Health Insurance (Epicutaneous patch testing) Determination 2016

Administered by Department of Health, Disability and Ageing

Legislation au F2016L02002 Not in force Legislative Instrument

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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

 

Overview

The Health Insurance (Epicutaneous patch testing) Determination 2016, issued under the Health Insurance Act 1973, was enacted to address a gap caused by recent amendments to Medicare items for skin patch testing services. These amendments inadvertently prevented consultant physicians from providing certain services as Medicare services, despite their long-standing practice of doing so. The policy objective of this Determination is to introduce three new items (12025, 12026, and 12027) to the Medicare Benefits Schedule (MBS), thereby enabling Medicare benefits to be paid for skin patch testing when provided by consultant physicians. The Determination aims to ensure equitable access to clinically effective and cost-effective health services, thereby advancing rights to health and social security as outlined in the International Covenant on Economic, Social and Cultural Rights. The Determination came into effect on 1 November 2016, with retrospective application to allow valid claims for services provided from that date. Consultation with relevant stakeholders, including the Australasian Society of Clinical Immunology and Allergy (ASCIA), was undertaken to inform the content of the Determination. The instrument is compatible with human rights, positively impacting the rights to health and social security by ensuring continued access to publicly subsidised health services. This legislative instrument was issued by the Minister for Health and Aged Care and is compatible with the human rights and freedoms recognised in international instruments, particularly the right to health and social security under the International Covenant on Economic, Social and Cultural Rights.

Scope and Application

The Health Insurance (Epicutaneous patch testing) Determination 2016 applies to the provision of health services related to skin patch testing, specifically those services performed by consultant physicians. This determination was made under subsection 3C(1) of the Health Insurance Act 1973, and it amends the Medicare Benefits Schedule (MBS) to include three new items (12025, 12026, and 12027) that allow for Medicare benefits to be paid for these services. The retrospective commencement of this determination on 1 November 2016 ensures that patients can claim benefits for services provided by consultant physicians from that date onwards. This legislative instrument is intended to address an inadvertent exclusion of consultant physicians from certain skin patch testing services under Medicare, thereby ensuring continuity of care and equitable access to these services. The Determination specifies the fees and descriptors for the newly introduced MBS items, and it applies to the Commonwealth of Australia, with no exclusions or exemptions specified within the text.

Key Provisions

The Health Insurance (Epicutaneous patch testing) Determination 2016 introduces three new items (12025, 12026, and 12027) into the Medicare Benefits Schedule (MBS) to facilitate the payment of Medicare benefits for skin patch testing services provided by consultant physicians (Section 5). These new items will be treated as if they were specified in the general medical services table, thus making them eligible for Medicare benefits under the Health Insurance Act 1973 and the National Health Act 1953 (Section 5). The determination ensures that services provided in accordance with these new items are recognised as both professional and medical services (Section 5). Consultant physicians who provide these services must adhere to the specifications outlined in the Determination, ensuring that the services meet the criteria for inclusion in the MBS. The Determination also mandates that the new items are to be considered in relevant provisions of the Health Insurance Act and the National Health Act, as well as any regulations made under these Acts (Section 5). It is crucial that the services align with the definitions and requirements set out in the Determination to be eligible for Medicare benefits. Failure to comply with the provisions of the Determination may result in the services not being eligible for Medicare benefits. The retrospective commencement of the Determination allows for claims to be made for services provided between 1 November 2016 and the date the instrument was made. The Determination outlines specific penalties and consequences for non-compliance, although the exact nature of these penalties is not detailed in the provided text. The retrospective effect ensures that patients can claim benefits for services provided during this period without being disadvantaged. The Health Insurance (Epicutaneous patch testing) Determination 2016 is a legislative instrument made under subsection 3C(1) of the Health Insurance Act 1973 (Section 3). It is designed to address an unintended consequence of recent changes to skin patch testing items, ensuring that consultant physicians can continue to provide these services under Medicare. The retrospective commencement date allows for the continuity of service provision and patient benefit claims. The Determination has been reviewed for compatibility with human rights, confirming its alignment with the International Covenant on Economic, Social and Cultural Rights, specifically the rights to health and social security.

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