Authority to access a claim - Medicare Compensation Recovery 011-15040120

Authorising a third party means:

• the injured person/claimant is bound by the third party’s actions
• it gives the agency permission to release information about the compensation claim to the third party, and
• the third party can sign specific documents and update personal information on the injured person/claimant's behalf

For more detail on which forms can be signed by the third party authority see Document Assessment – Medicare Compensation Recovery

When authorising a solicitor as a third party, it implies that all solicitors and representatives employed by that firm have the same authority.

Written authority must be provided on an accepted version of the Third party authority (MO021) form. If the MO021 form is assessed as invalid, see Table 4 on the Process page.

An authority remains valid, even after the claim is closed, unless:

• revoked verbally or in writing
• replaced by a new third party authority
• the injured person or claimant dies, or
• the injured person turns 18 years of age. This applies in cases where a valid MO021 was provided prior to the injured person turning 14 years of age. Implied consent is applicable while the injured person is aged between 14 -18 years of age

The MO021 form is not to be used in place of verbal consent. The form is intended for solicitors acting on behalf of the injured person/claimant. It should only be used to nominate an individual as an authorised third party in special circumstances. For example, an injured person has a severe psychological injury and is unable to manage their affairs due to the injury. The injured person can nominate a family member or friend to interact with the agency for the purpose of the claim.

If a MO021 form is received and an individual is listed as the third party a phone call is required to confirm that the injured person has fully understood that:

• submitting a MO021 for a nominated individual does not revoke an existing authorisation for a solicitor or law firm. It gives the nominated individual the ability to contact the agency and discuss the claim on behalf of the injured person
• information can be released to the third party nominee, and
• the injured person is bound by the third party’s actions

See Table 5 on the Process page.

Note: only details of an authorised third party are recorded in MCRS, where authority has not been provided details are not to be recorded.

See:

• Document Assessment - Medicare Compensation Recovery for more information on assessing a MO021 form
• Table 4 on the Process page for how to accept or revoke a third party authority

If a Third party authority (MO021) form has been submitted but is missing a valid signature from the injured person, verbal consent can be accepted when the:

• injured person/claimant has been authenticated
• injured person/claimant provides verbal consent authorising the third party to act on their behalf, and
• MO021 form is an accepted version and otherwise complete

An injured person or claimant does not need to give their signature after providing verbal consent.

Note: a third party cannot give verbal consent. The third party’s full name and signature must be included on the form. If the valid signature of an authorised third party is missing, issue a We are unable to process the third party authority (Z2802) letter requesting a completed document.

See:

• Document Assessment - Medicare Compensation Recovery for more information on assessing a MO021 form
• Table 4 on Process page for verbal consent
• References page for a link to the Privacy Act 1988
• Resources page for a link to the MO021 form

A legal representative is a person appointed by law to act on the injured person’s behalf.

Appointment of a legal representative can be advised by:

• Power of Attorney (POA)
• Guardianship order
• Administration order
• Last Will & Testament, confirming the executor of the estate
• Letters of Administration or Probate where the injured person dies intestate (without a Last Will & Testament in place)
• Public Trustee documentation, or
• Court order

When evidence:

• is provided to confirm legal authority, the details are recorded in MCRS
• has not been provided to confirm legal authority, a letter is required to request supporting documents

If the injured person has a legal representative, their details must be provided in the Claimant’s details section on the Medicare Compensation Recovery forms. See Document Assessment - Medicare Compensation Recovery.

The date of injury or illness is a mandatory requirement under the Health and Other Services (Compensation) Act 1995 when a notifiable person notifies the agency of a settled claim.

The agency must be satisfied that the authority received on the Third party authority (MO021) form is for the correct compensation claim based on the date of injury. The MO021 form is invalid if the date is:

• missing and there is no other correspondence attached confirming the correct date of injury or illness, or
• prior to or after the date of injury or illness recorded on an existing compensation claim

The authority remains invalid until the injured person or claimant confirms the correct date of injury or illness, verbally or in writing.

If there is a change to the date of injury, see Table 4.

Record verbal confirmation from the injured person or claimant in case notes.

If verbal confirmation cannot be obtained, issue the We are unable to process (Z2802) letter. The date of injury or illness and the approval of the authorised third party acting on behalf of the injured person must be confirmed to avoid wrongful disclosure of information that may relate to another claim.

See:

• Process page for the steps for validating a written authority to release information
• Resources page for links to the MO021 form and letter templates

A new third party authority is required when the business representing the injured person or claimant has:

• split into more than one business, or
• closed, and a new business has taken on the claim

Where 2 or more legal businesses have merged and the new business retains the name stated on the initial authority, the existing authority will remain in effect.

Customers may request copies of documents relevant to their claim.

Documents supplied to the agency by the:

• injured person, claimant or authorised party can be released, such as the completed Statement by claimant (SBC)
• notifiable person or another party cannot be released for privacy reasons, such as the Notice of judgment or settlement (MO022) form. In these situations, the requestor should:
• contact the notifiable person directly to request a copy, or
• request a copy from the agency through a Freedom of Information (FOI) request. Tell them to search for 'Freedom of information' on the Services Australia website

The FOI team will redact notifiable third party names, signatures and email addresses from documents before release. This protects parties from having grievances aired through social media channels.

A third party may choose to attach a note to a form stating that if the form is released under FOI, that their name is not to be released, reducing the likelihood of inadvertent release.

Written documents confirming the executor or the administrator of the injured person’s estate are needed for the agency to release information about the compensation claim of the deceased.

Acceptable documentation to establish the authority for a person to represent the deceased include:

• the Last Will and Testament of the deceased
• Letters of Administration from the courts appointing an administrator
• Probate from the courts, or
• documents from the Public Trustee appointing an executor or administrator

When the injured person dies intestate, the agency needs a Letter of Administration from the courts or the Public Trustee confirming the appointment before any information can be released.

Note: if a Letter of Administration has not been received or granted, a Commonwealth of Australia Statutory Declaration must be provided. It must be signed by the person appointed as administrator by the Public Trustee and will only be accepted in consultation with Program Management. The declaration must confirm, there is no Last Will & Testament, Probate, Letters of Administration or other relevant Court or Public Trustee document. It must state that the declarant is the executor or administrator of the injured person’s estate.

Notification of the injured person’s death is provided by the estate representative or claimant's solicitor. That is, through a copy of the official death certificate issued by the Registry of Births, Deaths and Marriages or a date of death being recorded by Medicare. This detail can be found in MCRS using the Medicare hyperlink.

If the date of death has been recorded on the Medicare record, it will be identified by MCRS when a new claim is registered. However, MCRS does not automatically update the date of death on an existing claim. Service Officers should update the date of death in MCRS. This results in outgoing correspondence being addressed to 'The Executor of the Estate of the late [deceased person’s name]'.

Any Power of Attorney document or Third party authority(MO021) form received by the agency before the death of the injured person become invalid when the injured person dies. If the executor or administrator of the estate requires information to be released to a third party:

• A new Third party authority (MO021) form must be completed, and
• Legal documentation confirming the authority for a person to represent the estate must be provided

Note: requesting required legal documentation from the notifiable party post judgment, settlement or reimbursement arrangement is inappropriate as they may not be aware or informed of an injured person’s passing.

If attempts to obtain supporting documentation are unsuccessful and the request has been received from a legal representative of the estate, or the injured person became deceased after a date of judgment/settlement/reimbursement arrangement, Service Officers must escalate the claim to Program Management.

See Process page for further information about the documentation required when an injured person dies.

For Medicare Compensation Recovery, a person under 14 years of age is considered a minor. For all other legal matters, a minor is a person under 18 years of age.

A claim is normally made on behalf of a minor by a claimant or a legal representative, including:

• a claimant (normally a parent or guardian)
• a person appointed as Litigation Guardian (generally appointed by the courts)
• an Executor or Administrator of a deceased minor’s estate (generally appointed by the courts), or
• the Public Trustee (the trustee is usually the refund recipient rather than the claimant)

Injured person under 14 years of age

When the injured person is under 14 years of age and is:

• enrolled on the parent or guardian's Medicare card, the parent or guardian can sign the authority to authorise the release of the minor's information
• not enrolled on the parent or guardian's Medicare Card, legal documentation must be provided to verify the third party has a legal authority to act on the minor's behalf

Note: when Services Australia is notified that a state or territory Public Trustee is acting on the minor's behalf, contact the state or territory Public Trustee for verification and to get legal documents confirming this arrangement.

See Resources page for a table for assessing documentation requirements for a third party acting on behalf of a minor.

Injured person aged 14 years of age and over (but under 18 years of age)

When an injured person turns 14 years of age, they can act on their own behalf or they need to provide written authority for a third party to act on their behalf.

If the injured person’s parent or guardian has not obtained a Guardianship order or Power of Attorney, a Commonwealth of Australia Statutory Declaration is needed from the parent or guardian, declaring that:

• the injured person has been medically diagnosed as mentally incapable of managing their own affairs, and
• they have legal authority to make decisions and sign documents on the injured person's behalf

Note: a Commonwealth of Australia Statutory Declaration can only be accepted if approved by Program Management.

If the agency has an existing authority signed by the parent, guardian or legal representative (legally appointed to act on the injured person’s behalf) prior to the injured person turning 14 years of age, the authority remains valid due to implied consent until the injured person turns 18 years of age, provided the:

• injured person is still enrolled on the parent or guardian’s Medicare card, or
• legal representative is still legally appointed by law to act on the injured person’s behalf

Although implied consent may be accepted as above, best practice for privacy is to get a new Third party authority (MO021) form signed by the injured person over 14 years of age. If the agency receives a new authority signed by the injured person, or receives a request to revoke authority, the implied consent ends.

A person (aged 14 years and over) may have an Authorised Representative appointed to act on their behalf for Medicare Compensation Recovery purposes, if the individual is:

• unable to manage their own affairs
• make sound decisions, or
• give reasonable instructions

Evidence must be given to show the injured person cannot manage their own affairs due to an intellectual or physical disability or illness.

An individual can appoint:

• someone as a Power of Attorney (POA) to act on their behalf in specified circumstances
• a Public Trustee or private trustee as a POA to act on their behalf in certain circumstances

A court or tribunal can:

• appoint someone to function as the legal guardian or administrator of an individual
• decide who is unable to manage all or some of their affairs, due to:
• accident
• illness
• disability, or
• mental incapacity

POA, Guardianship Orders and Administration Orders will vary on a case-by-case basis. This means Service Officers must consider each new document. It must be determined whether it allows a person to do business with Services Australia on behalf of someone else.

Note:

• POA documents must be a certified copy of an original
• Advance personal plans in the Northern Territory replaces enduring power of attorney

A POA from one state is acceptable nationwide for the purposes of Medicare Compensation Recovery, unless the POA clearly states it is restricted to the state of origin. If Service Officers are unsure about a POA document, see Escalations - Medicare Compensation Recovery.

After an advance payment (AP) has been made by the notifiable person, details of the claim can only be discussed with the injured person, claimant or their authorised third party.

Medicare Compensation Recovery cannot release a copy of the Medicare history statement to the notifiable person, but the notifiable person may apply to the Information Release team for this information. The Information Release Team must have a signed authority from the injured person or claimant to release the information.

Where an AP has not been received at judgment or settlement, and there is no valid Notice of past benefits (NOPB), a Notice to claimant (NTC) is sent to the injured person or claimant, and when returned, a Notice of charge (NOC) will be issued to the notifiable person.

When documents are received confirming a change has occurred to an authorised party’s details or that an authorised party is no longer acting for the injured person/claimant the details must be updated in MCRS.

When recording details in the claimant fields in MCRS a unique relationship must be selected. When an existing authority has been replaced by a new authorised third party, an authorisation end date must be added before a new authorisation can be added.

Authorised third party

The injured person or claimant must advise the agency if they no longer authorise the release of their information to a third party. The injured person can notify the agency of this verbally or in writing. An authority continues to apply to a claim until revoked, even after the claim has been closed.

An authorised third party can also notify the agency that they no longer represent the injured person or claimant, verbally or in writing.

Where the injured person or claimant reports a change in solicitor, or the agency becomes aware of a new solicitor representing the injured person or claimant, a new Third party authority (MO021) form will be required to authorise release of information to the new solicitor.

Contact the injured person/claimant or existing authorised solicitor to confirm if the acting solicitor has changed. If the solicitor has changed, ask for a verbal cancellation of the existing authority.

Clearly record the revoked authority in the MCRS case notes. No further information must be released to that third party.

Claimant

A person appointed to act on behalf of the injured person may not remain as the claimant for the duration of the claim. This may include when:

• a Power of Attorney is no longer valid as the injured person has passed away
• the review date of a court order has passed and a new court order has not been provided
• a minor turns 18

If notified in writing that the authorisation is no longer valid the existing claimant must be removed and new claimant added, if applicable.

See:

• Table 4 on the Process page for steps on updating or revoking an authority
• Release of information if the injured person is a minor for claims when the injured person is a minor
• Release of information if the injured person is deceased for claims when the injured person is deceased
• Claim management - Medicare Compensation Recovery for process steps to update the claim

Section 120 of the Child Support (Registration and Collection) Act 1988, allows the Child Support Program to request the below details in respect of an injured person from the agency:

• Name
• Address
• Amount of advance payment refunded
• The date the refund was issued
• Whether the refund has been presented for payment, and
• The name of the notifiable person and the total amount of settlement

A request must include the correct section of the Child Support (Registration and Collection) Act 1988 under which it is being made and must be signed by a person holding the delegation to request such information. Otherwise, the request should be declined.

Note: any request for release of information from Child Support must be escalated to Program Management. See Escalations - Medicare Compensation Recovery

The References page contains links to relevant legislation.

A subpoena requires the agency to produce relevant documents or appear in court. Direct all subpoenas to the Subpoena Team for assessment. The Subpoena Team will send a follow up request to Program Management for further action.

See:

• Roles and responsibilities in Handling subpoenas and Commonwealth Information Location Orders served on the department, and
• Table 6 on the Process page for action required when a subpoena is received

Privacy Act

The Privacy Act 1988 governs the privacy and quality of personal information, including how it is:

• collected
• stored
• accessed
• disclosed

Personal information cannot be released by the agency to a third party unless it is:

• authorised in writing on a Medicare Compensation Recovery Third party authority form (MO021)
• required under law. For example, under the provisions of the Health and Other Services (Compensation) Act 1995

A third party may be:

• an organisation (such as a solicitor), or
• an individual (such as a friend or relative)

Authority can be given by:

• an injured person, or
• a claimant (such as a legal representative)

Freedom of Information Act

Under the Freedom of Information Act 1982, a person has a right, with limited exceptions, to access documents the agency holds. The Freedom of Information Act 1982 (FOI Act) gives any person the right to do all of the following:

• access copies of documents the agency holds, except exempt documents
• ask the agency to change or annotate customer information if it is incomplete, out of date, incorrect or misleading
• seek a review of the agency's decision to deny a customer access to a document or not to amend a personal record

A person can ask to see any document that the agency holds. The agency can refuse access to some documents, or parts of documents that are exempt.

Exempt documents may include:

• those relating to national security
• documents containing material obtained in confidence
• cabinet documents
• other matters set out in the FOI Act

See Freedom of Information.

During a telephone conversation with the injured person or claimant, they may request to include another person for the duration of the call, such as a relative or friend. Verbal consent is required for each phone call where an injured person is requesting to nominate another person to speak on their behalf and is for the duration of that phone call only.

Do not advise the injured person or claimant to complete the Third party authority (MO021) form in place of providing verbal consent for telephone conversations. Verbal consent is required for each phone call received.

For information about getting See Verbal consent during phone calls see Enquiries and authenticating a customer - Medicare Compensation Recovery