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2019-2020
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
HEALTH INSURANCE AMENDMENT (ADMINISTRATION) BILL 2020
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Health, the Hon Greg Hunt MP)
HEALTH INSURANCE AMENDMENT (ADMINISTRATION) BILL 2020
OUTLINE
The purpose of the Health Insurance Amendment (Administration) Bill 2020 (the Bill)
is to make minor administrative changes to the Health Insurance Act 1973 (the Act).
These changes relate to Australian Government administrative processes only and do
not affect the existing arrangements for patients or health professionals under the
Medicare Benefits Schedule (MBS). The Bill:
removes the requirement in the Act for the MBS services tables to cease
annually; and
removes redundant provisions and definitions in the Act.
Remove the annual cessation of the MBS services tables
Subsections 4(1), 4AA(1) and 4A(1) of the Act provide that regulations may prescribe
tables of medical, diagnostic imaging and pathology services which set out items of
services, the fees applicable for each item, and rules for interpreting the tables. These
regulations are collectively known as the 'MBS services tables', and they provide the
legal basis for the $26 billion in Medicare benefits paid each year.
The Act provides that the MBS services tables cease to be in force annually. As a
result, these regulations need to be remade each year to ensure that Medicare benefits
can continue to be available to patients.
Repealing and remaking the MBS services tables was previously the simplest way to
maintain accurate and up-to-date records, as there was no whole-of-government
process of managing legislative instruments at the time.
This process is now redundant, as the Legislation Act 2003 requires compilations of
all legislative instruments to be published on the Federal Register of Legislation.
The requirements in the Act create unnecessary administrative work and create a
remote, but catastrophic, risk that if the cessation date is reached, the MBS service
tables will cease. This will affect patient access to clinically relevant health services.
Parliamentary scrutiny, as set out in the Legislation Act 2003, of all changes to the
MBS service tables will be maintained.
Remove redundant provisions and definitions
The Bill removes several provisions from the Act which no longer reflect current
administrative practice. This includes:
removing references to the Medical Benefits Advisory Committee (MBAC).
The Act enables the Minister to seek MBAC's view on new listings or to
preclude payment of benefits in certain circumstances. MBAC has not been
active for more than 20 years. The Minister receives advice on listings from
non-statutory committees, such as the Medical Services Advisory Committee
and the clinician-led MBS Review Taskforce;
removing the requirement for optometrists, or employers of optometrists, to
enter into an undertaking with the Minister (to become a 'participating
optometrist') as a condition of rendering an MBS optometry service. These
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undertakings have not existed since 2016. Medicare benefits are available
where certain services are performed by an 'optometrist';
removing section 18 which formerly dealt with the repayment of Medicare
benefits where a person receives compensation or damages for an injury that
incurs medical expenses. The Health and Other Services (Compensation) Act
1995 now administers the recovery of Medicare benefits in circumstances
where a person receives compensation or damages;
removing subsections 16(4) and (5) which specify a redundant calculation for
determining Medicare benefits payable for anaesthesia services performed on
a patient receiving two or more operations. With the introduction of the
Relative Value Guide system for anaesthesia in 2001, the need for this
calculation is no longer required; and
removing section 10C which required the Minister to establish an independent
review of the Extended Medicare Safety Net benefit capping arrangements,
and to table that review in Parliament. This section is defunct as the evaluation
report was tabled in each House of Parliament on 4 July 2011.
The Bill will also remove definitions in subsection 3(1) which are no longer used in
the Act or the regulations.
Financial Impact Statement
The Bill has no financial impact.
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Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011
HEALTH INSURANCE AMENDMENT (ADMINISTRATION) BILL 2020
The Health Insurance Amendment (Administration) Bill 2020 (the Bill) 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 Bill
The purpose of the Bill is to make minor administrative changes to the Health
Insurance Act 1973 (the Act). These changes relate to Australian Government
administrative processes only and do not affect the existing arrangements for patients
or health professionals under the Medicare Benefits Schedule (MBS).
The Bill removes the requirement in the Act for the MBS services tables to cease
annually. These provisions were originally introduced to require an annual remake of
each MBS service table to provide an accurate and up-to-date record of the MBS. It is
now redundant as the Legislation Act 2003 requires compilations of all legislative
instruments to be published on the Federal Register of Legislation.
The Bill will also remove several provisions in the Act which no longer reflect current
administrative practice. The Bill will also remove definitions in subsection 3(1) which
are no longer used in the Act or the regulations.
Human rights implications
This Bill 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 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.
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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 Bill supports continued access to Medicare benefits. The amendments remove the
annual risk that services specified in the MBS tables will cease.
Analysis
The amendments made by this Bill do not affect persons who are entitled to Medicare
benefits, the amount of benefit to which those persons are entitled, or which persons
can render Medicare-eligible services. The changes relate to Australian Government
administrative processes only.
The removal of the provisions in the Act for the MBS services tables to cease to have
effect annually will mitigate the remote but catastrophic risk, that an administrative
error could affect the right to health and the right to social security. If the MBS
services tables were not remade by the cessation date, the relevant MBS services
would cease to have effect. Patient access to clinically relevant health services would
be affected as there would be no legal authority to pay Medicare benefits.
The other amendments simply remove redundant provisions and definitions in the
Act, or make consequential changes as a result of those amendments.
Conclusion
The Bill is compatible with human rights as it promotes the protection of the human
rights contained in Articles 9 and 12 of the ICESCR.
The Hon Greg Hunt MP, Minister for Health
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HEALTH INSURANCE AMENDMENT (ADMINISTRATION) BILL 2020
NOTES ON CLAUSES
Clause 1 - Short Title
This clause provides that the Health Insurance Amendment (Administration) Bill
2020 (the Bill), once enacted, may be cited as the Health Insurance Amendment
(Administration) Act 2020.
Clause 2 - Commencement
This clause provides that the Bill commences the day after it receives Royal Assent.
Clause 3 - Schedules
This clause provides that each Act that is specified in a Schedule to the Bill is
amended or repealed as set out in the applicable items in the Schedule concerned, and
any other item has effect according to its terms.
The Bill amends the Health Insurance Act 1973 (the Act) and makes consequential
amendments to the Health and Other Services (Compensation) Act 1995(the HOSC
Act) and the Veterans' Entitlements Act 1986.
SCHEDULE 1 -- AMENDMENTS
Health and Other Services (Compensation) Act 1995
Items 1 and 2 make consequential amendments to the HOSC Act to remove
references to section 18 of the Act, which is being repealed as it is no longer in use for
recovery of Medicare benefits for compensation matters. The amendments to the
HOSC Act do not change the existing arrangements for determining the repayment
amount of Medicare benefit in relation to medical expenses incurred by a person who
is receiving compensation.
Item 1 amends the definition of 'medicare benefit' in the HOSC Act to remove the
reference to section 18 of the Act, which is repealed by item 16 below.
Item 2 repeals paragraph 42(1)(e) of the HOSC Act. Section 42 empowers the Chief
Executive Medicare or an authorised officer to compel the disclosure of information
or documents in certain circumstances that may assist in determining matters relating
to compensation claims. Paragraph (1)(e) provides that one such circumstance is
where the information or document may be relevant to the question of whether the
Minister should make a determination under subsection 18(1) of the Act.
Health Insurance Act 1973
Items 3 to 29 make minor administrative changes to improve the operation of the Act.
The amendments can be categorised as:
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Repeal of redundant definitions
Items 3 and 5 repeal the following definitions in subsection 3(1) of the Act:
Australian Capital Territory Health Authority;
excessive diagnostic imaging service;
My Health Record System Operator;
Pathology Services Table Committee;
registered healthcare recipient; and
registered repository operator.
These definitions do not appear elsewhere in the Act and are not used in regulations
made under this Act. Item 3 will also remove the definition of participating
optometrist (see below).
Removal of references to 'participating optometrist'
Items 3, 4, 6, 7, 18, 21 to 27 and 29 remove references to 'participating optometrist'.
Historically, optometrists (or employers of optometrists) were required to enter into
an undertaking with the Minister (to become a 'participating optometrist') as a
condition of rendering an eligible MBS optometry service.
An undertaking put additional requirements on optometrists in comparison to most
other Medicare-eligible providers. In particular, an undertaking required that
participating optometrists were subject to a charging cap which limited the fees that
optometrists could set for their own services.
The charging cap was removed on 1 January 2015 to enable optometrists to set their
own fees in a similar manner to other health professionals under Medicare. On 1 April
2016, optometry services were removed from the regulations which prescribed
medical services and listed under a Health Insurance (Optometric services)
Determination 2016. When the items were moved to the determination, the rendering
provider was changed from a 'participating optometrist' as they were in regulations to
an 'optometrist' per subsection 3(1) of the Act. This enabled optometrists to render
Medicare services without entering into an undertaking.
Item 3 removes the definition of 'participating optometrist' from the Act.
Item 4 repeals and substitutes paragraph (c) of the definition of 'professional service'.
The substituted definition:
replaces 'participating optometrist' with 'optometrist';
removes services rendered on behalf of participating optometrists, which was
only relevant to include optometrists who were employees of participating
optometrists; and
replaces professional attendance with clinically relevant service, which better
reflects the range of services performed by an optometrist.
Item 6 repeals subsection 3(4A) which currently requires participating optometrists to
provide services of a kind, and at premises, covered by the undertaking for Medicare
benefit to be payable.
Item 7 amends subsection 3(5) to omit 'a participating optometrist' and substitute
with 'an optometrist'. Subsection 3(5) of the Act generally operates so that a
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Medicare benefit is not payable, for the later service, when a person has received a
professional service and subsequently receives a professional attendance service that
is necessary for post-operative treatment purposes. The period during which this
restriction typically applies is known as the aftercare period.
Item 18 repeals sections 23A, 23B, 23D and 23DAA, which relate to the form of the
undertaking to become a 'participating optometrist', and set out the process and effect
of acceptance or refusal of this undertaking by the Minister.
Items 21 to 24 remove references to participating optometrists in Part VAA which
relates to the Professional Services Review (PSR) Scheme. In particular, participating
optometrists will no longer be:
defined as a 'practitioner' under paragraph 81(1)(c);
liable to have their undertaking revoked (wholly or in part), under paragraph
92(2)(d), as part of an agreement entered into between the Director of the PSR
and the participating optometrist; and
liable to have their undertaking revoked (wholly or in part), under paragraph
106U(1)(e), as part of a decision taken by the Determining Authority.
The amendments will not affect the ability of the PSR to review instances of potential
inappropriate practice relating to the provision of MBS optometry services. The PSR
can continue to investigate practitioners or persons who employ or engage
practitioners. Paragraph 81(1)(d) of the definition of 'practitioner' includes
optometrists who render MBS and Pharmaceutical Benefits Schedule (PBS) services.
Items 25 to 27 remove references to participating optometrists in Part VB which deals
with Medicare Participation Review Committees (MPRCs). In particular, participating
optometrists will be removed from the definition of a 'practitioner' under paragraph
124B(1)(c) and subsection 124B(3A) will be repealed.
The operations of MPRC will not be affected by these amendments. The MPRC can
continue to make determinations in relation to relevant offences or relevant civil
contraventions by a practitioner who is an optometrist. Paragraph 124B(1)(d) of the
definition of 'practitioner' continues to apply to optometrists who render MBS and
PBS services.
Item 29 will amend section 129A to replace 'participating optometrist' with
'optometrist' so the Visiting Optometrists Scheme can continue. Section 129A of the
Act allows the Minister to enter into special arrangements with participating
optometrists to ensure adequate optometric services for persons in isolated areas. This
power supports the Visiting Optometrists Scheme, which supports the provision of
optometric services in certain regional, rural and remote location where there is an
area of need.
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Repeal of provisions relating to Medicare Benefits Advisory Committees
Items 8, 17 and 20 repeal references to the defunct MBAC. These amendments will
not limit the Minister's ability to ask another expert committee for advice, such as the
non-statutory Medical Services Advisory Committee, to consider and make
recommendations about public funding of services on the MBS.
Item 8 repeals subsections 3C(1A) and (1B) of the Act which provide that the
Minister can refer questions to MBAC about whether a determination should be made
about a health service or a specified class of health services under subsection 3C(1).
Item 17 repeals section 19A of the Act. Section 19A provides a regulation-making
power to prescribe circumstances where Medicare benefits are not payable, provided
the regulations were made in accordance with a recommendation from MBAC (other
than pathology services).
Item 20 repeals Part V of the Act. Part V provides for the powers, functions and
membership of MBAC.
Repeal of annual cessation of the tables
Items 9, 11 and 13 repeal the subsections which specify the sunset period for the
regulations which contain the tables of medical (section 4), diagnostic imaging
(section 4AA) and pathology (section 4A) services. The regulations are repealed on
the day after the 15th sitting day of the House of Representatives after the end of a
period of 12 months beginning on the day on which the regulations are notified in the
Gazette.
The regulations are legislative instruments and are subject to the standard sunset
provisions in Part 4 of Chapter 3 of the Legislation Act 2003. Sunsetting ensures that
legislative instruments are regularly reviewed and only remain operative if they
continue to be relevant.
Items 10 and 12 make consequential numbering amendments in sections 4AA and
4A of the Act as a result of repealing the annual cessation requirement of the
diagnostic imaging and pathology services regulations.
Repeal of redundant provisions
Items 14, 15, 16 and 28 repeal redundant provisions relating to the treatment of
Medicare benefits for persons receiving compensation, the calculation of Medicare
benefits for anaesthesia services where multiple operations are performed, and the
requirement for the Minister to table a report into the operation of the Extended
Medicare Safety Net benefit caps. These provisions are defunct and have no
operation.
Item 14 repeals section 10C of the Act. Section 10C required the Minister to cause an
independent evaluation to be conducted of the impact and operation of determinations
made under section 10B in 2011 and to table the evaluation in Parliament. The report
of the evaluation was tabled before each House of Parliament on 4 July 2011.
Item 15 repeals subsections 16(4) and (5) of the Act. Prior to November 2001, the
Medicare benefit for an anaesthesia service was prescribed in regulations made under
Section 4 of the Act and was calculated from two components:
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basic units (known as "B" units), which represented the skill and responsibility
exercised by the anaesthetist; and
time units (known as "T" units), which represented the average anaesthetic
time taken for each service without regard to the type of anaesthetic technique
employed.
Where anaesthesia was administered in connection with two or more operations
performed on a patient on the one occasion, subsections 16(4) and 16(5) of the Act
specified the fees for the administration of anaesthetic (other than the item with the
highest schedule fee) would be reduced as prescribed. These amounts were prescribed
in the Health Insurance Regulations 1975 under section 9.
On November 2001, the anaesthesia arrangements changed to a new structure known
as the Relative Value Guide (RVG). The RVG is contained in the regulations
prescribed under section 4 of the Act, and the schedule fee calculates the Medicare
benefit for an anaesthesia service from three components:
basic units which represented the skill and responsibility exercised by the
anaesthetist relative to anatomical site and physiological impact of the
surgery;
time units which represented the actual time taken; and
modifying units for monitoring and therapeutic components when performed
in association with the administration of anaesthesia, and other modifiers to
reflect added complexities (such as patient risk factors or services performed
after hours).
Under the RVG, the anaesthesia calculation for multiple operations per subsections
16(4) and (5) of the Act does not apply as the anaesthesia service is deemed to be one
service. The calculation in the Act does not apply as there cannot be more than one
anaesthesia service associated with an operation/operations performed on a patient on
a single occasion, and subsections 16(4) and (5) could only prescribe a reduction in
the fee for the item(s) other than the greater or greatest of those amounts.
Item 16 repeals section 18. Section 18 provides that a Medicare benefit is reduced (or
not paid) where a person receives compensation or damages in relation to an injury,
and the Minister determines that whole or part of the payment shall be deemed as
related to medical expense in respect of the injury. This section has no current
operation following commencement of the Health and Other Services (Compensation)
Act 1995 on 1 February 1996. The payment and repayment of Medicare benefits in
circumstances where a person receives compensation or damages is now governed by
that Act.
Section 18 was not repealed when the Health and Other Services (Compensation) Act
1995 commenced because settlements and judgments made prior to 1 February 1996
continued to be processed under that section. Subsection 18(4A) prevented the
Minister making directions about the payment of Medicare benefits under that section
after the commencement of the Health and Other Services (Compensation) Act 1995.
All cases which pre-date the commencement of the Health and Other Services
(Compensation) Act 1995 have now been finalised, so section 18 can be repealed.
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Item 28 makes consequential amendments to subsections 126(1) and (2) to remove
references to repealed section 18 (see item 16).
Other amendments
Item 19 amends subsection 23DZA(4) to correct a drafting error. This item removes
the words 'under subsection (4)', which have no meaningful effect.
Veterans' Entitlements Act 1986
Item 30 - Subsection 93D(1) (definition of pathology service)
Item 30 makes a consequential amendment to the definition of 'pathology service' in
subsection 93D(1) of the Veterans' Entitlements Act 1986 to omit 'subsection 4A(1)'
and replace it with the renumbered provision, 'section 4A' in the Health Insurance
Act 1973.
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