Concern over clawback by medical aid schemes

The Professional Board for Physiotherapy, Podiatry and Biokinetics (PPB) under the ambit of the Health Professions Council of South Africa (HPCSA) is concerned that certain medical aid schemes are alleged to be behaving and or conducting themselves in an unethical manner towards registered practitioners, in particular, Physiotherapists in private practice.

The main issues of concern are:

The unethical practice as referred above includes what is termed “clawback”. A clawback is an act of retrieving money already paid out to practitioners.

The PPB’s concern with Section 59 (3) (b) as presented in paragraph 2.1 is that medical aid schemes may only deduct such amounts if there has been: theft, fraud, negligence or misconduct. As far as theft and fraud are concerned, we are of the view that an accused person should be found guilty of such offences by a court of law in terms of the Criminal Procedure Act 51 of 1977.

The medical aid schemes engaging in clawbacks are said to be relying on Section 59 (3) of the Medical Schemes Act 131 of 1998 which provides that: “Notwithstanding anything to the contrary contained in any other law a medical scheme may, in the case of— (a) any amount which has been paid bona fide in accordance with the provisions of this Act to which a member or a supplier of health service is not entitled to; or (b) any loss which has been sustained by the medical scheme through theft, fraud, negligence or any misconduct which comes to the notice of the medical scheme, deduct such amount from any benefit payable to such a member or supplier of health service”.

The PPB Board must also emphasise that we do not in any way whatsoever condone acts of criminality by registered practitioners.

The PPB Board believes that should the medical aid schemes suspect any act of criminality such as theft or fraud, they should report it to the necessary authorities to investigate and prosecute.

In addition, Section 34 of the Prevention and Combating of Corrupt Activities Act 12 of 2004 provides that: (1) Any person who holds a position of authority and who knows or ought reasonably to have known or suspected that any other person has committed— (a) an offence under Part 1, 2,3 or 4, or section 20 or 21 (in so far as it relates to the aforementioned offences) of Chapter 2; or (b) the offence of theft, fraud, extortion, forgery or uttering a forged document, involving an amount of R100 000 or more, must report such knowledge or suspicion or cause such knowledge or suspicion to be reported to any police official. (2) Subject to the provisions of section 37(2), any person who fails to comply with subsection (1), is guilty of an offence.

Based on the provisions of Section 34 (1) & (2) of the act, we believe that the medical aid schemes in question should be reporting practitioners suspected of theft and or fraud amounting to R100 000 or more to the police.

As far as Negligence and Misconduct are concerned, we are of the view that the medical aid schemes should be reporting the matters to the HPCSA in terms of the Health Professions Act 56 of 1974.

The PPB is also of the view that practitioners should be afforded a right to be “presumed innocent until proven guilty” as implicitly provided for in the Constitution of the Republic of South Africa 1996.

Practitioners who are “cornered” by these medical aid schemes are alleged not to be given an opportunity to make a representation or given a reason as to why they are being treated the way they are treated. If these allegations are true, the PPB is of the view that it is unconstitutional as it is in contravention of Section 33 (1) & (2) of the Constitution as well a Promotion of Administrative Justice Act 3 of 2000 (Sections 3 & 5).

Instead, these schemes are said to be advising practitioners to bill using other codes, resulting in a situation where these practitioners are encouraged or forced into committing fraudulent acts.

Practitioners should be warned that such practice is a contravention of Rule 7 (3) & (5) of the ethical rules of Conduct (No.R.717) of 4 August 2006 as amended by Government Notice No. R68 of 2 February 2009.

The other unethical practice as reported in Paragraph 1 relates to the allegation that the medical aid schemes in question are refusing to pay certain tariff codes, particularly rehabilitation codes such as 72501, 72503 and 72509.