2. Report on performance
Performance
Medicare Australia sent 136 requests for review to PSR this year (see Table 1). This represents an increase of 172 per cent when compared to the workload received in 2007–08.
Even with the significant increase in workload, all legislated timeframes were met and the time taken to complete some processes was reduced. The revised organisational structure and improved efficiency and effectiveness of its processes have equipped PSR to manage the significant workload increase this year; however, it will be difficult to maintain this performance with current resourcing.
| 2002–03 | 2003–04 | 2004–05 | 2005–06 | 2006–07 | 2007–08 | 2008–09 |
|---|---|---|---|---|---|---|
| 52 | 38 | 9 | 7 | 27 | 50 | 136 |
| 2007–08 | 2008–09 | Legislated timeframe | |
|---|---|---|---|
| No further action | 137 days | 180 days | 13 months |
| Negotiated agreements | 128 days | 210 days | 13 months |
| Final Committee reports | 594 days | 717 days | – |
| Ratification of negotiated agreements | 17 days | 14 days | 1 month |
| Draft determinations | 112 days | 83 days | – |
| Final determinations | 97 days | 60 days | – |
Most of PSR’s business processes take more than a year to conclude, which means workload data cannot be reconciled within a 12-month period. The following discussion of performance relates to all activities undertaken during 2008–09, including work on cases already on hand at the beginning of the year and work on cases received during the course of the year.
The results of these activities include finalisation of 61 cases. Of these, 19 were the subject of a decision by the Director to take no further action, 33 were negotiated agreements that were ratified, and nine were cases investigated by PSR Committees that resulted in effective final determinations during the year.
| 2006–07 | 2007–08 | 2008–09 | |
|---|---|---|---|
| Requests received from Medicare Australia | 27 | 50 | 136 |
| Requests by Medicare Australia to review a practitioner for a second or subsequent time | 4 | 19 | 24 |
| No further action | 1 | 7 | 19 |
| Requests withdrawn or lapsed | 1 | 0 | 1 |
| Referrals from the Director to new Committees | 6 | 15 | 29 |
| Committees in progressa | 4 | 11 | 47 |
| Committee reports finalised | 13 | 7 | 28 |
| Reports finding inappropriate practice | 8 | 7 | 28 |
| Reports finding no inappropriate practice | 5 | 0 | 0 |
| Referrals to medical boards | 7 | 4 | 7 |
| Referrals to Medicare Participation Review Committees | 0 | 6 | 6 |
| Referrals to other bodies | 0 | 1 | 1 |
| Negotiated agreements signed | 7 | 27 | 42 |
| Negotiated agreements ratified | 6 | 27 | 33 |
| Draft determinations made | 9 | 5 | 20 |
| Final determinations made | 10 | 6 | 14 |
| Final determinations effective | 14 | 7 | 9 |
| Cases on hand, as at 30 Juneb | 18 | 19 | 77 |
Notes:
- a Established prior to 1 July and yet to report at 30 June
- b Director’s decision on no further action, negotiated agreement or referral to Committee yet to be made
- Workload data cannot be reconciled within a 12-month period
No further action
The Director decided to take no further action in 19 cases involving 15 general practitioners, one cardiologist, one psychiatrist, one consultant physician and one neurologist. These practitioners were from New South Wales, Victoria, Queensland, South Australia and Tasmania. It took an average of 180 days to reach this decision (137 days in 2007–08) against a legislated timeframe of 13 months. Further discussion of these cases is on page 18.
Negotiated agreements
During the year the Director reached a negotiated agreement with the practitioner in 42 cases. The Determining Authority ratified 33 negotiated agreements. Of these, two were not ratified on first presentation. The agreements were renegotiated to address the Determining Authority’s concerns and were then ratified.
The practitioners concerned in the ratified agreements were 28 general practitioners, two optometrists, one ophthalmologist, one consultant physician and one medical practitioner. They were from New South Wales (18), Victoria (six), Queensland (five), South Australia (one), and Western Australia (three). Further discussion of these cases, including more detailed descriptions of some, is on pages 18–24.
Actions forming part of these agreements were that:
- 26 practitioners be reprimanded
- 18 practitioners be partially disqualified from Medicare for between two months and two years
- two practitioners be fully disqualified from Medicare: one for four weeks and one for six weeks
- 30 practitioners to make repayments of Medicare benefits from $4,000 to $178,994; totalling $1,202,872.40.
For these agreements it took an average of 210 days (128 in 2007–08) from the time the request to review was received from Medicare Australia to referral of the agreement to the Determining Authority for ratification, against a legislated timeframe of 13 months. Although the time taken to complete these negotiated agreements has almost doubled when compared to 2007–08, it was still well within the legislated timeframe. PSR is investigating opportunities to further streamline its administrative processes to manage timelines for negotiated agreements.
Committees
Twenty-eight Committees concluded their investigations and all made findings of inappropriate practice. The Committee findings related to 21 general practitioners, four medical practitioners, one psychiatrist, one consultant physician and one ear, nose and throat specialist. The practitioners were from New South Wales (16), Victoria (four), Queensland (three), South Australia (two), Western Australia (one), Tasmania (one) and the Australian Capital Territory (one).
The average time taken for Committees to report their findings in cases not delayed by court action was 717 days (594 days for cases finalised in 2007–08). Eleven cases were on hold at some stage during the year due to court action.
Fourteen Committee reports were finalised and sent to the Determining Authority.
The Director referred a further 29 new cases to Committees during the year.
Determining Authority 2
The Determining Authority made 20 draft determinations and 14 final determinations from findings in Committee reports. It took an average of 83 days (112 in 2007–08) to make the draft determinations and an average of 60 days (97 days in 2007–08) to issue the final determinations. Court action caused delay in issuing the final determination in nine cases.
Nine final determinations came into effect during 2008–09. The sanctions imposed by these effective final determinations were:
- reprimand and counselling in all cases
- three practitioners were fully disqualified from Medicare for between six weeks and six months
- three practitioners were partially disqualified from Medicare for between six and 12 months
- eight practitioners were required to repay Medicare benefits from $1,098 to $155,818; totalling $405,082.78.
It took the Determining Authority an average of 14 days (17 in 2007–08) against a legislated timeframe of one month to ratify 33 negotiated agreements.
Re-referrals
In 2008–09 Medicare Australia again sent an increased number of requests to review practitioners who had previously been referred to PSR. The 24 cases concerned included 22 general practitioners and two other medical practitioners, who had collectively been referred to PSR 27 times. These cases had previously resulted in 10 decisions to take no further action, seven negotiated agreements and 10 Committee
findings of inappropriate practice. Previous sanctions included reprimand by the Director, counselling, repayment of Medicare benefits of between $983 and $168,054, and full or partial disqualification from Medicare from six weeks to 12 months.
The 24 cases received in 2008–09 resulted in three decisions to take no further action, five negotiated agreements and five referrals to Committees. At 30 June 2009, 11 cases were still under review.
Referrals to medical boards and other bodies
The Health Insurance Act 1973 requires the Director to refer practitioners to appropriate bodies when a significant threat to the life or health of a patient is identified or where a person under review has failed to comply with professional standards.
The Director referred seven practitioners to the relevant state medical registration board because the Director, the Committee concerned or the Determining Authority formed the opinion that the practitioners had caused, were causing or were likely to cause a significant threat to the life or health of patients. One of these practitioners was also referred to the relevant State health department.
No practitioners were referred because of failure to comply with professional standards.
Six cases were notified to the Chairperson of the Medicare Participation Review Committees because a second or subsequent final determination was made.
External review of actions
In 2008–09 no matters were referred to the Administrative Appeals Tribunal.
Practitioners involved in the PSR process can seek judicial review in the Federal Court. In 2008–09 one decision on PSR matters was made in the Federal Court and the constitutional challenge was resolved by the High Court.
The constitutional challenge in the High Court was significant, as the appellants – Drs Selim and Wong – sought to have Medicare and the PSR Scheme found invalid because they amounted to civil conscription, and were therefore unconstitutional. The High Court, by a majority of six to one, dismissed both appeals on 2 February 2009. The Federal Court consequently dismissed a further 13 cases and awarded costs to PSR.
The matter in the Federal Court, Saint v Holmes [2008] FCA 987 (4 July 2008), was also decided in PSR’s favour.1
One new application to court was made during 2008–09.
The outcomes of cases before the courts this year are described on pages 32–41.
| Court actions | No. |
|---|---|
| Cases currently before the courts | |
| Federal Court | 1 |
| Full Federal Court | 0 |
| High Court | 0 |
| Court decisions | |
| Federal Court | 1 |
| Full Federal Court | 0 |
| High Court | 2 |
- 1 PSR Annual Report 2007–08, pp. 51–54