EXPLANATORY STATEMENT

Issued by the Authority of the Minister for Health

Health Insurance Act 1973

Health Insurance (MRI for Patients 16 Years and Over and Capital Sensitivity Consequential Amendments) Determination 2013

Subsection 3C(1) of the Health Insurance Act 1973 (the Act) provides, in part, that the Minister may determine in writing that a health service not listed in the Diagnostic Imaging Services Table (the Table) shall, in specified circumstances and for specified statutory provisions, be treated as if it were so listed.  The Table is set out in the Health Insurance (Diagnostic Imaging Services Table) Regulation (the DIST Regulation) which is remade each year.  

Purpose

The purpose of the Health Insurance (MRI for Patients 16 Years and Over and Capital Sensitivity Consequential Amendments) Determination 2013 (the Determination) is to:

• add four new Magnetic Resonance Imaging (MRI) services to the Health Insurance (Gippsland and South Eastern New South Wales Mobile MRI Service and Rockhampton, Bundaburg and Gladstone Mobile MRI Service) Determination 2012 (the Gippsland Determination); and
• make consequential amendments to the Gippsland Determination, the Health Insurance (Poly Implant Prosthese MRI) Determination 2012 and the Health Insurance (Duplex Scanning for Erectile Dysfunction) Determination 2010 (No. 1) as a result of changes to the capital sensitivity arrangements for diagnostic imaging services and the renumbering of the DIST Regulation.

Amendments to take effect 1 November 2013 – creation of four new MRI items

On 1 November 2006, the Commonwealth commenced a three year trial of a mobile MRI service operating in the Gippsland region of Victoria and the south eastern region of New South Wales (NSW).  Regional Imaging Pty Limited [ABN 81 095 630] (RIL) provided mobile MRI services in these regions for the purposes of the trial.  Medicare services for mobile MRI services provided by RIL pursuant to the funding agreement have been created through a series of determinations made under section 3C of the Act, the latest of which is the Gippsland Determination. 

These determinations have ensured that patients in Gippsland and South Eastern NSW continued to have access to Medicare-eligible mobile MRI services following the conclusion of the trial in 2009.  The transition phase one in 2010-11 allowed time for the findings of the independent evaluation report of the service to be considered, and to enable the Government to determine appropriate ongoing arrangements for the service.

In 2009 a mobile MRI unit based at the Mater Misericordiae Hospital Rockhampton and servicing that hospital, the Mater Misericordiae Hospital Gladstone and the Friendly Society Private Hospital in Bundaburg (‘the Mater unit’) was also given access to the MRI items in the Gippsland Determination.

The Determination amends the Gippsland Determination from 1 November 2013 to add four new MRI items (items 63584, 63485, 63586 and 63587).  These items allow medical practitioners, other than a specialist or a consultant physician, to request certain MRI scans (such as MRI scans of the head, cervical spine, and knee) for patients 16 years of age and over.  These four items for use by patients accessing the Gippsland and south eastern New South Wales and the Rockhampton, Bundaberg and Gladstone mobile MRI units correspond to four new items that may be accessed by patients attending other diagnostic imaging providers. 

Consequential amendments to take effect on the cessation of the Health Insurance (Diagnostic Imaging Services Table) Regulation 2012 

The annual remake of the DIST Regulation is to occur later in November 2013.  As part of the annual remake, reduced-fee ‘(NK)’ diagnostic imaging Medicare services currently listed through the Health Insurance (Diagnostic Imaging Capital Sensitivity) Determination 2011 will be transferred directly to the DIST Regulation.  These (NK) services, which have a Medicare Benefits Schedule fee set at 50% of the fee for the equivalent item in the DIST Regulation, are for use with services provided on depreciated diagnostic imaging equipment.  This capital sensitivity measure is intended to encourage diagnostic imaging providers to replace or upgrade their diagnostic imaging equipment.  Diagnostic imaging services provided on depreciated equipment in the certain rural or remote areas are exempt from using the lower fee (NK) items.

The transfer of (NK) items from the Health Insurance (Diagnostic Imaging Capital Sensitivity) Determination 2011 to the DIST Regulation and accompanying renumbering of the Regulation will result in consequential amendments needing to be made to instruments that refer to provisions of the DIST Regulation. 

The following instruments are amended by Schedule 2 of the Determination:

• the Gippsland Determination;
• the Health Insurance (Poly Implant Prosthese MRI) Determination 2012;
• the Health Insurance (Duplex Scanning for Erectile Dysfunction) Determination 2010 (No. 1).

Consultation

The Department of Health has consulted with Regional Imaging Pty Limited about the continuation of the mobile MRI service.  Extensive consultation has been undertaken with the sector with regard to the introduction of the four new MRI items for all patients 16 years of age and over.

Details of the Determination are set out in the Attachment.

Sections 1 to 4 and Schedule 1 of the Determination commence on 1 November 2013.  Schedule 2 commences on the cessation or earlier repeal of the Health Insurance (Diagnostic Imaging Services Table) Regulation 2012. 

This Determination is a legislative instrument for the purposes of the Legislative Instruments Act 2003.

Authority: Section 3C of the Health Insurance Act 1973

ATTACHMENT

Details of the Health Insurance (MRI for Patients 16 Years and Over and Capital Sensitivity Consequential Amendments) Determination 2013

Section 1    Name of Determination

Section 1 provides that the name of the Determination is the Health Insurance (MRI for Patients 16 Years and Over and Capital Sensitivity Consequential Amendments) Determination 2013.

Section 2    Commencement

Section 2 provides that sections 1 to 4 and Schedule 1 of the Determination commence on 1 November 2013 and Schedule 2 commences on the cessation or earlier repeal of the Health Insurance (Diagnostic Imaging Services Table) Regulation 2012.  In accordance with section 4AA of the Health Insurance Act 1973, the Health Insurance (Diagnostic Imaging Services Table) Regulation 2012 will cease on the fifteenth sitting day of the House of Representatives after a period of 12 months from registration, unless earlier repealed.

Section 3   Authority

Section 3 identifies the Authority under which the Determination is made, the Health Insurance Act 1973.

Section 4   Schedule

Section 4 provides that any instrument specified in a Schedule to the Determination is amended or repealed as set out in the applicable items and any other item in a Schedule has effect according to its terms. 

Schedule 1 – Amendments to take effect 1 November 2013

Schedule 1 contains amendments to the Health Insurance (Gippsland and South Eastern New South Wales Mobile MRI Service and Rockhampton, Bundaberg and Gladstone Mobile MRI Service) Determination 2012 (the Gippsland Determination).

Item 1 – Subsection 5(1), Interpretation (definition of RIL funding agreement)

Item 1 amends the definition of the ‘RIL funding agreement’ in subsection 5(1) of the Gippsland Determination to update with reference to the current version of the agreement. 

Item 2 – Paragraph 6(1)(b)

Item 3 - Paragraph 6AA(1)(b)

Items 2 and 3 amend paragraphs 6(1)(b) and 6AA(1)(b), respectively, of the Gippsland Determination to include reference to new items 63584 to 63587. 

Paragraph 6(1)(b) requires that a service provided using mobile diagnostic imaging equipment with its base at the Latrobe Regional Hospital in Traralgon, Victoria, must be provided pursuant to a written request made by a medical practitioner who is not a specialist or consultant physician identifying the clinical indications for the service in order for Medicare benefit to be payable under the Determination.  These requirements correspond to the requirements for requests for equivalent services in the Table.

Paragraph 6AA(1)(b) imposes the same requirements in respect of a service provided using mobile diagnostic imaging equipment with its base at the Mater Misericordiae Hospital in Rockhampton, Queensland. 

Item 4 – Section 8

1                            Item 4 replaces section 8 of the Gippsland Determination with a new section that includes reference to new items 63584 to 63587.  Section 8 applies clause 2.5.7 of the Health Insurance (Diagnostic Imaging Services Table) Regulation (the DIST Regulation) to certain items in the Gippsland Determination.  Clause 2.5.7 provides that a ‘scan’ must have a minimum of 3 sequences.

Item 5 – Section 9

Item 9 replaces section 9 of the Gippsland Determination, which applies subclause 2.5.9(2) of the DIST Regulation to relevant items in the Gippsland Determination, with a new section that includes reference to new items 63584 to 63587.  Clause 2.5.9 caps the number of times in any 12 month period that a Medicare benefit is payable for certain MRI services provided to the same patient.  The four new items may be provided a maximum of three times in a 12 month period to the one patient as Medicare eligible services.

Item 6 – Schedule – Specified health services, after item 63530

Item 6 adds new items 63584 to 63587 to the Schedule to the Gippsland Determination. 

Schedule 2 – Amendments to take effect on the cessation or earlier repeal of the Health Insurance (Diagnostic Imaging Services Table) Regulation 2012

Amendments to the Gippsland Determination

Item 7 – Section 6A

Item 7 amends section 6A of the Gippsland Determination to replace reference to paragraph 1.2.5A(1)(a) of the DIST Regulation with reference to paragraph 1.2.10(1)(a) as a result of the DIST Regulation being renumbered for the 2013 annual remake.  These provisions apply the MRI bulk-billing incentive.

Item 8 – Section 8

Item 8 amends section 8 of the Gippsland Determination to replace reference to item 63522 with reference to item 63561.  Section 8 provides for clause 2.5.7 of the DIST Regulations, which defines ‘scan’ to mean a minimum of three sequences, to apply to certain items in the Gippsland Determination.  The annual remake of the DIST Regulation will amend clause 2.5.7 so that it applies to items 63001 to 63561 rather than items 63001 to 63522, as a result of the inclusion of reduced fee (NK) items directly in the Regulation. 

Item 9 – Section 9

Item 9 repeals and replaces section 9 of the Gippsland Determination.  Section 9 applies subclause 2.5.9 of the DIST Regulation to relevant items in the Gippsland Determination by providing for references to items in the DIST Regulation in the table to subclause 2.5.9(2) to be read as if items from the Gippsland Determination were also mentioned in the table. 

The inclusion of (NK) items currently in the Health Insurance (Diagnostic Imaging Capital Sensitivity) Determination 2011 will result in changes to clause 2.5.9 of the DIST Regulations.  This will require consequential amendments to the Gippsland Determination so that it refers to subclause 2.5.9 rather than subclause 2.5.9(2) and also correctly references the DIST Regulation items mentioned in the table to clause 2.5.9. 

Amendments to the Health Insurance (Poly Implant Prosthese MRI) Determination 2012

Item 10 – Subsection 3(1), Interpretation (definition of relevant provisions including the note)

Item 10 amends references to clause 1.2.7 of the DIST Regulation in the definition of ‘relevant provisions’, including the note to that definition, to references to clause 1.2.12.  As part of the 2013 annual remake of the DIST Regulation, clause 1.2.7 will be renumbered as clause 1.2.12.

‘Relevant provisions’ are all provision of the Health Insurance Act 1973 and National Health Act 1953 and all regulations made under either of those two Acts that relate to professional or medical services, currently excluding clause 1.2.7 of the DIST Regulation. 

Item 11 – Subsection 5(1)

Item 11 replaces reference in subsection 5(1) of the Health Insurance (Poly Implant Prosthese MRI) Determination 2012 to paragraph 1.2.5(a) of the DIST Regulation with reference to paragraph 1.2.10(1)(a) of that Regulation.  This is consequential on the renumbering of the DIST Regulation as part of the 2013 annual remake.  Clause 1.2.5 of the DIST Regulations applies the bulk-billing incentive to the items in the Health Insurance (Poly Implant Prosthese MRI) Determination 2012.

Amendments to the Health Insurance (Duplex Scanning for Erectile Dysfunction) Determination 2010 (No. 1)

Item 12 – Section 5

Item 12 repeals and replaces section 5 of the Health Insurance (Duplex Scanning for Erectile Dysfunction) Determination 2010 (No. 1).  That section provides for items specified in the Schedule to that determination to, among other things, be treated as if they were items in the DIST Regulation and in the Health Insurance (Diagnostic Imaging Capital Sensitivity) Determination 2011. 

All items currently in the Health Insurance (Diagnostic Imaging Capital Sensitivity) Determination 2011 are to be transferred to the DIST Regulation as part of the annual remake of those regulations.  Items in the Health Insurance (Duplex Scanning for Erectile Dysfunction) Determination 2010 (No. 1) should therefore be treated only as items in the DIST Regulations. 

Item 13 – Schedule 1, item 55208

Item 14 – Schedule 1, item 55211

Items 13 and 14 insert the symbol ‘(K)’ at the end of the item descriptors for items 55208 and 55211, respectively.  With the inclusion of reduced fee (NK) capital sensitivity items directly in the DIST Regulation, higher fee items will be identified by the inclusion of the symbol (K) in their item descriptors. 

The amendments made by items 15 and 16 will ensure that items 55208 and 55211 are consistent with other higher fee diagnostic imaging items for use on newer equipment.  

Item 15 – Schedule 1, item 55209

Item 16 – Schedule 1, item 55212

Items 15 and 16 replace reference to the Health Insurance (Diagnostic Imaging Capital Sensitivity) Determination 2011 in items 55209 and 55212 with reference to the ‘diagnostic imaging services table’.  These amendments are consequential to items in the Health Insurance (Diagnostic Imaging Capital Sensitivity) Determination 2011 being transferred to the DIST Regulation.

Statement of Compatibility with Human Rights

 Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Health Insurance (MRI for Patients 16 Years and Over and Capital Sensitivity Consequential Amendments) Determination 2013

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 Health Insurance (MRI for Patients 16 Years and Over and Capital Sensitivity Consequential Amendments) Determination 2013 (the Determination) is to:

• amend the Health Insurance (Gippsland and South Eastern New South Wales Mobile MRI Service and Rockhampton, Bundaberg and Gladstone Mobile MRI Service) Determination 2012 (the Gippsland Determination) to add four new Medicare eligible MRI items; and 
• make consequential amendments to the Gippsland Determination, the Health Insurance (Poly Implant Prosthese MRI) Determination 2012 and the Health Insurance (Duplex Scanning for Erectile Dysfunction) Determination 2010 (No. 1) as a result of changes to the capital sensitivity arrangements for diagnostic imaging services and the renumbering of the DIST Regulation.

New MRI items

The new items allow for the payment of Medicare benefit for four MRI services requested by a medical practitioner (other than a specialist or a consultant physician) and provided to a patient 16 years of age and older for a small set of clinically appropriate indications (such as MRI scans of the head, cervical spine, and knee).  The new items may be accessed for services provided using either the Gippsland and South Eastern New South Wales Mobile MRI Service or the Rockhampton, Bundaberg and Gladstone Mobile MRI Service. 

These new items correspond to four new MRI items that may be accessed by patients attending other diagnostic imaging providers. 

Consequential amendments

The annual remake of the Health Insurance (Diagnostic Imaging Services Table) Regulation (DIST Regulation) is expected to occur in late November 2013.  As part of the annual remake, reduced-fee ‘(NK)’ diagnostic imaging Medicare services currently listed through the Health Insurance (Diagnostic Imaging Capital Sensitivity) Determination 2011 will be transferred directly to the DIST Regulation. 

These (NK) services, which have a Medicare Benefits Schedule fee set at 50% of the fee for the equivalent item in the DIST Regulation, are for use with services provided on depreciated diagnostic imaging equipment.  This capital sensitivity measure is intended to encourage diagnostic imaging providers to replace or upgrade their diagnostic imaging equipment.  Diagnostic imaging services provided on depreciated equipment in the certain rural or remote areas are exempt from using the lower fee (NK) items.

The transfer of (NK) items from the Health Insurance (Diagnostic Imaging Capital Sensitivity) Determination 2011 to the DIST Regulation and accompanying renumbering of the Regulation will result in consequential amendments needing to be made to the Gippsland Determination, the Health Insurance (Poly Implant Prosthese MRI) Determination 2012 and the Health Insurance (Duplex Scanning for Erectile Dysfunction) Determination 2010 (No. 1) to:

• update references to clauses of the DIST Regulation;
• update references to items in the DIST Regulation to reflect the inclusion of (NK) items directly in the Regulation; and
• replace references to the Health Insurance (Diagnostic Imaging Capital Sensitivity) Determination 2011 with references to the DIST Regulation.

Human rights implications

The right to health

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 International Covenant on Economic, Social and Cultural Rights (ICESCR).  The UN Committee on Economic, Social and Cultural Rights (the Committee) has stated that health is a ‘fundamental human right indispensable for the exercise of other human rights’, and that the right to health is not to be understood as a right to be healthy, but rather entails a right to a system of health protection which provides equality of opportunity for people to enjoy the highest attainable level of health.

Right to Social Security

The right to social security is contained in article 9 of the ICESCR.  The right 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 has stated that the notion of ‘the highest attainable standard of health’ takes into account both the conditions of the individual and the country’s available resources.  The 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 Committee has also stated that with respect to the right to social security that the qualifying conditions for benefits must be reasonable, proportionate and transparent.

MRI services for these indications are currently available to patients over the age of 16 years through request by a specialist and consultant physician.  These services will now available through request by other medical practitioners such as GPs.  In November 2012, equivalent services that can be requested by GPs were introduced for children under the age of 16 years.

The initiative was developed to ensure that patients have access to affordable and convenient services that reflect best clinical practice.  As these items can be requested by GPs, patients will have better access to MRI services and faster diagnosis, as they will not be required to be referred to a specialist or consultant physician in order to get a Medicare funded MRI service.

There is no incompatibility with the right to health or social security because the legislation is for a legitimate objective and reasonable, necessary and proportionate in the circumstances.

Conclusion

This Legislative Instrument is compatible with human rights as it has a positive effect on human rights issues.

Richard Bartlett

First Assistant Secretary

Medical Benefits Division