EXPLANATORY STATEMENT
Health Insurance Act 1973
Common Form of Undertaking for Participating Optometrists Amendment Instrument 2014
Subsection 23A(1) of the Health Insurance Act 1973 (the Act) provides that the Minister, may, after consultation with the Australian Optometrical Association (the Association), draw up a common form of undertaking to be given by an optometrist who wishes to become a participating optometrist for the purposes of the payment of Medicare benefits under the Act.
Subsection 23A(3) of the Act enables the Minister to vary the Common Form of Undertaking for Participating Optometrists (the Undertaking) at any time after consultation with the Association.
The Undertaking is being varied due to changes to the optometry arrangements announced in the 2014-15 Budget. As part of the Budget measure for optometry services, the Government announced that the charging cap that currently applies to optometrists accessing the Medicare Benefits Schedule (MBS) is removed, enabling optometrists to set their own fees in a similar manner to other health providers.
The Common Form of Undertaking for Participating Optometrists Amendment Instrument 2014 (the Amendment Instrument) amends the Undertaking by removing references in relation to fee restrictions. The effect of this amendment is that optometrists will be able to set their own fees.
Additionally, the Amendment Instrument amends the Undertaking to enable optometrists to be notified of any amendments to the Undertaking by publication in the Government Notices Gazette. This will allow a more efficient process of notifying optometrists of changes made. The Undertaking has also been amended by updating relevant references, including legislative references.
The Amendment Instrument is a legislative instrument for the purposes of the Legislative Instruments Act 2003.
The Amendment Instrument commences on 1 January 2015.
Consultation
The Association is now known as “Optometry Australia”.
In accordance with subsection 23A(3) of the Act, Optometry Australia has been consulted in relation to the variation to the Undertaking. The Department of Human Services has also been consulted on the variation to the Undertaking.
ATTACHMENT
Details of the Common Form of Undertaking for Participating Optometrists Amendment Instrument 2014
Section 1 – Name of Legislative Instrument
Section 1 provides for the Instrument to be referred to as the Common Form of Undertaking for Participating Optometrists Amendment Instrument 2014.
Section 2 – Commencement
Section 2 provides for the Instrument to commence on 1 January 2015.
Section 3 – Amendment of the Common Form of Undertaking for Participating Optometrists
Section 3 provides that the Instrument amends the Principal Instrument by omitting Attachment A and substituting a new Attachment A.
Section 4 – Consultation
Section 4 provides that consultation requirements under section 23A(3) of the Health Insurance Act 1973 (the Act) have been complied with.
Section 5 – Common Form of Undertaking for Participating Optometrists
Section 5 provides that Attachment A is the Common Form of Undertaking to be given by optometrists who wish to become participating optometrists under the Act.
.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Common Form of Undertaking for Participating Optometrists Amendment Instrument 2014
This Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the legislative instrument
The Common Form of Undertaking for Participating Optometrists Amendment Instrument 2014 varies the Common Form of Undertaking F2005L03325, to enable optometrists to set their own fees as outlined in the 2014-15 Budget, and to update relevant references, including legislative references. These amendments are notified to optometrists through the Government Notices Gazette.
In accordance with subsection 23A(3) of the Health Insurance Act 1973, the Minister or his delegate, may vary the Common Form of Undertaking at any time after consultation with the Australian Optometrical Association (now known as Optometry Australia).
Human rights implications
The legislative instrument engages Articles 2, 9 and 12 of the International Covenant on Economic Social and Cultural Rights (ICESCR), specifically the rights to health and social security.
The Right to Health
The right to the enjoyment of the highest attainable standard of physical and mental health is contained in Article 12(1) of the ICESCR. The UN Committee on Economic Social and Cultural Rights (the Committee) has stated that the right to health is not a right for each individual to be healthy, but is a right to a system of health protection, which provides equality of opportunity for people to enjoy the highest attainable level of health.
The Committee reports that the highest attainable standard of health takes into account the country’s available resources. This right may be understood as a right of access to a variety of public health and health care facilities, goods, services, programs and conditions necessary for the realisation of the highest attainable standard of health.
The Right to Social Security
The right to social security is contained in Article 9 of the ICESCR. It requires that a country must, within its maximum available resources, ensure access to a social security scheme that provides a minimum essential level of benefits to all individuals and families that will enable them to acquire at least essential health care. Countries are obliged to demonstrate that every effort has been made to use all resources that are at their disposal in an effort to satisfy, as a matter of priority, this minimum obligation.
The Committee reports that there is a strong presumption that retrogressive measures taken in relation to the right to social security are prohibited under ICESCR. In this context, a retrogressive measure would be one taken without adequate justification that had the effect of reducing existing levels of social security benefits, or of denying benefits to persons or groups previously entitled to them. However, it is legitimate for a Government to re-direct its limited resources in ways that it considers to be more effective at meeting the general health needs of all society, particularly the needs of the more disadvantaged members of society. This Legislative Instrument does not engage any of the applicable rights or freedoms.
The Common Form of Undertaking has been amended by removing references in relation to fee restrictions. The effect of this amendment is that optometrists will be able to set their own fees.
Market analysis indicates that there is a strong competitive market for optometry services nationwide. This would mitigate the risk of optometrists charging excessive amounts for optometry services, which could decrease the affordability of service. Furthermore, participating optometrists can already charge the patient out-of-pocket costs up to the Schedule fee, but the majority of all optometric services are bulk-billed.
Additionally, the Common Form of Undertaking has been amended to enable optometrists to be notified of any amendments to the Common Form of Undertaking by publication in the Government Notices Gazette. This amendment will allow a more efficient process of notifying optometrists of changes made. This Common Form of Undertaking has also been amended by updating relevant references, including legislative references.
Conclusion
This Instrument is compatible with the human rights recognised in the Human Rights (Parliamentary Scrutiny) Act 2011.
Megan Keaney
Acting Assistant Secretary and Medical Advisor
Medical Specialist Services Branch
Medical Benefits Division
Department of Health