A sleep and respiratory physician who was found guilty of inappropriately billing Medicare almost $2 million over a single year for home sleep studies has suffered a major legal setback in his long-running battle with the Professional Services Review.
It comes after the Sydney-based specialist lost his second lawsuit against the PSR over the allegations, in a dispute which has now drawn out almost a decade.
The RACP-qualified physician first came to the watchdog’s attention in early 2016, having claimed $1,959,719 for MBS item 12250 in the previous financial year.
Covering overnight sleep apnoea investigations in adult patients, the item had an out-of-hospital rebate of $285.05 at the time, with the physician claiming it for 6,875 patients over the 12 months – more than any other doctor in Australia.
At the time, the item’s descriptor did allow for some delegation of the actual administration of the study to sleep technicians. However, it did explicitly state the claiming specialist should pre-emptively establish “quality assurance procedures for data acquisition” as well as personally analyse and report on the results.
In addition, the sleep medicine practitioner was required to confirm the necessity of the investigation before it took place, the item descriptor stated.
Specialist ‘had never set up a home sleep study’
But the specialist did none of these things and in fact “was not at all familiar with significant aspects of the data he was reviewing”, according to the PSR committee which examined his case.
Based on a random sample of 28 claims submitted to Medicare, he also routinely provided the wrong dates on services claimed, and recommended treatment that “may not have been warranted” or “would have significant intrusions” on a patient for the rest their life without appropriate consultation, the committee found.
Beyond that, in a 2017 hearing before the committee, he admitted he had “never been involved in setting up a home sleep study” and “said he did not know where the body position sensor is on the recording device”, it noted.
“[The doctor] did not have an adequate appreciation and understanding of the technical elements of the equipment and the nature of the data and the parameters and measures to enable him to report adequately or sufficiently on any of the services,” the committee’s report said.
“This adversely affected the content and quality of his reports and meant that another practitioner seeking to provide follow-up services for the patient would have been unable to properly appreciate the basis on which [the doctor’s] reports were written and their limitations.”
Other criticisms revolved around conflicts of interest with the corporate sleep medicine chain where the specialist worked at the time, with the PSR committee stating he failed to inform patients about the availability of other treatment providers.
These findings were ultimately upheld by the Federal Court of Australia in 2020, which heard an unsuccessful challenge from the doctor on various legal grounds including that the committee hearing had been unfair, and that it had misunderstood the item requirements.
But despite having his earlier case thrown out with costs, the doctor took the PSR back to court a year later, accusing it of “legal unreasonableness” and inappropriate practice.
Final lawsuit