Professional Services Review Annual Report 2004–05

• Contents
• Letter of Transmittal
• Director’s report
• 2004–05 Key events at a glance
• 1. Agency overview
• 2. Report on performance
  • Outcome and output structure
  • Performance assessment
  • Final determinations
  • Determining Officer
  • Professional Services Review Tribunal
  • Reasons for requests and referrals
  • Professional Services Review Tribunal cases
  • Federal Court and Full Federal Court cases
• 3. Management and accountability
• Appendixes
• Glossary

2. Report on performance

Performance assessment

Table 1—2004–05 Achievements at a glance

*   Four applications to the Federal Court by practitioners were settled with the applications being dismissed by consent.
In addition, there were two other preliminary decisions in one case where, firstly, the group of practitioners failed in an attempt to obtain an order for discovery and, secondly, it was ordered that an appeal on non-constitutional grounds proceed rather than be delayed as sought by the practitioner.

Court challenges

This year, the dominating cases have been those involving challenges against the prescribed pattern of services—the so called ‘80/20’ cases. It was always expected practitioners would challenge findings where committees decided there were no exceptional circumstances to warrant the practitioner exceeding 80 or more attendances on 20 or more days in the specified period. This has been the case this year with the Federal Court handing down six decisions in 80/20 cases. Two judges handed down four separate decisions in favour of practitioners (Oreb, Hatcher and two in Lee¹) indicating that the various committees had applied the wrong test when making findings about what constituted exceptional circumstances.

It is interesting to note that in the next decision handed down (Tisdall), Gray J totally disagreed with the reasoning of his fellow judges in the earlier decisions, indicating that, in his opinion, their reasoning was fundamentally wrong in relation to their approach to the issue of exceptional circumstances. All these cases are now subject of appeal in the Full Federal Court. A number have had hearings and decisions reserved. Most should have been decided for next year’s report.

At 30 June 2005, 27 cases were outstanding in the Federal and Full Federal Court.²

Table 2—Court actions

*   Four applications to the Federal Court by practitioners were settled with the applications being dismissed by consent.
In addition, there were two other preliminary decisions in one case where, firstly, the group of practitioners failed in an attempt to obtain an order for discovery and, secondly, it was ordered that an appeal on non-constitutional grounds proceed rather than be delayed as sought by the practitioner.

Re-referrals

The Commission sent no second (or subsequent) requests for review in this reporting period—
last year it sent four.

Requests for review from the Health Insurance Commission

The Commission sent nine requests for review to PSR this year. The Director dismissed 15 requests after conducting a review as he considered there would be insufficient grounds on which a committee could reasonably find the practitioner had engaged in inappropriate practice. The Director negotiated 11 agreements with practitioners where he was not satisfied a committee would not find the practitioner had engaged in inappropriate practice.

Another 11 cases were sent to committees for further investigation and there were eight cases under review at the end of the year (see Table 3).

The Director referred one practitioner to the relevant state medical registration board because he formed the opinion the practitioner had caused, is causing or was likely to cause a significant threat to the life or health of patients. The Director believed there was a possibility the practitioner was treating non-malignant lesions with superficial radiotherapy not supported by histopathological studies before undertaking the procedures. He was also treating, by superficial radiology and cryotherapy, what appeared to the referring doctor, to be multiple solar keratosis conditions.

Soon after the Director initiated his review, the practitioner moved overseas and has not been able to be contacted since. The practitioner is no longer registered to practice in Australia.

For those referrals the Director dismissed, it took an average of 253 days to carry out the review (211 days in 2003–04) and an average of 313 days (247 days in 2003–04) to review a request that ended with a negotiated agreement, both against a legislative time frame of 13 months for completion.

Table 3—Requests from the Commission

Referrals to committees

The Director made 11 referrals to committees during the year (see Table 4). Twenty-three committees reported findings of inappropriate practice to the Determining Authority. One committee reported to the Determining Officer that it was unable to complete its investigation. The practitioner concerned had been disqualified from Medicare since July 1998 for failing to produce medical records to the
committee. He has not been registered with the local medical board for some years.

Following an investigation, one committee
found that the practitioner had not
practiced inappropriately.

Eighteen referrals remained in various stages of the process at the time of reporting.

With the exception of the prescribed pattern of services cases before committees during the year, most committees have used a sampling method to help quantify levels of inappropriate practice and allow for extrapolation of repayment should the Determining Authority choose this as a sanction.

One committee referred a practitioner to the relevant state medical registration board because it formed the opinion the practitioner had caused,
is causing or was likely to cause a significant threat
to the life or health of patients. The committee
believed the practitioner demonstrated a gross lack of clinical knowledge, lack of competence and use of unacceptable treatments.
The committee was of the opinion the practitioner incorrectly diagnosed respiratory tract infection as vasomotor rhinitis for which he routinely used

parenteral corticosteroids as a first-line treatment instead of considering more conventional and less risky treatments. He also claimed to deliver the steroids via intra-articular injection to the hip joint. The committee believed the injection could not have been more than parenteral.

The average time taken for the 23 committees to report to the Determining Authority was 920 days (532 days in 2003–04).

Table 4—Referrals to committees

Determining Authority

Twenty-seven cases were sent to the Determining Authority this year. The four negotiated agreements received were ratified, as were seven other agreements outstanding at the end of last year. Twenty-six final determinations were issued from findings in committee reports. The Determining Authority had 27 cases under consideration at the end of June 2005, with a significant number of these in the Federal Court (see Table 5).

Table 5—Determining Authority cases

The Determining Authority took an average of 144 days (76 days in 2003–04) to issue a draft determination and another 186 days (134 days in 2003–04) to issue the final determination. This is against a legislated timeframe of one month for a draft determination and 28 days for a final determination (including the 14 days for the practitioner to make submissions). All time limits on the Determining Authority have an exemption clause.

Agreements

The 11 negotiated agreements were ratified in an average of 13 days (18 days in 2003–04) against a legislated timeframe of one month. A failure by the Determining Authority to ratify an agreement within the one-month limit means the agreement is taken to have been ratified.

Sanctions agreed as part of the negotiations were that:

• all 11 practitioners were reprimanded
• four practitioners were partially disqualified from Medicare for a total of four years and 11 months (from 5 months to three years)
• eight practitioners agreed to make repayments totaling $197 500 (from $7500 to $70 000 and averaging $17 954.55 per agreement).

A brief description of the 11 negotiated agreements that came into effect is given below.

Dr A, General Practitioner, Sydney NSW

The Commission was concerned this practitioner was providing a high volume of total services (15 986 services to 4987 patients), high daily servicing (168 days of 60 or more services) and rendering of MBS items 30038, 30041, 30045 and 30048, wound repair items) and that his conduct in connection with the provision of those services, may constitute inappropriate practice.

During review, the Director found Dr A’s medical records were generally hard to read and contained limited details of the clinical input provided. In particular, the clinical notes lacked an adequate history and frequently did not contain a provisional diagnosis or management plan. In some instances, Dr A might have prescribed antibiotics where they were not clinically indicated. For example, Dr A recorded a diagnosis of ‘bronchitis/pharyngitis’ and prescribed antibiotics but did not record any indication of a bacterial infection.

From the medical records, the Director formed the opinion that Dr A was not itemising the wound repair services correctly. (For example, two-year-old with ‘laceration chin—7.5 cm deep’; and 12-year-old with ‘5 cm wound on little finger’.) Dr A acknowledged his conduct had constituted inappropriate practice and negotiated an agreement involving a reprimand.

Dr B, General Practitioner, Melbourne Vic

The Commission was concerned that Dr B was the 3rd and 20th highest renderer of items 14100 and 14106 respectively; both laser photocoagulation items, in Australia. In addition, Dr B rendered a higher proportion of level C and D services than the average for all active general practitioners in Australia. Dr B works as a medical assistant to a dermatologist.

Following a review, the Director was concerned that Dr B’s item 44 services (level C) were for imaging and photographic documentation of patients’ naevi or for procedures such as hair removal or cosmetic procedures (Botox or other filler substance injections) at the same time. The Director was also concerned that the item 14100/14106 services did
not appear to be for patients with haemangiomas as required by the item description. It was likely many services were provided as part of an overall cosmetic rather than therapeutic treatment.

Dr B acknowledged after discussion and submissions, that the conduct had constituted inappropriate practice by failing to maintain adequate and contemporaneous medical records to substantiate the services claimed. Dr B agreed to repay $7500 in Medicare benefits and to be reprimanded.

Dr C, General Practitioner, Sydney NSW

The Commission requested the Director to review the rendered services and daily servicing ($467 086 Medicare benefits for 5.58 services per patient with 31 occasions of 60 or more services per day), the high number of level C surgery consultations (3091) and home visits (697), the initiation of pathology (6.13 services for 39 per cent of total patients) and services to two or more patients on the same Medicare card on the same day (528 occasions).

After reviewing the records provided by Dr C, the Director was of the opinion that Dr C may have practiced inappropriately in that he kept records deficient in content and quality. Many services had no notes, lacked sufficient clinical input or appeared to have recorded only that a prescription had been issued. The records did not justify the services claimed.

Dr C acknowledged his conduct constituted inappropriate practice and expressed intent to significantly change his practice. Dr C agreed to be reprimanded, repay Medicare benefits of $50 000 and be disqualified from Group A1 (vocationally registered general practice) items for five months.

Dr D, Consultant Physician in Gastroenterology

The reasons the Commission gave for making this request were the overall number of rendered services and daily servicing by Dr D (13 602 services at a Medicare benefit of $1 507 595 and 60 or more services a day on 33 occasions) and the level of consultations in association with procedural items on the same day.

After conducting his review, that included obtaining advice from a senior consultant physician in gastroenterology, the Director formed the view that Dr D did not receive a proper referral to a consultant physician to justify a claim for an MBS item 110 (initial consultation) nor did Dr D document that he had rendered a service that justified an item 110 consultation. The Director was of the view that the request Dr D received was for a procedural item rather than a referral to a consultant physician for management of a patient’s problem. Dr D’s medical records focused on a history of the gastrointestinal problem but there was no evidence of any history

taken of other problems or of the general health of the patient. It was apparent from the request documentation that some patients had significant medical problems. Also, there was no evidence that a physical examination was made prior to the procedure. On advice provided by Dr D, he allows five minutes for the consultation and 10 minutes for the procedure.

Following much discussion, Dr D agreed that his conduct constituted inappropriate practice, that the ‘request’ to perform a procedural item was not a valid referral (as required by the legislation), agreed to be reprimanded and to repay $70 000 in Medicare benefits.

Dr E, General Practitioner, Sydney NSW

The Commission was concerned that Dr E was in the top percentile of all active general practitioners for the number of services he was providing (14 958
for a Medicare benefit of $378 332) and his itemisation of a number of minor procedural items (84 12-lead electrocardiography, 19 removal of foreign body from cornea, 11 treatments of fracture of metacarpal and 20 edge resection of
in-growing toenail—total of $6253). Dr E provided 60 or more services on 62 days in the request period.

Following review of a number of medical records provided by Dr E, the Director formed the view Dr E’s conduct may have constituted inappropriate practice because the records revealed little clinical information. Many of the records were lacking in adequate histories, physical examination and findings sufficient to justify the items claimed. Evidence of investigations and medications prescribed was scarce. Of the 18 records examined relating to toenail wedge resections, almost all were viewed as inadequate as no details of the procedure or anaesthetic were recorded.

In addition, Dr E appeared to have provided these services on very busy days and the Director was concerned, under the circumstances, about his capacity to perform unhurried elective surgery.

In discussion with the Director, Dr E admitted he had failed to maintain adequate medical records to support the high volume of consultations and other procedural items claimed and that rendering such a high volume of services regularly was conduct that constituted inappropriate practice. Dr E agreed to be reprimanded, repay Medicare benefits of $15 000 and be disqualified from Group A1 services (vocationally registered general practitioner) items for 12 months.

Dr F, General Practitioner, country NSW

The Commission requested the Director review Dr F’s prescribing and the high number of services per patient he provided. Dr F wrote 1886 prescriptions to 10 patients. The Director reviewed a number of medical records provided by Dr F.
These records lacked sufficient clinical input and legibility in that many had no entry on or for dates on which a service was claimed. Many records showed issue of a prescription only, a pattern of prescribing narcotic medication early in treatment, and that Dr F failed to adequately monitor the health effects of drugs with a high risk of dependency.

In submissions and discussions with the Director, Dr F put forward arguments about the number of patients that required pain management in the area. He had taken a number of steps to alter the situation including discussions with the local area health service.

Dr F acknowledged that his conduct during the review period, in connection with the provision of the services, constituted inappropriate practice. Dr F agreed to be reprimanded.

Dr G, General Practitioner, country NSW

The reasons the Commission gave for making this request for a review to the Director, were that Dr G was rendering a high number of total services and daily services (16 507 total services for a Medicare benefit of $427 633 and providing 60 or more services per day on 102 days in the review period), rendering 25 wedge resections of in-growing toenail, prescribing 30 611 items at a cost of $813 485 (1151 scripts for paracetamol amongst others) and providing services to two or more people on the same Medicare card on the same day on 376 occasions.

The Director ordered Dr G to produce 75 medical records for examination as part of the review. After examining the records, the Director was concerned that consultation items were often illegible or difficult to read and contained brief notes and a very brief history dealing with the immediate symptom with no evidence of assessment of long-term management of chronic conditions. The records for the wedge resections often just showed ‘wedge resection of nail’ as the initial treatment of an in-growing toenail. There was no evidence of a simpler procedure being performed and no details of the anaesthetic given.

Dr G admitted that his conduct in connection with the provision of certain services constituted engaging in inappropriate practice. He admitted to a failure to maintain adequate and contemporaneous medical records to support the claims for Medicare benefits. Further, Dr G submitted that he had reduced the opening hours of his surgery, was working about 11 hours less per week and had instigated a process to ensure he kept better medical records. Dr G made an agreement to be reprimanded and repay $15 000 in Medicare benefits.

Dr H, General Practitioner, Melbourne Vic

The Commission’s concerns about Dr H were about his itemisation of out-of-surgery consultation services, care plan items, joint or synovial cavity injections and prescribing of benzodiazepines. The Director ordered Dr H to produce about 100 records so a review of his practice could be carried out.

The result of the review was that the Director was concerned the majority of the medical records of consultations at residential aged care facilities contained no clinical notes for the date of service. In addition, the claim for care plan items were not able to be justified on the records kept. Documentation was poor, lacking sufficient clinical input and giving no clear indication of other team members. The records generally were not adequate and contemporaneous.

Dr H acknowledged his conduct in connection with the provision of certain services constituted inappropriate practice in that he failed to keep adequate and contemporaneous medical records supporting the claims for Medicare benefits. Dr H was reprimanded.

Dr K, General Practitioner, Melbourne Vic

The Commission was concerned at the high volume of services Dr K rendered, (14 802) including providing 60 or more services on 73 days in the review period. Dr K was required to produce 39 medical records for the Director’s review.

The Director’s examination of the records showed them to be brief and barely legible. Recording of clinical input was deficient in detail especially of the long-term patients with chronic illness. The clinical notes lacked important details such as patient history and management of diagnosed conditions. For example, in records that showed a diagnosis of diabetes, there was no evidence of regular monitoring of blood glucose levels or physical examinations.

Dr K agreed he had failed to maintain adequate and contemporaneous medical records to support the Medicare benefits claimed. Dr K agreed to be reprimanded, repay $10 000 in Medicare benefits and to be disqualified from Group A1 (vocationally registered general practitioner) items for six months.

Dr L, General Practitioner, Melbourne Vic

The Commission requested the Director to review Dr L’s ratio of level B, C and D surgery consultations, and initiation of certain pathology services. Only 2.6 per cent of consultations by Dr L were level B, 56.6 per cent were level C and 39 per cent were level D. The percentages for all active general practitioners in Australia was level B—81.4 per cent, level C—10.7 per cent and level D—1 per cent. Dr L was the third ranked requester in Australia of pathology tests for the quantitation of copper, manganese, selenium or zinc and for tests involving the quantitation of serum zinc in a patient receiving intravenous alimentation.

Dr L was required to produce about 75 medical records to the Director. The records indicated that, while new patients had a detailed history of the particular presenting problem and nutritional history, there was a lack of detail of the patient’s physical condition, past or present. There was no evidence that a general systemic history was taken and this raised concerns that patients with complicated medical histories appeared to have received little attention for more mundane problems. It also appeared Dr L routinely requested a wide variety of uncommon tests on the initial consultation without performing any physical examination. There appeared to be no correlation between the clinical notes and the tests ordered
and it was difficult to avoid the impression that tests were used as a routine health screen. Such tests were often repeated even when the results were persistently normal.

Dr L acknowledged her conduct in connection with the services constituted engaging in inappropriate practice in that she had failed to maintain medical records that adequately documented the patient’s history, examination findings, management and progress and the rationale for the pathology tests ordered. Further, certain of the pathology tests ordered would be regarded as inappropriate in the clinical situation of individual patients as demonstrated in the records. Dr L agreed to be reprimanded and repay $15 000 in Medicare benefits.

Dr M, Specialist Radiation Oncologist/ Medical Practitioner, capital city

Dr M was employed as a radiation oncologist at a large public hospital during the week and on some weekends provided services as a medical practitioner at a suburban medical practice. It was services from this latter practice that the Commissions requested the Director to review. The Commission was concerned about the comparative number of long consultations (MBS item 54) Dr M rendered and his high prescribing, including of addictive medicines.

A review of some 60 medical records for standard (item 53) and long (item 54) consultations showed entries to have few symptoms recorded, scanty findings and little evidence of management planning. In addition, many of the records on the long consultations did not contain entries for the date of service, many patients appeared to have straight-forward conditions such as ‘flu’ and upper respiratory tract infections, or had presented for repeat prescriptions or blood pressure checks. These records were extremely brief.

Dr M only produced five of the 11 medical records ordered in relation to his prescribing. These again contained scanty notes with the diagnoses not obvious. There was a lack of management planning with little evidence of counselling or active psychotherapy for patients receiving long-term benzodiazepines or narcotics. One patient had 240 prescriptions; 237 of which were for benzodiazepines. Another had 174 prescriptions for morphine compounds out of 367 prescriptions. Both patients’ records had no supporting notes and related to a 12-month period. Dr M was his own third top patient for prescribing.

In submissions, Dr M advised he suffers from a range of medical conditions that limit his mobility and extend the time it takes to properly review patients. He further claimed his conditions make it difficult for him to access clinics and has therefore tended to treat himself. He claimed he conducted a proper workup on all patients.

The Director met with Dr M (as he does with all practitioners when negotiating an agreement) and at the conclusion of the meeting Dr M conceded his conduct in the provision of the consultations and prescribing at the suburban medical practice constituted inappropriate practice in that he did not keep medical records to support the services claimed or the prescriptions written. Dr M agreed to be reprimanded and disqualified from all consultation services as a (general) medical practitioner for three years.

¹ A full report is given on all these cases later in this chapter.
² These are listed at the end of this chapter under Federal Court and Full Federal Court.