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Thursday, 29 October 2009
Page: 7643


Senator CHRIS EVANS (Minister for Immigration and Citizenship) (3:26 PM) —I present two government responses to committee reports as listed at item 13 on today’s Order of Business. In accordance with the usual practice, I seek leave to have the documents incorporated in Hansard.

Leave granted.

The documents read as follows—

GOVERNMENT RESPONSE TO THE SENATE COMMUNITY AFFAIRS LEGISLATION COMMITTEE

REPORT ON COMPLIANCE AUDITS ON MEDICARE BENEFITS

Government Response to the Senate Community Affairs Legislation Committee Report on Compliance audits on Medicare Benefits

Government Response

Recommendation 1

The committee recommends that the Department of Health and Ageing and Medicare ensure that as part of the Medicare compliance audit process, specific measures are detailed in the regulations to ensure that patient clinical records are only required to be accessed where necessary

Accepted

The Bill has been amended to make clear that:

  • practitioners should only provide clinical records if they are necessary to substantiate the service; and
  • if clinical records are provided, they may be provided to a Medicare Australia medical adviser (an employee of Medicare Australia who is a medical practitioner).  Medicare Australia will have qualified medical practitioners available to receive documents in all audits.

Medicare Australia is also working with relevant stakeholders, including the Australian Medical Association, to develop guidelines for practitioners on the kind of information that will substantiate particular services or groups of services.  These guidelines will be publicly available and will emphasise that clinical information is not to be provided unless it is absolutely necessary to substantiate the claim.  The commencement date of the Bill will be 1 January 2010 to allow time for these guidelines to be developed.

Coalition Senators’ Minority Recommendations

Coalition Senators do not agree with the Majority Report recommendation.

Recommendation 1

The Government conduct a review of the Medicare Benefits Schedule with the view to rationalising or simplifying individual schedule items.

Government Response

A Review of the MBS primary care items was announced on 9 December 2008.  Key stakeholders including general practitioners were consulted during the course of the Review.  In addition to individual meetings, an all day GP Working Party meeting comprising the major GP organisations took place in Melbourne on 21 January 2009.

The aim of the Review is to reduce red tape for GPs, encourage prevention and simplify the primary care items in the Schedule.  Specific areas of focus for the Review include:

  • general practice attendance items;
  • after hours attendance items;
  • out of surgery attendance items;
  • health assessment items;
  • chronic disease management items;
  • GP multidisciplinary case conference items; and
  • emergency attendance items.

The Government has already simplified requirements for chronic disease care planning items by removing the requirement from 1 January 2009 for a rebate for a care plan to be claimed before the rebate for allied health services may be paid.

Further outcomes from the Review are currently being considered by the Government. 

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.

Accepted

Medicare Australia will continue to conduct education and training to improve billing practices among healthcare professionals.  The education and training resources will be updated to address issues that arise during compliance audits.  These resources will continue to be developed in consultation with key stakeholders.  At present more than 30% cent of practitioners receive some form of targeted information, educational or training support from Medicare Australia each year.

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 PSRB could then be submitted to the Medicare CEO for consideration.

Accepted in substance

The key issue here is the involvement of a medical practitioner when clinical records are produced to substantiate a service.

The Bill has been amended to make clear that:

  • before a notice to produce documents may be issued, the CEO must take into account advice from a medical adviser (an employee of Medicare Australia who is a medical practitioner) on the kind of documents that a person may need to provide to substantiate a service;
  • a practitioner should only provide clinical records if they are necessary to substantiate the service; and
  • if clinical records are provided, they may be provided to an employee of Medicare Australia who is a medical practitioner.  Medicare Australia will have qualified medical practitioners available to receive documents in all audits.

These changes have been made because the PSR scheme is a peer review process designed to manage inappropriate practice.  It was not constructed to manage a large volume of matters.  Implementing this recommendation would require significant revision of the PSR provisions of the Health Insurance Act 1973.  It risks shifting the focus of PSR to the detriment of the management of inappropriate practice.

The compliance audit process is designed to be a simple, administrative mechanism to manage incorrect payments.  Involving PSR in the compliance audit process would be likely to significantly increase the time required to complete a compliance audit.  It could also considerably increase the cost of the process for the practitioners who are audited and taxpayers. 

At present information produced as a result of a notice to produce documents under the Bill, may not be used to refer a practitioner to PSR for investigation of inappropriate practice.  This protection would need to be removed if PSR was made responsible for the assessment of some or all of the documents produced.

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.

Accepted

The Privacy Guidelines for the Medicare Benefits and Pharmaceutical Benefits Programs issued by the Privacy Commissioner under section 135AA of the National Health Act 1953 will apply to documents containing clinical details about an individual provided to Medicare Australia during a compliance audit.

In addition Medicare Australia will work with the Office of the Privacy Commissioner to develop further administrative guidelines to ensure patient confidentiality during Medicare compliance audit activities.

Australian Green Senators’ Additional Comments

The Australian Greens support the Committee recommendation that further measures are adopted to ensure that patient clinical records are only required to be accessed where necessary.

Comment 1

Medical Advisors have oversight of all audits involving clinical information.

Accepted in substance

The Bill has been amended to make clear that:

  • before a notice to produce documents may be issued, the CEO must take into account advice from a medical adviser (an employee of Medicare Australia who is a medical practitioner) on the kind of documents that a person may need to provide to substantiate a service;
  • practitioners should only provide clinical records if they are necessary to substantiate the service; and
  • if clinical records are provided, they may be provided to an employee of Medicare Australia who is a medical practitioner.  Medicare Australia will have qualified medical practitioners available to receive documents in all audits.

Comment 2

Provision of a clear definition of what constitutes ‘a reasonable concern’ to conduct a review of the health provider against which a determination is made

Not accepted

It is not feasible to further define ‘reasonable concern’ in legislation.  The Medical Benefits Schedule changes constantly to keep up with clinical practice and medical technology so ‘fixing’ the definition of reasonable concern could unacceptably limit the ability to protect the integrity of the Medicare scheme from emerging compliance risks.  However the Department of Health and Ageing and Medicare Australia will investigate the possibility of developing further guidance for practitioners on what constitutes a ‘reasonable concern’.  It may be possible to distribute any such guidance each year when Medicare Australia publishes the National Compliance Program.

Comment 3

The decision to investigate patient records is made by senior officers delegated by the Medicare CEO, with oversight by Medical Advisors.

Accepted in substance

The Bill requires the decision to issue a notice to produce documents to be made by the CEO or the CEO’s delegate. 

Medicare Australia will not be requesting clinical records from practitioners.  Medicare Australia will outline the reasonable concern in relation to a service and ask the person to provide documents to substantiate the service.  It will be up to the person who receives the notice to decide what documents they have which substantiate the service.

However the Bill has been amended to make clear that:

  • before a notice to produce documents may be issued, the CEO must take into account advice from a medical adviser (an employee of Medicare Australia who is a medical practitioner) on the kind of documents that a person may need to provide to substantiate a service; and
  • practitioners should only provide clinical records if they are necessary to substantiate the service; and
  • if clinical records are provided, they may be provided to an employee of Medicare Australia who is a medical practitioner.  Medicare Australia will have qualified medical practitioners available to receive documents in all audits.

Comment 4

If it is decided ‘reasonable concern’ exists, a Privacy Impact Assessment (PIA) is 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.

Not accepted

This is not the function of a Privacy Impact Assessment (PIA).  A PIA is an assessment tool to allow agencies to identify and analyse privacy impacts during a project’s design phase.  In addition, Medicare Australia will not be requesting clinical records from practitioners.  Medicare Australia will outline the reasonable concern in relation to a service and ask the person to provide documents to substantiate the service.  It will be up to the person who receives the notice to decide what documents they have which substantiate the service.  However, in determining that there is a reasonable concern, and asking the person to respond, Medicare Australia will provide the person with assistance and guidance to ensure that only information necessary to substantiate the service is collected.

Comment 5

The PIA will include assessment of whether the necessary information can be gained by de-identified records without undermining the integrity of the audit process.

Not accepted

It is not possible to de-identify records without undermining the integrity of the audit process.  The audit will be conducted on specified Medicare services provided by a particular practitioner to a particular patient.  Wherever possible the identity of a person will occur through a Medicare number (rather than name) and the medical service will be explained by reference to the Medicare item (rather than a detailed description of the service).

Comment 6

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.

Not Accepted

The are significant disadvantages to individual patient notification including risks that notification may:

  • compromise the patient’s privacy;
  • unreasonably disrupt the therapeutic relationship (a patient may lose confidence in the practitioner); and
  • cause unnecessary anxiety to some patients (a patient may think that the medical care their practitioner is providing is not appropriate);

However Medicare Australia has accepted recommendation 2 of the PIA and will:

  • conduct a broader information campaign for patients to raise awareness that excerpts of their medical records may potentially be provided to Medicare Australia during a compliance audit; and/or
  • provide information on assignment of benefit forms and patient receipts; and/or
  • work with stakeholders to provide practitioners with notices to put up in their medical practices.

Comment 7

That if the patient or their authorised decision maker objects to the use of their personal medical record and provides reasons, the decision to access information is subject to an internal review and the patient is provided with written reasons for the decision.

Not accepted

This would undermine the integrity of the compliance audit program because an “opt out” provision would mean that some services for which there is a compliance risk could not be audited.  It may also lead to situations where access to the necessary information could be prevented by a practitioner who is able to convince patients to withhold their consent.


JOINT STANDING COMMITTEE ON TREATIES

REPORT 95: REVIEW INTO TREATIES TABLED ON 4 JUNE, 25 JUNE AND 26 AUGUST 2008

GOVERNMENT RESPONSE

Recommendation 6

The Committee recommends that in any specific arrangement concerning the exchange of Defence personnel, the Australian Government seeks to ensure that Australian personnel are protected from corporal and capital punishment under United Arab Emirates law.

Response:

The Government agrees in principle.  It is the United Arab Emirates Government’s strongly held view that its laws are a matter of national sovereignty.  Within this context, the Australian Government would seek for Australian personnel to be protected from corporal and capital punishment.

Recommendation 7

The Committee supports the Agreement between the Government of the United Arab Emirates and the Government of Australia on Defence Cooperation and recommends that the binding treaty action be taken.

Response:

The Government agrees that the recommendation is appropriate, and notes that binding treaty action has been taken.

Recommendation 11

The Committee supports the Agreement with the French Republic Regarding Defence Cooperation and Status of Forces and recommends that binding treaty action has been taken.

Response:

The Government agrees with the recommendation and supports the Agreement with the French Republic Regarding Defence Cooperation and Status of Force.

On 6 January 2009, an Exchange of Notes was sent to the Embassy of the French Republic advising that the Government of Australia has concluded all domestic procedures necessary for entry into force of the Agreement pursuant to Article 11, paragraph 1.

On 15 May 2009, the French Parliament ratified the Defence Cooperation Agreement. The Agreement will enter into force on the date that the French side notifies the Australian Government in writing, through diplomatic channels, that all its domestic procedures necessary for the entry into force have been concluded.