Doctor seeks judicial review in appeal of billing audit

A Sussex doctor is asking for a judicial review of a decision from an adjudicator during an appeal of an audit into her 2020-2021 billings.

Dr. Sunita MacMullin was not present for a hearing of her application before Chief Justice Tracey DeWare last Tuesday at the Court of King’s Bench in Moncton, but lawyer Julie LeBlanc Hultberg appeared on her behalf.

MacMullin was asking DeWare to review a decision made by adjudicator Charles Foster last June stating that the medicare branch of the Department of Health did not commit error when auditing her 2020-2021 accounts, and was acting within its authority.

MacMullin had a family practice in Sussex and was one of the province’s top billing doctors in recent years. On Feb. 23, 2022, MacMullin closed her practice without explanation, requiring the Horizon Health Network to recruit new doctors to take over the approximately 3,900 patient charts she carried. She is now working in Ontario.

Brunswick News had reported that MacMullin had been audited by the Department of Health leading up to her departure. The department reviewed her fee-for-service billings for services provided between April 1, 2019, and March 31, 2021, telling her she had to repay a half-million dollars.

The doctor said in the affidavit that on Feb. 24, 2021, she was advised medicare sought full payment of the claim that resulted from the audit, which was $552,315.80, within 30 days, and that she would have to make payment arrangements before she was entitled to appeal. By November 2022 the total amount owing was just over $428,000.

Brunswick News had reported she had billed the province between $1.65 million and $1.699 million in 2020.

LeBlanc Hultberg said on Tuesday that medicare audited a sample of MacMullin’s accounts, and did a statistical extrapolation. The sample audited 1,078 of a total of 55,281 billings MacMullin submitted during the chosen period. The total value of the rejected and adjusted billings totalled $16,256 and it did an extrapolation to arrive at the half a million dollar figure.

“That significantly increased the stakes of the audit,” she said.

She argued the medical services payment legislation in New Brunswick outlines that in order for medicare to do a statistical extrapolation they had to first seek recommendation of a professional review committee comprised of physicians.

When a matter is brought before the committee, the physician whose accounts are being audited is able to speak as part of procedural fairness.

In MacMullin’s case medicare had spoken to the committee twice, but the committee did not receive the entire audit, nor did it provide any recommendations.

“She’s not given any prior notice of the PRC’s meetings, she is not given any opportunity to attend, she is not given any opportunity to make recommendations to the PRC,” said LeBlanc Hultberg.

LeBlanc Hultberg said the application for judicial review is being made because there is no judicial guidance on the interpretation of that particular section of the Medical Payment Act, and she argued Foster’s decision had “unreasonable errors.”

In the afternoon, Sacha Morisset, another lawyer representing Dr. MacMullin, said some of Foster’s errors included applying and misinterpreting case law from Saskatchewan and British Columbia.

In Foster’s decision, he said the medicare officers acted within their authority because they did not compare MacMullin’s billing patterns to her peers, which is the jurisdiction of the PRC. He used definitions of reviewing billing patterns from other provinces, but Morisset argued the definitions differed between New Brunswick’s legislation and those of B.C. and Saskatchewan.

Morisset also said the medicare officers were assessing if the services billed by MacMullin were in excess of what was medically necessary, but they were not medical professionals.

LeBlanc Hultberg noted the outcome of the judicial review would have a direct impact on the audit’s appeal in Fredericton, which is awaiting the results of the application. It would also set judicial precedent for further cases involving the auditing of medical professionals.

Morisset and LeBlanc Hultberg are asking for DeWare to find Foster’s decision “unreasonable” and remove it from the court.

Previously, in November 2022, a judge prohibited the province from doing an audit of MacMullin’s 2016-2019 billings. 

Nathalie Thibault, the lawyer representing the Department of Health, argued the legislation gave medicare broader authority than the PRC, and it stated medicare “may” consult with the review committee if they had needed the committee’s advice and expertise.

Thibault reminded DeWare the purpose of the judicial review is to see if there are serious shortcomings with Foster’s decision, and not to replace his decisions. She said the lawyers acting on behalf of MacMullin did not demonstrate the decision was unreasonable.

“The judge is to focus on the decision made,” she said.