Health Legislation (Pharmaceutical Benefits) Amendment Act 1991 (Cth)
Health Legislation (Pharmaceutical Benefits) Amendment Act 1991
An Act to amend the Health Insurance Commission Act 1973 and the National Health Act 1953 in relation to the supply of pharmaceutical benefits
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The Parliament of Australia enacts:
(3) The following provisions commence on 1 July 1991:
(a) section 5, paragraph 7 (c) and sections 8 and 9;
(b) subsections 8d (1) and (3) inserted in the
Health Insurance Commission Act 1973 by section 4 of this Act.
(a) paragraphs 7 (b) and (d), sections 13 and 14, paragraphs 15 (a), (b), (d), (e), (f), (g) and (h) and sections 16 and 17;
(b) subsection 8d (2) inserted in the
Health Insurance Commission Act 1973 by section 4 of this Act.
If the provisions referred to in subsection (4) do not commence under that subsection within the period of 6 months beginning on the day on which this Act receives the Royal Assent, they commence on the first day after the end of that period.
Paragraph 7(a), subsections 10 (2) and (3), sections 11 and 12 and paragraphs 15 (c) and (i) come into effect on:
(a) 1 July 1992; or
(b) the day after guidelines issued under section 135aa of the
National Health Act 1953 have been approved in the same form by both Houses of Parliament; or
(c) the day after a joint inquiry of the Department of Finance and the Auditor-General has reported to both Houses of Parliament that the estimated savings contained in the financial impact statement in the explanatory memorandum to theHealth Legislation (Pharmaceutical Benefits) Amendment Bill 1991 are realistic estimates and that equivalent savings could not be obtained through the use of alternative eligibility checking systems which are no more intrusive than the eligibility checking proposal contained in theHealth Legislation (Pharmaceutical Benefits) Amendment Act 1991 ;whichever is the later.
PART 2 —AMENDMENTS OF THE HEALTH INSURANCE COMMISSION ACT 1973
In this Part,
After section 8c of the Principal Act the following section is inserted:
“8d. (1) In this section:
(a) in relation to a person to whom or in respect of whom there is payable a pension, allowance or other benefit under the
Social Security Act 1991 —the Secretary of the Department administering that Act; or(b) in relation to a person to whom or in respect of whom there is payable a pension, allowance or other benefit under the
Veterans’ Entitlements Act 1986 —the Secretary of the Department administering that Act;
(a) the name, date of birth, sex and current residential address of the person; and
(b) the kind of pension, allowance or other benefit that is payable to or in respect of the person; and
(c) the date on which the pension, allowance or other benefit becomes payable; and
(d) where the date on which the pension, allowance or other benefit will cease to be payable is known to the relevant authority—that date; and
(e) the name, date of birth, sex and current residential address of any dependant of the person; and
(f) the identification number allocated by the relevant authority to the person or any dependant of the person;
“(2) The functions of the Commission include providing, on request, dedicated computer-facilities to approved suppliers.
“(3) The functions of the Commission also include:
(a) ensuring that the Commission’s computer system is appropriately programmed to supply status information to persons accessing the system through dedicated computer facilities and to no other persons;
(b) for the purpose of carrying out the function referred to in paragraph (a), obtaining from the relevant authority the requisite information about each person:
(i) to whom or in respect of whom there is payable a pension, allowance or other benefit under the
Social Security Act 1991 or theVeterans’ Entitlements Act 1986 ; and
(ii) who is, because he or she is entitled to that pension, allowance or benefit, a concessional beneficiary (within the meaning of Part VII of the
National Health Act 1953 ) or a pensioner for the purposes of that Act;
and revising and keeping up to date, as necessary, all such information.”.
7. Section 84 of the Principal Act is amended:
(a) by inserting in the definition of “general benefit prescription” in subsection (1) the following paragraph:“(a) a no-benefit prescription; or”;
(b) by omitting from subsection (1) the definitions of “alternative payment election” and “pharmaceutical benefit payment rules”;
(c) by inserting in subsection (1) the following definitions:
“
‘Commonwealth price’ means:
(a) in relation to a pharmaceutical benefit supplied by an approved pharmacist—the Commonwealth price worked out in accordance with a determination in force under subsection 98b (1); or
(b) in relation to a pharmaceutical benefit supplied by an approved medical practitioner—the Commonwealth price worked out in accordance with a determination in force under subsection 98c (1); or
(c) in relation to a pharmaceutical benefit supplied by an approved hospital authority to a patient receiving treatment in or at a hospital in respect of which the authority is approved—the amount of the payment to which the authority is entitled under subsection 99 (4) in respect of the supply of the benefit;
‘dedicated computer facilities’ , in respect of an approved supplier, means facilities provided by the Commission to the approved supplier and through which:
(a) direct access may be gained to the Commission’s computer system; and
(b) status information may be obtained in respect of any person;
‘no-benefit prescription’ means a prescription in respect of a person who, at the time when the prescription is used to obtain the supply of a pharmaceutical benefit:
(a) is not an eligible person; or
(b) is unable to establish that he or she is an eligible person;
‘status information’ , in relation to a person, means any of the following information about the person:
(a) the information that the person is entitled to receive pharmaceutical benefits without paying any charge;
(b) the information that the person is entitled to receive pharmaceutical benefits on payment of a specified amount, being the amount of the charge payable by:
(i) the holder of a concession card; or
(ii) a concessional beneficiary or a dependant of a concessional beneficiary; or
(iii) an eligible person other than a person referred to in subparagraph (i) or (ii);
(c) the information that there is not any data in the Commission’s database indicating:
(i) that the person is entitled to receive pharmaceutical benefits without paying any charge; or
(ii) that the person is entitled to receive pharmaceutical benefits on payment of a charge referred to in paragraph (b);”;
(d) by omitting subsection (4).
(2) Section 87 of the Principal Act is amended:
(a) by adding at the end of subsection (2) the following word and paragraph:“; or (f) upon a no-benefit prescription—charge the person to whom the pharmaceutical benefit is supplied the amount agreed upon between that person and the approved pharmacist or approved medical practitioner”;
(b) by inserting in subsection (2a) “other than paragraph (2) (f)” after “subsection (2)”.
(3) Section 87 of the Principal Act is amended:
(a) by adding at the end of each of paragraphs (3a) (ba) and (c) “or”;
(b) by inserting after paragraph (3a) (e) the following word and paragraph:
“; or (f) an eligible person other than a person referred to in paragraph (ba), (c), (d) or (e);”;
(c) by adding at the end of each of paragraphs (3b) (ba) and (c) or ;
(d) by inserting after paragraph (3b) (e) the following word and paragraph:“; or (f) an eligible person other than a person referred to in paragraph (ba), (c), (d) or (e);”.
“87aa. (1) For the purposes of subsection 87 (3a), an approved supplier may, by using dedicated computer facilities, obtain status information about a person requesting the supply of a pharmaceutical benefit from the approved supplier.
“(2) Any status information obtained under subsection (1) about a person requesting the supply of a pharmaceutical benefit is, for the purposes of subsection 87 (3a), conclusive evidence establishing whether or not the person is, at the time when the benefit is supplied, entitled to receive the benefit on terms that are appropriate for the supply of the benefit to:
(a) the holder of a concession card; or
(b) the holder of an entitlement card; or
(c) a concessional beneficiary; or
(d) a dependant of a concessional beneficiary; or
(e) an eligible person other than a person referred to in paragraph (a), (b), (c) or (d);
as the case may be.”.
“87a. If:
(a) an approved supplier did not supply a pharmaceutical benefit to a person on terms that are appropriate for the supply of a benefit to:
(i) the holder of a concession card or entitlement card; or
(ii) a concessional beneficiary; or
(iii) a dependant of a concessional beneficiary; or
(iv) an eligible person other than a person referred to in subparagraph (i), (ii) or (iii);
because the supplier was not satisfied that the person was entitled to receive the benefit on those terms; and
(b) the Secretary is satisfied that the person was entitled at the time to receive the benefit on those terms;
the person is entitled to be paid by the Commonwealth an amount equal to the difference between:
(c) the amount that he or she paid; and
(d) the amount payable for the supply of the benefit on those terms.”.
13. Section 99 of the Principal Act is amended:
(a) by omitting subsections (1) and (1a);
(b) by inserting in subsection (2) “to section 99aaa and” after “subject”;
(c) by inserting in paragraph (2) (b) “(if any)” after “the amount”.
“99aaa. (1) In this section:
“(2) An approved supplier who wants to receive payment from the Commonwealth in relation to the supply of a pharmaceutical benefit must make a claim for payment to the Secretary in accordance with the rules made by the Minister under paragraph (8) (a).
“(3) An approved supplier who makes, or proposes to make, a claim for payment in relation to the supply of a pharmaceutical benefit must give to the Secretary, in relation to the supply of that benefit, the information specified in the rules made by the Minister under paragraph (8) (b).
“(4) Except as provided by section 99aab, an approved supplier must use the Claims Transmission System to give information to the Secretary in relation to the supply of pharmaceutical benefits.
“(5) If an approved supplier does not use the Claims Transmission System to provide information to the Secretary in relation to the supply of pharmaceutical benefits, the approved supplier must use the manual system to provide that information to the Secretary.
“(6) The Secretary must process and determine claims made under subsection (2), and make any payments relating to those claims, in accordance with the rules made by the Minister under paragraph (8) (e).
“(7) Where the Secretary decides not to approve a claim made by an approved supplier under subsection (2), the Secretary must, in writing, inform the approved supplier of the decision and give reasons for the decision.
“(8) The Minister must, by instrument in writing, make:
(a) rules defining the procedures to be followed by approved suppliers in making claims for payment in relation to the supply of pharmaceutical benefits; and
(b) rules specifying the information to be given to the Secretary by approved suppliers in relation to the supply by them of pharmaceutical benefits; and
(c) rules defining the procedures to be followed by approved suppliers in providing information by electronic means to the Secretary in relation to the supply by them of pharmaceutical benefits; and
(d) rules defining the procedures to be followed by approved suppliers in providing information otherwise than by electronic means to the Secretary in relation to the supply by them of pharmaceutical benefits; and
(e) rules defining the procedures to be followed by the Secretary in:
(i) processing and determining claims by approved suppliers for payment relating to the supply of pharmaceutical benefits; and
(ii) making the payments.
“(9) An instrument made by the Minister under subsection (8) is a disallowable instrument for the purposes of section 46a of the
“(10) In making rules for the purposes of paragraph (8) (a), the Minister may define different procedures:
(a) for the making of claims for payment supported by information provided by electronic means; and
(b) for the making of claims for payment supported by information provided otherwise than by electronic means.
“99aab. (1) An approved supplier specified in subsection (2) is not required to comply with subsection 99aaa (4) but the approved supplier may do so if the approved supplier so wishes.
“(2) For the purposes of subsection (1), the following approved suppliers are specified:
(a) an approved medical practitioner;
(b) an approved pharmacist who:
(i) proposes under an amalgamation agreement to cease supplying pharmaceutical benefits from premises in respect of which the pharmacist is approved; and
(ii) has, before the commencement of this section, made an application for financial assistance under subsection 99zc (1) together with the other parties to the amalgamation agreement; and
(iii) is supplying pharmaceutical benefits from those premises:
(a) pending a decision on the application; or
(b) if a decision has been made to grant financial assistance—in accordance with the conditions subject to which the grant has been made;
(c) an approved pharmacist who:
(i) proposes, otherwise than under an amalgamation agreement, to cease supplying pharmaceutical benefits from premises in respect of which the pharmacist is approved; and
(ii) has, before the commencement of this section, made an application for financial assistance under subsection 99zd (1); and
(iii) is supplying pharmaceutical benefits from those premises:
(a) pending a decision on the application; or
(b) if a decision has been made to grant financial assistance—in accordance with the conditions subject to which the grant has been made;
(d) an approved pharmacist who, in accordance with relevant arrangements made by the Minister under subsection 100 (1), is supplying pharmaceutical benefits to persons living in an isolated area;
(e) an approved supplier in respect of whom a declaration under section 99aac is in force.
“(3) In subsection (2):
“99aac. (1) The Secretary may, subject to the guidelines determined by the Minister under subsection (2), declare in writing that an approved supplier is exempted from the operation of subsection 99aaa (4).
“(2) The Minister must determine, in writing, guidelines in accordance with which the Secretary is to exercise his or her functions under subsection (1).
“(3) A determination under subsection (2) is a disallowable instrument for the purposes of section 46a of the
“(4) Where the Secretary decides:
(a) not to make a declaration under subsection (1) in respect of an approved supplier; or
(b) to revoke such a declaration;
the Secretary must, in writing, inform the approved supplier of the decision and give reasons for the decision.”.
15. Section 99aa of the Principal Act is amended:
(a) by omitting subparagraphs (1) (c) (i) and (ii) and substituting the following subparagraph:“(i) a holder of a concession card; or”;
(b) by adding at the end of subparagraph (1) (c) (iii) “or”;
(c) by inserting after subparagraph (1) (c) (v) the following word and subparagraph:
“; or (vi) an eligible person other than a person referred to in subparagraph (i), (iii), (iv) or (v);”;
(d) by omitting subsection (1a);
(e) by omitting from paragraph (2) (b) “(not being an amount paid under section 99aab)”;
(f) by omitting subsection (2a);
(g) by omitting from paragraph (3) (a) “, (2) (a), (b) and (c) or (2a)” and substituting “or (2)”;
(h) by omitting from paragraph (3) (b) “, (2) or (2a)” and substituting “or (2)”;
(i) by inserting after subsection (3) the following subsections:“(3a) If:
(a) the Commonwealth is liable under section 87a to pay an amount to an eligible person in relation to the supply by an approved supplier of a pharmaceutical benefit to the eligible person; and
(b) the amount (in this subsection called the
‘purchase price’ ) paid by the eligible person to the approved supplier in respect of the supply of the pharmaceutical benefit is higher than the Commonwealth price of the pharmaceutical benefit;the Secretary may, by notice in writing to the approved supplier require the supplier to pay to the Commonwealth an amount equal to the difference between the purchase price, and the Commonwealth price, of the pharmaceutical benefit.
“(3b) The Commonwealth may, by action in a court of competent jurisdiction, recover any amount specified in a notice given to an approved supplier under subsection (3a) as a debt due to the Commonwealth by the supplier.”.
“(12) An application may be made to the Tribunal for the review of a decision of the Secretary under subsection 99aaa (6) not to approve a claim for payment made under subsection 99aaa (2).
“(13) An application may be made to the Tribunal for the review of a decision of the Secretary under subsection 99aac (4).”.
“(g) a determination under paragraph 98c (1) (b).”.
“135aa. (1) The Privacy Commissioner must, by notice in writing, issue guidelines for the conduct of the Medicare and Pharmaceutical Benefits Programs.
“(2) Guidelines under subsection (1) must be issued before 1 April 1992. Thereafter, the Privacy Commissioner may, from time to time, issue further guidelines to replace or vary any existing guidelines.
“(3) The Privacy Commissioner must report to the Parliament any failure to issue guidelines in accordance with subsection (2) within 15 sitting days of 1 April 1992.
“(4) Any guidelines issued under this section are disallowable instruments for the purposes of section 46a of the
“(5) Section 46a of the
(aa) section 48 applies as if paragraph 48 (1) (b) were omitted and the following paragraph substituted:
(i) the first day on which the guidelines are no longer liable to be disallowed; or
(ii) if the guidelines make provision for their commencement after that day—in accordance with that provision.
“(6) Any guidelines issued under this section shall include an outline of the procedures that must be followed to ensure:
(a) the security of information transferred between the Commission and pharmacists or medical practitioners for the purpose of checking individuals’ eligibility for the Pharmaceutical Benefits Program;
(b) the separation of information relating to claims upon the Pharmaceutical Benefits Program from information relating to claims upon the Medicare Benefits Program;
(c) that all information relating to claims upon the Pharmaceutical Benefits or Medicare Benefits Programs is de-identified within five years of its receipt by the Commission, unless such information relates to a current action that is pending in relation to an individual;
(d) that the Commission uses the most up-to-date, available information when checking the eligibility of concessionary beneficiaries to the Pharmaceutical Benefits Program.
“(7) Before issuing guidelines under this section, the Privacy Commissioner shall take all reasonable steps to consult with all relevant organisations, including the Commission and representatives of the pharmacy and medical professions.
“(8) In this section,
“135ab. (1) A breach of the guidelines issued under section 135aa constitutes an act or practice involving interference with the privacy of an individual for the purposes of section 13 of the
“(2) An individual may complain to the Privacy Commissioner about an act or practice in relation to the operation of guidelines issued under section 135aa of this Act which may be an interference with the privacy of an individual.
“(3) In the event of a complaint being made by an individual, it shall be dealt with in accordance with the provisions of Part V of the
1. No. 41, 1974, as amended. For previous amendments, see Nos. 61, 91 and 100, 1976; Nos. 36 and 134, 1978; No. 53, 1979; Nos. 54 and 115, 1983; No. 63, 1984; Nos. 65 and 167, 1985; No. 75, 1986; and Nos. 75 and 99, 1988.
2. Nos. 95, 1953, as amended. For previous amendments, see No. 68, 1955; Nos. 55 and 95, 1956; No. 92, 1957; No. 68, 1958; No. 72, 1959; No. 16, 1961; No. 82, 1962; No. 77, 1963; No. 37, 1964; Nos. 100 and 146, 1965; No. 44, 1966; Nos. 14 and 100, 1967; No. 100, 1968; No. 102, 1969; No. 41, 1970; No. 85, 1971; No. 114, 1972; Nos. 49 and 202, 1973; No. 37, 1974; Nos. 1, 13 and 93, 1975; Nos. 1, 60, 91, 99, 108, 157 and 177, 1976; Nos. 98 and 100, 1977; Nos. 36, 88, 132 and 189, 1978; Nos. 54, 91 and 122, 1979; Nos. 117 and 131, 1980; Nos. 40, 74, 92, 118, 163 and 176, 1981; Nos. 49, 80 and 112, 1982; Nos. 35, 54 and 139, 1983; Nos. 46, 63, 72, 120, 135 and 165, 1984; Nos. 24, 53, 65, 70, 95, 127 and 167, 1985; Nos. 28, 75, 94 and 115, 1986; Nos. 22, 44, 72, 118, 131 and 132, 1987; Nos. 79, 87, 99 and 155, 1988; No. 95, 1989; Nos. 3, 106 and 141, 1990; and No. 6, 1991.
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House of Representatives on 31 May 1991 a.m.
Senate on 6 June 1991
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