EXPLANATORY STATEMENT

Private Health Insurance Act 2007

Private Health Insurance (Prostheses) Amendment Rules (No. 6) 2019

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.

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 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 that must be satisfied in relation to the provision of the prosthesis 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. 2) 2019 (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.

Purpose

The purpose of the Private Health Insurance (Prostheses) Amendment Rules (No. 6) 2019 (the Amending Rules) is to:

• remove five prostheses from ‘Part 1 – Prostheses List – Part A’ of Schedule 1,
• reinsert a sponsor name for a listing in ‘Part 1 – Prostheses List – Part A’ of Schedule 1, and
• correct the benefit for one human tissue item in ‘Part 1 – Prostheses List – Part B’ of Schedule 1.

The five prostheses being removed are identified by the following billing codes and product name in the Prostheses List prior to these amendments:

• ER198 – Aeroform Patient Controlled Tissue Expander
• ER199 – Aeroform Tissue Expander System Dosage Controller
• SP047 - Gel Filled Mammary Prosthesis Models GFX-LP, GFX and GFX-EHP
• SP049 - Gel Filled Mammary Prosthesis Models CoGel-XR, CoGel-XRH, CoGel-XL, CoGel- XM and CoGel XF
• SP114 - Nagor Breast Implants

The sponsor of the Aeroform Tissue Expander and Dosage Controller requested that the prostheses be deleted from the Prostheses List as the products are no longer being sold.

The sponsor of the other three prostheses requested that they be removed from the Prostheses List as a precaution in light of an ongoing review by the Therapeutic Goods Administration (TGA) of textured breast implants.

An administrative error occurred in implementing Private Health Insurance (Prostheses) Amendment Rules (No. 5) 2019 whereby the sponsor name was deleted in respect of billing code AW019. The sponsor name is being reinserted.

The current listing for billing code RNB01 - a femoral head supplied by Hunter New England Bone Bank - is incorrect, due to an administrative error. The Amendment Rules correct the error to show that the minimum benefit for this human tissue item is $3,000.

Consultation

The Amending Rules have been made following consultation with the TGA, the sponsors of the billing codes being removed and the Hunter New England Bone Bank. The Office of Parliamentary Counsel advised on correcting the administrative error relating to the sponsor name.

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

The Amending Rules commences the day after registration.

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

ATTACHMENT

Details of the Private Health Insurance (Prostheses) Amendment Rules (No. 6) 2019

Section 1 – Name

Section 1 provides for the Amending Rules to be referred to as the Private Health Insurance (Prostheses) Amendment Rules (No. 6) 2019.

Section 2 – Commencement

Section 2 provides that the Amending Rules commence on the day after registration.

Section 3 – Authority

Section 3 provides that the Amending Rules is 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. 2) 2019

Items 1 and 2 delete the billing codes for two prostheses at the request of the sponsor.

Item 3 re-inserts the sponsor name for a billing code, which was deleted in error. This will assist in identifying the product.

Items 4 and 5 delete the billing codes for three prostheses at the request of the sponsor as a precaution in light of an ongoing TGA review.

Item 6 updates the benefit for one prosthesis supplied by Hunter New England Bone Bank with billing code RNB01 on the Prostheses List in Schedule 1 to these Rules.  Any provision of these prostheses to patients during hospital treatment from the commencement of the operation of the amendments implemented by the Amending Rule will attract the increased benefit under the Private Health Insurance Act 2007.

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. 6) 2019
 

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 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. 2) 2019 (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. 6) 2019 amends the Prostheses Rules by:

• removing five prostheses from ‘Part 1 – Prostheses List – Part A’ of Schedule 1,
• re-inserting a sponsor name for a listing in ‘Part 1 – Prostheses List – Part A’ of Schedule 1, and
• correcting the benefit for one human tissue item in ‘Part 1 – Prostheses List – Part B’ of Schedule 1.

Human rights implications

This instrument engages article 12 of the International Covenant on Economic Social and Cultural Rights (ICESCR), specifically the rights 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.

Analysis

Two prostheses have been deleted from Part A of Schedule 1 as the sponsor no longer supplies them.

Three prostheses have been deleted from Part A of Schedule 1 at the request of the sponsor as a precaution in light of a review by the Therapeutic Goods Administration (TGA) of textured breast implants. There are other similar prostheses listed on the Prostheses List for persons to use and be reimbursed by private health insurance.

Re-inserting the sponsor name for a listing will assist in identifying the prosthesis for the purposes of paying a private health insurance benefit to insured persons.

Correcting the minimum benefit for the human tissue item will ensure that it continues to be available for insured persons and a private health insurance benefit will continue to be payable.

Accordingly, these changes will have no impact on the right to health of insured persons.

Conclusion

The instrument is compatible with human rights because it has no impact on the protection of human rights.

Karen Binnekamp

Acting Assistant Secretary

Office of Health Technology Assessment

Technology Assessment and Access Division

Department of Health