Is ‘consent’ the o-ring of Medicare audit?

Is ‘consent’ the o-ring of Medicare audit?

 

This article was first published by the Medical Republic on 27th of August 2021.

There’s a tiny technical glitch underpinning the legal integrity of Medicare auditing that could one day blow the whole system up. 

Medicare audit anxiety is a real thing that affects most doctors who provide (bulk-billed) “free care” to their patients.

Medicare rules keep changing with little notice or clarity.

Should the Medicare cops come knocking on their door, we know now that there is virtually nothing a GP can do about it but humbly pay it all back and wear any humiliation that accompanies the government default notice on their use of MBS items.

The way the current system works has been described as like getting a speeding ticket from a hidden camera when nobody will tell you the speed limit until you get caught.

Once you do get “caught” you have to pay back two years’ worth of speeding fines based on your gross income. It does not matter if you were actually in the car speeding.

According to two surveys, it looks like a large proportion of doctors are withholding services either regularly or from time to time for fear of a Medicare audit.

In The Medical Republic’s recent landmark national GP survey of more than 1,400 doctors conducted just a few weeks ago, it was found that over 84% of GPs, regularly, or from time to time, don’t perform certain services because of anxiety over the PSR.

But  “Medicare audit anxiety ” is not a recent phenomena. The fear effects of Medicare audits on doctors practising behaviour can be traced back as far as the mid-1990s.

Back then I helped establish a Women’s Health clinic for a client (at a time where male doctors dominated the workforce). Within 12 months of the clinic’s commencement, the only dedicated female doctor clinic received a Medicare audit letter for “performing too many Pap smears”.

Karmakar vs Minister for Health

The recent Karmakar case informs much about how hard it has been for individual GPs to try to fight the system, and how little has changed in 25 years as far as the power of the system over an individual doctor.

Most commentary has that this case puts beyond doubt that the PSR and Medicare can’t be fought in court and that instead someone has to work on changing the law.

In some ways the government bought itself cover on this whole problem via the  2011 Federal Senate PSR Inquiry. Nothing came of it as far as GPs are concerned despite quite a bit of protest from the sector.

A High Court finding and a finding of this inquiry, that this legislation exists to protect the taxpayer,  appears profoundly misguided in the context of  TMR survey results, which suggest the law may well be systemically harming patient care.

In the absence of a provable counterargument, the High Court has deemed that a focus on how well taxpayers funds are spent must take priority on how optimally doctors treat their patients.

Importantly, while Justice Logan’s judgement in Dr Karmakar’s case was clear in terms of law, he took the trouble to point out that there may be a public interest issue worth pursuing outside the domain of the PSR and the law as it stands.

A faulty o-ring in a complex system?

But there may be a small legal loophole that has still not been explored in the legal domain.

One question in the TMR survey departs a little from the core anxiety topic to explore how much a typical GP understands about their requirement to get consent from a patient for each billing item in Medicare to transfer their rights to the bulk billing rebate over to the GP.

The answer to the question is quite revealing (see below).

Essentially, most GPs either don’t even know the requirement exists, or they make an assumption  (one that has been has been pushed at them by the government)  that their practice receptionist pushing ‘yes’ on the billing terminal, constitutes implied consent.

It’s a convenience for everyone. But it’s a potentially big issue for the government one day.

The government understands that it must have the consent transferred formally from the patient for Medicare bulk billing to the doctor, for bulk billing to be a legal transaction. But they also understand that asking every patient to sign a DB020 form, which is the only real legal manner in which this consent could be given, is highly impractical. So the government has suggested that a GP can obtain ‘implied consent’ for this transaction via getting a verbal OK from a patient or by the act of pressing ‘yes’ on a billing terminal.

No one wants the major form of consent tested legally. It wouldn’t stand up in court. And working out what to do after that could become very messy, for the government and GPs.

But the fact that 50% of GPs aren’t aware of the rule at all (and therefore we probably can assume don’t do anything regarding consent) and of the 50% that do understand the rule only 9% say they obtain proper consent via the signing of a DB020 form, suggests very strongly that the vast majority of all MBS claims made for bulk billing over the years have been done, technically, without proper legal consent.

Wouldn’t it be interesting to see this technicality tested by a GP one day in the Federal Court?

The problem is that it could end up backfiring on GPs, as it could force a change that would introduce a horrific new piece of red tape that the profession doesn’t need.  But the concept that the government is winning all its cases based on an assumption that all the bulk billing transactions that a doctor has done have legally been transferred to the doctor from the patient, when they clearly haven’t, is an interesting one.

Source: Audit anxiety damages patient care, landmark survey finds, August 2021

Driving without road rules

Assume you are a good ethical doctor.

After many hard-earned years of study and work, you have just set yourself up in a brand new state of the art practice yourself.

You deserve it! Your patients and friends are impressed with your commitment. Everybody is cheering you on including your suppliers and the Government!

To help pay for your high-quality practice, you decide you want to make your services (bulk-billed) free to the patient.

The Government loves your choice. The punters (voters) and politicians love it.

For the long hours you put in, while fighting a tsunami of problems while your income goes backwards, you should be in line for a citizens award for your free services to humanity.

Unfortunately for you (the good doctor), you have taken up driving and know one has provided you with any road rules.

When you work this out, all you want to know is one simple thing: is going over 130km going to get you into trouble with the police?

The problem is, that for three decades nobody has been prepared to write a book of rules, so nothing is really clear. You have to do some guessing and assuming of what you think people want.

The federal government admitted in federal parliament 10 years ago that there is no commonly peer reviewed, agreed detailed driver education or published (clinically relevant) standards by which you can guide your practice of billing.

No standards on how to drive safely or what the speed limit is!

Worse, there is no appetite or urgency to give answers when people’s lives are at risk. The Government, their professional drivers’ association and the law firmly state it is not their job to interpret or even set the speed limit. They collectively state it is up to you to interpret with your peers. 

For decades fellow drivers have been given the same Government run around on the phone.

They get a different answer every time they ring. In the end, you get an answer in writing. After the pleasant exchanges on an official Government letterhead, they say we cannot tell you the speed limit, ask your friends.

In the meantime, you naively ask your trusted makeshift peer review group on social media. After all, they appear to be your more knowledgeable and experienced driving buddies. You even attend an ‘expert’ seminar on the road rules put on by someone who has spent quite a bit of time interpreting what they think the rules are and how you can apply them.

With good intentions but questionable authority, they tell you of their war stories.

Nobody in the room informs you that ultimately, the road rules can be changed without anyone’s knowledge.

The most common reason a road rule might be changed, is cost, not practice of medicine.

The ‘secret’ road rules are about managing a budget, not about managing the quality of practice. And because they are secret, anyone who thinks they have it worked out, eventually can come unstuck, along with their friends who they’ve told about their formula.

As the secret rule set changes, eventually one of your fellow drivers gets booked in a high profile court case. You and all your colleagues take some notes and start driving a lot slower on particular item roads. You change how you might normally practice.

For those that get prosecuted, only the headlines and not the details are reported in the news. Your fellow drivers might presume you are reckless which isn’t good for your reputation. Saying you are a good and ethical driver is no defence. You can’t present a fair defence including you were not even in the driver’s seat when the final penalty is imposed.

There is notable conspicuous silence from the driver’s associations.

This serves to undermine the legitimacy of any credible defence. Is it because some of their well-intentioned civic-minded members are tapped on the shoulder by the Government to be peers in the process of prosecution? After all, the government needs some peers to help them determine that you have done the wrong thing (just three peers per case will do it apparently).

It is only when you are booked that you find out that for the last two years, you have been living 200m from a hidden speed camera. And you only got booked when you sped enough times in one month to get noticed. But you are going down for all the fines now in that past two years, not the one you finally got notice for.

The Government then retrospectively and legally (statistically) prosecutes you for the last two years based on your driving habits in the last two weeks.

From this one month of speeding small sample size (fewer than 25 medical records), they may extrapolate your violations by 10 fold whether you were driving (bulking billing or not) over two years. These significant hypothetical fines are based on a small snapshot in time.

Once you get picked up, expect your car to be tested for defects (i.e. clinical relevance, contemporary notes, what do your PSR peers think). This is where the heat is on. Saying it was an emergency and you had no time is not an excuse.

Facing such a daunting process, this will naturally slow down the way you drive and your destination.

It’s understandable that doctors may be withholding care.

What’s in a small technicality (if it’s not really that small)?

Sometimes in the eyes of the law, a little technicality can throw out an entire case.

Every time a question about having a patient-signed consent form is raised in the media, Medicare loses their marbles over this issue.

You need to prove you have received informed consent for bulk billing to work.

Lawyers would have a field day arguing what constitutes consent in terms of bulk billing. Pressing a button on a billing terminal or suggesting your receptionist obtained verbal consent very likely does not legally constitute consent. Even getting a patient to sign a D020 may not constitute consent if they don’t know what they are signing.

What would your patients say if they were in the witness box about consent being obtained from them? They would not have a clue what you are talking about.

I am yet to see a lawyer prepare a written answer to this question.

We sought the advice of Hamilton Bailey lawyers and it seems there may be a legitimate argument out there to be heard.

Hamilton Bailey said it would be interesting to note a judge’s views on the following questions:

  • Is there a requirement to pre confirm that the doctor was bulk billing each patient with appropriate consent?
  • If consent is deemed not to be appropriate, does this invalidate or curtail the PSR laws?
  •  This point was not clear in the Karmakar case. The judge did not express an explicit view.
  • Would evidence that bulk billing consent has been given (rather than it be assumed), first need to be established before any Medicare investigations or subsequent prosecutions and/or liability could proceed?
  • Would a private billing (non-bulk billing) doctor have more or fewer rights if they did not bulk bill? 
  • Could it be as simple as: if you stopped bulk billing, most of your Medicare audit issues would be solved, as for most things you would be outside the legal jurisdiction of Medicare.
  • What about if it were found that in nearly all conditions, patient consent has never been formally assigned? Would that have the same effect?

 

Time might tell whether these questions might constitute a sort of ‘0-ring’  problem for Medicare. Or an opportunity for some downtrodden defence lawyer of a GP.

For those that are into technical arguments, the starting point is to look at the S.20A Health Insurance Act 1973 that outlines proof of consent.

Doctors must receive a signed bulk billed patient consent form. Essentially what this means is that the doctor has agreed with the patient to assign the responsibility for the payment of their bill to the Government.

The doctor agrees the Government is legally allowed to pay you what they feel like.

Technically, you have agreed that it is a “Good Samaritan” gesture (you have agreed to provide your services for free) and no longer have a legally enforceable contractual agreement or debt with the patient or the government.

In other words, where a doctor agrees to bulk-bill, they have legally waived their rights to collect any income from anyone; the patient and/or the government. There is no legal obligation to pay. It is now at the Commonwealth’s discretion. You have just given up your fundamental Constitutional right to claim property i.e. your money as your own.

Remember the movie the Castle…:

“ acquisitions by the Commonwealth other than ‘on just terms. S. 51(xxxi) of the Constitution is not allowed.”’

If the Commonwealth did not observe this rule, it may be considered theft.

I am not sure if doctors were over this technical point they would agree to bulk bill in the first place. Most informed people would at the least be very wary of what was going on.

This principle was established in the 1994 High Court Health Insurance Commission v Peverill case.

The importance of this case could legally mean that if the PSR has found you guilty of inappropriate practice ( for example on only 25 medical records) the Department could claw back two years of your income without securing evidence that you did secure appropriate consent.

But is it sufficient to presume that informed bulk billing consent has been provided to each patient they seek to make money from?

Many lawyers would argue this should involve more than a simple tap and/or signature at the front desk.

Legally this means that if the patient needs to be informed for it to be valid, then doctors have agreed to bulk bill.

Where to from here?

You could consider reducing or stopping bulk billing as one option. It’s not as crazy as it may seem. It will depend on where you are now, how attached your patients are to your service and how you communicated the change.

Most patients, after paying your medical fee via EFTPOS or their credit card, remain out of pocket for long. Ironically, the technology now exists for them to be out of pocket literally for seconds, but the government won’t introduce these systems because it would likely induce a lot of GPs to try kicking the bulk billing habit.

An understanding patient cohort and straight through billing via new web based payment protocols would also allow you to charge over and above the Medicare rebate in much smaller increments over time, which could change your whole financial paradigm?

To achieve the above, on the day of the consult, you could charge medical benefits only but make sure the patient does not assign the debt to the Government. This means the debt remains the ultimate responsibility of the patient and not the Government.

Medicare will usually pay the patient back into their nominated bank account or other practical means, within 24 hours for any Medicare rebate owing. It could do it instantly these days using cloud based billing systems, but it won’t because this would make it much easier for all GPs to do the above.

A more sensible way forward.

There is a more certain win-win solution out there if GPs want it: establish an independent not for profit peer-reviewed international healthcare standards and ethics board.

A similar one exists in the accounting profession and the concept has been adapted. The next thing doctors and healthcare workers should be pushing from the ground up is their professional memberships to provide real protection for their patients and providers and a fair go.

The International Healthcare Standards and Ethics Board project is something that has been endorsed by a leading international expert Professor Bill Runciman and has the support of Professor Ian Olver. It’s worth a look at.

This article had its origins in an article first published at healthandlife.com.au 

David Dahm is a Registered Tax Agent, the CEO and founder of the national medical and healthcare chartered accounting firm Health and Life and global Founder and CEO of the not for profit project the International Healthcare Standards and Ethics Board (www.ihseb.org)

Disclaimer: Please seek appropriate legal and accounting advice. This information is for general information and discussion only.

Stay safe, stop bulk billing! A simple cure for Medicare Audit Anxiety?

Stay safe, stop bulk billing! A simple cure for Medicare Audit Anxiety?

This article was first published by Health and Life on 28th August 2021.

As accountants to many doctors, we have a saying at our firm “You save lives, we save livelihoods”. 

 

Medicare audit anxiety is a real thing. This is affecting doctors who want to provide (bulk billed) “free care” to their patients.

 

In these COVID times, doctors are wary of providing too many long consults to patients and overprescribing. 

 

The Medicare rules keep changing with little notice or clarity. Without warning should the Medicare cops come knocking on their door, there is nothing your GP can do about it but humbly pay it all back without any warning. 

 

I think there may be an Achilles Heel opportunity for doctors to address their concerns and stop withdrawing essential care.

 

I understand the current law is like getting a speeding ticket from a hidden camera. The problem is nobody will tell you the speed limit until you get caught. 

 

Once you do get “caught” you have to pay back 2 years worth of speeding fines based on your gross income. It does not matter if you were in the car speeding. 

 

All you want to do is give out free (Government paid bulk-billed consults) rides to your customers and not accept a cent more. That is what everybody wants! Right?!

 

This may not sound fair or true. But it is and it can be life-threatening to your patient. It can bring unnecessary harm to you and the practice.

 

The Government and the doctors have known about it for decades. This seismic problem is systemically harming both doctors and patients.

 

According to the most recent surveys, it seems that doctors are secretly withdrawing essential care. you, as a patient, may need. 

 

Can you imagine if a patient actually knew there was up to 84% chance of a doctor withholding care? 

 

Not because the patient did not need it, but because their doctor feared a Medicare audit! 

 

In a recent landmark national GP survey (1,400 doctors) it was found:

 

“Over 84% of GPs, regularly, or from time to time, don’t perform certain services because of anxiety over whether the PSR might deem they’re performing those services to be inappropriate.”

 Source: Audit anxiety damages patient care, landmark survey finds, August 2021

 

I would be deeply concerned if I was a female in need of medical care. 

 

A practical example: let’s say I had just mustered up the courage to have a pap smear, only to be knocked back by the doctor for a non-medical reason.

 

Surely that is interference in the private medical practice, namely the doctor-patient relationship, that was deemed to be not constitutional according to the 1980 RACGP v Commonwealth 

 

 

I had first stumbled upon this matter and subsequently raised this ‘Medicare audit anxiety problem’ in the mid-1990s. This was after I assisted in establishing a Women’s Health clinic for a client (at a time where male doctors dominated the workforce). Within 12 months of the clinic’s commencement, the only dedicated female doctor clinic received a Medicare audit letter for “performing too many pap-smears” 

 

I am certain that the logic behind a female patient preferring to consult on such a matter with a fellow woman, is not lost on the reader.

 

I examine the questions not addressed and the fallout from the recent  Dr Karmakar case. 

 

In addition to any lobbying efforts that are required, there may be a small but significant legal loophole that has not been explored.

 

For nearly 30 years and after testifying at the 2011 Federal Senate PSR Inquiry I am disappointed to say nothing has changed, except the Government’s appetite to not want to address this matter at any cost. For me, in relation to her ‘dream team’, Dr Karmakar’s case was meant to highlight this problem

 

For the academics, back in 2011, If I had coined the phrase “Audit Anxiety” you can read my actual testimony on page 5 in the Federal Hansard.

 

 

Source: Proof Committee Hansard SENATE, COMMUNITY AFFAIRS REFERENCES COMMITTEE, Professional Services Review Scheme, FRIDAY, 23 SEPTEMBER 2011

CANBERRA page 5 – Note Hansard typographical error replace order with Audit”

 

Historically there has been a vacuum of professional silence. The appetite for medico-political or legislative change appears to be deafening and conflicted. At times it feels that the representatives are afraid to offend and are keen to secure seats and sell tickets to a Titanic problem that they can only fix and not the Government. Hubris may be the real enemy; this remains uncertain.

 

The Dr Karmakar decision ratifies my ongoing fear about this unfair law that systemically harms patients and GP’s. 

 

The High Court’s earlier decision that this legislation exists to protect the taxpayer appears profoundly misguided when you read the latest landmark survey reports into Medicare Audit Anxiety. Doctors are withdrawing necessary care out of fear of a Medicare audit. 

 

There seems to be some truth (yet to be confirmed) that suggests the law is systemically harming patient care. 

 

In the absence of a provable counterargument, respectfully, the High Court has deemed a focus on how well taxpayers funds are spent must take priority. They have had to assume peer review is open and transparent and the standards have been endorsed by the medical profession.

 

However, I am encouraged by Justice Logan’s comments in her case on the issue, that there may be a public interest issue worth pursuing outside the PSR area. 

 

Since the decision of notable concern is the problem has worsened.

 

The recent landmark Health Ed (1,400) survey results come to the same conclusion but at an increasing level. We had initiated the first national Medicare Audit Anxiety Surveys in 2016

 

To be quite honest the results were not a surprise, except it may now provide palpable proof the laws are harming patient care and our doctors’ welfare.

 

Other key findings of the report are revealing.

 

 

 

Source: Audit anxiety damages patient care, landmark survey finds, August 2021

 

“One of the things that’s coming out from [these cases] is that practitioners will continue not to know what their requirements for item numbers are. If they get it wrong, they could be facing a half-a-million-dollar bill.”Jeremy Knibbs

 

Guess what Jeremy, knowing this, despite everyone’s good intentions, nothing has changed in over 20 years! 

 

In the 2011 Federal Senate PSR Review Inquiry on the 25th of October tabled in it’s report:

 

“The Senate Committee endorsed peer review as the underlying principle of the PSR Scheme”. 

 

My position was cited for the need for clear public MBS rulings to help with interpretation. 

 

Source: 2011 PSR Senate Inquiry statement final report: Review of the Professional Services Review (PSR) Scheme) Chapter 2 Audit Procedures page 17

 

On a different tangent, Jeremy Knibbs makes another important point in his article: Audit anxiety damages patient care, landmark survey finds, August 2021. This is worth exploring further.

 

 

This current position of the Government and the profession is that it is not their responsibility to interpret the Medicare item numbers!

 

 

Source: RACGP advice on MBS rejected by doctors, Medical Observer, 7th October 2011

 

From the same article, Jeremy Knibbs, a well-known editor and publisher for The Medical Republic further sparked my curiosity. He made an insightful comment about patients not signing or appropriately consenting to be bulk billed. Is there a possible loophole where you could avoid unwarranted attention from a Medicare audit?

 

“An interesting piece is that most GPs either don’t know that they are required to get proper consent from a patient for each billing item in Medicare or if they do know, they aren’t doing it in a way that legally the government could ever really enforce if push came to shove and some clever lawyer asked the government to prove that assignment of the rights to bill the Medicare item directly to the doctor was ever actually given.” Jeremy Knibbs

 

 

Source: Audit anxiety damages patient care, landmark survey finds, August 2021

 

Does stopping billing provide legitimate protection?

 

For the non-lawyers amongst us (including myself), I had coined, a few years ago, the following Medicare speeding ticket analogy. This may further explain the complex nature of the current Medicare laws.

 

The Medicare Speeding Ticket Analogy 

 

 

Assume you are a good ethical doctor. After many hard-earned years of study and work, you have just set yourself up in a brand new state of the art practice yourself. 

 

You deserve it! Your patients and friends are impressed with your commitment. Everybody is cheering you on including your suppliers and the Government! 

 

To help pay for your high-quality practice, you decide you want to make your services (bulk billed) free to the patient. 

 

The Government loves your choice. The punters (voters) and politicians love it! After all, it is all about being in (em)power(ed)!  You are applauded by politicians for being a great role model citizen!  

 

For the long hours you put in, while fighting a tsunami of problems while your income goes backwards, you should be in line for a citizens Award for your free services to humanity!

 

Unfortunately for you (the good doctor), this is like naively driving and not knowing or being told the road rules. 

 

When you work this out, all you want to  know is one simple thing: is going over 60km going to get you into trouble with the police and the law? 

 

The problem is, that for three decades nobody will give you or anyone else the answer. Like others before you they have tried everything, even going to the media!

 

All they found was a well-intended Government and their poorly trained decorated  peers admitting in Federal Parliament 10 years ago that there is no commonly peer reviewed, agreed detailed driver education or published (clinically relevant) standards. 

 

No standards on how to drive safely or what the speed limit is!

 

To add insult to injury, there is no appetite or urgency to give answers when people’s lives are at risk. They all acclaim this is in the “too hard basket”! The Government, their professional drivers’ association and the law firmly state it is not their job to interpret or even set the speed limit. They collectively state it is up to you to interpret with your peers. 

 

For decades fellow drivers have been given the same Government run around on the phone

 

They get a different answer every time they ring. The well-intended Government employee frustratingly continues to put them on hold while they are trying to make a life or death decision. In the end, after some time you get an answer in writing and guess what?! After the pleasant exchanges on an official Government letterhead, they say we cannot tell you the speed limit, ask your friends!! 

 

In the meantime, punters are getting frustrated at the doctor, because they are taking too long to make a decision. Ultimately, he succumbs to the madness, as the next person waiting at the traffic light is about to enter a road rage fit! 

 

In the meantime, you naively ask your trusted makeshift peer review group on social media. After all, they appear to be your more knowledgeable and experienced driving buddies and friends. This includes their mechanics (practice manager and other self-proclaimed billing experts with Phd’s). Giving you an insider’s view, by name dropping their high profiled well-heeled legal this provides you with some uneasy comfort.

 

With good intentions but questionable authority, they impressively tell you of their war stories. What they do and how they never have got into trouble. They have found the secret sauce.

 

Unfortunately, complexity breeds ignorance. Nobody in the room realises that ultimately, the cards are always stacked against them. Never try to be too clever or conscientious. Not entering the Medicare casino may be a better bet. 

 

For everyone else who wishes to play, the police keep warning you not to speed! Whatever that means!!

 

In the meantime, you love the freedom and instant importance (popularity) the drive gives you. The only problem is increasingly the unclear rules in recent weeks and months keep changing. Suddenly there are more speed cameras on the road. You get news one of your fellow drivers got slammed in a high profile court case. Reality starts to set in. 

 

For those that get prosecuted, only the headlines and not the details are reported in the news. Your fellow drivers presume you are a reckless idiot, and some do know they are speeding too. Saying you are a good and ethical driver is no defence. In fact, you cannot present a fair defence including you were not even in the driver’s seat when the final penalty is imposed.

 

For fellow drivers, this may not be a concern other than the salacious social media gossip that entails anyone who seeks to defend themselves. 

 

There is notable conspicuous silence from the driver’s associations, who they all assumed would represent any concerns. This can only undermine the legitimacy of any credible defence.

 

Enjoying the kudos, is it because some of their well-intentioned civic-minded members are tapped on the shoulder by the Government? After all, they are needed to enable this process, in a world of plausible deniability.

 

In the meantime back where you live you suddenly get pinged for a speeding fine. 

 

You did not see the camera in the bush, and the next minute the police are at your door. They just want a “friendly chat”. You are not clear whatever you may say will be held against you. You do not want to sound difficult. You are a good person. You are happy to answer any of their questions. After all, what could go wrong?

 

You find out that for the last two years, you have been living 200 metres down the road from a hidden speed camera. You cannot see the camera and even the camera does not know the exact speed limit it needs to consider it as “breaking the law”. Only when you speed enough times in a month do you get noticed or someone vexatiously dobs you in or out of concern.

 

What you soon realise, after a couple of years without warning, you get hit with a retrospective speeding ticket based on your driving habits in the last two weeks. The Government then retrospectively and legally (statistically) prosecutes you.  

 

From this small sample size (fewer than 25 medical records), they may extrapolate your violations by 10 fold whether you were driving (bulking billing or not)over two years. These significant hypothetical fines are based on a small snapshot in time. 

 

Once you get picked up, expect your car to be tested for defects (i.e. clinical relevance, contemporary notes, what do your PSR peers think). This is where the heat is on. Saying it was an emergency and you had no time is not an excuse.

 

Facing such a daunting process, this will naturally slow down the way you drive and your destination.

 

I hope you understand why your doctors may be withdrawing essential care.

 

Back to the Karmakar case!

 

 

Reflecting on the Karmakar case, it is worth asking if there are any notable omissions and admissions. 

 

Sometimes in the eyes of the law, a little technicality can throw out an entire case from the outset.

 

One that comes to mind is bulk billing. 

 

Every time a question about having a patient-signed consent form is raised in the media, Medicare loses their marbles over this issue and they keep stating you must have a signed and or consent from the patient. 

 

You need to prove you have received informed consent. Lawyers will have a field day arguing what constitutes consent. Signing and pressing something without the patient understanding may not legally constitute consent. What would your patients say if they were in the witness box?

 

I am yet to see a lawyer prepare a written answer to this question. I have left this as an open challenge to any budding, qualified and experienced lawyer. I am keen to hear other legal views. 

 

We have sought the advice of Hamilton Bailey lawyers. A big shout out to Lukasz for his assistance on this matter, and it seems there may be a legitimate argument out there to be heard.

 

It would be interesting to note the judge’s views on the following questions:

 

  1. Is there a requirement to pre confirm that the doctor was bulk billing each patient with appropriate consent? If consent is deemed not to be appropriate, does this invalidate or curtail the PSR laws? This point was not clear in the Karmakar case. The judge did not express an explicit view.

 

  1. Would evidence that bulk billing consent has been given (rather than it be assumed), first need to be established before any Medicare investigations or subsequent prosecutions and/or liability could proceed?

  1. Would a private billing (non-bulk billing) doctor have more or fewer rights if they did not bulk bill? 

 

Could it be as simple as: if you stopped bulk billing, would your problems instantly disappear? 

Time will tell whether these questions if asked, become an ‘Achilles heel’ opportunity for the next brave doctor who dares to take the system on. 

For those that are into technical arguments, the starting point is to look at the 

S.20A Health Insurance Act 1973 that outlines that proof of consent.

 

Doctors must receive a signed bulk billed patient consent form. Essentially what this means is that the doctor has agreed with the patient to assign the responsibility for the payment of their bill to the Government. 

 

The doctor agrees the Government is legally allowed to pay you what they feel like. Technically, you have agreed that it is a “Good Samaritan” gesture (you have agreed to provide your services for free) and no longer have a legally enforceable contractual agreement or debt with the patient or the government. 

 

In other words, where a doctor agrees to bulk-bill, they have legally waived THEIR rights to collect any income from anyone; the patient and/or the government. There is no legal obligation to pay. It is now at the Commonwealth’s discretion. You have just given up your fundamental Constitutional right to claim property i.e. your money as your own. 

 

Remember the movie the Castle…:

 

“ acquisitions by the Commonwealth other than ‘on just terms. S. 51(xxxi) of the Constitution is not allowed.”’

 

If the Commonwealth did not observe this rule, it may be considered theft. 

 

I am not sure if doctors knew this technical point they would agree to bulk billing in the first place. Any informed person would not. 

 

This was established in the 1994 High Court Health Insurance Commission v Peverill case

 

The importance of this case could legally mean that if the PSR has found you guilty of inappropriate practice within e.g. 25 medical records, the Department could claw back two years of your income without securing evidence that you did secure appropriate consent. I am not sure it is sufficient to presume that informed bulk billing consent has been provided to each patient they seek to make money from.

 

Many lawyers would argue this should involve more than a simple tap and/or signature at the front desk. 

 

Legally this means that if the patient needs to be informed for it to be valid, then doctors have agreed to bulk bill. 

 

On a final note, the bigger implication is: how do they claim back money based on an extrapolated statistical calculation of no fewer than six-figure sanctions based on fewer than 25 medical records (Health Insurance (Professional Services Review — Sampling Methodology) Determination 2017 section 8) over two years without having to miraculously presume each of those patients had consented to bulk billing?

 

I apologise for the technical detail but it is important to put it out there for you to share with your lawyers if you are considering mounting a defence. 

 

Where to from here? 

 

The simple solution, for now, is to reduce or stop bulk billing if you are confident that patients will value your services. If not, build a strategy so you no longer have to fear the bulk billing clinic down the road and a Medicare audit.

 

Remember patients, after paying your medical fee via EFTPOS or their credit card, they do not remain out of pocket for long.  

 

On the day of the consult, charge medical benefits only. MAKE SURE THE PATIENT DOES NOT ASSIGN THE DEBT to the Government. This means the debt remains the ULTIMATE responsibility of the patient and not the Government.

 

From personal experience, Medicare will usually electronically pay the patient back into their nominated bank account or other practical means, within 24 hours for any Medicare rebate owing

 

Technology today makes this a simple and easy process your receptionist can do for your patients. 

 

As a doctor, if you are ever forced to pay back any money to Medicare you may still have the ability to recover the money from your patient! Make sure your terms and conditions are clear and in writing.

 

This may be the smartest and quickest way to get paid and improve your cash flow and reduce your audit concerns.

 

Is there a better alternative!

 

There is a more certain win-win solution out there if GP’s want it… but you have to demand it. It is to establish an independent not for profit peer-reviewed international healthcare standards and ethics board. 

 

A similar one exists in the accounting profession and the concept has been adapted. The next thing doctors and healthcare workers should be pushing from the ground up is their professional memberships to provide real protection for their patients and providers and a fair go.

 

The International Healthcare Standards and Ethics Board project has been endorsed by a leading international expert Professor Bill Runciman and has the support of Professor Ian Olver. So this is more than just a fanciful idea. It can become a critical mechanism to solve our most critical problems during these COVID times. 

 

Contact me if you would like to help out. Simply sharing this article with your patients as to why you do not wish to bulk bill will make a significant difference.

About me: David Dahm BA (Acc.), CA., FCPA, CTA, FFin, CPM, FAAPM, FAIM, FGLF.

Registered Tax Agent, Former AGPAL Surveyor 10 years of service 

David Dahm is CEO and founder of the national medical and healthcare chartered accounting firm Health and Life and global Founder and CEO of the not for profit project the International Healthcare Standards and Ethics Board (www.ihseb.org)

 

After a serious work-related car accident in 1989, and nine operations later I continue to be a patient and provider advocate. I enter my third decade as a national Chartered Accountant for Medical and Healthcare practices in Australia. I am a former 10-year Australian General Practice Accreditation surveyor. I come from a medico family. I have served on the AAPM National Board and was the inaugural national Chair of the Certified Practice Manager CPM post-nominal. I continue to provide accounting tax and practice management advice to many practices all over Australia. 

You know who you are and I thank you for this real honour and privilege to serve you and your community through you. Note: I am not a lawyer please seek appropriate legal and accounting advice. This information is for general information and discussion only.