PSR Director's Update for May 2019

A. Director’s Section 92 agreements effective in May 2019

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 general practitioner. The Director reviewed this practitioner’s rendering of Medicare Benefits Schedule (MBS) items 721, 723 and 732 and prescribing of Pharmaceutical Benefits Scheme (PBS) items 3119E and had no concerns in relation to PBS item 3119E. The Director had persisting concerns that: the practitioner did not always keep adequate medical records; the MBS requirements for items billed were not always met; and the practitioner did not always provide adequate clinical input into services rendered. The practitioner acknowledged they engaged in inappropriate practice in connection with providing these items of concern. The practitioner agreed to repay $180,000, 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. The Director reviewed this practitioner’s rendering of MBS items 23 and 36 and prescribing of PBS items 2089Y, 2622B, 3162K, 8611F, 8785J and 8814X.  The Director had persisting concerns that: the practitioner did not always keep adequate medical records; the practitioner’s rendered MBS item 23 and 36 services did not always meet the MBS requirements; the practitioner prescribed high doses of opiates and benzodiazepines (sometimes in conjunction) with no clear clinical indication, medication management plan or attempt to reduce the patient’s dosage; and the practitioner’s prescribing of PBS item 8814X was inconsistent with the PBS requirements. The practitioner acknowledged they engaged in inappropriate practice in connection with providing these items of concern. The practitioner agreed to repay $60,000, to be disqualified from providing MBS items 36 for 12 months, and will be reprimanded by the Director.
   
• An agreement with a general practitioner. The Director reviewed this practitioner’s rendering of MBS items 23, 36, 721, 723, 732, 5020, 55036, 55244, 55808, 55850, 57341, 58503, 66518, 66650, 66653, 69321, 69333 and 71097 and prescribing of PBS items 3119E and 8254K and had no concerns in relation to MBS items 5020, 55036, 55808, 55850, 57341, 58503 and 69321 and PBS items 1169W, 1785Y, 3119E and 8254K. 
  
  The Director had persisting concerns that: level C and D attendances: consultations involved straightforward presentations, clinical input recorded was often not of sufficient detail or complexity to meet documentation or time requirements (where relevant) and some services appeared to involve routine post excision aftercare; chronic disease management services: clinical input was insufficient to support all MBS item requirements, the practitioner was not always the patient’s usual GP and it was unclear what input the practitioner provided. Two way communication with at least two providers was not documented and review documents were often identical to documents they were reviewing; diagnostic imaging (MBS item 55244): records did not contain a relevant clinical history or examination and it was not clear that tests were clinically indicated; pathology items (MBS items 66518, 66650, 66653, 69333 and 71097): clinical records did not document an adequate or relevant clinical history or examination to support initiation and pathology tests were ordered as part of routine screening. 
  
  The practitioner acknowledged they engaged in inappropriate practice in connection with providing these items of concern. The practitioner agreed to repay $200,000, to be disqualified from providing MBS items 721, 723, 732 and 66650 for 12 months, and will be reprimanded by the Director.
   
• An agreement with a respiratory and sleep medicine specialist. The Director reviewed this practitioner’s rendering of MBS items 11503 and 12250. The Director had persisting concerns that: for MBS item 11503, the test had not been ordered by the referring GP, the practitioner did not supervise the test or provide quality assurance, and there was no independent report of the test; and for MBS item 12250, there was inadequate consideration of clinical indication for the study, the practitioner’s supervision was inadequate, and the reports were inadequate. The practitioner acknowledged they engaged in inappropriate practice in connection with providing these items of concern. The practitioner agreed to repay $470,000, to be disqualified from providing MBS items 11503 for 12 months, and will be reprimanded by the Director.
   
• An agreement with a general practitioner. The Director reviewed this practitioner’s rendering of MBS items 23, 36, 44, 703 and 2713 and prescribing of PBS items 3119E and 8254K. The Director had persisting concerns that: records were inadequate and did not always support that MBS requirements were met, including time requirements (where relevant); attendance items were often billed with MBS items 703 and 2713 without sufficient justification; and prescribing under the PBS was not always clinically indicated and PBS requirements were not always met. The practitioner acknowledged they engaged in inappropriate practice in connection with providing these items of concern. The practitioner agreed to repay $400,000, to be disqualified from providing MBS items 44, 703 for 12 months, and will be reprimanded by the Director.
   
• An agreement with a general practitioner. The Director reviewed this practitioner’s rendering of MBS items 36, 44, 721, 723, 732, 5040 and 5060 and prescribing of PBS item 8254K and had no concerns in relation to PBS item 8254K. The Director had persisting concerns that: with regard to level B and C consultations, MBS requirements were not always met, including the minimum time requirements, and medical records and clinical input were inadequate; for chronic disease management services under review, MBS requirements were not always met, records and clinical input were inadequate, and not all reviews of GP Management Plans/Team Care Arrangements were clinically indicated. The practitioner acknowledged they engaged in inappropriate practice in connection with providing these items of concern. The practitioner agreed to repay $340,000, to be disqualified from providing MBS items 36, 44, 721, 723, 732, 5060 for 12 months, and will be reprimanded by the Director.

B. PSR Committee final determinations

No determinations became effective in May 2019.

C. Federal Court

Karmakar v Minister for Health and Director of PSR [2019] FCA 868

On 16 May 2019, the Federal Court delivered an interlocutory judgment regarding orders concerning the progress of the matter. The Court postponed the hearing of the Commonwealth parties’ application for summary judgment and strike out of Dr Karmakar’s application to the Court, and permitted her a further opportunity to amend her application to the Court. His Honour indicated that she had only recently obtained the advice of senior counsel, who had in that short time advised her not to press one legal issue, and would likely give frank advice regarding her prospects regarding the remainder of her application. His Honour said:

‘[4] Indeed, when one looks at the history of this case, it overwhelmingly required a particular reality check in terms of the pleading of Dr Karmakar’s case, as well as particular propositions of law advanced. It is by no means apparent that the assertion of a need for peer reviewed, agreed, legislatively endorsed, and formally taught standards and benchmarks (as is put on behalf of Dr Karmakar presently) has any particular prospect of success. That particular view, though, must necessarily be a tentative one as I am not in any way, in a context of deciding whether to adjourn to allow for new pleadings, purporting to determine that point on its merits. I express that view only to voice a matter of initial impression. The same might be said in relation to the contention that the scheme ordained in the Health Insurance Act for the review of delivery of particular professional services and as described in s 80 of that Act in some way violates an implied freedom of political discourse, such that some or all of the scheme is invalid.

[9] … in my view, the interests of justice are better served by allowing Dr Karmakar the benefit of some blunt advice via the granting of the adjournment sought on terms as to costs, and bringing the case back, if needs be, either for the hearing of the summary judgment application revised to the extent necessary in light of any repleading, or perhaps even for substantive hearing, on 19 September 2019.’

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

No matters were referred to the major non-compliance (fraud) division in May 2019.

E. Referrals to AHPRA (106XA/B)

Two matters were referred to AHPRA in May 2019.