Commonwealth Numbered Regulations - Explanatory Statements

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HEALTH INSURANCE (DIAGNOSTIC IMAGING SERVICES TABLE) REGULATION 2012 (SLI NO 243 OF 2012)

EXPLANATORY STATEMENT

 

Select Legislative Instrument 2012 No. 243

 

Health Insurance Act 1973

 

Health Insurance (Diagnostic Imaging Services Table) Regulation 2012

 

Subsection 133(1) of the Health Insurance Act 1973 (the Act) provides that the Governor-General may make regulations, not inconsistent with the Act, prescribing all matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act.

 

The Act provides, in part, for payments of Medicare benefits in respect of professional services rendered to eligible persons.  Section 9 of the Act provides that Medicare benefits shall be calculated by reference to the fees for medical services, including diagnostic imaging services, set out in prescribed tables.

 

Section 4AA of the Act provides that the regulations may prescribe a table of diagnostic imaging services that sets out items of R-type and NR-type diagnostic imaging services, the amount of fees applicable in respect of each item, and rules for interpretation of the diagnostic imaging services table.  The Health Insurance (Diagnostic Imaging Services Table) Regulations 2011 (the 2011 Regulations) currently prescribe such a table.

 

Subsection 4AA(2) of the Act provides that, unless repealed sooner, regulations made under subsection 4AA(1) cease to be in force and are taken to have been repealed on the day after the fifteenth sitting day of the House of Representatives after the end of the 12 month period, commencing on the day on which the regulations were notified on the Federal Register of Legislative Instruments.  The 2011 Regulations were registered on the Federal Register of Legislative Instruments on 19 October 2011 and commenced on 1 November 2011.

 

The regulation repeals the 2011 Regulations and prescribes a new diagnostic imaging services table for the 12 month period commencing 1 November 2012.  The regulation sets out items of diagnostic imaging services that are eligible for Medicare benefits, the amount of fees applicable for each item and rules for interpretation of the table.  The new table reproduces the table contained in the 2011 Regulations with some amendments to the rules and schedule of services.

 

Changes to arrangements for Magnetic Resonance Imaging (MRI) services

 

The decision to make adjustments to the arrangements for MRI services in the 2011 Regulations arose from a review of funding for diagnostic imaging which took place from late 2009 to mid-2011.  The outcome of the review was announced in the 2011-12 Budget as part of the Diagnostic Imaging Review Reform Package (the Package). 

 

The key objective of this measure is to maintain patient access to affordable and convenient diagnostic imaging services, and to ensure that each diagnostic imaging service reflects best clinical practice and is performed by an appropriately qualified practitioner. 

 

 

The amendments to the regulations in relation to MRI services :

 

*         introduce six new MRI services that can be requested by medical practitioners other than specialists and consultant physicians for children under the age of 16 years for particular prescribed medical indications such as unexplained headaches.  The addition of six MRI items (63507, 63510, 63513, 63516, 63519 and 63522) for children under the age of 16 years is in response to the risk of unnecessary radiation to children associated with other diagnostic imaging modalities like computed tomography (CT) scans.  These items can be provided by an eligible provider using either 'eligible equipment' or 'partial eligible equipment'.

 

*         expand MRI services by granting partial Medicare eligibility to compliant existing or planned MRI equipment located in metropolitan areas for services mentioned in items 63464 to 63476, 63491 to 63497 and 63507 to 63522 by an eligible provider.  These items include existing MRI items for the staging of treatment of rectal and cervical cancer and the screening of breast cancer in women under 50 years of age, as well as the six new MRI services that can be requested by medical practitioners other than specialists and consultant physicians for children under the age of 16 years for particular prescribed medical indications.

 

 

*         make consequential amendments to the 2011 Regulations as a result of adding six new MRI services that can be requested by medical practitioners other than specialists and consultant physicians for children under the age of 16 years for particular prescribed medical indications.

 

Amendments to Radiology Services

 

The decision to make adjustments to the current arrangements for diagnostic radiology was announced in the 2012-13 Budget as the Strengthening the Provision of Quality Diagnostic Radiology Services measure.

 

The amendments introduce a requirement about who is able to provide Medicare funded      x-ray, angiography and fluoroscopy services, which are forms of diagnostic imaging procedures under the Act.  Only appropriately qualified health practitioners including medical practitioners, medical radiation practitioners and dental practitioners (only for certain items) will be able to perform these services, except when the service is performed in  specified regional, rural or remote areas.

 

Diagnostic imaging services provided in Australian Standard Geographical Classification System (ASGC) RA2-4 and RA1 areas where the location is also classified as Rural, Remote and Metropolitan Area (RRMA) 4-5 will be exempt under the measure.

 

The amendments include the annual indexation of the Medicare Benefit Schedule fee for the bulk-billing incentive items 64990 and 64991.

 

The regulation also corrects drafting errors in the 2011 Regulations.

 

Details of the regulation are set out in the Attachment.

 

The Act specifies no conditions that need to be met before the power to make the regulation may be exercised.

 

The regulation is a legislative instrument for the purposes of the Legislative Instruments Act 2003.

 

The regulation commences on 1 November 2012.

 

 

                                                                                             Authority: Subsection 133(1) of the                                                                                                         Health Insurance Act 1973

 

ATTACHMENT

 

 

Details of the Health Insurance (Diagnostic Imaging Services Table) Regulation 2012

 

Section 1 - Name of regulation

 

This section provides for the regulation to be referred to as the Health Insurance (Diagnostic Imaging Services Table) Regulation 2012.

 

Section 2 - Commencement

 

This section provides for the regulation to commence on 1 November 2012.

 

Section 3 - Repeal

 

This section repeals the Health Insurance (Diagnostic Imaging Services Table) Regulations 2011 (the 2011 Regulations).

 

Section 4 - Dictionary

 

This section provides that for the purpose of the regulation, the dictionary at the end of the regulation defines certain words and expressions.

 

Section 5 - Diagnostic imaging services table

 

This section provides that the table of diagnostic imaging services (the Table) in Schedule 1 is prescribed for the purpose of subsection 4AA(1) of the Act.

 

Schedule 1 - Diagnostic imaging services table

 

Schedule 1 sets out a diagnostic imaging service table which is similar to the Table in the 2011 Regulations except with changes to the following provisions in Part 2 - Services and fees.

 

Part 2 - Services and fees

 

Schedule 1, Part 2, Division 2.1, Group I1 - Clause 2.1.3

 

Clause 2.1.3 is a technical amendment to better align the wording of the term 'medical practitioner' with the meaning in the Act.

 

Schedule 1, Part 2, Division 2.1, Group I1 - Ultrasound

 

The item descriptor for 55600 in Group I1 is amended to remove 'participating nurse practitioners' as this service is outside the professional expertise of nurse practitioners and was not part of the original list of items to be performed by 'participating nurse practitioners'.

 

 

Schedule 1, Part 2, Division 2.3, Group I3 - Diagnostic radiology

 

Clause 2.3.1 introduces a definition of who must perform a diagnostic imaging procedure mentioned in an item in subdivision A, C, D or F of this Division.  A diagnostic imaging procedure is defined under section 3(1) of the Act as a  'procedure for the production of images (for example, x-rays, computerized tomography scans, ultrasound scans, magnetic resonance imaging scans and nuclear scans) for use in the rendering of diagnostic imaging services'.

 

Subclause 2.3.1(1) requires that a diagnostic imaging procedure must be performed by a medical practitioner, or a medical radiation practitioner employed by or under the supervision of a medical practitioner. 

 

Subclause 2.3.1(2) requires that items 57901 to 57969 must also be performed by a dental practitioner employed by or under the supervision of a medical practitioner, where the dental practitioner is able to request a diagnostic imaging service because of section 16B(2) of the Act. 

 

Subclause 2.3.1(3) provides that the requirement in subclauses 2.3.1(1) and (2) do not apply for services provided in specified rural and remote areas.

 

Subclause 2.3.1(4) provides a definition of medical radiation practitioner and the definitions of rural and remote geographical area classifications exempt from the requirement under 2.3.1.

 

Schedule 1, Part 2, Division 2.4, Group I4 - Nuclear medicine imaging

 

Subclause 2.4.2(1) is amended by removing reference to '61610' and replacing it with '61646' to correct a drafting oversight when seven additional positron emission tomography items were introduced from 1 July 2011.

 

Schedule 1, Part 2, Division 2.5, Group I5 - Magnetic resonance imaging

 

Clause 2.5.1 sets out the requirements for Medicare eligible magnetic resonance imaging (MRI) or magnet resonance angiography (MTA) services. Subclause 2.5.1(1) currently allows items 63001 to 63482 to apply to MRI or MRA services performed using 'eligible equipment' mentioned in clause 2.5.5 at the request of a specialist or consultant physician in accordance with clause 2.5.2 and in the permissible circumstance mentioned in clause 2.5.3.

 

Subclause 2.5.1(2) allows items 63464 to 63476 to apply to MRI services performed using  'partial eligible equipment' mentioned in clause  2.5.6 at the request of a specialist or consultant physician in  accordance with clause 2.5.2 and in permissible circumstance mentioned in clause 2.5.3.

 

Subclause 2.5.1(3) allows items 63491 to 63497 to apply to MRI or MRA services performed using 'eligible equipment' mentioned in clause 2.5.5  or 'partial eligible equipment' mentioned in clause 2.5.6 at the request of a medical practitioner in accordance with clause 2.5.2 and in permissible circumstances mentioned in clause 2.5.3.

 

Subclause 2.5.1(4) allows items 63507 to 63522 to apply to MRI services performed using 'eligible equipment' mentioned in clause 2.5.5 or 'partial eligible equipment' mentioned in clause 2.5.6 at the request of a medical practitioner other than a specialist or consultant physician in accordance with clause 2.5.2 and in permissible circumstances mentioned in clause 2.5.3. 

 

Clause 2.5.5 amends the definition of 'eligible equipment' to make it clear that 'eligible equipment' is equipment that is: (a) located at premises of a comprehensive practice as defined in the regulations; (b) made available to the comprehensive practice by a person who is subject to a deed with the Commonwealth that relates to the equipment and for whom the deed has not been terminated; and (c) not identified in the deed with the Commonwealth as 'partial eligible equipment'.

 

Clause 2.5.6 introduces a definition of 'partial eligible equipment' to make it clear that 'partial eligible equipment' is equipment that is: (a) located at premises of a comprehensive practice; (b) made available to the comprehensive practice by a person who is subject to a deed with the Commonwealth that relates to the equipment and for whom the deed has not been terminated; and (c) identified in the deed with the Commonwealth as 'partial eligible equipment'.

 

Clause 2.5.7 is amended to include items 63507 to 63522 to be included in the meaning of 'Scan'.

 

Clauses 2.5.9 restricts the maximum number of services that a patient can receive in a 12 month period to three services for items 63507 to 63522.

 

Subdivision E             Subgroup 33 of Group 15

 

This subdivision introduces six MRI services for children under the age of 16 years that would be requested by a medical practitioner other than a specialist or a consultant physician.  These items are for indications of the head, spine, knee, hip, elbow and wrist.

 

Schedule 1, Part 2, Division 2.6 Group I6 - Management of bulk-billed services

 

The fees and benefits for bulk billing incentive items 64990 and 64991, following indexation, will be amended as follows: item 64990 - new fee of $7.05, an increased from $6.90; and item 64991 - new fee of $10.65, an increased from $10.45.

 

Dictionary

 

The definition of ASGC is updated to means the document titled Australian Standard Geographical Classification (ASGC) (ABS catalogue number 1216.0) published by the Australian Statistician in July 2012.

 

The definition of medical practitioner is removed as this is defined in the Act.

 

The amendments introduce a definition of partial eligible equipment for Group I5, in clause 2.5.6 of Schedule 1.

 

The amendments clarify the categories of RRMA4 and 5 and RA1 to 4.

 

Statement of Compatibility with Human Rights

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

 

Health Insurance (Diagnostic Imaging Services Table) Regulation 2012

 

   This Legislative 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 Legislative Instrument

The decision to make adjustments to the arrangements for MRI services arose from a review of funding for diagnostic imaging which took place from late 2009 to mid-2011.  The outcome of the review was announced in the 2011-12 Budget as part of the Diagnostic Imaging Review Reform Package (the Package).

The key objective of this measure was to extend patient access to affordable and convenient diagnostic imaging services, and to ensure that each diagnostic imaging service reflects best clinical practice and is performed by an appropriately qualified practitioner.

The proposed amendments to the regulations in relation to Magnetic Resonance Imaging (MRI) services would:

*      Introduce six new MRI services that can be requested by medical practitioners other than specialists and consultant physicians for children under the age of 16 years for particular prescribed indications.  The six MRI items (63507, 63510, 63513, 63516, 63519 and 63522) for children under the age of 16 years is in response to the risk of unnecessary radiation to children associated with other diagnostic imaging modalities like computed tomography (CT) scans.  These items can be provided by an eligible provider using either 'eligible equipment' or 'partial eligible equipment'.

*      Expand MRI services by granting partial Medicare eligibility to compliant existing or planned MRI equipment located in metropolitan areas for services mentioned in items 63464 to 63476, 63491 to 63497 and 63507 to 63522 by an eligible provider.  These items would include existing MRI items for the staging of rectal and cervical cancer and the screening of breast cancer in women under 50 years of age, as well as the six new MRI services that can be requested by medical practitioner other than specialists and consultant physicians for children under the age of 16 years for particular prescribed indications.

The decision to make adjustments to the current arrangements for diagnostic radiology was announced in the 2012-13 Budget as the Strengthening the Provision of Quality Diagnostic Radiology Services measure.

The proposed amendment would:

*      Introduce a requirement about who is able to provide Medicare funded x-ray, angiography and fluoroscopy services, which are forms of diagnostic imaging procedures under the Act.  Only appropriately qualified health practitioners including medical practitioners, dental practitioners (for specified items) and medical radiation practitioners  would be able to provide these services;

*      Introduce an exemption to the measure for services performed in Australian Standard Geographical Classification System (ASGC) RA2-4 and the Rural, Remote and RA-1 areas that are also located in Metropolitan Area Classification system (RRMA) 4-5.

 

Human rights implications

The right to health

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 International Covenant on Economic, Social and Cultural Rights (ICESCR).  The UN Committee on Economic, Social and Cultural Rights (the Committee) has stated that health is a 'fundamental human right indispensable for the exercise of other human rights', and that the right to health is not to be understood as a right to be healthy, but rather entails a right to a system of health protection which provides equality of opportunity for people to enjoy the highest attainable level of health.

Right to Social Security

The right to social security is contained in article 9 of the ICESCR.  The right 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 has stated that the notion of 'the highest attainable standard of health' takes into account both the conditions of the individual and the country's available resources.  The 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 Committee has also stated that with respect to the right to social security that the qualifying conditions for benefits must be reasonable, proportionate and transparent.

There is no incompatibility with the right to health or social security because the legislation is for a legitimate objective and reasonable, necessary and proportionate in the circumstances.   

 

Conclusion

This Legislative Instrument is compatible with human rights as it does not raise any human rights issues.

 

Tanya Plibersek

 Minister for Health

 

 

 

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