David and Goliath Medical Billing Investigations and the Silencing of Doctors

David and Goliath Medical Billing Investigations and the Silencing of Doctors

Assistance from:

Julian Burnside AO QC

David Dahm Chartered Accountant CA, FCPA, FTIA and Fellow of Australian Association of Practice Management FAAPM)

INTRODUCTION

Healthcare professionals are subject to investigations by Medicare Australia (The Professional Services Review: PSR) and the Medical Board through the Australian Health Professionals Regulation Agency (AHPRA). There is a clear trend of unnecessary audit anxiety brewing in the medical and healthcare fraternity, with patients often left in the dark as to why essential care is being withheld. In relation to the PSR, two senate inquiries 1997 and 2011 have been conducted during this period in which prominent patient advocates, such as David Dahm, and various organizations, have questioned the way these hearings are conducted. Non-disclosure agreements have resulted in an opaque system. The Senate Inquiries made numerous recommendations to make the process more transparent and fair. However, most of these recommendations have not been addressed.

CRITICISMS OF CURRENT PSR PROCESS

PSR investigations often span several years and involve doctors and other professionals attending many hearings and are too often completely baseless. Such hearings result in intense mental and professional stress for the doctors in question. Last year, 13 doctors were referred to the Professional Services Review Committee (PSRC), primarily for inappropriate billings, and several are awaiting their determinations. The process has adverse consequences for the careers and personal lives of doctors involved, even when no wrong-doing is ultimately found. This article will illustrate the inconsistent way these hearings are conducted, and will ultimately consider whether these processes are procedurally fair and whether they serve the public interest. It is important to ask: are these processes inadvertently creating a professional landscape which leads to poor patient care?

In 2015 the government spent $60m to recover just $16m.

Let’s consider how doctors end up on the watch list of these investigators. To enliven PSR proceedings, officers in Medicare initially monitor billing patterns. This is facilitated by a complaints page on the Medicare website, which can alert the Review body to doctors who may be non-compliant or in breach of their professional responsibilities.

One problem with internal review processes is their non-reviewable nature. It creates a David and Goliath situation between the omnipotent regulatory body and the individual lone doctors who become the subject of professional disciplinary proceedings. The precise scope of the power of these organizations is unclear. These organizations are legislatively authorized by the Health Insurance Act. Once a complaint is filed, the process begins with a ‘friendly phone call’ to the medical professional, then proceeds to a visit by a “Peer Review” officer. This can escalate to a subsequent referral to the PSR Director. Following a referral to the PSR Director, they will typically subpoena sample medical records from practices and practitioners, conduct a face to face interview, and encourage the practitioner and their medical defence organizations to make written submissions explaining their billing patterns.

If the Director is not satisfied with the explanation, then the practitioner is referred to the PSR Committee for a formal ‘hearing.’ During this hearing, the practitioner gives oral evidence regarding each of the patient cases randomly selected by the committee. A sample record is typically 25 samples from each of the types of cases in question, and determinations will then be extrapolated to the entire audit period. Based on these 25 samples the Committee will determine whether a doctor gets to keep their Medicare billing rights, and by extension, their right to earn a living.

The Committee is appointed by the Director, the Health Minister and AMA, in consultation with the relevant Colleges. When practitioners seek help from their colleagues or associations, it may be difficult to enlist support. Practitioners can ask to change the Committee members if they can make out a plausible argument of bias, but this is rarely taken into consideration.

For example, a GP Registrar was interrogated by three vocationally registered GPs with no consideration of differences in aptitude, knowledge or experience. Practitioners are often denied legal representation, and at most can bring a support person, who may be their lawyer appointed by their medical defence organizations. However, this person appears simply as support rather than as their lawyer.

The hearing has the outward appearance of a formal court hearing, often conducted either in the local magistrate court, or in a serviced office. Participants are sworn to tell the truth. The environment makes the panel members appear like judges. This is reinforced by seating them at the opposite side of the room. Hearings usually take anywhere between 6 to 8 full days, where the practitioner is asked in detail about each of the samples cases, based solely on the medical records subpoenaed by PSR. The hearings are recorded and transcribed.

Practitioners can call expert witnesses and can tender documents to defend themselves, but the committee members have authority to disregard any evidence they deem irrelevant.

For example, a patient’s statutory declaration confirming that they have received the treatment or evidence of the practitioner’s compliance with Medicare insurance regulations can be deemed irrelevant and excluded.

Under the Health Insurance Act, these hearings are to gather administrative facts to conclude whether a practitioner has in fact billed appropriately. In reality, there is a heavy emphasis on clinical performance during the hearings. Practitioners are questioned about their choice of antibiotics, why they took a certain amount of time to conduct a pap smear, what constitutes a contemporaneous and adequate medical record, and matters of that sort. In cases where the practitioner satisfies these professional aspects, it remains open to the committee to find that they would not have billed a particular consultation as a long consultation, or as an urgent consultation.

This practice imposes pressure on medical professionals and can lead to self-doubt. The process is so onerous and intimidating that practitioners can find themselves pressured into admitting fault where in truth they have not committed a breach, through fear of referral to the Medical Board, and fear of other professional repercussions such as losing their rights to bill under Medicare.

LEGISLATIVE CHILLING OF CRITICISM

Under the Health Insurance Act, Section 106ZR says that the person must not disclose to another person any deliberation or findings of a Committee or any information or evidence given to the Committee during its deliberations. The penalty for breaching this clause is 12 months’ imprisonment. More importantly, this information cannot be used where others can learn from their colleagues ‘mistakes’ like the tax office publishes regular de-identified tax rulings. This provision has a chilling effect on practitioners who have been treated unfairly or harshly.

Often, the difference between operating professionally and being labelled as ‘rorting the system’ depends on extraneous considerations: whether one went above the phantom and undefined billing threshold set by Medicare; or whether someone has been ‘dobbed in’ due to commercial or personal conflict. Unfortunately, once these processes are initiated, there is every chance that ethical and principled medical professional will have adverse findings against them. Practitioners who successfully defend themselves often rely on pure luck, because there are no precedents available, nor are there any consistent, published reasons for decisions.

Sub-specializing in areas can draw unwarranted interest if you operate outside the norm, such as a pap smear, indigenous, chronic disease, drug and alcohol clinic. It is a process of entrapment. It is not educative, regardless whether you are a trainee or not.

The key shortcomings of these hearings are that practitioners are not afforded legal counsel, the deliberations and findings of the hearing are not disclosed to the public, no peers can be present, even though they could present the norms of the practitioner’s chosen speciality.

PSRC is a very powerful body. There are serious consequences of it not being subject to public scrutiny. It has an unbridled capacity to destroy careers, reputations and professional respect without being accountable to the doctors they admonish or the public they claim to protect.

CONFLICT AND EXCESSIVE POWER AMONGST ADMINISTRATIVE BODIES

A conflict exists between the AMA, the supposed gate-keeper tasked with ensuring due process, and the PSRC, members of which are themselves often appointees of the AMA.

Compounding this, the Medical Defence Organization is conflicted by its advocates prioritizing cost- minimization, to the detriment of the cases of clients they represent. This ultimately leaves the practitioner isolated and pressured into either giving up or being left to fight a very lonely and unfair battle. MDO lawyers do not or cannot argue for a fair hearing for doctors as the rules do not encourage this.

In cases like this, where healthcare professionals may suffer from audit anxiety and feel attending mental and psychosocial pressures, we should question the processes that ostensibly protect the public from wrongdoing but often result in the scapegoating of unpopular practitioners.

It is unfair to subject clinicians to these hearings under the current legislative framework. It is time for the 2011 Senate Inquiry’s recommendations to be put into effect, to create greater accountability of the governing bodies in the medical and healthcare profession.

This will take time and energy to achieve, but it is ultimately in the public’s best interest to speak truth to power and ensure our institutions are transparent and held to the highest standards of accountability.

A peer-review supported solution proposed by David Dahm is to establish a not for profit international healthcare standards and ethics board, free from political influence that protects the practitioner and patient relationship across multidisciplinary healthcare teams.

It would be open, transparent and fair. This solution has worked in the accounting profession and aviation industry for many decades.

The key aim is to publish centralized, commonly agreed, peer reviewed clinical standards for patients and providers, so patients can proactively manage their care with their providers.

The next step is to apply for a Court order to review and improve the system, not for any compensation or damages but simply to ask for justice and fairness in the interrogation process.

I need healthcare professionals to complete these two surveys that will be used in evidence at the High Court public interest application, I hope to submit. I thank you for completing and sharing this survey with your colleagues.

1. Medicare Item Complexity

? https://www.surveymonkey.com/r/J87Z7KT

2. To Bill or not to Bill- Doctor’s right to earn a living https://www.surveymonkey.com/r/ZLK7G6T

?Anchita Karmakar 2018

David Westbrock, MD, FACP, FACE

Founder & Chief Executive Officer Consumer 1st Digital Health Network

6 年

If you think that problem does not exist in the U.S., think again. We are very close to a totalitarian health care system, enforced by the government agency and administered by insurance companies!

Navin Naidoo

Lawyer/Emergency Medicine Consultant/ GP/Entrepreneur

6 年

Very thought provoking!!

回复
Tracey Johnson

CEO Inala Primary Care, Founder Cooee Health, Co-Founder Cubiko

6 年

This article raises some alarming potential for the very systems designed to protect patients and payers to undermine the trust patients and doctors have in our capacity to provide care.? Australia's aged, multi-cultural and chronically unwell populations are not spread evenly across suburbs and catchments.? Providers who specialise in certain types of care could easily be caught out by the simple statistical modelling of Medicare and forced into audits which take time and create stress.? In an age of big data, we need more robust analytics which can identify those abusing the system and those doing the right thing amongst some of the most challenging patients.? We all want Medicare dollars to be used to benefit patients so an accountability mechanism is a must.? However, a bad accountability system with limits to administrative justice and procedural fairness could very easily lead to perverse incentives for doctors to not do what is in the best interests of their patients.

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