The Saga of Item 2713-to be 'nudged' or not to be 'nudged'

Written by: Dr. Anchita Karmakar

Okay. Let us all breathe and put things in perspective. These 'letters of nudge' have been going out to various Doctors over many years depending on the flavour of the month. A few years back it was the after-hours billing number, then the skin cancers, and lately the opioid prescribers. This month is mental health. Now that was the last 'nudge' that we all needed to realize the depth of the issues at hand. This is another opinion piece put together with my Solicitor to give some insight into what this 'nudge' letter means and what we can do to not suffer from a mental breakdown ourselves.

What exactly are these letters?

Yes, these nudge letters are annoying and extremely distressing for Doctors. Most have very high work ethics and would like to always think that we are all working in accordance to the law and regulations surrounding Medicare billing. Most of us feel underpaid for the work we do and most of us bend over backward to provide the best care we can for our patients. We also hold a very special place for the most vulnerable of our patients, i.e. mental health patients, and therefore when anybody attacks the integrity or ability to provide care for these patients we get justifiably upset.

However, let us have a logical think about what these letters are and why they are issued. In essence, as we are all assigned public funding money to pay for our services, the government must make sure all dollars disbursed are accounted for properly. In the absence of strict regulations of trust money and accounting regulations as seen in the legal profession and or accounting profession, medical practitioner's obligations are judged on two main things. Good medical records (contemporaneous and adequate) as well as our clinical discretion to decide if the care was appropriate and necessary based on 'peer' opinion.

The letter being issued is a tap on the shoulder to remind you all of this obligation or restriction that applies to the way we make our decisions. The letter itself does not prohibit you from conducting mental health care plans or providing care for any other issues that are encountered on the day. The crucial point is whether you feel the extra point discussed during the mental health care plan external to mental health would be deemed 'immediately requiring attention' by your 'peers' or not. The letter is also not a compelling document forcing you to give up your billing patterns or to voluntarily acknowledge anything if you can justify your decision-making process.

The problem is the definition of what is 'immediate'. We are not psychic and we would not know what the ultimate PSR Committee would decide is appropriate or not. AskMBS is not an authority, Social Media platforms and letters created stating collective peer views and or other course materials, advice, etc are not the authority. The authority still lies with the PSR Committee decision as it stands today by law.

The ultimate 'right' we should be fighting for is the right to have transparent, consistent and legally endorsed standards of biling. Not the ability to care for our mental health patients but the ability to have consistent and fair rules regarding the billings for the services we provide.

What does a Solicitor say?

David Gardner who is the principal solicitor working on our constitutional challenge against medicare/PSR says the following:

"The question regarding item 2713 and 23 is an interesting one. The natural reading of item 2713 is that it is a consultation in respect of a mental disorder – not a mental disorder and other issues. The MBS online explanatory notes do contain the words:

 'The GP Mental Health Treatment Consultation item is for an extended consultation with a patient where the primary treating problem is related to a mental disorder'

but as we know, those notes don’t have any legal standing, and that interpretation doesn’t arise anywhere on the natural reading of that item. Item 23, likewise, doesn’t suggest that it can’t be claimed alongside 23.

 Where there are adequate notes for both items, and time was spent on each (i.e. it wasn’t a 20 second very brief chat on another topic), it is difficult to interpret the MBS items in such a way that prevents them from both being claimed.

 Having a quick skim of the General Explanatory Notes concerning this issue I cannot see anything that expressly prohibits claiming for both 2713 and 23 together (i.e. I can’t see a prohibition on claiming two attendances). This requires a closer observation of the general notes and it would be interesting to see, on closer reading, if there is anything that comes close to that. There is one statement that is semi-relevant (but it’s not in respect of two consultations):

 'Other Services at the Time of Attendance-Where, during a single attendance by a general practitioner, both a consultation and another medical service are rendered, Medicare benefits are generally payable for both the consultation and the other service. Exceptions are in respect of medical services which form part of the normal consultative process, or services which include a component for the associated consultation (see the General Explanatory Notes for further information on the interpretation of the Schedule).'

 In short, I don’t think it’s a cut and dry answer, which is why it is a little surprising that recovery is being sought in the manner that it is."

What should we do and what is the real solution?

Regardless of receiving the letter or not, if you as a clinician know that you are billing correctly following the requirement of a MHCP and you deemed it necessary that the patient required immediate attention for the additional issue at hand, continue doing what you are doing. When and if an audit comes, be transparent and provide your explanation and make sure you call me :) .

Yes, it would nice to get out of going to PSR, but if we do not stand up as a profession, be accountable for our billing and stop mitigating, the problems will not stop. I would encourage all of us to go through to the PSR Committee hearing if this is what you have been asked to do because that is the only place at the moment which sets the standards to what level of practice you should be aiming for. Engage impartial external solicitor specialising in the area away from your medical defence appointed lawyers and fight the fight.

Until this court case in April is successful the only way to find out is to go through the process. Once you are audited and been grilled by the PSR you have full authority and clarity about what you can and cannot bill. For example, if I lose my court case, and I will be made to repay my $400,000(approx). At that point I would adjust my income and tax so I ultimately would be paying $200,000 over a certain agreed period. However, what does this give me? The full authority knowledge and power to know how exactly to bill the six-item numbers I was prosecuted for and not ever be in trouble again. It's not fraud, its not a criminal offence, its like a speeding fine, a civil offence which I need to payback. To be honest, it is almost like a 200K investment to gain concrete bulletproof knowledge of the high ticket item numbers in General Practice. I am sure as a qualified successful GP I would be able to recover this lost income nicely with the sound mind that I will not be in the 'wrong' again.

Dear colleagues, don't panic. Let's be cool and calm, collected and strong about this situation. We bring people back from death bed and run incredible life saving resus. This is not that bad. Getting the letter is nothing to be depressed or ashamed about. It is just an administrative process that the government takes to keep their part of duties and their importance relevant. It does not and will not dictate or define the personal, professional integrity we hold as healthcare professionals.

There are however potential fatal errors in the process and that is why we have successfully put the process to trial so that we can get a clear understanding of our legal rights as medicare billing healthcare professionals. If you are told to respond or do anything about these 'nudges' before the 3rd of April, it would be my opinion to get an extension as a lot of the laws may or may not change as of that day.

If you are a medicare billing healthcare worker, join our Facebook page for more insights and platforms to ask questions regarding billing:

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Disclaimer: I am not a lawyer yet so please seek private legal advice and do not take this article as legal advice. Opinion provided by David Gardner is not to be taken as legal advice unless he is retained by you professionally.