EXPLANATORY STATEMENT
Issued by the Authority of the Minister for Health
Health Insurance Act 1973
Health Insurance (Extended Medicare Safety Net) Amendment Determination 2019
Section 10B of the Health Insurance Act 1973 (the Act) provides that the Minister for Health may, by legislative instrument, determine to which Medicare items subsections 10ACA(7A) and 10ADA(8A) apply and the maximum increases in Medicare benefit payable for those items under the Extended Medicare Safety Net (EMSN). The increase in the Medicare benefit payable under the EMSN is commonly referred to as the ‘EMSN benefit’ and the maximum increase amount is known as the ‘EMSN benefit cap’.
Subsections 10ACA(7A) and 10ADA(8A) of the Act provide that where a Medicare item is listed in a determination made under section 10B, the EMSN benefit must not exceed the amount determined as the EMSN benefit cap. At present, only 10% of Medicare items are capped under the EMSN.
Purpose
The purpose of the Health Insurance (Extended Medicare Safety Net) Amendment Determination 2019 (the EMSN Amendment Determination) is to amend the Health Insurance (Extended Medicare Safety Net) Determination 2017 (the Principal Determination). The EMSN Amendment Determination will apply EMSN benefit caps to five new or amended Medicare items from
1 January 2019. The Government agreed to cap these items as part of its Budget response to the new and amended Medicare listing recommendation from the Medical Services Advisory Committee (MSAC). Applying the EMSN benefit caps on 1 January 2019 aligns with the start of the accumulation of out-of-pocket costs for the safety net.
Background
The EMSN Amendment Determination will apply a:
- 65% EMSN benefit cap to item 13260 in order to align it with existing assisted reproductive technology items. Item 13260 is a service for the processing and cryopreservation of semen to preserve fertility in post-pubertal males undergoing gonadotoxic treatment;
- 15% EMSN benefit cap to item 32528 in order to align it with the alternative radiation frequency ablative treatment item 32523. Item 32528 is a service for cyanoacrylate embolisation for the treatment of varicose veins due to chronic venous insufficiency;
- 10% EMSN benefit cap to item 32529 in order to align it with the alternative radiation frequency ablative treatment item 32526. Item 32529 is a service for cyanoacrylate embolisation for the treatment of varicose veins due to chronic venous insufficiency;
- 15% EMSN benefit cap to item 42505 in order to align it with existing cataract surgery items. Item 42505 is a service for the removal of (MIGS) devices; and
- 15% EMSN benefit cap to item 42705 in order to align it with existing cataract surgery items. Item 42705 is a service for micro-invasive glaucoma surgery (MIGS) stent implantation for open-angle glaucoma.
EMSN
The EMSN provides an additional benefit for Australian families and singles who incur high
out-of-pocket costs for Medicare eligible out-of-hospital services. Out-of-hospital services include general practitioner and specialist attendances, and certain procedures. The out-of-pocket cost is the difference between the fee charged by the doctor and any benefit that the patient receives from Medicare (including any benefit received through safety net arrangements).
Once the relevant annual threshold of out-of-pocket costs has been reached, Medicare will pay up to 80% of any future out-of-pocket costs for Medicare eligible out-of-hospital services for the remainder of the calendar year. For the 2018 calendar year, the annual EMSN threshold for people who have concessional beneficiary status and people who receive Family Tax Benefit (Part A) is $668.10. For all other singles and families the annual threshold is $2,093.30. These amounts are indexed by the Consumer Price Index on 1 January each year in accordance with section 10A of the Act.
Where an EMSN cap applies to an item, the additional benefit received by the patient may be limited. A percentage cap restricts the EMSN benefit to a percentage of the MBS fee. A fixed cap restricts the EMSN benefit to a dollar amount that is not linked to the MBS fee. If the out-of-pocket cost is greater than the EMSN cap, the patient will receive the EMSN cap (i.e. the lesser of the two amounts). If the out-of-pocket cost is less than the EMSN cap, the patient receives 80% of the out-of-pocket costs for the claim.
The EMSN caps are publicly available for patients and practitioners through the MBS Online website (www.mbsonline.gov.au). This website is a commonly used resource which sets out the item descriptor and the Schedule fees and rebates for all Medicare items.
Details of the Amendment Determination are set out in the Attachment.
Consultation
As part of the MSAC process, consultation was undertaken with professional bodies, consumer groups, the public and clinical experts for applications put forward for consideration by the Committee.
Commencement
The Amendment Determination will commence on 1 January 2019 if it is approved by each House of Parliament. However, the Amendment Determination will not commence until it has been approved by each House of Parliament.
ATTACHMENT
Details of the Health Insurance (Extended Medicare Safety Net) Amendment
Determination 2019
Section 1 - Name
Section 1 provides that the name of the Determination is the Health Insurance (Extended Medicare Safety Net) Amendment Determination 2019 (the Amendment Determination).
Section 2 - Commencement
Section 2 provides that the Amendment Determination will commence the later of
1 January 2019, or the day after the Amendment Determination has been approved by each House of Parliament. However, the Amendment Determination will not commence at all if it is not approved by each House of Parliament.
Section 3 - Authority
Section 3 provides that the Amendment Determination is made under Section 10B of the Health Insurance Act 1973 (the Act).
Section 4 - Schedules
Section 4 provides that the Schedule to the Amendment Determination amends or repeals each instrument specified in the Schedule. The Schedule specifies the Health Insurance (Extended Medicare Safety Net) Determination 2017 (the Principal Determination).
Schedule 1 – Amendments
Schedule 1 sets out the amendments to the Principal Determination.
Item 1 – Subsection 4(1)
Item 1 provides that the table in subsection 4(1) is amended by inserting item 13260 prescribed in the Health Insurance (Section 3C General Medical Services – Cryopreservation of Semen) Determination 2018.
Item 2 - Subsection 4(1)
Item 2 provides that the table in subsection 4(1) is amended by inserting items 32528 and 32529 to align them with the alternative ablative treatment items 32523 and 32526. Item 2 also provides that the table in subsection 4(1) is amended by inserting item 42505 prescribed in the Health Insurance (Section 3C General Medical Services – MIGS Stent Implantation)
Determination 2018.
Item 3 – Subsection 4(1)
Item 3 provides that the table in subsection 4(1) is amended by inserting item 42705 prescribed in the Health Insurance (Section 3C General Medical Services – MIGS Stent Implantation) Determination 2018.
Item 4 – Paragraph 4(2)(a)
Item 4 provides that paragraph 4(2)(a) is amended by omitting item 32501. This is to reflect that item 32501 will be removed from the MBS from 1 November 2018.
Item 5 – Subsection 4(3)
Item 5 provides that subsection 4(3) is amended by inserting a note after the table. This is to clarify that other medical practitioner services items in group A7 that appear in a determination made under subsection 3C(1) of the Act are treated as if they were items in the general medical services table for the purpose of the Principal Determination. These items are currently prescribed in the Health Insurance (Section 3C General Medical Services – Other Medical Practitioner) Determination 2018.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Health Insurance (Extended Medicare Safety Net) Amendment Determination 2019
This Determination 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 Health Insurance (Extended Medicare Safety Net) Amendment Determination 2019 (the EMSN Amendment Determination) is to amend the Health Insurance (Extended Medicare Safety Net) Determination 2017 (the Principal Determination). The EMSN Amendment Determination will apply EMSN caps to five new or amended Medicare items from
1 January 2019. The Government agreed to cap these items as part of its Budget response to the new and amended Medicare listing recommendation from the Medical Services Advisory Committee (MSAC). Applying the EMSN benefit caps on 1 January 2019 aligns with the start of the accumulation of out-of-pocket costs for the safety net.
Human rights implications
This Determination 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 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 maintain or advance rights to health and social security by ensuring access to publicly subsidised health services which are clinically effective and cost-effective.
Conclusion
This Determination amends existing arrangements by applying EMSN caps to five new or amended Medicare items from 1 January 2019. This Determination is compatible with human rights because it provides alternative treatment options with commensurate benefit amounts and maintains the protection of human rights.
Greg Hunt
Minister for Health