Commonwealth Consolidated Acts Commonwealth Consolidated ActsMaking shared debt determinations
(1) If:
(a) as a result of the giving of false or misleading information, an amount paid, purportedly by way of benefit or payment under this Act, exceeds the amount (if any) that should have been paid in respect of a professional service rendered, or purportedly rendered by a person; and
(b) the Chief Executive Medicare (the CEO ) makes a determination under subsection (2) in relation to the amount;
the excess (the recoverable amount ) is recoverable as a debt due to the Commonwealth from that person (the primary debtor ) (or from the estate of that person) and another person (the secondary debtor ) (or from the estate of that person) specified in the determination.
(1A) For the purposes of subsection (1), it is immaterial whether the false or misleading information is given:
(a) in a document; or
(b) in a statement; or
(c) in any other form.
(2) The CEO may make a written determination under this subsection in relation to an amount if:
(a) notice has been given under subsection (7) in relation to the recoverable amount to the primary debtor (or estate) and the secondary debtor (or estate); and
(b) any of the following apply:
(i) the secondary debtor employed or otherwise engaged the primary debtor to render professional services of the kind mentioned in paragraph (1)(a);
(ii) the secondary debtor had an arrangement or agreement with the primary debtor relating to professional services of that kind;
(iii) the secondary debtor is a person in a class of persons prescribed under paragraph (9)(a);
(iv) the secondary debtor is not a person in a class of persons prescribed under paragraph (9)(b); and
(c) the CEO reasonably believes the determination should be made having regard to the following:
(i) whether the relationship of the secondary debtor with the primary debtor was such that the secondary debtor could have controlled or influenced the circumstances that led to the giving of the false or misleading information to which the debt relates;
(ii) whether the secondary debtor directly or indirectly obtained a financial benefit from the giving of the false or misleading information;
(iii) whether any other factors in all the circumstances of the case make it fair and reasonable for the determination to be made.
(3) The determination must be given to the primary debtor, or estate, and the secondary debtor, or estate, and set out the following:
(a) the decision to make a determination to claim the recoverable amount under subsection (1) as a debt due to the Commonwealth;
(b) an amount (the shared amount ) equal to a percentage of the recoverable amount that is recoverable from the secondary debtor or estate;
(c) an amount (the remaining amount ) equal to the recoverable amount less the shared amount that is recoverable from the primary debtor or estate;
(d) the reasons for the decision;
(e) the right to seek review of the decision under section 129ACB.
(4) The percentage determined by the CEO for the purposes of paragraph (3)(b) must be the percentage prescribed under paragraph (9)(c), unless the CEO reasonably believes in all the circumstances of the case that it is fair and reasonable that a different percentage be determined.
(5) The CEO must not serve a notice on a person or an estate claiming a shared amount or remaining amount (as the case may be) as a debt before the end of the period of 28 days after the determination referred to in subsection (2) is given to the person or estate.
(6) An amount is recoverable under subsection (1) whether or not:
(a) the amount was paid to the primary debtor or secondary debtor (or the estates of those persons); and
(b) any person has been convicted of an offence in relation to the giving of the false or misleading information.
Notice of intention to make shared debt determinations
(7) Before making a determination under subsection (2) in relation to a recoverable amount, the CEO must give the following to the primary debtor or estate and the other person or estate the CEO is considering specifying in the determination as the secondary debtor:
(a) written notice that the CEO is considering making a determination under that subsection in relation to the recoverable amount;
(b) a copy of any document produced under subsection 129AAD(2) or (3) in relation to the recoverable amount.
(8) A person who, or estate that, is given a notice under subsection (7) may, within 14 days after the notice is given, provide a written response to the CEO which states:
(a) the reasons why the person or estate considers a determination under subsection (2) should, or should not, be made; and
(b) the percentage that the person or estate considers should be determined for the purposes of paragraph 129ACA(3)(b).
Minister may make legislative instrument
(9) The Minister may, by legislative instrument, prescribe the following:
(a) classes of persons for the purposes of subparagraph (2)(b)(iii);
(b) classes of persons for the purposes of subparagraph (2)(b)(iv);
(c) a percentage for the purposes of subsection (4);
(d) matters or statements for the purposes of paragraph 129AAD(8)(bc).
Giving notices to State and Territory Health Departments
(10) If:
(a) either of the following is given to a person or estate in relation to a professional service:
(i) a determination under subsection (2);
(ii) a notice mentioned in subsection (5); and
(b) the professional service was rendered, or purportedly rendered, in or at a hospital mentioned in subsection (11) of a State or Territory;
then, a copy of the determination or notice may be given to the head (however described) of the Health Department (within the meaning of the National Health Reform Act 2011 ) of that State or Territory.
(11) For the purposes of subsection (10), a hospital is a facility in that State or Territory for which:
(a) a declaration is in force under paragraph 121 - 5(6)(a) of the Private Health Insurance Act 2007 ; and
(b) a statement is included in the declaration (as mentioned in subsection 121 - 5(8) of that Act) that the hospital is a public hospital.