OH 2020/0713
Answer
No, not as a modus operandi, though it may be appropriate sometimes.
Context
A haematologist said that he and some colleagues were considering personally performing bone marrow aspirates and trephines (items 30084 and 30087) and explained that the MBS rebates for these procedures barely covered the cost of consumables, let alone the time taken, so they would have to charge gaps. However, he had heard that they could also claim an item 110 or 116 consultation item number at the same time as every aspirate procedure, because they review the patient’s appropriateness for the procedure, and their consent. This advice was incorrect.
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 Medicine and Philosophy: Ethical Issues in Physician Billing Under Fee-For-Service Plans https://academic.oup.com/jmp/article-abstract/45/1/86/5700357?redirectedFrom=fulltext
2. 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
3. Professional Services Review, Annual Report 2008/9
4. Recent commentary in Australian Doctor: “Co-claiming won’t get you in trouble, insists health department.”
Case law
N/A
Departmental interpretation
mbsonline.gov.au (accessed 3 July 2020)
GN.14.36
Consultation and procedures rendered at the one attendance
Where, during a single attendance, a consultation (under Category 1 of the MBS) and another medical service (under any other Category of the Schedule) occur, benefits are payable subject to certain exceptions, for both the consultation and the other service. Benefits are not payable for the consultation in addition to an item rendered on the same occasion where the item is qualified by words such as “each attendance”, “attendance at which”, “including associated attendances/consultations”, and all items in Group T6 and T9. In the case of radiotherapy treatment (Group T2 of Category 3) benefits are payable for both the radiotherapy and an initial referred consultation.
Where the level of benefit for an attendance depends upon the consultation time (for example, in psychiatry), the time spent in carrying out a procedure which is covered by another item in the MBS, may not be included in the consultation time.
A consultation fee may only be charged if a consultation occurs; that is, it is not expected that consultation fee will be charged on every occasion a procedure is performed.“
Detailed Reasoning
First let’s take a step back in time, because understanding that co-claiming has been a problem since 1975 provides useful context. Below is the relevant section from the very first MBS under Medibank in 1975, and not much has changed.
The wording of the old clause 58D remains largely unchanged in today’s MBS, which is copied above.
Co-claiming has always been contentious, most recently highlighted in the context of GPs co-claiming a consultation and a mental health care plan at the same time, which you can read about in the above cited article in Australian Doctor. But it has always been a problem to the point where a blanket ban provided for in Regulation 1.2.4 of the General Medical Services Table now prevents the co-claiming of some consultation items on the same day as any procedure attracting a rebate of over $304.80.
In the present scenario, there is no legal ban on claiming an item 110 or 116 with either of items 30084 or 30087 (because the rebates for both items are well under the $300 threshold), but that does not mean you should do it.
Consider the below content copied from the 2008/9 Annual Report of the PSR, which related to the conduct of a gastroenterologist who always billed a consultation with his procedures:
“On examination of Dr X’s medical records the Director was concerned that Dr X had charged a consultation item on the same day as he had carried out a gastroscopy. As Dr X had determined at a previous consultation that gastroscopy was indicated, no clinical justification existed for billing a further consultation item at the time of the gastroscopy...This case should be a reminder to all practitioners who undertake procedural work. It is inappropriate to charge a consultation item at the same time as a procedure unless there is a clinical necessity for that consultation separate from the performance of the procedure. The time taken for the procedure is included in the MBS benefit. MBS benefits are not paid for saying hello to a patient on an operating theatre trolley.”
Turning now to the substantive law, Section 51(xxiiiA) of the Australian Constitution relevantly grants the Federal Government power to make laws for (among other things) “medical and dental services.”
The Health Insurance Act 1973 (HIA) is a Act made under Section 51(xxiiiA) and prescribed medical services, (which come under the banner of ‘professional services’) are approved by the minister and set out in the Regulations. Then Section 3 of the HIA defines a ‘professional service’ as needing to be be clinically relevant.
So, what all this means in practice is that there is a schedule of services available (widely known as the MBS) and in choosing which services you bill, you are required to make each choice based on clinical relevance, which is defined as necessary for the treatment of the patient, judged by your peers.
For the most part, if you are ever in doubt, by returning to this central and most fundamental tenet of every Medicare claim – clinical relevance – you will usually have no difficulty determining when it may be appropriate to add a consultation item and when it is not.
In this scenario ask yourself: ‘is the consultation (in addition to the biopsy) clinically relevant?’ Or, put another way: ‘would a body of my peers think that doing another consultation on my patient is necessary for their treatment today, when I consulted the patient last week and nothing has changed?’ If the answer is no, and all you are really doing is saying hello to the patient and going ahead as planned, it would not be clinically relevant to claim a consultation. On the other hand, if something has changed, say the patient has become unstable or has new symptoms or a fever etc, then a consultation may be appropriate and there is no legal barrier to you co-claiming it.
You must of course always keep adequate and contemporaneous records to support your decision.
Examples and other relevant information
Adopting a model of always claiming a consultation with a procedure solely on the basis of financial return is completely inappropriate, non-compliant and high risk from an audit perspective, because the question of clinical relevance in co-claiming scenarios is a well known area of vulnerability in all fee-for-service schemes (FFS).
Sometimes, these types of decisions are not so much legal as ethical, so it is always worth remembering that the sustainability of Medicare depends heavily on each individual doctor’s integrity.
The above cited article, by a Canadian academic, on the ethics of medical billing in FFS schemes, is highly recommended reading.
Some items in the MBS specifically state that consultations/attendances are included in the item and cannot be claimed separately, so always check by reading the item description before you claim.
Who this applies to
Anyone claiming procedural items.
When this applies
Always