Health Insurance (Miscellaneous Provisions) Act 2009

PART 1 PRELIMINARY AND GENERAL

1. Short title, collective citation and construction.

1.— (1) This Act may be cited as the Health Insurance (Miscellaneous Provisions) Act 2009.

(2) The Health Insurance Acts 1994 to 2007 and Part 2may be cited as the Health Insurance Acts 1994 to 2009 and shall be construed together as one.

(3) The Insurance Acts 1909 to 2000 and Part 5may be cited as the Insurance Acts 1909 to 2009.

2. Definitions.

2.— In this Act—

“ Act of 1994 ” means the Health Insurance Act 1994;

“ Act of 1997 ” means the Taxes Consolidation Act 1997.

PART 2 AMENDMENT OF HEALTH INSURANCE ACT 1994

3. Principal objective of Minister and Authority in performing respective functions under Act.

3.— The Act of 1994 is amended by inserting the following section after section 1:

“1A.— (1) The principal objective of the Minister and the Authority in performing their respective functions under this Act is to ensure, in the interests of the common good, that access to health insurance cover is available to consumers of health services with no differentiation made between them (whether effected by income tax or stamp duty measures or other measures, or any combination thereof), in particular as regards the costs of health services, based in whole or in part on the respective age range and general health status of the members of any particular generation (or part thereof), and taking into particular account for the purposes of that objective—

(a) the fact that the health needs of consumers of health services increase as they approach and enter old age,

(b) the desirability of ensuring, in the interests of societal and intergenerational solidarity, and regardless of the age range or health status of any particular generation (or any part thereof), that the burden of the costs of health services be shared by insured persons by providing for a cost subsidy between the young and the old and, without prejudice to the generality of that objective, in particular that the old have access to health insurance cover by means of a tax credit, and

(c) the manner in which the health insurance market operates in respect of health insurance contracts, both in relation to individual registered undertakings and across the market.

(2) A registered undertaking shall not engage in a practice, or effect an agreement (including a health insurance contract), which has as its object or effect (whether in whole or in part) the avoidance of the achievement of the principal objective specified in subsection (1).

(3) Nothing in this section shall affect the operation of section 7(5) or 7A.”.

4. Amendment of section 2 of Act of 1994.

4.— Section 2 of the Act of 1994 is amended, in subsection (1)—

(a) by substituting the following definitions for the definition of “community rating”:

“ ‘ community rated health insurance contract ’ means a health insurance contract which complies with section 7(1) or which would comply with that section but for its falling within section 7(5) or 7A;

‘ community rating ’ means measures which, whether in whole or in part, apply towards the achievement of the principal objective specified in section 1A(1);”,

(b) by inserting the following definition after the definition of “ day patient service ”:

“ ‘ effect ’, in relation to a health insurance contract or other agreement, means to enter into or renew such contract or agreement, as the case may be;”.

(c) by inserting the following definition after the definition of “ in-patient indemnity payment ”:

“ ‘ net premium ’, in relation to a health insurance contract, means the premium payable under the contract in respect of an individual in any year of assessment after—

(a) the deduction made therefrom to which the individual is entitled, for that year of assessment, by virtue of section 470 of the Taxes Consolidation Act 1997, and

(b) the deduction (if any) made therefrom to which the individual is entitled, for that year of assessment, by virtue of section 470B of the Taxes Consolidation Act 1997;”,

(d) in the definition of “ undertaking ”, by substituting “undertaking;” for “undertaking.”, and

(e) by inserting the following definition after the definition of “undertaking”:

“ ‘ year of assessment ’ has the same meaning as in section 2 of the Taxes Consolidation Act 1997.”.

5. Amendment of section 3 of Act of 1994.

5.— Section 3 of the Act of 1994 is amended, in subsection (4)(a), by substituting 6A(2), 7A, 7B, 7F” for “7A, 7B”.

6. Substitution of section 7 of Act of 1994.

6.— The Act of 1994 is amended by substituting the following sections for section 7:

“Interpretation of Part II.

6A.— (1) In this Part, unless the context otherwise requires—

‘ age group ’ means age group as prescribed in regulations made under section 7D;

‘ age-related tax credit ’ has the same meaning as in section 470B(4) of the Taxes Consolidation Act 1997;

‘ cumulative net financial impact ’, in relation to a registered undertaking or former registered undertaking which has furnished one or more information returns to the Authority in respect of a period, means the difference between—

(a) the total amount of the age-related tax credits recorded in accounts for that undertaking in respect of that period as extracted from accounts furnished pursuant to section 7F(1)(a) and (b) to the Authority by the undertaking in respect of that period, and

(b) the total amount of the stamp duty referred to in section 125A of the Stamp Duties Consolidation Act 1999 recorded in accounts for that undertaking in respect of that period as extracted from accounts furnished pursuant to section 7F(1)(a) and (b) to the Authority by the undertaking in respect of that period;

‘ draft report ’ has the meaning assigned to it by section 7F(7);

‘ information return ’ means an information return referred to in section 7D(1);

‘ positive ’, in relation to the cumulative net financial impact on a registered undertaking or former registered undertaking which has submitted one or more information returns to the Authority in respect of a period, means that, for that period and that undertaking, the amount specified in paragraph (a) of the definition of ‘ cumulative net fin ancial impact ’ exceeds the amount specified in paragraph (b) of that definition;

‘ relevant financial provisions ’ means—

(a) section 470B of the Taxes Consolidation Act 1997, or

(b) section 125A of the Stamp Duties Consolidation Act 1999,

or both;

‘ relevant market sector ’, in relation to information returns made to the Authority for any period of 6 months referred to in section 7D(1), means all the registered undertakings or former registered undertakings which have made those returns;

‘ relevant period ’ has the meaning assigned to it by section 7D(1)(b).

(2) Reasonable profit shall be determined under section 7F(4) in accordance with—

(a) Article 18 of the Community framework for State aid in the form of public service compensation (2005/C297/04) [^1] (the text of which is set out for convenience of reference in Schedule 2), and

(b) any factors that are prescribed as factors that may be taken into account for the purposes of so determining reasonable profit in accordance with the said Article.

Prohibition of non-community rated health insurance contracts.

7.— (1) Subject to subsection (5) and section 7A—

(a) a registered undertaking shall not make an offer to effect a health insurance contract of a particular type—

(i) unless the offer is maintained—

(I) for a period of not less than 31 consecutive days commencing on the day on which the offer is first made, and

(II) throughout that period on the same terms and conditions on which the offer is first made,

and

(ii) unless the offer is to effect that contract for a period of 12 consecutive months except that the offer may be to effect the contract for a shorter or longer period if, and only if—

(I) in all the circumstances of the case, there is good and sufficient reason for doing so, and

(II) the entering into of the contract by the undertaking does not in any way prejudice the achievement of the principal objective specified in section 1A(1),

and

(b) the net premium payable for each insured person under any health insurance contract effected by a particular registered undertaking shall be the same as that payable under every other such contract (after due allowance has been made in respect of the payment of any net premium by instalments) that—

(i) is effected by that undertaking,

(ii) is in respect of the same period as that to which the first-mentioned contract relates,

(iii) relates to the same health services as those to which the first-mentioned contract relates, and

(iv) provides for the same payments by the undertaking in respect of those services as those provided for by the first-mentioned contract.

(2) A registered undertaking shall not contravene subsection (1).

(3) Without prejudice to the generality of subsection (1), net premiums payable under health insurance contracts shall not be varied by reference to—

(a) the age, sex or sexual orientation or the suffering or prospective suffering of a person from a chronic disease, illness or other medical condition or from a disease, illness or medical condition of a particular kind,

(b) the frequency of the provision of health services to a person, or

(c) the amounts of payments or the number of different payments to which a person becomes entitled under such a contract.

(4) Subject to subsection (6), the amounts of the payments provided by a health insurance contract in respect of the health services to which it relates shall not be varied by reference to the age, sex or sexual orientation of the person to whom those services are provided.

(5) Notwithstanding subsections (1) to (3), a net premium payable under a health insurance contract effected by a registered undertaking—

(a) shall, in so far as it relates to a person under the age of 18 years, be—

(i) waived, or

(ii) reduced, such a net premium being not more than 50 per cent of the net premium in respect of a person other than the persons specified in this subsection under a health insurance contract effected by that undertaking,

and

(b) may be reduced in so far as it relates—

(i) to a person who is of or over the age of 18 years and under the age of 23 years, is receiving fulltime education and is dependent on the person with whom the contract is effected, such a net premium being not more than 50 per cent of the net premium in respect of a person other than the persons specified in this subsection under a health insurance contract effected by that undertaking,

(ii) to a person who is a member of a restricted membership undertaking and is in receipt of a pension recognised for the purposes of the undertaking, or

(iii) to a person who is a member, for the purposes of health insurance, of a group of persons, such a net premium being, if it is reduced, not less than 90 per cent of the net premium in respect of a person other than the persons specified in this subsection under a health insurance contract effected by that undertaking.

(6) Where any person named in a health insurance contract effected by a registered undertaking—

(a) is the spouse, a child or a dependent of a party to the contract, or

(b) is the spouse, a child or a dependent of another person named in the contract,

then the undertaking may aggregate or combine, as it thinks fit, claims in respect of health services, other than in-patient services, for the purposes of calculating payments, other than in-patient indemnity payments, to be made by it pursuant to the contract.”.

7. Amendment of section 7A of Act of 1994.

7.— Section 7A of the Act of 1994 is amended—

(a) by substituting the following subsection for subsection (1):

“(1) In this section, ‘ insured person ’ means any person, other than the registered undertaking, who—

(a) is party to or named in the health insurance contract concerned (other than a health insurance contract of a type referred to in section 10(3)), and

(b) is of or over the age of 30 years.”,

(b) by substituting the following subsections for subsection (2):

“(2) Notwithstanding section 7 but subject to subsection (2A), a registered undertaking may require, on account of any of the circumstances referred to in paragraph (a), (b), (c), (cc) or (d) of subsection (4), the payment under a health insurance contract of a net premium the amount of which is greater than that of the net premium (in this section referred to as the ‘unadjusted net premium’) which could have been required to be paid if this section had not been enacted.

(2A) A registered undertaking shall ensure that any requirement it has made under subsection (2) is not withdrawn and otherwise continues to have effect.”,

(c) in subsection (4)—

(i) in paragraph (c), by substituting “13 weeks” for “12 months”, and

(ii) by inserting the following paragraph after paragraph (c):

“(cc) in the period of the 13 weeks preceding the date on which the registered undertaking concerned was requested to effect the health insurance contract, a health insurance contract was in force in respect of which the insured person was a party to or named in the contract and in respect of whom any registered undertaking providing that contract could have required the payment of a net premium that was greater than the unadjusted premium,”,

(d) in subsection (5)—

(i) by substituting “net premium” for “premium”, and

(ii) by substituting “unadjusted net premium” for “unadjusted premium”,

(e) in subsection (6), in paragraph (b), by substituting “unadjusted net premium” for “unadjusted premium”, and

(f) in subsection (7), in paragraph (a), by substituting “unadjusted net premium” for “unadjusted premium”.

8. Amendment of Act of 1994.

8.— The Act of 1994 is amended by inserting the following sections after section 7A:

“Submission of new type of health insurance contract and furnishing of certain other types of health insurance contract to Authority.

7AB.— (1) Where a registered undertaking proposes, on or after the commencement of section 8 of the Health Insurance (Miscellaneous Provisions) Act 2009, to offer in the State a new type of health insurance contract (and regardless of whether the contract is already offered outside the State by the undertaking or any other person), it shall, not later than 10 working days before first making any such offer, submit a sample of the contract to the Authority.

(2) A registered undertaking shall, not later than 3 months after the commencement of section 8 of the Health Insurance (Miscellaneous Provisions) Act 2009, furnish to the Authority a sample of every type of health insurance contract that either—

(a) is on offer by it in the State on that commencement, or

(b) is no longer on offer by it in the State but in respect of which one or more than one health insurance contract of such type—

(i) has been effected by it before that commencement, and

(ii) is in force on that commencement.

(3) The reference in subsection (1) to a new type of health insurance contract includes a health insurance contract which has been altered in any material particular subsequent to the submission of a sample of the contract to the Authority pursuant to that subsection.

Register of Health Insurance Contracts.

7AC.— (1) The Authority shall, as soon as may be after the commencement of section 8 of the Health Insurance (Miscellaneous Provisions) Act 2009, establish and maintain a register to be known as The Register of Health Insurance Contracts.

(2) The Register of Health Insurance Contracts shall be in such form and shall contain such particulars relating to any type of health insurance contract on offer in the State on or after the establishment of the Register as may be specified by the Authority.

(3) The Authority shall ensure that the contents of The Register of Health Insurance Contracts are available for inspection by members of the public free of charge at the office of the Authority during normal working hours.

(4) The Authority may make the contents of The Register of Health Insurance Contracts available for inspection by members of the public free of charge on the Authority’s website.”.

9. Further amendment of Act of 1994.

9.— The Act of 1994 is amended by inserting the following sections after section 7B:

“Registered insurers shall make all reasonable efforts to obtain certain information in respect of insured persons, etc.

7C.— (1) A registered undertaking shall, in respect of each health insurance contract that provides for the making of in-patient indemnity payments and that is effected by it on or after 1 January 2009, make all reasonable efforts to obtain the relevant information in respect of each insured person.

(2) A registered undertaking may, for the purposes of obtaining, in respect of a health insurance contract referred to in subsection (1), the relevant information in respect of each insured person, request in writing the policy holder to furnish the undertaking with the relevant information in respect of each insured person not later than 30 days from the date of receipt of the request.

(3) A request under subsection (2) shall be accompanied by a copy of this section.

(4) The policy holder, the subject of a request under subsection (2), shall comply with that request.

(5) A registered undertaking which has obtained relevant information for the purposes of subsection (1) shall not make use of, or disclose, the relevant information except—

(a) for the purposes of making a claim referred to in section 470(3)(b)(ii) or 470B(6)(b)(ii) of the Taxes Consolidation Act 1997, or

(b) for the purposes of complying with section 125A of the Stamp Duties Consolidation Act 1999.

(6) In this section, ‘ relevant information ’, in relation to an insured person, means—

(a) the name of the person,

(b) the sex of the person,

(c) the date of birth of the person, and

(d) the Personal Public Service Number (within the meaning of section 262 of the Social Welfare Consolidation Act 2005) of the person.

Obligation to make information returns to Authority.