PSR Director's update for October 2023

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

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

An agreement with a general practitioner

During the review period, the practitioner rendered MBS items 44, 160, 703, 705, 2713, 5060, 30192, 30216, 31358, 31363 and 90051 in excess of 99% of their peers. The Director reviewed this practitioner’s rendering of MBS items 44, 160, 705, 2713, 5060, 30192, 31358, 31363 and 92127, and prescribing of PBS items 2622B, 3133X and 3162K, and had no persisting concerns in relation to the PBS items. The Director had persisting concerns in relation to the MBS items reviewed that MBS requirements were not always met. For example, minimum time requirements did not appear to be met, where relevant, and some procedural items appeared to involve the removal of lesions that were not malignant.

The practitioner acknowledged having engaged in inappropriate practice in connection with rendering MBS items 44, 160, 705, 2713, 5060, 30192, 31358, 31363 and 92127. The practitioner agreed to repay $50,000, to be disqualified from providing MBS item 705 and 160 services 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 36, 44, 160, 161, 707, 721, 723, 732, 900, 903, 5060, 90035, 90043 and 90051 in excess of 99% of their peers. The Director reviewed this practitioner’s rendering of MBS items 36, 44, 707, 721, 723, 732, 900, 90035 and 90043. The Director had persisting concerns that:

• MBS requirements were not met, including the minimum time requirements where relevant
• services rendered by the practitioner were not always clinically relevant. For example, some patient records reflected services provided for a cosmetic, and not a medically necessary, purpose and so unable to be billed to Medicare
• the practitioner did not provide sufficient clinical input for all services. For example, the practitioner did not appear to provide clinical input in addition to the input of the practice nurse
• the practitioner’s record keeping was inadequate and, in respect of chronic disease management review documents, not always contemporaneous to the attendance.

The practitioner acknowledged having engaged in inappropriate practice in connection with rendering MBS items 36, 44, 707, 721, 723, 732, 900, 90035 and 90043. The practitioner agreed to repay $495,000, to be disqualified from providing MBS item 707, 721, 723, 732, 92024, 92025 and 92028 services for 10 months, and will be reprimanded by the Director.

An agreement with a general practitioner

During the review period, the practitioner provided MBS items 23, 5020, 10660 and 66833 and PBS items 1215Y, 3162K and 2089Y in excess of 99% of their peers. The Director reviewed this practitioner’s rendering of MBS items 23 and 5020, initiation of MBS item 66833, and PBS items 1215Y, 2089Y, 2622B and 3162K, and had no persisting concerns in relation to MBS items 10660. The Director had persisting concerns that in relation to the remaining items that:

• MBS requirements were not always met for MBS item 23 and 5020 services including where the items were billed for straightforward matters requiring only simple management
• the practitioner initiated MBS item 66833 services and prescribed PBS items in circumstances where they were not always clinically indicated
• the practitioner’s clinical management was not always appropriate. For example, it was not always clear that they provided appropriate management when prescribing to patients with a history of drug dependency.

The practitioner acknowledged having engaged in inappropriate practice in connection with providing MBS items 23, 5020 and 66833, and prescribing PBS items 1215Y, 2089Y, 2622B and 3162K. The practitioner agreed to repay $109,000, and will be reprimanded by the Director.

An agreement with a medical practitioner

During the review period, the practitioner rendered MBS items 591, 594, 599 and 92210 in excess of 99% of their peers. The Director reviewed this practitioner’s rendering of MBS items 591 and 594, and had no concerns in relation to MBS item 594. The Director had persisting concerns in relation to MBS item 591 that the requirement for urgent assessment was not always met.

The practitioner acknowledged having engaged in inappropriate practice in connection with rendering MBS items 591. The practitioner agreed to repay $89,000 and will be counselled by the Director.

An agreement with a general practitioner

During the review period, the practitioner rendered MBS items 3, 91890 and 92068 in excess of 99% of their peers. The Director reviewed this practitioner’s rendering of MBS items 3, 2713, 91890 and 92068, and had no persisting concerns in relation to MBS items 3 and 91890. The Director had persisting concerns in relation to the remaining items that:

• MBS requirements were not always met. For example, it did not appear that the practitioner prepared comprehensive general practitioner management plans (GPMPs) when rendering MBS item 92068 services
• the practitioner co-billed MBS item 2713 with other MBS items without meeting the MBS requirements for each item
• the practitioner did not provide sufficient clinical input for MBS item 92068 services. For example, they prepared GPMPs with goals not specific to patients’ conditions
• the practitioner’s record keeping was inadequate, including where entries for services did not include sufficient clinical detail to explain the service provided.

The practitioner acknowledged having engaged in inappropriate practice in connection with rendering MBS items 2713 and 92068. The practitioner agreed to repay $19,000 and will be counselled by the Director.

An agreement with a medical practitioner

During the review period, the practitioner rendered MBS items 591, 599, 5023, 92210, 92211 and 92216 in excess of 99% of their peers. The Director reviewed this practitioner’s rendering of MBS items 591, 599, 5023, 92211 and 92216, and PBS item 8254K, and had no persisting concerns in relation to MBS item 5023 and PBS item 8254K.

The Director had persisting concerns that the MBS requirement for urgent assessment was not met for the remaining services.

The practitioner acknowledged having engaged in inappropriate practice in connection with rendering MBS items 591, 599, 92211 and 92216. The practitioner agreed to repay $131,000, and will be reprimanded by the Director.

An agreement with a general practitioner

During the review period, the practitioner rendered MBS items 721, 10660 and 91800 in excess of 99% of their peers. The Director reviewed this practitioner’s rendering of MBS items 721, 723, 732, 2713, 10660, 91800 and 93625. The Director had persisting concerns that:

• MBS requirements were not always met. For example, it did not appear that the practitioner prepared comprehensive GPMPs or meaningful reviews when providing chronic disease management (CDM) services
• the practitioner’s record keeping was inadequate. For example, entries for MBS item 2713 services did not always include adequate clinical detail of the management provided by the practitioner.

The practitioner acknowledged having engaged in inappropriate practice in connection with rendering MBS items 721, 723, 732, 2713, 10660, 91800 and 93625. The practitioner agreed to repay $220,000, to be disqualified from providing MBS item 721, 732, 92024, 92028 and 93625 services 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 23, 705, 721 and 723 in excess of 99% of their peers. The Director reviewed this practitioner’s rendering of MBS items 23, 36, 705, 721, 723, 732 and 66596. The Director had persisting concerns that:

• MBS requirement were not always met, including minimum time requirements where relevant
• the practitioner did not provide sufficient clinical input in some cases as they did not arrange investigations or referrals which were clinically indicated
• the practitioner’s record keeping was inadequate. For example, they relied on templates or shortcuts not particularised to patient’s issues when documenting professional attendance or CDM services.

The practitioner acknowledged having engaged in inappropriate practice in connection with rendering MBS Items 23, 36, 705, 721, 723 and 732. The practitioner agreed to repay $398,000, to be disqualified from providing MBS item 705, 721, 723, 732, 92024, 92025 and 92028 services for 12 months, and will be reprimanded by the Director.

B. No further action decisions

Request to review a urologist

During the review period, the practitioner rendered MBS items 105, 36654, 36842, 37203, 37207 and 55603 in excess of 99% of their peers. The Director reviewed a random sample of services rendered as MBS items 105, 36654, 36842, 37203, 37207, 55603 and 91833. After reviewing the practitioner’s records, the Director formed the view that no further action was required as there were insufficient grounds on which a Committee could reasonably find that the practitioner engaged in inappropriate practice during the review period.

Request to review a general practitioner

During the review period, the practitioner rendered MBS items 3 and 5000 in excess of 99% of their peers, and rendered a prescribed pattern of services. The Director reviewed a random sample of services rendered as MBS items 3 and 5000. After reviewing the practitioner’s records, the Director formed the view that no further action was required as there were insufficient grounds on which a Committee could reasonably find that the practitioner engaged in inappropriate practice during the review period.

Request to review a general physician

During the review period, the practitioner rendered MBS items 116 and 132 in excess of 99% of their peers. The Director reviewed a random sample of services rendered as MBS items 116 and 132. After reviewing the practitioner’s records, the Director formed the view that no further action was required as there were insufficient grounds on which a Committee could reasonably find that the practitioner engaged in inappropriate practice during the review period.

C. PSR Committee final determinations

No final determinations came into effect in October 2023.

D. Federal Court

Yoong v Director of Professional Services Review [2023] FCA 1186

Dr Yoong was given a Notice to Produce documents (NTP) as part of the Director’s review, requiring the complete patient records for 76 patients. He produced records for the review period only. This, in the view of the then Acting Director, did not constitute compliance with the NTP, and Dr Yoong was disqualified from Medicare until he produced the complete patient records.

Dr Yoong challenged:

• the NTP, which he said was beyond the scope of the Director’s power, and
• the decision to disqualify him, which Dr Yoong said was made by the then Acting Director at the direction or behest of the then Director, and not because the Acting Director was independently satisfied that it was appropriate.

Justice Perry found that the power to issue a NTP should not be narrowly construed. The power to issue an NTP needed to be exercised for the purpose for which the power exists and must identify information with sufficient certainty to enable the recipient of the notice to know what is required of them, and that there should be sufficient clarity on the face of the notice that the documents sought are reasonably related to the purpose for which the power exists.

Her Honour found that the NTP was invalid because it did not internally justify the relevance of the documents sought. Justice Perry did not say anything to cast doubt on the proposition that an NTP can require the production of all records if they are relevant.

Because the NTP was held to be invalid, the Court did not need to determine the second question as to whether the disqualification was valid, but Justice Perry indicated that she would find it was valid if the NTP had been valid (that is, if the NTP had indicated the documents’ relevance to the Director’s review). She rejected the proposition that the then Acting Director was acting under dictation as the contextual evidence, including the documentary evidence, demonstrated that all participants including the Acting Director understood that he was personally making the decision about disqualification.

The Director has appealed to the Full Court of the Federal Court the decision to set aside the NTP.

Raiz v Director of Professional Services Review (No 2) [2023] FCA 1293

The PSR Committee issued a Draft Report to Dr Raiz, which contained preliminary findings of inappropriate practice. Dr Raiz challenged that decision as well as the Director’s decision to refer him to a Committee. Among the 11 grounds that he pleaded, Dr Raiz alleged that the Director was affected by apprehended bias, the Committee was incorrectly constituted, there was a failure of procedural fairness both in the Director’s considering of the 89C submissions and during the Committee hearing, and the Committee was accused of various procedural and factual errors.

Dr Raiz was unsuccessful on all 11 of the grounds that he pleaded, and the Court dismissed his application with costs.

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

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

F. Referrals to AHPRA (106XA/B)

One matter was referred to AHPRA in October 2023.