EXPLANATORY STATEMENT
Issued by the Authority of the Minister for Health
Health Insurance Act 1973
Health Insurance (Allied Health Services) Amendment Determination 2013 (No. 1)
Subsection 3C(1) of the Health Insurance Act 1973 (the Act) provides that the Minister may determine in writing that a health service not specified in an item in the General Medical Services Table (the Table) shall, in specified circumstances and for the purposes of specified statutory provisions, be treated as if it were specified in the Table. The Table is set out in the Health Insurance (General Medical Services Table) Regulation, which is re-made each year.
The Health Insurance (Allied Health Services) Determination 2011 (the Principal Determination) creates Medicare items that may be provided by appropriately qualified allied health professionals, including but not limited to psychologists, osteopaths, chiropractors, physiotherapists and speech pathologists.
The purpose of the Health Insurance (Allied Health Services) Amendment Determination 2013 (No. 1) (the Determination) is to amend the Principal Determination to:
- include an impairment threshold for microcephaly in the definition of an ‘eligible disability’. The threshold will take into consideration the head circumference and functional level or IQ score of the child; and
- vary the qualification requirements for speech pathologists seeking to provide Medicare eligible speech pathology services in Queensland, as a result of the ceasing of speech pathology regulation in Queensland.
Impairment threshold for microcephaly
Medicare benefits are payable for a number of allied health services, including psychology, speech pathology and occupational therapy health services, for children with an ‘eligible disability’ under 13 years (for diagnostic services) and under 15 years (for treatment services). The payment of Medicare benefits for these services is part of the Government’s Better Start for Children with Disability initiative (Better Start), the lead agency for which is the Department of Families, Housing, Community Services and Indigenous Affairs (FaHCSIA).
‘Microcephaly’ was added as an eligible disability on 1 January 2013. However, the term ‘microcephaly’ is strictly a description as opposed to a diagnosis of disability. It means “small head” and a child with a small head does not necessarily have a disability.
FaHCSIA has advised that microcephaly requires an impairment threshold for eligibility under Better Start, to distinguish between those children with a small head but no disability and those children whose head is small enough to fall within the functional threshold of the disability.
From 1 May 2013 the definition of an ‘eligible disability’ in subsection 4(1) of the Principal Determination will contain an impairment threshold for microcephaly, being that the child has:
- a head circumference less than the third percentile for age and sex; and
- a functional level at or below 2 standard deviations below the mean for age on a standard development test or an IQ score of less than 70 on a standardised test of intelligence.
Qualification requirement for speech pathologists
The Determination also makes changes to the qualification requirements for speech pathologists practising in Queensland. In order to provide Medicare-eligible speech pathology health services under the Principal Determination, a person must be an allied health professional (AHP) in relation to the provision of speech pathology health services. The qualification requirements are set out in item 18 of Schedule 1 to the Principal Determination.
Speech pathologists in Queensland are currently required to be registered under the Speech Pathologists Registration Act 2001 (Qld), and a person wishing to provide Medicare-eligible speech pathology health services in Queensland is required to hold such registration. However, the Speech Pathologists Registration Act 2001 (Qld) is being repealed and the regulation of speech pathologists will cease in that state.
The Determination amends the qualifications requirements for AHPs in relation to the provision of speech pathology health services set out in item 18 of Schedule 1 to the Principal Determination by removing the requirement for AHPs providing services in Queensland to be registered. Speech pathologists in Queensland will have the same qualification requirements to provide Medicare-eligible services as speech pathologists in all other states and territories, namely that they are a Practising Member of Speech Pathology Australia, the national peak body for the profession.
In recognition that a transition period may be needed to allow formerly registered speech pathologists to gain membership of Speech Pathology Australia, item 18 of Schedule 1 provides that until 31 August 2013 a person who was an allied health professional in relation to the provision of speech pathology services in Queensland on 30 April 2013 will continue to be an allied health professional in relation to the provision of such services.
Consultation
As lead agency for Better Start, FaHCSIA consulted with a number of paediatricians and geneticists, as well as an expert clinician representing the Royal Australian College of Physicians, on the Better Start Expert Reference Group on the details of the microcephaly threshold.
The Department wrote to the following stakeholders on 19 December 2012 advising of the impairment threshold for microcephaly:
Australian Medical Association, Audiological Society of Australia, Australian College of Audiology, Australian Psychological Society, Australian Physiotherapy Association, Optometrists Association Australia, Orthoptic Association of Australia, Occupational Therapy Australia, The Royal Australian College of General Practitioners, Royal Australasian College of Physicians and Speech Pathology Australia.
The Department consulted with the Queensland Department of Health, the Queensland Office of Health Practitioner Registration Boards and the Department of Human Services in relation to the change to qualification requirements for speech pathologists.
The Determination commences on 1 May 2013.
The Determination is a legislative instrument for the purposes of the Legislative Instruments Act 2003.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Health Insurance (Allied Health Services) Amendment
Determination 2013 (No. 1)
This Legislative 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 Health Insurance (Allied Health Services) Determination 2011 (the Principal Determination) creates Medicare items that may be provided by appropriately qualified allied health professionals, including but not limited to psychologists, osteopaths, chiropractors, physiotherapists and speech pathologists.
Medicare benefits are payable for a number of allied health services, including psychology, speech pathology and occupational therapy health services, for children with an ‘eligible disability’ under 13 years (for diagnostic services) and under 15 years (for treatment services). The payment of Medicare benefits for these services is part of the Government’s Better Start for Children with Disability initiative (Better Start), the lead agency for which is the Department of Families, Housing, Community Services and Indigenous Affairs (FaHCSIA).
‘Microcephaly’ was added to the list of eligible disabilities on 1 January 2013. However, the term ‘microcephaly’ is strictly a description as opposed to a diagnosis of disability. It means “small head” and a child with a small head does not necessarily have a disability.
The Health Insurance (Allied Health Services) Amendment Determination 2013 (No. 1) (the Determination) amends the definition of an eligible disability in the Principal Determination to include a threshold for microcephaly, with effect from 1 May 2013. The threshold will take into consideration the head circumference and functional level or IQ score of the child.
The Determination also makes changes to the qualification requirements for speech pathologists practising in Queensland. In order to provide Medicare-eligible speech pathology health services under the Principal Determination, a person must be an allied health professional (AHP) in relation to the provision of speech pathology health services.
Speech pathologists in Queensland are currently required to be registered under the Speech Pathologists Registration Act 2001 (Qld), and a person wishing to provide Medicare-eligible speech pathology health services in Queensland is required to hold such registration. However, the Speech Pathologists Registration Act 2001 (Qld) is shortly being repealed, and the regulation of speech pathologists will cease in that state.
The Determination amends the qualifications requirements for AHPs in relation to the provision of speech pathology health services by removing the requirement for AHPs providing services in Queensland to be registered, with effect from 1 May 2013. Speech pathologists in Queensland will have the same qualification requirements to provide Medicare-eligible services as speech pathologists in all other states and territories, namely that they are a Practising Member of Speech Pathology Australia, the national peak body for the profession.
In recognition that a transition period may be needed to allow registered speech pathologists to gain membership of Speech Pathology Australia, the Determination also provides that until 31 August 2013 a person who was an allied health professional in relation to the provision of speech pathology services in Queensland on 30 April 2013 will continue to be an allied health professional in relation to the provision of such services.
Human Rights Implications
This Determination 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 has also stated that the ‘highest attainable standard of health’ takes into account the country’s available resources.
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.
The right to social security is also recognised in articles of the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Elimination of All Forms of Discrimination Against Women, the UN Convention on the Rights of the Child and the UN Convention on the Rights of Persons with Disabilities.
Impairment threshold for microcephaly
The imposition of a disability threshold for microcephaly distinguishes between those children with a small head but no disability and those children with a disability. The threshold will ensure that only those children with microcephaly who suffer from an appropriate level of disability will continue to receive Medicare benefits for allied health services under the Better Start for Children with Disability initiative (Better Start).
The aim of Better Start is to assist children with eligible disabilities to receive targeted early intervention treatments.
The application of the threshold negatively impacts on the rights to health and social security, as it reduces community access to subsidised allied health services. However, within the context of the Commonwealth’s limited resources the application of the threshold is reasonable, proportionate and for a valid purpose as it aims to ensure that only those children with microcephaly with a disability, and who have most clinical need for early intervention allied health therapies, are given access to Better Start.
Speech pathologist qualification requirements
The amendment to the qualification requirements for speech pathologists in Queensland will ensure that speech pathologists in that state can continue to be AHPs in relation to speech pathology health services, and hence patients in that state can continue to receive Medicare-eligible services after the registration of speech pathologists ceases. This promotes the rights to health and social security.
Speech pathologists in Queensland will now have the same qualification requirements as speech pathologists across the rest of Australia, Practising Membership of Speech Pathology Australia. Practising Members of Speech Pathology Australia are required to maintain professional standards and extend their professional knowledge and skills. This qualification requirement ensures that speech pathologists in Queensland (and across all other states and territories) rendering government subsidised services provide a high level of service and expertise to patients.
In recognition that a transition period may be needed to allow formerly registered speech pathologists in Queensland to gain membership of Speech Pathology Australia a person who was an allied health professional in relation to the provision of speech pathology services in Queensland on 30 April 2013 will continue to be an allied health professional in relation to the provision of such services until 31 August 2013.
Conclusion
This Legislative Instrument is compatible with human rights.
Richard Bartlett
First Assistant Secretary
Medical Benefits Division
Department of Health and Ageing