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Health Insurance (Dental Services) Amendment Determination 2012 (No. 1)
FRLI ID: F2012L01837
Tabled in the Senate and the House of Representatives on: 10 September 2012
Portfolio: Health and Ageing
Committee view
2.2
The committee seeks further information from the Minister for Health
on several issues relating to the transitional arrangements and coverage of the
replacement schemes before forming a view on the compatibility of this instrument
with human rights.
Purpose of the instrument
2.3
This determination amends the Health Insurance (Dental Services)
Determination 2007 to enable a staged cessation to the payment of Medicare
benefits for services available to people with chronic conditions and complex
care needs whose oral health is impacting on their general health (also known
as the Medicare Chronic Disease Dental Scheme or CDDS).
2.4
Specifically, the determination creates a staged approach to the
cessation of the CDDS so that patients who have been provided with certain
Medicare funded management plans for chronic medical conditions prior to 8
September 2012 may continue to access Medicare-eligible dental services under
the CDDS until 30 November 2012.
2.5
From 1 December 2012 the principal determination will cease in its
entirety, which will in effect discontinue the operation of the CDDS for all
persons. However, Medicare benefits can still be paid for claims lodged after
30 November 2012, as long as the service was provided on or before 30 November
2012 for existing patients.
2.6
The closure of the CDDS is part of the government’s proposed $4 billion
dental reform package, which was announced on 29 August 2012, and includes:
- $2.7 billion to provide subsidised basic dental services to
around 3.4 million eligible Australia children from January 2014 (also known as
the Child Dental Benefit Schedule – CDBS);
- $1.3 billion to provide additional services for adults on low
incomes through state dental services under a National Partnership Agreement (NPA)
from July 2014; and
- $225 million in funding for dental capital and workforce, to
support expanded services for outer metropolitan, regional, rural and remote
areas.
2.7
The committee decided to defer its consideration of this instrument to
enable closer examination of the issues and to take account of the findings of
the Senate Community Affairs Legislation Committee’s inquiry into the Dental
Benefits Amendment Bill 2012 and related dental reforms, including the closure
of the Chronic Disease Dental Scheme. That committee’s report was released on
29 October 2012.
Compatibility with human rights
Right to health and right to social security
2.8
The statement of compatibility recognises that the closure of the CDDS
could be considered to limit the right to health in article 12 of the
International Covenant on Economic, Social and Cultural Rights (ICESCR) and the
right to social security in article 9 of ICESCR because it ‘could reduce the
ability of people currently eligible for the program to enjoy their highest attainable
standard of health through access to these benefits’. The statement argues that
the changes are nevertheless compatible with these rights because:
- the closure of the CDDS (which is not considered to target
benefits to those who are most financially disadvantaged), is necessary to
enable limited resources to be redirected to dental programs that more
effectively target those most in financial need; and
- the provision for the staged closure of the CDDS allows current
patients to continue treatment over a transition period, thereby mitigating any
adverse impact on a person’s existing reliance on the payment of Medicare
benefits under the CDDS. It is also suggested that affected individuals will
be able to access alternative means of support through state and territory
public dental services, or Commonwealth funded rebates for private health
insurance covering dental treatment.
2.9
The closure of the CDDS is likely to be considered as either
retrogressive or a limitation on the rights to health and social security
because they remove existing entitlements. It is therefore necessary for the
government to demonstrate that the measures in question pursue a legitimate
objective and have a reasonable relationship of proportionality between the
means employed and the objective sought to be realised. In short, to be
compatible with human rights, the closure of the CDDS must be (i) aimed at
achieving a legitimate objective; and be (ii) rationally connected and
proportionate to that objective.
2.10
The government has stated that the closure of the CDDS is necessary to
enable resources to be redirected for dental services to low income patients to
ensure equitable access to dental care, which may be considered to be a
legitimate aim.
2.11
The Senate Community Affairs Legislation Committee report on the
government’s proposed dental reforms however identified some issues of concern
with regard to the closure of the CDDS. These related to the transitional
arrangements for those patients currently being serviced under the CDDS and the
potentially reduced coverage of the replacement scheme(s).
2.12
According to the report, the Australian Dental Association (ADA) supported
the reforms but ‘expressed concern regarding the timeframe for the closure of
the scheme, claiming that many patients will miss out on essential treatment as
a result of the 30 November 2012 cut-off date:
A 12-week period, to complete
treatment, will mean that patients under the CDDS will not be able to finalise
their treatment plans. Treatment of the chronically ill, for which this Scheme
was designed, is often complex, requiring an extended period of time. Complex
treatments are often staged to allow adequate healing... The ADA calls on the
Australian Government to recognise that it is critical that arrangements are
put in place to allow for treatment services to be completed even if this
requires introducing a transition process for existing patients on a case by
case basis.’[1]
2.13
While supportive of the overall reforms, the Australian Greens also
expressed concerns ‘about the timing of the new scheme and the delay between
the cessation of the Chronic Disease Dental Scheme [on 30 November 2012] and
the commencement of the CDBS [in January 2014] and the National Partnership
Agreement [in July 2014]’.[2]
2.14
The Department of Health and Aging told the committee that it believed
‘there will be sufficient capacity through the states and territories to treat
those patients who have not completed their treatment under the CDDS’ and that
it was working to reach ‘an agreement with the states and territories by the
end of November to cover transitional arrangements’.[3]
2.15
The committee stated in its report that it:
...looks forward to the outcome
of the government's negotiations with the states and territories and hopes that
the agreements will ensure that there will be no gaps in service provision for
any clinically necessary treatment that commenced under the CDDS.[4]
2.16
A further issue relating to the closure of the CDDS that was canvassed
in the Senate Community Affairs Legislation Committee inquiry involved the
coverage of the replacement scheme(s). In additional comments to the
committee’s report, Coalition Senators noted that ‘over 80 per cent of patients
accessing the [CDDS] were health care card holders who would not otherwise have
been able to fund the dental treatment they accessed under the scheme’ and expressed
concern that the closure of the CDDS will leave these patients unable to access
the dental care required to assist them with the management of complex chronic
illnesses’ because the reforms are ‘seeking to redirect public dental funding
to an entirely different demographic with the establishment of the framework of
the CDBS’:
Under the proposed CDBS,
eligible children between the age of two and 18 years will be able to access
basic dental health care, capped at an entitlement of $1000 per child over two
years. Coalition Senators are concerned that this entitlement is significantly
less than the entitlement for dental care under the CDDS and is also limited to
a basic service only. It is also concerning to Coalition Senators that the CDBS
does not address adult chronic disease needs and also represents reduced
support for children suffering chronic disease.[5]
2.17
The committee considers that these issues are likely to go towards the
proportionality of these measures, in particular where they may involve the
removal of access to essential treatment for financially disadvantaged
patients.
2.18
The committee proposes to write to the Minister for Health to seek
clarification on the following issues before forming a view on the
compatibility of this instrument with human rights:
- What provision has been made for the short term needs of
existing CDDS patients who are financially disadvantaged during the transition
period between the closure of the CDDS and the commencement of the NPA and the
CDBS?
- What provision has been made for the short term needs of new
patients (i.e., those who would have been eligible for CDDS benefits) who are
financially disadvantaged during the transition period between the closure of
the CDDS and the commencement of the NPA and the CDBS?
- Whether the NPA and the CDBS in combination with other
relevant benefits is likely to adequately meet the essential treatment needs of
financially disadvantaged patients suffering chronic disease?
- How many existing CDDS patients will not be eligible under the
NPA or CDBS?
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