EXPLANATORY STATEMENT

Health Insurance Act 1973

Health Insurance (Endoluminal Abdominal Aortic Aneurysm Grafting) Determination HS/05/2006

Issued by the authority of the Minister for Health and Ageing

Background

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 2006 which are remade each year.

A determination made under subsection 3C(1) is a legislative instrument (see subsection 3C(4) of the Act and paragraph 6(d) of the Legislative Instruments Act 2003).

• Health Insurance Determination HS/2/1999 and Health Insurance Determination HS/6/1999

On 7 September 1999, the then Minister for Health and Aged Care made Health Insurance Determination HS/2/1999 (HS/2/1999) under subsection 3C(1) of the Act.  HS/2/1999 permitted the payment of Medicare benefits in relation to services for endoluminal grafting of abdominal aortic aneurysms.  The provision of clinical data to the Health Insurance Commission (HIC) concerning patients’ characteristics, treatment and outcomes was a condition of payment. This condition reflected a recommendation of the Medical Services Advisory Committee to list the procedures on an interim basis subject to further evaluation.

On 14 December 1999, the then Minister for Health and Aged Care made Health Insurance Determination HS/6/1999 (HS/6/1999), which replaced HS/2/1999.  HS/6/1999 removed the link between the payment of Medicare benefits for services for endoluminal grafting of abdominal aortic aneurysms, and the provision of data to the HIC.  At the time that HS/6/1999 was made, the intention was that data would continue to be provided to the Australian Safety and Efficacy Register of New Interventional Procedures as part of a quality assurance program.

Subsection 5(1) of HS/6/1999 provided that a service in relation to endoluminal grafting of abdominal aortic aneurysms specified in the Schedule to HS/6/1999 should be treated as if it were a professional service and a medical service for the purpose of the following specific provisions:

(a) Schedule 1 to the National Health Act 1953;

(b) Subsections 3(1) and 19(6) and sections 8, 9, 10, 14, 15, 16, 17, 18, 20, 20A, 20B and 20BA of the Act; and

(c) Regulations 13, 27, 28, 29, 30 and 31 of the Health Insurance Regulations 1975.

Subsection 5(2) of HS/6/1999 provided that a service in relation to endoluminal grafting of abdominal aortic aneurysms specified in the Schedule to HS/6/1999 was to be treated as if it were related to an item in the Table that specifies the fee mentioned in the Schedule to HS/6/1999 for that service.

Subsequent amendments were made to HS/6/1999 to extend the cessation date and increase the fees in respect of the services specified in the Schedule to HS/6/1999 to be in line with general fee increases that were being applied to services in the Table (see Health Insurance (Amendment) Determination HS/08/2002, Health Insurance (Amendment) Determination HS/06/2003, Health Insurance (Amendment) Determination HS/08/2004, Health Insurance (Amendment) Determination HS/10/2004 and Health Insurance (Amendment) Determination HS/04/2005).

The last of these amending Determinations, Health Insurance (Amendment) Determination HS/04/2005, was registered on the Federal Register of Legislative Instruments on 27 October 2005.

Due to the operation of subsection 29(2) and paragraph 29(4)(b) of the Legislative Instruments Act 2003 and regulation 6 of the Legislative Instruments Regulations 2004, HS/6/1999 was required to be lodged for registration by 26 April 2006.

However, due to an administrative oversight, HS/6/1999 was not lodged for registration and as a result, ceased to be in effect on and from 27 April 2006 (see section 32 of the Legislative Instruments Act 2003).

• Health Insurance (Endoluminal Abdominal Aortic Aneurysm Grafting) Determination HS/05/2006

Health Insurance (Endoluminal Abdominal Aortic Aneurysm Grafting) Determination HS/05/2006 (the Determination) remakes HS/6/1999, as amended.

The Determination has a retrospective commencement date to ensure that Medicare benefits were payable in respect of services for endoluminal grafting of abdominal aortic aneurysms purportedly provided to patients under HS/6/1999 on and from 27 April 2006.

The Determination revises the wording of various provisions of HS/6/1999 to reflect updated drafting practice.

In addition, the Determination provides for an increase of 2.1 per cent in the fees in respect of the services covered in the Determination compared to the fees in respect of the same services in HS/6/1999, as amended.  This fee increase is in line with the general fee increase that is being applied to most services in the Table from 1 November 2006. 

Details of the Determination are set out in the Attachment.

Consultation

No consultation was undertaken in the making of the Determination as the instrument is machinery in nature and does not substantially alter existing arrangements.

ATTACHMENT

Notes on sections

Section 1

Section 1 provides for the name of the Determination.

Section 2

This section provides that the Determination is taken to have commenced on 27 April 2006.

In order to ensure that Medicare benefits are payable in respect of services for endoluminal grafting of abdominal aortic aneurysms purportedly provided to patients under Health Insurance Determination HS/6/1999, as amended, on and from 27 April 2006, it will be necessary for the commencement date of the Determination to be retrospective.

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.

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) as at the date of registration so as to disadvantage that person.  The Determination clarifies that Medicare benefits are payable for the services specified in the Schedule to the Determination (that were previously included in the Schedule to Health Insurance Determination HS/6/1999, as amended) on and from 27 April 2006.

In addition, the Determination does not impose any liabilities 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.

Section 3

This section provides that the Determination will cease to have effect at the end of 31 October 2007.  Although expressed differently, this cessation date allows for the same period of operation as provided by Health Insurance Determination HS/6/1999, as amended.

Section 4

Subsection 4(1) defines terms used in the Determination.

A key term is 'relevant service' which means a service defined in paragraph 3C(8) of the Act that is specified in the Schedule to the Determination.  There are two such relevant services in the Schedule.

Subsection 4(2) provides that a reference to a provision of an Act or regulations, including the Act, the National Health Act 1953 and the regulations made under these Acts, is a reference to the provision as in force from time to time (as authorised by subsection 3C(3) of the Act).

Section 5

Paragraph 5(a) provides that a relevant service specified in the Schedule to the Determination shall 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 that make provision for medical services or professional services.

Paragraph 5(b) provides that a relevant service specified in the Schedule to the Determination is to be treated as if there were an item in the general medical services table that related to the service and specified a fee in respect of that service, being the fee specified in the Schedule to the Determination in relation to the service.

Section 6

This section provides for the indexation of the fees relating to the relevant services specified in the Schedule to the Determination.

This section is necessary to:

• set out the fees that apply to relevant services rendered in the period after the date that Health Insurance Determination HS/6/1999, as amended, ceased to be in effect (that is, after 26 April 2006) and before 1 November 2006 (that is, before the date of the latest increase to the fees that relate to the relevant services).  These fees are set out in Column 3 of the Schedule; and
• set out the fees that apply to relevant services rendered after 31 October 2006.  These fees include the 1 November 2006 increase of 2.1 percent and are set out in Column 4 of the Schedule.

Schedule

The Schedule sets out the relevant services and assigns to each service the applicable item number and item descriptor.  The Schedule also specifies a range of fees (set out in Columns 3 and 4) that apply to each relevant service depending upon the date that the service was or is to be rendered to a patient.

Previously, the descriptor for item 33116 and for item 33119 included the words “(Anaes.17734=15B +19T) (Assist.)” and “(Anaes.17737=15B +22T) (Assist.)”, respectively.  The reference to “17734=15B +19T” and to “17737=15B +22T” has been removed from the descriptors, as items 17734 and 17737 no longer exist and the anaesthetic items are no longer based on generic units but are specific to the type of surgery performed.