EXPLANATORY STATEMENT

 

Select Legislative Instrument 2005 No. 220

 

Issued by the authority of the Minister for Human Services

 

Medicare Australia Act 1973

 

                            Medicare Australia Amendment Regulations 2005 (No. 1)

 

 

Background

 

Section 4 of the Medicare Australia Act 1973 (the Act) establishes Medicare Australia.  Sections 5 and 8AG of the Act create the office of Chief Executive Officer of Medicare Australia (CEO), with statutory functions.  The CEO is, under the Minister and through the Secretary to the Department of Human Services, responsible for managing Medicare Australia.

 

Section 5 of the Act sets out the mechanisms for conferral of functions on the CEO.  Subsection 5(e) of the Act provides that the CEO has any functions that are prescribed.  The Medicare Australia Regulations 1975 (the Principal Regulations) will confer functions on the CEO under subsection 5(e) of the Act.

 

The purpose of the Regulations is to amend the Principal Regulations by prescribing certain aged care payments and related functions under the Aged Care Act 1997 (Aged Care Act) as functions of the CEO.  Where relevant, the Regulations allow the CEO to exercise powers in relation to those functions on behalf of the Secretary to the Department of Health and Ageing or the Commonwealth.  Generally the functions are to process claims and make payments to approved aged care providers for providing care to eligible recipients, and to maintain and support the Department of Health and Ageing's aged care payments systems.

 

Medicare Australia is a specialist payments agency and has substantial experience in processing claims and making payments to beneficiaries of the Government's major health programs.

 

Authority to Amend Regulations

 

Section 44 of the Act provides that the Governor-General may make regulations, not inconsistent with the Act, prescribing all matters required or permitted by the Act to be prescribed or necessary or convenient to be prescribed for carrying out or giving effect to the Act.

 

The Act specifies no conditions that need to be met before the power to make the proposed Regulations may be exercised.

 

Detailed Amendments to Regulations

 

Regulation 1 -- Name of Regulations

 

This regulation is a formal provision that provides that the title of the Regulations is the Medicare Australia Amendment Regulations 2005 (No. 1).

 

Regulation 2 - Commencement

 

This regulation provides for the regulations to commence on 20 October 2005. 

 

Regulation 3 -- Amendment of Medicare Australia Regulations 1975

 

This regulation provides that the Medicare Australia Regulations 1975 (the Principal Regulations) are amended as set out in the Schedule.

 

Schedule -- Amendments

 

Item [1] -- before regulation 1

 

This item inserts a new Part 1 of the Principal Regulations "Preliminary".  This Part will provide definitions for terms used in the Principal Regulations.

 

Item [2] -- regulation 3

 

Regulation 3 of the Principal Regulations sets out definitions of terms used in the Principal Regulations.  This item substitutes the existing regulation 3 with a new regulation.  This item provides for terms used in the Principal Regulations, reflecting the changes to the Principal Regulations made by these regulations.  Particularly the new regulation 3 defines:

"Act" as the Medicare Australia Act 1973;

"Aged Care Act" as the Aged Care Act 1997;

"Health Secretary" as the Secretary of the Department of Health and Ageing; and

 "reappraisal period" by reference to section 28-3 of the Aged Care Act.

 

Item [3] -- after regulation 3

 

This item inserts a new Part 2 of the Principal Regulations "Prescribed functions -- Aged Care Act".  This Part will contain provisions relating to the conferral of functions under the Aged Care Act on the Chief Executive Officer of Medicare Australia (the CEO).  The Part will include the following new regulations:

 

Regulation 4 -- Terms used in this Part

Regulation 4 provides that terms which are used in Part 2 and also in the Aged Care Act, have the same meaning as under the Aged Care Act.  Those terms are "aged care service", "approved provider", "flexible care subsidy", "protected information" "recoverable amount" and "residential care service".

 

Regulation 5 -- Request information relating to payments

Regulation 5 provides for the CEO to have the function, on behalf of the Health Secretary, of requesting, in accordance with subsection 9-3(1) of the Aged Care Act, information from approved providers relating to payments made under the Aged Care Act.

 

Regulation 6 -- Classification of care recipients

Regulation 6 provides for the CEO, on behalf of the Health Secretary, to have the following functions:

(a)        in accordance with section 25-1 of the Aged Care Act, classify care recipients according to the level of care they need, relative to the needs of other care recipients;

(b)        receive from a person applying for approval to become a recipient of one or more types of aged care, appraisals made under section 25-3 of the Aged Care Act of the level of care needed by a care recipient; and

(c)        decide under subsection 26-2(2) of the Aged Care Act (having regard to any relevant information under subsection 26-2(3) of the Aged Care Act) whether an appraisal of the level of care needed by a care recipient, was sent in sufficient time to be received by the Health Secretary within the relevant period.

 

Regulation 7 -- Renewal and change of classifications

Regulation 7 provides for the CEO, on behalf of the Health Secretary, to have the following functions:

(a)        in accordance with section 28-1 of the Aged Care Act, receive a reappraisal of the level of care needed by a care recipient and renew the classification (other than in respect of residential care provided as respite care);

(b)        decide under subsection 28-5(2) of the Aged Care Act (having regard to any relevant information under subsection 28-5(3) of the Aged Care Act) whether a reappraisal of the level of care needed by a care recipient, was sent in sufficient time to be received by the Health Secretary within the relevant reappraisal period;

(c)        notify an approved provider under subsection 28-5(4) of the Aged Care Act if the CEO acting on behalf of the Health Secretary is not satisfied that a reappraisal received outside the reappraisal period was sent in sufficient time;

(d)        change a classification of a care recipient in accordance with subsection 29-1(1) of the Aged Care Act;

(e)        review a classification of a care recipient (in accordance with subsection 29-1(3) of the Aged Care Act), before changing a classification under subsection 29-1(1) of the Aged Care Act; and

(f)         in accordance with subsection 29-1(4) of the Aged Care Act, give notice to an approved provider that is providing care to a care recipient whose classification has been changed under subsection 29-1(1) of the Aged Care Act.

 

Regulation 8 -- Certification of residential care service

Regulation 8 provides for the CEO to have the function of keeping a record of application fees for certification of a residential care service that have been received by the Health Secretary under paragraph 38-1(2)(b) of the Aged Care Act.

 

Regulation 9 -- Payment of subsidies

Sub-regulation 9(1) provides for the CEO, on behalf of the Health Secretary, but subject to sub-regulation 9(3), to perform functions conferred on the Health Secretary under Parts 3.1, 3.2 and 3.3 of the Aged Care Act (concerning residential care, community care and flexible care subsidies) and for the CEO, on behalf of the Commonwealth, to make payments of subsidies, and do anything necessary for the purpose of making such payments.

 

Sub-regulation 9(2) provides that it is a function of the CEO to make records of information obtained in performing a function conferred under sub-regulation 9(1) and to disclose that information to specified persons, for their use in exercising powers under the Aged Care Act.

 

Sub-regulation 9(3) provides that the following are not functions of the CEO:

(a)        approving a form under Parts 3.1 or 3.2 (relating to residential care subsidies and community care subsidies) of the Aged Care Act;

(b)        making determinations under section 42-5 of the Aged Care Act (allowing for exceptional circumstances);

(c)        revoking a determination (relating to exceptional circumstances) under section 42-6 of the Aged Care Act;

(d)        making a determination under sub-sections 44-20(5) or (6) of the Aged Care Act (allowing a compensation payment to be treated as relating to the future cost of providing residential care);

(e)        making a determination under section 44-31 of the Aged Care Act (allowing cases of financial hardship);

(f)         performing a function or exercising a power of the Minister for Health in relation to the payment of a subsidy under Part 3.1, 3.2 or 3.3 of the Aged Care Act; and

(g)        entering into an agreement regarding payment of flexible care subsidy (as per section 15.12 of the Flexible Care Subsidy Principles 1997).

 

Regulation 10 -- day therapy centres

Regulation 10 provides that it is a function of the CEO, on behalf of the Commonwealth, to pay grants of money under Part 5.7 of the Aged Care Act (Other Grants) to bodies corporate with which the Health Secretary has, under subsection 83-1(1) of the Aged Care Act, entered into written agreements for the purpose of operating day therapy centres.

 

Regulation 11 -- reconsideration and review of decisions

Regulation 11 provides for the CEO to have the function, on behalf of the Health Secretary, to exercise the powers and perform the functions of the Health Secretary under Part 6.1 of the Aged Care Act (Reconsideration and Review of Decisions), in relation to specified reviewable decisions, and to act in any legal proceedings (which would include proceedings before a tribunal) relating to the exercise of those powers or the performance of those functions.

 

Regulation 12 -- Protection of information

Regulation 12 provides for the CEO to have the function, on behalf of the Health Secretary, to:

(a)        make decisions and exercise powers under section 86-3 of the Aged Care Act relating to specified protected information under the Aged Care Act and to disclose such protected information as permitted by that Act; and

(b)        as permitted by subsections 86-9(1) and (2) of the Aged Care Act, make information about an aged care service publicly available, and information about the outcome of a complaint relating to an aged care service available to a complainant under subsection 86-9(3) of the Aged Care Act.

 

Regulation 13 -- Powers of officers

Regulation 13 provides for the CEO, on behalf of the Health Secretary, to have the following functions:

(a)        under section 90-3 of the Aged Care Act, appoint a person to be an authorised officer for the purposes of section 93-1 of the Aged Care Act (concerning power to obtain information and documents), but only in relation to a matter described in paragraph 93-1(2)(b) of the Aged Care Act (assessing whether an approved provider's claims for payments have been properly made);

(b)        under subsection 93-1(1) of the Aged Care Act, obtain information or documents by requiring a person to attend before an authorised officer (but only in relation to whether an approved provider's claims for payments have been properly made); and

(c)        to cause an identity card to be issued in accordance with section 94-1 of the Aged Care Act to persons appointed by the CEO as authorised officers, which specifies amongst other things, that the person to whom the card is issued is appointed as an authorised officer (but only in relation to the assessment of whether an approved provider's claims for payments have been properly made).

 

Regulation 14 -- Recovery of overpayments - subsidies

Regulation 14 provides for the CEO to have the following functions:

(a)        investigate if the Commonwealth has made an overpayment to a person, by way of subsidy under Chapter 3 (Subsidies) of the Aged Care Act; and

(b)        on behalf of the Commonwealth take action to recover a recoverable amount (as defined in subsection 95(1) of the Aged Care Act); or

(c)        on behalf of the Health Secretary, determine to do anything permitted under section 95-6 of the Aged Care Act (write-off and waiver of debts) in relation to a debt or class of debts arising, or payable under Chapter 3 of the Aged Care Act.

 

Regulation 15 -- Recovery of overpayments -- subsidies and grants

Regulation 15 provides for the CEO to have the following functions:

(a)        to decide (for the purposes of section 95-3 of the Aged Care Act) whether to deduct from an amount or amounts payable under the Aged Care Act to an approved provider, an amount equivalent to a recoverable amount (or any part of it) (a recoverable amount being an overpayment made by the Commonwealth to the relevant approved provider);

(b)        to decide (for the purposes of section 95-4 of the Aged Care Act) whether to deduct from an amount or amounts payable under the Aged Care Act to a transferee of an approved provider (as defined in section 95-4 of the Aged Care Act), an amount equivalent to a recoverable amount (or any part of it); and

(c)        to decide whether the Commonwealth is liable to make a refund to a transferee under subsection 95-5(1) of the Aged Care Act and the amount of any such refund payable under subsection 95-5(2) of the Aged Care Act.

 

Regulation 16 -- Extension of time for giving information relating to application

Regulation 16 provides for the CEO, on behalf of the Health Secretary, to have the function under subsection 96-7(2) of the Aged Care Act, to:

(a)        receive and consider an applicant's request for an extension of time for giving information relating to an application made by that applicant under the Aged Care Act; and

(b)        extend the period of time if the CEO considers it appropriate to do so.

 

Regulation 17 -- Aged Care Principles

Regulation 17 clarifies that where the CEO has, under the regulations, been conferred a function to perform a function or exercise a power of the Health Secretary, then, subject to any contrary intention, the CEO's functions extend to acting under or in accordance with any Principles made by the Minister for Health and Ageing under section 96-1 of the Aged Care Act, where the performance of such function or the exercise of such power by the Health Secretary requires or permits the Health Secretary to act under or in accordance with those Principles.  Regulation 17 is included for the avoidance of doubt only.

 

Part 3 - Miscellaneous

The regulations also create a new Part 3 of the Principal Regulations entitled "Miscellaneous" which will contain the existing regulation 5 (to be renumbered as regulation 18).

 

Item [4] -- regulation 5

 

This item renumbers what is currently regulation 5 (relating to protection of the name "medicare" and any related medicare symbol) as regulation 18.

 

Consultation

 

The amendments to the Principal Regulations were agreed to after consultation with Department of Health and Ageing and Medicare Australia.  Consultation with the aged care sector and wider community was unnecessary as the amendments to the Principal Regulations are minor or machinery in nature and do not substantially change the law.

 

The Office of Regulation Review was consulted during the preparation of these Regulations.

 

The Regulations are legislative instruments for the purposes of the Legislative Instruments Act 2003.