EXPLANATORY STATEMENT
Issued by the Authority of the Minister for Health and Aged Care
Health Insurance Act 1973
Health Insurance (Epicutaneous patch testing) Determination 2016
Subsection 3C(1) of the Health Insurance Act 1973 (the Act) provides that the Minister may, by writing, 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. This Table is set out in the Health Insurance (General Medical Services Table) Regulation which is remade each year.
Purpose
The purpose of the Health Insurance (Epicutaneous patch testing) Determination 2016 (the Determination) is to introduce three new items (12025, 12026 and 12027) to the Medicare Benefits Schedule (MBS) to enable Medicare benefits to be paid for skin patch testing when the service is provided by a consultant physician. Consultant physicians have long been performing these services under Medicare however a recent change to the skin patch testing items has resulted in an inadvertent and unintended effect where this group of providers have been unable to provide services under existing items 12021, 12022 and 12024.
This Determination will be taken to have commenced on 1 November 2016. The retrospective commencement is necessary to enable patients to make valid claims for benefits for skin patch testing provided by a consultant physician on or after
1 November 2016.
The retrospective commencement does not contravene subsection 12(2) of the Legislation Act 2003. The retrospective effect allows patients to claim Medicare benefits in respect of services described in MBS items 12025, 12026 and 12027 that were provided between 1 November 2016 and the date this instrument was made. Subsection 3C(2) of the Act provides that a determination made under that section may be expressed to take effect on a day earlier than the date the determination is made. Further, the Commonwealth is the only person who is disadvantaged by the retrospective commencement date.
Consultation
Consultation has been undertaken with the Australasian Society of Clinical Immunology and Allergy (ASCIA). ASCIA represents most of the consultant physicians who provide these services.
Details of the Determination are set out in the Attachment.
The Determination will be taken to have commenced on 1 November 2016.
The Determination is 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 (Epicutaneous patch testing) Determination 2016
Section 1 – Name of Determination
Section 1 provides for the Determination to be referred to as the Health Insurance (Epicutaneous patch testing) Determination 2016.
Section 2 – Commencement
Section 2 provides that the Determination is taken to have commenced on 1 November 2016.
Section 3 – Authority
Section 3 provides that the Determination is made under subsection 3C(1) of the
Health Insurance Act 1973.
Section 4 – Definitions
Section 4 defines terms used in the Determination.
Section 5 – Treatment of relevant services
Section 5 provides that a clinically relevant service provided in accordance with the Determination shall be treated, for relevant provisions of the Health Insurance Act 1973 and National Health Act 1953, and regulations made under those Acts, as if it were both a professional service and a medical service and as if there were an item specified in the general medical services table for the service. The general medical services table is a table of medical services prescribed under section 4 of the Health Insurance Act 1973.
Section 6 – Effect of specified provisions
Subsection 6(1) provides that subclause 1.2.8(1) of the general medical services table shall have effect as if it included a reference to new items 12025, 12026 and 12027.
Subclause 1.2.8(1) of the general medical services table outlines the services that may be provided by persons other than medical practitioner.
Subsection 6(2) provides that items 12000 and 12003 of the general medical services table shall have effect as if they included a reference to new items 12025, 12026 and 12027.
Items 12000 and 12003 both specify that they do not apply to a service associated with a service to which item 12012, 12017, 12021, 12022 or 12024 applies. Subsection 6(2) has the effect that items 12000 and 12003 will also not apply to a service to which any of new items 12025, 12026 or 12027 apply.
Schedule – relevant services
Prescribes the fee and item descriptors for service provided under items 12025, 12026 and 12027.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Health Insurance (Epicutaneous patch testing) Determination 2016
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 Determination is to introduce three new items (12025, 12026 and 12027) to the Medicare Benefits Schedule (MBS) to enable Medicare benefits to be paid for skin patch testing when the service is provided by a consultant physician.
Recent amendments to Medicare items for skin patch testing services inadvertently resulted in consultant physicians being unable to provide certain services as Medicare services.
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 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 Legislative Instrument is compatible with human rights as it has a positive effect on human rights issues.
Michael Ryan
A/g Assistant Secretary
Medical Specialist Services Branch
Medical Benefits Division
Department of Health