The government should not be able to chase repayment of claims it should have rejected at the outset.
If you were audited by Medicare or the PSR today, how confident are you that you would be compliant?
When I asked doctors who participated in the qualitative interviews for my PhD this question, it was not uncommon for them to reply with something like this: “Well Medicare’s paying my claims, so they must be right.” Unfortunately, they were wrong.
Very few doctors reported calling Medicare for advice, but those who did said they felt safe billing in accordance with Medicare’s telephone advice. They were also mistaken.
Is it reasonable to assume that payment equals compliance?
Medicare rejects claims all the time, so it seems logical that if claims are wrong, Medicare will reject them. Unfortunately, while the system should work this way, it currently does not.
In the case of Stirling v Minister for Finance, Dr Stirling was a GP and phlebologist, who did ultrasounds. He called Medicare in 2005 to ask whether he could claim two MBS ultrasound items for his services. The recorded telephone conversation (which was later admitted into evidence) led Dr Stirling to believe that he was eligible to claim the two items. Out of abundant caution, after the phone conversation, Dr Stirling wrote a letter to Medicare confirming what had been said (the letter was also admitted into evidence) and informed Medicare he understood he was eligible to claim items 55246 and 55054 and intended to do so.
Dr Stirling received Medicare benefits for the two items for five years. Then in 2010, he was audited by Medicare, which determined he was not eligible to claim them, had never been, and would be required to repay a debt of $332,541.30 to the Commonwealth.
At the time of the 2005 phone call, it appears Medicare was apparently unable to answer what was a fairly straightforward question – could he claim the item numbers or not? Yet Dr Stirling was expected to have known the answer, and on any objective assessment, there was really nothing more he could have done to find out.
When the matter came before the Federal Court, the judge found that by paying his claims for over five years, Medicare had effectively ratified Dr Stirling’s belief that he was billing correctly – that he should have been able to take payment as meaning he was compliant. The judge set aside the decision and remitted the matter for further review.
Since then, the AskMBS email service has been introduced.
You will note on the bottom of every AskMBS email, and MBS fact sheet, there are disclaimers. They say things like “Practitioners are required to satisfy themselves that each professional service they provide meets the MBS item descriptor”, or indicate that the information is general only and you should seek your own legal advice. These are entirely appropriate disclaimers for the government to make, for the simple reason that government departments cannot give legal advice. To be legally binding and enforceable, there would need to be a law enabling reliance on the information provided, and no such law exists.
It should also not be forgotten that ignorance of the law is no excuse in Australia. This means we can be found guilty, even when our mistake about a law was based on a genuinely held and reasonable belief. Do you remember all the Section 44 cases in the High Court a few years ago? We lost half the government because our politicians “didn’t mean” to break a law that required them to be Australians and not dual citizens. The High Court held firm.
It is even irrelevant if illegal action is based on government advice. In the 2004 High Court case of Ostrowski v Palmer, Mr Palmer held a genuine but mistaken belief his actions were within the law, based on erroneous government advice. He lost.
And in the 2018 case of Dr Nithianantha, which was an appeal from the PSR, Dr Nithianantha unsuccessfully sought to rely on AskMBS email advice. Importantly, the advice was not addressed to him (it had been provided to him by another doctor who had sent the question to Medicare), and that fact, coupled with other technical issues, prevented Dr Nithianantha from relying on it. But in any event, the PSR had decided the AskMBS advice was wrong, and in so doing, they set a legal precedent, which is this: you can’t rely on AskMBS.
So, it’s pretty grim right now, unfortunately, in terms of getting reliable advice and support. We all know the common “play till you win” strategy of repeatedly calling Medicare until you get the answer you want. But the law is not on your side, and it’s risky.
We need regulatory reform in this area. Doctors should not have to bet on compliance. They should be able to bill for the services they provide without fear, and the government should be prevented from seeking repayment of claims it should have rejected. It’s going to be easier said than done, but the status quo is leading to manifestly unjust results, and is no longer tenable.
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