Health Insurance (Home-Based Sleep Studies) Determination 2010 (No. 1)

Administered by Department of Health, Disability and Ageing

Legislation au F2010L02723 Not in force Legislative Instrument

Legislation content

EXPLANATORY STATEMENT

Health Insurance Act 1973

Health Insurance (Home-Based Sleep Studies) Determination 2010 (No. 1)

 

Background

Subsection 3C(1) of the Health Insurance Act 1973 (the Act) provides that the Minister (or her delegate) may determine in writing that a specified health service not listed 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 so listed.  The Table is set out in the Health Insurance (General Medical Services Table) Regulations (the Regulations), which are re-made each year.

 

Health Insurance (Home-Based Sleep Studies) Determination 2010 (No. 1)

 

The purpose of the Determination is to provide retrospective legal authority for annual indexation that was applied from 1 November 2009 to the Medicare Benefits Schedule (MBS) fee for item 12250.  The fee for item 12250 was indexed (increased) without a determination to reflect such an increase.

 

A home-based sleep study service is an overnight investigation for sleep apnoea for a period of at least 8 hours’ duration in an unsupervised setting (that is, a patient’s home, but may also be a hospital where a sleep technician is not in attendance), where the patient is wired up to a portable device (or devices) to record their brain wave activity, their heart rate and their respiratory function while they sleep (known as Level 2 sleep studies).  Recordings from the device/s are provided to a qualified sleep medicine practitioner who analyses and reports the findings (that is, whether or not the patient has sleep apnoea and what treatment is required).

 

Item 12250 was introduced on an interim basis on 1 October 2008, pending Medical Services Advisory Committee (MSAC) assessment.  MSAC provides advice to the Australian Government on evidence relating to the safety, clinical effectiveness and cost-effectiveness of new medical technologies and procedures. 

 

Commencement

 

This determination is taken to have commenced on 1 November 2009, the date on which the fee for item 12250 was indexed on the MBS.  The effect of the retrospective commencement is to authorise, from 1 November 2009, payment of Medicare benefits for the indexed (increased) fee amount provided in connection with the specified service. 

 

Subsection 3C(2) of the Act provides that determinations made under subsection 3C(1) of the Act may be expressed to have taken effect from a day earlier than the day on which the determination is made.  In accordance with subsection 12(3) of the Legislative Instruments Act 2003 (the LIA), the operation of subsection 12(2) of the LIA is subject to any contrary provision for commencement of the Determination in the Act.  Therefore, the retrospective commencement of the Determination does not offend subsection 12(2) of the LIA.

 

Consultation

 

No consultation was necessary for the making of the Determination as the instrument is mechanical in nature and does not alter existing arrangements.  In listing interim item 12250 in October 2008, the Department consulted the Australasian Sleep Association, the Thoracic Society of Australia and New Zealand, the Royal Australian College of General Practitioners, the Rural Doctors’ Association of Australia, the Australian Medical Association and Medicare Australia.

 

This Determination is a legislative instrument for the purposes of the Legislative Instruments Act 2003.

 


ATTACHMENT

Details of the Health Insurance (Home-Based Sleep Studies) Determination 2010 (No. 1)

 

Section 1 – Name of Determination

 

Section 1 provides the name of the Determination is the Health Insurance (Home-Based Sleep Studies) Determination 2010 (No. 1)

 

Section 2 – Commencement and term

 

Section 2 provides that the Determination commences on 1 November 2009 and shall remain in force until midnight 31 October 2010.

 

Section 3 - Revocation

 

Section 3 specifies that the Determination revokes the Health Insurance (Home-Based Sleep Studies) Determination 2008.

 

Section 4 - Interpretation

 

Section 4 defines terms used in this Determination.

 

Section 5 – Circumstances where this Determination applies

 

Subsection 5(1) specifies the circumstances in which the Determination applies.  The circumstances in relation to the relevant service are:

  • for patients less than 18 years of age – the service is rendered by a qualified paediatric sleep medicine practitioner;
  • for patients 18 years of age or older – the services is rendered by a qualified adult sleep medicine practitioner.

 

Subsection 5(2) provides that a person is a ‘qualified adult sleep medicine practitioner’ or a ‘qualified paediatric sleep medicine practitioner’ if they meet certain credentialling or training requirements.

 

Section 6 – Treatment of a relevant service  

 

Subsection 6(a) provides that a relevant service specified in the Schedule to the Determination will be treated as if it were both a professional service and a medical service for the purposes of the provisions of the Act, the National Health Act 1953 and regulations made under each Act which provide for medical services or professional services.

 

Subsection 6(b) provides that a relevant service specified in the Schedule to the Determination is to be treated as if there were an item in the General Medical Services Table related to the service and specified a fee for that service, being the fee specified in the Schedule to the Determination in relation to the service.

 

Schedule – Specified Health Services

 

The Schedule to the Determination sets out the relevant service, assigning the applicable item number, item descriptor and fee for the service.

 

Overview

The Health Insurance (Home-Based Sleep Studies) Determination 2010 (No. 1) was enacted to provide retrospective legal authority for the annual indexation applied to the Medicare Benefits Schedule (MBS) fee for item 12250 from 1 November 2009. This Determination was made under the authority provided by subsection 3C(1) of the Health Insurance Act 1973, enabling the Minister (or her delegate) to specify that a health service not listed in the General Medical Services Table shall be treated as if it were listed, under certain conditions. The objective of this Determination was to formalise the retrospective indexing of the MBS fee for home-based sleep studies, which were introduced on an interim basis pending assessment by the Medical Services Advisory Committee. The retrospective commencement of the Determination aligns with the date of the fee indexation, ensuring that from 1 November 2009, Medicare benefits could be paid at the increased fee amount for the specified sleep study services. The Determination was made by the Australian Government and does not require consultation as it is mechanical in nature and does not alter existing arrangements.

Scope and Application

The Health Insurance (Home-Based Sleep Studies) Determination 2010 (No. 1) applies to the specific health service of home-based sleep studies for the diagnosis of sleep apnoea, providing legal authority for the retrospective indexation of fees for this service under the Health Insurance Act 1973. This Determination applies to services rendered by qualified sleep medicine practitioners, differentiated between paediatric and adult practitioners based on the age of the patients they treat. The geographic and jurisdictional reach of this Act is inherently tied to the Commonwealth of Australia, as it pertains to the Medicare Benefits Schedule (MBS) and the Health Insurance Act 1973, which are national schemes. The Determination operates from 1 November 2009 until 31 October 2010, retroactively authorising the payment of Medicare benefits for the indexed fee amount for home-based sleep studies, thereby ensuring that providers of these services receive appropriate remuneration for their work. The Determination does not require consultation as it does not alter existing arrangements and is considered mechanical in nature.

Key Provisions

The Health Insurance (Home-Based Sleep Studies) Determination 2010 (No. 1) primarily focuses on providing legal authority for the retrospective indexation of the Medicare Benefits Schedule (MBS) fee for item 12250, which pertains to home-based sleep studies. This Determination, which commenced on 1 November 2009, aims to ensure that the fee for these sleep studies is recognised and paid in accordance with the Act, even though it was indexed without a prior determination. The Determination specifies that a home-based sleep study service involves an overnight investigation for sleep apnoea, conducted for at least 8 hours in an unsupervised setting, where the patient is monitored using portable devices to record brain wave activity, heart rate, and respiratory function. The Determination imposes obligations on both practitioners and patients. For practitioners, it stipulates that they must meet specific credentialling or training requirements to be recognised as either a qualified adult sleep medicine practitioner or a qualified paediatric sleep medicine practitioner, depending on the age of the patient. For patients, the service must be rendered by a qualified practitioner as specified by the Determination. The Determination also outlines the conditions under which the service will be treated as both a professional service and a medical service for the purposes of the Act and related regulations. In terms of penalties and consequences, the Determination itself does not explicitly outline specific penalties for breaches. However, under the Health Insurance Act 1973, unauthorised claims for Medicare benefits can lead to civil or criminal penalties. Civil penalties may include fines, and in more severe cases, criminal penalties may apply, which can result in imprisonment. These consequences underscore the importance of adhering to the conditions set out in the Determination to avoid potential legal repercussions. The Determination also revokes the previous Health Insurance (Home-Based Sleep Studies) Determination 2008, ensuring that only the current provisions apply. This ensures that the legal framework governing home-based sleep studies is up-to-date and aligns with the most recent indexation and requirements. The clarity and specificity provided by this Determination help to streamline the process of claiming benefits for these essential medical services, ultimately benefiting both practitioners and patients.

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.