EXPLANATORY STATEMENT
Health Insurance Act 1973
Health Insurance (General Practice COVID-19 Management Support Service) Amendment (No. 1) Determination 2022
Subsection 3C(1) of the Health Insurance Act 1973 (the Act) provides that the Minister may, by legislative instrument, 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. The most recent version of the regulations is the Health Insurance (General Medical Services Table) Regulations 2021.
This instrument relies on subsection 33(3) of the Acts Interpretation Act 1901 (AIA). Subsection 33(3) of the AIA provides that where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws), the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.
Purpose
On 29 October 2021, the Minister for Health, the Hon. Greg Hunt MP, announced a $180 million package to assist the primary care health sector to support cases of COVID-19 at home and in the community.
The purpose of the Health Insurance (General Practice COVID-19 Management Support Service) Amendment (No. 1) Determination 2022 (the Determination) is to expand the service described in item 93715, which is for the assessment and management of a person with COVID-19 infection of recent onset, to allow the service to be claimed if a patient returns a positive COVID-19 rapid antigen self-test (RAT) as an alternative to laboratory testing.
As a requirement of this item, the RAT must be approved for supply in Australia by the Therapeutic Goods Administration. The Therapeutic Goods Administration of Australia maintains a list of approved COVID-19 RATs on their website www.tga.gov.au, which is updated from time to time.
In the event a COVID-19 RAT is used as the basis for the service, the treating practitioner must either confirm the patient has or assist the patient to report the positive result to the relevant state or territory public health unit during the service.
The Determination reflects the announcement by the Prime Minister, the Hon. Scott Morrison, on 5 January 2022 which advised a PCR test will not be required in the instance a patient receives a positive RAT as an alternative to assist in the management and identification of COVID-19 cases at home and in the community.
Consultation
Stakeholders, including the Royal Australian College of General Practitioners and the Australian Medical Association, support the extension of MBS item 93715 to include rapid antigen tests. Due to the need to respond urgently to the omicron variant of the COVID-19 virus it was not possible to consult directly on the amendment
Details of the Determination are set out in the Attachment.
The Determination commences on the day after this instrument is registered.
The Determination is a 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 (General Practice COVID-19 Management Support Service) Amendment (No. 1) Determination 2022
Section 1 – Name
Section 1 provides for the Determination to be referred to as the Health Insurance (General Practice COVID-19 Management Support Service) Amendment (No. 1) Determination 2022.
Section 2 – Commencement
Section 2 provides that the Determination commences on the day after this instrument is registered.
Section 3 – Authority
Section 3 provides that the Determination is made under subsection 3C(1) of the Health Insurance Act 1973.
Section 4 – Schedules
Section 4 provides 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
Health Insurance (General Practice COVID-19 Management Support Service) Determination 2021
Amendment item 1 amends COVID-19 management item 93715 to expand the service to allow for a patient who has received a positive result using a COVID-19 rapid antigen self-test (RAT). As a requirement of this item, the RAT must be approved for supply in Australia by the Therapeutic Goods Administration. The Therapeutic Goods Administration of Australia maintains a list of approved COVID-19 RATs on their website www.tga.gov.au, which is updated from time to time.
In the event a COVID-19 RAT is used as the basis for the service, the treating practitioner must either confirm the patient has or assist the patient to report the positive result to the relevant state or territory public health unit during the service, where reporting requirements exist. The treating practitioner must also note in the patient’s notes that the positive RAT has been reported to the relevant state or territory public health unit.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Health Insurance (General Practice COVID-19 Management Support Service) Determination 2021
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
On 29 October 2021, the Minister for Health, the Hon. Greg Hunt MP, announced a $180 million package to assist the primary care health sector to support cases of COVID-19 at home and in the community.
The purpose of the Health Insurance (General Practice COVID-19 Management Support Service) Amendment (No. 1) Determination 2022 (the Determination) is to expand the service described in item 93715, which is for the assessment and management of a person with COVID-19 infection of recent onset, to allow the service to be claimed if a patient returns a positive COVID-19 rapid antigen self-test (RAT) as an alternative to laboratory testing.
As a requirement of this item, the RAT must be approved for supply in Australia by the Therapeutic Goods Administration. The Therapeutic Goods Administration of Australia maintains a list of approved COVID-19 RATs on their website www.tga.gov.au, which is updated from time to time.
In the event a COVID-19 RAT is used as the basis for the service, the treating practitioner must either confirm the patient has or assist the patient to report the positive result to the relevant state or territory public health unit during the service.
The Determination reflects the announcement by the Prime Minister, the Hon. Scott Morrison, on 5 January 2022 which advised a PCR test will not be required in the instance a patient receives a positive RAT as an alternative to assist in the management and identification of COVID-19 cases at home and in the community.
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.
The right of equality and non-discrimination
The rights of equality and non-discrimination are contained in articles 2, 16 and 26 of the International Covenant on Civil and Political Rights (ICCPR). Article 26 of the ICCPR requires that all persons are equal before the law, are entitled without any discrimination to the equal protection of the law and in this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
Analysis
This instrument advances the rights to health and social security by encouraging GPs to provide care to patients diagnosed with COVID-19 where it is safe and appropriate to do so. Physical assessment of a patient to determine the severity of disease soon after confirmation of the infection is consistent with current clinical guidelines and may help to reduce the demand on hospitals during the COVID-19 pandemic. Treating a patient in the community does not prevent that patient from receiving hospital treatment if their symptoms worsen.
Conclusion
This instrument is compatible with human rights as it advances the right to health, the right to social security and the right of equality and non-discrimination.
Louise Riley
Acting First Assistant Secretary
Medical Benefits Division
Health Resourcing Group
Department of Health