Health Legislation Amendment (Modernising My Health Record - Sharing by Default) Act 2025 (8 of 2025)
Schedule 1 Main amendments
Part 2 Medicare benefits
Division 1 Amendments
Health Insurance Act 1973
26 After section 19AC
Insert:
19AD My Health Record - medicare benefits not payable in respect of certain professional services
(1) 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.
(2) Subsection (1) does not apply if:
(a) an upload exception applies in relation to the person sharing the information with the My Health Record system; or
(b) another entity (within the meaning of the My Health Records Act 2012) has shared the information with the My Health Record system; or
(c) a law of a State or Territory prescribed by regulations for the purposes of subsection 41(4) of, or subclause 9(3) of Schedule 1 to, the My Health Records Act 2012 prevents the person or any associate of the person for the service from sharing the information with the My Health Record system; or
(d) the information is specified in My Health Records Rules made for the purposes of paragraph 78A(3)(d) of the My Health Records Act 2012; or
(e) 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 2012; or
(f) the end of the period specified in the upload rules for the purposes of subsection (1) occurs:
(i) 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 19AE and ending when the application is resolved; or
(ii) during a 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
(iii) during any upload suspension period determined under subsection 78A(4) of the My Health Records Act 2012; or
(iv) 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 that Act and ending when the application is finally determined (within the meaning of that Act); or
(v) during the period approved by the My Health Record System Operator under section 41B or 78B of that Act in relation to the person or an associate of the person for the service.
(3) An upload exception applies in relation to a person sharing with the My Health Record system information about a professional service rendered to an individual if:
(a) the individual is not a registered healthcare recipient (within the meaning of the My Health Records Act 2012); or
(b) either:
(i) the individual, or an authorised representative or nominated representative of the individual, has advised the person or an associate of the person for the service; or
(ii) the person or an associate of the person for the service has otherwise been informed that the individual, or an authorised representative or nominated representative of the individual, has advised;
that the information must not be uploaded to the My Health Record system; or
(c) an individual healthcare provider (within the meaning of the My Health Records Act 2012) 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
(d) 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.
(4) A healthcare provider organisation (within the meaning of the My Health Records Act 2012) is an associate of a person in relation to a professional service in the following circumstances:
(a) the person renders the service as an employee (within the meaning of the My Health Records Act 2012) of the healthcare provider organisation;
(b) another person, as an employee (within the meaning of the My Health Records Act 2012) of the healthcare provider organisation, renders the service on behalf of the person;
(c) the healthcare provider organisation provides support services or facilities to facilitate the rendering of the service by or on behalf of the person;
(d) the circumstances (if any) specified in the upload rules.
(5) Without limiting this section or subsection 33(3A) of the Acts Interpretation Act 1901, upload rules made for the purposes of subsection (1) may specify different periods for different professional services or different kinds of person.
19AE My Health Record - approval of period during which sharing with the My Health Record system is not required
Scope
(1) This section applies in relation to an entity (within the meaning of the My Health Records Act 2012) that is:
(a) a person who renders a professional service for which the person is specified in the upload rules for the purposes of subsection 19AD(1); or
(b) a person on whose behalf a professional service for which the person is specified in the upload rules for the purposes of subsection 19AD(1) is rendered; or
(c) an associate of a person in relation to a professional service for which the person is specified in the upload rules for the purposes of subsection 19AD(1).
Application
(2) An entity 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.
(3) The application must:
(a) be in the form approved, in writing, by the My Health Record System Operator; and
(b) include, or be accompanied by, the information and documents required by the form; and
(c) be lodged at a place, or by a means, specified in the form.
Note: 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 2012.
Further information may be required
(4) If an entity makes an application under subsection (2), the My Health Record System Operator may, by notice in writing, require the entity to give the My Health Record System Operator, within the period specified in the notice, such further information in relation to the application as the My Health Record System Operator requires.
(5) The My Health Record System Operator is not required to decide the application, and may cease considering the application, if the entity does not provide the required information within the period specified in the notice.
Approval by My Health Record System Operator
(6) On application under subsection (2) or on the My Health Record System Operator's initiative, the My Health Record System Operator may, by written notice to an entity, approve a period during which the entity is not required to share information with the My Health Record system.
(7) In deciding whether to approve the period, the My Health Record System Operator must take into account the following:
(a) the entity's size and technological readiness;
(b) the potential disruption (if any) to the provision of healthcare if the entity does not share information with the My Health Record system;
(c) any other matter the My Health Record System Operator considers relevant.
(8) An approval under subsection (6) is not a legislative instrument.
Review of decisions
(9) Section 97 (review of decisions) of the My Health Records Act 2012 applies to a decision under this section to refuse an application to approve a period.
(10) An application under this section is resolved when the My Health Record System Operator has made a decision (the original decision ) on the application and:
(a) the original decision is to approve the application; or
(b) no notice of the original decision is given because subsection 97(2A) of the My Health Records Act 2012 applies; or
(c) no notice asking the My Health Record System Operator to reconsider the original decision is given within the period mentioned in subsection 97(4) of the My Health Records Act 2012; or
(d) all of the following apply:
(i) a notice asking the My Health Record System Operator to reconsider the original decision is given within the period mentioned in subsection 97(4) of the My Health Records Act 2012;
(ii) the My Health Record System Operator reconsiders the original decision;
(iii) no application is made to the Administrative Review Tribunal within the period mentioned in section 18 of the Administrative Review Tribunal Act 2024 for review of the My Health Record System Operator's reconsideration decision; or
(e) an application is made to the Administrative Review Tribunal within the period mentioned in section 18 of the Administrative Review Tribunal Act 2024 for review of the My Health Record System Operator's reconsideration of the original decision, the Administrative Review Tribunal decides the application and one of the following applies:
(i) subsection 123(1) of that Act does not apply in relation to the Administrative Review Tribunal's decision;
(ii) no application is made under section 123 of that Act within the period mentioned in section 125 of that Act to refer the Administrative Review Tribunal's decision to the guidance and appeals panel;
(iii) any application that is made under section 123 of that Act within the period mentioned in section 125 of that Act to refer the Administrative Review Tribunal's decision to the guidance and appeals panel is refused; or
(f) both of the following apply:
(i) the President of the Administrative Review Tribunal refers the Administrative Review Tribunal's decision on the application for review of the My Health Record System Operator's reconsideration of the original decision to the guidance and appeals panel under section 123 of the Administrative Review Tribunal Act 2024;
(ii) the Administrative Review Tribunal makes a decision on the guidance and appeals panel application (within the meaning of the Administrative Review Tribunal Act 2024) taken to be made because of the referral.
(11) An application under this section is resolved when the My Health Record System Operator ceases to consider the application under subsection (5).
19AF My Health Record - record keeping requirement
Requirement to keep evidence of upload exceptions
(1) If:
(a) medicare benefit is payable in respect of a professional service specified in the upload rules for the purposes of subsection 19AD(1); and
(b) medicare benefit would not have been payable in respect of the service if an upload exception had not applied;
the person by or on whose behalf the service was rendered must keep, or ensure another person keeps, for a period of 2 years starting on the day the service was rendered, evidence that an upload exception applied that meets the requirements (if any) specified in the upload rules.
Civil penalty: 10 penalty units.
(2) Subsection (1) does not apply if the person has a reasonable excuse.
Note: A person who wishes to rely on subsection (2) in proceedings for a civil penalty order bears an evidential burden in relation to the matter in that subsection (see section 130H).
Requirement to produce evidence when required
(3) If the Chief Executive Medicare reasonably believes that a person has possession, custody or control of evidence mentioned in subsection (1) in relation to a professional service, the Chief Executive Medicare may, by written notice given to the person, require the person to produce the evidence to the Chief Executive Medicare or a Departmental employee (within the meaning of the Human Services (Medicare) Act 1973), within the period and in the manner specified in the notice.
(4) Subsection (3) does not apply in relation to:
(a) the person in respect of whom the service was rendered; or
(b) the person who incurred the medical expenses in respect of the service.
(5) A person must comply with a requirement under subsection (3).
Civil penalty: 10 penalty units.
Handling of evidence produced
(6) The Chief Executive Medicare or a Departmental employee (within the meaning of the Human Services (Medicare) Act 1973) may make and retain copies of, or take and retain extracts from, any evidence produced under this section.
(7) The Chief Executive Medicare or a Departmental employee (within the meaning of the Human Services (Medicare) Act 1973) may take, and retain for as long as is necessary, possession of evidence produced under this section.
(8) 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 (within the meaning of the Human Services (Medicare) Act 1973) to be a true copy.
(9) The certified copy must be received in all courts and tribunals as evidence as if it were the original.
(10) Until a certified copy is supplied, the Chief Executive Medicare or Departmental employee (within the meaning of the Human Services (Medicare) Act 1973) 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.
19AG My Health Record - advance payment before information is shared with the My Health Record system
Amounts that may become payable under section 10
(1) A payment, on account of an amount that would but for section 19AD be payable under section 10 in respect of a professional service, may be made, on the terms and conditions (if any) determined under subsection (2).
(2) The Secretary may, by legislative instrument, determine terms and conditions for payments on account of amounts that would be payable but for section 19AD.
(3) 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.
(4) Making a payment under this section on account of an amount satisfies any requirement for the Chief Executive Medicare on behalf of the Commonwealth to pay the amount.
19AH My Health Record - recovery of payments
Scope
(1) This section applies in relation to:
(a) an amount (a relevant 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
(b) an amount (a relevant 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.
(2) Subsections (3), (4), (6) and (8) apply whether the relevant amount was paid to the service provider or another person.
Amounts not payable
(3) If, at the end of the period specified in the upload rules for the purposes of subsection 19AD(1), medicare benefit is not payable in respect of the professional service under section 19AD, an amount equal to the relevant amount is recoverable as a debt due to the Commonwealth from the service provider or from the estate of the service provider.
Amounts not evidenced
(4) If:
(a) the service provider is required, by a notice given under subsection 19AF(3), to produce evidence in relation to the professional service; and
(b) the service provider does not comply with the requirement within the period set out in the notice;
an amount equal to the relevant amount is recoverable as a debt due to the Commonwealth from the service provider or from the estate of the service provider.
(5) Subsection (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.
(6) If:
(a) the service provider is required, by a notice given under subsection 19AF(3), to produce evidence in relation to the professional service; and
(b) the service provider complies with the requirement within the period set out in the notice; and
(c) 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.
(7) Subsection (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.
(8) If:
(a) 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
(b) the notice recipient complies with the requirement within the period set out in the notice; and
(c) 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.
(9) Subsection (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.
General
(10) To avoid doubt, for the purposes of this section 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.
(11) To avoid doubt, an amount paid purportedly by way of benefit or payment under this Act is recoverable under this section once only.
(12) This section 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
(1) The Minister may, by legislative instrument, make rules (the upload rules ) prescribing matters required or permitted by this Act to be prescribed by the upload rules.
(2) To avoid doubt, the upload rules may not do the following:
(a) create an offence or civil penalty;
(b) provide powers of:
(i) arrest or detention; or
(ii) entry, search or seizure;
(c) impose a tax;
(d) set an amount to be appropriated from the Consolidated Revenue Fund under an appropriation in this Act;
(e) directly amend the text of this Act.
(3) Upload rules that are inconsistent with the regulations have no effect to the extent of the inconsistency, but upload rules are taken to be consistent with the regulations to the extent that the rules are capable of operating concurrently with the regulations.