GP 2020/0611
Answer
Probably not.
Context
A general practitioner has asked whether he can claim item 41764 given he has appropriate surgical training to perform the procedure, which is a nasendoscopy/sinoscopy.
Relevant legislative provisions
Health Insurance (General Medical Services Table) Regulation 2016
Health Insurance (General Medical Services Table) Regulations (No. 1) 2020
Other Relevant Materials
Peer reviewed article includes commentary on the Stirling decision: Frenetic law making during the COVID-19 pandemic: the impact on doctors, patients and the Medicare system. https://auspublaw.org/2020/04/frenetic-law-making-during-the-covid-19-pandemic-the-impact-on-doctors-patients-and-the-medicare-system/
Case law
Stirling v Minister for Finance [2017] FCA 874
Ostrowski v Palmer [2004] HCA 30
Departmental interpretation
MBS context
“Group T8 – Surgical Operations
Subgroup 8 – Ear, Nose And Throat
Item 41764
NASENDOSCOPY or SINOSCOPY or FIBREOPTIC EXAMINATION of NASOPHARYNX and LARYNX, one or more of these procedures, unilateral or bilateral examination.”
AND
“Item 41500
EAR, foreign body (other than ventilating tube) in, removal of, other than by simple syringing“
Detailed Reasoning
Before continuing please read OH 2020/064 as it provides important information regarding this question and the risks involved in relying on advice from anyone who tells you that you can bill this service. In addition, the High Court has provided authority on the unreliability of reliance on advice from public officials, see Ostrowski. Also, Dr Stirling’s case (discussed in answer OH 2020/064) almost exactly mirror’s this scenario and is a cautionary tale.
Item 41764 is positioned in the surgical, ENT section of the schedule, which in and of itself does not necessarily exclude a GP from billing it. GPs can certainly bill the first item in that section of the schedule which is item 41500, removal of foreign body from the ear.
However, starting with a global view of the MBS, the simpler, more straightforward procedures are usually at the beginning of each section, with more difficult procedures following by order of complexity. And whilst there are certainly procedures scattered throughout many sections of the schedule that GPs and all doctors can claim, they tend to be quite tightly restricted. As we explained in OH 2020/064, the fact of having a provider number does not mean a doctor can claim every item in the schedule. Provider numbers are restricted based on registration details held by AHPRA and are linked to certain services.
Taking a step back in time before the MBS Review Taskforce, many surgical procedures in the schedule indicated that a GP could provide the service by use of the letter G. The same item would immediately follow, with the letter S and a higher fee, indicating the specialist equivalent service. Below is a relevant example from the 2016 Regulations. You will see that item 41764 never included a G whereas removal of tonsils and adenoids did.
Health Insurance (General Medical Services Table) Regulation 2016
| 41764 | Nasendoscopy or sinoscopy or fibreoptic examination of nasopharynx and larynx, one or more of these procedures, unilateral or bilateral examination of (Anaes.) | 122.85 |
| 41788 | Tonsils or tonsils and adenoids, removal of, in a person aged less than 12 years (G) (H) (Anaes.) | 219.95 |
| 41789 | Tonsils or tonsils and adenoids, removal of, in a person aged less than 12 years (S) (H) (Anaes.) | 295.70 |
| 41800 | Adenoids, removal of (G) (H) (Anaes.) | 117.55 |
| 41801 | Adenoids, removal of (S) (H) (Anaes.) | 162.95 |
Jump to today and the use of G and S has been discontinued so it is no longer immediately apparent which services, which doctors can claim. However, because item 41764 has never been claimable by GPs, on balance, we suggest it remains a service that GPs cannot claim.
Examples and other relevant information
A call to Medicare is obviously appropriate, but heed the warning of Dr Stirling’s case and be very sure to obtain written advice on official departmental letterhead before making any decisions about whether to proceed and presumably invest in the expensive fibreoptic equipment required to perform this service. Dr Stirling invested in similarly expensive equipment and it did not end well.
Who this applies to
All GPs
When this applies
Always