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

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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