Health Insurance (Section 3C General Medical Services – General Practice Attendance for Assessing Patient Suitability for a COVID-19 Vaccine) Amendment (Definition of Booster Dose) Determination 2022

Administered by Department of Health, Disability and Ageing

Legislation au F2022L00452 Not in force Legislative Instrument

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EXPLANATORY STATEMENT

 

Health Insurance Act 1973

 

Health Insurance (Section 3C General Medical Services – General Practice Attendance for Assessing Patient Suitability for a COVID-19 Vaccine) Amendment (Definition of Booster Dose) 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 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.

 

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 Australian Government is committed to offering every person in Australia access to safe and effective COVID-19 vaccines at no cost.

 

On 22 December 2021, the Australian Government announced a new temporary item was to be made available to support general practitioners to provide COVID-19 booster doses. The item (93666), which pays a $10 incentive on top of existing items when a patient receives a COVID-19 booster vaccination, became available on 23 December 2021.

The purpose of the Health Insurance (Section 3C General Medical Services – General Practice Attendance for Assessing Patient Suitability for a COVID-19 Vaccine) Amendment (Definition of Booster Dose) Determination 2022 (the Amendment Determination) is to amend the Health Insurance (Section 3C General Medical Services – General Practice Attendance for Assessing Patient Suitability for a COVID-19 Vaccine) Determination 2021 to amend the definition of booster dose and insert a definition for primary dose of a COVID-19 vaccine.

The amended definition of booster dose will provide that a booster dose is any dose of a COVID-19 vaccine that is not a primary dose. The definition of primary dose will provide that a primary dose is a dose in accordance with the primary schedule of a COVID-19 vaccine as set out in the guidance published by the Australian Technical Advisory Group on Immunisation (ATAGI) titled ‘ATAGI statement on defining 'up-to-date' status for COVID-19 vaccination’ as at 10 February 2022. This ATAGI guidance is freely available on the Department of Health’s website at https://www.health.gov.au/news/atagi-statement-on-defining-up-to-date-status-for-covid-19-vaccination.

These changes will ensure appropriate claiming of item 93666 by general practitioners for booster doses for patients who have more than two doses of a COVID-19 vaccine as part of their primary schedule of the vaccine.

Consultation

Consultation was not undertaken for this change as it is of a technical nature and made to align the Medicare Benefits Schedule with current ATAGI advice.

 

Details of the Amendment Determination are set out in the Attachment.

The Amendment Determination commences on 1 April 2022.

 

The Amendment 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 – General Practice Attendance for Assessing Patient Suitability for a COVID-19 Vaccine) Amendment (Definition of Booster Dose) Determination 2022

 

Section 1 – Name

 

Section 1 provides for the Amendment Determination to be referred to as the Health Insurance (Section 3C General Medical Services – General Practice Attendance for Assessing Patient Suitability for a COVID-19 Vaccine) Amendment (Definition of Booster Dose) Determination 2022.

 

Section 2 – Commencement

 

Section 2 provides that the Amendment Determination commences on 1 April 2022.

 

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 – COVID-19 vaccine amendments

 

Health Insurance (Section 3C General Medical Services – General Practice Attendance for Assessing Patient Suitability for a COVID-19 Vaccine) Determination 2021 (Principal Determination)

 

Amendment item 1 amends the Principal Determination to amend the definition of booster dose to include all doses of a COVID-19 vaccine that are not a primary dose. A new definition for primary dose is also inserted, which provides that primary dose means a dose in accordance with the primary schedule of a COVID-19 vaccine as set out in the guidance published by the Australian Technical Advisory Group on Immunisation (ATAGI) titled ‘ATAGI statement on defining 'up-to-date' status for COVID-19 vaccination’ as at 10 February 2022. This ATAGI guidance is freely available on the Department of Health’s website at https://www.health.gov.au/news/atagi-statement-on-defining-up-to-date-status-for-covid-19-vaccination

 


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 – General Practice Attendance for Assessing Patient Suitability for a COVID-19 Vaccine) Amendment (Definition of Booster Dose) 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 Australian Government is committed to offering every person in Australia access to safe and effective COVID-19 vaccines at no cost.

 

On 22 December 2021, the Australian Government announced a new temporary item was to be made available to support general practitioners to provide COVID-19 booster doses. The item (93666), which pays a $10 incentive on top of existing items when a patient receives a COVID-19 booster vaccination, became available on 23 December 2021.

The purpose of the Health Insurance (Section 3C General Medical Services – General Practice Attendance for Assessing Patient Suitability for a COVID-19 Vaccine) Amendment (Definition of Booster Dose) Determination 2022 (the Amendment Determination) is to amend the Health Insurance (Section 3C General Medical Services – General Practice Attendance for Assessing Patient Suitability for a COVID-19 Vaccine) Determination 2021 to amend the definition of booster dose and insert a definition for primary dose of a COVID-19 vaccine.

The amended definition of booster dose will provide that a booster dose is any dose of a COVID-19 vaccine that is not a primary dose. The definition of primary dose will provide that a primary dose is a dose in accordance with the primary schedule of a COVID-19 vaccine as set out in the guidance published by the Australian Technical Advisory Group on Immunisation (ATAGI) titled ‘ATAGI statement on defining 'up-to-date' status for COVID-19 vaccination’ as at 10 February 2022. This ATAGI guidance is freely available on the Department of Health’s website at https://www.health.gov.au/news/atagi-statement-on-defining-up-to-date-status-for-covid-19-vaccination.

These changes will ensure appropriate claiming of item 93666 by general practitioners for booster doses for patients who have more than two doses of a COVID-19 vaccine as part of their primary schedule of the vaccine.

 

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 maintains the right to health and security and the right of equality and non-discrimination by ensuring appropriate claiming of item 93666 by general practitioners for booster doses for patients who have more than two doses of a COVID-19 vaccine as part of their primary schedule of the vaccine.

 

Conclusion

This instrument is compatible with human rights as it maintains the right to health, the right to social security and the right of equality and non-discrimination.

 

 

Nigel Murray

Assistant Secretary

Medical Benefits Division

Health Resourcing Group

Department of Health

Overview

The Health Insurance (Section 3C General Medical Services – General Practice Attendance for Assessing Patient Suitability for a COVID-19 Vaccine) Amendment (Definition of Booster Dose) Determination 2022 amends the Health Insurance (Section 3C General Medical Services – General Practice Attendance for Assessing Patient Suitability for a COVID-19 Vaccine) Determination 2021. This amendment was enacted to address the need for a precise definition of a COVID-19 booster dose and to insert a definition for a primary dose of a COVID-19 vaccine. The objective is to ensure appropriate claiming of item 93666 by general practitioners for booster doses for patients who have more than two doses of a COVID-19 vaccine as part of their primary schedule of the vaccine, in alignment with the guidance from the Australian Technical Advisory Group on Immunisation (ATAGI). The determination was made by the Minister for Health under subsection 3C(1) of the Health Insurance Act 1973 and it commenced on 1 April 2022. The Australian Government's commitment to providing safe and effective COVID-19 vaccines to all Australians at no cost underpins this amendment. By amending the definition of a booster dose and inserting a definition for a primary dose, the determination aims to facilitate the correct administration and billing of COVID-19 booster doses, ensuring that general practitioners are appropriately compensated for their services. This amendment aligns with the ATAGI guidance, which is available on the Department of Health’s website, and reflects the evolving nature of the pandemic response.

Scope and Application

The Health Insurance (Section 3C General Medical Services – General Practice Attendance for Assessing Patient Suitability for a COVID-19 Vaccine) Amendment (Definition of Booster Dose) Determination 2022 applies to general practitioners and other medical service providers who administer COVID-19 booster doses under the Medicare Benefits Schedule. This legislative instrument amends the Health Insurance (Section 3C General Medical Services – General Practice Attendance for Assessing Patient Suitability for a COVID-19 Vaccine) Determination 2021, thereby affecting the definitions of booster doses and primary doses of COVID-19 vaccines for the purposes of item 93666, which provides a $10 incentive for booster vaccinations. The Amendment Determination is made under subsection 3C(1) of the Health Insurance Act 1973 and applies across Australia, as it is a Commonwealth instrument. The Determination does not explicitly state any exclusions or exemptions but is designed to ensure that general practitioners can appropriately claim the incentive for booster doses, provided that these doses are not part of the primary vaccination schedule. The Amendment Determination also extends the application of the Health Insurance Act 1973 by clarifying the definitions within the Medicare Benefits Schedule to align with the latest guidance from the Australian Technical Advisory Group on Immunisation.

Key Provisions

The main operative sections of the Health Insurance (Section 3C General Medical Services – General Practice Attendance for Assessing Patient Suitability for a COVID-19 Vaccine) Amendment (Definition of Booster Dose) Determination 2022 (the Amendment Determination) include Section 1, which names the Amendment Determination, Section 2, which provides for the commencement date of the Amendment Determination, and Section 4, which provides that each instrument specified in a Schedule to this Amendment Determination is amended or repealed as set out in the applicable items in the Schedule concerned (subsection 4(1)). The Amendment Determination also includes Schedule 1, which amends the Health Insurance (Section 3C General Medical Services – General Practice Attendance for Assessing Patient Suitability for a COVID-19 Vaccine) Determination 2021 to amend the definition of booster dose and insert a definition for primary dose of a COVID-19 vaccine. The Amendment Determination imposes obligations and requirements on general practitioners and the Australian Government. The Amendment Determination requires general practitioners to accurately claim item 93666 for booster doses for patients who have more than two doses of a COVID-19 vaccine as part of their primary schedule of the vaccine. The Australian Government is obligated to ensure that the changes made to the Amendment Determination align with current ATAGI advice and provide appropriate claiming of item 93666 by general practitioners for booster doses for patients who have more than two doses of a COVID-19 vaccine as part of their primary schedule of the vaccine. There are no offences, penalties, or civil/criminal consequences for breach of the Amendment Determination. However, failure to accurately claim item 93666 for booster doses for patients who have more than two doses of a COVID-19 vaccine as part of their primary schedule of the vaccine may result in the general practitioner not receiving the $10 incentive for providing the booster vaccination. The Amendment Determination is a legislative instrument for the purposes of the Legislation Act 2003, and the power to make this instrument is derived from subsection 3C(1) of the Health Insurance Act 1973. The Amendment Determination is made under subsection 3C(1) of the Health Insurance Act 1973 and relies on subsection 33(3) of the Acts Interpretation Act 1901, which provides that where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character, 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.

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