Private Health Insurance (Health Insurance Business) Amendment Rules (No. 1) 2022

Administered by Department of Health, Disability and Ageing

Legislation au F2022L00036 Rules Not in force Legislative Instrument

Legislation content

EXPLANATORY STATEMENT

 

Issued by the Authority of the Minister for Health and Aged Care

 

Private Health Insurance Act 2007

 

Private Health Insurance (Health Insurance Business) Amendment Rules (No. 1) 2022

 

Authority

 

Section 333-20(1) of the Private Health Insurance Act 2007 (the Act) authorises the Minister to, by legislative instrument, make specified Private Health Insurance Rules providing for matters required or permitted by the corresponding Chapter, Part or section to be provided; or necessary or convenient to be provided in order to carry out or give effect to that Chapter, Part or section.

 

The Private Health Insurance (Health Insurance Business) Amendment Rules (No. 1) 2022 (the Amendment Rules) amends the:

  • Private Health Insurance (Health Insurance Business) Rules 2018 (the Health Insurance Business Rules).

 

Under subsection 33(3) of the Acts Interpretation Act 1901, where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws), the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.

 

Subsection 12(1A) of the Legislation Act 2003 provides a registered legislative instrument may have a commencement date prior to the date of registration (retrospective commencement).

 

Subsection 12(2) provides this is subject to the conditions it does not disadvantage a person (other than the Commonwealth) or impose a liability on a person (other than the Commonwealth). Subsection 12(4) of the Legislation Act 2003 provides the effect of subsection (2) in relation to an instrument is subject to any contrary provision in an Act.

 

The Act does not exclude subsection 12(2) of the Legislation Act 2003 from applying to rules made under section 333-20(1) of the Act. However, this instrument will not impose a liability or disadvantage a person other than the Commonwealth, consistent with the intent of Legislation Act 2003.

 

Purpose

 

The Amendment Rules make a consequential amendment to the Health Insurance Business Rules subsequent to the reinstating, with retrospective effect from 1 January 2022, of 40 temporary Medicare Benefits Schedule (MBS) items previously available from 15 September to 31 December 2021 for specialist telehealth and phone services performed by the admitting medical practitioner or admitting dental practitioner for private patients admitted to hospital.

 


The amendment will ensure the relisted MBS items will continue to not be considered hospital treatment for the purposes of the Act. The retrospective effect of the amendment will also ensure that, as a result of the relisting of these MBS items, no person’s rights will be affected so as to disadvantage the person, or any person have a liability imposed upon them in respect of anything done or omitted to be done prior to the date of registration.

 

The reinstated 40 temporary MBS items will be excluded from the definition of hospital treatment by adding the MBS items to the classes of treatments specified for the purposes of subsection 121-5(4) of the Act by amending:

  • Part 3 Rule 8 of the Health Insurance Business Rules to include reference to the relisted MBS items.

 

The MBS item changes relevant to these Amendment Rules, are given effect by, and detailed in, the following legislative instrument, accessible on the Federal Register of Legislation (FRL) at www.legislation.gov.au:

  • Health Insurance Legislation Amendment (2022 Measures No. 1) Determination 2022.

 

The reinstating of these temporary specialist telehealth and phone services will ensure continuity of care for private in‑hospital patients and is necessary to keep both health care practitioners and patients safe during the evolving COVID-19 pandemic.

 

These changes, along with reinstating of other temporary MBS telehealth items, will remain in place until 30 June 2022.

 

Background

 

Subsection 121-5(4) of the Act specifies that despite subsections (1), (2) and (2A), treatment is not hospital treatment if it is specified in, or is included in a class of treatments specified in, the Private Health Insurance (Health Insurance Business) Rules for the purposes of this subsection.

 

Health Insurance Business Rules

A treatment with the potential to be provided to privately insured patients as hospital treatment can be excluded from the definition of hospital treatment under subsection 121-5(4) of the Act if it is specified in, or included in a class of treatments specified in, the Private Health Insurance (Health Insurance Business) Rules for the purposes of that subsection.

 

The Amendment Rules

The consequential amendments in these Amendment Rules are administrative in nature and do not substantively alter existing arrangements established under the Act.

 

Commencement

 

The Amendment Rules are taken to have commenced on 1 January 2022.

 

Details

 

Details of the Amendment Rules are set out in the Attachment.

 


Consultation

 

MBS item related consultation

The Amendment Rules are consequential to MBS items changes. Detail on the MBS items and consultations undertaken can be found in the Explanatory Statement to the:

  • Health Insurance Legislation Amendment (2022 Measures No. 1) Determination 2022

 

– available online from FRL at www.legisation.gov.au, and in the information factsheet available from the MBS Online website at www.mbsonline.gov.au.

 

Private health insurance consultation on MBS items

Due to the short implementation timeframe and the nature of the items consultation with the private health insurance sector was not undertaken. The Department’s weekly email to private health sector stakeholders will provide information on the changes. Regular updates are provided in the Regulatory Amendments Calendar as part of this weekly email.

 

The Amendment Rules are a legislative instrument for the purposes of the Legislation Act 2003.


ATTACHMENT

 

Details of the Private Health Insurance (Health Insurance Business) Amendment Rules (No. 1) 2022

 

Section 1 Name

 

Section 1 provides that the name of the instrument is the Private Health Insurance (Health Insurance Business) Amendment Rules (No. 1) 2022.

 

Section 2 Commencement

 

Section 2 provides that the instrument is taken to have commenced on 1 January 2022.

 

Section 3 Authority

 

Section 3 provides that the Amendment Rules are made under section 333-20 of the Private Health Insurance Act 2007 (the Act).

 

Section 4 Schedules

 

Section 4 provides that each instrument that is specified in a Schedule to the instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to the instrument has effect according to its terms.

 

All Schedule changes are taken to have come into effect from 1 January 2022.

 

Schedule 1—Amendments

Private Health Insurance (Health Insurance Business) Rules 2018

 

Schedule 1 of the Amendment Rules adds a new class to the classes of treatments specified for the purposes of subsection 121‑5(4) of the Act. This amendment excludes from the definition of hospital treatment 40 temporary Medicare Benefits Schedule (MBS) items being relisted for specialist telehealth and phone services performed by the admitting medical practitioner or admitting dental practitioner for private patients admitted to hospital.

 

Item 1 provides for insertion of text at Rule 8 specifying for the purposes of subsection 121‑5 (4) of the Act a new class of treatments as:

“any treatment which is a service to which an item in the tables of Schedule 6 of the Health Insurance (Section 3C General Medical Services – Telehealth and Telephone Attendances) Determination 2021 applies”.

 

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Private Health Insurance (Health Insurance Business) Amendment Rules (No. 1) 2022

This disallowable 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 disallowable legislative instrument

 

The purpose of the Private Health Insurance (Health Insurance Business) Amendment Rules (No. 1) 2022 (the Amendment Rules) is to amend the:

  • Private Health Insurance (Health Insurance Business) Rules 2018 (the Health Insurance Business Rules).

 

The Amendment Rules make a consequential amendment to the Health Insurance Business Rules to:

  • add a new class to the classes of treatments specified for the purposes of subsection 121‑5 (4) of the Private Health Insurance Act 2007 (the Act). This amendment excludes from the definition of hospital treatment 40 temporary Medicare Benefits Schedule (MBS) items being relisted for specialist telehealth and phone services performed by the admitting medical practitioner or admitting dental practitioner for private patients admitted to hospital.

 

Human rights implications

The Amendment Rules engage the right to health by facilitating the appropriate payment of private health insurance benefits for health care services, encouraging access to, and choice in, health care services. Under Article 12 of the International Covenant on Economic, Social and Cultural Rights, specifically the right to health, the Amendment Rules assist with the progressive realisation by all appropriate means of the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.

Private health insurance regulation assists with the advancement of these human rights by improving the governing framework for private health insurance in the interests of consumers. Private health insurance regulation aims to encourage insurers and providers of private health goods and services to provide better value for money to consumers, and to improve information provided to consumers of private health services to allow consumers to make more informed choices when purchasing services. Private health insurance regulation also requires that insurers do not differentiate the premiums they charge according to individual health characteristics such as poor health.

 

Analysis

The amendment relating to inclusion of the 40 temporary telehealth consultation MBS items as a new class of treatments specified for the purposes of subsection 121-5 (4) of the Act is a consequence of the changes to the MBS and is consistent with the policy intent of the changes to the MBS.


Conclusion

This disallowable legislative instrument only engages human rights to the extent that it maintains current arrangements with respect to the regulation of private health insurance. Therefore, this instrument is compatible with human rights because these changes continue to ensure that existing arrangements advancing the protection of human rights are maintained.

 

Louise Riley
Acting First Assistant Secretary
Medical Benefits Division

Health Resourcing Group
Department of Health

 

Overview

The Private Health Insurance (Health Insurance Business) Amendment Rules (No. 1) 2022 were introduced to address the need for the continuity of care for private in-hospital patients during the ongoing COVID-19 pandemic. This legislative instrument amends the Private Health Insurance (Health Insurance Business) Rules 2018 by adding a new class of treatments specified for the purposes of subsection 121-5(4) of the Private Health Insurance Act 2007. This amendment ensures that the relisted 40 temporary Medicare Benefits Schedule (MBS) items for specialist telehealth and phone services performed by the admitting medical practitioner or admitting dental practitioner for private patients admitted to hospital will not be considered hospital treatment under the Act. Authorised by section 333-20(1) of the Act, these rules aim to maintain the existing regulatory framework for private health insurance and support the progressive realisation of the right to health under Article 12 of the International Covenant on Economic, Social and Cultural Rights. The Amendment Rules are compatible with human rights as they do not impose any liabilities or disadvantages on persons other than the Commonwealth, and they ensure the continuity of care for private in-hospital patients. The Private Health Insurance (Health Insurance Business) Amendment Rules (No. 1) 2022 were enacted by the Minister for Health and Aged Care under the authority of section 333-20(1) of the Private Health Insurance Act 2007. The purpose of these Amendment Rules is to make consequential amendments to the Private Health Insurance (Health Insurance Business) Rules 2018, ensuring that the 40 temporary MBS items for specialist telehealth and phone services will not be considered hospital treatment under the Act. These changes were introduced to ensure the continuity of care for private in-hospital patients and to keep both health care practitioners and patients safe during the evolving COVID-19 pandemic. The Amendment Rules are compatible with human rights as they maintain the existing arrangements for the regulation of private health insurance and support the progressive realisation of the right to health.

Scope and Application

The Private Health Insurance (Health Insurance Business) Amendment Rules (No. 1) 2022 applies to private health insurers, healthcare providers, and private patients in Australia. These rules amend the Private Health Insurance (Health Insurance Business) Rules 2018 to ensure that 40 temporary Medicare Benefits Schedule (MBS) items for specialist telehealth and phone services performed by the admitting medical practitioner or admitting dental practitioner for private patients admitted to hospital are not considered hospital treatment for the purposes of the Private Health Insurance Act 2007. This amendment is necessary to maintain continuity of care for private in-hospital patients and to ensure the safety of both healthcare practitioners and patients during the COVID-19 pandemic. The Amendment Rules have a national reach and apply to all private health insurers and healthcare providers operating within Australia. There are no stated exclusions or exemptions in these rules, and they do not impose any new liabilities or disadvantages on persons other than the Commonwealth. The rules came into effect on 1 January 2022 and will remain in place until 30 June 2022. The Amendment Rules extend and restrict the application of the Private Health Insurance Act 2007 through subordinate instruments. The rules are made under section 333-20 of the Act and amend the Health Insurance Business Rules 2018. The changes are consequential to the reinstating of the 40 temporary MBS items and are consistent with the policy intent of the MBS changes. The Amendment Rules do not substantively alter existing arrangements established under the Act but make necessary administrative amendments to ensure that the 40 temporary MBS items are not considered hospital treatment. The rules are compatible with human rights, as they engage the right to health by facilitating appropriate payment of private health insurance benefits for health care services and encouraging access to and choice in health care services.

Key Provisions

The main operative sections of the Private Health Insurance (Health Insurance Business) Amendment Rules (No. 1) 2022 are contained in the Schedule, which amends the Private Health Insurance (Health Insurance Business) Rules 2018. The key amendment is the addition of a new class of treatments to be excluded from the definition of hospital treatment under subsection 121-5(4) of the Private Health Insurance Act 2007 (the Act). This amendment specifies that any treatment which is a service to which an item in the tables of Schedule 6 of the Health Insurance (Section 3C General Medical Services – Telehealth and Telephone Attendances) Determination 2021 applies, will not be considered hospital treatment for the purposes of the Act. The insertion of this new class of treatments is intended to exclude 40 temporary Medicare Benefits Schedule (MBS) items for specialist telehealth and phone services performed by admitting medical or dental practitioners for private patients admitted to hospital. The Amendment Rules impose obligations on private health insurers and health care providers to ensure that the specified MBS items are not classified as hospital treatment under the Act. Insurers must continue to process claims for these services according to their existing arrangements and not as hospital treatment. Health care providers must also ensure that these services are not billed as hospital treatment. Furthermore, these rules ensure that the retrospective effect of these changes does not disadvantage any person or impose any liability on them in respect of actions taken prior to the date of registration. There are no specific offences or penalties outlined in the Amendment Rules themselves. However, breaches of the Private Health Insurance Act 2007 or any associated regulations could result in penalties. For instance, insurers found to be in breach of certain provisions of the Act may be subject to financial penalties, with the maximum penalty varying depending on the specific offence. Civil or criminal consequences may also apply, depending on the nature and severity of the breach. It is important for parties governed by the Act to comply with all relevant provisions to avoid any potential penalties or legal consequences. In conclusion, the Amendment Rules make a consequential change to ensure that the relisted MBS items for specialist telehealth and phone services are excluded from the definition of hospital treatment. These changes aim to maintain continuity of care for private in-hospital patients and to ensure that the rights and liabilities of individuals are not adversely affected by the retrospective amendment. Parties governed by the Act must ensure compliance with these changes to avoid potential penalties under the broader legislative framework.

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.