PSR RTP Internals 01 - CFI: Center for Inquiry · 2019. 10. 30. · 7 September 2005. 13 December Dr P eter Thomas TISDALL, Victoria—Dr Tisdall withdrew his application to the High

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Professional Services Review

Report to theProfessions2005–06

Professional Services Review

Report to theProfessions2005–06

© Commonwealth of Australia 2006

ISSN 1834–2558

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iiiReport to the Professions 2005–06

ContentsDirector’s report __________________________________________________________ 1

Key events at a glance _____________________________________________________ 5

1. Agency and scheme overview _____________________________________________ 9

Objective ______________________________________________________________________ 10

Background ____________________________________________________________________ 11

Inappropriate practice ____________________________________________________________ 11

Benefits of the PSR scheme ________________________________________________________ 11

The Director ____________________________________________________________________ 12

Our vision _____________________________________________________________________ 12

Our mission ____________________________________________________________________ 12

Our values _____________________________________________________________________ 12

Our strategies __________________________________________________________________ 12

Our relationships ________________________________________________________________ 12

Medicare Australia _____________________________________________________________ 12

Department of Health and Ageing __________________________________________________ 13

Health registration boards ________________________________________________________ 13

The process ____________________________________________________________________ 13

The sanctions ___________________________________________________________________ 14

Rights and responsibilities _________________________________________________________ 15

The organisation ________________________________________________________________ 15

2. Report on performance _________________________________________________ 17

Performance assessment __________________________________________________________ 18

Reviews undertaken ____________________________________________________________ 18

Committee reports _____________________________________________________________ 19

Final determinations ____________________________________________________________ 21

Court challenges _______________________________________________________________ 22

Re-referrals ___________________________________________________________________ 24

iv

Description of negotiated agreements _______________________________________________ 24

Dr A, General Practitioner, Adelaide SA _____________________________________________ 24

Dr B, General Practitioner, Perth WA ______________________________________________ 26

Dr C, General Practitioner, Sydney NSW ____________________________________________ 26

Dr D, General Practitioner, Melbourne Vic. __________________________________________ 27

Dr E, General Practitioner, Sydney NSW ____________________________________________ 27

Dr F, General Practitioner, Outer Melbourne Vic. ______________________________________ 29

Dr G, General Practitioner, Brisbane Qld ____________________________________________ 29

Dr H, General Practitioner, Sydney NSW ____________________________________________ 30

Description of effective final determinations __________________________________________ 32

Dr Peter Thomas Tisdall, General Practitioner, Kyabram Vic. ______________________________ 32

Dr Anthony Joseph, Medical Practitioner, Lithgow NSW ________________________________ 32

Dr John Warren Piesse, General Practitioner, Kew Vic. __________________________________ 32

Dr Clarence Charles Dietman, General Practitioner, Elanora & Surfers Paradise Qld ____________ 32

Dr Bao-Quy Nguyen-Phuoc, General Practitioner, Greystanes & Merrylands NSW _____________ 33


Reasons for requests and referrals __________________________________________________ 37

Medicare Australia requests for review _____________________________________________ 37

Committee referrals ___________________________________________________________ 39

Other types of concern ________________________________________________________ 39

Prescribed pattern of services ___________________________________________________ 40

High volume of services ________________________________________________________ 42

High number of services per patient ______________________________________________ 42

High prescribing of Pharmaceutical Benefits Scheme drugs _____________________________ 42

Inadequate medical records _____________________________________________________ 43

Inadequate clinical input _______________________________________________________ 43

Medicare Benefits Schedule item not satisfied _______________________________________ 45

Special service clinics __________________________________________________________ 45

Services not medically necessary _________________________________________________ 45

Particular services or types of services _____________________________________________ 45

Professional isolation __________________________________________________________ 46

Unusual medical practice _______________________________________________________ 46

Alteration of documents _______________________________________________________ 46

vReport to the Professions 2005–06

Decisions of the Federal Court and Full Federal Court ____________________________________ 47

Dr Anthony Joseph, Medical Practitioner, Lithgow NSW ________________________________ 47

Dr John William Mathews, General Practitioner, Campbelltown NSW ______________________ 50


Dr Zelco Oreb, Medical Practitioner, Newtown NSW ___________________________________ 52

Dr Ashraf Selim, General Practitioner, Punchbowl NSW ________________________________ 55

Dr Rifaat Dimian, Medical Practitioner, Merrylands NSW _______________________________ 55

Dr Kenneth Wong, General Practitioner, Merrylands NSW _______________________________ 57

Dr Il Song Lee, General Practitioner, Eastwood NSW ___________________________________ 58

Dr Il Song Lee, General Practitioner, Eastwood NSW ___________________________________ 60

Dr Donald Hatcher, General Practitioner, Roma Qld ___________________________________ 61

Dr Warren John Saint, General Practitioner, Kwinana WA _______________________________ 61

Dr Ameen Ahmed Bham, Medical Practitioner, Morley, Balga, Yokine & Beechboro WA _________ 64

Dr John Warren Piesse, General Practitioner, Kew Vic. __________________________________ 67

3. Glossary _____________________________________________________________ 71

Director’s Report

2 Director’s Report

Director’s reportEncouraged by the successful distribution of the Professional Services Review’s first Report to the Professions, based on the 2004–05 annual report, to 45 000 health professionals, and the general approval it received from them, I have decided to publish a yearly report based on the annual report. This year’s Report to the Professions is based on the PSR’s annual report for 2005–06, which was tabled in parliament by the Minister for Health and Ageing, the Hon. Tony Abbott, on 31 October 2006. It includes additional information on areas of practice that gave rise to concerns throughout the year.

During 2005–06 the Department of Health and Ageing initiated a review of the PSR scheme to assess the effectiveness of the 1999 and 2002 legislative changes and to recommend improvements. The steering committee, which

comprised representation from the Australian Medical Association, Medicare Australia and the Department, thoroughly examined the scheme and incorporated the views of stakeholder groups consulted during the review. I am confident that the review recommendations will result in a more robust, comprehensive and fairer scheme for practitioners.

The growth in ‘skin cancer’ clinics, particularly in the eastern states, has paralleled requests from Medicare Australia to review the behaviour of doctors working in these clinics. PSR has seen a number of cases where treatment given to patients appears to have been aimed at increasing profit for practitioners rather than what medical peers would regard as being in the best interest of patients. The use of skin flaps for closure of wounds has been a particular area of abuse of the Medical Benefits Schedule (MBS). Doctors interested in skin cancer medicine should

Tony Webber, Director

3Report to the Professions 2005–06

ensure their training has been adequate before undertaking these procedures.

Doctors working in general practice have had the benefit of Extended Primary Care items in the MBS. These items recognise that high quality care in complicated and involved cases needs significant clinical input from the practitioner. Unfortunately evidence suggests abuse of these items. Practitioners are reminded that Extended Primary Care items should not be used for trivial conditions, nor should they be used where a referral letter would be more appropriate. Software prompting practitioners to use an EPC item should never take the place of clinical judgement.

Vocationally registered general practitioners have been found to consistently misunderstand the content requirement of the higher valued consultation items (Group A1 MBS items). If a consultation does not meet the content requirement for Group A1, it should be billed at a lower rate for time-based items (Group A2).

During 2005–06, a number of practitioners initiated actions in the Federal Court of Australia against Professional Services Review; these actions are detailed later in this report.

The most significant action before the court is a constitutional challenge to the validity of the PSR scheme. While this case has yet to be heard, many other litigants have added this ground to their own cases, the finalisation of which will be delayed until the first court case is decided. Since its inception the PSR scheme has resulted in much litigation, and I do not think this will change in the near future. However, Professional Services Review has generally been successful in responding to these cases in the past.

Only a small minority of practitioners deliberately set out to put income generation before patient care. The audit and review processes of both Medicare Australia and Professional Services Review are designed to detect and curb this behaviour. Practitioners investigated by Medicare Australia and Professional Services Review can be assured that the process strives to give practitioners a fair hearing, a reasoned explanation for unfavourable decisions by their peers and an opportunity to change.

Tony Webber

Director

Key events at a glance

6 Key events at a glance

Key events at a glance

Date Activity

29 July Dr Anthony JOSEPH, New South Wales—The Federal Court dismissed an application by Dr Joseph challenging the final determination of the Determining Authority and also held that the Committee had correctly tested whether his conduct would be unacceptable to the general body of medical practitioners.

2 August Dr John William MATHEWS, New South Wales—The Federal Court dismissed a motion by Dr Mathews for an order for discovery.

22 August Dr Warren John SAINT, Western Australia—Dr Saint had sought discovery of a large number of documents from PSR and the committee. The Court ordered discovery only of documents of an evidentiary nature; discovery of all other documents was refused.

7 September Dr Peter Thomas TISDALL, Victoria—The Full Court of the Federal Court dismissed an application by Dr Tisdall challenging the decision of the PSR Tribunal.

16 September Dr Rifaat DIMIAN, New South Wales—The Full Court of the Federal Court dismissed Dr Dimian’s appeal that the Director failed to offer a Section 92 agreement.

16 September Dr Zelko OREB, New South Wales—The Full Court of the Federal Court dismissed an appeal by Dr Oreb that the Director failed to offer a Section 92 agreement. The Court also dismissed a cross appeal by the Director on the issue of ‘exceptional circumstances’.

16 September Dr Donald HATCHER, Queensland—The Full Court of the Federal Court confirmed an earlier decision that the committee had wrongly had regard to legally irrelevant practice management issues. The Court ordered that Dr Hatcher’s case be sent back to the original committee for reconsideration.

16 September Dr Il Song LEE, New South Wales (two cases)—The Full Court of the Federal Court upheld the earlier decision by a single judge that the committee had wrongly focused on whether ‘exceptional circumstances’ existed in a general sense, and in particular, that practice management issues were not relevant. Dr Lee’s cases were sent back to the committees to be heard again.

29 September Dr Peter Thomas TISDALL, Victoria—The Full Court of the Federal Court ordered Dr Tisdall pay all the costs of the PSR in his unsuccessful appeal decided on 7 September 2005.

13 December Dr Peter Thomas TISDALL, Victoria—Dr Tisdall withdrew his application to the High Court for special leave to appeal an earlier decision by the Full Court of the Federal Court. As a result the PSR Tribunal’s Determination came into effect on 15 December 2005.

7Report to the Professions 2005–06

Date Activity

16 December Dr Donald HATCHER, Queensland—The Full Court of the Federal Court ordered PSR to pay 90 per cent of Dr Hatcher’s costs following the decision of 16 September 2005.

6 February Dr John Warren PIESSE, Victoria—Dr Piesse sought an adjournment to allow him more time to present his case on seeking a copy of the transcript, procedural fairness and constitutional validity. The Federal Court refused to grant an adjournment. Dr Piesse withdrew his applications. The Final Determination took effect on 13 March 2006.

23 February Dr Ashraf SELIM, New South Wales—The Federal Court dismissed Dr Selim’s claim that the PSR scheme contravened the ban on civil conscription contained in Section 51 of the Australian Constitution.

10 March Dr John William MATHEWS, New South Wales—The Federal Court held that the committee had not complied with the sampling guidelines and its findings were invalid. The Court ordered that Dr Mathews’ case be sent back to a new committee to be heard again.

18 May Dr Ameen Ahmed BHAM, Western Australia—The Federal Court refused Dr Bham permission to amend his application to review the Determination of 13 January 2005 because the amending application was well out of time.

Section 1

Objective ___________________________________ 10

Background _________________________________ 11

Inappropriate practice _________________________ 11

Benefi ts of the PSR scheme _____________________ 11

The Director _________________________________ 12

Our vision __________________________________ 12

Our mission _________________________________ 12

Our values __________________________________ 12

Our strategies _______________________________ 12

Our relationships _____________________________ 12

Medicare Australia _________________________ 12

Department of Health and Ageing _____________ 13

Health registration boards ____________________ 13

The process _________________________________ 13

The sanctions ________________________________ 14

Rights and responsibilities ______________________ 15

The organisation _____________________________ 15

Agency and scheme overview

10 Agency and scheme overview

1. Agency and scheme overview

Objective

The object of the Professional Services Review (PSR) scheme is to protect the integrity of the Medicare Benefi ts Scheme and the Pharmaceutical Benefi ts Scheme (PBS) by:

n protecting patients and the community in general from the risks associated with inappropriate practice

n protecting the Commonwealth from having to meet the cost of services provided as a result of inappropriate practice.

The PSR scheme was established by the Health Legislation (Professional Services Review) Amendment Act 1993 which amended the Health Insurance Act 1973, and came into effect from 1 July 1994.

The Act was substantially amended in 1999 following a comprehensive review of the scheme. An adverse decision by the Federal Court in November 2001 (Pradhan v Holmes & Others)

raised concerns that the 1999 amendments to the Act may not have the effect intended. The Full Court of the Federal Court in May 2002 handed down a decision (Health Insurance Commission v Grey), which substantially agreed with the way PSR characterises its role. However, further amendment to the Act was needed to address the Federal Court’s concerns.

Parliament passed the Health Insurance Amendment (Professional Services Review and Other Matters) Act 2002 in December 2002. The majority of the amendments came into effect on 1 January 2003 with the remainder upon Royal Assent on 18 December 2002. This new Act makes a number of amendments to the existing Act, specifi cally to:n clarify the roles and responsibilities of

Medicare Australia, the Director of PSR and PSR committees

n enhance procedural fairness processes

n validate a number of referrals (that may otherwise have been found to be invalid on the basis of the Pradhan decision) which were currently before committees.

11Report to the Professions 2005 –06

The Act was developed in consultation with the Director of PSR, Medicare Australia, the AMA and the Department of Health and Ageing.

The role and function of PSR is to administer Part VAA of the Health Insurance Act 1973 (the Act). The current scheme, effective 1 January 2003, is an avenue for review and investigation of cases of suspected inappropriate practice by practitioners who render or initiate services attracting a Medicare benefi t or who prescribe under the PBS.

Background

The legislation was developed with the aim of providing an effective peer review mechanism to deal quickly and fairly with concerns about possible inappropriate practice.

The essential features of the review structure are:n a Director of PSR, who is a medical

practitioner, appointed ministerially and able to engage staff and consultants

n a PSR Panel, comprising medical and other health related practitioners, who are appointed ministerially

n committees, comprising practitioners from the PSR Panel appointed by the Director on a case-by-case basis to consider the conduct of practitioners referred by the Director for investigation

n a Determining Authority comprising a medical practitioner as Chair, a lay person and a member of the relevant profession. The Determining Authority’s role is to decide on the sanctions for practitioners found by committees to have engaged in inappropriate practice and to consider whether to ratify agreements entered into by the Director and the person under review.

Inappropriate practice

A practitioner engages in inappropriate practice if the practitioner’s conduct, in connection with rendering or initiating services, is such that a committee of his or her peers could reasonably conclude that:n in the case of a medical practitioner—

the conduct would be unacceptable to the general body of the members of the group (that is, general practitioner, specialist or consultant physician) in which the practitioner was practicing when he or she rendered or initiated the services, or

n in the case of a dental practitioner, optometrist, chiropractor, physiotherapist, osteopath or podiatrist—the conduct would be unacceptable to the general body of the members of the profession in which the practitioner was practicing when he or she rendered or initiated the services.

A person (including a practitioner) who is an offi cer of a body corporate engages in inappropriate practice if the person knowingly, recklessly or negligently causes or permits, a practitioner employed by the person or body corporate to engage in conduct that constitutes inappropriate practice by the practitioner.

Benefi ts of the PSR scheme

The PSR scheme gives health professionals substantial autonomy in reaching fi ndings on inappropriate practice. At the same time, proper care has been taken to ensure the practitioner under review receives natural justice. At every major point in the review process the practitioner is given the opportunity to make submissions that could infl uence the review process and outcome.


The scheme provides for separation of the three elements of the decision-making processes that are:

n review of a request from Medicare Australia

n committee hearings and fi ndings

n determination of any sanction.

The Director

The Minister for Health and Ageing appointed Dr Anthony David Webber Director of Professional Services Review from 14 February 2005 for a three-year period.

At 30 June 2006, there were 165 members appointed by the Minister as Panel members to serve on committees. Of these, 23 were also appointed as Deputy Directors of PSR to serve as chairpersons. The Minister appointed eight new members during the year.

Our vision

As an independent authority, PSR contributes to ensuring access through Medicare to cost-effective medical services, medicines and health care for all Australians.

Our mission

To examine health practitioners’ conduct to ascertain whether or not the practitioner has practiced inappropriately in relation to services that attract Medicare or pharmaceutical benefi ts.

Our values

In doing our job, all members of PSR will:

n act with fairness, consistency, impartiality and integrity

n demonstrate dedication and commitment

n act with professionalism

n value and respect each other and work as a team

n show timeliness.

Our strategies

The strategies we employ to achieve our mission and values are to:

n review requests expeditiously and effectively to enable courses of action to be decided

n provide support services to PSR committees to enable them to carry out the PSR mission

n provide support to the Determining Authority to enable it to function

n manage relationships with stakeholders to maintain and enhance credibility of, and provide information about, the PSR scheme

n provide effective and effi cient human resource management, fi nancial management and corporate planning services

n ensure PSR legislation remains relevant.

Our relationships

The PSR has working relationships with Medicare Australia, the Department of Health and Ageing and health registration boards nationwide.

Medicare Australia

Professional Services Review’s workload is dependent on requests sent by Medicare Australia, which administers the Medicare Benefi ts Scheme and PBS. Medicare Australia


can request the Director to review the provision of services by a practitioner for suspected inappropriate practice.

Cases of possible fraud identifi ed during the PSR process are referred back to Medicare Australia for action.

Department of Health and Ageing

The Department of Health and Ageing has policy responsibility for providing advice to the Minister on development and maintenance of the PSR scheme. The Department liaises with stakeholders in the scheme and performs the broader tasks of policy review and development of legislation. PSR is an active participant in discussions with stakeholders.

Health registration boards

The Act allows the PSR to refer persons under review to appropriate bodies when a signifi cant threat to the life or health of a patient is identifi ed or where the person under review has failed to comply with professional standards.

The Process

The Professional Services Review Panel consists of medical practitioners and other health practitioners appointed by the Minister after consultation with the AMA or appropriate professional organisations.

From the Panel, the Minister appoints Deputy Directors, who chair Professional Services Review Committees (PSRCs). A PSRC includes a Deputy Director and two other Panel members from the same profession or specialty as the practitioner under review. One or two more Panel members may be included to give the PSRC a wider range of clinical expertise.

The Determining Authority comprises a medical practitioner as Chair, plus a layperson and a member of the relevant profession. These are appointed by the Minister after consultation with the appropriate professions.

A Medicare Participation Review Committee can disqualify a practitioner, against whom two adverse determinations have been made, from the Medicare program for up to fi ve years.

Identifi cation: Medicare Australia generally identifi es potential inappropriate practice on the basis of a practitioner’s service statistics. Medicare Australia advises a practitioner of its concerns. The practitioner’s conduct is subsequently reviewed, and if concerns remain unaddressed, Medicare Australia may request the Director to review the practitioner’s conduct.

Request for review: Medicare Australia can request the Director to review the provision of services by the practitioner during a specifi ed period. A copy of the request is sent to the practitioner. The Director must decide within one month whether to undertake a review.

Review: The Director may review any services provided by the practitioner and is not restricted to Medicare Australia’s reasons for requesting the review. The Director can require the practitioner to produce documents and can penalise non-compliance. Case offi cers may be appointed to help the Director conduct the review

Following the review: After the review, the Director must decide to either take no further action, or to provide the practitioner with a written report and invite submissions on any further action. After time for submissions, the Director must:

n decide to take no further action

n negotiate and enter into an agreement, or

n establish a PSRC and make a referral to it.


No further action: The Director may decide to take no further action if a PSRC could not reasonably fi nd inappropriate practice.

Negotiating an agreement: The Director may negotiate a conclusion if the practitioner admits inappropriate practice and accepts sanctions. The agreement becomes effective if ratifi ed by the Determining Authority.

Establishing a PSR committee: The Director must establish a PSRC unless he decides to take no further action or the Determining Authority has ratifi ed an agreement.

Challenging committee members: The practitioner may challenge the appointment of a PSRC member on the grounds of bias.

Hearings: A PSRC meets in private in state capital cities. The practitioner is given notice of the time and place of the hearing and must appear to give evidence. A PSRC may require the practitioner or someone else to produce documents. A lawyer usually assists a PSRC.

Failure to comply: If the practitioner fails to give evidence or to produce the requested documents, a PSRC may notify the Director who will fully disqualify the practitioner from Medicare until the practitioner complies.

PSR committee process: A PSRC must accord the practitioner natural justice, may inform itself in any manner it thinks fi t, and is not bound by the rules of evidence.

Medical records: A PSRC must consider whether the practitioner kept adequate and contemporaneous clinical records. A PSRC may fi nd the practitioner’s practice inappropriate despite the absence, defi ciency or illegibility of health records.

Practitioner’s rights at hearings: The practitioner may address a PSRC and question any witness.

The practitioner may be accompanied, but not represented, by a legal or other adviser. A legal adviser may address a PSRC on points of law, and make a fi nal address on the merits of the case. A non-legal adviser may address a PSRC.

Professional concerns: If the Director, a PSRC or the Determining Authority suspects a signifi cant threat to the life or health of any person, or failure to comply with professional standards or fraudulent activity, they must report this to the relevant authority.

Committee report: A PSRC will send a draft report to the practitioner inviting a submission on its preliminary fi ndings. The PSRC must consider any submission from the practitioner before fi nalising its report to the Determining Authority.

Determination: If the PSRC makes a fi nding of inappropriate practice against the practitioner, the Determining Authority will invite submissions from the practitioner on the sanctions it should impose. The Determining Authority will then draft a determination, including the sanctions it intends to impose, upon which the practitioner may make further submissions. The Determining Authority will consider any further submissions in fi nalising the determination.

The sanctions

The Determining Authority must impose one or more of the following:n a reprimand

n counselling

n repayment of Medicare benefi ts, and/or

n complete and/or partial disqualifi cation from the Medicare scheme and/or PBS for up to three years.


Rights and responsibilities

Natural justice: The Scheme has safeguards to ensure the practitioner is treated fairly. At every major step the practitioner is invited to make submissions – especially on draft fi ndings.

Confi dentiality: The information and evidence presented to the PSRC, its deliberations and its fi ndings remain confi dential and may not be disclosed unless specifi cally authorised by the Act or on appeal. However, the Director may publish the name and address of any practitioner when the Determining Authority’s decisions become effective.

Appeal rights: The practitioner may, at any stage, seek judicial intervention or review in the Federal Court.

Legal protection: Members of PSRCs, the Determining Authority and their consultants, witnesses and those appearing on behalf of practitioners are protected from civil or criminal actions.

Professional autonomy: The Scheme recognises the professional autonomy of the PSRCs in reaching fi ndings of inappropriate practice.

Annual report: The Director’s annual report to the Minister outlines the types of behaviour which led to fi ndings of inappropriate practice and guides the professions as to their peers’ understanding of inappropriate practice. Practitioner’s names, an outline of their inappropriate practice, and the sanctions imposed are published in the annual report once a determination has taken effect. The report is tabled in Parliament.

The organisation

The Director, Dr Tony Webber, is a statutory offi cer appointed by the Minister for Health and Ageing (with agreement from the AMA) to manage the PSR process. The Director reports directly to the Minister and his actions are governed by the Health Insurance Act 1973.

An Executive Offi cer, Mr John Jenner, three Unit Managers and their staff support the Director in his role (see Figure 1).

The Executive Offi cer reports to the Director and has a leadership role in achieving organisational objectives through management of operational matters, fi nancial and human resources, policy development and provision of governance advice.

The Review Unit assists the Director with the review of requests received from Medicare Australia. It also produces the agreements sent to the Determining Authority following negotiations and the documentation for referrals of practitioners to committees. The Committees Unit provides secretariat support to committees. The Corporate Unit provides fi nancial and human resources and information technology services and support for the whole organisation.

General legal assistance is outsourced to the Minter Ellison law fi rm. Minter Ellison lawyers in each state provide assistance at committee hearings.

In addition, secretariat support for the Determining Authority is located within PSR’s offi ces. Legal support is provided to the Determining Authority by Phillips Fox Lawyers.


Figure 1: Organisation chart

Audit Committee

Director

Executive Offi cer

Determining Authority Support

Corporate Unit

ManagerHuman Resource Manager

Finance Manager

IT Manager

Support Offi cers

Committees Unit

Manager

Committee Executive Offi cers

Review Unit

Manager

Review Offi cer

Support Offi cers

Medical and other Health Advisers

Performance assessment _______________________ 18

Reviews undertaken ________________________ 18

Committee reports _________________________ 19

Final determinations ________________________ 21

Court challenges ___________________________ 22

Re-referrals _______________________________ 24

Description of negotiated agreements ____________ 24

Description of effective fi nal determinations _______ 32

Reasons for requests and referrals ________________ 37

Decisions of the Federal Court and Full Federal Court ____________________________ 47

Report on Performance

Section 2

18 Report on Performance

2. Report on performance

Performance assessment

Table 1—Achievements at a glance

Target Outcome

Reviews 40 10

Committee reports issued 30 6

Final determinations issued 30 3

Effective fi nal determinations issued 40 14

Reviews undertaken

Medicare Australia sent seven requests for review to PSR this year. The Director did not dismiss any cases following review. The Director negotiated eight agreements with practitioners where he was not satisfi ed a committee would not fi nd the practitioner had engaged in inappropriate practice. Another two cases were sent to committees for further investigation and there were fi ve cases under review at the end of the year (see Table 2).

Eight matters were the subject of applications in the Federal Court where consent orders were issued sending the cases back to newly constituted committees to be heard again.

In the opinion of the Director, none of the practitioners reviewed had caused, is causing or was likely to cause a signifi cant threat to the life or health of patients. Consequently the Director did not initiate any referrals to a state or territory medical board.


It took an average of 208 days (313 days in 2004–05) to complete those eight cases leading to a negotiated agreement against a legislative timeframe of 13 months for completion.

Sanctions agreed as part of the negotiations were that:n all eight practitioners be reprimanded

n two practitioners be partially disqualifi ed from Medicare for a total of 18 months (one for six months, the other for one year)

n two practitioners be fully disqualifi ed from Medicare for a total of three years and six weeks (one six weeks, the other for three years)

n all eight practitioners agreed to make repayments totalling $509 984 (from $19 984 to $115 000 and averaging $63 748 per agreement).

There is a brief description of all eight cases involving a negotiated agreement later in this chapter.

Committee reports

The Director made two referrals to committees during the year (see Table 3). Six committees reported fi ndings of inappropriate practice with all six going to the Determining Authority.

Table 2 —Reviews undertaken

2005–06 2004–05

Reviews completed 10 30

Reviews on hand 1 July 8 na

Requests received from Medicare Australia 7 9

Requests dismissed 0 15

Negotiated agreements 8 4

Requests withdrawn or lapsed 0 0

Committees established 2 11

Reviews on hand 30 June 5 8

Referrals to medical boards initiated by Director 0 1

Disqualifi cations from Medicare for failing to produce documents 0 0

Suspected fraud 0 0


Table 3—Committee reporting

2005–06 2004–05

Committee reports issued 6 24

Referrals on hand 1 July 18 na

Referrals to committees

New referrals 2 11

New committees established following court orders 8 0

Referrals returned to existing committees to be heard again 7 0

Draft reports issued 5 6

Submissions received on draft reports 5 18

Final reports to person under review 6 24

Final reports to the Determining Authority 6 23

Referrals on hand 30 June 29 na

Adverse fi ndings 6 23

Practitioner cleared 0 1

Investigation impossible 0 1

Committee sessions held 49 55

Referrals to medical boards initiated by committees 1 1

Disqualifi cation from Medicare for failing to produce documents or attend hearings

0 0

Suspected fraud 0 0

There were 29 referrals in various stages of the process as at 30 June 2006.

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

One committee identifi ed a practitioner for referral by the Director to the relevant state medical registration board because it formed the opinion the practitioner had caused, is causing or was likely to cause a signifi cant threat to the life or health of patients.

The committee’s particular concerns were that the practitioner may:

n not have provided effective care or management to patients presenting with complex medical issues

n not have adequately managed some patients who were abusing drugs, and

n have consulted patients at his home (and on one occasion over dinner and a bottle of wine at a patient’s home).

The average time taken for the six committees to report fi ndings of inappropriate practice was 829 days (920 days in 2004–05).


Final determinations

Fourteen cases were sent to the Determining Authority this year. The eight negotiated agreements received were ratifi ed (see Table 4).

2005–06 2004–05

Effective fi nal determinations 14 26

Final determinations issued from committee reports 6 26

Committee reports on hand 1 July 12 na

Committee reports received 6 23

Draft determinations issued 6 17

Submissions by person under review on draft determinations 5 15

Committee reports on hand 30 June 19 12

Negotiated agreements

n Received 8 4

n Ratifi ed 8 11

n Not ratifi ed 0 0

Determining Authority meetings held 6 7

Referral to medical boards initiated by the Determining Authority 0 0

Table 4—Final determinations

Six fi nal determinations were issued from fi ndings in committee reports. The Determining Authority had 19 cases under consideration at the end of June 2006, with almost all of these in the Federal Court (see Table 5).

The eight negotiated agreements were ratifi ed in an average of 22 days (13 days in 2004–05) 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 ratifi ed.

The Determining Authority took an average of 195 days (144 days in 2004–05) to issue six draft determinations and another 158 days (186 days in 2004–05) to issue the

three fi nal determinations. This is against a legislated timeframe of one month for a draft determination and 28 days for a fi nal determination (including 14 days for the practitioner to make submissions). The time necessarily taken to properly re-appoint and appoint members to the Determining Authority resulted in additional time taken by the Authority to make draft determinations when compared with the previous year. All time limits on the Determining Authority have an exemption clause.

During the year 14 fi nal determinations became effective. Eight of these were negotiated agreements and the other six were as a result of committee fi ndings of inappropriate practice.


The sanctions imposed on these six effective fi nal determinations included:

n reprimand and counselling in all six determinations

n repayment in all six determinations totalling $817 332.40 (from $283.20 to $286 460.85 and averaging $136 222.07 per determination)

n full disqualifi cation periods from one year to three years totalling eight years over four of the determinations, and

n partial disqualifi cation periods from six months to two years totalling four years over three determinations.

When a practitioner has had two effective fi nal determinations the Director must provide a written notice to the Medicare Participation Review Committee (MPRC). The MPRC has a discretionary range of options available from taking no further action against the practitioner to counselling and reprimand and full or partial disqualifi cation from participation in the Medicare benefi ts arrangements for up to fi ve years. As required under the Act, the practitioner was notifi ed of the correspondence to the MPRC.

The Director informed the MPRC of a second effective fi nal determination against Dr Tisdall in March 2006 pursuant to section 106X of the Act. The fi rst effective fi nal determination against Dr Tisdall came into effect in December 2005.1 There is a description of both these cases later in this chapter.

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 that practitioners would challenge fi ndings where committees decided there were no exceptional circumstances to warrant the practitioner exceeding 80 or more attendances on 20 or more days in the specifi ed 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 Lee2) indicating that the various committees had applied the wrong test when making fi ndings 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 the 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. (These are listed at the end of this chapter under ‘Decisions of the Federal Court and Full Federal Court’.)

1 On 4 August 2006, the Medicare Participation Review Committee fully disqualifi ed Dr Tisdall from participating in the Medicare benefi t arrangements until 17 March 2008 inclusive.

2 A full report is given on all these cases later in this chapter.


Table 5—Court actions

2005–06 2004–05

Court applications

Review 0 0

Committees 4 11

Determining Authority 5 6

Professional Services Review Tribunal 1 1

Federal and Full Federal Court hearings held 19 17

Federal and Full Federal Court decisions handed down in favour of the person under review

17a 5

Federal Court decisions handed down in favour of PSR 6 8b

High Court applications 2 0

High Court decisions in favour of PSR 1 0

a 12 by consent remitted back to a PSR committee to be heard again.

b 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, fi rstly, 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

In 2005–06 there was one request for review of a practitioner whom Medicare Australia had previously sent for review.

In June 1999 Medicare Australia referred this practitioner to the Director for consideration. Medicare Australia was concerned about the practitioner’s high number of services per patient—6.87, which was above the 98th percentile at the time—and the practitioner’s high rate of prescribing certain pharmaceuticals. The practice was semi isolated just outside a metropolitan area and consisted mainly of aged and retired patients. Weekends and holiday periods brought an infl ux of visitors. The practitioner also held an authority to dispense because of the practice location.

Following visits to the practitioner by the Director and later by a consultant on his behalf, the Director formed the view that there would be insuffi cient grounds on which a committee could reasonably fi nd the practitioner had engaged in inappropriate practice in connection with the referred services. Consequently the referral was dismissed in June 2000.

The request for review in March 2006 contained exactly the same concerns as those raised in 1999—high number of services per patient and high rate of prescribing, particularly COX-2 and potential drugs of dependence. The Director is currently reviewing the matter.

Description of negotiated agreements

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

Dr A, General PractitionerAdelaide SA

Medicare Australia requested a review of the provision of services by Dr A because it detected

a very high level of total services (15 018 at a cost to Medicare of $479 305) that was above the 99th percentile. In addition to Medicare Australia’s concern about total services, Dr A was providing a range of other services above the 99th percentile. This included MBS items 601 (after hours), 2521 (diabetes), 2552 (asthma 3+), 30006 (extensive burns), 30192 (premalignant skin lesions), 42644 (removal from cornea), 50124 (aspiration/injection joint) and 41500 (removal from ear). Medicare Australia also requested the Director to review Dr A’s prescribing. During the 12-month review period Dr A had prescribed 27 051 items subsidised by the PBS at a cost of $814 299.

Medicare Australia had previously counselled Dr A in 1995 about high daily servicing and in 1999 about high pathology generation and high services per patient.

The Director reviewed Dr A’s medical records. Dr A’s records were seen as wholly inadequate; they did not contain suffi cient clinical information to adequately inform another practitioner taking over the care of a patient. It also appeared that some consultations had been ‘up-coded’, where a straightforward condition was billed as a complex consultation. There was evidence of a large number of pathology tests being ordered for inadequate clinical indications. Of more concern, was the fact that the majority of Dr A’s elderly patients were taking large numbers of medications with little or no evidence in the medical record for a sound clinical indication. For several of Dr A’s billed consultations and procedures, there was no clinical record at all.

Following examination of Dr A’s records there was suffi cient evidence to conclude that a committee of Dr A’s peers would fi nd the conduct in relation to rendering of the items


scenario1

The patient was a 31-year-old female who was on a methadone program. The patient presented asking for prescriptions for Valium and Panadeine Forte. The patient was HIV positive and a sex worker. This was the fi rst time the practitioner had seen the patient as an adult. The service provided was an MBS item 44, level D consultation and no exhaustive history was taken.

Transcript of part of the discussion with the practitioner reads:

Chair Apart from the treatment of the heroin addiction was there any other reason you were giving her Panadeine Forte? Did she have any pain problems or ---

Practitioner She asked me for it and she probably did have. Also it is very common for people in this situation to ask for Panadeine Forte and I am not quite sure exactly why. I don’t think I was going to sit down and ask her why do you actually need it or whatever, because of her overall situation. I knew her from when she was a kid actually.

Committee Member Yes, but did you seek any consultation with any drug and alcohol specialist about continuing to prescribe Panadeine Forte to a person on a methadone program? Is that something you thought you should seek support to do or did you think it was completely appropriate to keep doing that?

Practitioner Her ongoing treatment would have been sorted out by the people that she was going to go and see.


examined, to be unacceptable to the general body of general practitioners.

The Director met with Dr A who accepted having practiced inappropriately by not keeping adequate records that would support the services provided and the benefi ts claimed. Dr A agreed to be reprimanded by the Director and to repay the Commonwealth $55 000 in Medicare benefi ts.

Dr B, General PractitionerPerth WA

Medicare Australia sent Dr B to PSR because it detected a very high number of services, (18 203 services for a total benefi t of $532 666). In addition, Medicare Australia was concerned that Dr B prescribed 25 251 items under the PBS for a total cost of $572 431. In particular Dr B’s prescribing of drugs of dependence was higher than most general practitioners in Australia. On 132 occasions Dr B issued more than one original prescription for the same drug of dependence to the same patient on the same day. Many of the patients had received the same drug of dependence from other providers.

Medicare Australia had counselled Dr B in 2002 over similar concerns.

Dr B’s medical records were reviewed and the rendering of MBS item 23 was examined. Dr B’s records lacked meaningful history or recording of physical examination; indeed 47.5 per cent of the records were found to be inappropriate. It was noted that many of Dr B’s patients had a serious drug dependency problem. There was considerable doubt as to whether these patients were attending for Dr B’s expertise in treating drug dependence or for preparedness to issue narcotic prescriptions. Seventy fi ve per cent of Dr B’s long consultations (MBS item 36) were considered inappropriate. One alarming record was that of a 16-year-old girl who, despite

several claims by her of ‘tabs stolen, bag stolen, or scripts stolen’, appeared to have easy access to prescriptions for drugs of dependence.

When confronted with the fact that a committee was likely to fi nd Dr B had practiced inappropriately, Dr B sought the opportunity to enter into a negotiated agreement. Dr B acknowledged having not kept adequate and contemporaneous records and to having practiced inappropriately.

Dr B agreed to repay the Commonwealth $30 000 and be reprimanded by the Director. Dr B accepted disqualifi cation from the Medicare arrangements for three years.

Dr C, General PractitionerSydney NSW

Dr C, a vocationally registered general practitioner, worked almost exclusively in a skin cancer clinic. Medicare Australia requested a review of the provision of services by Dr C for several reasons. Dr C rendered 6 300 services to 1 826 patients for $304 586 in Medicare benefi ts; 69 per cent (4 371) of the total services were to 863 patients, rendered where each patient received a consultation on the same day as one or more procedures. Medicare Australia was also concerned about Dr C’s use of fl ap repairs; Dr C rendered 225 single stage fl ap services to 111 patients for repair of a small defect (item 45200). This is signifi cantly more than all other medical practitioners in Australia where the 99th percentile for this procedure commences at three services.

A PSR consultant reviewed Dr C’s clinical notes. Dr C’s use of a consultation item in association with a procedure was found to be inappropriate. The consultant was particularly critical of Dr C’s use of cryotherapy for premalignant lesions, without histological confi rmation. Dr C’s use


of fl aps drew the following comment from the consultant: ‘what is clear from [Dr C’s] correspondence is that he has no proper surgical training and no concept of the appropriate choice of closure’. The report concluded ‘… all of [Medicare Australia’s] concerns are justifi ed’.

The Director met with Dr C and put to him that a committee was very likely to fi nd that Dr C had engaged in inappropriate practice. Dr C sought a negotiated agreement. Dr C agreed to having practiced inappropriately in the following areas:

n removal of lesions by surgical excision where they would have responded to simpler therapies

n use of single-stage local fl aps in inappropriate circumstances where, because of the size of the lesion, wound closure could have been effected by direct closure.

Dr C agreed to repay $80 000 and to be disqualifi ed from provision of MBS items 45200, 45206 (both skin fl aps) and items 31200 to 31335 (surgical excisions) inclusive for a period of 12 months. The Director formally reprimanded Dr C.

Dr D, General PractitionerMelbourne Vic.

Dr D rendered 16 564 services to 4 853 patients during the review period for a total benefi t of $438 947 which was well above the 99th percentile (14 208 services) for all other active general practitioners in Australia. Dr D rendered 1 238 level C (MBS item 36) consultations during the review period. Medicare Australia was concerned that Dr D had provided services on 278 instances to three or more family members on the same day.

The Director examined Dr D’s medical records and concluded that Dr D did not keep adequate and contemporaneous records that would justify

the MBS item 36 claimed. In particular, the majority of records were found to be brief and lacking clinical detail. There was little evidence recorded of clinical complexity, detailed history or an examination of multiple systems. It was considered that Dr D may have based the consultations on time rather than on complexity, as is required by the Medicare Benefi ts Schedule.

Dr D met with the Director and, following a discussion of the issues, entered into an agreement. Dr D acknowledged having engaged in inappropriate practice by not keeping adequate and contemporaneous records that justifi ed the MBS item 36 services claimed. Dr D agreed to repay $19 984 in Medicare benefi ts and to be reprimanded by the Director.

Dr E, General PractitionerSydney NSW

Dr E practiced in a large medical clinic as a general practitioner. Medicare Australia was concerned that, because Dr E had provided 28 102 services to 10 660 patients for a total benefi t of $830 208 and may not have had the time to provide appropriate services to all patients. Dr E had provided services at almost twice the number of other practitioners at the 99th percentile. Dr E was in fact the busiest general practitioner in Australia at the time. In addition, Dr E had breached the prescribed pattern of services provision of the Act (the 80/20 rule). Dr E had seen 80 or more patients on 32 days during the review period. Medicare Australia was also concerned that Dr E had provided 1 046 care plans (MBS item 720) and 702 review of care plans (MBS item 724). Dr E’s rendering of items 720 and 724 was above the 99th percentile in both instances.

An extensive number of Dr E’s medical records were reviewed. Of Dr E’s item 23 consultations, 28 per cent were found to be inappropriate,


scenario2

This 53-year-old male patient had not been seen by the practitioner for nine months. The patient presented ‘as it was time to get his medications’ and had a concern about cancer. No history was taken. The service provided was an MBS item 36 level C consultation.

Transcript of part of the discussion with the practitioner reads:

Chair Doctor, seeing a man that you are, you know, he makes a reasonable request to be checked out for cancer, what investigations would you normally consider, an alpha-feto protein and a CEA?

Practitioner Yes, it would depend on what sort of cancer, like, are we talking about ---

Chair Well, this is - what, he is in his mid-50s or early 50s?

Practitioner Yes, he’s - yes, he’s 53, I - 53, or something. He is a moderate drinker. He drinks at the P---d Hotel and one of the two boys that he drinks with, they’re all patients of mine, and somebody’s come up with the fact that somebody had cancer of the something or other and he’s probably said, ‘I’m going to go up and see (the Doctor) next week and I’ll mention it to him.’ I can’t remember much more than that.

Chair And in this situation would it be your normal practice to order an alpha-feto protein?

Practitioner Not normal, but something has drawn my attention to it and it’s come up positive.

Chair So what were you looking for when you ordered the alpha-feto protein?

Practitioner The fact that there had been some sort of chronic liver something or other at some stage.

Chair What does an elevated - a signifi cantly elevated alpha-protein suggest?

Practitioner Well, to me it would suggest probably do it again at some stage.

Chair Yes, and if you did it again and it was more elevated what would that suggest to you?

Practitioner I would do an ultrasound and fi nd out what the liver looked like.

Chair And what would you be looking for in the liver with an elevated alpha-protein?

Practitioner Hepatoma.

Chair What would be - would it be much more common to have a bowel cancer than a hepatoma in a man who was worried about cancer?

Practitioner Yes.


as were 100 per cent of care plans, 100 per cent of reviews of care plans, 90 per cent of exercise electrocardiograms, 100 per cent of respiratory function tests, and 100 per cent of the removal of in-growing toenail.

The Director met with Dr E on several occasions to discuss rendering of MBS items. Dr E acknowledged conduct during the review period constituted inappropriate practice and expressed an intention to signifi cantly change the mode of practice. Dr E claimed to have been encouraged and reassured by more senior staff at the medical centre that Dr E’s work was appropriate. Dr E’s case illustrates the effect poor mentoring can have on doctors early in their career.

Dr E signed a negotiated agreement in which Dr E admitted to having engaged in inappropriate practice and agreed to repay the Commonwealth $115 000 and be fully disqualifi ed from Medicare for six weeks. The Director formally reprimanded Dr E.

Dr F, General PractitionerOuter Melbourne Vic.

Medicare Australia referred Dr F because it was concerned that the rendering of 18 174 services for a total Medicare benefi t of $497 599 may have involved inappropriate practice. Dr F’s level of service provision was well above the 99th percentile. Dr F’s Medicare data showed that, if the claimed items were provided in the minimum time possible, it would have required Dr F to work up to 36 hours on some days without a break.

The Director examined Dr F’s medical records; many did not include a history or details of examination, and the clinical content in the claimed long consultations—MBS item 36 (level C)—was inadequate and did not fulfi l the item descriptor. Dr F had claimed many laceration repairs involved deeper structures

and thus attracted a higher fee—there was no supporting evidence for this claim in the records. Practitioners should be aware that the MBS item for a deep laceration refers to repair of structures that lie deep to the superfi cial fat layers of the skin and not to use of absorbable sutures within the fat layer. Dr F was also found to have claimed for a larger skin excision item than was supported by the histological evidence.

Dr F met with the Director and after a discussion of the Director’s fi ndings was willing to enter into a negotiated agreement.

Dr F conceded inappropriate practice and having kept records that were inadequate. Dr F agreed to repay $100 000 in Medicare benefi ts and to be disqualifi ed from providing MBS items 31200 to 31335 inclusive (skin excision items) for a period of six months. Dr F agreed to be reprimanded by the Director.

Dr G, General PractitionerBrisbane Qld

Medicare Australia requested the Director to review Dr G’s provision of services for four reasons:n services per patient—both volume and

frequency were high

n rendering of MBS item 36 (level C) and item 44 (level D) consultations

n initiation of pathology

n prescribing under the PBS.

Services per patient had placed Dr G on the 97th percentile in comparison to all other active general practitioners in Australia. The proportion of Dr G’s level C and level D consultations in relation to level B (MBS item 23) was substantially higher than Dr G’s peers. Dr G’s most commonly initiated pathology tests were for serum B12, folate and iron studies. Medicare Australia was concerned that these investigations may not have been medically necessary.


Oxazepam and diazepam were ranked as Dr G’s fi rst and second most commonly prescribed drugs. Medicare Australia was concerned that these potential drugs of dependence had been prescribed for purposes that may not have been clinically relevant.

A Medicare Australia medical adviser had counselled Dr G in 1998 following a Medical Services Committee of Inquiry fi nding of over-servicing. Dr G had also come to the attention of Medicare Australia in 2001 as possibly having a practice profi le signifi cantly different to Dr G’s peers.

The Director reviewed Dr G’s medical records. There was no recorded evidence of a medical summary, family history, drug lists, past or current medications or allergies. Dr G’s records demonstrated poor management of everyday medical conditions. There was an excessive reliance on the use of benzodiazepines. The Director found Dr G had inadequate management of patients’ psychological problems, mostly recorded as ‘listen and talk’. There was evidence that Dr G did not modify treatment for one patient when this was clearly indicated; Dr G failed to reduce the dose of thyroxine despite the patient being demonstrably thyrotoxic, and another patient was given a further prescription for the same antibiotic despite clear evidence that it was not working.

After a discussion of the Director’s fi ndings, Dr G sought a negotiated agreement. Dr G acknowledged engaging in inappropriate practice by a failure to maintain adequate and contemporaneous records to support the consultations claimed for the MBS items 23, 36 and 44. Dr G further agreed to repay $80 000 in Medicare benefi ts and to be reprimanded by the Director.

Dr H, General PractitionerSydney NSW

Medicare Australia requested a PSR review of Dr H due to a detected high volume of services and a high level of prescribing COX-2 anti-infl ammatory medication to patients under 40 years of age. Dr H had provided 13 857 services to 4 095 patients during the review period for a total benefi t of $424 325 (above the 99th percentile).

The Director examined Dr H’s rendering of MBS item 23 (level B) and item 36 (level C) consultations, prescribing of COX-2 inhibitor drugs and prescribing of alendronate. Following examination of the medical records, it appeared that 60 per cent of Dr H’s prescribing of alendronate did not follow the requirements as set out in the Pharmaceutical Benefi ts Schedule. Although there was evidence in records of osteoporosis on bone density scans, there was no evidence the patient had had a fracture. Dr H seems to have prescribed alendronate on the basis of a diagnosis of osteoporosis alone without any evidence of a fracture to satisfy the PBS requirements. Similarly, when Dr H’s pattern of prescribing COX-2 drugs was examined it was found that many of the patients who had been prescribed these drugs did not fulfi l the requirements of the PBS. These two examples highlight the need for doctors to be mindful of the PBS requirements when prescribing for patients.

On examination of Dr H’s medical records, 80 per cent of the level C consultations were considered inappropriate. Dr H seems to have charged a level C consultation when Dr H dealt with multiple problems, despite the fact that these problems were all minor and could have been adequately covered by charging a level B consultation. Most records examined lacked essential details of history, examination and


scenario3

This is from a Federal Court case where the applicant is seeking an adjournment of the hearing to enable him to prepare his case. The discussion is around the role of a PSR committee.

Transcript of part of the discussion with the applicant practitioner reads:

Practitioner I was being – I was tried by a panel of doctors who had no rules of evidence. They accepted what evidence suited them. They rejected which didn’t suit them. And they ignored which didn’t suit them, and they discredited which didn’t suit them. And as such, I consider that I was being assessed by a very biased panel, and that they had the job to prosecute regardless. If I had been assessed by a panel of true peers who did not have an in-built bias against a doctor like myself who practise complementary nutritional medicine I think I would have had a different hearing altogether. And for me to establish that argument, I would have to be allowed to give examples from the committee’s fi ndings which would indicate clearly the extent to which their ---

His Honour You can go to examples from the committee’s fi ndings by all means, that is not a problem. But let us be clear on a few things. The Professional Service Review Committee was certainly not bound by the rules of evidence like a court. Administrative decision makers very rarely, if ever, are. It is the function of the Professional Services Review Committee to look at all the evidence and to decide what it accepts and what it rejects. Its function is to accept some evidence and reject other evidence in the event of a confl ict. And I can’t say because it happens to reject the evidence that is favourable to you and accept evidence that is unfavourable to you that it is biased. It is doing its job from the view of an impartial outsider which is my point of view. It is doing its job in which it selects which evidence it chooses. It may be forced to discredit some evidence in making its fi ndings but that is its job.

So far as I have seen from looking at the material, samples of its fi ndings, they seem to be more about what you didn’t do as a GP which they said you ought to have done than about what you did as a practitioner in nutritional and complementary medicine.


a management plan and most encounters should have taken less than 20 minutes to complete. There were many records in which nothing at all was recorded.

Dr H met with the Director and following a discussion of the results of the Director’s review agreed to enter into a negotiated agreement, admitting to having engaged in inappropriate practice in that Dr H had:

n written prescriptions not in accordance with PBS restrictions

n failed to keep adequate and contemporaneous records, and

n did not provide suffi cient clinical input to the services to justify the MBS item 36 services claimed.

Dr H also agree to repay to the Commonwealth $30 000 in Medicare benefi ts and to be reprimanded by the Director.

Description of effective fi nal determinations

As the Director is able to publish certain information on practitioners where a fi nal determination comes into effect, details of those, in date of effect order, are given below.

Dr Peter Thomas Tisdall (Case 106)General Practitioner, Kyabram Vic.

See summary under ‘Decisions of the Federal Court and Full Federal Court’ later in this chapter.

Dr Anthony JosephMedical Practitioner, Lithgow NSW


Dr John Warren PiesseGeneral Practitioner, Kew Vic.


Dr Clarence Charles DietmanGeneral Practitioner, Elanora and Surfers Paradise Qld

On 7 December 2000 Medicare Australia sent Dr Dietman to the Director PSR for investigation because it was concerned about his prescribing under the PBS. During 1999 Dr Dietman provided 11 563 services to 4507 patients at a total Medicare benefi t of $288 766 and he prescribed 12 470 items under the PBS at a net cost of $265 171 (including 2320 scripts for narcotics and benzodiazepines). Following an investigation, the Director referred Dr Dietman to a PSR committee on 10 September 2001.

The committee did not use sampling, but instead examined 17 MBS item 23 services drawn from a list of the top 30 patients to whom Dr Dietman prescribed morphine, pethidine, and/or benzodiazepines during the referral period. The committee reported on 5 October 2004 that Dr Dietman had engaged in inappropriate practice in connection with his rendering of some of the services examined because he prescribed pethidine other than in accordance with the listed restrictions in the PBS and/or prescribed narcotics and benzodiazepines where they were not clinically appropriate.

Regarding the latter, the committee found that Dr Dietman often failed to take an adequate history and/or make an adequate examination of patients, provided insuffi cient clinical input, did not formulate an adequate management plan, did not manage apparent drug dependence acceptably, did not monitor the quantities of drugs patients were using, failed to monitor the


health effects of these drugs in patients, and/or kept defi cient medical records.

For example, at four of the services examined, Dr Dietman prescribed pethidine for lumbar and cervical pain that was ‘persistent’ and ‘constant’. He asserted the pain was an acute exacerbation thereby meeting the PBS restrictions. The committee did not accept this explanation as the PBS clearly stated pethidine was for the short-term treatment of acute pain and the pain experienced by the patient was neither short-term nor acute.

On another occasion, Dr Dietman failed to examine a new patient stating ‘there was no point. She’d been examined so many times in the past [by other practitioners], she said, and nobody could fi nd anything wrong with her’.3 Despite this, Dr Dietman continued to prescribe alprazolam along with other medications. He also failed to confi rm the patient’s information with her previous medical practitioners.

The Determining Authority directed on 30 November 2005 that Dr Dietman be reprimanded, counselled, repay Medicare benefi ts of $283, and be fully disqualifi ed for three years. The Final Determination took effect on 9 January 2006.

The committee also reported on 17 February 2004 to the Director, pursuant to section 106XA of the Act, that Dr Dietman’s conduct during 1999 was a signifi cant threat to the life or health of the patients under his care (through his clinical management of patients dependent on narcotics and benzodiazepines). The Director informed the Medical Board of Queensland of these issues. On 7 December 2004, the Queensland Health Practitioner’s Tribunal ordered that Dr Dietman’s registration and licence be cancelled, and that the Board never reregister him.

Dr Bao-Quy Nguyen-PhuocGeneral Practitioner, Greystanes and Merrylands NSW

Medicare Australia referred Dr Nguyen-Phuoc to the Director of PSR on 9 September 2002 because it was concerned about his numbers of services, services per patient, initiation of pathology and prescribing under the PBS. During 2001 Dr Nguyen-Phuoc rendered 13 429 services (including 2018 level C consultations) to 1332 patients at a total Medicare benefi t of $365 005 and provided 60 or more services per day on 45 days in the referral period. His total services exceeded the 97th percentile for all active general practitioners in Australia. He also rendered an average of 10.8 services per patient, which was above the 99th percentile.

During 2001 Dr Nguyen-Phuoc initiated 4 392 pathology services (above the 99th percentile) to 809 of his patients (almost 61 per cent of patients, which was above the 98th percentile). His average of pathology services per patient was 3.30, which was above the 96th percentile.

Dr Nguyen-Phuoc also prescribed 6 130 PBS items at a net benefi t of $189 307 including 305 prescriptions for hydroxocobalamin (vitamin B12) injections (which was above the 99th percentile).

Medicare Australia did note that the demographics of Dr Nguyen-Phuoc’s practice (high concession cardholders and pensioners) might have elevated his statistics compared with other practitioners. Nevertheless, Dr Nguyen-Phuoc’s response to counselling did not allay Medicare Australia’s concerns.

The Director established a committee on 23 May 2003. Following investigations using sampling methodology, it reported that 48 per cent of Dr Nguyen-Phuoc’s MBS

3 Transcript dated 25 November 2003, p.76.


Attendance by a medical practitioner (including a general practitioner, but not including a specialist or consultant physician) … for a health assessment of a patient who is at least 75 (or 55) years old.

These items were introduced to the Medical Benefi ts Schedule (MBS) in November 1999 in recognition that older people and Aboriginal and Torres Strait Islander peoples generally suffer a disproportionate burden of disease, and may often have multiple diagnoses and complex care needs that may be unrecognised and under-treated in the course of a normal encounter with a general practitioner. Appropriately undertaken health assessments have been shown to be associated with improved health outcomes for older people.

In launching these new items in 1999, the then Minister for Health and Aged Care, Dr Michael Wooldridge, said:

This initiative recognises the unrewarded

work of many GPs and will encourage others

to incorporate these important services into

their day-to-day patient care. This measure

enables the health care of these patients to

be addressed through a more fl exible and

responsive match between patients’ needs

and services.

The Medicare benefi t payable for a health assessment refl ects the detailed analysis of the needs of these patients and recognition that a proper assessment requires considerable time and attention to detail. It is not a document that can be produced at the click of a mouse.

In cases seen by Professional Services Review, health assessments appear to have been done by practitioners with little regard to the clinical needs of the patient. In many instances it appears that the benefi t payable was the important driver for the service.

Practice nurses can be a very valuable resource in collating required information. However, PSR committees have found that without the practitioners’ appropriate clinical input and professional opinion, these items do not qualify for payment of a Medicare benefi t. Accordingly, the conduct of these practitioners was found to constitute inappropriate practice.

Health assessments are valuable tools in managing the burden of chronic disease and should not be abused.

For example, in its report, a Committee found:

Dr --- did not provide appropriate clinical input

in all services examined. The way in which he

assessed such things as psychological function,

cognitive status, and social function lacked

his professional input and mostly relied on the

patient’s self assessment …

It is also important for practitioners to understand that the patient’s regular practitioner should, wherever possible, undertake a health assessment. It is common sense that a patient’s regular practitioner

Enhanced Primary Care health assessments (MBS items 700–706)


is in the optimal position to be able to use the information from a health assessment for the patient’s benefi t. These services should not be done opportunistically when a patient presents to a practitioner in a ‘one-off’ situation (for example, when a patient is on holidays). In this regard a Committee found:

In [all] of the services examined … Dr ---

performed a health assessment when it was

not medically necessary. Dr --- would often

perform a health assessment based solely

on the patient’s age, and regardless of their

presentation or whether they had been

regularly seeing another doctor …

And:

Dr --- recorded this patient as having seen

another doctor in the past 6 months, however

failed to record the details of the practitioner or

attempt to gain the patient’s medical record.

Of course computer-generated health assessment pro forma are valuable aids to busy practitioners. However, health assessment pro forma must be designed carefully. A health assessment form made up of boxes for ticking but inadequate space for recording fi ndings and comment is of little therapeutic benefi t to the patient. Older people present with complex problems and a health assessment should refl ect this.

For example, a Committee report noted:

against the questions of ‘Falls in the last 3

months’, Dr --- recorded a ‘y’ for yes, however

he failed to detail when the fall was or what

injuries were sustained by the patient. He also

failed to provide any recommendations to

minimise the falls, such as a home assessment.

Guidance notes at the front of the MBS book (section A.21) give a ‘bare bones’ outline of what is expected to be covered in a health assessment. However, in addition to satisfying MBS requirements, the practice of medicine includes delivering appropriate clinical care. Practitioners whose health assessments are examined by a peer review committee will be judged in accordance with the opinion of the general body of the particular profession/discipline, taking into consideration all of a particular patient’s circumstances. This will include the medical necessity and reason for such an assessment in the fi rst place.

Additional information is available on the following websites:

Royal Australian College of General Practitioners:www.racgp.org.au

Department of Health and Ageing:

www.health.gov.au/epc

Medicare Australia:www.medicareaustralia.gov.au

Enhanced Primary Care health assessments (MBS items 700–706)…cont’d


item 23 services and 69 per cent of his item 36 services involved conduct which would be unacceptable to the general body of general practitioners.

For both item 23 and item 36 services, the committee’s reasons for fi nding inappropriate practice included initiating unnecessary pathology, insuffi cient clinical input (for example, failing to perform appropriate examinations to investigate possibly serious causes of symptoms, to follow up abnormal pathology results, or to implement appropriate management plans), failing to satisfy requirements of the MBS (not taking selective histories or not performing examinations), and keeping defi cient clinical records (lacking essential information and inadequate to enable another practitioner to care for the patient).

The committee reported on 23 December 2003 to the Director of PSR pursuant to section 106XA of the Act that Dr Nguyen-Phuoc’s conduct during 2001 was a signifi cant threat to the life or health of the patients under his care (particularly his poor management of some patients). As required by the Act, the Director informed the New South Wales Medical Board. On 22 August 2005, the Board advised that conditions aimed at improving certain areas of Dr Nguyen-Phuoc’s practice had been placed on his registration.

The Determining Authority directed on 8 February 2006 that Dr Nguyen-Phuoc be reprimanded, counselled, repay Medicare benefi ts of $105 816, and be fully disqualifi ed for six months from all group A1 services (items 1–51, those items available to vocationally registered general practitioners). The Final Determination took effect on 17 March 2006.

Dr Peter Thomas Tisdall (Case 420)General Practitioner, Kyabram Vic.

Medicare Australia referred Dr Tisdall on 21 November 2003 because it was concerned about his numbers of services and his prescribing under the PBS.

During 2002 Dr Tisdall rendered 21 242 services to 4 032 patients at a total Medicare benefi t of $532 200 with an average of 5.27 services per patient. His total services exceeded the 99th percentile for all active general practitioners in Australia. He rendered large numbers of services per day on many occasions: 80–89 services on 66 occasions, 90–99 services on 24 occasions, and 100 or more on two occasions.

During 2002 Dr Tisdall prescribed 36 039 PBS items at a net benefi t of $826 763, including several drugs (rofecoxib, amoxycillin, codeine compounds, diazepam fl uoxetine, simvastatin, atenolol, and omeprazole) at very high percentiles compared with other practitioners. Three patients received between 200 and 400 prescriptions in the referral period.

A committee was established on 30 June 2004. Following investigations using sampling methodology it reported on 31 March 2005 that 69 per cent of Dr Tisdall’s MBS item 23 services involved conduct which would be unacceptable to the general body of general practitioners, because he failed to satisfy requirements of the MBS item descriptor, provided services that were not medically necessary, failed to provide appropriate levels of clinical input, failed to satisfy PBS requirements, prescribed drugs despite the lack of clinical indication and/or kept inadequate medical records of the services.

For example, Dr Tisdall’s notes failed to document crucial conditions and he did not know whether his patients were diabetic, hypertensive,


asthmatic, had chronic conditions or suffered allergies to medications.

Dr Tisdall only dealt with the problems patients presented. Management plans in relation to ongoing health problems, such as diabetes, asthma and cardiac conditions, were either nonexistent or inadequate. As a result patients remained on prescription drugs for long periods of time without proper review.

Dr Tisdall generally took minimal histories and examinations were cursory. Commonly, Dr Tisdall recorded ‘signs in the chest’ for all patients who presented with a cough or bronchitis and he could not see the necessity to establish whether patients smoked if they presented with asthma, bronchitis or a cough; nor did he fi nd it necessary to take temperatures in febrile patients, including children.

Most pulse rates for patients were recorded as ‘84 and regular’ (or occasionally 64 or 74), which the committee believed was not possible. For example, Dr Tisdall recorded the pulse rate of a patient with a mitral valve replacement taking Lanoxin as ‘regular’ on 17 out of 19 services rendered during 2000, but a colleague noted that patient to be in atrial fi brillation on one occasion during that period.

When patients’ blood pressure was measured, Dr Tisdall usually documented ‘no chest pain or shortness of breath’ in identical form. The committee was concerned Dr Tisdall had simply replicated his notes from previous services.

Dr Tisdall prescribed a variety of drugs, such as multiple anti-infl ammatories, analgesics and antibiotics to elderly patients without any instruction on their use. During the committee hearing Dr Tisdall appeared, at times, to be

confused and unsure as to why he had prescribed certain drugs to particular patients. Large dosages of habit-forming drugs were prescribed in an ad hoc manner without any clinical indication. Dosage reviews were mostly non-existent.

On 8 February 2006 the Determining Authority directed that Dr Tisdall be reprimanded, counselled, repay Medicare benefi ts of $286 461 and be fully disqualifi ed for 12 months. The Final Determination took effect on 17 March 2006.

On 21 March 2006, pursuant to section 106X of the Act, the Director informed the Chair of Medicare Participation Review Committees that this was the second effective fi nal determination against Dr Tisdall under the PSR scheme.4

Reasons for requests and referrals

Medicare Australia requests for review

The reasons Medicare Australia requests review of the provision of services by a practitioner generally fall within select and distinct categories. As Medicare Australia only has access to claims data and any information elicited by a medical adviser during a visit, the categories are limited to the results of statistical interrogation. Requests generally fa

Documents

PSR RTP Internals 01 - CFI: Center for Inquiry · 2019. 10. 30. · 7 September 2005. 13 December Dr P eter Thomas TISDALL, Victoria—Dr Tisdall withdrew his application to the High