OH 2020/064
Answer
Part one – probably
Part two – no
Context
A practice manager for an oncology practice asked whether the oncologists can claim item 14206 even though it is in the assisted reproductive technology (ART) section of the MBS, because it accurately describes a service the oncologists provide, being “HORMONE OR LIVING TISSUE IMPLANTATION by cannula.”
This answer also provides important information relevant to all doctors about two recent court decisions that impact the reliability of billing advice received in certain contexts.
Relevant legislative provisions
Health Insurance (General Medical Services Table) Regulations (No. 1) 2020
Other Relevant Materials
1. Academic journal article published in the Journal of Law and Medicine, covering basic principles of Medicare billing: Medicare Billing Law and Practice: Complex, Incomprehensible and Beginning to Unravel. https://www.ncbi.nlm.nih.gov/pubmed/31682343
2. Peer reviewed article includes commentary on the Stirling and Nithianantha decisions: 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/
3. Published academic journal article, in which interview participants describe the quality of advice from Medicare: Wading through Molasses: A qualitative examination of the experiences, perceptions, attitudes, and knowledge of Australian medical practitioners regarding medical billing
Case law
Stirling v Minister for Finance [2017] FCA 874
Nithianantha v Commonwealth of Australia [2018] FCA 2063
Ostrowski v Palmer [2004] HCA 30
Departmental interpretation
MBS context
“Group T1. Miscellaneous Therapeutic Procedures
Subgroup 13. Other Therapeutic Procedures includes the following:
14200 GASTRIC LAVAGE in the treatment of ingested poison
14206 HORMONE OR LIVING TISSUE IMPLANTATION by cannula
14212 INTUSSUSCEPTION, management of fluid or gas reduction for
14221 LONG-TERM IMPLANTED DEVICE FOR DELIVERY OF THERAPEUTIC AGENTS, accessing of “
Detailed Reasoning
Two basic principles of Medicare billing first:
1. The fact that a doctor has a Medicare provider number does not mean she can claim every item in the Medicare schedule. If a GP tries to claim an item for cardiac surgery it will immediately reject and the same applies in reverse. Provider numbers are linked to certain items and all providers have claiming blocks. This is one of the entirely appropriate ways in which the government manages the integrity of the scheme.
2. If an item number accurately describes a clinically relevant service you have provided, you can claim it. However, whether it will be paid or not is an entirely separate matter depending on applicable claiming restrictions.
Turning now to the specifics of this service, item 14206 requires implantation not infusion, so a threshold issue is to ask yourself whether you are actually implanting the hormone as opposed to infusing it, in which case other items would apply. See OH 2020/063. This is a matter for your clinical judgement, though it would appear hormones are sometimes implanted by oncologists based on information sourced on the Cancer Australia website at this link.
Item 14206 is positioned in a section of the Medicare scheme for miscellaneous procedures (see above) that all medical practitioners can provide such as gastric lavage. Notably, the section also includes item 14221, which is commonly claimed by oncologists and haematologists when disconnecting and flushing a CVAD. So on its face, it would appear that oncologists can claim this item, though whether it will be paid or not can only be determined by submitting a claim.
A call to Medicare is obviously appropriate but it is an unfortunate truth that neither verbal or written advice from the department can be relied upon.
The 2004 High Court case of Ostrowski involved a fisherman, Mr Palmer, who unknowingly breached certain requirements under his fishing licence. At all relevant times he held a genuine, reasonable, but mistaken belief that he was permitted to fish at a certain location. He had sought clarification and confirmation from a State Government department who had informed him he was so entitled, so he genuinely believed he was acting within the law. This was not in dispute at trial. Unfortunately for Mr Palmer, he was unsuccessful because, as to the incorrect advice he had received, it did not negate the fundamental legal principle of ignorance not being an excuse under the law. The court held:
“Erroneous advice
It is irrelevant that Mr Palmer’s mistake was induced by the conduct of an employee of Fisheries WA. That conduct cannot convert a mistake as to the applicable law into a mistake of fact. If a defendant knows all the relevant facts that constitute the offence and acts on erroneous advice as to the legal effect of those facts, the defendant, like the adviser, has been mistaken as to the law, not the facts.”
In the Stirling case, Dr Stirling (a GP and Phlebologist) recorded a telephone conversation he had with Medicare about whether he was eligible to claim two Medicare services. He also confirmed the verbal advice he received in a letter to Medicare which informed them of his understanding and intentions. Both records were subsequently admitted into evidence at various hearings. Dr Stirling successfully claimed the two uncontroversial ultrasound items for five years before being audited by Medicare, who decided 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.
In the Nithianantha case, Dr Nithianantha (a GP) sought to rely on email advice from Medicare, relating to when urgency is determined when claiming the after hours service, item 597 – is it determined during initial contact when a patient calls requesting a service, or only later once the medical practitioner has attended and physically examined the patient? This was a critical point in the case, and very obviously, whatever the rule is, it should apply consistently to anyone claiming item 597. It would be nonsensical to suggest otherwise.
Importantly, the email submitted into evidence, which came from the departments’ askMBS email, was not addressed to Dr Nithianantha. It appeared that he had sourced it from a colleague who had asked Medicare the question. The PSR rejected the email, stating it could not be relied upon by Dr Nithianantha because it was not addressed to him, had been provided at a time which put it outside the scope of the investigation, and in any case, the advice was wrong.
If you follow this line of argument to its logical end point, it appears that the recipient of the original email, could presumably rely on the written advice (even though it was wrong – impossible to be 100% sure on this point) because it was addressed to him/her, and he could therefore decide urgency and the claiming of item 597 during an initial phone call with a patient (that is what the written advice from Medicare said). However, Dr Nithianantha had to decide urgency at a different time, only later once he had attended and physically examined the patient (that is what the PSR said). So, it appears that Dr Nithianantha’s colleague may not have been found guilty of the exact same conduct that caused Dr Nithianantha to be successfully prosecuted in the Federal Court.
This deeply troubling decision suggests that different rules apply differently to different doctors of the same specialty at different times in relation to the claiming of the exact same item number (597), the description of which did not change between 1 November 2010, when it was first introduced, and 1 November 2018 when it was replaced with item 585. The wording of the new item 585 has been changed from the former phrase ‘requires urgent medical treatment‘ to ‘requires urgent assessment’, which it is suggested, remains highly interpretive and is still silent regarding when the decision of urgency is made.
The combined effects of the Stirling and Nithianantha decisions cast serious doubt on the reliability of any advice, written or verbal, provided by Medicare, which is clearly not ideal, but you have no option but to work within the system and manage compliance as best you can. In addition, the High Court authority of the Ostrowski case confirms that receiving incorrect advice from public officials is unlikely to protect you from an adverse finding.
On balance, it is suggested that the claiming of item 14206 by an oncologist would appear to be lower risk than the claiming of venous ultrasounds by a GP (Dr Stirling), though the possibility of subsequent audit and repayment cannot be excluded irrespective of any written or verbal advice you may receive from Medicare. It is up to you.
In regards the second part of the question, regarding whether this service comes under the supervision rules, the answer is no.
The Regulations specifically list the item numbers that are permitted to be administered by someone other than a doctor (such as a nurse), while under the supervision of a doctor. Item 14206 is not on that list and as such, the medical practitioner must personally provide the service to claim item 14206.
Examples and other relevant information
N/A
Who this applies to
All oncologists
When this applies
Always