Private Health Insurance (Prostheses) Amendment Rules 2013 (No. 3)

Administered by Department of Health, Disability and Ageing

Legislation au F2013L00614 Rules Not in force Legislative Instrument

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EXPLANATORY STATEMENT

 

Private Health Insurance Act 1973

 

Private Health Insurance (Prostheses) Amendment Rules 2013 (No. 3)

 

Section 333-20 of the Private Health Insurance Act 2007 (the Act) provides that the Minister may make Private Health Insurance (Prostheses) Rules, providing for matters required or permitted by Part 3-3 of the Act, or necessary or convenient in order to carry out or give effect to Part 3-3 of the Act.

Item 4 of the table in subsection 72-1(2) of Part 3-3 of the Act provides for requirements that a complying health insurance policy that covers hospital treatment must meet.  There must be a benefit for the provision of a prosthesis, of a kind listed in the Private Health Insurance (Prostheses) Rules (i.e. a listed prosthesis), in specified circumstances and under any specified conditions.  The specified circumstances are that the listed prosthesis is provided in circumstances in which a Medicare benefit is payable or those other circumstances which are set out in the Private Health Insurance (Prostheses) Rules.

If the complying health insurance policy also covers hospital-substitute treatment, the same requirements apply.

Listed prostheses are currently set out in the Schedule to the Private Health Insurance (Prostheses) Rules 2012 (No. 2) (the Principal Rules). 

The Private Health Insurance (Prostheses) Amendment Rules 2013 (No. 1), which were made on 8 February 2013 and commenced on 5 March 2013, removed the following 10 prostheses (the VAIOS System) from the Principal Rules:

  • VAIOS Humeral Head (Billing Code OH386)
  • VAIOS Reverse Humeral Insert (Billing Code OH390)
  • VAIOS Humeral Neck (Billing Code OH387)
  • VAIOS Humeral Stem (Billing Code OH388)
  • VAIOS Cemented Glenoid (Billing Code OH385)
  • VAIOS Glenoid Metal Back (Billing Code OH383)
  • VAIOS Humeral Metal Back Reverse (Billing Code OH389)
  • VAIOS Glenoid Insert (Billing Code OH384)
  • VAIOS Glenoid Dome (Billing Code OH391)
  • VAIOS Locking screw (Billing Code OH392)

The Private Health Insurance (Prostheses) Amendment Rules 2013 (No. 2) were made on 20 February 2013 and reinserted the VAIOS System into the Principal Rules with effect 5 March 2013, to give effect to a temporary court order to maintain the listing of the VAIOS System.  Following a Federal Court ruling  upholding a decision to revoke the listing of the VAIOS System from the Principal Rules (Orthotech Pty Ltd v Minister for Health and Anor [2013] FCA 230), this court order is no longer in effect. 

The purpose of the Private Health Insurance (Prostheses) Amendment Rules 2013 (No. 3) is to revoke the listing of the VAIOS System from the Principal Rules. 

These Rules will commence on 9 April 2013.  

Consultation

No consultation has been taken in connection with these Rules.  They have been made as a result of a Federal Court decision upholding a decision to remove the VAIOS System from the Principal Rules and it would therefore be inappropriate to undertake consultation about them. 

The Rules are a legislative instrument for the purposes of the Legislative Instruments Act 2003.

Statement of Compatibility with Human Rights

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

 

Private Health Insurance (Prostheses) 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

Item 4 of the table in subsection 72-1(2) of the Private Health Insurance Act 2007 provides for requirements that a complying health insurance policy that covers hospital treatment must meet.  There must be a benefit for the provision of a prosthesis of a kind listed in the Private Health Insurance (Prostheses) Rules in specified circumstances and under any specified conditions.  The specified circumstances are that the prosthesis is provided in circumstances where a Medicare benefit is payable or any other circumstance set out in those Rules. 

If the complying health insurance policy covers hospital-substitute treatment, the same requirements apply.

Listed prostheses are currently set out in the Schedule to the Private Health Insurance (Prostheses) Rules 2012 (No. 2) (the Principal Rules).  The Private Health Insurance (Prostheses) Amendment Rules 2013 (No. 1), which were made on 8 February 2013 and commenced on 5 March 2013, removed the following 10 prostheses (the VAIOS System) from the Principal Rules:

  •             VAIOS Humeral Head (Billing Code OH386)
  •             VAIOS Reverse Humeral Insert (Billing Code OH390)
  •             VAIOS Humeral Neck (Billing Code OH387)
  •             VAIOS Humeral Stem (Billing Code OH388)
  •             VAIOS Cemented Glenoid (Billing Code OH385)
  •             VAIOS Glenoid Metal Back (Billing Code OH383)
  •             VAIOS Humeral Metal Back Reverse (Billing Code OH389)
  •             VAIOS Glenoid Insert (Billing Code OH384)
  •             VAIOS Glenoid Dome (Billing Code OH391)
  •             VAIOS Locking screw (Billing Code OH392)

The Private Health Insurance (Prostheses) Amendment Rules 2013 (No. 2) were made on 20 February 2013 and reinserted the VAIOS System into the Principal Rules, to give effect to a temporary court order to maintain the listing of the VAIOS System. 

The Federal Court case of Orthotech Pty Ltd v Minister for Health and Anor [2013] FCA 230 upheld the decision to revoke the listing of the VAIOS System from the Principal Rules, which had previously been given effect by the Private Health Insurance (Prostheses) Amendment Rules 2013 (No. 1).  Following the Federal Court’s decision, the temporary court order is no longer in effect. 

The purpose of the Private Health Insurance (Prostheses) Amendment Rules 2013 (No. 3) is to revoke the listing of the VAIOS System from the Principal Rules. 

Human rights implications

These Rules engage the right to health. 

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 International Covenant on Economic Social and Cultural Rights (ICESCR).  Whilst the UN Committee on Economic Social and Cultural Rights (the Committee) has stated that the right to health is not to be understood as a right to be healthy, it does entail a right to a system of health protection which provides equality of opportunity for people to enjoy the highest attainable level of health.

These Rules will result in private health insurance benefits ceasing to be mandated where the VAIOS System is provided under a complying health insurance policy that covers hospital treatment in the relevant circumstances.  As noted in the human rights analysis accompanying the Private Health Insurance (Prostheses) Amendment Rules 2013 (No. 1), the decision to remove the VAIOS System was based on expert recommendations from the Prostheses List Advisory Committee because of a lack of evidence to support its continued listing. 

The removal of the VAIOS System from the Principal Rules does not prohibit the payment of insurance benefits and insurers may still choose to pay a benefit in respect of the provision of the VAIOS System. 

Conclusion

These Rules are compatible with human rights because, to the extent that they may limit human rights, those limitations are reasonable, necessary and proportionate. 

 

Doug Fawns

Assistant Secretary

Medical Benefits Division

Department of Health and Ageing

 

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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.