EXPLANATORY STATEMENT

Issued by the Authority of the Minister for Health and Ageing

Health Insurance Act 1973

Health Insurance (Midwife and Nurse Practitioner) Determination 2011

Background

Subsection 3C(1) of the Health Insurance Act 1973 (the Act) provides that the Minister may determine in writing that a health service not specified in an item in the General Medical Services Table (the GMST), the Pathology Services Table (the PST) or the Diagnostic Imaging Services Table (the DST) shall, in specified circumstances and for the purposes of specified statutory provisions, be treated as if it were specified in the GMST, the PST or the DST, as appropriate. The GMST is set out in the Health Insurance (General Medical Services Table) Regulations, the PST is set out in the Health Insurance (Pathology Services Table) Regulations and the DIST is set out in the Health Insurance (Diagnostic Imaging Services Table) Regulations. Each of these tables is re-made each year.

Participating midwives and nurse practitioners (eligible midwives and nurse practitioners who provide services in a collaborative arrangement with a medical practitioner) were given access to the Medicare Benefits Schedule (MBS) and Pharmaceutical Benefits Scheme (PBS) in November 2010, including the ability to request appropriate Medicare-eligible diagnostic imaging and pathology services, and to prescribe pharmaceuticals under the PBS. Medicare items for participating midwives and nurse practitioners were created by the Health Insurance (Midwife and Nurse Practitioner) Determination 2010 (the Previous Determination).

Purpose

The purpose of the Health Insurance (Midwife and Nurse Practitioner) Determination 2011 (the Determination) is to:

·         add those telehealth services provided by participating midwives and nurse practitioners that were previously included in the Health Insurance (Telehealth Services) Determination 2011 (the Telehealth Services Determination), due to the cessation of that instrument;

·         index the fees of the midwife and nurse practitioner general and telehealth services from 1 November 2011; and

·         create new items for basic pathology services to be provided by participating nurse practitioners, with effect from 1 November 2010.

Operation

The Determination continues the midwife and nurse practitioner items in the Previous Determination and also includes, from 1 November 2011, those midwife and nurse practitioner items which were previously set out in the Telehealth Services Determination. The Telehealth Services Determination ceased on 31 October 2011.

Those midwife and nurse practitioner items previously in the Telehealth Services Determination have been included in the Determination for the purpose of ensuring that a Medicare benefit continues to be payable for assistance provided to a patient by a participating midwife or nurse practitioner at the patient-end of a video consultation with a specialist. The items aim to:

·         increase access to specialist services for people in locations where it is often difficult to obtain specialist consultations, such as in rural and regional areas, and in aged care services and Aboriginal Medical Services; and

·         assist in reducing the time and costs associated with accessing health care for those patients, such as travel and accommodation costs.

The Determination also creates new items for nurse practitioner pathology services which were inadvertently omitted from the Previous Determination. As part of the implementation of the wider measures to enable participating midwives and participating nurse practitioners to access Medicare services, the Health Insurance (Prescribed Pathology Services) Determination 2000 was amended with the intention of allowing participating nurse practitioners to provide certain basic pathology tests as Medicare eligible services from 1 November 2010. Due to an oversight, no arrangements were made for such services to be ‘professional services’ within the meaning of the Act, with the result that the services were not Medicare eligible. The Determination rectifies that oversight for the purpose of enabling the payment of Medicare benefits for prescribed pathology services provided by participating nurse practitioners since 1 November 2010, where the associated claim has yet to be submitted.

The Determination applies an annual fee increase to items to reflect the increase that applies to most items in the GMST from 1 November 2011. Nurse practitioner pathology items are excluded from this increase, as pathology items in the PST are not subject to annual indexation.

Commencement

Sections 1, 2, 3, 9A, 10, 12 and Part 1 of Schedule 2 (Nurse practitioner pathology services and fees) commence retrospectively from 1 November 2010. It was the policy of the Australian Government that a Medicare benefit be payable for the relevant nurse practitioner pathology services from 1 November 2010 and the retrospective commencement of these provisions is required to enable the future payment of benefits for these services provided from that date. This retrospectivity does not offend subsection 12(2) of the Legislative Instruments Act 2003. Subsection 3C(2) of the Act specifically provides for the making of retrospective determinations under section 3C and the Commonwealth is the only party who is adversely affected by the retrospective commencement of these provisions of the Determination.

The remainder of the Determination commences on 1 November 2011, including section 2A of the Determination which revokes the Previous Determination.

The effect of the differing commencement dates is as follows:

·         a Medicare benefit is payable for future claims for those prescribed pathology services which have been provided by participating nurse practitioners from 1 November 2010;

·         Medicare benefits for general midwife and nurse practitioner services, and telehealth midwife and nurse practitioner services, will remain payable under the Previous Determination and the Telehealth Services Determination until 1 November 2011;

·         from 1 November 2011, the Previous Determination and the Telehealth Services Determination cease, and benefits for general and telehealth midwife and nurse practitioner services will be payable under the Determination at an indexed rate. Benefits for nurse practitioner pathology services will remain payable at the same rate.

Details of the Determination are set out in the Attachment.

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

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

Consultation

No consultation has occurred as the inclusion of the telehealth support items in the Determination, as well as the annual indexation of fees specified in items for midwifery services and nurse practitioner services (excluding nurse practitioner pathology services), are consequential changes.

Further, consultation around enabling participating nurse practitioners to provide the basic pathology services specified in the Determination occurred prior to the amendment of the Health Insurance (Prescribed Pathology Services) Determination 2000 in November 2010. Due to a technical error, that amendment did not confer nurse practitioners with the ability to provide Medicare eligible prescribed pathology services. The inclusion of the relevant pathology services in this Determination is to correct that error.

ATTACHMENT

Details of the Health Insurance (Midwife and Nurse Practitioner) Determination 2011

Part 1              Preliminary

Section 1         Name of Determination

This section provides that the name of the Determination is the Health Insurance (Midwife and Nurse Practitioner) Determination 2011 (the Determination).

Section 2         Commencement

This section provides for the different commencement dates of different provisions of the Determination. Those provisions which are required to facilitate the creation of items for nurse practitioner pathology services are taken to have commenced on 1 November 2010. The remainder of the Determination commences 1 November 2011.

Section 2A      Revocation

This new section provides that the Determination revokes the Health Insurance (Midwife and Nurse Practitioner) Determination 2010 (the Previous Determination). The provision commences on 1 November 2011.

The combined effect of sections 2 and 2A is that the Previous Determination and the provisions which are required to facilitate the creation of items for nurse practitioner pathology services in the Determination are in force at the same time from 1 November 2010 until the end of 31 October 2011. The remaining provisions in the Determination, including section 2A, commence on 1 November 2011 at which time the Previous Determination is revoked so that the whole Determination stands alone.

Section 3         Definitions

Subsection 3(1) defines general terms used in the Determination.  

Section 3A      Additional definitions for telehealth items

New subsection 3A(1) defines terms used in the Determination which are required for the interpretation of those new items, commencing 1 November 2011, which are for the provision of telehealth support services by participating midwives and participating nurse practitioners.

Part 2              Midwifery services

Section 4         Interpretation

Subsection 4(1) provides that a ‘collaborative arrangement’, in respect of a patient of a participating midwife, is an arrangement mentioned in regulation 2C of the Health Insurance Regulations 1975. 

Subsection 4(2) provides that in Part 2 of the Determination a participating midwife is a ‘member of a practice that provided the patient’s antenatal care’ if the midwife:

·         participates in the provision of professional services as part of the practice, including as a partner in the practice or as an employee of the practice;

·         provides relief services to the practice; or

·         provides services at the practice as a locum.

This definition is relevant for the midwifery and confinement items (82120 and 82125).

Section 5         Treatment of midwifery services

Paragraph 5(a) provides that a midwifery service specified in the Determination is to 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 which provide for medical services or professional services.

Paragraph 5(b) provides that a midwifery service specified in the Determination is to be treated as if there were an item in the GMST that related to the relevant service and specified a fee for that service, being the fee specified in Schedule 1 in relation to the service.

Section 6         Collaborative arrangements

Section 6 provides that a midwifery item only applies where the service is provided in accordance with ‘collaborative arrangements’ in place for the patient.

This requirement is consistent with the definition of ‘participating midwife’ in subsection 3(1) of the Act, which provides that an eligible midwife is a participating midwife so far as he or she provides midwifery treatment in a collaborative arrangement of a kind or kinds specified in the regulations, with one or more medical practitioners of a kind or kinds specified in the regulations.

The Health Insurance Regulations 1975 require that collaborative arrangements between midwives and appropriate medical practitioners must provide for consultation, referral of the patient, or transfer the patient’s care as clinical needs dictate (see regulation 2C). That regulation also provides that an eligible midwife can establish a collaborative arrangement through:

a)      being employed or engaged by one or more specified medical practitioners or by an entity that employs or engages one or more specified medical practitioners;

b)      a written referral of a patient from a specified medical practitioner;

c)      an agreement with one or more specified medical practitioners; or

d)     an arrangement with one or more specified medical practitioners, with an acknowledgement by the medical practitioner/s that he or she will be collaborating in the patient’s care recorded in the patient’s records.  

Section 7         General requirements

Subsection 7(1) provides that the midwifery items only apply where:

a)      the service is personally performed by the participating midwife. Accordingly, these services cannot be performed by another practitioner on a midwife’s behalf;

b)      the service is provided to a single patient at the one time. Attending multiple patients on the one occasion, such as group attendances, would not apply; and

c)      the participating midwife is not an employee of a public hospital, or is an employee of a public hospital but provides services other than in his or her capacity as a public hospital employee.

Subsection 7(2) provides that subsection 7(1) applies whether or not another person provides essential assistance to the participating midwife in providing the service.

Subsection 7(3) requires that for a midwifery item to apply, the patient must be in attendance when the service is provided. 

Subsections 7(4) and 7(5) provide clarification of the content of the requirement for ‘professional attendance’ in items 82100 – 82115 and items 82130 – 82140. Professional attendance includes the provision of services such as advising the patient about his or her condition, making clinical notes about the services provided to the patient and formulating a plan for the patient’s treatment. However, it does not include supplying a vaccine in connection with the service unless the cost of the vaccine has been subsidised by the Commonwealth or the State.

Section 7A      Other requirements for telehealth midwifery services

New subsection 7A(1) provides that a telehealth midwifery item only applies to a service where no other telehealth support service described in subsection 7A(2) is provided to the patient on the same occasion.

New subsection 7A(2) specifies the items to which the subsection applies, being the other midwife and nurse practitioner telehealth items in the Determination, and those items for telehealth support services which are specified in the general medical services table.

The purpose of section 7A is to prevent the payment of a Medicare benefit for a telehealth midwifery support service item where another telehealth support service for which a Medicare benefit is payable is provided to the patient at the same time. For example, if a medical practitioner supports a telehealth attendance but requires a participating midwife to attend the support service because the practitioner is required to leave the room, a Medicare benefit cannot be paid for both the practitioner’s and the participating midwife’s support service.

Section 7A does not prevent a Medicare benefit from being payable for other services which a participating midwife provides to a patient immediately before or after a telehealth video consultation during which the participating midwife provides a telehealth support service to a patient.

Section 8         Labour and delivery

Subsection 8(1) requires that for confinement items 82120 and 82125 to apply, the service must be provided during a period of exclusive and continuous care of the patient by the participating midwife. This means that the participating midwife attends the patient for the duration of the service to the exclusion of all other patients. The midwife could not be managing more that one patient on the one occasion and sharing his or her time between them.

Subsection 8(2) provides that where a patient’s care has been referred to an obstetrician or medical practitioner by a participating midwife prior to the commencement of labour, with that medical practitioner or obstetrician managing the patient’s labour and delivery, the midwife is precluded from also providing care during the confinement under items 82120 and 82125.

Subsection 8(3) recognises that there will be circumstances where the participating midwife is unable to undertake the patient’s delivery under item 82120, either because the woman’s labour exceeds twelve hours and care is transferred to a second midwife or where there is a clinical need to escalate care to a medical practitioner. This subsection enables the payment of Medicare benefits in these circumstances. Medicare benefits are not payable under item 82120 where a participating midwife routinely provides care during labour for patients that a medical practitioner intends to deliver.

Subsection 8(4) recognises that there will be circumstances where a participating midwife to whom a patient has been transferred is unable to undertake the patient’s delivery under item 82125, either because:

·         the woman’s labour exceeds twenty four hours (being twelve hours under the care of the first midwife from whom the patient has been transferred and twelve hours under the care of the midwife to whom the patient was transferred) and care is transferred to another midwife; or

·         there is a clinical need to escalate care to a medical practitioner. 

This subsection enables the payment of Medicare benefits in these circumstances. Medicare benefits are not payable under item 82125 where a participating midwife routinely provides care during labour for patients that a medical practitioner intends to deliver.

Part 3              Nurse practitioner services

Section 9         Treatment of nurse practitioner services - general

Paragraph 9(a) provides that, subject to section 9A, nurse practitioner services provided in accordance with the Determination are to be treated as if they 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 which provide for medical services or professional services.

Paragraph 9(b) provides that, subject to section 9A, these services are to be treated as if there were an item in the GMST that related to the relevant service and specified a fee for that service, being the respective fee specified in Parts 1 and 2 of Schedule 2 of the Determination in relation to the service.

Section 9A      Treatment of nurse practitioner services - pathology

New paragraph 9A(a) provides that nurse practitioner services specified in Part 1 of Schedule 2 to the Determination (i.e. nurse practitioner pathology services) are to be treated as if they 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 which provide for medical services or professional services.

New paragraph 9A(b) provides that these services are to be treated as if there were an item in the PST that related to the relevant service and specified a fee for that service, being the fee specified in Part 1 of Schedule 2 in relation to the service.

The new note (Note 2) is a reminder that in accordance with subsection 16A(7A) of the Act, a Medicare benefit will only be payable for a nurse practitioner pathology service where the service is provided to a person who is the patient of the nurse practitioner.

Section 10       Collaborative arrangements and scope of practice

Subsection 10(1) provides that a nurse practitioner item only applies where the service is provided in accordance with collaborative arrangements in place for the patient and within the scope of practice of the participating nurse practitioner.

Subsection 10(2) provides that a collaborative arrangement, in respect of a patient of a participating nurse practitioner, is an arrangement mentioned in regulation 2F of the Health Insurance Regulations 1975.

Collaborative arrangements for participating nurse practitioners closely resemble those for participating midwives. An eligible nurse practitioner is only a participating nurse practitioner so far as he or she provides services in a collaborative arrangement of a kind or kinds specified in regulations with one or more medical practitioners of a kind or kinds specified in regulations (see subsection 3(1) of the Act).

Similarly to participating midwives, collaborative arrangements between participating nurse practitioners and medical practitioners must also provide for consultation, referral of the patient or transfer of the patient’s care as clinical needs dictate. Participating nurse practitioners can establish collaborative arrangements through the same mechanisms as participating midwives (see regulation 2F of the Health Insurance Regulations 1975).

Section 11       General requirements

Subsection 11(1) provides that the nurse practitioner items, other than nurse practitioner pathology items, only apply where:

a)      the service is personally performed by the participating nurse practitioner. Accordingly, these services cannot be performed by another practitioner on a nurse practitioner’s behalf;

b)      the services is provided to a single patient at the one time. Attending multiple patients on the one occasion, such as group attendances, would not apply; and

c)      the participating nurse practitioner is not an employee of a public hospital, or is an employee of a public hospital but provides services other than in his or her capacity as a public hospital employee.

Subsection 11(2) provides that subsection 11(1) applies whether or not another person provides essential assistance to the participating nurse practitioner in providing the service.

Subsection 11(3) requires that for a nurse practitioner item other than a nurse practitioner pathology item applies, the patient must be in attendance when the service is provided.

Subsections 11(4) and 11(5) provide clarification of the content of the requirement for ‘professional attendance’ in the nurse practitioner items which are set out in Part 2 of Schedule 2 of the Determination. The content of professional attendance for nurse practitioners is the same as that for participating midwives.

Section 12       Requirements for pathology items

New subsection 12(1) provides that the nurse practitioner pathology items only apply if the participating nurse practitioner who renders the service is not an employee of a public hospital, or is an employee of a public hospital but provides services other than in his or her capacity as a public hospital employee.

Section 13       Other requirements for telehealth nurse practitioner services

New subsection 13(1) provides that the telehealth nurse practitioner items only apply to a service where no other telehealth support service described in subsection 13(2) is provided to the patient on the same occasion.

New subsection 13(2) specifies the items to which the subsection applies, being the other midwife and nurse practitioner telehealth items in the Determination, and those items for telehealth support services which are specified in the general medical services table.

The purpose of section 13 is to prevent the payment of a Medicare benefit for a telehealth nurse practitioner support service item where another telehealth support service for which a Medicare benefit is payable is provided to the patient at the same time. For example, if a medical practitioner supports a telehealth attendance but requires a participating nurse practitioner to attend the support service because the medical practitioner is required to leave the room, a Medicare benefit cannot be paid for both the medical practitioner’s and the participating nurse practitioner’s support service.

Section 13 does not prevent a Medicare benefit from being payable for other services which a participating nurse practitioner provides to a patient immediately before or after a telehealth video consultation during which the participating nurse practitioner provides a telehealth support service to a patient.

Schedule 1      Midwifery services and fees

Part 1              Midwifery services and fees

Part 1 of Schedule 1 of the Determination sets out the relevant general midwifery services, assigns applicable item numbers, item descriptors and fees for the services. These items enable the payment of Medicare benefits to patients of participating midwives for antenatal, birthing and postnatal care:

·         an initial antenatal attendance of at least 40 minutes duration (item 82100);

·         a short antenatal attendance of up to 40 minutes duration (item 82105);

·         a long antenatal attendance of more than 40 minutes duration (item 82110);

·         development of a maternity care plan for a pregnant woman, where the pregnancy has progressed beyond 20 weeks (item 82115);

·         management of a confinement for up to 12 hours (item 82120);

·         management of a confinement in excess of 12 hours, where care of the patient is transferred from one midwife to a second midwife (item 82125);

·         short postnatal attendance of up to 40 minutes duration (item 82130);

·         long postnatal attendance of at least 40 minutes duration (item 82135); and

·         six week postnatal attendance (item 82140), after which the woman would see her general practitioner.

Antenatal and postnatal services may be provided in a range of settings including in consulting rooms, community clinics and the woman’s home. Medicare benefits for the management of labour and delivery are only payable where the service is provided to an admitted patient of a hospital, including a hospital birthing centre.

These items are indexed and commence 1 November 2011.

Part 2              Telehealth midwifery services and fees

Part 2 of Schedule 1 of the Determination sets out the relevant telehealth midwifery services, assigns applicable item numbers, item descriptors and fees for the services. These items enable the payment of Medicare benefits to patients of participating midwives for telehealth support services:

·         a professional attendance of less than 20 minutes for the provision of clinical support to an eligible patient who is participating in a video consultation with a specialist obstetrician, or a specialist or consultant physician paediatrician (item 82150);

·         a professional attendance of at least 20 minutes for the provision of clinical support to an eligible patient who is participating in a video consultation with a specialist obstetrician, or a specialist or consultant physician paediatrician (item 82151); and

·         a professional attendance of at least 40 minutes for the provision of clinical support to an eligible patient who is participating in a video consultation with a specialist obstetrician, or a specialist or consultant physician paediatrician (item 82152).

A patient will be eligible if he or she is a non-admitted patient in an inner metropolitan area, or is at an Aboriginal Medical Service or Aboriginal Community Controlled Health Service in relation to which a direction made under subsection 19(2) of the Act applies.

The midwifery telehealth support items enable support services to non-admitted patients during a video consultation with a specialist or consultant physician. These items are time-tiered consultations with the fees provided recognising the added complexities involved in providing a supporting attendance for a specialist video consultation.

These items are indexed and commence 1 November 2011.

Schedule 2      Nurse practitioner services and fees

Part 1              Nurse practitioner pathology services and fees

Part 1 of Schedule 2 of the Determination sets out the relevant nurse practitioner pathology services, assigns applicable item numbers, item descriptors and fees for the service.

The Determination includes 10 new items that replicate the majority of the pathology items in Group P9 of the PST provided by medical practitioners. This will enable participating nurse practitioners to provide these simple basic pathology tests, under items 73828 -73837, as Medicare eligible services. The tests include pregnancy testing by immunochemical methods, testing for blood in faeces, examining semen for the presence of sperm, and microscopy study to determine the presence of fungi in skin, hair or nails.

Pathology services provided by participating nurse practitioners must be within the nurse practitioner’s scope of practice. 

These items are new and are taken to have commenced 1 November 2010.

Part 2              Nurse practitioner services and fees

Part 2 of Schedule 2 of the Determination sets out the general nurse practitioner services, assigns applicable item numbers, item descriptors and fees for the service.

Nurse practitioners work at an advanced clinical level which includes diabetes care, emergency nursing, intensive care, women’s health, aged care, palliative care, paediatrics, urology, wound management, mental health, rural and remote health, men’s health, community health or young people’s health. 

The general nurse practitioner items include four time-tiered consultation attendances providing for short straightforward consultations through to longer, more complex services:  

·         Level A consultation – item 82200;

·         Level B consultation (less than 20 minutes) – item 82205;

·         Level C consultation (at least 20 minutes) – item 82210; and

·         Level D consultation (at least 40 minutes) – item 82215.

These items are indexed and commence 1 November 2011.

Part 3              Telehealth nurse practitioner services and fees

Part 3 of Schedule 2 of the Determination sets out the relevant telehealth nurse practitioner services, assigns applicable item numbers, item descriptors and fees for the services. These items enable the payment of Medicare benefits to patients of participating nurse practitioners for telehealth support services:

·         a professional attendance of less than 20 minutes for the provision of clinical support to an eligible patient who is participating in a video consultation (items 82220 and 82223);

·         a professional attendance of at least 20 minutes for the provision of clinical support to an eligible patient who is participating in a video consultation (items 82221 and 82224); and

·         a professional attendance of at least 40 minutes for the provision of clinical support to an eligible patient who is participating in a video consultation (items 82222 and 82225).

To be eligible for items 82220 – 82222, a patient must be a non-admitted patient in an inner metropolitan area or at an Aboriginal Medical Service or Aboriginal Community Controlled Health Service in relation to which a direction made under subsection 19(2) of the Act applies.

To be eligible for items 82223 – 82225, a patient must be a care recipient receiving care in a residential care service, or an approved care recipient receiving care in a residential care service and at consulting rooms within such a complex (not being a self-contained unit).

The nurse practitioner telehealth support items enable support services to patients during a video consultation. These items are time-tiered consultations with the fees provided recognising the added complexities involved in providing a supporting attendance for a video consultation.

These items are indexed and commence 1 November 2011.