EXPLANATORY STATEMENT
Health Insurance Act 1973
Health Insurance Legislation Amendment (2026 Measures No. 1) Determination 2025
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 GMST) shall, in specified circumstances and for specified statutory provisions, be treated as if it were specified in the GMST.
The GMST is set out in the regulations made under 4(1) of the Act. The most recent version of the GMST is set out in the Health Insurance (General Medical Services Table) Regulations 2021.
This instrument is made under subsection 33(3) of the Acts Interpretation Act 1901 (AIA), which 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 (2026 Measures No. 1) Determination 2025 (the Amendment Determination) is to make administrative amendments to the:
- Health Insurance (Section 3C General Medical Services – Telehealth Attendances) Determination 2021 (Telehealth Determination); and
- Health Insurance (Section 3C General Medical Services – Allied Health and other Primary Health Care Services) Determination 2024 (Allied Health Determination).
More specifically, the Amendment Determination amends the Telehealth Determination to:
- remove ceased Medicare Benefits Schedule (MBS) items 93470 and 93479 from the item descriptors for MBS items 92004 and 92011;
- correct the Group A40 table subheading, from subgroup A44 to subgroup 44;
- amend item descriptors for MBS items 92422, 92760, 92623, 92762, 92763, 92767, 92768 to align MBS video and phone items with their face-to-face counterparts.
The Amendment Determination also amends the Allied Health Determination to align relevant clauses to MBS specialist and consultant physician subsequent phone items recently added by the Health Insurance Legislation Amendment (2025 Measures No. 4) Determination 2025 on 1 November 2025.
Consultation
No consultation was undertaken as these amendments are administrative in nature.
The Amendment Determination is a legislative instrument for the purposes of the Legislation Act 2003.
The Amendment Determination commences on 1 March 2026.
Details of the Amendment Determination are set out in the Attachment A.
Authority: Subsection 3C(1) of the
Health Insurance Act 1973
ATTACHMENT
Details of the Health Insurance Legislation Amendment (2026 Measures No. 1) Determination 2025
Section 1 – Name
Section 1 provides for the instrument to be referred to as the Health Insurance Legislation Amendment (2026 Measures No. 1) Determination 2025 (Amendment Determination).
Section 2 – Commencement
Section 2 provides for the Amendment Determination to commence on 1 March 2026.
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 the 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 the Amendment Determination has effect according to its terms.
Schedule 1 – Telehealth Amendments
Health Insurance (Section 3C General Medical Services – Telehealth Attendances) Determination 2021
Item 1 removes reference to ceased MBS items 93470 and 93479 and their associated requirements from the item descriptors of MBS items 92004 and 92011.
Item 2 amends the subheading by removing the “A” from “A44” so the subheading is “Subgroup 44 – Specialist and Consultant Physician – Telehealth Services”.
Item 3 inserts MBS item 92440 into paragraph (c) of the item descriptor for MBS item 92422 to the list of MBS items that cannot take place on the same day by the same consultant physician.
Item 4 inserts MBS item 92443 into subparagraph (c)(iii) of the item descriptor for MBS item 92760 to the list of MBS review items provided in a single course of treatment which can precede the patient assessment attendance.
Item 5 inserts MBS item 92440 into paragraph (d) of the item descriptor for MBS item 92623, to the list of MBS items which cannot be provided to the patient on the same day by the same practitioner.
Item 6 repeals and substitutes paragraph (c) in the item descriptor for MBS item 92762 to add MBS items 92422, 92423 92440 and 92443 to the list of MBS items that cannot be billed on the same day by the same addiction medicine specialist.
Item 7 repeals and substitutes paragraph (c) in the item descriptor for MBS item 92763 to add MBS items 92422, 92440, 92443 and 92760 to the list of MBS items that cannot be billed on the same day by the same addiction medicine specialist.
Item 8 inserts MBS items 92440 and 92443 into paragraph (c) in the item descriptor for MBS item 92767 to the list of MBS items that cannot be billed on the same day by the same sexual health medicine specialist.
Items 9 and 10 amend the item descriptor for MBS item 92768 by inserting MBS items 92440 and 92443 into paragraph (c) to the list of MBS items that cannot be billed on the same day by the same sexual health medicine specialist. The items also administratively update references from a “a patient with at least 2 morbidities” to “a patient with at least two morbidities”.
Item 11 inserts MBS items 92440 and 92443 into subclause 2.1.3(1) of Schedule 2, Division 2.1 to the list of MBS items that cannot apply if performed in association with MBS item 92163.
Item 12 inserts MBS item 92440 into subclause 3.1.2(3) of Schedule 3, Division 3.1 to the list of MBS items which must be referred by a consultant physician specialising in the field of paediatrics.
Item 13 inserts MBS item 92444 into paragraph 3.1.5(1)(a) of Schedule 3, Division 3.1 to the list of MBS items which must be referred by a consultant physician specialising in the field of psychiatry.
Item 14 inserts MBS items 92440 and 92443 into paragraph 3.1.5(1)(b) of Schedule 3, Division 3.1 to the list of MBS items which must be referred by a consultant physician specialising in the field of paediatrics.
Schedule 2 – Allied Health Amendments
Health Insurance (Section 3C General Medical Services – Allied Health and other Primary Health Care Services) Determination 2024
Item 1 inserts subsequent phone equivalent MBS item 92440 to subclause 5.1.2(3) to expand the services for a referral that are listed to be relevant in that subsection.
Items 2 and 3 incorporates subsequent phone MBS items, 92440, 92443 and 92444 into subclauses 2.1.5(2) and 2.1.5(3) to expand the services for a referral that are listed to be relevant in those subsections.
Item 4 inserts subsequent phone equivalent MBS items 92441 and 92442 into paragraph 8.1.3(2)(c) providing for a medical practitioner who issued a referral as part of a service to which these equivalent items apply.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Health Insurance Legislation Amendment (2026 Measures No. 1) Determination 2025
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 (2026 Measures No. 1) Determination 2025 (the Amendment Determination) is to make administrative amendments to the:
- Health Insurance (Section 3C General Medical Services – Telehealth Attendances) Determination 2021 (Telehealth Determination); and
- Health Insurance (Section 3C General Medical Services – Allied Health and other Primary Health Care Services) Determination 2024 (Allied Health Determination).
More specifically, the Amendment Determination amends the Telehealth Determination to:
- remove ceased Medicare Benefits Schedule (MBS) items 93470 and 93479 from the item descriptors for MBS items 92004 and 92011;
- correct the Group A40 table subheading, from subgroup A44 to subgroup 44;
- amend item descriptors for MBS items 92422, 92760, 92623, 92762, 92763, 92767, 92768 to align MBS video and phone items with their face-to-face counterparts.
The Amendment Determination also amends the Allied Health Determination to align relevant clauses to MBS phone items recently added by the Health Insurance Legislation Amendment (2025 Measures No. 4) Determination 2025 on 1 November 2025.
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, social security, equality and non-discrimination.
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 reflects contemporary clinical practice to ensure that patients continue to have access to health and social security through relevant subsidised telehealth and allied health services on the MBS. The Amendment Determination will also maintain the right of equality and non‑discrimination, as a Medicare-eligible person (as defined in the Health Insurance Act 1973) continues to have access to all Medicare services based on clinical need consistent with a universal health insurance program.
Conclusion
This instrument is compatible with human rights; it maintains the right to health, the right to social security, and the right of equality and non-discrimination.
Roland Balodis
Acting Assistant Secretary
MBS Policy and Reviews Branch
Medicare Benefits and Digital Health Division
Health Resourcing Group
Department of Health, Disability and Ageing