EXPLANATORY STATEMENT
Issued by the Authority of the Minister for Health
Health Insurance Act 1973
Health Insurance (Section 3C – Midwife and Nurse Practitioner) Amendment Determination (No. 2) 2019
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 pathology services table shall, in specified circumstances and for specified statutory provisions, be treated as if it were specified in the pathology services table.
The pathology services table is set out in the regulations made under subsection 4A(1) of the Act. The most recent version of the regulations is the Health Insurance (Pathology Services Table) Regulations 2019.
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 Midwife and Nurse Practitioner) Amendment Determination (No. 2) 2019 (the Determination) is to amend the Health Insurance (Midwife and Nurse Practitioner) Determination 2015 to implement the Government’s response to Medical Services Advisory Committee (MSAC) recommendation on pathology urine microscopy testing.
In October 2017, the MSAC Executive recommended amendments to pathology urine microscopy testing. The proposed amendments delete reference to catalase testing and add the exclusion of dipstick (test strip) testing to bring the item in line with contemporary clinical practice. Catalase testing is outmoded and unreliable. The exclusion of dipstick testing is to clarify the service is for urine microscopy testing.
In the 2018-19 Budget, the Government agreed to support MSAC recommended changes to the Medicare Benefits Schedule (MBS) from 1 November 2018. The changes were announced in the Guaranteeing Medicare – Medicare Benefits Schedule – New and Amended Listings measure and included an amendment to a pathology urine microscopy item to prohibit catalase and dipstick testing.
Item 73805 was amended as part of the Health Insurance Legislation Amendment (2018 Measures No. 3) Regulations 2018 and came into effect on 1 November 2018. The change to item 73805 prohibited general practitioners (GPs) from performing catalase and dipstick testing. This Determination will update the equivalent nurse practitioner item 73832, to align with the GP item and prohibit catalase and dipstick testing.
Consultation
Consultation was undertaken as part of the MSAC process in 2017, with key stakeholders, clinical experts and providers, and consumer health representatives. At the time that item 73805 was amended to prohibit catalase and dipstick testing consultation was also undertaken with the Australian Medical Association, Royal College of Pathologists of Australasia and the Royal Australian College of General Practitioners on the pathology urine microscopy item to prohibit catalase and dipstick testing. The amendment to item 73832 for nurse practitioners is a consequential amendment to bring the item in line with contemporary clinical practice and the requirements for GPs.
Details of the Determination are set out in the Attachment.
The Determination commences on 1 November 2019.
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 Midwife and Nurse Practitioner) Amendment Determination (No. 2) 2019
Section 1 – Name
Section 1 provides for the Determination to be referred to as the Health Insurance (Section 3C Midwife and Nurse Practitioner) Amendment Determination (No. 2) 2019.
Section 2 – Commencement
Section 2 provides that the Determination commences on 1 November 2019.
Section 3 – Authority
Section 3 provides that the 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 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 Determination has effect according to its terms.
Schedule 1 – Amendments
Health Insurance (Midwife and Nurse Practitioner) Determination 2015 (the Principal Determination)
Item 1 – Schedule 2 (item 73832, column 2)
Item 1 amends item 73832 by omitting the words “whether stained or not, or catalase test”, and substituting “excluding dipstick testing,”.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Health Insurance (Section 3C Midwife and Nurse Practitioner) Amendment Determination (No. 2) 2019
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 Midwife and Nurse Practitioner) Amendment Determination (No. 2) 2019 (the Determination) is to amend the Health Insurance (Midwife and Nurse Practitioner) Determination 2015 to implement the Government’s response to Medical Services Advisory Committee (MSAC) recommendation on pathology urine microscopy testing.
In October 2017, the MSAC Executive recommended amendments to pathology urine microscopy testing. The proposed amendments delete reference to catalase testing and add the exclusion of dipstick (test strip) testing to bring the item in line with contemporary clinical practice. Catalase testing is outmoded and unreliable. The exclusion of dipstick testing is to clarify the service is for urine microscopy testing.
In the 2018-19 Budget, the Government agreed to support MSAC recommended changes to the MBS from 1 November 2018. The changes were announced in the Guaranteeing Medicare – Medicare Benefits Schedule – New and Amended Listings measure and included an amendment to a pathology urine microscopy item to prohibit catalase and dipstick testing.
Item 73805 was amended as part of the Health Insurance Legislation Amendment (2018 Measures No. 3) Regulations 2018 and came into effect on 1 November 2018. The change to item 73805 prohibited general practitioners (GPs) from performing catalase and dipstick testing. This Determination will update the nurse practitioner item 73832, to align with the GP item and prohibit nurse practitioners from performing catalase and dipstick testing.
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.
Analysis
This instrument will reflect contemporary clinical practice to ensure that patients continue to have access to health and social security through relevant subsidised pathology services on the Medicare Benefits Schedule.
Conclusion
This instrument is compatible with human rights as it maintains the right to health and the right to social security.
Nathan Hyson
Acting Assistant Secretary
Diagnostic Imaging and Pathology Branch
Medical Benefits Division
Health Financing Group
Department of Health