EXPLANATORY STATEMENT
Issued by the Authority of the Minister for Health and Ageing
Health Insurance Act 1973
Health Insurance (Cataract Surgery) Determination 2009 (No. 2)
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 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 so listed. The Table is set out in the Health Insurance (General Medical Services Table) Regulations 2009 which are re-made each year.
A determination made under subsection 3C(1) of the Act is a legislative instrument (see subsection 3C(4) of the Act and paragraph 6(d) of the Legislative Instruments Act 2003).
The Health Insurance (Cataract surgery) Determination 2009 (No. 2) (the Determination) will permit the payment of Medicare benefits for cataract surgery.
The Determination provides for three items (item 42698, 42701 and 42702) and under specific circumstances for item 42718. Item 42698 will enable a Medicare benefit to be payable where a service for lens extraction is rendered. Item 42701 will enable a Medicare benefit to be payable where a service for the insertion of an artificial lens is rendered. Item 42702 will enable a Medicare benefit to be payable where a service for a lens extraction and insertion of an artificial lens is rendered. Item 42718 will enable a Medicare benefit to be payable for the rendering of a service involving a complex lens extraction and insertion of an artificial lens with a surgical procedure time of 40 minutes or more.
This Determination has been made following the disallowance motion passed in the Senate on 25 November 2009, which disallowed the Health Insurance (Cataract Surgery) Determination 2009.
The purpose of this Determination is to ensure that patients can receive medicare benefits for the cataract surgery services specified in the Schedules to the Determination. To this effect the Determination contains a schedule of items with amounts to be paid for medicare eligible cataract surgery services provided on the day of disallowance from the time of disallowance up until midnight on the date of disallowance. This is to ensure that patients receiving services after the motion of disallowance takes effect will not be disadvantaged compared to patients receiving identical services before the motion of disallowance takes effect. This part of the Determination will have a retrospective effect but as no one other than the Commonwealth will be disadvantaged the Determination is not contrary to section 12 of the Legislative Instruments Act 2003.
Included in this Schedule will be item 42718. This is also to ensure that patients receiving services on the date of disallowance, after the motion of disallowance takes effect will not be disadvantaged compared to patients receiving identical services on the date of disallowance before the motion of disallowance takes effect. The inclusion of this item in the Determination will have a retrospective effect but as no one other than the Commonwealth will be disadvantaged the Determination is not contrary to section 12 of the Legislative Instruments Act 2003.
A second schedule in the Determination will include a series of items for medicare eligible cataract surgery services that will take effect from 12:01am on the day after the date of disallowance. This Schedule of the Determination will also have a retrospective effect but as no one other than the Commonwealth will be disadvantaged the Determination is not contrary to section 12 of the Legislative Instruments Act 2003.
Consultation
No consultation was undertaken prior to the making of this Determination.
Details of the Determination are set out in the Attachment.
ATTACHMENT
Notes on sections in the Determination
Section 1
Section 1 provides the name of the Determination.
Section 2
Subsection 2(1) provides that the Determination is taken to have commenced immediately upon the disallowance of the Health Insurance (Cataract Surgery) Determination 2009.
This will enable medicare benefits to be paid for cataract surgery services specified in the Schedules to the Determination that are provided from the disallowance of the Health Insurance (Cataract Surgery) Determination 2009.
Subsection 3C(2) of the Act specifically provides that a determination made under subsection 3C(1) may be expressed to have taken effect from a day earlier than the day on which the determination was made.
The Determination enables the continued payment of medicare benefits for certain cataract surgery services. Therefore, although the Determination is of retrospective effect, it will not infringe subsection 12(2) of the Legislative Instruments Act 2003. This is because the Determination is beneficial in nature and will not affect the rights of a person (other than the Commonwealth or an authority of the Commonwealth) at the date of registration so as to disadvantage that person. In addition, the Determination does not impose any liability on any person (other than the Commonwealth or an authority of the Commonwealth) in respect of anything done or omitted to be done before the date of registration.
Subsection 2(2) provides that the Determination ceases at midnight on 31 October 2010.
Section 3
Section 3 defines terms used in this Determination. These terms are referred to in section 4 of the Determination.
Subsection 3(2) provides that a reference to a provision of an Act or regulations, is a reference to the provision as in force from time to time.
Section 4
Subsection 4(1)(a) provides that a relevant service specified in subsection 4(2) of the Determination will be treated as if it were both a professional service and a medical service for the purposes of the provisions of the Act, the National Health Act 1953 and regulations made under each Act which provide for medical services or professional services.
Subsection 4(1)(b) provides that a relevant service specified in subsection 4(2) of the Determination is to be treated as if there were an item in Group T8 of the General Medical Services Table that related to the service and specified a fee for that service, being the fee specified in Schedule 1 to the Determination in relation to the service.
Subsection 4(2) provides that for the purposes of subsection 4(1) of the Determination, the specified period is the period that:
(a) commences immediately upon the disallowance of the Health Insurance (Cataract Surgery) Determination 2009; and
(b) ceases at midnight on 25 November 2009.
Subsection 4(3)(a) provides that a relevant service specified in subsection 4(4) of the Determination will be treated as if it were both a professional service and a medical service for the purposes of the provisions of the Act, the National Health Act 1953 and regulations made under each Act which provide for medical services or professional services.
Subsection 4(3)(b) provides that a relevant service specified in subsection 4(4) of the Determination is to be treated as if there were an item in Group T8 of the General Medical Services Table that related to the service and specified a fee for that service, being the fee specified in Schedule 2 to the Determination in relation to the service.
Subsection 4(4) provides that for the purposes of subsection 4(3) of the Determination, the specified period is the period that:
(a) commences at 12:01am on 26 November 2009; and
(b) ceases at midnight on 31 October 2010.
Schedules
Schedule 1 to the Determination sets out the relevant services, assigning the applicable item number, item descriptor and fee for each service provided in the specified period that commences immediately upon the disallowance of the Health Insurance (Cataract Surgery) Determination 2009 and ceases at midnight on 25 November 2009.
Schedule 2 to the Determination sets out the relevant services, assigning the applicable item number, item descriptor and fee for each service provided in the specified period that commences at 12:01am on 26 November 2009 and ceases at midnight on 31 October 2010.