Treatment Benefits (Special Access) Rules 2019

Several key concepts underpin the instrument. First, travel is defined in section 4 as travel from the person’s residence to the destination and return. That means only round trips are covered; a one way journey ending in permanent relocation would not qualify. Residence includes both permanent and temporary places of residence at the relevant time, so a person staying in a temporary home while receiving treatment may still use that as the reference point.

Travelling expenses (section 5) comprise expenditure on transport, accommodation or meals necessarily incurred in connection with travel under section 22 of the Act. The phrase “necessarily incurred” imports a requirement that the expense be reasonable and unavoidable; the Commission can query whether a cheaper alternative should have been chosen. The most important constraint is the most appropriate form of transport (section 6). The Commission determines which mode of transport is most appropriate by reference to six factors: reasonably available forms, their cost including class differences, the desirability of the cheapest suitable transport, the person’s mental or physical disablement, the distance, and whether the route was the most direct and practical. This test gives the Commission considerable discretion to override the person’s preferred mode if a cheaper alternative is reasonably available.

The relevant distance (section 7) is the trigger for most entitlements. If the distance from the residence to the treatment location is more than 50 kilometres, the relevant distance is the greater of (a) the distance determined by the Commission to the closest practical treatment location, or (b) 50 kilometres. That means the Commission can use a notional “closest practical treatment location” to calculate reimbursement, even if the person actually travelled further. If the actual distance is 50 kilometres or less, the relevant distance is that shorter distance - but then many other entitlements (such as meal payments and overnight accommodation) do not apply because the distance threshold is not exceeded. Practically, a person whose treatment location is within 50 km may receive no travelling expenses at all unless they incurred parking fees.

The instrument distinguishes three kinds of accommodation: commercial, subsidised, and private. Commercial accommodation is provided by a hotel or motel; subsidised accommodation is cost recovery accommodation provided by an organisation that receives a subsidy (such as a hostel); private accommodation is everything else. The nightly rates differ markedly: commercial in a capital city is $176.50, non capital commercial is $148.60, subsidised is $92.80, and private is $46.40. The definition of attendant is someone authorised by the Commission under subsection 22(2) of the Act to accompany an eligible person.

Annual increase in rates (sections 12 and 13) refers to the mandatory indexation of the transport rate (36 cents per km) and all accommodation and meal rates. The increase is calculated using the All Groups Consumer Price Index for the eight capital cities, comparing the March quarter before the end of the current financial year to the March quarter before the start of that year. The formula produces a proportional increase, with rounding rules: transport rates to 0.1 cents, accommodation and meal rates to 10 cents. If CPI falls, no increase occurs (the formula only applies if the latest CPI number is greater). There is no provision for a decrease.

The instrument directly affects three groups: eligible persons, attendants authorised by the Commission, and the Commission itself. Eligible persons are individuals who meet the criteria for the special access scheme under the Act - typically those needing treatment not otherwise available through standard Medicare or state schemes. The instrument does not define who is eligible; that is determined by the Act. For such persons, the instrument sets the maximum reimbursement they can receive for travel, accommodation and meals. In practice, many eligible persons will be residents of rural or remote areas who must travel long distances to access specialist treatment. The instrument’s 50 kilometre threshold means that those living close to a treatment centre receive nothing in travel expenses, even if they face other costs (lost wages, child care). The distinction between the actual distance travelled and the distance to the closest practical treatment location can also reduce the amount paid, creating a financial incentive for the person to choose a provider near the closest practical location, even if they prefer a different one.

Attendants are a secondary group. The instrument explicitly authorises payment for an attendant’s travel and accommodation when accompanying an eligible person who is admitted to hospital. The attendant may be entitled to return home while the patient is hospitalised and then travel back, with reimbursement capped at a formula that compares the hypothetical cost of driving home and back versus the cost of staying in accommodation near the hospital. This is designed to minimise total cost to the scheme but imposes a compliance burden on the attendant to provide evidence of transport used and distances.

The Commission is the body that administers the instrument. It must assess claims, request additional information (as the example in section 11 illustrates), determine the most appropriate form of transport, calculate relevant distances, and apply indexation each year. The Commission also has discretion: it may authorise an attendant under the Act, and it determines the closest practical treatment location. That discretion introduces uncertainty for claimants, because the final amount payable depends on administrative decisions that may differ from the person’s actual choices. The broader public is indirectly affected as taxpayers funding the scheme. The instrument does not impose any obligations on treatment providers; they are not required to accept the rates as full payment, nor are they subject to any enforcement under these Rules.

The primary duty rests on the Commission to pay travelling expenses in accordance with the Rules when a valid claim is made. However, the Commission’s duty is qualified by its power to determine key variables. Under section 5(2), the amount for transport is capped at the cost of transport by the most appropriate form of transport over the relevant distance, as calculated by the Commission. The Commission must therefore determine the most appropriate form (section 6) and the relevant distance (section 7). The Commission also has a duty to apply the prescribed rates in sections 8 and 9 and to increase them annually under sections 12 and 13. It must also, if requested or on its own initiative, authorise attendants under the Act - but the instrument does not set out any criteria for that authorisation.

Eligible persons have the right to claim travelling expenses up to the amounts specified, but that right is subject to the Commission’s determinations. For example, if the person uses a more expensive form of transport than the Commission considers “most appropriate”, they may receive only the amount that the cheaper option would have cost. The person also has the right to choose the type of accommodation (commercial, subsidised, private), and the rate paid corresponds to that choice. However, if the person stays in private accommodation, the rate is only $46.40 per night, which may be less than their actual outlay if they are staying with family and incurring costs such as gifts or contributions, though the instrument defines “private accommodation” by exclusion (not commercial or subsidised) and does not require a receipt. The instrument does not expressly require the person to keep receipts, but the phrase “costs necessarily incurred” implies that the Commission may ask for evidence.

For attendants, the right to claim additional expenses when the patient is admitted is set out in section 10. The attendant can claim the cost of returning home and coming back, plus accommodation and meals while waiting. But this is capped by subsection 10(4): the total paid for staying cannot exceed the amount that would have been paid if the attendant had driven home and back. That cap creates an incentive for the attendant to go home if the distance is short and the hospital stay is long, because staying in commercial accommodation may exhaust the cap quickly. The attendant does not have a right to choose the most expensive option; the cap applies regardless.

The right to annual indexation is automatic; the Commission does not have discretion to withhold it. Eligible persons and their representatives should be aware that the rates in the instrument are as at 1 July 2019, and each subsequent year the rates increase by the CPI percentage. However, the indexation is applied prospectively only; there is no provision for retrospective adjustment if a claim is lodged after a rate change but the travel occurred earlier. The date of travel likely determines which rate applies.

The Rules themselves do not create any penalty provisions. Enforcement would be found in the Act, specifically any offence for making false or misleading statements to obtain benefits. Section 137.1 of the Criminal Code (Commonwealth) applies generally to providing false information to a Commonwealth entity, but the Act may also contain specific offence provisions. The Commission may also decide to recover overpayments: if it later determines that a person was paid more than they were entitled to (for example, because the distance was miscalculated or the transport was not the most appropriate), it could seek repayment as a debt due to the Commonwealth. The Rules provide no limitation period for such recovery; general Commonwealth law would apply.

The Commission has investigative powers under the Act to request additional information. Section 11 includes an example where the Commission asks why a person travelled to a location that was not the closest practical treatment location. That fact finding may lead to the Commission reducing the amount payable, effectively denying the claim for the extra distance. The Commission can also refuse to pay an attendant if the attendant was not authorised in advance - the definition of “attendant” in section 4 requires authorisation by the Commission under subsection 22(2) of the Act. If a person travels with someone they consider an attendant but the Commission has not authorised that person, no expenses are payable for that person.

The instrument also creates a system of reimbursement rather than payment in advance, so the risk of overpayment is low. The Commission can verify distances, transport used, and accommodation type at the claim stage. There is no requirement in the Rules for pre approval of travel, but the Commission may have internal policies requiring it. The absence of explicit penalties in the Rules does not mean the scheme is lenient; the Act and general Commonwealth fraud provisions provide enforcement teeth.

The instrument is expressly made under section 63 of the Treatment Benefits (Special Access) Act 2019 and must be read with that Act. The Act empowers the Commission to pay travelling expenses “in such circumstances and at such rates as are specified” in the Rules (section 22). Accordingly, the Rules are the sole source of the rates and conditions. Any amendment to the Act that changes section 22 or the definition of “eligible person” would affect the scope of the Rules. Similarly, the Act’s definition of “treatment” (not reproduced in the Rules) determines what medical services qualify.

The instrument does not interact directly with Medicare, the Pharmaceutical Benefits Scheme, or private health insurance, but in practice an eligible person may be receiving treatment under multiple schemes. For example, if the treatment is covered by Medicare, the person may also claim travel expenses under these Rules - there is no clawback provision. However, if the person receives a separate travel benefit from a state or territory scheme (such as the Patient Assisted Travel Scheme), there may be a question of double dipping. The Rules do not address this, but the Act may contain provisions preventing duplication.

Tax treatment is relevant. Reimbursements for travel, accommodation and meals are generally not assessable income if they are for work related travel, but for medical travel the position is less clear. The Australian Taxation Office typically treats such payments as non assessable if they are to assist with medical costs and are provided under a legislative scheme. The instrument does not mention tax, so claimants should seek their own advice.

The Rules also interact with state and territory workers compensation schemes if the injury or illness is workplace related. A person entitled to travel benefits under these Rules may also have a claim under state legislation; the rules of set off or recovery may apply, but the Rules are silent. The Commission may require disclosure of other benefits to avoid duplication.

The indexation mechanism in sections 12 and 13 uses the CPI as published by the Australian Statistician. The instrument specifies that if the reference base changes, later numbers are used, and substituted CPI numbers are disregarded. This ensures consistency with official statistics but may cause timing lags: the March quarter CPI for a given year is published in April, and the increase applies from 1 July of that year, meaning the Commission must act quickly to update rates.

The instrument commenced on 1 July 2019. The text provided does not include any subsequent amending instruments, so it is not possible to identify specific amendments since that date. However, the instrument contains a built in amendment mechanism through annual indexation: rates automatically increase each 1 July without the need for a legislative amendment. That means the operative rates change annually, but the text of the instrument as published (the 2019 version) remains the authoritative legal text; the actual payable amounts each year are a product of applying the indexation formula to the base rates.

Any substantive changes to the structure of the Rules - for example, altering the 50 kilometre threshold, changing the factors for determining most appropriate transport, or adding new categories of accommodation - would require a formal amendment to this legislative instrument by the Minister or the Commission (depending on the delegation under section 63 of the Act). Such amendments would be registered as a Federal Register of Legislation notice and would appear as a separate instrument. The user of the Rules must therefore check the current version of the instrument on the Federal Register, not rely on this 2019 text alone for current rates. For example, the CPI increases each year; the 36 cents per kilometre rate in section 8 will have risen by the cumulative CPI over the years since 2019. As of 2025, the rate would be approximately 41 cents, depending on actual CPI figures.

The indexation provisions themselves have not been amended in the source text, but they could be: for example, the rounding rules could be changed, or a floor could be introduced to prevent rates from falling. The instrument does not contain a sunset clause, so it continues in force unless repealed.

The source text contains no references to litigation or court decisions. However, the instrument creates several points that could give rise to judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) or the general common law. The Commission’s discretion to determine the “most appropriate form of transport” is a decision of an administrative character that may be challenged if it is unreasonable, takes into account irrelevant considerations, or fails to take into account relevant ones. For example, if the Commission rejects a claim for airfare because it considers driving more appropriate, but the person has a physical disability that makes long car travel painful, the decision could be reviewed. The factors in section 6 include the degree of mental or physical disablement, so a failure to give proper weight to that factor could be a legal error.

Similarly, the Commission’s determination of the “closest practical treatment location” under section 7 could be disputed. The word “practical” implies a level of feasibility beyond mere geographic distance; a closer location might not have available appointments or suitable specialists. If the Commission selects a location that is closer but clinically inappropriate, the person may argue that it was not “practical”. The example in section 11 demonstrates that the Commission can seek additional information about why a person did not attend the closest practical location, suggesting that the determination is made after the fact and may be contested.

Attendant authorisation decisions under subsection 22(2) of the Act are also susceptible to review. The Rules do not specify criteria for authorising an attendant, leaving the Commission broad discretion. A person whose requested attendant is refused may challenge that refusal as arbitrary or for an improper purpose.

Because the instrument deals with relatively small sums (hundreds or low thousands of dollars per trip), the cost of litigation may outweigh the amount in dispute. Most disputes are likely to be resolved through internal review or the Commonwealth Ombudsman rather than courts. No reported cases are cited in the source, but that does not mean none exist; the user would need to search for decisions under the Act itself.

Several provisions can trap unwary claimants. First, the closest practical treatment location rule in section 7 can dramatically reduce reimbursement. If a person lives 200 kilometres from the treating hospital but a closer hospital (say 80 kilometres away) could provide the same treatment, the Commission may calculate the relevant distance as 80 kilometres (if that is greater than 50 km) rather than 200 kilometres. The person would only be reimbursed for the shorter distance, even though they actually travelled 200 kilometres. The onus is on the person to explain why the closer location was not “practical”. The example in section 11 explicitly shows the Commission seeking that information.

Second, the most appropriate form of transport test (section 6) means the person cannot simply choose any mode. If a direct flight costs $400 but a bus costs $80 and takes only slightly longer, the Commission may decide the bus is most appropriate and cap reimbursement at $80. The person must then decide whether to bear the extra cost themselves. The test includes “the desirability of using the cheapest form of suitable transport” as a factor, which tilts strongly toward economy options.

Third, the 50 kilometre threshold is a cliff. If the distance from residence to treatment location is 50 kilometres or less, the person receives no transport reimbursement (except parking fees) and no meal allowance, regardless of actual expenses. A person living 49 km away gets nothing; a person living 51 km away gets the full benefit. There is no tapering or partial allowance. This encourages some claimants to exaggerate distance or choose a treatment location just beyond 50 km.

Fourth, attendant entitlements are not automatic. The attendant must be authorised by the Commission in advance (see “attendant” definition read with subsection 22(2) of the Act). If a family member drives the patient but has not been formally authorised, no expenses are payable for that person. The Rules also limit attendant accommodation to the lesser of two calculations (subsection 10(4)), which in long hospital stays may be much less than actual costs. The example shows that for a three admission, the attendant’s additional expenses are capped to the cost of driving home and back.

Fifth, private accommodation at $46.40 per night may not cover the true cost of staying with friends or relatives. While the person may not have a receipt, the Commission may still accept the claim, but the low rate means the person effectively subsidises the scheme. By contrast, commercial accommodation in a capital city pays over three times that amount, creating an incentive to choose a hotel even if free accommodation is available.

Sixth, parking fees are reimbursed under section 5(4) only if incurred at or near the treatment location. Parking at a hotel while staying overnight is not covered unless it is directly related to the treatment visit. The instrument does not define “necessarily incurred” for parking, leaving scope for disputes.

Seventh, indexation uses the March quarter CPI published before the 1 July increase, but that CPI reflects prices from the previous three months. If inflation spikes later in the financial year, the increase may be insufficient. Conversely, if inflation falls, rates do not decrease (the formula only applies when CPI increases). This asymmetry benefits claimants in deflation but may lag behind real cost increases in fuel and accommodation.

Eighth, travel outside Australia is excluded (see note under section 8). Any treatment overseas is not covered, even if the eligible person lives near the border and the nearest suitable treatment is in another country.

Finally, the instrument is silent on multiple trips for the same course of treatment. Each trip is a separate claim, subject to the same rules. There is no cap on total annual travel expenses, so frequent travel could accumulate substantial reimbursements, but each trip is assessed independently.

For an eligible person, compliance begins before travel. First, confirm eligibility under the Act - that the person is an “eligible person” for the special access scheme. Second, if planning to be accompanied by an attendant, ensure the Commission has authorised that person under subsection 22(2) of the Act. The instrument does not set out the process for authorisation, but it should be obtained in writing before travel.

When booking transport, the person should consider what the Commission is likely to deem the “most appropriate form of transport”. Driving a private vehicle is usually the default, reimbursed at 36 cents per km (indexed). If other forms are used (air, rail, taxi), keep receipts and be prepared to justify why they were necessary - for example, because of a disability that prevents driving, or because the distance is too great to drive in one day. The person should also confirm that the route taken was the most direct practical route; any detour may reduce the reimbursement unless the detour was for treatment itself (which may be covered under section 11).

For accommodation, choose the type that suits but be aware that the amount paid is fixed per night by category. If staying in commercial accommodation, the person must accept that only the specified rate is paid, regardless of the actual tariff. Overpayment will not be reimbursed. Keep receipts for accommodation and meals, especially if claiming the “subsidised” rate, as the Commission may need to verify that the accommodation is indeed subsidised. For private accommodation, a simple declaration may suffice, but the low rate means the person will likely need to absorb any additional cost.

Meal expenses for day trips: if the return distance exceeds 50 km but does not exceed 200 km, daily meal expense is $14.80; if over 200 km, it is $30.00. The person must travel more than 50 km from residence to destination to qualify. If they travel less than 50 km, no meal allowance is payable even if they are away all day. For overnight stays, the nightly accommodation rate includes meals, so no separate day meal amount is paid for that day (but the example in section 9 shows separate day meals for the return day if no overnight stay that night).

When completing a claim, the person must provide the distance travelled. The Commission will apply the relevant distance rule under section 7: if the distance to the actual treatment location exceeds 50 km, the Commission may substitute the distance to the closest practical treatment location. To avoid a reduced payout, the person should provide a written explanation if they did not attend the closest practical location - for example, because that location had no available appointments, or because the specialist at the preferred location has unique expertise. The example in section 11 suggests the Commission will request additional information before making that determination.

For multiple treatment locations in the same city or town, the person should claim the greatest amount under section 11: that is, the sum of (a) travel from residence to first location and from last location back to residence (subject to section 7), plus (b) travel between locations. The example shows that the total distance can be aggregated, but the Commission will still consider the closest practical location for the initial leg.

Attendants must keep their own records of travel and accommodation. Section 10(2) requires that attendant transport be based on the same mode as used for the eligible person. If the attendant returns home while the patient is hospitalised, they must document the distances driven and any accommodation costs for the return trip. Section 10(4) caps the accommodation cost for the attendant staying near the hospital at the lower of the cost of a hypothetical return trip by car and the standard nightly rate under section 9(1). That calculation is complex; the Commission should provide the calculation. The attendant should not assume they can claim the full commercial rate for multiple nights.

Finally, all claimants should be aware of the annual indexation. The rates in this summary are for 2019; each year on 1 July they increase. The current rates are obtained from the Federal Register of Legislation or the Commission’s website. Claims should reference the correct rate for the date of travel. There is no provision for backdating indexation if a claim is lodged late.