GE 2020/069
Answer
In our opinion, no.
Context
A gastroenterology practice asked whether a service provider providing two services to a patient on the same day, one for which there is an MBS item number, and the other for which there is not, can bulk bill the MBS service and simultaneously collect private payment for the non-MBS service. The question related to an outpatient context and both services were clinically relevant for the treatment of the patient, meaning neither would be considered cosmetic or the like.
NB: The scenario presented in this question is distinct from the common scenario of bulk billing a consultation and charging a private fee for a cosmetic botox injection, which is permitted, because Medicare specifically excludes rebates for cosmetic procedures, which are not clinically relevant. In this scenario, both services are clinically relevant. It is an important distinction and often a point of confusion.
Relevant Legislative Provisions
Health Insurance Act 1973, Section 20A
Other relevant materials
1. Please read BB 2020/068 for a detailed analysis of the current state of the law around bulk billing and charging additional fees.
2. Academic journal article published in the Journal of Law and Medicine, with detailed analysis of bulk billing arrangements, which also includes an analysis of the Sood decision: Medicare Billing Law and Practice: Complex, Incomprehensible and Beginning to Unravel. https://www.ncbi.nlm.nih.gov/pubmed/31682343
Case law
Suman SOOD v Regina [2006] NSWCCA 114
Departmental Interpretation
mbsonline.gov.au (accessed 28 June 2020)
“GN.1.2 Medicare – an outline
Medicare benefits are claimable only for ‘clinically relevant’ services rendered by an appropriate health practitioner. A ‘clinically relevant’ service is one which is generally accepted by the relevant profession as necessary for the appropriate treatment of the patient.
When a service is not clinically relevant, the fee and payment arrangements are a private matter between the practitioner and the patient.“
Services Australia (accessed 28 June 2020)
“Additional charges and bulk billing
If you bulk bill a patient, you can’t make additional charges for that service. This includes, but isn’t limited to:
- any consumables used, including bandages and dressings
- record keeping fees
- a booking fee to be paid before each service
- an annual administration or registration fee.”
Detailed Reasoning
The threshold issue in this scenario is to understand the ‘in respect of’ principle when bulk billing, so please read BB 2020/068 in its entirety before proceeding.
Having read BB 2020/068 you will understand the issue around what can be categorised as being ‘in respect of’ a clinically relevant professional service that you intend to bulk bill.
The Australian judiciary has adopted a very wide interpretation of these three ubiquitous words in the Medicare scheme, to the point where an indeterminate penumbra of things may come within the scope of an individual item number, even if it makes absolutely no clinical sense.
In the Sood decision, the court held that the counselling and theatre fees she charged (Dr Sood usually described these together in once phrase on separate invoices) were inextricably linked to the procedure that some patients proceeded to have and which she bulk billed. There were no MBS item numbers for the ‘counselling and theatre fees’ even though there was no dispute that both were clinically relevant, and there was also no dispute about the fact that some patients just had counselling but no procedure.
Applying the Sood reasoning (which represents the current state of the law) to this question, the answer must be no, as the model described would, on balance, represent a non compliant billing practice, and at it’s most serious, could lead to criminal prosecution as it did for Dr Sood. This is because the scenario described in the question mirrors that of Dr Sood – it is an outpatient setting, both services are clinically relevant, one service attracts a Medicare rebate and one does not, and the intention is to bulk bill one but not the other.
Examples and other relevant information
The safest way to bill this scenario is to issue a private bill charging the patient the equivalent of the bulk bill amount for the Medicare service and a private fee for the other service and itemise both services separately on your invoice. This way, the net cost to your patient is the same, although it does of course mean that the patient has to have the funds available to pay up front and then claim back their rebate.
Who this applies to
Everyone when bulk billing.
When this applies
Since the SOOD decision in 2006