How to blow up a lawyer’s brain, and other MBS tales

7 minute read

When a hospital’s general legal counsel can’t make head or tail of Medicare, what chance do the doctors have?

MBS descriptions can border on the absurd. 

Take the recently introduced ECG item 11707. It requires that the ECG “is reviewed in a clinically appropriate timeframe to identify potentially serious or life-threatening abnormalities”. So, if the test is performed on a patient complaining of chest pain but the pain turns out to be indigestion, which is not a serious or life-threatening abnormality, is the doctor guilty of an offence? 

But it’s not always indecipherable drafting, as with item 11707, that causes billing confusion. Other times confusion can relate to how to bill, when to bill, and whether to bill, rather than just what to bill. 

In 2006 a GP was found guilty of 96 counts of criminal fraud for incorrectly billing only one MBS item, and there was no concern that the item number she chose was incorrect or that she had not provided the service she billed. She bulk-billed and charged a concurrent gap (though for different services), but it was found that the two were inextricably linked and she had committed a crime. Her error did not relate to what to bill, but how to bill the one MBS item she had correctly chosen. 

In another example, a physician explained to me that her service contract with a private hospital stipulated that she was required to do a ward round of her admitted patients daily. However, she didn’t think this would always be necessary given the sub-acute setting. She therefore didn’t know when or whether to bill. When we talked through her situation, her options were a) breach Medicare requirements by billing for non-clinically relevant services, b) breach her contract with the hospital by not attending her patients daily, or c) attend her patients daily, not bill to Medicare, and not be paid. 

More recently, I was contacted by a senior lawyer, the general legal counsel of a major teaching hospital in a capital city concerning Medicare rejecting half of their pathology claims. The lost revenue was circa $1 million per annum. For them, the issues were both how and whether to bill, and the affected doctors were nervous.

What transpired was that the GPs who staffed their emergency department ordered most of the pathology, and Medicare was applying “episode coning” rules which caused many of the claims to bounce. Basically, episode coning provides that when more than three tests are requested for a patient on the same day, by one or more GPs, Medicare benefits are paid for only the three most expensive items. Coning is limited to tests ordered by GPs in the outpatient setting and the rules do not apply to admitted patients or for services requested by specialists. Pathologists have to report on all tests, even though they will only be reimbursed for three.

Well before our first meeting, I had a long list of questions and so did the lawyer. Mine were around how it was that GPs were legally able to staff the ED of a major teaching hospital in a capital city, and why pathology was being billed to Medicare in a public ED at all. His related to whether Medicare’s refusal to pay the claims was a legally reviewable decision because a written legal advice had indicated that GPs are legally classified as “specialists” under the Health Practitioner National Law, and therefore rule GN.5.15 in the MBS should apply, which would negate the coning rules. Plus, on one view it could be argued that the patients were “in a hospital” so the coning rules would not apply – and, perhaps most importantly, he believed his ED was private not public. 

Some things were relatively easy to strike out. Firstly, Medicare decisions are rarely reviewable and there is no right to sue for unpaid Medicare benefits that is actionable by either doctors or patients. Secondly, the national health data dictionary defines an admission, which is an administrative process, and very few of the patients in his ED would satisfy that definition. 

But from there things got interesting. He showed me a copy of the hospital’s licence, issued by a state government. It was very clearly an official, current “Licence to Operate a Private Health Facility”, which included emergency services.

So, you can imagine his surprise when I shared my screen, took him to the list of Australian Registered Healthcare Facilities and showed him his hospital registered by the commonwealth government as a public hospital. 

One hospital, listed on the commonwealth register as public, and on a state register as private. Let that sink in.

To compound matters, there is an additional process though which an ED becomes formally recognised as a private ED, which no one knew about, and it had therefore been overlooked. They needed to look into that.

As to the question of whether GPs are specialists, well yes, they are GP specialists but that doesn’t make them FACEMS and only their FACEMS will meet the criteria for “specialist” to overcome the episode coning rules. This is despite the wording of rule GN.5.15 quite clearly stating that practitioners who do certain things in an ED (things that the GPs in his facility did) are deemed to be acting as emergency medicine specialists.

His exasperation was now palpable. 

“This system is a complete mess! I mean, what’s the point in having a rule if it’s not a rule?” 

“Well, you know,” I said. “The MBS is not the law. It’s just a departmental interpretation of the law that is sometimes wrong. GN.5.15 is not really a rule. It’s just a paragraph in a book.”

“What, you mean like Hamlet?”

Indeed – to bill or not to bill shouldn’t be the question.

As for askMBS, they provided advice with the usual disclaimer that it was not legal advice and could not be relied upon. So basically useless.

As a parting gesture I directed him to the Federal Register of Legislation and suggested he carefully check the subordinate legislation ­– new Medicare determinations appear there almost daily so you never know, GN.5.15 might be tucked away in there somewhere as an actual law!

Think on this. If a senior general legal counsel, with deep knowledge and experience in health and administrative law, is unable to make sense of Medicare law, how on earth are doctors meant to manage? 

I can only imagine the worry of the GPs and pathologists involved in this saga. The hospital is doing everything it can to help the doctors, and is trying to stay within the boundaries of the law, but it’s not easy for the lawyers either when there are no experts, no national curriculum, and the laws are completely broken or unable to be found.

What is required is sweeping reform of Australia’s health financing laws, and until that happens, doctors will unfortunately remain sitting ducks for policing authorities who presently have carte blanche to conduct themselves as they please. 

A good first step would be to open the PSR to full public scrutiny.

Dr Margaret Faux is a health system administrator, lawyer and registered nurse with a PhD in Medicare compliance, and is the CEO of AIMAC, which offers courses and explainers on legally correct Medicare billing.

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