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Concerns raised about Ombudsman’s TAC and Workcover billing report
Excerpt of letter from AMA Victoria CEO Jane Stephens to the Victorian Ombudsman.
12 August 2009.
Mr George Brouwer
9/459 Collins Street
MELBOURNE VIC 3000
Dear Dr Brouwer
Re: An Investigation into the Transport Accident Commission’s and the Victorian WorkCover Authority’s Administrative Processes for Medical Practitioner Billing (2009) (TAC Report)
Report based on errors of fact
We have read this report, and the Report of an Investigation into Issues at Bayside Health (2008) (Bayside Report) and are concerned that both reports reveal that you have some fundamental misapprehensions about billing for medical services in relation to the two compensation schemes. This is especially concerning to us in view of our having offered to provide you with a briefing on the complexities of the matter. I wrote to you with this offer on 01 July 2008 and received no response.
In particular, your reports make an unwarranted assumption that a failure to bill according to Medicare guidelines equates to dishonesty on the part of a doctor. This is simply not the case. WorkCover and TAC statutes require the authorities to pay ‘reasonable medical expenses’ (Accident Compensation Act 1985 Vic s. 99(1)(a); Transport Accident Act 1986 Vic s. 60(2) ).
Medicare is an entirely different system, and Medicare Benefits Schedule fees and guidelines (MBS) are not suited to the treatment of trauma. As a result, each of WorkCover and TAC have, over the years, accepted a number of departures from the Medicare Benefits Schedule. Doctors have billed reasonable expenses in good faith on this basis. These accounts have been paid. The doctors are entitled to take the view that accounts which have been paid are in an acceptable form. To accuse them of fraud or dishonesty after the event is inexcusable, especially considering the value of the work that they do.
Your own reports indicate that you were informed that the MBS was never the sole determinant of reasonable medical expenses. As stated by the TAC in the Bayside Report and quoted in the TAC Report: “…billings were in line with the respective MBS or AMA guidelines…” In fact, consistently over the history of the schemes, the guidelines for billing have been modified, in recognition of the inadequacy of the MBS in relation to trauma in particular.
For many years doctors were told that either the MBS guidelines or the AMA Fees Book Guidelines are an acceptable basis for charging. In addition, particular arrangements were made in relation to a number of procedures, notably the ‘multi-operations rule’ when applied to orthopaedic procedures. Even now, the TAC website advises that the AMA guidelines may be used for multi-operations in orthopaedics.
The most recent amendment to the MBS guidelines was made this year, in relation to supervision guidelines. In this instance, Medicare was asked by a hospital to make a ruling in relation to TAC billing; Medicare declined, precisely because the matter has nothing to do with them.
It should be remembered that a doctor may charge a patient whatever he or she considers ‘reasonable’, provided that the patient has been given a proper indication of the fee which will be charged. In cases funded by TAC, the ‘insurer’ is required to pay a rebate to the patient. By convention, the patient is (usually) left out of the equation, and the doctor sends the account directly to the TAC. The TAC pays what it considers to be reasonable, based on the MBS or other guidelines. There is no formal contract or arrangement between the TAC and the doctor and as a result doctors have had to rely on informal practices and arrangements. The most formal guidance available to doctors comes from occasional communications sent by the TAC to some doctors, or from discussions between AMA Victoria and the TAC.
In the TAC Report you appear to have accepted without question or scrutiny the statements by the authorities that bills went largely unchecked. Contrary to what may have been implied by the TAC, there has been a course of conduct whereby some accounts have been queried, and some have been rejected. Doctors have therefore assumed that if an account has been paid, it has been accepted by TAC as ‘reasonable’. Any meaningful enquiries, which your Office has the power to conduct, would identify many occasions where bills were queried by TAC/VWA.
Intimidation
AMA Victoria has received a number of telephone calls from doctors who were interviewed by your office, particularly in relation to the Bayside Report. These doctors have reported that the method and style by which they were questioned was intimidating, to put it mildly.
I note that a number of doctors were told by your staff that they were required to not disclose to their legal representative the mere fact that they were called in to the Ombudsman. On calling your office, on April 28, 2008, I was advised by a member of your staff that doctors were in breach of your statute if they told anyone, including their lawyer or professional association, that they had been questioned. There is no statutory basis for this assertion, and it is alarming that your Office sought to restrict access by individuals to lawyers.
I am conscious that the protection provided to your Office is such that there is no recourse for those damaged by erroneous assertions made in your reports. You will, therefore, be keen to ensure that in future such errors are not made and also, I hope, to ensure that citizens of this state are not subjected to intimidation such that they are frightened to speak out or avail themselves of their rights.
Yours sincerely
Jane Stephens
CHIEF EXECUTIVE OFFICER
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