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AMA Victoria questions Ombudsman's processes
13 November 2009.Misunderstandings of surgeons' billing practices in the Victorian Ombudsman's Bayside Health and TAC/Worksafe billing reports have raised concerns among the medical profession and beyond about the Ombudsman's processes around accountability.
The reputation of Victorian surgeons was initially put on the line by the Transport Accident Commission (TAC) when allegations were made against Thomas Kossmann's billing practices early in 2008. When the TAC was pressed on Dr Kossmann’s conduct it sought to blame a large group of surgeons for the organisation’s own inadequate billing processes and procedures.
After the Ombudsman’s announcement of an investigation, AMA Victoria offered to assist the Ombudsman to understand the complexities of trauma surgery billing. Unfortunately this offer was not taken up and the Ombudsman drew on information from the TAC and a group of unnamed whistleblowers instead.
The Ombudsman’s subsequent confusion is evident in the reports and AMA Victoria has taken its concerns to the highest level possible.
This is how the events unfolded:
1 July 2008
AMA Victoria offers to explain the complexities of trauma surgery billing to the Ombudsman
In a letter to the Ombudsman, AMA Victoria’s CEO Jane Stephens writes:
We believe that your office should be aware of this material and would be pleased to assist by providing this information if you consider it of value. Please do not hesitate to contact me should you wish to take up this offer.
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13 August 2008
AMA Victoria raises concerns to the TAC about its Self Assessment Audit Program and allegations of rortsThe TAC wrote aggressive letters to a large group of Victorian trauma surgeons implying they had rorted the billing system and requesting they undertake self-audits. AMA Victoria’s CEO Jane Stephens complained to the TAC’s then CEO Paul O’Connor:
The letter is inflammatory and aggressive in its tone and particularly in its references to the law. An implication is that the TAC believes all recipients of the letter are, if not outright criminals, at least contemplating a life of crime.
In our view, doctors are doing their best in an overstretched system to provide high quality care to Victorians.
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2 September 2008
AMA Victoria recommends its members ignore TAC’s Self Assessment Audit Program
AMA Victoria’s solicitor David Goldberg writes:
We have serious concerns about the validity of this ‘self-audit’ process…In these circumstances, AMA Victoria recommends that you either not respond to the TAC letter at all or alternatively respond in the form of a letter.
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3 September 2008
AMA Victoria reiterates concerns to the TAC about its Self Assessment Audit ProgramIn a letter to TAC’s newly appointed CEO Janet Dore, AMA Victoria CEO Jane Stephens writes:
TAC has repeatedly and irresponsibly stated or implied that doctors are engaged in inappropriate billing practice, but has failed to furnish evidence of this or put the allegations to doctors concerned…
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9 September 2008
AMA Victoria writes to Worksafe and TAC Minister Tim Holding with concerns over the TAC’s processesAMA Victoria CEO Jane Stephens writes:
We are concerned that if this matter continues to be handled in the current irregular fashion, doctors will be unwilling to provide services under the Scheme.
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29 October 2008
The Ombudsman’s report on Thomas Kossman releasedWhistleblowers protection Act 2001 Report of an investigation into issues at Bayside Health
5 March 2009
AMA Victoria defends surgeons against TAC’s claims of widespread rorts in The AgeNick McKenzie and Richard Baker write:
The Transport Accident Commission's new hardline approach to paying surgeons is angering doctors and could lead to some refusing to work in the public hospital system, the Australian Medical Association has warned.
AMA Victoria chief executive Jane Stephens yesterday told The Age that recent "on the run" changes to TAC billing processes - as well as the often "offensive" way in which they had been communicated to doctors - was "the last straw for many surgeons".
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29 July 2009
The Ombudsman’s TAC and WorkCover billing report releasedAn investigation into the Transport Accident Commission’s and the Victorian WorkCover Authority’s administrative processes for medical practitioner billing
12 August 2009
AMA Victoria writes to the Ombudsman with concerns over accuracy and accountability of the reportsAMA Victoria CEO Jane Stephens writes:
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) ).
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14 August 2009
AMA Victoria publicly responds to the Ombudsman’s TAC and WorkCover billing report in an Australian Financial Review letter to the editorAMA Victoria CEO Jane Stephens writes:
The report confirms there is no evidence of fraudulent billing practice by doctors. What the report does highlight is that TAC and Worksafe have inefficient billing and audit systems. TAC in particular has tried over two years to shift the blame to hypothetical ‘dishonest doctors’, but has not prosecuted a single person, despite a number of investigations…The Ombudsman has taken at face value the authorities view that a failure to bill according to Medicare guidelines constitutes dishonest practice, which is simply wrong.
25 August 2009
The Ombudsman replies to AMA Victoria’s letter of concernThe Ombudsman Mr George Brouwer writes:
It is not my function, nor is it appropriate for me to debate my findings with any organisation including one, the members of which seek particular conclusions that I consider unsupportable.
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7 September 2009
AMA Victoria writes to the Premier about the Ombudsman’s unsatisfactory response to the association’s concernsAMA Victoria CEO Jane Stephens writes:
AMA Victoria is of the view that the Ombudsman's actions are contrary to the intentions of the Parliament. Our letter did not seek to ‘debate’ with the Ombudsman; rather, we sought explanation from him, in accordance with his stated functions of responsiveness, integrity, impartiality, accountability and commitment to human rights.
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23 September 2009
AMA Victoria raises concerns about the Ombudsman’s accountability with the Law Institute of Victoria (LIV)AMA Victoria CEO Jane Stephens writes:
In 2007, as a result of advice from two whistleblowers about the work practices of Dr Thomas Kossmann, the Victorian Ombudsman launched an investigation under the Whistleblowers’ Protection Act 2001 . To enable the Ombudsman to name Dr Kossmann in the Report, amendments to the Act were made before the report was released allowing publication of the name of a person against whom a protected disclosure was made. After beginning this investigation the Ombudsman on his own motion undertook a separate investigation, under the Ombudsman Act 1973 , into the medical billing processes of the Transport Accident Commission and the WorkCover Authority.
AMA Victoria has a number of concerns about the processes around the two reports.
First, we are concerned that the two Acts are not congruent in their processes and accord different levels of protection to those under investigation. Related to this is our concern about the hasty amendment to the Whistleblowers Protection Act to allow the naming of Dr Kossmann.
Second, we are concerned that the Bayside Health Investigation and Report failed to accord procedural fairness to Dr Kossmann and at least one other person.
Third, advice from our members as to the methods used in the Bayside investigation, and our own communications with the Ombudsman, provide evidence of misinterpretation by the Ombudsman of his own Act, specifically in relation to the rights of witnesses. Further, there are indications that bias against the AMA and/or its members meant the Ombudsman failed to inform himself adequately in relation to the TAC billing system. As a result, both reports are open to question in a number of respects.
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4 October 2009
Has our guard dog got off the leash? – The Ombudsman’s powers are scrutinised in The Sunday AgeInvestigative reporter Michael Bachelard writes:
The Kossmann case then prompted a second inquiry by the Ombudsman, into medical billing by surgeons generally. He reported, sensationally, that 27 surgeons might be guilty of fraud, and recommended a further review of billing by WorkSafe and the TAC. WorkSafe confirmed last week that it had audited 16 surgeons considered "very high risk", clawing back just $37,000 in overpayments — less than $2300 each, on average.
The TAC will not release figures, but sources say they are similarly low. No one other than Dr Kossmann has been referred to police. On one view, the cost of the investigation itself has outweighed the money recovered.
The problem for the Ombudsman is that the structure of the medical billing system does not assist his contention that it was being rorted. The law says only that TAC and WorkSafe must pay surgeons for their "reasonable medical expenses". The Commonwealth Medicare Benefits Schedule acts only as a guide, and for a long time the amounts paid to surgeons have been well over and above that rate, with many variations negotiated. But Mr Brouwer's findings of fraud were based on the fact that surgeons' billing varied from the much-ignored schedule.
The Australian Medical Association and the Australian Society of Orthopaedic Surgeons are furious. AMA chief executive Jane Stephens says Mr Brouwer repeatedly ignored her attempts to explain the system, and then got his conclusions wrong. "The system was looked at in a very superficial and incorrect manner," she said. "They've slandered a whole slab of the profession using the wrong information."
18 October 2009
Lawyers seek a leash on state watchdog – The Sunday AgeThe Law Institute of Victoria says the powers of the Ombudsman run the risk of eroding the law and should be reviewed by an independent judiciary
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24 November 2009
Brumby announces review of state watchdogs - The Age
State political reporter David Rood writes:
Mr Brumby has called in a former head of Victoria's public service, Elizabeth Proust, to investigate the performance of key integrity bodies including the Office of Police Integrity, the Ombudsman and the Auditor-General.
25 November
Ombudsman could face new controls – The Age
Premier John Brumby says:
There may well be an argument saying that the Parliament should exercise greater interest or greater oversight in relation to the work of the Ombudsman.
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