EXPLANATORY STATEMENT
STATUTORY RULES No 314 of 1988
HEALTH INSURANCE ACT 1973
HEALTH INSURANCE REGULATIONS (AMENDMENT)
The Health Insurance Act 1973 (the Act) provides for payments by way of medical benefits, payments for hospital services and for matters concerning related committees and tribunals.
Section 133 of the Act provides in part that the Governor-General may make regulations, not inconsistent with the Act, prescribing all matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed, for carrying out or giving effect to the Act.
Section 13 of the Act provides as follows:
‘13. (1) This section applies to a course of attention that includes an attendance, or attendances, covered by item 186, being -
(a) a course of attention of a patient who is not included in a prescribed class of patients; or
(b) a course of attention that commences within 3 years of the commencement of an earlier course of attention of the patient that -
(i) included an attendance, or attendances, covered by item 186; and
(ii) was not a course of attention to which this section applies.
(2) The medicare benefit payable under item 186 in respect of attendances in a course of attention to which this section applies is -
(a) an amount equal to the amount that would be payable as medicare benefit in respect of those attendances if those attendances were an attendance covered by item 182; or
(b) such other amount as is prescribed.
The table of medical services prescribed pursuant to subsection 4(2) of the Act by the Health Insurance (Variation of Fees and Medical Services) (No. 49) Regulations 1988 relevantly provides:
‘Professional Attendances by Participating Optometrists
…
182 Professional attendance by a participating optometrist (not being an attendance relating to the prescription and fitting of contact lenses) that is the second attendance in a single course of attention in respect of which the first attendance is covered by item 180 …. 20.50
…
186 Professional attendances by a participating optometrist after the first, being those attendances regarded as a single service, in a single course of attention involving the prescription and fitting of contact lenses, being a course of attention in respect of which the first attendance is covered by item 180. The Medicare benefit is payable only once in a period of thirty-six consecutive months unless the examining optometrist has certified on the patient’s account that, in his or her professional opinion, the patient had an ocular condition which necessitated a further course of attention being commenced within thirty-six months of the previous initial consultation … 104.00’
(The fees columns have been simplified for the purposes of exposition: there are no variations between States for these items.)
The above description of item 186 resulted from a 1 August 1987 amendment to the Regulations which added the proviso that medicare benefits would be payable more than once for item 186 within a thirty-six month period only if the examining optometrist certified that the patient had an ocular condition which necessitated a further course of treatment. This was done in order to prevent medical practitioners prescribing contact lenses merely for cosmetic or sporting purposes.
Since then, the Health Insurance Commission (the Commission) paid medicare benefits at the full item 186 rate where the certification contained in the description had been duly made. In cases where such certification had not been made, the reduced rate of benefit provided for by paragraph 13(2)(a) of the Act applied. It was then ascertained that such payments at the full rate were inconsistent with section 13 of the Act and the reduced rate of benefit should have applied in all cases.
The Regulations, which are made pursuant to paragraph 13(2)(b) of the Act, retrospectively validate the overpayments made by the Commission through the prescription of an amount of benefit equal to that under item 186 at the respective rates of benefit in force since 1 August 1987. The validation is restricted to the situation where the examining optometrist has certified on the patient’s account that, in his or her professional opinion, the patient had an ocular condition which necessitated a further course of attention which itself had commenced within thirty-six months of the previous initial consultation.
The retrospective commencement of the proposed Regulations will not operate to the financial detriment of any person other than the Commonwealth and so does not conflict with the provisions of subsection 48(2) of the Acts Interpretation Act 1901, dealing with the retrospectivity of regulations.