Bills Digest no. 135 2007–08
Dental Benefits Bill 2008
WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.
CONTENTS
Passage history
Purpose
Background
Financial implications
Main provisions
Concluding comments
Contact officer & copyright details
Passage history
Dental Benefits Bill
2008
Date
introduced: 29 May
2008
House: House of Representatives
Portfolio: Health and Ageing
Commencement:
On the day after Royal
Assent
Links: The
relevant links to the Bill, Explanatory Memorandum and second
reading speech can be accessed via BillsNet, which is at http://www.aph.gov.au/bills/.
When Bills have been passed they can be found at ComLaw, which is
at http://www.comlaw.gov.au/.
The Dental Benefits Bill 2008 and
the Dental Benefits (Consequential Amendments) Bill 2008, establish
the legislative framework for the provision of dental benefits for
eligible teenagers under the Government s Teen Dental Plan, from 1
July 2008.
The Dental Benefits Bill 2008 also provides the legal basis for
the provision of other dental benefits through the establishment of
a Dental Benefits Schedule, allows the Minister for Health and
Ageing to make Dental Benefits Rules (the Rules), establishes
provisions for the protection and disclosure of protected
information, creates offence provisions and provides for the
appropriation of funds.
Despite a significant reduction in dental caries (tooth decay)
over the last few decades, particularly in children, only some of
this improvement has carried through to adulthood, and there remain
high levels of oral disease and disability among Australian
adults.[1] With
estimates of over 19 million untreated decayed teeth, dental caries
remains the most prevalent chronic condition affecting health
reported in the Australian population.[2] In addition, some 50 000 people
end up in hospital each year with preventable dental
conditions.[3]
Meanwhile, affordable dental care remains difficult to access,
with reports of 650 000 people waiting for public dental
services.[4]
Expenditure on dental care in Australia is largely borne by
individuals, with government funding for dental services low in
comparison. In 2005 06, the combined expenditure of all levels of
Australian government on dental services totalled $995 million,
comprising $480 million by the Commonwealth and $515 million by the
States and Territories. Individuals spent $3.5 billion on dental
services, the second most costly individual health expense (behind
medications).[5]
During the 2007 election, Labor promised to provide funding to
establish two new dental programs: a Commonwealth Dental Health
Scheme and the Teen Dental Plan. Labor argued that the Howard
government s dental program known as the Allied Health and Dental
Care Initiative (AHDCI), which was first introduced in 2004 and
subsequently revised and expanded in the 2007 08 Budget, had failed
and was poorly targeted.[6] Labor proposed redirecting funding for this scheme, some
$377.6 million over four years, to the establishment of a
Commonwealth Dental Program and a Teen Dental Plan.[7]
Details of both the proposed Teen Dental Plan and the
Commonwealth Dental Health Program are provided by the Minister for
Health and Ageing in her second reading speech for this Bill.
However, this Bill, along with the Dental Benefits
(Consequential Amendments) Bill 2008, proposes only the
establishment of the Teen Dental Plan.
Together, these proposed initiatives total some $780 million in
Commonwealth government commitment to funding dental services, a
significant expansion on the funding commitment under the
AHDCI.
Brief details of both schemes are provided below.
During the 2007 election, Labor promised up to $290 million to
fund a dental program that it claimed would assist up to one
million Australians access public dental treatment. The proposal
outlined by the Minister in her Second Reading Speech for this Bill
gives further details of this program. Under the proposal, funding
would be made available to States and Territories to assist them
clear public dental waiting list backlogs (estimated at
650 000), by funding up to one million additional dental
services over the next three years.
Currently all States and Territories provide some form of public
dental care, primarily through public dental clinics or hospitals
(although some also use private dentists). During 2005 06, the
combined expenditure on pubic dental services by State and
Territory governments was $515 million; with NSW spending the most
($134 million) and the ACT the least ($8 million).[8] Eligibility for public dental
services is often means-tested, so that it is targeted to
concession card holders and those on low incomes who cannot afford
to access private dental services.
The new Commonwealth Dental Health Program (CDHP) is modelled on
the former Keating Government s Commonwealth Dental Health Program.
This program provided $278 million to the States and Territories
over four years from 1993 94 to provide dental services to adult
concession card holders while also maintaining baseline levels of
dental funding. The program was terminated early by the Howard
government in 1996.
Funding for the new CDHP is $290 million over three years, which
represents an annual non-inflation adjusted commitment similar to
the old CDHP (which had $278 million over four years). Like the old
CDHP, the new CDHP would also require the States and Territories to
maintain their level of funding for dental services, as well as
report on spending, services and waiting lists.[9] However, unlike the former CDHP
which targeted adult concession card holders, the new program would
require the States and Territories to target other priority groups,
specifically those with a chronic disease, indigenous people and
pre-school children.[10]
The provision of dental services under the current AHDCI program
will cease from 1 July 2008. Patients who have already commenced
dental treatment will continue to receive benefits for services up
to 30 June 2008. However, new patients ceased to be accepted for
the dental component of the AHDCI from 30 March 2008.[11]
Full details of the allocation of funding for the proposed CDHP
to the States and Territories have yet to emerge; the Minister for
Health and Ageing describes discussions with the States and
Territories as being well advanced .[12] Given that the government has
indicated it wants to reduce the current number of funding
agreements with the States, it might have sought to include the
arrangements for the proposed CDHP as part of a larger funding
agreement such as the Australian Health Care Agreements (AHCAs).
However, as negotiations for the AHCAs have now been delayed, it
seems likely that a separate agreement will be required to manage
the funding arrangements for the CDHP.
Details of the Teen Dental Plan were formally announced in March
2008.[13] From 1
July 2008, eligible families those in receipt of Family Tax Benefit
A (FTB(A))[14], or
teenagers in receipt of ABSTUDY or Youth Allowance would be
provided with a voucher to allow them to access an annual dental
preventative check for teenagers aged between 12 to 17. The voucher
would provide a dental benefit for the service up to the value of
$150. The dental check-up can be delivered by either a public or
private dentist. The government estimates that this would assist
around one million teenagers to access preventative dental
care.[15]
It is proposed that the Teen Dental Plan would operate in a
similar way to Medicare arrangements through a new Dental Benefits
Schedule, also to be established by this Bill, and be administered
by Medicare Australia. The Government estimates that around one
million teenagers would be eligible for the vouchers in any one
year. This equates to approximately 55 per cent of the age eligible
population.[16]
Section 61 of this Bill proposes to allow for the establishment
of a new Dental Benefits Schedule (DBS) for the payment of dental
benefits. The DBS is to be modelled on the Medicare Benefits
Schedule (MBS) which provides for the payment of benefits under the
Health Insurance Act 1973 (Health Insurance Act).
However, unlike the MBS which provides for universal benefits ,
this Bill proposes provisions that explicitly restrict benefits
provided under the DBS to persons specified by age and income
status.
The proposed Rules would specify what items in the DBS would
attract a Medicare benefit, and the amount that would be payable
for each item. However, the Minister for Health and Ageing has
indicated that the preventative dental check could include an oral
examination, and where required, x-rays, scale and clean and other
preventative services. These include fluoride application, fissure
sealing and oral hygiene and dietary advice.[17]
There is no proposal to index dental benefits listed in the
DBS.
The Teen Dental Plan proposes that eligible teenagers would be
issued with vouchers by Medicare Australia, which would entitle
them to receive a preventative check from a private or public
sector dentist that is reimbursable by Medicare. It is proposed
that these vouchers would be issued at regular intervals during the
calendar year, commencing from July 2008 up to the end of October
2008, and thereafter in subsequent calendar years at the beginning
of the year and then on a monthly basis until October 31, for use
before the end of the calendar year. Vouchers are also used by some
States and Territories to provide access to dental
services.[18]
The Bill proposes billing arrangements that are similar to what
currently occurs under Medicare, which would allow for a range of
billing practices. Under the proposed assignment of dental benefits
provisions, the Bill would allow provider dentists to bulk bill
Medicare Australia for the check-up service, which is then
considered a full payment for the service, so the teenager (or
family) would pay nothing. Alternatively, the Bill would allow the
dentist to bill the teenager (or his or her family) who can then
request a cheque from Medicare Australia be issued in the name of
the dental provider (up to the value of $150). The teenager (or
family) would then be responsible for providing the cheque to the
dental provider (along with any outstanding fee). The third method
of billing proposed under this Bill is where the teenager (or
family) pays the dental bill, and then makes a claim to Medicare
Australia for a rebate (up to $150).
Of the three billing practices described above, only one, bulk
billing, guarantees that the teenager (or family) would pay nothing
for the service. As the Government s own estimates suggest the cost
of a dental check-up is around $290[19] and dentists are free to set their
own fees, patients accessing dental benefits who are not bulk
billed may be exposed to significant out-of-pocket costs. Data on
levels of bulk billing by dentists who participated in the AHDCI
are not available, so it is not possible to estimate what levels of
bulk billing might be achieved under the Teen Dental Plan.
The Bill proposes to prevent the use of private health insurance
to top-up the gap amount between the rebate amount ($150) and the
fee charged by the dentist. This is also consistent with current
Medicare arrangements which do not allow this practice.
The Bill proposes that services can be provided by a dental
provider, or on behalf of a dental provider under the supervision
of a dentist. This would allow for services to be delivered by a
dental hygienist or dental therapist under the supervision of a
dentist.
The measure is a 2008 09 Budget commitment, which delivers on an
election promise.
As noted previously, it is proposed that the two new programs
the proposed Teen Dental Plan and the CDHP replace the former
Howard Government s AHDCI which the current Government describes as
a failed scheme and poorly targeted .[20]
Under the AHDCI scheme, people with chronic conditions who were
being managed by a GP could access dental benefits through
Medicare. However, uptake of services under the scheme was
initially slow; in its first three years of operation some 16 000
services were provided and just $1.8 million in benefits were
paid.[21] Following
changes to the scheme that applied from November 2007, uptake of
services and payment of benefits increased substantially.[22] From November 1 2007
to March 31 2008, some 171 000 dental services were accessed and
$21.8 million in Medicare benefits were paid.[23]
Some such as Professor Hans Zoellner, Chairman of the
Association for the Promotion of Oral Health, have called for the
retention of the AHDCI scheme. He argues, that although
experiencing initial problems, recent increases in the uptake of
the scheme contradict Labor s argument that the AHDCI scheme was
not working. He further argues that funding the two proposed
replacement programs was money poorly spent , because there were no
strings attached for the funding to the States, and the dental
checks for teenagers do not include treatment services.[24] As noted by another
commentator, the proposed Teen Dental Plan does not include funding
for further appointments to treat either established disease or
prevent future problems, so families may face additional costs
associated with treating dental problems identified in the
check-up.[25]
Others have expressed concern that the proposed $150 voucher will
not go far enough in the provision of preventative care .[26]
The Australian Dental Association (the ADA) has raised similar
concerns. While broadly welcoming the Commonwealth Government
taking responsibility for dental health, the ADA has nevertheless
expressed the view that the two new programs could be better linked
.[27] The ADA also
has concerns that the Teen Dental Plan is too narrow, and fails to
provide a complete course of treatment , which it argues, could
lead to teenagers who require more treatment, moving back onto
public sector dental waiting lists.
If this occurs and substantial numbers of teenagers move onto
public dental waiting lists, it is not clear if the proposed new
CDHP would be sufficiently resourced to provide public dental
services for the new groups that the Government now wants it to
target. These include those with chronic diseases who would no
longer have access to the AHDCI, pre-school children, and
indigenous Australians. State-based public dental programs already
provide services to people on low incomes, and to students through
school dental services, but as has been noted, there are
substantial waiting lists for many of these services, and although
the government has committed $290 million over three years for the
new CDHP, some argue that this is less than was provided to the
States under the old CDHP.[28]
Further, while the Minister for Health and Ageing has allowed
for public sector dentists to provide the preventative dental
check-up, it is not clear how these might be provided in a timely
manner, given already long waiting lists for public dental
services, and the questions over the levels of funding for the
proposed CDHP.
As previously noted, private dentists are free to set their own
fees; the fee for a comprehensive dental check-up has been
estimated at $290, significantly higher than the maximum rebate of
$150 proposed under the Teen Dental Plan. Although the Bill
proposes to allow dentists to bulk bill, it is not clear how many
would choose this option. Some dentists may find the proposed
requirements to use approved forms for assignment of benefits and
the proposed offence provisions if they fail to do so,
disincentives to bulk bill.
If the estimate of $290 for a dental check-up is correct, and a
number of dentists decline to participate in bulk billing
arrangements, some families might face high out of pocket costs for
the dental check up, which are not reimbursable by private health
insurance. Although families with high out of pocket costs
associated with out-of-hospital services normally have these
expenses counted towards the Medicare Safety Net[29] which provides reimbursement
once certain spending thresholds are reached these arrangements
would not apply to the dental benefits items.[30] Those eligible for the Teen
Dental Plan are by definition on modest incomes, but they may face
additional costs in accessing the dental check-up being offered
under the Teen Dental Plan, without the support of the Medicare
Safety Net.
Another resource constraint that is likely to be faced in
meeting the objectives of both the Teen Dental Plan and the CDHP is
the ongoing shortage in the dentistry workforce. It has been
estimated that by 2010 there would be 1500 fewer oral health
providers than would be needed just to maintain current levels of
access.[31] In
particular, the distribution of dentists in regional and remote
areas remains significantly less than in metropolitan
areas.[32] The 2008
09 Budget also allows for additional funding to establish a school
of dentistry at James Cook University[33], but it will take some years before
dentists graduating from this facility will enter the dentistry
workforce.
Although the Teen Dental Plan proposes to allow dental services
to be delivered by providers other than dentists, such as dental
therapists and dental hygienists, the capacity of this workforce to
deliver services is also limited in some areas. While there have
been increases in this workforce since 2000, the rural, regional
and remote areas remain less well-served as compared to
metropolitan regions.[34]
The requirement under the Teen Dental Plan that vouchers be used
before the end of the calendar year in which they have been issued,
may create problems if families are unable to arrange a dental
check up before the end of that calendar year. This might be a
particular problem for families with older teenagers who qualify
for FTB(A) after October, when the regular issuing of vouchers is
proposed to cease. Although the Bill proposes to allow a family to
request a voucher after this date, to be issued up to 15 days
before the end of the year, it may still be difficult to arrange a
dental appointment before the eligibility for the voucher expires
at the end of the calendar year (for example, if the teenager turns
18). The ADA has criticised the proposed scheme for failing to
extend services to an older age group people up to their early
twenties as this age group have shown a significant susceptibility
to dental decay .[35]
The proposed introduction of a means-test in order to access
dental benefits under the Teen Dental Plan merits some further
comment, although as yet, it has not attracted comments from
stakeholder groups. The introduction of a means-test to a Medicare
program (which this scheme is characterised as) represents a
significant shift from the universal principles that have been
recognised as underpinning Medicare. The Teen Dental Plan proposes
to target benefits to those defined as being in financial need
through the application of a means test. Medicare itself has always
been characterised as a universal health insurance system. The
reason for this characterisation is that the two cornerstones of
Medicare are based on universal access (based on clinical need) and
universal insurance (via the Medicare levy) for those covered by
Medicare.[36]
Although no commentary has appeared on this issue in relation to
this Bill, it may yet become contentious, particularly given that
in the past Labor has supported the universal principles of
Medicare.[37]
The Senate Standing Committee for the Scrutiny of Bills (the
Committee) reviewed the Bill and made specific comment on the
following proposed provisions in the Bill:
- strict liability offences in proposed subsections 48(2), 49(2),
50(2) and 51(2), and
- incorporation of extrinsic material in proposed subsection
60(3).
The Committee noted that proposed subsections 48(2),
49(2), 50(2) and 51(2) of the Bill would create strict
liability offences, for which the Committee generally requires an
explanation to be provided in the Explanatory Memorandum to the
Bill. In this case, the Committee noted the Government s reference
to consistency with existing strict liability offences in the
Health Insurance Act, as well as the need to reflect current
criminal law policy. The Committee stated that:
seeks the Minister s advice whether the current
criminal law policy which is referred to is that set out in the
Guide to Framing Commonwealth Offences, Civil Penalties and
Enforcement Powers, and, if so, whether the explanatory
memorandum might have made that fact clear.[38]
In addition, the Committee stated:
Pending the Minister s advice, the Committee
draws Senators attention to the provisions, as they may be
considered to trespass unduly on personal rights and liberties, in
breach of principle 1(a)(i) of the Committee s terms of
reference.[39]
The Committee noted that proposed subsection
60(3) would allow the Rules to incorporate extrinsic
material, which would contravene subsection 14(2) of the
Legislative Instruments Act 2003 (Legislative Instruments
Act).
The Committee stated that it:
notes that the explanatory memorandum (page 27)
seeks to justify the incorporation of extrinsic material as in
force from time to time on the basis that it may be of assistance,
for example, if the Dental Benefits Rules should refer to
instruments made under State or Territory Acts, or other documents,
relating to registration, licensing or accreditation, when
specifying a class of persons to be dental providers for the
purpose of paragraph 6(1)(b) of the bill. The Committee notes,
however, that the bill does not place any limits on the extrinsic
material that may be applied, adopted or incorporated. That is, it
does not limit it to the sorts of material cited in the
example.[40]
The Committee concluded that:
This clause may insufficiently subject the
exercise of legislative power to parliamentary scrutiny, and seeks
the Minister s advice as to whether there might not be some limit
put upon the exercise of this power.[41]
The Explanatory Memorandum details the budgeted total
cost for the Dental Benefits Bill 2008 and the Dental Benefits
(Consequential Amendments) Bill 2008 as being $490.7 million over
five years. This is less than the $510 million in funding over
three years originally promised in the lead-up to election.[42]
The budgeted costs include funding for Medicare Australia and
Centrelink to introduce administrative changes and to manage the
program. The table below shows the annual budgeted costs:
|
2007-08
($m)
|
2008-09
($m)
|
2009-10
($m)
|
2010-11
($m)
|
2011-12
($m)
|
|
5.6
|
101.5
|
111.1
|
133.2
|
139.3
|
Source: Explanatory
Memorandum
The government estimates that around 1.1 million teenagers would
be eligible for the vouchers each year.[43] However, if all the eligible
teenagers accessed the scheme each year and claimed up to the
maximum rebate of $150, then the scheme could cost around $165
million per year, well in excess of the annual forecast costs in
the Explanatory Memorandum.[44] This might suggest that the government does not
expect that all of the proposed preventative services would be
fully utilised, or that all eligible teenagers would access the
scheme.
Proposed sections 3 to 7
outline the Act, list definitions used in the Act, describe the
meaning of an eligible dental patient with reference to age and
income status, describe the meaning of a dental provider and the
meaning of a service rendered on behalf of a dental provider.
Proposed section 9 would
create a basic entitlement to a dental benefit.
Proposed section 9 also provides
that the amount payable for the dental service would be in
accordance with the proposed Rules, and that this amount would not
exceed the amount of the dental service expense (that is, the fee
charged by the dentist).
Proposed section 11 would authorise Medicare
Australia to pay a dental benefit, which may be credited into a
bank account, as specified by the proposed Rules or in a manner as
determined by the Chief Executive Officer (the CEO) of Medicare
Australia.
Proposed section 12 relates to
the assignment of benefits (bulk billing), which would allow for
the person and the dental provider (or his or her agent pursuant to
proposed subsection 12(4)) to enter into an
agreement, in the approved form, for the person to assign his or
her right to the dental benefit as payment in full to the dental
provider (or his or her agent pursuant to proposed
subsection 12(4)) for the dental service.
Proposed section 13 would
allow for the assigned benefit to be paid into a bank account as
specified by the proposed Rules or in a manner as determined by the
CEO of Medicare Australia.
Proposed section 14 would require that a cheque
be provided to a person by Medicare Australia, drawn in favour of a
dental provider who had rendered dental services (or on whose
behalf dental services were rendered) to that person, if requested
to do so by that person who has not paid for the dental
service.
Proposed section 15 would allow a claim for an
unassigned dental benefit to be lodged with Medicare Australia in
the approved form and as specified in the proposed Rules. The
proposed section would also allow for a claim for assigned dental
benefits under proposed section 12 to be made
within two years after that service is rendered and would allow for
this claim to be sent electronically.
Proposed section 16 would
allow for a person to apply to the CEO of Medicare Australia for a
longer period in which to lodge a claim for assigned benefits and
gives the CEO of Medicare Australia discretionary power to allow
this.
Proposed section 17 sets out the financial
recording requirements of dental providers (or their employees)
that must be satisfied for a dental benefit to be payable. These
include recording the account or receipt of fees, voucher and
assignment of benefit details, the particulars of which are
specified in the proposed Rules.
Proposed section 18 would
allow for the proposed Rules to specify the conditions which must
be satisfied before a dental benefit is payable, including
conditions relating to dental services rendered by or on behalf of,
or an arrangement with a Commonwealth, State or Territory
Government; local governing body or an authority established by
law.
Proposed section 19 provides
that a dental benefit is not payable if the person has a complying
health insurance policy (as defined in the Private Health
Insurance Act 2007 (the Private Health Insurance Act),
covering that person s liability to pay expenses related to a
dental service; and that person uses his or her private health
insurance to receive a benefit for the dental service.
Proposed section 20 provides that a dental
benefit is not payable if the dental service was rendered as part
of an episode of hospital treatment, or hospital substitute
treatment (as defined under the Private Health Insurance Act).
Proposed section 21 provides
that a dental benefit may not be payable if the Rules so specify.
Proposed section 21 also provides
examples of such circumstances.
Although this part deals specifically with the issuing of
vouchers under the proposed Teen Dental Plan, the Explanatory
Memorandum points out that the provisions in this part could allow
vouchers to be issued for other dental services in the
future.[45]
Proposed section 23 provides
that a person is eligible for a voucher provided they satisfy the
age requirement and the means-test requirement in proposed
section 24 below. The section specifies that the person
must be aged at least 12 years (or will turn 12 in the particular
calendar year), but is under 18 years of age on 1 January of that
calendar year.
Proposed subsection 24(1) sets
out a basic rule to be applied when assessing whether a person
satisfies the means test. Under the basic rule , a person will
satisfy the means-test if he or she:
- receives an ABSTUDY payment pursuant to proposed
subsection 24(4)
- receives youth allowance
- is an FTB(A) teenager, or
- belongs to a class of persons as specified by the proposed
Rules.
Proposed subsection 24(2) explains when a
person would be considered an FTB(A) teenager.
In some cases, there is a section 16 determination in force. A
section 16 determination , as defined in proposed
subsection 24(3), is a determination under the New Tax
System (Family Assistance) Act 1999, and refers to a situation
where a person is eligible to receive a FTB(A) payment by
instalment, including one who chooses to defer payment of the
instalment in order to avoid a potential FTB(A) debt. A section 16
determination may also apply to the teenager s partner.
A teenager would also be considered an FTB(A) teenager if other
considerations are satisfied, including:
- the teenager or teenager s partner having received an FTB lump
sum payment (as defined in proposed subsection
24(3)) in the previous financial year, or
- an FTB recipient in relation to the teenager (as defined in
proposed subsection 24(3)) received an FTB lump
sum payment, as defined, in the previous year.
The Rules may also specify classes of persons who would be
regarded as FTB(A) teenagers.
Proposed section 25 would
allow for the proposed Rules to specify the time, or method of
calculating the time, at which a person satisfies the means test,
as well as when a person is an FTB(A) teenager.
Proposed section 26 would
allow for the Rules to specify that each eligible person in a
specified class of eligible persons qualifies for a voucher in a
calendar year relating to a specific dental service.
Proposed section 27 provides
for the issuing of vouchers by the CEO of Medicare Australia.
Vouchers would normally be issued before 31 October of a calendar
year, in order to limit the distribution of vouchers late in the
year where there would be limited opportunity to use them. However,
this proposed provision would also allow for a voucher to be issued
before the end of the calendar year, if a person becomes eligible,
but not if the request is made within 15 days of the end of the
calendar year. Proposed subsection 27(5) would
allow for more than one voucher to be issued in a calendar year
(for example, in the case where there are equal shared care
arrangements), however only one dental benefit is payable.
The Rules may specify alternative dates and/or time limits to
what is provided in the Bill. In addition, the Rules may specify
when more than one voucher for a dental service may be issued for a
person in any calendar year.
Proposed section 27 applies subject to
proposed sections 28 and 29.
Proposed section 28 provides
that a voucher is not required to be issued if a person dies before
the voucher is issued.
Proposed section 29 would
allow the Rules to specify circumstances where a voucher does not
have to be issued.
Proposed section 30 provides
that the voucher must specify the type of dental service to which
it gives access. In the case of the Teen Dental Plan, this is a
preventative dental check-up.
Proposed section 31 specifies
that a voucher would remain effective from the date it is issued
until the end of the calendar year. However, the Rules may specify
a different time of effect.
Proposed section 32 would allow for the
proposed Rules to provide for other matters, including matters
relating to requests for vouchers, the period of effect of
vouchers, the persons to whom vouchers are to be issued and lost
vouchers.
Proposed subsection 34(1) provides that it is
an offence for an entrusted public official (or former entrusted
public official), with a duty, function or power under the
legislation, to disclose protected information to another person,
if such disclosure is not authorised under Part 5 of the proposed
Act. Such an offence attracts a maximum penalty of imprisonment for
two years or 120 penalty units[46], or both.
Proposed subsection 34(2) identifies who would
be an entrusted public official , listing the CEO, employees, or
consultants of Medicare Australia, the Minister for Health and
Ageing, as well as the Secretary of the Department of Health and
Ageing and any person employed or engaged by that Department.
Protected information is defined in proposed
subsection 34(3) as information relating to a
person other than the person who obtained it in the course of
exercising his or her duties, functions or powers under the
proposed Act; or such information if obtained by way of an
authorised disclosure on public interest grounds under
proposed section 36.
Proposed sections 35 41 outline the
circumstances in which a disclosure of protected information is
authorised under the Act. These include when such information:
- is disclosed during the course of one s own official duties,
functions or exercise of powers under the proposed Act; or to
enable someone else to perform duties or functions, or to exercise
powers, under the proposed Act; or the Medicare Australia Act
1973 (Medicare Australia Act)
- is certified[47] to be in the public interest and disclosure is in
accordance with the Rules
- is authorised (either expressly or impliedly) to be disclosed
to a particular person by the person to whom the information
relates
- reasonably needs to be disclosed to enforce the criminal law, a
law imposing a pecuniary penalty or the protection of public
revenue[48]
- should be disclosed to prevent or lessen a serious and imminent
threat to a person s life or health[49]
- is disclosed to the professional body responsible for
overseeing dental providers, where that information relates to a
dental provider (or the dental services rendered by or on behalf of
a dental provider), provided the protected information of a dental
provider s patient is only disclosed when necessary in connection
with reporting to the professional body,[50] and
- is disclosed to specified persons (including employees of
Centrelink and Medicare Australia) for the purposes of
administering the proposed Act.
Proposed section 42 would prohibit an entrusted
public official (or former entrusted public official) from being
required to disclose protected information obtained by that
official in the course of performing his or her duties or
functions, or exercising powers, under the proposed Act to a court
or tribunal (except for the purposes of the proposed Act).
Proposed section 43 provides that it would be
an offence for a person to disclose protected information obtained
through public interest certification under proposed
section 36, when such disclosure is not authorised. Such
offence would attract a maximum penalty of imprisonment for two
years or 120 penalty units, or both.[51]
Proposed sections 44 46 create offences
relating to other types of disclosure of protected information.
These include soliciting disclosure of prohibited information;
soliciting, disclosing or using protected information; and offering
to supply (or holding oneself as being able to supply) protected
information. All such offences attract a maximum penalty of
imprisonment for two years or 120 penalty units,[52] or both.
Part 6 of the Bill establishes general offence provisions
relating to assignment agreements and the giving of information.
Recovery provisions are also established in the case of false or
misleading statements or prior overpayments.
The Part outlines seven offences and these are modelled on
existing offences in the Health Insurance Act. The Explanatory
Memorandum justifies the alignment with similar provisions in the
Health Insurance Act[53] as a way to ensure consistency in patients treatment
and practitioners administrative arrangements relating to billing
and claiming.[54]
Proposed section
48 would create an offence when a dental provider, or his
or her agent, enters into an agreement, in which particulars of a
dental service must be set out in approved form, and the provider
has not set out those particulars in the agreement before the other
person signs the agreement.
Proposed section
49 would create an offence for a dental provider, or his
or her agent, to not give a copy of the (signed) agreement to the
other person as soon as practicable after it has been signed.
The penalty for each of those offences is 10 penalty
units[55] and both
offences are strict liability offences.[56] Noting the comments by the Senate
Committee Scrutiny of Bills Committee discussed earlier, further
clarification in the explanatory memorandum about the use of strict
liability offences is preferable. However, it is likely that the
strict liability nature of the offences would enhance the deterrent
effect of the provision, encouraging providers to take particular
care in completing assignment agreements.[57]
Proposed sections 50 and 51 provide for two
strict liability offences relating to false or misleading
statements. The penalty for making an oral or written statement (in
connection with a claim for a dental benefit) that is false or
misleading would be 20 penalty units.[58]
Proposed subsection 50(3) also requires that
any prosecution under this section must be instituted within three
years of the time when the false or misleading statement was
made.
Proposed section 51 would create an offence for
an employee, agent or associate of a person to make a false or
misleading statement that is substantially used by that person to
make another false or misleading statement that is capable of being
used in connection with a claim for a dental benefit.
The strict liability nature of the offences in proposed
sections 50 and 51 is justified by the need to ensure that
providers and their employees guard against the possibility of
contravention and ensure the accuracy of their claiming
arrangements. Again, these offence provisions and their penalties
are consistent with similar offences that currently exist under the
Health Insurance Act. However, please refer to the Senate Committee
Scrutiny of Bills Committee s comments regarding strict liability
offences as discussed earlier in this Digest.
Proposed sections 52 and 53
would create offences relating to knowingly making false or
misleading statements that could be used to claim a dental benefit.
This includes statements made by employees, agents or associates.
Again, these offence provisions are similar to those in the Health
Insurance Act.[59]
The maximum penalty for these offences is five years imprisonment,
100 penalty units[60] or both, which is consistent with existing similar
provisions. Imprisonment as an alternative punitive measure is
justified to serve as a disincentive to engage in the prohibited
conduct. The Explanatory Memorandum justifies the departure from
preferred penalty benchmarks on the grounds that consistency is
necessary because practitioners would be making parallel claims
under Medicare and the Dental Benefits Scheme.[61] However, this does not seem to
be a realistic justification on the grounds that it would not be
common practice for a dentist to claim under both Medicare and the
Dental Benefits Scheme for the one patient at any one time. While
some dentists already provide services under Medicare, relating to
surgical procedures done in hospital, only preventative dental care
(check-ups, clean, fissures etc) is covered by the proposed Dental
Benefits Scheme.
Proposed section 54 provides for an offence of
knowingly giving information that is false or misleading. Again,
this offence is similar to section 129 of the Health Insurance Act.
As with proposed sections 52 and
53, this offence would be consistent with existing similar
arrangements for Medicare benefit arrangements.
Proposed section 55 provides that the
abovementioned offences (proposed sections 52, 53,
54) are indictable offences.[62] Proposed
subsection 55(2) provides that the offences could
be dealt with summarily if both parties consent and the court is
satisfied that is proper to do so. If the court does deal with any
of these offences summarily, proposed
subsection 55(3) provides that the court cannot
impose a penalty greater than imprisonment for six months or ten
penalty units.[63]
Proposed section 56 provides for the recovery
of amounts paid in the case of false or misleading statements. Two
conditions must be satisfied:
- a dental benefit is paid, and
- as a result of the making of a false or misleading statement,
the amount of dental benefit paid exceeds the amount that should
have been paid.
The excess amount is recoverable as a debt due to the
Commonwealth. Proposed subsection 56(3) provides
that the debt is recoverable whether or not the amount was paid to
the person by or on behalf of whom the statement was made and
whether any person has been convicted of an offence in relation to
the making of the false or misleading statement.
Proposed section 57 provides for interest to be
payable to the Commonwealth on an excess amount recoverable under
proposed subsection 56(2). Proposed
subsection 57(2) outlines the circumstances in which
interest is payable. Proposed subsection
57(5) provides that interest is payable at the
rate prescribed under the Health Insurance Regulations
1975.
Proposed section 58 would allow the CEO of
Medicare Australia to reduce the dental benefit payment because of
a prior overpayment. The amount of the reduction is calculated in
accordance with proposed subsections
58(3) to (5).
Proposed section 60 would
allow the Minister to make the Rules by legislative
instrument.[64]
Proposed subsection 60(1) provides that these
Rules may provide for matters required or permitted by the proposed
Act to be provided, or matters that are necessary or convenient in
order to give effect to the proposed Act. Proposed
subsection 60(2) may confer power on the Minister
or the CEO of Medicare Australia. Under proposed
subsection 60(3) the Rules may incorporate matters
contained in other legislative instruments.
Proposed subsection 60(4) has the
effect of allowing matters to be incorporated into the Rules that
would not be allowed under the Legislative Instruments
Act. Note the Committee s comments on this issue, as
previously discussed in this Digest.
Proposed subsection 61(1)
provides for the Rules to establish a Dental Benefits Schedule
(DBS) that sets out the items for dental benefits services and the
dental benefit payable (or a method for determining such amount
payable) for each of the dental services. Proposed
subsection 61(2) provides that the Rules may set
out the rules for interpretation of the DBS.
Proposed subsection 62(1)
provides that the specification of a dental service in an item in
the DBS may be unconditional or subject to conditions, limitations
or restrictions as specified in the Rules or the DBS.
Under proposed subsection
62(2), these conditions, limitations or restrictions could
include imposing a monetary limit on the amount of dental benefit
payable, in respect of a specified dental service, or dental
services provided to an eligible patient, or dental services
provided to an eligible patient during a specified period.
Proposed subsection 64(1) would confirm that,
in addition the normal functions of the CEO of Medicare Australia
relating to the Medicare Australia Act, the CEO of Medicare
Australia has additional the functions as conferred on him or her
under the proposed Act.
Proposed subsection 64(2) further provides that
anything done by or on behalf of the CEO of Medicare Australia, in
performing those additional functions, is taken to have been done
for the purposes of performing functions under the Medicare
Australia Act.
Proposed section 65 provides that dental
benefits payable under the proposed Act would be payable out of the
Consolidated Revenue Fund. This makes the payment of dental
benefits a standing appropriation, in the same way as the standing
appropriation for Medicare benefits under the Health Insurance
Act.
Proposed section 66 provides for the Secretary
of the Department of Health and Ageing to delegate, in writing, his
or her powers under the proposed Act to an Senior Executive Service
(SES) employee,[65]
or acting SES employee of the Department, who must comply with any
directions of the Secretary.
Proposed section 67 would give the
Governor-General discretionary power to make regulations that
prescribe matters required or permitted to be prescribed by the
proposed Act; or which are necessary or convenient to give effect
to the proposed Act.
Concluding comments
This Bill proposes to establish a legislative framework for the
payment of means-tested dental benefits, in a manner that is, to a
limited extent, similar to the payment of medical benefits under
Medicare arrangements.
The Bill enacts an election commitment to introduce a Teen
Dental Plan from July 2008. It proposes that eligible teenagers in
receipt of FTB(A), youth allowance or ABSTUDY, receive a voucher
that entitles them to obtain an annual preventative dental check-up
from a provider dentist, reimbursable from Medicare. The value of
the voucher is $150, which may be lower than the fee charged by a
dentist.
Commentators have expressed concerns, including concerns that
the value of the voucher would be insufficient to meet the cost of
the preventative dental check-up; follow-on treatment services are
not provided which would lead to added pressure on public dental
waiting lists; or that the age eligibility criteria are too narrow.
Some commentators have also expressed support for the ADHCI, which
is due to cease after July 2008.
Finally, as previously mentioned, the capacity of the current
dental workforce to meet the demand for dental services that is
likely to flow as a result of this proposed Bill is limited.
[62]. An indictable offence is an offence
against the law of the Commonwealth punishable by imprisonment for
a period of more than 12 months, unless the contrary intention
appears: the Crimes Act 1914 section 4G.
Amanda Biggs
Monica Biddington
13 June 2008
Bills Digest Service
Parliamentary Library
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