‘Lack of transparency a key theme’: Section 92 report

Jolyon Attwooll

10/08/2023 4:15:17 PM

A review that focused on the process for agreements between health professionals and the PSR includes 14 recommendations for change.

Books and stethoscope
There have been previous reviews into the PSR but this is the first to focus on section 92.

A report into the way health practitioners resolve Professional Services Review (PSR) compliance investigations has acknowledged ‘lack of transparency’ as a fundamental concern.
The ‘Report of Review of Section 92 of the Health Insurance Act 1973’ was published this week on the Department for Health and Aged Care (DoH) website – a year after it was completed.
Carried out by law professor Robin Creyke, it includes recommendations designed to improve how health practitioners who are referred to the PSR negotiate an agreement – a process that takes place under section 92 of the legislation.
The report notes that a lack of transparency in the process is ‘a key theme’ among submissions made to the review.
More information should be published about the duration of the process and compliance outcomes, it concludes.
Dr Cathryn Hester, member of the RACGP Expert Committee – Funding and Health System Reform (REC–FHSR), said she would welcome the move to encourage more transparency.
However, she is concerned about one of two observations in the report, subsequent to the formal recommendations, which suggests MBS billing training should be required as part of mandatory continuing professional development (CPD) at least every three years.
‘I am not in favour of MBS compliance education being compulsory during each triennium,’ Dr Hester told newsGP.
‘GPs should retain the right to choose how they best allocate their hours of CPD work. When GPs make their learning plans for the year ahead some will choose to upskill and refresh their knowledge in MBS compliance, but for others this would be a very poor use of their time.
‘GPs themselves are the best judge of this and should have agency over this.’
Designed to allow a speedier resolution of cases than would happen under the formal PSR committee review process, section 92 has been controversial among doctors’ groups.
The RACGP’s submission to the review in December 2021 outlined concerns about practitioners being pressured into accepting agreements. 
‘While it is acknowledged that practitioners choose to enter into a section 92 agreement, feedback suggests they do not always feel empowered in this decision, in part because they are being asked to make a voluntary acknowledgment of inappropriate activity, without always understanding how they are at fault,’ the college submission stated.  
A section 92 agreement can only be reached if the health practitioner involved acknowledges ‘inappropriate practice’.
Several submissions said that requirement should be removed, but the process was supported by Professor Creyke.
‘The acknowledgement is a pre-requisite to use of the section 92 process,’ the report states.
‘The raising and recovery of a debt by the Commonwealth for amounts billed inappropriately could not legally be effected without that acknowledgement.
‘Better publicisation of the requirement would clarify the reasons for this aspect of the process.’
Another recommendation would allow the PSR Director to release details of section 92 agreements to AHPRA and other regulatory bodies ‘if it is in the public interest to do so’ – a move the DoH says is ‘being considered’.  
The report also suggests that only consultants with qualifications and experience ‘appropriate for the case on which advice is sought’ be appointed to work with the PSR, and that legislation be amended to allow the PSR Director to delegate duties.
The RACGP has previously welcomed a proposal to create a new statutory Associate Director role, which it hopes ‘will expedite the PSR process for practitioners involved’.
While there have been previous reviews into the PSR, it is the first time one has focused on the processes under section 92.
Earlier this year, the Independent Review of Medicare Integrity and Compliance report was published, with broader suggestions for PSR reform – some of which were also addressed in the review conducted by Professor Creyke.
The Medicare integrity analysis by health economist Dr Pradeep Philip concluded that ‘the overwhelming majority of practitioners’ are ‘well-meaning and protective’ of the care they provide to patients.
‘The data shows that very few of the billing transactions in the Medicare system are subject to the PRP or PSR processes,’ he wrote.
‘Yet, there is a disproportionate amount of “fear” of the PSR in the system.
‘While regulators should, at one level, be feared, there are questions of process and fairness in the workings of the current system which unnecessarily drive “fear” – namely, the lack of timeliness and the administrative burden to comply with the system.’
Last month, the RACGP stated it has ‘no objection’ to legislation aimed at improving PSR processes as long as it does not reduce the level of consultation between the PSR and the college.
A DoH response to the Creyke review noted that several of its recommendations have already been put in place.
According to the PSR annual report, there were 57 negotiated agreements in cases referred to the PSR in 2021–22, with repayment orders totalling $19,021,883.
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Dr Justin Oughton   12/08/2023 8:48:58 AM

The ability for Medicare to shift the posts of appropriate billing practices as required to force changes in billing behaviour seems to be ignored. Examples that come to mind are the combining of billing numbers like 10997 and care plans, where a nurse and doctor have been involved in the patients care. There is no mention of exclusivity in either of the associated billing descriptions, and yet Medicare has suddenly decided they are exclusive and has used this as a trigger for audits. Similarly as with the use of vacuum ear extraction under microscope. Medicare decided that only certain specialists could bill this item number, despite the absence of any mention of this in the item descriptors, and despite the importance of access to this procedure for the management of Recalcitrant otitis media. Up to this point Medical supply companies had been selling the equipment to gps under the assumption that the item number could be billed.

Dr Justin Oughton   12/08/2023 9:03:57 AM

It seems that the government is somewhat blind to the fact that that the more onerous compliance becomes, and the more risky it is for GPs it will make the job less attractive for students to pursue. I guess either way they will save money as less GPs = less rebates. Maybe that is the agenda. I remember receiving a “nudge letter” thinly disguised as education telling me that I had ordered 3 CT scans of the lumbar spine that month, while my peer average was 1.2 scans, along with an educational blurb about when not to order CT scans. Ironically one of those CT scans turned out to be an epidural abscess, and 6 months before I had been dragged into litigation for delay to diagnosis of cauda equina syndrome, with the professional witness, neurosurgeon-for-hire, claiming I should have performed a CT scan 2 weeks earlier than it was done, despite the pt not meeting the criteria outlined in the subsequent nudge letter. The result of the nudge was just to reinforce how awful my job was.