d) a member of, or a member of the staff of, an authority (being a corporation) established by a law of the Commonwealth or of a State or internal Territory shall be taken to be employed by that authority; (e) where two or more practitioners- (i) provide professional services as partners; or (ii) share amongst them all, or a substantial part of, the income from providing professional services, those practitioners shall be deemed to constitute a group of
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practitioners; and (f) a reference to determining a service to be necessary is a reference to determining that the service is reasonably necessary for the adequate medical care of the patient concerned. ''(6) This section does not apply in relation to a service in relation to which section 21 applies.''. (2) Before section 17 of the Principal Act the following sections are inserted:- Forms of undertaking for approved pathology practitioners. ''16B. (1) The Minister may draw up forms of undertaking to be given by persons who wish to become approved pathology practitioners. ''(2) A form of undertaking shall make provision for and in relation to such matters as the Minister considers appropriate. ''(3) The Minister may at any time refer to the Medical Benefits Advisory Committee, for its consideration and recommendations, proposals for the variation of a form of undertaking. ''(4) Where the Medical Benefits Advisory Committee makes a recommendation to the Minister under sub-section (3) with respect to a proposal, the Minister- (a) if the recommendation is that the proposal be adopted without amendment-shall vary the form of undertaking concerned in accordance with the recommendation; or (b) if the recommendation is that the proposal be adopted with amendments specified in the recommendation-may vary the form of undertaking concerned in accordance with the recommendation. ''(5) The Minister shall forward to the Medical Benefits Advisory Committee a copy of each form of undertaking drawn up under this section and a copy of any variation of such a form. Undertaking by eligible applicant. ''16C. (1) In this section- 'authority' means an authority (being a corporation) established by a law of a State or of an internal Territory; 'eligible applicant' means- (a) a medical practitioner; (b) a person (other than a State or an authority) who employs a medical practitioner or medical practitioners to render pathology services; (c) a State or authority, being a State or authority specified by the Minister in writing for the purposes of this definition; or (d) a person (other than a State, an authority or a person referred to in paragraph (a) or (b)) who, immediately before the date of commencement of this section, was carrying on the business of rendering pathology services at the request of medical practitioners, where- (i) in accordance with an approval granted by the Permanent Head of the Department of Health, that person issued to the person who incurred the medical expenses in respect of a pathology service so rendered (not being the practitioner who requested the rendering of the service) an account or receipt for his fees in respect of the service; and (ii) medical benefit was paid before that date in respect of the service; 'form of undertaking' means a form of undertaking drawn up under section 16B. ''(2) Subject to sub-section (3), where an eligible applicant gives, as prescribed, an undertaking in writing in accordance with the appropriate form of undertaking, signed by or on behalf of the applicant as required by the form, together with a fee of $10 or of such other amount as is prescribed, the Minister shall- (a) if the eligible applicant previously gave an undertaking that was accepted under this section and the acceptance was subsequently revoked under section 106-refer to a Medical Services Committee of Inquiry for inquiry and report the question whether the undertaking should be accepted or refused; or
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(b) in any other case, either- (i) on behalf of the Commonwealth, accept the undertaking; or (ii) refer to a Medical Services Committee of Inquiry for inquiry and report the question whether he would be justified in refusing to accept the undertaking. ''(3) An eligible applicant as defined by paragraph (d) of the definition of 'eligible applicant' in sub-section (1) is not entitled to give an undertaking under sub-section (2) if a previous undertaking given by the applicant was accepted under this section and the acceptance was subsequently revoked under section 106. ''(4) As soon as practicable after the Minister receives the report and recommendation of the Committee upon a reference under sub-section (2), he shall, in accordance with the recommendation, either, on behalf of the Commonwealth, accept the undertaking or refuse to accept the undertaking. ''(5) The Minister shall serve, either personally or by post, on the person concerned notification of acceptance or refusal of acceptance of an undertaking under this section. ''(6) Where a refusal by the Minister under sub-section (4) to accept an undertaking given by a person who wishes to become an approved pathology practitioner does not take effect by reason of being set aside on review or in accordance with a judgment or order on appeal, the Minister shall be deemed, for the purposes of this Act, to have accepted that undertaking on behalf of the Commonwealth under that sub-section on the date on which the undertaking was originally received by the Minister or on such earlier date (not being a date earlier than the date on which it was signed) as is fixed by the Minister. ''(7) Where a form of undertaking is varied by the Minister under sub-section 16B (4), an undertaking given under this section in accordance with that form of undertaking shall be deemed, for the purposes of this Act, to have been varied to accord with that form of undertaking as so varied by the Minister. ''(8) An approved pathology practitioner may, at any time, terminate an undertaking given by him by serving, as prescribed, a notice of termination specifying a date of termination not earlier than 30 days after the day on which the notice is served. ''(9) For the purposes of this Act, an undertaking given by a person under this section comes into force when accepted by the Minister or on such earlier date (not being a date earlier than the date on which the undertaking was signed) as is fixed by the Minister and ceases to be in force if- (a) the undertaking is terminated by the person under sub-section (8); (b) the Minister's acceptance of the undertaking is revoked under section 106; or (c) in the case of a person who was, when he gave the undertaking, an eligible applicant as defined by paragraph (a), (b) or (c) of the definition of 'eligible applicant' in sub-section (1)-the person ceases to be an eligible applicant as defined by that paragraph.''. HEALTH INSURANCE AMENDMENT ACT 1977 No. 75 of 1977 - SECT. 7. Medical benefit not payable in respect of certain medical expenses.
7. Section 17 of the Principal Act is amended- (a) by omitting from paragraph (b) of sub-section (1) the word ''or''; and (b) by adding at the end of sub-section (1) the following word and paragraph:- ''; or (d) any amount has been paid, or is payable, in respect of the service in accordance with a scheme to which section 42B applies.''. HEALTH INSURANCE AMENDMENT ACT 1977 No. 75 of 1977 - SECT. 8. Regulations may provide that medical benefit be not payable in respect of prescribed class of professional services.
8. Section 19A of the Principal Act is amended by omitting the words ''paragraph (aa) of sub-section (1) of section 67'' and substituting the words ''paragraph 67 (1) (aa)''. HEALTH INSURANCE AMENDMENT ACT 1977 No. 75 of 1977 - SECT. 9. Persons entitled to medical benefits.
9. Section 20 of the Principal Act is amended- (a) by omitting from sub-section (3) the words ''A person'' and
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substituting the words ''Subject to sub-section (3AA), a person''; (b) by inserting after sub-section (3) the following sub-section:- ''(3AA) Sub-section (3) does not apply in relation to a medical benefit payable in respect of a pathology service unless the person to whom the benefit is payable is an eligible pensioner or a dependant of an eligible pensioner and the service was rendered in respect of the pensioner or a dependant of the pensioner.''; and (c) by omitting from sub-section (3A) the words ''section 15, 16 or 16A,'' and substituting the words ''section 15 or 16,''. HEALTH INSURANCE AMENDMENT ACT 1977 No. 75 of 1977 - SECT. 10. Undertaking by optometrist.
10. Section 23B of the Principal Act is amended- (a) by omitting sub-section (2) and substituting the following sub-section:- ''(2) As soon as practicable after the Minister receives the report and recommendation of the Committee upon a reference under sub-section (1), he shall, in accordance with the recommendation, either, on behalf of the Commonwealth, accept the undertaking or refuse to accept the undertaking.''; (b) by omitting from sub-section (4) the word ''disallowed'' and substituting the words ''set aside''; (c) by adding at the end of sub-section (4) the words ''on the date on which the undertaking was originally received by the Minister or on such earlier date (not being a date earlier than the date on which it was signed) as is fixed by the Minister''; and (d) by omitting from sub-section (5) the word ''accepted'' and substituting the word ''given''. HEALTH INSURANCE AMENDMENT ACT 1977 No. 75 of 1977 - SECT. 11. Determinations by Minister with respect to participating optometrists.
11. Section 23C of the Principal Act is amended by omitting sub-section (3). HEALTH INSURANCE AMENDMENT ACT 1977 No. 75 of 1977 - SECT. 12. Date of effect of determinations by Minister.
12. Section 23D of the Principal Act is amended by omitting sub- section (2) and substituting the following sub-section:- ''(2) Where the Minister makes a determination, then- (a) if no request for review of the determination under Division 3 of Part VA or application for judicial review of the determination under Division 4 of that Part is lodged within the period allowed for such a request or application, the determination takes effect at the expiration of that period; (b) if a request for review of the determination under Division 3 of Part VA or an application for judicial review of the determination under Division 4 of that Part is lodged within the period allowed for such a request or application, then- (i) if the determination is set aside on the review-subject to paragraph (c), the determination does not take effect; or (ii) if the determination is affirmed, or varied, on the review and no appeal against the decision on the review is brought by virtue of section 124A within the period allowed for such an appeal-the determination takes effect, or takes effect as so varied, at the expiration of that period; or (c) if an appeal against the decision on a review under Division 3 of Part VA or a judicial review under Division 4 of that Part is brought by virtue of section 124A within the period allowed for such an appeal, the determination does not have effect until the appeal, and any further appeal or appeals, are determined and, upon the determination of the appeal and any such further appeal or appeals, the determination takes effect or takes effect as varied or does not take effect, in accordance with the judgment or order on the appeal or further appeal or appeals.''.