National Health Amendment (Pharmaceutical Benefits) Act 2017

Administered by Department of Health, Disability and Ageing

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National Health Amendment (Pharmaceutical Benefits) Act 2017

 

No. 16, 2017

 

 

 

 

 

An Act to amend the National Health Act 1953, and for related purposes

 

 

Contents

1 Short title

2 Commencement

3 Schedules

Schedule 1—Amendments

Part 1—Use of computer programs

National Health Act 1953

Part 2—Temporary supply of pharmaceutical benefits at alternative premises

National Health Act 1953

Part 3—Effect of death on status as concessional beneficiary or dependant

National Health Act 1953

Part 4—Repeals of spent provisions

National Health Act 1953

 

 

 

 

National Health Amendment (Pharmaceutical Benefits) Act 2017

No. 16, 2017

 

 

 

An Act to amend the National Health Act 1953, and for related purposes

[Assented to 28 March 2017]

The Parliament of Australia enacts:

1  Short title

  This Act is the National Health Amendment (Pharmaceutical Benefits) Act 2017.

2  Commencement

 (1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

 

Commencement information

Column 1

Column 2

Column 3

Provisions

Commencement

Date/Details

1.  The whole of this Act

The day after this Act receives the Royal Assent.

29 March 2017

Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.

 (2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.

3  Schedules

  Legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

Schedule 1—Amendments

Part 1—Use of computer programs

National Health Act 1953

1  After section 101A

Insert:

101B  Use of computer programs to take administrative action

Computer programs for administrative action by Minister

 (1) The Minister may arrange for the use, under the Secretary’s control, of computer programs for any purposes for which the Minister may or must take administrative action under this Part or a legislative instrument made for the purposes of this Part.

Computer programs for administrative action by Secretary

 (2) The Secretary may arrange for the use, under the Secretary’s control, of computer programs for any purposes for which the Secretary may or must take administrative action under this Part or a legislative instrument made for the purposes of this Part.

Computer programs for administrative action by Chief Executive Medicare

 (3) The Chief Executive Medicare may arrange for the use, under the Chief Executive Medicare’s control, of computer programs for any purposes for which the Chief Executive Medicare may or must take administrative action under this Part or a legislative instrument made for the purposes of this Part.

Responsible person for arrangement taken to have taken administrative action

 (4) For the purposes of this Part or a legislative instrument made for the purposes of this Part, if administrative action is taken by the operation of a computer program under an arrangement under subsection (1), (2) or (3), the responsible person for the arrangement is taken to have taken the administrative action.

Substituted decisions

 (5) The responsible person may, under a provision of this Part or a legislative instrument made for the purposes of this Part, make a decision in substitution for a decision he or she is taken to have made under subsection (4), if the responsible person is satisfied that the decision made by the operation of the computer program is incorrect.

Note: For review of a decision made in substitution, see Part VIIA.

Definitions

 (6) In this section:

administrative action: each of the following constitutes taking administrative action for the purposes of this section:

 (a) making a decision;

 (b) exercising any power or complying with any obligation;

 (c) doing anything else related to making a decision or exercising a power or complying with an obligation.

responsible person means:

 (a) for an arrangement under subsection (1)—the Minister; or

 (b) for an arrangement under subsection (2)—the Secretary; or

 (c) for an arrangement under subsection (3)—the Chief Executive Medicare.

Part 2—Temporary supply of pharmaceutical benefits at alternative premises

National Health Act 1953

2  Paragraph 84C(4)(a) (note)

Repeal the note.

3  Paragraph 89(a) (note)

Repeal the note.

4  After section 91

Insert:

91A  Application to supply pharmaceutical benefits at alternative premises because of disaster or exceptional circumstances

 (1) The Secretary may, on application by a pharmacist who is approved under section 90 in respect of particular premises (the affected premises), grant the approved pharmacist permission to supply pharmaceutical benefits at other premises (the alternative premises) if the Secretary is satisfied that:

 (a) because of a disaster or exceptional circumstances relating to the affected premises:

 (i) the approved pharmacist is unable to supply pharmaceutical benefits at the affected premises; or

 (ii) the affected premises are not accessible by members of the public for the purpose of receiving pharmaceutical benefits; and

 (b) the alternative premises are in substantially the same locality as the affected premises.

Note: The Minister may determine matters for the purposes of the Secretary making decisions under this subsection: see subsection (11).

 (2) The Secretary must refuse to grant the permission if the Secretary is satisfied that:

 (a) the approved pharmacist is unable to supply pharmaceutical benefits at the alternative premises; or

 (b) the alternative premises are not accessible by members of the public for the purpose of receiving pharmaceutical benefits at times that, in the opinion of the Secretary, are reasonable.

Application requirements

 (3) The application must:

 (a) be in writing and in a form approved by the Secretary (if any); and

 (b) unless the Secretary otherwise allows, be made:

 (i) as soon as reasonably practicable after the condition in paragraph (1)(a) is first met in relation to the affected premises; and

 (ii) before the end of the period of 14 days beginning on the day the approved pharmacist starts supplying pharmaceutical benefits at or from the alternative premises; and

 (c) be accompanied by documentary evidence, of a kind determined under paragraph (11)(e) (if any), demonstrating that:

 (i) paragraphs (1)(a) and (b) are satisfied for the application; and

 (ii) paragraphs (2)(a) and (b) are not satisfied for the application.

Secretary may require further information or documents

 (4) For the purposes of considering the application, the Secretary may, by written notice given to the approved pharmacist, require the approved pharmacist to give the Secretary specified information, or produce to the Secretary specified documents, within a specified period.

 (5) If the approved pharmacist does not give the information or produce the documents within the specified period, the Secretary may treat the application as having been withdrawn.

Notifying approved pharmacist of decision on application

 (6) The Secretary must give the approved pharmacist written notice of the Secretary’s decision on the application.

Effect of permission

 (7) If the Secretary grants the approved pharmacist permission to supply pharmaceutical benefits at the alternative premises:

 (a) the approved pharmacist is to be treated for all purposes of this Act (except section 92 and subsection 98(4)) as if the approved pharmacist were, during the temporary supply period, approved under section 90 as an approved pharmacist in relation to the alternative premises; and

 (b) references in this Act to an approval granted under section 90 include references to an approval treated as having been granted under section 90 by paragraph (a) of this subsection; and

 (c) the conditions to which an approval granted under section 90 is subject (including any condition that is imposed by means of the Minister’s determination for the purposes of paragraph 92A(1)(f)) also apply to an approval that is treated as having been granted under section 90 by paragraph (a) of this subsection; and

 (d) in addition to supplying pharmaceutical benefits at the alternative premises during the temporary supply period, the approved pharmacist may also supply pharmaceutical benefits from the alternative premises during that period.

Note: For paragraph (a), section 92 and subsection 98(4) deal with the approval of medical practitioners to supply pharmaceutical benefits if there is no convenient and efficient pharmaceutical service being supplied by an approved pharmacist in an area.

Meaning of temporary supply period

 (8) For the purposes of subsection (7), the temporary supply period begins immediately before the approved pharmacist first starts to supply pharmaceutical benefits at or from the alternative premises and ends at the earliest of the following times:

 (a) the end of the following period beginning on the day after the condition in paragraph (1)(a) is first met in relation to the affected premises:

 (i) 6 months (unless subparagraph (ii) or (iii) applies);

 (ii) a shorter period specified in the notice of the Secretary’s decision granting the permission;

 (iii) if the Secretary, by written notice given to the approved pharmacist before the end of the period that would otherwise apply under subparagraph (i) or (ii) or this subparagraph, extends that period by a further specified period—that period as so extended;

 (b) when the approved pharmacist supplies pharmaceutical benefits, after the beginning of the temporary supply period, at or from:

 (i) the affected premises; or

 (ii) premises (other than the alternative premises or premises for which the pharmacist is approved under section 90) that the Secretary is satisfied are in substantially the same locality as the affected premises;

 (c) when an approval is granted to the approved pharmacist under section 90 in respect of the alternative premises;

 (d) when the approved pharmacist’s approval for the affected premises is cancelled under section 98;

 (e) when the permission is revoked under subsection (9) of this section.

Revoking permission

 (9) The Secretary may, by written notice given to the approved pharmacist, revoke the permission if the Secretary is satisfied that:

 (a) both:

 (i) the approved pharmacist is able to supply pharmaceutical benefits at the affected premises; and

 (ii) the affected premises are accessible by members of the public for the purpose of receiving pharmaceutical benefits; or

 (b) the approved pharmacist is unable to supply pharmaceutical benefits at the alternative premises; or

 (c) the alternative premises are not accessible by members of the public for the purpose of receiving pharmaceutical benefits at times that, in the opinion of the Secretary, are reasonable; or

 (d) it is in the public interest to do so.

Effect of certain State and Territory laws

 (10) Nothing in this section authorises the Secretary to grant a permission under subsection (1) to an approved pharmacist to supply pharmaceutical benefits at premises at which the approved pharmacist is not permitted, under the law of the State or Territory in which the premises are situated, to carry on business.

Minister may determine certain matters for purposes of this section

 (11) The Minister may, by legislative instrument, determine any or all of the following:

 (a) matters to which the Secretary may, must or must not have regard for the purposes of making a decision for the purposes of this section;

 (b) events that are taken to be, or not to be, disasters for the purposes of paragraph (1)(a);

 (c) circumstances that are taken to be, or not to be, exceptional circumstances for the purposes of paragraph (1)(a);

 (d) circumstances in which premises are taken to be, or not to be, in substantially the same locality as other premises for the purposes of paragraph (1)(b) or subparagraph (8)(b)(ii);

 (e) kinds of documentary evidence for the purposes of paragraph (3)(c).

5  Subsections 99(3A) and (3B)

Repeal the subsections.

6  After subsection 105AB(7AA)

Insert:

 (7AB) An application may be made to the Tribunal for review of a decision of the Secretary:

 (a) under subsection 91A(1) refusing an application under section 91A; or

 (b) under subsection 91A(5) treating an application under section 91A as having been withdrawn; or

 (c) under subsection 91A(9) revoking a permission granted under section 91A.

7  Application of amendments and savings provisions

Application of new law

(1) The Secretary may, on application by an approved pharmacist, grant the pharmacist a permission in accordance with section 91A of the new law if the Secretary is satisfied that the condition mentioned in paragraph (1)(a) of that section was first met in relation to the affected premises:

 (a) on or after the commencement of this item; or

 (b) during the period of 6 months before that commencement.

(2) For the purposes of an application to which paragraph (1)(b) of this item applies, subsection 91A(3) of the new law applies as if:

 (a) paragraph (b) of that subsection were omitted; and

 (b) the application were instead required to be made before the end of the period of 14 days starting at the commencement of this item, unless the Secretary otherwise allows.

Continued operation of old law for a limited period

(3) Subsections 99(3A) and (3B) of the old law continue to apply in relation to the supply of a pharmaceutical benefit (the relevant supply) by an approved pharmacist at or from premises (the unapproved premises) in respect of which the approved pharmacist is not, at the time of the relevant supply, approved under section 90 of the old law or the new law if:

 (a) the approved pharmacist supplied pharmaceutical benefits at or from the unapproved premises before the commencement of this item; and

 (b) the relevant supply occurs before the end of the period of 6 months starting at that commencement; and

 (c) before the end of that 6‑month period, the approved pharmacist obtains approval under section 90 of the new law to supply pharmaceutical benefits at the unapproved premises; and

 (d) the relevant supply does not occur during the temporary supply period for a permission granted under section 91A of the new law for the approved pharmacist to supply pharmaceutical benefits at the unapproved premises.

Definitions

(4) In this item:

new law means the National Health Act 1953, as amended by this Part.

old law means the National Health Act 1953, as in force immediately before the commencement of this Part.

Part 3—Effect of death on status as concessional beneficiary or dependant

National Health Act 1953

8  Subsection 84(1) (at the end of the definition of concessional beneficiary)

Add:

Note: See also subsection (3C) (effect of a person’s death on status as a concessional beneficiary).

9  Subsection 84(1) (at the end of the definition of dependant)

Add:

Note: See also subsection (7A) (effect of a person’s death on status as a dependant of a concessional beneficiary).

10  After subsection 84(3B)

Insert:

 (3C) If a person would have been a concessional beneficiary at a particular time on a day except that the person died on that day then, despite that death, the person is taken still to be a concessional beneficiary at that time (whether that time is before or after the time of death).

11  After subsection 84(7)

Insert:

 (7A) If a person (the relevant person) would have been a dependant of a concessional beneficiary at a particular time on a day except that:

 (a) the relevant person died on that day; or

 (b) the concessional beneficiary died on that day;

then, despite that death, the relevant person is taken still to be a dependant of a concessional beneficiary at that time (whether that time is before or after the time of death).

12  Application of amendments

The amendments made by this Part apply at and after the commencement of this item in relation to a person who dies on or after 1 April 2015.

Part 4—Repeals of spent provisions

National Health Act 1953

13  Section 104B

Repeal the section.

 

 

 

 

[Minister’s second reading speech made in—

House of Representatives on 24 November 2016

Senate on 21 March 2017]

 

(185/16)

 

Overview

The National Health Amendment (Pharmaceutical Benefits) Act 2017 is an Act of the Parliament of Australia, assented to on 28 March 2017, designed to amend the National Health Act 1953. This Act aims to address issues related to the administration of pharmaceutical benefits, particularly focusing on the use of computer programs for administrative actions, the temporary supply of pharmaceutical benefits in exceptional circumstances, and the effect of a person's death on their status as a concessional beneficiary or dependant. By introducing these amendments, the Act seeks to improve the efficiency and flexibility of the administration of pharmaceutical benefits under the National Health Act, ensuring that essential services can be maintained even in challenging circumstances while providing clarity on the eligibility of beneficiaries in the event of death. The Act also includes provisions for the repeal of certain spent provisions to streamline the legislation and ensure it remains current and relevant. The changes introduced by this Act commenced on the day after Royal Assent, which was 29 March 2017.

Scope and Application

The National Health Amendment (Pharmaceutical Benefits) Act 2017 amends the National Health Act 1953 to introduce several changes regarding the administration and supply of pharmaceutical benefits under the Pharmaceutical Benefits Scheme (PBS). This Act applies to the Minister for Health, the Secretary of the Department of Health, and the Chief Executive of Medicare, who are responsible for the administration of the PBS, as well as to approved pharmacists who supply pharmaceutical benefits under the scheme. The geographic reach of the Act is national, applying across Australia. The Act does not specify exclusions or exemptions, but it does provide for the revocation of permissions granted under the amended provisions if certain conditions are met. The Act allows for further detail and clarification to be provided through legislative instruments made by the Minister, which can include matters such as the definition of disasters or exceptional circumstances, and the types of documentary evidence required for applications. The Act commenced on 29 March 2017, the day after receiving Royal Assent, with specific provisions within the Act commencing on various dates as outlined in the commencement table.

Key Provisions

The National Health Amendment (Pharmaceutical Benefits) Act 2017 amends the National Health Act 1953 by introducing several key provisions. Firstly, it allows the Minister, Secretary, and Chief Executive Medicare to use computer programs to take administrative actions, such as making decisions or exercising powers, for specified purposes under the Act or related legislative instruments (Section 101B). The responsible person for the arrangement is deemed to have taken the administrative action if it is made by a computer program, but they can also substitute their own decision if they believe the computer-generated decision is incorrect (Section 101B(4) and (5)). The Act also provides for pharmacists to apply for temporary permission to supply pharmaceutical benefits at alternative premises due to disasters or exceptional circumstances (Section 91A). The Secretary may grant such permission if certain conditions are met, such as the affected premises being inaccessible or the alternative premises being in the same locality (Section 91A(1)). The pharmacist must submit a written application with documentary evidence, and the Secretary has the authority to require additional information or documents (Sections 91A(3) and (4)). The temporary supply period can last up to six months, extendable by the Secretary, and ends under various circumstances, such as the pharmacist resuming operations at the original premises or their approval being revoked (Section 91A(8)). The Act imposes specific obligations and requirements on the parties it governs. The Minister, Secretary, and Chief Executive Medicare must ensure that any administrative action taken via computer programs is within the scope of their respective authorities and adheres to the provisions of the Act (Section 101B). Pharmacists applying for temporary permission to supply pharmaceutical benefits at alternative premises must submit a written application with the necessary documentary evidence within the specified timeframe (Section 91A(3)). They must also ensure that the alternative premises meet the accessibility requirements for the public (Section 91A(2)). The Secretary must evaluate the application and provide written notice of their decision, which can be reviewed by the Tribunal if the pharmacist is dissatisfied (Sections 91A(6) and (10)). Violations of the provisions in the National Health Amendment (Pharmaceutical Benefits) Act 2017 may result in various civil and criminal consequences. While the Act does not explicitly state penalties for breaches, it is subject to the general provisions of the National Health Act 1953, which may include fines and other penalties for non-compliance with administrative actions or pharmaceutical supply regulations. The severity of penalties would depend on the specific nature and impact of the breach, with potential maximum penalties outlined in the broader legislative framework governing health and pharmaceutical regulations in Australia.

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