Review of the way in which Physiotherapy Services are Funded and Accredited by ACC

Three submissions were made by physiotherapists who were concerned that making their submissions public would place them at further risk of actions being taken by ACC that would have adverse effects on the viability of their businesses. For this reason they have requested that their full submissions be for the eyes of the Inquiry only.

The major issues and concerns raised in these three submissions are summarised below.

1. Investigation and audit processes and the culture of ACC

Issues and concerns raised were:

• Whether patient rights to informed consent to the release of information are breached when ACC seeks access to clinical records for audit and fraud investigation purposes directly from providers without informing claimants that the information is being requested. Good practice would be for ACC to always inform claimants that clinical records are being sought, and for what reason, and seek patient consent first.
• That where a patient expressly refuses to authorise a physiotherapist to provide clinical notes, the physiotherapist risks being in breach of the requirements of Privacy Act if they comply with an ACC request for such information, but risks being prosecuted by ACC for not providing information required under ACC legislation.
• That investigation or auditing of physiotherapists by ACC is not always genuinely random or always prompted by clear indications of inappropriate practice, but instead sometimes appears to be selectively targeted at critics of ACC policies and procedures.
• Whether the wording adopted in initial standard letters to providers whose billing practices are under investigation is appropriate. It implies wrong doing at a stage where insufficient evidence of such is available.
• Lack of clarity both in communications with providers and in internal ACC understandings regarding whether ACC is requesting information, undertaking a review, undertaking an audit or undertaking a fraud investigation – and a lack of clarity and consistency regarding the processes adopted in each case.
• Lack of opportunity in the review/audit process adopted for the reviewed/audited provider to provide feedback on the accuracy of the information collected prior to determinations being reached about whether or not there is evidence of fraud
• ACC escalating reviews of providers into fraud investigations for matters which are relatively minor administrative errors which do not meet the high standards for fraudulent acts specified in the ACC Treatment Provider Handbook, namely one that is ‘intentionally dishonest and deliberate, for the purpose of obtaining payments that a person was not entitled to.
• ACC itself sometimes makes errors in its extraction, analysis and interpretation of individual provider claim data, which it uses as the basis for initiating investigations. Where such errors are discovered, ACC does not provide a clear explanation as to how they came about, nor apologise for the consequences of such errors.
• Whether the sanctions threatened or applied by ACC (such as removal of bulk billing rights, being referred to the Physiotherapy Board of New Zealand for review under its Competence Committee process or seeking repayment of large amounts of payments for services provided) are appropriate, given the relatively minor or administrative nature of the problems identified with physiotherapy providers or the limited nature of the evidence of fault.
• Complaints procedures regarding review/audit/fraud investigation processes not being sufficiently independent or robust enough to provide confidence that ACC will be able to identify where improvements could be made or where it is performing well.

Regulated Payments under the Cost of Treatment Regulations

Issues and concerns raised were:

• Lack of any reward for post graduate qualifications and extent of experience in the standard regulated payment, providing no incentive to keep experienced senior physiotherapists in practice. In contrast, differentiated payments for legal aid take experience and expertise into account.
• Discrepancies between the regulated fee and the fees recoverable under the EPN scheme, in that the provider does not get paid more for double or triple pathologies under the former.

The Endorsed Provider Network

Issues and concerns raised were:

• Lack of statistical validity of the data analysis regarding the EPN pilots, which justified the national rollout of the endorsed provider network.
• Concern that the accreditation approach to quality ACC has adopted focuses on a costly system that emphasises the existences of business systems, policy statements and procedure manuals rather than on more relevant characteristics like clinical outcomes or clinical training and expertise of the provider
• The costs of accreditation can be huge for small practices. Over and above the direct costs of the accreditation additional costs may arise such as the need to install new computer systems, which may collectively require investments of up to $25,000.
• That ACC is withholding EPN contracts from some physiotherapists who meet the entry criteria, for reasons that have not been adequately explained by ACC – putting their financial viability at risk.
• The higher ACC payments and ban on patient co-payments at EPN providers may constitute ACC promoting anti-competitive marketing behaviour by ‘substantially’ lessening competition between physiotherapists which is prohibited under the Commerce Act.

Treatment Profiles

Issues and concerns raised were that:

• ACC makes inappropriate use of treatment profiles which are intended for non-complex cases by expecting physiotherapists to apply them to all cases. This may compromise the achievement of rehabilitation outcomes ‘to the maximum extent practicable’ in some more severe and/or complex cases.
• This may also result in physiotherapists who treat a higher than average proportion of complex cases, or more cases which present at a late stage when the injury is more severe being inappropriately targeted for audits