NOMPU SIZIBA: Medical practitioners are said to have had enough with Discovery Health and its practice of clawing back funds long after the legally prescribed limit. They allege that Discovery Health will retain funds owed to medical practitioners, following their having rendered a service to a Discovery member for a completely separate matter, which will not have been dealt with years before. And yet medical schemes are supposed to query claims within 30 to 60 days if they have a problem, which the medical practitioner must then resolve accordingly.
There are also allegations that Discovery Health demands medical practitioners’ notes, which raises the alarm around issues of patient and doctor confidentiality, and worse still medical practitioners could lose their licences if found to have betrayed their Hippocratic oath.
Well, to discuss the merits of Discovery’s claims, I’m joined on the line by Professor Birgit Kuschke. She is a contract and insurance-law specialist academic who’s well versed with the allegations being made around Discovery Health’s conduct. Thank you very much, Birgit, for joining us. What does ‘claw back’ mean, and under what circumstances are medical aid schemes allowed to do so?
BIRGIT KUSCHKE: Good evening, Nompumelelo. Thank you for the opportunity to report on these challenges that medical practitioners are confronting at the moment.
Based on the facts on the table, they are quite simply the following. There are two scenarios and the first is where a medical practitioner has obtained pre-authorisation to deliver certain medical services. We are talking about medical practitioners in general being targeted; not just professionals in the medical fields, but also bio technicians, dieticians, and so forth. So the whole medical scope of the practitioner field is being targeted.
In the first one, the medical practitioner will on behalf of the patient apply for pre-authorisation, do a service delivery that was authorised, claim the fees and be paid. Then after some months – or years in this case – the fund turns around and alleges that the payment was improper, and claims the amount back from the practitioner without having a peer review board, without providing details of the exact patient on who’s file or on who’s behalf this money was overpaid or unduly paid – even though there was a pre-authorisation issued by that medical aid.
The second scenario is where there was a simple service delivery upon the request of the patient. There was a claim submitted on behalf of the patient to the medical aid, and the medical aid accepts the claim, pays it out, and then after the fact, after the 60-day period has lapsed, actually the 31st day period and the 60-day period, thereafter the claim is being brought by the medical aid that payment was undue.
Then the medical funds attempt to try get settlement signed acknowledgements of debt, for global amounts or reasonably round sums. And then they want to claim that money from the practitioner over a period of time. Practitioners who refuse to sign these acknowledgements of debt are then clawed back, meaning that the practitioner cannot get any new fees paid out by the fund for other patients or new patients.
The funds just hold the money back. It’s a form of blackmail that is happening. And the service provider, the medical practitioner, is not getting any further resolution or solving of the matter at this stage. It’s being blocked completely by the medical fund. Money is being withheld and the medical practitioners are closing down.
NOMPU SIZIBA: Let me come in there. Thank you for painting that picture for us, giving us that context. Given what you’ve told us about the timelines and the time within which the medical aid should raise any alarms around the claim, why has this been allowed to continue? It doesn’t sound like this is something that’s just started; it’s something that’s been carrying on for a while. I might add to the listeners that indeed we did ask Discovery Health to come on board and talk to us and tell us their version of events, but unfortunately they were not able to come on board. So could you just answer that question, professor?
BIRGIT KUSCHKE: This has been going on since 2014. The matter has been escalating since 2014. The Health Professions Council of South Africa has condemned the practice, as have many of the professional boards – for example the physiotherapist society, the professional board, has raised concerns about the matter. The matter has never been to court. There are some court actions that have been taken, but have not yet been heard by the court, although we are aware of some practitioners who have issued summons in these matters.
The medical aids are just …… based on the fact that they feel that they are entitled to withhold money, based on a sample of claims or a potential trend that was identified by the algorithm.
What we’ve seen is a sense of shame, that the practitioners who are being clawed back feel that they might be the only ones accused of fraudulent conduct, of theft, and therefore they sign acknowledgement and settlements and do not communicate this with their professional boards or with each other.
And now that it has become more public knowledge, there is a great interest in practitioners joining forces and the boards also addressing this issue. It is very simple. Either you have a claim and you stipulate what it is, you prove that there is a claim view on which patient’s file there was an overpayment or an undue payment, exactly what the amount is, and then you can do a set-off. It is that simple. But to allege that there is a general trend followed by a practice, then alleging that all of that is fraudulent and therefore all monies can be withheld to a certain percentage – that is untenable in law.
NOMPU SIZIBA: Professor, what about the issue of Discovery Health demanding medical practitioners’ notes? How legal is that? Of course we know that these days you have the whole issue of the Popi Act, the Protection of Personal Information Act, which insists that organisations, including small medical practices, safeguard people’s information.
BIRGIT KUSCHKE: …… allegations refer to the patient as a member of the fund. And in terms of the agreement with that fund, the fund is entitled to access to information of the patient’s medical records and facts concerning the patient’s risk profile. And that the patient agrees to when they take up the medical fund product. However, that information must be something that the patient is comfortable with in disclosing to its medical aid. They do not give carte blanche to the medical fund for access to all of their information for evermore once they’ve taken up the product. So the medical aid in the contract does have a right to access of information, but it remains subject to the patient’s consent. In most of the contracts, you will see an express provision that the patient may withdraw his consent or limit the extent of the disclosure that he wants to agree to.
It is for that reason that the practitioners must insist on a current informed consent given by a patient for the disclosure of information, where the patient requests the practitioner to disclose information to the fund.
Then, on the other hand, we have the relationship between the patient and the medical practitioner, and that is regulated heavily by the duty of privilege and confidentiality, of course – that the practitioner must maintain confidentiality at all costs, and compliant with the Popi Act. This then puts the practitioner in the middle of this conundrum. The fund tries to get information from the practitioner based on the fact that it is the agent or mandated to do so by the patient, and then the practitioner has to keep the information confidential on his side of the deal. That is why the advice that one should give to medical practitioners – and this is also being reinforced by the Health Professions Council in some of the announcements – is the current and informed written consent of the patient as to the extent of information that may be disclosed, and not to assume that the fund immediately has a right to a full disclosure of clinical notes that might be of great confidential nature, which do not necessarily affect the risk in the payments due.
NOMPU SIZIBA: Professor, one last thing. What sort of impact has this conduct of clawbacks? What sort of impact has this had on medical practitioners? Just give us a few examples.
BIRGIT KUSCHKE: Well, being personally involved in listening to some of the complaints that are directed in terms of this, is traumatic. It is an absolute crisis in the medical industry. We have practices closing down at a great speed. There’s draconian conduct by the medical funds and the practitioners are not all surviving this. Some of the physiotherapists, for example, are within two weeks of closing down – and we are talking about large groups of physiotherapists that cannot continue doing business because they’re receiving no money. Most of the funds that are funding the current patients they are seeing are of a specific group claiming that an amount is due that has not been proven, that has not been peer-reviewed, and that is has not been properly vested in law. You can’t set off money unless you have a clear valid claim – and that is not apparent from what is happening.
NOMPU SIZIBA: Professor, we’re going to leave it there, but thank you very much for giving us some context on this particular issue. Professor Birgit Kuschke is a contract and insurance law specialist and academic.