ATTACHMENT

 

Details of the proposed Health Insurance (Pathology Services) Regulations 2018

 

Section 1 - Name

 

This section provides for the proposed Regulations to be referred to as the Health Insurance (Pathology Services) Regulations 2018.

 

Section 2 - Commencement

 

This section provides that the proposed Regulations would commence on the day after registration. 

 

Section 3 - Authority 

 

This section provides that the proposed Regulations are made under the Health Insurance Act 1973.

 

Section 4 - Schedule(s)

 

This section provides that each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.

 

Section 5 - Definitions

This section provides the defined terms specific to the proposed Regulations and makes reference to a number of expressions which would be used in the proposed Regulations and are defined under the Health Insurance Act 1973.

 

Section 6 - Purpose of this Part

This section sets out that the purpose of this Part, being to provide the requirements that a request for pathology services must meet in order for Medicare benefits to be payable for that service.

 

Section 7 - Information about requesting practitioner

This section sets out the information which must be included in a request for a pathology service to a treating practitioner or approved pathology practitioner. For example, their surname and initials, address for their place of practice and their provider number.

 

This section also states the requirement that the requesting practitioner must have a provider number.

 

Section 8 - Information about patient

This section provides the information which must be included about the patient in a request for pathology services, and the requirement to seek the patient's consent to include their information on the request if they are a private patient in relation to a hospital.

 

This section further clarifies that if the patient's consent is not granted then the inclusion of their information must not be disclosed on the request for pathology services. This would not affect the patient's entitlement to Medicare benefits and/or private health insurance benefits for that service.

 

This section updates terminology by removing references to 'day hospital facility'. Private day hospitals are captured under section 8(1)(d) for private hospitals.

 

This section updates terminology of 'private health fund' to 'private health insurer' as reflected within the Private Health Insurance Act 2007.

 

Section 9 - Information about pathology service

This section sets out the information which a request for a pathology service must contain (subject to the requirements applying to further requests under section 11) in respect of the service. For example, pathology service requests are required to include:

a)      a description of the service;

b)      the date when it was determined to be necessary; and

c)      whether the service relates to a bodily specimen obtained from a person while they were an in-patient of a hospital and is to be performed after the person ceases to be an in-patient of a hospital.

 

This section also updates the reference from 'medical practitioner' to 'practitioner'.

 

Section 10 - Requirements applying to requests that specify an approved pathology practitioner

This section requires the treating practitioner to provide the clinical grounds, or a statement that the specification is on clinical grounds, if an approved pathology practitioner is specified on the request for pathology services.

 

Section 11 - Requirements applying to further requests

This section defines 'further requests' for pathology services. A further request is a request for pathology services which is made by an approved pathology practitioner who received the first request.

 

This section also clarifies that further requests must include the same information which was included in the first request, unless it relates to the same pathology service and the first request is attached to the further request.

 

Section 12 - Terminating undertakings

This section provides the particulars for submitting an application for an approved pathology authority undertaking, and terminating an undertaking, for the purposes of sections 23DF and 23DH of the Health Insurance Act 1973. This section now includes the additional option of submitting a terminating undertaking electronically.

 

Schedule 1 - Repeals

 

Health Insurance (Pathology Services) Regulations 1989

 

Item 1

This item repeals in whole the Health Insurance (Pathology Services) Regulations 1989.

 

 

Statement of Compatibility with Human Rights

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

 

Health Insurance (Pathology Services) Regulations 2018

This Disallowable 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 Disallowable Legislative Instrument

The Health Insurance Act 1973 (the Act) sets out the principles and definitions governing the Medicare Benefits Schedule. Part II of the Act provides for the payment of Medicare benefits for professional services rendered to eligible persons, including section 16A of the Act which sets out the requirements that pathology services must meet to allow Medicare benefits to be paid.

 

Paragraph 16A(4)(b) of the Act provides that a request for pathology services must be made in accordance with the Health Insurance (Pathology Services) Regulations 1989 (the current Regulations) in order for Medicare benefits to be payable in respect of that pathology service.

 

The purpose of the Health Insurance (Pathology Services) Regulations 2018 (the proposed Regulations) is to remake the current Regulations before they sunset.  The proposed Regulations are a remake of existing government policy and do not change the status quo for industry.

 

As the Regulations are a remake of the existing regulations and do not change the status quo for government policy, industry has not been consulted specifically regarding the proposed Regulations. However, industry continues to be consulted more generally on an ongoing basis and is largely supportive of retaining status quo.

Human rights implications

The Regulations engage 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

The Regulations will maintain rights to health and social security by ensuring access to publicly subsidised health services which are clinically effective and cost-effective.

The requirements of pathology services which attract a Medicare benefit have not be amended, but rather clarified to ensure they best reflect existing government policy.

Conclusion

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

 

Greg Hunt

Minister for Health