59 My Battle to Make the Health Insurers Obey the Law Part 12: 16 October 2024

Margaret and I attended a cancer patients’ support meeting on Sunday 6 March.

Everyone who attended the meeting had similar experiences in their dealings with their health insurers.  A very common story was that the insurers asked for additional information and/ or simply ignored the claims.  Getting any information out of the insurers on why the claims for Lift treatments were continuously ignored, was virtually impossible.

Most of those at the meeting had lodged formal complaints with the Ombudsman.  Not one person had had a happy experience when they had lodged complaints with the Ombudsman.  The ombudsman always dismissed complaints and usually did so on obviously spurious grounds.

 

·       If the financial loss had been carried by Lift Cancer Services and not by the patient – in cases where the patient had not paid in full for the service but only paid the gap fee – the Ombudsman dismissed the complaint on the ground that the patient had suffered no financial loss. ·     The insurers sometimes paid an “ex gratia” payment for the amount that should have been paid as at the date of the claim.  In these cases, the Ombudsman dismissed the complaint and said it would not investigate any future complaints.

Patients at the meeting held health insurance with HCF, NIB and Teachers’ Health.  The actions described by members of all three funds were so similar that I believe those actions were coordinated. 

I also got the impression at the meeting that the insurers were acting on legal advice which had been given to all three insurers by the same legal firm.  I got this impression because of the similarity in how the three insurers handled claims and complaints.  If this impression was correct – and I have no doubt it was a correct impression – the legal firm in question must have been acting in the knowledge that it was breaking the basic rule of legal practice; that basic rule is that a lawyer must always be honest and NEVER help a client break the law.  I believe the legal advisers for HCF, NIB and Teachers’ Health knew their clients were breaking the law and advising their clients on strategies to minimize the likelihood that their clients would suffer any adverse consequences as a result of their unlawful activities.  

It should not need to be said, but I will say it anyway.

If a lawyer suspects that a client is breaking the law, the duty of the lawyer is to tell the client it is breaking the law and that the unlawful conduct must stop.  If a lawyer knows that a client is breaking the law and then advises the client on how to minimize the legal consequences of the client continuing to break the law into the future, this is grossly improper and unethical.  It is probably also a crime.

Those present at the meeting had common experiences of responses from their health insurers such as:

·       Being told no claim had been made. ·       Being told the insurer would not pay for outpatient service delivered. ·    Being told if the patient provided further unidentified information, the insurer would reconsider.  And ·       Being told when the patient attempted to personally lodge a claim at a physical office of the insurer, that the claim could not be submitted for assessment because the computer system would not permit it.

 

One patient related an experience that particularly concerned me. 

She had logged into her official HCF on-line claims’ history record.  She discovered that the official claims history record contained no record of any of the claims for her treatments by Lift Cancer Care Services,

One patient had complained to Nicolle Flint, member of the House of Representatives in the Australian Parliament.  Nicolle Flint had apparently written a letter to Greg Hunt, Health Minister.  Greg Hunt had sent a response back, but did NOTHING to intervene.  Supposedly, Greg Hunt’s office was investigating this issue further – but absolutely nothing was done by the Minister.

One patient who had complained to the Ombudsman was told that although the Ombudsman had received a formal response from HCF, the Ombudsman was unable to estimate how long it would take for the Ombudsman to ‘carefully consider’ the matter.

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 What are the requirements of Clause 7 of “Part 2 Type B procedures” in Schedule 3 of the 2011 Rules?  Clause 7 says minimum hospital accommodation benefits must be paid by the health insurers if the certificate Type C certificate provided by the medical practitioner states that:

Because of a medical condition specified in the certificate, “it would be contrary to accepted medical practice to provide the procedure to the patient unless the patient is given hospital treatment at the hospital for a period that does not include part of an overnight stay.” or Because of special circumstances specified in the certificate, “it would be contrary to accepted medical practice to provide the procedure to the patient unless the patient is given hospital treatment at the hospital for a period that does not include part of an overnight stay.”

These requirements for a Type C certificate requiring the health insurer to pay minimum insurance benefits are very straightforward.  The certificate from the treating medical practitioner must state in a certificate that accepted medical practice would be breached if treatment were to be given outside of a hospital by reason of:

• A named medical condition; or
• Special circumstances set out in the certificate

The certificate need not nominate both a medical condition and also nominate special circumstances.  If there is a named medical condition, that is sufficient.  If there are special circumstances identified in the certificate, that is also sufficient.  Either the named medical condition or the identification of special circumstances satisfies the legal requirements.

For the hospital benefit to be payable as a result of the Type C certificate, the certificate does not need to identify the type of treatment to be given in the hospital.  The treatment is legally irrelevant.  From a legal perspective, if the Certificate satisfies the requirements of clause 7, the health insurer must pay the hospital stipulated in the legislation.

It was clear to me after the meeting that the health insurers were simply ignoring the law and that they were falsifying the patients’ claims history records to try and provide themselves with some sort of flimsy legal justification for their actions.  The false claims’ history records were being used by the health insurers to assert that they had not illegally rejected any claims because no claims had ever been made.