EXPLANATORY STATEMENT
Health Insurance Act 1973
Health Insurance Legislation Amendment (2022 Measures No. 4) 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 pathology services table (the PST) or the general medical services table (the GMST) shall, in specified circumstances and for specified statutory provisions, be treated as if it were specified in the Table.
The PST is set out in the regulations made under subsection 4A of the Act. The most recent version of the regulations is the Health Insurance (Pathology Services Table) Regulations 2020.
The GMST 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
The purpose of the Health Insurance Legislation Amendment (2022 Measures No. 4) Determination 2022 (the Amendment Determination) is to:
- amend the Health Insurance (Section 3C Pathology Services – COVID‑19) Determination 2020 (the Pathology COVID-19 Determination) to extend the cessation date from 30 September 2022 to 31 December 2022, repeal two items and introduce 10 new items;
- extend the cessation date for the Health Insurance (General Practice COVID‑19 Management Support Service) Determination 2021 (the COVID-19 Support Service Determination) from 30 September 2022 to 31 December 2022; and
- extend the cessation date for the Health Insurance (General Practice COVID-19 Treatment) Determination 2022 (the COVID-19 Treatment Determination) from
31 October 2022 to 31 December 2022.
Extension of COVID-19 Services
Schedule 1 of the Amendment Determination will extend the cessation dates for the Pathology COVID-19 Determination, the COVID-19 Support Service Determination and the COVID-19 Treatment Determination to 31 December 2022. The extension of these instruments will allow patients to continue to access these COVID-19 support services.
Schedule 1 of the Amendment Determination commences on 30 September 2022.
Changes to Pathology COVID-19 Services
From 1 October 2022, Schedule 2 of the Amendment Determination will repeal existing temporary pathology items 69479 and 69480 and introduce 10 new temporary pathology items (five for public pathology providers and five for private pathology providers) to support testing of COVID-19 and other respiratory pathogens. A test to detect
SARS-CoV-2 must be performed under each of the new items. These new temporary items will be available until 31 December 2022.
For the duration of the existence of the 10 new temporary pathology items, where a pathology provider receives a request for a test for the detection of SARS-CoV-2 only, the test may be claimed under temporary item 69506 or 69511. Where a request is received for a test for the detection of SARS-CoV-2 and other respiratory pathogens, the test may be claimed under temporary item 69507 or 69512 (for two to four pathogens inclusive of SARS-CoV-2), temporary item 69508 or 69513 (for five to eight pathogens inclusive of SARS-CoV-2), temporary item 69509 or 69514 (for nine to 12 pathogens inclusive of SARS-CoV-2) or temporary item 69510 or 69515 (for 13 or more pathogens inclusive of SARS-CoV-2).
Where a request is received for a test for the detection of other respiratory pathogens only (that is, no test for SARS-CoV-2 is requested) or non-respiratory pathogens, the test may be claimed under existing permanent item 69494 (for one pathogen), existing permanent item 69495 (for two pathogens) or existing permanent item 69496 (for three or more pathogens).
The new temporary pathology items must be bulk billed in out-of-hospital settings, the fees charged to privately insured patients in in-hospital settings must not exceed the schedule fee of the relevant item being claimed, and the items are exempt from episode coning arrangements. These requirements ensure there are no direct costs to eligible patients for COVID-19 pathology testing and will support patient access to necessary testing for COVID-19 and other respiratory pathogens.
Consultation
Consultation was undertaken regarding the new item structure for testing for
COVID-19 and other respiratory pathogens with the Australian Pathology (AP), Public Pathology Australia (PPA) and the Royal College of Pathologists of Australasia (RCPA).
No consultation was undertaken regarding the extension of the COVID-19 Support Service Determination and the COVID-19 Treatment Determination as these changes will ensure patients continue to have access COVID-19 support services.
Details of the Amendment Determination are set out in the Attachment.
Sections 1 to 4 and Schedule 1 of the Amendment Determination commence on
30 September 2022 and Schedule 2 commences on 1 October 2022.
The Amendment 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 Legislation Amendment (2022 Measures No. 4) Determination 2022
Section 1 – Name
Section 1 provides for the Amendment Determination to be referred to as the Health Insurance Legislation Amendment (2022 Measures No. 4) Determination 2022.
Section 2 – Commencement
Section 2 provides that Sections 1 to 4 and Schedule 1 of the Amendment Determination commence on 30 September 2022 and Schedule 2 commences on 1 October 2022.
Section 3 – Authority
Section 3 provides that the Amendment 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 Amendment 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 Amendment Determination has effect according to its terms.
Schedule 1 – Extension of COVID-19 services
Health Insurance (Section 3C Pathology Services – COVID‑19) Determination 2020 (the Pathology COVID-19 Determination)
Amendment item 1 amends section 3 to extend the cessation date of the Pathology COVID-19 Determination from 30 September 2022 to 31 December 2022.
Health Insurance (General Practice COVID‑19 Management Support Service) Determination 2021 (the COVID-19 Support Service Determination)
Amendment item 2 amends section 4 to extend the cessation date of the COVID-19 Support Service Determination from 30 September 2022 to 31 December 2022.
Health Insurance (General Practice COVID-19 Treatment) Determination 2022 (the COVID-19 Treatment Determination)
Amendment item 3 amends section 4 to extend the cessation date of the COVID-19 Treatment Determination from 31 October 2022 to 31 December 2022.
Schedule 2 – Pathology COVID-19 amendments
Health Insurance (Section 3C Pathology Services – COVID‑19) Determination 2020 (the Pathology COVID-19 Determination)
Amendment item 4 amends subsection 5(1), which defines terms used in the Pathology COVID-19 Determination, to remove the definitions for terms that are no longer used and insert definitions for new terms and terms that were previously omitted.
Amendment item 5 amends subsection 6(1) to remove references to repealed items 69479 and 69480 and apply this section to the new temporary items (refer to amendment item 7).
Amendment item 6 amends section 7 to remove references to repealed items 69479 and 69480 and apply this section to the new temporary items (refer to amendment item 7). The amended section 7 of the Pathology COVID-19 Determination applies clause 1.2.9 of the pathology services table, which provides an exemption to coning arrangements, to the new items.
Amendment item 7 amends the table in Schedule 1 to repeal items 69479 and 69480 and introduce temporary pathology items for testing of COVID-19 and other respiratory illnesses (69506, 69507, 69508, 69509, 69510, 69511, 69512, 69513, 69514 and 69515). Items 69506 to 69510 are for testing services provided by public pathology providers. Items 69511 to 69515 are for testing services provided by private pathology providers.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Health Insurance Legislation Amendment (2022 Measures No. 4) Determination 2022
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
The purpose of the Health Insurance Legislation Amendment (2022 Measures No. 4) Determination 2022 (the Amendment Determination) is to:
- amend the Health Insurance (Section 3C Pathology Services – COVID‑19) Determination 2020 (the Pathology COVID-19 Determination) to extend the cessation date from
30 September 2022 to 31 December 2022, repeal two items and introduce 10 new items; - extend the cessation date for the Health Insurance (General Practice COVID‑19 Management Support Service) Determination 2021 (the COVID-19 Support Service Determination) from 30 September 2022 to 31 December 2022; and
- extend the cessation date for the Health Insurance (General Practice COVID-19 Treatment) Determination 2022 (the COVID-19 Treatment Determination) from 31 October 2022 to
31 December 2022.
Extension of COVID-19 Services
Schedule 1 of the Amendment Determination will extend the cessation dates for the Pathology COVID-19 Determination, the COVID-19 Support Service Determination and the COVID-19 Treatment Determination to 31 December 2022. The extension of these instruments will allow patients to continue to access these COVID-19 support services.
Schedule 1 of the Amendment Determination commences on 30 September 2022.
Changes to Pathology COVID-19 Services
From 1 October 2022, Schedule 2 of the Amendment Determination will repeal existing temporary pathology items 69479 and 69480 and introduce 10 new temporary pathology items (five for public pathology providers and five for private pathology providers) to support testing of COVID-19 and other respiratory pathogens. A test to detect SARS-CoV-2 must be performed under each of the new items. These new temporary items will be available until 31 December 2022.
For the duration of the existence of the 10 new temporary pathology items, where a pathology provider receives a request for a test for the detection of SARS-CoV-2 only, the test may be claimed under temporary item 69506 or 69511. Where a request is received for a test for the detection of SARS-CoV-2 and other respiratory pathogens, the test may be claimed under temporary item 69507 or 69512 (for two to four pathogens inclusive of SARS-CoV-2), temporary item 69508 or 69513 (for five to eight pathogens inclusive of SARS-CoV-2), temporary item 69509 or 69514 (for nine to 12 pathogens inclusive of SARS-CoV-2) or temporary item 69510 or 69515 (for 13 or more pathogens inclusive of SARS-CoV-2).
Where a request is received for a test for the detection of other respiratory pathogens only (that is, no test for SARS-CoV-2 is requested) or non-respiratory pathogens, the test may be claimed under existing permanent item 69494 (for one pathogen), existing permanent item 69495 (for two pathogens) or existing permanent item 69496 (for three or more pathogens).
The new temporary pathology items must be bulk billed in out-of-hospital settings, the fees charged to privately insured patients in in-hospital settings must not exceed the schedule fee of the relevant item being claimed, and the items are exempt from episode coning arrangements. These requirements ensure there are no direct costs to eligible patients for COVID-19 pathology testing and will support patient access to necessary testing for COVID-19 and other respiratory pathogens.
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
The changes to the Pathology COVID-19 Determination will maintain the rights to health and social security and the right of equality and non-discrimination by supporting patient access to necessary testing for COVID-19 and other respiratory pathogens. The extension of the
COVID-19 Support Service Determination and the COVID-19 Treatment Determination also maintains the rights to health and social security and the right of equality and non-discrimination by providing continued access to these COVID-19 support services.
Conclusion
This instrument is compatible with human rights as it maintains the right to health, the right to social security, the right of equality and non-discrimination.
Travis Haslam
Acting First Assistant Secretary
Medical Benefits Division
Health Resourcing Group
Department of Health and Aged Care