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COVID MBS items Explainer and FAQs, No. 22, 7 April 2020

Dear Doctors and Health Care Workers

Lots to share today. Great news for some with expansion of specialist services, but a whole new world of pain opened up with public patients moving to private hospitals – that’s public in private not private in public.

In the interests of brevity, tonight we will provide an overview of the new changes (plus a table with the most common new items and rates), and answer the pressing question about public patients in private hospitals, which is a dam about to burst. So, for those of you who sent in other questions today, I am planning to work on them tomorrow morning and get them out by mid-afternoon.

Let’s start with the big changes.

1.  Review of the bulk billing issue one more time.

Basically, most of the forced bulk billing requirements have been pared back, but not as much as you might think. The exceptions to forced bulked billing include concessional patients and COVID vulnerable patients (which includes a lot of patients). Read on.

Old Law (when I say old, I mean like last week’s law):

8  Application of items – general

(4)   An item in a Schedule only applies to a service that is bulk-billed.

New law (in force from yesterday, 6 April 2020):

2  Subsection 8(4) – (that’s the one above)

Repeal the subsection, substitute:

(4)  An item in a Schedule only applies to a service provided to the following persons if the service is bulk-billed:

(a)  a person who is a patient at risk of COVID-19 virus; or

(b)  a person who is a concessional beneficiary; or

(c)  a person who is under the age of 16.

On most of the new COVID item descriptors in MBS online, the following text appears:

“NOTE: It is a legislative requirement that the service must be bulk billed where the service is provided to a concessional or vulnerable patient at the time the service is provided. For all other patients the service may be bulk billed.”

However, the relevant underlying bulk billing law in the Principal Act, the Health Insurance Act 1973, makes ALL bulk billing voluntary by use of the word may.

“20A  Assignment of Medicare benefit

(1)  Where a medicare benefit is payable to an eligible person in respect of a professional service rendered to the eligible person or to another eligible person, the first‑mentioned eligible person and the person by whom, or on whose behalf, the professional service is rendered (in this subsection referred to as the practitioner) may enter into an agreement, in accordance with the approved form, under which:”

So, we are at the same place we were when we issued bulletin 1 with an obvious, glaring inconsistency between the subordinate legislation (the COVID Determinations) and the Principal Act. In my view, if tested, the Principal Act would likely prevail, but we are in extraordinary times so let’s hope we never get there.

Whilst the new Determinations, when read together, appear to have alleviated some of the issues many of you have been dealing with, take note that forced bulk billing of under 16s means pretty much all Paediatricians are forced to bulk bill all of their patients, and the definition of COVID vulnerable patients includes anyone over 70, so that will impact Geriatricians, and the immune compromised provisions will affect Oncologists and chronic conditions will affect just about everyone. Maybe a fair summary is that you can charge what you want as long as you don’t treat sick people.

Here’s the COVID vulnerable patient definition in the new Determination:

“1  Subsection 5(1)


patient at risk of COVID-19 virus means a person who:

(a)   is required to self-isolate or self-quarantine in accordance with guidance issued by the Australian Health Protection Principal Committee in relation to COVID-19; or

(b)  is at least 70 years old; or

(c)  if the person identifies as being of Aboriginal or Torres Strait Islander descent—is at least 50 years old; or

(d)  is pregnant; or

(e)  is the parent of a child aged under 12 months; or    

(f)  is being treated for a chronic health condition; or

(g)  is immune compromised; or

(h)   meets the current national triage protocol criteria for suspected COVID-19 infection.”

IMPORTANT ongoing arrangements:

IMPORTANT new items

Below is a table with the most common items, their MBS equivalents, and the actual rebate payable, which is the 85% outpatient rebate.

Existing MBS Items COVID Video COVID Telephone Actual rebate (85%) Who can claim
104 91822 91832 $75.05 Surgeons
105 91823 91833 $37.70
110 91824 91834 $132.30 Physicians
116 91825 91835 $66.25
132 92422 92431 $231.35
133 92423 92432 $115.85
141 92623 92628 $396.80 Geriatricians
143 92624 92629 $248.05
291 92435 92475 $396.80 Psychiatrists
293 92436 92476 $248.05
296 92437 92477 $228.20
300 91827 91837 $38.00
302 91828 91838 $75.80
304 91829 91839 $116.70
306 91830 91840 $161.00
308 91831 91841 $186.85
135 92140 92143 $231.35 Paediatricians
90261 92163 92167 $231.35
90267 92173 92179 $115.85


3.  We are now admitting public patients to our private hospital due to COVID arrangements put in place between the States, Feds and Private Hospitals. I am going to bulk bill these patients to Medicare. Is that ok?

No, it is not OK.

If a patient has elected to be treated as a public patient in a public hospital, it does not matter where the patient is treated, it is illegal to bill these patients to Medicare.

Let’s wrap a bit of law around this.

First, the National Health Reform Agreement Business Rule G16 states:

“Where care is directly related to an episode of admitted patient care, it should be provided free of charge as a public hospital service where the patient chooses to be treated as a public patient, regardless of whether it is provided at the hospital or in private rooms.”

Second, section 3(1) of the Health Insurance Act 1973 (HIA) defines a public patient as:

“public patient, in relation to a hospital, means a patient in respect of whom the hospital provides comprehensive care, including all necessary medical, nursing and diagnostic services and, if they are available at the hospital, dental and paramedical services, by means of its own staff or by other agreed arrangements.”

Third, section 19(2) of the HIA provides that:

“19  Medicare benefit not payable in respect of certain professional services

             (2)  Unless the Minister otherwise directs, a medicare benefit is not payable in respect of a professional service that has been rendered by, or on behalf of, or under an arrangement with:

                     (a)  the Commonwealth;

                     (b)  a State;

                     (c)  a local governing body; or

                     (d)  an authority established by a law of the Commonwealth, a law of a State or a law of an internal Territory.”

Fourth, section 128C of the HIA states:

“128C  Charging of fees for provision of public hospital services to public patients

             (1)  A person mentioned in subsection (2) must not, in circumstances set out in the regulations:

                     (a)  charge a fee for the provision of a public hospital service; or

                     (b)  receive any payment or other consideration from anyone in respect of the provision of a public hospital service;

if the person knows that the person to whom the service is, or is to be, provided is, or intends to be, a public patient in the hospital.”

Making sense of it all

In a nutshell, it does not matter where you are physically located, that is irrelevant to billing decisions.

The fact that you are working in a private hospital is of no concern. The relevant consideration and the question to ask yourself is ‘what is this patient’s status right now?’

Ask yourself if the patient is an admitted public patient, a non-admitted public patient, a private outpatient, an admitted day patient and so on.

It’s not always easy to know of course, but I always suggest applying the wrist/ankle band test. If a patient is wrist/ankle band positive, they are very likely an admitted patient (but not always).

When read together, the above law provides that if a patient is a public patient who has been moved to a private hospital under a bed purchasing agreement you cannot bill that patient to Medicare, unless there is a Section 19(2) exemption in place or another formal legal arrangement. The patient remains a public patient even though they are in a private hospital.

The Government will need to swiftly make appropriate arrangements as this unfolds.

Thanks everyone

Till tomorrow.

Margaret and the Synapse team.

COVID MBS items explainer and FAQs No. 23, 8 April 2020…Read more

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