21 June 2022

Ignorance of the law is everywhere

Comment KnowCents Medicare Medicolegal

Doctors are vulnerable, not only to impenetrable codes but also to bad ‘official’ advice. Fix that and we can turf the PSR.


When a senior government official told me that MBS billing was not really law, I replied: “Oh, well, look I think someone needs to tell the Federal Court that, because they think it’s law.”

The back story to this conversation was incorrect legal advice provided by a DOH representative to a large group of doctors during a webinar on which I was a panellist. The advice was so troubling that as the only lawyer in the room, I had no option but to call it out on the spot. It was uncomfortable.

Immediately following the webinar, I received a call from a participant who said that the doctors would follow the advice of the DOH and go ahead billing as he had incorrectly advised them to do. He said that everyone would basically ignore my advice. This was not surprising given the incorrect DOH advice meant open slather incorrect billing of MBS item 13950 at huge cost to taxpayers.

But you can’t blame the doctors. In the absence of nationally centralised, reliable advice and support, doctors will always follow the advice of whoever tells them what they want to hear. And many doctors unfortunately still believe that DOH advice is reliable, or is at least the closest thing we have to a central source of truth.

A few days later, after communicating my concerns to the DOH, the incorrect advice was retracted, and the offending information sheet quickly disappeared without trace from the Mbsonline website – except that I had downloaded the before and after information sheets, both of which made it into my PhD.

Item 13950 is basically parenteral administration of chemotherapy. A common scenario when it is billed involves patients receiving three days of chemotherapy via a pump. Typically, the patient will attend on day one to get the infusion under way, and will then go home for two nights, before returning for the disconnect on day three. Treating oncologists rarely attend these patients on any of the three days unless something goes wrong. The entire process is managed by nurses in accordance with accepted clinical practice and vague Medicare supervision arrangements.

The initial online information about the billing of item 13950 stated that “item 13950 may be claimed on the day where the pump or device is disconnected”.

Four months prior to the introduction of item 13950, the PSR reported an oncologist had engaged in inappropriate practice for doing precisely what the department endorsed through the above phrase (using a former equivalent item number). The unlucky doctor was required to repay $135,000 and was disqualified from certain billing for 12 months.

I say unlucky, because four months later, that same doctor might have avoided investigation altogether by relying on the subsequent DOH advice. Timing is everything!

The initial information sheet was titled “Information release #4” and was dated 20 October 2020. It was removed and replaced with an updated advice dated 30 October 2020, but somewhat curiously, the updated advice was also titled “Information release #4”.

It is unclear why the department did not use standard business practices of document version control when updating the document. The later version should properly have been titled “Information release #5” to protect doctors who may have downloaded and relied upon the earlier version containing incorrect legal advice, thus exposing them to compliance risk and the possibility of a PSR investigation.

The doctors who participated in my research expressed a general lack of interest in billing. So, having attended a webinar to bring themselves up to date with MBS billing changes, my impression is that most would have walked away holding tight to the incorrect information conveyed by someone they believed they could trust, and would be unlikely to have engaged with any subsequent corrections or updates.

Of even more concern is the fact that this is not something the department can control by hard blocking the item number on the backend system, nor is it something that will be immediately apparent as an incorrect claim. These claims will sail through and be paid without question. We are already seeing many of them.

And so, we wait for the nudge letters, or Medicare investigation letters, when we expect some doctors will pull out “Information release #4” (the first version), only to be told it was replaced 10 days later and they should have kept up to date. And of note, “Information release #4” (either version) will be of no use to any oncologist who ends up in the Federal Court challenging a PSR “not really law” decision. They’ll be going into battle without a shield.

We can do better than this.

Step one is to recognise that Medicare is system of laws. And to better protect doctors, disciplined adherence to regulated law-making through parliamentary processes is required, rather than the current “law-on-the-run” approach.

We must also alleviate Medicare audit anxiety, and part of the solution there is to use digital solutions to provide more information upfront. We wouldn’t need incomprehensible information sheets if we did that, plus we would reap the benefits of harmonising our codes and classifications with international standards. We also wouldn’t need the PSR!

There’s a lot of work to be done, and this is only a start, but wouldn’t it be great if you could just get on with practising medicine without, as one of the GPs who participated in my research put it, having “the threat of audit kind of hanging over” everything you do.

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