EXPLANATORY STATEMENT
Issued by the Authority of the Minister for Health
Health Insurance Act 1973
Health Insurance (Midwife and Nurse Practitioner) Amendment
Determination (No. 2) 2015
Authority
Subsection 3C(1) of the Health Insurance Act 1973 (the Act) provides that the Minister may determine in writing that a health service not specified in an item in the General Medical Services Table (the GMST), the Pathology Services Table (the PST) or the Diagnostic Imaging Services Table (the DST) shall, in specified circumstances and for the purposes of specified statutory provisions, be treated as if it were specified in the GMST, the PST or the DST, as appropriate. The GMST is set out in the Health Insurance (General Medical Services Table) Regulations, the PST is set out in the Health Insurance (Pathology Services Table) Regulations and the DIST is set out in the Health Insurance (Diagnostic Imaging Services Table) Regulations. Each of these tables is re-made each year.
Purpose
The purpose of the Health Insurance (Midwife and Nurse Practitioner) Amendment
Determination (No. 2) 2015 (the Determination) is to amend the Health Insurance (Midwife and Nurse Practitioner) Determination 2015 (Midwife and Nurse Practitioner Determination) to clarify that, where exceptional circumstances arise, both the first participating midwife and the subsequent participating midwife can claim item 82120.
Background
The Midwife and Nurse Practitioner Determination (F2015L01660) introduced an ‘exceptional circumstances’ provision for intrapartum (labour and birth) care provided by participating midwives. The Midwife and Nurse Practitioner Determination commences on 1 November 2015.
Currently, to be able to claim Medicare Benefits Schedule (MBS) item 82120, a participating midwife must manage a patient’s confinement for up to 12 hours. Once the patient’s confinement is in excess of 12 hours the first participating midwife can then transfer the patient’s care to another participating midwife who is then eligible to claim MBS item number 82125.
The Midwife and Nurse Practitioner Determination provides a new paragraph 8(3)(c) to introduce an ‘exceptional circumstances’ provision which provides for the early transfer of a patient’s care to another participating midwife under item 82120. It was intended, under the Midwife and Nurse Practitioner Determination that in these circumstances, both midwives would be able to claim item 82120 when exceptional circumstances occur. To ensure that this is clearly the case, item 1 of Schedule 1 of the Determination inserts “, unless paragraph 8(3)(c) of this Determination applies” into the Midwife and Nurse Practitioner Determination. This amendment will ensure that a Medicare rebate is payable once only for any pregnancy, unless the patient is transferred to another midwife in exceptional circumstances.
This instrument is for the purpose of improving the clarity of the original instrument.
Details of the Regulation are set out in the Attachment
This Determination commences immediately after the commencement of the Health Insurance (Midwife and Nurse Practitioner) Determination 2015.
The Determination is a legislative instrument for the purposes of the Legislative Instruments Act 2003.
Consultation
Consultation was previously undertaken with the Australian Private Midwives Association and the Australian College of Midwives in relation to the Health Insurance (Midwife and Nurse Practitioner) Determination 2015. No consultation was undertaken for this particular amendment as it is a minor drafting change for the sake of clarity which does not alter the arrangements.
Authority: Subsection 3C(1) of the
Health Insurance Act 1973
ATTACHMENT
Details of the Health Insurance (Midwife and Nurse Practitioner) Amendment
Determination (No. 2) 2015
Section 1 Name of Determination
This section provides for the Determination to be referred to as the Health Insurance (Midwife and Nurse Practitioner) Amendment Determination (No. 2) 2015.
Section 2 Commencement
This section provides for the Determination to commence immediately after the commencement of the Health Insurance (Midwife and Nurse Practitioner) Determination 2015.
Section 3 Authority
This section provides that this determination is made under subsection 3C(1) of the Health Insurance Act 1973.
Section 4 Amendment of the Health Insurance (Midwife and Nurse Practitioner) Determination 2015
This section provides that Schedule 1 amends the Health Insurance (Midwife and Nurse Practitioner) Determination 2015.
Schedule
1 Schedule 1 Midwifery services and fees (Part 1, item 82120)
Item 1 amends Schedule 1 of the Health Insurance (Midwife and Nurse Practitioner) Amendment Determination (No. 2) 2015 to insert a reference to paragraph 8(3)(c). This amendment clarifies that both the first participating midwife and the subsequent participating midwife can claim item 82120 if the patient is transferred to another midwife because of exceptional circumstances.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Health Insurance (Midwife and Nurse Practitioner) Amendment Determination (No. 2) 2015
This Legislative 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 Legislative Instrument
The purpose of the Determination is to amend the Midwife and Nurse Practitioner Determination to clarify that, where exceptional circumstances arise, both the first participating midwife and the subsequent participating midwife can claim item 82120.
Human rights implications
The regulations engage Articles 2, 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.
Analysis
This Determination will advance rights to health and social security by ensuring access to publicly subsidised health services which are clinically effective and cost-effective.
Conclusion
The Legislative Instrument is compatible with human rights because it maintains existing arrangements and the protection of human rights.
Maria Jolly
First Assistant Secretary
Medical Benefits Division
Department of Health