By all accounts the Government’s relations with the AMA have been a little improved lately, so why on earth has they gone out on an apparent limb and got the AMA severely annoyed?
All the relevant details of what is causing the problem are found here:
Medicare Benefits
Exposure Draft of the Health Insurance Amendment (Compliance) Bill 2009
The Exposure draft of the Health Insurance Amendment (Compliance) Bill 2009 is now available for review by stakeholders. This Bill will give effect to the Increased Medicare Benefits Schedule Compliance Audits initiative which was announced in the 2008-09 Budget.
In this section:
PDF printable version of Exposure Draft of the Health Insurance Amendment (Compliance) Bill 2009 (PDF 70 KB)
DF printable version of Exposure Draft of the Health Insurance Amendment (Compliance) Bill 2009 Explanatory Material (PDF 103 KB)
Full page is here:
http://www.health.gov.au/internet/main/publishing.nsf/Content/exp-draft-HIA-bill2009
Most informative (for me) is the document which explains what the proposed law does:
Summary of new law
1.74 This legislation enhances the current voluntary compliance model for the Medicare scheme.
1.75 The Bill will amend the HIA to enable the CEO of Medicare Australia to give a written notice requiring the production of documents to a practitioner to substantiate whether a Medicare benefit amount paid in respect of a professional service should have been paid. A practitioner is the person who rendered the professional service (or on whose behalf the service was rendered).
1.76 The Bill will also enable the CEO of Medicare Australia to give a written notice requiring the production of documents to another person who has custody, control or possession of the documents, to substantiate whether a Medicare benefit amount paid in respect of a professional service should have been paid.
1.77 The Bill prevents a notice to produce from being given to the patient (the person to whom the professional service was rendered) or the person who incurred the medical expense in relation to the professional service.
1.78 The notice will only be able to be given when the CEO has a reasonable concern that the Medicare benefit amount paid in respect of one or more professional services may exceed the amount that should have been paid.
1.79 A practitioner (or another person who has control of the documents) is not excused from producing documents on the basis that the documents may incriminate them or expose them to a penalty. This abrogates the common law privilege against self-incrimination but is necessary to ensure that the compliance measures contained in this Bill are able to operate effectively.
1.80 The Bill provides protection for practitioners by providing that the documents and information about particular services provided in response to a notice cannot be used as the basis for a referral to PSR or for other criminal and civil proceedings except for those relating to offences under the HIA or the Criminal Code Act 1995 which relate to false and misleading statements made in respect of Medicare services.
1.81 At present if Medicare Australia identifies that a Medicare benefit paid in respect of a professional service should not have been paid because of a false or misleading statement made by, or on behalf of, the practitioner, the practitioner who rendered the service is required to repay the relevant amount (see section 129AC(1) of the HIA).
1.82 In these circumstances the practitioner is required to repay the amount as a debt to the Commonwealth because their actions caused an incorrect payment to be made in respect of the service. This will continue to occur under the new legislation.
1.83 The Bill provides that a practitioner who cannot substantiate the amount paid in respect of the service may also be liable for a financial administrative penalty. A base penalty amount of 20% will be applied to debts in excess of $2,500 or a higher amount if specified in regulations.
1.84 The Bill allows the base penalty amount of 20% to be reduced and increased in specified circumstances.
1.85 The legislation will apply to all practitioners who render Medicare services and to other specified persons (who are not the practitioner or the patient) who control or have custody of documents relevant to a professional service.
1.86 This Bill will apply prospectively. That is, the new provisions will only apply to professional services rendered once those provisions commence (currently expected to be 1 July 2009).
1.87 This means that the Medicare Australia CEO will not be able to issue a notice to produce documents or apply an administrative penalty to a debt amount in relation to any professional service that was rendered prior to the legislation commencing, even where a reasonable concern is identified.
----- End Quotation
It is clear that patient records are liable to be demanded from the following: (p19)
What kind of information may be provided in response to a notice to produce documents?
2.30 The power to require a person to produce documents includes the power to require the production of documents containing health information about an individual.
2.31 Health information is defined in subsection 7 of the Privacy Act 1988 as:
(a) information or an opinion about:
(i) the health or a disability (at any time) of an individual; or
(ii) an individual’s expressed wishes about the future provision of health services to him or her; or
(iii) a health service provided, or to be provided, to an individual; that is also personal information; or
(b) other personal information collected to provide, or in providing, a health service; or
(c) other personal information about an individual collected in connection with the donation, or intended donation, by the individual of his or her body parts, organs or body substances; or
(d) genetic information about an individual in a form that is, or could be, predictive of the health of the individual or a genetic relative of the individual.
2.32 Consequently, practitioners will, in some circumstances, be required to produce documents, or extracts of documents, which contain clinical information about a patient to substantiate a Medicare benefit paid in respect of a professional service.
---- End Quotation
It is made clear elsewhere that the Privacy Impact Assessment has not yet been completed and that lay staff will be involved and that they will be given special training on the importance of handling information correctly.
Needless to say the AMA finds this utterly over the top. Two of the many reports are as follows
Patient privacy stripped by Medicare
by Michael Woodhead
The government is to strip privacy protection from patient records in its bid to step up Medicare audits, the AMA warns.
Legislation foreshadowed by the Department of Health and Ageing last week, will give Medicare the right to access all information recorded by doctors on individual patients records, says AMA president Dr Rosanna Capolingua.
In a move she described as “deeply disturbing”, the Health Insurance Amendment (Compliance) Bill 2009 will reverse current legal protections for patient privacy, ensuring no part of the patient record is protected. According to the AMA, Medicare will have the power to seize, copy and retain patient records and submit them in court for all to see.
“Worse still, under this legislation patients don’t even have the right to know that their records are being accessed. There is no compulsion to even advise patients, let alone seek their permission,” says Dr Capolingua.
More here:
http://www.6minutes.com.au/articles/z1/view.asp?id=477008
Big Brother threat to patient privacy - AMA
NEWS.com.au
April 15, 2009 12:45pm
DETAILED and sensitive medical records could be rummaged through by bureaucrats without patients knowing under a"deeply disturbing¿ proposal by the Federal Government, doctors say.
Under the proposal, government officials would not have to get a patient’s permission or even notify them that their records are being seized, a move health workers have described as “Big Brother at its worst”.
The draft legislation allowing Medicare officials to gain unprecedented access to patient records, released just hours before the Easter long-weekend, stated that only doctors would be notified of the seizure of sensitive health information.
It stated that Medicare would not be required to notify “the person in respect of whom the professional service was rendered” or “the person who incurred the medical expenses”.
“The power under this section… includes the power to require the production of a document, extract or copy containing health information… about an individual,” the proposed amendment said.
Comment is being sought from Health Minister Nicola Roxon.
The Australian Medical Association (AMA) has slammed the proposal, with CEO Rosanna Capolingua describing it as “deeply disturbing”.
“This is an act of bureaucratic voyeurism that strips patients of all rights to privacy,” Dr Capolingua said.
More here:
http://www.news.com.au/story/0,27574,25337472-29277,00.html
The full AMA press release is here:
Also of note is the financial impact statement:
“Financial impact: The implementation of the IMCA 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. This funding was included in Budget Paper No.2 2008-09 for the Health and Ageing portfolio.”
So what we have here is some pretty coercive and intrusive extra powers to improve the financial performance of Medicare Australia by a net of less than $20M per year – out of a budget of over $13 Billion per annum.(0.015%).
We also have other groups also concerned about the implications of these plans.
A few points:
1. The Department of Human Services (Medicare and Centrelink) are not immune to leaks and misuse of information. There are always the odd report about the renegade officer who just lets details slip out for fun or profit. (Same happens at the Tax Office)
2. Clinical records, if mishandled by a faceless bureaucrat, could result in permanent damage and the possible consequences (depression, suicide etc) that may not be easily remedied – if at all.
3. This sort of attitude to the privacy of clinical records just makes it all that much harder to convince the public electronic records are a sensible idea.
4. A perverse consequence of this sort of approach may be a number of GPs opting out of bulk billing and that surely won’t be a good thing – especially in small communities where choices may be very limited.
All in all this is, I believe, badly flawed. It needs a major rethink and re-work after the Privacy Impact assessment is available.
I am opposed to fraud as much as the next person and so what is needed, I believe, is to ensure that the reviews of any records are undertaken by peer clinicians to the doctor complained about and that all times the records remain in the practice where they were created. That way administrative, non-identifying information can be gathered and used, if need be to address any fraud, and there are no changes to the protections we have in place now – in paper or electronic records.
Anything less is unacceptable to both patients and doctors in my view. There has to be accountability but not jackboots!
David.
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