Health Insurance (Professional Services Review – Allied Health, Primary Health Care and Others) Determination 2023

The instrument is short and conceptually focused. It rests on three central concepts: the Act-based purpose for the determination, the list of practitioners, and the list of professions, plus the definitional qualification of practitioner status.

1. Statutory hook: subsection 81(1A) of the Act. The instrument is made under s 81(1A) (s 3) and explicitly says it is for the purposes of paragraph 81(1A)(a) (practitioners) and paragraph 81(1A)(b) (professions) (ss 6-7). The instrument therefore performs the single legal function of populating those statutory categories; it does not purport to reform the larger Professional Services Review machinery of the Act within the text of the instrument itself.

2. Practitioners (Schedule 1 and s 6). Schedule 1 enumerates twelve categories of "health professionals determined to be practitioners". The list is granular: Aboriginal and Torres Strait Islander health practitioners; Aboriginal health workers; audiologists; diabetes educators; dietitians; exercise physiologists; mental health nurses; occupational therapists; orthoptists; psychologists; social workers; speech pathologists. Section 6 is the operative clause that applies the Schedule 1 list to paragraph 81(1A)(a).

3. Professions (Schedule 2 and s 7). Schedule 2 lists twelve corresponding "vocations determined to be professions": Aboriginal and Torres Strait Islander health practice; Aboriginal health worker services; audiology; diabetes education; dietetics; exercise physiology; mental health nursing; occupational therapy; orthoptic health services; psychology; social work; speech pathology. Section 7 applies the Schedule 2 list to paragraph 81(1A)(b). The mapping between Schedule 1 and Schedule 2 is mostly one-to-one, but the instrument makes a legal distinction between a person (practitioner) and the vocation or profession as a category for the Act’s purposes.

4. Definitions and eligibility filters (s 5). Section 5 supplies specific definitional conditions that govern who qualifies as a practitioner under the list. For some occupations the criterion is statutory registration under the National Law (for example, occupational therapists and psychologists), while for others the criterion is membership or credentialling by a named professional association (for example, Dietitians Association of Australia accreditation as an "Accredited Practising Dietitian", Exercise and Sports Science Australia accreditation for exercise physiologists, Australian Diabetes Educators Association credential for diabetes educators). The definition of "Aboriginal health worker" is confined to persons in States or Territories other than the Northern Territory and tied to specified Certificate III qualifications (s 5). The instrument notes that "National Law" is defined in subsection 3(1) of the Act.

5. Commencement and repeal (s 2, s 4). The whole instrument commenced on 1 April 2023 (s 2). It expressly repealed the 2012 Determination (s 4) but preserved the earlier instrument's application to requests made under subsection 86(1) of the Act before 1 April 2023 (s 8).

These concepts interact mechanically. Whether an individual is captured as a "practitioner" for the Act’s purposes depends on both the Schedule 1 nominal category and fulfillment of the definitional criterion in s 5. Whether a vocation is captured as a "profession" depends solely on its presence in Schedule 2 and the statutory reference in s 7. The instrument is administrative in character: it names and qualifies , it does not set out procedural rules, sanctions or policy rationales beyond the ministerial signature and the statutory authority citation.

The instrument affects three categories of actors in concrete ways: individual health workers and allied health professionals who fall within the specific definitions; institutions and employers who engage or contract those individuals; and the administrative apparatus that implements the Health Insurance Act processes referenced by subsection 81(1A).

1. Individuals: The primary immediate effect is on persons who identify with the occupations named in Schedule 1 but whose status as a "practitioner" for the purposes of the Act depends on meeting the precise definitional criteria in s 5. For example:
   • An audiologist qualifies only if they are a Full Member of Audiology Australia and certified as an "Audiology Australia Accredited Audiologist", or an Ordinary Member,Audiologist, or a Fellow Audiologist of the Australian College of Audiology (s 5). If an audiologist lacks those memberships or certifications, they are not, by this instrument alone, a practitioner for paragraph 81(1A)(a).
   • A dietitian qualifies only if accredited by the Dietitians Association of Australia as an "Accredited Practising Dietitian" (s 5).
   • A psychologist or occupational therapist qualifies only if registered under the National Law in the relevant profession (s 5).
   • Aboriginal health workers are defined narrowly to persons in States or Territories other than the Northern Territory and to those who hold one of the specified Certificate III qualifications awarded by a registered training organisation (s 5).
   • Social workers are included only if they are members of the Australian Association of Social Workers (s 5).
   • Speech pathologists must be "practising members" of Speech Pathology Australia (s 5).

Practitioners therefore need to maintain or evidence the specified membership, registration or credentialling to be covered as practitioners under this Determination.

2. Employers, contracting organisations, and funders: Organisations that employ or contract allied health professionals and primary care providers must be aware that the Determination ties practitioner status to particular registrations and accreditations. Where institutional decisions, contracting conditions, billing arrangements, internal compliance or external reporting rely on whether a staff member or contractor is a "practitioner" under the Health Insurance Act’s professional services review provisions, those organisations will need to verify that nominated staff meet the instrument’s definitional criteria. The instrument does not itself alter employment law or Medicare billing rules; the effect is specifically for the Act’s subsection 81(1A) purposes.

3. Administrative and regulatory entities: The Department of Health and Aged Care, the Minister’s office, and any agency administering the professional services review framework will use this Determination to determine which professions and practitioners fall within the relevant statutory categories. The instrument interacts with the Act’s references to the National Law and subsection 86(1) (s 8), so public decision-makers must track the effective date (1 April 2023) and the savings clause for matters commenced before that date.

4. Persons excluded or in transitional positions: The instrument may exclude persons who would reasonably describe themselves by a profession label but fail the specific credential tests. For example, an individual who has the educational qualifications of an "audiologist" but is not a Full Member of Audiology Australia or not a member of the Australian College of Audiology will not be a practitioner under this Determination. The Aboriginal health worker definition expressly excludes the Northern Territory for that category (s 5), so workers in the NT must be treated differently.

Who pays or is burdened: Practitioners bear the compliance cost of maintaining the stipulated registrations, memberships or accreditations if they wish to be captured by the Determination. Employers and administrative agencies bear verification and record-keeping costs. The instrument does not create financial penalties nor direct funding changes; it allocates legal classification for the Act’s subsection and thus determines which persons and vocations are subject to the Act’s review mechanisms.

The Determination itself does not create new statutory duties or rights beyond classifying persons and vocations for the purposes of paragraph 81(1A) of the Act (ss 6-7). It is an enabling instrument: it decides who is a "practitioner" and what counts as a "profession" for the Act’s specific subsection. Operational duties and rights under the Act remain governed by the Act itself and subsidiary procedures that the Act prescribes elsewhere. However, the Determination produces several practical duties and entitlements that flow from its classificatory effect.

1. Duties to maintain qualifying credentials. For a person to be a practitioner under this instrument, they must meet the definitional criteria set out in s 5. This imposes a de facto duty on individuals who wish to be within the Act’s scope: they must hold and, where applicable, renew and evidence the specific registration, membership, accreditation or credential. Examples from s 5 include:

   • maintain registration under the National Law for occupational therapists and psychologists;
   • maintain accreditation by the Dietitians Association of Australia as an "Accredited Practising Dietitian";
   • hold credentialling from the Australian Diabetes Educators Association for diabetes educators;
   • be a practising member of Speech Pathology Australia for speech pathologists.

2. Duties on organisations to verify. Employers, contracting parties, insurers and other institutions that interact with the Health Insurance Act’s processes and require confirmation of who is a practitioner for its purposes will have a duty to verify that individuals meet the s 5 thresholds. The Determination supplies the objective standards to be checked.

3. Rights to be treated as a practitioner or a profession under the Act. Individuals and vocations that meet the instrument’s criteria gain the legal status of "practitioner" or "profession" in relation to paragraph 81(1A) of the Act. That status has procedural consequences under the Act (though those consequences are not specified in this instrument). Rights and obligations that flow from that Act-level status , for example, rights of notice, review, or participation in any Professional Services Review process , lie in the Act, not in the Determination text itself.

4. Transitional rights. The savings provision (s 8) preserves the effect of the 2012 Determination for specific pre-existing matters, which creates an entitlement for practitioners to have a request under subsection 86(1) of the Act decided with reference to the 2012 Determination if the request was made before 1 April 2023.

5. No new administrative penalties in the instrument. The Determination does not specify penalties, sanctions or enforcement processes; it operates as a classificatory instrument. Any enforcement or sanctioning powers applying to persons classified as practitioners arise from the Act’s other provisions. The instrument therefore creates entitlements and burdens only indirectly by determining who is in the class to which the Act applies.

6. Rights of selection and exclusion by credential holders. Because many of the definitional tests reference membership or accreditation by particular professional bodies (for example, Australian Association of Social Workers membership, Orthoptics Australia membership combined with registration with the Australian Orthoptic Board), those bodies’ credentialling regimes effectively become determinative gates for the scope of the Act. Individuals whose professional associations stop accrediting certain titles, or whose memberships lapse, will lose the Determination’s recognition as practitioners.

In summary, the Determination delegates the factual gatekeeping of who is a practitioner to a mixture of statutory registration regimes and private professional bodies’ membership/accreditation rules. The instrument does not set the duties and rights arising from classification; it designates who is within the Act’s pre-existing regime and thereby triggers Act-level duties and rights that the Act governs.

The Determination itself contains no penalty scheme, monetary fines, criminal offences or procedural enforcement mechanisms. It is an explanatory and classificatory instrument made under subsection 81(1A) of the Health Insurance Act 1973 (s 3) and its operative clauses declare who counts as a "practitioner" (s 6) and what counts as a "profession" (s 7) for the limited statutory purpose. It does not modify or reproduce the enforcement, investigation or sanctioning provisions of the Act.

Consequently, two points follow from the instrument’s text:

1. Enforcement and penalties, if any, are governed by the Act and its other provisions. The Determination locates persons and vocations within the statutory categories to which the Act’s enforcement machinery may apply. The instrument does not create independent grounds for sanction; it supplies classification which may make a person amenable to processes or penalties that the Act itself provides elsewhere. The instrument refers explicitly to the Act (s 3) and to subsection 86(1) of the Act in its savings provision (s 8), which demonstrates that procedural interactions are expected to be resolved under the Act’s provisions.

2. Administrative obligations to satisfy definitional criteria are practical compliance obligations rather than statutory punitive obligations in the Determination. For example, the need to be an "Accredited Practising Dietitian" or a "practising member of Speech Pathology Australia" is a pre-condition for being a "practitioner" under the Determination (s 5). Failure to hold those credentials will mean the person is not a practitioner for the Act’s purposes and therefore not subject to Act-level scrutiny under subsection 81(1A); it will not, in and of itself, attract a penalty under this Determination. Any disciplinary, membership, or registration sanctions will come from the relevant professional bodies or regulatory laws (for example, the National Law regime for registered professions), not from this instrument.

Given those characteristics, the practical enforcement risk for a person or organisation lies in being in or out of the class of persons the Act’s enforcement machinery addresses. Organisations that seek to ascertain whether a review, complaint or request under the Act applies should consult the Act’s enforcement provisions rather than expect to find them in this Determination.

The Determination engages with other legal instruments and regulatory regimes by cross-reference and by making practitioner status conditional upon external registrations, accreditations and memberships. The instrument itself cites the Health Insurance Act 1973, the National Law and several named professional bodies; its legal force therefore operates through those connections.

1. Relationship with the Health Insurance Act 1973. The instrument is made specifically under subsection 81(1A) of the Act (s 3) and declares practitioners and professions for the purposes of paragraph 81(1A)(a) and paragraph 81(1A)(b) respectively (ss 6-7). That means the Determination’s effect is to populate those statutory categories, which the Act then uses in its operational procedures and powers. The savings provision explicitly links to subsection 86(1) of the Act, preserving application of the previous (2012) Determination for requests made under s 86(1) before 1 April 2023 (s 8).

2. Relationship with the National Registration and Accreditation Scheme ("National Law"). Several practitioner definitions require registration "under the National Law" (s 5). The instrument notes that the term "National Law" is defined in subsection 3(1) of the Act (s 5 note). For persons like occupational therapists and psychologists, registration under the National Law is dispositive of practitioner status under this Determination. Therefore, any amendments to the National Law, to registration standards, or to the operation of the national registration boards will have a direct effect on who qualifies as a practitioner under the Determination, even though this Determination does not itself change the National Law.

3. Relationship with professional associations. Many of the eligibility criteria are tied to membership or accreditation by named professional bodies:

   • Audiology Australia and the Australian College of Audiology (s 5).
   • Dietitians Association of Australia (s 5).
   • Exercise and Sports Science Australia (s 5).
   • Australian Diabetes Educators Association (s 5).
   • Australian College of Mental Health Nurses (s 5).
   • Orthoptics Australia and the Australian Orthoptic Board (s 5).
   • Australian Association of Social Workers (s 5).
   • Speech Pathology Australia (s 5).

Those organisations’ own standards, credential definitions, membership criteria, and disciplinary regimes will therefore interact with the Determination. If a professional body alters the meaning of an accreditation label (for example, renames a credential or changes prerequisites), affected individuals may gain or lose practitioner status as a result. The Determination does not create or regulate those schemes; it references them as factual gates.

4. Interaction with state/territory arrangements. The definition of "Aboriginal health worker" is explicitly confined to persons in a State or Territory other than the Northern Territory and linked to particular Certificate III qualifications awarded by a registered training organisation (s 5). That carve-out creates a jurisdictional interaction: the Determination does not treat NT Aboriginal health workers in the same way, which means practitioners’ status under the Act may differ by jurisdiction.

5. Repeal and savings. The Determination repeals the 2012 Determination (s 4) but preserves the earlier instrument’s effect for requests made under s 86(1) before the commencement date (s 8). This transitional rule means that the temporal interface between the prior and current determinations is controlled for legacy matters; for ongoing or future matters the 2023 Determination is the operative list.

6. No internal amendments to the Act. The Determination does not amend the Health Insurance Act 1973 itself; it operates under the power conferred by s 81(1A). It therefore cannot expand or restrict the Act’s powers beyond what the Act permits; it can only define which persons and vocations are captured under the statutory labels.

In short, the Determination is a node in a network of legal authorities: it depends on and confers meaning by reference to the Act, the National Law, and several professional bodies’ accreditation and membership regimes. Changes in those external regimes will influence who is included or excluded without the Determination itself changing.

The instrument contains only limited amendment history within its text. Its key historical changes, as recorded in the Determination, are:

1. Repeal of the 2012 Determination. Section 4 explicitly repeals the Health Insurance (Professional Services Review - Allied Health and Others) Determination 2012. The 2012 Determination thus ceases to be the operative list from the commencement date, subject to the savings provision contained in s 8.

2. Commencement detail. Section 2 records that the whole of the instrument commenced, or is taken to have commenced, on 1 April 2023. The commencement table is explicit: Column 1 lists "The whole of this instrument" and Column 2 records "1 April 2023" (s 2). The instrument also contains the usual note that the table relates only to the provisions as originally made.

3. Savings provision for pre-existing requests. Section 8 preserves the 2012 Determination for matters where a request under subsection 86(1) of the Act was made before 1 April 2023. That is the only transitional saving in the instrument and it governs the temporal scope of the repeal.

4. No further amendments recorded. The text includes the statement that any other statement in the commencement table has effect according to its terms and that column 3 information is not part of the instrument (s 2(2)). There are no schedules or provisions indicating subsequent amendments after the making of the instrument, and the instrument does not set out a process for amendment. Any later amendments would be recorded in a re-made or amended instrument, but none are contained within this text.

5. Instrument attribution and date. The instrument is dated 21 March 2023 and signed by the Minister for Health and Aged Care, Mark Butler, which provides internal evidence of the date of making prior to the 1 April 2023 commencement (cover/signature).

Because the text’s amendment history is limited to repeal of the 2012 Determination and replacement with the 2023 Determination effective 1 April 2023, researchers should treat the instrument as a replacement list with a single brief transitional rule. The Determination does not annex or describe any incremental changes between the 2012 and 2023 lists in its text; determining what practical differences exist between the two instruments would require side-by-side comparison of the 2012 schedule, which is not included in this instrument.

The instrument contains no litigation history. It names no judicial decisions, and no case law is cited or referenced in the text. There are no references to prior litigation about the validity or interpretation of the Determination, nor any recorded disputes or appeals housed within the Determination itself.

Consequently, within the four corners of this instrument, there is no evidence of legal challenges or judicial consideration. Any existing or future litigation that touches on the instrument’s classification of practitioners or professions would be sourced to the Health Insurance Act 1973 and to the relevant administrative decisions that apply the Determination; those materials are outside the text of this Determination and are not reflected here.

Users seeking litigation history relevant to the Determination must therefore look beyond this instrument to:

• judicial decisions construing subsection 81(1A) of the Health Insurance Act 1973;
• decisions applying the Professional Services Review processes of the Act to allied health practitioners; and
• challenges to the criteria used by professional bodies whose accreditation or membership is determinative under s 5.

None of those sources are cited in this Determination. The instrument’s silence on litigation means that, for the purpose of analysis grounded in this text alone, there are no recorded cases to cite.

The Determination’s practical effect turns on several precise drafting choices that can create traps for practitioners, employers and administrators. The "gotchas" below are matters where the instrument’s specificity produces potential compliance, coverage or transitional risks. All items are grounded in the instrument’s text.

1. Credential-specific gates. Many categories require particular accreditations or memberships rather than generic professional qualifications (s 5). Example pitfalls:

   • Audiologists are only practitioners if they are Full Members of Audiology Australia and certified as an "Audiology Australia Accredited Audiologist", or are Ordinary Member,Audiologist or Fellow Audiologist of the Australian College of Audiology (s 5). A person who qualifies academically as an audiologist but lacks those specified memberships will not be a practitioner under this Determination.
   • Dietitians must be accredited as an "Accredited Practising Dietitian" by the Dietitians Association of Australia (s 5). A dietitian without that specific accreditation is outside the Determination’s scope.
   • Speech pathologists must be "practising members" of Speech Pathology Australia (s 5). The term "practising member" is not defined further in this instrument, leaving possible ambiguity about what evidence is acceptable.

2. Mixed reliance on statutory registration and private bodies. Some occupations are tied to statutory registration under the National Law (for example, occupational therapists, psychologists), while others are tied to private association credentials (s 5). This hybrid approach means that a change in a private association’s credential format can remove someone from the Determination’s scope without any statutory change. Practitioners should not assume that academic qualifications alone suffice.

3. Geographic carve-out for Aboriginal health workers. The definition of "Aboriginal health worker" applies only to a person in a State or Territory other than the Northern Territory and requires specified Certificate III qualifications (s 5). Practitioners in the Northern Territory who might otherwise be described as Aboriginal health workers are not captured by this definition. Employers and practitioners operating across jurisdictions must be alert to that difference.

4. Membership vs registration ambiguity. The instrument uses different terminologies: "member", "practising member", "registered", "credentialled", "accredited". The Determination does not standardise these terms or define all of them beyond the specific references (s 5). For example, "social worker" is defined by membership of the Australian Association of Social Workers, not by statutory registration. In practice, this raises questions about how lapsed memberships, inactive memberships, student memberships or associate memberships are treated. The Determination does not resolve such borderline cases.

5. Transition timing. The savings provision preserves the old 2012 Determination for requests made under subsection 86(1) before 1 April 2023 (s 8). Parties must therefore check the timing of any requests, complaints or processes that were started before the commencement date because two different determinations may govern different matters. Failing to check the date might lead to incorrect assumptions about which criteria apply.

6. No direct guidance on evidence required. The Determination does not prescribe the form of evidence needed to prove membership, registration, or accreditation. Organisations and agencies will need to design their own verification protocols. This omission creates administrative discretion and the possibility of inconsistent practice.

7. Potential mismatch between profession name and regulatory label. Schedule 2 lists vocational names that are not always word-for-word identical with the terms used in registration or accreditation schemes (for example, "orthoptic health services" in Schedule 2 vs "orthoptist" in Schedule 1 and the requirement in s 5 to be registered with the Australian Orthoptic Board and a member of Orthoptics Australia). Entities must map these labels carefully to ensure consistent interpretation.

8. Reliance on third-party conduct. Because inclusion as a practitioner often depends on third-party organisations’ credentialling and membership decisions, individuals may find their status contingent on decisions outside their control. This creates potential business and compliance risks if a professional body changes standards, suspends accreditation schemes, or alters membership definitions.

9. No express mechanism for disputes about status. The Determination does not create an internal appeal or review mechanism regarding whether a person qualifies as a practitioner under its terms. Where a question arises, parties will need to look to the Act’s administrative processes, to the professional bodies’ membership rules, or to judicial review avenues under general administrative law.

Recognising these "gotchas" is essential for employers, administrators and practitioners who rely on the Determination for decisions under the Health Insurance Act. The instrument’s precision is valuable, but it also shifts compliance risks onto credential maintenance, cross-jurisdictional checks and careful record-keeping.

Compliance with the Determination is primarily about ensuring that persons and organisations can demonstrate whether an individual meets the specific definitional criteria listed in s 5 and is therefore a "practitioner" for the purposes of paragraph 81(1A)(a) of the Act, and that a vocation appears in Schedule 2 for paragraph 81(1A)(b). Because the Determination itself does not prescribe process or evidence, practical compliance is administrative and documentary. The following steps, grounded in the instrument’s text, are the minimum operational measures an organisation or practitioner should take.

1. Audit and map staff/contractors against Schedule 1 and s 5. Create a roster of all personnel who might be captured by Schedule 1’s categories and, for each person, record:

   • the Schedule 1 category that nominally applies (for example, "dietitian", "speech pathologist");
   • the specific credential required by s 5 (for example, "Accredited Practising Dietitian", "practising member of Speech Pathology Australia", "registered under the National Law");
   • the current status of that credential (active, lapsed, pending, provisional) and expiry dates;
   • evidence documentation (certificates, membership numbers, registration confirmations from the relevant board or association).

2. Verify memberships and registrations with named bodies. Because the instrument ties practitioner status to named professional bodies and the National Law, verification should be direct:

   • obtain written confirmation or electronic verification from the relevant professional body or registration board demonstrating current status;
   • where a registration is governed by the National Law, verify via the appropriate national register or the board responsible for the profession;
   • ensure that the type of membership or accreditation matches the instrument’s wording (for example, "Accredited Practising Dietitian", not merely "member of the Dietitians Association").

3. Address jurisdictional distinctions. For Aboriginal health workers, ensure that the person is located in a State or Territory other than the Northern Territory if relying on the Determination’s definition (s 5). If workers operate across borders, maintain jurisdiction-specific records.

4. Maintain renewal calendars and contingency plans. Because practitioner status depends on ongoing credential maintenance:

   • track renewal dates for registrations, accreditations and memberships;
   • develop procedures for handling lapses (for example, temporary re-assignment or suspension from activities that would trigger Act-level review processes);
   • identify alternative qualified personnel if a practitioner’s credential lapses.

5. Document evidence for administrative or Act-level processes. The Determination does not set the form of evidence to be produced in any Act procedure, so prepare documentation packages in advance that include:

   • certified copies of registration certificates, membership confirmations, accreditation letters or credential certificates;
   • a written record linking the person’s credentials to the specific s 5 definition they satisfy.

6. Review recruitment and contracting templates. Update employment contracts, contractor agreements and professional onboarding checklists to require proof of the precise credentials the Determination references. Include clauses requiring practitioners to notify employers of any change to their membership or registration status that would affect their status under the Determination.

7. Internal training and legal liaison. Provide guidance to line managers, billing staff, and compliance officers on the Determination’s scope:

   • train staff who make determinations about practitioner status to check the instrument’s schedules and definitions;
   • involve legal counsel where the status is contested or unclear.

8. Transitional checks for earlier matters. For any matter that was the subject of a request under subsection 86(1) of the Act before 1 April 2023, confirm whether the 2012 Determination applies by reference to s 8. Record dates of requests and ensure the correct Determination is used in any review or administrative decision.

9. Monitor changes in third-party credential regimes. Because this Determination anchors status to external bodies, organisations should monitor those bodies for changes to accreditation names, membership categories, or registration procedures. Implement a process to evaluate the impact of such changes on practitioner coverage under the Determination.

10. Prepare for dispute resolution. The Determination itself provides no dispute mechanism for contested practitioner status. Where disputes arise, be ready to escalate to:

    • the relevant professional body for clarification of membership or accreditation status;
    • the national registration board (where applicable) for registration issues under the National Law;
    • legal advice on whether a particular administrative decision under the Act should be challenged through the Act’s procedural routes or judicial review.

Following these compliance steps will not change the Determination’s legal effect, but it will reduce operational risk in contexts where being designated a "practitioner" under paragraph 81(1A) of the Act has material consequences. The core compliance task is documentary: maintaining up-to-date evidence that the person meets the s 5 criteria and ensuring organisations apply the correct Determination for the relevant time period under s 8.