MINORITY REPORTY BY
COALITION SENATORS
HEALTH INSURANCE
AMENDMENT (COMPLIANCE) BILL 2009
1.1
Coalition
Senators support an enhanced and expanded audit process to protect the
integrity of the Medicare system and minimise inappropriate or inaccurate
Medicare claims. We agree with the need to protect the interests of tax-payers
and ensure that public funds be expended appropriately.
1.2
Getting
the balance right between the privacy of the patient and ensuring that public
funds are appropriated properly should be the paramount consideration in this
Inquiry.
1.3
Coalition
Senators believe that the Government has not achieved that balance in the Exposure
Draft of the Health Insurance Amendment (compliance) Bill 2009 released on
9 April 2009 by the Department of Health and Ageing and we do not agree with
the Majority Report by the Chair of the Community Affairs Committee, Senator
Claire Moore.
1.4
In
addition, Senators and submitters were forced to rely upon the exposure draft
only without the benefit of access to the full legislation and regulations
underpinning it.
1.5
The
primacy of the principle of doctor/patient confidentially has always been an
important part of our health system. Coalition Senators believe that any
attempt to weaken this principle should be only as a last resort and subject to
strict mandatory protocols. We do not support the provisions contained in the
exposure draft legislation that would provide the CEO of Medicare or his/her
delegate with the authority to access patient records.
1.6
Coalition
Senators agree with evidence provided to the Committee that significant savings
could be achieved if some of the expenditure was invested in educational and
training measures. This could provide the desired savings and deliver value for
the taxpayer without compromising patient record confidentiality.
1.7
We
believe that any proposed reforms to compliance auditing of Medicare benefits
should include a training or educational component targeted at health
professionals to assist them in achieving greater accuracy in their billing
processes, thus reducing inadvertent or unintended claim errors.
PRIVACY
2.1
A
considerable number of witnesses and submissions to the Inquiry raised the
issue of patient records being reviewed by Medicare Australia investigators
during the proposed Medicare Audit process. Patient records contain the
personal medical history of an individual and under the current system, they
remain strictly confidential between the patient and their medical
practitioner. The information contained in these records is often extremely
sensitive and the comprehensiveness and accuracy of this information is usually
critical to the provision of the highest levels of care. If patients believe
that a third person may have access to their confidential medical records
without their permission, there is a real risk that they may not provide all
the relevant information to their medical practitioner.
2.2 In their submission to the committee
the Australasian Society for HIV Medicine (NSW)
stated:
I have worked in
general practice for 20 years. In the early days, we kept clinical notes with
special codes to hide sensitive information like sexuality from prying eyes.
These kinds of special codes impeded the flow of necessary and proper flow of
information between professions. Let us not return to those days, just when
electronic records are starting to bridge the gap between different sectors of
the health workforce.[1]
2.3
The
implications of disclosure of private patient information in the area of mental
health should also not be underestimated. As mentioned in the Majority Report,
the Royal Australian and New Zealand College of Psychiatrists warned the
Committee about the “serious consequences for the psychiatrically impaired”
from a breach of confidentiality and that any breach could have “extremely
traumatising and potentially devastating.”[2]
2.4
In
that context, Coalition Senators believe that patient clinical records should
only be accessed by a third party as a last resort and under strictly enforced
mandatory protocols.
2.5
The Government claims
that there is a need to review patient records to confirm that a patient was
eligible for a specific Medicare scheduled item. The Department of Health and
Ageing stated that:
We
are not looking at making professional judgements or clinical judgements; this
is about administrative requirements for claiming payments.[3]
2.6
Paragraph
1.40 of the Majority Report raises the issue of the qualifications of Medicare
audit staff to review patient records. In particular, it notes questions of adequate
staff qualifications to interpret clinical records when conducting compliance
audits.
2.7
In
reviewing patient records to ascertain if a particular Medicare scheduled item
was appropriate, Medicare administrative investigators will be required to make
professional or clinical judgements that they are unqualified to make about the
clinical necessity for that service or procedure.
2.8
Under
the Government's proposed, Medicare administrative investigators must have
"reasonable concern" that a fee for a medical service exceeds the
amount that should have been paid before requesting access to patient records.
2.9
A
number of submitters were concerned at the lack of definition of
"reasonable concern and the exact type of information considered to
substantiate access to the private data of patients. The Medical Indemnity
Association of Australia stated that "the exercise of coercive powers in such
a vague and unspecified manner is unfair to the recipient of the notice."[4]
Similarly, the Australian Medical Association felt that, "we are
sacrificing the threshold issue of the privacy of the patient record, " if
an administrator's reasonable concern were all that was required.[5]
2.10
Coalition
Senators are concerned about the access to the private records of Patients
through such means. There are already a number of administrative avenues that
can be pursued to ascertain if a particular service or procedure was claimed
and performed without the need to access personal clinical records.
These include:
- Provider’s
certification or other legal declaration that the patient was eligible for the
service rendered.
- Tests
- Medicare Australia could ask for evidence that the test was done;
- Referrals
- Medicare Australia could ask to see the referral;
- Time
spent with a patient, or the service performed at a particular time – Medicare
Australia could ask for evidence that those time requirements had been met;[6]
-
Pre-existing
condition – Medicare Australia could ask for evidence that the pre-existing
condition existed.[7]
PROFESSIONAL
SERVICES REVIEW BOARD
3.1
Where
serious concerns are raised concerning a medical provider’s practices, there
are already proven avenues that can be pursued to investigate the conduct. In
the event that the CEO of Medicare is not satisfied with the evidence provided
by a medical professional under investigation and believes that reviewing a
patient’s records may be required then this matter should be referred to the Professional
Services Review Board (PSR) for investigation.
3.2
The
PSR is comprised of relevant medical professionals appointed by the Minister
for Health and Ageing who are qualified to interpret clinical records and make recommendations
about the conduct of medical practitioners to the CEO of Medicare Australia.
3.3 Coalition Senators believe that
existing processes already provide for sufficient access to confidential
patient records by third parties in limited circumstances. Any further
expansion of access to these records in order to prosecute serious fraudulent
Medicare claiming activity must be subject to strict mandatory protocols to
protect the privacy of the individual.
INCORRECT BILLING
4.1
The
government has increased the number of annual Medicare Audits from 500 to
2500. Coalition Senators support this increase as it recognises the increase
in Medicare provider numbers issued to health professionals and the associated
increase in Medicare claims.
4.2
Evidence
was provided to the committee that errors and incorrect Medicare claims were
responsible for a significant proportion of inappropriate claims rather than
deliberate fraud. The committee heard suggestions from a number of witnesses as
to how the savings desired by government could be realised without invasive
audits or compromising patient records.
4.3
Dr
Flegg from the Royal Australian College of General Practitioners stated:
I think confusion by
the schedule is another important point to make. The MBS is complex and
amazingly confusing. Medicare itself gives conflicting advice at times about
how to bill properly. Even excellent doctors with really good intentions can
make mistakes. The college thinks that the MBS needs revision with a view to
simplification and that that money would be better spent on an activity such as
that, plus education. We believe the end result would be the same.[8]
4.4
Dr
Flegg asserted that if the money proposed by the government on the audit
process were redirected to initiatives such as education, training and
simplification of the MBS then significant savings to the tax-payer could be
realised.
We feel that
incorrect claiming or mistakes in claiming could be better addressed by
investing in the education of general practitioners specifically in the area of
billing practices, particularly of new GPs who may be confused by the schedule.[9]
4.5
Dr
Capolingua, former President of the AMA further argued in her evidence to the
committee:
All this, when
government already openly admits that the biggest hurdle to compliance is red
tape, and helping doctors to understand and comply with an increasingly complex
system will deliver far greater, long-term benefits than sacrificing the
privacy of all Australians to catch a handful of doctors and a few honest
mistakes.[10]
4.6
The
Government has indicated that the Increased Medicare Compliance Audit
initiative will provide savings of $147.2 million over four years and will cost
$76.9 million to administer, leading to net savings of $70.3 million over four
years.
4.7
Given
the significant administrative costs of the measure, Coalition Senators believe
that the Government should redirect some of this expenditure into education and
training measures to achieve similar savings without compromising patient
privacy.
CONCLUSION
5.1 Coalition senators support enhanced
Medicare Audit measures designed to protect the integrity of the Medicare
claims scheme and to ensure the appropriate expenditure of tax-payer funds.
5.2 Coalition Senators do not believe that
access to patient records should be extended to the CEO of Medicare or his/her
delegate. The confidentiality of patient records must be preserved by limiting
access to these records to necessary medical professionals, or in very limited
cases and under strict protocols, to the Professional Services Review Board.
5.3 We acknowledge the concerns raised by
a number of witnesses during the committee process that the complexity of the
Medicare schedule may lead to incorrect claims lodged by Medical professionals
and that a number of incorrect claims may be the result of error caused by
confusion with the system rather that deliberate fraud.
5.4 A review of the Medicare Schedule as
well as an educational program for Medicare Professionals must be conducted to
reduce inadvertent or honest mistakes being made when lodging Medicare claims.
5.5 The Office of the Privacy Commissioner
should be consulted during the development of regulations, guidelines or protocols
that will protect patient record confidentiality during any Medicare audit investigation
that may be referred to the Professional Services Review Board.
RECOMMENDATIONS
Recommendation
1
The
Government conduct a review of the Medicare Benefits Schedule with the view to
rationalising or simplifying individual schedule items.
Recommendation
2
The
Government develop a training/information program in consultation with relevant
professional associations to improve the accuracy of Medicare billing practices
among health care professionals.
Recommendation
3
If the Medicare CEO remains unsatisfied with
the responses of the medical provider or has further questions that the CEO
believes may only be resolved through reviewing a patient’s record, then the
matter should be referred to the Professional Services Review Board to be
reviewed by a committee of the practitioner’s peers. A report prepared by the
Professional Services Review Board could then be submitted to the Medicare CEO
for consideration.
Recommendation
4
The
Office of the Privacy Commissioner should be consulted to develop protocols and
guidelines for the protection of patient history record confidentiality during
any Medicare compliance audit activity.
Senator Sue Boyce
LP, Senator for Queensland |
Senator Judith Adams
LP, Senator for Western Australia |
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|
Senator Gary Humphries
LP, Senator for the Australian Capital Territory |
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