PSR Director's update for December 2022

A. Director’s Section 92 agreements effective in December 2022

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

An agreement with a General Practitioner.

During the review period, the practitioner rendered Medicare Benefits Schedule (MBS) items 24, 37, 47, 5023, 5028, 5043 and 5063 in excess of 99% of their peers. The Director reviewed this practitioner’s rendering of MBS items 24, 37, 47, 707, 731, 5023, 5028 and 90035. The Director had persisting concerns that:

• MBS requirements were not always met, including requirements as to minimum time duration and to obtain a detailed patient history where relevant
• services were not always clinically indicated, particularly services rendered to patients in Residential Aged Care Facilities 
• the practitioner’s recordkeeping was inadequate, including the process for making, storing and accessing records, and the records did not contain sufficient individualisation to focus on patients’ health care needs
• the practitioner provided insufficient clinical input

The practitioner acknowledged having engaged in inappropriate practice in connection with rendering MBS Items 24, 37, 47, 707, 731, 5023, 5028 and 90035. The practitioner agreed to repay $100,000, to be disqualified from providing MBS item 47 services 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 23 and 5020 in excess of 99% of their peers, and prescribed Pharmaceutical Benefits Scheme (PBS) items 1215Y, 2089Y and 3162K disproportionately to their peers. The Director reviewed this practitioner’s rendering of MBS items 23 and 5020, and prescribing of PBS items 1215Y, 2089Y and 3162K. The Director had persisting concerns that:

• MBS requirements were not always met.  For example, the progress notes did not contain an adequate history, examination, management plan or advice as required by the MBS item descriptors
• the practitioner’s recordkeeping was inadequate.  For example, many of the records lacked sufficient information to explain the consultations, including as to the patient’s presenting complaint
• the prescribing of PBS items was not always clinically indicated and the patient record did not always contain sufficient detail to explain why the medication was being prescribed
• the practitioner provided insufficient clinical input into management of patients’ conditions and medications

The practitioner acknowledged having engaged in inappropriate practice in connection with rendering MBS Items 23 and 5020, and prescribing PBS Items 1215Y, 2089Y and 3162K. The practitioner agreed to repay $375,000, and will be reprimanded by the Director.

An agreement with an Other Medical Practitioner (OMP).

During the review period, the practitioner rendered MBS items 277, 286, 92099, 92100, 92103 and 92132 in excess of 99% of their peers, and prescribed PBS items 3162K, 8601Q and 8886Q disproportionately to their peers. The Director reviewed this practitioner’s rendering of MBS items 229, 230, 233, 277, 279, 282, 283, 286, 92099, 92100, 92103, 92132 and 92133, and prescribing of PBS items 3162K, 8601Q and 8886Q. The Director had no concerns in relation to MBS items 283. The Director had persisting concerns in relation to the remaining items that

• MBS requirements were not always met.  For example, the documentation associated with chronic disease management (CDM) and metal health attendances often omitted information required by the relevant MBS item descriptor
• the practitioner’s prescribing was not always clinically indicated, and they did not always appropriately manage patients when prescribing drugs
• the practitioner provided insufficient clinical input including that CDM plans did not adequately address the health needs of patients
• the practitioner’s recordkeeping was inadequate, as the records were not sufficiently individualised to reflect the patients’ circumstances and they were often brief and deficient in important clinical information

The practitioner acknowledged having engaged in inappropriate practice in connection with rendering MBS Items 229, 230, 233, 277, 279, 282, 286, 92099, 92100, 92103, 92132 and 92133, and prescribing PBS Items 3162K, 8601Q and 8886Q. The practitioner agreed to repay $200,000, to be disqualified from providing all services in respect of which an MBS benefit would be payable for 36 months, and will be reprimanded by the Director.

An agreement with a General Practitioner.

During the review period, the practitioner rendered MBS items 36, 2713, 2717 and 5040 in excess of 98% of their peers. The Director reviewed this practitioner’s rendering of MBS items 36, 2713, 2717, 5040 and 91810. The Director had persisting concerns that:

• MBS requirements were not always met, including minimum time requirements where relevant
• services were not all clinically indicated where extended consultations were billed for straightforward presentations
• the practitioners record keeping was inadequate, in particular the records of mental health services often included template text which was not sufficiently personalised to the patient and patient consent to plans was not always recorded

The practitioner acknowledged having engaged in inappropriate practice in connection with rendering MBS Items 36, 2713, 2717, 5040 and 91810. The practitioner agreed to repay $180,000, to be disqualified from providing MBS items 2717, 91801 and 92117 services 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 36, 5023, 5040, 5060, 91809 and 91810 and initiated MBS item 66716 in excess of 98% of their peers. The Director reviewed this practitioner’s rendering and initiating of MBS items 36, 5040, 66716, 91809 and 91810. The Director had persisting concerns that:

• MBS requirements, for example minimum time requirements and taking a detailed patient history (where relevant), were not always met
• the practitioner provided insufficient clinical input into managing patients’ conditions
• the practitioner’s initiation of MBS item 66716 was not always clinically indicated.  Many of the records did not indicate any relevant history, symptoms or risk of thyroid disease
• the practitioner’s recordkeeping was inadequate. The records often appeared brief, and reliant on shortcut text which was not sufficiently individualised for the patient’s presentation

The practitioner acknowledged having engaged in inappropriate practice in connection with rendering MBS Items 36, 5040, 91809 and 91810 and initiating MBS Item 66716. The practitioner agreed to repay $295,000, and will be reprimanded by the Director.

B. PSR Committee final determinations

PSRC 1370

On 16 December 2022 a final determination came into effect regarding an optometrist.  The optometrist was directed to:

• be reprimanded
• be counselled
• repay the amount of $80,000 to the Commonwealth, which represented approximately 95% of the benefit paid in respect of MBS items 10912, 10913, 10914 and 10940 services in the review period. These directions followed from a final report of a PSR Committee, which concluded that the practitioner had engaged in inappropriate practice in connection with services rendered as MBS items 10912, 10913, 10914 and 10940.

In relation to the MBS item 10912 services the Committee made findings on the basis of one or more of the following:

• MBS requirements were not met and there was no clinical indication for the service, in that there was not a significant change in visual function, and a comprehensive reassessment was not clinically required so as to justify the billing of MBS item 10912 
• The clinical record was inadequate  
• The optometrist’s clinical input into the service was inadequate  
• The optometrist did not perform a comprehensive assessment

In relation to the MBS item 10913 services the Committee made findings on the basis of one or more of the following:

• MBS requirements were not met in that the symptoms recorded were not sufficiently clinically significant so as to require a comprehensive reassessment under MBS item 10913 and/or the assessment was not the first in a course of attention and/or the optometrist did not perform a comprehensive assessment on the date of the service 
• The regulatory requirements for MBS item 10913 were not met in that this item can only be rendered for patients under 65 years of age within 36 months of an initial consultation at the same practice (and for which any of the items 10905, 10907, 10910, 10912, 10914 or 10915 was billed) and the patient’s circumstances did not fall within these requirements or, for patients over 65 years of age, within 12 months of an initial consultation at the same practice.  
• The clinical record was inadequate  
• The optometrist’s clinical input into the service was inadequate   
• An MBS service can only be billed after the service is complete  

In relation to the MBS item 10914 services the Committee made findings on the basis of one or more of the following:

• MBS requirements were not met in that the patient’s presenting condition was not a progressive disorder for which comprehensive reassessment was required, or the patient’s symptoms were not sufficiently significant clinically so as to require a comprehensive reassessment 
• The clinical record was inadequate  
• The optometrist’s clinical input into the service was inadequate
• The optometrist did not perform a comprehensive assessment   

In relation to the MBS item 10940 services the Committee made findings on the basis of one or more of the following:

• The optometrist did not perform any MBS item 10940 service on the date the service was billed.  The evidence did not support an attendance on the patient, and is consistent with the optometrist billing this service on behalf of another colleague only  
• The MBS requirements were not met  
• The service was not clinically indicated  
• The optometrist’s clinical input into the service was inadequate  
• The clinical record was inadequate  

C. No further action decisions

In December 2022, the Director made a decision to take no further action in connection with one review.

Request to review a general practitioner

The practitioner rendered a prescribed pattern of services (more than 80 professional attendances on more than 20 days in a twelve-month period). The Director reviewed a random sample of services rendered as MBS items 3 and 5000 and found that exceptional circumstances existed that affected the rendering of the services, specifically circumstances relating to the COVID-19 pandemic.

D. Federal Court

One decision concerning PSR was handed down in December 2022

Li v Determining Authority & the Commonwealth [2022] FCA 1448

This case concerned two directions made by the Determining Authority (DA) in its Final Determination, namely that:

• Dr Li repay $433,488.52, which reflected the total benefits paid for the MBS items for those services for which he was found to have engaged in inappropriate practice; and
• Dr Li be fully disqualified from rendering MBS item services for 18 months.

After the PSR Committee had referred its Final Report to the DA, the Director provided further information to the DA under section 106S. That information included a copy of a statement of concerns provided to AHPRA by the Director in the course of the Director’s review of Dr Li’s services.

Dr Li argued that the DA had made a legal error by taking into account that statements of concerns. It was argued that the Director had no power to give such information to the DA and that it was irrelevant to the DA’s function.

The Court rejected both of these submissions. The Court held that the DA being made aware of these referrals to AHPRA by both the Director and the Committee was consistent with the legislation’s protective objects. The Court noted that the ‘scheme facilitates the funnelling of information such that the Authority understands what precipitated the other professional disciplinary processes’. The Court also held that the DA had not taken the information into account in an impermissible way.

Another aspect of the Court case concerned an argument that the DA has misdirected itself in making its repayment determination by, it was argued, starting from the proposition that 100% of the benefit should be repaid unless Dr Li could persuade it otherwise.

The Court found that this was, in fact, not how the DA had approached the matter. The DA’s reasons showed that it understood that it had an ‘open discretion’, and the DA’s reasons explained why it considered that full repayment should occur. The Court emphasised that part of the DA’s reasoning that said:

"While Dr Li provided the services in a very basic sense, they did not meet the relevant requirements to justify relevant payment. The Determining Authority must have regard to compliance with relevant MBS requirements in discharging it obligation to protect the integrity of the Medicare scheme.’"

The Court went on to say that, even if the DA had started from the proposition that Dr Li should repay 100% of the benefits, it would not have been wrong for it to do so.

The Court dismissed the application and ordered that Dr Li pay the Commonwealth’s costs.

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

No matters were referred to the major non-compliance (fraud) division in December 2022.

F. Referrals to AHPRA (106XA/B)

One matter was referred to AHPRA in December 2022.