PSR Newsletter, January 2021

Welcome to the January 2021 edition of the quarterly PSR Newsletter.

Agency activity summary for the quarter

In the period from 1 October 2020 to 31 December 2021 the Agency received 16 new requests (including 1 practitioner who had previously been referred). The Agency finalised 38 requests.

This comprised:

• 36 effective section 92 agreements
• 1 effective final determination
• 1 section 91 ‘no further action’ outcome

A total of $9,029,203 in repayment directions were made from the finalised matters. Of the finalised matters, 31 involved some form of disqualification.

In this period 4 new peer review Committees were established and 6 practitioners were referred to AHPRA because of significant patient safety concerns. In addition, 1 practitioner was referred to the Australian Federal Police.
 

PSR Panel update

Appointments

No new appointments were made to the PSR Panel in the last quarter.

The process is currently underway to appoint some additional specialists in new specialties.

Panel Training

PSR has scheduled Panel member training for the following dates:

• Saturday 20 February 2021 in Sydney, for NSW members
• Saturday 27 February 2021 in Brisbane, for Queensland members
• Saturday 6 March 2021 in Canberra, for ACT, SA and Tasmania members

PSR intends to settle on a date for a Victoria and Western Australia session shortly and we are monitoring the current situation with the COVID-19 pandemic.

Unless you are in Victoria or Western Australia, please contact Gina Staltari if you have not been invited to and wish to attend a training session.
 

PSR Statement of Expectations and Intent

PSR received a Statement of Expectations from the Hon Greg Hunt, Minister for Health and subsequently responded with a Statement of Intent. This document can be viewed here.
 

Children's dental scheme

PSR has received a number of referrals relating to the children’s dental scheme.

This scheme aims to provide essential dental care to children under Medicare. Referrals have focussed on concerns dental vans are visiting schools, or dentists are visiting preschool and childcare centres and performing multiple, unnecessary dental procedures on children as young as two or three years of age.
 

Optometry comprehensive assessments

PSR has received a number of referrals of optometrists.

One area for improvement to be considered by the profession is the need to document a patient history when the item descriptor calls for a comprehensive assessment or re- assessment. PSR has observed that critical information necessary to adequately assess and advise patients is omitted and the history is confined to less than four words.

A second area for improvement to be considered by the profession is for patients to be seen by the optometrist first, and for tests to be performed only if clinically indicated. In some reviewed cases, patients were seen by assistants, who performed tests, before they were seen by the optometrist to determine that the tests were clinically indicated. The introduction to the MBS states that every test must be clinically indicated unless it is part of a National Screening program.
 

Specialist MBS items 132 and 133

PSR has been referred a number of specialists who have billed these items in excess of 99% of peers. Specialists are reminded these items are not a substitute for items 110 and 116. These items are for comprehensive plans for complex patients. The associated note attached to these items outlines the structure and content required to fulfil the itemdescriptor. Plans must be clinically indicated. Patients must be eligible for the plans. Minimum time requirements must be met. Finally, plan documents must contain the required elements outlined in the related associated note. This includes integration with the patient’s general practice management plan (if they have one in place) to manage their chronic disease.
 

Federal Court outcomes

I-MED v Director of PSR

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.
Hamor v Commonwealth

The Federal Court dismissed an application by Dr Hamor, a Respiratory and Sleep Physician, for judicial review of a Draft Report and Final Report of a PSR Committee, which had found that he had engaged in inappropriate practice in connection with rendering home sleep studies (MBS item 12250). Dr Hamor alleged that the Committee’s decision-making was affected by a reasonable apprehension of bias, and that the Committee had misconstrued its statutory task. The Court rejected both grounds.

It was alleged that the Committee members’ comments and questions during the hearing might be apprehended as demonstrating bias, but the Court rejected that submission, quoting extensively from the transcript of the Committee hearing, and noting that the Chair was:

• [108] … seeking to understand the commercial arrangements that might have affected Dr Hamor’s provision of the item 12250 services. That was a legitimate and unremarkable line of inquiry.
  …
• [114] A fair-minded lay person would understand that the hearing was an occasion for the Committee to investigate, among other things, what facts were relevant to the provision of the relevant services. A fair-minded lay person would also appreciate that, by expressing concerns, the Committee gave Dr Hamor an opportunity to address them, including by submitting that they were irrelevant. Thus, the hypothetical fair-minded lay person would not be concerned about the impartiality of the Committee based on the concerns identified above, particularly where they were expressed as “concerns” and were followed by an opportunity for Dr Hamor to make submissions on the draft report.
  …
• [123] A fair-minded lay person would understand the Committee to have had concerns that it was not in the best interests of Dr Hamor’s patients that HSS [Healthy Sleep Solutions] was involved in the provision of home sleep studies as well as the sale of CPAP machines. This concern had an evidentiary basis: there was no dispute that HSS conducted a business involving sleep studies and sale of CPAP machines. Further, as Dr Hamor himself acknowledged, it was “unconscionable” for physicians to “not only diagnose but sell”. It follows that it was not unreasonable or inappropriate for the Committee to investigate and question whether Dr Hamor’s arrangements with HSS placed him in substantially the same situation as the one that Dr Hamor identified as “unconscionable”.

The Court summed up the Committee’s questioning of Dr Hamor during the hearing, and said:

• [141] The portions of the transcript identified by Dr Hamor do not suggest an inappropriate or unfairly challenging style of questioning by the Committee, or that the repeated expression of concerns was not genuine.
   
• [142] The transcript of the hearing indicates that the Committee was seeking to discharge its role conscientiously by investigating Dr Hamor’s provision of services in the wider context of the overall treatment of the relevant patients, as well as by giving detailed attention to Dr Hamor’s provision of services to the sample cases. The transcript indicates that Dr Hamor was given many opportunities to comment on the relevance or correctness of the Committee’s concerns over a two day hearing, which could not reasonably be considered to indicate the formation of any inappropriate fixed or final view. Subsequently, Dr Hamor was given an opportunity to make written submissions and to respond to the preliminary findings in the Committee’s draft report.

The Court held that the Committee had not misconstrued MBS item 12250, when it held that the general body of the specialty would expect that the sleep physician would have a role in supervising the technicians and scorers in order to ensure an appropriate quality of service provision, and that a detailed and reliable patient history should be available to the physician before commencing the home sleep investigation. The Court said:

• [174]… In this case, the Committee was required to consider whether the medical services to which item 12250 was said to apply were given by a person or persons who in accordance with accepted medical practice acted under the supervision of a medical practitioner, to the extent that they were not provided by Dr Hamor himself.
   
• [175] Ultimately, there was no dispute that the relevant medical services were given, in part, by the technicians and scorers engaged by HSS. There was no suggestion that any medical practitioner other than Dr Hamor supervised the technicians or the scorers to the extent that they were involved in giving the relevant medical services.
   
• [176] Dr Hamor contended that his role in supervising the technicians and scorers was limited, by the language of item 12250, to establishing quality assurance procedures for data acquisition of the kind identified in item 12250 clause (e)(i).
  
  Clause (e)(i) imposed a separate requirement on the practitioner to establish the specified quality assurance procedures for data acquisition, where the efficacy of the investigation evidently depends upon the acquisition of meaningful data. That requirement is not expressed as a qualification to, or replacement for, the supervision requirement expressed in cl 1.2.8. Dr Hamor did not argue that the role of the technicians and scorers in the provision of the services was confined to data acquisition within the meaning of item 12250.

• [184] The Committee’s findings indicate that it considered that the qualified sleep medicine practitioner was required to take, or have available, a history in order to confirm the necessity for the provision of a home sleep study under item 12250 investigation. I am not persuaded that the Committee misconstrued item 12250 in reaching that conclusion. It is implicit in item 12250 that the qualified sleep medicine practitioner is required to confirm the necessity for the investigation by reference to relevant information. It was open to the Committee to conclude, as a matter of fact, that this aspect of item 12250 required Dr Hamor to take a history or to supervise a technician who would take such a history, in accordance with accepted medical practice.

The Court dismissed the application for judicial review and ordered Dr Hamor to pay the Commonwealth’s costs.
 

Norouzi v Director of PSR

The Federal Court allowed an application by a medical practitioner to set aside part of a final determination of the Determining Authority, and remitted the matter to the Determining Authority to reconsider the practitioner’s submissions regarding the amount of the repayment. While the Court found that the Authority’s determination was not unreasonable, it found that the Authority had not adequately addressed all of the practitioner’s submissions in its reasons.

At the same time, the Court dismissed an application to extend time to allow the practitioner to challenge the decision of the PSR Committee, noting, among other things, the limited merits of the intended substantive application and that the practitioner had delayed, without reasonable cause, challenging the report of the Committee until he had seen the final determination of the Determining Authority.

In the course of considering the proposed challenge to the Committee’s Final Report on the basis that there was said to be a difference of opinion within the general body of practitioners concerning the use of the urgent after-hours items, the Court said:

• [72] The whole point of the committee system for which Pt VAA provides is that a committee is entitled to reach its own views, on the basis of the professional training, knowledge and experience of its members, as to whether it would be “reasonable to conclude” that the conduct would be “unacceptable to the general body of [in this case medical practitioners]”. The latter, and nothing else, is the material test. I respectfully agree with an observation made by Farrell J in Nithianantha v Commonwealth of Australia [2018] FCA 2063, at [193], that conduct may be “unacceptable to the general body of medical practitioners”, “notwithstanding that some practitioners may have had a different view”. Equally, it is possible to envisage cases where it would be reasonable for a committee to conclude the general body of medical practitioners might allow that there is more than one clinical approach open in relation to the rendering of a particular service. As it is, for just the reasons it gave, this committee was not obliged to reach such a conclusion in the present case.
   

PSR Outcomes

PSR publishes a monthly summary of case outcomes on its website. Each summary provides some idea of the person under review's practice profile (in comparison to their peers) and this helps understand why they were referred to PSR for review. In addition, the summaries detail the items investigated, the findings (in the case of a Committee) or the agreement reached between the person under review and the Director (PSR), and the penalties applied.