Part 1 Preliminary

1 Name of instrument

This instrument is the Health Insurance (Approved Billing Agents) Instrument 2017.

2 Commencement

This instrument commences on the day after registration.

3 Repeal

This instrument repeals:

(1) The Health Insurance (Billing Agents – Conditions of Approval) Determination (No. 1) 2004; and

(2) The Health Insurance (Approval of Billing Agents) Guidelines (No. 1) 2004.

4 Authority

This instrument is made under subsection 20AB(5) and 20AB(6) of the Health Insurance Act 1973.

5 Schedule

The Schedule sets out the Guidelines that are made under subsection 20AB(6) of the Act for the purposes of subsection 20AB(3) of the Act.

6 Definitions

Note: A number of expressions used in this instrument are defined in the Act, including the following:

(a) approved billing agent

(b) medicare benefit

(1) In this instrument:

Act means the Health Insurance Act 1973.

assignment means an assignment under section 20A of the Act.

bank means a body corporate that is an ADI (authorised deposit-taking institution) for the purposes of the Banking Act 1959.

Chief Executive Medicare has the same meaning as Part IIA, section 4 of the Human Services (Medicare) Act 1973

Corporation has the same meaning as in section 57A of the Corporations Act 2001, but does not include an unincorporated body.

Note: Section 57A of the Corporations Act 2001 defines the term ‘corporation’ to include all bodies incorporated or formed under the law of any State or Territory and, for the avoidance of doubt, this includes Aboriginal and Torres Strait Islander corporations. The term does not include exempt public authorities and corporation soles.

private health insurer has the same meaning as in section 1 of Schedule 1 of the Private Health Insurance Act 2007.

item number has the same meaning as in part 1, section 3 of the Health Insurance Act 1973.

State includes Territory.

(2) In the Guidelines, a person manages a corporation, partnership, or other body if:

(a) they are a director, secretary or other officeholder of the corporation, partnership or other body;

(b) they make, or participate in making, decisions that affect the whole, or a substantial part, of the business of the corporation, partnership or other body;

(c) they exercise the capacity to affect significantly the corporation, partnership or other body's financial standing; or

(d) they communicate instructions or wishes (other than advice given by the person in the proper performance of functions attaching to the person's professional capacity or their business relationship with the corporation, partnership or other body) to the corporation, partnership or other body:

(i) knowing that the corporation, partnership or other body is accustomed to act in accordance with the person's instructions or wishes; or

(ii) intending that the corporation, partnership or other body will act in accordance with those instructions or wishes.

7 Conditions of approval

For the purposes of subsection 20AB(5) of the Act, an approval made under subsection 20AB(1) of the Act is determined to be conditional upon the approved billing agent complying with undertakings given under one or more of the following:

(a) Part 3, Health Insurance (Approval of Billing Agents) Guidelines 1998;

(b) Part 3, Health Insurance (Approval of Billing Agents) Guidelines 2003;

(d) Part 1 of this instrument.

Schedule Guidelines

Part 1 Criteria for Approval

1 Prohibited person not to be approved

(1) The Chief Executive Medicare must not approve an applicant:

(a) who is a prohibited person; or

(b) that is a partnership, if a partner, or a person managing the partnership, is a prohibited person; or

(d) that is another body, if a person managing it is a prohibited person.

(2) For subsection (1), prohibited person means a person who, under Part 2D.6 of the Corporations Act 2001, is disqualified from managing a corporation.

2 Billing agent to give copy of annual report

(1) This section applies to an applicant applying for approval because his, her or its existing approval has expired or is about to expire.

(2) The Chief Executive Medicare must not approve the applicant unless the applicant:

(a) has given the Department of Human Services a copy of an annual report, prepared by a qualified person, for the financial year that immediately precedes the financial year in which the application is made; or

(b) if the report is not yet available at the time application is made - undertakes to give the Chief Executive Medicare a copy before
30 September in the financial year in which the application is made.

(3) The annual report must include the following information about the applicant:

(a) a profit and loss statement;

(b) a cash flow statement;

(4) The annual report must include a certification by the qualified person:

(a) that the information in the report is accurate (if that is the case); and

(b) that the trust account mentioned in section 9 has been operated in accordance with relevant laws of the State or States in which the applicant operates the trust account.

(5) For this section, qualified person means a person who is not an officer or employee of the applicant and who is registered as an auditor, or taken to be registered as an auditor, under Part 9.2 of the Corporations Act 2001.

3 Billing agent must keep trust account

(1) The Chief Executive Medicare must not approve an applicant unless the applicant has given the Chief Executive Medicare details of a trust account kept for all amounts received by the applicant as a billing agent.

(2) Subject to subsection 3(2), the trust account must be:

(a) established with a bank; and

(b) conducted separately from all other accounts conducted by the applicant.

(3) If the applicant is unable to create a separate trust account for amounts received by the applicant as a billing agent, the trust account need not be conducted separately from all other accounts conducted by the applicant provided that:

(a) the account is compartmentalised or maintained in such a way as to keep amounts received by the applicant as a billing agent separate from all other amounts; and

(b) it is not inconsistent with any law of the Commonwealth or any law of a State to operate the trust account in this way.

(4) The information given to the Chief Executive Medicare about the trust account must include:

(a) the name and number of the account, and

(b) the name, address and BSB number of the bank that holds the account.

4 Billing agent to give copy of certificate of incorporation

The Chief Executive Medicare must not approve an applicant that is a corporation unless the applicant advises the Chief Executive Medicare of its Australian Company Number (ACN) or gives the Chief Executive Medicare a copy of its certificate of incorporation or other proof of incorporation

5 Approval to have force for 1 year

The Chief Executive Medicare must not approve an applicant for a period longer than 1 year from the date of approval.

6 Undertakings to be given

The Chief Executive Medicare must not approve an applicant that has not given undertakings set out in Part 2 of the Schedule of this Instrument in the form approved by the Chief Executive Medicare.

Part 2 Undertakings by Applicant

7 Undertakings to be given effect

(1) An applicant that is an individual must undertake to take all reasonable steps to ensure that he or she complies, and any of his or her employees comply, with his or her undertakings to the Chief Executive Medicare.

(2) An applicant that is a corporation must undertake to take all reasonable steps to ensure that it and any person who manages it complies with its undertakings to the Chief Executive Medicare.

(3) An applicant partner or partners applying on behalf of a partnership must undertake to take all reasonable steps to ensure that all partners comply with the undertakings to the Chief Executive Medicare.

(4) An individual or individuals, applying on behalf of a body, other than a corporation or partnership, must undertake to take all reasonable steps to ensure that the body, and any person who manages that body, complies with the undertakings to the Chief Executive Medicare.

8 Keeping of records

An applicant must undertake to keep a copy of each assignment, and records of financial accounts relating to each assignment, for 2 years after the day the assignment occurs.

9 Inspection of books and records

(1) An applicant must undertake to allow any of the following persons to inspect its books, records and accounts, and to take extracts from, and make copies of the books, records and accounts:

(a) the Chief Executive Medicare; or

(b) a departmental employee authorised by the Chief Executive Medicare; or

(2) This undertaking does not extend to undertaking to permit non-consensual entry into premises and search and seizure, which must be authorised under legislation.

10 Information about conduct of business

(1) An applicant must undertake to give to an officer of the Chief Executive Medicare, if the officer makes a written request, information about the conduct of the business as a billing agent or about any particular transaction.

(2) For compliance with the undertaking, the information must be given:

(a) without undue delay; and

(b) in a form convenient for use by the officer.

11 Keeping of trust account

An applicant must undertake:

(a) to maintain, for the period for which approval is granted, the trust account mentioned in section 3 of the Schedule of this Instrument; and

(b) to pay into the trust account all amounts received by it as billing agent; and

(d) to comply with subregulation 7.8.02(2) of the Corporations Regulations 2001, as if that regulation were not subject to subregulations (3), (4) and (5), in the way that money in the account is invested as if the applicant were a financial services licensee under the Corporations Act 2001.

12 Claims lodged by registered organisations

An applicant must undertake not to appoint another person to lodge claims for Medicare benefits on behalf of the applicant unless:

(a) the other person is a registered organisation; and

(b) the terms of the appointment provide that the registered organisation must pay to the applicant all amounts received on behalf of the applicant within 7 days after receipt.

13 Patient’s statement of account

An applicant must undertake to give to each patient affected by a medical practitioner’s assignment a statement setting out, for each episode in which the practitioner provides professional services to the patient:

(a) the item number for the item that relates to each of the services; and

(b) the amount charged for each service; and

(d) the amount payable by the private health insurer, of which the patient is an insured person, for each service; and

(e) the amount, if any, payable by the patient for each service.

14 Payment to an assigning practitioner - 90 day period

An applicant must undertake to pay to an assigning medical practitioner an amount equal to a payment received that, apart from the assignment, would be owed to the medical practitioner, within 90 days after the Chief Executive Medicare makes the payment.

15 Billing agent’s earnings

An applicant must undertake:

(a) to apply interest earned from an amount paid into the trust account only in accordance with an agreement made with the medical practitioner to whom the amount relates; and

(b) to charge commission on an amount paid into the trust account only in accordance with an agreement made with the medical practitioner to whom the amount relates.

16 Privacy

An applicant must undertake to comply with the Privacy Act 1988.

17 Changes in circumstances

(1) An applicant must undertake to tell the Chief Executive Medicare immediately if any of the following things happen to the applicant, as billing agent:

(a) a trustee, liquidator or court-appointed agent is appointed to control its affairs; or

(b) there is a change that affects the accuracy of the information given to the Chief Executive Medicare about the trust account under sections 3 or 10 of the Schedule of this Instrument.

(c) an applicant (or a person who manages the applicant) becomes a person who, under Part 2D.6 of the Corporations Act 2001 is disqualified from managing a corporation.

(2) An applicant must undertake to tell the Chief Executive Medicare, within 14 days, if the applicant, as billing agent:

(a) has a change of name; or

(b) has a change of address; or

18 Statement of activity

An applicant must undertake to give the Chief Executive Medicare, on or before 30 September next following the anniversary of the day of approval as a billing agent, a statement setting out the following information:

(a) the number of claims it has made for Medicare benefits;

(b) the number of claims (if any) it has submitted, and statements it has given, to patients;

(d) the number of episodes included in assigned rights for which claims have been processed;

(e) the number of days of hospitalisation included in assigned rights for which claims have been processed;

(f) the total amount of Medicare benefits that it has paid to assigning medical practitioners.