EXPLANATORY STATEMENT
Health Insurance Act 1973
Health Insurance Legislation Amendment (Section 3C General Medical Services – Drought Affected Areas) Determination 2020
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 table.
The GMST is set out in the regulations made under subsection 4(1) of the Act. The GMST is currently prescribed in the Health Insurance (General Medical Services Table) Regulations (No. 1) 2020. This version will be remade on 1 July 2020 by the Health Insurance (General Medical Services Table) Regulations (No. 2) 2020.
Subsection 33(3) of the Acts Interpretation Act 1901 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 (Section 3C General Medical Services – Drought Affected Areas) Determination 2020 (the Determination) is to amend six items for video conference mental health services to remove the provision of the services to patients in drought affected areas in New South Wales, Queensland or Victoria. These items will no longer be provided in drought affect eligible areas from 1 July 2020, but they will continue to provide support to people who have had their mental health adversely affected by a bushfire which occurred in the 2019-20 financial year.
The Determination will also increase the fees of the six items by 1.5 per cent to reflect the Government’s policy regarding indexation. In the 2017-18 Budget, the Government announced the re-commencement of indexation of Medicare benefits under the Guaranteeing Medicare - Medicare Benefits Schedule - indexation measure.
On 1 November 2018, six interim items were introduced to allow general practitioners (items 2121, 2150 and 2196) and other medical practitioners (items 894, 896 and 898), working in Modified Monash areas 3 to 7, to provide temporary mental health services to patients in drought affected areas in New South Wales, Queensland or Victoria. These items were introduced in the Health Insurance (Section 3C General Medical Services – General Practice Telehealth Services) Amendment Determination 2018 and were intended to cease on 30 June 2020.
On 10 January 2020, these services were expanded to allow people who have had their mental health adversely affected by a bushfire which occurred in the 2019-20 financial year. This was implemented by the Health Insurance (Section 3C General Medical Services – General Practice Telehealth Services for Bushfires Response) Amendment Determination 2020.
These six items were only intended to temporarily allow drought affected patients to access mental health services via video conference. These patients will continue to be able to access mental health services provided by general practitioners and other medical practitioners working in general practice via face-to-face attendances. They will also continue to be able to access temporary mental health telehealth services, including by telephone, which were introduced to help reduce the risk of community transmission of COVID-19 and to provide protection for patients and health care providers.
Patients will also continue to be able to access these video conference services if they considered to have had their mental health adversely affected by a bushfire which occurred in the 2019-20 financial year.
Consultation
Consultation on the initial development of the items for the provision of these services to be provided in drought affected eligible areas was undertaken with key medical groups including the Australian College of Rural and Remote Medicine and the Rural Doctors Association of Australia.
No consultation was undertaken on the amendment to these items in the Determination as they were only intended to temporarily allow drought affected patients in New South Wales, Queensland or Victoria to access mental health services via video conference. Patients can to continue to access mental health services provided by general practitioners and other medical practitioners working in general practice via face-to-face attendances.
Patients who have been affected by a bushfire which occurred in the 2019-20 financial year can continue to access the video conference mental health services.
No consultation was undertaken on the increase to the schedule fees to the items as this continues the 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. The complete list of all indexed schedule fees will be available through the Medicare Benefits Schedule xml data file on MBS Online.
Details of the Determination are set out in the Attachment.
The Determination commences on 1 July 2020.
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 Legislation Amendment (Section 3C General Medical Services – Drought Affected Areas) Determination 2020
Section 1 – Name
Section 1 provides for the Determination to be referred to as the Health Insurance Legislation Amendment (Section 3C General Medical Services – Drought Affected Areas) Determination 2020.
Section 2 – Commencement
Section 2 provides that the Determination commences on 1 July 2020.
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 (Section 3C General Medical Services – General Practitioner Telehealth Services) Determination 2018 (Principal GP Telehealth Determination)
Item [1] – Subsection 4(1) (definition of drought affected eligible area)
Item 1 repeals the definition of drought affected eligible area from subsection 4(1) of the Principal GP Telehealth Determination. This definition is no longer required as the items 2121, 2150 and 2196 will no longer be provided to drought affected patients.
Item [2] – Section 6 (below the heading)
Item 2 repeals and substitutes section 6 of the Principal GP Telehealth Determination. This is a consequential change to remove the requirement for items 2121, 2150 and 2196 where the patient or general practitioner cannot travel to a place to satisfy the minimum distance of 15 kilometres. This was a requirement for drought affected patients and is no longer required.
The distance requirement rule does not apply to bushfire affected patients accessing the mental health video conferencing items.
Item [3] – Schedule 1 (table items 2121, 2150 and 2196)
Item 3 repeals and substitutes items 2121, 2150 and 2196 to remove the provision of the services to drought affect patients. These services will continue to be provided by general practitioners to patients affected by bushfire.
The schedule fees for items 2121, 2150 and 2196 have also been indexed by 1.5 per cent.
Schedule 2 – Amendments
Health Insurance (Section 3C General Medical Services – Other Medical Practitioner) Determination 2018 (Principal OMP Determination)
Item [1] – Subsection 4(1) (definition of drought affected eligible area)
Item 1 repeals the definition of drought affected eligible area from subsection 4(1) of the Principal OMP Determination. This definition is no longer required as items 894, 896 and 898 will no longer be provided to drought affected patients.
Item [2] – Schedule 1 (subclause 1.12.4(2))
Item 2 repeals and substitutes subclause 1.12.4(2) of the Principal OMP Determination. This is a consequential change to remove the requirement for items 894, 896 and 898 where the patient or general practitioner cannot travel to a place to satisfy the minimum distance of 15 kilometres. This was a requirement for drought affected patients and is no longer required.
The distance requirement rule does not apply to bushfire affected patients accessing the mental health video conferencing items.
Item [3] – Schedule 1 (table items 894, 896 and 898)
Item 3 repeals and substitutes items 894, 896 and 898 to remove the provision of the services to drought affect patients. These services will continue to be provided by other medical practitioners working in general practice to patients affected by bushfire.
The schedule fees for items 894, 896 and 898 have also been indexed by 1.5 per cent.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Health Insurance Legislation Amendment (Section 3C General Medical Services Table – Drought Affected Areas) Determination 2020
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 (Section 3C General Medical Services – Drought Affected Areas) Determination 2020 (the Determination) is to amend six items for video conference mental health services to remove the provision of the services to patients in drought affected areas in New South Wales, Queensland or Victoria. These items will no longer be provided in drought affect eligible areas from 1 July 2020, but they will continue to provide support to people who have had their mental health adversely affected by a bushfire which occurred in the 2019-20 financial year.
The Determination will also increase the fees of the six items by 1.5 per cent to reflect the Government’s policy regarding indexation. In the 2017-18 Budget, the Government announced the re-commencement of indexation of Medicare benefits under the Guaranteeing Medicare - Medicare Benefits Schedule - indexation measure.
On 1 November 2018, six interim items were introduced to allow general practitioners (items 2121, 2150 and 2196) and other medical practitioners (items 894, 896 and 898), working in Modified Monash areas 3 to 7, to provide temporary mental health services to patients in drought affected areas in New South Wales, Queensland or Victoria.
On 10 January 2020, these services were expanded to allow people who have had their mental health adversely affected by a bushfire which occurred in the 2019-20 financial year.
These six items were only intended to temporarily allow drought affected patients to access mental health services via video conference. These patients will continue to be able to access mental health services provided by general practitioners and other medical practitioners working in general practice via face-to-face attendances. They will also continue to be able to access temporary mental health telehealth services, including by telephone, which were introduced to help reduce the risk of community transmission of COVID-19 and to provide protection for patients and health care providers.
Patients will also continue to be able to access these video conference services if they considered to have had their mental health adversely affected by a bushfire which occurred in the 2019-20 financial year.
Human rights implications
This Determination 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.
Analysis
This instrument maintains rights to health and social security by ensuring access to publicly subsidised health services, which are clinically effective and cost-effective.
Conclusion
This instrument is compatible with human rights because it maintains existing arrangements and the protection of human rights.
Paul McBride
First Assistant Secretary
Medical Benefits Division
Health Financing Group
Department of Health