Doctors not 'coerced' by PSR to pay back rebates, review finds

A review of the PSR’s repayment agreements with health practitioners has rejected claims that the system is coercive.

The government-commissioned review, led by Emeritus Professor Robin Creyke, was finished in August 2022 but not released until this Wednesday.

It has revealed several medical groups raised concerns about the PSR’s section 92 arrangements, through which health practitioners agreed to repay more than $20 million in Medicare rebates in 2020/21.

The RACGP told the review that doctors did “not always feel empowered” when accepting an agreement — partly because they were “being asked to make a voluntary acknowledgment of inappropriate activity without always understanding how they are at fault”.

According to the Skin Cancer College Australasia, the agreements were “perceived by medical practitioners as an admission of guilt gained under coercion and duress”.

“[Doctors] tell of being made to feel pressured to sign such agreements or face ‘trial by committee’, resulting in prolonged stress, further time out of practice and significantly higher legal fees.”

Most doctors struck agreements “as a risk mitigation strategy to avoid higher financial penalties and other costs”, the college said.

However, the review concluded that, “despite the suggestions of coercion”, more than 90% of health practitioners opted for a repayment agreement.

It looked at 15 cases that went to a PSR committee and found that two-thirds of these doctors ended up with “less favourable” terms, compared with if they had accepted agreement offers from the PSR.

The review also downplayed the AMA’s submission that the mental health toll of a PSR investigation “contributed to practitioners accepting a section 92 agreement despite not believing that they had, in fact, acted inappropriately regarding their MBS billing practices”.

It acknowledged that “the choice between a PSR committee process or a negotiated outcome may result in the practitioner feeling pressured to adopt an agreement”.

But it said stress was “inevitable”.

“People commonly face choices of that kind. Such choices often involve a degree of stress.”

Professor Creyke was also unswayed by complaints “about the adversarial and inquisition style of investigation of the PSR director, which causes undue stress and pressure”.

Any interview “at which one person is eliciting information from another” was inquisitorial by definition, the review stated.

“If the practitioner has concerns about the style of the interview, this can be raised by their legal or other representative,” it added.

The review also addressed “inferences” that the PSR director “was more interested in meeting the cost-recovery element objective at the expense of patient protective objectives”.

The claims were based on the rapid growth in Medicare rebates recovered — having more than doubled from $8.5 million in 2016/17 to $21 million in 2020/21.

It said better data analysis by health officials and a renewed focus on non-GP specialists, who typically repaid more, were the driving forces behind the rise.

The review’s recommendations focused on more education and guidance for doctors around the PSR process, as well as introducing a version of the 80/20 rule for non-GPs.

Indemnity provider MIPS said doctors received “many good lessons” about their billing yet many still did not understand the PSR’s decision-making.

“For example, when the PSR indicates it considers 70% of the services to be inappropriate, the [doctor] wants to know why some were considered inappropriate and others not to ensure they practise appropriately going forward,” its submission said.

The Federal Government’s response to the recommendations, published alongside the report, said most had been dealt with since its completion and that it would continue to improve education for doctors about the PSR process.

The AMA responds

The AMA says the review was launched in response to concerns it raised back in 2019 about section 92 agreements.

Of course, the AMA has role with the PSR – at least right now – with its veto power over director appointments.

Yet its response to the report, written last year, says it will continue to bring criticisms to the PSR’s attention “out of concern that the actions … real or perceived … are undermining faith in the scheme amongst the profession”.

With the review’s conclusions on coercion, the AMA said it accepted that “no actions are required … beyond the 14 recommendations”.

But it added: “This does not mean the AMA believes there was no coercion, coercion itself is subjective.”

It said it strongly supported recommendations on boosting transparency.

“Many of the issues that the AMA raised on behalf of members who felt coerced also resulted from the lack of public information available and understanding all options available.

“As the recommendations should alleviate some these issues, we are satisfied.”

And it said that, while the process may be inquisitorial, this did “not mean the process must be adversarial”.

“The PSR should view this as an opportunity to reflect on how to investigate without distressing the person under review.

“This would limit the lingering distrust many doctors have after the process is concluded.”

More information: Report on Review of Section 92 of the Health Insurance Act 1973; August 2022.