PSR Director's update for April 2023

Published date

30 May 2023

A. Director’s Section 92 agreements effective in April 2023

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

An agreement with a general practitioner

During the review period, the practitioner rendered Medicare Benefits Schedule (MBS) items 585, 594, 599, 5023, 5028, 5040, 5043, 5049 and 92216 in excess of 99% of their peers. The Director reviewed this practitioner’s rendering of MBS items 23, 36, 585, 599, 721, 723, 732, 2713, 5020, 5023, 5028, 5040, 5043, 5049, 91809 and 92216 and had persisting concerns that:

MBS requirements, including minimum time requirement, were not always met
the practitioner’s record keeping was inadequate. For example, important clinical information was omitted
the practitioner did not always provide sufficient clinical input into the services, including considering alternative diagnoses where appropriate

The practitioner acknowledged having engaged in inappropriate practice in connection with rendering MBS Items 23, 36, 585, 599, 721, 723, 732, 2713, 5020, 5023, 5028, 5040, 5043, 5049, 91809 and 92216. The practitioner agreed to repay $896,000, to be disqualified from providing MBS item 721, 723, 732, 92024, 92025 and 92028 services for 12 months, to be disqualified from providing MBS item 5049 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, 36, 5020, 5040, 2521 and 2552 in excess of 99% of their peers. The Director reviewed this practitioner’s rendering of MBS items 23, 36, 44, 721, 723, 732, 2715, 2717, 5020, 30064, 30219, 47900, 47915, 91809, 91810, 92068, 92069 and 92072 and had no concerns in relation to MBS items 23, 5020, 30064, 30219, and 91809. The Director had persisting concerns in relation to the remaining items that

MBS requirements, including minimum time requirements, were not always met
the practitioner’s record keeping was inadequate. For example, the reviewed records were not sufficiently comprehensible to enable another practitioner to effectively undertake patient care

The practitioner acknowledged having engaged in inappropriate practice in connection with rendering MBS Items 36, 44, 721, 723, 732, 2715, 2717, 47900, 47915, 91810, 92068, 92069 and 92072. The practitioner agreed to repay $180,000, and to be disqualified from providing MBS item 721, 723, 732, 92024, 92025 and 92028 services for 12 months, to be disqualified from providing MBS item 2715, 2717, 92116 and 92117 services for 6 months, to be disqualified from providing MBS item 91891 services for 3 months, and will be counselled by the Director.

An agreement with a general practitioner

During the review period, the practitioner rendered MBS items 193, 31361, 31362, 91809 in excess of 99% of their peers, and prescribed Pharmaceutical Benefits Scheme (PBS) items 1215Y, 2089Y, 2622B, 2951H, 3162K, 8399C, 8886Q and 8007K in variance to their peers. The Director reviewed this practitioner’s rendering of MBS items 23, 193, 5020, 31361, 31362 and 91809, and PBS items 1215Y, 2089Y, 2622B and 8007K, and had no concerns in relation to MBS items 23, 193, 31361 and 31362, and PBS items 1215Y and 8007K. In relation to the remaining items, the Director had concerns that

MBS requirements were not always met. For Level B consultations, the records reflected a straightforward attendance which did not involve sufficient clinical complexity
the practitioner’s record keeping was inadequate, as the reviewed records did not always explain the service provided
when prescribing items under the PBS, the practitioner did not appear to discuss relevant risks regarding dosage and polypharmacy

The practitioner acknowledged having engaged in inappropriate practice in connection with rendering MBS Items 5020 and 91809, and prescribing PBS Items 2089Y and 2622B. The practitioner agreed to repay $108,000 and will be counselled by the Director.

An agreement with a general practitioner

During the review period, the practitioner rendered MBS items 23 and 2717 and initiated MBS items 66596, 66839 and 66840 in excess of 99% of their peers. The Director reviewed this practitioner’s rendering and initiating of MBS items 23, 721, 723, 732, 2717, 66596, 66716, 66839, 66840, 91809, 92068, 92069 and 92072, and PBS items 1215Y, 2622B and 3162K, and had no concerns in relation to MBS items 23, 721, 723, 732, 66840, 91809, 92068, 62069 and 92072. In relation to the remaining items, the Director had persisting concerns that

MBS requirements were not always met. For example, Mental Health Treatment Plans did not include the level of information required by the MBS item descriptor
PBS restrictions were not always met. For example, the practitioner’s records did not always reflect that non-opioid analgesics were considered for patients who were prescribed PBS item 2622B
not all services were clinically indicated. For example, pathology tests were ordered without evidence supporting the clinical indication for each test

The practitioner acknowledged having engaged in inappropriate practice in connection with providing MBS Items 2717, 66596, 66716 and 66839, and prescribing PBS Items 1215Y, 2622B and 3162K. The practitioner agreed to repay $21,000, to be disqualified from providing MBS item 2717 services for 10 months, and will be reprimanded by the Director.

An agreement with a general practitioner

During the review period, the practitioner rendered MBS items 721, 2713 and 2717 in excess of 97% of their peers. The Director reviewed this practitioner’s rendering of MBS items 23, 36, 193, 707, 721, 723, 732, 2713, 2717, 10997, 11610, 30071, 31366, 91809 and 92072, and had no concerns in relation to MBS items 193, 707, 10997, 30071 and 31366. In relation to the remaining items, the Director had persisting concerns that

MBS requirements were not always met. For example, minimum time requirements where relevant were not always met, and for MBS items 23, 36, 91809 and 2717 the records contained insufficient history and examination
the practitioner’s clinical input into both attendance and CDM services was insufficient
the practitioner’s record keeping was inadequate. The records were insufficient to explain therapeutic procedure services

The practitioner acknowledged having engaged in inappropriate practice in connection with rendering MBS Items 23, 36, 721, 723, 732, 2713, 2717, 11610, 91809 and 92072. The practitioner agreed to repay $345,000, to be disqualified from providing MBS item 721, 723, 732, 92024, 92025 and 92028 services for 12 months, and will be reprimanded by the Director.

An agreement with a general practitioner

During the review period, the practitioner prescribed PBS items 1215Y, 2089Y, 2622B, 2723H, 3133X, 3162K, 8388L, 8525Q and 8936H in variance to their peers. The Director reviewed this practitioner’s prescribing of PBS items 1215Y, 2622B, 3162K, 8388L and 8525Q. The Director had persisting concerns that

PBS restrictions for PBS items 1215Y and 2622B did not appear to have been met
the practitioner’s record keeping was inadequate. For example, the records would not enable another practitioner to effectively assume patient care

The practitioner acknowledged having engaged in inappropriate practice in connection with prescribing PBS Items 1215Y, 2622B, 3162K, 8388L and 8525Q. The practitioner will be reprimanded by the Director.

B. PSR Committee final determinations

No final determinations came into effect in April 2023

C. No further action decisions

In April 2023, the Director made a decision to take no further action in connection with two reviews.

In both cases, the practitioner had 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. The Director was satisfied that a Committee would find exceptional circumstances (relating to the COVID-19 pandemic) existed that affected the rendering of the services, and that a Committee would not otherwise find inappropriate practice.

D. Federal Court

Soryal v Director of Professional Services Review [2023] FCA 326

Dr Soryal, a dentist, challenged the decision of the Director to refer his provision of child dental services to a PSR Committee. Before that decision was made, Dr Soryal had told the Director that:

he permitted the use of his Provider Number by three companies during the review period but he did not own the companies;
he did not provide any of the services to any of the patients;
the companies engaged the Oral Health Therapists (OHTs) and received the fees;
he did not initiate the services;
the OHTs performed the services as independent practitioners operating within their own personal and practitioner scope of practice;
he did not receive any direct payment linked to the performance of the services, rather he was engaged as an external contractor on a per diem basis, receiving a total of $24,000;
he did not receive the payments from Medicare, nor was he involved in making clinical decisions or obtaining consent, patient histories or clinical information forms.

Dr Soryal submitted to the Court that the Director could not refer him to a Committee because he had not provided, rendered or initiated the services under review for the purposes of ‘inappropriate practice’ under s 82 of the HI Act.

The Director submitted to the Court that:

the statutory scheme should not be narrowly construed.
dental benefits were only payable if a dental service had been rendered by or on behalf of a dentist.
a dental service could only be rendered by an OHT on behalf of a dentist if it was provided under the supervision of that dentist.
‘provides services’ should be construed as encompassing the supervision of a service.
the Director was not required to find as a fact that he provided the services.

The Court said:

[73] … it was sufficient for the purposes of the [Director]’s review that there was a basis for an appearance that the applicant had provided, rendered or initiated the services given that they were actually billed under his allocated Medicare Provider Number. It would be difficult to imagine a system whereby a holder of a Medicare Provider Number was absolved of all responsibility. I also note the respondent’s submissions that matters concerning the legality and financial integrity of payments under the Medicare system have previously be held to fall within the definition of ‘inappropriate practice’.

Dr Soryal also submitted to the Court that it was procedurally unfair not to be given a copy of the consultant’s report. The Court rejected this submission, saying, in effect, that the Director had complied with the requirements of the legislation, and had given him an adequate opportunity to make submissions in relation to the Director’s concerns before deciding to refer the matter to a Committee.

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

No matters were referred to the major non-compliance (fraud) division in April 2023.

F. Referrals to AHPRA (106XA/B)

1 matter was referred to AHPRA in April 2023.