EXPLANATORY STATEMENT
STATUTORY RULES 1985 NO. 356
ISSUED BY AUTHORITY OF THE MINISTER FOR HEALTH
HEALTH INSURANCE ACT 1973
HEALTH INSURANCE (VARIATION OF FEES AND MEDICAL SERVICES) (NO. 40) REGULATIONS
Section 133 of the Health Insurance Act 1973 (‘the Act’) provides in part that the Governor-General may make regulations prescribing all matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act.
Schedule 1 to the Act contains a table of medical services and rules for the interpretation of the table. The table of medical services contains items which set out the description of each medical service, and the fee for the calculation of medicare benefit applicable in each State in respect of the service.
Section 4 of the Act provides that the table of medical services, items or rules of interpretation in Schedule 1 to the Act may be varied or replaced by regulations, and that regulations replacing such a table may be amended by regulations. The Health Insurance (Variation of Fees and Medical Services) (No. 37) Regulations (“the Regulations”), as amended, prescribe the present table of medical services pursuant to section 4 of the Act. This table is set out in the Schedule to the Regulations.
Section 9 of the Act provides that medicare benefit shall be calculated by reference to fees for medical services set out in the table of medical services in Schedule 1 to the Act. Medicare benefit is normally payable, in accordance with section 10 of the Act, at a rate of 85% of the relevant fee specified in the table of medical services. An additional amount of medicare benefit is payable where required to ensure that the difference between the benefit normally payable and the fee specified in the table of medical services does not exceed $10.00 in relation to a single professional service, or an aggregate of $150.00 per patient in a year in relation to multiple professional services.
The Minister for Health agreed to recommendations of the Medical Benefits Schedule Revision Committee, a non-statutory body comprising 5 representatives of the Australian Medical Association and 5 Commonwealth officers which advises the Minister on necessary revisions to the table of medical services. These recommendations involve:
• the amendment of the description of medical service in 15 items;
• the insertion of 13 new items; and
• the deletion of 5 existing items.
Regulation 3 amends the Schedule to the Regulations to give effect to the above amendments of the table. Sub-regulation 2(1) provides for these amendments to come into effect on 1 January 1986.
The regulations also make with retrospective effect a number of amendments of a remedial nature to the table of medical services as prescribed by the Regulations from 1 July 1985. These amendments concern 28 items inadvertently omitted from the table during the printing of draft statutory rules
prior to the making of the Regulations; the correction of a minor drafting error in sub-rule 8(2) of the rules of interpretation for the table; and a reversion to the superseded description of medical service in item 4319 relating to the circumcision of infants under six months of age.
The 28 items re-inserted into the table of medical services are those numbered 8552 to 8620 inclusive relating to miscellaneous operative procedures. The amendment to sub-rule 8(2) of the rules for the interpretation of the table replaces obsolete references to items 841 and 843 with their current equivalents, items 981 and 982.
The amendment of item 4319 in the table of medical services prescribed by the Regulations with effect from 1 July 1985 required the procedure of circumcision of a person under six months of age to be performed “where medically necessary” to qualify for medicare benefits. Following a reconsideration, in order that particular groups in the community might not be disadvantaged, item 4319 was restored to its earlier form, which did not so require, with effect from 1 September 1985 by the Health Insurance (Variation of Fees and
Medical Services) (No. 38) Regulations. After further assessment, it was considered necessary that this amendment should have effect from 1 July 1985 to ensure that no such disadvantage occurs in respect of item 4319 procedures performed before 1 September 1985.
Regulation 4 amends the Schedule to the Regulations to give effect to the above remedial amendments. Sub-regulation 2(2) provides for these amendments to be deemed to have come into effect on 1 July 1985. This retrospectivity of operation ensures that no person’s entitlement to medicare benefits from 1 July 1985 is adversely affected as a result of the defects in the table of medical services prescribed by the Regulations.
This retrospectivity does not in practice affect prejudicially the rights of any person (other than the Commonwealth or an authority of the Commonwealth). This is so despite the fact that since 1 September 1985, organizations registered as health benefits organizations under the National Health Act 1953 have been required to pay certain benefits in respect of services set out in the table of medical services rendered to in-patients of hospitals or day hospital
facilities. Contributions in respect of these benefits were fixed on the basis that the 28 items unintentionally omitted from 1 July 1985 remained in practice part of the table of medical services, and benefits have been paid accordingly. No disadvantage therefore occurs. This aspect is not relevant to item 4319 which has been in the amended form since 1 September 1985.
Regulation 5 and sub-regulation 2(3) provide for the repeal, from the date of their commencement, of the Health Insurance (Variation of Fees and Medical Services) (No. 38) Regulations which amended item 4319 from 1 September 1985. This is necessary to avoid possible inconsistency with the amendment of item 4319 by the current regulations.