Federal Register of Legislation - Australian Government

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Determinations/Health as made
This instrument amends the Health Insurance (Section 3C General Medical Services - General Practitioner Telehealth Services) Determination 2018 and Health Insurance (Section 3C General Medical Services – Other Medical Practitioner) Determination 2018 to repeal eight interim items for video conference general practice services to patients in flood affected areas in Queensland.
Administered by: Health
Registered 07 Jun 2019
Tabling HistoryDate
Tabled HR02-Jul-2019
Tabled Senate02-Jul-2019
To be repealed 17 Sep 2019
Repealed by Division 1 of Part 3 of Chapter 3 of the Legislation Act 2003

EXPLANATORY STATEMENT

 

Issued by the Authority of the Minister for Health

 

Health Insurance Act 1973

 

Health Insurance Legislation Amendment (Flood Affected Areas) Determination 2019

 

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 general medical 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The Table is set out in the regulations made under subsection 4(1) of the Act, which is repealed and re-made each year. The most recent version of the regulations is the Health Insurance (General Medical Services Table) Regulations 2019.

 

Subsection 33(3) of the Acts Interpretation Act 1901 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 Legislation Amendment (Flood Affected Areas) Determination 2019 (the Determination) is to repeal eight interim items for video conference general practice services to patients in flood affected areas in Queensland. The items will be repealed on 1 July 2019.

 

In March 2019, eight interim items (2095, 2144, 2180, 2193, 899, 901, 905, and 906) were introduced to the Health Insurance (Section 3C General Medical Services - General Practitioner Telehealth Services) Determination 2018 and the Health Insurance (Section 3C General Medical Services – Other Medical Practitioner) Determination 2018 to allow general practitioners and other medical practitioners to provide temporary access to general practice services via video conference to patients in flood affected local government areas in Queensland.

 

These eight interim items were only intended to be included temporarily to allow flood affected patients to continue accessing general practice services via video conference. Patients will continue to be able to access general practice services provided by general practitioners and other medical practitioners working in general practice via face-to-face attendances.

 

Consultation

Consultation on the interim items was undertaken with the Rural Doctors Association of Australia (RDAA). The RDAA, which is a peak professional body representing rural and remote doctors, recommended the listing of temporary video conference general practice items to allow flood affected patients to continue accessing general practice services.

 

Details of the Determination are set out in the Attachment.

The Determination commences on 1 July 2019.

 

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 Legislation Amendment (Flood Affected Areas) Determination 2019

 

Section 1 – Name

 

Section 1 provides for the Determination to be referred to as the Health Insurance Legislation Amendment (Flood Affected Areas) Determination 2019 (the Determination).

 

Section 2 – Commencement

 

Section 2 provides that the Determination commences on 1 July 2019.

 

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 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 General Medical Services - General Practitioner Telehealth Services) Determination 2018 (Principal GP Telehealth Determination)

 

Item 1 – Subsection 4(1) (definition of flood affected eligible area)

Item 1 provides that the definition of ‘flood affected eligible area’ in subsection 4(1) of the Principal GP Telehealth Determination is repealed.

 

Item 2 – Schedule 1 (table items 2095, 2144, 2180 and 2193)

Item 2 provides that interim items 2095, 2144, 2180 and 2193 in Schedule 1 to the Principal GP Telehealth Determination and associated subheadings in the table are repealed.

 

Health Insurance (Section 3C General Medical Services – Other Medical Practitioner) Determination 2018 (Principal OMP Determination)

 

Item 3 – Subsection 4(1) (definition of flood affected eligible area)

Item 3 provides that the definition of ‘flood affected eligible area’ in subsection 4(1) of the Principal OMP Determination is repealed.

 

Item 4 – Schedule 1, clause 1.12.4 (table items 899, 901, 905, and 906)

Item 4 repeals interim items 899, 901, 905 and 906 from Schedule 1 to the Principal OMP Determination.


Statement of Compatibility with Human Rights

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

 

Health Insurance Legislation Amendment (Flood Affected Areas) Determination 2019

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 Legislation Amendment (Flood Affected Areas) Determination 2019 (the Determination) is to repeal eight interim items for video conference general practice services to patients in flood affected areas in Queensland. The items will be repealed from 1 July 2019.

 

The eight interim items (2095, 2144, 2180, 2193, 899, 901, 905, and 906), which were listed in March 2019, were introduced to provide temporary access to general practice services via video conference to patients in flood affected local government areas in Queensland.

 

Patients will continue to be able to access general practice services provided by general practitioners and other medical practitioners working in general practice via face-to-face attendances.

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 the right to health and the right to social security. The items were introduced to provide temporary access to general practice services via video conference to patients in flood affected local government areas in Queensland. The repeal of the items returns the availability of services to the status quo and therefore is not retrogressive in nature. Patients will still be able to access Medicare-eligible general practice services via face-to-face attendances.  

Conclusion

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

 

Celia Street

Assistant Secretary

Diagnostic Imaging and Pathology Branch

Medical Benefits Division

Health Financing Group

Department of Health