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2013-2014
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
DENTAL BENEFITS LEGISLATION AMENDMENT BILL 2014
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Health, the Hon Peter Dutton MP)
DENTAL BENEFITS LEGISLATION AMENDMENT BILL 2014
OUTLINE
This Bill, once enacted, will create a waiver provision for the Medicare Chronic
Disease Dental Scheme (CDDS) as well as make a number of amendments for the
operation of the Child Dental Benefits Schedule (CDBS).
The CDDS closed from 1 December 2012 and operated under the Health Insurance
(Dental Services) Determination 2007 (the Determination), as made under section 3C
of the Health Insurance Act 1973 (the Health Insurance Act). The CDDS provided up
to $4,250 over two calendar years in Medicare benefits for private dental services for
people with a chronic medical condition and complex care needs. Audit activities
administered by the Department of Human Services (DHS) revealed a high rate of
non-compliance with the provider reporting requirements set out in section 10(2) of
the Determination. Resulting from these audit activities debts were raised against
dentists found to be non-compliant.
This Bill will amend the Health Insurance Act to create a provision that will require
the Chief Executive Medicare (CEM) to waive debts raised against dentists for
services provided before 1 April 2010 that had satisfied all legal requirements but had
breached section 10(2) of the Determination. It will also require the CEM to waive
debts for services after 1 April 2010 if the provider can provide evidence that there
was an intent to comply with section 10(2) of the Determination.
As some dentists have already paid CDDS debts to the Commonwealth that will be
eligible under this waiver provision, this Bill provides for those amounts be returned
to the dentist.
The CDBS commenced on 1 January 2014 and provides 2 to 17 year olds who meet
the means test with access of up to $1,000 in benefits over two calendar years for
basic dental treatment. The payment of these benefits is administered by DHS. The
framework for the CDBS is established under the Dental Benefits Act 2008 (DBA).
This Bill will make amendments to the Dental Benefits Act 2008 (Dental Benefits
Act) and the Health Insurance Act to support the operation of the CDBS. To align
with the compliance powers in the Health Insurance Act for the Medicare program,
this Bill will amend the Dental Benefits Act so that certain compliance powers can
also be applied to CDBS services. This Bill will amend both Acts so that the
Professional Services Review scheme can be applied to any dental services provided
under the CDBS so that suspected cases of inappropriate practice can be investigated.
This Bill will also amend the Dental Benefits Act to enable the CEM and relevant
employees of the Department of Human Services to obtain documentation from a
dentist to substantiate the payment benefits under the CDBS.
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This Bill will also make a number of machinery amendments to the Dental Benefits
Act including clarifying provisions related to disclosure of protected information,
allowing the delegation of Ministerial powers to the Secretary or SES employee of the
Department of Health, amending the definition of ,,dental provider, and correcting a
minor technical error in section 4.
Financial Impact Statement
Amounts that may be repaid under item 28 of the Bill for debts already paid by
dentists are expected to be small as few dentists have repaid their debts. However, as
these dentists may have a strong case for repayment of their relevant debt payments
through discretionary processes under the Financial Management and Accountability
Act 1997 there will be no net impact on the Commonwealth.
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Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011
DENTAL BENEFITS LEGISLATION AMENDMENT BILL 2014
This Bill is compatible with the human rights and freedoms recognised or declared in
the international instruments listed in section 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Bill
The Bill amends the Health Insurance Act 1973 and the Dental Benefits Act 2008.
The Bill will amend the Health Insurance Act to include a provision that will require
the Chief Executive Medicare (CEM) to waive debts raised against dentists for
services in limited circumstances under the Chronic Disease Dental Scheme (CDDS).
As some dentists have already paid CDDS debts to the Commonwealth that will be
eligible under this waiver provision, this Bill provides for those amounts be returned
to the dentist.
To align with the compliance powers in the Health Insurance Act for the Medicare
program, this Bill will amend the DBA so that compliance powers can apply to CDBS
services. This Bill will amend the Health Insurance Act and the Dental Benefits Act
so that the Professional Services Review (PSR) scheme can be applied to dental
services provided under the CDBS so that suspected cases of inappropriate practice
can be investigated.
This Bill will amend the Dental Benefits Act to enable the CEM and relevant
employees of the Department of Human Services to obtain documentation from
dentists to substantiate the payment of benefits under the CDBS.
This Bill will make clear that protected information collected under the Dental
Benefits Act may be disclosed to the Department of Veterans Affairs (DVA) and the
Minister for Veterans Affairs. This disclosure is already authorised under section 35
of the Dental Benefits Act, but is absent from section 41. This Bill will amend section
41 so that that rules for information disclosure are clear throughout the Dental
Benefits Act.
This Bill will also amend the Dental Benefits Act to delegate Ministerial powers to
the Secretary or an SES employee of the Department of Health, amend the definition
of ,,dental practitioner and correct an error under Section 4.
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Human rights implications
This Bill engages the right to health, the right to social security and the right to
privacy. Article 12(1) of the International Covenant on Economic, Social and Cultural
Rights (ICESCR) defines the right to health as "the right to the enjoyment of the
highest attainable standard of physical and mental health".
Article 9 of the ICESCR contains the right to social security, including social
insurance. Article 17 (1) of the International Covenant on Civil and Political Rights
(ICCPR) contains the right to privacy.
The inclusion of waiver provisions for the CDDS engages with the right to health and
the right to social security as the CDDS provided patients with Commonwealth
benefits for dental health services. These waiver provisions allow for, in limited
circumstances, the waiver of debts raised against dental providers for services
provided under the CDDS. The waiver of such debts will ensure that providers are not
burdened with unjust debts which may reduce their willingness or capability to
provide further services under Commonwealth health benefit programs.
Having PSR apply to the CDBS and providing the CEM and relevant employees of
DHS with additional powers to substantiate the payment of benefits under the Dental
Benefits Act engages with the right to health and the right to social security as these
amendments will aid in ensuring that benefits are correctly paid for services under this
Commonwealth health benefit program.
The amendment to section 41 of the Dental Benefits Act that makes clear that
protected information collected under the Act may be disclosed to the DVA and the
Minister for Veterans Affairs does not engage any human right as this disclosure is
already authorised in section 35 of the Act.
The amendments that allow the delegation of Ministerial powers to the Secretary or
SES employee of the Department of Health, the amendment of the definition of
,,dental practitioner in Dental Benefits Act are all machinery amendments and do not
engage any human right.
Conclusion
The Bill is compatible with human rights because it advances the protection of the
rights to health and social security and does engage any other human right.
The Hon Peter Dutton MP, the Minister for Health
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DENTAL BENEFITS LEGISLATION AMENDMENT BILL 2014
NOTES ON CLAUSES
Clause 1 - Short Title
This clause provides that the Bill, once enacted, will be cited as the Dental Benefits
Legislation Amendment Act 2014.
Clause 2 - Commencement
The Act will commence the day after Royal Assent.
Clause 3 - Schedule(s)
Schedule 1 to this Bill makes amendments to the Dental Benefits Act 2008 and the
Health Insurance Act 1973.
In this Explanatory Memorandum:
a reference to an item in bold type (item 12) is a reference to an item in
Schedule 1;
a reference to a Part or section in bold italics (eg Part 3 or section 16) is a
reference to a provision as it will appear in the Dental Benefits Act or the
Health Insurance Act as amended by this Bill;
a reference to the CEM is a reference to the Chief Executive Officer Medicare,
as defined in the Human Services (Medicare) Act 1973.
SCHEDULE 1
Part 1: Professional Services Review Scheme
The Professional Services Review (PSR) is an independent authority which has
operated under the Health Insurance Act for many years to examine suspected cases
of inappropriate practice under Medicare referred by the Department of Human
Services. It protects the Commonwealth from having to meet the cost of medical
services provided inappropriately. Dentists providing services under the Medicare
Benefits Schedule are currently covered by the PSR, and the government considers it
important that the scheme should also apply to dentists providing services attracting a
benefit under the Dental Benefits Act.
The amendments mainly involve adding to the Dental Benefits Act consequences for
adverse findings by the PSR, and amending the provisions in the Health Insurance Act
establishing the PSR to extend its scope to benefits provided under the Dental
Benefits Act. The underlying structure of the PSR scheme is not amended.
Amendments to the Dental Benefits Act
Item 1 inserts new definitions of "disqualified practitioner" and "partially disqualified
practitioner" referring to actions taken under the PSR scheme.
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Item 2 amends the outline of the Act.
Item 3 inserts five new sections following section 20.
Section 20A provides that a dental benefit is not payable for a dental service provided
by a disqualified practitioner, or by a partly disqualified practitioner who is
disqualified in relation to the service.
Section 20B allows the Minister to direct, by a written instrument, a disqualified or
partly disqualified practitioner not to provide a patient with a dental service for which
a benefit will not be payable because of the disqualification unless the practitioner
provided the patient with a notice setting out the particulars and effects of the
disqualification before beginning to provide the service. If the practitioner believes
the patient will not be able to read or understand the notice they must take reasonable
steps to explain it to the patients carer. Unless revoked, the direction remains in
force until the disqualification ceases. Subsection 20B(4) is included to confirm that
the notice and instrument are not legislative instruments. This is because they do not
state the law generally, and apply only to the particular practitioner.
Section 20C creates a strict liability offence, with a penalty of one penalty unit, for a
person who fails to comply with a direction under section 20B, or causes or permits a
person acting on his or her behalf to fail to comply. It is a defence if the person has a
reasonable excuse, and under subsection 13.3(3) of the Criminal Code a defendant
bears an evidential burden in relation to the defence.
This has been cast as a strict liability offence because it would be difficult to obtain
proof of intent to fail to comply with the direction. However, a failure to comply
could have significant adverse effects on consumers, who might receive services and
incur expenses not realising that benefits would not be payable, and it is important to
have an offence as a deterrent to non-compliance.
It is appropriate for the defendant to bear the evidential burden because they alone
will have knowledge of the circumstances that might reasonably excuse non-
compliance.
Under section 20D the Minister may direct, by a written instrument, a disqualified or
partly disqualified practitioner to display in a specified place and manner notices
setting out the particulars and effects of the disqualification. Unless revoked, the
direction remains in force until the disqualification ceases. Subsection 20D(5) is
included to confirm that the notice and instrument are not legislative instruments.
This is because they do not state the law generally, and apply only to the particular
practitioner.
Section 20E creates a strict liability offence, with a penalty of one penalty unit, for a
person who fails to comply with a direction under section 20D. A person failing to
comply commits a separate offence for each day on which the offence continues.
It is a defence if the person has a reasonable excuse, and under subsection 13.3(3) of
the Criminal Code a defendant bears an evidential burden in relation to the defence.
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This has been cast as a strict liability offence because it would be difficult to obtain
proof of intent to fail to comply with the direction. However, a failure to comply
could have significant adverse effects on consumers, who might receive services and
incur expenses not realising that benefits would not be payable, and it is important to
have an offence as a deterrent to non-compliance.
It is appropriate for the defendant to bear the evidential burden because they alone
will have knowledge of the circumstances that might reasonably excuse non-
compliance.
Item 4 amends section 35 of the Dental Benefits Act to permit disclosure of protected
information under the Act in the course of official duties under the
Health Insurance Act.
Amendments to the Health Insurance Act
Item 5 inserts definitions of "dental benefit" and "relevant dental benefits offence" in
subsection 3(1).
Items 6 to 26 insert references to "dental benefit(s)", a "relevant dental benefits
offence", or corresponding provisions in the Dental Benefits Act after references to
"medicare benefit(s)" or other sections of the Health Insurance Act in the provisions
dealing with the establishment and operation of the PSR. They also make
consequential amendments to various notes and headings.
Application provision
Item 27 provides that the amendments made by this Part, other than those relating to
relevant dental benefits offences, apply to services provided on or after the day the
Part commences. Amendments relating to relevant dental benefits offences apply in
relation to offences committed on or after the day the Part commences.
Part 2: Waiver of debts arising in relation to the Chronic Disease Dental Scheme
The amendments in this part make provision for the waiver of certain debts incurred
by dentists under the Chronic Disease Dental Scheme (the Scheme), which operated
from 1 November 2007 to 30 November 2012 under the Health Insurance (Dental
Services) Determination 2007 made under the Health Insurance Act.
Subsection 10(2) of that determination required a dentist to provide a treatment plan
to the referring medical practitioner and the patient before starting treatment. It also
required a dentist to provide a quotation to the patient before starting treatment.
Subsequent audits of claims for benefits under the Scheme found that many dentists
did not comply with the requirements of subsection 10(2). As a result, benefits were
incorrectly paid and, under section 129AC of the Health Insurance Act, the amounts
incorrectly paid are due to the Commonwealth from the dentists concerned.
The government agrees with representations from the Australian Dental Association
and other groups that it was not until April 2010 that dentists were fully informed of
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their obligations under the Scheme. It has thus decided that debts due to the
Commonwealth from dentists solely as a result of non-compliance with subsection
10(2) before April 2010 should be waived. It has also decided that debts due solely as
a result of non-compliance with the requirements after April 2010 should be waived
as long as the dentist demonstrated an intention to comply with the scheme. Debts
resulting from non-compliance with other requirements of the scheme, including debts
rising from potentially fraudulent conduct, will not be waived.
At present debt waivers are proceeding under section 34 of the Financial
Management and Accountability Act 1997. However, the government considers that
this is a slow and unwieldy process, requiring unnecessary administration and
processing in both the Department of Human Services and the Department of Finance.
It has therefore decided to introduce a specific debt waiver provision in the Health
Insurance Act.
Item 28 inserts new sections 129AED and 129AEE into the Health Insurance Act to
give effect to the waiver.
Proposed new subsection 129AED(1) provides that the section applies to debts arising
as the result of a failure to comply with subsection 10(2) of the determination, as long
as the CEM is satisfied that the only reason for non-compliance with the scheme was
the failure to comply with subsection 10(2). Subsection (2) provides that the section
only applies to services provided on or after 1 April 2010 if the dental practitioner
who provided the service provides to the CEM evidence of their intent to comply with
section 10(2) of the Determination.
Subsection 129AED(3) provides that debts covered by subsections (1) and (2) must
be waived on behalf of the Commonwealth by the CEM. Provision has not been
made for internal review or external merits review in relation to the section as the
scope of discretion to be exercised by the CEM will be very limited, and it will still be
open for dentists seek a waiver under section 34 of the Financial Management and
Accountability Act 1997.
Subsection 129AED(4) provides for the repayment of debts that have already been
paid (subject to the requirement in subsection (5) that the amount to be repaid is
reduced by any payment that the Commonwealth may have already made).
Subsection 129AED (6) clarifies that the section applies to interest on debts and
administrative penalties.
Section 129AEE provides for the CEM to notify dentists of certain actions taken
under section 129AED.
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Part 3: Compliance
This Part inserts into the Dental Benefits Act powers to assist the CEM in determining
and enforcing compliance with the legislative requirements for the payment of
benefits. Equivalent powers were inserted into the Health Insurance Act through the
Health Insurance Amendment (Compliance) Act 2011, and the provisions in this Part
are modelled closely on the Health Insurance Act provisions.
Items 29 and 30 amend the outline of the Act and insert new definitions, including
defining a "Human Services employee" as a Departmental employee within the
meaning of the Human Services (Medicare) Act 1973.
Item 31 inserts a new Part 4A, with a simplified outline at section 32A.
Section 32B provides that Part 4A applies if the CEM has a reasonable concern that
dental benefits have been overpaid, has considered advice from a dental or medical
practitioner about the types of documents that may contain information relevant to
determining if amounts have been overpaid, and has consulted with a relevant
professional body about the types of documents that may contain information relevant
to determining if amounts have been overpaid. The CEM is not to take into account
whether a service is clinically relevant in considering whether benefits have been
overpaid.
Section 32C provides that the CEM may require by written notice a person who the
CEM reasonably believes has possession, custody or control of documents relevant to
ascertaining whether a benefit has been overpaid to produce them to the CEM or a
Human Services employee, or make a copy available (subsections (1) and (2)). Past
experience has shown that a significant proportion of practitioners refuse to cooperate
with requests for information where there is no power to require that cooperation.
Subsection 32C(7) provides that the power to require a document also includes the
power to require a document containing health information about an individual. This
is limited by paragraph 32C(6)(e) which states that the person receiving the notice is
not expected to produce a document containing individual clinical details unless it is
necessary to ascertaining whether the benefit should have been paid. If the document
contains individual clinical details the person is not required to produce it to anyone
other than a Human Services employee who is a dental or medical practitioner
(subsection (3)).
However, the CEM must not require documents to be produced under this section
unless the CEM has given the person a reasonable opportunity to produce relevant
documents first (subsection (4)). Documents may only be required in respect of a
service provided in the two years before the notice was given by the CEM
(subsection (5)).
Subsection 32C(6) sets out what must be included in the notice, and provides that a
person has at least 21 days to comply with the notice.
No other provision of the Dental Benefits Act or any other Act limits the powers of
the CEM to require the production of documents (subsection (8)).
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If the person who receives a notice under section 32C is not the dentist or the patient
or the person responsible for the account, and the person refuses to comply with the
notice, section 32D provides for a civil penalty of 20 penalty units (or 100 penalty
units for a body corporate). This is intended to apply to bodies corporate or other
practice entities that may hold records of dental services for a dentist.
However, it is a defence if the failure is brought about through circumstances outside
the persons control or if they could not reasonably be expected to guard against the
failure. The civil penalty regime set out in Part VIA of the Health Insurance Act
applies to this civil penalty.
Section 32E provides that a person is not excused from producing a document on the
basis that to do so would tend to incriminate him or her or expose her or him to a
penalty. However, documents produced by an individual, or information obtained
from those documents, are not admissible in criminal proceedings (other than for
providing false or misleading statements), or in civil proceedings (other than
proceedings under section 32D or Division 4 of Part 6 of the Dental Benefits Act).
This Part is intended to ensure that benefits may be recovered if they have been
incorrectly paid. Excusing persons from producing documents on the basis that they
may have to repay benefits would allow persons to retain incorrectly paid benefits by
refusing to comply with the request. The public interest in ensuring that benefits
under the Act are not paid inappropriately, and that inappropriate payments are
recovered, is considered to outweigh the harm to individual rights from encroaching
on the privilege against self-incrimination.
Section 32F deals with the use of documents by the CEM and Human Services
employees. It provides that the person otherwise entitled to the document must be
provided with a certified copy by the CEM or a Human Services employee, and that
until a certified copy is provided the person must be permitted to inspect or copy the
document. It also states that no other provision of the Dental Benefits Act or any other
Act limits the powers of the CEM or a Human Services employee to deal with the
documents.
Item 32 makes a minor consequential amendment to section 34 following the
inclusion of a definition of a Human Services employee in the Act under item 30.
Items 34 to 46 make amendments to Division 4 of Part 6 of the Act dealing with the
recovery of amounts paid under the Act to include amounts to be recovered following
consideration by the CEM of documents produced under section 32C, or following a
failure to comply with a notice under section 32C.
Items 33 to 35 make minor consequential amendments to the outline and various
headings.
Item 36 inserts a note.
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Item 37 inserts four new sections.
Section 56A provides that if a person fails to comply with a notice under section 32C
the benefit overpayment is recoverable as a debt due to the Commonwealth
(subsection (1)).
If a dentist does comply, but the information contained in the document does not
substantiate the amount of benefit paid, the overpayment is recoverable as a debt due
to the Commonwealth (subsection (3)). If a person other than the dentist or the patient
or the person responsible for the account does comply, but the information contained
in the document does not substantiate the amount of benefit paid, the overpayment is
recoverable as a debt due to the Commonwealth from the dentist (subsection (5)). In
all cases, the benefit overpayment is not recoverable if the relevant person satisfies the
CEM that the reason for non-compliance or the reason the information does not
substantiate the benefit is due to circumstances beyond his or her control (subsections
(2), (4) and (6)). Amounts are recoverable from a person regardless of whether or not
the benefit was paid to the person (subsection (7)).
Section 56B requires the CEM to notify in writing the person providing the document
if the CEM decides that the information provided under section 32C substantiates the
benefit payment, or the relevant person if the CEM decides that circumstances beyond
the control of that person prevented the production of the document, or the provision
of information to substantiate the benefit.
If an amount is recoverable as a debt from a person under existing section 56 or under
new section 56A, section 56C requires the CEM to give written notice to the person
of the decision to claim the debt and the reasons for the decision, and of the right to
review the decision under section 56D. The CEM must not serve a notice on a person
claiming the debt within 28 days of notifying the person of the decision to claim the
debt.
Under section 56D a person may ask the CEM to review a decision to claim a debt
within 28 days of being notified of the decision, and may provide additional
information to substantiate that benefit was properly paid. The CEM must review the
decision and notify the person of whether the decision has been confirmed, varied or
revoked within 28 days of the application for review. Decisions may only be
reviewed once under the section.
Consistent with similar provisions of the Health Insurance Act, provision has not been
made for external merits review in relation to section 56D. Experience under that Act
has been that the existing internal review processes are rarely used, possibly because
the decision to claim a debt is based on largely objective decisions with little scope for
discretion on the part of the CEM.
Items 38 and 39 amend section 57 which provides for interest to be charged on
outstanding debts to include debts due under section 56A.
Items 40 to 44 amend section 58 which provides for debts to be offset against other
benefit payments to include debts due under section 56A.
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Item 45 inserts a new section 58A which, for the avoidance of doubt, provides that
amounts are only recoverable once under this Division.
Item 46 provides that the amendments made by this Part of the Schedule apply to
amounts purportedly paid as dental benefits before or after the commencement of the
amendments.
Part 4: Delegation of Ministerial powers
The Dental Benefits Act currently does not include any capacity for the Minister to
delegate powers. While this was not a significant issue when dental benefits paid
under the Act were limited to only one item under the former Medicare Teen Dental
Plan, inclusion of a broad Child Dental Benefits Schedule with numerous items may
require more frequent exercise of the Ministers powers, particularly in relation to
making minor amendments to the dental benefits rules. Item 48 amends section 66 to
include a power for the Minister to delegate powers to the Secretary or an SES officer
of the department. The delegation of Ministerial power is consistent with comparable
legislation dealing with health benefits, including the Health Insurance Act and the
National Health Act. Item 47 makes a consequential amendment to the outline of
Part 7 of the Act.
Part 5: Dental providers
Item 49 amends the definition of a dental provider in section 6 of the Dental Benefits
Act to align with the definition under the national law dealing with registration of
health professionals.
Part 6: Provision of information
Rules currently made under the Dental Benefits Act provide that a person is eligible
for dental benefits if they are receiving certain allowances paid by the Department of
Veterans Affairs. Item 50 amends section 41 to allow information obtained under
the Act to be disclosed to the Minister and Department administering the Veterans'
Entitlement Act 1986 if the disclosure is for the purpose of administering the Dental
Benefits Act.
Part 7: Technical amendment
Item 51 corrects an erroneous reference to the dental benefits rules in section 4 of the
Dental Benefits Act.
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