PSR Director's update for May 2024

A. Director’s Section 92 agreements effective in May 2024

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

An agreement with a general practitioner 

During the review period, the practitioner rendered a prescribed pattern of services, rendered Medicare Benefits Schedule (MBS) items 23 and 91891 and prescribed Pharmaceutical Benefits Scheme (PBS) items 1215Y, 2089Y, 2622B and 3162K in excess of 99% of their peers. The Director reviewed this practitioner’s rendering of MBS items 23 and 91891 and PBS items 1215Y, 2089Y, 2622B and 3162K. The Director had persisting concerns that:

• the practitioner rendered a prescribed pattern of services and exceptional circumstances were not present
• patients may not always have attended (whether in person or by telephone) in respect of a billed attendance service
• the practitioner’s record keeping was inadequate, including where attendance records could not be located for some services. In other cases, their attendance records did not sufficiently explain what occurred during each attendance
• the practitioner prescribed PBS items to patients when PBS restrictions were not met and without providing sufficient clinical input or appropriate management.

The practitioner acknowledged having engaged in inappropriate practice in connection with providing MBS items 23 and 91891 and PBS items 1215Y, 2089Y, 2622B and 3162K, and in providing services in circumstances that constituted a prescribed pattern of services. The practitioner agreed to repay $625,000 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, rendered MBS items 5020, 5028, 5040, 90035 and 91891 and prescribed PBS items 2363J, 2622B and 3162K in excess of 99% of their peers. The Director reviewed this practitioner’s rendering of MBS items 5020, 5028, 90035 and 91891 and PBS items 2363J, 2622B and 3162K and had no persisting concerns in relation to MBS item 5020. In relation to the remaining items, the Director had persisting concerns that:

• the practitioner rendered a prescribed pattern of services and exceptional circumstances were not present
• the practitioner rendered MBS items 5028 and 90035 where the services may not have been clinically relevant
• the MBS requirements for MBS item 91891 were not always met including the minimum time requirement
• the practitioner’s record keeping was inadequate, including in instances where there were no progress notes for attendances
• the practitioner prescribed PBS items 2363J, 2622B and 3162K to patients without providing appropriate clinical management and without keeping adequate clinical records.

The practitioner acknowledged having engaged in inappropriate practice in connection with rendering a prescribed pattern of services, and in providing MBS items 5028, 90035 and 91891 and PBS items 2363J, 2622B and 3162K. The practitioner agreed to repay $610,000 and will be counselled by the Director.

An agreement with a general practitioner

During the review period, the practitioner rendered MBS items 23, 705, 2713, 5020 and 90035 and prescribed PBS item 2622B excess of 98% of their peers. The Director reviewed this practitioner’s rendering of MBS items 23, 36, 705, 721, 2713, 5020 and 90035 and PBS items 2622B and 8285C, and had persisting concerns that:

• MBS requirements were not always met for services provided as MBS items 23, 36, 721, 2713, 5020 and 90035 including minimum time requirements where relevant
• the practitioner did not always provide adequate clinical input when rendering MBS items 705, 721 and 2713, including in instances where practice nurses were substantially involved in providing these services
• the practitioner’s record keeping was inadequate. Clinical records were often brief and made it difficult to understand what occurred during consultations or the reason for prescribing certain medications 
• the practitioner prescribed PBS items 2622B and 8285C when the PBS restrictions were not met and without providing appropriate clinical management for patients.

The practitioner acknowledged having engaged in inappropriate practice in connection with providing MBS items 23, 36, 705, 721, 2713, 5020 and 90035 and PBS items 2622B and 8285C. The practitioner agreed to repay $450,000, to be disqualified from providing MBS item 36, 705, 721, 2713, 91801, 91900, 92024, 92115 and 92127 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, rendered MBS items 23, 66596 and 91891 and prescribed PBS items 1215Y and 2622B in excess of 99% of their peers. The Director reviewed this practitioner’s rendering of MBS items 23, 36, 5020, 56223, 66596 and 91891 and PBS items 1215Y and 2622B, and had no persisting concerns in relation to PBS items 1215Y and 2622B. In relation to the remaining items, the Director had persisting concerns that:

• the practitioner rendered a prescribed pattern of services and exceptional circumstances were not present
• the MBS requirements were not always met 
• the practitioner initiated diagnostic imaging and pathology services when they were not clinically indicated, including where pathology services appeared to be initiated as a screening tool
• the practitioner’s record keeping was inadequate. including where the reviewed patient records were largely identical to other services and did not explain the services provided.

The practitioner acknowledged having engaged in inappropriate practice in connection with providing MBS items 23, 36, 5020, 56223, 66596 and 91891 and in providing services that constituted a prescribed pattern of services. The practitioner agreed to repay $605,874 and will be counselled by the Director.

An agreement with a general practitioner

During the review period, the practitioner rendered MBS items 31363, 31369 and 45201 in excess of 99% of their peers. The Director reviewed this practitioner’s rendering of MBS items 23, 5020, 30071, 31363, 31369 and 45201 and had persisting concerns that:

• some MBS item 45201 services rendered by the practitioner were not clinically necessary
• the practitioner’s record keeping was inadequate. For example, for procedural items, the records did not always include sufficient clinical descriptions of lesions and did not always support the clinical indication for particular excisions or biopsies  
• the practitioner billed MBS items 23 and 5020 in some instances without providing sufficient clinical input to justify billing a Level B attendance

The practitioner acknowledged having engaged in inappropriate practice in connection with providing MBS items 23, 5020, 30071, 31363, 31369 and 45201. The practitioner agreed to repay $260,000, to be disqualified from providing MBS item 31369 services for 12 months, and will be reprimanded and counselled by the Director. 

B. PSR Committee final determinations

PSR Committee 1405

On 2 May 2024 a final determination came into effect regarding a general practitioner. The practitioner was found to have engaged in inappropriate practice in a final report of a PSR Committee in connection with MBS items 36, 2713, 2717 and 4001 during the review period.

The practitioner was directed to:

• be counselled
• repay the amount of $15,000 to the Commonwealth in respect of MBS services in connection with which the practitioner was found to have engaged in inappropriate practice.

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

• The MBS requirements were not met, including that the practitioner’s clinical input would not have required an attendance of at least 20 minutes’ duration
• The practitioner did not provide any clinical input in relation to the MBS item 36 service and/or his clinical input into the service was inadequate.
• The medical record was inadequate.

In relation to the MBS item 2713 services the Committee made findings based on one or more of the following:

• The MBS requirements were not met, including that the record did not reflect a consultation involving a mental health disorder of at least 20 minutes’ duration
• The practitioner's clinical input into the service was inadequate
• The medical record was inadequate.

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

• The MBS requirements were not met in that there was insufficient clinical content to justify a consultation lasting at least 40 minutes
• The practitioner’s clinical input into the service was inadequate, including that the practitioner did not administer an outcome measurement tool
• The medical record was otherwise inadequate.

In relation to the MBS item 4001 services the Committee made findings based on one or more of the following:

• The service was not clinically indicated
• The MBS requirements were not met, including that the practitioner’s clinical input would not have required an attendance of at least 20 minutes’ duration
• The practitioner’s clinical input into the service was inadequate
• The medical record was inadequate.

C. Federal Court

Tonakie v Director of PSR [2024] FCAFC 60

The Director has 12 months in which to conduct a review. Before the end of that period the Director must either dismiss the matter, enter into an agreement, or set up a committee. Two days before the 12-month period of review expired, the Director set up a committee that included two radiologists. The committee’s make-up was challenged by an application to the Federal Court on the basis that Dr Tonakie was not only a radiologist but also a nuclear medicine specialist when he rendered the services. The Director agreed, and consented to the Court setting aside the establishment of the committee. The Acting Director then set up a new committee containing two members who both had the same two specialties as Dr Tonakie. Dr Tonakie challenged this committee by a new application to the Federal Court on the ground that the 12-month period had expired. The Federal Court dismissed the application and accepted the Commonwealth’s argument that a committee had been set up ‘in fact’ within the 12-month period and that this meant that the 12-month rule no longer applied. Dr Tonakie appealed that decision to a Full Bench of the Federal Court. The Full Court unanimously dismissed the appeal.

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

No matters were referred to the major non-compliance (fraud) division in May 2024.

E. Referrals to AHPRA (106XA/B)

2 matters were referred to AHPRA in May 2024.