Last updated: 01 Jun 2020
This article is reproduced courtesy of MIPS panel lawyers Meridian and was written by Principal Kellie Dell’Oro and Associate Anna Martin.
As part of the national health response to the COVID-19 pandemic, the Australian Government has rolled out new temporary Medicare Benefit Scheme (MBS) ‘telehealth’ items. The purpose of these item numbers is to enable patients to receive essential health care during the pandemic whilst reducing the community transmission of COVID-19. At this stage, the item numbers will be available for use until 30 September 2020 inclusive, however their continuing availability will be reviewed prior to that date.
The new item numbers have been introduced in a staged process, but as of 20 April 2020 the types of services that are now available via telehealth include, but are not limited to, GP services and some consultation services provided by other medical specialists, nurse practitioners, mental health treatment, chronic disease management and some allied health services.1
So how do you perform a consultation via ‘telehealth’?
The Department of Health has made clear that videoconferencing services are the preferable substitute for a face-to-face consultation, but it has not been prescriptive about the type of software or technology that providers need to use in order to meet the requirements of the new MBS item numbers. That being said, providers must ensure that whichever software they select meets both their clinical requirements and satisfies privacy laws.2 The MBS Online website refers providers to the Australian Cyber Security Centre website for information on how to select a web conferencing solution.
If videoconferencing is not available, providers are permitted to use audio-only services via telephone. However, note that the MBS item numbers specify whether they are to be used for a videoconference or telephone-only service – providers should carefully review the new numbers to ensure they are using the correct number for billing purposes.
It is a legislative requirement that GPs and Other Medical Practitioners must bulk bill the new telehealth services for certain patients (including those who are more vulnerable to COVID-19), but these providers are permitted to use their usual billing practices for patients who fall outside of that select criteria (for information about the technical use of the new telehealth item numbers, and to review the item numbers themselves, we recommend visiting the MBS Online website. It is expected that practitioners will obtain informed financial consent from patients prior to providing any telehealth service, including providing details about the practitioner’s fees and any out-of-pocket costs.
But will the use of ‘telehealth’ always be appropriate?
The answer is, no. The Department of Health has made it clear that a service may only be provided by telehealth where it is safe and clinically appropriate to do so.3 Although the item number descriptors themselves make no mention of this requirement, AHPRA recently released guidance which sets the expectations for all providers when delivering health services using telehealth.4 These expectations are echoed in the Medical Board’s Guidelines for Technology Based Consultations dated 16 January 2012 – namely, that the National Boards have the same expectations of practitioners using telehealth to provide patient consultations/patient services as they do when practitioners are delivering services face-to-face.
Critically, the limitations around the use of a telehealth consultation to provide a particular health service need to be at the forefront of practitioners’ minds and on a case by case basis. For example, practitioners ought to consider whether this a consultation which, if conducted face-to-face, would add no further value than if conducted over the telephone? Or, is this a consultation which requires a physical examination in order to properly diagnose the presenting complaint? If it is the latter, in our view it will not be sufficient to simply tell the patient about the limitations of a telehealth consultation and rely on this disclosure defensively without conducting the necessary examination. If required, further arrangements ought to be made to provide full and appropriate clinical care. This may mean arranging for an in-person consultation/examination for the patient with a colleague if you are unable to conduct it yourself.
In a Webinar delivered on 9 April 2020 and hosted by Deputy Chief Medical Officer, Professor Michael Kidd AM, Professor Kidd addressed the issue of appropriate clinical care directly and urged medical practitioners to exercise their clinical judgement in deciding whether it is appropriate to conduct a consultation via telehealth. He suggested that in some instances, practitioners may do an initial telehealth consultation only to discover that they do, in fact, need to see the patient in person as well. However Professor Kidd was also eager to encourage the use of telehealth items where possible and appropriate – they have been created to assist the community during this pandemic, and ought to be employed.
Patient privacy is another key issue that medical practitioners need to consider when using telehealth to conduct consultations. AHPRA guides practitioners to confirm the identity of the patient at each consultation, which may be more challenging if telephone is used (as opposed to videoconferencing), or if the patient is a new patient for the practitioner. The Medical Board warns that doctors should be aware that it may be difficult to ensure unequivocal verification of the identity of the patient in these circumstances.5 Also consider the location and surrounds in which the telehealth consultation is conducted – if it is not at the practitioner’s usual practice site (for example, because the practitioner is conducting consultations from home), consider what measures need to be implemented to protect patient privacy during the consultation.
Finally, all registered health practitioners who intend to use telehealth to conduct patient consultations ought to ensure that they have appropriate professional indemnity insurance arrangements in place for all aspects of their practice, including telehealth consultations. We encourage practitioners to contact their professional indemnity insurer about their intentions to use telehealth, and confirm that the appropriate coverage is in order.
Disclaimer: This information is current as of April 2020. This article does not constitute legal advice and does not give rise to any solicitor/client relationship between Meridian Lawyers and the reader. Professional legal advice should be sought before acting or relying upon the content of this article.
For up to date information on Covid Temporary MBS Telehealth Services see http://www.mbsonline.gov.au/internet/mbsonline/publishing.nsf/Content/Factsheet-TempBB
-  MBS Online Medicare Benefits Schedules – COVID-19 Temporary MBS Telehealth Services
-  Ibid.
-  COVID-19 Temporary MBS Telehealth Services (GPs and Other Medical Practitioners) MBS Changes Factsheet updated as at 20 April 2020
-  AHPRA FAQ “Telehealth Guidance for Practitioners” dated 16 April 2020
-  Medical Board’s Guidelines for Technology Based Consultations dated 16 January 2012