EXPLANATORY STATEMENT
Health Insurance Act 1973
Health Insurance Legislation Amendment (Indexation) Determination 2026
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 diagnostic imaging services table (the DIST), general medical services table (the GMST) or pathology services table (the PST) shall, in specified circumstances and for specified statutory provisions, be treated as if it were specified in the DIST or GMST or PST.
The DIST is set out in the regulations made under subsection 4AA of the Act. The most recent version of the regulations is the Health Insurance (Diagnostic Imaging Services Table) Regulations (No. 2) 2020 (the DIST Regulations).
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 (the GMST Regulations).
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 PST Regulations).
This instrument is made pursuant to subsection 33(3) of the Acts Interpretation Act 1901, which provides that a power to make a legislative or administrative instrument includes the power to repeal, rescind, revoke amend, or vary any that instrument in the same manner and subject to the same conditions.
Purpose
The purpose of Schedule 1 to the Health Insurance Legislation Amendment (Indexation) Determination 2026 (the Amendment Determination) is to apply annual fee indexation by increasing the schedule fees of the Medicare Benefits Schedule (MBS) items in the following determinations by 2.6 per cent:
- Health Insurance (Section 3C – Lutetium Therapeutic Nuclear Medicine Treatments) Determination 2025;
- Health Insurance (Section 3C Co-Dependent Pathology Services) Determination 2018;
- Health Insurance (Section 3C Diagnostic Imaging Services – Complex gynaecological ultrasound) Determination 2025;
- Health Insurance (Section 3C Diagnostic Imaging Services – National Lung Cancer Screening Program) Determination 2025;
- Health Insurance (Section 3C Diagnostic Imaging Services – Whole Body Magnetic Resonance Imaging Scan) Determination 2022;
- Health Insurance (Section 3C General Medical Services – Allied Health and other Primary Health Care Services) Determination 2024;
- Health Insurance (Section 3C General Medical Services — Artificial Bowel Sphincter Services) Determination 2023;
- Health Insurance (Section 3C General Medical Services – Botox Injection) Determination 2020;
- Health Insurance (Section 3C General Medical Services – Botox, Dysport or Xeomin Injection) Determination 2020;
- Health Insurance (Section 3C General Medical Services – Cleft and Craniofacial Services) Determination 2024;
- Health Insurance (Section 3C General Medical Services – Extracorporeal Photopheresis for Chronic Graft Versus Host Disease) Determination 2022;
- Health Insurance (Section 3C General Medical Services – Extracorporeal Photopheresis) Determination 2020;
- Health Insurance (Section 3C General Medical Services – Heart Health Assessment No.2) Determination 2019;
- Health Insurance (Section 3C General Medical Services – Menopause and Perimenopause Health Assessment Services) Determination 2025;
- Health Insurance (Section 3C General Medical Services - Optometric Services) Determination 2020;
- Health Insurance (Section 3C General Medical Services – Other Medical Practitioner) Determination 2018;
- Health Insurance (Section 3C General Medical Services – Telehealth Attendances) Determination 2021;
- Health Insurance (Section 3C General Medical Services –Transcatheter Aortic Valve Implantation) Determination 2018;
- Health Insurance (Section 3C General Medical Services—Transcatheter Mitral Valve Repair) Determination 2021; and
- Health Insurance (Section 3C Midwife and Nurse Practitioner Services) Determination 2020.
The increase of the relevant schedule fees reflects the Australian Government’s policy regarding Medicare indexation and means that patients will receive an increased Medicare benefit for relevant services.
The purpose of Schedule 2 to the Amendment Determination is to make an administrative amendment to the Health Insurance (Section 3C General Medical Services – Telehealth Attendances) Determination 2021. Specifically, the amendment is to retrospectively remove indexation from items 91923, 91903 and 91913 which were inadvertently indexed in legislation from 1 July 2024. This change will give effect to the original policy intent for these items, i.e. to serve as telehealth service equivalents to items 54, 57, 151 that are already exempt from indexation. Although the amendments have retrospective effect, the retrospectivity will not disadvantage any person’s rights or impose liabilities on a person other than the Commonwealth. This is because the known benefits paid for items 91923, 91903 and 91913 were paid in line with the MBS fee file fee which has not included indexation in line with original policy authority. In the unlikely scenario that an overpayment was made, the Commonwealth would not choose to recover the inflated benefit amount. As such, the Amendment Determination does not trespass unduly on personal rights and liberties, in alignment with principle (h) of the Senate Standing Committee for the Scrutiny of Delegated Legislation Guidelines.
Consultation
Consultation was not undertaken regarding changes in Schedule 1 as these changes continue business-as-usual implementation of the Government’s policy on Medicare indexation, which is expected by stakeholders to be applied on 1 July of each year.
Consultation was not undertaken on the changes in Schedule 2 as these amendments are considered administrative in nature and are giving effect to the original policy intent. Further there is no impact on the practical arrangements for services provided under items 91903, 91913 and 91923, and Medicare will continue to subsidise these services. This aligns with principle (d) of the Senate Standing Committee for the Scrutiny of Delegated Legislation Guidelines, which requires justification where consultation has not occurred with stakeholders likely to be affected.
The Amendment Determination is a legislative instrument for the purposes of the Legislation Act 2003.
Sections 1 to 4 and Schedule 1 to the Amendment Determination commence on 1 July 2026. Schedule 2 commences immediately after the commencement of the Health Insurance (Section 3C General Medical Services – Telehealth and Telephone Attendances) Amendment (General Practice) Determination 2023, which was on 1 July 2024.
Details of the Amendment Determination are set out in the Attachment.
Authority: Subsection 3C(1) of the
Health Insurance Act 1973
ATTACHMENT
Details of the Health Insurance Legislation Amendment (Indexation) Determination 2026
Section 1 – Name
Section 1 provides for the instrument to be referred to as the Health Insurance Legislation Amendment (Indexation) Determination 2026 (the Amendment Determination).
Section 2 – Commencement
Section 2 provides for sections 1 to 4 commence on 1 July 2026. Schedule 1 commences on 1 July 2026. Schedule 2 is taken to have commenced immediately after the commencement of the Health Insurance Legislation Amendment (2024 Measures No. 2) Determination 2024, on 1 July 2024.
Section 3 – Authority
Section 3 provides that the Amendment Determination is made under subsection 3C(1) of the Health Insurance Act 1973 (the Act).
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—Indexation amendments
Part 1—Insertion of indexation provisions
Part 1 of Schedule 1 inserts indexation provisions into specified determinations made under subsection 3C(1) of the Act to apply annual indexation to the schedule fees of relevant MBS items. This will increase the Medicare benefit paid to patients for these services, which is calculated as a percentage of the fee per section 10 of the Act. Indexation will be applied by 2.6 per cent in the provisions described below.
Items 1 to 7 insert indexation provisions in the following determinations to apply annual indexation to the schedule fees of listed items:
- Health Insurance (Section 3C – Lutetium Therapeutic Nuclear Medicine Treatments) Determination 2025
- Health Insurance (Section 3C Co-Dependent Pathology Services) Determination 2018
- Health Insurance (Section 3C Diagnostic Imaging Services – Complex gynaecological ultrasound) Determination 2025
- Health Insurance (Section 3C Diagnostic Imaging Services – National Lung Cancer Screening Program) Determination 2025
- Health Insurance (Section 3C Diagnostic Imaging Services – Whole Body Magnetic Resonance Imaging Scan) Determination 2022
- Health Insurance (Section 3C General Medical Services — Artificial Bowel Sphincter Services) Determination 2023
- Health Insurance (Section 3C General Medical Services – Menopause and Perimenopause Health Assessment Services) Determination 2025
Part 2—Amending of indexation provisions
Part 2 of Schedule 1 amends the indexation provisions of the instruments set out below to apply annual indexation to the schedule fees of relevant MBS items. This will increase the Medicare benefit paid to patients for these services, which is calculated as a percentage of the fee per section 10 of the Act. Indexation will be applied by 2.6 per cent in the provisions described below.
Items 8 to 20 amend the indexation provisions in the following determinations to apply annual indexation to the schedule fees of listed items:
- Health Insurance (Section 3C General Medical Services – Allied Health and other Primary Health Care Services) Determination 2024
- Health Insurance (Section 3C General Medical Services – Botox Injection) Determination 2020
- Health Insurance (Section 3C General Medical Services – Botox, Dysport or Xeomin Injection) Determination 2020
- Health Insurance (Section 3C General Medical Services – Cleft and Craniofacial Services) Determination 2024
- Health Insurance (Section 3C General Medical Services – Extracorporeal Photopheresis for Chronic Graft Versus Host Disease) Determination 2022
- Health Insurance (Section 3C General Medical Services – Extracorporeal Photopheresis) Determination 2020
- Health Insurance (Section 3C General Medical Services – Heart Health Assessment No.2) Determination 2019
- Health Insurance (Section 3C General Medical Services - Optometric Services) Determination 2020
- Health Insurance (Section 3C General Medical Services – Other Medical Practitioner) Determination 2018
- Health Insurance (Section 3C General Medical Services – Telehealth Attendances) Determination 2021
- Health Insurance (Section 3C General Medical Services –Transcatheter Aortic Valve Implantation) Determination 2018
- Health Insurance (Section 3C General Medical Services—Transcatheter Mitral Valve Repair) Determination 2021
- Health Insurance (Section 3C Midwife and Nurse Practitioner Services) Determination 2020
Part 3—Amending of indexation schedule fees for derived fees
Health Insurance (Section 3C General Medical Services – Other Medical Practitioner) Determination 2018
Item 21 applies annual indexation to the derived fees for services listed in table 1.1.1 of the Health Insurance (Section 3C General Medical Services – Other Medical Practitioner) Determination 2018, increasing the derived fees in the table by 2.6 per cent.
Part 4— Amending of item descriptor values to apply indexation
Health Insurance (Section 3C Midwife and Nurse Practitioner Services) Determination 2020
Item 22 omits the amount of $651.30 (wherever occurring) in the descriptors of items 93718 and 93719 of the Health Insurance (Section 3C Midwife and Nurse Practitioner Services) Determination 2020, substituting the indexed value of $668.25.
Schedule 2—Administrative amendment
Health Insurance (Section 3C General Medical Services – Telehealth Attendances) Determination 2021
Item 1 amends paragraph 8(2)(a) of the Health Insurance (Section 3C General Medical Services – Telehealth Attendances) Determination 2021 to insert reference to items 91903, 91913 and 91923. This change is effective retrospectively from 1 July 2024 and is necessary to align legislation with the original policy intent, which is that these items are equivalent to in-person items 54, 57, 151 that are exempt from indexation.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Health Insurance Legislation Amendment (Indexation) Determination 2026
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 Schedule 1 to the Health Insurance Legislation Amendment (Indexation) Determination 2026 (the Amendment Determination) is to apply annual fee indexation by increasing the schedule fees of the Medicare Benefits Schedule (MBS) items in the following determinations by 2.6 per cent:
- Health Insurance (Section 3C – Lutetium Therapeutic Nuclear Medicine Treatments) Determination 2025;
- Health Insurance (Section 3C Co-Dependent Pathology Services) Determination 2018;
- Health Insurance (Section 3C Diagnostic Imaging Services – Complex gynaecological ultrasound) Determination 2025;
- Health Insurance (Section 3C Diagnostic Imaging Services – National Lung Cancer Screening Program) Determination 2025;
- Health Insurance (Section 3C Diagnostic Imaging Services – Whole Body Magnetic Resonance Imaging Scan) Determination 2022;
- Health Insurance (Section 3C General Medical Services – Allied Health and other Primary Health Care Services) Determination 2024;
- Health Insurance (Section 3C General Medical Services — Artificial Bowel Sphincter Services) Determination 2023;
- Health Insurance (Section 3C General Medical Services – Botox Injection) Determination 2020;
- Health Insurance (Section 3C General Medical Services – Botox, Dysport or Xeomin Injection) Determination 2020;
- Health Insurance (Section 3C General Medical Services – Cleft and Craniofacial Services) Determination 2024;
- Health Insurance (Section 3C General Medical Services – Extracorporeal Photopheresis for Chronic Graft Versus Host Disease) Determination 2022;
- Health Insurance (Section 3C General Medical Services – Extracorporeal Photopheresis) Determination 2020;
- Health Insurance (Section 3C General Medical Services – Heart Health Assessment No.2) Determination 2019;
- Health Insurance (Section 3C General Medical Services – Menopause and Perimenopause Health Assessment Services) Determination 2025;
- Health Insurance (Section 3C General Medical Services - Optometric Services) Determination 2020;
- Health Insurance (Section 3C General Medical Services – Other Medical Practitioner) Determination 2018;
- Health Insurance (Section 3C General Medical Services – Telehealth Attendances) Determination 2021;
- Health Insurance (Section 3C General Medical Services –Transcatheter Aortic Valve Implantation) Determination 2018;
- Health Insurance (Section 3C General Medical Services—Transcatheter Mitral Valve Repair) Determination 2021; and
- Health Insurance (Section 3C Midwife and Nurse Practitioner Services) Determination 2020.
The increase of the relevant schedule fees reflects the Australian Government’s policy regarding Medicare indexation and means that patients will receive an increased Medicare benefit for relevant services.
The purpose of Schedule 2 to the Amendment Determination is to make an administrative amendment to the Health Insurance (Section 3C General Medical Services – Telehealth Attendances) Determination 2021. Specifically, the amendment is to retrospectively remove indexation from items 91923, 91903 and 91913 which were inadvertently indexed in legislation from 1 July 2024. This change will give effect to the original policy intent for these items, i.e. to serve as telehealth service equivalents to items 54, 57, 151 that are already exempt from indexation. Although the amendments have retrospective effect, the retrospectivity will not disadvantage any person’s rights or impose liabilities on a person other than the Commonwealth. This is because the known benefits paid for items 91923, 91903 and 91913 were paid in line with the MBS fee file fee which has not included indexation in line with original policy authority. In the unlikely scenario that an overpayment was made, the Commonwealth would not choose to recover the inflated benefit amount. As such, the Amendment Determination does not trespass unduly on personal rights and liberties, in alignment with principle (h) of the Senate Standing Committee for the Scrutiny of Delegated Legislation Guidelines.
Human rights implications
This instrument engages Articles 2, 3, 9, 12, 16, and 26 of the International Covenant on Economic Social and Cultural Rights (ICESCR), specifically the rights to equality and non-discrimination, 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 increasing the Medicare benefits that patients will receive when accessing specified services, reflecting annual indexation. This will assist patients to continue accessing clinically relevant health services and will also maintain the right of equality and non-discrimination.
Although the amendment in Schedule 2 commences with retrospective effect, the retrospectivity will not disadvantage any person’s rights or impose liabilities on a person other than the Commonwealth. This is because the known benefits paid for items 91923, 91903 and 91913 were paid in line with the MBS fee file fee which has not included indexation in line with original policy authority. In the unlikely scenario that an overpayment was made, the Commonwealth would not choose to recover the inflated benefit amount. Instead, the retrospective operation will address an administrative error to specify in legislation the items are exempt from indexation in line with original policy intent.
Conclusion
This instrument is compatible with human rights as it advances the right to health, social security as well as equality and non-discrimination.
Nigel Murray
Assistant Secretary
MBS Policy and Specialist Programs Branch
Medicare Benefits and Digital Health Division
Health Resourcing Group
Department of Health, Disability and Ageing