Review by a Committee

This content is prepared for employers, including corporate entities &/or their related officers, subject to a review under Part VAA of the Health Insurance Act 1973.

Overview of the Committee process

The Director may establish a Committee to decide whether you engaged in inappropriate practice. The Director will send a document to you that sets out the names of the practitioners who will comprise the Committee and the MBS and/or PBS items that are referred to the Committee for consideration. A report will set out the Director’s reasons for why she thinks you may have engaged in inappropriate practice.

You should engage a legal adviser for the Committee process if you have not done so already.

Panel Members and the appointment of a Committee

Committee members are drawn from a Panel of practising health or medical practitioners appointed by the Minister. Some Panel members are appointed as Deputy Directors and they act as the Chair of a Committee.

A Committee includes a Deputy Director from the profession and two Panel members who are drawn from the profession/speciality relevant to the profession/speciality of the practitioners employed or otherwise engaged by you. Additional Panel members may also be appointed by the Director to give the Committee a wider range of clinical expertise or to review services provided by other practitioners.

You may challenge the appointment of a Committee member on the grounds of bias. The challenge must be made in writing to the Director within seven days of receiving a copy of the referral. It must set out the basis on which the challenge is made. If the Director decides the challenge is justified, a substitute member will be appointed to the Committee.

Pre-hearing arrangements

Once the Committee has been established, the Committee will decide which MBS and/or PBS items it will examine (of those referred to it by the Director). The Committee will obtain patient records for a sample of services provided as each of those MBS and/or PBS items.

If the relevant records are held by you, a Notice to produce documents will be sent to you specifying the documents that must be produced.

As with the Director’s review, any queries about a notice to produce should be directed to the PSR staff member nominated on the cover letter of the notice. PSR strongly prefers to receive electronic records, if possible, and will provide guidance materials to help facilitate this. PSR staff can also organise for a courier service to collect the records.

The records will generally be prepared in a PDF format with the progress notes and documents relating to the specific service or services under review electronically bookmarked for ease of reference during the Committee hearing. The same PDF version of the records will be provided to you and each Committee member.

The Committee is required to hold a hearing if it appears that the practitioner or practitioners engaged by you may have engaged in inappropriate practice in providing the referred services.

Hearings are usually held in tribunal rooms in a capital city. In most cases, hearings are held in blocks of two consecutive days at a time.

The Committee will decide upon suitable dates and provide an indication of those to you. If any of the dates are impracticable, PSR staff should be contacted as soon as possible.

Prior to the hearing a formal Notice of hearing will be sent, which will identify the hearing venue and dates of the hearing, and may require you (as well as individual practitioners) to attend and give evidence on those dates.

Attending the Hearing

A hearing is generally held from 9.30am–5.00pm. The Committee may adjourn throughout the day to confer and also to allow for breaks from questioning. The Chair may be asked for a break at any stage.

The hearing is a closed hearing. Only the following people will attend:

  • the Committee
  • PSR staff to advise and assist the Committee
  • a person to record the proceedings
  • the person under review (you) and any person(s) accompanying you, including a legal advisor and
  • any witnesses relevant to the proceedings and who the Committee requires attend the hearing. This may include practitioners engaged by you. You may also request that specific witnesses be allowed to attend the hearing

It is important to note that failing to attend a hearing can result in serious consequences.

You are responsible for your costs associated with attending the hearing including travel and accommodation, if required.

During a Hearing

The Committee’s aims during a hearing include:

  1. collecting information to assist it in determining whether:
    • the conduct of practitioners employed or otherwise engaged by you in connection with providing services would be unacceptable to the general body of their peers and, if so,
    • whether you caused or permitted that conduct to occur.
  2. giving you an opportunity to respond to matters upon which the Committee may make a finding of inappropriate practice.

The Committee will consider engaged practitioners’ clinical decisions and input, whether the services that were provided were necessary for the appropriate treatment of the patient, were justified and appropriate in light of the MBS item descriptor and/or PBS restrictions, and whether medical records were adequate.

At the commencement of the hearing, the Chair will make an opening statement outlining the structure of the hearing.

You will be invited to make any opening comments and tender any documents the person would like the Committee to consider. The Committee will ask any witnesses present general questions about the person under review. Individual practitioners engaged by you may be required to attend the hearing and to answer questions asked of them by the Committee. Those questions will involve asking about the practitioner or practitioners’ practice and experience, billing practices, recordkeeping and other matters. The Committee may question individual practitioners about specific services they provided.

The Committee may also ask questions of witnesses who are requested to be present on behalf of the person under review. Those questions may surround your employment or contracting arrangements and your control or other input in relation to services provided by individual practitioners. This information is gathered to assess the extent to which you caused or permitted the conduct of engaged practitioners to occur.

At no point during the hearing will the Committee make any findings of inappropriate practice. If the Committee asks you or a witness connected to you questions about employee supervision or other requirements, that is not because it has concluded that individual practitioners or the person under review have engaged in inappropriate practice. These questions are asked only to allow the Committee to collect as much information as possible upon which it may then make a decision.

The Committee members will take turns when asking questions.

The Committee hearing will be recorded and transcribed.

During the hearing you are entitled, subject to reasonable limitations or restrictions the Committee may impose, to:

  • be accompanied by a lawyer or another adviser
  • call witnesses to give evidence (other than evidence about character)
  • produce written character references
  • question a person giving evidence at the hearing
  • address the Committee on questions of law arising during the hearing
  • make a final address to the Committee after the conclusion of the taking of evidence, on: questions of law, the conduct of the hearing, and the merits of the matters to which the hearing relates.

During the hearing, advisers are entitled, subject to any reasonable limitations or restrictions the Committee may impose, to:

  • provide you with advice
  • if they are a legal adviser, address the Committee on questions of law that may arise
  • after the conclusion of evidence being taken, make a final address to the Committee on questions of law (if they are a legal adviser), the conduct of the hearing, and the merits of the matters discussed during the hearing.

After the hearing is completed the Committee will consider the evidence and any final address, and produce a Draft Report.

The Committee’s Draft Report

If the Committee finds you have not engaged in inappropriate practice, the matter will be closed. Otherwise, the Committee’s Draft Report will outline its preliminary findings about each MBS or PBS service that involves inappropriate practice, along with the reasons for those findings. You have one month from the date of receiving the Draft Report to provide a written submission to the Committee.

If the Committee examined a random sample of services provided as a particular MBS item, the Committee can extrapolate findings of inappropriate practice to all of those particular MBS item services that were provided during the review period.

Preparing submissions on the Committee’s Draft Report

The purpose of the written submissions is for you to suggest changes to the Draft Report. You may wish to submit to the Committee that it misunderstood or misevaluated the evidence in specific instances. It is important for you to consider the Committee’s specific findings in these submissions.

The Committee’s Final Report

After receiving submissions on the Draft Report, or if no submissions are received after a month, the Committee must prepare its Final Report.

The Committee will consider any submission that you make in preparing its Final Report.

The Committee cannot include a finding of inappropriate practice in the Final Report unless that finding was included in the Draft Report.

The Committee will send the Final Report to you and the Director. If the Final Report contains a finding of inappropriate practice, the Committee will send the Final Report to the Determining Authority one month later. The Determining Authority will then decide what outcome should follow from the Committee’s findings of inappropriate practice.

If the Committee finds that you did not engage in inappropriate practice it will provide a Final Report to you, the Director and Medicare, and no further action will be taken.