PSR Director's update for March 2023

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

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

An agreement with a psychiatrist

During the review period, the practitioner rendered Medicare benefits Schedule (MBS) items 326, 328 and 866 in excess of 99% of their peers. The Director reviewed this practitioner’s rendering of MBS items 297, 326, 328, 866 and 91840, and had no concerns in relation to MBS items 91840. In relation to the remaining items, the Director had persisting concerns that:

• MBS requirements were not always met. For example, it was not always clear that the minimum time requirements, where relevant, were met
• the practitioner’s records were inadequate. In some cases, records were  brief and did not included sufficient clinical information to explain the service

The practitioner acknowledged having engaged in inappropriate practice in connection with rendering MBS Items 297, 326, 328 and 866. The practitioner will be reprimanded by the Director.

An agreement with a general practitioner

During the review period, the practitioner rendered Medicare benefits Schedule (MBS) items 707, 5010, 5028, 5049, 5067, 90035 and 90051 in excess of 98% of their peers, and prescribed Pharmaceutical Benefits Scheme (PBS) items 02348N, 08865N, 09365X and 10096J disproportionately to their peers. The Director reviewed this practitioner’s rendering of MBS items 36, 44, 707, 5010, 5028, 90035, 90043 and 90051, and PBS items 10096J, 2348N and 8865N, and had no concerns in relation to most items. In relation to MBS items 5010 and 90043, the Director had persisting concerns that:

• MBS requirements were not always met including minimum time requirements where applicable
• the practitioner’s record keeping was inadequate. It is not always clear from the records that  a patient attendance had taken place on the date prescriptions were written

The practitioner acknowledged having engaged in inappropriate practice in connection with rendering MBS Items 5010 and 90043. The practitioner agreed to repay $110,000, to be disqualified from providing MBS item 5010 services for 9 months, and will be reprimanded by the Director.

An agreement with a general practitioner

During the review period, the practitioner rendered Medicare benefits Schedule (MBS) items 5040, 5060, 91801 and 92113 in excess of 99% of their peers. The Director reviewed this practitioner’s rendering of MBS items 23, 36, 44, 5040, 5060, 91801 and 92113. The Director had persisting concerns that:

• MBS requirements were not always met.  For example, it was not always clear that the practitioner had met the minimum time requirements, where applicable, or taken a patient history/performed a clinical examination where clinically relevant
• the practitioner’s record keeping was inadequate.  The records were often brief and did not include sufficient information to explain  what occurred during each service or enable another practitioner to safely undertake patient care relying on the records
• when an attendance item was co-billed with a procedural item there was not always evidence of a separate attendance by the practitioner

The practitioner acknowledged having engaged in inappropriate practice in connection with rendering MBS Items 23, 36, 44, 5040, 5060, 91801 and 92113. The practitioner agreed to repay $222,000, to be disqualified from providing MBS item 36 and 91801 services for 6 months, and will be reprimanded by the Director.

An agreement with a general practitioner

During the review period, the practitioner rendered Medicare benefits Schedule (MBS) items 721, 723, 732, 2712, 2713, 2715, 2717 and 5060 in excess of 98% of their peers. The Director reviewed this practitioner’s rendering of MBS items 36, 44, 703, 2712, 2713, 2715, 2717, 5040 and 91810, and had no concerns in relation to MBS items 36, 721, 723, 732, 2712 and 2715. In relation to the remaining items, the Director had persisting concerns that:

• MBS requirements were not always met, including minimum time requirements where applicable
• some services were not always clinically indicated.  For example, health assessments were provided where patients were not eligible or no clinical reason for the health assessment could be identified
• the practitioner’s clinical input was insufficient, including not addressing all relevant conditions in a health assessment and where outcome assessment tools were incorrectly scored in mental health services
• the practitioner’s record keeping was inadequate. For example, some of the reviewed records were not adequately personalised to the particular patient, and did not include sufficient clinical information to explain the service

The practitioner acknowledged having engaged in inappropriate practice in connection with rendering MBS Items 44, 703, 2713, 2717, 5040 and 91810. The practitioner agreed to repay $44,000, to be disqualified from providing MBS item 91801 services for 12 months, and will be reprimanded by the Director.

An agreement with a neurologist

During the review period, the practitioner rendered Medicare Benefits Schedule (MBS) items 110, 116, 11018 and 18377 in excess of 98% of their peers. The Director reviewed this practitioner’s rendering of MBS items 110, 116, 11000, 11018, 18350, 18353 and 18377, and PBS item 1165H. The Director had no concerns in relation to most items. In relation to the MBS items 110, 11018 and 18377, and PBS item 1165H, the Director had persisting concerns that:

• the MBS requirements were not always met.  In the case of MBS item 18377, it was not always clear the patients had a diagnosis of migraine as required to bill this item
• the practitioner’s record keeping is inadequate. For example, some records were very brief, or repeated information from previous attendances within the same record or across multiple patient records not enabling another practitioner to safely undertake patient care relying on the records
• PBS item 1165H was not always prescribed appropriately

The practitioner acknowledged having engaged in inappropriate practice in connection with rendering MBS Items 110, 11018 and 18377. The practitioner agreed to repay $155,000, and will be reprimanded by the Director.

B. PSR Committee final determinations

PSRC 1187

On 6 March 2023 a final determination came into effect regarding a general practitioner.  The practitioner was directed to:

• be reprimanded
• be counselled
• repay the amount of $459,555.55 to the Commonwealth, which represented the amount of benefits paid in respect of MBS items 597 and 599 in connection with which the practitioner was found to have engaged in inappropriate practice by a final report of a PSR Committee less an amount which the practitioner had voluntarily repaid to Medicare for one item
• be disqualified from rendering MBS item 585, 588, 591 and 594 services for a period of 6 months

In relation to the MBS item 597 and 599 services the Committee made findings on the basis of one or more of the following:

• the regulatory requirements for billing the item were not met, in that the patient did not require urgent treatment
• the practitioner’s medical record was inadequate
• the practitioner’s clinical input was, for a small number of services, inadequate

C. No further action decisions

Request to review a general practitioner

The practitioner rendered a prescribed pattern of services. The Director reviewed a random sample of MBS professional attendance services.  The Director found that exceptional circumstances existed that affected the rendering of the services, specifically in relation to the COVID-19 pandemic.

D. Federal Court

Hamor v Determining Authority & the Commonwealth [2023] FCA 267

Dr George Hamor sought judicial review of the final determination of the Determining Authority (DA) in relation to both the disqualification and repayment directions. The DA had directed that Dr Hamor be disqualified from rendering MBS item 12250 (home sleep studies) for a period of 12 months and that he repay $1,959,718.75, being 100% of the MBS benefits paid in respect of his provision of that item in the 12-month review period.

The Court rejected arguments that the DA’s determination was legally unreasonable. The DA had carefully explained its reasoning for those directions, taking into account the submissions that Dr Hamor had made, but also having regard to the serious findings of the PSR Committee.

It was also argued that, because Dr Hamor had received only a small proportion of the medicare benefits for the services, the repayment direction was a punishment. The Court held that the DA’s directions were not for the purpose of punishing him, but were for the proper purpose of protecting the Medicare benefits program.

The Court also rejected an argument that the DA had assumed that it should order full repayment unless a reduction should be justified, noting that the DA was clearly aware it had a broad discretion to require full or part payment, and that the DA had taken the approach it had because of the gravity of Dr Hamor’s conduct and the lack of mitigating factors. The Court found that the DA had not adopted a universal starting point or imposed any onus on Dr Hamor.

The Court dismissed the application and ordered Dr Hamor pay the Commonwealth’s costs.

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

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

F. Referrals to AHPRA (106XA/B)

1 matter was referred to AHPRA in March 2023.