EXPLANATORY STATEMENT
Private Health Insurance Act 2007
Private Health Insurance (Prostheses) Amendment Rules (No. 1) 2020
Authority
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.
In addition to the power to make this instrument under section 333-20 of the Act, subsection 33(3) of the Acts Interpretation Act 1901 provides that 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.
Section 72-10(6) of the Act provides that the Private Health Insurance (Prostheses) Rules may set out listing criteria that must be satisfied in order for an application for a prosthesis to be listed to be granted.
Background
The table in subsection 72-1(2) of Part 3-3 of the Act provides for benefit requirements that a complying health insurance policy that covers hospital treatment must meet. Under item 4 of that table 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 in other circumstances which may be set out in the Private Health Insurance (Prostheses) Rules. The specified conditions are any that may be set out in the Private Health Insurance (Prostheses) Rules.
If the complying health insurance policy also covers hospital-substitute treatment, under item 4 of the table in subsection 72-1(2) of Part 3-3 of the Act the same requirements apply.
Purpose
The Private Health Insurance (Prostheses) Amendment Rules (No. 1) 2020 (Amending Rules) correct errors for three billing codes in Schedule 1, part 1, Prostheses List – Part A:
- WR003, reapply the suffix, that was incorrectly removed
- WR004, reapply the suffix, that was incorrectly removed
- DE649, remove the condition, that was incorrectly included.
Consultation
The Amending Rules have been made following agreement with the sponsors, Wright Medical Australia and Device Technologies Australia Pty Ltd.
Details of the Amending Rules are set out in the Attachment.
The Amending Rules commence immediately following the commencement of Private Health Insurance (Prostheses) Rules (No. 1) 2020.
The Amending Rules are a legislative instrument for the purposes of the Legislation Act 2003.
ATTACHMENT 1
Provision by provision description of the Private Health Insurance (Prostheses) Amendment Rules (No. 1) 2020
Section 1 – Name
Section 1 provides for the Amending Rules to be referred to as the Private Health Insurance (Prostheses) Amendment Rules (No. 1) 2020.
Section 2 – Commencement
Section 2 provides that the Amending Rules commence immediately following the commencement of Private Health Insurance (Prostheses) Rules (No. 1) 2020.
Section 3 – Authority
Section 3 provides that the Amending Rules are made under item 4 of the table in section 333‑20 of the Private Health Insurance Act 2007.
Section 4 – Schedules
Section 4 provides that each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.
Schedule 1 – Amendments
Private Health Insurance (Prostheses) Rules (No. 1) 2020
Correct the suffix in Part A of the Prostheses List for two prostheses, being the prostheses with billing codes WR003 and WR004.
Remove the condition in Part A of the Prostheses List for one prostheses, being the prostheses with billing codes DE649.
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 (No. 1) 2020
This 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 table in subsection 72-1(2) of Part 3-3 of the Private Health Insurance Act 2007 (the Act) provides for benefit requirements that a complying health insurance policy that covers hospital treatment must meet. Under item 4 of that table there must be a benefit for the provision of a prosthesis, of a kind listed in 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 in other circumstances which may be set out in Private Health Insurance (Prostheses) Rules. The specified conditions are any that may be set out in Private Health Insurance (Prostheses) Rules. If the complying health insurance policy also covers hospital-substitute treatment, under item 4 of the table in subsection 72-1(2) of Part 3-3 of the Act the same requirements apply.
The Private Health Insurance (Prostheses) Rules (No. 1) 2020 (Prostheses Rules) were made for the purposes of section 333-20 of the Act. Listed prostheses and their minimum benefits are set out in the Schedule to the Rules. The list of prostheses in the Schedule is commonly referred to as the Prostheses List.
The Private Health Insurance (Prostheses) Amendment Rules (No.1) 2020 (the Amending instrument) amends the Prostheses Rules by replacing the suffix for two prostheses and removing the condition for another in ‘Part 1 – Prostheses List – Part A’ of Schedule 1.
Human rights implications
This instrument engages article 12 of the International Covenant on Economic Social and Cultural Rights (ICESCR), specifically the right to health.
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 ICESCR. Whilst the UN Committee on Economic Social and Cultural Rights 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. In addition, the right to health must meet certain key requirements, including that health care must be scientifically and medically appropriate and of good quality.
Analysis
Two prostheses will now reflect the correct benefit and one prostheses will not have a condition.
Conclusion
The Amending instrument is compatible with human rights because it enables advances in the protection of human rights, in particular the right to health.
Debbie Hurlbut
Acting Assistant Secretary
Office of Health Technology Assessment
Technology Assessment and Access Division
Department of Health