EXPLANATORY STATEMENT
Health Insurance Act 1973
Health Insurance (Section 3C General Medical Services – Abdominoplasty for Postpartum Rectus Diastasis) Determination 2022
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 general medical 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 4(1) of the Act. The most recent version of the regulations is the Health Insurance (General Medical Services Table) Regulations 2021.
Purpose
The purpose of the Health Insurance (Section 3C General Medical Services – Abdominoplasty for Postpartum Rectus Diastasis) Determination 2022 (the Determination) is to list a new item (30175) for radical abdominoplasty with repair of rectus diastasis (separation of the large abdominal muscles) where the patient has an abdominal wall defect because of pregnancy.
Item 30175 must be performed in-hospital and will benefit a small subset of patients who have a diastasis of at least 3cm measured by diagnostic imaging prior to this service with moderate severity of pain or discomfort at the site of the diastasis in the abdominal wall during functional use and/or lower back pain or urinary symptoms, and who have failed to respond to non-surgical conservative treatment, including physiotherapy.
This change was recommended by the Medical Services Advisory Committee (MSAC) at their July 2021 meeting and will commence on 1 July 2022.
Consultation
The MSAC recommendation to create a new item was endorsed by the Australian Society of Plastic Surgeons and the National Association of Specialist Obstetricians & Gynaecologists.
Details of the Determination are set out in the Attachment.
The Determination commences on 1 July 2022.
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 General Medical Services – Abdominoplasty for Postpartum Rectus Diastasis) Determination 2022
Section 1 – Name
Section 1 provides for the Determination to be referred to as the Health Insurance (Section 3C General Medical Services – Abdominoplasty for Postpartum Rectus Diastasis) Determination 2022.
Section 2 – Commencement
Section 2 provides that the Determination commences on 1 July 2022.
Section 3 – Authority
Section 3 provides that the Determination 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 – Treatment of relevant services
Section 5 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 general medical services table for the service.
Section 6 – Restriction on items in this schedule—services connected with provision of pain pump for post‑surgical pain management
Subsection 6(1) of the Determination provides that an item in the Schedule of this Determination does not apply to a service described in the item if the service is provided at the same time as, or in connection with, the provision of a pain pump for post‑surgical pain management.
Schedule – Relevant services
The Schedule specifies the service and the associated fee for item 30175. Item 30175 is for radical abdominoplasty with repair of rectus diastasis (separation of the large abdominal muscles) where the patient has an abdominal wall defect because of pregnancy.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Health Insurance (Section 3C General Medical Services – Abdominoplasty for Postpartum Rectus Diastasis) Determination 2022
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 General Medical Services – Abdominoplasty for Postpartum Rectus Diastasis) Determination 2022 (the Determination) is to list a new item (30175) for radical abdominoplasty with repair of rectus diastasis (separation of the large abdominal muscles) where the patient has an abdominal wall defect because of pregnancy.
Item 30175 must be performed in-hospital and will benefit a small subset of patients who have a diastasis of at least 3cm measured by diagnostic imaging prior to this service with moderate severity of pain or discomfort at the site of the diastasis in the abdominal wall during functional use and/or lower back pain or urinary symptoms, and who have failed to respond to non-surgical conservative treatment, including physiotherapy.
This change was recommended by the Medical Services Advisory Committee (MSAC) at their July 2021 meeting and will commence on 1 July 2022.
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.
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 advances the right to health, the right to social security and the right of equality and non-discrimination by giving patients with rectus diastasis postpartum with moderate severity of pain or discomfort access to radical abdominoplasty. This change will enable patients who have failed to respond to non-surgical conservative treatment, to access more treatment options.
Conclusion
This instrument is compatible with human rights as it advances the right to health, the right to social security and the right of equality and non-discrimination.
Travis Haslam
Acting First Assistant Secretary
Medical Benefits Division
Health Resourcing Group
Department of Health