Health Insurance (Section 3C Pathology Services – COVID-19) Amendment (No. 3) Determination 2020

Administered by Department of Health, Disability and Ageing

Legislation au F2020L00592 Not in force Legislative Instrument

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EXPLANATORY STATEMENT

 

Health Insurance Act 1973

 

Health Insurance (Section 3C Pathology Services – COVID-19) Amendment (No. 3) Determination 2020

 

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 (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The Table is set out in the regulations made under subsection 4A(1) of the Act, which is repealed and remade each year. The most recent version of the regulations is the Health Insurance (Pathology Services Table) Regulations 2020.

 

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 Pathology Services – COVID-19) Amendment
(No. 3) Determination 2020 is to amend the Health Insurance (Section 3C Pathology Services – COVID-19) Determination 2020 (the Principal Determination) to refer to clauses in the pathology services table, as renumbered in the Health Insurance (Pathology Services Table) Regulations 2020 (PST 2020).

 

Although Schedule 1 applies retrospectively, it is not contrary to section 12 of the Legislation Act 2003 as it does not disadvantage a person and only applies a liability on the Commonwealth for the retrospective period.

 

Consultation

Consultation was not undertaken on updating the relevant clauses in the determination as these changes are machinery in nature and do not alter the existing arrangements. There is no change to the arrangements for patients or health professionals, and Medicare will continue to subsidise those services.

 

Consultation was not undertaken on the editorial changes in the remade PST 2020 as these changes were made by the First Parliamentary Counsel under section 15V of the
Legislation Act 2003.

 

Details of the Determination are set out in the Attachment.

The Determination commences on 1 May 2020.

 

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 Pathology Services – COVID-19) Amendment (No. 3) Determination 2020

 

Section 1 – Name

 

Section 1 provides for the Determination to be referred to as the Health Insurance (Section 3C Pathology Services – COVID-19) Amendment (No. 3) Determination 2020.

 

Section 2 – Commencement

 

Section 2 provides that the Determination commences on 1 May 2020.

 

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 (Section 3C Pathology Services – COVID-19) Determination 2020 (the Principal Determination)

 

Item 1 – Subsection 7(1)

Item 1 repeals and substitutes subsection 7(1) of the Principal Determination to make a consequential amendment by replacing reference to clause 1.7 (which prescribes the meaning of a set of pathology services) and paragraph 1.7(2)(a) (which provides items where a set of pathology services does not apply) of the pathology services table (PST) with renumbered clause 1.2.9 and paragraph 1.2.9(2)(a). The clauses in the PST have been renumbered to reflect current drafting standards and formatting

 

Item 2 – Schedule 1 (item 69479)

Item 2 repeals and substitutes item 69479 to make a consequential amendment by replacing reference to clause 2.10.1 (which includes the meaning of prescribed laboratory) of the PST with clause 4.1 (which prescribes the dictionary in the PST). The meaning of prescribed laboratory has been moved to the Dictionary of the PST to reflect current drafting standards and formatting.

 

The reference to clause 2.10.1 in items 69476 and 69477 does not require to be updated, as these items refer to pathology tests that were bulk-billed between 13 March 2020 and 31 March 2020. The meaning of prescribed laboratory was provided in clause 2.10.1 in the Health Insurance (Pathology Services Table) Regulations 2019 during this period.

 

 

 

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Health Insurance (Section 3C Pathology Services – COVID-19) Amendment (No. 3) Determination 2020

 

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 Pathology Services – COVID-19) Amendment (No. 3) Determination 2020 is to amend the Health Insurance (Section 3C Pathology Services – COVID-19) Determination 2020 (the Principal Determination) to refer to the clause in the pathology services table, as renumbered in the Health Insurance (Pathology Services Table) Regulations 2020.

Although Schedule 1 applies retrospectively, it is not contrary to section 12 of the Legislation Act 2003 as it does not disadvantage a person and only applies a liability on the Commonwealth for the retrospective period

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 maintains rights to health and social security by ensuring access to publicly subsidised health services, which are clinically effective and cost-effective. 

Conclusion

This instrument is compatible with human rights as it maintains the right to health and the right to social security.

 

Elizabeth Dowd

Assistant Secretary

MBS Policy and Specialist Services Branch

Medical Benefits Division

Health Financing Group

Department of Health

Overview

The Health Insurance (Section 3C Pathology Services – COVID-19) Amendment (No. 3) Determination 2020 was enacted to amend the Health Insurance (Section 3C Pathology Services – COVID-19) Determination 2020 to refer to clauses in the pathology services table as renumbered in the Health Insurance (Pathology Services Table) Regulations 2020. The determination was introduced to ensure that the references to the pathology services table are consistent with the renumbered clauses in the regulations. The determination was made by the Minister under subsection 3C(1) of the Health Insurance Act 1973 and it commenced on 1 May 2020. The policy objective of this determination is to ensure that there is no disadvantage to any person and that the Commonwealth only incurs liability for the retrospective period. The determination does not alter the existing arrangements and Medicare will continue to subsidise the services. The determination 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.

Scope and Application

The Health Insurance (Section 3C Pathology Services – COVID-19) Amendment (No. 3) Determination 2020 applies to all relevant entities and persons affected by the amendments to the Health Insurance (Section 3C Pathology Services – COVID-19) Determination 2020, specifically those involved in the provision and reimbursement of pathology services under the Medicare system in Australia. The amendment ensures that certain health services not explicitly listed in the pathology services table are still covered under the Health Insurance Act 1973 in specified circumstances, particularly in response to the COVID-19 pandemic. The geographic and jurisdictional reach of this legislation is national, as it applies across Australia under the authority of the Commonwealth government. There are no exclusions, exemptions, or thresholds specified in the Determination itself, but the application of these provisions is subject to the conditions and circumstances outlined in the Health Insurance Act 1973 and its subsidiary regulations. The application of this Determination may be further refined or extended through subordinate instruments made under the authority of the Health Insurance Act 1973.

Key Provisions

The Health Insurance (Section 3C Pathology Services – COVID-19) Amendment (No. 3) Determination 2020 amends the Health Insurance (Section 3C Pathology Services – COVID-19) Determination 2020 by making changes to the references within the pathology services table, as renumbered in the Health Insurance (Pathology Services Table) Regulations 2020 (PST 2020). Specifically, subsection 7(1) of the Principal Determination is updated to reflect the renumbering of clause 1.7 (prescribing the meaning of a set of pathology services) and paragraph 1.7(2)(a) (providing items where a set of pathology services does not apply) to clause 1.2.9 and paragraph 1.2.9(2)(a) respectively. Similarly, item 69479 is amended to reflect the renumbering of clause 2.10.1 (which included the meaning of prescribed laboratory) to clause 4.1, which prescribes the dictionary in the PST. These amendments ensure consistency in the referencing of pathology services clauses within the determinations and regulations. The Act imposes obligations on the relevant parties to ensure that the updated references within the pathology services table are correctly applied. This includes ensuring that the correct clauses are referenced in the determinations and regulations, and that any amendments or updates to the table are reflected accurately. The Act also requires the Minister to ensure that the amendments made by the Determination do not disadvantage any person and do not apply a liability on the Commonwealth for the retrospective period, in accordance with section 12 of the Legislation Act 2003. Breach of the provisions of the Determination may result in civil or criminal consequences, depending on the nature and severity of the breach. The maximum penalties for offences under the Health Insurance Act 1973 can include fines and imprisonment. However, the Determination itself does not specify any particular offences or penalties. The penalties for breaches of the Act would be determined by the relevant courts and would depend on the specific circumstances of the breach. It is important for parties subject to the Act to ensure compliance with its provisions to avoid any potential legal consequences.

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