The matter of forensic audits, better known as ‘clawbacks’ has been in the spotlight in recent years. Despite continued allegations of procedural unfairness and a comprehensive investigation launched by the Council of Medical Schemes with certain findings being made, to date no decisive action has been taken to amend or curtail the practices from funders and administrators contrary to the principles of fairness and justice as enshrined in the South African constitution. In essence these administrators utilize bullying, unfair tactics and threats and seldom quantify the amounts claimed with sufficient peculiarity. Furthermore, they seldom outline the basis of selection or reasons for an audit. Compounding this issue is the sanctions they impose without due regard to natural justice or equity.

While this issue has been affecting medical practitioners across all disciplines, the physiotherapy profession has been especially hard hit in recent years. When the extent of the trauma and financial damage that its members had been subjected to became clear, a formal investigation was launched within the Society of Physiotherapy to ascertain the extent of the problem, engage with practitioners and to evaluate possible remedies.

Despite attempts to engage with funders about their processes, it became clear to the Society that there was a deep-rooted unwillingness from them to accept that their forensic units were acting in a manner which constituted bullying and where physiotherapists were being forced into signing acknowledgments of debt for amounts not conclusively proven to have been erroneously billed.

In the majority of cases, these debt acknowledgements were signed purely because of the undue duress the funders placed on practitioners, by way of cutting off all direct payments to them until they capitulated.

The Society also disputes the funder’s narrative that payment suspensions are a last resort, one only employed when the audited physiotherapists supposedly refuses to engage with the forensic unit. Rather, these suspensions have been commonly employed as soon as the physiotherapist indicated that they disagreed with the remit, outcome or quantum of the audit.

The devastating effect of these audits on the physiotherapists cannot be overstated, with many of their businesses unable to fully recover afterwards.

When it became clear that the audits were continuing unabated despite the concerns raised, the SASP was left with no choice but to consider legal action on behalf of its members.

As such, a comprehensive case was brought in the High Court of South Africa on September 29th 2021, challenging the constitutionality of Section 59 (3), the relevant clause of the Medical Schemes Act, the one-sided interpretation of which has provided the funder with the authority to conduct these forensic processes.

The legal action names all of the medical schemes and their administrators, the Council for Medical Schemes as well as the Minister of Health as respondents. The thrust of this action is to seek readdress on the application of Section 59 and to ensure that the funder or their representatives do not act as sole judge, jury and executioner on accused members. Currently no right of appeal or review exists other than a high court application, and such is well outside the financial ability of most physiotherapists.

The SA Society of Physiotherapy would also like to acknowledge that it respects the medical schemes’ and administrators’ position on the importance of forensic audits to curb the incidences of Fraud, Waste and Abuse, which is an essential element in protecting scheme members. However, it is our view that such processes must be adjusted to not allow the funder or administrator to adjudicate its own cause, that strong measures are required to ensure that practitioners who commit coding errors are not unjustly tarred as fraudulent or criminal, that these errors are identified in a timeous manner and that any losses to schemes are accurately quantified to avoid the financial devastation of the current status quo.

For further assistance or information, please contact Ms Lonese Jacobs at