EXPLANATORY STATEMENT
Issued by the Minister for Health and Aged Care
Health Insurance Act 1973
Health Insurance (Prescribed Pathology Services) Determination 2021
Section 4BB of the Health Insurance Act 1973 (the Act) provides that the Minister may determine in writing that a pathology service, or class of pathology services, specified in the determination is a ‘prescribed pathology service’.
Purpose
The purpose of the Health Insurance (Prescribed Pathology Services) Determination 2021 (the Determination) is to revoke and remake the Health Insurance (Prescribed Pathology Services) Determination 2011 (the Previous Determination) as this instrument is due to sunset on 1 April 2022.
Generally, Medicare eligible pathology services must be provided in an accredited pathology laboratory by an approved pathology practitioner. However, there is an exception for prescribed pathology services, which are specified in a determination made under section 4BB of the Act.
The Previous Determination specified that simple basic pathology tests listed in Group P9 of the pathology services table (the Table) were prescribed pathology services, and that simple basic pathology tests rendered by participating nurse practitioners and provided under items 73828 to 73837 were prescribed pathology services.
The Determination will continue these arrangements from 1 November 2021. The Determination will include new item 73286, which will enable participating nurse practitioners to render point of care quantitation of HbA1c for the monitoring of diabetes mellitus (diabetes) in patients with diagnosed diabetes. This service will enable participating nurse practitioners to determine whether the patient’s diabetes is being controlled, or whether further intervention is necessary in order to manage the patient’s diabetes. Item 73826 will be introduced in the Health Insurance (Section 3C Midwife and Nurse Practitioner) Determination 2020 from 1 November 2021.
Consultation
No consultation was undertaken on the remaking of this Determination as it is administrative in nature, and the arrangement of simple basic pathology tests being treated as prescribed pathology services will continue.
Details of the Determination are set out in the Attachment.
The Determination commences on 1 November 2021.
The Determination is a legislative instrument for the purposes of the Legislation Act 2003.
Authority: Section 4BB of the
Health Insurance Act 1973
ATTACHMENT
Details of the Health Insurance (Prescribed Pathology Services) Determination 2021
Section 1 – Name
Section 1 provides for the Determination to be referred to as the Health Insurance (Prescribed Pathology Services) Determination 2021.
Section 2 – Commencement
Section 2 provides that the Determination commences on 1 November 2021.
Section 3 – Authority
Section 3 provides that the Determination is made under 4BB of the Health Insurance Act 1973.
Section 4 – Repeal
Section 4 provides that the Determination repeals the Health Insurance (Prescribed Pathology Services) Determination 2011.
Section 5 – Definitions
Section 5 provides definitions used in the Determination.
Section 6 – Prescribed pathology services
Section 6 provides that for paragraph 4BB(a) of the Act, a pathology service specified in an item in Group P9 of the pathology services table is a prescribed pathology service for the purposes of that Act.
Section 7 – Prescribed pathology services rendered by participating nurse practitioners
Section 7 provides that subsection 16A(7A) of the Act applies to the prescribed pathology services in the range 73826 – 73837 listed in the Health Insurance (Section 3C Midwife and Nurse Practitioner) Determination 2020, where the service is rendered by a participating nurse practitioner.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Health Insurance (Prescribed Pathology Services) Determination 2021
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 (Prescribed Pathology Services) Determination 2021 (the Determination) is to revoke and remake the Health Insurance (Prescribed Pathology Services) Determination 2011 (the Previous Determination) as this instrument is due to sunset on 1 April 2022.
Generally, Medicare eligible pathology services must be provided in an accredited pathology laboratory by an approved pathology practitioner. However, there is an exception for prescribed pathology services, which are specified in a determination made under section 4BB of the Act.
The Previous Determination specified that simple basic pathology tests listed in Group P9 of the pathology services table (the Table) were prescribed pathology services, and that simple basic pathology tests rendered by participating nurse practitioners and provided under items 73828 to 73837 were prescribed pathology services.
The Determination will continue these arrangements from 1 November 2021. The Determination will include new item 73286, which will enable participating nurse practitioners to render point of care quantitation of HbA1c for the monitoring of diabetes mellitus (diabetes) in patients with diagnosed diabetes. This service will enable participating nurse practitioners to determine whether the patient’s diabetes is being controlled, or whether further intervention is necessary in order to manage the patient’s diabetes. Item 73826 will be introduced in the Health Insurance (Section 3C Midwife and Nurse Practitioner) Determination 2020 from 1 November 2021.
Human rights implications
This instrument 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.
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 maintains rights to health and social security by ensuring access to publicly subsidised health services, which are clinically effective and cost-effective. This instrument will continue the provision of prescribed pathology services, including for simple basic pathology tests rendered by participating nurse practitioners.
Conclusion
This instrument is compatible with human rights as it maintains the right to health and the right to social security.
Greg Hunt
Minister for Health and Aged Care