BB 2020/061
Answer
Yes
Context
Whether patients need to sign something when being bulk billed causes a great deal of confusion industry wide. The confusion is understandable given Medicare itself advises that you do not need to retain signed bulk bill vouchers. But what does that actually mean and what does the law say?
Relevant legislative provisions
Health Insurance Act 1973, Section 20A
Health Insurance Act 1973, Section 20B(3)
Health Insurance Act 1973, Section 127
Health Insurance Regulations 2018, Reg 63(2)(b)
Electronic Transactions Act 1999
Other relevant materials
1. Short bulk bill explainer article published in Australian Doctor:
The Law Trumps Medicare Advice on Bulk Bill Vouchers: https://www.ausdoc.com.au/workwise/youre-likely-guilty-so-beware-law-trumps-medicare-advice-bulk-bill-vouchers
2. Academic journal article published in the Journal of Law and Medicine, with detailed analysis of bulk billing arrangements:
Medicare Billing Law and Practice: Complex, Incomprehensible and Beginning to Unravel. https://www.ncbi.nlm.nih.gov/pubmed/31682343
Case law
Wong v Commonwealth of Australia; Selim v Lele, Tan and Rivett constituting the Professional Services Review Committee No 309 [2009] HCA 3 (2 February 2009)
Departmental interpretation
https://www.servicesaustralia.gov.au/organisations/health-professionals/services/medicare/medicare-online-health-professionals (accessed 6 June 2020)
“Assignment of benefit documents
Assignment of benefit forms no longer need to be stored at the practice if you are using Medicare Online...
The legislative requirements for the assignment of benefit are:
- an agreement must be made between the patient (assignor) and you for the assignment of benefit
- the agreement is evidenced through the use of the assignment of benefit form
- the patient is required to sign the form
- a copy of the agreement must be provided to the patient.”
Detailed reasoning
Section 20A(1) of the Health Insurance Act (the Act) describes the bulk billing process as follows (my underlining):
“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.”
There are two parties described in Section 20A. The first is the ‘eligible person’ which is the patient, and the second is the ‘practitioner’ which may be a doctor or any health provider able to claim using the medicare scheme.
Section 20A states that the patient holds the legal right to the medicare benefit, not the practitioner. A simple two step process (known as bulk billing) is set out, whereby the patient assigns their right to a medicare benefit to the practitioner, and the practitioner accepts it in full payment for the service provided.
Implicit in this arrangement is the concept of consent.
In deliberations around the operation of Section 20A, Kirby J, in the High Court case of Wong v Commonwealth of Australia said:
“Even “bulk billing” is only possible by consent of both parties to that relationship.”
The method of consent is described in Section 20B(3) of the Act. This is where the patient’s signature comes into play. The Act states that the patient has to sign the assignment of benefit form to evidence their consent to being bulk billed.
Here is section 20B(3) with the word ‘signed’ underlined.
“(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;”
The content on the Department’s website (above, under the heading Departmental Interpretation) is likely the cause of widespread non-compliance with the signature requirement, because it is confusing.
However, it is important to understand that the department saying you do not have to keep the signed form, does not mean the patient does not have to sign it.
The law is clear – the patient has to sign the assignment of benefit form to evidence consent, and the fact that the department permits putting your copy of the signed form in the bin, in no way negates the provisions of the Act.
From the government perspective, continuance of the signature requirement is good policy, designed to protect the integrity of public money, in two ways:
- 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 and query the services being claimed against her/his Medicare number, and
- It is a critically important safeguard against fraudulent billing (such as billing for fictitious services) because it is the only evidence of both the practitioner and patient being in the same place at the same time.
From the practitioner perspective, retaining copies of signed bulk bill vouchers is a good idea, because it evidences practitioner presence and patient consent. Entries in clinical records cannot do this to the same extent. For example, an unethical practitioner could easily make an entry in a clinical record for an existing patient, without having provided a service, and the patient would likely never know that a claim had been bulk billed under their Medicare card.
The department’s position is unfortunate, however, it is there in black and white on their website. So, if you are bulk billing electronically, the department has made clear, the decision to retain or bin signed bulk bill vouchers is a matter for you.
Section 20A and 20B are two of the key machinery provisions of the Act, underpinning the operation of the Medicare scheme. Think of them like pulmonary veins that deliver oxygenated blood to the heart. These sections deliver approved payments of taxpayer’s money to your pocket. Removing them from the scheme would obliterate patient consent and render the scheme more vulnerable to abuse.
Examples and other relevant information
Other important legal provisions relating to bulk billing that you should be aware of.
- Asking patients to sign blank bulk bill forms or forms with missing details is illegal per 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’ as to why you didn’t give it to the patient. This is also in Section 127.
- Using a Medicare Easyclaim terminal has a special legal provision, so having the patient (not you) press ‘yes or ‘OK’ on the terminal is a legally valid signature, per regulation 63(2)(b).
- If the patient is unable to sign, you can indicate ‘unable to sign’ and notate why. This has always been an available option on the prescribed form (the DB4).
- Medicare is a fee-for-service scheme meaning you must obtain the patient’s consent for each separate service. It is not permissible to obtain a blanket ongoing consent to bulk bill, such as for a course of chemotherapy.
- 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. This will help you to understand how to manage the bulk bill signature requirement in situations where the patient is not physically in the same place as the practitioner when the service is provided, such as case conferences and telehealth. See answer BB2020/062.
- Bulk billing is only permissible AFTER a service has been provided and fees have been incurred in respect of a professional service. Therefore, do not ever ask a patient to sign a bulk bill voucher (even if all data elements have been completed) before a service has been provided. Patients cannot be asked to sign for a service they have not received.
Who this applies to
Everyone when bulk billing.
When this applies
Always. This has been the law since Medibank (later Medicare) began.