PSR Director's Update for July 2021

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

The following six 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 co-claimed Medicare Benefit Schedule (MBS) items related to magnetic resonance imaging (MRI) head services and spinal MRI services in excess of 99 per cent of their peers. The Director reviewed this practitioner’s rendering of MBS) items 104, 63001, 63007, 63040, 63043, 63151, 63167, 63176 and 63182. The Director had persisting concerns that:

• for MBS item 104 there was no evidence of
  • a personal attendance on the patient by the practitioner or
  • a consultation that occurred separately to a diagnostic procedure being performed or
  • a clinical indication for consultations which were provided.
• multiple head and spine MRI items were co-billed where a single service was performed and reported
• multiple head and spine MRI services were performed that were not 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 records were inadequate.

The practitioner acknowledged having engaged in inappropriate practice in connection with providing these items. The practitioner agreed to repay $550,000, to be disqualified from providing MBS item 104 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 23, 36, 30192 and 31361 in excess of between 95 and 99 per cent of their peers respectively. The Director reviewed this practitioner’s rendering of these MBS services and had persisting concerns respect of MBS items 23, 36, 30192 and 31361 that:

• the records for the MBS item 30192 and 31361 services were brief and inadequate. For example, the records often did not state the size and location of lesions being removed
• the MBS requirements were not always met, including the minimum time requirements where necessary and
• the practitioner did not always appropriately obtain, or if obtained then record informed patient consent when performing procedures.  

The practitioner acknowledged having engaged in inappropriate practice in connection with providing MBS items 23, 36, 30192 and 31361. The practitioner agreed to repay $320,000 and will be reprimanded by the Director.

An agreement with a general practitioner

During the review period, the practitioner rendered MBS item 41647 in excess of 99 per cent of their peers. The Director reviewed this practitioner’s rendering of MBS items 23 and 41647. The Director had persisting concerns that:

• the records were inadequate. For example, the reviewed records did not always include sufficient information such as relevant history or operative record
• not all services were clinically indicated. For example, when rendering MBS item 41647 services it was not always clear that micro-inspection of the tympanic membrane and the use of an operating microscope were required and
• the practitioner co-billed MBS item 23 with MBS item 41647 in cases where the records did not support the billing of both items.

The practitioner acknowledged having engaged in inappropriate practice in connection with providing these items of concern. The practitioner agreed to repay $110,000 and will be reprimanded by the Director.

An agreement with a medical practitioner

During the review period, the practitioner rendered MBS item 41647 in excess of 97 per cent of their peers. The Director reviewed this practitioner’s rendering of MBS items 36, 44, 41647 and 91810 and had persisting concerns that:

• the records were inadequate
• the MBS requirements were not always met. For example, for some of the reviewed 91810 services, it appeared that the consultation was conducted by text message, which does not meet the MBS requirement of a phone attendance and
• the services were not always clinically indicated. For example, MBS 41647 was rendered when it was not always clear that the patient’s presenting complaint required treatment involving the use of an operating microscope and the micro-inspection of the tympanic membrane.

The practitioner acknowledged having engaged in inappropriate practice in connection with providing MBS items 36, 44, 41647 and 91810. The practitioner agreed to repay $33,355.95, to be disqualified from providing MBS item 41647 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 36 and 44 in excess of 98 and 99 per cent of their peers, respectively. The Director reviewed this practitioner’s rendering of items 36, 44, 721, 723, 732, 2713 and 16500. The Director had persisting concerns that:

• the record keeping was inadequate for most services across all MBS items reviewed and, for some services, records were not made contemporaneously and
• the MBS requirements were not always met. For example,
  • the minimum time requirements were not always met (where required) including where services were co-billed and
  • for Chronic Disease Management items, documentation was not signed to indicate patient consent, was not comprehensive or sufficiently individualised, and did not involve at least two other healthcare providers when coordinating Team Care Arrangements.

The practitioner acknowledged having engaged in inappropriate practice in connection with providing these items of concern. The practitioner agreed to repay $266,744.70, to be disqualified from providing MBS items 721, 723 and 732 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 11309, 11330 and 11339 in excess of 99 per cent of their peers. The Director reviewed this practitioner’s rendering of items 36, 11027, 11309, 11330, and 11339 and had persisting concerns in relation to MBS items 11309, 11330, and 11339 that:

• not all MBS item 11309 and 11330 services were clinically indicated, or the medical records were inadequate in failing to reflect the clinical indication and
• MBS item 11339 was billed twice where a single test was performed over multiple days.

The practitioner acknowledged having engaged in inappropriate practice in connection with providing MBS items 11309, 11330 and 11339. The practitioner agreed to repay $30,000 and will be reprimanded by the Director.

B. PSR Committee final determinations

PSR Committee No. 1200

On 6 July 2021 a final determination came into effect regarding a general practitioner who practised in New South Wales. The practitioner was directed to:

• be reprimanded
• be counselled
• repay $200,000 to the Commonwealth and
• be disqualified from rendering MBS item 721, 723 and 732 services for a period of six months.

These directions followed from a final report of a PSR Committee, which concluded that the practitioner engaged in inappropriate practice in connection with services rendered as MBS items 36, 707, 721, 723, 732, 2713 and 10997.

In relation to MBS items 36, 707, 2713 and 10997 the Committee made findings of inappropriate practice on the basis of:

• inadequate record keeping and
• failure to comply with MBS requirements, particularly time requirements.

In relation to Chronic Disease Management (CDM) services, the Committee’s findings of inappropriate practice were widespread.

In relation to MBS item 721 services the findings were made on the basis that:

• there were no meaningful goals for the patient
• the GP Management Plan was not individualised for the patient
• in some cases there was no plan recorded.

In relation to MBS item 723 services the Team Care Arrangements (TCA) findings were made on the basis that the TCA:

• did not identify at least two collaborating providers or what services they would provide for the patient
• did not contain meaningful goals
• were not always provided to patients with eligible chronic conditions and
• were not always clinically indicated.

In relation to MBS item 732 services findings were made on the basis:

• there was not always a review of a GP Management Plan or TCA 
• no assessment against patient goals (for 721 reviews) or consultation with other providers (723 reviews) and
• in some 732 services the patient was not in attendance on the date of service.

C. Federal Court

One federal court decision was handed down in July 2021.

Amir v Director of PSR [2021] FCA 745

Dr Amir sought judicial review of the decision of the Director to set up and refer him to a Committee to investigate whether he engaged in inappropriate practice. The case centered around s 94 of the Act, which requires a decision to be made within 12 months from the date of decision to conduct a review. The 12 month period can be extended for a limited period if there has been a failure to comply with a notice to produce or there has been a court order staying operation of the Act. In this case, it was agreed that there had been a valid extension of the period by 9 days.

The focus of the case was to determine when a decision is made to conduct a review.

The Court held that while the Director might form a preliminary view whether to conduct a review, even a strongly held view, it is not until the Director has irrevocably decided whether or not to do so, that there is a ‘decision’. The wording, ‘today I have decided’, was a strong indication that a decision was not made until 16 April 2019, when that decision was notified outside of the PSR Agency to Dr Amir and the Chief Executive Medicare.

Dr Amir has lodged an appeal to the Full Court of the Federal Court in respect of this decision.

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

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

E. Referrals to AHPRA (106XA/B)

No matters were referred to AHPRA in July 2021.