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Monday, 23 November 2009
Page: 8584


Senator SCULLION (5:29 PM) —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—


Senator Carr interjecting—


The ACTING DEPUTY PRESIDENT (Senator Bernardi)—Order! Senator Carr, if you are going to make a contribution, please do it from your seat.


Senator SCULLION —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.