The phrase ‘criminal liability’ has been thrown around after an audit found that without written consent, there’s no legal basis for payment.
The Department of Health and Aged Care’s hasty decision to allow verbal consent for telehealth bulk billing has landed it in hot water, with confusion over who would be at fault for noncompliant billing: one of two government departments, or doctors themselves?
One senator even raised the possibility of only allowing telehealth rebates to go straight to the patient – effectively eliminating bulk billing – until the issue was properly sorted out.
Appearing in front of the Joint Committee of Public Accounts and Audit’s inquiry into policy and program design and implementation on Friday, DoHAC’s First Assistant Secretary of Medicare Benefits and Digital Health Daniel McCabe said the department had committed to legislative changes to solve the telehealth assignment of benefits issue.
The issue itself became apparent last year when the Australian National Audit Office released a blistering assessment of the way telehealth services had been expanded.
It found that the decision made by DoHAC to allow patients to verbally assign their benefit to a doctor during a telehealth consult directly contradicted the Health Insurance Act 1973.
“Public-facing guidance on the temporary policy did not clarify that notating verbal consent in provider records alone could not address other statutory requirements requiring a signed copy of the agreement to be provided to the patient,” the audit read.
“The legal consequences of failing to observe such requirements can be severe.”
DoHAC officials, according to the report, had not sought appropriate legal advice and ignored departmental officers who raised the fraud risk associated with verbal consent.
It was this audit that is understood to have prompted DoHAC to put an end to verbal consent for bulk billing in October last year.
“Where a provider does not provide a copy of the signed agreement in approved form to the patient, there is no legal basis for Services Australia to pay the benefit to the provider,” the audit said.
“Additionally, providers can be criminally liable for failing to complete the agreement form properly.”
It’s this last point that caught the attention of Senator Linda Reynolds during the inquiry hearing last week.
“Does that live criminal liability potential rest with Services Australia, who actually made the payments, or with Health [who gave the advice]?” she asked.
Mr McCabe clarified that it would be neither – because the doctor was the one who made the incorrect claim, they would be the one at fault.
“And is anybody investigating this in terms of potential criminality, inadvertent as it was?” Senator Reynolds asked.
Mr McCabe said the department’s focus was on providing accurate and legal advice to doctors.
“I’d have to check internally with the department whether we’d sought any sort of any legal advice,” he said.
“I’m aware Services Australia has done some work on [Medicare non-compliance] as well, because they had broader issues that they needed to deal with.”
Senator Reynolds pressed further, and asked whether it would have been more appropriate to stop bulk billing until an airtight legal workaround was identified.
“At what point do you provide advice that – even if you’re doing things quickly – you don’t think is legal?” she said.
“So either [you] have to change the policy – maybe give the payment [directly] to the individual to start with until we change the law to make it legal, or … you just accept [potentially illegal claims].
“And I don’t think that [second option is] really appropriate.”
Last month the RACGP called for verbal consent to be made permanent, saying the cumbersome process for obtaining written consent for tele-appointments and the risk of delayed or no payment would drive even more GPs away from bulk billing.
Health Minister Mark Butler has acknowledged the problem from the GP angle and said his department would be exploring options to change the requirements. He did not rule out introducing legislative changes.
In response to questions over the department’s neglecting to establish frameworks for the temporary and permanent changes made to MBS telehealth items, Mr McCabe acknowledged the changes had been treated as “business as usual” by the department.
“During the pandemic … we were doing a lot of changes to telehealth and they weren’t put into a project methodology, we weren’t following our normal processes,” he said.
When questioned over claims in the ANAO report that the department failed to uphold its risk management policy when implementing temporary and permanent telehealth changes, Mr McCabe said the central issue was inadequate record keeping on the part of the department.
“Most of the challenges were that we didn’t write things down properly, we were meeting with stakeholders weekly and part of that was dealing with non-compliance risks that were starting to converge pretty quickly as we were doing both the temporary and permanent changes,” he said.
“The reflection, though, is that we didn’t write them down properly, and build them into risk registers, and actually compare and demonstrate how we were treating them.”
Mr McCabe said the lessons taken from the Auditor General’s report would be applied not only to improve its pandemic response but to enhance the department’s performance as a whole.