1. Name of Rules

These Rules are the Private Health Insurance (Health Insurance Business) Rules 2016.

2. Commencement

These Rules commence on 1 July 2016.

2A. Revocation

These Rules revoke the Private Health Insurance (Health Insurance Business) Rules 2015.

3. Definitions

In these Rules:

Act means the Private Health Insurance Act 2007.

allied health service has the meaning given by rule 12.

chronic disease has the meaning given by rule 12.

chronic disease management program has the meaning given by rule 12.

diagnostic imaging services table means the table prescribed under subsection 4AA (1) of the Health Insurance Act 1973.

eligible person has the same meaning as in subsection 3 (1) of the Health Insurance Act 1973 and includes a person who is treated as an eligible person sections 6, 6A or 7 of that Act.

general medical services table means the table prescribed under subsection 4 (1) of the Health Insurance Act 1973.

item has the same meaning as in subsection 3 (1) of the Health Insurance Act 1973.

licensee means the person licensed under the law of the State or Territory in which the facility is located to operate the premises.

private hospital means a hospital in respect of which there is in force a statement under subsection 121-5 (8) of the Act that the hospital is a private hospital.

pathology services table means the table prescribed under subsection 4A (1) of the Health Insurance Act 1973.

private facility means a facility that, if a declaration were to be made by the Minister under subsection 121-5 (6) of the Act in respect of that facility, it would include a statement under subsection 121-5 (8) that the hospital is a private hospital.

public hospital means a hospital in respect of which there is in force a statement under subsection 121-5 (8) of the Act that the hospital is a public hospital.

risk factors for chronic disease has the meaning given by rule 12.

State/Territory means the State or Territory in which the premises are located and includes a governing body or authority established by a law of the Commonwealth, a State or an internal Territory.

Note: Terms used in these Rules have the same meaning as in the Act―see section 13 of the Legislative Instrument Act 2003. These terms include:

complying health insurance policy
covers
employee health benefits scheme
general treatment
health benefits fund
health insurance business
health-related business
hospital
hospital-substitute treatment
hospital treatment
medicare benefit
private health insurer

Part 2 Hospitals

4. Information to be provided by hospitals to insurers

(1) For paragraph 121-5 (7) (e) of the Act, information of the kind described in the HCP Data from Hospitals to Insurers relating to treatment of insured persons is specified.

(2) In this rule, HCP Data from Hospital to Insurers means the protocol set out in the document approved by the Assistant Secretary of the Health System Financing Branch of the Department of Health on 31 March 2016 which consists of “Data Specifications (HCP)” and “Explanatory Notes (HCP)”, and sets out the data specifications for data provided by hospitals to private health insurers.

(3) For the purposes of interpreting the kinds of information to be provided with respect to “Data Specifications (HCP)”, reference must be made to “Explanatory Notes (HCP)”.

5. Matters to which the Minister is to have regard in declaring that a facility is a hospital

For paragraph 121-5 (7) (f) of the Act, in deciding whether to declare that a facility is a hospital, the following matters are specified:

(a) in the case of a private facility, whether or not declaration of the premises would materially affect reasonable access by public patients to a reasonable range of services; and

(b) whether or not declaration of the premises would result in a transfer of costs from the State or Territory to any other party; and

(c) in the case of a private facility which was previously part of a public hospital, operated as a public hospital or was co-located with a public hospital operated by a State or Territory, the adequacy of arrangements in that public hospital to ensure that patients presenting for treatment are able to exercise freely their right to elect to be treated as a public patient in that facility; and

(d) in the case of a private facility which was previously part of a public hospital, operated as a public hospital or co-located with a public hospital operated by a State or Territory, whether or not the State or Territory and the licensee of the hospital have entered into or are prepared to enter into enforceable agreements with the Commonwealth to supply data or information to the Commonwealth to allow the Commonwealth to monitor access by public patients to a reasonable range of services, the adequacy of arrangements for patient election as to treatment as a public or private patient, the costs to the State/Territory and any other party, and the extent to which costs incurred by other parties are increasing or decreasing.

6. Matters to which the Minister is to have regard in revoking a declaration that a facility is a hospital

For paragraph 121-5 (7) (f) of the Act, in deciding whether to revoke a declaration that a facility is a hospital, the following matters are specified:

(a) if an undertaking has been provided by the facility's operator to provide to private health insurers information referred to in paragraph 121-5 (7) (e) of the Act, whether that information has been provided within 6 weeks after the insured person to whom the information relates has been discharged from the hospital; and

(b) whether an enforceable agreement referred to in paragraph 5 (d) has been complied with.

7. Conditions on declarations of hospitals

(1) For subsection 121-7 (2) of the Act, a declaration under paragraph 121‑5 (6) (a) of the Act is subject to the conditions specified for this rule.

(2) In the case of a private hospital, the conditions specified for this rule are that the hospital:

(a) provide to the Department de-identified patient data specified in the PHDB Data from Private Hospitals to the Department; and

(b) provide the data specified in the PHDB Data from Private Hospitals to the Department within 6 weeks after the insured person to whom the information relates has been discharged from the hospital; and

(c) if the hospital provides triage and early treatment to a person in a situation of emergency, that the hospital subsequently:

(i) provides reasonable access to an appropriate range of services for the treatment of the person; or

(ii) has arrangements for the transfer of the person, within a reasonable time, to a hospital where such services are available.

(3) In this rule, PHDB Data from Private Hospitals to the Department means the protocol set out in the document approved by the Assistant Secretary of the Health System Financing Branch of the Department of Health on 31 March 2016 which consists of “Data Specifications (PHDB)” and “Explanatory Notes (PHDB)”, and sets out the data specifications for data provided by private hospitals to the Department.

(4) For the purposes of interpreting the kinds of information to be provided with respect to “Data Specifications (PHDB)”, reference must be made to “Explanatory Notes (PHDB)”.

Part 3 Hospital and general treatment

8. Hospital treatment―excluded treatment

The following classes of treatment are specified for the purposes of subsection 121-5 (4) of the Act:

(a) treatment which involves a procedure that has an item number that is specified in clause 8 of Schedule 3 of the Private Health Insurance (Benefit Requirements) Rules if no certificate for that procedure has been provided under clause 7 of that Schedule; and

(b) treatment provided to a person at an emergency department of a hospital; and

(c) treatment provided to a person who is not a patient within the meaning of that word in paragraph (b) of the definition of 'patient' in subsection 3 (1) of the Health Insurance Act 1973; and

Note: 'Patient' as used in paragraph (b) of the definition of 'patient' in subsection 3 (1) of the Health Insurance Act 1973 does not include a newly-born child whose mother also occupies a bed in the hospital except in certain specified circumstances.

(d) treatment which is part of a chronic disease management program that is intended to delay the onset of chronic disease for a person with identified multiple risk factors for chronic disease.

Note: Paragraph (d) does not refer to a chronic disease management program that is intended to prevent the onset of chronic disease for a person with identified multiple risk factors for chronic disease as hospital treatment is treatment intended to manage a disease, injury or condition and does not cover prevention―see the meaning of hospital treatment in subsection 121-5 (1) of the Act. Treatment intended to prevent a disease may be general treatment―see subsection 121-10 (1) of the Act.

9. General treatment―included treatment

Ambulance services associated with the provision of treatment to an insured person are specified for the purposes of subsection 121-10 (2) of the Act.

10. General treatment―services for which medicare benefit is payable

For paragraph 121-10 (3) (a) of the Act, the following classes of services for which medicare benefit is payable are general treatment:

(a) the professional medical therapeutic services identified in Groups T1 to T11 of the general medical services table that are:

(i) items in the table without the symbol (H); or

(ii) not stated in the item to be services that are to be performed in a hospital for the medicare benefit to be payable; and

(b) oral and maxillofacial services set out in Groups O1 to O11 of the general medical services table that are:

(i) items in the table without the symbol (H); or

(ii) not stated in the item to be services that are to be performed in a hospital for the medicare benefit to be payable; and

(i) pathology services table; and

(ii) diagnostic imaging services table,

that are integral to the provision of the services specified in paragraphs (a) and (b),

but only when any of the services in the above classes are provided as part of hospital-substitute treatment.

Note 1: The effect of this rule is to provide for the above treatments or services that are eligible for a medicare benefit to come within the definition of hospital-substitute treatment.

Note 2: Private health insurers cannot cover, as part of general treatment (including hospital-substitute treatment) professional services for which medicare benefit is payable, except as provided for in this rule.

Note 3: Section 126 of the Health Insurance Act 1973 prohibits insurance regarding professional services for which medicare benefit is payable, other than a complying health insurance policy entered into by a private health insurer that covers hospital treatment or hospital-substitute treatment, or insurance regarding a person who is an eligible person by reason only of being treated as an eligible person under subsection 7 (2) of the Health Insurance Act 1973.

11. General treatment―excluded treatment

(1) Treatment which primarily takes the form of sport, recreation or entertainment, other than such treatment which is part of a chronic disease management program or a health management program if the programs have been approved by the private health insurer, is specified for the purposes of paragraph 121-10 (3) (b) of the Act.

(2) In this rule, health management program means a program that is intended to ameliorate a person's specific health condition or conditions.

12. Chronic disease management programs

(1) A chronic disease management program means a program that is intended to:

(a) either:

(i) reduce complications in a person with a diagnosed chronic disease; or

Note: A chronic disease management program that is intended to reduce a patient's complications and is provided in the circumstances mentioned in subsection 121-5 (1) of the Act is hospital treatment. If the program is provided other than in the circumstances mentioned in paragraphs 121‑5 (1) (b) and (c), it is general treatment.

(ii) prevent or delay the onset of chronic disease for a person with identified multiple risk factors for chronic disease; and

Note: A chronic disease management program intended to prevent or delay the onset of a chronic disease in a patient can be general treatment only―see paragraph 121-5 (1) (a) of the Act and paragraph 8 (d) of these Rules in respect of hospital treatment, and paragraph 121-10 (1) (a) in relation to general treatment intended to prevent a disease.

(b) requires the development of a written plan that:

(i) specifies the allied health service or services, and any other goods and services to be provided; and

(ii) specifies the frequency and duration of the provision of those goods and services; and

(iii) specifies the date for review of the plan; and

(iv) has been provided to the patient for consent, and consent is given to the program, before any services under the program are provided; and

(i) ensuring the services are provided according to the plan; and

(ii) monitoring the patient's compliance with the agreed goals and activities specified in the plan.

(2) In this rule:

allied health service means a health service provided by any of the following allied health professionals who were eligible, at the time the service was provided, to claim a medicare rebate for a service of that type:

(a) an Aboriginal health worker;

(b) audiologist;

(d) chiropractor;

(e) diabetes educator;

(f) dietician;

(g) exercise physiologist;

(h) mental health worker;

(i) occupational therapist;

(j) osteopath;

(k) physiotherapist;

(l) podiatrist;

(m) psychologist;

(n) speech pathologist.

chronic disease is a disease that has been, or is likely to be, present for at least 6 months, including, but not limited to, asthma, cancer, cardiovascular illness, diabetes mellitus, a mental health condition, arthritis and a musculoskeletal condition.

risk factors for chronic disease include, but are not limited to:

(a) lifestyle risk factors, including, but not limited to, smoking, physical inactivity, poor nutrition or alcohol misuse; and

(b) biomedical risk factors, such as high cholesterol, high blood pressure, impaired glucose metabolism or excess weight; and

Part 4 Health insurance business

13. Business that is not accident and sickness insurance

(1) For the purposes of paragraph 121-20 (2) (b) of the Act, the following kinds of business are specified:

(a) the business of undertaking liability, by way of insurance, to pay a lump sum, or to make periodic payments, on the happening of a personal accident, disease or sickness, where the extent of the insurer’s liability is calculated by reference to, or is in any way contingent upon, a period of time during which a person is a patient in a hospital;

(b) the business of undertaking liability, by way of insurance, to pay a lump sum, or to make periodic payments, on the happening of a personal accident, disease or sickness, where the business includes the offer, promotion or offer and promotion of a policy (or a group of policies) in which:

(i) the amount of benefit varies according to the kind of insured event that occurs; and

(ii) the insured event is defined in terms that involve the provision of hospital treatment or relevant health services;

whether or not the insurer’s liability is in any way contingent on any treatment or services being provided to the insured, or on the payment of fees or charges for any treatment or services.

(2) In this rule, relevant health services means medical, surgical, diagnostic, nursing, dental, chiropody, chiropractic, eye therapy, occupational therapy, physiotherapy, speech therapy or similar services or treatment.

14. Health insurance business: exclusions in respect of certain goods

(1) In this rule, relevant service means a service involving the supply, alteration, maintenance or repair of any of the following:

(a) hearing aids;

(b) spectacles;

(d) artificial teeth, eyes or limbs (including parts of teeth or limbs);

(e) other medical, surgical, prosthetic or dental aids, equipment or appliances.

(2) For section 121-30 of the Act, the business of undertaking liability, by way of insurance, or an arrangement to make payments under an employee health benefits scheme, with respect to the provision of a relevant service by way of indemnity for damage to, or loss of an item referred to in this rule is not health insurance business unless the insurance policy under which the liability is undertaken primarily covers:

(a) hospital treatment; or

(b) general treatment; or

15. Insurance that is not health insurance business

(1) For section 121-30 of the Act, the business of undertaking liability, by way of insurance, or an arrangement to make payments under an employee health benefits scheme is not health insurance business if the insurance, whether provided by a private health insurer or other person, covers:

(a) a matter referred to in subsection 121-1 (2) of the Act; and

(b) a person referred to in any of subrules (3) to (8) in the circumstances stated in the subrule in respect of that person.

(2) This rule does not limit the operation of a person's complying health insurance policy that covers the relevant treatment.

Note: A complying health insurance policy must meet the coverage requirements specified in section 63-10 of the Act.

(3) A resident temporarily employed outside Australia―insurance for a person who is a resident of Australia and engaged in temporary employment outside Australia, or a dependant of that person, in respect of whom an insurance policy provides that liability for hospital treatment or general treatment may arise:

(a) in Australia; or

(b) outside Australia, if the absence of the person from Australia is due to the temporary employment.

(4) A person on board a cruise ship―a person who is an eligible person and where the cover for that person is for treatment provided while the person is on board a cruise ship that is:

(a) in the coastal sea of Australia; or

(b) in the internal waters of a State or an internal Territory.

(5) Volunteers, sporting and youth activities―a person in respect of the occurrence, in relation to that person, of one of the following events:

(a) an event occurring while the person is, without payment, providing services to an educational, religious, charitable or benevolent organisation or while that person is travelling to or from the place where those services are provided;

(b) an event occurring while the person;

(i) is engaged in a sporting activity (in the capacity of a participant, adjudicator, judge, referee or umpire or in a similar capacity); or

(ii) is acting as an official at, or otherwise assisting in the conduct of, a sporting activity; or

(iii) is acting in his or her capacity as an elected or appointed official of a sporting organisation;

or while that person is travelling to or from:

(iv) that activity; or

(v) the place where that person acts in that capacity;

(c) an event occurring while the person is engaged in youth activities organised by a voluntary organisation (for example, the Girl Guides Association of Australia, the Scout Association of Australia, the Y.M.C.A. of Australia, the Y.W.C.A. of Australia or a police citizens youth club) or while that person is travelling to or from such activities.

(6) Student activities―a student at an educational institution, in respect of an event occurring while that person:

(a) is attending that institution in accordance with the requirements of that institution; or

(b) is, in the course of such attendance, taking part in an activity organised and supervised by that institution; or

(7) Secondary school students―a secondary school student, in respect of an event occurring while that person is undertaking, as part of the student's curriculum, non‑remunerative work in a work environment unconnected with the school in order to gain work experience or while that person is travelling to or from that work.

(8) People undertaking Commonwealth-funded activities―a person to whom a law of a State or Territory relating to workers’ compensation does not apply, in respect of an event occurring while the person:

(a) is undertaking an activity that is part of an employment, education, training or youth program, or initiative, administered or funded by the Commonwealth, including specialist employment services for people with disabilities; or

(b) is travelling to a place to undertake such an activity or travelling from a place after undertaking the activity at that place.

16. Health insurance business: death or disability benefits

(1) For the purpose of section 121-30 of the Act, the business of undertaking liability, by way of insurance, is not health insurance business where the liability is for:

(a) death benefits; or

(b) benefits payable if the insured is more likely than not to die within 2 years after making a claim for illness or injury; or

(i) is permanently unable to work in the category of occupation defined in the policy; or

(ii) is accepted by the insurer as being unable to work because of loss of sight or limb; or

(d) benefits payable as income replacement or as premium payments for an insurance policy because the insured is disabled and restricted from earning income; or

(e) if the insured is not employed — benefits payable by reference to the time for which the insured is disabled and cannot carry out domestic activities; or

(f) benefits payable:

(i) because of an event defined in the policy; and

(ii) in a lump sum or in parts; and

(iii) if the total benefit payable for each event defined in the policy is at least $10,000.

(2) This rule does not apply if the provision of a benefit is authorised under rules made for the purposes of paragraph 69-1 (1) (b) of the Act.

17. Insurance that is not health insurance business―certain overseas visitors

(1) Subject to this rule, for section 121-30 of the Act, the business of undertaking liability, by way of insurance, or an arrangement to make payments under an employee health benefits scheme, is not health insurance business if the insurance covers:

(a) a matter referred to in subsection 121-1 (2) of the Act; and

(b) a person who, at the time of entering into the relevant contract of insurance, is or expects to be, temporarily present in Australia and who:

(i) is not, or will not be, an eligible person; or

(ii) is an eligible person by reason only of being treated as an eligible person under subsection 7 (2) of the Health Insurance Act 1973; and

(iii) is not an overseas student or specified temporary visa holder who has insurance provided by a private health insurer in the circumstances referred to in rule 18.

Note 'Overseas student' and 'specified temporary visa holder' are defined in rule 18.

(2) Despite subrule (1), during the period from the commencement of these Rules until 1 July 2008, the business referred to in that subrule is health insurance business if it is conducted by a private health insurer.

(3) Despite subrule (1), the business referred to in that subrule is health insurance business if the insurance covers a matter referred to in subsection 121-1(2) of the Act and is a complying health insurance policy.

18. Overseas students and specified temporary visa holders

(1) For section 121-30 of the Act, the business of undertaking liability, by way of insurance, with respect to a matter referred to in subsection 121-1 (2) of the Act is not health insurance business if:

(a) the liability is undertaken by a private health insurer under:

(i) an overseas student health insurance contract; or

(ii) a specified temporary visa holder health insurance contract; and

(b) the insurer includes the business in a health benefits fund conducted by the insurer.

Note: The business of insuring overseas visitors is health-related business―see paragraph 131-15 (1) (b) of the Act.

(2) In this rule:

overseas student means:

(a) a person who is the holder of a student visa; or

(b) a person who:

(i) is an applicant for a student visa; and

(ii) is the holder of a bridging visa; and

(iii) was, immediately before being granted the bridging visa, the holder of a student visa.

overseas student health insurance contract and specified temporary visa holder health insurance contract each means an insurance policy made in accordance with a written agreement between a private health insurer and the Commonwealth that allows the private health insurer to pay benefits in respect of the whole or part of the fees and charges incurred by an overseas student or a specified temporary visa holder, as the case may be, or by a dependant of the student or visa holder, in relation to the provision in Australia of any or all of the following:

(a) medical, surgical, diagnostic, nursing, dental, chiropody, chiropractic, eye therapy, occupational therapy, physiotherapy, speech therapy or similar services or treatment;

(b) services involving the supply, alteration, maintenance or repair of hearing aids, spectacles, contact lenses, artificial teeth, eyes or limbs (including parts of teeth or limbs) or other medical, surgical, prosthetic or dental aids, equipment or appliances;

(d) ambulance services;

(e) services by an attendant of a person who is sick or disabled;

(f) professional services for which medicare benefits would otherwise be payable under the Health Insurance Act 1973;

(g) hospital treatment.

specified temporary visa holder means a person, other than an overseas student, who is the holder of, or an applicant for, a temporary visa that includes a condition under the Migration Regulations 1994 requiring the person to maintain adequate arrangements for health insurance while the holder is in Australia.

student visa has the meaning given by subsection 5 (1) of the Migration Act 1958.

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