EXPLANATORY STATEMENT
Issued by the Authority of the Minister for Health
Health Insurance Act 1973
Health Insurance (Anaesthesia service) Determination 2016
Subsection 3C(1) of the Health Insurance Act 1973 (the Act) provides that the Minister may determine in writing that a health service not listed in the General Medical Services Table (the Table) shall, in specified circumstances and for specified statutory provisions, be treated as if it were so listed. The Table is set out in the Health Insurance (General Medical Services Table) Regulation (GMST) which is remade each year.
Purpose
The purpose of the Health Insurance (Anaesthesia service) Determination 2016
(the Determination) is to provide a legal basis for the payment of Medicare benefits for services provided under item 23990, which is not provided for in the 2016 version of the general medical services table (the Health Insurance (General Medical Services Table) Regulation 2016). The 2016 version of the general medical services table includes items 23980 for Anaesthesia, perfusion or assistance, if the service time is more than 17:30 hours but not more than 17:40 hours and 24100 if the service time is more than 17:50 hours but not more than 18:00 hours. Item 23990 is for the time period between these 2 items (is more than 17:40 hours but not more than 17:50 hours).
Consultation
The Australian Society of Anaesthetists have a list of anaesthesia services in its Relative Value Guide publication. This contains item 23990 for anaesthesia services if the service time is more than 17:40 hours but not more than 17:50 hours. This Determination provides the legal basis for this item. As the sole purpose of this instrument is to implement service 23990, as per the expectation of persons affected by this instrument (the Australian Society of Anaesthetists), consultation was not undertaken for this Determination.
Details of the Determination are set out in the Attachment.
The Determination commences on the day after registration.
The Determination is legislative instrument for the purposes of the
Legislation Act 2003.
Authority: Subsection 3C(1) of the
Health Insurance Act 1973
ATTACHMENT
Details of the Health Insurance (Anaesthesia service) Determination 2016
Section 1 – Name of Determination
Section 1 provides for the Determination to be referred to as the Health Insurance (Anaesthesia service) Determination 2016.
Section 2 – Commencement
Section 2 provides that the Determination commences on the day after it is registered.
Section 3 – Authority
Section 3 provides that the Determination is made under subsection 3C(1) of the
Health Insurance Act 1973.
Section 4 – Definitions
Section 4 defines terms used in the Determination.
Section 5 – Treatment of relevant services
Section 5 provides that a clinically relevant service provided in accordance with the Determination shall be treated as if it were both a professional service and a medical service as if it were specified in the general medical services table for the relevant provisions of the Health Insurance Act 1973.
Section 6 – Effect of specified provisions
Section 6 provides that certain provisions and items in the general medical services table and the Health Insurance Regulations 1975 have effect as if they included a reference to item 23990.
(1) Provides a list of subclauses and paragraphs in the general medical services table that shall have effect as if they included a reference to item 23990.
(2) Provides that subclauses 2.43.5(2) and 2.43.6(2) in the general medical services table apply to item 23990. Subclause 2.43.5(2) requires the item to be provided in connection with another professional service which refers to “(Anaes.)” in its item description. Subclause 2.43.6(2) makes item 23990 subject to the rule that the item only applies to assistance as a component of item 25200 or 25205 and for the purpose of calculating the fee for those items.
(3) Provides that item 23990 is treated as an item in Group T10 of the general medical services for provisions that exclude the application of the item where it is:
- provided at the same time as a pain pump for post-surgical pain management; or
- claimed in association with a service to which certain items in the diagnostic imaging services table apply.
(4) Provides that item 23990 is a prescribed service under paragraph 3(2)(d) of the Health Insurance Regulations 1975, for section 3(18) of the Health Insurance Act 1973. This will allow a medical practitioner ‘specialist trainee’ to render the service on behalf another medical practitioner.
(5) Provides the requirements for item 23990 relating to the particulars that must be included in an account or receipt for the service. The requirements are those that apply to all other items in Subgroup 21.
Schedule – relevant services
Prescribes the fee and item descriptor for service 23990.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Health Insurance (Anaesthesia service) Determination 2016
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 purpose of the Determination is to provide a legal basis for the payment of
Medicare benefits for services provided under item 23990, which is not provided for in the 2016 version of the general medical services table (the Health Insurance (General Medical Services Table) Regulation 2016). The 2016 version of the general medical services table includes items 23980 for Anaesthesia, perfusion or assistance, if the service time is more than 17:30 hours but not more than 17:40 hours and 24100 if the service time is more than 17:50 hours but not more than 18:00 hours. Item 23990 is for the time period between these 2 items (is more than 17:40 hours but not more than 17:50 hours).
Human rights implications
The Regulations engage Articles 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.
Analysis
This Determination will advance rights to health and social security by ensuring access to publicly subsidised health services which are clinically effective and cost-effective.
Conclusion
This Legislative Instrument is compatible with human rights as it has a positive effect on human rights issues.
Maria Jolly
First Assistant Secretary
Medical Benefits Division
Department of Health