EXPLANATORY STATEMENT

Private Health Insurance Act 2007

Private Health Insurance (Prostheses) Amendment Rules (No. 8) 2019

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.

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 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. 4) 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. 8) 2019 (the Amending Rules) is to:

• Correct the benefit for three prostheses in ‘Part 1 – Prostheses List – Part A’ of Schedule 1, and
• Correct references to regulations in the conditions of listing for cardiac ablation prostheses in ‘Part 3 – Prostheses List – Part C’ of Schedule 1.

The minimum benefit for three prostheses in Part A of the Prostheses List were listed incorrectly as a result of administrative errors.

The conditions of listing of cardiac ablation prostheses in Part C of the Prostheses List incorrectly refer to the Health Insurance (General Medical Services Table) Regulations 2018. These regulations were repealed and replaced by the Health Insurance (General Medical Services Table) Regulations 2019 with effect from 1 July 2019, predating the commencement of the Prostheses Rules.

Consultation

The Amending Rules have been made following consultation with the sponsor of the three prostheses.

Details of the Amending Rules are set out in Attachment 1.

The Amending Rules commences immediately after the commencement of the Prostheses Rules.

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

ATTACHMENT 1

Details of the Private Health Insurance (Prostheses) Amendment Rules (No. 8) 2019

Section 1 – Name

Section 1 provides for the Amending Rules to be referred to as the Private Health Insurance (Prostheses) Amendment Rules (No. 8) 2019.

Section 2 – Commencement

Section 2 provides that the Amending Rules commence immediately after the commencement of the Private Health Insurance (Prostheses) Rules (No. 4) 2019.

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 Schedule 1 to this instrument is amended or repealed as set out in the applicable items in 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. 4) 2019

Item 1 to 3 correct the minimum benefits in Part A of the Prostheses List for three prostheses, being the prostheses with billing codes MC269, MI077, and MI195.

Item 2 repeals the current Part C of the Prostheses List and replaces it in its entirety to correct references in the conditions of listing to the Health Insurance (General Medical Services Table) Regulations 2018 to be references to the Health Insurance (General Medical Services Table) Regulations 2019.

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. 8) 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 Legislative Instrument 

The table in subsection 72-1(2) of Part 3-3 of the Private Health Insurance Act 2007 (the Act) provides for the requirements to be met by a complying health insurance policy that covers hospital treatment. 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 where a medicare benefit is payable or in other circumstances 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. 4) 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. 8) 2019 amends the Prostheses Rules by:

• correcting the benefits for three prostheses in ‘Part 1 – Prostheses List – Part A’ of Schedule 1, and
• correcting references to regulations in the conditions of listing for cardiac ablation prostheses in ‘Part 3 – Prostheses List – Part C’ 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

Correcting the minimum benefits for the prosthesis in Part A will ensure that they continue to be available for insured persons and a private health insurance benefit will continue to be payable.

Correcting the reference to relevant regulations in the conditions of listing on cardiac ablation prostheses will ensure that these devices continue 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 enables advances in the protection of human rights, in particular the right to health.

Megan Keaney

Acting Assistant Secretary

Office of Health Technology Assessment

Technology Assessment and Access Division

Department of Health