RM 2020/067
Answer
Yes.
Context
Doctor A was a rehabilitation physician working in a public hospital day rehabilitation unit. Prior to patients commencing the day rehab program (where they are admitted inpatients on each day they attend), they have an initial outpatient visit to determine their eligibility for the program. The referrals from the GPs always name one of the rehabilitation specialists. Doctor A wanted to know whether Doctor B could see the patient for the initial outpatient assessment even though the referral was to Doctor A.
Relevant Legislative Provisions
Health Insurance Regulations 2018
Other Relevant Materials
The National Health Reform Agreement
Published academic journal article that provides some analysis of the challenges reconciling referral law under the Health Insurance Act and the National Health Reform Agreement: Wading through Molasses: A qualitative examination of the experiences, perceptions, attitudes, and knowledge of Australian medical practitioners regarding medical billing.
Case law
N/A
Departmental Interpretation
servicesaustralia.gov.au (accessed 26 June 2020)
“Referrals for specialist treatment
Patients can be referred to a specialist or consultant physician for treatment of their condition. The referral must include:
- relevant clinical information about the patient’s condition for investigation, opinion, treatment and/or management
- the date of the referral, and
- the signature of the referring practitioner
Referrals don’t need to be made out to a certain specialist or consultant physician.
Referrers should let patients choose where to present the referral, this also applies to electronic referrals.”
Detailed Reasoning
The National Health Reform Agreement (NHRA) is the agreement between the Federal and State Governments relating to the funding of Australian Public Hospitals. It sets out the rules relating to the billing of public outpatients, the requirements relating to private inpatient elections, and various other things.
A key underlying tenet of the NHRA is that Medicare principles will be upheld.
Schedule G of the NHRA contains the ‘Business Rules’ which are machinery provisions that set out how billing and other matters are supposed to work.
Business Rule G19(b) states that for an outpatient referral to be valid, it must be to ‘a named medical specialist who is exercising a right of private practice…’ This directly contradicts the departments’ interpretation of the Health Insurance Regulations (copied above) stating that a referral does not need to be named.
The Health Insurance Regulations set out prescribed particulars for a valid referral and they do not specifically include the name of the specialist. Hence the department’s ability to interpret as it has.
Applying the law to the facts, Medicare principles apply broadly to outpatient referrals under the NHRA. The NHRA states that a referral must be to a named specialist, but does not state that only that specialist can activate the referral and indeed, Medicare specifically provides that a different specialist can activate the referral. This should be a specialist of the same specialty.
Named referrals to specialist outpatient clinics can therefore be activated by any of the specialists in that clinic who are of the same specialty. In this case a referral named to rehabilitation physician A can be activated by rehabilitation physician B.
Examples and other relevant information
Outside of public hospital outpatient departments, following the interpretation on Medicare’s website above, there is no requirement that a specialist activating a referral must work in the same practice as the specialist named on the referral.
For example, a patient can activate a referral named to orthopaedic surgeon A (who has a practice in Sydney) at the practice of a different orthopaedic surgeon 100 kilometres away. A new referral is not required in these circumstances, so please do not send patients back to GPs for unnecessary new referrals.
Who this applies to
All specialists exercising rights of private practice in public hospital outpatient departments.
When this applies
Since August 2011 when significant reforms to public hospital funding were introduced.