Private Health Insurance (Prostheses) Amendment Rules (No. 3) 2022

Administered by Department of Health, Disability and Ageing

Legislation au F2022L01463 Rules Not in force Legislative Instrument

Legislation content

EXPLANATORY STATEMENT

 

Private Health Insurance Act 2007

 

Private Health Insurance (Prostheses) Amendment Rules (No. 3) 2022

 

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.

 

Subsection 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) Rules (No. 3) 2022 (Prostheses Rules) are made for the purposes of subsection 333-20(1) of the Act. Listed prostheses and their minimum benefits are set out in Schedule 1 to the Prostheses Rules. The list of prostheses in Schedule 1 is commonly referred to as the Prostheses List.

 

The Schedule to the Prostheses Rules has four parts:

  • Part A – Prostheses;
  • Part B – Human Tissue;
  • Part C – Other Prostheses
  • Part D – General Use Items

 

The purpose of the Private Health Insurance (Prostheses) Amendment Rules (No. 3) 2022 (the Amending Rules) is to amend the Prostheses Rules to:

  • create a new group in Part C of the Prostheses List for the electronic devices allowing patients programming and controlling insulin pumps;
  • add 1 new Prostheses List billing code II001 in the new group in Part C for the Personal Diabetes Manager, following a successful new application; and
  • move 3 billing codes (JW005, JW008 and JW015) from Part A to Part D.

 

Consultation

 

The delegate had regard to recommendations made by the Prostheses List Advisory Committee (PLAC), and decisions made regarding listing of the devices on the National Diabetes Services Scheme.

 

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

 

Commencement

 

The Amending Rules commence on 1 December 2022.

 

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

 


ATTACHMENT

 

Provision by provision description of the Private Health Insurance (Prostheses) Amendment Rules (No. 3) 2022 (Amending Rules)

 

Rule 1 Name

 

Rule 1 provides that the title of the Amending Rules is the Private Health Insurance (Prostheses) Amendment Rules (No. 3) 2022.

 

Rule 2 Commencement

 

Rule 2 provides that the Amending Rules commence on 1 December 2022.

 

Rule 3 Authority

 

Rule 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 (the Act).

 

Rule 4 Schedules

 

Rule 4 provides that each instrument that is specified in a Schedule to the Amending Rules is amended or repealed as set out in the application items to the Schedule, 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. 3) 2022

Item 1 repeals table item 10.07 – Arterial Closure Devices in Part 1, Prostheses List – Part A of Schedule 1. The prostheses listed under table item 10.07 (codes JW005, JW008 and JW015) are being moved to Part 4, Prostheses List – Part D of Schedule 1.

 

Item 2 repeals the table in Schedule 1, Part 3 – Prostheses List – Part C and replaces it with an updated table.

 

Item 3 repeals table item 10.07 – Arterial Closure Devices in Part 4, Prostheses List – Part D of Schedule 1, and replaces it with a new 10.07 – Arterial Closure Devices item which includes codes JW005, JW008 and JW015 (see Item 1).


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. 3) 2022
 

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 Private Health Insurance (Prostheses) Rules (No. 3) 2022 (the 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. 3) 2022 (the Amending Rules) amend the Private Health Insurance (Prostheses) Rules (No. 3) 2022 (the Prostheses Rules) by:

  • creating a new group in Part C of the Prostheses List for the electronic devices allowing patients programming and controlling insulin pumps;
  • adding 1 new Prostheses List billing code II001 in the new group in Part C for the Personal Diabetes Manager, following a successful new application; and
  • move 3 billing codes (JW005, JW008 and JW015) from Part A to Part D.

 

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

The addition of new items will increase the amount of choice an insured person can have in relation to the type of prostheses for which they must receive a minimum private health insurance benefit.  This will impact positively on the right to health of insured persons.

 

The Rules also remove entries at the request of the sponsors of these prostheses. The sponsors of these prostheses are no longer supplying these prostheses for use to privately insured persons in Australia.

 

Generally, the prostheses removed from the Rules have been replaced by newer models due to upgraded technologies or advancements in surgical procedures, or are still available for privately insured patients, but are supplied by different sponsors.

Conclusion

The instrument is compatible with human rights because it enables advances in the protection of human rights, in particular the right to health.

 

Elizabeth Flynn

Assistant Secretary

Prostheses List Reform Taskforce

Technology Assessment and Access Division

Health Resourcing Group

Department of Health and Aged Care

 

 

Overview

The Private Health Insurance (Prostheses) Amendment Rules (No. 3) 2022 (the Amending Rules) were enacted to amend the Private Health Insurance (Prostheses) Rules (No. 3) 2022 (the Prostheses Rules) under section 333-20 of the Private Health Insurance Act 2007. This amendment was authorised by the Minister for Health and Aged Care under the authority conferred by the Act, with the intent of enhancing the scope and quality of prostheses covered under private health insurance policies in Australia. The Prostheses Rules, which list the prostheses eligible for minimum benefits under private health insurance policies, were introduced to ensure that individuals have access to necessary medical devices. The Amending Rules aim to improve the accessibility and appropriateness of such devices by updating the Prostheses List, reflecting advancements in technology and medical practices, and ensuring that the right to health, as recognised under international human rights instruments such as the International Covenant on Economic, Social and Cultural Rights, is upheld. The Amending Rules specifically address the need to accommodate new electronic devices for insulin pump programming and control, which will enhance the quality of life for individuals with diabetes. Furthermore, the rules adjust the classification of certain prostheses, reflecting changes in their availability and the entities responsible for their supply. This amendment aligns with the policy objective of maintaining a dynamic and responsive list of prostheses that meets the evolving healthcare needs of the population, ensuring that insured persons have access to scientifically and medically appropriate health care. The Prostheses List Advisory Committee's recommendations and decisions regarding the listing of devices on the National Diabetes Services Scheme were considered during the development of these rules.

Scope and Application

The Private Health Insurance (Prostheses) Amendment Rules (No. 3) 2022 amends the Private Health Insurance (Prostheses) Rules 2022, which are subordinate legislation under the Private Health Insurance Act 2007. These rules apply to private health insurers and insured persons in Australia, specifically focusing on the prostheses listed for which minimum benefits must be provided by complying health insurance policies that cover hospital treatment. The rules delineate the types of prostheses that are eligible for listing and the minimum benefits to be provided, ensuring that insured persons have access to necessary prostheses under their health insurance policies. The scope of the rules extends nationally, applying uniformly across the Commonwealth of Australia. The amendment rules introduce changes to the Prostheses List by adding new categories and codes, such as creating a new group for electronic devices related to insulin pumps and adding a new billing code for a Personal Diabetes Manager. Simultaneously, certain prostheses are moved to a different part of the Prostheses List, reflecting changes in the availability and sponsorship of these devices. The rules are designed to ensure that the Prostheses List remains current and reflective of technological advancements and changes in medical practices, thereby enhancing the quality and appropriateness of health care provided to insured persons.

Key Provisions

The Private Health Insurance (Prostheses) Amendment Rules (No. 3) 2022 amends the Private Health Insurance (Prostheses) Rules (No. 3) 2022 to update the Prostheses List, which sets out the minimum benefits that must be provided by health insurance policies for certain prostheses. The Amending Rules introduce a new group in Part C of the Prostheses List for electronic devices used for programming and controlling insulin pumps, add a new billing code II001 for the Personal Diabetes Manager, and move three billing codes (JW005, JW008, and JW015) from Part A to Part D of the Prostheses List. These changes aim to reflect advancements in technology and ensure that the Prostheses List remains up-to-date and relevant to the needs of insured persons. The Amending Rules impose obligations on private health insurers to ensure compliance with the updated Prostheses List. Insurers must provide the minimum benefits specified in the Prostheses List for the prostheses listed in the Schedule to the Amending Rules. Insurers must also ensure that their policies are updated to reflect the changes made by the Amending Rules, including the addition of the new group in Part C and the new billing code II001. Failure to comply with the Prostheses List requirements may result in financial penalties or other consequences, as outlined below. The Private Health Insurance (Prostheses) Amendment Rules (No. 3) 2022 do not create any new offences or penalties. However, private health insurers that fail to comply with the Prostheses List requirements may be subject to financial penalties under the Private Health Insurance Act 2007. The maximum penalty for a breach of the Act is $11,100 for individuals and $55,500 for corporations. In addition, the Australian Prudential Regulation Authority (APRA) may take regulatory action against insurers that fail to comply with the Act, including imposing financial penalties or requiring the insurer to take corrective action. It is important for insurers to ensure that they are compliant with the Prostheses List requirements to avoid any potential penalties or regulatory action. In conclusion, the Private Health Insurance (Prostheses) Amendment Rules (No. 3) 2022 update the Prostheses List by introducing a new group for insulin pump controllers, adding a new billing code for the Personal Diabetes Manager, and moving three billing codes from Part A to Part D of the Prostheses List. These changes aim to reflect advancements in technology and ensure that the Prostheses List remains up-to-date and relevant to the needs of insured persons. Private health insurers must comply with the Prostheses List requirements to avoid potential penalties or regulatory action. Failure to comply with the Prostheses List requirements may result in financial penalties or other consequences under the Private Health Insurance Act 2007.

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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.