PSR Director's Update for December 2018

22 January 2019

 

Due to the nature of negotiated agreements and secrecy limitations imposed by the legislative scheme, no practitioners who have entered into s 92 agreements with the Director are named. The Director has the power to disclose the names and addresses of practitioners who are found by a Committee to have engaged in inappropriate practice and who are subject to a final determination.
Read the Director’s policy on the naming of practitioners in PSR's Policy on the Publication of Case Outcomes
For media enquiries, please contact PSR at 02 6120 9100 or feedback@psr.gov.au.
 

In December 2018, seven s 92 agreements entered into between the Director and persons under review came into effect. Two final determinations became effective on 30 November 2018 but are reported in this monthly update. 

A. Director’s Section 92 agreements effective in December 2018

The following agreements entered into by the Director and persons under review (in accordance with s 92 of the Act) were ratified:

  • An agreement with a general practitioner. The Director reviewed this practitioner’s rendering of Medicare Benefits Schedule (MBS) items 36, 44, 707, 715, 721, 723, 732, 735, 2713, 2717, 5020, 5040, 5060, 10987 and 10997 and prescribing of Pharmaceutical Benefits Scheme (PBS) item 1215Y. The practitioner acknowledged they engaged in inappropriate practice in connection with providing these items, except for PBS item 1215Y in relation to which the Director had no persisting concerns. The practitioner agreed to repay $400,000, to be disqualified from providing MBS items 36, 44, 707, 715, 735, 2717, 5040, 5060 and 10997 for 12 months and will be reprimanded by the Director.
     
  • An agreement with a general practitioner. The Director reviewed this practitioner’s rendering of MBS items 36, 44, 721, 732, 2701 and 2713 and prescribing of PBS item 8525Q. The practitioner acknowledged they engaged in inappropriate practice in connection with providing these items. The practitioner agreed to repay $210,000, to be disqualified from providing MBS items 44, 721, 732, 2701 and 2713 for six months and will be reprimanded by the Director.
     
  • An agreement with a medical practitioner. The Director reviewed this practitioner’s rendering of MBS items 598 and 600 services. The practitioner acknowledged they engaged in inappropriate practice in connection with providing these items. The practitioner agreed to repay $460,000, to be disqualified from providing MBS items 591, 594 and 600 services for six months and will be reprimanded by the Director.
     
  • An agreement with a general practitioner. The Director reviewed this practitioner’s rendering of MBS items 23 and prescribing of PBS items 1215Y, 2089Y, 2622B, 3133X, 3162K and 8254K. The practitioner acknowledged they engaged in inappropriate practice in connection with providing these items, except PBS 8254K in relation to which the Director had no persisting concerns. The practitioner agreed to repay $50,000 and will be reprimanded by the Director.
     
  • An agreement with a medical practitioner. The Director reviewed this practitioner’s rendering of MBS item 597 and 599 services. The practitioner acknowledged they engaged in inappropriate practice in connection with providing these items. The practitioner agreed to repay $350,000 and will be reprimanded by the Director.
     
  • An agreement with a medical practitioner. The Director reviewed this practitioner’s rendering of MBS items 597 and 599. The practitioner acknowledged they engaged in inappropriate practice in connection with providing these items. The practitioner agreed to repay $380,000, to be disqualified from providing MBS items 585, 588, 591 and 594 for 12 months and will be reprimanded by the Director.
     
  • An agreement with a general practitioner. The Director reviewed this practitioner’s provision of MBS item 199 services. The practitioner acknowledged they engaged in inappropriate practice in connection with providing these items. The practitioner agreed to repay $205,000, to be disqualified from providing MBS item 199 for 24 months and will be reprimanded by the Director.

B. PSR Committees’ final determinations effective

Two final determinations became effective on 30 November 2018 but are reported in the December update.

PSR Committee No. 1028:

This general practitioner was directed to be reprimanded and counselled by the Director, to repay $357,479.37 to the Commonwealth and to be disqualified from providing MBS item 705 and 2713 services for a period of 18 months starting from when the determination took effect. These directions followed from a final report of a PSR Committee that concluded the practitioner engaged in inappropriate practice for services that he rendered as MBS items 23, 36, 703, 705, 721, 723, 2713, 66833, 66838 during the review period.

The Committee’s findings relating to MBS items 23, 36 and 2713 services:

During the review period these MBS item numbers related to:

  • MBS item 23: a professional attendance by a general practitioner…lasting less than 20 minutes
  • MBS item 36: professional attendance by a general practitioner…lasting at least 20 minutes
  • MBS item 2713: involved the creation of a GP Mental Health Treatment Plan by a medical practitioner

The general practitioner often rendered MBS item 23 or 36 in association with MBS item 2713 during the review period.

The Committee found that:

  • The general practitioner did not keep adequate and contemporaneous records of the consultations; in particular, the Committee noted that it was often impossible to ascertain whether the content of the consultation, including the non-psychological content, would have justified a 20 minute consultation, and/or
  • The general practitioner’s clinical input into the services was inadequate in terms of a cursory approach to prescribing on some occasions and the unusual frequency of anxiety diagnoses.

The Committee’s findings relating to MBS item 703 and 705 services:

During the review period these MBS item numbers related to:

  • MBS item 703: a standard health assessment
  • MBS item 705: a prolonged health assessment

The Committee found that:

  • There was insufficient clinical input recorded in the health assessments to justify the time requirements for the MBS item numbers,
  • The practitioner under review was not the regular practitioner providing ongoing care for the patient, and therefore should not have rendered the MBS item number, and/or
  • The general practitioner did not provide adequate and contemporaneous records of the services.

The Committee’s findings relating to MBS item 721 and 723 services:

During the review period these MBS item numbers related to:

  • MBS item 721: the preparation of a GP Management Plan
  • MBS item 723: the development of Team Care Arrangements for a patient

The Committee found that:

  • The general practitioner’s GP Management Plans were not comprehensive plans for the management of the patient’s chronic conditions, often excluding significant diagnoses,
  • The general practitioner’s GP Management Plans identified symptoms of acute concern rather than chronic diseases,
  • The general practitioner’s clinical input into some services was inadequate,
  • The general practitioner did not appropriately collaborate with other health care providers as part of the Team Care Arrangements, and/or
  • The general practitioner did not make adequate and contemporaneous records of the services, including in relation to the patient’s consent.

The Committee’s findings relating to MBS items 66833 and 66838 services:

During the review period these MBS item numbers related to:

  • MBS item 66833: the initiation of a test to check Vitamin D levels
  • MBS item 66838: the initiation of a test to check B12

The Committee found that:

  • There was a lack of clinical indication for ordering Vitamin D and B12 pathology, and/or
  • The general practitioner did not make adequate and contemporaneous records of the services.

PSR Committee No. 1085:

This general practitioner was directed to be reprimanded by the Director, to repay $649,664.87 to the Commonwealth and to be disqualified from providing MBS item 23 and 5020 services for a period of 36 months starting from when the determination took effect. These directions followed from a final report of a PSR Committee that concluded the practitioner engaged in inappropriate practice for services that he rendered as MBS items 23 and 5020 during the review period.

The Committee’s findings relating to MBS item 23 services:

During the review period this MBS item number related to a professional attendance by a general practitioner…lasting less than 20 minutes.

The Committee found that:

  • The general practitioner did not keep adequate and contemporaneous clinical records; many of the general practitioner’s records were so deficient that it was difficult for the Committee to discern what had transpired in consultations and whether the relevant regulatory requirements had been met,
  • The MBS requirements in relation to the service were not met, and/or
  • The general practitioner did not provide adequate clinical input into the service, particularly in relation to prescribing.

The Committee’s findings relating to MBS item 5020 services:

During the review period this MBS item number related to a professional attendance on:

  • a public holiday
  • on a Sunday
  • before 8am or after 1pm on a Saturday
  • before 8am or after 8pm on any other day

The Committee found that:

  • The general practitioner did not keep adequate and contemporaneous clinical records, and in a number of cases the absence of a more informative progress note meant that the Committee was unable to determine whether there was sufficient clinical content to justify the billing of a Level B service,
  • The MBS requirements in relation to the service were not met, and/or
  • The general practitioner did not provide adequate clinical input into the service.

C. Federal Court

One matter was determined by the Federal Court in December 2018.

Nithianantha v Commonwealth of Australia & PSR Committee No. 936 [2018] FCA 2063

Dr Nithianantha sought judicial review of a certain aspects of the Final Report of a PSR Committee, which, among other things, had found that he had breached the 80/20 rule in rendering 80 or more attendance services on each of 28 days in a 12 month period, and had engaged in inappropriate practice in billing MBS item 597 (urgent after-hours attendances) when the patients he attended had not actually required urgent treatment.

The 80/20 rule

Regulation 11(b) of the Health Insurance (Professional Services Review) Regulations 1999 provides that the absence of other medical services for a practitioner’s patients is deemed to be an exceptional circumstance for the purposes of the 80/20 rule.

Dr Nithianantha had put the case to the Committee that there was an absence of other medical services for his patients in the remote rural town in which he practised, and that this constituted an exceptional circumstance. The Committee had rejected that case on the basis of oral evidence given by the practice manager of the only other general practice in that town.

In Court, Dr Nithianantha submitted that the Committee had failed to consider whether the services of the other practice were a readily and reasonably available alternative for Dr Nithianantha’s patients; that it could not make that inference from the practice manager’s evidence; and that it had failed to consider whether another medical practitioner was available on each of the 28 days on which he claimed exceptional circumstances. The Court rejected each of these submissions.

The Court held that the Committee was correct in its view that once the evidence establishes that the practitioner had rendered 80 or more attendance services on 20 or more days in a 12 month period, there is a practical onus on the practitioner to establish that there was an absence of alternative medical services for the practitioner’s patients on any of those days if that is the exception to the 80/20 rule relied on by the practitioner.

Dr Nithianantha had put his case on the basis that there was an absence of other medical services for his patients on each and every day in the 12 month review period. The evidence of the practice manager contradicted the evidence given by Dr Nithianantha, and the Court held that it was open to the Committee to prefer the evidence of the practice manager as she had direct knowledge of her practice’s staffing and willingness to accept patients from Dr Nithianantha’s practice during the review period. The Court said:

‘As the evidence stood and having regard to how Dr Nithianantha put his case, it did not require speculation, assumption or guesswork on the part of the Committee to conclude that there was not an absence of medical services for the applicant’s patients during the review period for the purposes of reg 11(b). That finding was founded on cogent evidence from a person in a better position to give it than either Dr Nithianantha or Mr Cracknell [a local government councillor, who had made a statement in support of Dr Nithianantha].’

In its Final Report, the Committee did not specifically make a finding with respect to whether there were exceptional circumstances on each of the individual 28 days, but made a finding in respect of the review period as a whole. The Court rejected Dr Nithianantha’s submission that the Committee had erred. The Court noted an observation by Greenwood J in Tisdall v Webber (2011) 193 FCR 260 that it is likely that a practitioner who seeks to rely on reg 11(b) will adopt the course of attempting to show that the exceptional circumstances existed throughout the whole of the relevant period because it is likely to be forensically difficult to satisfy a committee that there was an absence of medical services for the practitioner’s patients on individual days. This was the approach that Dr Nithianantha had taken before the Committee.

The Court said that where a practitioner relies only on reg 11(b), it is only if exceptional circumstances are made out by evidence which allows the Committee to conclude that reg 11(b) is satisfied that it is possible to move to the next step. The next step is the determination of whether the Committee could reasonably conclude that those exceptional circumstances existed on some or all of the days on which 80 or more professional attendances were rendered and that they affected the rendering of those services by the practitioner.  In this case, in which the Committee had found that there were no exceptional circumstances on the basis of the evidence before it, it was not required to seek out further evidence in respect of any of the 28 days.

In submissions in response to the Committee’s Draft Report, it was suggested that on 11 of the 28 days, Dr Nithianantha had rendered urgent after hours services, which took him over the 80 services. In response, the Committee made the comment in its Final Report that on each day where Dr Nithianantha had provided 80 or more attendance services, he had billed health assessment items or chronic disease management items, and that it was not correct for Dr Nithianantha to claim that he rendered more than 80 services on those days simply because he rendered after-hours consultations on certain days.

The Court noted that whether or not Dr Nithianantha could have better organised his practice is an irrelevant consideration for the purposes of establishing ‘exceptional circumstances’ under reg 11(b). Nevertheless, the Court said that the Committee had already found that there were no exceptional circumstances, and that it did not need to establish that doctors from the other practice were in fact in the town and available on the 11 days referred to in the submission. Dr Nithianantha’s lawyer had the opportunity to cross examine the practice manager at the hearing on that issue but did not do so, and did not address this issue in submissions after the hearing.

Urgent after-hours attendance – MBS item 597 

It was submitted by Dr Nithianantha that the Committee had misinterpreted the requirements of MBS item 597 in relation to the time at which ‘urgency’ is to be assessed. He submitted that it is enough if, when he formed the opinion that urgent treatment was required, that opinion would have been acceptable to his peers ‘in the circumstances that existed and on the information available when the opinion was formed’, even if it turns out that the patient requires treatment for a different, non-urgent condition which is diagnosed during the consultation.

The Court rejected that approach, and said that the term ‘requires’ where used in the item and in reg 2.15.1(1)(a) is not susceptible of meaning ‘might require’. The Court said that before the consultation, the practitioner can only form a view, having regard to the circumstances which have been conveyed to him or her by someone who may not be the patient. The best the practitioner can do at that point is form a view of what might be required at that time, not what is required. What is required can only be determined following consultation which can, if necessary, include examination.

The Court noted that it is true that the doctor must, at the time he or she receives a call requesting an attendance, make the decision whether to provide the attendance. While there would be a plain unfairness if the practitioner were not to be remunerated at all for after-hours effort, that is not the effect of the scheme of regulations. This is reflected in the different after-hours period rates in Group A11 and Group A22 of the MBS.

The Court also rejected an argument that the existence of a debate among practitioners regarding the time at which the urgency test is to be determined meant that it was not open to the Committee to find that Dr Nithianantha’s conduct in billing the item would be unacceptable to the general body of general practitioners. The Court noted that the Committee, who were also general practitioners, was in a position to form a view of whether the claims made by Dr Nithianantha under MBS item 597 would be acceptable to the general body of members of that profession having regard to their interpretation of that item, and reg 2.15.1, notwithstanding that some practitioners may have a different view.

Dr Nithianantha’s application for judicial review was dismissed.

Click on link to read the judgment.

D. Referrals to the major non-compliance (fraud) division

No matters were referred to the major non-compliance (fraud) division in December 2018.

E. Referrals to AHPRA

No matters were referred to AHPRA in December 2018.