Health Insurance (Anaesthesia service) Determination 2016

Administered by Department of Health, Disability and Ageing

Legislation au F2016L00810 Not in force Legislative Instrument

Legislation content

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

 

Overview

The Health Insurance (Anaesthesia service) Determination 2016, enacted by the Minister for Health under subsection 3C(1) of the Health Insurance Act 1973, was introduced to address a specific gap in the provision of Medicare benefits for anaesthesia services falling between the time periods covered by items 23980 and 24100 in the General Medical Services Table. The purpose of this Determination is to legally establish payment for services under item 23990, which pertains to anaesthesia services provided between 17:40 and 17:50 hours. This Determination provides a clear legal basis for these services, ensuring that they are recognised and reimbursed appropriately within the Medicare framework. The Determination was made in accordance with the expectations outlined by the Australian Society of Anaesthetists and does not require further consultation as it solely implements service 23990 as per the established guidelines.

Scope and Application

The Health Insurance (Anaesthesia service) Determination 2016 applies to the provision of anaesthesia services in Australia, specifically targeting the service time period between 17:40 hours and 17:50 hours, which is not covered by the existing items in the General Medical Services Table. This Determination allows for the legal basis of Medicare benefits for these specific anaesthesia services by treating item 23990 as if it were specified in the general medical services table. The Determination is applicable to medical practitioners, patients, and the Department of Health, and its purpose is to provide clarity and financial support for these particular anaesthesia services, ensuring they are recognised and reimbursed appropriately under the Medicare system. The Determination extends the application of the Health Insurance Act 1973 by including a previously unlisted service item and is subject to the terms and conditions set out in the attached schedule and provisions of the Act and related Regulations.

Key Provisions

The Health Insurance (Anaesthesia service) Determination 2016, which is grounded in subsection 3C(1) of the Health Insurance Act 1973, provides a legal basis for the payment of Medicare benefits for services rendered under item 23990. This item pertains to anaesthesia services provided between the hours of 17:40 and 17:50, a time period not previously covered by the 2016 version of the General Medical Services Table (sections 1 and 5). The Determination stipulates that the services listed in the attached Schedule are to be treated as if they were specified in the General Medical Services Table (section 6(1)). Furthermore, it ensures that certain provisions and items in the General Medical Services Table and the Health Insurance Regulations 1975 apply to item 23990 (section 6(2) to (5)). The Determination imposes several obligations on the parties involved. Firstly, it requires that the specified anaesthesia services (item 23990) are treated as professional and medical services under the Health Insurance Act 1973 (section 5). It also mandates that these services are to be provided in accordance with the rules set out in the General Medical Services Table and the Health Insurance Regulations 1975, including specific conditions about when and how the service can be claimed (section 6). Furthermore, the Determination requires that particulars such as the fee and item descriptor for service 23990 are included in accounts or receipts for the service, adhering to the requirements outlined in Subgroup 21 (section 6(5)). The Health Insurance (Anaesthesia service) Determination 2016 does not explicitly outline specific offences, penalties, or consequences for breaches. However, any failure to comply with the requirements set forth in the Determination could potentially result in the non-payment of Medicare benefits for the specified services, which could lead to financial repercussions for the providers and patients involved. Given that the Determination is made under the authority of the Health Insurance Act 1973, any significant non-compliance could also attract penalties or sanctions as prescribed under the broader legislative framework. The Act itself provides for various penalties and enforcement mechanisms, including fines and other civil or criminal consequences, although these are not detailed within the Determination itself.

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.