EXPLANATORY STATEMENT
Issued by the Authority of the Minister for Health
Health Insurance Act 1973
Health Insurance (Extended Medicare Safety Net) Amendment Determination 2020
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’. 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.
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.
Purpose
In the 2019-20 Mid-year Economic and Fiscal Outlook under the Guaranteeing Medicare – Medicare Benefits Schedule – new and amended listings measure, the Government announced it would support a recommendation from the Medical Services Advisory Committee (MSAC) to list a new item for the insertion of micro-bypass glaucoma surgery (MBGS) devices in the eye. This service is for patients with open angle glaucoma for whom conservative treatment has failed or is contraindicated. This item will commence on 1 May 2020.
In the 2019-20 Budget under the Guaranteeing Medicare – improved patient access to diagnostic imaging measure, the Government announced it would support recommendations of the independent clinician-led Medical Benefits Schedule Review Taskforce (the MBS Review Taskforce) to promote the use of modern diagnostic imaging equipment from 1 May 2020.
Currently, there are two Medical Benefits Schedule (MBS) mirror items, known as schedule K and schedule NK items that include two different schedule fees. Schedule K items refer to services performed on newer/upgraded equipment and schedule NK items refer to services performed on older/aged equipment. NK items have a lower Medicare rebate than K items. From 1 May 2020, all NK items are to be removed, which means that providers can only claim for services performed on newer/upgraded equipment unless they have an exemption.
The purpose of the Health Insurance (Extended Medicare Safety Net) Amendment Determination 2020 (the EMSN Amendment Determination) is to amend the Health Insurance (Extended Medicare Safety Net) Determination 2017 (the Principal Determination) from 1 May 2020 to apply an EMSN benefit cap of 15 per cent of the schedule fee to the new glaucoma surgery item (item 42504), and to remove the 22 NK items that will no longer be listed.
The EMSN Amendment Determination also makes machinery changes by removing two items that do not apply an EMSN benefit cap from the Principal Determination.
Consultation
MSAC reviews new or existing medical services or technology, and the circumstances under which public funding should be supported through listing on the MBS. This includes the listing of new items, or amendments to existing items on the MBS. Consultation was undertaken as part of consideration of the MSAC application for the new listing of an MBS service for the insertion of MBGS devices.
Key stakeholders that were consulted included clinical experts and providers, consumer health representatives, the Australian and New Zealand Glaucoma Society, Australian Society of Ophthalmologists, Royal Australian and New Zealand College of Ophthalmologists and Glaucoma Australia.
Consultation was undertaken on the promotion of the use of modern diagnostic imaging equipment, including the removal of NK items, as part of the MBS Review process. The MBS Review is conducted by expert committees and working groups focusing on specific areas of the MBS. The Taskforce endorsed reports were released for public comment prior to finalisation of the recommendations to Government. This was undertaken through the public consultation process during consideration by the Taskforce.
Details of the Determination are set out in the Attachment.
The EMSN Amendment Determination will not commence until it has been approved by each House of Parliament. This instrument will commence the later of the day it is approved by each House of Parliament or the day after registration. Schedule 1 of the Determination will commence on 1 May 2020 or the day this instrument is approved by each House of Parliament, whichever occurs later.
The Determination is a legislative instrument for the purposes of the Legislation Act 2003.
Authority: Section 10B of the
Health Insurance Act 1973
ATTACHMENT
Details of the Health Insurance (Extended Medicare Safety Net) Amendment Determination 2020
Section 1 – Name
Section 1 provides for the Determination to be referred to as the Health Insurance (Extended Medicare Safety Net) Amendment Determination 2020.
Section 2 – Commencement
Section 2 provides that the Determination will not commence until it has been approved by each House of Parliament. Subject to Parliament’s approval, the Determination will commence the later of the day after registration or the day after the Determination has been approved by each House of Parliament.
Subject to Parliament’s approval, Schedule 1 of the Determination will commence on
1 May 2020. If Parliament approves the Determination after 1 May 2020, Schedule 1 will commence the day after it has been approved by each House of Parliament.
Section 3 – Authority
Section 3 provides that the Determination is made under section 10B of the Health Insurance Act 1973 (the Act).
Section 4 – Schedules
Section 4 provides that that each instrument that is specified in a Schedule to this Determination is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Determination has effect according to its terms.
Schedule 1 – Amendments
Schedule 1 sets out amendments to the Health Insurance (Extended Medicare Safety Net) Determination 2017 (Principal Determination) that will commence on 1 May 2020.
Item 1 – Subsection 4(1) (after table item dealing with item 32529)
Item 42504 is for the insertion of micro-bypass glaucoma surgery devices in the eye for patients with open angle glaucoma, for whom conservative treatment has failed or is contraindicated. Item 1 will provide that an Extended Medicare Safety Net (EMSN) benefit cap of 15 per cent of the schedule fee will be applied to item 42504.
Item 2 – Paragraph 4(5)(a)
Item 2 repeals and replaces paragraph 4(5)(a) to remove items 82120 and 82125 as no EMSN is payable on these items as they are hospital services only.
Item 3 – Paragraph 4(6) (table)
Item 3 provides that the table in paragraph 4(6) is repealed and replaced with a new table that does not include NK items. From 1 May 2020, all NK items will removed as part of the changes to promote the use of modern diagnostic imaging equipment.
As all NK items will cease and therefore, an EMSN cap will no longer be applied to these items, the new table does not include NK items 55701, 55702, 55710, 55711, 55713, 55714, 55716, 55717, 55719, 55720, 55722, 55724, 55726, 55727, 55730, 55763, 55765, 55767, 55769, 55771, 55773 and 55775.
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 2020
This 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 Determination
In the 2019-20 Mid-year Economic and Fiscal Outlook under the Guaranteeing Medicare – Medicare Benefits Schedule – new and amended listings measure, the Government announced it would support a recommendation from the Medical Services Advisory Committee (MSAC) to list a new item for the insertion of micro-bypass glaucoma surgery (MBGS) devices in the eye. This service is for patients with open angle glaucoma for whom conservative treatment has failed or is contraindicated. This item will commence on 1 May 2020.
In the 2019-20 Budget under the Guaranteeing Medicare – improved patient access to diagnostic imaging measure, the Government announced it would support recommendations of the independent clinician-led Medical Benefits Schedule Review Taskforce (the MBS Review Taskforce) to promote the use of modern diagnostic imaging equipment from 1 May 2020.
Currently, there are two Medical Benefits Schedule (MBS) mirror items, known as schedule K and schedule NK items that include two different schedule fees. Schedule K items refer to services performed on newer/upgraded equipment and schedule NK items refer to services performed on older/aged equipment. NK items have a lower Medicare rebate than K items. From 1 May 2020, all NK items are to be removed, which means that providers can only claim for services performed on newer/upgraded equipment unless they have an exemption.
The purpose of the Health Insurance (Extended Medicare Safety Net) Amendment Determination 2020 (the EMSN Amendment Determination) is to amend the Health Insurance (Extended Medicare Safety Net) Determination 2017 (the Principal Determination) from 1 May 2020 to apply an EMSN benefit cap of 15 per cent of the schedule fee to the new glaucoma surgery item (item 42504), and to remove the 22 NK items that will no longer be listed.
The EMSN Amendment Determination also makes machinery changes by removing two items that do not apply an EMSN benefit cap from the Principal Determination.
Human rights implications
This instrument 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 instrument maintains rights to health and social security by ensuring access to publicly subsidised health services which are clinically effective and cost-effective.
This instrument amends existing arrangements by applying an EMSN benefit cap to one new item for the insertion of micro-bypass glaucoma surgery devices in the eye for patients with open angle glaucoma, for whom conservative treatment has failed or is contraindicated. This will make the EMSN benefit cap for the new service consistent with the EMSN benefit cap arrangements for other ophthalmology services (items 42505, 42702 and 42705).
The instrument also makes consequential amendments by removing two items where no EMSN is payable as they are hospital services only, and by removing 22 NK items which will cease on
1 May 2020.
Conclusion
This instrument is compatible with human rights as it maintains the right to health and the right to social security.
Greg Hunt
Minister for Health