Ioakim Alekozoglou and Medicare Participation Review Committee

[2012] AATA 937

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2012/1657

Re

Ioakim Alekozoglou

APPLICANT

And

Medicare Participation Review Committee

RESPONDENT

DECISION

Tribunal
Deputy President J W Constance
Dr R Blakley, Member

Date 21 December 2012

Place Melbourne
The reviewable decision of the Medicare Participation Review Committee made 16 March 2012 is varied to read as follows:
Pursuant to section 124FAA of the Health Insurance Act 1973 (Cth) Dr Ioakim Alekozoglou Medical Practitioner who practises at 138 Melville Road, Brunswick West Victoria is fully disqualified for a period of three (3) months, such period of disqualification to commence on 14 March 2013.

...................[sgd].....................................................
Deputy President J W Constance
CATCHWORDS
MEDICARE PARTICIPATION - Professional Services Review Scheme – bulk-billing practice - elderly, Greek-speaking patients – repeated instances of inappropriate practice – claiming payment for services not properly provided - Team Care Arrangements – high volume of services - inadequate medical records - inappropriate custom of leaving pathology and diagnostic imaging test results and medical records with patients – failure to adequately address findings of previous determinations - repayment of amount received for inappropriate services – period of disqualification - decision under review varied but only as to time at which disqualification period is to commence.
LEGISLATION
Health Insurance Act 1973 (Cth) ss 3, 4, 10, 20, 20A, 79, Part VAA, 124E, 124EB, 124C, 124FAA, 124G, 124H, 124J, 124K, 124L, 124M, 124N, 124P, 124R.

Health Insurance (Diagnostic Imaging Services Table) Regulations 2011 (Cth).
Health Insurance (General Medical Services Table) Regulations 2011 (Cth).
Health Insurance (Pathology Services Table) Regulations 2011 (Cth).

Health Insurance (Professional Services Review) Regulations 1999 (Cth) rr 5, 6.
SECONDARY MATERIALS
Commonwealth Department of Health and Ageing, Medicare Benefits Schedule Book, Items 66602, 721, 723, 731.
REASONS FOR DECISION
Deputy President J W Constance
Dr R Blakley, Member
Date of Written Reasons 13 February 2013
INTRODUCTION

Dr Alekozoglou is a Medical Practitioner who has conducted a bulk-billing practice in Melbourne for many years.
In 2011 his practice was reviewed under the Professional Services Review Scheme, part of the Medicare Scheme established by the Health Insurance Act 1973 (Cth). As a result of this review a Medicare Participation Review Committee determined that Dr Alekozoglou be fully disqualified from providing services under the Act for a period of three months.
Dr Alekozoglou has applied to the Tribunal to review this decision.
For the reasons which follow the decision under review will be varied, but only as to the time at which the disqualification period is to commence.
LEGISLATIVE BACKGROUND
The Committee has provided to the Tribunal concise summaries of the Medicare Scheme so far as is relevant to this application. The following three paragraphs are taken from the summaries which are contained in the Committee’s Statement of Reasons[1] and the Respondent’s Statement of Facts, Issues and Contentions[2].
[1] Exhibit R23.
[2] Dated 26 October 2012 and filed in these proceedings.
Overview of the Medicare Scheme
1)In broad terms, a Medicare benefit is payable by the Commonwealth in respect of the provision of a professional service.[3]
2)A professional service is, relevantly, a service:
(a)to which an item in the general medical services table relates; and
(b)which is a clinically relevant service that is rendered by or on behalf of a medical practitioner.[4]
3)The general medical services table is presently prescribed in the Health Insurance (General Medical Services Table) Regulations 2011 (Cth).[5] The table sets out items of medical services, the amount of fees applicable in respect of each item, and rules for interpretation of the table. The contents of the table, together with explanatory notes, are set out in the Medicare Benefits Schedule Book, which is published by the Commonwealth Department of Health and Ageing. Both the general medical services table and the Medicare Benefits Schedule Book are updated annually.[6]
4)A clinically relevant service is a service rendered by a medical practitioner that is generally accepted in the medical profession as being necessary for the appropriate treatment of the patient to whom it is rendered.[7]
[3] See, for example, ss 10, 20 and 20A of the Act.
[4] See s 3 of the Act. The term “medical practitioner” is also defined in s 3.
[5] See also s 4 of the Act.
[6] The Medicare Benefits Schedule is derived from the contents of the Health Insurance (General Medical Services Table) Regulations 2011 (Cth), the Health Insurance (Pathology Services Table) Regulations 2011 (Cth) and the Health Insurance (Diagnostic Imaging Services Table) Regulations 2011 (Cth)). All of these regulations are remade annually and the new regulations are expected to commence on 1 November 2012.
[7] See s 3 of the Act.
Purpose of the Professional Services Review Scheme
1)The Professional Services Review (“PSR”) Scheme is a peer review scheme established under Part VAA of the Act.
2)The object of the PSR Scheme is to protect the integrity of the Medicare and pharmaceutical benefits programs and, in doing so:
(a)protect patients and the general community from the risk associated with inappropriate practice; and
(b)protect the Commonwealth from having to meet the cost of services provided as a result of inappropriate practice.[8]
3)Inappropriate practice is relevantly defined to mean, in respect of a general practitioner, conduct in connection with rendering or initiating a service that a PSR Committee could reasonably conclude would be unacceptable to the general body of general practitioners.[9]
4)In determining whether or not a practitioner’s conduct amounts to inappropriate practice, it is necessary to have regard to, among other relevant matters, whether or not the practitioner has kept adequate and contemporaneous records of the rendering or initiation of services.[10]
[8] Section 79A of the Act.
[9] Section 82 of the Act. In relation to PSR Committees, see Division 4 of Part VAA of the Act.
[10] See s 82(3) of the Act. See also regs 5 and 6 of the Health Insurance (Professional Services Review) Regulations 1999 (Cth). Among other things, the standard to be met in order that a record of service rendered or initiated be adequate is that each entry be sufficiently comprehensible that another practitioner, relying on the record, can effectively undertake the patient’s ongoing care.
Features of the Professional Services Review Scheme
1)The Chief Executive Medicare may request the Director of PSR to review the provision of services by a person.[11] The Director must decide whether to undertake a review of the person.
[11] Section 86 of the Act.
2)If the Director decides to undertake a review, he or she must, following the review:
(a)decide to take no further action;
(b)enter into an agreement with the person under review; or
(c)make a referral to a PSR Committee for the Committee to investigate whether the person under review has engaged in appropriate practice.[12]
[12] See ss 91, 92 and 93 of the Act.
3)An agreement between the Director and the person under review must relevantly include:
(a)an acknowledgement by the person that he or she has engaged in inappropriate conduct in connection with rendering or initiating the services specified in the agreement; and
(b)“specified action” in relation to the person, which may involve, among other things, one or more of:
(i)      a reprimand;
(ii)     repayment of all or some of the amount of any Medicare benefit relevantly paid to the person;
(iii)    full or partial disqualification, for a specified period of not more than three years, from provision of services under the Medicare scheme.[13]
[13] See ss 92(1) and (2) of the Act.
4)If the Director enters into an agreement with the person under review, the agreement must be ratified by the Determining Authority before it comes into effect.[14] Once the agreement is so ratified, it is taken to be “a final determination of the Determining Authority for the purposes of section 106X”.[15]
[14] See s 92(3) of the Act. In relation to the establishment of the Determining Authority, see s 106Q of the Act. The Determining Authority was previously termed the “Determining Officer”: see paragraph 32 of the statement of reasons.
[15] See s 92(4) of the Act.
5)A referral by the Director to a PSR Committee initiates an investigation by the Committee into the provision of the services specified in the referral.[16] If the Committee makes findings that the person under review has engaged in inappropriate practice, those findings are reported to the Determining Authority.[17] The Determining Authority then makes a final determination setting out what action is to be taken in respect of the person under review.[18] That action may involve, among other things, one or more of:
[16] Section 93 of the Act.
[17] Section 106L of the Act.
[18] See ss 106SA to 106U of the Act.
(a)a reprimand;
(b)repayment of all or some of the amount of any Medicare benefit relevantly paid to the person;
(c)full or partial disqualification, for a specified period of not more than three years, from provision of services under the Medicare scheme.
6)If a practitioner has been the subject of more than one final determination, including any agreement or agreements ratified by the Determining Authority, the Director of PSR must give written notice to the Chairperson of the [Medicare Participation Review Committee] about all final determinations that have taken effect against the person.[19] Upon receipt of such notice, the Chairperson must establish a committee.[20]
7)Section 124FAA relevantly provides that, after receipt of such notice, the MPRC must make a determination to:
(a)take no additional action against the practitioner;
(b)fully disqualify the practitioner for a specified period of no more than five years; or
(c)partially disqualify the practitioner for a specified period of no more than five years.[21]
8)Unless the MPRC intends to take no additional action against a person, the MPRC must conduct a hearing before it makes any determination in relation to the person.[22]
[19] Section 106X of the Act. A medical practitioner is a “practitioner”: s 81.
[20] Subsection 124E (2A) of the Act. The procedure of the MPRC is set out in Part VB of the Act. Each person selected by the Chairperson as a member of the committee must be a medical practitioner: s 124EB. The Chairperson is appointed by the Minister and must be a legal practitioner: s 124C.
[21] See ss 124FAA(2), (5) and (7) of the Act. In making a determination, the MPRC must comply with any guidelines in force under s 124H: s 124FAA(3). No such guidelines are presently in force for the purposes of s 124FAA.
[22] See ss 124G to 124P of the Act.
Section 124R of the Act provides that an application may be made to this Tribunal to review a decision of the Medicare Participation Review Committee.
Inappropriate practice is defined in section 82 of the Act. The section relevantly provides:
(1)A practitioner engages in inappropriate practice if the practitioner’s conduct in connection with rendering or initiating services is such that a Committee could reasonably conclude that:
(a)if the practitioner rendered or initiated the services as a general practitioner-the conduct would be unacceptable to the general body of general practitioners; or
…
(3)A Committee must, in determining whether a practitioner’s conduct in connection with rendering or initiating services was inappropriate practice, have regard to (as well as to other relevant matters) whether or not the practitioner kept adequate and contemporaneous records of the rendering or initiation of the services.
EVIDENCE AND FINDINGS OF FACT
Background
The following facts are not in dispute and are found on the basis of the documentary evidence.
Dr Alekozoglou graduated in Medicine in 1980. Since 1982 he has conducted a general practice in Melbourne; it is a solely bulk-billing practice. For almost all of that time he has not had any other medically qualified practitioner working with him.
Dr Alekozoglou was the subject of peer review under the Professional Services Review Scheme in 1997. The findings and determinations of the Determining Officer made 5 September 1997 are set out in Exhibit R3.
The reasons of the Determining Officer included:
6.1The extent and scale of the conduct discloses inappropriate practice of a most serious nature and leads me to conclude that a determination proportionate to the most serious nature of the case is appropriate.
6.2The inappropriate practice found by the Committee:
(a)was not an isolated incident but was extensive; and
(b)was based on concerns that were expressed by the Committee in relation to a wide range and a large number of elements of Dr Alekozoglou’s practice including:
-       over a lengthy period a high volume of services resulting in a workload which would not allow him, as a general practitioner, to provide appropriate clinical input;
-       a high average number of services per patient related to the poor management of many of his patients;
-       a consistently high volume of, and inappropriate protocol for home visits;
-       inadequate medical records;
-       inappropriate custom of leaving pathology and diagnostic imaging test results and medical records with patients.
6.3I have also taken into account a number of points made in Dr Alekozoglou’s submission:
…
-     Since becoming aware of the concerns of the Committee Dr Alekozoglou has taken steps to improve his medical records and prescribing patterns, introduced an appointment system and employed another doctor and a trained nurse;
…
6.4While Dr Alekozoglou’s submission amounts to a virtual admission of inappropriate servicing and practice his actions since receiving the Committee’s report have resulted in him addressing the structure of his practice and his servicing rates. As a result of the action taken by Dr Alekozoglou to address the concerns of the Committee I have decided to lessen the sanctions in the draft determination.
The Determining Officer directed that Dr Alekozoglou be counselled and that he be disqualified from providing certain Medicare services for a period of 12 months. Further it was directed that he repay to the Commonwealth an amount of $168,054.10, being 35% of the amount received for inappropriate services.[23]
[23] Exhibit R2.
On 4 February 2009 the Determining Officer made a second determination in relation to Dr Alekozoglou, this time in ratification of an agreement made between Dr Alekozoglou and the Director on 6 January 2009.[24] The determination related to a review period from 1 September 2006 to 31 August 2007.
[24] Exhibit R5.
In the agreement Dr Alekozoglou acknowledged that he had engaged in inappropriate conduct during the review period in that on some occasions he had:
·provided MBS Item 721 when there was inadequate reason for a GP Management plan to be implemented; and
·provided MBS Item 723 in circumstances which did not meet the MBS Item descriptor.[25]
[25] Exhibit R5.
Item 723 in the Medicare Benefits Schedule Book provides for payment of a benefit to a medical practitioner for “coordinating the development of Team Care Arrangements (TCA)”. A.22.17 provides:
The steps in coordination TCA must include:
a)   discussing with the patient which treatment/service providers should be asked to collaborate with the GP in completing TCA;
b)   gaining the patient’s agreement to share relevant information about their medical history, diagnoses, GPMP etc (with or without restrictions) with the proposed providers;
c)   contacting the proposed providers and obtaining their agreement to participate, realising that they may wish to see the patient before they provide input but that they may decide to proceed after considering relevant documentation, including any current GPMP;
d)   collaborating with the participating providers to discuss potential treatment/services they will provide to achieve management goals for the patient;
e)   documenting the goals, the collaborating providers, the treatment/services they have agreed to provide, any actions to be taken by the patient and a review date i.e. completing the TCA document; and
f)   providing the relevant parts of the TCA to the collaborating providers and to any other persons who, under the TCA, will give the patient and treatment/services mentioned in the TCA.
The GP may, with the permission of the patient, provide a copy of the TCA or of relevant parts of the TCA, to other providers involved in the patient’s care.
…[26]
[26] Exhibit R24 tab 2 p.46.
It was agreed further by Dr Alekozoglou that he should be reprimanded by the Director and that he repay to the Commonwealth the sum of $30,000.00 “being an amount equal to approximately 45% of the Medicare benefits paid in respect of the specified services.”[27]
[27] Exhibit R5, para 2.1.
As the ratification of the agreement became a second final determination in respect of Dr Alekozoglou, the Director referred both final determinations to the Chairperson of the Medicare Participation Review Committee, as required by section 106X of the Act.[28]
[28] Exhibit R15.
On 9 May 2009 the Committee decided that no further action should be taken against Dr Alekozoglou other than the action already taken by the Director in accordance with the agreement.[29] However, having reviewed both determinations the Committee noted that “there was an extremely high volume of rendered services, and in some cases, Dr Alekozoglou was in the 99^th percentile of practitioners rendered [sic] the services, or better.” It recorded further that:
In relation to the second review it was evident that his total services were above the 99^th percentile, his services per patient were at the 95^th percentile, item 721 was above the 98^th percentile and 723 above the 99^th percentile. The report of the advisor who reviewed Dr Alekozoglou’s program acknowledged his work ethic but expressed concern that his level of total services, chronic disease management services and attendances at residential aged care facilities may not allow sufficient time for appropriate clinical input.[30]
The Committee again reminded Dr Alekozoglou of the need to maintain proper records and follow proper procedures.
[29] Exhibit R16.
[30] Exhibit R16 para 12.
In 2011 Dr Alekozoglou’s conduct of his practice in the period 1 March 2009 – 28 February 2010 was reviewed. Following this review another agreement was reached between Dr Alekozoglou and the Director. The agreement was made on 11 May 2011[31] and was ratified on 14 June 2011[32]. It took effect on 28 June 2011 in accordance with the terms of the agreement and section 92(4) of the Act. This was the third final determination against Dr Alekozoglou.
[31] Exhibit R12.
[32] Exhibit R14
Under the heading INAPPROPRIATE PRACTICE the agreement provided in part:
1.The Person Under Review acknowledges that, during the review period, his conduct in connection with rendering or initiating the services specified in paragraph 2 amounts to inappropriate practice and defined by the Act.
2.The services specified for the purposes of paragraph 1 of this agreement (the specified services) are as follows:
·MBS item 723
·MBS item 731
·MBS item 66602.
3.The Parties agree that the conduct of the Person Under Review in connection with rendering or initiating the specified services and which forms the basis for the acknowledgement in paragraph 1 is as follows:
·Failing to satisfy the minimum clinical content of MBS item 723 services. The Team Care Arrangement Plan only involved one other allied health provider.
·Failing to maintain adequate and contemporaneous medication records in connection with MBS item 731. Those records failed to contain any evidence of the multidisciplinary plan or any evidence of more than one other collaborating provider involved in the care plan.
·Failing to maintain adequate and contemporaneous medical records, in particular, in connection with MBS item 66602. These records fail to adequately explain the clinical detail to justify ordering of this investigation.[33]
[33] Exhibit R12.

Dr Alekozoglou and the Director agreed on the following action:
4.The Parties agree that the action in relation to the Person Under Review specified in paragraph 5 of this agreement is to take effect.
5.The action specified for the purposes of paragraph 4 of this agreement and section 92(1)(b) of the Act is as follows:
5.1The Director reprimands the Person Under Review.
5.2The Person Under Review repays to the Commonwealth the sum of $43,103.26 being 49.8% of the Medicare benefits paid in respect of the specified services.
5.3The Person Under Review be disqualified from the provision of the following services for 12 months starting from when this agreement takes effect:
· MBS item 723.
5.4The Person Under Review be fully disqualified for one month starting when this agreement takes effect.
5.5The Person Under Review has been made aware that the consequences of the action specified in paragraph/s 5.2, 5.3 and 5.4 of this agreement is that Medicare benefits will not be payable in respect of services rendered or initiated by, or on behalf of, the Person Under Review, during the period of disqualification.[34]
[34] Exhibit R12.
As required by the Act the Director gave notice of the three final determinations against Dr Alekozoglou to the Medicare Participation Review Committee.[35]
[35] Exhibit T1.
After it conducted a hearing at which Dr Alekozoglou gave evidence, the Committee determined that he be fully disqualified from the provision of professional services for a period of three months from the day after the service on him of a copy of the determination.[36] The effect of this determination is that Dr Alekozoglou is prevented from providing services under the Medicare scheme; he is not prevented from practising as a medical practitioner. This is the decision which Dr Alekozoglou has applied to have reviewed by the Tribunal.
[36] Exhibit R18. This disqualification was made pursuant to section 124FAA of the Act.
Dr Alekozoglou’s evidence
Dr Alekozoglou works six days per week. He usually works from approximately 6.30 am seeing patients in one or more of the Nursing Homes which he regularly attends. He then works at his own practice from 8am to 6pm. Dr Alekozoglou has practised continually in the same area for 30 years. In his practice he has a large number of elderly patients whose average age is 67 years, many of whom are Greek-speaking. From 6pm onwards Dr Alekozoglou is on call at various Nursing Homes. He has about 200 patients for whom he cares in Nursing Homes. He has “scaled down”[37] his working hours in recent times.
[37] Exhibit A1 para.3.
Dr Alekozoglou is in good health and does not take any medications.
Dr Alekozoglou is not a member of any professional organizations, although he regards meetings with other practitioners concerning particular patients as continuing professional development. He attended an Aged Care Forum conducted by the Royal Australasian College of General Practitioners in October 2012 for which he earned two Category 4 points. He also attends about ten meetings with other practitioners per year. These meetings are arranged by drug companies.
In his practice Dr Alekozoglou has a registered nurse and three administrative staff. The administrative staff have no medical training other than in the administration of CPR. The registered nurse works from 10 am to 4 pm, Monday to Friday. Dr Alekozoglou did employ another medical practitioner for two months in 1992, but other than engaging occasional locums he has not had the assistance of another medical practitioner in his practice.
Dr Alekozoglou sees an average of 50 patients per day in addition to those seen in Nursing Homes. He makes three to five home visits per week, usually after his normal hours. He also reviews an average of one care plan per day, five days per week. Dr Alekozoglou sees more patients than his claims on Medicare disclose as he does not always claim for consultations he provides. In addition to consultations, he updates medical records manually, answers telephone calls and meets with staff on a weekly basis. Despite the heavy workload Dr Alekozoglou denies feeling under any pressure.
Elderly patients are more likely to suffer complex conditions than younger patients, are more likely to present with new complaints and usually require more time in consultation. Dr Alekozoglou has not accepted new patients since 2011, other than new patients in Nursing Homes.
On 17 November 2011 Dr Alekozoglou wrote to the Committee advising it that he had followed the advice of a medical adviser and was reducing the volume of work being done by 15-20%. In cross examination Dr Alekozoglou agreed that there had been very little change in the volume of services being rendered by him as he performs a lot of geriatric work and has 170-180 patients in various Nursing Homes. He has not claimed for some services rendered to avoid being seen to be rendering excess services.[38]
[38] Transcript 1.11.2012.
Dr Alekozoglou now understands that on the occasions he has been required to refund money to Medicare he has been repaying benefits received by him to which he was not entitled. He now understands the repayments were not fines imposed on him. He has repaid all money determined to be owing to Medicare. He does not now recall the matters which led to his disqualification in 1996. During both periods of disqualification (i.e. in 1996 and 2011) he continued to provide services without charging for them. As he described it, “it was business as usual.”[39]
[39] Transcript 1.11.2012.
Dr Alekozoglou gave evidence that he understood that the second final determination arose out of an agreement which he signed on 6 January 2009. He said that he understood that his acknowledgement of having engaged in inappropriate conduct was a serious acknowledgement. When he gave evidence before us on 1 November 2011 Dr Alekozoglou argued strongly that the Nurse Practitioner employed by him was legally the third provider required by Item 723. When it was put to him that this was not correct he replied:
That is the law – it is the law and has always been.[40]
Nevertheless Dr Alekozoglou agreed that the Nurse Practitioner employed by him was not managing the patients’ care and was acting on his behalf.
[40] Transcript 1.11.2012.
At the time of signing the agreement in 2009 and at the time of his disqualification later that year, Dr Alekozoglou did not read the descriptor of Item 723. He did not read the agreement he signed. He did not understand what he had done wrong at the time, although he agreed that he had met with the Director in November 2008 and that the Director had explained to him his concerns as to the claims made for Item 723. When it was put to him that he had been reprimanded and directed to repay $30,000.00 as a result of his conduct he replied:
It’s only money.[41]
[41] Transcript 1.11.2012.
When questioned further as to his role in developing a Team Care Arrangement Dr Alekozoglou said that he understood that his role was to co-ordinate the care arrangements and that he should do this before finalizing the plan. He does not discuss the plan with allied health providers before completing it. When asked whether this complied with the requirements of Item 723 he said that he did not know.
Dr Alekozoglou said that he had a three-hour discussion with officers of Medicare in November 2011 and that until that time he did not understand the requirements of Item 723. He said that at that time he came to understand that he could not have the Nurse Practitioner employed by him involved as a party to the plan. When questioned further he stated that even at the time he was giving evidence before us he did not understand the requirements of the Item. He agreed that he had recently prepared Team Care Arrangements contrary to the requirements of Item 723.
Dr Alekozoglou acknowledged that he had read the report dated 17 July 2008 by the Director and that he was aware of the following statement in that report:
At the interview on 10 December 2007, Dr Alekozoglou described himself as a “workaholic” who spends long days consulting with patients. This work ethic is acknowledged; however, there remains concern that his level of total services, chronic disease management services and attendances at residential aged care facilities may not allow sufficient time for appropriate clinical input.[42]
`[42] Exhibit R4, p.407 in the s 37 documents.
Evidence of Dr Porter, Medical Practitioner
Dr Porter is a Senior Medical Adviser in the Department of Human Services. He also practises as a part-time general practitioner. Dr Porter provided a statement dated 25 October 2012 [43] and gave evidence.
[43] Exhibit R21.
In his role as Senior Medical Adviser, Dr Porter regularly considers data sets relating to the practices of medical practitioners, including general practitioners. He provided and reviewed data sets relating to Dr Alekozoglou’s practice from 1 July 2008 to 30 June 2012. [44]
[44] These data sets are attachments to Dr Porter’s statement.
Although Dr Porter gave evidence in relation to data sets for the various financial years, he did not give evidence specifically in relation to the review period relevant to these proceedings (1/3/09-28/2/10). In any event Dr Porter stated that some of the data raised concerns; he did not identify data said to show inappropriate conduct in the review period.
In his statement, Dr Porter noted that the policy underpinning the requirements of Item 723 “is to tailor an individualised health management plan in consultation with the other health or care providers involved. … Item 723 applies to a patient who has a chronic condition or terminal illness and who has complex care needs requiring coordinated care from a general practitioner and at least two other health care practitioners.” [45]
[45] Exhibit R21 paras 32-33.
We are satisfied that Dr Porter is a reliable witness and we accept his evidence.
Evidence as to alternative general practitioner services
Based on a statement made by Mr Thomson, Graduate Lawyer employed by the Solicitors for the Committee, we are satisfied that there are at least 10 Greek-speaking general practitioners practising within six kilometres of Dr Alekozoglou’s practice.[46]
Statement of Dr W Ahmar, Cardiologist.[47]
[46] Exhibit R22.
[47] Part of Exhibit A3.
Dr Ahmar has known Dr Alekozoglou for three years and has worked professionally with him during that time.
Dr Ahmar recounted information given to him by Dr Alekozoglou in relation to this application. He is of the opinion that the action of the Medicare Participation Review Committee was “harsh”. Dr Ahmar’s opinion as to the role of the Committee and, impliedly, as to the decision we should reach is of no assistance to us in these circumstances. In any event we are satisfied that Dr Ahmar was not fully informed of the circumstances which have led to this application being made.
Statements by Patients[48]
[48] Part of Exhibit A3.
We have considered 21 statements provided by patients of Dr Alekozoglou. Dr Alekozoglou gave evidence that these statements were made on the basis of information he provided. We accept that Dr Alekozoglou is held in high regard by these patients, that he is a hard-working general practitioner and that there will be some inconvenience to his patients if he is disqualified from the provision of Medicare services for a period. However we do not regard as relevant the opinions of these patients as to the appropriateness or otherwise of disqualification. We are not satisfied that any of the authors of the statements is qualified, nor properly informed, to enable such an opinion to be formed.
THE ISSUE BEFORE THE TRIBUNAL
When this Tribunal is given a power to review, such as it has been given by section 124R of the Act, the Tribunal has the powers of the original decision-maker, in this case the Medicare Participation Review Committee.
When a matter has been referred by the Chairman, as has been done in the circumstances of Dr Alekozoglou, the powers of the Committee (and therefore of this Tribunal) are set out in section 124FAA which provides:
(2)Subject to subsections 124J(8) and 124T(3), a Committee established under subsection 124E(2A) in relation to a practitioner must make one of the following determinations:
(a)that no action should be taken against the practitioner in addition to the action taken under the final determinations under section 106TA that gave rise to the Committee being established under subsection 124E(2A);
(d)that the practitioner is disqualified in respect of one or more of the following:
(i)     the provision of specified professional services, or the provision of professional services other than the specified professional services;
(ii)     the provision of professional services to a specified class of persons, or the provision of professional services to persons other than persons included in the specified class of persons;
(iii)    the provision of professional services within a specified location, or the provision of professional services otherwise than within a specified location;
(e)that the practitioner is fully disqualified.
(3)In making a determination under subsection (2), the Committee must comply with guidelines in force under section 124H.
(4)A determination under subsection (2) must be in writing.
(5)If the Committee determines that a practitioner is disqualified, the Committee must specify in the determination the period (not exceeding 5 years) over which the disqualification is to have effect.
(6)A determination that a practitioner is disqualified has the effect of replacing any period of disqualification, under a final determination under section 106TA, that is still in force at the time the determination under this section is made.
(7)In this section, a reference to a final determination under section 106TA includes a reference to an agreement that, under paragraph 92(4)(f), is taken to be a final determination for the purposes of section 106X.
The provisions of subsections 124J(8) and 124T(3) are not relevant here.
Section 124FAA(2) of the Act gives to the Tribunal a discretion as to which of the specified determinations should be made. When exercising a discretion the Tribunal must make the “preferable decision”.[49]
[49] Drake v Minister for Immigration and Ethnic Affairs(1979) 24 ALR 577.
The issue for us therefore is which of the determinations provided for in section 124FAA is the preferable decision.
CONSIDERATION
The preferable decision in a matter such as this must be determined by the consideration of the facts of the particular matter. We set out in the following paragraphs the matters we have taken into account in reaching our decision.
The repeated instances of inappropriate practice by Dr Alekozoglou
On three occasions between September 1997 and June 2011 it has been determined that Dr Alekozoglou has engaged in “inappropriate practice” as defined in the Act. We acknowledge that the nature of the inappropriate practice has varied but there is some similarity in the findings which indicates that difficulties have continued to arise by reason of the manner in which Dr Alekozoglou conducts his practice. It indicates also that these difficulties have not been adequately addressed.
In 1997 the inappropriate practice included the high volume of services “resulting in a workload which would not allow [Dr Alekozoglou] as a general practitioner, to provide appropriate clinical input.”[50] In 2009 the conduct included the provision of Item 723 “in circumstances which did not meet the MBS item descriptor.”[51] The Committee noted that:
The report of the advisor who reviewed Dr Alekozoglou’s program acknowledged his work ethic but expressed concern that his level of total services, chronic disease management services and attendances at residential aged care facilities may not allow sufficient time for appropriate clinical input.”[52]
[50] Exhibit R3.
[51] Exhibit R5.
[52] Exhibit R16.
In 2011 Dr Alekozoglou agreed that again he had engaged in further inappropriate practice, again in part relating to his provision of services under Item 723. The specified practice included “failing to satisfy the minimum clinical content of MBS item 723 services. The Team Care Arrangement Plan only involved one other allied health provider.”[53]
[53] Exhibit R12.
This is the third occasion on which a finding of inappropriate practice has been made against Dr Alekozoglou. There have been ongoing concerns raised as to the contribution to this made by his very high workload. In addition, on two occasions the inappropriate practice has involved the provision of services, mainly to aged patients, under Item 723.
Dr Alekozoglou’s failure to address his lack of understanding of Item 723
In January 2009 Dr Alekozoglou agreed that he had provided services not in accordance with the requirements of Item 723 during the period between 1 September 2006 and 31 August 2007. In May 2011 he agreed that this practice had been repeated between 1 March 2009 and 28 February 2011. Despite this, Dr Alekozoglou claimed that he did not understand the requirements of Item 723 until he had discussions with officers of Medicare in November 2011.
Dr Alekozoglou admitted that when he signed the agreement in 2009, and at the time he was disqualified, he did not read the descriptor of Item 723.
Further Dr Alekozoglou gave evidence that indicated that even at the time of the hearing of this application (1 November 2012) he did not understand the requirements of the Item and that he had recently prepared Team Care Arrangements which did not comply with the descriptor of the Item.
Dr Alekozoglou’s attitude to the need for his being conversant with the requirements of a Medicare Item under which he has claimed substantial payments of public money does him no credit whatsoever. His attitude was cavalier and contemptuous of the system in which he has chosen to participate. Clearly he is an intelligent man and yet he offered no reason for his failure to understand the requirements of the Item and his continued lack of effort to reach an understanding of them. He has been offered assistance to do so and has failed to take advantage of the assistance.
Dr Alekozoglou’s attitude to his claiming payment for services not properly provided
We are satisfied that Dr Alekozoglou has been required to repay a total of $241,157.36 as a result of the three separate final determinations. He does not dispute that these repayments were appropriate. Nevertheless on the basis of Dr Alekozoglou’s evidence and the fact that he has been required to refund amounts received on three separate occasions, we are satisfied that he does not appreciate the need for care in claiming the payment of public funds. His comment, when questioned, that “it’s only money” was indicative of his attitude.
Dr Alekozoglou’s failure to address his workload
On several occasions during the hearing comments were made as to Dr Alekozoglou’s work-ethic and this has been acknowledged by the various Committees. However it is not appropriate that the standard of patient care being provided is compromised by Dr Alekozoglou’s taking on more patients than he can manage properly resulting in his inability to give proper clinical input into their care. This concern was expressly raised with Dr Alekozoglou in 1997 and again in 2009.
Dr Alekozoglou has agreed that on occasions he has not properly prepared Team Care Arrangements and that on occasions he has not had the necessary discussions with allied health professionals when plans were being prepared. On this basis we are satisfied that some of his patients did not receive the benefits which should have flowed from properly prepared plans and properly conducted discussions with appropriate allied health professionals.

In 1997 the Determining Officer took into account that Dr Alekozoglou had employed another doctor to assist him in his practice. This employment lasted for approximately two months and, apart from employing occasional locums, Dr Alekozoglou has not employed another practitioner to assist him.
Dr Alekozoglou’s attitude to the operation of the Scheme
On the basis of Dr Alekozoglou’s evidence we are satisfied that he does not regard the requirements of the Medicare benefits scheme with the degree of seriousness as is reasonably expected of a general practitioner who has opted to be part of the scheme.
Dr Alekozoglou does not now recall what it was in his conduct which led to his disqualification in 1997, even though the conduct referred to at the time included the high volume of services rendered, and the Determining Officer expressing concern as to Dr Alekozoglou’s ability to give appropriate clinical input to patient care by reason of his workload. The reasons given by the Determining Officer referred to “inappropriate practice of a most serious nature…”[54]
[54] Exhibit R3.
In January 2009 Dr Alekozoglou signed an agreement in which he acknowledged that he had engaged in inappropriate practice in that he provided Item 723 services in circumstances which did not meet the Item descriptor. Dr Alekozoglou now says that at the time he did not understand what was required by that Item. Further he says that he did not read the agreement at the time he signed it and that he did not understand at that time what it was alleged that he had done wrongly. Dr Alekozoglou had met with the Director of Professional Services Review in November 2008, at which time the Director explained to him the shortcomings in the manner in which claims under Item 723 had been made. Notwithstanding this advice Dr Alekozoglou has continued to prepare team care plans which do not comply with Item 723.
The attitude of Dr Alekozoglou to the requirements of the scheme and his conduct of his practice up to the time of the hearing of this application causes us to be satisfied that Dr Alekozoglou does not appreciate his obligations which arise from his participation in the scheme and that unless he does understand his obligations it is likely that he will continue to engage in inappropriate practice.
Dr Alekozoglou’s continued provision of a high volume of services to a large number of patients
Despite being warned as to the risk of his continuing to provide medical services to a large number of patients, many of whom are elderly and who need special attention, Dr Alekozoglou gave evidence that he sees about 50 patients per day at his clinic, about five per day at various aged care facilities and reviews one care plan per day. This is in addition to the administrative work required in running his practice. Dr Alekozoglou does not claim on Medicare for all of the services rendered by him in an effort to avoid further investigation of his practice. This means that Medicare records do not accurately reflect the extent of the services he has rendered. Dr Alekozoglou was in the 99^th percentile of practitioners so far as services rendered during the period of the last review.
While Dr Alekozoglou continues to service such a high volume of patients, many of whom are elderly, there is a substantial risk that he will not provide proper care of those patients and that he will continue to claim payment for services not properly supplied should he continue to participate in the Medicare scheme. It is necessary to take action to protect Dr Alekozoglou’s patients and future patients from the provision of services which do not comply with the requirements of the scheme. Patients are entitled to expect that services they receive are of the standard required. This is particularly so in relation to the preparation of Team Care Arrangements.
The need to protect public funds from claims for inappropriate practices
As previously mentioned, Dr Alekozoglou has been required to repay to the Commonwealth $241,157.36, being an amount determined to be payments he received for services rendered inappropriately. This amount is the total of three re-payments required of Dr Alekozoglou:
·$168,054.10 after the investigation in 1997;
·$30,000.00 after the investigation in 2006-2007;
·$43,103.26 after the investigation in 2009-2010.
Dr Alekozoglou was not entitled to these funds. He did not properly render the services for which he claimed and the public purse was deprived of these funds for some years until they were repaid. Dr Alekozoglou does not appear to appreciate the seriousness of his actions in this regard in view of his comment that “it’s only money.”[55] Furthermore, based on the information he provided to patients who provided statements on his behalf[56], we are satisfied that Dr Alekozoglou regarded these repayments as fines rather than repayments of funds to which he was not entitled. Dr Alekozoglou says that he now understands the true nature of the re-payments he was required to make.
[55] Transcript 1.11.2012.
[56] Exhibit A3.
Need for public education
It is necessary that appropriate action be taken in respect of the practices of Dr Alekozoglou to bring to the attention of other general practitioners and members of the public the seriousness of a medical practitioner engaging in inappropriate practice.
Potential dislocation of Dr Alekozoglou’s practice and the consequent effect on his patients
We accept the evidence of Dr Alekozoglou that should he be disqualified from claiming payment for services rendered under the scheme it will have an adverse effect on many of his patients who will be forced to seek medical assistance elsewhere. This will be particularly disruptive for patients in aged care facilities who often will be unable to seek alternative assistance easily.
On the basis of the evidence of Mr Thomson we are satisfied that that there are at least 10 Greek-speaking general practitioners practising within six kilometres of Dr Alekozoglou’s practice. We are satisfied that alternative services are reasonably available to Dr Alekozoglou’s patients. We take into account also the evidence of Dr Alekozoglou that on a previous occasion on which he was disqualified there was no unreasonable difficulties caused to his patients. For the reasons already stated the patient statements do not assist us in reaching a conclusion in this regard.
CONCLUSION
Having considered all of the evidence we have concluded that any difficulties which may arise from Dr Alekozoglou’s being fully disqualified for a period are far outweighed by the various considerations in favour of such action and we decide that a period of full disqualification is appropriate in this case.
In view of Dr Alekozoglou’s history of repeated inappropriate practice over a long period and his reluctance to take meaningful steps to remedy the situation, a significant period of disqualification is appropriate. This will be in addition to the period of disqualification already served by Dr Alekozoglou. However we do take into account that many of Dr Alekozoglou’s patients are elderly and some are resident in aged care facilities. It will be likely to be more difficult for these patients to obtain alternative care. Had it not been for this particular aspect of Dr Alekozoglou’s practice we would have given consideration to a longer period of disqualification. We consider that the period of disqualification of three months imposed by the Medicare Participation Review Committee is appropriate.
The reviewable decision of the Medicare Participation Review Committee made 16 March 2012 is varied to read as follows:
Pursuant to section 124FAA of the Health Insurance Act 1973 (Cth) Dr Ioakim Alekozoglou Medical Practitioner who practises at 138 Melville Road, Brunswick West Victoria is fully disqualified for a period of three (3) months, such period of disqualification to commence on 14 March 2013.

I certify that the preceding 79 (seventy-nine) paragraphs are a true copy of the reasons for the decision herein of
........................................................................
Associate
Dated 13 February 2013

Date(s) of hearing 1 and 2 November 2012

Counsel for the Applicant William Gillies

Solicitors for the Applicant Adriana Agrotis, A. Agrotis & Associates

Counsel for the Respondent Richard Knowles

Solicitors for the Respondent Norman Abrams, DLA Piper

[2012] AATA 937

Key Legal Topics

Areas of Law

Administrative Law

Medical Law

Legal Concepts

Administrative Decisions (Judicial Review) Act 1977 (Cth)

Medicare

Inappropriate Practice

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2012/1657
Re	Ioakim Alekozoglou
APPLICANT
And	Medicare Participation Review Committee
RESPONDENT

Tribunal	Deputy President J W Constance Dr R Blakley, Member
Date	21 December 2012
Place	Melbourne

Date(s) of hearing	1 and 2 November 2012
Counsel for the Applicant	William Gillies
Solicitors for the Applicant	Adriana Agrotis, A. Agrotis & Associates
Counsel for the Respondent	Richard Knowles
Solicitors for the Respondent	Norman Abrams, DLA Piper