PSR Director's Update for December 2021

A. Director’s Section 92 agreements effective in December 2021

Four agreements entered into by the Director and persons under review (in accordance with s 92 of the Act) came into effect in December 2021.

An agreement with a general practitioner

During the review period, the practitioner rendered Medicare Benefits Schedule (MBS) items 705, 731, 5010, 5028, 5049 and 5067 in excess of 99 % of their peers. The Director reviewed this practitioner’s rendering of MBS items 705, 707, 721, 723, 731, 732, 5010, 5028, 5049 and 5067 and prescribing of Pharmaceutical Benefits Schedule (PBS) item 2622B. The Director had persisting concerns that:

• the MBS requirements were not always met, especially relevant time requirements
• the practitioner’s clinical input was inadequate.  For example, some of the reviewed chronic disease management (CDM) documents were template driven and did not contain adequate clinical detail about the patient’s health care needs, problems and chronic condition, and
• the practitioner’s records were inadequate. There were no adequate or contemporaneous records for many reviewed services and records which were made would not allow another practitioner to safely assume care.

The practitioner acknowledged having engaged in inappropriate practice in connection with rendering MBS items 705, 721, 723, 721, 5010, 5028, 5049 and 5067. The practitioner agreed to repay $140,000 and will be reprimanded by the Director.

An agreement with a general practitioner

During the review period, the practitioner rendered a volume of total and daily services disproportionate to peers and initiated diagnostic imaging services as well as prescribing PBS items 1889K and 8254K in excess of 99% of their peers. The Director reviewed this practitioner’s provision of MBS items 23, 5020, 55036, 55808, 55836, 55848, 56223 and 57341 and prescribing of PBS items 1215Y, 1889K and 8254K. The Director had persisting concerns that:

• MBS requirements were not always met
• the practitioner’s records were inadequate. The practitioner’s records were usually very  brief, and often relied excessively on computer shortcuts
• the initiation of diagnostic imaging services was not clinically indicated or if it was indicated, the medical records were inadequate in failing to reflect this.
• the practitioner’s clinical input was not always adequate, and
• the practitioner did not always comply with the PBS restrictions.

The practitioner acknowledged having engaged in inappropriate practice in connection with providing these items of concern. The practitioner agreed to repay $410,000, to be disqualified from providing MBS items 55848, 56223 and 57341 services for 6 months and will be reprimanded by the Director.

An agreement with a general practitioner

During the review period, the practitioner rendered a volume of total and daily services disproportionate to their peers, rendered MBS items 721 and 723 in excess of 98 % of their peers and prescribed PBS items 2791J, 3095X and 8254K in excess of 99% of their peers. The Director reviewed this practitioner’s rendering of MBS items 23, 36, 585, 594, 703, 705, 715, 2700 and 2701 and prescribing of PBS items 2971J, 3095X and 8254K.  The Director had persisting concerns that:

• the MBS requirements were not always met. For example, the clinical input recorded did not justify an attendance of at least 20 minutes, as required by the MBS item 36 item descriptor
• other MBS items were inappropriately co-billed with health assessments
• the practitioner’s records were inadequate
• the practitioner’s clinical input was not always adequate, and
• the PBS restrictions were not always met.

The practitioner acknowledged having engaged in inappropriate practice in connection with MBS items 23. 36. 585, 703, 705, 715, 2700 and 2701 and PBS items 2971J, 3095X and 8254Krendering these items of concern. The practitioner agreed to repay $190,000 and will be reprimanded by the Director.

An agreement with a medical practitioner

During the review period, the practitioner rendered MBS Level C and D services and prescribed PBS items 2622B, 3162K, 2089Y, 3133X and 1215Y in a volume disproportionate to peers. The Director reviewed this practitioner’s rendering of MBS items 23, 36 and 44 and prescribing of PBS items 1215Y, 2089Y, 2622B, 3133X and 3162K. The Director had persisting concerns that:

• the MBS requirements were not always met
• the records were inadequate. For example, the records did not demonstrate that the time requirements were met as required by the MBS item descriptors
• the practitioner’s clinical input was not always adequate, and
• the PBS restrictions were not always met.

The practitioner acknowledged having engaged in inappropriate practice in connection with providing these items of concern. The practitioner agreed to repay $20,000, to be disqualified from Medicare for a period of 36 months and will be reprimanded by the Director.

B. PSR Committee final determinations

No final determinations came into effect in December 2021

C. Federal Court

One decision concerning PSR was handed down in December 2021

Kew v Director of PSR [2021] FCA 1607

On 17 December 2021, the Federal Court dismissed a challenge from a radiologist to the findings of a PSR Committee that she had engaged in inappropriate practice in connection with rendering MBS items 104, 105, 18216 and 18222. Dr Kew challenged the Committee’s interpretation of those items, suggested that the Committee had asked itself the wrong question, and alleged that the Committee had failed to have regard to relevant material. The Court dismissed each of these challenges.

The Court noted that the Committee had said in its Report that the legislative scheme did not preclude billing for item 104 or 105 in conjunction with a radiological service, and had said that where a consultation was a clinically relevant service, there was a valid referral and sufficient clinical input was provided into the service and this was recorded, it is appropriate and permissible for diagnostic imaging and consultation services to be concurrently billed. However, on the facts as found by the Committee, the circumstances in which such co-billing would be acceptable to the general body of radiologists were not met. The Court quoted from the Committee’s Final Report in which it said:

“One of the aspects of MBS item 104, which is an overriding element, is that it is an item for ‘Specialist attendances to which no other item applies’. This means that if the things that were being done in the course of an attendance were, in fact, what the general body of radiologists would expect to be done as part of another MBS item, then those matters cannot be billed as an MBS item 104 service. Instead, they are part of the other MBS service that is being billed. For example, if the general body of radiologists expects that, in the course of rendering a particular radiological procedural service, the radiologist would examine the patient, discuss treatment options, obtain consent, perform the procedure itself, and provide advice regarding the after-effects of the procedure, then all of those matters would be part of what is expected to be done in rendering the procedural item, and cannot be billed as a separate attendance item.”

The Court held that the Committee’s approach was consistent with the definition of ‘clinically relevant service’ , which turns on whether the treatment rendered ‘is generally accepted in the [medical profession] as being necessary’, and that the treatment rendered that is an ‘essential element of’ or ‘part of’ a service performed and billed is not billable as a separate service.

Dr Kew’s submissions to the committee were to the effect that a majority of radiologists billed items 104 or 105 in association with a diagnostic imaging item and item 18222 was rendered in association with item 104 or 105 in almost A% of cases and item 18216 was rendered in association with item 104 or 105, B% of the time. Therefore, so it was said, the committee could not be satisfied that Dr Kew’s peers would consider the conduct unacceptable. But the Court said that whether co-billing was justified or not depended on the facts of each case. The Court quoted from the Committee’s Final Report, which stated:

“It does not follow that simply because many other radiologists have a similar billing profile to Dr Kew, or that certain MBS items such as 104 and 105 are regularly billed with procedures such as MBS item 18222, that Dr Kew’s particular practice in billing these services would be deemed acceptable by her peers. The Committee’s review of the Referred Services is not based on statistics but is conducted with the benefit of the records and Dr Kew’s evidence about particular services.”

The Court held that the Committee was entitled to proceed on that basis, which His Honour described as ‘transparently rational’.

Dr Kew challenged the Committee’s findings in relation to inadequate record-keeping. His Honour said:

“[156] First, the function of the regulations is to prescribe standards. But their content and application very much require an evaluative exercise that the committee was best placed to undertake with its expertise.
[157] Second, s 82(3) focuses on the question of records concerning the rendering or initiation of the services. So, it is focusing on services rather than attendances per se. And this is a point that has been glossed over by Dr Kew. There must be a record of the service. In terms of the attendance, it is the attendance to provide the service. So, if there is an inadequate or no record of the service, then there is an absence of evidence for a meaningful attendance or consultation. Further, regs 5(b) and (c) in terms make it plain that the focus of record keeping concerns services.”

Dr Kew challenged the Committee’s interpretation of MBS items 18216 and 18222 in which the Committee found that Dr Kew had given an ‘injection’ rather than an ‘infusion’. The Court rejected the challenge, saying:

"[187] The committee explained its conclusion on those items as follows (at [191]):
...The Committee has applied the ordinary meaning of the word infusion when considering the meaning of the MBS item descriptors. The Committee considers the MBS describes a clearly identifiable clinical procedure in relation to both MBS items 18216 and 18222. The procedures performed by Dr Kew were not an infusion, but an injection...
[188] That is an unremarkable example of the reasoning of an expert committee applying technical standards to factual findings within their field of expertise."

The Court dismissed the application and ordered Dr Kew to pay the Director’s costs.

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

No matters were referred to the major non-compliance (fraud) division in December 2021.

E. Referrals to AHPRA (106XA/B)

One matter was referred to AHPRA in December 2021.