EXPLANATORY STATEMENT
Health Insurance Act 1973
Health Insurance (Section 3C General Medical Services – Cleft and Craniofacial Services) Amendment (Hospital-Only Services) 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 general medical services table (the GMST) shall, in specified circumstances and for specified statutory provisions, be treated as if it were specified in the GMST.
The GMST 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 (the GMST Regulations).
This instrument is made pursuant to subsection 33(3) of the Acts Interpretation Act 1901, which provides 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 General Medical Services – Cleft and Craniofacial Services) Amendment (Hospital-Only Services) Determination 2025 (the Amendment Determination) is to amend the Health Insurance (Section 3C General Medical Services – Cleft and Craniofacial Services) Determination 2024 to add a “(H)” flag to Medicare Benefits Schedule (MBS) item 75610.
This change is intended to provide that a service described in item 75610 may only be performed or provided in a hospital (as hospital treatment), ensuring that the service can only be rendered in the appropriate clinical location. The benefit paid for a service to which item 75610 applies will therefore be 75% of the schedule fee for that item. This change was announced in the 2025-26 Budget under the Strengthening Medicare measure. The amendment to item 75610 is a part of a broader suite of changes to the circumstances in which specified MBS services can be provided, the first phase of which was implemented in the Health Insurance Legislation Amendment (Hospital-Only Services and Other Measures) Regulations 2025.
Consultation
The Department of Health, Disability and Ageing (the department) consulted the Australian and New Zealand Association of Oral and Maxillofacial Surgeons (ANZAOMS) and the Australian Society of Plastic Surgeons (ASPS) regarding the change to MBS item 75610. ASPS was supportive, but ANZAOMS did not support the removal of the 85% benefit on the view that ANZAOMS regarded the procedure could be performed in rooms. Following subsequent consultation with the department’s medical advisors, the department determined that the service should only be provided as an in-hospital only treatment.
The Amendment Determination is a legislative instrument for the purposes of the Legislation Act 2003.
The Amendment Determination commences on 1 March 2026.
Details of the Amendment 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 General Medical Services – Cleft and Craniofacial Services) Amendment (Hospital-Only Services) Determination 2025
Section 1 – Name
Section 1 provides for the instrument to be referred to as the Health Insurance (Section 3C General Medical Services – Cleft and Craniofacial Services) Amendment (Hospital-Only Services) Determination 2025 (the Amendment Determination).
Section 2 – Commencement
Section 2 provides for the Amendment Determination to commence on 1 March 2026.
Section 3 – Authority
Section 3 provides that the Amendment 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 Amendment 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 Amendment Determination has effect according to its terms.
Schedule 1 – Amendments
Health Insurance (Section 3C General Medical Services – Cleft and Craniofacial Services) Determination 2024
Item 1 amends the descriptor to MBS item 75610 to add a “(H)” flag to the end of the descriptor. This will limit the service described in item 75610 such that it can only be performed or provided in a hospital.
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 – Cleft and Craniofacial Services) Amendment (Hospital-Only Services) 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 General Medical Services – Cleft and Craniofacial Services) Amendment (Hospital-Only Services) Determination 2025 (the Amendment Determination) is to amend the Health Insurance (Section 3C General Medical Services – Cleft and Craniofacial Services) Determination 2024 to add a “(H)” flag to MBS item 75610.
This change is intended to provide that a service described in item 75610 may only be performed or provided in a hospital, ensuring that the service can only be rendered in the appropriate clinical location. The benefit paid for a service to which item 75610 applies will therefore be 75% of the schedule fee for that item. This change was announced in the 2025-26 Budget under the Strengthening Medicare measure. The amendment to item 75610 is a part of a broader suite of changes to the circumstances in which specified MBS services can be provided, the first phase of which was implemented in the Health Insurance Legislation Amendment (Hospital-Only Services and Other Measures) Regulations 2025.
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, social security, and equality and non-discrimination.
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
The Amendment Determination will maintain the rights to health and social security by providing that a service to which MBS item 75610 applies can only be performed or provided in a hospital, reflecting contemporary and appropriate clinical practice for the service. The Amendment Determination will also maintain the right of equality and non‑discrimination, as a Medicare-eligible person (as defined in the Health Insurance Act 1973) continues to have access to all Medicare services based on clinical need consistent with a universal health insurance program.
Conclusion
This instrument is compatible with human rights; it maintains the right to health, the right to social security, and the right of equality and non-discrimination.
Louise Riley
Assistant Secretary
MBS Policy and Reviews Branch
Medicare Benefits and Digital Health Division
Health Resourcing Group
Department of Health, Disability and Ageing