EXPLANATORY STATEMENT

Health Insurance Act 1973

Health Insurance (Photodynamic Therapy) Determination HS/03/2006

Issued by the authority of the Minister for Health and Ageing

Background

Subsection 3C(1) of the Health Insurance Act 1973 (the Act) provides that the Minister may, by writing, determine that a health service not listed in the general medical 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 (General Medical Services Table) Regulations 2006 which are remade each year.

A determination made under subsection 3C(1) is a legislative instrument (see subsection 3C(4) of the Act and paragraph 6(d) of the Legislative Instruments Act 2003).

         Health Insurance Determination HS/05/2002 and Health Insurance (Photodynamic Therapy) Determination HS/09/2002

On 31 May 2002, the then Minister for Health and Ageing made Health Insurance Determination HS/05/2002 (HS/05/2002) under subsection 3(1) of the Act.  HS/05/2002 permitted the payment of Medicare benefit in relation to services for photodynamic therapy with verteporfin for age-related macular degeneration.  HS/05/2002 was made following a review by the Medical Services Advisory Committee which recommended interim funding for photodynamic therapy services under specified circumstances.  HS/05/2002 ceased to have effect on 21 August 2002 as it was inadvertently not tabled.

On 23 October 2002, the then Minister for Health and Ageing made Health Insurance (Photodynamic Therapy) Determination HS/09/2002 (HS/09/2002) to replace HS/05/2002.  HS/09/2002 had a retrospective commencement date of 1 June 2002.

Paragraph 4(a) of HS/09/2002 provided that a service for photodynamic therapy with verteporfin for age-related macular degeneration specified in the Schedule to HS/09/2002 was to be treated as if it was a professional service and a medical service for the purposes of the provisions of the Act, the National Health Act 1953 and regulations made under each Act that related to professional services and medical services.

Paragraph 4(b) of HS/09/2002 provided that a service in relation for photodynamic therapy for age-related macular degeneration specified in the Schedule to HS/09/2002 was to be treated as if it was related to an item in the Table that specified the fee mentioned in the Schedule to HS/09/2002 for that service.

HS/09/2002 was amended by Health Insurance (Amendment) Determination HS/06/2003 (effective 1 November 2003) and Health Insurance (Amendment) Determination HS/10/2004 (effective 1 November 2004) to increase the fees in respect of the services covered by HS/09/2002 to be in line with general fee increases that were being applied to services in the Table.

Amendments were purportedly made to HS/09/2002 by Health Insurance (Amendment) Determination HS/04/2005 (effective 1 November 2005) to:

(i)             increase the fees in respect of the services covered by HS/09/2002 to be in line with general fee increases that were being applied to services in the Table;

(ii)           increase the limit on the number of photodynamic therapy treatments allowed under HS/09/2002 from 10 to 15 treatments per patient; and

(iii)          introduce two new items (42991 and 43000) to cover the 11th to 15th treatments.  Representations had been made by the profession in support of amendments (ii) and (iii), above, to cover the small number of patients needing additional treatment.

However, due to an administrative oversight, the cessation date specified in HS/09/2002, as amended, had not been extended and HS/09/2002, as amended, ceased to be in effect on 31 May 2005.  As such, the amendments purportedly made to HS/09/2002, as amended, by Health Insurance (Amendment) Determination HS/04/2005 were not effective.

         Health Insurance (Photodynamic Therapy) Determination HS/03/2006

Health Insurance (Photodynamic Therapy) Determination HS/03/2006 (the Determination) remakes HS/09/2002, as amended by Health Insurance (Amendment) Determination HS/06/2003 and Health Insurance (Amendment) Determination HS/10/2004 and gives effect to the amendments purportedly made by Health Insurance (Amendment) Determination HS/04/2005.

The Determination revises the wording of various provisions of HS/09/2002 to reflect updated drafting practice and to clarify the operation of certain provisions. 

In addition, the Determination provides for an increase of 2.1 percent in the fees in respect of the services covered by the Determination compared to the fees in respect of the same services in HS/09/2002, as amended and taking into account the increase to the fees purportedly made by Health Insurance (Amendment) Determination HS/04/2005.  This fee increase is in line with the general fee increase that is being applied to most services in the Table from 1 November 2006.

Details of the Determination are set out in the Attachment.

Consultation

No consultation was undertaken in the making of the Determination as the instrument is machinery in nature and does not substantially alter existing arrangements.

ATTACHMENT

Notes on sections

Section 1

Section 1 provides for the name of the Determination.

Section 2

This section provides that the Determination is taken to have commenced on 1 June 2005.

In order to:

• ensure that Medicare benefits were payable for services for photodynamic therapy with verteporfin for age-related macular degeneration purportedly provided to patients under Health Insurance (Photodynamic Therapy) Determination HS/09/2002 on and from 1 June 2005; and
• give effect to the amendments to Health Insurance (Photodynamic Therapy) Determination HS/09/2002 that were purportedly made by Health Insurance (Amendment) Determination HS/04/2005 on 1 November 2005;

it will be necessary for the commencement date of the Determination to be retrospective.

Subsection 3C(2) of the Act specifically provides that a determination made under subsection 3C(1) may be expressed to have taken effect from a day earlier than the day on which the determination was made.

Although the Determination is of retrospective effect, it will not infringe subsection 12(2) of the Legislative Instruments Act 2003.  This is because the Determination is beneficial in nature and will not affect the rights of a person (other than the Commonwealth or an authority of the Commonwealth) as at the date of registration so as to disadvantage that person.  The Determination clarifies that Medicare benefits are payable for the photodynamic therapy services specified in the Schedule to the Determination (that were previously included in the Schedule to Health Insurance (Photodynamic Therapy) Determination HS/09/2002) on and from 1 June 2005; gives effect to the amendments to Health Insurance (Photodynamic Therapy) Determination HS/09/2002 that were purportedly made by Health Insurance (Amendment) Determination HS/04/2005 on 1 November 2005; and increases the fees that apply to photodynamic therapy services specified in the Schedule to the Determination rendered after 31 October 2006.

In addition, the Determination does not impose any liabilities on any person (other than the Commonwealth or an authority of the Commonwealth) in respect of anything done or omitted to be done before the date of registration.

Section 3

Subsection 3(1) defines terms used in the Determination.

A key term is 'relevant service' which means a service defined in paragraph 3C(8) of the Act that is specified in the Schedule to the Determination.  There are 12 such relevant service in the Schedule.

Subsection 3(2) provides that a reference to a provision of an Act or regulations, including the Act, the National Health Act 1953 and the regulations made under these Acts, is a reference to  the provision as in force from time to time (as authorised by subsection 3C(3) of the Act).

Section 4

Paragraph 4(a) provides that a relevant service specified in the Schedule to the Determination shall be treated as if it were both a professional service and a medical service for the purposes of the provisions of the Act, the National Health Act 1953 and regulations made under each Act that make provision for medical services or professional services.

Paragraph 4(b) provides that a relevant service specified in the Schedule to the Determination is to be treated as if there were an item in the general medical services table that related to the service and specified a fee in respect of that service, being the fee specified in the Schedule to the Determination in relation to the service.

Section 5

Section 5 provides that the Determination will only apply to a relevant service in certain circumstances.  The various circumstances are contained in paragraphs (a) to (d).

Section 6

This section provides for the indexation of the fees relating to the relevant services specified in the Schedule to the Determination.

This section is necessary to:

• set out the fees that apply to relevant services (with the exception of the relevant services relating to items 42991 and 43000 – see note below*) rendered in the period after the date of cessation of Health Insurance (Photodynamic Therapy) Determination HS/09/2002 (that is, after 31 May 2005) and before 1 November 2005 (which is the date of commencement of Health Insurance (Amendment) Determination HS/04/2005).  These fees are set out in Column 3 of the Schedule;
• give effect to the increase to the fees that relate to the relevant services that was purportedly made by Health Insurance (Amendment) Determination HS/04/2005.  This fee increase applies to relevant services rendered in the period from the date of commencement of Health Insurance (Amendment) Determination HS/04/2005 and before 1 November 2006 (that is, before the date of the latest increase to the fees that relate to the relevant services).  These fees are set out in Column 4 of the Schedule; and
• set out the fees that apply to relevant services rendered after 31 October 2006.  These fees include the 1 November 2006 increase of 2.1 percent and are set out in Column 5 of the Schedule.

Schedule

The Schedule sets out the relevant services and assigns to each service the applicable item number and item descriptor.  The Schedule also specifies a range of fees (set out in Columns 3, 4 and 5) that apply to each relevant service depending upon the date that the service was, or is to be, rendered to a patient.

*In relation to the relevant services corresponding to items 42991 and 43000 of the Schedule, the Schedule only specifies two fees for each service (see Columns 4 and 5).  There is no fee specified for these services in Column 3 of the Schedule.  This is because items 42991 and 43000 were purportedly first included in Health Insurance (Photodynamic Therapy) Determination HS/09/2006 on and from 1 November 2005 (the date of commencement of Health Insurance (Amendment) Determination HS/04/2005).