National Health (Price and Special Patient Contribution) Amendment Determination 2014 (No. 1) (No. PB 2 of 2014)

Administered by Department of Health, Disability and Ageing

Legislation au F2014L00052 Not in force Legislative Instrument

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EXPLANATORY STATEMENT

NATIONAL HEALTH ACT 1953

NATIONAL HEALTH (PRICE AND SPECIAL PATIENT CONTRIBUTION)
AMENDMENT DETERMINATION 2014 (No. 1)

PB 2 of 2014

 

Purpose

This Amendment Determination amends Schedule 1 to the Principal Determination to reflect the changes made by the National Health (Listing of Pharmaceutical Benefits) Amendment Instrument 2014 (No. 1), commencing on 1 February 2014.  The entry for alprazolam is removed following the deletion of the brand Xanax of that drug in each of the forms: tablet 250 micrograms; tablet 500 micrograms; and tablet 1 mg; and the deletion of the brand Xanax Tri-Score in the form tablet 2 mg.

Variation and revocation

Unless there is an express power to revoke or vary PB 109 of 2010 cited in this Instrument and explanatory statement, subsection 33(3) of the Acts Interpretation Act 1901 is relied upon to revoke or vary PB 109 of 2010.

Authority

This legislative instrument, made under section 85B of the National Health Act 1953 (the Act) amends the National Health (Price and Special Patient Contribution) Determination 2010 (PB 109 of 2010) (the Principal Determination).

Subsections 85B(2), (3) and (4) of the National Health Act 1953 (the Act) provide for the Minister to determine, respectively, determined prices, claimed prices and the circumstances in which the Commonwealth will pay a special patient contribution.  The National Health (Price and Special Patient Contribution) Determination 2010 (the Principal Determination) contains determinations of these matters.

The Act provides for the Minister and the responsible person to agree a price that is taken to be the appropriate maximum price of a brand of a pharmaceutical item for the purposes of Part VII of the Act (section 85AD).  Section 85B of the Act applies if the Minister and the responsible person have been unable to reach an agreement on a price for the pricing quantity.  Whether or not an agreement is made for the pricing quantity, section 85B also applies if the responsible person is dissatisfied with the proportional ex-manufacturer prices that will apply to other pack quantities.   

Subsection 85B(2) provides that the Minister may determine, by reference to the pricing quantity of a brand of a pharmaceutical item, an amount that is taken to be the appropriate maximum price of the brand for the purposes of Part VII of the Act.  This is termed the ‘Determined Price’ in this Determination.

Subsection 85B(3) provides that the Minister may determine, by reference to a pack quantity of a brand of the pharmaceutical item, an amount that is taken to be the price claimed by the responsible person for the pack quantity of the brand, for the purposes of Part VII of the Act.  This is termed the ‘Claimed Price’ in this Determination.

The Determined Price is the approved ex-manufacturer price and is used as the basis for working out the Commonwealth price for the brand of the pharmaceutical item (section 98B of the Act); for pack quantities other than the pricing quantity, the proportional ex-manufacturer price is used as the basis.  Approved pharmacists are entitled to payment from the Commonwealth equal to the Commonwealth price less the applicable patient co-payment (section 99 of the Act).

The difference between the responsible person’s Commonwealth price for a pack quantity (ie, the price that would be the Commonwealth price if the responsible person’s claimed price had become the approved ex-manufacturer price or the proportional ex-manufacturer price for that pack quantity) and the Commonwealth price for the pack quantity is defined in subsection 85B(5) of the Act as the special patient contribution.  An approved pharmacist may charge a patient an amount equal to the special patient contribution, in addition to any other amount that may be charged (subsection 87(2A) of the Act).

Subsection 85B(4) of the Act provides that the Minister may determine the circumstances in which the Commonwealth is to pay the special patient contribution for a brand.  In such cases, the Commonwealth payment to the pharmacist is increased by the amount of the special patient contribution (subsection 99(2AA) of the Act) and the pharmacist may not charge the patient this amount (subsection 87(2A) of the Act). 

The purpose of making subsection 85B(4) determinations is to enable patients for whom the base-priced brands (the ones without a special patient contribution) are not suitable, to obtain the higher priced brand (the one with the special patient contribution) without the need to pay the higher price.  In such cases the Commonwealth pays the special patient contribution.

Consultation

This determination affects certain responsible persons with medicines listed on the PBS.  Before a pharmaceutical benefit is listed on the PBS, and from time to time thereafter, price negotiations occur between the responsible person and the Minister for the purpose of reaching a price agreement for section 85AD of the Act.  If the Minister and the responsible person cannot agree on a price, further consultation occurs with the responsible person, and thereafter the Minister determines the price that will be the approved ex-manufacturer price for the brand.  The Minister also determines the corresponding price claimed by the responsible person which is used to calculate the special patient contribution that will apply to the brand. 

This  Determination commences on 1 February 2014.

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 (Price and Special Patient Contribution) Amendment Determination 2014 (No. 1) (PB 2 of 2014)

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, made under section 85B of the National Health Act 1953 (the Act), amends the National Health (Price and Special Patient Contribution) Determination 2010 (the Principal Determination), which provides for price determinations in relation to brands of pharmaceutical items listed on the Pharmaceutical Benefits Scheme for which the Minister and the responsible person have not been able to make a price agreement.  It also provides for the circumstances in which the Commonwealth will pay the special patient contribution resulting from these price determinations. This instrument (the Amending Determination) amends the Principal Determination by removing one listed drug from Schedule 1.

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. The recommendatory role of the Pharmaceutical Benefits Advisory Committee (PBAC) ensures that decisions about subsidised access to medicines on the PBS are evidence-based.

Conclusion

This Legislative Instrument is compatible with human rights because it advances the protection of human rights.

 

Felicity McNeill

First Assistant Secretary
Pharmaceutical Benefits Division
Department of Health

Overview

The National Health (Price and Special Patient Contribution) Amendment Determination 2014 (No. 1) amends the National Health (Price and Special Patient Contribution) Determination 2010 to adjust the prices of pharmaceutical items listed on the Pharmaceutical Benefits Scheme (PBS) where agreements between the Minister for Health and responsible pharmaceutical entities could not be reached. Enacted under section 85B of the National Health Act 1953 by the Australian Parliament, the objective of this Amendment Determination is to ensure the appropriate maximum pricing of pharmaceuticals while providing mechanisms for special patient contributions where necessary. This amendment specifically removes the entry for alprazolam, affecting the brand Xanax in various dosages, from Schedule 1, aligning with the changes made by the National Health (Listing of Pharmaceutical Benefits) Amendment Instrument 2014 (No. 1) that took effect on 1 February 2014. This legislative instrument aims to facilitate the progressive realisation of the right to the highest attainable standard of physical and mental health by ensuring that access to necessary medications remains affordable and evidence-based.

Scope and Application

The National Health (Price and Special Patient Contribution) Amendment Determination 2014 (No. 1) amends the National Health (Price and Special Patient Contribution) Determination 2010 under section 85B of the National Health Act 1953. This Act applies to the Minister of Health and the responsible persons for pharmaceutical items listed on the Pharmaceutical Benefits Scheme (PBS), primarily targeting pharmaceutical companies and entities involved in the supply of medications covered under the PBS. The determination affects the pricing of pharmaceutical brands and the circumstances in which the Commonwealth will pay a special patient contribution. The Amendment Determination removes the brand Xanax of alprazolam and Xanax Tri-Score from the list of pharmaceutical items, reflecting changes made by the National Health (Listing of Pharmaceutical Benefits) Amendment Instrument 2014 (No. 1). The Amendment Determination applies nationally across Australia and comes into effect on 1 February 2014. It does not introduce new exclusions or exemptions beyond those already specified in the Principal Determination. Any further variations or revocations of the Principal Determination are subject to the provisions of the Acts Interpretation Act 1901, unless explicitly stated otherwise.

Key Provisions

The National Health (Price and Special Patient Contribution) Amendment Determination 2014 (No. 1) amends Schedule 1 of the National Health (Price and Special Patient Contribution) Determination 2010 (PB 109 of 2010) to reflect the changes made by the National Health (Listing of Pharmaceutical Benefits) Amendment Instrument 2014 (No. 1). Specifically, this Amendment Determination removes the entry for alprazolam from Schedule 1, following the deletion of the brand Xanax in the forms: tablet 250 micrograms; tablet 500 micrograms; and tablet 1 mg; and the deletion of the brand Xanax Tri-Score in the form tablet 2 mg (sections 2 and 3). This Amendment Determination is made under section 85B of the National Health Act 1953 (the Act) and relies on subsection 33(3) of the Acts Interpretation Act 1901 for its revocation or variation, unless there is an express power cited in the instrument (section 4). The Amendment Determination commences on 1 February 2014. The Amendment Determination imposes obligations on parties and entities governed by the Act, particularly those involved in price negotiations for pharmaceutical items listed on the Pharmaceutical Benefits Scheme (PBS). When the Minister and the responsible person cannot agree on a price for a brand of a pharmaceutical item, section 85B(2) of the Act allows the Minister to determine the appropriate maximum price (Determined Price). If the responsible person is dissatisfied with the proportional ex-manufacturer prices for other pack quantities, section 85B(3) also applies. The Determined Price serves as the basis for the Commonwealth price, while the proportional ex-manufacturer price is used for other pack quantities (section 85B(5)). An approved pharmacist can charge a patient an amount equal to the special patient contribution, which is the difference between the responsible person’s Commonwealth price and the Commonwealth price for the pack quantity (subsection 87(2A) of the Act). If the Commonwealth decides to pay the special patient contribution, the pharmacist cannot charge the patient this amount (subsection 87(2A) of the Act). The Amendment Determination sets out penalties and consequences for non-compliance with the provisions of the Act and the Determination. However, the Amendment Determination itself does not explicitly state any offences, penalties, or civil/criminal consequences for breach. The penalties and consequences for non-compliance are typically outlined in the National Health Act 1953 or other related legislation. The consequences for failing to comply with the Act or the Determination could include financial penalties, legal action, or other administrative measures as provided under the relevant legislation. The exact penalties would depend on the specific nature of the breach and the provisions of the applicable laws.

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