PSR Director's Update for July 2020

Published date

20 August 2020

A. Director’s Section 92 agreements effective in July 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 a radiologist

During the review period, the practitioner billed MBS items 63173 and 63179 in association, and MBS items 63176 and 63179 in association, on more occasions than 99 percent of all diagnostic radiologists nationally. The Director reviewed this practitioner’s rendering of Medicare Benefit Schedule (MBS) items 104, 63173, 63176 and 63179. The Director had persisting concerns that:

the MBS requirements were not always met, including where MBS item 104 services were co-billed with diagnostic imaging services, and where multiple MRI items were billed in circumstances where there was one referral, one scan and one report completed;
the practitioner did not always maintain adequate records, in particular, the practitioner did not always keep documentation relating to MBS item 104 services; and
the practitioner’s rendering of MRI scans was not always clinically indicated.

The practitioner acknowledged they engaged in inappropriate practice in connection with providing these items of concern. The practitioner agreed to repay $290,000 and to be disqualified from the following for 12 months:

providing MBS item 104; and
providing any two or more of MBS item 63173, 63176 and 63179 to the same patient on the same day.

The practitioner will also be reprimanded by the Director.

An agreement with a general practitioner.

During the review period, the practitioner rendered more than 60 professional attendances on more than 40 days, which was in excess of 98 percent of their peers. The Director reviewed this practitioner’s rendering of MBS items 23, 705, 721, 723, 731, 732, 739, 2521, 2546, 2713, 11506 and 11700, MBS item 10997 services rendered on the practitioner’s behalf, and prescribing of Pharmaceutical Benefit Scheme (PBS) items 1215Y, 3162K, 5490Y, 8254K, 8519J and 8611F. The Director had no significant persisting concerns in relation to MBS items 11506 and 11700, and PBS items 5490Y and 8519J. The Director had persisting concerns in relation to the remaining items that:

the MBS requirements were not always met, including the minimum time requirements (where relevant);
services were not always clinically indicated;
the practitioner did not always provide adequate clinical input into services. For example, the majority of chronic disease management services appeared to be performed by the practice nurse with little input from the practitioner;
the practitioner did not always maintain adequate records; and
the practitioner prescribed PBS medications outside of PBS restrictions.

The practitioner acknowledged they engaged in inappropriate practice in connection with providing these items of concern. The practitioner agreed to repay $370,000, to be disqualified from providing MBS items 705, 721, 723, 739, 2521 and 2713 for 12 months, and will be reprimanded by the Director.

An agreement with an otolaryngologist.

During the review period the practitioner billed MBS item 41647 in excess of 99 percent of specialist otolaryngologists. The Director reviewed this practitioner’s rendering of MBS items 104, 105, 41647 and 41846 (replaced by item 41501). The Director had no significant persisting concerns in relation to MBS item 104. The Director had persisting concerns in relation to the remaining items that:

the practitioner impermissibly billed for pre and post-operative reviews in addition to procedural items without evidence of a separate consultation that was not pre or aftercare; and
MBS item 41846 (now replaced by item 41501) services were not always clinically indicated and/or records were inadequate. For example, it was not always clear patients presented with symptoms or conditions to suggest an examination of the larynx was clinically relevant (for example they presented with an ear complaint); and
MBS item 41647 services were not always clinically indicated and/or records were inadequate. For example, it was not clear that microinspection of the tympanic membrane was required (where a patient had an ear toilet merely to remove wax or debris).

The practitioner acknowledged they engaged in inappropriate practice in connection with providing these items of concern. The practitioner agreed to repay $140,000, to be disqualified from providing MBS item 41501 for 12 months, and will be reprimanded by the Director.

An agreement with a general practitioner.

During the review period the practitioner billed MBS items 47 and 732 in excess of 99 percent of their peers. The Director reviewed this practitioner’s rendering of MBS items 23, 47, 721, 723 and 732 and initiation of items 66596, 66833 and 66839. The Director had persisting concerns that:

services were billed to Medicare for public hospital patients and there was no evidence of patient’s informed consent to be treated as private patients;
some records were created or amended non-contemporaneously;
the MBS requirements were not always met, including the minimum time requirements (where relevant);
the practitioner did not always maintain adequate records;
the practitioner did not always provide sufficient clinical input into services; and
pathology appeared to often be initiated as part of a standard battery of tests rather than as a result of clinical indication.

The practitioner acknowledged they 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 47, 723 and 732 for 18 months, and will be reprimanded by the Director.

An agreement with a general practitioner.

During the review period the practitioner billed MBS items 721 and 723 in excess of 98 and 99 percent of their peers, respectively. The Director reviewed this practitioner’s rendering of MBS items 23, 721, 723 and 732, and prescribing of PBS items 1215Y and 2622B. The Director had persisting concerns that:

the MBS requirements were not always met;
the practitioner did not always provide adequate clinical input into services;
the practitioner did not always maintain adequate records. For example, GP Management Plans prepared for Chronic Disease Management services were template driven and contained generic information that was not sufficiently personalised;
the practitioner prescribed PBS medications outside of the PBS restrictions (where relevant); and
the practitioner prescribed medications that were not clinically indicated.

The practitioner acknowledged they engaged in inappropriate practice in connection with providing these items of concern. The practitioner agreed to repay $170,000, to be disqualified from providing MBS items 721, 723 and 732 for 12 months, and will be reprimanded by the Director.

An agreement with a general practitioner.

During the review period the practitioner billed MBS item 41764 in excess of 99 percent of their peers. The Director reviewed this practitioner’s rendering of MBS items 36 and 41764. The Director had persisting concerns that:

the MBS requirements for MBS item 36 services, including the minimum time requirements, were not always met;
MBS item 41764 services were not always performed to the standard expected by the practitioner’s peers. For example, when performing nasendoscopies the practitioner did not always appropriately examine all aspects of the patient’s nasal passages when clinically necessary;
the practitioner did not always appear to obtain consent when performing MBS item 41764 services; and
the practitioner did not always maintain adequate records.

The practitioner acknowledged they engaged in inappropriate practice in connection with providing these items of concern. The practitioner agreed to repay $25,000, to be disqualified from providing MBS items 41764 for 12 months, and will be reprimanded by the Director.

An agreement with a general practitioner.

During the review period the practitioner billed MBS item 721 in excess of 96 percent of their peers, MBS item 723 in excess of 98 percent of their peers and MBS item 732 in excess of 95 percent of their peers. The Director reviewed this practitioner’s rendering of MBS items 721, 723 and 732. The Director had persisting concerns that:

the MBS requirements were not always met;
the practitioner did not always maintain adequate records; and
services were not always clinically indicated. For example, Chronic Disease Management services were rendered where patients did not appear to have a chronic disease.

The practitioner acknowledged they engaged in inappropriate practice in connection with providing these items of concern. The practitioner agreed to repay $70,000 and will be reprimanded by the Director.

B. PSR Committee final determinations

PSR Committee No. 955

On 1 July 2020, a final determination came into effect regarding a general practitioner who practised in Victoria during the review period. The practitioner was directed to:

be reprimanded and counselled;
repay $81,052.09 to the Commonwealth;
be disqualified from billing MBS item 36 and 5040 services for a period of 12 months; and
be disqualified from billing MBS item 721, 723 and 732 services for a period of 18 months.

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 36, 721, 723, 732 and 5040.

The Committee was concerned about the practitioner’s record keeping, compliance with the MBS requirements, their clinical input and, in some instances, provision of services that were not clinically relevant.

In relation to MBS items 36 and 5040, the Committee found that in almost all instances the MBS requirements were not met in that there was insufficient clinical content to justify rendering a consultation of at least 20 minutes’ duration. The Committee found that either the practitioner’s records were too brief to support Level C consultations or billing a longer Level C consultation was not clinically indicated. The practitioner’s records for these services were also inadequate as they rarely recorded examination findings and in some instances reflected poor clinical decision-making or a failure to investigate a presenting complaint.

MBS item 721 requires the formulation of a GP management plan (GPMP) in connection with the patient. The practitioner developed GPMP documents that were not sufficiently comprehensive or individualised to the patient and contained goals that were generic and did not have a clear connection with the problems listed in the plan.

MBS item 723 relates to the creation of Team Care Arrangements (TCA) involving at least two other healthcare providers. The Committee found there was no adequate two-way communication with other healthcare providers and that TCA documentation, when it could be located, did not list, or listed far too generally, the expected contributions from particular collaborating providers.

MBS item 732 involves the review of a GPMP or TCA. In relation to reviews of TCA documentation, the Committee found that the practitioner failed to consult with at least two collaborating providers within the meaning of the MBS item descriptor. In relation to reviews of GPMP documentation, the practitioner failed to rectify defects in original GPMPs. In addition, there were also occasions where the Committee found there was no documentary evidence that the practitioner performed a review of a GPMP or TCA on the date of service.

The Determining Authority’s repayment direction of $81,052.09 along with the 12 month disqualification from MBS items 36 and 5040 and 18 month disqualification from MBS items 721, 723 and 732 reflects the serious extent of inappropriate practice found by the Committee. The practitioner will also receive a reprimand and counselling from the Director.

PSR Committee No. 1223

On 2 July 2020, a final determination came into effect regarding a general practitioner who practised in Victoria during the review period. The practitioner was directed to:

be reprimanded and counselled;
repay $71,006.70 to the Commonwealth; and
be disqualified from billing MBS item 160 services for a period of 18 months.

The Committee was concerned about the practitioner’s compliance with MBS requirements, their clinical input into each service, their record keeping including their documentation of essential clinical information, and the practitioner providing professional attendance services to patients who were not present.

In relation to all items referred, the Committee found that the MBS requirements were not always met, in that the practitioner did not always personally attend on the patient on the date of service.

For MBS item 23, the Committee found that the practitioner sometimes charged a gap payment to a patient and then claimed a bulk-billing rebate for the service from Medicare, contrary to the Health Insurance Act 1973. In some services reviewed, the practitioner attended to the patient on the date of service for the purpose of rendering another service that he would then bill on the following day. The practitioner also billed MBS item 23 for work completed that was not a consultation with the patient but instead tasks such as reading specialist reports or test results they received for a patient, or making a record in their notes.

In relation to MBS items 36 and 44, the Committee found that in the majority of services the recorded clinical input, and the further information about the service that the practitioner was able to provide to the Committee at the hearing, was not sufficient to justify spending the minimum time requirement set out in the item descriptors. The Committee found that there was insufficient clinical content to justify a consultation lasting at least 20 or 40 minutes respectively, as required by the relevant MBS item descriptor. Further, for both items the practitioner did not always document a detailed or comprehensive history, or record examinations, as required by the relevant item descriptor.

The Committee found the practitioner rendered services as MBS item 160 where the patient was not in imminent danger of death and/or where the practitioner had not attended the patient for at least one hour, as required by the MBS item descriptor. The practitioner billed MBS item 160 for patients who presented with conditions such as anxiety, knee injuries or back pain and did not consider the requirement of the patient being in imminent danger of death when using this item.

The Determining Authority’s repayment direction of $71,006.70 along with the 12 month disqualification from MBS item 160 reflects the Committee’s high level of findings of inappropriate practice. The practitioner will also receive a reprimand and counselling from the Director.

C. Federal Court

National Home Doctor Service Pty Ltd v Director of PSR [2020] FCA 1016

On 17 July 2020, the Federal Court dismissed an application from National Home Doctor Service Pty Ltd (NHDS) to have the Director’s ongoing review of the corporation’s conduct declared invalid by virtue of the operation of section 94 of the Health Insurance Act 1973.

Under section 94, if the Director has not taken action under section 91, 92 or 93 of the Act in relation to a review within 12 months, the Director is deemed to have made a decision to take no further action. NHDS argued that as action taken by the Director in July 2019 under section 93 of the Act (to set up and refer NHDS to a Committee to investigate whether NHDS engaged in inappropriate practice) was subsequently set aside by the Court in April 2020, and it was more than 12 months since the Director had commenced her review, the Director was deemed to have made a decision to take no further action and prevented from resuming her review.

In denying the application, the Court held that section 94 required only that the Director take the requisite action in fact, and although the Director’s decision to set up and refer NHDS to a Committee was subsequently set aside on legal grounds, this did not have the same effect as the Director having not acted at all.

The Director’s review into whether NHDS employed one or more practitioners and may have knowingly, recklessly or negligently caused or permitted those practitioners to engage in inappropriate practice is ongoing.

The judgment can be accessed here.

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

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

E. Referrals to AHPRA (106XA/B)

No matters were referred to AHPRA in July 2020.