Stage 3: Determining Authority makes its decision

The Determining Authority consists of 3 members who meet in private usually every month:

a Chair, who is a medical practitioner
a member of the public who is not a practitioner
a member who is a practitioner in the same profession as you.

The Determining Authority has 2 main functions:

to consider section 92 agreements and either ratify or refuse to ratify them
to determine what sanctions should be imposed following a Committee’s finding of inappropriate practice.

Ratifying section 92 agreements

If you entered into a section 92 Agreement with the Director, the Determining Authority follows these steps:

Who

What

Determining Authority

reviews the documents provided by the Director, which may include:
- a covering letter from the Director
- the original request to review document from a delegate of the Chief Executive Medicare
- the Director’s section 89C report
- your submissions
- the signed section 92 agreement
decides if the agreement is fair and reasonable in all the circumstances and either:
- ratifies the agreement or
- refuses to ratify it
writes to you and the Director within 7 days of making its decision

If the agreement is ratified, you will be advised of the date it takes effect (usually the 14th day after ratification). Once ratified, the Agreement is binding on you and the Director. Ratified agreements are sent to the Department of Health and Aged Care and a department representative will contact you about any payments you need to make 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 do one of the following:

seek to enter a new section 92 agreement with you, which needs to be ratified by the Determining Authority

within 3 months of its earlier decision not to ratify the original agreement

refer your matter to a PSR Committee.

Deciding on sanctions

If a Committee found that you engaged in inappropriate practice, the case will be passed on to the Determining Authority to decide what sanctions to impose.

The Determining Authority must accept a Committee’s finding of inappropriate practice and cannot revisit them. Its focus is limited to making a determination that includes at least one of the sanctions set out in section 106U of the Act:

a reprimand
counselling
disqualification from billing certain MBS and CDBS 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 or CDBS 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 period for disqualification is 5 years, rather than 3.

Considering a Committee’s final report

The Determining Authority begins its consideration by following these steps:

Who	What
Determining Authority	considers material from PSR: the Committee’s final report that details its findings of inappropriate practice extra information provided by the Director
You	also receive a copy of these documents
Determining Authority	writes to you within one month of receiving the report, asking you to make a written submission about the sanctions it should impose
You	prepare your submission specifically about the sanctions the Determining Authority should impose (not about whether or not you engaged in inappropriate practice) attach any extra material you would like the Determining Authority to consider, including any of your earlier submissions to the Committee or Director send it to the Determining Authority within one month

Making a decision

The Determining Authority then decides what sanctions to impose by following these steps:

Who	What
Determining Authority	considers all the documents before it prepares its draft determination sends a copy to you
You	have 14 days to make a further written submission, which: focuses on the details of the draft determination suggests any changes you think are appropriate provides reasons to support the suggested changes
Determining Authority	considers your submission makes its final determination, including: the sanctions to be imposed the reasons for its decision details of the material that it relied on in its decision-making sends its final determination to you, the Director and the Chief Executive Medicare, who also receives a copy of the Committee’s final report

Implementing the determination

The final determination takes effect 35 days after you receive a copy (unless you start court proceedings).

A representative from the Department of Health and Aged Care will contact you to implement the final determination, including any disqualification and repayment of Medicare benefits.