EXPLANATORY STATEMENT
Issued by the authority of the Minister for Local Government and Territories
Norfolk Island Legislation Amendment Act 2015
Norfolk Island Legislation Amendment (Diagnostic Imaging Transitional) Amendment (Cessation Date) Rule 2017
Authority
The Norfolk Island Legislation Amendment (Diagnostic Imaging Transitional) Amendment (Cessation Date) Rule 2017 (the Amendment Rule) is made under item 357 of Schedule 2 to the Norfolk Island Legislation Amendment Act 2015 (NILA Act).
Sub-item 357(1) of Schedule 2 of the NILA Act provides that the responsible Commonwealth Minister may, by legislative instrument, make rules prescribing matters of a transitional nature (including prescribing any saving or application provisions) relating to the amendments or repeals made by Part 1 of Schedule 2. Sub-item 357(2) provides limitations on the rule making power.
Purpose and operation
The purpose of the Amendment Rule is to amend the Norfolk Island Legislation Amendment Act Transitional Rule (Diagnostic Imaging) 2016 (the Principal Rule) which presently provides for arrangements to allow the Norfolk Island Health and Residential Aged Care Service (NIHRACS) Facility (the continued Norfolk Island Hospital) to provide Medicare rebateable diagnostic imaging services. The effect of the Amendment Rule is to extend the operation of the Principal Rule, which currently ceases operation on 1 March 2017, for an additional 6 months, that is, until 1 September 2017. However, if the NIHRACS Facility, or any part of the facility, gains ongoing registration or accreditation before 1 September 2017, the deemed registration or accreditation (as appropriate) under the Principal Rule will cease.
The NILA Act implements the Norfolk Island reforms and, as a result, legislation implementing Australian taxation, social security, immigration, biosecurity, customs and some health arrangements (including the Medicare Scheme established under the Health Insurance Act 1973 (the HI Act)), were extended to Norfolk Island from 1 July 2016.
From 1 July 2016, the Principal Rule has deemed:
- the NIHRACS Facility to be diagnostic imaging (DI) premises registered on the DI Register (the Register) under section 23DZQ of the HI Act;
- any DI equipment located at the NIHRASC Facility immediately before 1 July 2016 to be equipment of a type listed on the Register for the premises;
- the NIHRACS Facility to be DI premises accredited for certain DI procedures under a DI accreditation scheme; and
- Norfolk Island to be a remote area for the purposes of the DI remote area exemption scheme, and deem certain medical practitioners on the island to hold remote area exemptions and be included on the Register of Participating Practitioners.
Medicare benefits are not payable for any DI service rendered by or on behalf of a medical practitioner unless the procedure is provided using equipment ordinarily located at DI premises listed on the Register and that is of a type listed for the premises on the Register.
Medicare benefits are also not payable for any DI service unless the procedure is carried out at premises accredited for that procedure under a DI accreditation scheme established under section 23DZZIAA of the HI Act.
As the NIHRACS Facility did not hold registration or accreditation when the Medicare Benefits Scheme commenced operation on Norfolk Island on 1 July 2016, the Principal Rule enables Medicare rebateable DI services to be available on Norfolk Island to eligible Norfolk Island residents from that date.
Medicare rebateable DI services are either (R)-type (referred) or (NR)-type (non-referred). A Medicare benefit is usually not payable for an (R)-type service unless it is provided pursuant to a written request from another medical practitioner or certain other health professionals. In remote areas with a limited medical workforce, it may be difficult to meet this requirement. While in many cases this is not a problem because a corresponding (NR)-type service can be substituted, not all (R)-type services have an (NR)-type equivalent.
To ensure patients in remote areas are not disadvantaged, subsection 16B(7) of the HI Act removes the referral requirement for (R)-type services for which there is no corresponding (NR)-type service where:
- the service is provided in a designated remote area;
- the rendering practitioner has a remote area exemption in respect of a location in that remote area; and
- the practitioner is registered on the Register of Participating Practitioners.
The Principal Rule deems Norfolk Island to be a remote area, deems medical practitioners employed or engaged by the NIHRACS and who are members of the Royal Australian College of General Practitioners or the Australian College of Rural and Remote Medicine to hold a remote area exemption under section 23DX of the HI Act in respect of the NIHRACS Facility and deems those practitioners to be listed on the Register of Participating Practitioners under section 23DSC of the HI Act.
The Principal Rule will currently cease on 1 March 2017. Since the commencement of the Principal Rule, however, it has become apparent that further time is needed for the NIHRACS Facility to obtain ongoing registration and accreditation as a result of standard application and assessment processes. Accordingly, the Amendment Rule will extend the operation of the Principal Rule for an additional 6 months, which will now cease no later than 1 September 2017. However, if the NIHRACS Facility, or any part of the facility, gains ongoing registration or accreditation before 1 September 2017, the deemed registration or accreditation (as appropriate) under the Principal Rule will cease earlier.
The Amendment Rule comes into effect the day after its registration.
A Statement of Compatibility with Human Rights is set out at Attachment A.
Details of the Amendment Rule are set out at Attachment B.
Consultation
The Department of Infrastructure and Regional Development has consulted the Department of Health on the extension of the Principal Rule, and with the NSW Ministry of Health and South Eastern Sydney Local Health District as the organisations with the day to day oversight of the services affected.
The Amendment Rule is a legislative instrument for the purposes of the Legislation Act 2003.
ATTACHMENT A
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Norfolk Island Legislation Amendment (Diagnostic Imaging Transitional) Amendment (Cessation Date) Rule 2017
The Norfolk Island Legislation Amendment (Diagnostic Imaging Transitional) Amendment (Cessation Date) Rule 2017 (the Amendment Rule) 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 Legislative Instrument
The Norfolk Island Legislation Amendment Act 2015 (NILA Act) implements the Commonwealth’s Norfolk Island reforms. As a result of the operation of the NILA Act, legislation implementing Australian taxation, social security, immigration, biosecurity, customs and some health arrangements (including the Medicare Scheme established under the Health Insurance Act 1973), were extended to Norfolk Island from 1 July 2016.
The Norfolk Island Legislation Amendment Act Transitional Rule (Diagnostic Imaging) 2016 (the Principal Rule) currently establishes transitional arrangements to enable Medicare rebateable diagnostic imaging (DI) services to be provided on Norfolk Island from the Norfolk Island Health and Residential Aged Care Service (NIHRACS) Facility.
The Principal Rule currently deems:
- the NIHRACS Facility to be diagnostic imaging premises registered on the Diagnostic Imaging Register (the Register) under section 23DZQ of the Health Insurance Act 1973 (the HI Act);
- any diagnostic imaging (DI) equipment located at the NIHRACS Facility immediately before 1 July 2016 to be equipment of a type listed on the Register for the premises; and
- the NIHRACS Facility to be DI premises accredited for certain DI procedures under a DI accreditation scheme under section 23DZZIAA of the HI Act. The procedures for which the NIHRACS Facility will be deemed to be accredited include general ultrasound, X-ray, mammography, angiography and fluoroscopy.
A Medicare benefit is not payable for any DI service rendered by or on behalf of a medical practitioner unless the procedure is provided using equipment ordinarily located at DI premises listed on the Register. The equipment must also be of at type listed on the Register for the premises.
Medicare benefits are also not payable for any DI service unless the procedure is carried out at premises accredited for that procedure under a DI accreditation scheme.
The NIHRACS Facility did not hold registration or accreditation when the Medicare Scheme commenced operation on Norfolk Island on 1 July 2016. The Principal Rule currently makes Medicare rebateable DI services available on Norfolk Island to eligible Norfolk Island residents.
Medicare rebateable DI services are either (R)-type (referred) or (NR)-type (non-referred). A Medicare benefit is usually not payable for an (R)-type service unless it is provided pursuant to a written request from another medical practitioner or certain other health professionals. In remote areas with a limited medical workforce, it may be difficult to meet this requirement. While in many cases this is not a problem because a corresponding (NR)-type service can be substituted, not all (R)-type services have an (NR)-type equivalent.
To ensure patients in remote areas are not disadvantaged, the requirement for a referral for (R)-type services for which there is no corresponding (NR)-type service does not apply where the service is provided in a designated remote area in respect of which the rendering practitioner has a remote area exemption and where the practitioner is registered on the Register of Participating Practitioners.
The Principal Rule deems Norfolk Island to be a remote area, deems medical practitioners employed or engaged by the NIHRACS and who are a member of the Royal Australian College of General Practitioners or the Australian College of Rural and Remote Medicine to hold a remote area exemption in respect of the NIHRACS Facility and deem those practitioners to be listed on the Register of Participating Practitioners.
The Principal Rule will currently cease on 1 March 2017. The Amendment Rule will extend the operation of the Principal Rule for an additional 6 months, which will now cease no later than 1 September 2017, to allow further time for the NIHRACS Facility time to obtain ongoing registration and accreditation as a result of standard application and assessment processes. However if the NIHRACS Facility, or any part of the facility, gains ongoing registration or accreditation before 1 September 2017, the deemed registration or accreditation (as appropriate) will cease earlier.
Human rights implications
The Principal Rule engages Articles 2 and 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR).
Medicare benefits provide Commonwealth subsidisation for expenses incurred for private medical treatment. Medicare benefits are payable in relation to a range of diagnostic procedures.
The Amendment Rule, by extending the operation of the Principal Rule, will ensure that there is no interruption in Norfolk Island residents being able to access Medicare benefits for diagnostic imaging services provided on Norfolk Island because of the further time it may take the NIHRACS to apply for and obtain relevant registrations, accreditations and approval of its diagnostic imaging premises.
The limit on the types of diagnostic imaging procedures for which the NIHRACS Facility is deemed to be accredited reflects the diagnostic imaging equipment currently located on Norfolk Island and used to provide services to residents of Norfolk Island. This is a reasonable and proportional limitation on the right to health for residents of Norfolk Island.
The Principal Rule, as amended by the Amendment Rule, assists in the progressive realisation by all appropriate means of the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.
Conclusion
The Amendment Rule is compatible with human rights as it advances the protection of human rights, in particular the rights to health and social security. Any limitations on those rights are rational and proportional.
ATTACHMENT B
DETAILS OF THE NORFOLK ISLAND LEGISLATION AMENDMENT (DIAGNOSTIC IMAGING TRANSITIONAL) AMENDMENT (CESSATION DATE) RULE 2017
PART 1 - Preliminary
Section 1 – Name of rule
This section provides that the name of the rule is the Norfolk Island Legislation Amendment (Diagnostic Imaging Transitional) Amendment (Cessation Date) Rule 2017 (the Amendment Rule).
Section 2 – Commencement
This section provides that the rule commences on the day after it is registered.
Section 3 - Authority
This section provides that the Amendment Rule is made under item 357 of Schedule 2 of the Norfolk Island Legislation Amendment Act 2015.
Section 4 – Schedules
This section provides that each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.
Schedule 1 – Amendments
Norfolk Island Legislation Amendment Act Transitional Rule (Diagnostic Imaging) 2016
Item 1 – Section 1
Item 1 repeals and substitutes section 1 of the Principal Rule. The effect of this amendment is to change the name of the Principal Rule to ensure its consistency with the relevant Office of Parliamentary Counsel drafting direction as to the naming of legislative instruments.
Item 2 – Section 3
Item 2 amends section 3 of the Principal Rule by omitting “1 March 2017” and substituting “1 September 2017”. The effect of this amendment is to change the date the Principal Rule will cease from 1 March 2017 to 1 September 2017. However, if the NIHRACS Facility, or any part of the facility, gains ongoing registration or accreditation before 1 September 2017, the deemed registration or accreditation (as appropriate) will cease earlier (see subsections 6(7) and 7(4) of the Principal Rule).