PSR Director's Update for December 2020

A. Directors Section 92 agreements effective in December 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 an oral and maxillofacial surgeon

During the review period, the practitioner rendered the highest volume of Medicare Benefits Schedule (MBS) item 18234 services in Australia. The Director reviewed this practitioner’s rendering of MBS items 104, 105, 18234, 18236, 45200, 45720, 45726 and 45809, and had no persisting concerns in relation to MBS items 104. The Director had persisting concerns that:

• MBS requirements were not always met;
• not all services were clinically indicated. For example, when rendering MBS item 105, it was not always evident that there was a professional attendance separate from the concurrently billed procedural item(s) or that was not routine aftercare;
• consent was not always evidenced for billed procedures; and
• the records were inadequate.

The practitioner acknowledged having engaged in inappropriate practice in connection with providing the items of persisting concern. The practitioner agreed to repay $360,000, to be disqualified from providing MBS items 18234, 45720, 45726 and 45809 for 12 months, and will be reprimanded by the Director.

An agreement with a general practitioner

During the review period, the practitioner initiated MBS items 66596, 71166 and 69303 in excess of 99 percent of their peers. The Director reviewed this practitioner’s provision of MBS items 23, 715, 721, 723, 732, 2717, 10997, 66596, 69303, 69306 and 71166, and had no persisting concerns in relation to MBS items 23 and 69306. The Director had persisting concerns in relation to the remaining items that:

• the practitioner’s records were inadequate;
• MBS requirements were not always met (including minimum time requirements, where relevant);
• the practitioner’s clinical input was not always sufficient; and
• the practitioner’s initiation of pathology services was not always clinically indicated and instead, services appeared to be initiated as part of a battery of tests.

The practitioner acknowledged having engaged in inappropriate practice in connection with providing the items of persisting concern. The practitioner agreed to repay $110,000, to be disqualified from providing MBS items 2717, 10997 and 66596 for 6 months, and will be reprimanded by the Director.

An agreement with a general practitioner

During the review period, the practitioner rendered MBS items 18234, 18236, 45201 and 45563 in excess of 99 percent of their peers. The Director reviewed the practitioner’s rendering of MBS items 18234, 18236, 30195, 30196, 45201 and 45563. The Director had persisting concerns that:

• the practitioner’s record keeping was inadequate. In particular, the records did not always include patient information necessary for safe medical care;
• MBS requirements were not always met;
• the practitioner did not always provide sufficient clinical input into services; and
• there was not always an adequately documented clinical indication for services.

The practitioner acknowledged having engaged in inappropriate practice in connection with providing these items of concern. The practitioner agreed to repay $220,000, to be disqualified from providing MBS items 18234 and 45563 for 12 months, and will be reprimanded by the Director.

An agreement with a medical practitioner

During the review period, the practitioner rendered MBS items 5020, 5040 and 5060 in excess of 99 percent of their peers. The Director reviewed this practitioner’s rendering and initiating of MBS items 5020, 5040, 5060, 55808, 55840, 56223, 56619 and prescribing of Pharmaceutical Benefits Scheme (PBS) items 2363J, 8254K, 11379X and 11129R. The Director had persisting concerns that:

• the practitioner’s clinical input was inadequate;
• there was not always a clinical indication for the medications prescribed;
• the practitioner did not always appropriately manage patients receiving high quantities of medication. For example, the practitioner prescribed high quantities of medications without documenting a discussion of the risks of polypharmacy with the patient;
• the PBS requirements and restrictions were not always complied with;
• MBS requirements (including minimum time requirements where applicable) were not always met;
• the practitioner did not always keep adequate records of the services provided; and
• the diagnostic services initiated by the practitioner were not always clinically indicated.

The practitioner acknowledged having engaged in inappropriate practice in connection with providing these items of concern. The practitioner agreed to repay $280,000, to be disqualified from providing MBS items 5040 and 5060 for 3 months, MBS items 55840, 56223 for 12 months, 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 and 133. 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;
• not all services were clinically indicated. 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;
• the practitioner’s records were inadequate; and
• the practitioner did not adequately document a clinical indication for diagnostic imaging services that were co-billed with MBS item 132 and 133.

The practitioner acknowledged having engaged in inappropriate practice in connection with providing these items of concern. The practitioner agreed to repay $320,000, 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 rendered MBS items 721, 723 and 732 in excess of 97, 98 and 99 percent of peers, respectively. The Director reviewed this practitioner’s rendering and initiating of MBS items 721, 723, 732 and 66596 and prescribing of PBS items 2089Y, 3162K and 8611F. The Director had persisting concerns that:

• the practitioner’s records were inadequate;
• MBS requirements were not always met. For example, there was not always evidence of collaboration with at least two other healthcare providers in relation to MBS item 723 services;
• not all services or prescribing was clinically indicated. For example, due to the brevity of the clinical records coupled with the illegibility of the practitioner’s notes, the clinical indication for commencing, continuing to prescribe and altering dosages of medications was not always clear;
• the practitioner’s clinical input was not always sufficient; and
• the practitioner did not always appropriately manage patients to whom PBS items 2089Y, 3162K and 8611F were prescribed. 

The practitioner acknowledged having engaged in inappropriate practice in connection with providing these items of concern. The practitioner agreed to repay $100,000, to be disqualified from providing MBS items 723 and 732 for 12 months and will be reprimanded by the Director.

B. PSR Committee final determinations

PSR Committee No. 1148

On 2 December 2020, a final determination came into effect regarding Dr Phillip Knowles, general practitioner, who practised in Wagga Wagga, New South Wales, during the review period. The practitioner was directed to:

• be reprimanded
• be counselled
• repay $589,204.42 to the Commonwealth and
• be fully disqualified from rendering Medicare Benefit Schedule (MBS) items for a period of 3 years.

The directions followed from a final report of a PSR Committee, which concluded that the practitioner engaged in inappropriate practice in connection with services provided as MBS items 23, 36, 44, 705, 721, 723, 732, 2525, 2713, 2715 and 30192 and Pharmaceutical Benefit Schedule (PBS) items 2622B and 3162K.

The Committee was concerned that across many of the reviewed services the patient was not present on the date of service. In addition, the Committee was concerned there were no contemporaneous medical records related to many of the services under review.

Across all of the reviewed MBS services the Committee was concerned with the practitioner’s compliance with MBS requirements and in particular minimum time requirements not being met, that the clinical input provided into the service was inadequate and that the contemporaneous medical records (when present) were insufficient.

The Committee found in relation to the General Practitioner Management Plan (GPMP), Team Care Arrangement (TCA) and GPMP and TCA review services (MBS item 721, 723 and 732 services) that not all patients were eligible for the services, the clinical input into the service was inadequate and the medical record was inadequate. In many cases no contemporaneous documents were present. In relation to the MBS item 30192 services the Committee considered there was no evidence to support that cryotherapy was performed on the date of service.

With regards to the prescribing of oxycodone 5mg tablets and diazepam 5mg tables the Committee was concerned about the clinical input in relation to the management of patients to whom these drugs were prescribed. In addition, the Committee was concerned about the practitioner’s practice of forward-dating prescriptions and that the record-keeping reflecting why the medications were prescribed was inadequate.

The Determining Authority’s repayment direction of $589.204.42 (being the full amount of the Medicare benefits that were paid for the MBS item 23, 36, 44, 705, 721, 723, 732, 2525, 2713, 2715 and 30192 services) and the disqualification period of three years from all Medicare rebated services reflects the extremely serious degree of inappropriate practice found by the Committee.

C. Federal Court

Hamor v Commonwealth of Australia & Professional Services Review Committee No. 1015 [2020] FCA 1748

Dr George Hamor, a respiratory and sleep physician, sought judicial review of the preliminary findings and findings of a PSR Committee on the following grounds:

• whether there was a reasonable apprehension of bias on the part of some or all of the Committee members individually, or the Committee as a whole; and
• whether the Committee misconstrued its statutory task.

The Court dismissed the application and ordered Dr Hamor to pay the Commonwealth’s costs. The matter will now progress to the Determining Authority for a determination of outcome.

Summary of case

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.

Judgement around the issue of an apprehension of bias

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.

​Judgement around issue of misconstruing MBS item 12250

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.

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

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

E. Referrals to AHPRA (106XA/B)

Two matters were referred to AHPRA in December 2020.