EXPLANATORY STATEMENT
Issued by the Authority of the Minister for Health
Private Health Insurance Act 2007
Private Health Insurance (Benefit Requirements) Amendment Rules 2013 (No. 3)
Authority
Section 333-20 of the Private Health Insurance Act 2007 (the Act) provides that the Minister may make Private Health Insurance (Benefit Requirements) Rules providing for matters required or permitted by Part 3-3 of the Act, or necessary or convenient to be provided in order to carry out or give effect to Part 3-3 of the Act.
The Private Health Insurance (Benefit Requirements) Amendment Rules 2013 (No. 3) (the Amendment Rules) amend Schedules 1 and 3 of the Private Health Insurance (Benefit Requirements) Rules 2011 (the Principal Rules) which commenced on 1 November 2011.
Purpose
The purpose of the Amendment Rules is to amend Schedules 1 and 3 of the Principal Rules to insert eight new Medicare Benefits Schedule (MBS) item numbers contained in the Health Insurance (General Medical Services Table) Amendment (Bariatric and other measures) Regulation 2013, and to remove three MBS item numbers which are no longer current. The updates reflect changes to the MBS which took effect from 1 July 2013.
These changes are additional to changes made by the Private Health Insurance (Benefit Requirements) Amendment Rules 2013 (No. 2) which took effect on 1 July 2013. Those Rules reflected changes made by the Health Insurance (General Medical Services Table) Amendment Regulation 2013 (No. 1) which commenced on 1 May 2013 and other changes to the MBS which took effect from 1 July 2013.
This amendment ensures that the minimum benefit requirements apply to items 31569, 31572, 31575, 31578, 31581, 31584, 31587 and 31590 where applicable. The Department has not been advised that anybody has been disadvantaged by the short delay in including these items in the Amendment Rules. Additionally, the Department does not expect any disadvantage to be suffered by patients due to the very short period of time between when the items were added to the MBS and the commencement of the Amendment Rules. It is also noted that the delay did not prevent insurers from covering these items under their insurance policies and paying benefits for patient treatment with respect to them.
Background
The Principal Rules, which commenced on 1 November 2011, provide for the minimum benefit requirements for psychiatric, rehabilitation and palliative care and other hospital treatment. Schedules 1 to 5 of the Principal Rules set out the minimum levels of benefit which are payable for hospital treatment. Namely, benefits for overnight accommodation (Schedules 1 and 2), same day accommodation (Schedule 3), nursing-home type patients (Schedule 4) and second tier default benefits (Schedule 5).
Schedule 1 categorises MBS item numbers into overnight patient classifications comprising ‘Advanced surgical patient’, ‘Obstetric patient’, ‘Surgical patient’, ‘Psychiatric patient’, ‘Rehabilitation patient’ and ‘Other patients’. Schedule 3 sets out MBS item numbers for the same day hospital accommodation benefits which are payable for privately insured patients in all states and territories.
Consultation
In accordance with changes to the MBS, eight MBS item numbers have been added and three MBS item numbers have been deleted. Medical advice was sought from within the Department regarding these amendments. No further consultation was undertaken because the amendments are minor in nature and do not significantly affect existing arrangements.
The Amendment Rules commence on the day after registration.
The Amendment Rules are a legislative instrument for the purposes of the Legislative Instruments Act 2003.
Authority: Section 333-20 of the
Private Health Insurance Act 2007
MEDICAL BENEFITS DIVISION
DEPARTMENT OF HEALTH AND AGEING
4 JULY 2013
ATTACHMENT
DETAILS OF THE PRIVATE HEALTH INSURANCE (BENEFIT REQUIREMENTS) AMENDMENT RULES 2013 (No. 3)
Section 1 Name of Rules
Section 1 provides that the title of the Rules is the Private Health Insurance (Benefit Requirements) Amendment Rules 2013 (No. 3) (the Amendment Rules).
Section 2 Commencement
Section 2 provides that the Amendment Rules are to commence on the day after registration.
Section 3 Amendment of Private Health Insurance (Benefit Requirements) Rules 2011
Section 3 provides that the Schedule to the Amendment Rules amends the Rules which commenced on 1 November 2011.
Schedule – Amendments
Item 1 – Schedule 1, Part 2 Type A procedures, Clause 4 Advanced surgical patient, subclause (3)
Item 1 amends Schedule 1, Part 2, subclause 4(3) of the Principal Rules by deleting MBS item number 30514 and inserting item numbers 31572, 31581 and 31584.
Item 2 – Schedule 1, Part 2 Type A procedures, Clause 6 Surgical patient, subclause (3)
Item 2 amends Schedule 1, Part 2, subclause 6(3) of the Principal Rules by inserting MBS item numbers 31569, 31575 and 31578.
Item 3 – Schedule 3, Part 2 Type B procedures, Clause 5 Non-band specific Type B day procedures, subclause (1)
Item 3 amends Schedule 3, Part 2, subclause 5(1) by deleting MBS item number 31441 and inserting item number 31590.
Item 4 – Schedule 3, Part 3, Type C procedures, Clause 8 Interpretation, Category 3 Therapeutic Procedures, T1
Item 4 amends Schedule 3, Part 3, Clause 8, Category 3 by deleting MBS item number 14215.
Item 5 – Schedule 3, Part 3, Type C procedures, Clause 8 Interpretation, Category 3 Therapeutic Procedures, T8
Item 5 amends Schedule 3, Part 3, Clause 8, Category 3 by inserting MBS item number 31587.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Private Health Insurance (Benefit Requirements) Amendment Rules 2013 (No. 3)
This Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Legislative Instrument
The Private Health Insurance (Benefit Requirements) Amendment Rules 2013 (No. 3) (the Rules) amend Schedule 1 of the Private Health Insurance (Benefit Requirements) Rules 2011 to update the listing of Medicare Benefits Schedule (MBS) item numbers contained in the Health Insurance (General Medical Services Table) Amendment (Bariatric and other measures) Regulation 2013.
Human rights implications
This Legislative Instrument engages Articles 2, 9 and 12 and of the International Covenant on Economic, Social and Cultural Rights (ICESCR), specifically the rights to health and social security.
The right to health – the right to the enjoyment of the highest attainable standard of physical and mental health – is contained in article 12(1) of the ICESCR. The UN Committee on Economic Social and Cultural Rights (the Committee) has stated that the right to health is not a right for each individual to be healthy, but is a right to a system of health protection which provides equality of opportunity for people to enjoy the highest attainable level of health.
The Committee has also stated that the ‘highest attainable standard of health’ takes into account the country’s available resources. The right may be understood as a right of access to a variety of public health and health care facilities, goods, services, programs and conditions necessary for the realisation of the highest attainable standard of health.
The right to social security is contained in article 9 of the ICESCR. It requires that a country must, within its maximum available resources, ensure access to a social security scheme that provides a minimum essential level of benefits to all individuals and families that will enable them to acquire at least essential health care. Countries are obliged to demonstrate that every effort has been made to use all resources that are at their disposal in an effort to satisfy, as a matter of priority, this minimum obligation.
The Committee has stated that there is a strong presumption that retrogressive measures taken in relation to the right to social security are prohibited under ICESCR. In this context, a retrogressive measure would be one taken without adequate justification that had the effect of reducing existing levels of social security benefits, or of denying benefits to persons or groups previously entitled to them.
However, it is legitimate for a Government to re-direct its limited resources in ways that it considers to be more effective at meeting the general health needs of all society, particularly the needs of the more disadvantaged members of society.
Conclusion
This Legislative Instrument makes adjustments to the minimum private health insurance benefits that must be paid by insurers as a consequences of the insertion of eight new MBS item numbers contained in the Health Insurance (General Medical Services Table) Amendment (Bariatric and other measures) Regulation 2013 and the removal of three MBS item numbers which are no longer current. This Legislative Instrument is compatible with human rights as it improves access to surgical procedures for the treatment of obesity and therefore increases patient rights to health and social security.
Megan Keaney
Acting First Assistant Secretary
Medical Benefits Division
Department of Health and Ageing