Dear Doctors and Health Care Workers
Following on from yesterday’s bulletin, as promised, this is an explainer on the law around the requirement for patients to sign the Bulk Bill voucher, known as the DB4 form.
As an academic scholar of Medicare law, bulk billing strikes at the heart of my doctorate and is something I have written about here https://www.ncbi.nlm.nih.gov/pubmed/31682343, and in “Australian Doctor” here https://www.ausdoc.com.au/workwise/youre-likely-guilty-so-beware-law-trumps-medicare-advice-bulk-bill-vouchers. I have also spoken about it on the RACP Pomegranate Health podcast here https://podcasts.apple.com/gb/podcast/ep56-billing-in-byzantium/id1022747864?i=1000468184705 and have even written a short course on it here https://www.aimactraining.com/shop/product/bulk-billing-medicares-heart-beat.
Bulk billing is Medicare’s heartbeat, yet it is one of the most poorly understood areas of Medicare billing. So, I’m going to be succinct and as clear as I can to see if we can put this issue to bed. I will underline key words and phrases to guide you through.
First the Law
Section 20A(1) of the Health Insurance Act (the Act) https://www.legislation.gov.au/Details/C2020C00063 describes the bulk billing process. Here it is:
“20A Assignment of Medicare benefit
(1) Where a medicare benefit is payable to an eligible person in respect of a professional service rendered to the eligible person or to another eligible person, the first‑mentioned eligible person and the person by whom, or on whose behalf, the professional service is rendered (in this subsection referred to as the practitioner) may enter into an agreement, in accordance with the approved form, under which:
(a) the first‑mentioned eligible person assigns his or her right to the payment of the medicare benefit to the practitioner; and
(b) the practitioner accepts the assignment in full payment of the medical expenses incurred in respect of the professional service by the first‑mentioned eligible person.”
Section 20B(3) of the Act describes the method by which the patient assigns their Medicare benefit. This is done by the patient signing the assignment of benefit form. Here is section 20B(3) with the word ‘signed’ underlined for you.
“(3) A claim referred to in subsection (2) shall not be paid unless the claimant satisfies the Chief Executive Medicare that:
(c) in the case of an agreement under subsection 20A(1) that was signed by each party in the presence of the other—the assignor retained in his or her possession after the agreement was so signed a copy of the agreement;”
TO SUMMARISE: This legal requirement has existed since the scheme was first introduced as Medibank in 1975. Yes, that far back. And it has never changed. So, to be absolutely clear – there has always been a legal requirement for patients to sign bulk bill forms to evidence consent. Always.
What has the High Court said about this?
In the High Court case of Wong v Commonwealth of Australia; Selim v Lele, Tan and Rivett constituting the Professional Services Review Committee No 309  HCA 3 (2 February 2009) the bulk bill consent requirement was described in the following terms:
“Even “bulk billing” is only possible by consent of both parties to that relationship. In these ways, the legislation avoids impermissible forms of “civil conscription” which the grant of power was thought otherwise possibly to entail.”
Why it matters
The patient’s signature on the Medicare assignment form is important for two reasons:
- It is the only active involvement the patient has in a bulk billing transaction, and it therefore provides the only opportunity for the patient to review the services being claimed against her/his Medicare number, and
- It is a critically important safeguard against fraudulent billing (such as billing for fictitious attendances) because it is the only evidence of both the practitioner and patient being in the same place at the same time.
So how on earth did we all get it so wrong for so long?
Because of this content on Medicare’s website.
“Assignment of benefit documents
Assignment of benefit forms no longer need to be stored at the practice if you are using Medicare Online.”
Here’s the link https://www.servicesaustralia.gov.au/organisations/health-professionals/services/medicare/medicare-online-health-professionals (accessed today)
This happened about 10 years ago, when in one fell swoop, the department undid a critically important tenet of the Medicare scheme, rendering it more vulnerable to abuse, because pretty much the entire country stopped asking patients to sign bulk bill forms once Medicare adopted this position.
I mean, why print a piece of paper and have the patient sign it and then be permitted to bin it!
Putting all this in COVID context
The underlying sections of the law have not changed. Section 20A and 20B remain in force.
Further, these important machinery provisions of the Medicare scheme are unlikely to ever be changed because it would require a parliamentary process, which would be unlikely to succeed because it would be just too damaging to the scheme.
So, the department is currently approaching this issue via informal channels, which is appropriate given the current circumstances.
They are sending emails and asking they be widely disseminated to all stakeholders stating their position on the bulk bill signature issue. We receive these emails, and I’m sure many of you do also. The most recent departmental email we copied and pasted for you in Bulletin 9 at point 6 https://synapsemedical.com.au/news/2020/03/26/covid-mbs-items-explainer-and-faqs-no-9-26-march-2020/
In summary, the department has relaxed the above requirements for COVID items only and stated they will not conduct audits of this requirement during this period. They have given 3 options for consent which are: in writing, by email or verbally through the video/phone link. They have also said consent can be provided by another person such as another family member or carer and have suggested a note be made in the medical record that the patient consented to assign their benefit to the practitioner.
This is all very sensible and helpful during this difficult period.
Other important ongoing legal provisions relating to bulk billing
- Asking patients to sign blank bulk bill forms or forms with missing details is illegal (see section 127 of the Act)
- Not giving patients a copy of their signed bulk bill form is an offence, but penalties can be waived if you have a ‘reasonable excuse’ why you didn’t give it to the patient. One might be – the patient didn’t want it.
- Using a Medicare Ezyclaim terminal has a special legal provision, so having the patient (not you) press ‘yes’ on the terminal is a legally valid signature
- If the patient is unable to sign, you can indicate ‘unable to sign’ and notate why. This has always been available.
- The department is bound by the provisions of the Electronic Transactions Act 1999 and so SMS/email signatures are permitted, providing certain criteria are met. We touched on this briefly in bulletin 3, point 5 https://synapsemedical.com.au/news/2020/03/18/covid-mbs-items-explainer-and-faqs-no-3-18-march-2020/.
Take home messages
- Obtain whatever evidence of COVID items bulk billing consent you can and write it down
- Don’t agonise over it. Do your best, be transparent always, and keep good records.
- And remember the department has said you don’t need to retain DB4 vouchers anyway so…
More later this evening
Margaret and the Synapse team