The new MBS item offends not just GPs but every rule of legal drafting – probably because it was written by cardiologists.
For a lesson in how not to revise clinical terminologies, look no further than the ECG changes made to the MBS, which have rightly come under intense and sustained criticism.
When drafting or revising clinical terminologies there should always be an expert clinical terminologist and a data specification expert at the design table.
Clinical terminologists understand the structure and design of clinical code systems, while data specification experts are typically computer scientists with skills and training in information models and ontologies, who have specialised in EMR systems.
Together, these digital health professionals bring to the table deep understanding of how computers exchange information, and have practical skills in representing clinical concepts within a domain. Both of these types of experts are thin on the ground both nationally and internationally, but those that we have, do the critically important international work of drafting and updating the many clinical code sets and classification systems in use around the world such as ICD, ICHI, LOINC and SNOMED.
Internationally, there is growing acceptance of the need to use words consistently when describing clinical services. Because, well, let’s face it, the actual clinical things we do to patients are the same anywhere in the world – an Australian ECG is no different to an ECG done in Switzerland or Egypt. This is why we are seeing organisations like the American Medical Association aligning its MBS equivalent (CPT codes) with SNOMED. This important alignment of clinical vocabulary products recognises that in modern, digitally driven health systems, we all need to be speaking the same language.
In Australia, because MBS codes dispense public money, each MBS code and description is a law. The challenge, therefore, is to find a way to keep MBS codes aligned with other international terminologies, while also ensuring each code is drafted with legal precision so that it can be understood by clinicians and interpreted by courts.
The five basic rules of good legal drafting are:
- the design of the whole instrument should be understood and incorporated;
- nothing should be included or omitted at random;
- the order of the draft should be strictly logical;
- ordinary and accustomed forms of technical language should be used; and
- legal language should be precise and accurate as far as possible.
My research found that, in addition to MBS codes having become more divergent from international codes as a result of the MBS review taskforce, these basic legal drafting rules are routinely overlooked by those who draft MBS items.
A review of ECG item 11707 is illustrative. Here’s the description:
“Twelve-lead electrocardiography, trace only, by a medical practitioner, if:
(a) the trace:
(i) is required to inform clinical decision making; and
(ii) is reviewed in a clinically appropriate timeframe to identify potentially serious or life-threatening abnormalities; and
(iii) does not need to be fully interpreted or reported on…”
What’s wrong here?
Firstly, when considering the whole of Medicare’s statutory scheme, there is already an overarching legal requirement that all services must be clinically relevant. So, points (i) and (ii) make no sense whatsoever. Do the phrases “required to inform clinical decision making” and “a clinically appropriate timeframe” represent new standards? If so, do they replace the clinical relevance standard in relation to ECGs, or do these new standards apply in addition to clinical relevance? If so, how does one differentiate these standards? I mean, what exactly is the difference between a clinically relevant ECG, and an ECG that is required to inform clinical decision making?
Secondly, the service includes the words “trace only” but point (ii) imposes a second action, which is a review. Therefore, the term “only” should be removed because it is incorrect and misleading. The regulation requires more than a trace, it requires trace and review.
Thirdly, the inclusion of negatives is unnecessary and confusing. If the service does not need to be fully interpreted or reported on then this should be omitted. Further, if “fully interpreted” is another new standard beyond the overarching existing standard of keeping “adequate and contemporaneous records”, it should also be explained and differentiated.
Fourthly, and of significant concern, is an example of potential entrapment into guilt. The service requires that the ECG “is reviewed in a clinically appropriate timeframe to identify potentially serious or life-threatening abnormalities”, so what happens if the ECG does not identify potentially serious or life-threatening abnormalities? Is the clinician guilty of an offence? Does the service become no longer clinically relevant and therefore the claim non-compliant if the patient’s pain isn’t cardiac?
The requirements to claim this simple, universally accepted and important test, have now become so onerous that in addition to compliance challenges for clinicians having increased, government oversight has all but been lost because it is relatively easy to circumvent the requirements. One obvious workaround is to continue doing ECGs when required, but rather than claim them like we used to – claim the old ECG item 11700, with an attendance item – bundle the two and claim a long attendance item. This will cost the government more, and reduce visibility over service provision. Meaning the ECGs that the government once saw may have gone underground, compromising the collection of critical public health data.
It is also a reasonable expectation that Australian laws are drafted by parliamentary drafters, so it is somewhat concerning that the ECG laws were enacted, almost completely unchanged, after having been drafted by a group of cardiologists.
Interestingly, the current ICHI and SNOMED descriptions of a standard 12 lead ECG are clear, concise, and very similar to what we had before – basically, “12 lead ECG, trace and report”.
Given the MBS review taskforce had a stated purpose of aligning contemporary clinical evidence and practice to improve health outcomes, it seems strange that the rest of the world not only describes their ECGs differently to ours, but also accepts that GPs are suitably qualified to conduct and interpret them.
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.