EXPLANATORY STATEMENT

Issued by the Authority of the Minister for Health

Health Insurance Act 1973

Health Insurance (Section 3C General Medical Services – Additional item for reversal of a bariatric procedure) Determination 2017

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 Health Insurance (General Medical Services Table) Regulations which is remade each year.

Purpose

The purpose of the Health Insurance (Section 3C General Medical Services – Additional item for reversal of a bariatric procedure) Determination 2017 (Determination) is to introduce a new Medicare service for the surgical reversal of a bariatric procedure performed in association with an additional surgical bariatric service (items 31569 to 31581) under new Medicare item 31591.

From the commencement of this Determination, Medicare benefits will be payable under the new item 31591 for surgical reversal of an existing bariatric service when performed in association with an additional bariatric service under items 31569 to 31581. 

In practice, the service described in item 31591 may be claimed when a practitioner reverses a bariatric procedure and additionally performs another bariatric service on the same occasion (under items 31569 to 31581).

The introduction of item 31591 will provide clarity on which service to claim for reversal of a bariatric procedure when performed with other surgical bariatric services. It will remove any confusion and ensure patients receive appropriate services.

Consultation

There has been consultation with the Obesity Surgery Society of Australia and New Zealand about appropriate co-claiming and the listing of this new service is in accordance with the profession’s view about best clinical practice.  

Details of the Determination are set out in the Attachment.

The Determination commences the day after registration.

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 – Additional item for reversal of a bariatric procedure) Determination 2017

Section 1 – Name of Determination

Section 1 provides for the Determination to be referred to as the Health Insurance (Section 3C General Medical Services – Additional item for reversal of a bariatric procedure) Determination 2017.

Section 2 – Commencement

Section 2 provides that the Determination commences the day after registration.

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 medical general services table for the service. The general medical services table is a table of medical services prescribed under section 4 of the Health Insurance Act 1973. 

Section 6 – Application of provisions of the general medical services table

Section 6 specifies provisions of the general medical services table that apply in relation to item 31591.

Schedule 1 – Relevant services

Schedule 1 specifies the service and prescribes the fee for item 31591.

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 - Additional item for reversal of a bariatric procedure) Determination 2017

This Legislative 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 Legislative Instrument

The Health Insurance (Section 3C General Medical Services – Additional item for reversal of a bariatric procedure) Determination 2017 (Determination) lists the new Medicare item 31591, which provides for Medicare benefits to be payable for the surgical reversal of a bariatric procedure performed in association with an additional surgical bariatric service (items 31569 to 31581).The service described in item 31591 may be claimed when a practitioner reverses a bariatric procedure and additionally performs another bariatric service on the same occasion (under items 31569 to 31581).   

The Determination takes effect on the day after registration.

Human rights implications

The Determination 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 Determination will advance rights to health and social security by ensuring access to publicly subsidised health services which are clinically effective and cost-effective.

Conclusion

This Legislative Instrument is compatible with human rights as it has a positive effect on human rights issues.

Michael Ryan

Acting Assistant Secretary

MBS Policy and Specialist Services Branch

Medical Benefits Division

Department of Health