Bills Digest No. 96, 2019–20
PDF version [544KB]
Jennifer Phillips
Social Policy Section
11 May 2020
Contents
Purpose of the Bill
Structure of the Bill
Background
Committee consideration
Policy position of non-government
parties/independents
Position of major interest groups
Financial implications
Statement of Compatibility with Human
Rights
Key issues and provisions
Date introduced: 27
February 2020
House: House of
Representatives
Portfolio: Health
Commencement: Sections
1 to 3, on Royal Assent. Schedule 1, on a single day to be fixed by
Proclamation. If the provisions do not commence within the period of 12
months beginning on the day this Act receives the Royal Assent, they
commence the day after the end of that period. Schedule 2 on the day after
Royal Assent.
Links: The links to the Bill,
its Explanatory Memorandum and second reading speech can be found on the
Bill’s home page, or through the Australian
Parliament website.
When Bills have been passed and have received Royal Assent,
they become Acts, which can be found at the Federal Register of Legislation
website.
All hyperlinks in this Bills Digest are correct as
at May 2020.
Purpose of the Bill
The purpose of the Health Insurance Amendment (General
Practitioners and Quality Assurance) Bill 2020 (the Bill) is to amend the Health Insurance
Act 1973 (HIA) to simplify administrative processes for
recognition as a specialist general practitioner (GP) for Medicare purposes;
align Medicare eligibility for GPs with the National Registration and
Accreditation Scheme (NRAS) registration requirements; and replace references
to repealed legislation in relation to the definition of a quality assurance
activity under the Qualified Privilege Scheme.[1]
The Bill will also repeal the Health
Practitioner Regulation (Consequential Amendments) Act 2010 (2010
Consequential Amendments Act).
Structure of
the Bill
The Bill contains two Schedules:
- Schedule
2 amends the definition of a ‘quality assurance activity’ in Part VC of the
HIA, by removing the reference to the Health Care (Appropriation) Act
1998, which was repealed on
1 July 2009, and replacing it with the reference to the Federal Financial
Relations Act 2009 (FFRA).
Background
Specialist
general practitioners
Prior to 1989 formal training for general practice was
voluntary, and it remained that medical practitioners who were not specialists
were, by default, GPs.[3]
In 1989 the Government introduced vocational registration to recognise general
practice as a discipline in its own right. Between 1989 and 1995, medical
practitioners already practicing in general practice who met the eligibility
criteria could apply to be grandfathered on to the Vocational Register of
General Practitioners.[4]
Since 1996, under section 19AA of the HIA, doctors who are
permanent residents or citizens of Australia must become vocationally
recognised to receive a Medicare provider number.[5] The introduction of the
vocational register created two groups of GPs, those who are vocationally
registered and those who are not, with vocationally registered GPs being
eligible for higher Medicare rebates than those who are not.[6]
Vocational recognition is achieved by
attaining Fellowship through either the Royal Australian College of
General Practitioners (RACGP) or the Australian College of Rural and Remote
Medicine (ACRRM).
Non-vocationally registered GPs are
primarily those who qualified as a medical practitioner prior to 1996 and who
have not been included on the vocational register. Prior to 1 January
2019, there were some programs in place, known as ‘Other Medical Practitioner’
(OMPs) programs, which allowed medical practitioners not holding recognition by
a specialist college to receive higher Medicare rebates; however, under
measures announced in the Stronger Rural
Health Strategy – Streamlining General Practice Training as part of the 2018–19 Budget, these programs have closed to
new entrants and will be phased out by 30 June 2023.[7] According to the Department of
Health, the ability to receive higher rebates without specialist qualifications
has removed the incentive for GPs with specialist qualifications to formally
register their specialty with the Medical Board of Australia. The Department
estimates up to 7,700 GPs may be in this position.[8] Once passed, the effect of the
amendments in the Bill will be to require these GPs to register as a specialist
GP to continue to access the higher Medicare rebate.
To ensure that non-vocationally registered GPs who
are currently eligible for higher rebates are not disadvantaged by this Bill,
grandfathering and transition arrangements will be made in the Health Insurance
Regulations.[9]
Consequential amendments to the Health Insurance Regulations are intended to
take effect at the same time as the
commencement of the amendments in Schedule 1 to this Act.[10]
The Bill will not impact on
Medicare eligibility for international medical graduates or those Australian-trained
graduates currently on a workforce program or undertaking training with either
the RACGP or the ACRRM.[11]
Registration and access to Medicare rebates
Currently, under the HIA, a GP
who has attained Fellowship needs to apply to both Australian Health
Practitioner Regulation Agency (Ahpra) (through the Medical Board of Australia)
and to Services Australia (Medicare) for recognition as a specialist and to
receive the higher Medicare rebate amount.[12]
The Bill seeks to remove this duplicative process for GPs by allowing Services
Australia, through an automated data exchange, to utilise national registration
data held by Ahpra to confirm a GP’s eligibility for higher Medicare rebates.[13]
Further, as outlined in the Explanatory Memorandum to the Bill, Services
Australia is also required to liaise with the RACGP or ACRRM to confirm that
GPs hold valid fellowship with their college, are a specialist GP and are
compliant with Continuing Professional Development (CPD) requirements.[14]
The Bill will remove this requirement (see National Registration and
Accreditation Scheme section for further detail).
National Registration and Accreditation Scheme
In 2008, the Council of Australian Governments (COAG) signed
the Intergovernmental Agreement for a National Registration and Accreditation
Scheme (NRAS) for the health professions. The NRAS ‘ensures that all regulated
health professionals are registered against consistent, high quality, national
professional standards and can practise across state and territory borders
without having to re-register in each jurisdiction’.[15]
The NRAS commenced on 1 July 2010 with the enactment of
the Health
Practitioner Regulation National Law Act 2009 (the National Law) in all
states and territories except Western Australia, which joined the NRAS on 18
October 2010. While referred to as the National Law, the NRAS is not a Commonwealth
law. As the Commonwealth does not have a clear power to regulate all aspects of
health professionals, the legislative framework for implementation of the NRAS
was enacted by the state and territory legislatures. Each state and territory
has its own variant of the National
Law.[16]
Under the NRAS, the Medical Board of Australia (MBA) and
Ahpra are responsible for maintaining a public register of health practitioners
regulated under the NRAS. In addition, under the National Law, all specialist
practitioners are required to make an annual declaration to the Ahpra to state
they are compliant with mandatory CPD requirements. The amendments to the HIA
will allow Services Australia to use this declaration to confirm specialist GPs
are eligible for higher Medicare rebates, removing the need to liaise with the
GP and RACGP or ACRRM. This change will align the requirements for GPs to
access higher Medicare rebates with those of other specialties.[17]
As outlined in the Explanatory Memorandum:
This Ahpra data provides information on those practitioners
who hold registration in the specialty of general practice with the MBA and
will be used to determine a GP’s access to Medicare rebates. The Bill therefore
provides a new definition of GP as a medical practitioner who is registered
under the National Law in the specialty of general practice or a medical
practitioner prescribed by the [Health Insurance Regulations]. As a consequence
of the new definition of a ‘general practitioner’ provided in the Bill, the
Chief Executive Medicare will no longer be required to make determinations in
relation to a GP, simplifying processes for specialist recognition as a general
practitioner for Medicare purposes.[18]
Committee
consideration
Senate
Standing Committee for Selection of Bills
At its meeting of 27 February 2020, the Selection of Bills
Committee determined that it would defer consideration of the Bill until its
next meeting.[19]
Senate
Standing Committee for the Scrutiny of Bills
In its report on 2 April 2020, the Senate Standing
Committee for the Scrutiny of Bills (the Committee) expressed concern regarding
item 2 in Schedule 2 of the Bill relating to the declaration of
quality assurance activities under section 124X of the HIA.[20]
The proposed item will allow retrospective validation of declarations made by
the Minister on or after 1 July 2009 where at the time the declaration was
made, the activity was a quality assurance activity within the meaning of the
amended subsection 124W(1).
The Committee highlighted a long-standing concern
regarding provisions that have the effect of applying retrospectively as
legislation with such provisions will, or might, have a detrimental effect on
individuals. The Committee noted that while the Explanatory Memorandum provided
an explanation for the inclusion of retrospectivity it ‘remains unclear to the
committee whether the retrospective validation of declarations will, or may,
have a detrimental effect on any persons’.[21]
As such, the Committee requested that the Minister provide more detailed advice
as to ‘the necessity and appropriateness of retrospectively validating
declarations made by the Minister under section 124X’.[22]
At the time of writing, further advice had not been provided.
Policy
position of non-government parties/independents
At the time of writing, non-government
parties/independents had made no comment on the Bill.
Position of
major interest groups
In a news article published on their website, the
Australian Medical Association (AMA) expressed support for the Bill, noting
that it would cut red tape for GPs.[23]
Financial
implications
The financial impact of the Bill to the Commonwealth
includes changes to Services Australia payment systems at cost of $1.4 million
over two years. Funding for this change was announced in the 2018–19 Budget as
part of the Stronger Rural Health Strategy. The amendment to the statutory
protective framework for quality assurance activities in Part VC of the HIA
is cost‑neutral.[24]
Statement of Compatibility with Human Rights
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed
the Bill’s compatibility with the human rights and freedoms recognised or
declared in the international instruments listed in section 3 of that Act. The
Government considers that the Bill is compatible.[25]
Parliamentary
Joint Committee on Human Rights
In its report on 9 April 2020, the Parliamentary Joint
Committee on Human Rights noted it had no comment on the Bill, as the Bill does
not engage, or only marginally engages, human rights; promotes human rights;
and/or permissibly limits human rights.[26]
Key issues
and provisions
Schedule 1—definitions
and repeals
Schedule 1 of the Bill primarily contains definition
changes and minor amendments, as well as the repeal of redundant sections of
the HIA.
Items 1–3 amend subsection 3(1) of the HIA,
to ensure definitions of certain health practitioners are consistent with
definitions of health practitioners regulated under the National Law.[27]
For clarity, a new definition of National Law is inserted into
subsection 3(1) of the HIA by item 7 of Schedule 1 to the Bill, being:
- for a
State or Territory (other than Western Australia)—the Health Practitioner Regulation National Law set
out in the Schedule to the Health Practitioner Regulation National Law Act
2009 (Qld), as it applies (with or without modification) as a law of the State or Territory; or
- for Western
Australia—the Health Practitioner Regulation National Law (WA) Act 2010 (WA), so far as that Act corresponds to the Health Practitioner
Regulation National Law set out in the Schedule to the Health Practitioner
Regulation National Law Act 2009 (Qld).
Item 4 repeals the current definition of general
practitioner in subsection 3(1) of the HIA and substitutes a new
definition which makes reference to registration under the National Law. Paragraph
(b) of the definition is intended to capture non-specialist GPs who are
currently eligible for higher Medicare rebates by virtue of being on the
Vocational Register. Grandfathering arrangements
for this group of practitioners are intended to be defined in the Health Insurance
Regulations.[28]
general
practitioner means:
- a medical practitioner
who is registered under the National Law in the speciality of general practice;
or
- a medical practitioner
of a kind prescribed by the regulations for the purposes of this paragraph.
Item 25 is a consequential provision which repeals
sections 3EA, 3EB, 3F, 3G and 3H of the HIA. These sections relate to
determinations made by the Chief Executive Medicare, which will no longer be
required. As noted in the Background section, any GPs currently receiving
higher Medicare rebates due to being eligible for the vocational register of
General Practitioners (medical practitioners from 1989 to 1996 who worked
predominately in general practice and whom the RACGP certifies have met CPD
requirements to be vocationally registered to allow access to higher rebates),
will be dealt with in the Health Insurance Regulations under grandfathering and
transitional arrangements. The Explanatory Memorandum notes that in 2010, the
Medical Board of Australia transitioned those practitioners who were
vocationally registered general practitioners to appear on the public register
as specialists without fellowship of the RACGP or ACRRM.
The repeal of section 3H by item 25 is necessary as
the repeal of sections 3EA, 3EB, 3F and 3G of the HIA will make it
redundant.
Part II of the HIA relates to the payment of Medicare
benefits. In particular sections 19AA and 19AB provide that Medicare benefits
are not payable in respect of services rendered by certain medical
practitioners and by certain overseas trained doctors respectively. Items 29
and 31 in Schedule 1 to the Bill insert a new definition of registered
medical practitioner into sections 19AA and 19AB, in equivalent terms.
The term registered medical practitioner (for the purpose of
those sections) means a person:
- registered
under the National Law in the medical profession or
- registered
or licensed as a medical practitioner under a law of a state or territory that
provided for the registration or licensing of medical practitioners (within the
meaning of that law).
These amendments ‘protect current arrangements’ in
restricting access to general practice Medicare rebates by applying the
specific definition of registered medical practitioner which only
applies to sections 19AA and 19AB of the HIA.[29]
Item 56 of Schedule 1 to the Bill repeals the 2010
Consequential Amendments Act. The purpose of the 2010 Consequential Amendments
Act, which was enacted by the Parliament in May 2010 and received Royal
Assent on 31 May 2010, was to provide for consequential amendments to
Commonwealth legislation to recognise and support implementation of the NRAS
for the Health Professions and streamline processes involved in the recognition
of doctors under the HIA for the purpose of claiming Medicare.[30]
Schedule 1 of the 2010 Consequential Amendments Act was due to commence
on a day to be fixed by proclamation.[31]
However, as a result of:
... complexities in the translation of HIA specialties
and consultant physician categories with [Medical Board of Australia]
specialties and the costs of Services Australia system changes, Schedule 1 of
the Consequential Amendments Act was not proclaimed.[32]
As the Bill will enact the changes proposed in the 2010
Consequential Amendments Act in regards to general practitioners, it will
be made redundant and hence will be repealed.
The Explanatory Memorandum notes that aligning of
definitions for other medical specialties with Medical Board of Australia
specialties is proposed to occur at a later date, following the completion of
the GP changes and a period of stakeholder engagement.[33]
Schedule 2—Quality
assurance confidentiality
The Commonwealth Qualified Privilege Scheme encourages
health professionals to undertake quality assurance activities in connection
with the provision of certain health services, with the aim of improving health
care services.
Part VC of the HIA provides for confidentiality of
declared quality assurance activities. Section 124X of the HIA
allows the Minister to declare a quality assurance activity to be an activity
to which Part VC applies. To be eligible for a declaration under section 124X
of the HIA, a quality assurance program must be funded under at least
one of the Commonwealth Health funded programs covered by the definition of quality
assurance activity in section 124W. That definition currently refers to
‘the former Health Care (Appropriation) Act 1998’, which is not the
current Act used for Commonwealth funding for hospital services.[34]
Item 1 in Schedule 2 to the Bill repeals and
replaces subparagraph (a)(iii) in the definition of quality assurance activity
so that the reference to ‘the former Health Care (Appropriation) Act 1998’,
is removed and replaced with a reference to the Federal Financial Relations
Act 2009 (FFRA), ensuring that public hospital services are specifically
included in the definition of quality assurance activity.[35]
Item 2 in Schedule 2 to the Bill applies retrospective
validation of declarations made by the Minister on or after 1 July 2009 where
at the time the declaration was made, the activity was a quality
assurance activity within the meaning of the amended subsection
124W(1). As noted above, the Senate Standing Committee for the Scrutiny of
Bills expressed its concern about provisions that have the effect of applying
retrospectively as legislation with such provisions will, or might, have a detrimental
effect on individuals.[36]
[1]. Explanatory
Memorandum, Health Insurance Amendment (General Practitioners and Quality
Assurance) Bill 2020, p. 1.
[2]. The
Explanatory Memorandum refers to the Health Insurance
(General Medical Services Table) Regulations 2019, these Regulations are remade
annually. The Health Insurance (General Medical Services Table) Regulations
2019 were repealed by the Health Insurance
(General Medical Services Table) Regulations (No. 1) 2020.
[3]. R
Jolly, Health
Practitioner Regulation (Consequential Amendments) Bill 2010, Bills
digest, 132, 2009–10, Parliamentary Library, Canberra, 2010, p. 11.
[4]. Australian
Medical Association (AMA), ‘AMA
Policy on Non-Vocationally Registered General Practitioners – 2013’, AMA,
2013, p. 1.
[5]. Department
of Health (DoH), ‘Section
19AA’, DoH website, updated 7 May 2020.
[6]. On
1 July 2018, a new Medicare
Benefits Schedule (MBS) rebate structure for GPs was introduced for non-VR
doctors. Under this structure non-VR doctors can claim 80 per cent of the
equivalent VR GP item for services.
[7]. DoH,
‘Other
Medical Practitioners (OMPs) programs’, DoH website, last updated 11
December 2018; Australian Government, Budget
measures: budget paper no.2: 2018–19, pp. 106–107.
[8]. DoH,
‘Questions
and answers: Health Insurance Amendment (General Practitioners and Quality
Assurance) Bill 2020’, DoH website, n.d.
[9]. M
Coulton (Minister for Regional Health, Regional Communications and Local
Government), ‘Second
reading speech: Health Insurance Amendment (General Practitioners and Quality
Assurance) Bill 2020’, House of Representatives, Debates, 27 February 2020,
p. 1945.
[10]. Explanatory
Memorandum, op. cit., p. 6.
[11]. Coulton,
op. cit.
[12]. Ibid.
[13]. Ibid.
[14]. Explanatory
Memorandum, op. cit., p. 3.
[15]. Council
of Australian Governments (COAG), ‘National Registration and
Accreditation Scheme for health professions’, COAG website.
[16]. Australian
Health Practitioner Regulation Agency (AHPRA), ‘Legislation’,
AHPRA and National Boards website, 5 February 2020.
[17]. Explanatory
Memorandum, op. cit., p. 3.
[18]. Ibid.,
pp. 1–2.
[19]. Senate
Standing Committee for Selection of Bills, Report,
3, 2020, The Senate, Canberra, 27 February 2020.
[20]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 4, 2020, The Senate, Canberra, 2 April 2020, pp. 8–9.
[21]. Ibid.,
p. 9.
[22]. Ibid.
[23]. Australian
Medical Association (AMA), ‘New
Bill will cut red tape for GPs’, AMA website, 27 February 2020.
[24]. Explanatory
Memorandum, op. cit., p. 2.
[25]. The
Statement of Compatibility with Human Rights can be found at pages 3–5 of the Explanatory
Memorandum to the Bill.
[26]. Parliamentary
Joint Committee on Human Rights, Human
rights scrutiny report, 4, 2020, 9 April 2020, p. 28.
[27]. Explanatory
Memorandum, op. cit., p. 7.
[28]. Ibid.
[29]. Ibid.,
p. 11.
[30]. Jolly,
op. cit., p. 2.
[31]. Department
of the Prime Minister and Cabinet (PM&C), Report
on unproclaimed legislation, PM&C, August 2019, p. 5.
[32]. Explanatory
Memorandum, op. cit., p. 13.
[33]. Ibid.
[34]. Coulton,
op. cit., p. 3.
[35]. Explanatory
Memorandum, op. cit., p. 14.
[36]. Senate
Standing Committee for the Scrutiny of Bills, op. cit.
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