EXPLANATORY STATEMENT
Health Insurance Act 1973
Health Insurance (Section 3C – Diabetes Testing in Aboriginal and Torres Strait Islander Primary Health Care Sites) Determination 2025
Subsection 3C(1) of the Health Insurance Act 1973 (the Act) provides that the Minister may, by legislative instrument, determine that a health service not specified in an item in the pathology services table (the PST) shall, in specified circumstances and for specified statutory provisions, be treated as if it were specified in the PST.
The PST is set out in the regulations made under subsection 4A of the Act. The most recent version of the regulations is the Health Insurance (Pathology Services Table) Regulations 2020 (the PST Regulations).
This instrument is made pursuant to subsection 33(3) of the Acts Interpretation Act 1901 (AIA), which provides that a power to make a legislative or administrative instrument includes the power to repeal, rescind, revoke, amend, or vary that instrument in the same manner and subject to the same conditions.
Purpose
The purpose of the Health Insurance (Section 3C – Diabetes Testing in Aboriginal and Torres Strait Islander Primary Health Care Sites) Determination 2025 (the 2025 Determination) is to repeal and remake the Health Insurance (Diabetes Testing in Aboriginal and Torres Strait Islander Primary Health Care Sites) Determination 2015 (the 2015 Determination), which is due to sunset on 1 April 2026.
The 2025 Determination enables Medicare benefits to be payable for point of care pathology testing for the diagnosis and management of diabetes in Aboriginal and Torres Strait Islander primary health care sites, under the Quality Assurance in Aboriginal and Torres Strait Islander Medical Services (QAAMS) Program. The QAAMS Program is funded by the Department of Health, Disability and Ageing (the department), and provides a culturally appropriate and clinically effective diabetes diagnosis and management service for First Nations people.
The 2025 Determination provides for on-site testing at the time of patient consultation for three specific diabetes related tests, as set out in the following items:
- item 73839 – diabetes diagnosis blood test;
- item 73840 – diabetes management blood test; and
- item 73844 – diabetes management urine test.
No policy authority was sought for the making of the 2025 Determination, as the remake and repeal of the 2015 Determination is administrative and machinery in nature. The scope and operation of the 2025 Determination and the 2015 Determination are identical, and the 2025 Determination ensures that Medicare benefits for the pathology services listed in the 2015 Determination continue to be available following the sunsetting of that instrument.
Consultation
Consultation with industry was not undertaken on the 2025 Determination, as the 2025 Determination is a one-for-one remake of the 2015 Determination (subject to minor drafting changes) and is considered administrative in nature. There are no changes to the scope or functions of Medicare services in the 2025 Determination compared to the 2015 Determination.
The 2025 Determination is a legislative instrument for the purposes of the Legislation Act 2003.
The 2025 Determination commences on 1 March 2026.
Details of the 2025 Determination are set out in the Attachment.
Authority: Subsection 3C(1) of the
Health Insurance Act 1973
ATTACHMENT
Details of the Health Insurance (Section 3C – Diabetes Testing in Aboriginal and Torres Strait Islander Primary Health Care Sites) Determination 2025.
Section 1 – Name
Section 1 provides for the instrument to be referred to as the Health Insurance (Section 3C – Diabetes Testing in Aboriginal and Torres Strait Islander Primary Health Care Sites) Determination 2025 (2025 Determination).
Section 2 – Commencement
Section 2 provides for the 2025 Determination to commence on 1 March 2026.
Section 3 – Authority
Section 3 provides that the 2025 Determination is made under subsection 3C(1) of the Health Insurance Act 1973.
Section 4 – Schedules
Section 4 of the 2025 Determination provides that each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.
Section 5 – Definitions
Section 5 defines terms used in the 2025 Determination.
Section 6 – Circumstances where this instrument applies
Section 6 specifies the circumstances in which the 2025 Determination applies to relevant services. Specifically, the 2025 Determination applies to a relevant service where the service is rendered by or on behalf of a medical practitioner, the rendering practitioner or the organisation for which they work is participating in the QAAMS Program, the service is provided in accordance with the QAAMS Program, and the rendering practitioner has determined the service to be necessary for their patient.
Section 7 – Treatment of relevant services
Section 7 provides that a relevant service provided in accordance with the 2025 Determination shall be treated - for relevant provisions of the Health Insurance Act 1973, the National Health Act 1953 and regulations made under those Acts - as if it were both a professional service and a pathology service and as if there were an item specified in the pathology services table for the service.
Schedule 1 – Relevant services
Schedule 1 specifies the services and the associated fees for items 73839, 73840 and 73844 in Group P9.
Schedule 2 – Repeals
Schedule 2 repeals the whole of the Health Insurance (Diabetes Testing in Aboriginal and Torres Strait Islander Primary Health Care Sites) Determination 2015.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Health Insurance (Section 3C – Diabetes Testing in Aboriginal and Torres Strait Islander Primary Health Care Sites) Determination 2025.
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 (Section 3C – Diabetes Testing in Aboriginal and Torres Strait Islander Primary Health Care Sites) Determination 2025 (the 2025 Determination) is to repeal and remake the Health Insurance (Diabetes Testing in Aboriginal and Torres Strait Islander Primary Health Care Sites) Determination 2015 (the 2015 Determination), which is due to sunset on 1 April 2026.
The 2025 Determination enables Medicare benefits to be payable for point of care pathology testing for the diagnosis and management of diabetes in Aboriginal and Torres Strait Islander primary health care sites, under the Quality Assurance in Aboriginal and Torres Strait Islander Medical Services (QAAMS) Program. The QAAMS Program is funded by the Department of Health, Disability and Ageing (the department), and provides a culturally appropriate and clinically effective diabetes diagnosis and management service for First Nations people.
The 2025 Determination provides for on-site testing at the time of patient consultation for three specific diabetes related tests, as set out in the following items:
- item 73839 – diabetes diagnosis blood test;
- item 73840 – diabetes management blood test; and
- item 73844 – diabetes management urine test.
No policy authority was sought for the making of the 2025 Determination, as the remake and repeal of the 2015 Determination is administrative and machinery in nature. The scope and operation of the 2025 Determination and the 2015 Determination are identical, and the 2025 Determination is intended to ensure that Medicare benefits for the pathology services listed in the 2015 Determination continue to be available following the sunsetting of that instrument.
Human rights implications
This instrument engages Articles 3, 9 and 12 of the International Covenant on Economic Social and Cultural Rights (ICESCR), specifically the rights to equality and non-discrimination, 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 the right to health and the right to social security by ensuring patient access to subsidised pathology services that are clinically relevant. This instrument also promotes the right of equality and non-discrimination by facilitating QAAMS-supported health services in rural and remote locations across Australia, where there may otherwise be barriers in accessing rapid pathology testing. It achieves this by ensuring that Aboriginal and Torres Strait Islander communities continue to have access to Medicare benefits when receiving diabetes specific pathology testing services described in MBS items 73839, 73840 and 73844, and supporting culturally appropriate and clinically effective management of diabetes in Aboriginal and Torres Strait Islander communities.
Conclusion
This instrument is compatible with human rights as it maintains the right to health and the right to social security, and promotes and the right of equality and non-discrimination.
Mary Warner
Assistant Secretary
Diagnostic Imaging and Pathology Branch
Medicare Benefits and Digital Health Division
Health Resourcing Group
Department of Health, Disability and Ageing