PSR Director's Update for March 2022

Published date

20 April 2022

A. Director’s Section 92 agreements effective in March 2022

Six agreements entered into by the Director and persons under review (in accordance with s 92 of the Act) came into effect in March 2022.

An agreement with a general practitioner

During the review period, the practitioner rendered Medicare Benefits Schedule (MBS) items 36, 160, 707 and 723 in excess of 99% of their peers. The Director reviewed this practitioner’s provision of MBS items 36, 44, 160, 703, 705, 707, 721, 723, 732, 5040 and 10997. The Director had persisting concerns that:

the MBS requirements were not always met, in particular as to time requirements not being met, where applicable
not all services were clinically indicated including the ordering of pathology and in providing Chronic Disease Management (CDM) services
the practitioner’s records were inadequate.

The practitioner acknowledged having engaged in inappropriate practice in connection with rendering these items of concern. The practitioner agreed to repay $290,000, to be disqualified from providing MBS items 36, 44, 705, 707, 732, 5040, 91801, 91802, 91810, 91811, 92028 and 92072 services for a period of 12 months, and will be reprimanded by the Director. The disqualification from MBS items 91801, 91802, 91810, 91811, 92028 and 92072 reflects the telehealth equivalent items for MBS items 36, 44, 705, 707, 732 and 5040.

An agreement with an endocrinologist

During the review period, the practitioner rendered MBS items 116, 132 and 133 services in excess of 99% of their peers. The Director reviewed this practitioner’s rendering of MBS items 110, 116, 132 and 133. The Director had persisting concerns that:

in relation to MBS items 132 and 133, the MBS requirements were not met, including one or more of the following:
- time requirements were not met
- patients were not eligible for services
- plans and management were not of sufficient complexity
not all services were clinically indicated, for example, there was not always adequate clinical indication for consultation attendances or for thyroid ultrasounds initiated
the practitioner’s records were inadequate.

The practitioner acknowledged having engaged in inappropriate practice in connection with rendering these items of concern. The practitioner agreed to repay $340,000, to be disqualified from providing MBS items 132, 133, 92422 and 92423 services for a period of 12 months, and will be reprimanded by the Director. The disqualification from MBS items 92422 and 92434 reflects the telehealth equivalent items for MBS items 132 and 133.

An agreement with a cardiologist

During the review period, the practitioner rendered MBS items 55113 and 55114 services in excess of 99% of their peers. The Director reviewed this practitioner’s rendering of MBS items 132, 133, 55113 and 55114. The Director had persisting concerns in relation to MBS items 132 and 133 that:

the MBS requirements were not always met including one or more of the following:
- time requirements were not met
- patients were not eligible for services
- plans and management were not of sufficient complexity
not all services were clinically indicated, for example, services provided were for routine review rather than where there was a clinical need for assessment or re-assessment
the practitioner’s records were inadequate.

The practitioner made a voluntary repayment to Medicare during the PSR review process. The practitioner acknowledged having engaged in inappropriate practice in connection with rendering MBS items 132 and 133. The practitioner agreed to repay $10,000 and will be reprimanded by the Director.

An agreement with a general practitioner

During the review period, the practitioner rendered MBS items 36, 721, 723, 2712, 2717 and 5040 in excess of 99% of their peers. The Director reviewed this practitioner’s rendering of MBS items 23, 36, 721, 723, 732, 2712, 2717, 5020, 5040, initiation of MBS items 56223, 57341, 63551, 63554, 66716, 66833 and 66838 and prescribing of Pharmaceutical Benefits Schedule (PBS) items 1215Y, 2622B, 2335X, 2812B, 2974M, 8288F, 8600P, 8886Q and 11692J. The Director had persisting concerns that:

the practitioner’s records were inadequate. For example, the records were not sufficiently individualised and did not contain sufficient clinical information to explain a particular service or to facilitate continuity of patient care
the MBS and PBS requirements were not always met. This included minimum time requirements not being met, where applicable
initiation of diagnostic imaging and pathology services was not clearly indicated
management of patients who were prescribed opioids and other drugs of potential addiction was inadequate including where side effects, risk of polypharmacy, potential alternative treatments and reducing reliance were not discussed
prescription of a particular medication was not always clinically indicated.

The practitioner acknowledged having engaged in inappropriate practice in connection with rendering of MBS items 23, 36, 721, 723, 732, 2712, 2717, 5020 and 5040, initiation of MBS 56223, 57341, 63551, 63554, 66716, 66833 and 66838 and prescribing PBS items 1215Y, 2335X, 2622B, 2812B, 2974M, 8288F, 8600P, 8886Q and 11692J. The practitioner agreed to repay a sum of $800,000, be disqualified from providing MBS items 36, 5040, 91801 and 91810 services for a period of 6 months and be disqualified from providing or initiating MBS items 721, 723, 732, 2712, 2717, 92024, 92025, 92028, 92068, 92069, 92072, 92114, 92117, 92126 and 92129 services for a period of 12 months. The practitioner also agreed to be reprimanded by the Director. The disqualification from MBS items 91801, 91810, 92024, 92025, 92028, 92068, 92069, 92072, 92114, 92117, 92126 and 92129 reflects the telehealth equivalent items for MBS items 36, 5040, 731, 723, 732, 2712 and 2717.

An agreement with a general practitioner

During the review period, the practitioner rendered MBS items 193 and 197 in excess of 99% and 98% of their peers respectively. The Director reviewed this practitioner’s rendering of MBS items 193 and 197. The Director had persisting concerns in relation to MBS item 193 that:

the MBS requirements were not always met
the practitioner’s records were inadequate. For example, it was difficult to determine what occurred on the date of service as records were identical or very similar across attendances for patients over time.

The practitioner acknowledged having engaged in inappropriate practice in connection with rendering MBS item 193. The practitioner agreed to repay a sum of $226,717 and be reprimanded by the Director.

An agreement with a general practitioner

During the review period, the practitioner rendered MBS items 23 and 723 in excess of 97% of their peers. The Director reviewed this practitioner’s rendering of MBS items 23, 36, 721, 723, 732, 5020 and 91809. The Director had persisting concerns in relation to MBS items 36, 721, 723 and 732 that:

the MBS requirements were not always met including the minimum time requirement for MBS item 36
records and documents for CDM services were not sufficiently individualised and often unchanged from previous attendances, there was insufficient evidence of collaboration with other practitioners (where applicable) and in some instances no record for services was located.

The practitioner acknowledged having engaged in inappropriate practice in connection with rendering MBS items 36, 721, 723 and 732. The practitioner agreed to repay a sum of $95,000, be disqualified from providing MBS items 36, 91801 and 91810 services for a period of 3 months and to be reprimanded by the Director. The disqualification from MBS items 91801 and 91810 reflects the telehealth equivalent items for MBS item 36.

B. PSR Committee final determinations

No final determinations came into effect in March 2022.

C. Federal Court

One decision concerning PSR was handed down in March 2022.

Amir v Director of Professional Services Review [2022] FCAFC 44

A Full Bench of the Federal Court dismissed an appeal from the Federal Court judgment that was noted in the October 2021 PSR Panel Newsletter.

Section 94 of the Health Insurance Act 1973 requires the Director to dismiss, enter into an agreement, or refer a matter to a Committee within 12 months of deciding to conduct a review. If such action is not taken, the matter is deemed to have been dismissed. In describing the effect of this 12 month period, the Court called it the ‘temporal guillotine of the Scheme’.

Dr Amir submitted that the period had already expired before the Director referred him to a Committee because, he said the Director had made up her mind on 4 April 2019, as evidenced by an email to a PSR staff member on 4 April 2019, even though the Director wrote to him on 16 April 2019 stating “... today I have decided to undertake a review into your provision of those services...”.

The question before the Court was, in effect, whether the Director made the decision to commence an investigation on 4 April 2019 or 16 April 2019. The Full Federal Court held that the decision was made on 16 April 2019 and the subsequent referral of the matter to a Committee by the Director was validly done:

‘[66] … The primary judge was correct to find that the words “decide” and “decision” in s 88A(1) and s 94(1) do not focus on the Director’s mental state but rather on the external manifestation of that mental state in an irrevocable, or firm, way.
[68] Read in context, the primary judge’s repeated use of the word “irrevocable” serves to emphasise that the manifestation of the Director’s “decision” must have the requisite character of conclusiveness, commitment or finality. The converse is that the “decision” must not be tentative, preliminary or subject to change. The Director must have decided, or be committed to a course, and not be in a state of flux or tentativeness about that course. The primary judge’s use of the descriptor “irrevocable” underscored that the decision required by s 88A must be of a firm, committed or final character …
[76] Dr Amir has not demonstrated any error on the part of the primary judge. The appeal is dismissed with costs.’

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

No matters were referred to the major non-compliance (fraud) division in March 2022.

E. Referrals to AHPRA (s106XA/B)

Two matters were referred to AHPRA in March 2022.