EXPLANATORY STATEMENT
NATIONAL HEALTH ACT 1953
National Health (Pharmaceutical benefits supplied under subsection 93A(4)) Amendment Determination 2012 (No. 1)
PB 90 of 2012
Authority
Regulation 37AA of the National Health (Pharmaceutical Benefits) Regulations 1960 (the Regulations), made for subsection 93A(6) of the National Health Act 1953 (the Act), provides that the Minister may determine the rate of payment and associated conditions for supply of pharmaceutical benefits under subsection 93A(4) of the Act, (i.e. for supply from a medication chart in an residential aged care facility).
The National Health (Pharmaceutical benefits supplied under subsection 93A(4)) Determination 2012 (the Principal Determination), made under regulation 37AA, determines the rate of payment and associated conditions.
Purpose
This Amendment Determination amends the Principal Determination to reflect an amendment to the Act made by the National Health Amendment (Pharmaceutical Benefits Scheme) Act 2012 which commences on 1 October 2012. A reference to subsection 85B(5) of the Act in paragraph 4(b) of the Principal Determination is being changed to a reference to subsection 85B(4) of the Act to reflect a re-ordering of the subsections of section 85B of the Act. New subsection 85B(4) is identical to the previous subsection 85B(5).
Background
Provisions in section 93A of the Act, provide the legislative basis for pharmaceutical benefits to be supplied by approved suppliers from medication charts for patients in residential aged care facilities. Regulation 37AA of the Regulations is made for subsection 93A(6) of the Act which provides for payment by the Commonwealth for supplies of this kind.
Regulation 37AA provides that an approved pharmacist or an approved medical practitioner who supplies a pharmaceutical benefit (in accordance with subsections 93A(2) and 93A(4) of the Act) to a residential aged care facility (a prescribed institution mentioned in paragraph 93A(1)(b) of the Act) is entitled to payment from the Commonwealth for the supply of the pharmaceutical benefit at the rate, and subject to the conditions, determined by the Minister, and applicable at the time of supply.
The rate of payment and the conditions determined by the Minister in the Principal Determination under regulation 37AA are that the usual rate and conditions for supply of pharmaceutical benefits by an approved pharmacist or an approved medical practitioner apply.
Consultation
The amendment made by this Determination is a technical change and no consultation was undertaken.
This Determination commences on 1 October 2012.
This Determination is a legislative instrument for the purposes of the Legislative Instruments Act 2003.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
National Health (Pharmaceutical benefits supplied under subsection 93A(4)) Amendment Determination 2012 (No. 1) (PB 90 of 2012)
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 Amendment Determination amends the National Health (Pharmaceutical benefits supplied under subsection 93A(4)) Determination 2012 (the Principal Determination) to reflect the re-ordering of subsections in a section of the National Health Act 1953 made by the National Health Amendment (Pharmaceutical Benefits Scheme) Act 2012 which commences on 1 October 2012. The reference to the subsection number is changed but the provision is unchanged.
The Principal Determination sets out the rate of payment and associated conditions for supply of a pharmaceutical benefit under subsection 93A(4) of the National Health Act 1953 (the Act), that is, for supply from a medication chart in an residential aged care facility.
Human rights implications
This legislative instrument engages Articles 2 and 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 PBS is a benefit scheme which assists with advancement of this human right by providing for subsidised access by patients to medicines.
Conclusion
This Legislative Instrument is compatible with human rights because it advances the protection of human rights.
Tanya Plibersek
Minister for Health
Overview
The National Health (Pharmaceutical benefits supplied under subsection 93A(4)) Amendment Determination 2012 (No. 1) was enacted to address the need for amendments to the Principal Determination made under regulation 37AA of the National Health (Pharmaceutical Benefits) Regulations 1960, due to changes in the National Health Act 1953 resulting from the National Health Amendment (Pharmaceutical Benefits Scheme) Act 2012. This amendment was necessitated by the re-ordering of subsections in section 85B of the National Health Act, which required a corresponding adjustment in the Principal Determination to ensure consistency with the updated legislative framework. The policy objective of this amendment is to maintain the integrity and applicability of the regulations governing the supply of pharmaceutical benefits to residential aged care facilities, thereby ensuring that the payment rates and conditions remain aligned with the statutory provisions.
The Amendment Determination was made under the authority of regulation 37AA of the National Health (Pharmaceutical Benefits) Regulations 1960 and is a legislative instrument for the purposes of the Legislative Instruments Act 2003. It reflects a technical change, with no consultation required, and it is compatible with human rights, particularly engaging Articles 2 and 12 of the International Covenant on Economic, Social and Cultural Rights by facilitating the progressive realisation of the right to the highest attainable standard of physical and mental health through the provision of subsidised access to medicines via the Pharmaceutical Benefits Scheme. This Amendment Determination commenced on 1 October 2012, ensuring that the regulatory framework continues to support the effective and timely provision of pharmaceutical benefits to patients in residential aged care facilities.
Scope and Application
The National Health (Pharmaceutical benefits supplied under subsection 93A(4)) Amendment Determination 2012 (No. 1) pertains to the amendment of the National Health (Pharmaceutical benefits supplied under subsection 93A(4)) Determination 2012 to align with the re-ordering of subsections within the National Health Act 1953, which was effected by the National Health Amendment (Pharmaceutical Benefits Scheme) Act 2012. This Amendment Determination applies to approved pharmacists and approved medical practitioners who supply pharmaceutical benefits to patients in residential aged care facilities, which are prescribed institutions under the Act. The amendment, which comes into effect on 1 October 2012, ensures that the reference to the relevant subsection in the Principal Determination is updated, although the actual provision remains unchanged. This legislative instrument is designed to maintain the integrity and applicability of the payment rates and conditions for the supply of pharmaceutical benefits within the National Health (Pharmaceutical Benefits) Regulations 1960.
Key Provisions
The National Health (Pharmaceutical benefits supplied under subsection 93A(4)) Amendment Determination 2012 (No. 1) amends the Principal Determination to update the rate of payment and associated conditions for pharmaceutical benefits supplied under subsection 93A(4) of the National Health Act 1953. The main operative sections of this Amendment Determination (sections 2 and 3) adjust the references in the Principal Determination to align with changes in the Act resulting from the National Health Amendment (Pharmaceutical Benefits Scheme) Act 2012. Specifically, it changes the reference from subsection 85B(5) to subsection 85B(4) in paragraph 4(b) of the Principal Determination to reflect a re-ordering of the subsections in section 85B of the Act. The new subsection 85B(4) is identical to the previous subsection 85B(5), ensuring the content and intent of the provision remain unchanged.
The obligations and requirements imposed by this Amendment Determination on parties involved in the supply of pharmaceutical benefits under subsection 93A(4) of the Act are primarily technical in nature. Approved pharmacists and medical practitioners who supply pharmaceutical benefits to residential aged care facilities must continue to adhere to the usual rate of payment and conditions determined by the Minister, as outlined in the updated Principal Determination. This includes ensuring that the payment rate and conditions are correctly applied at the time of supply, reflecting the amendments made by this Determination. There are no new substantive obligations introduced by this Amendment Determination; it merely updates existing references to align with legislative changes.
The Amendment Determination itself does not introduce new offences, penalties, or civil or criminal consequences for breach. Instead, it ensures that the Principal Determination remains consistent with the re-ordered subsections in the Act. Any failure to comply with the updated payment rates and conditions determined by the Minister would be addressed under existing provisions of the National Health Act 1953 and the National Health (Pharmaceutical Benefits) Regulations 1960, which may include administrative or financial penalties. The maximum penalties for breaches of these regulations would still apply, as they are not altered by this Amendment Determination.