An independent review into repayment settlements found the process to be fair, but that doesn’t mean there wasn’t coercion, says the AMA.
A review into S92 agreements, in which a practitioner targeted by the Professional Services Review agrees to repay billings, has concluded that there are improvements to be made but that the process is just.
The S92 agreement, based on section 92 of the Health Insurance Act 1973, acts as an admission by the practitioner that MBS items were billed incorrectly and a promise to amend this via repayment and to temporarily stop using certain MBS item numbers, where necessary.
“The PSR scheme is described as a peer review scheme and the negotiated settlement conducted by the Director, PSR, is designed to ensure a more speedy outcome than is available under the formal hearing required by a decision under section 93,” the review, led by Emeritus Professor Robin Creyke, stated.
Despite over 90% of practitioners under PSR review opting for S92 agreements, expressions of distrust and suggestions of duress and undue stress, including an outcry from the AMA in 2019, prompted the Department of Health and Aged Care to commission an inquiry.
The review included submissions and interviews from members of the AMA, DoHAC, officers of the PSR and lawyers regularly involved in representing practitioners.
In its submission to the review, the AMA suggested that the stress of PSR review “contributed to practitioners accepting a section 92 agreement despite not believing that they had, in fact, acted inappropriately regarding their MBS billing practices”.
The association added that it had “raised concerns with the PSR throughout its 27 years in response to concerns about treatment of members and out of concern that the actions – real or perceived – of the PSR are undermining faith in the scheme amongst the profession”.
The AMA recently lost its veto power over appointment of the PSR director and panels after another inquiry led by Dr Pradeep Philip, prompted by reporting last year into Medicare fraud that suggested the PSR lacked independence and was biased towards doctors.
The Creyke review acknowledged the distrust of the scheme.
“The submissions indicated the transparency issues, together with concerns about some of the practices involved in the operation of the scheme, indicated a lack of trust. That deficit has the capacity to undermine a primary goal of the scheme, namely, behavioural change by practitioners involved in inappropriate practice,” Professor Creyke wrote in the report.
The recommendations of the Creyke report focused on addressing issues in transparency during PSR review, education and training about the process and delegations of the responsibilities of the PSR director to address workload concerns.
However, despite acknowledging the pitfalls of the process the report said that resulting stress was “inevitable” and rebutted suggestions that the aim of the PSR was “cost-recovery … at the expense of patient protective objectives” following a massive hike in Medicare rebates recovered in recent years.
Despite being completed a year ago, the report was only released on Wednesday, alongside a response from DoHAC.
Of the 14 key recommendations made by the report, six have been fully completed and one was superseded by the Philip report, according to DoHAC’s response. All others are still active or only partially completed according to the Department’s response to the review.
In its response to the report, the AMA accepted most of the recommendation of the review, saying it generally supported “increased transparency at all stages of the process and reducing the complexity of the MBS”.
The AMA accepted the review’s conclusions that the PSR process was “inherently inquisitorial” and therefore feelings of coercion from practitioners under review may have been in part subjective.
“This does not mean the AMA believes there was no coercion, coercion itself is subjective,” the group said.
It also agreed that the S92 agreement was generally preferable to other modes of PSR review (such as referral to the Committee).
“Many of the issues that the AMA raised on behalf of members who felt coerced also resulted from the lack of public information available and understanding all options available. As the recommendations should alleviate some of these issues, we are satisfied,” the AMA stated.
However, the group felt that the treatment of practitioners under review left much to be desired.
“While it may be appropriate for the process to be inquisitorial it does not mean the process must be adversarial. The PSR should view this as an opportunity to reflect on how to investigate without distressing the person under review. This would limit the lingering distrust many doctors have after the process is concluded.
“The reviewer has rightly acknowledged that the PSR process is highly stressful and, while Doctors’ Health Services is listed in the report, we would like to see the PSR include clear links to the service and for relevant services for other health professionals.”
AMA President Professor Steve Robson told TMR: “It’s too early to determine whether the new guide will improve the way persons under review navigate the process, but we will monitor this closely.
“It can be a difficult process for those involved, so we expect the PSR to treat all persons under review with care and respect.
“It is also too early to say whether the changes implemented from the Review will adequately address concerns around procedural fairness and coercion of practitioners.”
However, Professor Robson said that transparency was a “significant contributor to those feelings of coercion”, an issue that the Creyke report acknowledged and aimed to address in its recommendations.
Although DoHAC’s response to the report suggested steps are under way to lessen the terror inflicted upon practitioners under PSR review, there’s little incentive for it to give targeted doctors an easy run.
As declared in a recent opinion piece by former PSR director Dr Bill Coote, the true value of the PSR to the government lies not in the amount of money it recoups from doctors each year, but in the deterrent effect it has on others: “The benefits to the Commonwealth exchequer from the PSR come not from actual repayments but from awareness among practitioners that grossly unusual billing patterns will be investigated.”
