Commonwealth Numbered Regulations - Explanatory Statements

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HEALTH INSURANCE (PATHOLOGY SERVICES TABLE) REGULATION 2013 (SLI NO 249 OF 2013)

EXPLANATORY STATEMENT

 

Select Legislative Instrument No. 249, 2013

 

Health Insurance Act 1973

 

Health Insurance (Pathology Services Table) Regulation 2013

 

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 pathology services, set out in prescribed tables.

 

Section 4A of the Act provides that the regulations may prescribe a table of pathology services that sets out items of pathology services, the amount of fees applicable in respect of each item, and rules for interpretation of the pathology services table.  The Health Insurance (Pathology Services Table) Regulation 2012 (the 2012 Regulation) currently prescribes such a table. 

 

Subsection 4A(2) of the Act provides that, unless sooner repealed, regulations made under subsection 4A(1) cease to be in force and are taken to have been repealed on the day after the 15th sitting day of the House of Representatives after the end of the period of

12 months, commencing on the day on which the regulations are notified on the Federal Register of Legislative Instruments.  The 2012 Regulation was registered on the Federal Register of Legislative Instruments on 26 October 2012 and commenced on 1 November 2012.

 

The purpose of the regulation is to repeal the 2012 Regulation and prescribe a new pathology services table for the 12 month period commencing the day after registration.  The regulation sets out items of pathology services which are eligible for Medicare benefits, the amount of fees applicable in respect of each item and rules for interpretation of the table.  The new table reproduces the table contained in the 2012 Regulation, as amended by the Health Insurance (Pathology Services Table) Amendment Regulation 2012 (No. 3) and the Health Insurance (Pathology Services Table) Amendment Regulation 2012 (No. 4).

 

The Health Insurance (Pathology Services Table) Amendment Regulation 2012 (No. 3) commenced on 1 December 2012. The item descriptor of the genetic test item 73332 was amended to allow in situ hybridisation (ISH) testing for human epidermal growth factor receptor 2 (HER2) gene amplification to be carried out on tumour tissue taken from breast cancer patients prior to, and following, surgery.

 

 

The Health Insurance (Pathology Services Table) Amendment Regulation 2012 (No. 4) commenced on 1 January 2013.  The fees for all the items in Groups P1 to P11 of the pathology services table were decreased to recover the amount of 2011/12 expenditure incurred over the agreed 2011/12 funding cap in the Pathology Funding Agreement.  The Pathology Funding Agreement governs the Australian Government outlays for pathology services and specifies the action to be taken when the yearly caps are exceeded or not achieved. 

 

The Act specifies no conditions that need to be satisfied 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 the day after it is registered.

 

Consultation

 

As the Health Insurance (Pathology Services Table) Regulation 2013 and the new table of pathology services prescribed will reflect the 2012 Regulation with only minor administrative changes, no consultation was undertaken regarding the regulation as a whole.

 

However, at the time of the amendment regulations that varied the Health Insurance (Pathology Services Table) Regulation 2012, consultation was undertaken with craft groups, the public, clinical experts and the signatories of the Pathology Funding Agreement.  The PFA signatories comprised: the Australian Government (represented by the then Department of Health and Ageing); the Australian Association of Pathology Practices (now Pathology Australia); the Royal College of Pathologists of Australasia (RCPA) and the National Coalition of Public Pathology.

 

The Department of Human Services was consulted concerning the impact of the changes on their business operations.  The Department of Veterans' Affairs was advised of the changes to ensure that their schedule of benefits for veterans could be amended if necessary.

 

 

 

                     Authority:  Subsection 133(1) of the    

                                        Health Insurance Act 1973

 

 

Text Box: Statement of Compatibility with Human Rights Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 Health Insurance (Pathology Services Table) Regulation 2013 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 instrument repeals the Health Insurance (Pathology Services Table) Regulation 2012, and in accordance with section 4A of the Health Insurance Act 1973, prescribes a table of pathology services containing: items of pathology services; the amount of fees applicable for each item; and rules for the interpretation of the table. Human Rights Implications The regulation engages Articles 2, 9 and 12 and 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 has also stated that the 'highest attainable standard of health' takes into account 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 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. Conclusion The prescribing of a new table of pathology services will advance the human rights to health and social security by assisting private patients with financial costs associated with receiving clinically relevant pathology services. The Hon. Peter Dutton, MP Minister for Health  

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 


This material is provided to persons who have a role in Commonwealth legislation, policy and programs as general guidance only and is not to be relied upon as legal advice.  Commonwealth agencies subject to the Legal Services Directions 2005 requiring legal advice in relation to matters raised in connection with this template must seek that advice in accordance with the Directions.

 

 

 

 

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