EXPLANATORY STATEMENT
Private Health Insurance Act 2007
Private Health Insurance (Prostheses) Amendment Rules (No. 2) 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. 2) 2020 (Amending Rules) correct three errors for billing codes in Schedule 1, Part 1, Prostheses List – Part A of the Private Health Insurance (Prostheses) Rules (No. 1) 2020:
- WR003, the benefit is being changed to correct the minimum benefit that was not updated in the Private Health Insurance (Prostheses) Rules (No. 1) 2020.
- WR004, the benefit is being changed to accurately reflect minimum benefit that was not updated in the Private Health Insurance (Prostheses) Rules (No. 1) 2020.
- WR004, remove the duplicate entry appearing under heading 06.03.15.02 - Ceramic, >5cc - 10cc, in the Private Health Insurance (Prostheses) Amendment Rules (No. 1) 2020.
Consultation
The Amending Rules have been made in consultation with the sponsors, Wright Medical Australia.
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, which commenced on 1 March 2020. The retrospective effect of the Amending Rules is necessary and appropriate because the Amending Rules correct administrative errors in the Private Health Insurance (Prostheses) Rules (No. 1) 2020.
It is not expected that any person (other than the Commonwealth) is disadvantaged by the retrospective commencement of the Amending Rules. There is no disadvantage to consumers or the sponsor resulting from the amendments to increase the minimum benefit payable in respect of billing codes WR003 and WR004. The information provided to private health insurers (including via Private Healthcare Australia) contained the correct minimum benefit amounts, therefore private health insurers should have already paid the correct minimum benefit amounts.
Further, removal of the duplicate listing of WR004 from 1 March 2020 does not change the effect of the 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. 2) 2020
Section 1 – Name
Section 1 provides for the Amending Rules to be referred to as the Private Health Insurance (Prostheses) Amendment Rules (No. 2) 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
Item 1 removes the duplicate entry in Part A of the Prostheses List (SKELETAL RECONSTRUCTION, 06.03.15 - Bone Graft Substitute, 06.03.15.02 - Ceramic, >5cc - 10cc) of one prostheses, being the prostheses with billing code WR004.
Items 2 and 3 correct the minimum benefit in Part A of the Prostheses List for two prostheses, being the prostheses with billing codes WR003 and WR004
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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. 2) 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. 2) 2020 (the Amending instrument) amends the Prostheses Rules by correcting the minimum benefit for two prostheses and removing the duplicate entry one prostheses 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 minimum benefit and the duplicate entry of one prostheses will be removed.
Conclusion
This instrument is compatible with human rights because it enables advances in the protection of human rights, in particular the right to health. The Amending instrument makes minor administrative corrections to, but does not change the substance of the Private Health Insurance (Prostheses) Rules (No. 1) 2020.
Natasha Ryan
Assistant Secretary
Office of Health Technology Assessment
Technology Assessment and Access Division
Department of Health