EXPLANATORY STATEMENT

Health Insurance Act 1973

Health Insurance (Section 19AB Exemptions) Guidelines 2015

Authority

Section 19AB(1) and 19AB(2) of the Health Insurance Act 1973 (the Act) prevents the payment of Medicare benefits for services provided by or on behalf of an overseas trained doctor (OTD) or foreign graduate of an accredited medical school (FGAMS), except where:

• the person was first recognised as a medical practitioner in Australia before 1997;
•              the person was an OTD prior to 1 January 1997 and before that date had applied to undertake examinations to become a medical practitioner; or
•              the relevant medical service is provided more than 10 years after the person first became a medical practitioner, and the person either first became a medical practitioner before 18 October 2001, was a permanent Australian at the time of becoming a medical practitioner, or became a permanent Australian after first becoming a medical practitioner.

For the purpose of section 19AB(1) and 19AB(2):

• accredited medical school means a medical school that is

                     (a)  accredited by the Australian Medical Council; and

• FGAMS means a person:

• OTD means a person whose primary medical qualification was not obtained from an accredited medical school.

Under subsection 19AB(3) of the Act, the Minister for Health has the power to grant an exemption from the restrictions in sections 19AB(1) and 19AB(2) of the Act (an exemption).  An exemption may be granted in respect of one person or a class of persons.  The Minister also has the power under subsection 19AB(4) of the Act to make exemptions subject to any conditions he or she considers fit. 

Subsection 19AB(4B) of the Act provides that the Minister must, in writing, determine guidelines that apply to:

• the granting of exemptions to allow OTDs and FGAMS subject to restrictions under section 19AB to access the Medicare benefits arrangements for their professional medical services; and
• the imposition of conditions on such exemptions.  

Purpose

Guidelines made under subsection 19AB(4B) of the Act, the Health Insurance Act 19AB Guidelines, commenced in October 2001.  These Guidelines were revoked on

3 September 2012 when the Health Insurance (Section 19AB Exemptions) Guidelines 2012 (the Previous Guidelines) were signed into effect. 

The Health Insurance (Section 19AB Exemptions) Guidelines 2015 (the Guidelines) revoke and replace the Previous Guidelines. 

The Guidelines provide:

• an updated definition of district of workforce shortage (DWS) that will apply when assessing section 19AB(3) exemption requests from 2 February 2015;
• references to the current information sources and geographical classification systems that are used to inform the DWS determinations for each of the medical specialties that are used to assess section 19AB(3) exemption requests; and
• minor amendments to the existing locum exemption provisions to clarify their intended operation. 

Background

Districts of workforce shortage (DWS)

The Guidelines provide a framework for considering requests for exemptions under section 19AB(3) and applying conditions to such exemptions.  An exemption enables a doctor who is an OTD or FGAMS and who would otherwise be prevented from providing Medicare-eligible services by the operation of sections 19AB(1) and 19AB(2) to provide such services. 

The Guidelines provide that the key consideration when assessing an exemption request is whether the applicant is seeking to practise privately in a recognised DWS area for their medical specialty (their field of medical practice).  For example, where the applicant is a registered specialist cardiologist, the primary consideration for granting an exemption will be whether they are seeking Medicare access at a service location that falls within a recognised DWS for the specialty of cardiology.  Where the applicant is a general practitioner or other non-specialist for Medicare purposes (GP or other non-specialist), the primary consideration will be whether the applicant is seeking to practise in a DWS area for general practice.

The requirement that DWS serves as the primary consideration for most exemption decisions is intended to affect a more equitable distribution of the private medical workforce across Australia.  This requirement aims to alleviate medical workforce shortages in recognised DWS areas, particularly in regional and remote communities that experience difficulties in accessing medical services due to their distance from the capital cities.

The Guidelines also provide for circumstances where DWS will not be the primary consideration; for example, where the applicant for an exemption will be providing locum services at an Aboriginal and Torres Strait Islander primary health care service in respect of which a direction under subsection 19(2) of the Act is in force.  

DWS areas are identified for each of the medical specialties using the latest Medicare billing statistics and Australian Bureau of Statistics (ABS) estimated residential population data.  These information sources are used to determine the level of Medicare-subsidised medical service provision for each medical specialty in each geographical area of Australia. 

A map showing the DWS status of every Australian street address for GPs, specialists and consultant physicians is provided on the DoctorConnect website at: www.doctorconnect.gov.au/. 

Commencement

The Guidelines commence on 2 February 2015. 

Documents Incorporated by Reference

The following documents are incorporated within the Guidelines by reference

• Acts Interpretation Act 1901;

• Health Insurance Regulations 1975; and
• Migration Regulations 1994.

Consultation

The Department has not formally consulted external stakeholders during the process of revising the Guidelines.  The revisions that have been made under the Health Insurance (Section 19AB Exemptions) Guidelines 2015 are limited in scope and focused on updating the definition of DWS so that it accurately represents the:

• method that will be used by the Department to identify DWS areas for GPs, specialists and consultant physicians; and
• information sources that will be used when determining which geographical areas qualify as DWS  for each of the medical specialties.

Several key external stakeholders were consulted by the Department during the processes of developing an updated DWS methodology and identifying information sources that would produce DWS determinations that are indicative of local unmet needs for private medical services across Australia.  This consultation process commenced as part of an Independent Review of Australian Government Health Workforce Programmes that was announced as part of the 2012-13 Budget.  Consultations with a number of stakeholders, including the Australian Medical Association, Rural Health Workforce Australia, Rural Doctors Association of Australia and the Australian Medical Local Alliance, were held in October, November and December 2012 as part of this review process.

When making revisions to the DWS definition in the Guidelines, the Department has referred to the recommendations final report for this review dated 24 May 2013 that were based on several submissions provided by individual stakeholders.  

Key recommendations were that the Australian Government improve the DWS definition by:

• using the latest Australian Bureau of Statistics (ABS) census data to accurately measure the size and geographic distribution of the Australian population and use this information as a basis for measuring local medical service needs for each medical specialty;
• moving to the latest Australian Statistical Geography Standard (ASGS) as introduced by the ABS in 2011 to inform DWS determinations for medical specialties other than general practice; and
• introducing an additional measure of the full time workload equivalent services being provided by GPs and other non-specialists in communities that fall marginally outside of the requirements for being DWS (i.e. have Medicare billing statistics that fall within ten per cent of the national average).

The Health Insurance (Section 19AB Exemptions) Guidelines 2015 provide an amended DWS definition that is a direct response to these recommendations.

The Guidelines are a legislative instrument for the purposes of the Legislative Instruments Act 2003.

            ATTACHMENT A

Health Insurance (Section 19AB Exemptions) Guidelines 2015

Part 1 Preliminary

Section 1  Name of Guidelines

Section 1 provides that the name of the instrument is the Health Insurance (Section 19AB Exemptions) Guidelines 2015 (the Guidelines).

Section 2 Commencement

Section 2 provides that the Guidelines commence on 2 February 2015.

Section 3 Object

Section 3 provides that the objective of the Guidelines is to provide a more equitable distribution of medical services in Australia by increasing the supply of medical practitioners in areas of most need, specifically regional and remote areas.  

Section 4 Revocation

Section 4 provides that the Health Insurance (Section 19AB Exemptions) Guidelines 2012 are revoked. 

Section 5 Definitions and interpretation

Definitions

Subsection 5(1) defines terms used in the Guidelines.  The Guidelines include an amended definition of DWS from that appearing in the Previous Guidelines.  This definition provides a clear statement of how the Department identifies DWS areas for GPs, specialists and consultant physicians.  

ASGS – the definition of the ‘Australian Statistical Geography Standard (ASGS)’ has been included to replace the definition of Australian Standard Geographical Classification – Remoteness Areas (ASGC-RA) that was provided in the Previous Guidelines.  The ASGS replaces the ASGC-RA as an information source that used to inform DWS determinations.  The ASGS will serve this function upon commencement of the Guidelines   This definition identifies the ASGS as a geographical remoteness area classification system that was introduced by the Australian Bureau of Statistics in July 2011. 

District of workforce shortage - the definition of ‘district of workforce shortage’ (DWS) has been altered from that appearing in the Previous Guidelines.  This is the result of an alteration in the method for determining DWS and updates to the information sources that are consulted for the purpose of identifying DWS areas for GPs, specialists and consultant physicians.

As was previously the case, there are separate methods for identifying DWS areas in respect of GPs and other non-specialists for Medicare purposes (non-specialists) and for specialists in a particular specialty (including consultant physicians).  For the purposes of the Act (and accordingly these Guidelines), medical practitioners who are recognised by the Medical Board of Australia as specialists in the specialty of general practice are not classed as ‘specialists’ for the purposes of Medicare.  Instead they are included in the separate class of ‘general practitioner’.

For GPs and other non-specialists, a DWS is a geographical area that satisfies either of the following conditions:

(i)            a geographical area, determined by the Department, in which the number of full-time equivalent (FTE) non-specialists, per person in the geographical area, is less than the current national average (determined area); or

(ii)         a determined area where, using the same data used for the purposes of subparagraph (i), the number of FTE GPs and other non-specialist, per person in the determined area, is:

(A)             within 10 % (inclusive) of the current national average; and

(B)             the non-specialists practising in the geographical area have a full time workload equivalent to full time equivalent doctor-population ratio of 1:3 or more.

The key amendment to the DWS definition as it applies to general practice that is being introduced as part of these Guidelines is the inclusion of subparagraph (ii) above.  The objective of this amendment is to recognise as DWS those geographical areas that are being serviced by a small number of GPs and other non-specialists who are providing, on average, significantly more services than the national average to meet patient demand.  The full time workload equivalent to FTE doctor-population ratio is used to identify geographical areas that will qualify as DWS for general practice under this measure.  A ratio of 1:3 is set as a benchmark because it identifies those geographical areas that are serviced by GPs and other specialists who are providing, on average, 30% more than the normal full-time level of medical service provision (represented by FTE) to meet community demand.  

For medical practitioners who are specialists in a particular specialty, a DWS is a geographical area in which the number of full time equivalent specialists in that specialty is less than the national average.  An area that is classified by the Department, using the  Australian Statistical Geography Standard, as outer regional (RA-3), Rural (RA-4) or Remote (RA-5) is also a DWS in respect of medical practitioners who are specialists.  The method used to identify DWS areas for specialists remains largely unchanged; the key amendment is references to the updated information sources that will be used to ensure that the system provides accurate determinations of workforce shortage.

Notes to the definition of ‘district of workforce shortage’ indicate that:

• the Department identifies DWS areas using Medicare billing data and also estimated resident population data ,based on 2013 data from the ABS;
• maps of current DWS areas can be accessed at www.doctorconnect.gov.au/; and
• the Department uses the ASGS system published by the ABS in 2011, but has a different numbering system. The Department’s remoteness area classifications can be accessed at www.doctorconnect.gov.au/.  

General skilled migration visa, migration occupation in demand (as that definition was before repeal), relevant assessing authority and skilled occupation - each of these terms is specified as having the same meaning as under the Migration Regulations 1994.  The terms are relevant for the consideration of the granting of an exemption to an applicant who is the spouse of a person who has migrated to Australia to work in an occupation in which Australia is suffering a skills shortage (see Section 8). 

• ‘General skilled migration visas’ are currently Subclass 175, 176, 189, 190, 475, 476, 485, 487, 489, 885, 886 or 887 visas as provided by the Migration Regulations 1994;

• a ‘skilled occupation’ is an occupation specified in an instrument made by the Minister for Immigration and Citizenship under regulation1.15I of the Migration Regulations 1994.  Lists of skilled occupations are available from www.immi.gov.au/skilled;
• a ‘migration occupation in demand’ has the meaning given in the Migration Regulations 1994 immediately before repeal of that definition by the Migration Amendment Regulation 2012 (No.2); and
• a ‘relevant assessing authority’ is a person or body specified in regulation 2.26B of the Migration Regulations 1994.

Service location – the definition of ‘service location’ has been updated in the Guidelines to mean the location of the practice, by street address, to which an application relates.  The updated definition places an emphasis on street address that was not included in the Previous Guidelines

Interpretation

Subsection 5(2) clarifies that a service location is in a DWS for a particular type of practitioner if:

• for a GP or other non-specialist, the location is in a DWS for GPs and other non-specialists; and
• for a specialist in a particular specialty, the location is in a DWS for specialists in that specialty.

Subsection 5(3) provides that a reference throughout the Guidelines to a specialist includes a reference to a consultant physician.  This is to increase readability of the Guidelines.

Subsection 5(4) provides references throughout the Guidelines to ‘the type of practitioner to which an application relates’ means a reference to either specialists in a particular specialty, or to GPs and other non-specialists.

The Note to section 5 indicates to readers that certain terms used in the Guidelines take their definition from the Health Insurance Act 1973.  These include ‘general practitioner’, ‘specialist’ and ‘consultant physician’.

Section 6 Considerations for exemptions – general

Section 6 sets out the matters the Minister for Health is to take into consideration when deciding on most applications for exemptions.  

Subsection 6(1) provides that the section is subject to sections 7 – 10 of the Guidelines.  Those sections set out considerations that are to apply in particular circumstances, for example where the applicant will be providing short-term locum services or will be providing services at an Aboriginal and Torres Strait Islander specific primary health care service.

Subsection 6(2) provides that the primary consideration for making decisions on applications for exemptions is whether the location for which the exemption is sought is in a DWS for the type of medical practitioner applying for the exemption (namely a specialist in a particular specialty, or a GP or other non-specialist).

Subsection 6(3) provides that the following may also be considered when assessing an application for an exemption under this section:

• whether the applicant’s registration as a medical practitioner is subject to any conditions (paragraph 6(3)(a));
• whether the applicant’s visa allows them to practise medicine or undertake clinical training as a medical practitioner (paragraph 6(3)(b));
• whether the applicant has entered into, or commenced negotiations to enter into, an agreement to provide professional services at the relevant location (paragraph 6(3)(c));
• whether the applicant is seeking to replace another OTD or FGAMS who practised privately at the location and held an exemption for the location, and whose Medicare provider number for the location has been cancelled.  The other OTD or FGAMS must have provided services at the location within the last 12 months (paragraph 6(3)(d));
• whether the applicant is seeking to provide private medical services at a location during the after-hours period (paragraph 6(3)(e));
• if the location to which the application relates is not in a DWS in respect of the type of practitioner applying for an exemption, whether the applicant commenced negotiations to provide services at the practice location while the location was considered to be a DWS (paragraph 6(3)(f); and
• any other matters the Minister considers relevant (paragraph 6(3)(g)).

Subsection 6(4) provides that in section 6 a reference to a person who held an exemption for the location includes a reference to a person to whom a class exemption applied.  This subsection is for the avoidance of doubt.

Section 7 – Considerations for exemption – provision of services at Commonwealth funded Aboriginal and Torres Strait Islander primary health care service

Subsection 7(1) provides that section 7 applies where the applicant for an exemption will be providing, or has commenced negotiations to provide, services at an Aboriginal and Torres Strait Islander specific primary health care service.  These are primary health care organisations that predominantly service Aboriginal and Torres Strait Islander clients.  A direction under subsection 19(2) of the Act must be in force in respect of the organisation (see subsection 5(1) of the Guidelines).

Where section 7 applies, subsection 7(2) provides that application for exemptions may not be assessed according to whether the Aboriginal and Torres Strait Islander specific primary health care service is in a DWS for the type of medical practitioner seeking the exemption.  The subsection also provides that the Minister may take into account those matters set out in paragraphs 6(3)(a)-(e) of the Guidelines and any other matters he or she considers relevant.

This section aims to increase the number of medical practitioners providing private services to Aboriginal and Torres Strait Islander populations, even where those populations are located in major cities or are not otherwise located in areas of medical workforce shortage.

Section 8 – Considerations for exemption – spouses

Subsection 8(1) provides that the section applies where the applicant is the spouse of:

• a medical practitioner who is not prevented from providing Medicare-eligible services by section 19AB of the Act – in other words a medical practitioner who is not an OTD or FGAMS, or an OTD or FGAMS who has a current section 19AB exemption or who falls into one of the classes to which the prohibition on payments does not apply, for example OTDs or FGAMS who first became medical practitioners before 1 January 1997; or
• a person who:

-          holds a General skilled migration visa following assessment by a relevant assessing authority as having a skilled occupation or a migration occupation in demand (at the relevant time); 

-          migrated to Australia within the last 10 years with the intention of working in that occupation; and

-          is currently employed in, volunteers in or is undertaking training in that occupation.

In all cases the spouse of the applicant must ordinarily reside in Australia.

Where this section applies, subsection 8(2) provides that when assessing an application for an exemption, whether the location to which the application relates is in a DWS for the relevant type of medical practitioner is not to be taken into account.  The Minister may take into account the matters set out in paragraphs 6(3)(a)-(e) of the Guidelines and any other matters he or she considers relevant.

Section 9 – Considerations for exemption – provision of locum services

Subsection 9(1) provides that section 9 applies where the applicant for an exemption has entered into, or has started negotiations to enter into, an agreement to provide locum services at a particular location for a maximum period of six months and the applicant has not previously provided locum services at the same practice under a section 19AB(3) exemption related to the provision of locum services.

The addition of paragraph 9(1)(c) clarifies that a doctor may not have multiple locum placements at any one practice. 

Where a locum arrangement or proposed locum arrangement would be for more than six months, the general considerations at section 6 of the Guidelines  apply unless one of the other ‘exceptions’ to section 6 such as provision of services at an Aboriginal and Torres Strait Islander primary health care service applies.

Subsection 9(2) provides that in deciding whether to grant an exemption to such an applicant, whether the location is in a DWS for the relevant type of medical practitioner is not to be taken into account.

Subsection 9(2) also provides that the Minister may take into account the matters set out in paragraphs 6(3)(a) – (e) of the Guidelines and any other matters the Minister considers relevant.

Section 10 – Considerations for class exemptions

Subsection 19AB(3) of the Act provides that an exemption may be granted to a class of persons.

Subsection 10(1) of the Guidelines provides that section 10 applies to decisions in respect of exemptions for a class of persons.  In these circumstances, subsection 10(2) provides that the Minister is not required to consider whether members of the class will be providing services within a DWS, and can take into account any matters he or she considers relevant.

Section 11 – Conditions

Subsection 19AB(4) of the Act provides that the Minister may make exemptions subject to any conditions he or she thinks fit.

Subsection 11(1) provides that except in special circumstances, all exemptions must be subject to the condition that they will only be applicable to a particular practice location, for example a particular medical practice, health centre or hospital.  However, subsection 11(2) provides that this does not apply to exemptions made in respect of a class of practitioners.

Subsection 11(3) provides that an exemption may be made subject to the condition that it only applies after hours.  ‘After hours’ is defined in subsection 5(1) of the Guidelines as all day Saturday, Sunday or public holidays and before 8:00 a.m. and after 6:00 p.m. on any other day.

Subsections 11(4) and (5) provide that the Minister is not limited in the conditions that he or she may place on an exemption by subsections 11(1) or 11(3), and that in making decisions about imposing conditions on an exemption the Minister may take into account any matters he or she considers relevant.

Section 12 – Period of Exemption

Subsection 12(1) provides that applications for exemptions cannot be backdated and may be time limited to cease on a date specified in the exemption instrument.  

Subsection 12(2) provides that where an exemption is granted to a person to provide locum services, the exemption must be specified to cease on a day no later than six months from the date of commencement of the exemption.

Section 13 – Delegation

Subsection 13(1) provides that the Minister may delegate some or all of his or her powers or functions under the Guidelines, other than the delegation power, to an officer. 

Subsection 13(2) provides that ‘officer’ has the same meaning as in subsection 131(4) of the Act, namely:

• an officer of the Department of Health;
• a person performing the duties of an office in the Department of Health;
• the Chief Executive Medicare; or
• an APS employee within the Department of Human Services.

STATEMENT OF COMPATIBILITY FOR A BILL OR LEGISLATIVE INSTRUMENT THAT RAISES HUMAN RIGHTS ISSUES

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