House of Representatives

Explanatory Memorandum

(Circulated by authority of the Minister for Health and Aged Care, the Hon Mark Butler MP)

OUTLINE

The purpose of the Health Legislation Amendment (Modernising My Health Record - Sharing by Default) Bill 2024 (the Bill) is to establish a legislative framework for requiring key health information to be shared with the My Health Record system, subject to exceptions.

The Bill has been developed in response to recommendations in the Strengthening Medicare Taskforce Report released in 2022. The report highlighted that access to real time health information is a critical foundation for a modern and connected healthcare system. To support this objective, the Taskforce recommended that key health information should be required to be shared by default – rather than by exception – to a healthcare recipient's My Health Record.

Under the framework, constitutional corporations providing health services will be required to register with My Health Record and to upload health information to healthcare recipients' My Health Records.

In addition, Medicare benefits for specific health services will be conditional upon upload of information about those health services.

The health services and the information about those health services that must be shared will be prescribed – or set out – in rules. These rules will be made under the My Health Records Act 2012 (My Health Records Act) and the Health Insurance Act 1973 (Health Insurance Act).

Currently, no information is permitted to be uploaded to a healthcare recipient's My Health Record against their wishes and this will not change. Healthcare recipients will also continue to maintain control over who may access and view their My Health Record.

Other limited exceptions to upload will also apply, including practical necessity, such as where matching criteria to identify the healthcare recipient is not satisfied, and clinical discretion in cases of serious concern for a healthcare recipient's health, wellbeing or safety.

Where there is a requirement to upload, there will be an obligation to keep records in cases where an exception is applied.

There will also be a process for prescribed healthcare providers to seek an extension, where they need more time to update their systems and processes to become registered or enable sharing by default to the My Health Record system.

New information sharing powers will support compliance and enforcement of the sharing by default requirements.

Financial Impact Statement

Funding to deliver the reforms was allocated in the 2023-24 and 2024-25 Budgets.

$13.1 million was allocated over 2023-2025 for reform development costs.

A further $0.8 million was allocated in the 2024-25 Budget to support national communication and education activities.

The Bill is expected to generate savings for the Commonwealth through a reduction in Medicare benefit costs, due to fewer duplicate tests being conducted. Duplication in pathology and diagnostic imaging testing is conservatively estimated to be 5% of Medicare services performed. These savings will be contingent on rules made under the Bill.

Impact Analysis

An Impact Analysis for this Bill has been prepared in consultation with the Office of Impact Analysis. A copy of this Impact Analysis is attached at the end of this Explanatory Memorandum.

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

HEALTH LEGISLATION AMENDMENT (MODERNISING MY HEALTH RECORD- SHARING BY DEFAULT) BILL 2024

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 purpose of the Health Legislation Amendment (Modernising My Health Record - Sharing by Default) Bill 2024 (the Bill) is to establish a legislative framework for requiring key health information to be shared with the My Health Record system, subject to exceptions.

Part 1 of Schedule 1 of the Bill will amend the My Health Records Act to require prescribed constitutional corporations to become registered under the My Health Records Act and to upload prescribed information to the My Health Record system.

Rules to be made under the My Health Records Act 2012 (My Health Records Act) and the Health Insurance Act 1973 (Health Insurance Act) will prescribe which constitutional corporations and records will be in scope of this framework. If a health service or record is prescribed, rules will also prescribe the information about that health service or record that must be shared to My Health Record.

New section 10B establishes exceptions to the requirement to upload, including practical necessity, the healthcare recipient's preference and clinical discretion in cases of serious concern for a healthcare recipient's health, wellbeing or safety.

New section 78C requires prescribed corporations to keep records in cases where an exception is applied.

New sections 41B and 78B provide a process for providers to seek an extension, where they need more time to update their systems and processes to become registered or enable sharing by default.

New civil penalties will apply to prescribed constitutional corporations who do not comply with the requirement to upload to My Health Record, keep records where an exception is applied and publish notices if they are not uploading.

New information sharing powers will also support compliance and enforcement of the new sharing by default requirements.

Part 2 of Schedule 1 will amend the Health Insurance Act to provide that Medicare benefits will no longer be payable for prescribed healthcare services, unless required information is shared to the My Health Record system. This condition is subject to the same exceptions as in the My Health Records Act. The healthcare services subject to the condition to upload will be prescribed in rules to be made under the Health Insurance Act.

In many cases, Medicare benefits are claimed at the time the health service is delivered, for example when a scan is performed, and the required information won't be able to be uploaded until later when the report is prepared. The amendments provide that healthcare providers will be able to continue to claim Medicare benefits, which will be paid as advance payments, subject to the required information being uploaded in the time period set out in the rules.

If a healthcare provider or their associated healthcare provider organisation have not uploaded the required information within the prescribed timeframe and are unable to provide any evidence of an upload exception applying, the amendments will apply such that the payment will become a debt recoverable by the Commonwealth. Medicare benefits that are recoverable, will be able to be pursued as a debt or be off set against future amounts payable to the healthcare provider.

The decision to raise a debt will be subject to the notice and review processes, similar to those which currently exist for Medicare debts under the Health Insurance Act.

Parallel record keeping requirements to those under the My Health Records Act will apply, requiring practitioners to keep records for 2 years of any upload exceptions that may apply when the required information is not uploaded, or ensure that someone else keeps them.

The amendments also provide for an extension process for providers who need more time to upgrade their systems, mirroring the process that will apply under the My Health Records Act, under which the My Health Record System Operator may approve periods when sharing information to the My Health Record system is not required. Under these processes, individual healthcare providers may rely on extensions sought by healthcare provider organisations that they are associated with.

Schedule 2 makes amendments to the National Health Act 1953 to enable limited data matching between Medicare and My Health Record information to support compliance and enforcement with the new share by default requirements. It also enables the Australian Commission on Safety and Quality in Health Care to disclose information about healthcare providers to the Secretary or My Health Record System Operator for compliance purposes.

Schedule 2 also makes consequential amendments to the Health Insurance Act and other Acts to ensure that even if Medicare benefits are not payable because information hasn't been uploaded, that this doesn't affect how those services are treated by other Acts and programs. These include GST treatment of medical services, private health insurance benefit requirements and the calculation of the Medicare safety net.

Human rights implications

This Bill engages the following rights:

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Article 12(1) of the International Covenant on Economic, Social and Cultural Rights (ICESCR) being the right to the enjoyment of the highest attainable standard of physical and mental health;

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The right to privacy under Article 17 of the International Covenant on Civil and Political Rights (ICCPR); and

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Criminal offence process rights under Article 14 of the ICCPR.

Right to health

Article 12(1) of the ICESCR provides that everyone has the right to the enjoyment of the highest attainable standard of physical and mental health. To give effect to this right, better sharing of health information will support healthcare recipient's and their healthcare providers to have access to information required to make informed decisions about their health and care planning. Better access to health information will also support greater accessibility of health information and services.

The Strengthening Medicare Taskforce Report, released in 2022, highlighted that access to real time health information is a critical foundation for a modern and connected healthcare system. It recommended requiring that information be shared by default for private and public practitioners and services.

My Health Record is the only national repository within Australia's federated health system with the ability to connect a healthcare recipient's key health information between healthcare providers and across care settings in both public and private health services and across jurisdictional borders. The sharing by default requirements in the Bill will ensure consistent and timely health information sharing to support a healthcare recipient's healthcare journey. They will help reduce delays in diagnosis, treatment and unnecessary duplicate testing.

The Bill promotes the right to an adequate standard of living and the right to the enjoyment of the highest attainable standard of physical and mental health for Australians.

Right to privacy

The protection against arbitrary or unlawful interference with privacy is contained in Article 17 of the ICCPR. Article 17 provides that no one shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence, nor to unlawful attacks on his or her honour or reputation, and that everyone has the right to the protection of the law against such interference or attacks.

Although the United Nations Human Rights Committee has not defined 'privacy', it should be understood to comprise freedom from unwarranted and unreasonable intrusions into activities that society recognises as falling within the sphere of individual autonomy.

The right to privacy includes respect for informational privacy, including in respect of storing, using and sharing private information and the right to control the dissemination of personal and private information. The right to privacy also includes the right to the protection of one's personal data. The Human Rights Committee has said that, pursuant to Article 17(2) of the ICCPR, States are required to regulate the processing, use and conveyance of automated personal data, and to protect those affected against misuse. The Committee has said, moreover, that State Parties must take all appropriate measures to ensure that the gathering, storage and use of sensitive personal data is consistent with their obligations under Article 17.

The right to privacy under Article 17 can be permissibly limited in order to achieve a legitimate objective and where the limitations are lawful and not arbitrary. The term 'unlawful' in Article 17 of the ICCPR means that no interference can take place except as authorised under domestic law. Additionally, the term 'arbitrary' in Article 17(1) of the ICCPR means that any interference with privacy must be in accordance with the provisions, aims and objectives of the ICCPR and should be reasonable in the particular circumstances. The Committee has interpreted 'reasonableness' to mean that any limitation must be proportionate and necessary in the circumstances.

To the extent that the share by default requirements in the Bill authorise the collection, use or disclosure of personal or health information or may interfere with the right to privacy, such measures are lawful and nonarbitrary. The measure aims to achieve the legitimate objective of assuring the consistency and completeness of key health information as well as improved access to a healthcare recipient's own information.

The limitations on the right to privacy under the Bill are reasonable, necessary and proportionate as they appropriately balance the competing objectives of transparency and oversight with an individual's right to privacy.

The Bill contains protections to ensure health information is being collected, used and disclosed in an appropriate and non-invasive manner to achieve the legitimate public health aims and objectives of the Bill.

Amendments to the My Health Records Act and Health Insurance Act both provide exceptions to the share by default requirements. Currently, information cannot be uploaded to an individual's My Health Record against their wishes, and this Bill confirms that right by providing that an individual's wish to not have their information uploaded is a valid exception to the share by default requirement. An individual's privacy is further safeguarded by a discretion that can be exercised by healthcare providers that sharing the individual's health information would be detrimental to their health, safety or wellbeing.

The Bill contains provisions that enable the sharing of personal, identifying or health information for the purposes of managing compliance and enforcement with the share by default requirements. These requirements are necessary and proportionate to the objectives of the Bill. Personal, identifying and very limited health information will need to be collected from the My Health Record system and matched with medicare data to accurately identify individuals and healthcare providers and ensure information has been shared to My Health Record as required for prescribed health services.

The amendments reduce privacy risks and safeguard an individual's right to privacy in the following ways.

Evidence required from healthcare providers to support their claims where exceptions apply to the share by default requirements will be limited to recording the matters outlined in new sections 10B of the My Health Records Act and 19AD(3) of the Health Insurance Act. They will not include clinical notes or other sensitive information.

Information contained in an individual's My Health Record shared for compliance purposes will be a limited set of data, sufficient to establish compliance, with relevant data to be set out in rules. These rules will be subject to further consultation and will be disallowable. The information shared won't include clinical notes or the contents of test results.

The existing secrecy provision in the Health Insurance Act is being amended. This means that the information disclosed under these amendments can only be done in particular circumstances, such as in the performance of the functions and duties of those assisting the Secretary and the Chief Executive Medicare.

Outcomes of compliance actions may be disclosed to the Australian Commission on Safety and Quality in Health Care which oversees accreditation and standards for healthcare providers. These disclosures will not contain the personal or health information of individual healthcare recipients. Compliance with share by default provisions are expected to be included into future accreditation standards for prescribed healthcare providers. This amendment is proportionate and appropriate to support the function of the Commission in overseeing accreditation standards for the healthcare sector. A corresponding power will allow the Commission to disclose non-compliance with share by default provisions that accrediting agencies may become aware of in their accreditation activities, for appropriate action. This is considered proportionate and appropriate to ensure that non-compliance can be appropriately actioned when another Commonwealth entity has become aware of it.

Amendments to the National Health Act limit the data matching activities that may be done by the Chief Executive Medicare for specific purposes that are necessary to effectively manage compliance with the share by default requirements.

Criminal offence process rights

The right to a fair trial and fair hearing are protected by Article 14(1) of the ICCPR. The right to a fair trial and fair hearing applies to both criminal and civil proceedings. A range of protections are afforded to persons accused and convicted of criminal offences under Article 14. These include the presumption of innocence (Article 14(2)), the right to not incriminate oneself (Article 14(3)(g)), and the right to have a sentence reviewed by a higher tribunal (Article 14(5)). Civil penalty provisions may engage the criminal process rights under Article 14 of the ICCPR where the penalty may be regarded as 'criminal' for the purpose of international human rights law. While the UN Human Rights Committee has not issued guidance on how civil penalties may be considered criminal, the following matters are considered to be relevant:

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classification of the penalty under domestic law

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the nature of the penalty, and

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the severity of the penalty.

The Bill introduces new civil penalties for certain healthcare provider organisations which may engage Article 14 of the ICCPR. New section 76A introduces a new civil penalty of 1,500 penalty units for healthcare provider organisations failing to notify the Australian Digital Health Agency – the My Health Record System Operator – that they are unable to meet the conditions on their My Health Record registration. This new penalty is consistent with the existing penalty in section 76 of the My Health Records Act. That penalty currently applies to healthcare provider organisations who fail to notify that they are unable to meet the conditions of their registration. However, due to other amendments made by this Bill, existing section 76 will not continue to apply to this failure to notify so the new section 76A penalty is being introduced to maintain consistency. The security of the My Health Record system and the health information of millions of Australians that it contains is of paramount importance. This penalty has very limited application. It is intended as an important deterrent for organisations to ensure that they are adequately notifying the System Operator in the event that they are unable to meet the security and practice standards expected of them to be trusted users of the My Health Record system. This penalty is not considered to be criminal for the purposes of human rights law.

New civil penalties are also introduced for constitutional corporations subject to the new share by default provisions, with many of these subject to an infringement notice as well. These penalties will be limited in application to those constitutional corporations that are to be prescribed in the rules. They are lower level penalties that broadly align with other similar penalties. The most significant new penalty is 250 penalty units for a prescribed constitutional corporation failing to register for My Health Record as required under the Bill. This penalty is a deterrent for corporations to ignore the new share by default requirements and in that way undermine access to critical health information by healthcare recipient's and their healthcare teams. This penalty is not considered to be criminal for the purposes of human rights law. While not considered to criminal for the purposes of human rights law, these penalties are also considered to be consistent with the criminal process protections in the ICCPR.

Conclusion

The Bill is compatible with human rights because it promotes better health outcomes for Australians by enabling better access to critical health information by individuals and their healthcare providers. The Bill engages the rights to privacy for the legitimate objective of promoting better public health outcomes and to the extent that any rights to privacy are limited, this is reasonable, necessary and proportionate in the circumstances. The Bill also ensures the inclusion of civil penalties, including through an infringement notice, is consistent with human rights criminal process guarantees.

NOTES ON CLAUSES

Clause 1 – Short Title

Clause 1 provides for the short title of the Act to be the Health Legislation Amendment (Modernising My Health Record—Sharing by Default) Act 2024 (Act).

Clause 2 – Commencement

Clause 2(1) provides that the Act commences as follows:

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Sections 1 to 3, and anything in the Act not elsewhere covered by the commencement table – the day that the Act receives the Royal Assent.

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Schedule 1, Part 1 – the day after the Act receives the Royal Assent.

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Schedule 1, Part 2, Division 1 – the day after the Act receives the Royal Assent.

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Schedule 1, Part 2, Division 2 – the day after the Act receives the Royal Assent. However, if Schedule 1 to the Health Insurance Legislation Amendment (Assignment of Medicare Benefits) Act 2024 commences on or before that date, then Schedule 1, Part 2, Division 2 will not commence at all.

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Schedule 1, Part 2, Division 3 – the later of:

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the start of the day after the Act receives the Royal Assent; and

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immediately after the commencement of Schedule 1 to the Health Insurance Legislation Amendment (Assignment of Medicare Benefits) Act 2024.

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Schedule 1, Part 2, Division 4 – the later of:

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immediately after the commencement of the Schedule 1, Part 2, Division 1 provisions; and

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the commencement of Schedule 2 to the Administrative Review Tribunal (Miscellaneous Measures) Act 2024.

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Schedule 2 – the day after the Act receives the Royal Assent.

Clause 2(2) provides that any information in column 3 of the table at clause 2(1), is not part of the Act. Clause 2(2) also provides that information may be inserted in column 3, or information in the column may be edited, in any published version of the Act.

Clause 3 – Schedules

Clause 3 is a technical provision which gives operational effect to the amendments contained in the Schedules. It provides that legislation that is specified in a Schedule to the Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item has effect according to its terms.

Schedule 1 – Main amendments

Part 1—My Health Records

My Health Records Act 2012

Overview

Part 1 of Schedule 1 of the Bill amends the My Health Records Act 2012 (My Health Records Act) to require prescribed constitutional corporations to become registered under the My Health Records Act and to upload prescribed information to the My Health Record system.

There are exceptions to the requirement to upload, including practical necessity, a healthcare recipient's preferences and clinical discretion in cases of concern for a healthcare recipient's health, wellbeing or safety. Corporations will be required to keep records in cases where an exception is applied.

There will be an extension process for those providers that need more time to update their systems and processes to become registered or enable sharing by default.

New civil penalties will apply to prescribed entities who do not comply with the requirement to upload to My Health Record, keep records where an exception is applied and publish notices if they are not uploading.

Part 1 also introduces new information sharing powers to support compliance and enforcement for the share by default requirements.

Item 1 – Section 3

This item amends the object of the My Health Records Act in section 3 by omitting the phrase "voluntary national public system for the provision of access to health information relating to recipients of healthcare", and substituting, "national public system for the provision of access to health information relating to recipients of healthcare that is voluntary for those recipients". This reflects that participation in the My Health Record system will no longer be voluntary for prescribed healthcare provider organisations, however, will remain voluntary for healthcare recipients.

Item 2 – Section 4 (paragraph beginning "If a healthcare recipient is registered")

This item amends section 4 of the My Health Records Act by inserting the phrase "(or, in some circumstances, must)" after "a healthcare provider may". Section 4 contains the simplified outline for the My Health Records Act. This amendment to section 4 reflects that participation in the My Health Record system will not be voluntary for prescribed healthcare provider organisations, and that in some circumstances, a healthcare provider must upload health information about the recipient to the My Health Record system.

Healthcare provider organisations that are not prescribed, and therefore not subject to a requirement to upload, may continue to elect to apply to register to participate in the My Health Record system and share key information to the system.

Item 3 – Section 5

This item inserts the following definitions into section 5 of the My Health Records Act:

approved registered repository operator is defined as a healthcare provider organisation that is a registered repository operator and satisfies the requirements (if any) specified in the My Health Records Rules. A 'registered repository operator' is defined under section 5 of the My Health Records Act as a person that:

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holds, or can hold, records of information included in My Health Record for the purposes of the My Health Record system; and

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is registered as a repository operator under section 49 of the My Health Records Act.

finally determined is defined in section 10C and refers to when applications made by a healthcare provider organisation are finally determined.

prescribed healthcare provider organisation is defined as a healthcare provider organisation that is:

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a corporation to which paragraph 51(xx) of the Constitution applies; and

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of a kind specified in the My Health Records Rules.

share by default provision is defined by reference to a list of provisions. The definition provides that each of the following provisions is a share by default provision:

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section 41A (prescribed healthcare provider organisations must be registered) (see item 5);

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section 78A (some information must be shared with the My Health Record system unless an upload exception applies) (see item 16);

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section 78C (record keeping requirement in relation to sharing information with the My Health Record system) (see item 16);

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section 78D (prescribed healthcare provider organisations must display notice when not sharing information with the My Health Record system) (see item 16);

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section 19AD (Medicare benefits not payable in respect of certain professional services) of the Health Insurance Act 1973 (Health Insurance Act) (see item 26);

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section 19AF (record keeping requirement) of the Health Insurance Act (see item 26);

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section 19AG (advance payment before information is shared with the My Health Record system) of the Health Insurance Act (see item 26);

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section 19AH (recovery of payments) of the Health Insurance Act (see item 26).

shares with the My Health Record system is defined in section 10A (see item 4).

upload exception applies is defined in section 10B (see item 4).

Item 4 – After section 10

This item inserts new sections 10A, 10B and 10C into the My Health Records Act.

Section 10A – Sharing information with the My Health Record system

New section 10A defines how entities share information with the My Health Record system.

Subsection 10A(1) provides that an entity other than an approved registered repository operator shares with the My Health Record system information if the entity uploads, for the purposes of the My Health Record system, the information to:

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a repository that forms part of the National Repositories Service; or

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a repository to which a registered repository operator's registration relates.

Subsection 10A(2) provides that an approved registered repository operator shares with the My Health Record system information if the registered repository operator:

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uploads, for the purposes of the My Health Record system, the information to a repository that forms part of the National Repositories Service; or

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takes, in relation to the information, the action specified in the My Health Record Rules.

The National Repositories Service is operated by the System Operator and stores key records that form part of a healthcare recipient's My Health Record (see section 4 of the My Health Records Act). An entity other than an approved registered repository operator, may be a registered healthcare provider organisation for the purposes of the My Health Records Act. Pathology laboratories, general practices, and hospitals are examples of healthcare provider organisations that may register with and share records to My Health Record via upload to a repository that forms part of the National Repositories Service, or a repository to which a registered repository operator's registration relates.

Section 10B – When an upload exception applies

Subsection 10B(1) sets out when an upload exception applies to an entity sharing information with the My Health Record system, about healthcare provided to an individual. These operate as exceptions to the section 78A (see item 16) requirement that information specified in the My Health Records Rules must be shared with the My Health Record system by prescribed healthcare provider organisations in the circumstances outlined in that section.

Relevantly, an upload exception applies if:

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the individual is not a registered healthcare recipient; or

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the individual, or their authorised or nominated representative have advised the entity, or the entity has otherwise been informed, that the individual, or their authorised or nominated representative has advised that the information must not be uploaded to the My Health Record system; or

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an individual healthcare provider reasonably believes that the information should not be shared with the My Health Record system because of a serious concern for the health, safety or wellbeing of the individual; or

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the information cannot be shared with the My Health Record system due to circumstances beyond the reasonable control of the entity. Circumstances beyond the reasonable control of the entity may include, for example, where that entity is unable to achieve an Individual Healthcare Identifier match for the purposes of the Healthcare Identifiers Act 2010.

Section 10C – When an application is finally determined

New section 10C sets out the circumstances in which the following applications made by a healthcare provider organisation are finally determined:

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an application under section 41B (see item 5), for the System Operator to approve a period during which registration is not required for the healthcare provider organisation;

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an application to the System Operator under section 42, for registration of the healthcare provider organisation; and

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an application under 78B (see item 16), for the System Operator to approve a period during which the healthcare provider organisation is not required to share information with the My Health Record system.

An original decision made by the System Operator in respect of an application under sections 41B, 42 or 78B can be reconsidered by the System Operator, if a notice asking the System Operator to reconsider the original decision is given within the period mentioned in subsection 97(4) of the My Health Records Act.

Further, an application may also be made to the Administrative Review Tribunal within the period mentioned in section 18 of the Administrative Review Tribunal Act 2024, for review of the System Operator's reconsideration decision.

Item 5 – After Division 1 of Part 3

This item adds a new Division 1A after Division 1 of Part 3. Division 1A makes provision in respect of healthcare provider organisations that are required to be registered.

Section 41A – Prescribed healthcare provider organisations must be registered

Subsection 41A(1) provides that a prescribed healthcare provider organisation contravenes this subsection if the healthcare provider organisation is not a registered healthcare provider organisation and is not an approved registered repository operator.

A contravention of subsection 41A(1) may result in the imposition of a civil penalty of up to 250 penalty units. Each civil penalty provision in the My Health Records Act is enforceable under Part 4 of the Regulatory Powers (Standard Provisions) Act 2014 (Regulatory Powers Act) (see section 79 of the My Health Records Act).

Paragraph 41A(2)(a) provides that subsection 41A(1) does not apply during any period starting when the healthcare provider organisation applies to the System Operator under section 41B (for approval of a period during which registration is not required), or under section 42 (for registration), and ending when the application is finally determined.

Paragraph 41A(2)(b) provides that subsection 41A(1) does not apply during any period approved by the System Operator under section 41B, as a period during which registration is not required for the healthcare provider organisation.

The note to section 41A clarifies that a person who wishes to rely on subsection 41A(2) in proceedings for a civil penalty order bears an evidential burden in relation to the matters in that subsection: see section 96 of the Regulatory Powers Act due to the operation of standard provisions applying to civil penalties.

Section 41B – System Operator may approve a period during which registration is not required

Section 41B provides that the System Operator may approve a period during which registration is not required for a prescribed healthcare provider organisation.

Subsection 41B(1) provides that a healthcare provider organisation may apply to the System Operator to approve a period during which subsection 41A(1) does not apply to the healthcare provider organisation.

Subsection 41B(2) provides that the application must be in the approved form, and include or be accompanied by the information and documents required by the form, and be lodged at a place, or by a means, specified in the form. An approved form under section 41B will be determined by the System Operator in writing, in accordance with the definition of approved form in section 5 of the My Health Records Act. An approved form under section 41B is not a legislative instrument under item 6 of the table in section 6 of the Legislation (Exemptions and Other Matters) Regulation 2015.

Subsection 41B(3) provides that the System Operator may, by notice in writing, require the healthcare provider organisation to give the System Operator such further information in relation to the application as the System Operator requires, within the period specified in the notice. A notice under subsection 41B(3) is not a legislative instrument under item 17 of the table in section 6 of the Legislation (Exemptions and Other Matters) Regulation 2015.

Subsection 41B(4) provides that the System Operator is not required to decide the application, and may cease considering the application, if the healthcare provider organisation does not provide the required information within the period specified in the notice.

Subsection 41B(5) provides that on application under subsection 41B(1) the System Operator may, by written notice to a healthcare provider organisation, approve a period during which subsection 41A(1) does not apply to the healthcare provider organisation. The System Operator may also approve a period during which subsection 41A(1) does not apply on its own initiative, without the healthcare provider organisation making an application. The ability for the System Operator to approve a period on its own initiative is intended to ensure the System Operator can act responsively and streamline processes in appropriate cases. For example, if a healthcare provider organisation's My Health Record registration was suspended in response to a security issue, where the organisation was actively working to resolve the issue, the System Operator might approve a period during which the requirement under subsection 41A(1) would not apply to the organisation.

In deciding whether to approve the period, subsection 41B(6) provides that the System Operator must take into account the following:

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the healthcare provider organisation's size and technological readiness;

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the potential disruption (if any) to the provision of healthcare if the healthcare provider organisation is not a registered healthcare provider organisation;

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any other matter the System Operator considers relevant.

Subsection 41B(7) sets out that an approval under subsection 41B(5) is not a legislative instrument. This subsection is intended to assist readers, to clarify that a written notice from the System Operator to a healthcare provider organisation to approve a period during which registration is not required for a prescribed healthcare provider organisation is not a legislative instrument within the meaning of subsection 8(1) of the Legislation Act 2003.

Item 6 – Paragraph 43(b)

This item makes a grammatical amendment, by omitting the words "Rules; and" from paragraph 43(b), and substituting "Rules.". This grammatical amendment is required, given that paragraph 43(c) is repealed by Item 7.

Item 7 – Paragraph 43(c)

This item repeals paragraph 43(c), to remove the requirement that a healthcare provider organisation must agree to be bound by the conditions imposed by the System Operator on the registration, in order to be eligible for registration in the My Health Record system. This reflects that new section 41A makes is mandatory for prescribed healthcare organisations to be registered, and therefore their agreement to be bound by the conditions is no longer required. However, it will still be mandatory to comply with conditions of registration by virtue of new subsection 51(3A).

The effect of this item is that a healthcare provider organisation is eligible for registration if they have been assigned a healthcare identifier under paragraph 9(1)(a) of the Healthcare Identifiers Act 2010 (as per paragraph 43(a) of the My Health Records Act), and if they comply with such requirements as are specified in the My Health Records Rules (as per paragraph 43(b) of the My Health Records Act).

Item 8 – After subsection 51(3)

This item inserts new subsection 51(3A), after subsection 51(3).

New subsection 51(3A) provides that the System Operator may, in writing, decide to cancel or suspend the registration of a healthcare provider organisation if the System Operator is not satisfied that the healthcare provider organisation is able to comply with the conditions of their registration.

Item 9 – Subsection 51(5)

This item amends subsection 51(5), to insert "or (3A)" after "(3)", to reflect the insertion of subsection 51(3A) by item 8.

The effect of this item is that the System Operator may, in writing, decide to suspend the registration of an entity other than a healthcare recipient while the System Operator investigates whether to take action under subsection (3) or (3A) in relation to the entity's registration.

Item 10 – Paragraphs 53(1)(a) and (4)(a)

This item amends paragraphs 53(1)(a) and (4)(a), to insert "(3A)," after "(3)," in both paragraphs.

The effect of this item is that the System Operator must give written notice to a healthcare recipient or other entity before cancelling or suspending their registration under subsection 51(3A).

However, if it is necessary in urgent circumstances for the System Operator to cancel, suspend or vary the registration of a healthcare recipient or other entity without following the process of providing written notice beforehand, the System Operator must give written notice to the healthcare recipient or other entity that their registration is suspended or cancelled under subsection 51(3A).

Item 11 – After paragraph 54(a)

This item inserts new paragraph 54(ab), after paragraph 54(a).

The effect of new paragraph 54(ab) is that during any period when the registration of a registered healthcare provider organisation or registered repository operator is suspended, they are taken not to be registered for the purposes of paragraph (a) of the definition of 'approved registered repository operator' in section 5 and sections 10A, 41A, 78A, 78C and 78D. This means that they could be subject to a civil penalty under subsection 41A(1) if the System Operator does not approve a period during which the requirement in section 41A does not apply to the healthcare provider organisation.

Item 12 – After subparagraph 69(1)(b)(ii)

This item inserts new subparagraph 69(1)(b)(iia). The effect of this new subparagraph is that if a court or tribunal other than a coroner orders or directs the System Operator to disclose health information included in a healthcare recipient's My Health Record to the court or tribunal, and the order or direction is given in the course of proceedings relating to a share by default provision, the System Operator must comply with the order or direction.

Item 13 – At the end of Subdivision B of Division 2 of Part 4

This item inserts new section 70AA, which provides specific authorisations for the collection, use and disclosure of information to support monitoring, compliance and enforcement with the share by default provisions.

Section 70AA provides that subject to section 69 ('Disclosure to courts and tribunals'), the System Operator is authorised to collect, use and disclose information for the purposes of monitoring, investigating or enforcing compliance with a share by default provision, to the following persons:

•

the Chief Executive Medicare;

•

the Secretary of the Department;

•

a Commonwealth entity, if any, specified in the My Health Records Rules.

Subsection 70AA(3) provides that section 70AA covers health information that is included in a healthcare recipient's My Health Record and must be prescribed in the My Health Records Rules. By prescribing health information in the My Health Records Rules, it can be limited to only what is necessary for compliance purposes which will be refined through further consultation. While required information may evolve over time, the types of information to be shared is expected to be limited to:

•

record type / type of healthcare service or episode, for example, pathology test, diagnostic imaging scan, chronic disease management plan; and

•

date healthcare service was performed.

Test results or other sensitive contents of health records, will not be used or disclosed for compliance purposes.

Subsection 70AA(4) provides that this section does not authorise the System Operator to collect, use, or disclose healthcare recipient-only notes. These are notes uploaded by healthcare recipients to their own My Health Record.

Item 14 – At the end of Part 4

This item adds a new Division 5 at the end of Part 4. Division 5 makes provision in respect of the authorised collection, use and disclosure for compliance purposes.

73C – Collection, use and disclosure of health information in relation to compliance with share by default provisions

New section 73C provides that the following persons are authorised to collect, use and disclose, for the purposes of monitoring, investigating or enforcing compliance with a share by default provision, health information disclosed to the person under section 70AA (see item 13):

•

the Chief Executive Medicare;

•

the Secretary of the Department;

•

a Commonwealth entity, if any, specified in the My Health Records Rules for the purposes of paragraph 70AA(2)(c).

73D – Collection, use and disclosure of healthcare identifiers and identifying information in relation to compliance with share by default provisions

Subsection 73D(1) contains a table that specifies the kinds of entities that are authorised to collect, use or disclose particular information for the purposes of monitoring, investigating or enforcing compliance with a share by default provision (see item 3). Participants in the My Health Record System are defined in section 5 and include the System Operator, registered healthcare provider organisations, registered repository operators and registered contracted service providers.

The kinds of information that may be collected, used or disclosed under this section is 'identifying information' (as defined in section 9 of the My Health Records Act), and 'healthcare identifiers' (as defined in section 9 of the Healthcare Identifiers Act 2010). This information is required to be shared to ensure accurate data matching for monitoring, compliance and enforcement purposes. This information is already collected, used and disclosed for the purposes of the My Health Record system, excluding new compliance functions.

Item 15 – After section 76

This item inserts new section 76A into the My Health Records Act.

A contravention of section 76A may result in the imposition of a civil penalty of up to 1,500 penalty units. An organisation's failure to give notice of its ability to comply with conditions of registration is currently covered by the penalty in the existing section 76. Due to the amendment to section 43, new section 76A was added so the same penalty for the failure to notify the System Operator within 14 days of ceasing to be able to comply with the conditions of registration continues to apply.

Item 16 – At the end of Part 5

This item inserts new sections 78A, 78B, 78C and 78D into the My Health Records Act.

78A – Some information must be shared with the My Health Record system unless exception applies

New section 78A imposes an obligation on a prescribed healthcare organisation that is a registered healthcare provider organisation, or an approved registered repository operator, to share specified information with the My Health Record system, within a specified period.

Subsection 78A(1) provides that if healthcare of a kind specified in the My Health Records Rules for the healthcare provider organisation is provided to a healthcare recipient, the healthcare provider organisation must share to the My Health Record system, the information specified in the My Health Records Rules for the kind of healthcare. The information must be shared within the period specified in those Rules. A contravention of subsection 78A(1) may result in the imposition of a civil penalty of up to 30 penalty units.

Subsection 78A(2) provides that if a record of a kind specified in the My Health Records Rules for the healthcare provider organisation is created in relation to healthcare provided to a healthcare recipient, the healthcare provider organisation must share with the My Health Record system, the information specified in the My Health Records Rules for the kind of record. The information must be shared within the period specified in those Rules. A contravention of subsection 78A(2) may result in the imposition of a civil penalty of up to 30 penalty units.

Subsection 78A(3) sets out the exceptions to the civil penalties outlined in subsections 78A(1) and (2). Relevantly, subsections 78A(1) and (2) do not apply if:

•

an upload exception applies in relation to the healthcare provider organisation sharing the information with the My Health Record system under section 10B; or

•

another entity has shared the information with the My Health Record system; or

•

a law of a State or Territory prescribed by the regulations for the purposes of subsection 41(4) or subclause 9(3) of Schedule 1 prevents the healthcare provider organisation from sharing the information with the My Health Record system; or

•

the information is specified in the My Health Record Rules; or

•

the healthcare provider organisation is specified in the My Health Record Rules; or

•

the period within which the information is required to be shared with the My Health Record system ends:

o

during any upload suspension period determined under subsection 78A(4); or

o

during the period starting when the healthcare provider organisation applies to the System Operator under section 78B and ending when the application is finally determined (see section 10C of the My Health Records Act); or

o

during a period approved by the System Operator under section 78B in relation to the healthcare provider organisation; or

o

during the period starting when the healthcare provider organisation applies to the System Operator under section 19AE of the Health Insurance Act (see item 26) and ending when the application is resolved (within the meaning of the Health Insurance Act); or

o

during a period approved by the System Operator under section 19AE of the Health Insurance Act in relation to the healthcare provider organisation.

Note 1 to subsection 78A(3) refers readers to section 10B which sets out when an upload exception applies.

Note 2 to subsection 78A(3) clarifies that a person who wishes to rely on subsection 78A(3) in proceedings for a civil penalty order bears an evidential burden in relation to the matters in that subsection: see section 96 of the Regulatory Powers Act.

Subsection 78A(4) provides that the Secretary of the Department may, by legislative instrument, determine that a period is an upload suspension period. During this period no healthcare provider organisations will have to share information with the My Health Record system in accordance with section 78A.

Subsection 78A(5) provides that the My Health Records Rules made for the purposes of subsections 78A(1) and (2) may specify different periods for different healthcare provider organisations or different kinds of healthcare or record. This provision is not intended to limit section 78A or subsection 33(3A) of the Acts Interpretation Act 1901.

78B – System Operator may approve a period during which sharing with the My Health Record system is not required

New section 78B provides that the System Operator may approve a period during which sharing with the My Health Record system is not required by a prescribed healthcare provider organisation.

Subsection 78B(1) provides that the healthcare provider organisation may apply to the System Operator to approve a period during which the healthcare provider organisation is not required to share information with the My Health Record system. Subsection 78B(2) provides that the application must be in the approved form, and include or be accompanied by the information and documents required by the form, and be lodged at a place, or by a means, specified in the form. The approved form will be determined by the System Operator in writing in accordance with the definition in section 5. This is not a legislative instrument, according to item 6 of the table in section 6 of the Legislation (Exemptions and Other Matters) Regulation 2015.

Subsection 78B(3) enables the System Operator to require, by notice in writing, the healthcare provider organisation to give the System Operator such further information in relation to the application as the System Operator requires, within the period specified in the notice. A notice under section 78B is not a legislative instrument under item 17 of the table in section 6 of the Legislation (Exemptions and Other Matters) Regulations 2015.

Subsection 78B(4) provides that the System Operator is not required to decide the application, and may cease considering the application, if the healthcare provider organisation does not provide the required information within the period specified in the notice.

Subsection 78B(5) enables the System Operator to approve, by written notice, a period during which the healthcare provider organisation is not required to share information with the My Health Record system. The System Operator may approve the period on their own initiative, or on the basis of an application under subsection 78B(1). The ability for the System Operator to approve a period on its own initiative is intended to ensure the System Operator can act responsively and streamline processes in appropriate cases. For example, if a healthcare provider organisation's My Health Record registration was suspended in response to a security issue, where the organisation was actively working to resolve the issue, the System Operator might approve a period during which the requirement under subsection 78A would not apply to the organisation.

In deciding whether to approve the period, subsection 78B(6) provides that the System Operator must take into account the following:

•

the healthcare provider organisation's size and technological readiness;

•

the potential disruption, if any, to the provision of healthcare if the healthcare provider organisation does not share information with the My Health Record system;

•

any other matter the System Operator considers relevant.

Subsection 78B(7) sets out that an approval under subsection 78B(5) is not a legislative instrument. This subsection is intended to assist readers, to clarify that a notice under section 78B is not a legislative instrument within the meaning of subsection 8(1) of the Legislation Act 2003.

78C – Record keeping requirements in relation to sharing information with the My Health Record system

New section 78C requires, in certain circumstances, a prescribed healthcare provider organisation that is a registered healthcare provider organisation or an approved registered repository operator to keep evidence that an upload exception applied for a period of 2 years starting on the date the healthcare is provided.

Subsection 78C(1) provides that if:

•

either:

•

healthcare of a kind specified in the My Health Records Rules for the purposes of subsection 78A(1) for the healthcare provider organisation is provided to a healthcare recipient; or

•

a record of a kind specified in the My Health Records Rules for the purposes of subsection 78A(2) for the healthcare provider organisation is created in relation to healthcare provided to a healthcare recipient; and

•

an upload exception applies in relation to the healthcare provider organisation sharing information about the healthcare with the My Health Record system (see section 10B of the My Health Records Act);

the healthcare provider organisation must keep evidence that an upload exception applied for a period of 2 years starting on the date the healthcare is provided, that meets the requirements, if any, specified in the My Health Records Rules. The Rules will enable further specifics about the evidence required to be detailed where it may be necessary for clarity and consistency.

A contravention of subsection 78C(1) may result in the imposition of a civil penalty of up to 10 penalty units.

Subsection 78C(2) provides that subsection 78C(1) does not apply if the healthcare provider organisation has a reasonable excuse. A reasonable excuse may be that the organisation's records were destroyed due to circumstances beyond their control.

The note to subsection 78C(2) clarifies that a person who wishes to rely on subsection 78C(2) in proceedings for a civil penalty order bears an evidential burden in relation to the matters in that subsection: see section 96 of the Regulatory Powers Act.

Subsection 78C(3) enables the System Operator or the Secretary of the Department to require, by written notice, the healthcare provider organisation to produce evidence kept by them under subsection 78C(1), to the System Operator or the Secretary of the Department. The evidence must be produced within the period and in the manner specified in the notice. A notice under section 78C is not a legislative instrument under item 17 of the table in section 6 of the Legislation (Exemptions and Other Matters) Regulations 2015.

Subsection 78C(4) provides that a healthcare provider organisation must comply with a requirement under subsection 78C(3). A contravention of subsection 78C(4) may result in the imposition of a civil penalty of up to 10 penalty units.

Subsection 78C(5) provides that the System Operator or the Secretary of the Department may make and retain copies of, or take and retain extracts from, any evidence produced under section 78C. Further, they may take and retain for as long as is necessary, possession of evidence produced under section 78C (see subsection 78C(6)).

Subsection 78C(7) provides that the person otherwise entitled to possession of the evidence is entitled to be supplied, as soon as practicable, with a copy certified by the System Operator or the Secretary of the Department to be a true copy. Subsection 78C(8) provides that the certified copy must be received in all courts and tribunals as evidence as if it were the original. Until a certified copy is supplied, the System Operator or the Secretary of the Department must permit the person otherwise entitled to possession of the evidence, or a person authorised by that person, to inspect and make copies of, or take extracts from, the evidence at such times and places as the System Operator or the Secretary of the Department thinks appropriate (subsection 78C(9)).

78D – Prescribed healthcare provider organisations must display notice when not sharing information with the My Health Record system

New section 78D sets out that where a prescribed healthcare provider organisation is not currently sharing information with the My Health Record system, they must display a notice to this effect, in a prominent place visible to the public.

Subsection 78D(1) provides that a prescribed healthcare provider organisation must display a notice, in accordance with subsection 78D(2), during the following periods:

•

a period for which the healthcare provider organisation is not a registered healthcare provider organisation and is not an approved registered repository operator;

•

a period starting when the healthcare provider organisation applies to the System Operator under section 78B and ending when the application is finally determined (see section 10C of the My Health Records Act);

•

a period approved by the System Operator under section 78B in relation to the healthcare provider organisation;

•

a period starting when the healthcare provider organisation applies to the System Operator under section 19AE of the Health Insurance Act and ending when the application is resolved (within the meaning of the Health Insurance Act);

•

a period approved by the System Operator under section 19AE of the Health Insurance Act in relation to the healthcare provider organisation.

A contravention of subsection 78D(1) may result in the imposition of a civil penalty of up to 10 penalty units.

Subsection 78D(2) provides that the notice must:

•

indicate that the healthcare provider organisation is not currently sharing information with the My Health Record system; and

•

if the healthcare provider organisation is not a registered healthcare provider organisation, and is not an approved registered repository operator – indicate that medicare benefits will not be payable in respect of healthcare covered by subsection 78D(3); and

•

be displayed in a prominent place:

•

at each of the healthcare provider organisation's premises where healthcare is provided; and

•

on the healthcare provider organisation's website; and

•

on any online facility used by the healthcare provider organisation to allow healthcare recipients to arrange bookings for healthcare.

Subsection 78D(3) provides that each of the following is healthcare for the purposes of subsection 78D(2):

•

healthcare of a kind, if any, specified for the purposes of subsection 78A(1) for the healthcare provider organisation; and

•

healthcare to which records of a kind, if any, specified for the purposes of subsection 78A(2) for the healthcare provider organisation relate.

New section 78D is intended to ensure that healthcare recipients will be made aware if information about the health service they are receiving will not be shared to their My Health Record.

Item 17 – Subsection 79(2)

This item repeals subsection 79(2) of the My Health Records Act, and substitutes new subsections 79(2), (2A) and (2B).

New subsection 79(2) provides that, for the purposes of Part 4 of the Regulatory Powers Act, the Information Commissioner and the Secretary of the Department are authorised applicants in respect of the civil penalty provisions mentioned in the table in subsection 79(2). Part 4 of the Regulatory Powers Act creates a framework that allows a civil penalty provision (defined in subsection 79(2) of that Act) to be enforced by obtaining an order for a person to pay a pecuniary penalty for the contravention of a provision. Another Act (a 'triggering Act') must make a civil penalty provision enforceable under Part 4 of the Regulatory Powers Act, in order for the Part to operate.

Civil penalty provisions may be enforced by an authorised applicant under Part 4 of the Regulatory Powers Act.

Under current subsection 79(2) of the My Health Records Act, for the purposes of Part 4 of the Regulatory Powers Act, the Information Commissioner is an authorised applicant in relation to the civil penalty provisions of this Act. This amendment adds the Secretary of the Department as the authorised applicant for the new civil penalty provisions in this Bill.

Subsection 79(2A) enables the Secretary of the Department to delegate, in writing, their powers and functions under Part 4 of the Regulatory Powers Act in relation to the civil penalty provisions mentioned in the table in subsection 79(2) to an SES employee, or acting SES employee, in the Department.

Subsection 79(2B) provides that a person exercising powers or performing functions under a delegation under subsection 79(2A) must comply with any directions of the Secretary of the Department. A delegation under subsection 79(2A) (including any directions under subsection 79(2B)) is not a legislative instrument under item 1 of the table in subsection 6(1) of the Legislation (Exemptions and Other Matters) Regulation 2015.

Item 18 – After Division 1 of Part 6

This item inserts new Division 1A, after Division 1 of Part 6.

New Division 1A of Part 6 consists of new section 79A, which provides that certain provisions are subject to an infringement notice under Part 5 of the Regulatory Powers Act.

Part 5 of the Regulatory Powers Act creates a framework for the use of infringement notices. It provides that another Act (a triggering Act) must make a provision subject to an infringement notice under this Part, in order for the Part to operate. An infringement officer may issue an infringement notice under Part 5 of the Regulatory Powers Act.

An infringement notice is a notice of a pecuniary penalty imposed on a person by statute, setting out particulars of an alleged contravention of a law. It gives the person to whom the notice is issued the option of either paying the penalty set out in the notice to expiate the civil penalty contravention or electing to contest the alleged contravention. The notice also specifies the time and method for payment and the consequences if the person to whom the notice is issued fails to respond to the notice.

79A Infringement notices

Subsection 79A(1) provides that the following provisions are subject to an infringement notice under Part 5 of the Regulatory Powers Act: subsections 41A(1), 78C(4) and 78D(1). The note to subsection 79A(1) alerts the reader to the fact that Part 5 of the Regulatory Powers Act creates a framework for using infringement notices in relation to provisions.

Subsection 79A(2) provides that for the purposes of Part 5 of the Regulatory Powers Act, an SES employee, or acting SES employee, in the Department authorised, in writing, by the Secretary of the Department for the purposes of this subsection is an infringement officer in relation to the provisions mentioned in subsection 79A(1). An authorisation under subsection 79A(2) is not a legislative instrument under item 8 of the table in subsection 6(1) of the Legislation (Exemptions and Other Matters) Regulations 2015.

Subsection 79A(3) provides that for the purposes of Part 5 of the Regulatory Powers Act, the Secretary of the Department is the relevant chief executive in relation to the provisions mentioned in subsection 79A(1).

Subsection 79A(4) enables the relevant chief executive to delegate, in writing, their powers and functions under Part 5 of the Regulatory Powers Act in relation to the provisions mentioned in subsection 79A(1) to an SES employee, or acting SES employee, in the Department. In performing powers or functions under a delegation under subsection 79A(4), a person must comply with any directions of the relevant chief executive (see subsection79A(5)). A delegation made under subsection 79A(4) and any direction under subsection 79A(5) is not a legislative instrument under item 1 of the table in subsection 6(1) of the Legislation (Exemptions and Other Matters) Regulations 2015.

Subsection 79A(6) provides that Part 5 of the Regulatory Powers Act, as that Part applies in relation to the provisions mentioned in subsection 79A(1), extends to every external Territory.

Item 19 – At the end of subsection 80(2)

This item adds the wording "; (c) the Secretary of the Department" at the end of subsection 80(2) of the My Health Records Act. The effect of this item is that the Secretary of the Department, for the purposes of Part 6 of the Regulatory Powers Act, is an authorised person in respect of the provisions of the My Health Records Act.

Part 6 of the Regulatory Powers Act creates a framework for accepting and enforcing undertakings relating to compliance with offence provisions and civil penalty provisions. Another Act (a 'triggering Act') must be made enforceable under Part 6 of the Regulatory Powers Act, in order for the Part to operate. An authorised person may accept an undertaking relating to compliance with a provision that is enforceable under Part 6 of the Regulatory Powers Act. Undertakings commit a person to a certain action or inaction, to prevent or respond to a contravention of an enforceable provision. The undertaking may be enforced in a relevant court.

Item 20 – At the end of subsection 81(2)

This item adds the wording "; (c) the Secretary of the Department" at the end of subsection 81(2) of the My Health Records Act. The effect of this item is that the Secretary of the Department, for the purposes of Part 7 of the Regulatory Powers Act, is an authorised person in respect of the provisions of the My Health Records Act.

Part 7 of the Regulatory Powers Act creates a framework for using injunctions to enforce provisions (generally civil penalty provisions). Another Act (a triggering Act) must make a provision enforceable under Part 7 of the Regulatory Powers Act, in order for the Part to operate. An authorised person may apply for an injunction under Part 7 of the Regulatory Powers Act. Injunctions can be used to restrain a person from contravening a provision enforceable under Part 7 of the Regulatory Powers Act, or alternatively to compel compliance with such a provision.

Item 21 – At the end of paragraph 97(1)(b)

This item inserts new paragraph 97(1)(ba), which adds the wording "(ba) a decision under section 41B to refuse an application to approve a period;" after paragraph 97(1)(b) of the My Health Records Act.

Section 97 of the My Health Records Act sets out the decisions made by the System Operator in respect of which an affected person may apply to the System Operator for reconsideration of the decision. If the affected person is not satisfied with the outcome of the reconsideration, they may apply to the Administrative Review Tribunal for review of the reconsideration.

The Administrative Review Tribunal provides independent merits review of administrative decisions, which involves considering afresh the facts, law and policy relating to that decision. The Tribunal has the power to agree with the original decision, to change it, or to make a new decision.

The effect of this item is that the System Operator's decision under section 41B to refuse an application to approve a period during which subsection 41A(1) does not apply to the healthcare provider organisation is subject to the review processes set out in section 97 of the My Health Records Act.

Item 22 – Paragraph 97(1)(c)

This item makes a minor correction to this paragraph, by omitting the word "health" and substituting "healthcare" from paragraph 97(1)(c) of the My Health Records Act.

Item 23 – At the end of subsection 97(1)

This item adds the wording "; (j) a decision under section 78B to refuse an application to approve a period" at the end of subsection 97(1) of the My Health Records Act.

The effect of this item is that the System Operator's decision under section 78B to refuse an application to approve a period during which the healthcare provider organisation is not required to share information with the My Health Record system is subject to the review processes set out under section 97 of the My Health Records Act.

Item 24 – Application provisions

An application provision sets out situations or timeframes in which a law applies or does not apply.

This item sets out the following application provisions for the purposes of the Bill:

•

the amendments to section 43 of the My Health Records Act apply in relation to any application made after the commencement of this item;

•

the amendments to sections 51, 53 and 54 of the My Health Records Act apply in relation to any registration of a healthcare recipient or other entity that is in effect after the commencement of this item;

•

sections 70AA and 73C of the My Health Records Act, apply in relation to health information created after the commencement of this item;

•

section 76A of the My Health Records Act applies in relation to any registration of a healthcare provider organisation that is in effect after the commencement of this item;

•

section 78A of the My Health Records Act applies in relation to any information created after the commencement of this item;

the amendments to section 79 of the My Health Records Act apply in relation to any application under section 82 of the Regulatory Powers Act in relation to a civil penalty provision of the My Health Records Act made after the commencement of this item.

Part 2—Medicare benefits

Division 1—Amendments

Health Insurance Act 1973

Overview

Part 2 of Schedule 1 will amend the Health Insurance Act to provide that medicare benefits will no longer be payable for prescribed healthcare services, unless required information is shared to the My Health Record system. This condition is subject to the same exceptions as in the My Health Records Act.

In many cases, medicare benefits are claimed at the time the health service is delivered, for example when a scan is performed, and the required information won't be able to be uploaded until later after the report is prepared. The amendments provide that healthcare providers will be able to continue to claim medicare benefits, which will be paid as advance payments, subject to the required information being uploaded in the prescribed time period.

If a healthcare provider or their associated healthcare provider organisation have not uploaded the required information within the prescribed timeframe and are unable to provide any evidence of an upload exception applying, the amendments will apply such that the payment will become a debt recoverable by the Commonwealth. Medicare benefits that are recoverable, will be able to be pursued as a debt or be off set against future amounts payable to the healthcare provider. The decision to raise a debt will be subject to notice and review processes similar to those which currently exist for medicare debts under the Health Insurance Act.

Parallel record keeping requirements will apply as under the My Health Records Act, requiring practitioners to keep records of any upload exceptions that may apply when the required information is not uploaded, or ensure that someone else keeps them.

Practitioners may also apply for extensions under the Health Insurance Act, mirroring the process that will apply under the My Health Records Act, under which the My Health Record System Operator may approve periods when sharing information to the My Health Record system is not required. Under these processes, individual healthcare providers may rely on extensions sought by healthcare provider organisations that they are associated with.

Item 25 – Subsection 3(1)

This item inserts the following definitions into subsection 3(1) of the Health Insurance Act:

associate, of a person in relation to a professional service, is defined in subsection 19AD(4) (see Item 26).

authorised representative has the same meaning as in the My Health Records Act.

My Health Record system is defined as having the same meaning as in the My Health Records Act.

My Health Record System Operator is defined to mean the System Operator within the meaning of the My Health Records Act.

nominated representative has the same meaning as in the My Health Records Act.

resolved, in relation to an application under section 19AE, is defined in subsections 19AE(10) and (11) (see item 26).

shares with the My Health Record system is defined as having the same meaning as in the My Health Records Act (see section 10A of the My Health Records Act).

upload exception applies is defined in subsection 19AD(3) (see item 26).

upload rules is defined in section 19AI (see item 26).

Item 26 – After section 19AC

This item inserts new sections 19AD, 19AE, 19AF, 19AG, 19AH and 19AI.

19AD – My Health Record—medicare benefits not payable in respect of certain professional services

Subsection 19AD(1) provides that a medicare benefit is not payable in respect of a professional service specified in the upload rules, rendered by or on behalf of a person specified for the service in the upload rules, unless the person shares with the My Health Record system within the period specified in the upload rules, the information specified in the upload rules for the service.

The circumstances in which subsection 19AD(1) does not apply are as follows (see subsection 19AD(2)):

•

an upload exception, as defined in subsection 19AD(3), applies to the person sharing the information with the My Health Record system; or

•

the information specified in the upload rules has been shared with the My Health Record system by another entity (as defined in section 5 of the My Health Records Act);

•

a State or Territory law prescribed by regulations for the purposes of subsection 41(4) of, or subclause 9(3) of Schedule 1 to, the My Health Records Act prevents the person or any associate of the person for the service from sharing the information with the My Health Record system; or

•

the information is specified in My Health Records Rules made for the purposes of paragraph 78A(3)(d) of the My Health Records Act;

•

the person or an associate of the person for the service is specified in My Health Records Rules made for the purposes of paragraph 78A(3)(e) of the My Health Records Act; or

•

the end of the period specified in the upload rules for the purposes of 19AD(1) occurs:

o

during the period starting when the person or an associate of the person for the service applies to the My Health Record System Operator for an extension under section 19AE and ending when the application is resolved (as defined in subsection 3(1)); or

o

during the extension period approved by the My Health Record System Operator under section 19AE in relation to the person or an associate of the person for the service; or

o

during any upload suspension period determined under subsection 78A(4) of the My Health Records Act; or

o

during the period starting when the person or an associate of the person for the service applies to the My Health Record System Operator under section 41B, 42 or 78B of the My Health Records Act and ending when the application is finally determined (as defined in section 10C of the My Health Records Act); or

o

during a period approved by the My Health Record System Operator under section 41B or 78B of the My Health Records Act in relation to the person or an associate of the person for the service.

Subsection 19AD(3) sets out when an upload exception applies to a person sharing information with the My Health Record system, about a professional service rendered to an individual.

Relevantly, an upload exception applies if:

•

the individual is not a registered healthcare recipient within the meaning of the My Health Records Act; or

•

the individual, their authorised or nominated representative has advised the person or an associate of the person for the service, or the person or an associate of the person for the service has otherwise been informed that the individual, or their authorised or nominated representative has advised, that the information must not be uploaded to the My Health Record system; or

•

an individual healthcare provider (as defined in section 5 of the My Health Records Act) reasonably believes that the information should not be shared with the My Health Record system because of a serious concern for the health, safety or wellbeing of the individual; or

•

the information cannot be shared with the My Health Record system due to circumstances beyond the reasonable control of the person and any associate of the person for the service.

For clarity, subsection 19AD(3) does not override State or Territory law.

Subsection 19AD(4) sets out the circumstances in which a healthcare provider organisation is an associate of a person in relation to a professional service:

•

the person renders the service as an employee of the healthcare provider organisation;

•

another person, as an employee of the healthcare provider organisation, renders the service on behalf of the person;

•

the healthcare provider organisation provides support services or facilities to facilitate the rendering of the service by or on behalf of the person;

•

the circumstances (if any) specified in the upload rules.

For the purposes of subsection 19AD(4), 'healthcare provider organisation' and 'employee' have the same meaning as in the My Health Records Act. To note, an 'employee' of an entity is defined in section 5 of the My Health Records Act to include an individual who provides services for the entity under a contract for services, and an individual whose services are made available to the entity (and includes services made available free of charge).

Subsection 19AD(5) provides that the upload rules made for the purposes of subsection 19AD(1) may specify different periods for different professional services or different kinds of persons. This provision is not intended to limit the operation of section 19AD or subsection 33(3A) of the Acts Interpretation Act 1901.

19AE – My Health Record—approval of period during which sharing with the My Health Record system is not required

New section 19AE establishes a formal process for the My Health Record System Operator to approve a period during which an entity is not required to share information with the My Health Record system.

Subsection 19AE(1) provides that section 19AE applies to the following entities:

•

a person who renders a professional service in the upload rules for the purposes of subsection 19AD(1); or

•

a person on whose behalf a professional service specified in the upload rules for the purposes of subsection 19AD(1) is rendered; or

•

an associate of a person in relation to a professional service specified in the upload rules for the purposes of subsection 19AD(1).

Subsection 19AE(2) provides that an entity listed in subsection 19AE(1) may apply to the My Health Record System Operator to approve a period during which the entity is not required to share information with the My Health Record system.

Subsection 19AE(3) provides that the application must be in the approved form, and include or be accompanied by the information and documents required by the form, and be lodged at a place, or by a means, specified in the form. The note to subsection 19AE(3) explains for readers that the My Health Record System Operator may approve the same form, and use the same process, for the purposes of this section and section 78B of the My Health Records Act. The approved form will be determined by the System Operator in writing. An approval of a form for the purposes of subsection 19AE(3) is not a legislative instrument under item 6 of the table in section 6 of the Legislation (Exemptions and Other Matters) Regulation 2015.

Subsection 19AE(4) enables the My Health Record System Operator to require the entity provide such further information as the My Health Record System Operator requires, in relation to the application submitted under subsection 19AE(2). The request must be by notice in writing and specify the period for the entity to provide such further information. A notice under subsection 19AE(4) is not a legislative instrument under item 17 of the table in section 6 of the Legislation (Exemptions and Other Matters) Regulation 2015.

Subsection 19AE(5) provides that the My Health Record System Operator may cease considering an application received under subsection 19AE(2) if an entity does not provide the required information within the period specified in the notice.

Subsection 19AE(6) provides that the My Health Record System Operator may approve a period during which an entity subject to subsection 19AD(1) is not required to share information with the My Health Record system. The My Health Record System Operator may approve the period on their own initiative, or on the basis of an application under subsection 19AE(2). The ability for the System Operator to approve a period on its own initiative is intended to ensure the System Operator can act responsively and streamline processes in appropriate cases. For example if an organisation's My Health Record registration was suspended in response to a security issue, where the organisation was actively working to resolve the issue, the System Operator might approve a period during which the requirement under subsection 19AD(1) to share information with the My Health Record system would not apply.

Subsection 19AE(7) outlines the considerations that the My Health Record System Operator must have regard to when deciding whether to approve an application under subsection 19AE(2). These considerations include:

•

an entity's size and technological readiness;

•

the potential disruption (if any) to the provision of healthcare if the entity does not share information with the My Health Record system;

•

any other matter the My Health Record System Operator considers relevant.

Subsection 19AE(8) is included to assist readers, by clarifying that an approval by the My Health Record System Operator under subsection 19AE(6) is not a legislative instrument within the meaning of subsection 8(1) of the Legislation Act 2003.

Subsection 19AE(9) provides that section 97 of the My Health Records Act applies in relation to a decision under section 19AE to refuse an application to approve a period.

Section 97 of the My Health Records Act sets out the decisions made by the System Operator in respect of which an affected person may apply to the System Operator for reconsideration of the decision. If the affected person is not satisfied with the outcome of the reconsideration, they may apply to the Administrative Review Tribunal for review of the reconsideration.

The effect of subsection 19AE(9) is that the My Health Record System Operator's decision to refuse an application under subsection 19AE is subject to the review processes set out under section 97 of the My Health Records Act.

Subsection 19AE(10) sets out the circumstances in which an application made by an entity under section 19AE, for approval of a period during which sharing with the My Health Record system is not required, is resolved.

An original decision made by the System Operator in respect of an application under section 19AE can be reconsidered by the System Operator, if a notice asking the System Operator to reconsider the original decision is given within the period mentioned in subsection 97(4) of the My Health Records Act.

Further, an application may also be made to the Administrative Review Tribunal within the period mentioned in section 18 of the Administrative Review Tribunal Act 2024, for review of the System Operator's reconsideration decision.

Subsection 19AE(11) clarifies that an application made under section 19AE is resolved when the My Health Record System Operator ceases to consider the application under subsection 19AE(5).

19AF – My Health Record—record keeping requirement

New section 19AF sets out the requirement for certain persons to retain records of an upload exception in circumstances where, but for the upload exception, a medicare benefit would not be payable. New section 19AF also outlines in what circumstances certain persons must produce evidence of the upload exception, and procedural requirements around the handling of this evidence.

For clarity, any reference to "Departmental employee" in section 19AF has the same meaning as in section 3 of the Human Services (Medicare) Act 1973.

Subsection 19AF(1) applies if:

•

medicare benefit is payable in respect of a professional service specified in the upload rules for the purposes of subsection 19AD(1); and

•

medicare benefit would not have been payable in respect of the service if an upload exception had not applied.

Subsection 19AF(1) imposes an obligation on the person by or on whose behalf a prescribed professional service was rendered to keep, or ensure another person keeps, evidence that an upload exception applied that meets the requirements (if any) specified in the upload rules. The Rules will enable further specifics about the evidence required to be detailed where it may be necessary for clarity and consistency.

The evidence must be kept for a period of 2 years, starting on the day the relevant service was rendered.

If subsection 19AF(1) is contravened, then the Chief Executive Medicare may apply to the Federal Court of Australia under section 125A(1) for an order that the wrongdoer pay the Commonwealth a pecuniary (i.e., monetary) penalty of up to 10 penalty units. "Penalty unit" has the meaning given by section 4AA of the Crimes Act 1914.

The framing of the requirement under subsection 19AF(1) recognises that a rendering practitioner may not always possess or otherwise have control of records of exceptions.

Subsection 19AF(2) clarifies that subsection 19AF(1) does not apply if the person has a reasonable excuse. A reasonable excuse may be that the organisation's records were destroyed due to circumstances beyond their control.

The note to subsection 19AF(2) clarifies that a person who wishes to rely on subsection 19AF(2) in civil proceedings for a civil penalty order bears an evidential burden in relation to the matters in that subsection (see section 130H).

Subsection 19AF(3) provides that if the Chief Executive Medicare reasonably believes that a person has possession, custody or control of evidence that an upload exception applied in relation to a professional service (see subsection 19AF(1)), then the Chief Executive Medicare may, by written notice, require the person to produce the evidence to the Chief Executive Medicare or a Departmental employee. The evidence must be produced within the period and in the manner specified in the notice.

A notice issued under subsection 19AF(3) is not a legislative instrument under item 17 of the table in section 6 of the Legislation (Exemptions and Other Matters) Regulation 2015.

Subsection 19AF(4) clarifies that the requirement to produce evidence does not apply to:

•

the person in respect of whom the professional service was rendered; or

•

the person who incurred the medical expenses in respect of the service.

This clarification confirms that the healthcare recipient who received the service, or someone who paid for healthcare recipient's medical expenses related to the service, is not required to produce evidence under this provision.

Subsection 19AF(5) provides that a person who receives a notice issued by the Chief Executive Medicare under subsection 19AF(3) must comply with the requirements in the notice.

If subsection 19AF(5) is contravened, then the Chief Executive Medicare may apply to the Federal Court of Australia under subsection 125A(1) for an order that the wrongdoer pay the Commonwealth a pecuniary (i.e., monetary) penalty of up to 10 penalty units. "Penalty unit" has the meaning given by section 4AA of the Crimes Act 1914.

Subsection 19AF(6) provides that the Chief Executive Medicare or a Departmental employee may make and retain copies of, or take and retain extracts from, any evidence produced under section 19AF.

Subsection 19AF(7) provides that the Chief Executive Medicare or a Departmental employee may take, and retain for as long as is necessary, possession of evidence produced under section 19AF.

Subsection 19AF(8) provides that the person otherwise entitled to possession of the evidence is entitled to be supplied, as soon as practicable, with a copy certified by the Chief Executive Medicare or a Departmental employee to be a true copy.

Subsection 19AF(9) provides that a certified copy supplied by the Chief Executive Medicare under subsection 19AF(8) must be received in all courts and tribunals as evidence as if it were the original.

Subsection 19AF(10) provides that until a certified copy is supplied under subsection 19AF(8), the Chief Executive Medicare or Departmental employee must, at such times and places as the Chief Executive Medicare or employee thinks appropriate, permit the person otherwise entitled to possession of the evidence, or a person authorised by that person, to inspect and make copies of, or take extracts from, the evidence.

A notice issued under section 19AF does not preclude a notice being issued under section 129AAD of the Health Insurance Act in relation to the same health service.

19AG – My Health Record—advance payment before information is shared with the My Health Record system

New section 19AG enables a payment for a professional service to be made in certain circumstances, before information specified in the upload rules is shared with the My Health Record system.

The purpose of this section is to support current claiming practices where medicare benefits are claimed at the time the health service is delivered, for example when a scan is performed, and the required information will not be able to be uploaded until later when the report or other relevant information is prepared. The amendments provide that healthcare providers will be able to continue to claim medicare benefits, which will be paid as advance payments. This will prevent delays in payment to healthcare recipients, that would otherwise be caused by new section 19AD.

Subsection 19AG(1) provides that a payment, on account of an amount that would be payable under section 10 but for the operation of section 19AD, may be made, subject to any terms and conditions determined under subsection 19AG(2).

In the event that a medicare benefit ultimately does not become payable due to non-compliance with 19AD, a payment made under this section is recoverable from the person who rendered the service (or on whose behalf the service was rendered), as a debt to the Commonwealth (see section 19AH).

Subsection 19AG(2) provides that the Secretary of the Department may, by legislative instrument, determine terms and conditions for making advances on account of amounts that would be payable but for section 19AD.

Subsection 19AG(3) clarifies that a payment on account of an amount that would be payable but for section 19AD is to be made to the person to whom the amount would be paid if it were payable.

For clarity, the payment may be made to the person by whom, or on whose behalf, the professional service is or will be rendered if the assignor (for the purposes of section 20A) has made a valid assignment.

Subsection 19AG(4) provides that the making of a payment under section 19AG on account of an amount that would be payable but for section 19AD satisfies any requirement for the Chief Executive Medicare on behalf of the Commonwealth to pay the amount.

19AH – My Health Record—recovery of payments

New section 19AH makes provision for the recovery of payments in certain circumstances.

Subsection 19AH(1) specifies that section 19AH applies to the following types of payments:

•

an amount paid under section 19AG on account of an amount that would but for section 19AD be payable under section 10 in respect of a professional service rendered by or on behalf of a person (the service provider); and

•

an amount of medicare benefit paid in respect of a professional service specified in the upload rules for the purposes of subsection 19AD(1) rendered by or on behalf of a person (the service provider) specified for the service in the upload rules for the purposes of that subsection.

Subsection 19AH(2) clarifies that subsections 19AH(3), 19AH(4), 19AH(5), 19AH(7) and 19AH(9) apply irrespective of whether the relevant amount (as defined in subsection 19AH(1)) was paid to the service provider or to another person.

Subsection 19AH(3) provides that if, at the end of the period specified in the upload rules for the purposes of subsection 19AD(1), a medicare benefit is not payable in respect of the professional service under section 19AD, then:

•

an amount equal to the relevant amount is recoverable as a debt due to the Commonwealth; and

•

the amount is recoverable from the service provider or from the estate of the service provider.

Subsection 19AH(4) provides that if:

•

the service provider is required, by a notice given under subsection 19AF(3) to produce evidence that an upload exception applied; and

•

the service provider does not produce the evidence within the period specified in the notice,

then an amount equal to the relevant amount (as defined in subsection 19AH(1)) is recoverable as a debt due to the Commonwealth from the service provider or from the estate of the service provider.

Subsection 19AH(5) provides that subsection 19AH(4) does not apply if the service provider satisfies the Chief Executive Medicare that the service provider's non-compliance is due to circumstances beyond the service provider's control. This might be that the service provider has done everything within their power to ensure that an upload occurs and the non-compliance was due to a technical or other failure outside of their sphere of influence.

Subsection 19AH(6) provides that if:

•

the service provider is required, by a notice given under subsection 19AF(3), to produce evidence in relation to the professional service; and

•

the service provider complies with the requirement within the period set out in the notice; and

•

the evidence produced does not properly substantiate (wholly or partly) that the relevant amount is payable in accordance with section 19AD,

then, to the extent that the relevant amount is not properly substantiated, that amount is recoverable as a debt due to the Commonwealth from the service provider or from the estate of the service provider.

Subsection 19AH(7) sets out that subsection 19AH(6) does not apply if the service provider satisfies the Chief Executive Medicare that the reason that the evidence produced does not properly substantiate that the relevant amount is payable in accordance with section 19AD is due to circumstances beyond the service provider's control. This might be that the service provider has done everything within their power to ensure that an upload occurs and the non-compliance was due to a technical or other failure outside of their sphere of influence. For example, the evidence was lost or damaged through no fault of their own.

Subsection 19AH(8) provides that if:

•

a person (the notice recipient) other than the service provider is required, by a notice given under subsection 19AF(3), to produce evidence in relation to the professional service; and

•

the notice recipient complied with the requirement within the period specified in the notice; and

•

the evidence produced does not properly substantiate (wholly or partly) that the relevant amount is payable in accordance with section 19AD (i.e., does not properly substantiate that an upload exception applied),

then, to the extent that the relevant amount is not properly substantiated, that amount is recoverable as a debt due to the Commonwealth from the service provider or from the estate of the service provider.

Subsection 19AH(9) sets out that subsection 19AH(8) does not apply if the service provider satisfies the Chief Executive Medicare that the reason that the evidence produced does not properly substantiate that the relevant amount is payable in accordance with section 19AD is due to circumstances beyond the control of the service provider and the notice recipient. This might include where the service provider has done everything within their power to ensure that an upload occurs and the non-compliance was due to a technical or other failure outside of their sphere of influence. For example, the evidence was lost or damaged through no fault of their own.

Subsection 19AH(10) clarifies for the purposes of section 19AH and sections 129AAH and 129AAJ, the relevant amount is payable in accordance with section 19AD if section 19AD does not prevent payment of medicare benefit in respect of the professional service.

To avoid doubt, subsection 19AH(11) provides that an amount paid purportedly by way of benefit or payment under this Act is recoverable under section 19AH once only.

Subsection 19AH(12) provides that section 19AH does not limit, and is not limited by, any other provision of this Act that relates to payment of amounts to the Commonwealth.

19AI – My Health Record—upload rules

New section 19AI empowers the Minister to make upload rules for the purposes of the Act and imposes restrictions on what matters may be prescribed.

Subsection 19AI(1) enables the Minister to make rules (the upload rules) prescribing matters required or permitted by the Act to be prescribed by the upload rules. These matters include the:

•

professional services, entities, time periods and information specified for the purposes of subsection 19AD(1);

•

circumstances specified for the purposes of subsection 19AD(4); and

•

requirements specified for the purposes of subsection 19AF(1).

The making of specific upload rules rather than regulations will enable better consistency and alignment with the upload rules being made under the My Health Records Act.

Subsection 19AI(1) also clarifies that the upload rules are a legislative instrument for the purposes of the Legislation Act 2003.

Subsection 19AI(2) clarifies that a provision of a kind outlined below cannot be included in the upload rules:

•

the creation of an offence or civil penalty;

•

powers of arrest or detention, or entry, search or seizure;

•

imposition of a tax;

•

the setting of an amount to be appropriated from the Consolidated Revenue Fund under an appropriation in the Act; or

•

amendments to the text of the Act.

Subsection 19AI(3) clarifies that the upload rules only have effect to the extent that the upload rules are consistent with the regulations. That is, the regulations will prevail in the event of any inconsistency.

Item 27 – Subsection 129AADA(1)

This item amends subsection 129AADA(1) by inserting the wording "19AF(3) or" after "notice under subsection".

The current subsection 129AADA(1) provides that if the Chief Executive Medicare (the CEO) issues a person a notice under subsection 129AAD(2), or a request mentioned in subsection 129AAD(3), in respect of a professional service, then the person must keep, for the relevant period listed in subsection 129AADA(2), any document that is relevant to whether an amount should have been paid under the Act in respect of the service. If subsection 129AADA(1) is contravened, then the Chief Executive Medicare may apply to the Federal Court of Australia under subsection 125A(1) for an order that the wrongdoer pay the Commonwealth a pecuniary (i.e., monetary) penalty of up to 20 penalty units if the wrongdoer is an individual or 100 penalty units if the wrongdoer is a body corporate. "Penalty unit" has the meaning given by section 4AA of the Crimes Act 1914.

Subsection 129AADA(4) provides that subsection 129AADA(1) does not apply if the person has a reasonable excuse for refusing or failing to comply with a notice. For example, if the records required were destroyed through no fault of their own.

By inserting the wording "19AF(3) or" after "notice under subsection", this item extends the operation of current section 129AADA to notices under new subsection 19AF(3).

Item 28 – Before subparagraph 129AADA(2)(b)(i)

This item inserts new subparagraph 129AADA(2)(b)(ia) before subparagraph 129AADA(2)(b)(i).

The effect of this item is that if a notice is given under subsection 129AAH(1A) that the amount paid by way of benefit or payment in respect of a professional service is payable in accordance with section 19AD, then the period specified in subsection 129AADA(2) ends on the day that notice is given.

Item 29 - At the end of section 129AADA

This item inserts new subparagraph 129AADA(5).

New subparagraph 129AADA(5) clarifies that section 129AADA does not limit, and is not limited by, subsection 19AF(1).

Section 129AADA requires a person to keep any document relevant to whether an amount should have been paid under the Act in certain circumstances.

Subsection 19AF(1) sets out the requirement for certain persons to retain records of an upload exception in circumstances where, but for the upload exception, a medicare benefit would not be payable.

The effect of this item is that section 129AADA does not limit, and is not limited by, subsection 19AF(1). In other words, section 19AF(1) and section 129AADA can impose separate, though related, requirements.

Item 30 – Before subsection 129AAH(1)

This item inserts new subsection 129AAH(1A) before subsection 129AAH(1).

New subsection 129AAH(1A) provides that if:

•

a person produces to the CEO or a Departmental employee, evidence in relation to a professional service after being required under section 19AF to do so, and

•

the CEO decides that the evidence properly substantiates that the amount paid by way of benefit or payment in respect of the service is payable in accordance with section 19AD;

then the CEO must give the person written notice of the decision.

For clarity, if the CEO issued a notice under section 19AF to a person other than the service provider, then the written notice of a decision required under subsection 129AAH(1A) must also be issued to that person.

Item 31 – Subsection 129AAH(1) (heading)

This item amends subsection 129AAH(1) by repealing the heading to the subsection. This is a consequential amendment resulting from the insertion of new subsection 129AAH(1A) (see item 30).

Item 32 - Paragraph 129AAH(1)(a)

This item makes a minor stylistic amendment, to omit the word "Chief Executive Medicare (the CEO)" from paragraph 129AAH(1)(a), and to substitute "CEO".

Item 33 – Subsection 129AAH(2)

This item amends subsection 129AAH(2) by inserting the wording "19AH(5) or (7) or" after "subsection".

Section 129AAH relates to the giving of notices where an amount paid, by way of benefit or payment under the Act, is decided by the Chief Executive Medicare to have been substantiated and correctly paid.

The effect of this item is that if the CEO (i.e., Chief Executive Medicare) is satisfied that, for the purposes of subsection 19AH(5) or 19AH(7), circumstances beyond a person's control exist, then the CEO must give the person written notice of the decision that no amount is recoverable. See Item 26 for an explanation of subsections 19AH(5) and 19AH(7).

Item 34 – Subsection 129AAH(3)

This item amends subsection 129AAH(3) by inserting the wording "19AH(9) or" after "subsection".

The effect of this item is that if:

•

the CEO (i.e., Chief Executive Medicare) is satisfied, for the purposes of new subsection 19AH(10), that circumstances exist that were beyond the control of either:

o

a person from whom the amount concerned is recoverable; and

o

the recipient of the notice concerned; then,

•

the CEO must given written notice of the decision to the person from whom the amount concerned is recoverable.

Item 35 – Before subparagraph 129AAH(5)(a)(i)

This item amends paragraph 129AAH(5)(a) by inserting new subparagraph 129AAH(5)(a)(ia).

The effect of this item is that if:

•

a notice is issued to a person by the Chief Executive Medicare under new subsection 129AAH(1A) in relation to a professional service; and

•

the professional service was rendered, or purportedly rendered, in or at a hospital mentioned in subsection 129AAH(6) of a State or Territory,

then a copy of the notice may be given to the head (however described) of the Health Department (within the meaning of the National Health Reform Act 2011) of that State or Territory.

For background, the Health Department of a State or Territory is defined in section 5 of the National Health Reform Act 2011 to mean a Department of State that:

•

deals with matters relating to health; and

•

is administered by the State/Territory Health Minister of the State or Territory.

Item 36 – Subsection 129AAI(1)

This item amends subsection 129AAI(1) by inserting the wording "19AH(3), (4), (6), or (8) or (9) or" after "recoverable under subsection".

The effect of this item is that if an advance payment made under 19AG is recoverable, either in full or in part, under subsection 19AH(3), (4), (6) or (8) as a debt due to the Commonwealth from a service provider or the estate of the service provider, then the Chief Executive Medicare must give written notice to the person or estate of:

•

the decision to claim the amount as a debt; and

•

the reasons for the decision; and

•

any right of the person or estate to seek review of the decision under subsection 129AAJ(1).

Additionally, Item 36 also extends the review mechanisms detailed in section 129AAJ to a decision by the Chief Executive Medicare to claim an amount recoverable under subsection 19AH(3), (4), (6), or (8). This means that this type of decision will have the same review rights currently available for debts recoverable under section 129AC.

Item 37 – Subsection 129AAI(2)

This item amends subsection 129AAI(2) by inserting the wording "19AH(5), (7) or (9) or" after "subsection".

The effect of this is that the Chief Executive Medicare's written notice under subsection 129AAI(1), in relation to a debt under new section 19AH, may state that the CEO was not satisfied, for the purposes of new subsections 19AH(5), (7) or (9), that circumstances beyond a person's control existed.

Item 38 – Subsection 129AAJ(2)

This item amends subsection 129AAJ(2) by omitting the words after "(wholly or partly)" and inserting two paragraphs.

Section 129AAJ(2) provides for the review of decisions to claim amounts as debts by way of an application under subsection 129AAJ(1). The amendment to subsection 129AAJ(2) clarifies that in making an application under subsection 129AAJ(1) the person or estate may provide the CEO with additional information to substantiate (wholly or partly) that:

•

if the decision relates to an amount recoverable under subsection 19AH(3), (4), (6) or (8) – that the amount is payable in accordance with section 19AD; or

•

in any other case – the amount paid, purportedly by way of benefit or payment under the Health Insurance Act in respect of the service, should have been paid.

Item 39 – Section 129AE

This item amends section 129AE by inserting the word "or payment" after "by way of benefit".

Section 129AE provides for recovery of amounts paid in respect of certain diagnostic imaging services. By inserting the words "or payment" into section 129AE this amendment accounts for the insertion of the new section 19AG.

Item 40 – Before paragraph 129AEF(1)(a)

This item inserts new paragraph 129AEF(1)(aaa) before paragraph 129AEF(1)(a).

This amendment makes the set-off power in section 129AEF available in relation to the recovery of debts arising under new subsections 19AH(3), (4), (6), or (8).

New paragraph 129AEF(1)(aaa) provides that section 129AEF applies in relation to an amount (the recoverable amount) recoverable from a person, or from the estate of the person, as a debt due to the Commonwealth if the amount is an amount under subsection 19AH(3), (4), (6) or (8) where any rights of review by the Chief Executive Medicare (the CEO) under section 129AAJ have been exhausted or expired.

For background, section 129AAJ establishes mechanisms for merits review of certain decisions by the Chief Executive Medicare referred to in subsection 129AAI(1) about a person or an estate.

Item 41 – Subparagraph 129AEF(1)(aa)(i)

This item amends the subparagraph by omitting the wording "Chief Executive Medicare (the CEO)" and substituting "the CEO".

This amendment is a consequential amendment resulting from the insertion of new paragraph 129AEF(1)(aaa) before paragraph 129AEF(1)(a) (discussed above).

Item 42 – Subsection 129AEG(1)

This item amends subsection 129AEG(1) by omitting the wording "paragraph 129AEF(1)(a)" and substituting "paragraph 129AEF(1)(aaa), (a)".

The inclusion of a reference to new paragraph 129AEF(1)(aaa) in subsection 129AEG(1) makes the garnishee power in section 129AEG available in relation to the recovery of debts arising under new subsections 19AH(3), (4), (6), or (8).

Item 43 – After subsection 130(13)

This item inserts new subsection 130(13A) after subsection 130(13).

New subsection 130(13A) provides that, despite subsection 130(1) of the Health Insurance Act (which prohibits a person from divulging or communicating to any person, any information with respect to the affairs of a third person that was acquired in the performance of duties or in the exercise of powers or functions under the Health Insurance Act except in limited circumstances), any of the following persons may divulge information about a person's compliance with a share by default provision, as defined in the My Health Records Act, to the Australian Commission on Safety and Quality in Health Care:

•

the Secretary;

•

the Secretary of the Department administered by the Minister administering the My Health Records Act;

•

the Chief Executive Medicare.

The Australian Commission on Safety and Quality in Health Care oversees accreditation standards for healthcare providers. Compliance with share by default provisions are expected to be relevant to future accreditation standards for prescribed healthcare providers. Disclosures to the Commission will not contain the personal or health information of individual healthcare recipients.

Item 44 – Application provisions

This item contains an application provision for the amendments to section 129AEG of Health Insurance Act.

The application provision states that the amendments to section 129AEG apply in relation to any notice given under that section after the commencement of this item.

Division 2—Amendments commencing if the Health Insurance Legislation Amendment (Assignment of Medicare Benefits) Act 2024 does not commence

Health Insurance Act 1973

Item 45 – Subsection 20A(1)

This item amends subsection 20A(1) by inserting the wording "(or would be payable but for section 19AD)" after "is payable".

The effect of this item is that where a medicare benefit would, but for section 19AD be payable to an eligible person in respect of a professional service, an eligible person may enter into an agreement with the practitioner, in accordance with the approved form, to assign the person's right to the payment of medicare benefit in respect of a professional service to the practitioner.

Item 46 – Subsection 20A(2)

This item amends subsection 20A(2) by inserting the wording "(or would be payable but for section 19AD)" after "would be payable".

Subsection 20A(2) provides that where a practitioner determines that a pathology service is necessary to be rendered to an eligible person, the person to whom medicare benefit would be payable in respect of that service may, in accordance with the approved form, make an offer to the approved pathology practitioner by whom, or on whose behalf, the pathology service is to be rendered to enter into an agreement with him or her under subsection 20A(1), when the pathology service is so rendered, with respect to the medicare benefit payable in respect of the pathology service so rendered.

The effect of this item is that where new section 19AD applies, subsection 20A(2) will continue to apply on its current terms without new section 19AD having any impact on a person's ability to make an offer to an approved pathology practitioner or enter into an agreement with that practitioner.

Item 47 – Paragraph 20A(2A)(a)

This item amends paragraph 20A(2A)(a) by inserting the wording "and section 19AD" after "this section".

Subsection 20A(2A) provides that if:

•

a medicare benefit would, apart from this section, be payable to an eligible person in respect of a professional service rendered to the eligible person or another person while hospital treatment or hospital-substitute treatment is provided to the eligible person or other person; and

•

the eligible person has entered into a complying health insurance policy with a private health insurer under which he or she is covered (wholly or partly) for liability to pay fees and charges in respect of that professional service;

the eligible person and the insurer, an approved billing agent or another person may enter into an agreement, in accordance with the approved form, under which the eligible person assigns his or her right to the payment of the medicare benefit to the insurer, approved billing agent or other person.

The effect of this item is that where new section 19AD applies , subsection 20A(2A) continues to apply on its current terms and without impacting a person's ability to enter into an agreement with an insurer, approved billing agent or another person.

Division 3—Amendments commencing if the Health Insurance Legislation Amendment (Assignment of Medicare Benefits) Act 2024 commences

Health Insurance Act 1973

Item 48 – Subsection 20A(1)

This item will commence if Schedule 1 to the Health Insurance Legislation Amendment (Assignment of Medicare Benefits) Act 2024 (the Assignment of Medicare Benefits Act) commences.

This item amends the version of subsection 20A(1) following commencement of the Assignment of Medicare Benefits Act. Subsection 20A(1) will provide as follows:

(1) An eligible person (the assignor ) to whom a medicare benefit is or will be payable in respect of a professional service may enter into an agreement to assign the assignor's right to the payment of the medicare benefit if:

(a) the professional service is or will be rendered to the assignor or to another eligible person; and

(b) the agreement is entered into with the person by whom, or on whose behalf, the professional service is or will be rendered (the professional ); and

(c) the agreement provides that:

(i) the assignor assigns the assignor's right to the payment of the medicare benefit to the professional at the time the agreement is entered into or when the medicare benefit becomes payable (whichever is the later); and

(ii) the professional accepts the assignment in full payment of the medical expenses that have been or will be incurred in respect of the professional service by the assignor; and

(d) any requirements specified in the regulations are met.

Item 48 inserts the wording '(or would be payable if section 19AD were disregarded)" after the words "is or will be payable".

The effect of this item is that where new section 19AD applies, the future version of subsection 20A(1) will apply without new section 19AD having any impact on a person's ability to enter into an agreement with a person by whom, or on whose behalf, the professional service is or will be rendered.

Division 4—Amendments commencing if the Administrative Review Tribunal (Miscellaneous Measures) Act 2024 commences

Health Insurance Act 1973

Item 49 – Subparagraph 19AE(10)(f)(ii)

This item amends subparagraph 19AE(10)(f)(ii) by omitting the wording "(within the meaning of the Administrative Review Tribunal Act 2024)".

Schedule 2—Other amendments

A New Tax System (Goods and Services Tax) Act 1999

Item 1 - At the end of paragraph 38-7(2)(b)

This item adds the words "(or for which medicare benefit would be payable under that Part if section 19AD of that Act were disregarded)" at the end of paragraph 38-7(2)(b) of the GST Act.

Section 38-7 of the A New Tax System (Goods and Services Tax) Act 1999 (the GST Act) deals with whether the supply of a medical service (as defined in section 195-1 of the GST Act) is (or is not) GST-free.

Currently, subsection 38-7(1) of the GST Act provides that a supply of a medical service is GST-free.

However, paragraph 38-7(2)(b) of the GST Act provides that a supply of a medical service is not GST-free under subsection 38-7(1) if it is rendered for cosmetic reasons and is not a professional service for which medicare benefit is payable under Part II of the Health Insurance Act.

The amendment in this item ensures that new section 19AD of the Health Insurance Act is disregarded when the second limb of paragraph 38-7(2)(b) of the GST Act is applied to determine whether a professional service is a service for which a medicare benefit is payable.

Item 2 - Section 195-1 (after paragraph (a) of the definition of medical service )

This item amends the definition of medical service in section 195-1 of the GST Act to add a new paragraph (aa) after paragraph (a) of that definition.

The new paragraph (aa) of the definition provides that a medical service includes a service for which medicare benefit would be payable under Part II of the Health Insurance Act if section 19AD of that Act were disregarded.

Fringe Benefits Tax Assessment Act 1986

Item 3 - Subsection 58L(2) (subparagraph (b)(i) of the definition of medical treatment )

This item amends subparagraph (b)(i) of the definition of medical treatment in subsection 58L(2) of the Fringe Benefits Tax Assessment Act 1986 to insert the words "(or for which a medicare benefit would be payable under that Part if section 19AD of that Act were disregarded)" after the words "that Act".

This amendment is a consequential amendment to the subparagraph which ensures that the reference in the subparagraph to medicare benefit being payable under Part II of the Health Insurance Act disregards the operation of new section 19AD of the Health Insurance Act. This amendment ensures that whether or not the upload condition is complied with, the fringe benefit tax treatment of the medical service is not affected.

Health Insurance Act 1973

Item 4 - Subsection 8(1A) (at the end of paragraph (b) of the definition of patient contribution )

This item adds the words ", disregarding section 19AD" at the end of paragraph (b) of the definition of patient contribution in subsection 8(1A) of the Health Insurance Act.

This amendment is intended to ensure the definition of patient contribution, as used in the safety net provisions in sections 10AC, 10ACA, 10AD and 10ADA of the Health Insurance Act, will continue to operate in the same way it currently does, even if a medicare benefit is not payable due to the operation of new section 19AD of the Health Insurance Act.

The amendment does this by disregarding new section 19AD of the Health Insurance Act when determining the amount of medicare benefit that would be payable in respect of a service.

Item 5 - At the end of section 10AC

This item adds new subsection 10AC(7) at the end of section 10AC of the Health Insurance Act. Section 10AC relates to the family safety net.

The new subsection provides that, for the purposes of section 10AC, new section 19AD of the Health Insurance Act is disregarded when determining whether medicare benefit is payable. It also clarifies that section 10AC does not authorise payment of medicare benefit contrary to section 19AD.

This amendment is intended to ensure that references in section 10AC to a medicare benefit being payable continue to operate in the same way they currently do, even if a medicare benefit is not payable due to the operation of new section 19AD of the Health Insurance Act.

Item 6 - At the end of section 10ACA

This item adds new subsection 10ACA(11) at the end of section 10ACA of the Health Insurance Act. Section 10ACA relates to the extended family safety net.

The new subsection provides that, for the purposes of section 10ACA, new section 19AD of the Health Insurance Act is disregarded when determining whether medicare benefit is payable. It also clarifies that section 10ACA does not authorise payment of medicare benefit contrary to section 19AD.

This amendment is intended to ensure that references in section 10ACA to a medicare benefit being payable continue to operate in the same way they currently do, even if a medicare benefit is not payable due to the operation of new section 19AD of the Health Insurance Act.

Item 7 - At the end of section 10AD

This item adds new subsection 10AD(5) at the end of section 10AD of the Health Insurance Act. Section 10AD relates to the individual safety net.

The new subsection provides that, for the purposes of section 10AD, new section 19AD of the Health Insurance Act is disregarded when determining whether medicare benefit is payable. It also clarifies that section 10AD does not authorise payment of medicare benefit contrary to section 19AD.

This amendment is intended to ensure that references in section 10AD to a medicare benefit being payable continue to operate in the same way they currently do, even if a medicare benefit is not payable due to the operation of new section 19AD of the Health Insurance Act.

Item 8 - At the end of section 10ADA

This item adds new subsection 10ADA(11) at the end of section 10ADA of the Health Insurance Act. Section 10ADA relates to the extended individual safety net.

The new subsection provides that, for the purposes of section 10ADA, new section 19AD of the Health Insurance Actis disregarded when determining whether medicare benefit is payable. It also clarifies that section 10ADA does not authorise payment of medicare benefit contrary to new section 19AD.

This amendment is intended to ensure that references in section 10ADA to a medicare benefit being payable continue to operate in the same way they currently do, even if a medicare benefit is not payable due to the operation of new section 19AD of the Health Insurance Act.

Item 9 - Paragraphs 16B(10)(b) and (10A)(e)

This item inserts the words "(or would be payable if section 19AD were disregarded)" after the word "payable" in paragraphs 16B(10)(b) and 16B(10A)(e) of the Health Insurance Act.

Section 16B of the Health Insurance Act deals with situations in which a medicare benefit is (or is not) payable for an R-type diagnostic imaging service rendered in relation to a person by or on behalf of a medical practitioner.

Paragraphs 16B(10)(b) and (10A)(e) outline requirements around the need for a medicare benefit to be payable in relation to a service.

This item is intended to ensure that new section 19AD of the Health Insurance Act can be disregarded when determining whether a medicare benefit is payable for the purposes of paragraphs 16B(10)(b) and (10A)(e) of the Health Insurance Act.

Item 10 - Subsection 81(1) (after paragraph (a) of the definition of service )

This item inserts a new paragraph 81(1) (aa) after paragraph (a) of the definition of service in subsection 81(1) of the Health Insurance Act.

New paragraph 81(1)(aa) provides that service, for the purposes of Part VAA of the Health Insurance Act ("The Professional Services Review Scheme"), includes a service that has been rendered if, at the time it was rendered, medicare benefit would have been payable in respect of the service if section 19AD were disregarded.

This item ensures that questions about whether Part VAA of the Health Insurance Act applies to a service rendered by a person can be resolved without having to consider whether the upload requirements in new section 19AD were met.

Item 11 - Subsection 81(1) (after paragraph (ab) of the definition of service )

This item inserts a new paragraph 81(1)(ac) after paragraph (ab) of the definition of service in subsection 81(1) of the Health Insurance Act.

New paragraph 81(1)(ac) provides that service, for the purposes of Part VAA of the Health Insurance Act, includes a service that has been initiated (whether or not it has been or will be rendered) if, at the time it was initiated, medicare benefit would have been payable in respect of the service if it had been rendered at that time and section 19AD were disregarded.

This item ensures that questions about whether Part VAA of the Health Insurance Act applies to a service initiated by a person can be resolved without having to consider whether the upload requirements in new section 19AD were met.

Item 12 - Subsection 81(1) (subparagraph (c)(ii) of the definition of service )

This item amends subparagraph (c)(ii) of the definition of service in subsection 81(1) of the Health Insurance Act by omitting the words "of the service." and substituting the words "of the service; or".

This amendment is a consequential amendment resulting from the insertion of new paragraph (d) of the definition of service in subsection 81(1) of the Health Insurance Act (see item 13).

Item 13 - Subsection 81(1) (after paragraph (c) of the definition of service )

This item inserts new paragraph (d) after paragraph (c) of the definition of service in subsection 81(1) of the Health Insurance Act.

New paragraph 81(1)(d) provides that service, for the purposes of Part VAA of the Health Insurance Act, includes a service that:

•

has been rendered in connection with the provision of treatment under a relevant DVA law; and

•

is of a kind that, if the service had not been rendered in connection with the provision of treatment under the relevant DVA law, medicare benefit would have been payable in respect of the service if new section 19AD of the Health Insurance Act were disregarded.

This item ensures that questions about whether Part VAA applies to a service rendered by a person in connection with the provision of treatment under a relevant DVA law can be resolved without having to consider whether the upload requirements in new section 19AD of the Health Insurance Act were met.

Item 14 - Subsection 82(1)

This item amends subsection 82(1) of the Health Insurance Act ("Definitions of inappropriate practice") to insert a reference to new paragraph 81(1)(d).

This is a consequential amendment resulting from the insertion of new paragraph 81(1)(d) at the end of the definition of service in subsection 81(1) of the Health Insurance Act (see item 13).

Item 15 - Subsection 126(1)

This item inserts the words "(or for which medicare benefit would be payable if section 19AD were disregarded)" after the words "payable" in subsection 126(1) of Health Insurance Act.

Subsection 126(1) provides that a person shall not make a contract of insurance with another person that contains a provision purporting to make the first-mentioned person liable to make a payment in the event of the incurring by the other person of a liability to pay medical expenses in respect of the rendering in Australia of a professional service for which medicare benefit is payable.

This offence provision attracts a maximum penalty of 10 penalty units.

This item ensures the reference in subsection 126(1) to a medicare benefit being payable can be applied without regard to new section 19AD of the Health Insurance Act. This ensures that questions about whether the offence provision in subsection 126(1) applies can be resolved without having to consider whether the upload requirements in new section 19AD were met.

Item 16 - At the end of subsection 126(2)

This item adds the words "(or for which medicare benefit would be payable if section 19AD were disregarded)" at the end of subsection 126(2).

Subsection 126(2) provides where there is a contract of insurance (whether made before or after the commencement of section 126 of the Health Insurance Act) under which the insurer is liable to make a payment in the event of the incurring by that person of liability to pay medical expenses in respect of the rendering in Australia of a professional service, there is an implied condition in the contract that the insurer is not liable for loss arising out of the incurring of liability to pay medical expenses in respect of the rendering in Australia of a professional service in respect of which a medicare benefit is payable.

This item ensures the reference in subsection 126(2) of the Health Insurance Act to a medicare benefit being payable can be applied without regard to new section 19AD of the Health Insurance Act.

National Health Act 1953

Item 17 - Section 132A

This item inserts the following defined terms for the purposes of interpreting new section 132AB, new paragraph 132B(1)(ea) and new subsection 135A(12A) of the National Health Act 1953:

My Health Record information (which is defined to mean health information (within the meaning of the My Health Records Act) disclosed by the System Operator (within the meaning of that Act) under section 70AA of that Act).

share by default service (which is defined to mean a professional service specified in the upload rules for the purposes of subsection 19AD(1) of the Health Insurance Act rendered by or on behalf of a person specified for the service in the upload rules for the purposes of that subsection).

Item 18 - Section 132A (definition of permitted purpose )

This item repeals the definition of permitted purpose in section 132A of the National Health Act 1953 and substitutes a definition that refers readers to new section 132AB of the National Health Act 1953 (see item 19).

Item 19 - After section 132A

This item inserts new section 132AB after section 132A of the National Health Act 1953.

New subsection 132AB(1) provides that, for the purposes of Part VIIIA of the National Health Act 1953 ("Data-matching"), each of the following is a permitted purpose for the matching of data other than data that includes My Health Record information:

•

identifying whether a person may have, under a medicare program, claimed or been paid a benefit that exceeds the amount of the benefit that was payable to the person;

•

recovering overpayments of benefits under a medicare program;

•

detecting or investigating contraventions of a law of the Commonwealth relating to a medicare program;

•

detecting or investigating whether a person may have engaged in inappropriate practice;

•

analysing services, benefits, programs or facilities that are provided for under a medicare program, in connection with the purposes mentioned in the preceding four dot points;

•

educating healthcare providers about medicare program requirements.

New subsection 132AB(1) essentially replicates the current definition of permitted purpose in 132A(1) of the National Health Act 1953 but is drafted so as to not apply for the purposes of data-matching that includes My Health Record information.

For data-matching involving My Health Record information, new subsection 132AB(2) of the National Health Act 1953 applies and the range of permitted purposes in that subsection is more limited than those in subsection 132AB(1).

New subsection 132AB(2) provides that, for the purposes of Part VIIIA of the National Health Act 1953, each of the following is a permitted purpose for the matching of data that includes My Health Record information:

•

identifying whether a person may have, under a medicare program, claimed or been paid a benefit in relation to a share by default service that exceeds the amount of the benefit that was payable to the person;

•

recovering overpayments of benefits under a medicare program in relation to share by default services;

•

detecting or investigating contraventions of a law of the Commonwealth relating to share by default services;

•

analysing services, benefits, programs or facilities that are provided for under a medicare program, in connection with the purposes mentioned in the preceding three dot points;

•

educating healthcare providers about requirements in relation to share by default services.

A note to new section 132AB of the National Health Act 1953 draws the reader's attention to the fact that the Privacy Act 1988 contains provisions relevant to the use and disclosure of information under the National Health Act 1953.

Item 20 - After paragraph 132B(1)(e)

This item inserts new paragraph 132B(1)(ea) after paragraph 132B(1)(e) of the National Health Act 1953.

This amendment ensures that My Health Record information will be included in the kinds of information that the Chief Executive Medicare can match for a permitted purpose. This means that My Health Record information can be matched with the various other kinds of information mentioned in subsection 132B(1) where this happens for a permitted purpose. As noted above, new subsection 132AB(2) of the National Health Act 1953 sets out only a limited number of permitted purposes for the matching of data that includes My Health Record information.

Item 21 - After subsection 135A(12)

This item inserts new subsection 135A(12A) after subsection 135A(12) of the National Health Act 1953.

New subsection 135A(12A) provides that, despite subsection 135A(1) of the National Health Act 1953 (which prohibits a person from divulging or communicating to any person, any information with respect to the affairs of a third person that was acquired in the performance of duties or in the exercise of powers or functions under the National Health Act 1953 except in limited circumstances), any of the following persons may divulge information about a person's compliance with a share by default provision (within the meaning of the My Health Records Act to the Australian Commission on Safety and Quality in Health Care:

•

the Secretary;

•

the Secretary of the Department administered by the Minister administering the My Health Records Act;

•

the Chief Executive Medicare.

National Health Reform Act 2011

Item 22 - After section 54H

This item inserts new section 54HA after section 54H of the National Health Reform Act 2011.

New subsection 54HA(1) of the National Health Reform Act 2011 sets out that new section 54HA applies if the Commission Board Chair is satisfied that particular protected Commission information will enable or assist:

•

the Secretary of the Department administered by the Minister administering the My Health Records Act (the My Health Records Secretary); or

•

the System Operator (within the meaning of the My Health Records Act);

to monitor, investigate or enforce compliance with a share by default provision (within the meaning of the My Health Records Act).

New subsection 54HA(2) of the National Health Reform Act 2011 provides that if an official of the Commission is authorised by the Commission Board Chair, in writing, for the purposes of this section, the official may disclose that protected Commission information to the My Health Records Secretary or the System Operator. An authorisation under this subsection is not a legislative instrument under item 4 of the table in section 6 of the Legislative (Exemptions and Other Matters) Regulation 2015.

New subsection 54HA(3) of the National Health Reform Act 2011 provides that if protected Commission information is disclosed under new subsection 54HA(2) to the My Health Records Secretary or the System Operator (the recipient), the recipient must not disclose or use the information for a purpose other than the purpose for which the information was given to the recipient.

The Australian Commission on Safety and Quality in Health Care oversees accreditation standards for healthcare providers. Compliance with share by default provisions are expected to be included into future accreditation standards for prescribed healthcare providers. This amendment will allow the Commission to disclose non-compliance with share by default provisions that accrediting agencies may become aware of in their accreditation activities for appropriate action by the System Operator, Secretary or Chief Executive Medicare.

Private Health Insurance Act 2007

Item 23 - Subsection 72-1(2) (at the end of the cell at table item 3, column headed "The amount of the benefit must be...")

This item adds the words "(or could be claimed for the treatment but for section 19AD of the Health Insurance Act 1973)" at the end of the cell at table item 3, in the column headed "The amount of the benefit must be..." in subsection 72-1(2) of the Private Health Insurance Act 2007.

This amendment ensures that new section 19AD of the Health Insurance Act is disregarded when determining whether medicare benefit is payable for the purposes of subsection 72-1(2) of the Private Health Insurance Act 2007.

Item 24 - At the end of section 72-1

This item adds new subsection 72-1(3) at the end of section 72-1 of the Private Health Insurance Act 2007. Section 72-1 sets out benefit requirements that a complying private health insurance policy that covers hospital treatment must meet. The table in 72 -1(2) lists 5 items for which there must be a benefit and prescribe that level of benefit.

New subsection 72-1(3) ensures that new section 19AD of the Health Insurance Act is disregarded when determining whether medicare benefit is payable for the purposes of section 72-1 of the Private Health Insurance Act 2007 ("Benefit requirements").

The effect of this amendment is to ensure benefits payable to healthcare recipient's under private health insurance policies will not be impacted by the upload requirements in new section 19AD of the Health Insurance Act.

Item 25 - Paragraph 121-10(3)(a)

This item amends paragraph 121-10(3)(a) of the Private Health Insurance Act 2007 to insert the words "(or would be payable if section 19AD of the Health Insurance Act 1973 were disregarded)" after the word "payable".

This amendment ensures that new section 19AD of the Health Insurance Act is disregarded when determining what is not general treatment in section 121-10 of the Private Health Insurance Act. The effect of this amendment is to ensure the definition of general treatment in the Private Health Insurance Act 2007 will not be impacted by the upload requirements in new section 19AD of the Health Insurance Act.

Item 26 - Application provisions

This item contains an application provision for the amendments to section 126 of the Health Insurance Act made by this Schedule.

The application provision states that the amendments to section 126 apply in relation to any contract of insurance made after the commencement of this item.

Health Legislation Amendment (Modernising My Health Record - Sharing by Default) Bill 2024 Impact Analysis

(November) 2024

Office of Impact Analysis reference: OIA23-05874

https://oia.pmc.gov.au/sites/default/files/posts/2024/11/Impact%20Analysis_1.pdf