PSR Director's Update for November 2020

Published date

9 December 2020

A. Director’s Section 92 agreements effective in November 2020

The following 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 medical practitioner

The Director reviewed this practitioner’s rendering of Medicare Benefits Schedule (MBS) items 23, 35, 43, 51, 721, 723, 731, 732, 743, 2713, 31358, 31363, 31369, 31376 and 45201 and Pharmaceutical Benefits Scheme (PBS) items 2622B, 3162K, 8525Q, 8785J and 8865N. In respect of the provision of the above MBS services, the Director had persisting concerns that:

the practitioner’s records were inadequate;
the MBS requirements were not always met. For example, the practitioner rendered MBS item 732 in some instances where the patient was not in attendance;
not all services were clinically indicated; and
the practitioner’s clinical input was not always adequate. For example, the practitioner did not always adequately obtain informed consent and/or used a consent form that was not sufficiently individualised to reflect the particular risks for each patient.

In addition, the Director had persisting concerns in respect of the practitioner’s prescribing including that:

the practitioner’s records were inadequate. For example, the practitioner’s records did not demonstrate that an assessment of the patient’s pain levels had been undertaken or that the patient’s underlying condition(s) had been assessed and monitored.
the practitioner prescribed antibiotics in circumstances where the medication was not clinically indicated; and
the practitioner’s clinical input was inadequate. For example, the practitioner did not discuss the risks of medications and possible side effects despite patients receiving potentially dangerous combinations of medications.

The practitioner acknowledged having engaged in inappropriate practice in connection with rendering these items of concern. The practitioner agreed to repay $375,000, to be disqualified from providing MBS items 731, 2713, 31358, 31363, 31376 and 45201 for 24 months, and will be reprimanded by the Director.

An agreement with a general practitioner

During the review period, the practitioner rendered each of MBS items 30071, 30195, 30196, 30197, 31358, 31361, 31363, 31367, 31368, 31370, 31373 and 31376 in excess of 98- 99 percent of their peers. The Director reviewed this practitioner’s rendering of MBS item 23, 36, 30071, 30195, 30196, 31358, 31361, 31363, 31367, 45201 and 45451 services. The Director had persisting concerns that:

the practitioner’s records were inadequate. For example, the practitioner did not always adequately document patient consent for therapeutic procedures;
the MBS requirements were not always met, including the minimum time requirements for MBS item 36 services;
the practitioner did not always appropriately manage patients; and
there was not always a clinical indication for therapeutic procedures.

The practitioner acknowledged having engaged in inappropriate practice in connection with rendering these items of concern. The practitioner agreed to repay $200,000, to be disqualified from providing MBS item 30196 for 6 months, to be disqualified from providing MBS item 45451 for a period of 12 months and will be reprimanded by the Director.

An agreement with a medical practitioner

The Director reviewed this practitioner’s rendering of MBS items 35, 43, 743 and 5000 and PBS items 2622B, 3132W and 8456C. The Director had no significant persisting concerns in relation to the PBS items. In relation to the MBS items, the Director had persisting concerns that:

the practitioner’s records were inadequate. In particular, records of attendances often did not document clinical input provided by the practitioner or include sufficient detail to substantiate the clinical indication for the attendance;
MBS requirements were not always met; and
the practitioner’s billing of MBS item 35 was inappropriate. Specifically, although the reviewed records reflected that the practitioner generally attended one RACF once daily, seeing multiple patients, benefits were claimed on the basis that the practitioner saw only one patient per attendance at an RACF.

The practitioner acknowledged having engaged in inappropriate practice in connection with providing these items of concern. The practitioner agreed to repay $400,000 and will be reprimanded by the Director.

An agreement with a neonatologist

During the review period, the practitioner rendered more total services than at least 99 percent of all active paediatric medicine physicians in Australia. The Director reviewed this practitioner’s rendering of MBS items 110, 116, 132, 133 and 160 and PBS items 2246F, 2676W and 2928D. The Director had no significant persisting concerns in relation to the practitioner’s prescribing of PBS items 2676W and 2928D. The Director had persisting concerns in relation to the remaining items that:

MBS requirements were not always met. For example, MBS item 132 and 133 services were provided to patients who did not have at least two morbidities that warranted a treatment and management plan of significant complexity;
the practitioner’s records were not always adequate;
not all professional attendances were clinically indicated. In particular, MBS item 116 services were billed on consecutive days following the birth of a patient where there often appeared to be little input into patient care; and
the practitioner prescribed PBS item 2246F outside PBS restrictions.

The practitioner acknowledged having engaged in inappropriate practice in connection with rendering these items of concern. The practitioner agreed to repay $630,000, to be disqualified from providing MBS items 132, 133 and 160 for 12 months, and will be reprimanded by the Director.

An agreement with a general practitioner

During the review period, the practitioner rendered services in excess of 99 percent of their peers. The Director reviewed this practitioner’s rendering of MBS items 23, 721, 723 and 5020 and PBS items 8254K. The Director had persisting concerns that:

the MBS requirements were not always met. For example, none of the reviewed GPMPs were comprehensive plans, as required by the item descriptor;
the practitioner’s records were not always adequate;
the practitioner’s clinical input in rendering MBS item 721 and 732 services was not always adequate; and
the practitioner prescribed PBS item 8254K outside of the PBS restrictions and in circumstances where the medication was not clinically indicated.

The practitioner acknowledged having engaged in inappropriate practice in connection with rendering these items of concern. The practitioner agreed to repay $80,000, to be disqualified from providing MBS items 721, 723 for 12 months, and will be reprimanded by the Director.

An agreement with a general practitioner

During the review period, the practitioner rendered more services as MBS item 23 and 5020 than 98 and 99 percent of their peers, respectively. Additionally, the practitioner rendered more days of 60 to 69 professional attendances than at least 99 percent of their peers. The Director reviewed this practitioner’s rendering of MBS items 23 and 5020. The Director had persisting concerns that:

The practitioner did not always take an adequate history, perform a relevant examination or provide a management plan; and
the practitioner’s record keeping was not always adequate.

The practitioner acknowledged having engaged in inappropriate practice in connection with rendering these items of concern. The practitioner agreed to repay $200,000 and will be reprimanded by the Director.

An agreement with a cardiologist

During the review period, the practitioner rendered MBS items 132 and 133 in excess of 99 percent of their peers. The Director reviewed this practitioner’s rendering of MBS items 132, 133 and 11610. The Director had persisting concerns that:

MBS requirements were not always met. For example, MBS item 132 and 133 services were provided to patients who did not have at least two morbidities that warranted the preparation or review of a treatment and management plan of significant complexity.
not all services were clinically indicated. For example, it appeared that the practitioner rendered ankle brachial indices tests (MBS item 11610) for screening purposes rather than based on a patient history or examination;
the practitioner’s records were inadequate; and
the practitioner did not always provide sufficient clinical input into each service.

The practitioner acknowledged having engaged in inappropriate practice in connection with rendering these items of concern. The practitioner agreed to repay $190,000 and will be reprimanded by the Director.

An agreement with a general practitioner

During the review period, the practitioner rendered MBS items 735 and 739 in excess of 99 percent of their peers. The Director reviewed this practitioner’s rendering of MBS items 721, 723, 732, 735 and 739 and PBS items 1654C, 2363J, 2622B, 3162K and 8489T. The Director had no significant persisting concerns in relation to the practitioner’s prescribing of PBS item 8489T. In respect of the remaining items, the Director had persisting concerns that:

MBS item requirements were not always met;
the practitioner did not always appropriately manage patients to whom he prescribed PBS items 1654C, 2363J, 2622B and 3162K. For example, the practitioner prescribed drugs of addiction to patients who had a history of substance abuse and/or demonstrated signs of drug seeking behaviour; and
the practitioner’s records were inadequate.

The practitioner acknowledged having engaged in inappropriate practice in connection with providing these items of concern. The practitioner agreed to repay $40,000 and will be reprimanded by the Director.

An agreement with a general practitioner

During the review period, the practitioner rendered MBS items 197 and 199 in excess of 99 percent of their peers. The Director reviewed this practitioner’s rendering of MBS items 36, 197 and 199. The Director had persisting concerns that:

MBS requirements were not always met, including the minimum time requirements (where relevant);
not all services appeared to be clinically indicated;
the practitioner’s records were not always adequate; and
the practitioner’s clinical input was not always sufficient.

The practitioner acknowledged having engaged in inappropriate practice in connection with rendering these items of concern. The practitioner agreed to repay $80,000, to be disqualified from providing MBS items 36 and 199 for 12 months, and will be reprimanded by the Director.

An agreement with a general practitioner

During the review period, the practitioner rendered more services as MBS items 721, 723 and 732 than 98, 87 and 99 percent of their peers, respectively. The Director reviewed this practitioner’s rendering of MBS items 23, 721, 723, 732 and 2713. The Director had persisting concerns that:

MBS requirements were not always met;
not all services were clinically indicated. For example, the practitioner prepared GP Management Plans for patients who did not appear to have eligible chronic diseases; and
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 $240,000, 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 provided MBS items 701, 721 and 723 in excess of 99 percent of their peers. The Director reviewed this practitioner’s rendering of MBS items 701, 721, 723, 732 and 65070, and PBS items 8008L and 8601Q. The Director had no significant persisting concerns in relation to MBS items 65070 and PBS items 8008L and 8601Q. In respect of the remaining items, the Director had persisting concerns that:

MBS requirements were not always met. For example, there was no evidence of collaboration with at least two other healthcare providers in relation to MBS item 723 services;
the practitioner did not always provide sufficient clinical input in relation to health assessments (MBS item 701) and chronic disease management (MBS item 721 and 723) services; and
the practitioner’s records were not always adequate.

The practitioner acknowledged having engaged in inappropriate practice in connection with rendering these items of concern. The practitioner agreed to repay $205,000, to be disqualified from providing MBS items 701, 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 provided MBS items 721, 732 and 41500 in excess of 99 percent of their peers. The Director reviewed this practitioner’s rendering of MBS items 721, 732, 2713 and 41500. The Director had persisting concerns that:

MBS requirements were not always met for each service, including minimum time requirements (where relevant);
the practitioner’s records were inadequate; and
the practitioner did not always provide sufficient clinical input into services.

The practitioner acknowledged having engaged in inappropriate practice in connection with providing these items of concern. The practitioner agreed to repay $210,000, to be disqualified from providing MBS items 721, 723, 732 and 41500 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 721, 723 and 732 in excess of 99 percent of their peers. The Director reviewed this practitioner’s rendering of MBS items 721, 723, 732 and 2715. The Director had persisting concerns that:

MBS item requirements were not always met, including minimum time requirements for MBS item 2715 services.
the practitioner’s clinical input was not always adequate. For example, the GP Management Plans (MBS item 721) often did not appropriately address the patient’s chronic conditions; and
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 $190,000, to be disqualified from providing MBS items 732, 723, 721 and 2715 for 12 months and will be reprimanded by the Director.

An agreement with a cardiologist

During the review period, the practitioner’s volume of daily services was at variance to their peers. The Director reviewed this practitioner’s rendering of MBS items 132, 133, 11712 and 55113. The Director had no significant persisting concerns in relation to the provision of MBS item 55113 services. In relation to the remaining MBS items, the Director had persisting concerns that:

MBS requirements were not always met. For example, the treatment and management plans prepared (MBS item 132) or modified (MBS item 133) were not always comprehensive;
there was not always a clinical indication for providing MBS item 132 or 133 services; and
the practitioner’s records were inadequate. For example, the reviewed records for MBS item 11712 services did not always identify the attending practitioner or contain a formal report of the results of the procedure.

The practitioner acknowledged having engaged in inappropriate practice in connection with providing these items of concern. The practitioner agreed to repay $130,000, to be disqualified from providing MBS items 132 and 133 for 12 months and will be reprimanded by the Director.

An agreement with a general practitioner

During the review period, the practitioner was a very high biller of MBS item 90001. The Director reviewed MBS item 10997 services rendered on the practitioner’s behalf and this practitioner’s provision of MBS items 35 and 90001. The Director had persisting concerns that:

MBS requirements were not always met in respect of MBS item 10997 services rendered on the practitioner’s behalf;
the practitioner’s billing of MBS items 35 and 90001 was inappropriate. Specifically, although the reviewed records reflected that the practitioner generally attended one RACF once daily, seeing multiple patients, benefits were claimed on the basis that the practitioner saw only one patient per attendance at an RACF; and
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 $135,000, to be disqualified from MBS item 10997 being rendered on the practitioner’s behalf for a period of 6 months and will be reprimanded by the Director.

An agreement with a general practitioner

During the review period, the practitioner billed MBS item 41647 on more than 9,000 occasions, in excess of 99 percent of their peers. The Director reviewed this practitioner’s rendering of MBS items 23 and 41647. The Director had no significant persisting concerns in relation to MBS items 23. The Director had persisting concerns in relation to MBS item 41647 that:

MBS item requirements were not always met as it was not clear that the reviewed services required the use of an operating microscope and the micro inspection of the tympanic membrane; and
the practitioner’s records were inadequate. In particular, the practitioner often did not record a sufficiently detailed operative record for the procedures billed as MBS item 41647 such as an account of the findings, preoperative diagnosis, post-operative diagnosis or postoperative management of preventative health care advice.

The practitioner acknowledged having engaged in inappropriate practice in connection with rendering MBS item 41647 services. The practitioner agreed to repay $20,000 and will be reprimanded by the Director.

B. PSR Committee final determinations

No final determinations became effective in November 2020.

C. Federal Court

I-MED Radiology Network Limited v The Director of Professional Services Review [2020] FCA 1645

The Federal Court dismissed an application by two related I-Med companies seeking to set aside a request from the Chief Executive Medicare to the Director PSR to review the provision of services by the two companies on the basis that they did not ‘provide services’ and therefore were not capable of being referred.

Under the Act, a corporation ‘provides services’ if they are rendered or initiated by a practitioner employed or otherwise engaged by the corporation. The Court found I-Med had the evidentiary burden of establishing that it did not employ or otherwise engage practitioners and, in turn, that it did not ‘provide services’ but failed to do so and therefore refrained from deciding whether ‘provides services’ needed to be objectively determined as a fact before the Chief Executive Medicare and the Director could exercise their powers. Justice Logan acknowledged, but distinguished, the comments of Griffith J in NHDS v Director of PSR in this regard (whereby he observed that the Director need only have a ‘concern’ that the requisite relationship between practitioner and corporate entity may have existed before referring the corporate entity to be investigated by a Committee) and suggested legislative reform may be needed to make this clearer.

The Court also rejected I-Med’s call to set aside Notices to Produce issued by the Director to each of the I-Med companies, concluding that the notices were issued, and sought information, in line with the Director’s statutory function (i.e. in undertaking a review). In so finding, the Court noted:

the scope of the Director’s review was not limited to the reasons (or particular practitioners) identified by the Chief Executive Medicare in requesting the Director undertake a review,
the Director was entitled to make inquiries (including by issuing notices) to identify practitioners who may have been employed or otherwise engaged by the I-Med companies and may have engaged in inappropriate practice as an initial step in her review;
the Notices were otherwise sufficiently clear as to the documentation to be produced, and the time for compliance (30 days) was not unreasonable.

The Court affirmed the general principle that such a Notice will not be invalid merely because compliance with it is burdensome.

I-Med was ordered to pay the Chief Executive Medicare and Director PSR’s costs of the Court action.

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

No matters were referred to the major non-compliance (fraud) division in November 2020.

E. Referrals to Australian Health Practitioner Regulation Agency (AHPRA) (ss 106XA & 106XB)

Three matters were referred to AHPRA in November 2020.

F. Referrals to the Australian Federal Police under the Health Insurance Act 1973 (Cth) and Criminal Code Act 1995 (Cth)

One matter was referred to the Australian Federal Police in November 2020.