Review by the Director

Overview of the Director's review of your provision of services

The following section has been prepared to inform you about the Director’s review of your provision of services. The Director has decided to undertake a review because, after considering a request from a delegate of the Chief Executive Medicare, it appears to the Director that there is a possibility that you engaged in inappropriate practice in providing services during the review period.

The Director has notified you and the Chief Executive Medicare of the decision to undertake a review. Attached to the notification of that decision is a form with some questions that are relevant to the review. Please fill out that form and return it to the nominated PSR staff member.

The Director’s review will focus on your rendering or initiation of MBS services and/or your prescribing of PBS listed medications. Other issues may also arise in your case.

Soon after deciding to undertake a review, the Director will send you and/or a third party (or parties) a notice to produce documents that are relevant to the review. This generally comprises clinical records relevant to the services under review. If you have any queries about a notice to produce, please contact the PSR staff member nominated on the cover letter of the notice, who will assist you in providing the requested documentation. PSR strongly prefers that you produce electronic records, if possible, and will provide you with guidance materials to help facilitate this. PSR staff can also organise for a courier service to collect your records from you. Please note that there can be serious consequences for not complying with a notice to produce.

The Director will evaluate the records provided to PSR. The Director may seek advice and assistance from consultants or professional bodies in relation to the review. Once the Director has considered the records and any consultancy advice, the Director (or another person on the Director’s behalf) may seek to meet with you at your practice or the office of your legal representative in order to discuss the review. Please note that such a meeting is not a legislated formality, and may not be offered. It is also not mandatory for you to agree to a meeting.

The meeting is intended to facilitate an exchange of information and assist the Director in making an informed decision. Your legal representative, or a support person from your Medical Defence Organisation (or equivalent) should be present during the meeting. At this meeting, you should expect to discuss:

  • your practice, background and training
  • the Director’s preliminary views of the records that were provided to PSR (which will be outlined in a letter sent to you ahead of the meeting) and
  • any other matters relevant to the review, such as your billing statistics during the review period.

Following that meeting, if it appears to the Director that there are grounds on which a Committee of your peers could reasonably conclude that you engaged in inappropriate practice in providing services during the review period, the Director will send you a report under section 89C of the Act. That report will give reasons why the Director has decided not to take no further action. It may raise issues such as:

  • your compliance with regulatory requirements and professional expectations
  • the quality and adequacy of your records and other documentation
  • the clinical relevance of your service provision and
  • your clinical input and decision making.

Each of these issues will be discussed with reference to your conduct in connection with your rendering or initiation of the MBS and/or PBS items under review. The Director will invite you to make submissions in response to the report.

Any submissions that you provide will be carefully considered by the Director. The Director’s review of your provision of services will then end in one of the following three ways:

  1. no further action
  2. section 92 agreement
  3. referral to a committee

No further action

The Director will take no further action in relation to your review if satisfied that:

  1. there are insufficient grounds on which a Committee could reasonably find that you engaged in inappropriate practice in providing services during the review period or
  2. circumstances exist that would make a proper investigation by a Committee impossible.

The Director can make this decision at any stage during the Director’s review. If the Director makes a decision to take no further action, you and the Chief Executive Medicare will be informed of the decision and the reasons for it.

Agreement or referral to a Committee of peers

If the Director considers that a Committee of peers could find that you engaged in inappropriate practice during the review period, then the Director may decide to attempt to resolve the matter by way of an agreement or by establishing a Committee of peers.

Section 92 agreement

The Director may consider that it is appropriate to seek to enter into an agreement with you under section 92 of the Act.

Such an agreement would:

  1. require you to acknowledge that you have engaged in inappropriate practice in connection with rendering or initiating specified services during the review period; and
  2. include a ‘specified action’.

Commonly, a ‘specified action’ can include repayment of money relating to specific services, a period of partial or full disqualification from the MBS or PBS, and a reprimand from the Director.

A section 92 agreement must be ratified by a separate body, the Determining Authority, in order for it to take effect. If it is ratified, it will take effect on the fourteenth day after the Determining Authority ratifies it. The Determining Authority may refuse to ratify it, in which case it will be open to you and the Director to enter in a new agreement. Any new agreement would need to be ratified by the Determining Authority within 3 months of the decision not to ratify the original agreement.

If for any reason you and the Director are unable to settle on terms of a section 92 agreement, the Director may set up a PSR Committee and refer your provision of services to it. If that occurs, the Director can no longer enter into an agreement with you. If a PSR Committee is set up, it will be responsible for determining whether you engaged in inappropriate practice during the review period. It may require you to produce documents and appear and give evidence at a hearing.

The scope of a Committee’s investigation is not limited to the reasons contained in either the Director’s section 89C report or Medicare’s initial request to review your provision of services. The Committee does not, however, have knowledge of any negotiations between yourself and the Director regarding a section 92 agreement.

Referral to a Committee of peers

A referral to a Committee of peers involves establishing an independent decision-making body comprising:

  • a Chair, who must be a member of the same profession as you; and
  • in most cases, at least two members drawn from your profession or speciality.

A Committee will follow formal statutory procedures. A Committee has broad information gathering powers, including powers to obtain evidence and hold a hearing. Typically, a Committee hearing would be held over 4–6 days. A Committee will ask you questions about your provision of MBS services and/or PBS medications.

Following the hearing, if a Committee decides to make preliminary findings of inappropriate practice, it will prepare an initial report (the ‘Draft Report’). This will set out the reasons for those findings and will discuss your conduct in connection with the services under review. You will be invited to make submissions in response to that report.

After considering any submissions you may provide, a Committee will then prepare its Final Report, setting out its findings of inappropriate practice. This is then referred to the Determining Authority. The Determining Authority will invite you to make submissions and will then decide what directions to impose following a separate, staged process. Those directions can include repayment of Medicare benefits to the Commonwealth, full or partial disqualification from the Medicare scheme for a specified period, or disqualification from the PBS for a specified period.