24 August 2021

A case the PSR doesn’t want you to know about

Comment PSR

In this piece I will present a few interesting points from the judgement on my Federal Court case, but first I want to draw your attention to another case that the PSR has been in no hurry to publicise.

Let us start with some interesting facts about the PSR process.

Since 2017, there has been a more than 300% increase in PSR recovery orders. Why? Was there a sudden across-the-board increase in doctors inappropriately billing?

Perhaps if we can identify the actual problem, it may be a start to understand how we can find the solution. We have already identified, quite extensively, from my case judgement, that yes, there is a problem with the legislation that needs to be considered and rectified politically.

However, it looks like we may be missing another part of a bigger problem, beyond the legislation.  

Recently I received a few emails from doctors who avidly read the PSR Director’s Report. Some things you might think relevant do not appear there. Obviously, it’s a report created by the PSR, so it can basically report what it wants and not report on things it doesn’t want to report on.

However, perhaps as followers of these reports, diligently trying our best to stay compliant with the regulations, I thought it would be important to know about all the pertinent cases and findings made against or for the PSR system.  

Here’s one omission: in September 2019 after fighting for nearly 18 months to get my case heard for trial, we defeated the PSR’s application for summary judgement – almost depleting all the funds we had to just get ourselves to trial.  

This was not reported in the Director’s report.  

In JanuaryFebruary and April 2021 in the Director’s update there is no mention of the PSR’s losses against another practitioner, Dr David Kitchen.   

Here are the court documents filed in this Federal Court challenge which shows how Dr Kitchen well and truly won this battle.  

The basis of this win was the following facts noted in the statement of claim and documents filed in court and read in court (slightly edited here).

Dr Kitchen is an ophthalmologist a fellow of the Royal Australian and New Zealand College of Ophthalmologists and of the Royal Australasian College of Surgeons, both of 26 years standing.

The Professional Services Review began interrogating him in June 2017 for his use of various specialist item numbers.

In 2018, he provided voluminous written submissions to the Director (96 pages and 207 attachments) and provided a comprehensive answer to the matters of concerns expressed in the Quinlivan August 2018 report.  

In the Federal Court case (QUD 699/2019 on 2 February 2021), it was declared that contrary to s89C (2) of the Act, the Director did not properly consider Dr Kitchen’s 2018 submissions and therefore the referral made to the Committee was unlawful. 

This was because through a process of discovery in court, it was found that the Director had taken only 17 minutes to consider these substantial submissions before deciding to “refer everything” to the Committee. These concerns were voiced by Dr Kitchen but it was not taken into consideration until the internal documents illustrating this conduct were discovered, upon which the Director’s decision was quashed and subsequent investigations were ordered.

In April a cost order was made against the PSR for these proceedings, and Dr Kitchen is yet to hear the outcome of whether he will be awarded party-party cost or indemnity cost for this proceeding.  

None of this was reported in the Director’s update.

In fact, just two weeks prior to my case being heard, we came to know about this ruling and asked for further discovery of documents – Dr Kitchen’s situation was running simultaneously with mine and several other cases, and we wanted to find out if this was a common occurrence. Unfortunately the application for discovery for this document was strenuously opposed by the Commonwealth and was not allowed.  

The current PSR Director, Professor Julie Quinlivan, is now facing a Supreme court challenge initiated by Dr Kitchen (pursuant to section 58 of the Civil Proceedings Act 2011 (Qld)) for damages, including exemplary damages for misfeasance in public office. She must respond with a defence by 3 September.  

What does all this mean? Perhaps this means that if you have been affected by the PSR process since 2017, it is advisable for you to contact us for further information and support.  

We cannot dispute that we need a system like the PSR which keeps all Medicare billing health professionals accountable and compliant with their billing.

But is the system as presently administered an effective and just way to do that?

Medicare audit anxiety is a real phenomenon – I have met many of the clinicians who have gone through this process, and I have yet to meet a single practitioner who reports they have no anxiety symptoms post this process. 

The PSR journey is not something you wish upon your greatest enemies. 

It financially, emotionally and professionally drains you to the point of devastation.  

There is no bullet-proof mechanism of avoiding or surviving this, which perhaps is the actual purpose behind this process. However, often, good clinicians are affected by this, resulting in most leaving the profession.  

The two paths that can be taken currently are:

1) Legal: if you are going through this process make sure your submissions are done by experts from the beginning and if there are potential legal errors identified by your experts this can be challenged in court.

2) Political Reform: AHPAS is now in the process of contacting various politicians in each state and territory to request provisions of legislative reform around the laws empowering the PSR scheme.  

Back to my case, and a few points of general interest. In his reasons for dismissing my application, Justice Logan:

  • Said the Health Insurance Act sets up “a professional evaluative standard” rather than an objective standard, and that the allegation around there being no set standard is a “straw man” argument
  • Suggested it would be appropriate for HIA to be taught in medical school
  • Suggested that education on the HIA should form part of compulsory professional development
  • Noted that “reasonable minds might reasonably differ” as to whether my conduct constituted inappropriate conduct, but that this does not make the Committee’s findings unreasonable
  • Found that it was not for the Court to interfere in the investigation conducted by the Committee 
  • Found that the HIA did not require that the Committee be of a similar level of experience to the health professional under investigation 
  • Said the policy considerations that might arise as a result of systemic issues with Medicare are not a matter for the Court, but are a matter of policy 
  • Discussed the Constitutional challenge to s106ZR, and ultimately found that because s106ZR was limited in its scope, it did not offend the implied freedom of political communication.

On costs, Logan J noted that my proceedings had been brought in good faith, and that it was “brave” to bring proceedings of this nature against the government.

In my next article, I will be listing the politicians we are trying to contact. We will also publish the proposed reform document that we are creating for you all to comment on, and if anybody is interested in participating in this process of reform, please email us at info@ahpas.com.au.

Dr Anchita Karmakar is the CEO and founder of AHPAS (Australian Health Professionals Advisory Service)

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