1 Australian Government Department of Immigration and Citizenship D I S C U S S I O N P A P E R Section 1: Introduction 1.1 The purpose of this Discussion Paper is to elicit the views of key stakeholders, both internal and external to the Commonwealth Department of Immigration and Citizenship (DIAC), which will inform a review and enhancement of the health insurance arrangements under the Migration Act 1958 and the Migration Regulations The Discussion Paper assumes that Australian hospitals do, and will continue to, provide medical care to patients even if they fail to provide any evidence of having adequate health insurance cover or the capacity to pay for their treatment. 1.2 A number of strategic and policy concerns have provided an impetus for the review, including the apprehension by States and Territories that Australia s visa regime might not be fully effective in ensuring the adequacy of private health insurance cover for temporary visa holders. Within the context of a projected doubling of Australia s health expenditure (see Figure 1.1 below), the jurisdictions are concerned that a growing number of temporary visa applicants may be provided with an incentive to visa shop for those subclasses with the least onerous or no health insurance conditions, with the ensuing unpaid cost of their medical interventions and allied services being increasingly shifted to the Australian taxpaying community. Figure 1.1: Projected Health Expenditure of Australian Governments Hospital Medicare PBS Other Total Source: Productivity Commission (2008)
2 Page 2 of With Australia s ageing population anticipated to add significantly to the development of more expensive medical technologies, therapeutic appliances and pharmaceuticals (see Figures 1.2 below), 1 the unpaid medical treatment cost of temporary visa holders is therefore being promoted as one of the potentially controllable aspects of Australia s escalating health budgets. Figure 1.2: Australia s Ageing Population and Health Costs Hospitals Pharmaceutical benefits Medical benefits to Source: Productivity Commission (2008) State and Territory Health Ministers Conference 1.4 In November 2010, State and Territory Health Ministers attending the Australian Health Ministers Conference (AHMC) expressed their unanimous concerns at the rising levels of unpaid medical bills in their jurisdictions by overseas visitors and workers with inadequate or no private health insurance. Health Ministers pointed to the recently strengthened health insurance requirements for international students under the Council of Australian Governments (COAG) International Student Strategy for Australia as a possible model that could be standardised across all temporary visa subclasses Productivity Commission (2008) Health Policy Oration by Gary Banks, Chairman of the Productivity Commission. Menzies Centre for Health Policy, John Curtin School of Medical Research, ANU, Canberra, 26 June See also National Health and Hospitals Reform Commission (2009) Final Report: A Healthier Future for All Australians and Commonwealth Department of Health and Ageing (2009) Primary Health Care Reform in Australia: Report Supporting the National Primary Health Care Strategy. 2. The Council of Australian Governments (COAG) International Student Strategy for Australia is available for downloading under the sub-heading of COAG International Students Strategy for Australia at See Strengthened health cover arrangements, which provides that: As part of this strategy, COAG has agreed that all students will be required to provide evidence of health cover for the duration of their visa, and health insurance providers or education providers will help governments to monitor whether students are maintaining their health cover. This will ensure that students comply with their visa requirements and are protected against potentially high medical costs in the event of major illness or injury (at page 12).
3 Page 3 of In particular, Health Ministers formally requested the Commonwealth Government to consider: (a) the adequacy of minimum private health insurance requirements for Medicare ineligible temporary visa holders, including longer-stay overseas visitors and workers; (b) an appropriate means of ensuring compliance with private health insurance coverage by overseas visitors, particularly non-medicare eligible patients who allow their insurance cover to lapse and subsequently incur significant out-of-pocket expenses for public hospital treatment; (c) options for sharing medical and allied services data about temporary visa holders across Commonwealth, State and Territory Government Agencies, public hospitals and health insurance providers; and (d) options for preventing migrants from obtaining further visas for up to three years if they have outstanding debts to a State or Territory Government authority or public hospital. Joint Standing Committee on Migration 1.6 The request by State and Territory Health Ministers followed an inquiry, and report in June 2010, by the Joint Standing Committee on Migration (JSCM) on an assessment of the health and community costs associated with a disability as part of the health test undertaken for Australia s visa processing under the Migration Act 1958 and Migration Regulations The Committee focussed on the health requirement under the Act and Regulations, and specifically, the public interest criteria in Schedule 4 of the Regulations, which visa applicants will not meet if they are: 1. considered to be a threat to public health, for example if they have active tuberculosis, or are a danger to the community, (the public health element); or 2. assessed as having a disease or condition that would be likely to result in significant costs to the Australian community (the cost element); or 3. assessed as having a disease or condition that would be likely to prejudice the access of Australian citizens or permanent residents to health care and community services (the prejudice to access element). 1.7 In its submission to the Committee, the Department of Immigration and Citizenship (DIAC) emphasised that visa applicants with a disability, like all other visa applicants, must meet the full gamut of the health requirement, not just the cost element. 4 In evidence before the Committee, a DIAC officer additionally pointed out that: Even if they demonstrate the ability to take out extensive health cover, what happens if that individual then falls on hard times and can no longer afford the $2,000, $3,000 or $4,000 a year that they need for comprehensive health cover. Do you say, You promised that you would maintain that? 5 3. Joint Standing Committee on Migration (2010) Enabling Australia: Inquiry Into the Migration Treatment of Disability. Commonwealth of Australia. 4. Department of Immigration and Citizenship, Submission No Peter Vardos, Department of Immigration and Citizenship, Committee Hansard, Melbourne, 24 February 2010 (at page 16).
4 Page 4 of Specifically in relation to visa applicants who do not meet the cost element because of a disability, the Committee received submissions, among others, from Down Syndrome WA (Western Australia) who contended that the current migration regime is inflexible in refusing to allow some families to immigrate to Australia even though they would be willing to maintain full medical and health insurance coverage for any family member applicant with a disability. 6 Similarly, the Royal College of Physicians argued that, if it is a legitimate policy aim of Australia s migration regime to safeguard scarce local health resources, then a visa applicant s demonstrable means of support, including his/her capacity to obtain and maintain private health insurance cover, should be a determinative factor in the grant of a visa While the HIV/AIDS Legal Centre (HALC) saw merit in allowing applicants with a disability to mitigate their initial failure to meet the cost element of the health requirement by obtaining appropriate health insurance coverage or through some other scheme, HALC would not support a bond arrangement that could, in certain circumstances, disadvantage less affluent applicants. HALC was, however, willing to support an incremented tax levy that would span over 5 to 10 years as a way of defraying the estimated life-time costs of a visa applicant s disability Having considered over a hundred submissions and taken evidence from key stakeholders, the Committee made eighteen recommendations, of which the following relates to the introduction of a bond or scheme to address the health costs of visa applicants. Recommendation 17 The Committee recommends that the Australian Government investigate the introduction of a voluntary bond or other scheme for visa applicants to indemnify against, or manage health care or community services costs assessed under the Health Requirement of the Migration Act 1958 (Cth). The Committee recommends that any introduction of such a bond or other scheme should not prejudice those applicants that are unable to provide a surety. Media Coverage of Hospital Costs 1.11 On 9 February 2012, the Herald Sun reported under the headline Foreign Bodies Hog Our Beds that freeloading foreigners left Victorian hospitals with more than $6 million in unpaid bills last year. 9 The newspaper cited Health Department data in Table 1.1 below, which purports to identify some of the most common medical treatments for over 30,000 foreigners from countries as diverse as India, China, Malaysia, Sri Lanka, Indonesia, Vietnam, Fiji, the United States, Pakistan and Saudi Arabia who made the most of the State s [Victoria s] world-class medical 6. Down Syndrome WA (Western Australia), Submission No. 57 (at page 7). 7. Royal Australasian College of Physicians, Submission No. 80 (at page 11). 8. HIV/AIDS Legal Centre Inc., Submission No. 69 (at page 18). 9. See For online comments, which largely support the assertions in the Herald Sun article, see
5 Page 5 of 27 amenities for non-urgent treatments. 10 With the number of foreign patients reportedly tripling in the last six years, and with less than half of those provided with a hospital bed having apparently faced a medical emergency, the Herald Sun concluded that: All doctors would be concerned by foreigners coming to Victoria to have a baby or seek elective care and effectively pushing Australian citizens further down the waiting list. 11 Table 1.1: Most Common Treatment for Foreigners in Victoria s Hospitals Treatment Admissions Standard birth delivery 1,241 Healthy newborn 1,237 Kidney / renal failure 683 Caesarean delivery without complications 425 Maternal care services excluding delivery 407 Gastro and other digestive infections 257 Abdominal pain 221 Non specific digestive issues 215 Urinary stones 210 Kidney and urinary infections 197 Cancer 164 Ear and throat infections 156 Minor injuries 155 Chest pain 153 Caesarean delivery with complications 151 Abortion 150 Skin infection 142 Viral illnesses 130 Newborn with minor health issues 128 Source: Herald Sun, February Given that State and Territory hospitals do not routinely inquire into, validate and record the visa status of their overseas born patients, caution needs to be exercised in attributing all unpaid hospital bills solely to temporary visa holders. With the Australian Bureau of Statistics having estimated that, as at 30 June 2010, some 27 per cent or 6 million Australians were born overseas, a more rigorous analysis is therefore required to differentiate between overseas born Australian patients and overseas born temporary visa holders defaulting on their hospital bills. 12 Discussion Questions 1. In principle, should all State and Territory hospitals routinely inquire into, validate and record the visa status of their overseas born patients, and share data across jurisdictions, with insurers and the Commonwealth Government? 2. In principle, should legislative and regulatory amendments be undertaken to ensure that a debt to a State or Territory hospital or Agency by a temporary visa holder is deemed to be a debt to the Commonwealth, with appropriate administrative action in relation to visa renewal and/or cancellation to follow? ibid 12. Australian Bureau of Statistics Migration , Cat No
6 Page 6 of 27 Section 2: Regulatory Framework for Visa Subclasses 2.1 The Commonwealth Government legislates on a range of matters, including immigration and emigration (section 52 (xxvii) of the Constitution), with DIAC having administrative responsibility for the Migration Act 1958 ( the Act ) and the Migration Regulations 1994 ( the Regulations ). 2.2 The Act and Regulations contain a wide range of provisions and conditions for the grant of visas, which permit visa holders to travel to, enter or remain in Australia. The overarching framework for a visa grant is set out in sub-section 65 (1) of the Act as follows. 65 (1) After considering a valid application for a visa, the Minister: (a) if satisfied that: (i) the health criteria for it (if any) have been satisfied; and (ii) the other criteria for it prescribed by this Act or the regulations have been satisfied; and (iii) the grant of the visa is not prevented by section 40 (circumstances when granted), 500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and (iv) any amount of visa application charge payable in relation to the application has been paid; is to grant the visa; or (b) if not so satisfied, is to refuse to grant the visa. 2.3 The four broad criteria under paragraph 65 (1) (a) are co-dependent, which means that they must all be satisfied before an applicant may be granted a visa. As pointed out previously, the health requirement in Schedule 4 of the Regulations, which articulates the health criteria in subparagraph 65 (1) (a) (i), is similarly comprised of three co-dependent public health, cost and prejudice to access elements, with visa applicants having to meet all three. Similarly, any further criteria by virtue of sub-paragraph 65 (1) (a) (ii), which includes health insurance for some temporary visa applications under the Regulations, must additionally be met where these are a prescribed requirement for the grant of the particular visa subclass. Mandatory, Discretionary and Recommended Health Insurance 2.4 Currently, there are forty temporary visa subclasses whose applicants either are, or may be, required to obtain and maintain adequate health insurance cover during their stay in Australia (see Attachment A). Of these, twenty-five visa subclasses have a mandatory, with seven subclasses having a discretionary, requirement for visa holders to maintain health insurance under the Regulations. Where a discretion is stipulated, a visa processing officer will make a determination whether an applicant should obtain health insurance cover as a condition of the visa grant. A further eight subclasses have, under Departmental policy, a recommended
7 Page 7 of 27 requirement in relation to temporary visitors over 75 years, who may be requested to maintain travel or health insurance, or alternatively provide evidence of having sufficient personal funds to cover their medical and hospital costs for the duration of their Australian visit. Health Insurance Requirements for Visa Subclasses Migration Regulations 1994 Procedures Advice Manual Mandatory Discretionary Recommended* Visa subclasses * for visitors over 75 years Table 2.1 below provides a context for the above forty visa subclasses within the statistical population of some 4.6 million visa applications that were lodged in 2010/2011, which consisted of 4.3 million applications or nearly 93% for temporary visas and 329,442 applications or just over 7% for permanent visas. Table 2.1 indicates that, of the 4.3 million temporary visa applications lodged in 2010/2011, 11,723 or 0.3% were not subject to a mandatory, discretionary or recommended insurance requirement under either the regulations or Departmental policy. Table 2.1: Health Insurance in Context Visa Applications Lodged in 2010/2011 Visa Application Subclasses and Category Number for this subclass (No.) Number for this category (No.) Total for this category (%) Total for all visas (%) Temporary visa subclasses requiring health insurance Mandatory health insurance (Regulations) Discretionary health insurance (Regulations) Recommended insurance or self-funding (DIAC Policy) Sub total 410, ,102 3,646, ,298, % 5.6% 84.6% 99.7% 8.8% 5.3% 78.6% 92.7% Other temporary visa subclasses 11, % 0.2% ALL TEMPORARY VISA APPLICATIONS CATEGORY 4,309, % 92.9% ALL PERMANENT VISA APPLICATIONS CATEGORY - 329, % 7.1% ALL VISA APPLICATIONS LODGED IN 2010/11-4,639, %
8 Page 8 of Of the 3.6 million temporary applications in the recommended insurance or self-funding category, only some 74,000 applications related to applicants over 75 years old who were required to obtain travel or health insurance, or provide evidence of being able to fund their own medical treatment. When these are added to the 241,102 applications with a discretionary insurance requirement and the 410,002 applications subject to a mandatory requirement, a total of 725,104 or 15.6% of the 4.6 million applications lodged in 2010/2011 attracted a requirement for some form of mandatory or discretionary insurance cover or evidence of self-funding. Temporary visas: no insurance required 410, ,442 3,584, ,102 74,000 Permanent visas: no insurance required Temporary visas: mandatory insurance Temporary visas: discretionary insurance Temporary visas: over 75 years only (insurance or self funding) Discussion Questions 3. In principle, should all temporary visa holders be required, as a mandatory condition under the Act and Regulations, to obtain and maintain adequate health insurance cover for the duration of their visas? 4. Should all local and overseas insurers providing health insurance policies to Australia s temporary visa holders be required to seek accreditation from an appropriate Australian body or Agency before their policies may be deemed acceptable for the purposes of Australia s migration regime? 5. What would be the rationale or justification for exempting some temporary visa applicants from having to obtain and maintain health insurance cover for the duration of their Australian visit? 6. Where some temporary visa applicants are able to demonstrate that they have the necessary funds to meet any potential medical treatment, should these funds be lodged with a relevant body or Agency to offset any likely future medical bills, with any unused amounts refunded to the visa holder?
9 Page 9 of 27 Section 3: Options to Ensure that Health Costs are Met 3.1 There are a number of possible options to enhance the current visa regulatory regime, ranging from a more proactive monitoring of visa holders who are required to maintain adequate health insurance as a condition of their temporary visas, through to a universal health levy applied at the visa application processing stage or immediately prior to a visa being granted. Option 1: Proactive compliance and visa cancellation Option 2: Generic approach across temporary visa subclasses Option 3: Template approach across temporary visa subclasses Option 4: Health levy at application stage or prior to a visa grant Option 1 Proactive compliance and visa cancellation 3.2 Under the current regulatory arrangements, temporary visa holders who are required to obtain insurance cover are advised that, if information from an insurer is brought to the attention of a visa processing officer that they have inadequate or no insurance cover, or have failed to renew their policies, the lapse will be referred to a monitoring officer for further consideration and cancellation of their visa could occur. 3.3 Even though sponsors are not generally required to meet the medical or hospital expenses of a sponsored visa holder, except where they have opted to do so voluntarily or are under a preexisting regulatory obligation, a monitoring officer may nevertheless enquire from them about the health insurance arrangements in place for their sponsored visa holders. 3.4 In doing so, a monitoring officer may inform the sponsor, particularly business sponsors who are reliant on their sponsored employees remaining in Australia, that a failure by the latter to maintain adequate arrangements for health insurance may result in a cancellation of these employees visa grant (see clause in Attachment B). 3.5 Under an expanded and more proactive compliance regulatory regime, State and Territory hospitals and health Agencies should arguably be able to better safeguard their scarce medical resources through playing a more active role in monitoring, tracking and reporting temporary visa holders who either lack the funds to meet their treatment needs, or who have inadequate or no insurance cover.
10 Page 10 of In practical terms, appropriate modifications to the current record keeping and IT systems across all jurisdictions will be necessary to enable all States and Territories to share their medical treatment and hospital data with each other, as well as with appropriate Commonwealth Government Agencies and insurers in a seamless and transparent manner. 3.7 With hard jurisdictional, migration and insurers data to support the cancellation of visas when appropriate, temporary visa holders should accordingly be provided with a strong incentive to ensure that they make adequate preparations for all their medical treatment and allied needs when visiting Australia. Advantages of Proactive Compliance More robust compliance should have a positive impact on scarce medical resources and allied health care by encouraging temporary visa holders to assume greater responsibility in better managing their treatment costs. Given a more proactive compliance regime, Government Agencies across all jurisdictions will have a greater incentive to collect, share and integrate their respective data about visa holders presenting for medical and allied treatment. A more proactive and evidence based compliance regime will result in a more transparent and co-operative approach across all jurisdictions through promoting greater predictability and reducing uncertainty in the medical treatment of temporary visa holders. Disadvantages of Proactive Compliance A more proactive regulatory approach is likely to impose significant transaction costs for the Commonwealth, State and Territory regulatory bodies, insurers and other key stakeholders. The increased transaction costs of a more proactive compliance regime is likely to be passed on to temporary visa holders, with potential negative flow-on to the Australian economy, including a potential decrease in the number and/or duration of overseas visitors for the tourist industry. The necessary resources and costs to detain and deport temporary visa holders who have had their visas cancelled for failing to maintain adequate health insurance cover, or for not having the necessary funds to meet their medical treatment, are likely to outweigh any savings and may not necessarily have a deterrent effect on other temporary visa applicants or holders. Discussion Questions 7. On balance, will an enhanced compliance approach be likely to lead to a more transparent, consistent, effective and sustainable visa regime and ensure that temporary visa holders obtain and maintain adequate insurance cover? 8. Should the Commonwealth Government, State and Territory health Agencies, hospitals and insurers co-operate to implement a shared compliance record keeping and database system, which is aimed at ensuring that temporary visa holders will adopt a responsible approach to their medical treatment costs?
11 Page 11 of 27 Option 2 Generic approach across temporary visa subclasses 3.8 Currently, only nine out of the twenty-five temporary visa subclasses that are subject to a mandatory health insurance requirement operate under an explicitly generic framework (see again Attachment A), which is best illustrated by the 457 visa subclass. Core elements of this approach, which are set out in Attachment B and could potentially be standardised across all temporary visa subclasses are: evidence of visa applicants/holders having made adequate arrangements for health insurance cover, which may include a written letter or cover note from an acceptable health insurance provider certifying that the main applicant and any accompanying family members are, or will be immediately upon visa grant or their arrival in Australia, covered by health insurance that is at least as comprehensive as a stipulated minimum level of insurance; adequate level of health care, namely, that the policy will include five types of health insurance benefits covering public hospital, surgically implanted prostheses, pharmacy, medical and ambulance services; that there will be informed financial consent; appropriate waiting periods and excluded treatments; global annual benefit limits; portability; disadvantageous buy-out clauses; and conditions with respect to arrears payments; reciprocal health care agreements with Australia, which allows nationals of certain countries to be eligible for a Medicare card or certain Medicare services for a specified duration depending on their circumstances; acceptability of insurance provider, who may either be an Australian or overseas insurer, with appropriate prudential investigations to ensure that the latter will be able to honour the policy; and Condition 8501, Schedule 8 of the Regulations, which requires that the temporary visa holder maintains adequate arrangements for health insurance while the holder is in Australia. Advantages of a Generic Approach With a generic framework applied uniformly to temporary visa applications, the assessment and decisions of visa processing officers would be more transparent, consistent and certain. The incentive for applicants to visa shop for a temporary visa subclass with less onerous, or no health insurance or self-funding, requirements is tempered. With a predetermined threshold of a minimum adequate health coverage across all temporary visa subclasses, the incentive by local and overseas insurers to competitively retail, and for visa holders to cheaply source, policies that may potentially leave visa holders financially reliant on the Australia s health system would be reduced. Disadvantages of a Generic Approach Generic performance regulations are unsustainable since they offer greater scope for interpretation than more narrowly prescriptive and predetermined regulatory approaches. A one size fits all approach is likely to disadvantage a number of temporary visa applicants by not taking sufficient account of their individual circumstances and potential medical treatment needs. The comparatively higher costs of a generic regulatory pathway for certain temporary visa applicants, for example the large cohort of tourists and other short term visitors under 75 years who may have opted for minimal or no health insurance cover, is likely to increase the attractiveness of other countries as a travel destination to the detriment of Australia s tourist industry.
12 Page 12 of 27 Discussion Questions 9. On balance, is a generic regulatory approach likely to lead to a more transparent, consistent, effective and sustainable visa regime and ensure that temporary visa holders obtain and maintain adequate insurance cover? 10. Assuming that a generic approach is standardised across all temporary visa subclasses, what would be the justification for exempting some applicants from such a framework? What alternative and/or complementary scheme(s) could be implemented for exempted visa holders to ensure that the integrity of Australia s visa regime is nevertheless maintained? Option 3 Template approach across temporary visa subclasses 3.9 For the eight student type visa subclasses that are also subject to a mandatory health insurance requirement, a more narrowly prescriptive template approach, with a set of established conditions aims to simultaneously ensure that the health of overseas students is safeguarded while the medical and allied costs of nearly 281,000 temporary visa holders in these subclasses are not shifted to the Australian community (see again Attachment A) Some core aspects of a template approach for a student visa, which are set out in Attachment C and could be generalised across all temporary visa subclasses, include: Overseas Student Health Cover (OSHC), which is a defined insurance product that must be purchased by student visa holders prior to their arrival in Australia. The policy is for the duration of their visas and is designed to ensure that overseas students have access to basic medical and hospital care as well as limited benefits for pharmaceuticals and ambulance services; health insurers registered in Australia under the Private Health Insurance Act 2007 are eligible to provide OSHC to overseas students if they have been approved by the Commonwealth Department of Health and Ageing to do so through a Deed of Agreement; appropriate OSHC cover is deemed to be in place where: o the student is covered by a national health scheme or arrangement approved by the Department of Health and Ageing (DoHA) as being adequate health insurance (for example, Norwegian National Insurance Scheme for Norwegian students and CSN Insurance - the Swedish National Board of Student Aid for Swedish students); or o the student and their accompanying family members are sponsored by Defence under the Defence Cooperation Program (DCP). Decision makers should note that students sponsored under the Defence Fee For Service (FFS) arrangements are not provided with OSHC and will need to submit evidence of OSHC as part of their application; or o the student is sponsored by AusAID who arrange OSHC on their behalf. AusAID do not provide OSHC for members of the AusAID's student's family. Therefore family unit members accompanying the student to Australia will need to provide evidence that they have OSHC; or o the student is an Endeavour Award holder, and presents evidence that their health insurance has been arranged by DEEWR.