EXPLANATORY STATEMENT
Veterans' Entitlements (Provisional Access to Medical Treatment) Amendment Determination No.2 2019 (Instrument 2019 No. R37)
EMPOWERING PROVISION
Subsection 88A(2) of the Veterans’ Entitlements Act 1986 (VEA).
PURPOSE
The attached instrument (Instrument 2019 No. R37) amends the Veterans' Entitlements (Provisional Access to Medical Treatment) Determination 2017 (the determination) to extend the intake period of the Provisional Access to Medical Treatment Trial (the Trial) by 9 months to 1 April 2020 and the closing date of the Trial by one year to 30 June 2020.
The instrument also replaces subsection 9(2) of the determination with new subsections (2), (3), (4) and (5) to remove ambiguity relating to when a person’s entitlement to treatment for a specified condition under the Trial ceases.
The 2017–2018 Budget provided funding for an initiative to provide provisional access to medical treatment for a “top 20” list of specified conditions. An additional $4.2 million in funding for the Trial over the 2019-20 financial year was announced in the 2019-20 Budget.
The Trial consists of two stages. Firstly, the registration (intake) stage where clients register to access medical treatment. Secondly, the access to treatment stage where the Department of Veterans’ Affairs (DVA) pays for treatment for a person who has registered.
The extension of the intake period of the Trial by a further 9 months to 1 April 2020 and the provision of treatment by twelve months to 30 June 2020 will mirror the original Trial proposal which was to close intake to the Trial three months before the provision of Treatment closed. The purpose of the staggered closing dates was to allow participants to continue to receive treatment while their claim was being determined.
The extension will enable thorough data collection, analysis and client feedback to produce a comprehensive evaluation of the Trial. The evaluation will help inform decisions in relation to the ongoing viability of the Trial past 30 June 2020.
The new subsection 9(2) provides that the entitlement of a person to treatment for a specified condition under the Trial ceases on the making of a determination at primary level to accept liability in respect of the specified condition. If liability is accepted, treatment continues under the relevant legislation relating to the person’s service. Treatment under the Trial is no longer relevant.
The new subsections 9(3), (4) and (5) provide that the entitlement of a person to treatment for a specified condition under the Trial ceases on the making of a determination at primary level to refuse liability in respect of the specified condition, unless an application for review or appeal is made. However, entitlement to treatment for the specified condition under the Trial ceases on the making of the decision on repeal or review, whether the decision is to accept or refuse liability in respect of the specified condition. This ensures that treatment for the specified condition is not interrupted while an appeal or review is being undertaken. If liability is accepted, treatment continues under the relevant legislation relating to the person’s service.
CONSULTATION
Section 17 of the Legislation Act 2003 requires the rule-maker to be satisfied that any consultation that is considered appropriate and reasonably practicable to undertake, has been undertaken.
Consultation has occurred within DVA. The proposed extension continues access to the Trial and the new subsections 9(2), (3), (4) and (5) are consistent with how DVA has provided treatment under the Trial since it commenced on 1 July 2017. Consequently, the consultation that occurred during the development of the original beneficial Legislative Instrument is considered as still relevant.
The measure implemented by this instrument is entirely beneficial in nature in terms of its impact on Australian Defence Force members and former members.
In these circumstances it is considered that the requirements of section 17 of the Legislation Act 2003 have been met.
RETROSPECTIVITY
Except for item 6 of the Schedule, the instrument will be taken to have commenced on 1 July 2019. The amendment made by item 6 of the Schedule will be taken to have commenced on 1 July 2017 immediately after the determination commenced.
The retrospective commencement will not contravene subsection 12(2) of the Legislation Act 2003 (a provision of a legislative instrument is of no effect if it takes effect before registration and disadvantages a person or imposes liabilities on a person other than the Commonwealth) because the changes implemented by the attached instrument are beneficial in nature; the changes do not disadvantage any person or impose a liability on a person other than the Commonwealth.
The instrument extends the intake period of the Trial by a further 9 months to 1 April 2020 and the provision of treatment by twelve months to 30 June 2020.
The new subsection 9(2) provides that the entitlement of a person to treatment for a specified condition under this instrument ceases on the making of a determination at primary level to accept liability in respect of the specified condition. If liability is accepted, treatment continues under the relevant legislation relating to the person’s service.
The new subsections 9(3), (4) and (5) provide that the entitlement of a person to treatment for a specified condition under the Trial continues while an appeal or review is being undertaken, following a determination at primary level to refuse liability in respect of the specified condition. However, entitlement to treatment for the specified condition under the Trial ceases on the making of a decision on repeal or review, whether the decision is to accept or refuse liability in respect of the specified condition. The new subsections 9(2), (3), (4) and (5) are consistent with how DVA has provided treatment under the Trial since it began on 1 July 2017. If liability is accepted on review or appeal, treatment continues under the relevant legislation relating to the person’s service.
DOCUMENTS INCORPORATED BY REFERENCE
None.
REGULATORY IMPACT
Nil.
HUMAN RIGHTS STATEMENT
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
The attached legislative instrument engages and promotes the Right to Health.
Human rights implications
The Right to Health is contained in article 12(1) of the International Covenant on Economic Social and Cultural Rights. The Right to Health is the right to the enjoyment of the highest attainable standard of physical and mental health. The UN Committee on Economic Social and Cultural Rights has stated that health is a fundamental human right indispensable for the exercise of other human rights. Every human being is entitled to the enjoyment of the highest attainable standard of health conducive to living a life in dignity.
Overview
The instrument varies the determination to extend the intake period of the Trial by a further 9 months to 1 April 2020 and the provision of treatment by twelve months to 30 June 2020. This will allow new clients to register for treatment under the Trial during the extension period, and extend the treatment period for existing clients.
The new subsections 9(2), (3), (4) and (5) are consistent with how DVA has provided treatment under the Trial since it commenced on 1 July 2017 and confirm that the entitlement of a person to treatment for a specified condition under this instrument continues while an appeal or review is being undertaken, following a determination at primary level to refuse liability in respect of the specified condition. Treatment also continues if liability is accepted, but not under the Trial.
Conclusion
The attached instrument promotes the Right to Health by extending the intake period and the provision of treatment under the Trial. DVA clients will benefit from the extension as they will be able to access medical treatment by participating in the Trial. The attached instrument also confirms treatment is to continue under the Trial while an appeal or review is being undertaken. Accordingly, the attached instrument is considered to be “human rights compatible”
Repatriation Commission
Rule-Maker
FURTHER EXPLANATION OF PROVISIONS
See: Attachment A
Attachment A
FURTHER EXPLANATION OF PROVISIONS
Section 1
This section provides that the name of the instrument is the Veterans' Entitlements (Provisional Access to Medical Treatment) Amendment Determination No.2 2019 (the determination).
Section 2
This section provides that the instrument is taken to have commenced on 1 July 2019, except for item 6 of the Schedule which is taken to have commenced on 1 July 2017 immediately after the determination commenced.
Section 3
This section sets out the primary legislation that authorises the making of the instrument, namely subsection 88A(2) of the Veterans’ Entitlements Act 1986 (VEA).
Section 4
This section provides that the Veterans' Entitlements (Provisional Access to Medical Treatment) Determination 2017 is varied in accordance with the item in the Schedule to this instrument.
Schedule
Item 1
This item omits from section 4 the words:
“Provisional treatment is available in respect of claims made on or after 1 July 2017 and before 1 July 2019 for a 2-year trial period from 1 July 2017 to 30 June 2019.
Entitlement to provisional treatment for a specified condition under this instrument will however cease on the making of a determination at primary level, or on application for review or appeal, to refuse liability for the claim in respect of the specified condition.”.
The omitted words are replaced with:
“Provisional treatment is available in respect of claims made on or after 1 July 2017 and before 1 April 2020.
Entitlement to provisional treatment for a specified condition under this instrument will however cease in the circumstances set out in subsections 9(2),(3),(4) and (5).”.
The amendments are consequential upon the other amendments made by this instrument.
Item 2
This item omits from paragraph 7(1)(a) the words “1 July 2019” and replaces them with “1 April 2020”.
Item 3
This item omits from subparagraph 7(1)(d)(ii) the words “1 July 2019” and replaces them with “1 April 2020”.
Item 4
This item omits from paragraph 8(a) the words “1 July 2019” and replaces them with “1 April 2020”.
Item 5
This item omits paragraph 9(1)(c) and replaces it with a new paragraph which provides:
(c) is provided within the trial period from 1 July 2017 to 30 June 2020.
Item 6
This item replaces subsection 9(2) with new subsections (2), (3), (4) and (5).
The new subsection (2) provides that the entitlement of a person to treatment for a specified condition under this instrument ceases on the making of a determination at primary level to accept liability in respect of the specified condition.
Subject to subsection (4), the new subsection (3) provides that the entitlement of a person to treatment for a specified condition under this instrument ceases on the making of a determination at primary level to refuse liability in respect of the specified condition.
Subsection (4) provides that subsection (3) does not apply if an application for review or appeal is made in relation to the determination at primary level to refuse liability in respect of the specified condition.
Subsection (5), however, provides entitlement to treatment for a specified condition under this instrument ceases on the making of a decision on review or appeal if the decision, or the effect of the decision, is to accept or refuse liability in respect of the specified condition.