Federal Register of Legislation - Australian Government

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Determinations/Health as made
This instrument revokes and remakes the Health Insurance (Cleft Lip and Cleft Palate Services) Determination 2012 and increases the schedule fees for the items listed by 1.5 per cent.
Administered by: Health
Registered 17 Jun 2020
Tabling HistoryDate
Tabled HR18-Jun-2020
Tabled Senate24-Aug-2020

EXPLANATORY STATEMENT

 

Health Insurance Act 1973

 

Health Insurance (Section 3C Cleft Lip and Cleft Palate Services) Determination 2020

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.

 

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 (Section 3C Cleft Lip and Cleft Palate Services) Determination 2020 (the Determination) is to repeal and remake the Health Insurance (Cleft Lip and Cleft Palate Services) Determination 2012 (the previous Determination) and prescribe a new table of cleft lip and cleft palate services from
1 July 2020. This will ensure that Medicare benefits continue to be payable for cleft lip and cleft palate services performed by orthodontists, oral and maxillofacial surgeons and dental practitioners.

 

This Determination will also apply indexation for cleft lip and cleft palate services by replacing the fees in the previous Determination with fees indexed by 1.5 per cent. This is part of the Government’s policy regarding Medicare indexation and means that patients will receive a higher Medicare benefit for these services from 1 July 2020.

Consultation

In the 2017-18 Budget, the Government announced the re-commencement of indexation of Medicare benefits under the Guaranteeing Medicare - Medicare Benefits Schedule - indexation measure. This instrument will continue the Government’s policy regarding indexation by indexing the schedule fees for these items.

 

No consultation was undertaken on this instrument as it continues the business-as-usual implementation of the Government’s policy on Medicare indexation, which is expected by stakeholders to be applied on 1 July of each year. The complete list of all indexed fees is available in the Medicare Benefits Schedule xml data file which is available for anyone to download on MBS Online (www.mbsonline.gov.au).

 

Details of the Determination are set out in the Attachment.

The Determination commences on 1 July 2020.

 

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 (Section 3C Cleft Lip and Cleft Palate Services) Determination 2020

 

Section 1 – Name

 

This provides that the Determination to be referred to as the Health Insurance (Section 3C Cleft Lip and Cleft Palate Services) Determination 2020 (the Determination).

 

Section 2 – Commencement

 

This section provides that the Determination commences on 1 July 2020.

 

Section 3 – Authority

 

This section provides that the Determination is made under subsection 3C(1) of the Health Insurance Act 1973.

 

Section 4 - Revocation

 

Section 4 revokes the previous determination the Health Insurance (Cleft Lip and Cleft Palate Services) Determination 2012

 

Section 5 – Definitions

 

Subsection 5(1) defines terms used in the Determination. A key term is ‘relevant service’ which means a service defined in paragraph 3C (8) of the Act that is specified in the Schedule to the Determination.

 

Subsection 5(2) provides that a reference to a provision of an Act or regulations, including the Act, the National Health Act 1953 and the regulations made under these Acts, is a reference to the provision as in force from time to time (as authorised by subsection 3C(3) of the Act).

 

Section 6 – Treatment of Relevant Services

 

Paragraph 6(a) provides that a relevant service specified in the Schedule to the Determination shall be treated as if it were both a professional service and a medical service for the purposes of the provisions of the Act, the National Health Act 1953 and regulations made under each Act that make provision for medical services or professional services.

 

Paragraph 6(b) provides that a relevant service specified in the Schedule to the Determination is to be treated as if there were an item in the general medical services table that related to the service and specified a fee in respect of that service, being the fee specified in the Schedule to the Determination in relation to the service.

 

 

 

 

 

Section 7 – Limitation on services

 

Subsection 7(1) provides that this section applies to the items in Parts 1 to 3 of the Schedule to the Determination and limits these services to prescribed dental patients. A note refers to section 3BA of the Act for the definition of ‘prescribed dental patient’.

 

Subsection 7(2) provides that items that include the symbol AO in Part 1 of the Schedule to the Determination are limited to services provided by a dental practitioner registered in the specialty of orthodontics or a dental practitioner who is not registered in the specialty of orthodontics but has been assessed by the Australian Society of Orthodontists as competent in the field of orthodontics, prior to 31 March 2013.

 

Subsection 7(3) provides that items that include the symbol AOS in Parts 1 and 2 of the Schedule to the Determination are limited to services provided by a dental practitioner registered prior to 1 November 2012 in the specialty of orthodontics or a dental practitioner who is not registered in the specialty of orthodontics but has been assessed by the Cleft Lip and Cleft Palate Committee of the Australian Society of Orthodontists as competent in the field of orthodontics, or a medical practitioner who is registered in the specialty of surgery in the practice of his or her field of practice of oral and maxillofacial surgery,

 

Subsection 7(6) provides that items that include the symbol AOS in Part 2 of the Schedule to the Determination are limited to services provided by a medical practitioner who is registered in the specialty of surgery in the practice of his or her field of practice of oral and maxillofacial surgery, or dentists recognised prior to 1 November 2012.

 

Subsection 7(7) provides that items that include the symbol AD in Parts 2 and 3 of the Schedule to the Determination are limited to services provided by a dental practitioner.

 

Schedule – Specified health services and fees

 

The Schedule is made in 3 Parts providing items under Category 7 – Cleft Lip and Cleft Palate services and fees in three groups:

 

Part 1 Group C1 Orthodontic services and fees

 

Provides for 23 services and fees (numbered 75001 to 75051) provided by eligible orthodontists.

 

Part 2 Group C2 Oral and maxillofacial services and fees

 

Provides for 20 services and fees (numbered 75150 to 75621) provided by eligible oral and maxillofacial surgeons if referred by an eligible orthodontist

 

Part 3 Group C3 General and prosthodontic services and fees

 

Provides for 19 services and fees (numbered 75800 to 75854) provided by a dental practitioner including provision and fitting (and adjustment) of retainers and partial dentures.

 

 


Statement of Compatibility with Human Rights

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

 

Health Insurance (Section 3C Cleft Lip and Cleft Palate Services) Determination 2020

 

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 (Section 3C Cleft Lip and Cleft Palate Services) Determination 2020 (the Determination) is to repeal and remake the Health Insurance (Cleft Lip and Cleft Palate Services) Determination 2012 (the previous Determination) and prescribe a new table of cleft lip and cleft palate services from
1 July 2020. This will ensure that Medicare benefits continue to be payable for cleft lip and cleft palate services performed by orthodontists, oral and maxillofacial surgeons and dental practitioners.

 

This Determination will also apply indexation for Cleft Lip and Cleft Palate services by replacing the fees in the previous Determination with fees indexed by 1.5%. This is part of the Government’s policy regarding Medicare indexation and means that patients will receive a higher Medicare benefit for these services from 1 July 2020.

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 furthers the right to health and the right to social security because it will increase the Medicare benefit for patients accessing the prescribed health services. This will assist patients to continue accessing clinically relevant health services, consistent with the rights to health and social security.

Conclusion

This instrument is compatible with human rights.

 

Paul McBride

First Assistant Secretary

Medical Benefits Division

Health Financing Group

Department of Health