Explanatory Statement
Issued by the Authority of the Minister for Health
Health Insurance Act 1973
Health Insurance (Dental Services) Amendment Determination 2012 (No. 1)
Subsection 3C(1) of the Health Insurance Act 1973 (the Act) provides that the Minister may, by writing, determine 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) Regulations, which are remade each year.
Purpose
The purpose of the Health Insurance (Dental Services) Amendment Determination 2012 (No. 1) (the Determination) is to bring about a staged cessation of the Health Insurance (Dental Services) Determination 2007 (the Principal Determination). The Principal Determination enables the payment of Medicare benefits (items 85011-87777) for services available to people with chronic conditions and complex care needs whose oral health is impacting on their general health (also known as the Medicare Chronic Disease Dental Scheme).
The Government is ceasing the Chronic Disease Dental Scheme to put in place more appropriate policies for improved dental services.
The Determination makes the following changes to the Principal Determination:
- removes access to Medicare items 85011-87777 from 8 September 2012 for persons who have not, on or before 7 September 2012, received a GP Management Plan (item 721 or former item 725) and Team Care Arrangements (item 723 or former item 727), or a Multidisciplinary Care Plan for Residential Aged Care Facility Patients (item 731);
- allows persons who have, on or before 7 September 2012, received a GP Management Plan and Team Care Arrangements, or Multidisciplinary Care Plan for Residential Aged Care Facility Patients, to continue to receive Medicare benefits for dental services received under items 85011-87777 up to and including 30 November 2012; and
- provides for the cessation of the Principal Determination with effect from 1 December 2012, thereby removing access to Medicare dental items 85011-87777 for all persons.
Medicare benefits can still be paid for claims lodged after 30 November 2012, as long as the service was provided on or before 30 November 2012 for existing patients.
The Determination also makes a number of minor technical amendments to update the drafting and terminology of the Principal Determination.
Details of the Determination are set out in the Attachment.
Commencement
This Determination commences on 8 September 2012.
Consultation
Prior to the 2007 federal election, the Government announced that it would discontinue the Chronic Disease Dental Scheme introduced by the previous Government on 1 November 2007 in order to introduce alternative dental programs.
The Government has communicated its intention to close the scheme as soon as possible on a number of occasions. Further communications on the arrangements on closure of the Chronic Disease Dental Scheme will be undertaken prior to the commencement of the Determination, including additional correspondence to the peak groups representing dentists, dental prosthetists and general practitioners, letters to individual dental practitioners, and letters to patients who have accessed the scheme.
The Department has consulted with the Department of Human Services about the closure of the Chronic Disease Dental Scheme.
A determination made under subsection 3C(1) of the Act is a legislative instrument for the purposes of the Legislative Instruments Act 2003.
ATTACHMENT
DETAILS OF THE HEALTH INSURANCE (DENTAL SERVICES) AMENDMENT DETERMINATION 2012 (No. 1)
Section 1 Name of Determination
Section 1 provides for the Determination to be referred to as the Health Insurance (Dental Services) Amendment Determination 2012 (No. 1).
Section 2 Commencement
Section 2 provides for this Determination to commence on 8 September 2012.
Section 3 Amendment of the Health Insurance (Dental Services) Determination 2007
Section 3 provides that Schedule 1 of the Determination amends the Health Insurance (Dental Services) Determination 2007 (the Principal Determination).
Schedule 1 Amendments
Item 1 After section 2
Item 1 inserts a new section 2A which provides that the Principal Determination will cease at midnight on 30 November 2012.
Item 2 Section 3, Definitions, eligible dental prosthetist, paragraph (c)
Item 3 Section 3, Definitions, eligible dental specialist, paragraph (b)
Item 4 Section 3, Definitions, eligible dentist
Items 2, 3 and 4 make minor technical amendments to replace reference to ‘Medicare Australia CEO’ with reference to ‘Chief Executive Medicare’ in the definitions for ‘eligible dental prosthetist’,‘eligible dental specialist’ and ‘eligible dentist’. The position of Medicare Australia CEO was abolished on 1 July 2011 with the integration of Medicare Australia into the Department of Human Services. The functions of the Medicare Australia CEO were assumed by the new Chief Executive Medicare.
Item 5 Section 3, Definitions, GP management plan
Item 5 makes a minor technical amendment to the definition of ‘GP management plan’ to reflect the removal of item 725 from the Table with effect from 1 May 2010.
Item 6 Section 3, Definitions, multidisciplinary care plan
Item 6 makes a minor technical amendment to the definition of ‘multidisciplinary care plan’ to reflect that subrule 36(2) of the Table became clause 2.17.6 from 1 November 2010.
Item 7 Section 3, Definitions, team care arrangements
Item 7 makes a minor technical amendment to the definition for ‘team care arrangements’ to reflect the removal of item 727 from the Table with effect from 1 May 2010.
Item 8 Section 6, Patient eligibility, paragraph (a)
Item 8 amends the definition of ‘eligible patient’ in section 6 of the Principal Determination. Previously, a person was an eligible patient if, among other things, the person had:
(a) a current GP management plan (item 721 or former item 725) and current team care arrangements (item 723 or former item 727); or
(b) a current multidisciplinary care plan to which item 731 applies.
Following the amendments made by item 8, a person will only be an ‘eligible patient’ if, among other things, the person has:
(a) a current GP management plan and current team care arrangements, both of which were received by the patient on or before 7 September 2012; or
(b) a current multidisciplinary care plan to which Medicare item 731 applies and which was received by the patient on or before 7 September 2012.
These changes prevent access to Medicare-eligible services under the Chronic Disease Dental Scheme for ‘new’ patients, but provide for a transitional period so that existing patients can continue to receive Medicare-eligible services until midnight 30 November 2012. This will enable existing patients who have commenced a course of dental treatment at the time the Determination commences to finalise their treatment prior to the cessation of the Principal Determination.
Other patient eligibility requirements relate to whether a person’s oral health is or is likely to impact on their general health, whether they have been validly referred for a dental service and whether they are an admitted hospital patient. These other patient eligibility requirements in section 6 remain unchanged.
Item 9 Schedule 2, Specialties, table
Item 9 makes a minor technical amendment to the table of dental specialties in Schedule 2 of the Principal Determination. This table is relevant for the definition of ‘eligible dental specialist’ in section 3 of the Principal Determination and lists the specialties in which a person must be registered to be able to be an ‘eligible dental specialist’. The table has been updated to reflect how the relevant specialties listed on the table are referred to under the National Registration and Accreditation Scheme for health professions.
The amendments do not alter the types of dental practitioners able to be an ‘eligible dental specialist’ for the purposes of Chronic Disease Dental Scheme.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Health Insurance (Dental Services) Amendment Determination 2012 (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.
Compatibility with Human Rights
The purpose of the Determination is to amend and provide for the cessation of the Health Insurance (Dental Services) Determination 2007 (the Principal Determination), which will in effect discontinue the operation of the Medicare Chronic Disease Dental Scheme (CDDS). It is the Government’s objective to close the CDDS in order to focus resources to more appropriate, equitable, and better targeted programs that assist those financially disadvantaged Australians in greatest need.
The Determination engages Article 12 – the right to health, and Article 9 – the right to social security, of the International Covenant on Economic Social and Cultural Rights (ICESCR). It is arguable that in discontinuing the payment of Medicare benefits for the CDDS items, the Determination could reduce the ability of people currently eligible for the program to enjoy their highest attainable standard of health through access to these benefits.
However, the CDDS does not target benefits to those who are most financially disadvantaged. The Government is committed to directing its limited resources for more appropriate and improved dental programs that are targeted to assist the most financially disadvantaged Australians. The Determination provides for the staged closure of the CDDS to allow current patients to continue treatment over a transition period.
The objective of the Determination is legitimate, reasonable and proportionate and is therefore compatible with Australia’s obligations with regards to the right to health and the right to social security.
Overview of the Legislative Instrument
The Principal Determination enables the payment of Medicare benefits for dental services provided to eligible patients with a chronic medical condition and complex care needs whose oral health is impacting, or likely to impact on, their general health (also known as the Medicare Chronic Disease Dental Scheme or CDDS).
The Determination creates a staged approach to the cessation of the CDDS so that patients who have been provided with certain Medicare funded management plans for chronic medical conditions prior to 8 September 2012 may continue to access Medicare-eligible dental services under the CDDS until 30 November 2012. From 1 December 2012 the Principal Determination will cease in its entirety.
The Government is closing the CDDS so that it can direct resources to more appropriate and improved dental programs.
Human rights implications
The Determination engages the following human rights:
Right to Health
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. Whilst the UN Committee on Economic Social and Cultural Rights (the Committee) has stated that the right to health is not to be understood as a right to be healthy, it does entail a right to a system of health protection which provides equality of opportunity for people to enjoy the highest attainable level of health.
The amendment of the Principal Determination, first to limit access to the CDDS and then abolish the scheme will result in reduced access to Commonwealth Government subsidised dental services under the Medicare scheme for eligible patients with chronic medical conditions. This arguably reduces the ability of these persons to enjoy their highest attainable level of health.
However, the Committee has stated that the notion of ‘the highest attainable standard of health’ takes into account both the conditions of the individual and the country’s available resources. The 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 CDDS does not target benefits to those who are most financially disadvantaged. Accordingly, the CDDS is not seen by the Government as the best mechanism for providing Australians with equal opportunity of access to dental care.
The Government intends to direct resources for dental services to low income patients who traditionally access public dental services through the states and territories. Financially disadvantaged Australians eligible for public dental services, namely pensioners and concession card holders, have a substantially reduced ability to access affordable and timely oral health care.
The 2008 Australian Institute of Health and Welfare (AIHW) report Oral Health of Adults in the Public Dental Sector found that public dental patients were far more likely to suffer from decay, tooth loss and gum disease than the general population.
The ICESCR recognises that the right to health may be subject to limitations made for the purpose of promoting the general welfare of society as a whole. The ICESCR also recognises that the ability of a government to promote the right to health is affected by the country’s available resources. In this context, governments must assess which measures are most suitable to address the health needs of population as a whole.
Accordingly, a limitation on a section of the Australian population’s access to a particular health service will be legitimate where the Government:
(i) believes that the service is not well targeted to providing assistance to those Australians most in financial need; and
(ii) has limited resources and intends to re-direct resources to more appropriate programs that are more equitably targeted to those financially disadvantaged Australians in greatest need.
The amendments made by the Determination are for a legitimate objective and are reasonable, necessary and proportionate, and therefore are compatible with Australia’s obligations with regards to the right to health.
Right to Social Security
The right to social security is contained in Article 9 of the ICESCR. The right 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. It is likely that this right would require persons whose oral health is impacting on their general health to have access to a minimum essential level of benefits.
Further, the Committee has stated 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 who were previously entitled to them.
However, it is legitimate for a Government to re-direct its limited resources to programs which it believes are more effective at meeting the general health needs of society, particularly the needs of the more disadvantaged members of society. The closure of the CDDS will enable the Government to focus resources for dental services targeting those on low incomes.
The Determination includes a transitional period to allow existing patients to continue to receive access to Medicare benefits to complete their course of dental care within a clinically appropriate timeframe before the CDDS’s closing date. By taking this staged approach, the Determination mitigates any adverse impact on a person’s existing reliance on the payment of Medicare benefits under the CDDS.
The Determination does not impact upon alternative means of support for services through state and territory public dental services, or Commonwealth funded rebates for private health insurance covering dental treatment.
There is no incompatibility with the right engaged because it is for a legitimate objective and reasonable, necessary and proportionate in the circumstances.
Conclusion
The Determination is compatible with human rights because it advances the protection of human rights by enabling limited resources to be spent more effectively and to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate.
TANYA PLIBERSEK
MINISTER FOR HEALTH