EXPLANATORY STATEMENT
Issued by the Authority of the Minister for Health
Health Insurance Act 1973
Health Insurance (Section 3C Diagnostic Imaging Services – Duplex Scanning for
Erectile Dysfunction) Determination 2020
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 diagnostic imaging services table shall, in specified circumstances and for specified statutory provisions, be treated as if it were specified in the diagnostic imaging services table.
The diagnostic imaging services table is set out in the regulations made under subsection 4AA(1) of the Act. The most recent version of the regulations is the Health Insurance (Diagnostic Imaging Services Table) Regulations (No.1) 2020.
This instrument relies on subsection 33(3) of the Acts Interpretation Act 1901 (AIA). Subsection 33(3) of the AIA provides that where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws), the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.
Purpose
The purpose of the Health Insurance (Section 3C Diagnostic Imaging Services – Duplex Scanning for Erectile Dysfunction) Determination 2020 (the Determination) is to repeal and remake the Health Insurance (Duplex Scanning for Erectile Dysfunction) Determination 2010 (No. 1). The Determination will continue to provide the legal basis for Medicare Benefits Schedule items 55208 and 55211 (for the Duplex scanning services for erectile dysfunction) by Dr Christopher McMahon.
The Determination also removes NK (items for older/ aged equipment) items 55209 and 55221 to implement the Government’s response to the recommendations of the clinician-led Medicare Benefits Schedule (MBS) Review Taskforce (the MBS Review Taskforce) for diagnostic imaging services. These changes were announced in the 2019-20 Budget under the Guaranteeing Medicare – improved patient access to diagnostic imaging measure.
Items 55208 and 55211 are restricted to services provided by a specialist in diagnostic radiology, nuclear medicine, urology, general surgery (sub-specialising in vascular surgery) or a consultant physician in nuclear medicine.
It is acknowledged that there is a medical practitioner, Dr Christopher McMahon, who has experience to render Duplex scanning services for erectile dysfunction but whose services would not normally attract a Medicare rebate because he is not a specialist or consultant physician in the specialities referred to above.
On the 24 December 1996 the Minister for Health and Family Services signed Health Insurance Determination HS/6/1996 (the HS/6/1996 Determination), which provided Medicare benefits for Duplex scanning services for erectile dysfunction performed by
Dr Christopher McMahon. The Royal Australasian College of Radiologists, the Vascular Section of the Royal Australasian College of Surgeons, the Australian and New Zealand Association of Urological Surgeons and the Australian Medical Association supported the issue of the HS/6/1996 Determination.
On 3 November 1997 the Minister for Health and Family Services signed the Health Insurance Determination HS/5/1997 (the HS/5/1997 Determination), which revoked and replaced the HS/6/1996 Determination. The HS/5/1997 Determination differed from HS/6/1996 Determination in that it decreased the Schedule fee for items 55208 and 55211 in line with the fee decrease for the two equivalent items in the Table. The fee decrease was the result of the restructure of the vascular ultrasound items.
On 15 June 2010, the Delegate for the Minister for Health signed the Health Insurance (Duplex Scanning for Erectile Dysfunction) Determination 2010 (No. 1) which revoked and replaced the previous Determination, which commenced on 1 November 1997. The Health Insurance (Duplex Scanning for Erectile Dysfunction) Determination 2010 (No. 1) continued to enable Medicare benefits to be payable for Duplex scanning services rendered by
Dr Christopher McMahon. The Health Insurance (Duplex Scanning for Erectile Dysfunction) Determination 2010 (No. 1) amended the determination to link the requirements and fees payable to the equivalent items in the Table.
The Determination will continue to enable Medicare benefits to be payable for Duplex scanning services rendered by Dr Christopher McMahon.
Consultation
Consultation was not undertaken for the remake of this instrument as it is machinery in nature. However, consultation was undertaken on the changes to diagnostic imaging services that were recommended by the MBS Review Taskforce, and announced in the 2019-20 Budget under the Guaranteeing Medicare – Medicare Benefits Schedule – new and amended listings measure.
The MBS Review is conducted by expert committees and working groups focusing on specific areas of the MBS. The Taskforce endorsed reports were released for public comment prior to finalisation of the recommendations to Government. This was undertaken through the public consultation process during consideration by the Taskforce.
Details of the Determination are set out in the Attachment.
This Determination commences on 1 May 2020.
This Determination is a legislative instrument for the purposes of the Legislation Act 2003.
Authority: Subsection 3C(1) of the
Health Insurance Act 1973
ATTACHMENT
Details of the Health Insurance (Section 3C Diagnostic Imaging Services – Duplex Scanning for Erectile Dysfunction) Determination 2020
Section 1 – Name of Determination
Section 1 provides for the instrument to be referred to as the Health Insurance (Section 3C Diagnostic Imaging Services – Duplex Scanning for Erectile Dysfunction) Determination 2020.
Section 2 – Commencement
Section 2 provides that the instrument commences on 1 May 2020.
Section 3 – Authority
Section 3 provides that the instrument is made under subsection 3C(1) of the Health Insurance Act 1973.
Section 4 – Definitions
Section 4 defines terms used in the Determination.
Section 5 – Schedules
Section 5 provides that each instrument that is specified in a Schedule to this Determination is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Determination has effect according to its terms.
Section 6 – Treatment of relevant services
Section 6 provides that a clinically relevant service provided in accordance with the Determination shall be treated, for relevant provisions of the Health Insurance Act 1973 and National Health Act 1953, and regulations made under those Acts, as if it were both a professional service and a medical service and as if there were an item specified in the Table for the service.
Section 7 – Limitations
Section 7 specifies the circumstances in which the instrument applies.
The Determination will only apply to a relevant service that is rendered by a medical practitioner who is listed in Schedule 2 of the Determination. That medical practitioner must personally attend the patient at the practice location where the relevant service is performed, immediately before or for a period during the performance of the relevant service and must interpret the results of the scan and prepare a report. The patient must be referred to the medical practitioner listed in Schedule 2 of the Determination for the relevant service, by another medical practitioner. The relevant service must not be a service to which an item in Group I1 of the Diagnostic Imaging Services Table applies.
Schedule 1 – Specified health services
Schedule 1 prescribes the relevant services provided by the relevant medical practitioner.
Promoting the use of modern diagnostic imaging equipment
The instrument will promote the use of modern diagnostic imaging equipment by removing items 55209 and 55212. Currently, items have two different schedule fees (i.e. ‘mirror items’) known as schedule K and schedule NK items. Schedule K items refer to services performed on newer/upgraded equipment and schedule NK items refer to services performed on older/aged equipment. NK items have a lower Medicare rebate than K items.
The removal of schedule NK items will mean that all equipment will need to meet the new effective life age or maximum extended life age requirements for Medicare benefits to be payable. Providers will only be able to claim for services performed on newer/upgraded equipment unless they have an exemption.
Under new arrangements, the Secretary will be able to grant an exemption where a provider, through no fault of their own, is unable to upgrade their equipment prior to it reaching its effective life age or extended life age. Circumstances in which the Secretary may use his or her discretion includes unforeseen delays due to building works or deliveries of equipment.
Any exemption must be applied for prior to the equipment reaching its effective life age or maximum extended life age.
Providers will be given a maximum exemption of three months after the expiry of the effective life age or maximum extended life age of the equipment. Providers will be able to re-apply for a further exemption should there be further delays in replacing or upgrading equipment beyond the practice’s control.
If the diagnostic imaging premises is located in an outer regional, remote and very remote area, then the diagnostic imaging premises will continue to automatically be able to claim an item for diagnostic imaging service rendered, regardless of the age of the equipment. Diagnostic imaging premises located in an inner regional area will also continue to be able to apply for an exemption.
Exemptions that were granted under previous arrangements prior to 1 May 2020 will continue to apply.
Schedule 2 – Specified medical practitioner
Schedule 2 specifies the name, provider number and the practice location of the medical practitioner to whom the Determination applies. The only medical practitioner listed in
Schedule 2 is Dr Christopher McMahon.
Schedule 3 – Repeals
Schedule 3 repeals the Health Insurance (Duplex Scanning for Erectile Dysfunction) Determination 2010 (No.1).
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Health Insurance (Section 3C Diagnostic Imaging Services – Duplex Scanning for
Erectile Dysfunction) Determination 2020
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 Diagnostic Imaging Services – Duplex Scanning for Erectile Dysfunction) Determination 2020 (the Determination) is to repeal and remake the Health Insurance (Duplex Scanning for Erectile Dysfunction) Determination 2010 (No. 1). The Determination will continue to provide the legal basis for Medicare Benefits Schedule items 55208 and 55211 (for the Duplex scanning services for erectile dysfunction) by Dr Christopher McMahon.
The Determination also removes NK (items for older/ aged equipment) items 55209 and 55221 to implement the Government’s response to the recommendations of the clinician-led Medicare Benefits Schedule (MBS) Review Taskforce (the MBS Review Taskforce) for diagnostic imaging services. These changes were announced in the 2019-20 Budget under the Guaranteeing Medicare – improved patient access to diagnostic imaging measure.
Items 55208 and 55211 are restricted to services provided by a specialist in diagnostic radiology, nuclear medicine, urology, general surgery (sub-specialising in vascular surgery) or a consultant physician in nuclear medicine.
It is acknowledged that there is a medical practitioner, Dr Christopher McMahon, who has experience to render Duplex scanning services for erectile dysfunction but whose services would not normally attract a Medicare rebate because he is not a specialist or consultant physician in the specialities referred to above.
On the 24 December 1996 the Minister for Health and Family Services signed Health Insurance Determination HS/6/1996 (the HS/6/1996 Determination), which provided Medicare benefits for Duplex scanning services for erectile dysfunction performed by
Dr Christopher McMahon. The Royal Australasian College of Radiologists, the Vascular Section of the Royal Australasian College of Surgeons, the Australian and New Zealand Association of Urological Surgeons and the Australian Medical Association supported the issue of the HS/6/1996 Determination.
On 3 November 1997 the Minister for Health and Family Services signed the Health Insurance Determination HS/5/1997 (the HS/5/1997 Determination), which revoked and replaced the HS/6/1996 Determination. The HS/5/1997 Determination differed from HS/6/1996 Determination in that it decreased the Schedule fee for items 55208 and 55211 in line with the fee decrease for the two equivalent items in the Table. The fee decrease was the result of the restructure of the vascular ultrasound items.
On 15 June 2010, the Delegate for the Minister for Health signed the Health Insurance (Duplex Scanning for Erectile Dysfunction) Determination 2010 (No. 1) which revoked and replaced the previous Determination, which commenced on 1 November 1997. The Health Insurance (Duplex Scanning for Erectile Dysfunction) Determination 2010 (No. 1) continued to enable Medicare benefits to be payable for Duplex scanning services rendered by
Dr Christopher McMahon. The Health Insurance (Duplex Scanning for Erectile Dysfunction) Determination 2010 (No. 1) amended the determination to link the requirements and fees payable to the equivalent items in the Table.
The Determination will continue to enable Medicare benefits to be payable for Duplex scanning services rendered by Dr Christopher McMahon.
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.
Analysis
The instrument maintain rights to health and social security by ensuring access to publicly subsidised diagnostic imaging services which are clinically and cost-effective.
Conclusion
This instrument is compatible with human rights as it maintains the right to health and the right to social security.
David Weiss
First Assistant Secretary
Medical Benefits Division
Health Financing Group
Department of Health