PSR Director's Update for August 2021

Published date

16 September 2021

A. Director’s Section 92 agreements effective in August 2021

The following agreements entered into by the Director and persons under review (in accordance with s 92 of the Act) came into effect:

An agreement with a radiologist

During the review period, the practitioner was the highest provider of Medicare Benefits Schedule (MBS) item 63173 services rendered in association with MBS item 63176 services across all diagnostic radiology specialists in Australia. The practitioner was also the highest provider of MBS item 63167 services in association with 63176 services, as well as 63167 services in association with 63173 and 63176 services across all diagnostic radiology specialists in Australia.

The Director reviewed this practitioner’s rendering of MBS items 104, 105, 55848, 63007, 63040, 63046, 63167, 63173 and 63176. The Director had persisting concerns that:

for MBS items 104 and 105 (specialist attendance following a referral):
- there was no evidence of personal attendance by the practitioner on the patient for the purposes of a consultation separate to the investigation performed
- there was no referral requesting specialist consultation and the service was not otherwise clinically indicated
multiple brain (63007, 63040 and 63046) and spine (63167, 63173 and 63176) MRI MBS items were co-billed where a single service was performed and reported
MRI brain and spine items were consistently co‑billed with other similar items where not all items were requested or otherwise clinically indicated
informed consent for interventional procedures performed in association with imaging was either not obtained or not adequately documented and
the medical records were inadequate.

The practitioner acknowledged having engaged in inappropriate practice in connection with providing these items of concern. The practitioner agreed to repay $800,000, to be disqualified from providing MBS item 104 and 105 services for 12 months and be reprimanded by the Director.

An agreement with a general practitioner

During the review period, the practitioner rendered MBS items 170, 721, 723, 2712 and 2717 in excess of 99 percent of their peers. The Director reviewed this practitioner’s rendering of MBS items 23, 170, 721, 723, 2712 and 2717 services and prescribing of Pharmaceutical Benefit Scheme (PBS) items 1215Y, 2622B, 3162K, 8288F, 8519J and 8612G. The Director had persisting concerns that:

the practitioner’s records were inadequate. For example, several of the reviewed records were missing patient summaries
the MBS requirements were not met and
the practitioner’s management of patients receiving PBS items 2622B and 3162K was not always appropriate.

The practitioner acknowledged having engaged in inappropriate practice in connection with rendering MBS items 23, 170, 723, 2712, 2717 and prescribing PBS items 2622B and 3162K. The practitioner agreed to repay $75,000, to be disqualified from providing MBS item 170 services for 12 months and will be reprimanded by the Director.

An agreement with a cardiologist

During the review period, the practitioner was the top ranked provider of MBS item 60048 out of all active cardiologists nationally. The Director reviewed this practitioner’s rendering of MBS item 132, 133, 38218, 55113, 55116, 59925 and 60048 services. The Director had persisting concerns that:

the practitioner’s records for MBS items 132 and 133 were inadequate
the MBS requirements were not met. For example, for MBS items 132 and 133, the services were provided to patients who did not have at least two morbidities that warranted the preparation or review of a treatment and management plan of significant complexity
MBS items 59925 and 60048 were co-billed with MBS item 38218 when services which these two items cover are components of the overall comprehensive MBS item 38218 service
not all services were clinically indicated and
patient consent was not always appropriately obtained and documented for procedures.

The practitioner acknowledged having engaged in inappropriate practice in connection with rendering MBS items 132, 133, 55113, 55116 and 60048. The practitioner agreed to repay $330,000, to be disqualified from providing MBS items 132, 133 and 60048 services for 12 months and will be reprimanded by the Director.

An agreement with a general practitioner

During the review period, the practitioner rendered MBS item 2713 services in excess of 99 percent of their peers. The Director reviewed this practitioner’s rendering of MBS items 36 and 2713 services and prescribing of PBS items 2363J, 8254K and 8319W. The Director had persisting concerns that:

the practitioner’s records were inadequate. For example, the practitioner’s services often contained template text of a generalised nature which did not include a specific history or examination for the patient
the MBS requirements were not always met, including minimum time requirements where applicable
the practitioner’s clinical input was inadequate and
the practitioner did not always comply with the PBS restrictions.

The practitioner acknowledged having engaged in inappropriate practice in connection with providing these items of concern. The practitioner agreed to repay $120,000, to be disqualified from providing MBS item 2713 services for 12 months and will be reprimanded by the Director.

An agreement with a general practitioner

During the review period, the practitioner rendered MBS items 721, 723 and 732 in excess of 99, 85 and 98 percent of their peers, respectively. The Director reviewed this practitioner’s rendering of MBS items 721, 723 and 732 services. The Director had persisting concerns that:

the practitioner’s records were inadequate
the MBS requirements were not always met. For example, for MBS item 723 and 732 services, there was not always evidence of two-way communication with team care members, as required by the item descriptors
the patient did not always appear to have been present for some of the reviewed services and
not all services were clinically indicated.

The practitioner acknowledged having engaged in inappropriate practice in connection with rendering these items of concern. The practitioner agreed to repay $130,000, to be disqualified from providing MBS items 721, 723 and 732 services for 12 months and will be reprimanded by the Director.

An agreement with a radiologist

During the review period, the practitioner rendered MBS item 104 in excess of 99 percent of their peers. The Director reviewed this practitioner’s rendering of MBS items 104 and 55848. The Director had persisting concerns that:

the practitioner’s records were inadequate. For example, there was insufficient documentation of a referred specialist consultation, including referral letters, history, examination and management plan elements
not all services were clinically indicated and
the practitioner did not always provide adequate clinical input.

The practitioner acknowledged having engaged in inappropriate practice in connection with rendering MBS item 104. The practitioner agreed to repay $230,000, to be disqualified from providing MBS item 104 services for 12 months and will be reprimanded by the Director.

An agreement with a general practitioner

During the review period, the practitioner rendered a prescribed pattern of services (commonly known as the ‘80/20’ rule) in which 80 or more professional attendances were provided on each of 28 days. The Director reviewed this practitioner’s rendering of MBS items 3, 23 and 91809 services and provision of a prescribed pattern of services. The Director was satisfied that there were no exceptional circumstances in respect of 15 out of the 28 days and the practitioner would be deemed to have engaged inappropriate practice in respect of these days. The Director also had persisting concerns that:

the practitioner’s records were inadequate. For example, there was often no entry recorded by the practitioner for the services
the MBS requirements were not always met and
there was insufficient clinical input across MBS item 3 and 23 services.

The practitioner acknowledged having engaged in inappropriate practice in connection with rendering these items of concern. The practitioner agreed to repay $150,000 and will be reprimanded by the Director.

B. PSR Committee final determinations

No PSR Committee final determinations came into effect in August 2021.

C. Federal Court

One federal court decision was handed down in August 2021.

Karmakar v Minister for Health [2021] FCA 916

The Federal Court comprehensively rejected Dr Karmakar’s challenges to each stage of the Professional Services Review (PSR) process, in which a PSR Committee found that she had engaged in inappropriate practice in providing Medicare services.

Dr Karmakar challenged a number of steps in the process leading up to, and throughout the PSR process, namely:

the action of a delegate of the Chief Executive Medicare to request the Director of PSR to review Dr Karmakar’s provision of services
the decision of the Director of PSR to review Dr Karmakar’s provision of services
the decision of the Director of PSR to refer Dr Karmakar to a PSR Committee to investigate her conduct on connection with her provision of services
the decision of the PSR Committee that Dr Karmakar had engaged in inappropriate practice in connection with the provision of services
the final determination of Determining Authority imposing sanctions on Dr Karmakar.

Justice Logan found that at no stage was there any unfairness. His Honour endorsed the PSR Committee’s approach in investigating Dr Karmakar’s conduct in connection with providing services, in taking into account all the matters put to the Committee by Dr Karmakar, and in the assistance given to Dr Karmakar by PSR to help her understand the process.

In dismissing Dr Karmakar’s application, Justice Logan found no breaches of procedural fairness or any errors of law by the Chief Executive Medicare, the Director of PSR, the PSR Committee, or the Determining Authority.

Dr Karmakar also challenged the Constitutional validity of section 106ZR of the Health Insurance Act 1973 on the ground that it was invalid because it unreasonably burdens political communications. The Court rejected this argument, and noted that the purpose of the section is to protect the identity of the person under review and to protect the privacy of their patients. It did not prevent Dr Karmakar from presenting evidence at the hearing. As the section is subject to other provisions of the Act, which permit a person under review to call witnesses, it does not prevent them disclosing evidence given at a hearing to an expert for the purpose of having that expert give evidence.

D. Referrals to the major non-compliance (fraud) division (89A & 106N)

No matters were referred to the major non-compliance (fraud) division in August 2021.

E. Referrals to AHPRA (106XA/B)

No matters were referred to AHPRA in August 2021.