Nigel Scullion (NT, Country Liberal Party, Deputy Leader of the Nationals) Share this | Link to this | Hansard source

By agreement, I will ensure that I keep this as short as possible. It is my contribution as part of the second reading debate on the—

Kim Carr (Victoria, Australian Labor Party, Minister for Innovation, Industry, Science and Research) Share this | Link to this | Hansard source

Senator Carr interjecting—

Cory Bernardi (SA, Liberal Party) Share this | Link to this | Hansard source

Order! Senator Carr, if you are going to make a contribution, please do it from your seat.

Nigel Scullion (NT, Country Liberal Party, Deputy Leader of the Nationals) Share this | Link to this | Hansard source

I rise to make a contribution to the second reading debate on the Health Insurance Amendment (Compliance) Bill 2009. In effect, this bill is going to provide the CEO of Medicare with powers to request patient medical records, or an extract of patient records, in the event of a Medicare compliance audit. The background is that the list of MBS scheduled items has grown by some 23 per cent in the last five years; the number of providers has grown by some 15 per cent and now exceeds 60,000; a number of allied health professionals now get access to it; and there is a greater diversity of items. Given that, we would see that a change in the auditing process is appropriate.

The government claims that approximately 20 per cent of providers who have been subject to an audit have declined to respond to an audit request for supporting documentation and that that needs to be addressed. Having now spoken to all of the associations representing the provider side of the industry, I do not think you should take it from that that they are simply refusing to comply because they wish to avoid an audit. There are some more sophisticated issues involved.

The government’s response to this issue was to present this legislation to enforce audit compliance. If we look at some of the information that was released by Medicare, it shows that in 2008-09 some $4.5 million was recouped from false claims by 756 practitioners, with only five convictions recorded. This would indicate that the audit system is effective in preserving Medicare’s integrity, except for the fact that 20 per cent have not provided the requested information. That is clearly associated with their concerns about the privacy of the information and their relationship with the patient.

In the legislation before us, the CEO of Medicare can only issue a notice to provide documents after he or she has satisfied three criteria. They are: the CEO must establish a reasonable concern that incorrect Medicare benefits have been claimed; the CEO must take advice from a medical practitioner employed by Medicare Australia on potential sensitivities of the types of documents that may need to be provided to substantiate a claim; and the CEO must give the person a reasonable opportunity to voluntarily respond to an audit request. Medical professionals support this part of the audit system because it is going to be targeted and is not going to be some random system that would not be anywhere near efficient. They believe that this will serve to strengthen the integrity of the Medicare system.

Medicare providers—certainly the ones that I have spoken to—strongly oppose the contentious part of this legislation that gives the CEO the power to require the production of a document, or an extract or copy, containing health information about an individual which is within the meaning of the Privacy Act 1998. One should not be at all surprised that the Medicare providers strongly oppose this power. Patient records are fundamental to the relationship between the patient and the provider and, most importantly, the providers only keep those records for medical reasons. None of those records are kept, or are required to be kept, to provide for auditing arrangements or questions that come from Medicare.

There is particular concern in the areas of psychiatry and psychology. There is a great deal of concern given that, even now, there are a number of practices where people would prefer to simply pay cash. They do not even want their name registered to show that they have been there—such is the stigma associated with some presentations in that area. So it is very important that we recognise that this legislation covers a whole range of circumstances and we need to ensure that any remedies provide the same level of diversity.

Some providers already provide partial patient records in their auditing responses. This is a judgment call made on a case-by-case basis by the relevant provider. From this, all providers and all patient records can be accessed in the same way without placing patient welfare and doctor-patient confidentiality, so important to that relationship, at risk. The legislation requires Medicare to discuss internally what information may need to be provided. However, it specifically states that Medicare will not specify what information must be provided by a provider to satisfy an audit. Instead, it introduces a power to simply request patient records and that is clearly unacceptable. This is viewed by professional peak bodies as Medicare fishing for information and, therefore, they strongly state that this power should be opposed. The opposition agree with that and we will be introducing amendments to reflect that.

The power to request patient records as part of an audit compliance regime is uniformly viewed as severely heavy-handed and, again, putting at risk the doctor-patient relationship. Powers already exist to compel medical practitioners to provide patient records during professional reviews or through legal action, with well-defined and established privacy requirements. Given the sensitivity of such documents, requesting access to patient records is a higher order action, not a first response action. Because the facility or power is available to Medicare through other bodies, the escalation of suspected Medicare fraud or noncompliance could be achieved without the need to further compromise patient privacy and confidentiality.

We will be introducing some eight amendments that reflect those concerns. I would like to commend the government for accepting, notionally, seven of those eight. I think that is a very sensible approach and I look forward to talking about those amendments in a moment.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

I, likewise, will try to keep my comments on Health Insurance Amendment (Compliance) Bill 2009 brief. However, I will note that this is an important bill. We have had a Senate inquiry into it and there are important issues here which need to be discussed. The Greens have signalled in their minority report that we will be circulating amendments. These issues need sufficient discussion. I am concerned that the privacy issues may not be thoroughly discussed here because of the need to deal with this bill in an expedient and quick manner. The Greens do support the need to ensure the integrity of public revenue expended on Medicare services. Expenditure on the Medicare scheme was over $14 billion in 2008-09 and has grown by more than $1 billion per annum over the past two years.

The Greens believe that compliance audits are necessary checks to confirm that a medical practitioner has been eligible to provide a Medicare service, that the service was actually provided and that the service met the requirements of the Medicare item paid in respect of the service. We understand that, at present, many practitioners voluntarily cooperate with Medicare Australia during such compliance audits. However, on average, 20 per cent of practitioners requested either do not respond to or refuse to cooperate with a request for documents—which, I must say, we find unacceptable. When this occurs, Medicare Australia does not have the authority to require the production of relevant documents and cannot confirm that the Medicare payment is correct.

The Greens believe that health reform has to be underpinned by a greater understanding of our health needs, and we have called for payments to be monitored and measured by the relevance to the patient’s needs, not just the provider and the number of the services that they are willing or able to perform. In 2007-08, 81,224 providers generated nearly 280 million MBS services. New groups of practitioners, such as allied health professionals, are also now able to provide Medicare eligible services. It does not seem unreasonable for the taxpayer to want to be sure that the services being paid for are in fact audited.

In 1996-97 the Australian National Audit Office found that non-compliant MBS payments equated to around 1.3 to 2.3 per cent of expenditure. According to the Australian National Audit Office, this suggests that current levels of annual non-compliant payments could be as much as $170 million to $300 million per annum. Of course, the Greens would much rather that money be spent on our very important public health system, where we know resources are constantly strapped.

The Greens believe that requiring providers to verify their claims when there are specific concerns about the claims is a reasonable and responsible way of protecting the public purse. We agree with Medicare Australia’s view that:

The consequence of not having a penalty system for ‘non-criminal’ acts resulting in incorrect claims is that providers can repeatedly make incorrect claims with little or no adverse outcome, other than possibly having to repay monies that are specifically identified as being incorrectly received.

Similarly, the Greens accept the view of the Department of Health and Ageing, who have argued that ‘key risks to the integrity of the Medicare scheme’ need to be addressed ‘by establishing a simple, cost effective administrative mechanism to deal with incorrect Medicare payments which constitute a substantial risk to Medicare expenditure’.

The debate here is about potentially competing public interest principles. They are the interests of Medicare consumers in the maintenance and integrity of the health system and the public interest in the confidentiality of communications in the doctor-patient relationship and the medical records of patients. The Public Interest Advocacy Centre suggested that with some amendments, the proposed changes and the existing privacy protections ‘appropriately balance’ the public interest in the integrity of Medicare and the public interest in the maintenance of patient confidentiality and privacy of health records.

The Greens have put forward amendments that reflect the initiatives proposed by the Public Interest Advocacy Centre in a submission to the committee inquiry on this bill. We have proposed a two-stage process to minimise the need to access clinical records in the audit process by, first, introducing a mandatory electronic data collection mechanism as part of every patient consultation, which would not only aid this data collection but also aid the doctors or medical practitioners; and, second, outlining a process to determine when clinical records must be accessed and provide maximum protection for patient confidentiality once it is determined and access is necessary.

The first-stage measure would enable the provision of more accurate detail of patient consultations as a matter of course. This would require doctors to complete an electronic form for each consultation, which would provide the basic relevant details to the Medicare audit process, such as length of time, process, referral et cetera, in a very simple ‘tick box’ format. This would be completed online during the consultation as a matter of course. The second-stage measure would be a multi-stage review process—and we have set this review process out in our amendments. This process ensures that any decision to assess clinical information is made separately from the routine audit process and follows a number of steps to ensure sensitive information is handled with due care and confidentiality.

The Greens understand that Medicare Australia is working on guidelines to look at sensitivities around privacy. The Greens welcome this but we are not satisfied. We believe that, unless amendments are made, the privacy of patient records will still not be sufficiently protected. The Greens are pleased to see the government include a provision that medical advisers should have oversight of all audits. However, we do not believe it is appropriate that senior officers inside Medicare who may not be medical advisers but are in fact bureaucrats—and I do not in any way mean to have a go at bureaucrats; it is just that they are not medical advisers—should have a role to play in auditing patient records. The Greens believe that, if it is decided that reasonable concern exists, a privacy impact assessment should be made to justify accessing patient records, including that there is no other way to obtain the necessary information and that the investigation is in the public interest. We believe that the privacy impact assessment should include assessment of whether the necessary information can be gained by de-identified records without undermining the integrity of the audit process.

Finally, the Greens believe that the patients or their authorised decision maker should be advised that their personal health record is to be accessed for the purpose of a compliance audit. We believe that, if the patient or the authorised decision makers object to the use of their personal medical records and provide reasons, the decision to access information should be subject to an internal review and the patient should be provided with written reasons for the decision. The Greens hope that the Senate sees the wisdom of these amendments, as we believe they improve this important piece of legislation.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

In closing the debate on the Health Insurance Amendment (Compliance) Bill 2009, I am pushed to thank senators for their contribution, but I will respect the chamber and thank senators for their contribution. I will not deal with the matters that were dealt with earlier; I will address the bill itself. This bill will enable the chief executive officer of Medicare Australia to give a notice requiring the production of documents to a practitioner, or another person who has custody, control or possession of the documents, to substantiate whether a Medicare benefit paid in respect of a service should have been paid. However, before a notice to produce documents can be given to a person the CEO must fulfil several conditions—and I will not go through each of those. This bill addresses what has been a long-outstanding matter in the health area, particularly around ensuring that we have an effective compliance scheme. I understand that there is broad support in this place for a compliance scheme and the procedures that are outlined within it.

We have listened carefully to the short contributions from both the opposition and the Greens. We do understand that there are some issues that the opposition and the Greens have, and that they are seeking to use the committee stage to propose amendments. We will deal with those amendments shortly, as we go into committee stage, but Senator Scullion has outlined one concern. As the senator acknowledged, the government has had good discussions with the opposition in relation to these issues. We do think we may need further discussion in relation to some of those, to finalise those matters, but there are of course some that we can address in a meaningful way.

The bill itself has been, as I think we have indicated, subject to consultation and has been through a Senate inquiry and report, which has made various recommendations. I will deal with some of those during the committee stage of the bill as quickly as I can. However, can I say categorically to Senator Cormann that, in respect of the cataract amendment, we will not be accepting anything dealing with cataracts outside of what is dealt with within the reasonable scope of this bill. I understand Senator Scullion has carriage of this bill. To the extent that we deal with the substantive matters, we are in meaningful discussion with Senator Scullion in relation to this. This bill has been brought on without the government setting the agenda. It does mean that it will be difficult to address some amendments, as they have not been through our process. We will provide a call where we can to ensure that we can deal with this in a meaningful way. I will conclude on that basis and thank the senators for their contributions.

Question agreed to.

Bill read a second time.