Determining Authority consideration

This content is prepared for employers, including corporate entities &/or their related officers, subject to a review under Part VAA of the Health Insurance Act 1973.

Overview of the Determining Authority

The Determining Authority has one function in relation to you, which is to make a Draft and then Final Determination specifying what consequences should follow if a Committee finds that you engaged in inappropriate practice.

The Determining Authority consists of three members:

  • a Chair, who is a medical practitioner
  • a member of the public who is not a medical practitioner
  • a member who is a practitioner in the same profession/speciality as the practitioners engaged by you who were found by the Committee to have engaged in inappropriate practice.

The members of the Determining Authority are appointed by the Minister after consultation with the AMA or organisations or associations representing the interests of the profession that you belong to.

The Determining Authority meets in private, usually monthly.

Referral of Committee Final Report to the Determining Authority

Within one month of receiving a Committee’s Final Report, the Determining Authority must invite you to make a written submission about the directions the Determining Authority should make following the Committee’s findings of inappropriate practice.

The Determining Authority cannot revisit a Committee’s finding of inappropriate practice. Its focus is limited to making a Draft and then a Final Determination containing one or more of the directions set out in section 106U of the Act. Those are:

  • a reprimand
  • counselling
  • if you are a practitioner, disqualification from billing certain MBS items, providing Medicare services to a class of persons, or providing some or all Medicare items from a certain location for up to 3 years. This can include full disqualification from billing all MBS items for up to 3 years.
  • Repayment by you of some or all of the Medicare benefits for MBS items that were billed by practitioners employed or otherwise engaged by you and which were found to have been provided inappropriately during the review period
  • full disqualification from the PBS for up to 3 years.

For a practitioner person under review who has previously been found to have engaged in inappropriate practice, the maximum duration of a disqualification is 5 years, rather than 3 years.

Preparing Submissions to the Determining Authority

Submissions to the Determining Authority should specifically relate to what directions the Determining Authority should make. There is no opportunity to make submissions about the finding of inappropriate practice, as this is outside the Determining Authority’s role.

The Determining Authority will receive a copy of the Committee’s Final Report, including any attachments, and the Director may provide additional information to the Determining Authority. You will receive a copy of the documents that are sent to the Determining Authority. If there is any additional material you would like the Determining Authority to consider, including any submissions made to the Committee, this should be attached to the submission.

You have one month from receipt of the Determining Authority’s invitation to make a submission.

The Draft Determination

The Determining Authority will consider all the documents before it, including any submissions addressed to it, when preparing its Draft Determination.

You will be provided with the Draft Determination and an invitation to make a further written submission within 14 days on the decision.

The submission at this stage of the process should focus on the details of the Draft Determination and the reasons why any suggested changes should be made. You may wish to submit why any directions in the Draft Determination are unsuitable.

The Final Determination

The Determining Authority will take into account any submissions you have made on the Draft Determination and following consideration of that submission, a Final Determination will be made.

The Final Determination will include:

  • the Determining Authority’s final decision on the direction/s that should be applied
  • the reasons for the decision
  • details of the material the Determining Authority relied on in making its decision including any submissions on the Draft Determination that may have been made.

Unless court proceedings are instituted, the Final Determination will take effect 35 days after the day you receive a copy.

The Determining Authority will give copies of the Final Determination to the Director and the Chief Executive Medicare, who will also be provided with a copy of the Committee’s Final Report.

The Department of Health is responsible for implementing the Final Determination including any disqualification and recovering Medicare benefits.