National Health (Transitional Arrangements for Opioid Dependence Treatment Medicines) Amendment (Extension) Special Arrangement 2023

Administered by Department of Health, Disability and Ageing

Legislation au F2023L01549 Not in force Legislative Instrument

Legislation content

EXPLANATORY STATEMENT

 

National Health Act 1953

National Health (Transitional Arrangements for Opioid Dependence Treatment Medicines) Amendment (Extension) Special Arrangement 2023

PB 124 of 2023

 

Purpose and operation

The National Health (Transitional Arrangements for Opioid Dependence Treatment Medicines) Amendment (Extension) Special Arrangement 2023 (Extension Instrument) amends the National Health (Transitional Arrangements for Opioid Dependence Treatment Medicines) Special Arrangement 2023 (Instrument) to extend the period of operation of the Instrument so that responsible persons (pharmaceutical companies) of opioid dependence treatment (ODT) medicines can continue to supply certain dosing sites directly, and for the Commonwealth to continue paying responsible persons for ODT medicines supplied on or before 1 July 2024. 

 

The Extension Instrument is intended to support dosing sites to transition patients to usual Pharmaceutical Benefits Scheme (PBS) arrangements for the supply of ODT medicines under the National Health (Highly Specialised Drugs Program) Special Arrangement 2021 (HSD Special Arrangement).

Although responsible persons will not be entitled to Commonwealth payment for supplies of ODT made to authorised suppliers on or after 1 July 2024, the Extension Instrument extends the date of repeal of the Instrument to 1 October 2024. This will allow responsible persons time to submit their final claims for supplies made before 1 July 2024. It will also ensure there is sufficient time for any requests for internal merits review made under section 24 of the Instrument to be finalised before the Instrument is repealed.

After 1 July 2024, existing patients will have transitioned to PBS Approved Suppliers, or other arrangements as determined by their respective jurisdictions.

State and territory governments will continue to operate ODT programs in their respective jurisdictions. The operation of state and territory ODT programs will continue to be governed by the respective policies, guidelines, and regulations within each of those jurisdictions. 

The Instrument remains time-limited, and only applies to supplies of ODT medicines made by responsible persons until the end of June 2024.

 

Background

On 1 July 2023, the Instrument implemented arrangements to temporarily provide for responsible persons (pharmaceutical companies) of ODT medicines to continue to supply certain non-PBS dosing sites directly, and for responsible persons to claim payment directly from the Commonwealth for those supplies until 30 November 2023. Responsible persons submit claims for payment to the Department of Health and Aged Care and are paid the approved ex-manufacturer price of ODT medicines supplied to authorised suppliers.

The Instrument did not displace the individual ODT programs operated by state and territory governments in their respective jurisdictions.

Under the arrangements in the Instrument, patients do not make a PBS contribution for the cost of the medicine (PBS co-payment), as authorised suppliers are not able to submit claims for payment through Services Australia in the same way as approved suppliers do for other PBS medicines and are supplied ODT medicines for free. The amount that contributes to a patient’s PBS Safety Net is zero because there is no requirement to make a PBS co-payment. It is understood that some dosing sites may continue to charge patients dispensing or dosing fees for the supply of their ODT medicines during this transition period until patients can be transitioned to receiving their supplies under the Section 100 HSD Program and pay the PBS co-payment.

The amendments made under the Extension Instrument do not alter the arrangements provided for under the Instrument.

Authority

Subsection 100(1) of the National Health Act 1953 (Act) enables the Minister to make special arrangements for, or in relation to, providing that an adequate supply of pharmaceutical benefits will be available to certain persons:

  • living in isolated areas or who are receiving treatment in circumstances in which pharmaceutical benefits are inadequate for that treatment;
  • where the pharmaceutical benefits covered by the arrangements can be more conveniently or efficiently supplied under the arrangements.

 

Subsection 100(2) of the Act provides that the Minister may vary or revoke an arrangement made under subsection 100(1) of the Act.

 

Commencement

The Extension Instrument will commence on 1 December 2023.

 

Consultation

The Extension Instrument extends the period of operation of the Instrument in response to ongoing stakeholder concerns regarding continuity of care for patients receiving treatment at non-PBS dosing sites and requests from states and territories for a transition period, until all supply of ODT medicines under the PBS can occur under the National Health (Highly Specialised Drugs Program) Special Arrangement 2021. While no formal process of public consultation was undertaken, the Extension Instrument was made in response to ongoing engagement with states and territories on the progress of transitioning supply of ODT medicines to the Highly Specialised Drugs Program. Most states and territories are supportive of the extension.

 

Regulatory Impact

The Office of Impact Analysis was consulted, and it advised that an Impact Analysis was not required to be prepared in relation to the Extension Instrument (OIA ref: OIA23-06024).

 

General

This Extension Instrument is a legislative instrument for the purposes of the Legislative Instruments Act 2003.

 

Details of this Extension Instrument are set out in Attachment A.

 

This Extension Instrument is compatible with the human rights and freedoms recognised or declared under section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. A full statement of compatibility is set out in Attachment B.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

ATTACHMENT A

 

Details of the National Health (Transitional Arrangements for Opioid Dependence Treatment Medicines) Amendment (Extension) Special Arrangement 2023

 

 

Section 1 – Name

 

Section 1 provides that the name of the instrument is the National Health (Transitional Arrangements for Opioid Dependence Treatment Medicines) Amendment (Extension) Special Arrangement 2023.

 

The instrument can also be cited as PB 124 of 2023.

 

Section 2 – Commencement

 

Section 2 provides that the instrument commences on 1 December 2023.

 

Section 3 – Authority

 

Section 3 provides that the instrument is made under subsection 100(2) of the National Health Act 1953.

 

Section 4 – Schedules

 

Section 4 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, and any other item in a Schedule to this instrument has effect according to its terms. Schedule 1 amends the National Health (Transitional Arrangements for Opioid Dependence Treatment Medicines) Special Arrangement 2023.

 

Schedule 1Amendments

 

Item 1 – Section 3

This item amends section 3 of the National Health (Transitional Arrangements for Opioid Dependence Treatment Medicines) Special Arrangement 2023 (Instrument) to extend the date of its repeal from the start of 1 March 2024 to the start of 1 October 2024.

 

The extension of the date of repeal allows time for responsible persons to submit their final claims for supplies made before 1 July 2024.  

 

Item 2 – Section 5

This item amends the simplified outline in section 5 to reflect that a responsible person can now claim payment from the Commonwealth for supplies made under the Instrument until the end of 30 June 2024, rather than the end of 30 November 2023.

 

Items 3 and 4 – Paragraphs 7(1)(a) and 7(2)(a)

Section 7 of the Instrument defines a ‘special arrangement supply’ of an ODT medicine and currently requires that supplies are made to eligible patients on or after 1 July 2023 and before 1 December 2023.  Items 3 and 4 amend section 7 to ensure a special arrangement supply includes supplies made on or after 1 July 2023 and before 1 July 2024. This is applicable for both supplies made on prescriptions written on or after 1 July 2023 (see subsection 7(1)) and pre-commencement prescriptions written before 1 July 2023 (see subsection 7(2)).

 

Item 5 – Subsection 17(1)

Section 17 sets out arrangements for a responsible person to receive payment from the Commonwealth for the supply of an ODT medicine to an authorised supplier. Section 17 currently only applies where the responsible person for a listed brand of ODT medicine supplies the benefit to an authorised supplier on or after 1 July 2023 and before 1 December 2023. Item 5 amends subsection 17(1) to enable payment for supplies made on or after 1 July 2023 and before 1 July 2024.  

 


ATTACHMENT B

 

Statement of Compatibility with Human Rights

 

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

National Health (Transitional Arrangements for Opioid Dependence Treatment Medicines) Amendment (Extension) Special Arrangement 2023

PB 124 of 2023

The National Health (Transitional Arrangements for Opioid Dependence Treatment Medicines) Amendment (Extension) Special Arrangement 2023 (Extension 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 Disallowable Legislative Instrument

The Extension Instrument amends the National Health (Transitional Arrangements for Opioid Dependence Treatment Medicines) Special Arrangement 2023 to:

  • Extend the end date for ‘special arrangement supplies’ of Opioid Dependence Treatment (ODT) medicines for the treatment of Opioid Dependence to private clinics and non-Pharmaceutical Benefits Scheme (PBS) approved pharmacies from supplies made before 1 December 2023 to supplies made before 1 July 2024.
  • Provide that the Commonwealth will pay responsible persons (drug companies) for supplying ODT medicines to authorised suppliers (entities which are not PBS approved suppliers and which are approved by their relevant state or territory for the purposes of supply of ODT medicines under the Instrument) for supplies made before 1 July 2024, extended from 1 December 2023.
  • Extend the date on which the Instrument will self-repeal from 1 March 2024 to 1 October 2024.

This extension to the period of operation of the Instrument is to ensure patients can be safely transitioned over to PBS approved community or hospital pharmacies for their supplies of ODT medicines.

This complements a recommendation made by the Pharmaceutical Benefits Advisory Committee (PBAC) out-of-session in March 2023 to include ODT medicines in the National Health (Highly Specialised Drugs Program) Special Arrangement 2021, which was implemented on 1 July 2023. This change to supply under the Highly Specialised Drugs Program is intended to address the core issues of patient affordability and equitable access to ODT medicines through the PBS, such that access to PBS subsidised ODT medicines aligns with usual PBS arrangements including the PBS co-payment and safety net arrangements.

Human rights implications

The Instrument engages Articles 9 and 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), specifically the rights to social security and health.
 

 

The Right to Social Security

The right to social security is contained in Article 9 of the ICESCR. It requires that a country must, within its maximum available resources, ensure access to a social security scheme that provides a minimum essential level of benefits to all individuals and families that will enable them to acquire at least essential health care. Countries are obliged to demonstrate that every effort has been made to use all resources that are at their disposal in an effort to satisfy, as a matter of priority, this minimum obligation. The UN Committee on Economic Social and Cultural Rights reports that there is a strong presumption that retrogressive measures taken in relation to the right to social security are prohibited under ICESCR. In this context, a retrogressive measure would be one taken without adequate justification that had the effect of reducing existing levels of social security benefits, or of denying benefits to persons or groups previously entitled to them. However, it is legitimate for a Government to re-direct its limited resources in ways that it considers to be more effective at meeting the general health needs of all society, particularly the needs of the more disadvantaged members of society.

The Right to Health

The right to the enjoyment of the highest attainable standard of physical and mental health is contained in Article 12(1) of the ICESCR. The Committee has stated that the right to health is not a right for each individual to be healthy but is a right to a system of health protection which provides equality of opportunity for people to enjoy the highest attainable level of health. The Committee reports that the ‘highest attainable standard of health’ takes into account the country’s available resources. This right may be understood as a right of access to a variety of public health and health care facilities, goods, services, programs, and conditions necessary for the realisation of the highest attainable standard of health.

The extension of these transitional arrangements will have a positive effect on the rights to health and social security because they will ensure patients can still access Commonwealth subsidised ODT medicines from their current non-PBS dosing sites while the states and territory governments transition patients to a PBS approved supplier where the patient will pay the PBS co-payment. In the absence of this Extension Instrument, affected patients may have been required to pay the full private cost of their ODT medicines.

 

The PBS is a benefit scheme which assists with the advancement of these human rights by providing for subsidised access by patients to medicines. The recommendatory role of the PBAC ensures that decisions about subsidised access to medicines on the PBS are evidence-based.

Conclusion

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

 

David Laffan

Assistant Secretary

Pharmacy Branch

Technology Assessment and Access Division

Department of Health and Aged Care

 

Overview

The National Health (Transitional Arrangements for Opioid Dependence Treatment Medicines) Amendment (Extension) Special Arrangement 2023 extends the transitional arrangements for the supply of Opioid Dependence Treatment (ODT) medicines, which were initially introduced under the National Health (Transitional Arrangements for Opioid Dependence Treatment Medicines) Special Arrangement 2023. Enacted by the Parliament of Australia, the legislation aims to address the gap in the continuity of care for patients receiving ODT at non-PBS dosing sites. It ensures that pharmaceutical companies can continue to supply certain dosing sites directly and that the Commonwealth can continue to pay for ODT medicines supplied on or before 1 July 2024. The policy objective is to facilitate a smooth transition of patients to PBS approved suppliers, thereby ensuring equitable access to ODT medicines through the Pharmaceutical Benefits Scheme (PBS) while maintaining affordable access for patients. This special arrangement, as authorised under the National Health Act 1953, was introduced in response to ongoing stakeholder concerns and state and territory requests for a transition period. The extension supports the transition of patients to PBS approved suppliers and ensures that they can access ODT medicines through the PBS with the PBS co-payment. The arrangement also aligns with the recommendation of the Pharmaceutical Benefits Advisory Committee to include ODT medicines in the National Health (Highly Specialised Drugs Program) Special Arrangement 2021, thereby addressing issues of affordability and access.

Scope and Application

The National Health (Transitional Arrangements for Opioid Dependence Treatment Medicines) Amendment (Extension) Special Arrangement 2023 applies to responsible persons, specifically pharmaceutical companies, that supply opioid dependence treatment (ODT) medicines. The Act extends the transitional arrangements for these medicines to ensure continuity of care for patients receiving treatment at non-Pharmaceutical Benefits Scheme (PBS) dosing sites and supports the transition to usual PBS arrangements. This extension is intended to facilitate the transition of patients to PBS approved suppliers, ensuring they can continue to access ODT medicines under the PBS with the associated co-payment and safety net arrangements. The geographic and jurisdictional reach of the Act is national, as it concerns the supply of medicines under the PBS across Australia. The Act does not displace the individual ODT programs operated by state and territory governments in their respective jurisdictions. The extension applies to supplies of ODT medicines made by responsible persons until the end of June 2024. The Act allows for the extension of the date of repeal of the transitional arrangements to 1 October 2024, which provides responsible persons with additional time to submit their final claims for supplies made before 1 July 2024. The Act also allows for the completion of any internal merits review requests made under section 24 of the Instrument before the Instrument is repealed. The Act is compatible with the human rights and freedoms recognised or declared under section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. The extension of these transitional arrangements will have a positive effect on the rights to health and social security by ensuring patients can still access Commonwealth subsidised ODT medicines from their current non-PBS dosing sites while the states and territory governments transition patients to a PBS approved supplier. The PBS is a benefit scheme which assists with the advancement of these human rights by providing for subsidised access by patients to medicines. The recommendatory role of the Pharmaceutical Benefits Advisory Committee ensures that decisions about subsidised access to medicines on the PBS are evidence-based.

Key Provisions

The National Health (Transitional Arrangements for Opioid Dependence Treatment Medicines) Amendment (Extension) Special Arrangement 2023 extends the period of operation of the National Health (Transitional Arrangements for Opioid Dependence Treatment Medicines) Special Arrangement 2023, primarily affecting pharmaceutical companies responsible for opioid dependence treatment (ODT) medicines. Section 2 of the Amendment mandates that the instrument will commence on 1 December 2023. The main operative sections of the Amendment include changes to the date of repeal (Section 3), the timeframe for making claims for payment (Section 5), the definition of 'special arrangement supply' (Section 7), and the arrangements for Commonwealth payments (Section 17). These provisions ensure that responsible persons can continue to supply ODT medicines directly to certain dosing sites and claim payment from the Commonwealth until 1 July 2024, rather than until 30 November 2023 as initially stipulated. The Amendment imposes specific obligations on pharmaceutical companies, requiring them to continue supplying ODT medicines to authorised suppliers until 1 July 2024 and to submit claims for payment for these supplies. The Commonwealth, in turn, is obligated to pay these pharmaceutical companies for the ODT medicines supplied under the transitional arrangements until this date. Furthermore, the Amendment requires the responsible persons to facilitate the transition of patients to PBS-approved suppliers, ensuring continuity of care during this period. The Amendment also extends the self-repeal date of the Instrument to 1 October 2024, allowing time for final claims and internal merits review requests to be processed. Failure to comply with the provisions of the Amendment could result in legal consequences for the pharmaceutical companies, particularly if they fail to supply ODT medicines or submit payment claims within the specified timeframes. The Commonwealth may also face challenges in ensuring that funds are appropriately allocated for these supplies. While the Amendment does not explicitly outline criminal or civil penalties for non-compliance, the overarching National Health Act 1953 provides for penalties where relevant, including fines and potential revocation of licenses or approvals. The precise penalties would depend on the specific nature of the breach and the applicable provisions of the primary Act.

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