EXPLANATORY STATEMENT

Issued by the Authority of the Minister for Health

Health Insurance Act 1973

Health Insurance (Bone Densitometry) Revocation Determination 2017

Subsection 3C(1) of the Health Insurance Act 1973 (the Act) provides that the Minister may, by legislative instrument, determine that a health service not specified in an item in the general medical services table (the Table) shall, in specified circumstances and for specified statutory provisions, be treated as if it were specified in the Table. The Table is set out in the regulations made under subsection 4(1) of the Act, which is repealed and re-made each year. The most recent version of the regulations is the Health Insurance (General Medical Services Table) Regulation 2017 which commenced on 17 June 2017.

Purpose

The purpose of the Health Insurance (Bone Densitometry) Revocation Determination

2017 (the Determination) is to revoke the Health Insurance (Bone Densitometry) Determination 2012.

Bone densitometry Medicare items are currently set out in the Health Insurance (Bone Densitometry) Determination 2012. It provides for a number of specified bone densitometry services to be treated as if they were covered by an item in the Table.

In response to the MBS Review Taskforce (the Taskforce) recommendations on
22 August 2017, the Government announced changes to the bone densitometry MBS items. These changes will be mainly implemented by the Health Insurance Legislation Amendment (2017 Measures No. 2) Regulations 2017 from 1 November 2017. This includes:

• Incorporating existing bone densitometry items 12306, 12312, 12315, 12321.
• Listing new items 12320 and 12322 for the provision of bone density testing for people aged 70 years or older with a certain risk profile at intervals of two years (measured by a bone mineral density t-score that is less than -1.5 but greater than -2.5) or five years (measured by a bone mineral density t-score that is equal to or greater than -1.5).  These new items will replace item 12323 which will be removed. The initial bone density test that was available under item 12323 will continue to be available under new item 12320 for patients 70 years or over who have not previously had bone densitometry.
• Amending bone densitometry items to specify the type of qualifications required to provide these services. This change is being made to clarify the rules around provider eligibility and ensure the provision of these services is performed by suitably qualified practitioners. These changes also clarify that the interpretation and report must be provided by a specialist or consultant physician.

The Taskforce recommended removing Quantitative Computed Tomography (QCT) items 12309 and 12318 from the MBS. The Taskforce recommended this change on the basis that QCT provides lower value care in comparison to Dual Energy X-ray Absorptiometry, which is the superior test for bone densitometry.  

This Determination will implement this change by revoking the Health Insurance (Bone Densitometry) Determination 2012. Item 12323 will also be removed upon commencement of this Determination.

Consultation

Consultation regarding the recommendations of the Taskforce was undertaken with professional bodies, consumer groups, the public and clinical experts. Peak bodies represented included the Royal Australian and New Zealand College of Radiologists (RANZCR), the Australasian Association of Nuclear Medicine Specialists, the Australian Diagnostic Imaging Association, Osteoporosis Australia and the Australian and New Zealand Bone and Mineral Society. These peak bodies were signatories to the joint position submitted by RANZCR in response to the consultation.

Details of the Determination are set out in the Attachment.

The Determination commences immediately after the commencement of the Health Insurance Legislation Amendment (2017 Measures No. 2) Regulations 2017.

The Determination is a 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 (Bone Densitometry) Revocation Determination 2017

Section 1 – Name of Determination

Section 1 provides for the Determination to be referred to as the Health Insurance (Bone Densitometry) Revocation Determination 2017.

Section 2 – Commencement

Section 2 provides that the Determination commences immediately after the commencement of the Health Insurance Legislation Amendment (2017 Measures No. 2) Regulations 2017.

Section 3 – Authority

Section 3 provides that the Determination is made under subsection 3C(1) of the Health Insurance Act 1973.

Section 4 – Revocation

Section 4 provides that the Determination revokes the Health Insurance (Bone Densitometry) Determination 2012.

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Health Insurance (Bone Densitometry) Revocation Determination 2017

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 Health Insurance (Bone Densitometry) Revocation Determination

2017 (the Determination) is to revoke the Health Insurance (Bone Densitometry) Determination 2012.

The Government agreed to a number of recommendations by the MBS Review Taskforce to bone densitometry MBS items.

The changes will be implemented by revoking the Health Insurance (Bone Densitometry) Determination 2012 and including the amended bone densitometry items in the General Medical Services Table through the Health Insurance Legislation Amendment (2017 Measures No. 2) Regulations 2017.

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 has a positive impact on human rights issues. The changes to the bone densitometry Medicare items recommended by the Taskforce will be included in the Health Insurance Legislation Amendment (2017 Measures No. 2) Regulations 2017 which is to commence immediately prior to this Determination. The recommended changes align the Medicare items with clinical best practice, enhance item specificity and improve the accuracy and quality of testing provided to patients by ensuring that the services are performed by suitably qualified practitioners. As a part of these changes, two Quantitative Computed Tomography (QCT) items will be removed on the basis that QCT provides lower value care in comparison to Dual Energy X-ray Absorptiometry, which is considered the superior test for bone densitometry. This Determination, in conjunction with the commencement of the Health Insurance Legislation Amendment (2017 Measures No. 2) Regulations 2017, 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 Determination, in conjunction with the commencement of the Health Insurance Legislation Amendment (2017 Measures No. 2) Regulations 2017 which will include the Taskforce-recommended changes to bone densitometry Medicare items, is compatible with human rights as it has a positive effect on human rights issues.

Natasha Ryan

Assistant Secretary

MBS Policy and Specialist Services Branch

Medical Benefits Division

Department of Health