Bills Digest No. 124  1998-99 Health Legislation Amendment Bill (No. 4) 1998


Numerical Index | Alphabetical Index

WARNING:
This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

CONTENTS

Passage History
Purpose
Background
Main Provisions
Concluding Comments
Endnotes
Contact Officer and Copyright Details

Passage History

Health Legislation Amendment Bill (No.4) 1998

Date Introduced: 3 December 1998

House: House of Representatives

Portfolio: Health and Aged Care

Commencement: The formal provisions of the Bill commence on Royal Assent.

Items of Schedules 1 and 2 commence on a day to be proclaimed or otherwise 6 months and one day from Royal Assent. Items in Schedule 1 contain measures which propose to regulate certain current activities of private health insurance funds and further to provide health funds with greater flexibility, for example, by permitting the funds to offer their contributors loyalty bonuses and covering all costs of pharmaceuticals prescribed in hospital where the contributor has 100 per cent cover. Items in Schedule 2 contain consequential amendments.

Schedule 3 contains amendments which relate to the monitoring of changes in contribution rates of health insurance funds. Items 1 to 7 of Schedule 3 commence on a day to be proclaimed or otherwise 6 months and one day from Royal Assent. Items 8 to 15 commence on a date to be fixed by proclamation that occurs after, but not more than 2 years after, items 1 to 7 commence. Items 16 to 18 commence on a date to be fixed by proclamation that occurs after, but not more than 2 years after, items 8 to 15 commence.

Purpose

Measures in this Bill aim to improve the efficiency and flexibility of the private health insurance industry and propose several initiatives to make private health insurance more attractive to consumers.

Background

Membership of private health insurance funds has been in decline for much of the 1980s and 1990s, falling from 50 per cent of the population at 30 June 1984 to 30.1 per cent at 31 December 1998.(1) Although several factors have contributed to this decline in coverage, a fundamental problem continues to be the uneasy relationship between the universal and publicly financed Medicare, which covers medical services and hospital services and voluntary private health insurance, which provides coverage for hospital services and allied health services such as physiotherapy and dental services.

An extensive review of private health insurance was conducted by the then Industry Commission in 1996-97, which issued a 500 page report(2) and made 22 recommendations, most of which were accepted by the Government. A variety of policy measures have been implemented by governments to address the declining coverage of private health insurance but, as yet, the decline has only been slowed not reversed.

Measures proposed in the Health Legislation Amendment Bill (No. 4) 1998 complement previous initiatives and were first announced by the Government on 22 September 1998.(3) These measures represent a major recasting of private health insurance in Australia and are a significant departure from the mainly incremental changes introduced since Medicare began in 1984. Important changes include: the creation of 'approved procedures facilities' in which certain procedures (previously restricted to hospitals and day hospitals) may be undertaken; the opportunity for health funds to offer their contributors a loyalty bonus; and the return, within 2 years, of responsibility for the monitoring of changes to health insurance premiums to the Private Health Insurance Administration Council. The Bill proposes that health funds will not be subject to any monitoring in regard to rule changes, including premium changes, after a further 2 year period.

Community rating

Community rating is a central element of Australia's system of private health insurance. Both forms of private health insurance [hospital insurance and ancillary (extras) insurance] are community rated, which means that the premium of an insurance table or policy offered by a particular health insurance fund must be the same for all contributors and intending contributors to that table. No one can be denied membership of a private health insurance fund by virtue of their age or health status. Community rating aims to ensure that the aged and chronically ill are protected from high premiums. Community rating is also supported by the reinsurance arrangements, which operate to spread the cost of the elderly and chronically ill across all funds.

The alternative to community rating is experience or risk rating, which applies to most other forms of insurance, such as car, household and life insurance policies. A recent study by the Australian Institute of Health and Welfare (AIHW) calculated that community rating had protected the elderly from premiums which may otherwise have been as high as 6 times the average in a risk rated environment. Similarly, people in poor health would have been required to pay premiums which were 8 times the average under a risk rated system of private health insurance.

The study found that community rating was not only protecting people in poorer health from the high cost of risk-rated premiums, it was also redistributing benefits from low-risk groups to high risk groups. In addition, the study found that community rating had produced a redistribution of resources from the wealthier members of health funds to the poorer members, with members in the lowest income group receiving about three times the benefits of members in the highest income group. This occurred both among young and older members.(4)

Concerns have been raised that community rating is gradually being eroded. These concerns were discussed in the Industry Commission's report on private health insurance. The concerns revolve around several factors, including the introduction and increasing acceptance of front-end deductible policies whereby contributors elect to accept some risk by paying an excess prior to any benefits being paid by their health fund. Front-end deductible policies attract a lower premium than full cover policies. In addition, exclusionary policies have also been introduced by health funds. These policies offer a lower premium in return for the contributor foregoing benefits for treatment in a private hospital for particular conditions such as cardiac surgery and obstetrics.

It is argued that both of these types of policies exclude the elderly and chronically ill who are unable or unwilling to pay an excess or forego coverage for treatment of particular conditions in a private hospital. However, it can equally be argued that these types of policies provide choice for contributors and may also attract lower risk contributors who may not otherwise be privately insured. Further concerns involve the level of discounts being offered by some health funds in a bid to attract new members from workplaces. It has also been argued that more recent measures to enable health funds to offer couple and single parent memberships may work to undermine community rating. The Bill provides that health funds must adhere to the principles of community rating when seeking to implement a loyalty bonus scheme.

No claim bonuses are a commonly used mechanism in risk rated insurance policies to reward financially members with none or few insurance claims. While no claim bonuses would be attractive to healthy people with private health insurance, it is clear that such a measure would discriminate against people with a large volume of claims, such as chronically ill people. As such, no claim bonuses would undermine community rating. No claim bonuses for private health insurance may also have the effect of encouraging patients to seek treatment in the public hospital system to avoid making a claim on their private health insurance policy (and hence maintain their no claim bonus). Measures in the Bill make it clear that no claim bonuses may not be offered by health funds (for example, as part of a loyalty bonus scheme).

Main Provisions

Schedule 1-Amendment of the National Health Act 1953

Part 1-Amendments relating to discounted premiums

Items 1, 2 and 3 of this part seek to regulate, or at least, put some limits on, the existing practices of many private health insurers. Discounts are currently offered to members whose premiums are paid directly from their pay or their bank account or where premiums are paid quarterly, six months or twelve months in advance. Discounts are also offered to groups-for example, members of a particular workplace. New subsection 73BA(4) provides that the Minister may determine the maximum percentage of discount which may be offered by the health funds to contributors in each payment class. The level of discounts will be explicitly linked to the administrative savings gained by the health fund(s). Existing discount arrangements will be permitted to continue. New subsection 73BA(5) provides that Ministerial declarations made under new subsection 73BA(4) are disallowable instruments.

Part 2-Amendments relating to loyalty bonus schemes

Part 2 of Schedule 1 proposes that health funds may offer loyalty bonuses to their contributors. The funds will have the freedom to decide the type of bonuses to be provided (if any). Examples of possible loyalty bonuses included a reduced premium, a higher level of coverage, goods and services, or a cash payment. The health funds will not have to offer loyalty bonuses to all their contributors, but must offer the bonuses to all contributors covered under a given insurance table. The Department of Health and Aged Care will scrutinise proposals by health funds for loyalty bonuses.

Item 4 inserts new subsection 73BA(2A) which proposes to allow the Minister to issue guidelines relating to loyalty bonus schemes and new subsection 73BA(2B) which specifies matters which may be included in the Minister's guidelines. Any guidelines so issued are disallowable instruments. Schedule 1 of the National Health Act 1953 is amended by item 5 inserting new paragraph (ma) which will allow health funds to implement a loyalty bonus scheme. New paragraph (mb) will require that health funds uphold the principle of community rating in the implementation of a loyalty bonus scheme.

Part 3-Amendments relating to waiting periods

Items in this Part propose that waiting periods may be extended for certain conditions, ailments or illnesses, as yet not specified. This measure is aimed at those illnesses/conditions which health funds have alleged are subject to so-called 'hit and run' contributors (where contributors join for the minimum period, undergo the particular procedure(s), often making claims on the health fund for more than the amount of their contributions and then drop out of the fund). Notable among these illnesses/conditions are joint replacements and obstetrics. The actual extent of 'hit and run' contributors and evidence of their effect on health funds has not been provided to date by the funds. Prospective contributors may face increased waiting times prior to benefits being paid for particular procedures. The definition of 'pre-existing ailment' remains unchanged.

Item 6 inserts new subsection 73BAA to allow health funds to waive waiting periods. Item 9 repeals paragraph (j) of Schedule 1 of the Act and replaces it with new paragraph (j) which removes the present legislatively prescribed waiting periods, allowing the new waiting periods to be determined by regulation. New paragraph (j) is to become the new common reference point in the Act for waiting periods.

Part 4-Amendments relating to coverage of pharmaceutical benefits costs

This Part proposes to allow health funds to pay the co-payment for Pharmaceutical Benefits Scheme (PBS) pharmaceuticals (currently $20.30 per prescription for general patients and $3.20 for concessional patients) prescribed as part of in-hospital treatment but only in those cases where the contributor is covered by an insurance table offering 100 per cent cover. To an extent, this measure legalises a current practice of some funds. Since the advent of 100 per cent hospital cover, some hospitals have not separately billed the co-payments for PBS prescriptions and some funds have paid the co-payments on behalf of their contributors. Other funds have not paid for PBS co-payments, in accordance with the requirements of the Act. This measure proposes that health funds will now be able to pay the co-payment for PBS prescriptions for hospital in-patients where that patient is covered by an insurance table or policy which offers 100 per cent hospital cover.

Item 16 repeals existing section 92B and inserts new section 92B, which reasserts the current general prohibition against pharmaceutical benefit refund agreements but provides for an exception where a contributor to health fund has purchased 100 per cent hospital cover. This provision will relate only to those PBS pharmaceuticals dispensed while the contributor is in hospital.

The extent to which health funds have paid the PBS co-payment on behalf of their contributors is not known. While it is possible that this measure may impose some additional costs on health funds, this is likely to be small, given that the co-payments are a small element of the total cost of any hospital episode. However, the measure will be of benefit to contributors with 100 per cent cover who will be spared both the cost and inconvenience of being separately billed for PBS co-payments.

Part 5-Amendments relating to certain procedures rendered in approved procedures facilities

This Part recognises that due to advances in medical technology, certain procedures may now be performed safely outside of hospitals or day hospitals. The amendments propose that these procedures may be undertaken in an 'approved procedures facility'. Item 17 inserts a new definition into subsection 4(1) of the Act for an 'approved procedures facility'. Item 20 inserts new section 5C into the Act which allows the Minister to declare in writing that selected premises are 'approved procedures facilities'. New subsection 5C(5) provides that Ministerial determinations made under new section 5C are disallowable instruments.

Item 21 inserts new subsection 73BA(2C) which allows the Minister to specify which procedures are appropriate to be undertaken in such 'approved procedures facilities'. Schedule fees and rebates for these procedures are expected to remain at their current levels. New subsection 73BA(2D) provides that Ministerial determinations made under new subsection 73BA(2C) are disallowable instruments.

For procedures performed in an 'approved procedures facility', Medicare will provide a rebate of 75 per cent of the Schedule fee and item 22 inserts new paragraph (bka) of Schedule 1 of the Act which proposes that health funds will provide a minimum of a further 25 per cent of the Schedule fee (as is currently the case for hospital and day hospital procedures) plus any 'facility benefit' determined by the Minister under new subsection 73BA(2C), which is inserted by item 21. The 'facility benefit' is a payment made in recognition of the extra costs involved in establishing an 'approved procedures facility' and should help to protect privately insured patients from higher out-of-pocket costs as providers can be expected to recoup their establishment costs by way of higher charges for procedures undertaken in 'approved procedures facilities'. This 'facility benefit' may also make the prospect of self-insurance less attractive for such procedures. Where a Medical-Purchaser-Provider-Agreement is in force between the health fund and a medical practitioner new paragraph (bkb) of Schedule 1 of the Act proposes that benefits paid by the fund may exceed 25 per cent of the Schedule fee. Medical-Purchaser-Provider-Agreements can be negotiated between individual medical practitioners and health funds with the aim of reducing or eliminating out-of-pocket costs for patients with an appropriate level of cover.

Estimating the possible impact of this measure is difficult because of several unknown factors. It is expected that procedures provided in such facilities will substitute for procedures which would otherwise have been provided in a hospital or day hospital, because only existing items in the Medicare Benefits Schedule are to be approved for use in these facilities. It is possible that savings may accrue to health funds because these procedures will presumably be performed at a lower cost than would have been the case in a hospital or day hospital. However, depending on the level at which the proposed 'facility benefit' is set by the Minister, the overall costs to health funds may end up being higher, in which case contributors with the appropriate cover will be likely to face increased premiums. In addition, it is possible that these facilities may offer greater ease of access for patients and may result in increased demand for the particular procedures available in the facilities.

Part 6-Amendments relating to specialist services

Cabinet agreed on 15 February 1999 to an amendment to the Bill which will remove Part 6 of Schedule 1 and all relevant miscellaneous provisions of Schedule 2 of the Bill.(5)

This Part proposes that a new class of benefit be created to cover specialist services provided in consulting rooms. Health funds are currently prohibited from offering benefits for out-of-hospital medical services and as such this measure proposes a significant departure from current and past practice. The Bill makes it clear that this coverage is to be an additional product which health funds may offer to their contributors. As such, any extra costs imposed by the measure should be able to be recovered by way of additional premiums for the increased cover. Contributors will presumably be free to choose the additional cover.

Schedule 2-Consequential amendments of various Acts related to the amendments made by Schedule 1

The National Health Act 1953 (the Act) provides that health insurance business (ie the provision of health insurance policies) may only be conducted by registered organisations. This provision is necessary to protect community rating. The Act also provides that changes to premiums for health insurance are treated as changes to health fund rules. Only amendments to the National Health Act 1953 are dealt with here.

Item 4 inserts new section 5AB after section 5A of the National Health Act 1953. This new section 5AB proposes to ensure that changes to health fund constitutions, articles or rules that relate to either discounting and/or loyalty bonus schemes are not to be considered to be changes related to rates of contributions changes (premium changes).

Item 5 repeals paragraph (a) of the definition of 'accident and sickness insurance business' in subsection 67(4). Replacement paragraph (a) incorporates the schemes referred to in Parts 5 and 6 of Schedule 1 of the Bill which will, for the first time under Medicare, permit health funds to offer medical insurance for certain out-of-hospital procedures. The replacement paragraph (a) proposes to ensure that a person carrying on accident and sickness insurance may not cover those types of services.

Item 6 repeals paragraph (a) of the definition of 'health insurance business' in subsection 67 (4). Replacement paragraph (a) will ensure that a person carrying on health insurance business may cover the types of services proposed in Parts 5 and 6 of Schedule 1 of the Bill, outlined above.

Items 7, 8 and 9 propose further consequential amendments to the Act. Item 7 repeals subsection 73BDA(6) and replaces it with new subsection 73BDA(6) which provides that Medical-Purchaser-Provider-Agreements may now also relate to services of the kind contained in Parts 5 and 6 of Schedule 1 of the Bill. Item 8 amends subsection 73BDA(8) to ensure that the existence of a Medical-Purchaser-Provider-Agreement does not preclude any person individually contracting for services from any medical practitioner.

Paragraph (bf) of Schedule 1 of the National Health Act 1953 requires that all hospital insurance tables offered by health funds must include benefits for palliative care, rehabilitation and psychiatric care. Item 9 amends paragraph (bf) to the extent that new products to be offered by health funds to cover services envisaged in Parts 5 and 6 of Schedule 1 of this Bill will not be required to include benefits for palliative care, rehabilitation and psychiatric care.

Items 6 to 9 will be amended to reflect the decision of Cabinet to withdraw Part 6 of the Bill.

Schedule 3-Amendments relating to monitoring of changes in contribution rates of organisations

Amendments proposed in Schedule 3 relate to the politically sensitive area of contribution rates or premiums for private health insurance. All the amendments in Schedule 3 are made to the National Health Act 1953 (the Act).

Premiums for particular insurance products are specified by health funds in health fund rules. Any change to a premium for a health insurance product is a change to the rules of the health fund. The Act provides that a change to any health fund rule is subject to Ministerial scrutiny. The Minister does not have the power to approve increases in premiums by a health fund, but does have the power to disallow a change to the health fund's rules on certain grounds. Amendments in Schedule 3 propose to establish separate provisions for dealing with rule changes which relate to changes in premium levels and all other rule changes.

Subsection 78(4) of the Act provides three grounds which are available to the Minister to disallow a change in the rules of a health fund - the rule change would or might result in a breach of the Act or condition of registration; imposes an unreasonable or inequitable condition upon the health fund's members; or might, having regard to the advice of the Private Health Insurance Administration Council (PHIAC), adversely affect the financial stability of the health fund. In practice, these grounds have seldom provided a Minister with the ability to disallow a rule change relating to a change in premium levels. Item 1 restricts the application of section 78 of the Act to changes to the rules of health funds other than changes to premium levels, which are now to be dealt with under new section 78A.

Item 4 repeals and replaces subsection 78(4). New subsection 78(4) reiterates the original three grounds available to the Minister to disallow a rule change and adds two additional grounds. These additional grounds allow the Minister firstly, to take account of the state of the private health insurance industry and, secondly, to consider the public interest. These additional grounds broaden (at least potentially) the discretion of the Minister to disallow changes to rules of health funds.

Item 5 inserts new section 78A after the modified section 78. This new section deals with changes to health fund rules pertaining to changes in premiums paid by contributors. This new section provides that a shorter notification period of 14 days will apply where a health fund wishes to change the premium of any of its health insurance products. Mirroring proposals of new subsection 78(4), new subsection 78A(8) reiterates the original three grounds available to the Minister to disallow a rule change relating to changes to premiums and adds two additional grounds.

As is the case with other rule changes, these additional grounds allow the Minister first, to take account of the state of the private health insurance industry and, secondly, to consider the public interest. These additional grounds broaden (at least potentially) the discretion of the Minister to disallow changes to rules of health funds which relate to changes to premium levels. However, in practice, it is unlikely that these new provisions will result in a sudden rash of notifications of rule changes being disallowed, due to the nature of the private health insurance industry. Health funds are overwhelmingly not-for-profit organisations which channel any excess revenue to their reserves. The Act requires health funds to maintain their reserves at a certain level. Health funds are basically in the position where their income from contribution rates (premiums) must meet the level of benefits which the fund is paying to its members. Figures from PHIAC, the industry watchdog, indicate that while contribution income of health funds increased by some 213 per cent during the period 1984-85 to 1997-98, benefits payable by the health funds increased by 235 per cent over the same period.(6)

Item 5 will commence on a day to be proclaimed or 6 months and one day from Royal Assent.

Item 6 inserts new subsection 105AB(5A) after subsection 105AB(5) of the Act. This new subsection will allow for review by the Administrative Appeals Tribunal of Ministerial decisions made under new subsection 78A(8). Following the commencement of items 8 to 15 which transfer certain responsibilities from the Minister to PHIAC, item 14 repeals new subsection 105AB(5A) and replaces it with a new subsection permitting review by the Administrative Appeals Tribunal of any decision by PHIAC to disallow a rule change relating to changes to premiums. This subsection will become redundant following the commencement of item 16 which removes from PHIAC the responsibility of monitoring changes to health fund premiums. Item 16 will commence no later than 4 years after the commencement of item 6.

Note that in the Explanatory Memorandum of the Bill, item 6 of Schedule 3 wrongly refers to the insertion of new subsection 105(5A) after existing subsection 105(5). The Explanatory Memorandum should refer to the insertion of new subsection 105AB(5A) after existing subsection 105AB(5). The error is repeated in item 14 of the Explanatory Memorandum. In addition, item 14 of Schedule 3 of the Bill wrongly refers to subsection (8) of section 78. The correct reference is subsection (8) of section 78A.

Items 8 to 15 transfer functions relating to the monitoring of changes to health fund rules, including changes to premiums, from the Minister and the Secretary to PHIAC. Item 17 removes this power from PHIAC. The Bill provides that item 17 will commence no later than 2 years after the commencement of items 8 to 15.

Concluding Comments

Changes to the private health insurance arrangements proposed in the Health Legislation Amendment Bill (No.4) 1998 are arguably far reaching, particularly when viewed against a background of the mainly incremental changes since Medicare began in 1984. For example, the transfer, within 2 years, from the Minister to PHIAC and the subsequent removal, within a further 2 years, of any monitoring of changes to premiums will enable the Government to deal with this politically sensitive issue at arms length.

The reintroduction (although for the first time under Medicare) of medical insurance for consultations by specialists is another significant proposed change. This change may prompt some meaningful discussions between medical specialists and health funds because these new arrangements will only be possible where a Medical-Purchaser-Provider-Agreement is in place between the practitioner and the health fund. These Agreements aim to reduce or eliminate out-of-pocket costs for health fund members with the appropriate level of cover but few agreements are in place, mainly because of the opposition of specialists. The Australian Medical Association is reportedly concerned by this proposal in particular, arguing that 'allowing specialist consultations to be covered by private health insurance would change Medicare irrevocably'.(7) Indeed, general practitioners, already concerned about their incomes and their role in the health system, may regard this measure as an impetus to argue that some or all of their services should also be covered by private health insurance.

[As discussed earlier, Cabinet has agreed to an amendment which will remove the provisions of Part 6 of Schedule 1 of the Bill.]

Enabling certain procedures which are at present restricted to hospitals and day hospitals to be conducted in the proposed 'approved procedures facilities' may result in these procedures being offered at lower cost. However, if the number of services does not increase it may be expected that some financial impact will be felt by any hospitals or, more particularly, day hospitals, which presently provide a large number of these procedures. The degree of any impact will depend on the actual procedures which the Minister determines as suitable to be performed in these facilities. It is also possible that this measure may actually undermine the attractiveness of private health insurance because it may encourage people to self insure. For example, a far higher proportion of patients attending private day hospitals are not covered by private health insurance (ie they self-insure) compared to patients attending private acute and psychiatric hospitals.(8) If the costs to patients of procedures performed in 'approved procedures facilities' are lower than the costs of the same procedures performed in day hospitals it can be argued that patients attending these facilities may have a correspondingly greater propensity to self-insure.

Nevertheless, this measure does recognise that changes in technology have enabled certain procedures to be conducted out of the hospital setting and it should also provide patients with greater choice and flexibility. Likewise, measures proposing to permit health funds to offer loyalty bonuses and to pay the pharmaceutical co-payment for certain contributors in hospital are likely to welcomed by current and prospective contributors to private health insurance.

Endnotes

  1. Private Health Insurance Administration Council, Annual Report 1997-98: 88 and Coverage of
    hospital insurance tables offered by registered health benefits organisations
    , December Quarter
    1998, February 1999.

  2. Industry Commission, Private Health Insurance, report no. 57, Industry Commission, Canberra,
    1997.

  3. Minister for Health and Family Services, 'Reforms to improve efficiency and value of private
    health insurance', Media Release, 22 September 1998.

  4. Deborah Schofield, Private Health Insurance and Community Rating: who has benefited?,
    Australian Institute of Health and Welfare, Canberra, 1997: 19

  5. Extract of a letter from Dr Wooldridge to Chair of Senate Community Affairs Committee, read
    out at the commencement of the Committee's public hearing on the Bill, 17 February 1999.

  6. Private Health Insurance Administration Council, op cit: 9

  7. M Downey, 'Medicare in peril: doctors', Sydney Morning Herald, 12 February 1999.

  8. Australian Bureau of Statistics, Private Hospitals Australia 1994-95, (ABS Cat No 4390): 22.

Contact Officer and Copyright Details

Jennifer Norberry & Paul Mackey
3 March 1999
Bills Digest Service
Information and Research Services

This paper has been prepared for general distribution to Senators and Members of the Australian Parliament. While great care is taken to ensure that the paper is accurate and balanced, the paper is written using information publicly available at the time of production. The views expressed are those of the author and should not be attributed to the Information and Research Services (IRS). Advice on legislation or legal policy issues contained in this paper is provided for use in parliamentary debate and for related parliamentary purposes. This paper is not professional legal opinion. Readers are reminded that the paper is not an official parliamentary or Australian government document.

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ISSN 1328-8091
© Commonwealth of Australia 1999

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Published by the Department of the Parliamentary Library, 1999.

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