PSR Director's Update for November 2021

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

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

An agreement with a medical practitioner

During the review period, the practitioner rendered total Medicare Benefits Schedule (MBS) services and initiated MBS items 66596, 66716 and 66838 in excess of 98% of their peers. The Director reviewed this practitioner’s rendering of MBS items 53, 229 and 230, initiation of MBS items 66596, 66716 and 66838 and prescribing of Pharmaceutical Benefits Schedule (PBS) items 2335X, 2622B and 3162K. The Director had persisting concerns that:

• the MBS requirements were not always met. For example, the GP management plans (GPMP) were not always comprehensive and did not always document the patient’s health conditions or management goals, as required by the MBS item descriptor
• the practitioner’s clinical input was inadequate
• the practitioner’s records were inadequate. For example, many of the practitioner’s records did not contain details the profession might expect such as a patient history or evidence of an examination, and
• the practitioner’s management of patients to whom pregabalin, oxycodone and diazepam were prescribed was not always appropriate nor was the prescribing always clinically indicated.

The practitioner acknowledged having engaged in inappropriate practice in connection with providing these items of concern. The practitioner agreed to repay $165,000, to be disqualified from providing MBS item 229 and 230 services for a period of 12 months and will be reprimanded by the Director.

An agreement with a general practitioner

During the review period, the practitioner rendered MBS daily services in volumes of 60-69 and 70-79 services per day excess of 99% of their peers. The Director reviewed this practitioner’s rendering of MBS items 23, 705, 2700 and 5020 and prescribing of PBS items 1215Y, 2089Y, 2622B, 3162K and 8254K. The Director had persisting concerns that:

• the practitioner’s records were inadequate. For example, records were often brief, omitting important information such as an adequate patient history and a record of clinically indicated examinations
• the MBS requirements were not met, including not meeting minimum time requirements of the MBS descriptor in relation to MBS item 705 services
• the practitioner’s clinical input was not always adequate
• the practitioner’s management of patients was not always appropriate, and
• the practitioner did not always meet the PBS restrictions for medicines they prescribed.

The practitioner acknowledged having engaged in inappropriate practice in connection with providing these items of concern. The practitioner agreed to repay $160,000, to be disqualified from providing MBS items 705 and 2700 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 volume of total MBS services and initiated MBS items 66716 and 66840 in excess of 99% of their peers. The Director reviewed this practitioner’s rendering of MBS items 23, 36, 5020 and 5040 and initiation of MBS item 66716 and 66840 services.

The Director had persisting concerns that:

• the MBS requirements were not always met. For example, the minimum time requirements of the item descriptors for MBS items 36 and 5040 were not always met
• the practitioner’s record keeping was inadequate, and
• the initiation of pathology services were not always clinically indicated. For example, the practitioner initiated large volumes of pathology tests as part of a battery of tests, including requesting tests repeatedly over a period of years despite previous normal results.

The practitioner acknowledged having engaged in inappropriate practice in connection with providing MBS items 36, 5040, 66716 and 66840. The practitioner agreed to repay $50,000 and will be reprimanded by the Director.

An agreement with a general practitioner

During the review period, the practitioner rendered MBS Residential Aged Care Facility Attendance items in a volume disproportionate to peers and prescribed PBS items 3162K, 2089Y, 2723H, 3132W, 2622B and 8866P in excess of 99% of their peers. The Director reviewed this practitioner’s rendering of MBS items 23, 37, 5028 and 90035 and prescribing of PBS items 1215Y, 2089Y, 2622B, 2723H, 3132W, 3162K, 8000C, 8611F and 8866P. The Director had persisting concerns that:

• the MBS requirements were not met
• the records were inadequate or absent. For example, for nearly half of the reviewed MBS services  there were no contemporaneous records, and
• there was a lack of clinical indication for prescribing the PBS items.

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 item 37 services for 12 months and will be reprimanded by the Director.

An agreement with an oral and maxillofacial surgeon

During the review period, the practitioner rendered MBS items 57912, 57915 and 57927 in excess of 99% of their peers. The Director reviewed this practitioner’s rendering of MBS items 104, 105, 57912, 57915, 57927, 57930 and 57933. The Director had persisting concerns that:

• the practitioner billed MBS item 105 for routine aftercare on some occasions in circumstances where the cost of the aftercare was encompassed in the procedure fee for the procedure
• MBS items 57912, 57915 and 57927 were regularly billed twice where only one bilateral imaging service was provided, and
• MBS items 57912, 57915 and 57933 were not always clinically indicated.

The practitioner acknowledged having engaged in inappropriate practice in connection with rendering MBS items 105, 57912, 57915, 57927 and 57933. The practitioner agreed to repay $30,000 and will be reprimanded by the Director. During the investigation the practitioner made a voluntary repayment to Medicare in relation to services provided during the review period as MBS items 57912, 57915 and 57933.

B. PSR Committee final determinations

No final determinations came into effect in November 2021.

C. Federal Court / Administrative Appeals Tribunal

One Federal Court decision concerning PSR was handed down in November 2021. One Administrative Appeals Tribunal decision concerning PSR was also handed down.

National Home Doctor Service Pty Ltd v Director of PSR [2021] FCA 1381

On 10 November 2021, the Federal Court dismissed a challenge from National Home Doctor Service (NHDS) to the Director’s second decision to refer NHDS to a Committee under s 93 of the Health Insurance Act 1973, on the grounds that the second decision was not made within a ‘reasonable time’ and was therefore invalid.

The Federal Court found the Director did make her decision within a reasonable time, noting:

• what constituted a ‘reasonable time’ depended on the circumstances of each case – it did not automatically mean 12 months from the resumption of the Director’s review (following the setting aside of the original referral); and
• It was appropriate — and possibly legally necessary — for the Director to have reconsidered afresh the voluminous material (more than 2000 documents) put before the Director (including those that only became available after the first challenge to the Director’s original decision), and prudent for the Director to have proceeded cautiously.

The Federal Court determined that in any event, a failure to make a decision within a reasonable time would not result in a loss of jurisdiction.

Raiz and Professional Services Review [2021] AATA 4360

The Administrative Appeals Tribunal (AAT) decided an application by Dr Raiz who sought numerous documents relating to PSR Committee 1095, other documents relating to Dr Raiz, and various other documents. PSR had already provided many documents to Dr Raiz, and other documents had also been provided with redactions or not provided on the basis of exemptions from disclosure in the Freedom of Information Act 1982 (FOI Act). The AAT affirmed the decision under review in PSR favour with respect to documents remaining in dispute.

In relation to particular documents connected to the Director’s deliberations about matters that were not referred to the Committee, the AAT accepted PSR’s argument that it would be contrary to the public interest for them to be released. The Committee’s investigation was still ongoing and the AAT said:

‘If the information about the Director’s review is revealed it could reasonably be expected to impede on the Committee review process which is structured to exclude involvement from the Director. This allows the PSR Committee to come to an independent decision, free from any ongoing influence from the Director. Further, it ensures that the matters under review are limited to those deemed serious enough for referral by the Director so that the review remains appropriately confined.’

In relation to documents relating to the Committee’s deliberations, the AAT said:

‘… there could be a serious and material negative impact on the PSR’s operations if the deliberations of the Committee were disclosed to Dr Raiz. Sections 106F(1) and 106ZR of the HI Act evince parliament’s intention that the protections in the PSR Scheme allow Committee members to openly discuss and consider whether a practitioner has engaged in inappropriate practice. If Committee members know that their private deliberations would be available to the person under review, even whilst a review process was ongoing, I consider that this could severely limit their willingness to openly engage in the review process and deliberate on sensitive and controversial matters. …

I am satisfied that there is a public interest in the information surrounding the Committee investigation remaining confidential. This is particularly the case whilst the investigations are still on foot. If the Committee members are aware that a person under review may have access to their deliberations and the information they seek in relation to their deliberations, this may fetter their ability to freely seek out information and explore different possible findings without concern of alerting the person under review. The HI Act has implemented statutory immunities for Committee members to ensure the proper functioning of the review scheme and that Committee members may effectively conduct reviews.’

Dr Raiz had sought documents containing the names of consultants whom the Director had engaged to assist her with her review. The AAT said:

‘I find that if the names of consultants could be released through an FOI process, this would, or could, have the substantial adverse impact of limiting the number of consultants willing to assist the Director. If the Director no longer has access to a wide pool of consultants, this would significantly prejudice her ability to make informed decisions in the initial referral stage and would therefore fetter the functions of the PSR scheme.’

Various documents were withheld on the basis of legal professional privilege. The AAT reviewed the documents in dispute, and noted that upon Dr Raiz’s FOI request, PSR’s General Counsel had reviewed all the documents that the PSR had claimed privilege over and released further documents where he determined that staff were not acting in their capacities as legal advisors. The AAT said:

‘I am satisfied that the remainder of documents that the PSR have claimed privilege involve documents for use in the judicial review proceedings brought by Dr Raiz or to provide legal advice about the PSR’s review of Dr Raiz’s medical practices. These communications are confidential and relate to independent legal advice provided by the in-house lawyers at the PSR.’

The AAT affirmed the decision under review with respect to the documents remaining in dispute.

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

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

F. Referrals to AHPRA (106XA/B)

One matter was referred to AHPRA in November 2021.