PSR Director's update for February 2023

A. Director’s Section 92 agreements effective in February 2023

No agreements entered into by the Director and persons under review (in accordance with s 92 of the Act) came into effect in February.

B. PSR Committee final determinations

PSRC 1245

On 24 February 2023 a final determination came into effect regarding a general practitioner. The practitioner was directed to:

• be reprimanded
• be counselled
• repay the amount of $633,904.98 to the Commonwealth, which represented total of the benefits paid in respect of MBS items 23, 36, 44, 703, 721, 2712, 2715, 2717, 30041, 30186 and 30195 in connection with which the practitioner was found to have engaged in inappropriate practice in a final report of a PSR Committee
• be disqualified from rendering MBS item services 36, 44, 703, 721, 2712, 2715 and 2717 for a period of 12 months

In relation to the MBS item 23 services the Committee made findings on the basis of one or more of the following:

• MBS requirements were not met including that there was no clinical content recorded reflecting the relevant requirements
• The medical record was inadequate
• The attendance comprised routine after care for which the practitioner was not eligible to bill Medicare
• The practitioner’s clinical input was insufficient

In relation to the MBS item 36 and 44 services the Committee made findings on the basis of one or more of the following:

• MBS requirements were not met including that there was insufficient clinical input to justify a consultation of at least 20 or 40 minutes’ duration respectively
• The medical record was inadequate
• The practitioner’s clinical input was otherwise insufficient
• On occasion there was no evidence to support the provision of a MBS item 44 service

In relation to the MBS item 703 services the Committee made findings on the basis of one or more of the following:

• MBS requirements were not met including that the practitioner did not perform a health assessment on the date of service and/or the patient was not eligible for a health assessment
• The medical record was inadequate

In relation to the MBS item 721 services the Committee made findings on the basis of one or more of the following:

• MBS requirements were not met including that a general practitioner management plan (GPMP) was not prepared on the date of service and/or the patient was not eligible for a GPMP
• The medical record was inadequate

In relation to the MBS item 2715 services the Committee made findings on the basis of one or more of the following:

• MBS requirements were not met including that there was no evidence that a general practitioner mental health treatment plan (GPMHTP) was prepared on the date of service
• The medical record was inadequate

In relation to the MBS item 2717 services the Committee made findings on the basis of one or more of the following:

• MBS requirements were not met including that the including that there was insufficient clinical input recorded to justify a consultation of at least 40 minutes’ direction and/or the practitioner did not complete a GPMHTP on the date of service
• The patient did not attend on the date of service
• The medical record was inadequate

In relation to the MBS item 30041 services the Committee made findings on the basis of one or more of the following:

• MBS requirements were not met including that the patient’s would was not greater than 7cm long and/or did not involve deeper tissue
• The medical record was inadequate

In relation to the MBS item 30186 services the Committee made findings on the basis of one or more of the following:

• MBS requirements were not met including that there was no removal of palmar or plantar warts on the date of service, or if they were removed it was not by the required method
• The medical record was inadequate

In relation to the MBS item 30195 services the Committee made findings on the basis of one or more of the following:

• MBS requirements were not met including that the practitioner treated skin tags or warts which were explicitly excluded by the MBS item descriptor, the removal method was no appropriate for the item descriptor and/or the practitioner did not perform any procedure on the date of service
• The practitioner’s clinical input into the service was inadequate
• The medical record was inadequate

C. No further action decisions

In February 2023, the Acting Director made a decision to take no further action (under s 91 of the Act) in connection with three reviews.

Request to review an obstetrician-gynaecologist

The Acting Director reviewed a random sample of attendance and procedural services, which had been rendered at variance to peers. The Acting Director formed the view that the practitioner demonstrated a sound understanding of professional services able to be billed under Medicare and was able to satisfactorily explain certain anomalies in the records reviewed.

Request to review a pain medicine specialist

The Acting Director reviewed a random sample of attendance and procedural services, which had been rendered at variance to peers. The Acting Director formed the view that the practitioner generally met the MBS item requirements and provided sufficient clinical input and some minor anomalies in these areas and with record-keeping were not of such concern that a Committee could find inappropriate practice.

Request to review a general practitioner

The practitioner rendered total and daily in variance to their peers. The Acting Director reviewed a random sample of services rendered as MBS attendance items. The Acting Director formed the view, after reviewing the patient records, that the practitioner’s notes reflected satisfactory consultations meeting MBS requirements.

D. Federal Court

One decision concerning PSR was handed down in February 2023

Barnes v Director of Professional Services Review [2023] FCA 129

This case concerned the decision of the Director to refer the matter to a Committee rather than first seeking to enter into a section 92 agreement. It was argued that by arranging and then cancelling a proposed meeting following receipt of Dr Barnes’s response to a section 89C report, he was denied the opportunity to seek to enter into an agreement.

The Court rejected this, saying:

"The applicant was offered an opportunity to make submissions, which he took. Thereafter it was open to the Director to determine which of the three courses available under s 89C to take. There is nothing in the Act, or the common law, to indicate that procedural fairness required the Director to give the applicant successive oral hearings, or to receive an early indication from the Director that she was not proposing to enter into an agreement. Procedural fairness does not require that the decision-maker disclose what she is minded to decide so that the parties may have a further opportunity to criticise her mental processes before she reaches a final decision"

This case also concerned the fact that the Director did not disclose to Dr Barnes, either at interview or in the s89C report, all the adverse comments made by a consultant whom the Director had engaged in the course of the review. The consultant had made comments to the effect that from the information available, it appeared that Dr Barnes may have acted fraudulently. The Director did not put those comments or that allegation to Dr Barnes. The evidence before the Court showed that PSR officers had immediately investigated the fraud allegations, found that they had no substance, and informed the Director of that finding. The Court said:

"In the circumstances, in my view the particular opinions given by the Consultant which were anterior to the provision of the Report were not matters that the Director was required to disclose or put to the applicant in making her decision under s 89C(2)."

The Court dismissed the application.

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

No matters were referred to the major non-compliance (fraud) division in February 2023.

F. Referrals to AHPRA (106XA/B)

No matters were referred to AHPRA in February 2023.