EXPLANATORY STATEMENT
Issued by the Authority of the Minister for Health
Health Insurance Amendment (Diagnostic Imaging Accreditation) Act 2007
Health Insurance (Diagnostic Imaging Accreditation – Designated Persons) Repeal
Instrument 2020
Authority
The instrument to which this explanatory statement relates is made under subitem 12A(12) of Schedule 1 to the Health Insurance Amendment (Diagnostic Imaging Accreditation) Act 2007 (the Act).
Subsection 33(3) of the Acts Interpretation Act 1901 provides that where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws), the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.
The instrument is a legislative instrument for the purposes of section 8 of the Legislation Act 2003.
Purpose
This instrument repeals the Health Insurance (Diagnostic Imaging Accreditation Scheme – Designated Persons) Instrument 2010. The instrument is no longer required because the function performed by the persons named in the Health Insurance (Diagnostic Imaging Accreditation Scheme – Designated Persons) Instrument 2010 , which was to accept registrations for deemed accreditation, ceased on 30 June 2010. The Health Insurance (Diagnostic Imaging Accreditation Scheme – Designated Persons) Instrument 2010 was otherwise due to sunset on 1 April 2020 in accordance with the sunsetting provisions in the Legislation Act 2003.
Background
Subitem 12A(12) of Schedule 1 to the Act provides that the Minister may, by legislative instrument, designate a person with whom notices under subitem 12A(4) are to be lodged.
The Act amended the Health Insurance Act 1973 to establish a legislative framework to enable the introduction of an accreditation scheme for practices providing diagnostic imaging services
Pursuant to subsection 16EA(1) of the Health Insurance Act 1973, and unless the Minister otherwise directs, a Medicare benefit is not payable for a diagnostic imaging service unless the service is rendered from a premises or a mobile base accredited under a diagnostic imaging accreditation scheme.
The diagnostic imaging accreditation scheme was implemented in stages. The first stage was established under the Health Insurance (Diagnostic Imaging Accreditation) Determination 2008 (no longer in force). It applied to all diagnostic imaging services in the Diagnostic Imaging Services Table (DIST) regulations made under section 4AA of the Health Insurance Act 1973, except cardiac ultrasound, cardiac angiography, obstetric and gynaecological ultrasound, and nuclear medicine imaging services (known as non-radiology services). The first stage commenced on 1 July 2008 and concluded on 30 June 2010.
The second stage of the scheme was established by the Health Insurance (Diagnostic Imaging Accreditation) Instrument 2010. It commenced on 1 July 2010 and covers all diagnostic imaging services in the DIST Regulations, including those non-radiology services which had previously been exempted.
During the transition to the stage two scheme in 2010, a process was established to allow those practices previously exempt from the requirement to be accredited to provide a diagnostic imaging service, namely practices only providing non-radiology services, to lodge a notice of registration for ‘deemed accreditation’ on or before 30 June 2010. Registering for deemed accreditation enabled those previously exempted practices without accreditation to continue to provide Medicare funded diagnostic imaging services from 1 July 2010 when the stage two scheme commenced. Practices which successfully lodged a notice of registration for deemed accreditation were required within 12 months to apply for and obtain accreditation under the stage two scheme.
The persons approved to receive notices of registration for deemed accreditation on or before 30 June 2010 were named in the Health Insurance (Diagnostic Imaging Accreditation) Instrument 2010.
Consultation
The Department of Health consulted the Diagnostic Imaging Accreditation Scheme Advisory Committee (the Committee) to inform them that this instrument would be repealed because the function performed by the persons named in the instrument ceased on 30 June 2010. The Committee comprises individuals with expertise in diagnostic imaging policy, practice, standards development and accreditation, health administration and health consumer advocacy. The Committee is responsible for providing advice on the administration of the scheme, including accreditation standards.
Commencement
The instrument commences the day after the instrument is registered.
Details of this instrument are set out in the Attachment.
ATTACHMENT
Details of the Health Insurance (Diagnostic Imaging Accreditation – Designated Persons) Repeal Instrument 2020
Section 1 Name
This section provides that the name of this instrument is the Health Insurance (Diagnostic Imaging Accreditation – Designated Persons) Repeal Instrument 2020.
Section 2 Commencement
This section provides that this instrument commences the day after the instrument is registered.
Section 3 Authority
This section provides that the instrument is made under subitem 12A(12) of Schedule 1 to the Health Insurance Amendment (Diagnostic Imaging Accreditation) Act 2007.
Section 4 Schedules
This section provides that each instrument that is specified in a Schedule to the instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to the instrument has effect according to its terms.
Schedule 1
This Schedule provides that the Health Insurance (Diagnostic Imaging Accreditation – Designated Persons) Instrument 2010 is repealed.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Health Insurance (Diagnostic Imaging Accreditation – Designated Persons) Repeal Instrument 2020
This 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 instrument
This instrument, the Health Insurance (Diagnostic Imaging – Designated Persons) Repeal Instrument 2020, repeals the Health Insurance (Diagnostic Imaging Accreditation – Designated Persons) Instrument 2010. This instrument is no longer required because the function performed by the persons named in the Health Insurance (Diagnostic Imaging Accreditation Scheme – Designated Persons) Instrument 2010, which was to accept registrations for deemed accreditation during the transition from the stage one to the stage two accreditation scheme, ceased on 30 June 2010.
Human rights implications
This instrument engages 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 UN 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 UN 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 UN 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
The repeal of the Health Insurance (Diagnostic Imaging Accreditation – Designated Persons) Instrument 2010 will not impact the current operation of the diagnostic imaging accreditation scheme. The 2010 instrument enabled an interim accreditation related function which ceased on 30 June 2010.
The operation of the current diagnostic imaging accreditation scheme is supported by other legislative instruments, namely the Health Insurance (Diagnostic Imaging Accreditation) Instrument 2020 and the Health Insurance (Diagnostic Imaging Accreditation – Approved Accreditors) Instrument 2020. The operation of the current diagnostic imaging accreditation scheme continues to maintain and promote rights to health and social security by ensuring that patients have access Medicare funded diagnostic imaging services which are provided by practices that have been assessed as meeting safety and quality accreditation standards by competent and credible organisations approved for that purpose.
Conclusion
This instrument is compatible with human rights.
Greg Hunt
Minister for Health