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Doctors Versus The System

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At the recent senate estimates in November, I spoke with Dr Antonio Di Dio, Director of Professional Review Services, asking why the current system was still biased against doctors. He denied this was the case, even though the agency maintains a 100% conviction rate of doctors in a system that does not allow merit appeals or the ability to challenge the facts used against a doctor.

Dr Di Dio conceded that the agency had not undergone a review, despite it being suggested many years ago during an inquiry. Senator Gallagher added that a review was unnecessary, asserting that the system was functioning well, despite evidence to the contrary.

Transcript

Senator ROBERTS: Thank you. Thank you for being here. Annual reports of the PSR, directed to the health minister, make no attempt whatsoever to disguise the fact that PSR operates in part as a debt recovery system from doctors of Medicare funds. Given that admissions have earlier been made before Senate estimates that committees are not chaired by a judge, that merit review on appeal is not allowed, and that no cross-examination of the committee’s case ever occurs, why is it not reasonable to conclude that PSR operates similarly to a robodebt scheme for doctors, with doctors who’ve come before it having as little meaningful defence as did robodebt’s victims? 

Dr Di Dio: That’s certainly not my view. When a practitioner is referred to PSR, a small minority of them are referred to a PSR committee. Last year it was 12 out of 109 referrals. When a practitioner appears before a PSR committee, the committee process is one in which peers interview and discuss with the practitioner under review whether or not, in their view, inappropriate practice has occurred. At every stage of that committee process, numerous times per day, the committee may say, ‘We have found preliminary concerns with this matter and invite your response.’ In other words, the entire process is made up of taking into account the practitioner’s response, over and over again. Furthermore, the practitioner, of course, is invited to bring their legal representative. In terms of a merits review, there is no formal merits review process as that term is commonly known. However, there are opportunities during and after the committee process to respond to the committee’s findings. For example, at the end of a committee, despite having opportunities to respond verbally all through the process, the practitioner under review also is invited, either themselves or through their legal representative, to make final comments about anything that has come up during the committee process. Furthermore, after the committee process is completed, there is a draft report issued by the committee to the practitioner under review, inviting comment and submissions to that draft report. So those committee findings are still deemed preliminary findings, because they are still awaiting further response and information from the practitioner under review. 

Senator ROBERTS: That sounds wonderful, but it does not discuss the fact that the PSR’s case cannot be scrutinised in terms of evidence. You omit that. Why do you repeatedly omit that? Every time we come to Senate estimates, you omit that. That’s fundamental to justice. 

Dr Di Dio: The PSR process is one in which, in order to elicit whether or not inappropriate practice has occurred, people’s medical records are reviewed. 

Senator ROBERTS: But your data is not open to scrutiny; your case is not open to scrutiny. The facts cannot be disputed—cannot even be challenged. 

Mr Topperwien: There are no facts found until the end of the committee process. There are no findings of fact until after the committee process, after all of the evidence has come in. Yes, the committee receives billing data from Medicare, but that’s open to inquiry and investigation as to how accurate that is, and that comes up often in hearings as to whether that data is accurate. And it’s open, then, for the practitioner to put on evidence to counter that data. And that happens regularly at committee hearings. The hearing is an investigation. It isn’t a prosecution. So the committee is inquiring into the information that the committee has already received in the way of the billing data and gets the patient records to see how they match up to what’s been billed as to whether the doctor has fulfilled their obligation to keep adequate and contemporaneous notes of what they did, and to then investigate, ‘What was this practitioner’s conduct in connection with the provision of these services?’ It’s only after they’ve conducted a full inquiry investigation, asked lots of questions, and looked at all of the evidence, that they then may find facts, which may show that the doctor has engaged in inappropriate conduct. 

Senator ROBERTS: I’ll come back. I don’t want an answer to this just yet, but I want to say that there has never been a comprehensive review of the process, despite a 2011 Senate inquiry saying there should be a comprehensive review within 12 months. So let me continue. Many of the annual reports of the PSR director, to the health minister, contain the assertion that the goals for care planning must accord with the acronym SMART, specific, measurable, achievable, relevant and time-based—notwithstanding that no explicit allusion to specific SMART goals appears in the care planning MBS descriptor. Given that, essentially, all doctors who appear before PSR committees who do care plans are found guilty, and given that merit review of the committee’s case is never allowed, how can the committee’s finding of all doctors’ care plans as being unacceptable be valid? 

Mr Topperwien: The committee examines random samples, usually, of the practitioner’s care plans. The practitioners who are examining those are practitioners who themselves do care plans. They are experts in what the general body of their specialty or profession do in their practice. And the reality is the law requires adequate records to be kept, and care plans that are meaningful. And, quite often, the sorts of care plans that committees see are blank templates. There’s nothing in them other than the patient’s name with goals that are totally meaningless. And so those sorts of care plans are ones on which they will find, ‘This is not a care plan that’s adequate and of any use to this patient. It is not a clinically relevant service that’s been provided.’ 

Dr Di Dio: Senator, if it helps, I do care plans every couple of weeks in my practice. I could take you through what one should like. But I think what you really want to know is: this is a peer review scheme, and so what the people on committees determine is what the general body of peers would be considering is appropriate or not. 

Senator ROBERTS: This is an apparent peer review scheme, but it’s not. You claimed in the past that it is peer reviewed, and we’ve given examples where it’s not. Your predecessor, I think, offered to have a conversation with me—on the basis that it was not to discuss a specific doctor’s case; he made that clear. I accepted that offer straightaway, and I said, ‘That’s no problem at all.’ Soon after, he left. So we’ve never had that. Would you be willing to give us a briefing and have an exchange on that? 

Dr Di Dio: I think you’ll find that the person who had that conversation with you was me, Senator.  

Senator ROBERTS: No, it wasn’t. 

Dr Di Dio: Right. Well, Senator, I can further discuss— 

Senator ROBERTS: Are you willing to have a meeting with us and give us a briefing? 

Dr Di Dio: Senator, in order for me to do that, I need to get the appropriate permissions from my own minister, but, should that be the case, I would be very pleased to discuss with you or anybody else how the PSR system works—on the condition, of course, that it does not discuss any particular case or any particular practitioner. I can refer to some correspondence that I’ve had with you about this in the past, if you wish. 

Senator ROBERTS: Sure. 

Dr Di Dio: We most recently corresponded with you on 21 March of this year and confirmed that we’d offered to meet with you in the context of providing general information about the PSR scheme and would happily provide that general information, and additionally on any questions you may have on procedural fairness. We said the discussion would not be able to include any specific matter or case before us and that I was not able to meet with any other person being reviewed or their legal representative or anyone else. 

Senator ROBERTS: Does that still apply? 

Dr Di Dio: Well, yes, because— 

Senator ROBERTS: Good. Okay, let’s accept it, and we’ll set up a date. 

Dr Di Dio: Well, nice to hear back from you, Senator. 

Senator ROBERTS: Good. Many doctors, and all the medical defence organisations, complain emphatically that committees routinely make up rules in passing their judgement. Why is this not solid evidence of dysfunction, injustice and systemic injustice? 

Dr Di Dio: I meet regularly with the medical defence organisations, most recently less than two weeks ago, and I present regularly to thousands of doctors in toto, various colleges and representative groups. That is not the impression that I get, talking to hundreds of doctors around the country. We attempt to do what we exist to do, which is to protect the Commonwealth from paying from inappropriate health care and to protect citizens from potential harms from inappropriate health care through a process that we consider to be as fair as possible. 

Senator ROBERTS: And we applaud that. We just want procedural fairness and justice. Minister, when will this government review this broken system? It’s got to be changed. 

Senator Gallagher: Well, I don’t accept that it is broken, Senator Roberts. That’s your assertion. The department provides advice to the minister about the operations of all parts of the health portfolio, and we are very confident in the processes and the leadership that’s being provided through the Professional Services Review system. 

Senator ROBERTS: There’s been no review since the 2011 Senate inquiry saying there should be a comprehensive review within 12 months—no review. Clearly, it was a problem back then. 

Ms Shakespeare: Senator, there have been reviews of aspects of the PSR scheme on several occasions since then. I am happy to— 

Senator ROBERTS: Could I have, on notice, those reviews and the dates, please, and the topics and the scope? 

Ms Shakespeare: Certainly. 

Senator ROBERTS: Thank you, Chair. 

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Questions Remain Unanswered on Strike Rate Against Doctors

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During the June Estimates, I asked the Professional Services Review Scheme (PSRS) why there was a 100% strike rate against doctors. I was informed that only a small number of cases make it to the Committee stage after several preliminary steps.

The representative assured me that the system is fair, although she admitted that appeals are restricted to procedural issues and cannot address the merits of the evidence.

While she mentioned that the Committee consists of the doctor’s peers, she did not address my concern about the 100% strike rate.

Transcript

Senator ROBERTS: Thank you for appearing again today. At previous estimates, I was told that administrative investigations of doctors conducted by the Professional Services Review Scheme were done in a completely fair manner. Your annual reports reveal that, since 2008, there have been 173 doctors who faced administrative investigations by committees leading to sanctions. How many of those prosecutions were successful, leading to sanctions being placed upon doctors, including suspension of practice?  

Mr Topperwien: The 173 practitioners that you refer to were the ones who were referred to committees after a long process. We’ve in fact been asked to look at over 1,800 practitioners. Those 173 were ones out of the 1,800 that we’ve looked at that the director would have had concerns that there was a possibility that they had engaged in inappropriate practice. That concern that the director would have had for each of those cases would have followed an exhaustive process by which they would have looked at samples of their patient records, interviewed the practitioner, looked at the submissions that had been made and then formed the view that for each of those practitioners there was a chance that they had engaged in inappropriate practice. They were not prepared, probably for most of them, to enter into an agreement or the director was so concerned about what looked like their conduct that they thought it ought to go to a committee of their peers to fully investigate what had actually gone on. So the small number of practitioners who end up going to a committee have gone through an exhaustive process prior to even getting there. And, as I said, they came out of 1,800 practitioners.  

Senator ROBERTS: Thank you. As I said, there have been 173 doctors who have faced administrative investigations by committees, which is what you’re confirming. I’ve asked you how many were successful. You said 100—  

Mr Topperwien: I’m aware that there have been practitioners who have gone to committees where there has been no adverse outcome for them.  

Senator ROBERTS: My understanding is that the number of those who were suspended were 171, not including two doctors who passed away.  

Mr Topperwien: I’m unable to confirm here and now what those numbers actually are, but I can take that on notice and get back to you with the actual numbers of cases that have gone to committees and, in broad terms, the nature of the outcomes of those cases.  

Senator ROBERTS: Thank you. I’d be happy with that on notice. But my understanding is that, as I said just then, the number of prosecutions that were successful for the review scheme, out of 173, were 171, not including two doctors who passed away. So that’s a strike rate of 100 per cent against the doctors.  

Mr Topperwien: Of those who went to committees.  

Senator ROBERTS: That’s what I’m—  

Mr Topperwien: Of the 1,800 that we started looking at in the first place, those 1,800 came from many thousands that were first examined by the department.  

Senator ROBERTS: I accept that. I accept the 1,800 and 173. But, of the 173, there was a 100 per cent strike rate against the doctors. I went to a barrister to check this out—a reliable barrister who used to teach in constitutional law as well as practice and worked in administration for governments. This finding is an extraordinary result, because no court system goes even close to a 100 per cent conviction rate. How can the scheme claim a fair system with a 100 per cent rate of finding against doctors?  

Dr Mahoney: Would it help if I gave some extra context around the cases that come to Professional Services Review?  

Senator ROBERTS: I just want to know the answer to the question. How can a system claim to be fair when it’s a 100 per cent strike rate?  

Dr Mahoney: If I give you the context around it, that will explain it. The department may wish to add to what I’m saying, but there are a whole range of compliance activities that are undertaken by the Department of Health and Aged Care. We talk about a pyramid. You may have heard of it. At the bottom of the pyramid, the very largest number, are the practitioners who get an educational activity helping them to understand why their billing might need to be looked at or how to bill correctly. The next step above that are what are called targeted letters, where practitioners who have been identified as perhaps needing a little bit more help will get a letter that gives them some information about their own data and just asking them to look at it. That’s really all those letters do. The next step that the department has in place is an audit program. 

Senator ROBERTS: What’s it called?  

Dr Mahoney: Audit.  

Senator ROBERTS: Thank you.  

Dr Mahoney: That sometimes gets confused with other activities. But the audit program, again, is very specific. It’s done by the department. I can talk about this because my previous role was exactly in doing the work with the compliance section of the department. With audit, it’s very specific. Again, it’s particular Medicare item requirements that can be audited, as in, ‘Did you do a specific thing?’—was there a referral, for example, for a service that requires a referral. The team that do the audit work, that’s what they do. They ask a practitioner to send in a set of documents with the proof that they’ve met a requirement. That’s a compliance activity. They’re the next level up in the pyramid. Then we come up to what’s called the Practitioner Review Program. That Practitioner Review Program is going up the pyramid where the concerns about the practitioner’s billing data or prescribing data is of more concern than any of those lower levels. That, again, is a much smaller group. For those practitioners, their data is looked at very thoroughly by senior medical practitioners who are experienced in practice as well as in looking at this data. If those practitioners think that there needs to be some intervention—the department’s medical staff—then that practitioner is contacted. They are given their billing data. They are given an opportunity to have an interview with one of the medical advisers in the department. The outcomes of those—there are three possible outcomes. The first is that the practitioner has explained their billing data, it makes sense and there is no further action taken. The second, and this is by far the largest group, is where there is some concern. The practitioner is given education about why there is concern with their billing and they are given what is called a period of review to change or to make changes to what the issues are. Then their data is looked at again. Again, the majority of practitioners understand that. They take that on board, they learn it and there’s no penalty. This is all what’s gone on before anybody gets to PSR. The third possible outcome for cases that are of really serious concern to the medical advisers in the department is that those cases are referred to Professional Services Review for the next stage up the pyramid. So we’re getting quite close to the top now. The only ones above us are those that are outright fraud that we don’t deal with. That’s not compliance. I need to add a little bit to that. After interview, a very small number of practitioners will go straight—will get referred to PSR because of the level of their concerns. A small number of practitioners who are given that six-month period of review do not make changes and they may go to PSR as well when their data is reviewed after six months. Then there’s the third group of practitioners that are referred to Professional Services Review. As you would know, under the 80/20 and 30/20 rules, if a practitioner breaches those then the department’s required by law to refer those cases to Professional Services Review. So the only cases that we are looking at in Professional Services Review are those that have already been through all of that and they are near the top of the pyramid. So that’s the context around the numbers that you’re talking about. The further context, as Mr Topperwien has said, is that even of those that get to Professional Services Review, only a small number go to committee. So I hope that helped.  

Senator ROBERTS: That has. It’s confirmed some of my fears, but I’ll explain that in a minute if we need to. Isn’t this strike rate of 100 per cent of those who get referred to a committee indicative of a system loaded against doctors with little or no chance of a doctor being able to raise a fair defence to allegations made?  

Dr Mahoney: No. They have chances right through the whole process, as I’ve described, or all the processes at the department of health.  

Senator ROBERTS: I got that. You’ve given me the answer—it’s no, in your view.  

Dr Mahoney: At Professional Services Review, they again have chances to explain, describe and discuss.  

Senator ROBERTS: The system is loaded against doctors, in our view, having listened to some doctors and consulted legal advice. Is it because in the process there’s no meaningful opportunity to challenge or explain the evidence being given against the doctor? My understanding of legal practice, which is pretty limited, is that there are two aspects. A case has to be taken through the process properly. If it’s not taken through the process properly, it’s dismissed. But if it’s taken through the process properly, then they consult the evidence. If the evidence is sound, there’s a conviction. If the evidence is not sound, it’s dismissed. So process has to be followed and evidence has to be strong. Now, doctors cannot appeal the merits of the evidence. They can appeal the process. So your process is fine, but they can’t appeal the evidence. Is that correct?  

Mr Topperwien: I’d just say here that the practitioner has multiple opportunities at the PSR end of the process to challenge the evidence, bring their own evidence and have their own witnesses. They have a lawyer in virtually every case, and the evidence that is the—the substantive evidence on which the committee makes findings is the doctor’s own practice notes. It’s the doctor’s own evidence that shows that they have engaged in inappropriate practice. They have every opportunity to put other evidence if they choose to. 

Senator ROBERTS: Isn’t it correct that a result of the process is that appeals are limited to arguments about process and not about merit or evidence of the case?  

Mr Topperwien: They have an opportunity to take an action in the Federal Court at any stage of the process about whether we have acted fairly and have taken into account irrelevant considerations. We’ve not taken into account irrelevant considerations. Those are the bases on which a challenge may be made in the court.  

Senator ROBERTS: So, as I said, the doctor can appeal the process but not appeal the merits of the evidence.  

Mr Topperwien: That’s right.  

Ms Shakespeare: Senator, perhaps I’d add some more context about the scheme—the PSR. Where people are referred to committees, that’s a committee of their clinical peers that hears evidence and makes recommendations and determinations about their clinical practice from a place of clinical expertise.  

Senator ROBERTS: In theory that’s correct. But in practice it’s not.  

Ms Shakespeare: I don’t think we would accept that either.  

Senator ROBERTS: Okay. At the next Senate estimates maybe we can talk further—or maybe before then if you’d be willing to. Would you be willing to engage in a conversation before then?  

Ms Shakespeare: About the makeup of committees for the PSR? I think that’s probably something that we would be able to engage in.  

CHAIR: Senator, via the minister’s office we can seek a briefing for you.  

Senator ROBERTS: Minister, an earlier review of the scheme said the scheme must be overhauled to make it fair and allow appeals to be made on merit. What’s your government’s timetable for a review of this system?  

Ms Quinn: Senator, there have been a number of reviews conducted around the Professional Services Review. You would understand that it’s established under the Health Insurance Act, so it is a lawful—  

Senator ROBERTS: I’ve got no doubt it’s lawful.  

Ms Quinn: And considered by the parliament of the time. Concerns about possible inappropriate practice, as you said, are able to be elevated to the courts.  

Senator ROBERTS: I understand that perfectly. I’ve had it explained before and now again today very well. I understand that it was recommended earlier in a review that the scheme must be overhauled. I want to know the progress of that and when is it going to be done.  

Senator Gallagher: Let me see if there’s—  

Senator ROBERTS: Thank you, Minister. I also make it clear that fraud hurts the taxpayers. I detest it and it must stop. So we’ve got no problems there. I also can see that a doctor who stands up and has got the courage of his or her convictions can go right through that process and won’t buckle. I can see some doctors will buckle because it’s just too much. They’ll let go. So some strong doctors, I believe, are being punished. That’s what I would like to talk to. I don’t want to raise individual cases with you. That’s not my position. I’m not an advocate for individual cases. I just wanted to understand the process better. So I look forward to a conversation.  

Mr Topperwien: We are happy to talk to you in general terms about how the process works, the way that the scheme is structured, the qualifications of the practitioners who are on our panel and who are appointed to committees and how that appointment process works.  

Senator ROBERTS: Thank you.  

CHAIR: Thank you, Senator Roberts. 

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Professional Services Review Scheme Under Question

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The Professional Services Review was created to review misconduct of health professionals in a Medicare context, commonly invoked where there are allegations of over-servicing or Medicare fraud.

This Committee seems to be a law unto itself.

Dr Di Dio confirmed that there is no appeal process from conclusions of the Committee based on Merit. The only appeals available are based on errors of law that would include taking into account evidence that was not relevant or excluding evidence that was relevant. Lawyer Mr Topperwein confirmed that the weight to be placed on evidence was that which the Committee chose to give. He said that the Committee was both the investigator and the judge of the facts with no appeal on merit.

Mr Topperwein could provide no explanation as to why there were no lawyers on the Committee, to ensure the processes were fair and just, stating that the committee comprises practitioner peers.

The concerns about the Review Scheme being a law unto itself seem to be valid, it looks like we need some serious reform in this area.

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