Explanatory Memorandum
(Circulated by authority of the Minister for Health, the Hon Greg Hunt MP)Notes on Clauses
Clause 1 - Short Title
Clause 1 provides for the short title of the Act to be the Health Legislation Amendment (Data-matching and Other Matters) Act 2019.
Clause 2 - Commencement
This clause provides that the whole Act will commence the day after it receives Royal Assent.
Clause 3 - Schedules
This clause provides that each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item has effect according to its terms. This is a technical provision which gives operational effect to the amendments contained in the Schedules. Schedule 1 amends the National Health Act 1953 (National Health Act) and makes consequential amendments to the Health Insurance Act 1973 (Health Insurance Act) and Privacy Act 1988 (Privacy Act), the Private Health Insurance Act 2007 (Private Health Insurance Act) and the Therapeutic Goods Act 1989 (Therapeutic Goods Act). Schedule 2 amends the Health Insurance Act and the Military Rehabilitation and Compensation Act 2004 (Military Rehabilitation and Compensation Act).
SCHEDULE 1 - DATA-MATCHING
Part 1 - Main amendments
National Health Act 1953
Item 1 - After Part VIII
Item 1 inserts a new Part VIIIA - Data-matching in the National Health Act.
New section 132A
New section 132A provides definitions to be used within the Part, including the definition of "permitted purpose" for the matching of data. The permitted purposes are specific to Medicare compliance, namely:
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- 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;
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- recovering overpayments of benefits under a medicare program;
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- detecting or investigating contraventions of a law of the Commonwealth relating to a medicare program;
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- detecting or investigating whether a person may have engaged in inappropriate practice (as defined in Part VAA of the Health Insurance Act 1973);
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- analysing services, benefits, programs or facilities that are provided for under a medicare program in relation to the purposes mentioned above; and
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- educating healthcare providers about medicare program requirements.
New section 132B
New subsection 132B(1) enables the Chief Executive Medicare to match data for a permitted purpose. The Chief Executive Medicare will be able to match any of the information set out in subsection 132B(1), with any combination of information able to be matched for any permitted purpose. The Chief Executive Medicare will only be able to match data to which he or she has lawful access. This includes medicare program information held or obtained by the Chief Executive Medicare, therapeutic goods information, information disclosed voluntarily from private health insurers, information provided in accordance with the Health Practitioner Regulation National Law, information provided in accordance with certain laws administered by the Minister for Veterans' Affairs, and any other information that may be lawfully provided to the Chief Executive Medicare (excluding information that is held or has been obtained by the Chief Executive Medicare exclusively for the purpose of performing functions under the My Health Records Act 2012).
If the Chief Executive Medicare is undertaking data matching for a Pharmaceutical Benefits Scheme (PBS) related permitted purpose, it may be necessary for this information to be passed to the Secretary of the Department of Health to undertake PBS compliance functions.
New subsection 132B(2) will enable the Chief Executive Medicare to authorise, in writing, a Commonwealth entity to match data on the Chief Executive Medicare's behalf. This provision is to enable data matching in situations where it may be more appropriate for another Commonwealth entity to undertake the matching. For example, if another Commonwealth entity holds a dataset which could be matched with medicare program data for a permitted purpose, in circumstances where that other dataset is substantially larger than the relevant data held by the Chief Executive Medicare, it may be more efficient, private and secure for the Chief Executive Medicare to provide limited data to the other Commonwealth entity for data matching, rather than receiving large amounts of data. There are relevant whole-of-government privacy and information security frameworks that apply to all Commonwealth entities.
New subsection 132B(3) provides that a Commonwealth entity authorised to match data on the Chief Executive Medicare's behalf must comply with any other terms and conditions on the matching determined by the Chief Executive Medicare (in addition to any imposed by legislative instrument), and must, if requested by the Chief Executive Medicare, disclose the results of data matching to the Chief Executive Medicare. This enables an additional level of control over data matching to be undertaken by authorised Commonwealth entities.
New subsection 132B(4) provides that information must not be data matched until the principles made by the Minister under subsection 132F(1) have commenced. This will ensure data matching will not commence until appropriate governance is in place.
New section 132C
New section 132C authorises the Secretary of the Department of Health to voluntarily disclose therapeutic goods information (within the meaning of section 61 of the Therapeutic Goods Act) to the Chief Executive Medicare for the purposes of facilitating the matching of that information. This ensures that it is lawful for relevant therapeutic goods information to be provided to the Chief Executive Medicare to be used for matching.
New section 132D
New section 132D authorises a private health insurer to voluntarily disclose to the Chief Executive Medicare information relating to hospital treatment or general treatment for the purposes of facilitating the matching of that information for a permitted purpose. This information can be provided if requested by the Chief Executive Medicare, or on the private health insurer's own initiative. This provision ensures that it is lawful for relevant information held by a private health insurer to be provided to the Chief Executive Medicare to be used for data matching. However, this disclosure is only enabled if the insurance policy was taken out after the commencement of this section, the insurance policy provided that information of this kind may be disclosed if authorised by law, or the insurer had notified the insured person that information of that kind may be disclosed if authorised by Australian law.
New section 132E
New section 132E provides that a breach of a provision of the new Part VIIIA, in relation to an individual, constitutes an act or practice involving interference with the privacy of an individual for the purposes of section 13 of the Privacy Act. This provision clarifies that the Australian Information Commissioner (Information Commissioner) has privacy functions in relation to Part VIIIA, to the extent that it relates to information about an individual. Individuals who believe their privacy has been interfered with can make a complaint to the Information Commissioner. This provides a level of independent oversight of data matching.
New section 132F
New subsection 132F(1) provides that the Minister must make principles, in a legislative instrument, in relation to the matching of information under subsection 132B(1) by the Chief Executive Medicare or an authorised Commonwealth entity. Data matching will not commence until the principles have been made.
New subsection 132F(2) provides that the principles must:
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- require the Chief Executive Medicare to establish and maintain a publicly available register summarising the kinds of information matched;
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- require the Chief Executive Medicare to keep records of information matched;
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- require an authorised Commonwealth entity to keep records of information matched;
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- require the Chief Executive Medicare and an authorised Commonwealth entity to take reasonable steps to destroy personal information that has been matched, if no longer needed for any purpose for which the information was matched;
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- require the Chief Executive Medicare and an authorised Commonwealth entity to take reasonable steps to ensure that personal information matched is accurate, complete and up-to-date; and
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- require the Chief Executive Medicare and an authorised Commonwealth entity not to match information unless satisfied that it is reasonably necessary for the purpose for which it is to be matched.
New subsection 132F(3) provides that in making the principles, the Minister must take into account any guidelines on data-matching in Australian Government administration made by the Information Commissioner under paragraph 28(1)(a) of the Privacy Act. This is to enable consistency in data matching requirements and to ensure the principles are in line with best practice as determined by the Information Commissioner.
The rules are subject to Parliamentary oversight as a disallowable instrument and are subject to the consultation requirements of the Legislation Act 2003. As such, there will be relevant stakeholder engagement in the preparation of the principles.
Item 2 - After subsection 135A(5C)
Item 2 inserts a provision enabling the Secretary of the Department of Health or the Chief Executive Medicare to provide information to an authorised Commonwealth entity for the purposes of facilitating the matching of that information by that entity. This ensures that information protected under section 135A is able to be disclosed to an authorised Commonwealth entity prior to that entity matching the information.
Item 3 - After subsection 135AA(5B)
Item 3 provides that nothing in section 135AA, or the rules issued by the Information Commissioner under that section, preclude the matching of information under section 132B. This enables the matching of information under section 132B to take place regardless of the content of section 135AA or the rules made under that section, which may provide restrictions on the matching or storage of certain information in certain circumstances.
Item 4 - Application - information collected etc. before commencement
Item 4 provides that section 132B applies in relation to information collected, accessed or obtained before, on or after the commencement of this item. This enables information collected, accessed or obtained prior to the commencement of section 132B to be used for matching enabled by that section. This means medicare program data from prior to the commencement of the legislation can be matched if necessary for permitted purposes.
Part 2 - Other amendments
Item 5 - At the end of section 6
Item 5 inserts four new subsections which provide that the Chief Executive Medicare may delegate to a person all or any of the Chief Executive Medicare's powers under the National Health Act, the regulations or another legislative instrument under the National Health Act, other than the power of delegation. This is in line with the Secretary's existing powers of delegation to a person in the National Health Act. Powers so delegated, when exercised by the delegate, shall be deemed to have been exercised by the Chief Executive Medicare. However, this does not prevent the exercise of powers by the Chief Executive Medicare personally. This enables the Chief Executive Medicare's powers under new Part VIIIA to be delegated, for example, to officers for the purposes of undertaking data matching.
Part 3 - Consequential amendments
Health Insurance Act 1973
Item 6 - After subsection 130(5H)
Item 6 inserts proposed new subsection 130(5J) enabling a person to provide information to a Commonwealth entity for the purposes of facilitating the matching of that information by the Commonwealth entity. This ensures that information protected under section 130 is able to be disclosed to the Commonwealth entity to be authorised prior to that entity matching the information.
Privacy Act 1988
Item 7 - At the end of subsection 33C(1)
Item 7 enables the Information Commissioner to conduct an assessment relating to the Australian Privacy Principles on the matching under Part VIIIA, in accordance with section 33C of the Privacy Act. The Information Commissioner will be able to assess whether the matching of information under Part VIIIA, and the handling of information in relation to that matching, is in accordance with the principles to be made by the Minister under section 132F. It will also enable the Information Commissioner to conduct an assessment as to whether matching undertaken by an authorised Commonwealth entity on the Chief Executive Medicare's behalf is in accordance with any terms and conditions on the matching. This amendment makes it clear that the Information Commissioner has an assessment role in relation to data matching under Part VIIIA.
Private Health Insurance Act 2007
Item 8 - At the end of section 323-1
Item 8 amends the Private Health Insurance Act to provide a note to clarify that a disclosure in accordance with proposed subsection 132D(1) of the National Health Act is an authorised disclosure for the purposes of section 323-1 of the Private Health Insurance Act.
Therapeutic Goods Act 1989
Item 9 - At the end of subsection 61(8)
Item 9 amends the Therapeutic Goods Act to provide a note to clarify that a disclosure in accordance with proposed subsection 132C of the National Health Act is an authorised disclosure for the purposes of section 61 of the Therapeutic Goods Act.
SCHEDULE 2 - OTHER AMENDMENTS
Part 1 - Professional Services Review Scheme
Health Insurance Act 1973
Item 1 - Subsection 81(1)
Item 1 inserts the definition of "relevant DVA law" in section 81 of the Health Insurance Act, which provides definitions to be used in Part VAA. The relevant DVA laws are:
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- the Australian Participants in British Nuclear Tests and British Commonwealth Occupation Force (Treatment) Act 2006 ;
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- Chapter 6 of the Military Rehabilitation and Compensation Act;
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- the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 ;
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- Treatment Benefits (Special Access) Act 2019 ; and
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- Part V of the Veterans' Entitlements Act 1986 .
This defines the term "relevant DVA law" for the purposes of Part VAA of the Health Insurance Act which sets out the Professional Services Review Scheme.
Item 2 - Subsection 81(1) (after paragraph (b) of the definition of service )
Item 2 amends the definition of "service" in section 81, which provides definitions to be used in Part VAA of the Health Insurance Act. This means that services rendered under a relevant DVA law are considered for the purposes of this definition, so when the term "service" is used in Part VAA, services rendered under a relevant DVA law are included. For example, for the purposes of the prescribed pattern of services, set out in in subsections 82(1A) to (1D), services rendered under a relevant DVA law can be considered alongside other services.
Item 3 - Subsection 82(1)
Item 3 amends the definition of "unacceptable conduct" to exclude services rendered under a relevant DVA law. Section 82 sets out the definitions of inappropriate practice including unacceptable conduct. By excluding services rendered under a relevant DVA law from "unacceptable conduct" in subsection 82(1), this ensures that services rendered under a relevant DVA law cannot be taken into account for any purpose under the Professional Services Review Scheme, except in relation to a prescribed pattern of services.
Item 4 - After paragraph 92(2)(c)
Item 4 enables certain services rendered under a relevant DVA law to be considered for the purposes of agreements entered into between the Director of the Professional Services Review and the person under review, in which the person acknowledges that specific action is to take effect. As services rendered under a relevant DVA law will be considered for the purposes of prescribed pattern of services, it is necessary to ensure they can also be considered for the purposes of agreements which are negotiated.
Item 5 - At the end of subsection 92(4)
Item 5 also enables certain services rendered under a relevant DVA law to be considered for the purposes of agreements entered into between the Director of the Professional Services Review and the person under review, in which the agreement is ratified by the Determining Authority. As services rendered under a relevant DVA law will be considered for the purposes of prescribed pattern of services, it is necessary to ensure they can also be considered for the purposes of agreements being ratified by the Determining Authority.
Item 6 - After paragraph 106U(1)(cb)
Item 6 enables certain services rendered under a relevant DVA law to be considered as part of the content of draft and final determinations for the purposes of the Professional Services Review scheme. As services rendered under a relevant DVA law will be considered for the purposes of a prescribed pattern of services, it is necessary to ensure they can also be considered for the purposes of draft and final determinations.
Item 7 - Application
Item 7 provides that these amendments apply in relation to services provided on or after the commencement of this item. This means that services provided under a relevant DVA law before the commencement of the Bill will not be considered for the prescribed pattern of services under the Professional Services Review scheme.
Military Rehabilitation and Compensation Act 2004
Item 8 - Subsection 409(2) (after table item 2A)
Item 8 inserts two table items in subsection 409(2) to enable information to be provided to the Secretary of the Department of Health or the Chief Executive Medicare, for specific purposes. This ensures that information collected under the Military Rehabilitation and Compensation Act can lawfully be provided to the Secretary and Chief Executive Medicare where relevant for the purposes of the Department of Health or the powers and functions of the Chief Executive Medicare.
Part 2 - Other amendments
Item 9 - Before paragraph 129AEF(1)(a)
Item 9 amends the Health Insurance Act to enable amounts that it is agreed will be repaid under section 92(4)(e) or (f), but have not yet been repaid ("unpaid amounts"), to be set off against the whole or part of an amount payable to the person or estate under the Health Insurance Act. This item gives effect to the original intention of the Health Legislation Amendment (Improved Medicare Compliance and Other Measures) Act 2018 to allow debts that arise from an agreement between a person and the Director of the Professional Services Review that are ratified by the Determining Authority to be set off against the whole or part of an amount payable to the person or estate under the Health Insurance Act. This also enables debts that include services rendered under a relevant DVA law to be set off in the same way.