1st May 2010 New Medicare Fees and Audits - Best Practice News Alert 170

CURRENT CIRCULATION: DATE: ISSUE NO:

7780 st 21 April, 2010 170

Welcome to Health & Life’s free email newsletter service. Tell a friend that we would be happy to add their email address to the distribution list. This service is to provide Health and Life’s clients and those who attended our presentations with up to date information on key financial and practice management issues that may affect your practice. Please do not use this as a substitute to seeking professional advice.

Writer in charge: Mr David Dahm BA.Acc, FCPA, FTIA, Ffin, FAAPM, GLFG.

1st May 2010 Medicare Fee Increases & Doctor Patient Relationship Interference is Illegal Stop Press! st

Remember 1 May 2010 Medicare Changes Don’t forget the new Medicare item numbers, fee increases and changes come into st effect on 1 May 2010.

See http://www.health.gov.au/internet/main/publishing.nsf/Content/mbsprimarycare-changesto-medicare-primary-care-items-for-gps for the new changes and make sure you tell your staff and update your computer and clinical systems to take advantage of the new item number interpretations and reconsider your existing arrangements.

Introduction – Defensive Medicine v Medicare Audits and their Impact After a serious work related car accident in 1985 and 9 operations over a four year period, I am a passionate patient advocate which is why I started Health and Life (not just because I come from a family of doctors!). I am increasingly concerned about the doctor patient relationship being illegally interfered with by third parties.

In relation to Medicare Audits, this edition will reveal for the first time that it is illegal for the Government to interfere with the doctor patient relationship. I am happy to stand corrected if I am wrong. We won last time when we challenged the Government on a Constitutional issue. This uncertainty is causing unintended consequences such as workforce shortages, succession planning problems including underinvestment in practice infrastructure, lack of patient access and significant patient gaps. We examine these issues and simple and cheaper alternative solutions.

You may find that my comments a little controversial but like most Australians, I do get concerned when tax payers’ money is poorly spent and at worst when great opportunities for healthcare reform are lost based on popularism and political ideology. This encourages the profession into early retirement so I feel I need to say something.

Like the insulation scandal, we are going to have a new super tsunami scandal called healthcare reform hit our shores making the $2 billion insulation program mistake look like chump change. We don’t condone over servicing or encourage reckless practitioner behavior however, the recently highly publicised Medicare CT scan over servicing audits and the under servicing malpractice law suits is putting doctors between a rock and a hard place and leaving them confused as to when defensive medicine becomes over servicing. We are concerned

about any unintended consequences that may arise from a health reform and more importantly its long term sustainability and whether it is good public policy. The fact that it is illegal for the Government to interfere with the doctor patient relationship totally undermines hospital/primary care reform and throws into doubt how a local hospital network board, the General Practice Network can effectively achieve the Government’s outcomes. Unless there is a national referendum, can this change. Given the country’s track record of failed referendums, it does not look likely that Australians will vote in favour of the Government taking over their personal healthcare over their local doctor.

Therefore, the ideas that sound good in theory are impossible to implement in practice. Most importantly there is a need for change within the existing system. Real and effective differences can be made with some minor tinkering and a change in the patient/provider attitude. We will briefly examine this issue and what your practice needs to do. Don’t hang your hat on any real reform and most importantly, encouraging more third party interference is not what the doctor or patient ordered, wants or needs. Do nothing about this issue by not making patients aware and this only encourages the disinterested bean counters into your consulting room.

CONTENTS 1.0 The Problem – Defensive Medicine v Medicare Audits 2.0 Doctor Patient Relationship and the Law – The Government Can’t Legally Interfere 3.0 Why are the Medicare Rules so Unclear? A Legal Impediment?

4.0 Poor Public Policy – Nothing Will Change 5.0 The Solution – Getting Back to Basics 1. A Strong Business Case For Super Clinic Thinking 2. Health Literacy 3. Financial Literacy 4. Mutual Ownership 5. The Role of Government?

6.0 Why Bother?

7.0 2010 Seminar Presentations

1st May 2010 Medicare Fee Increases & Doctor Patient Relationship Interference is Illegal 1.0 The Problem – Defensive Medicine v Medicare Audits My key concern is the undermining of the doctor patient relationship. Bureaucrats are using the “fact” that doctors are over servicing and cheating taxpayers to the tune of under $1.3 million p.a. when the profession collectively bills $14 billion p.a. as a seriously good reason to launch a major Medicare audit blitz to prosecute doctors for breaching non-transparent clinical protocols. Their approach is carrot stick and fails to acknowledge their own system failures including a failure to develop and publish clear Medicare rules that have statutory backing.

The latest national Professional Services Annual Report http://www.psr.gov.au/docs/publications/html08-09/performance.html seeks to justify new sledge hammer powers of investigation see http://parlinfo.aph.gov.au/parlInfo/download/legislation/ems/r4209_ems_97e01512-198f44d5-9d66-a072e351668e/upload_word/334063.doc;fileType%3Dapplication%2Fmsword into patient records and billing practices forcing doctors to under service on one hand while there is pressure to practice defensive medicine due to malpractice claims on the other. This is a vexed position. So in order to clarify a practice’s/doctor’s position, one can take some comfort from our findings and I am happy to stand corrected.

2.0 Doctor Patient Relationship and the Law – The Government Can’t Legally Interfere The simple answer is neither Medicare nor the Parliament can interfere with the doctor patient relationship. The leading High Court case is detailed below.

GENERAL PRACTITIONERS SOCIETY V COMMONWEALTH High Court of Australia 1980 “Gibbs J delivered the leading judgment. His Honour reiterated the principle that there is no explicit head of power under which the Federal Parliament can regulate private medical practice, in the sense of the physician–patient relationship.”

Source: http://www3.austlii.edu.au/au/journals/MULR/1999/14.html#Heading46 Section 51 (xxiiiA) of the Commonwealth Constitution was inserted following the successful referendum of 1946. The Constitution only allows for the Commonwealth to pay and make laws in relation to paying doctors for their medical services. This power supports the Commonwealth operating the Medicare program, but not the entire Australian Health System.

There is overwhelming public evidence and admission by the PSR that they do in fact interfere with the treatment of patients. On what grounds do they have to dictate how many CT scans can be ordered? Have they examined the patient? Do they take professional responsibility if something goes wrong? Is Medicare no longer an insurer but taking on a new role of a primary care provider? If so, they should be conjoined in a malpractice action. Are their roles and responsibilities becoming increasingly blurred and on what legal or professional basis?

So you can see, the Government is treading on thin ice if it continues to dictate clinical protocols and then use this as the basis of any prosecution. The bottom line is they can’t which is probably why there is such a low prosecution rate unless you admitted you were guilty and waived your right to self incrimination (which incidentally is in the new Bill so if passed, you can’t use this as a defence anymore).To our knowledge, no lawyer has used this

simple defence but then Medicare has never engaged in such unprecedented audit activity to warrant such a defence to be tested.

3.0 Why are the Medicare Rules so Unclear? A Legal Impediment?

I would not be so anti Medicare Australia if they were more forthcoming in promulgating and actively educating providers on some clear written procedures and clinical protocols but the reality is legally they can’t in relation to the clinical stuff. This is why you can never get a straight answer from Medicare in relation to interpreting the rules. Of greater concern is when it comes to ensuring you document the correct information in your patient records which must be done correctly in order to avoid prosecution. Your notes must be clear however, this is subjective too because Medicare say this is also at the doctor’s discretion. You might be wondering how do they really prosecute practitioners – so do I. This is important when you st read the new 1 May 2010 item B, C & D record keeping criteria. There is no clear explanation of what is the difference between maintaining a patient history, a detailed history or an exhaustive history but you will be prosecuted if you don’t keep contemporaneous notes at the appropriate level because it is at the doctors discretion. See http://www.health.gov.au/internet/main/publishing.nsf/Content/mbsprimarycare-changes-tomedicare-primary-care-items-for-gps.

To add insult to injury, Medicare’s position is the doctor cannot charge their time for writing up the notes when the patient has gone. The provider must continue to solicit information from the patient until the end of the consult. This is hard to do in the real world without patients feeling you are obsessed with your computer during a consult. The double edge sword is if you don’t keep good notes you will fail the audit of your patient records and be prosecuted for inappropriate practice. This is unfair as lawyers and accountants can charge for preparing file notes and from a medico-legal point of view it would be crazy not to keep good notes.

Medicare Australia wants you to maintain good notes but is not prepared to pay for them. So the answer is to stop bulk billing and tell the patient why and also ask them to tell their local member of parliament. What else can you do? Free medicine is not sustainable and politicians are creating unrealistic consumer expectations which are only causing more angst in the consulting room between the doctor and patient.

4.0 Poor Public Policy – Nothing Will Change My real concern is these new healthcare reforms and poorly drafted Medicare compliance bills will only cause more “Red Tape” anxiety and fuel early retirement decisions when we already have a medical workforce shortage. Most importantly, doctors are being forced to second guess what Medicare thinks, short changing their patients on the care they need and therefore all the new healthcare prevention services we need won’t be implemented due to the unnecessary administrative uncertainty. The worst part of the new rules see http://parlinfo.aph.gov.au/parlInfo/download/legislation/ems/r4209_ems_97e01512-198f-44d59d66-a072e351668e/upload_word/334063.doc;fileType%3Dapplication%2Fmsword is that doctors cannot bill the patient if they are found to engage in inappropriate practice (especially when there are currently none and potentially will never be any clear rules).

Medicare can also demand repayment of Medicare income up to 2 years down the track after the doctor has paid the practice overheads and taxes on this income. You are also presumed guilty and need to prove your innocence within a month.

The new laws would prohibit the doctor charging the patient even if the patient was satisfied with the service. A lame excuse used is because the patient does not understand what a doctor does, so it would not be fair to charge the patient. If this were the case, the same should apply to legal and accounting services. This does not and would not ever happen otherwise practices would go broke overnight. Would you work for your boss if it took 2 years to clear your wages cheque?

The command and control nature of these reforms is creating a real crisis of confidence in the entire industry. Why should you invest in new practice infrastructure? If the Government continues its unilateral position it will be a significant mistake that the tax payer

will pick up the tab for in the decades to come. For every $1 we delay in spending on healthcare prevention it costs us an extra $7 in acute public hospital care.

Why would doctors engage in these new practice items numbers being promoted by the government only to be extensively audited at a later date? The recent number of audits done on practices that use practice nurses for their enhanced primary care services is a case in point. If this was such a high risk area, why was this issue and all the other high risk activities not published in their public rulings via the Administrative Position Statements service see http://www.medicareaustralia.gov.au/provider/business/aps/aps-final.jsp? This is supposed to be Medicare’s Interpretive Rulings service system similar to a tax ruling on these and many other issues that concern the PSR. At best, a Constitutional challenge could knock back any real reform for another decade. We cannot afford this and at worst, the lost social contact the medical profession has with its patients and the community in relation to its overzealous position on Medicare Audits is causing unprecedented damage on the good guys, where every doctor now feels they are breaking the law and they do not want to. This lack of trust will damage any real chance for critical healthcare reform forever and patients and tax payers will pay the ultimate price.

5.0 The Solution – Getting Back to Basics 1. A Strong Business Case for Super Clinic Thinking. There is a strong business case for Super Clinic thinking led by general practice along the lines that I have detailed below. If the Government wants to make a real impact, why not run fully working trials and get this right instead of rolling out expensive and untested models of care? Barrack Obama’s Healthcare Innovation Task Force that will run market/government based clinical and commercial sustainable service based models of care with a view to national implementation is a great starting point.

2. Health Literacy. 80% of a practice’s time should be spent educating and empowering patients not to come back for unnecessary services. This is the true role of a professional and clinical service models need to reflect this as it is more sustainable. Healthcare needs to be rationalised to those that need it, not those that want it. You should let patients know this. Lifestyle diseases like smoking and alcoholism should attract a speeding ticket “gap payment” system and used as early warning advice when discussing with patients. I once confronted an entire town where we created a monopoly of GP providers. The mayor complained and I had to explain to the community as to why we were stopping bulk billing – it was a good turnout. I pointed to some chocolate muffins on the table at the meeting. I asked everyone did they like them and they unanimously said yes with glee. I asked why are you more likely to spend $5 on a chocolate muffin that can kill you than spending $5 to see your GP who could save your life? They all agreed and appreciated the reminder. It’s about confronting patients about their priorities and the consequences.

You build instant trust when you’re honest. Only then can you exact real change.

3. Financial Literacy. Providers need to appreciate that to stretch the healthcare dollar further (and we don’t need more money in the healthcare system), providers and healthcare organisations need to understand what things costs. Where there is wastage and duplication; reallocate clinical services to those in need and where it is most needed. This is the only way to ensure patients get what they want when they need it. Practice managers can play an important role in becoming more efficient in both their clinical and business systems. This requires a change in attitude by the owner providers to provide leadership and to delegate this responsibly. You can’t control your destiny unless you own, understand and take responsibility for your home.

4. Mutual Ownership. Be honest, meet me half way or I can’t help you (get out the way). The doctor and the patient (carer if incapacitated) relationship must be one of mutual responsibility as a minimum so you don’t make a rod for your back. All healthcare professionals must take ownership of their profession and not

commercialise it and treat it like a commodity with indifference and nor should patients. A profession is one where the patient’s interest must come first and not your own. It is not a protectionist outcome. It is where one seeks to belong to like minded peers who are willing to comply with mutually agreed professional standards and ethics that are in the community’s interest. To the contrary, a business is where profits come first in the pursuit of one’s self interest. Real professionals are governed by strong ethical professional standards and their peers enforce them to prevent the adverse consequences of owning a business interfere with the doctor/adviser patient/client relationship. The Certified Practicing Accountants “CPA” membership use a strict standards and ethics committee who names and shames poor performing members and the members pay for this. This cannot be achieved if third party corporates or governments are expected to play a significant and intimate role in the consulting room or with the profession. The only effective and most efficient way you can fix the health system is by encouraging strong provider and patient engagement with each other and common ownership of the problem. This is an attitude not a physical thing or process. The right attitude is 80% of the solution, everything else comes second. This is the most important part in solving the healthcare problem.

Playing the blame game and apathy is holding back any sustainable and socially responsible reform.

5. The Role of Government? Facilitate the profession in establishing clear national standards and clinical protocols that Medicare can adopt. It is not the role of the Government to do this task but to facilitate and support a process if they want to keep within the rules and community expectation. It is the role of the professions to ensure these standards are being met and the Government can assist at a local or national level with education programs both at the community and providers. The Government needs to let go of devising ways of building, financing and controlling the fire station and its staff and focus more on getting the staff educating the community on how to prevent fires. This will provide the best return for the patients and the tax payer.

6.0 Why Bother?

Some of you may have worked out that I only write when I get annoyed about something. I normally don’t like to push my credentials however, some might be asking on what authority and experience do I have to make my comments and why I bother. I have been in the industry for 19 years and have heard all the same arguments going around in circles. It has been a long time and it’s time to step up the debate. For the record my credentials are detailed below.

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1991 Set a personal key objective to make a real difference by ensuring we have a sustainable and socially responsible healthcare system;

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1992 Ex KPMG auditor and owner of Health and Life; a National Accounting, Tax and Practice Management consulting firm that has operated for 19 years and serviced over 1,200 clients nationally;

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Since 1992, delivered 800 national seminar programs endorsed by national and local healthcare associations Australia wide;

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Since 1999, served 10 years on State and the National Board of the Australian Association of Practice Managers a multi-disciplinary primary and tertiary healthcare organization. See www.aapm.org.au;

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Australia wide involved in public hospitals (including privatised), specialists and GP practices including establishing public hospital privatized specialist, emergency department and after hour services;

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2007 provided advice in relation to service trust rulings at the request of the Federal AMA to the ATO;

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Since 1993, National Practice Management expert and commentator for Medical Observer www.medicalobserver.com.au and other media organisations including Australian Doctor, The Australian, Financial Review and BRW.

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Australian General Practice Accreditation surveyor for 10 years;

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2004 designed and introduced to Australia the Super Clinic Concept to include integrated public hospital outreach services, day surgery, onsite teaching and mentoring subsidised by non-medical rents such as shopping centre tenants via noncorporate GP medical co-located monopolies. This would encourage viable and integrated co-location of specialist and allied health services. The Community, Health and Lifestyle Centres would focus on community lifestyle and healthcare prevention activities and provide sub acute decentralised recovery facilities for patients including cross subsidising and supporting smaller rural/remote practices. Only the local providers and the community would own the practice building infrastructure;

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2006 provided State and Public Hospital in SA and Vic advice on cost shifting and taxation implications in the public hospital system;

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2008 National Primary Care Collaborative National Financial Analyst into improving patient access and sustainability full report recommendations were accepted;

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2008 Forced the Federal Government to reverse their anti-kick back pathology laws by using the Australian Constitution to successfully argue governments are not allowed to price fix diagnostic rents;

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2009 on behalf of the Australian Association of Practice Managers National represented the association on the national “Lifescripts” program;

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2008 approached by the Australian Tax Office Special Counsel to provide expert opinion for the Australian Tax Office in relation to a significant matter in the healthcare industry;

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2008 assisted the Geraldton Medical Group to become Australia’s first BRW Fastest 100 primary care practice based on the Super Clinic concept. Kevin Rudd and Nicola Roxon (who did attend) expressed an interest in attending the clinic in 2009;

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Support more teaching of providers and healthcare staff;

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2010 Concerned practice managers and providers need significant up skilling to deal with the new increasing complex healthcare environment. Currently the education chair for a national non for profit organisation to develop a new national education program for healthcare managers that focuses on future proofing practices to be integrated with existing healthcare and medical schools around Australia.

If you feel strongly about these issues forward this newsletter to your healthcare organization, local media outlet or MP.

7.0 2010 Seminar Presentations Below is a summary of dates for our seminars across Australia. At each seminar there is an opportunity to meet with us face to face to discuss any practice issues you may have at no obligation. Email us at pa@healthandlife.com.au to pre-book an appointment.

If you would like your local medical organisation to host a seminar, forward them this email with our seminar details and copy us at pa@healthandlife.com.au into your email. We will contact them directly about presenting in your local area. We thank you in advance for your interest and support. You would be surprised how it only takes one person to make things happen!

New programs confirmed are detailed below.

Please contact the organisations directly for details about the course program, content and costs. More seminars will be announced during the year.

Host Where 1.

and

AAPM - NSW

Date th

Friday 14 May 2010

Contact Name

Contact Details

Debra Smith

nsw@aapm.org.au

Sydney

www.aapm.org.au

Topics The NEW Fair Work Act, the Medical, Nurses and Health Professionals and Support Staff Awards Still confused?

Due to public demand. This is a practical and definitive presentation on The Good, Bad and Ugly of the Awards and opportunities.

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