EXPLANATORY STATEMENT
National Health Act 1953
National Health (Concession or entitlement card fee) Amendment Determination 2020
PB 133 of 2020
Authority
This instrument is made under subsection 84HA(1) of the National Health Act 1953 (the Act), which provides that an approved pharmacist, approved medical practitioner or approved hospital authority who issues a safety net concession card, a pharmaceutical benefits entitlement card, or an additional or replacement card in relation to any of these cards, is entitled to be paid by the Commonwealth, in respect of the issue of the card. For the purpose of section 84HA, the fee to be paid for the issue or replacement of cards, is determined by the Minister for Health. Subsection 84HA(2) of the Act provides that a determination under subsection 84HA(1) can only be made where the Pharmacy Guild of Australia (the Guild) has agreed in writing to the making of that determination. The Guild has agreed in writing to the making of this instrument.
Reliance on subsection 33(3) of the Acts Interpretation Act 1901
Under subsection 33(3) of the Acts Interpretation Act 1901, where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws), the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.
Purpose
This instrument amends the National Health (Concession or entitlement card fee) Amendment Determination 2012 (PB 102 of 2011) (the Principal Determination) to index the fee for issue of a safety net concession card or pharmaceutical benefits entitlement card (or an additional or replacement concession card or entitlement card).
The Principal Determination commenced on 1 January 2012 and reflects annual adjustments to the safety net concession or entitlement card issue fee. This fee is indexed on 1 January of each year by the ratio of the Consumer Price Index (CPI) for the September quarter for the current year and the CPI for the September quarter for the previous calendar year.
This instrument increases the fee from $10.27 to $10.34. This increase takes effect on 1 January 2021.
Background
Part VII of the Act regulates the Pharmaceutical Benefits Scheme (PBS), which provides for the supply of listed drugs and medicinal preparations as pharmaceutical benefits. The PBS allows the Commonwealth to subsidise medicines to make them more affordable for the benefit of all Australians. Eligible veterans are also entitled to access the Repatriation Pharmaceutical Benefits Scheme (RPBS), in accordance with the Veterans’ Entitlements Act 1986. The RPBS allows access to all pharmaceutical items available to the general community under the PBS and also an additional list contained in the RPBS.
Subsection 84HA(1) of the Act provides that an approved pharmacist, an approved medical practitioner or an approved hospital authority that issues a safety net concession card or pharmaceutical benefits entitlement card (or an additional or replacement concession card or entitlement card) is entitled to be paid a fee determined by the Minister. Subsection 84HA(2) of the Act provides that the Minister must not determine a fee unless the Guild has agreed in writing to the determination. The Guild provided written agreement to the fee increase in December 2020.
The Principal Determination, made under subsection 84HA(1) of the Act, determines the amount payable for the issuing of each safety net concession card, each pharmaceutical benefits entitlement card, and each additional or replacement card in relation to any of these cards.
Division 1A of Part VII of the Act provides for a safety net scheme in relation to pharmaceutical benefits and repatriation pharmaceutical benefits. The safety net scheme is designed to provide financial protection for those patients and their families who require a large number of PBS or RPBS medicines.
At a patient’s request, a pharmacist records the supply of PBS and RPBS medicines to that patient and the cost of the supply. When a patient reaches a certain spending level on PBS or RPBS medicines (the safety net threshold), that patient may be eligible for a safety net concession card or a pharmaceutical benefits entitlement card in respect of a relevant entitlement period. The issuing of such a card to a patient enables that patient to receive PBS or RPBS medicines at a reduced rate or free of charge for the remainder of the relevant entitlement period. The relevant entitlement period for the safety net scheme is a calendar year, that is, from 1 January to 31 December.
Details
A provision-by-provision description of the instrument is contained in Attachment A.
Consultation
The Guild has been consulted on this matter as required under subsection 84HA(2) of the Act, and has agreed in writing, to the amendment made by this Determination.
The Office of Best Practice Regulation has been consulted on the change being made by this determination and has confirmed that it is exempt from the requirement for a Regulatory Impact Statement.
This Determination will commence on 1 January 2021.
This Determination is a legislative instrument for the purpose of the Legislation Act 2003.
Attachment A
Details of the National Health (Concession or entitlement card fee) Amendment Determination 2020
Section 1 - Name of Instrument
This section provides that this instrument is the National Health (Concession or entitlement card fee) Amendment Determination 2020, and that it may also be cited as PB 133 of 2020.
Section 2 - Commencement
This section provides that this instrument commences on 1 January 2021.
Section 3 - Authority
This section provides that this instrument is made under section 84HA of the National Health Act 1953.
Section 4 - Schedule
This section provides that each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned. It also provides that any other item in a Schedule to this instrument has effect according to its terms.
Schedule 1 - Amendments
National Health (Concession or entitlement card fee) Determination 2012 (PB 102 of 2011)
Item 1: Section 3
This item repeals and replaces section 3 of the Principal Determination. This amendment has been made to increase the fee for issuing cards from $10.27 to $10.34. This increase has been calculated with regards to the increase in Consumer Price Index (CPI) for the September quarter for the current calendar year compared to CPI for the September quarter for the previous calendar year and takes effect from 1 January 2021.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
National Health (Concession or entitlement card fee) Amendment Determination 2020
PB 133 of 2020
This legislative instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the legislative instrument
This legislative instrument amends the National Health (Concession or entitlement card fee) Determination 2012 (PB 102 of 2011) to increase the fee payable to an approved pharmacist, an approved medical practitioner or an approved hospital authority for issuing a safety net concession card or pharmaceutical benefits entitlement card (or an additional or replacement concession card or entitlement card) from $10.27 to $10.34. The increase will take effect from 1 January 2021.
Human rights implications
This legislative instrument engages Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) by assisting with the progressive realisation by all appropriate means of the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.
The Pharmaceutical Benefits Scheme (PBS) and Repatriation Pharmaceutical Benefits Scheme (RPBS) are benefit schemes which assist with advancement of this human right by providing for subsidised access of medicines to patients. Efficient operational arrangements for the PBS and RPBS support effective administration of these schemes.
This legislative instrument supports the right to attainment of the highest standard of physical and mental health, by assisting approved pharmacies, approved medical practitioners or approved hospital authorities to issue safety net concession card or pharmaceutical benefits entitlement card to eligible persons, who in turn can receive subsidised pharmaceutical items and medicines at a reduced rate or free of charge for the relevant entitlement period.
The amendment made by this legislative instrument does not change the protection of human rights to health for all Australians in relation to implementation of the PBS or RPBS.
Conclusion
This legislative instrument is compatible with human rights because it continues to promote the right to health.
Mariana Crank
Acting Assistant Secretary
Pharmacy Branch
Technology Assessment and Access Division
Department of Health