PSR Director's update for November 2023

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

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

An agreement with a general physician

During the review period, the practitioner rendered MBS items 132, 133 and 18230 in excess of 99% of their peers. The Director reviewed this practitioner’s rendering of MBS items 132, 133 and 18230. The Director had persisting concerns that:

• MBS requirements were not always met. For example, the practitioner’s management plans lacked complexity and failed to detail treatment options and medication recommendations
• the practitioner’s records were inadequate. For example, the records did not always include adequate detail of patient history, examination and management
• MBS item 133 services were inappropriately co-billed with therapeutic procedures or diagnostic imaging services were without a record of a consultation service occurring.

The practitioner acknowledged having engaged in inappropriate practice in connection with rendering MBS Items 132, 133 and 18230. The practitioner agreed to repay $236,000, to be disqualified from providing MBS item 18230 services for 12 months, and will be counselled by the Director.

An agreement with a general practitioner

During the review period, the practitioner rendered MBS items 36 and 30192 in excess of 99% of their peers. The Director reviewed this practitioner’s rendering of MBS items 36 and 30192 and had no persisting concerns in relation to MBS items 30192. The Director had persisting concerns in relation to MBS item 36 that:

• MBS requirements were not always met. For example, it was not clear that the minimum time requirement were met
• the practitioner’s record keeping was inadequate. For example the records did not reflect the content of services and were often highly repetitive for services for the same patient and across different patients without individualisation.

The practitioner acknowledged having engaged in inappropriate practice in connection with rendering MBS item 36. The practitioner agreed to repay $180,000 and will be counselled by the Director.

An agreement with a general practitioner

During the review period, the practitioner rendered MBS items 36, 5040, 92024, 92025, 92028, 92068, 92069 and 92072 in excess of 99% of their peers. The Director reviewed this practitioner’s rendering of MBS items 23, 36, 707, 721, 723, 732, 739, 5040, 92024, 92025, 92028, 92068, 92069 and 92072. The Director had persisting concerns that:

• MBS requirements, including minimum time requirements where relevant, were not always met
• the practitioner did not provide sufficient clinical input. For example, the practitioner did not appear to have performed examinations where relevant
• the practitioner’s record keeping was inadequate. The records often involved  an over-reliance on shortcuts with little individualised information and contained irrelevant information.

The practitioner acknowledged having engaged in inappropriate practice in connection with rendering MBS items 23, 36, 707, 721, 723, 732, 739, 5040, 92024, 92025, 92028, 92068, 92069 and 92072. The practitioner agreed to repay $435,000, to be disqualified from providing MBS item 721, 723, 732, 92024, 92025 and 92028 services for 10 months and will be reprimanded by the Director.

An agreement with a medical practitioner

During the review period, the practitioner rendered MBS items 57, 5208, 91804 and 91805 and prescribed PBS items 2487X, 1699K, 2931G and 2488Y in excess of 99% of their peers. The Director reviewed this practitioner’s rendering of MBS items 54, 57, 5207, 5208, 65075, 66707, 66752, 66756, 66822 and 91804, and PBS items 1699K and 2487X, and had no persisting concerns in relation to MBS items 5207, 65075, 66707, 66752, 66756 and 66822 and PBS items 1699K and 2487X. The Director had persisting concerns in relation to the remaining items that:

• MBS requirements, including minimum time requirements where relevant, were not always met
• the practitioner’s record keeping was inadequate. For example, notes often lacked adequate detail of patient histories, examinations, preventative health care advice or management plans where relevant.

The practitioner acknowledged having engaged in inappropriate practice in connection with rendering MBS Items 54, 57, 5208 and 91804. The practitioner agreed to repay $18,000 and will be counselled by the Director.

An agreement with a general practitioner

During the review period, the practitioner rendered MBS items 699, 721, 723, 732, 66839, 92068, and 92072 and prescribed PBS items 1215Y and 8254K in excess of 99% of their peers. The Director reviewed this practitioner’s provision of MBS items 699, 721, 723, 732, 11610, 11707, 66839, 92068 and 92072, and PBS item 1215Y, and had no persisting concerns in relation to MBS items 66839. The Director had persisting concerns in relation to the remaining items that:

• the practitioner’s record keeping was inadequate. For example, records were not always sufficiently comprehensible to allow another practitioner to effectively take over patient care based on the record
• the practitioner did not provide sufficient clinical input for Chronic Disease Management (CDM). For example, the practitioner included the same goals and services in multiple general practitioner management plans despite the plans being for different patients with varying needs
• MBS item 11610 services were not always clinically indicated
• PBS requirements for item 1215Y were not always met. For example, the practitioner did not always obtain secondary confirmation from another practitioner of the clinical need for ongoing prescriptions.

The practitioner acknowledged having engaged in inappropriate practice in connection with rendering MBS items 699, 721, 723, 732, 11610, 11707, 92068, 92072 and prescribing PBS Item 1215Y. The practitioner agreed to repay $220,000, to be disqualified from providing MBS item 92024 services for 12 months and to be counselled by the Director.

An agreement with a general practitioner

During the review period, the practitioner prescribed MBS items 3 and 23 in excess of 99% of their peers. The Director reviewed this practitioner’s rendering of MBS items 23, 36, 66596 and 66833, and PBS item 3162K. The Director had persisting concerns that:

• MBS requirements were not always met. For example, minimum time requirements where relevant were not always met
• the practitioner did not always provide an adequate level of clinical input for professional attendance services and initiated pathology tests
• the clinical indication for the practitioner’s prescribing was not always clear
• the practitioner’s record keeping was inadequate. For example, entries often did not include sufficient clinical detail to explain the service provided.

The practitioner acknowledged having engaged in inappropriate practice in connection with rendering MBS Items 23, 36, 66596 and 66833 and prescribing PBS item 3162K. The practitioner agreed to repay $300,000, to be disqualified from providing MBS items 36 and 91801 services for 12-months, and to be counselled by the Director.

B. No further Action Decisions

Request to review a dentist

During the review period, the practitioner rendered CDBS item 88011, 88022, 88111, 88114, 88121 and 88161 in excess of 99% of their peers. The Director reviewed a random sample of services rendered as CDBS items 88011, 88022, 88111, 88114, 88121 and 88161. After reviewing the practitioner’s records, the Director formed the view that no further action was required as there were insufficient grounds on which a Committee could reasonably find that the practitioner engaged in inappropriate practice during the review period.

C. PSR Committee final determinations

No final determinations came into effect in November 2023

D. Federal Court

Tonakie v Director of Professional Services Review [2023] FCA 1365

Section 94 provides that the Director has a 12-month period in which to conduct a review and that before the end of that period 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 then challenged this committee by a new application to the Federal Court on the ground that the 12-month period had expired.

Justice Stewart 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. A very similar issue was dealt with by the Federal Court in a previous PSR case by Justice Griffiths, which Justice Stewart said he agreed with, saying:

The application to the Court was dismissed. Dr Tonakie has appealed this judgment to a Full Bench of the Federal Court.

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

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

F. Referrals to AHPRA (106XA/B)

Two matters were referred to AHPRA in November 2023.