EXPLANATORY STATEMENT
Health Insurance Act 1973
Health Insurance (Section 3C General Medical Services – Heart Health Assessment No.2) Amendment (Prescribed Medical Practitioner) Determination 2024
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 (GMST).
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 purpose of the Health Insurance (Section 3C General Medical Services – Heart Health Assessment No.2) Amendment (Prescribed Medical Practitioner) Determination 2024 (the Amendment Determination) is to amend the Health Insurance (Section 3C General Medical Services – Heart Health Assessment No.2) Determination 2019 (the Heart Health Determination) to apply annual fee indexation by increasing the schedule fees of the MBS items in Schedule 1 by 3.5 per cent, and will make administrative amendments following the 1 November 2023 incorporation of the Health Insurance (Section 3C General Medical Services – Other Medical Practitioner) Determination 2018 into the Health Insurance (General Medical Services Table) Regulations 2021 (the GMST).
These administrative amendments will:
- update terminology to reflect the use of ‘prescribed medical practitioner’ in the GMST; and
- simplify provisions applying to MBS items 699 and 177.
Consultation
No consultation was undertaken relating to the minor administrative changes in the Amendment Determination as the changes are consequential in nature following the incorporation of the Health Insurance (Section 3C General Medical Services – Other Medical Practitioner) Determination 2018 into the GMST.
No consultation was undertaken for the changes relating to annual indexation, as these comprise business as usual implementation of Government policy on MBS indexation, which is understood by stakeholders to be applied on 1 July of each year.
Details of the Amendment Determination are set out in the Attachment.
The Amendment Determination is a legislative instrument for the purposes of the Legislation Act 2003.
The Amendment Determination commences on 1 July 2024.
Authority: Subsection 3C(1) of the
Health Insurance Act 1973
ATTACHMENT
Details of the Health Insurance (Section 3C General Medical Services – Heart Health Assessment No.2) Amendment (Prescribed Medical Practitioner) Determination 2024
Section 1 – Name
Section 1 provides for the Amendment Determination to be referred to as the Health Insurance (Section 3C General Medical Services – Heart Health Assessment No.2) Amendment (Prescribed Medical Practitioner) Determination 2024 (the Amendment Determination).
Section 2 – Commencement
Section 2 provides that the Amendment Determination commences on 1 July 2024.
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 – Heart Health Assessment No.2) Determination 2019
Item 1 inserts a definition for prescribed medical practitioner to have the same meaning as in clause 7.1.1 of the Health Insurance (General Medical Services Table) Regulations 2021 (the GMST).
Item 2 amends section 7 to consolidate the application requirements for Medicare Benefits Schedule (MBS) items 699 and 177, which are currently set out in sections 7 and 8. This change also replaces a reference to the Health Insurance (Section 3C General Medical Services – Other Medical Practitioner) Determination 2018 (the OMP Determination) with a reference to the GMST following the incorporation of the OMP Determination into the GMST on 1 November 2023.
Item 3 repeals and replaces section 8, which currently outlines the application of MBS item 177. The application requirements for item 177 will be outlined in section 7 (refer to item 2). New section 8 will apply annual fee indexation by increasing the schedule fees of the MBS items in Schedule 1 by 3.5 per cent.
Items 4 and 5 amend MBS item 177 to omit “medical practitioner (other than a specialist or consultant physician)” and insert “prescribed medical practitioner” in accordance with 1 November 2023 changes to the GMST. This change is administrative in nature and maintains the existing arrangements for providing services under item 177.
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 – Heart Health Assessment No.2) Amendment (Prescribed Medical Practitioner) Determination 2024
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 Amendment Determination
The purpose of the Health Insurance (Section 3C General Medical Services – Heart Health Assessment No.2) Amendment (Prescribed Medical Practitioner) Determination 2024 (the Amendment Determination) is to amend the Health Insurance (Section 3C General Medical Services – Heart Health Assessment No.2) Determination 2019 (the Heart Health Determination) to apply annual fee indexation by increasing the schedule fees of the MBS items in Schedule 1 by 3.5 per cent, and will make administrative amendments following the 1 November 2023 incorporation of the Health Insurance (Section 3C General Medical Services – Other Medical Practitioner) Determination 2018 into the Health Insurance (General Medical Services Table) Regulations 2021 (the GMST).
These administrative amendments will:
- update terminology to reflect the use of ‘prescribed medical practitioner’ in the GMST; and
- simplify provisions applying to MBS items 699 and 177.
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 rights to health and social security and the right of equality and non-discrimination by applying annual indexation to the schedule fees for relevant MBS services.
This instrument also maintains the right to health, the right to social security and the right of equality and non-discrimination by implementing changes that are consequential and administrative in nature and maintain existing arrangements for heart health assessment services under the MBS.
Conclusion
This instrument is compatible with human rights as it maintains and advances the right to health and the right to social security and the right of equality and non-discrimination.
Nigel Murray
Assistant Secretary
MBS Policy and Specialist Programs Branch
Medicare Benefits and Digital Health Division
Health Resourcing Group
Department of Health and Aged Care