EXPLANATORY STATEMENT

Issued by the Authority of the Minister for Health

Health Insurance Act 1973

Health Insurance (Epicutaneous patch testing) Revocation Determination 2017

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.  The Table is set out in the regulations made under subsection 4(1) of the Act, which is re-made each year.  The most recent version of the regulations is the Health Insurance (General Medical Services Table) Regulation 2016 which commenced on 1 July 2016.

Purpose

The purpose of the Health Insurance (Epicutaneous patch testing) Revocation Determination 2017 (the Determination) is to revoke the Health Insurance (Epicutaneous patch testing) Determination 2016 (the Patch Testing Determination).  

The three items contained within the Patch Testing Determination (12025, 12026 and 12027) were created as an interim arrangement to enable Medicare benefits to be paid for skin patch testing when the service is provided by a consultant physician.  This was a result of consultant physicians inadvertently and unintentionally being excluded during amendments to items 12021, 12022 and 12024 in the Table on 1 November 2016.

Revocation is required as consultant physicians have been added as eligible providers for the use of patch testing items 12021, 12022 and 12024 as a result of amendments to the Table to be made on 1 May 2017 by the Health Insurance Legislation Amendment (2017 Measures No. 1) Regulations 2017.

Consultation

The Department originally consulted with the Australasian Society of Clinical Immunology and Allergy (ASCIA), whose members make up the majority of the consultation physicians who provide these services.  ASCIA was informed when the Determination was being drafted that the new items 12025 to 12027 were intended to be temporary. ASCIA was also informed that these new items would be removed on 1 May 2017 and that existing items 12021 to 12024 would be amended to allow claiming by both consultant physicians and specialists.

After the Determination was registered, the Department wrote to ASCIA to formally notify its members of the new arrangements.  A copy of this letter was also sent to the Royal Australasian College of Physicians (RACP).

The Department will write to ASCIA and RACP again prior to 1 May 2017 to remind practitioners that items 12025, 12026 and 12027 will be removed and to claim items 12021, 12022 and 12024 instead.

Details of the Determination are set out in the Attachment.

The Determination will be taken to have commenced on 1 May 2017.

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) Revocation Determination 2017

Section 1 – Name of Determination

Section 1 provides for the Determination to be referred to as the Health Insurance (Epicutaneous patch testing) Revocation Determination 2017.

Section 2 – Commencement

Section 2 provides that the Determination commences on 1 May 2017.

Section 3 – Authority

Section 3 provides that the Determination is made under subsection 3C(1) of the Health Insurance Act 1973.

Section 4 – Revocation

Section 4 provides that the Determination revokes the Health Insurance (Epicutaneous patch testing) Determination 2016.

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) Revocation Determination 2017

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 revoke the Health Insurance (Epicutaneous patch testing) Determination 2016 (the Patch Testing Determination).  

The Patch Testing Determination created three Medicare items (12025, 12026 and 12027) as an interim arrangement to enable Medicare benefits to be paid for skin patch testing when the service is provided by a consultant physician.  This was a result of consultant physicians inadvertently and unintentionally being excluded during amendments to items 12021, 12022 and 12024 in the General Medical Services Table on 1 November 2016.

Revocation of the Patch Testing Determination is required as consultant physicians have been added as eligible providers for the use of patch testing items 12021, 12022 and 12024 in the General Medical Services Table from 1 May 2017.

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

The revocation of this Determination does not raise any human rights issues.  It repeals three Medicare item numbers (12025, 12026 and 12027) relating to epicutaneous patch testing in the investigation of allergic dermatitis.  However, these items were created to deal with the accidental omission of consultant physicians as eligible providers of equivalent Medicare items, which has been rectified by amendments the General Medical Services Table to commence on 1 May 2017.  There is no change in the access to the specified patch testing items for providers or patients.

Conclusion

This Legislative Instrument is compatible with human rights as it raises no human rights issues.

Teresa Gorondi

Acting Assistant Secretary

Medical Specialist Services Branch

Medical Benefits Division

Department of Health