Determining Authority consideration

Overview of the Determining Authority

The Determining Authority has two distinct functions, which are to:

  • consider any agreement entered into between you and the Director under section 92 of the Act and to ratify, or refuse to ratify, that agreement
  • 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 as you.

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.

Ratification of section 92 agreements

If you entered into a section 92 Agreement with the Director, your matter will be referred to the Determining Authority for ratification.

The Determining Authority will consider the documents provided by the Director which can include:

  • the original Request to Review from a delegate of the Chief Executive Medicare
  • the Director’s report made under section 89C of the Act
  • any submissions you have made and
  • the signed section 92 Agreement.

Part of the Determining Authority’s role is to ensure that the Agreement referred to it is fair and reasonable in all the circumstances.

The Determining Authority will decide to either ratify or refuse to ratify the agreement and will write to you and the Director within 7 days of making their decision.

If the Agreement is ratified you will be advised of the date of effect for the agreement. Once ratified the Agreement is binding on you and the Director. Ratified agreements are referred to the Department of Health and a representative from the Department will contact you about any debts that may need to be paid under the agreement.

If the agreement is not ratified the Determining Authority will advise you and the Director and provide reasons for the refusal. The Director will then seek to either:

  • enter a new section 92 Agreement with you; or
  • refer your matter to a Committee.

Referral of a 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
  • 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
  • full disqualification from billing all MBS items for up to 3 years
  • repayment of some or all of the Medicare benefits for MBS items that you billed and were found to have provided inappropriately during the review period
  • full disqualification from the PBS for up to 3 years.

If you have previously acknowledged or 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

Your submission should specifically relate to what directions the Determining Authority should make. There is no opportunity to make submissions about whether you engaged in 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 you or your adviser may have made to the Committee, you should attach it to your submission.

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

The Draft Determination

The Determining Authority will consider all the documents before it, including any submissions you make, 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.

Your submission at this stage of the process should focus on the details of the Draft Determination and the reasons why any changes that you suggest 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 your 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 you may have 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.