Health Insurance (Section 3C Diagnostic Imaging Services –Liver and Obstetric MRI Services) Amendment Determination 2019

Administered by Department of Health, Disability and Ageing

Legislation au F2019L01014 Not in force Legislative Instrument

Legislation content

EXPLANATORY STATEMENT

 

Issued by the Authority of the Minister for Health

 

Health Insurance Act 1973

 

Health Insurance (Section 3C Diagnostic Imaging Services – Liver and Obstetric MRI Services) Amendment Determination 2019

 

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 (the Table) shall, in specified circumstances and for specified statutory provisions, be treated as if it were specified in the Table.

 

The Table is set out in the regulations made under subsection 4AA(1) of the Act, which is repealed and remade each year. The most recent version of the regulations is the Health Insurance (Diagnostic Imaging Services Table) Regulations 2019.

 

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

Items 63454 and 63460 were listed on 1 May 2019 on the Medicare Benefits Schedule (MBS) to provide patients who are at least 18 weeks pregnant with access to magnetic resonance imaging  (MRI) scans under Medicare where fetal central nervous system abnormality is suspected. The items are prescribed in the Health Insurance (Section 3C Diagnostic Imaging Services – Liver and Obstetric MRI Services) Determination 2019 (the Principal Determination).

 

Specialist obstetricians can request the MRI scans if an ultrasound service has been performed and further imaging is required to confirm the diagnosis.

 

The Health Insurance (Section 3C Diagnostic Imaging Services – Liver and Obstetric MRI Services) Amendment Determination 2019 amends the Principal Determination to clarify that the preceding ultrasound service must be a tertiary ultrasound service. This change will ensure that all eligible patients who have had a tertiary ultrasound service can access items 63454 or 63460, regardless if the tertiary ultrasound was subsidised on the MBS or performed as a service to a public patient in a public hospital.

 

Consultation

Items 63454 and 63460 were recommended for listing by the Medical Services Advisory Committee (MSAC). MSAC reviews new or existing medical services or technology, and the circumstances under which public funding should be supported through listing on the MBS. This includes the listing of new items, or amendments to existing items on the MBS.

 

 

 

As part of the MSAC process, consultation was undertaken with key stakeholders, clinical experts and providers and consumer health representatives on the initial listing of the obstetric MRI items.

 

Consultation on the amended obstetric MRI items was undertaken with the Royal Australian and New Zealand College of Radiologists (RANZCR). RANZCR supports amending items 63454 and 63460 to clarify that the tertiary ultrasound prerequisite can be performed as a service provided to a public patient in a public hospital.

 

Details of the Determination are set out in the Attachment.

The Determination commences on 1 August 2019.

 

The 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 – Liver and Obstetric MRI Services) Amendment Determination 2019

 

Section 1 – Name

 

Section 1 provides for the Determination to be referred to as the Health Insurance (Section 3C Diagnostic Imaging Services – Liver and Obstetric MRI Services) Amendment Determination 2019.

 

Section 2 – Commencement

 

Section 2 provides that the Determination commences on 1 August 2019.

 

Section 3 – Authority

 

Section 3 provides that the Determination is made under subsection 3C(1) of the Health Insurance Act 1973.

 

Section 4 – Schedules

 

Section 4 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.

 

Schedule 1 – Amendments

 

Health Insurance (Section 3C Diagnostic Imaging Services – Liver and Obstetric MRI Services) Determination 2019 (the Principal Determination)

 

Item 1 – Schedule 1, Part 1

Schedule 1, Part 1 of the Principal Determination provides a table that prescribes the fee and item descriptors for a service to which 63454 or 63460 applies. Item 1 repeals this table and prescribes a new table that provides an amended item descriptor for item 63454 and 63460.

 

The amended item descriptors remove the requirement for a service to be provided under specific tertiary ultrasound items (55712, 55715, 55719, 55720, 55721, 55724, 55725 or 55727), which had inadvertently excluded tertiary ultrasound services performed on a public patient in a public hospital. Item 1 repeals and substitutes the table to ensure that all eligible patients who have had a tertiary ultrasound service (which is an ultrasound that has been performed by, or on behalf of, or at the request of a specialist who is practising in the speciality of obstetrics), can access items 63454 or 63460.

 

 

 


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 – Liver and Obstetric MRI Services) Amendment Determination 2019
 

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

Items 63454 and 63460 were listed on 1 May 2019 on the Medicare Benefits Schedule (MBS) to provide patients who are at least 18 weeks pregnant with access to magnetic resonance imaging  (MRI) scans under Medicare where fetal central nervous system abnormality is suspected. The items are prescribed in the Health Insurance (Section 3C Diagnostic Imaging Services – Liver and Obstetric MRI Services) Determination 2019 (the Principal Determination).

 

Specialist obstetricians can request the MRI scans if an ultrasound service has been performed and further imaging is required to confirm the diagnosis.

 

The Health Insurance (Section 3C Diagnostic Imaging Services – Liver and Obstetric MRI Services) Amendment Determination 2019 amends the Principal Determination to clarify that the preceding ultrasound service must be a tertiary ultrasound service. This change will ensure that all eligible patients who have had a tertiary ultrasound service can access items 63454 or 63460, regardless if the tertiary ultrasound was subsidised on the MBS or performed as a service to a public patient in a public hospital.

 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

This instrument advances the right to health and the right to social security by expanding access to patients who were previously unable to access MRI obstetric services under items 63454 and 63460 as they had not had a prerequisite specified tertiary ultrasound items. The cohort of patients who can access items 63454 and 63460 will now include patients who have had a tertiary ultrasound performed in a public hospital as a public patient.

Conclusion

This instrument is compatible with human rights as it maintains the right to health and the right to social security.

 

Renaye Lucchese

Acting Assistant Secretary

Diagnostic Imaging and Pathology Branch

Medical Benefits Division

Health Financing Group

Department of Health

Overview

The Health Insurance (Section 3C Diagnostic Imaging Services – Liver and Obstetric MRI Services) Amendment Determination 2019 was enacted to address a gap in access to magnetic resonance imaging (MRI) scans under Medicare for pregnant patients who are at least 18 weeks pregnant and have a suspected fetal central nervous system abnormality. This amendment to the Health Insurance Act 1973 was introduced by the Minister for Health and is intended to ensure that all eligible patients, including those who have had a tertiary ultrasound service performed in a public hospital as a public patient, can access MRI services under the Medicare Benefits Schedule (MBS). The amendment was made in response to feedback that clarified the prerequisite for accessing MRI services, thereby expanding the pool of eligible patients. The determination was made under the authority of subsection 3C(1) of the Health Insurance Act 1973, which allows the Minister to specify certain health services to be treated as if they were listed in the diagnostic imaging services table. This legislative instrument aims to uphold the rights to health and social security as recognised in the International Covenant on Economic, Social and Cultural Rights, by ensuring broader access to essential health services for pregnant patients.

Scope and Application

The Health Insurance (Section 3C Diagnostic Imaging Services – Liver and Obstetric MRI Services) Amendment Determination 2019 applies to persons who require magnetic resonance imaging (MRI) scans in cases where fetal central nervous system abnormality is suspected in pregnant patients who are at least 18 weeks pregnant. The amendment specifically relates to those who have undergone a tertiary ultrasound service as a prerequisite for accessing MRI services under the Medicare Benefits Schedule (MBS). This amendment extends to entities involved in the provision of these diagnostic imaging services, such as specialist obstetricians, radiologists, and public hospitals. The geographic reach of this legislation is national, as it pertains to the Australian healthcare system under the Commonwealth. The Act excludes those who have not undergone a tertiary ultrasound service, unless there are exceptional circumstances that may be considered under other provisions of the Health Insurance Act 1973. The application of this amendment can be further extended or restricted through subordinate instruments as specified by the Health Insurance Act 1973 and related regulations.

Key Provisions

The Health Insurance (Section 3C Diagnostic Imaging Services – Liver and Obstetric MRI Services) Amendment Determination 2019 amends the Health Insurance (Section 3C Diagnostic Imaging Services – Liver and Obstetric MRI Services) Determination 2019 to ensure that eligible patients who have had a tertiary ultrasound service can access magnetic resonance imaging (MRI) scans under Medicare when a fetal central nervous system abnormality is suspected. The amendment removes the requirement that the preceding ultrasound service must be provided under specific tertiary ultrasound items listed in the Medicare Benefits Schedule (MBS), thereby broadening access to patients who have had a tertiary ultrasound performed as a service to a public patient in a public hospital. Under this Determination, specialist obstetricians can request MRI scans for patients who are at least 18 weeks pregnant if an ultrasound service has been performed and further imaging is required to confirm the diagnosis. The prerequisite ultrasound service must be a tertiary ultrasound service, meaning it must be performed by, or on behalf of, or at the request of a specialist who is practising in the specialty of obstetrics. The change ensures that all eligible patients who have had a tertiary ultrasound service can access the MRI services, regardless of whether the ultrasound was subsidised on the MBS or performed as a service to a public patient in a public hospital. The Determination imposes certain obligations on parties governed by it. Specialist obstetricians must ensure that the prerequisite ultrasound service is a tertiary ultrasound service before requesting an MRI scan. Patients who are at least 18 weeks pregnant and have had a tertiary ultrasound service performed by an obstetric specialist can access the MRI services if further imaging is required to confirm a diagnosis of a fetal central nervous system abnormality. The Determination also requires that the amended items 63454 and 63460 be listed on the MBS with the revised item descriptors, which now clarify the prerequisite ultrasound service requirement. Breach of the obligations imposed by this Determination may result in civil or criminal consequences. Specifically, if specialist obstetricians request MRI scans without ensuring that the prerequisite tertiary ultrasound service has been performed, this may constitute a breach of the terms of the Determination. Similarly, if patients who have not had a tertiary ultrasound service attempt to access the MRI services, this may also constitute a breach. The maximum penalties for such breaches are not explicitly stated in the Determination, but they may include fines and other civil or criminal penalties under the Health Insurance Act 1973 and other relevant legislation.

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