Relan and Medicare Participation Review Committee
[2009] AATA 567
•31 July 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 567
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/4961
GENERAL ADMINISTRATIVE DIVISION ) Re Sanjeev Relan Applicant
And
Medicare Participation Review Committee
Respondent
DECISION
Tribunal Hon. B Tamberlin, QC, Deputy President and
Dr I Alexander, Member
Date31 July 2009
PlaceSydney
Decision The decision of the Medicare Participation Review Committee of 8 September 2008 is set aside and in substitution Dr Relan is disqualified for a period of seven weeks from providing services under MBS items 36 and 721 commencing on the 28th day after which notice of this determination is served on Dr Relan. .................[sgd].............................
Hon. B Tamberlin, QC
Deputy President
CATCHWORDS
Disqualification from medical practice – Medicare Participation Review Committee – inappropriate practice – Medicare Benefits Schedule – extension of period of disqualification – confidentiality order – hearing should be open to public scrutiny- transparency of administration of justice
Relevant Act/s
Health Insurance Act 1973 - ss 124FAA(2), 92(4)(f), 82, 83, 86, 91, 1629, 106X, 124FAA(2), 124G, 124E(2A), 106TA,
Administrative Appeals Tribunal Act 1975 – s 35(2)(aa) and (3)
Other Relevant Materials
Medicare Benefits Schedule – Items 36 and 721
REASONS FOR DECISION
31 July 2009 Hon. B Tamberlin, QC, Deputy President and Dr I Alexander, Member INTRODUCTION
1. This is an application to review a decision of the Medicare Participation Review Committee (“MPRC”) dated 8 September 2008 under s 124FAA of the Health Insurance Act 1973 (“the Act”). That decision determined that Dr Relan, a general practitioner, was fully disqualified for a period of seven weeks, with the consequence that Medicare benefits were not available for any professional services provided by him during the disqualification period. By consent of the parties, the determination has been stayed until the application for review is heard and determined.
2. On two occasions, Dr Relan has entered into agreements under s 92 of the Act, with the director of the Professional Services Review Scheme (“PSR Scheme”). This scheme is directed to protect the integrity of Medicare benefits and to protect patients and the general community from risks associated with “inappropriate practice”. The PSR scheme is a peer review scheme established under Part VAA of the Act (s 83 of the Act).
3. “Inappropriate practice” relevantly includes conduct of a practitioner in connection with rendering a Medicare billable service, in respect of which a PSR Committee could reasonably conclude would be unacceptable to the general body of medical practitioners to which the relevant practitioner belongs. In this case, the general body is that of general practitioners.
4. In determining whether a practitioner’s conduct amounts to inappropriate practice, regard must be had to whether adequate and contemporaneous records were kept of the rendering of the services under s 82 of the Act.
5. Under s 86 of the Act, Medicare Australia may request the Director of a PSR Committee to review the provision of services by a practitioner, and the Director may review services provided by the practitioner under review during the period specified in the request.
6. After this review has taken place, the Director may decide either to take no further action (s 91 of the Act), or whether to enter into an agreement with the practitioner under s 92 of the Act or, alternatively, the Director may refer the matter to a PSR Committee to investigate whether the person has engaged in inappropriate practice.
7. An agreement under s 92 of the Act must include an acknowledgement or admission by the practitioner that he has engaged in “inappropriate practice” in connection with rendering the services, and it must provide for a range of actions which may include, among others, requirements that:
(a)the person is reprimanded by the Director of the MPRC;
(b)the person repay money to the Commonwealth being the whole or part of the Medicare benefit;
(c)the person is partially disqualified (for a specific period up to three years) from providing specified services, or services to a specified class of persons;
(d)the person is fully disqualified for a period up to three years;
8. An agreement under s 92 of the Act does not come into effect unless ratified by the Determining Authority, which is a separate body under s 106Q of the Act. An agreement is taken to be a “final determination” of the purposes of s 106X of the Act to which I refer below: see s 92(4)(f) of the Act.
9. Dr Relan has entered into two such agreements. Under the first, made on 30 October 2002, Dr Relan acknowledged and agreed that he had engaged in inappropriate practices. He was reprimanded and ordered to and has repaid $9,000.00 to the Commonwealth. There was no disqualification period imposed under this agreement.
10. On 2 February 2008, Dr Relan entered into a further s 92 agreement with the Director under which he acknowledged inappropriate practice and agreed to a reprimand and to repay the Commonwealth an amount of $67,810.00. He also agreed to be partially disqualified from providing services under Medicare Benefits Schedule (“MBS”) items 36 and 721 for a period of two months. The reprimand was given and the other requirements have now been satisfied by Dr Relan.
11. As noted above, each of the s 92 agreements constituted a “final determination” for the purposes of s 106X of the Act. As a consequence, because a second agreement had been made with Dr Relan, the Director was bound to give details to the Chairman of the MPRC of the two final determinations made with him. The Chairman of the MPRC was then obliged to establish a Medicare Participation Review Committee and that committee was then required to make a determination under s 124FAA of the Act.
12. Section 124FAA provides:
124FAA Determinations in relation to excessive servicing etc.
(2)Subject to subsections 124J(8) and 124T(3), a Committee established under subsection 124E(2A) in relation to a medical 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.
DECISION OF MEDICARE PARTICIPATION REVIEW COMMITTEE
13. The MPRC decided that no further action was required in respect of MBS item 721 and 12033 services, which were the subject of the second agreement, but gave considerable weight to the consideration that this was a second agreement and acknowledgement in respect of MBS item 36 services that Dr Relan had failed to keep adequate and contemporaneous records and this was inappropriate practice. Given the similarity of the conduct in the two agreements, and after taking into account his failure to carry out his earlier resolve to improve his record-keeping, the Committee decided that a full disqualification at the lower end of the range was appropriate and decided that there should be a full disqualification of Dr Relan for a period of seven weeks.
ISSUES
14. The submissions of the parties raised four issues in this matter. They are as follows:
·
whether an extension of time should now be given to Dr Relan to seek belated review of the decision of the director of the MPRC to hold a hearing under
s 124G of the Act? Dr Relan, having taken part in the hearing, now submits that the requirement to hold a hearing should have been dispensed with and that the MPRC should have decided that no further action be taken against him.
·whether, on the proper interpretation of s 124FAA(2), it was open to the Tribunal to determine to take no further action in this case or whether it was bound to impose either a partial or full disqualification by reason of the mandatory language of that provision?
·what is the correct and preferable decision under s 124FAA arising from the entry by Dr Relan into the second agreement under s 92 and the acknowledgements made by him of failing to keep adequate contemporaneous records; and
·whether the name of Dr Relan should be made public or whether it is appropriate to order that publication of his name be kept confidential from the public.
15. We now turn to consider these issues.
EXTENSION OF TIME
16. Section 124G provides that the MPRC shall not make a determination in relation to a person unless it has conducted a hearing. There is an exception if the Committee is satisfied that, on the evidence or other material available, it may determine that it can take no further action against the person. In this case, the Committee was not so satisfied.
17. Dr Relan has now had a hearing by the Committee and the determination has been made. The Applicant has had ample opportunity to seek review of the decision to hold the hearing and he has given no satisfactory explanation as to why the decision to hold a hearing was not challenged at an earlier stage or as to why an extension of time should be granted at this late time. Dr Relan has decided to put his case before the MPRC and, upon receiving an adverse result, now seeks to challenge the decision to have the hearing in which he engaged with the benefit of legal representation. To permit a challenge at this late stage, after a determination has been made, without any proper explanation, would have the effect of fragmenting the orderly and efficient process for hearings set out in the Act. There is a well-established strong public interest in the final and comprehensive determination of disputes and the opening up of the preliminary question as to whether a hearing should only be considered, if at all, where there are strong grounds established. There are no such grounds made out in this case.
18. Further and independently, the determination that the Committee was not satisfied on the evidence or material before it that no action should be taken is not a reviewable decision. This is because it is simply a procedural step towards a hearing and does not make any relevant determination. The absence of satisfaction that no action be taken is a step in the process of conducting a hearing to consider further evidence, materials and submissions made in respect of these matters and is in the nature of a preliminary consideration on the way leading to the making of a decision.
19. Dr Relan has sworn an Affidavit dated 16 February 2009 stating that he recently only became aware that the Application for Review in this matter should be amended to include a review of the initial decision of the MPRC to hold a hearing. However, the Notice of the MPRC hearing was given on 27 May 2008 and the hearing was fixed for 30 July 2008. Although he had the benefit of legal representation, no prior challenge was made to the decision to hold a hearing and the determination under review was made on 8 September 2008. The fact that Dr Relan received advice at a late stage is a matter to be taken into account, but it does not amount to a sufficient reason for failure to reopen the question and allow him to now challenge the determination to hold a hearing where he has elected to pursue the hearing process to present his case before the Committee. To allow the Applicant at this late stage to open up the question of the determination to hold a hearing would be to allow the Applicant to “blow hot and cold” in the sense that he acted inconsistently, taking advantage of the hearing and then challenging the decision later, having appeared without objection.
20. Accordingly, for the above reasons, the Tribunal refuses the application for an extension of time.
Second Issue
21. The Respondent Committee contends that on its correct interpretation, and having regard to the extrinsic material and legislative history, it is not open in this case for the MPRC and this Tribunal to decide to take no action. The Committee relies on the language and submits that the language of s 124FAA(2) qualifying the no action option makes it clear that it can only make a determination that no action be taken against the practitioner in circumstances where there has been a final determination under s 106TA of the Act that gave rise to the Committee being established under s 124E(2A). In the present case, there was no final determination under s 106TA and, therefore, the only course of action open to the Committee was to impose either a partial or full disqualification.
22. The Committee has presented orally and in writing a detailed submission setting out the legislative history giving rise to the drafting of s 124FAA(2) in its present form in the Act, and this lends considerable support to the position taken by the Committee.
23. Dr Relan says that it is open to the Committee to decide that no further action be taken in the present case because an agreement under s 92(4)(f) of the Act is to be treated as a “final determination”.
24. There was considerable debate between the parties on this point, but because of the conclusion we have reached on the substantive question, namely that this case is one where partial disqualification is required, it is not necessary for us to consider this question as to whether the section empowers the Committee to take no further action in a case where the matter comes before the Committee as a consequence of a second agreement under s 92.
25. However, having regard to the scheme of the Act, the express language of the provision and the legislative history, there appears to be some cogency in the position taken by the Committee.
26. The question of the correct interpretation of the section involves a general issue as to the proper interpretation of s 124FAA, in relation to which there is no present authority. This case is not an appropriate vehicle for determination of the issue raised by the Committee, as it is not necessary for resolution of the dispute between the parties in view of the substantive conclusion reached on the question of the appropriate course of action.
REASONING AS TO THE CORRECT AND PREFERABLE DECISION
27.
After having considered all the evidence and for reasons that follow, the Tribunal finds that the preferable decision in this proceeding is that pursuant to
s 124FAA, Dr Relan is to be disqualified from providing services under MBS items 36 and 721 for a period of seven weeks.
28. In deciding this, the Tribunal has noted that Dr Relan has already repaid the Commonwealth sums of $9,000.00 and $67,810.00 and has already been disqualified from the provision of MBS items 36 and 721 for a period of two months.
29. Nevertheless, the Tribunal has decided that an additional sanction is required, as we consider that his “inappropriate practice” of “failing to keep adequate and contemporaneous medical records” is a serious matter, not only in the context of participating in the Medicare scheme, but also in clinical medical practice in general.
30. Also, the fact that there had been two episodes of inappropriate practice which were similar suggested that Dr Relan had either not learned from his past experience or had fallen back into an unacceptable practice, and indicated that a strong message for improvement was required.
31. In determining the nature of the sanction, we note that Dr Relan has been co-operative with the various proceedings and has acknowledged that his actions amounted to inappropriate practice within the meaning of the Act. We also note that there has been no evidence of dishonesty or deliberate intent and that Dr Relan appears to be highly regarded as a general practitioner by his medical colleagues.
32. We note that Dr Relan had undertaken to improve his practice and that a more recent review has demonstrated significant improvement.
33. We recognise that full disqualification from Medicare may have a significant financial impact on a medical practitioner. In this case, however, on information before us we were not persuaded that a short period of disqualification would have such an impact on either Dr Relan or his practice so as to preclude such a sanction and have placed less weight on this consideration.
34. We note that Dr Relan has been in practice for many years and is the principal practitioner in a large and busy practice. We also note that Dr Relan’s ethnic background and his skill with several languages means that a significant part of his practice involves patients who either choose or require to see him because of these skills. We are concerned that full disqualification will unfairly impact on these and indeed other patients. We are not persuaded that his patients could easily find alternative care without financial penalty or personal hardship.
35. We have placed significant weight on this issue as we consider that the objective of any sanction should be directed at improving the performance of the individual practitioner and not penalise his or her patients.
36. Therefore we have decided that the preferable approach is to direct the additional sanction to the professional services that were connected to the inappropriate practice which in this case were MBS items 36 and 721.
CONFIDENTIALITY
37. When the matter came on for hearing before us on 26 May 2009, the Applicant made an application for a confidentiality order under s 35(2)(aa) of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”) to restrict publication of the name and address of Dr Relan in the reasons for decision and substituting a pseudonym. A form of confidentiality order has now been submitted to the Tribunal. What is sought to be achieved is that the Applicant should not be publicly identified as the subject of any published reasons for decision of the Tribunal or any final orders.
38. While there is the potential for embarrassment and possibly some impact on his practice if Dr Relan were identified, there is no sufficient reason as to why the details should be suppressed from the community at large. This is a case where there have now been two s 92 agreements and acknowledgements of inappropriate practice by Dr Relan, resulting in sanctions and an adverse determination after a full hearing by the Committee. It is in the public interest that this hearing should be seen to be open to public scrutiny to ensure there is public confidence in the administration of the Act.
39. We therefore do not consider that the confidentiality order should be made.
40. Section 35(3) of the AAT Act provides that in considering whether proceedings should be heard in private or whether there should be disclosure of a matter contained in a document lodged with the Tribunal, the Tribunal must take as the basis of its consideration the principle that it is desirable for hearings of proceedings before the Tribunal to be held in public, and that evidence before the Tribunal and the contents of documents lodged with it should be made available to the public and all parties. This is a strong specific statutory endorsement of the principle that the administration of justice should be transparent and open to the public so that, among other considerations, impartiality, competence and independence can be seen to exist. No circumstances have been pointed to in the present case to outweigh the consideration that this principle should be applied.
CONCLUSION
41. The decision of the Tribunal therefore is that the decision of the MPRC dated 8 September 2008 be set aside and that Dr Relan be disqualified for a period of seven weeks from providing services under MBS items 36 and 721. This determination is to take effect on the 28th day after the date on which a copy of the notice of this determination is served on Dr Relan.
I certify that the forty one (41) preceding paragraphs are a true copy of the reasons for the decision herein of
The Hon. B Tamberlin QC, Deputy President and Dr I Alexander, MemberSigned: ...........................[sgd] ..........................................
AssociateDate of Hearing 25 May 2009
Date of Decision 31 July 2009
Counsel for the Applicant Mark A. Robinson
Solicitor for the Applicant Karen O’Mullane, Avant Mutual Group
Solicitor for the Respondent Natalie Butler, DLA Phillips Fox
1
0
0