What Should Electrophysiologists Make Of The DOJ Investigation?

DrRich | January 24th, 2011 - 11:32 am

Podcast:

Two weeks ago DrRich wrote about the abuse of implantable defibrillator guidelines, as illustrated by a recent JAMA article claiming that over 22% of ICD (implantable cardioverter defibrillator) implantations are “non-evidence based.” The abuse of the guidelines, DrRich showed, was perpetrated less by ICD implanters, and more by the authors of that article. That fact being interesting but irrelevant, DrRich went on to speculate that perhaps the Feds would rouse themselves to take this issue to the next level.

It certainly did not take long. Indeed, just a days after DrRich’s post (which ought to completely absolve him of having any direct impact on the Feds’ action), it was revealed that the Department of Justice had already launched an investigation of ICD implants, as related to “proper guidelines for clinical decision making.”

This revelation was made on the website of the Heart Rhythm Society, the professional organization of electrophysiologists (EPs). HRS went on to say that it (HRS itself) had “agreed” to assist the DOJ in an advisory role in its investigation. Furthermore: “Because this is an ongoing investigation, HRS Staff or Leadership is not available for further comment. HRS will communicate additional information to its membership when permitted to do so by the DOJ.” (Emphasis DrRich’s.)

So here’s what we know:

1) The DOJ is actively investigating ICD implantations.
2) Their investigation has to do with the “proper use of guidelines” in selecting patients for ICDs.
3) HRS, the professional organization to which EPs pay huge dues each year in order that it might represent their interests, most especially their interests in Washington, has been preemptively co-opted by the Feds, and indeed has been gagged, so that any further communication to its own membership regarding the investigation is forbidden until further notice.

What will HRS tell the DOJ? It hardly matters, since the important thing has already been accomplished, i.e., effectively silencing the sole organization which represents the interests of EPs in Washington. But, while the HRS statement indicates that the organization is “assisting” the DOJ with “information that does not include either identifiable patient or facility level data,” and while DrRich has no doubt that this is the sincere intent of HRS, DrRich also believes it to be a sure thing that, at the end of the day, HRS (if it wishes immunity from any liability it might find itself subject to, regarding the advice, statements, educational materials, &c., it might have produced over the years, relating to clinical guidelines, or to any other matter of interest that might surface during the DOJ’s open-ended investigation), will tell the DOJ Anything It Wants To Know.

DrRich’s fellow bloggers who are also electrophysiolgists, Wes Fisher and John Mandrola, quickly noted the HRS statement on their respective blogs, and each expressed a certain amount of concern as to the implications of the DOJ’s investigation. But Larry Husten, who writes the excellent Cardiobrief blog, offers a calming voice: “I doubt that the DOJ is gearing up to tackle the vast majority of “reasonable” off-guideline implants. I think they will be going for the real outliers, and when and if they reveal the details of their case there will be little sympathy for their targets.”

Some of DrRich’s readers, who not inappropriately consider him to be a bit paranoid about the Central Authority, may find it surprising that, fundamentally, he agrees with Larry on this matter. He does not think the DOJ will round up large numbers (or even moderate numbers) of EPs who have been practicing basically sound electrophysiology, and who likely have reasonable explanations for any off-guideline ICD implantations they may have committed. DrRich agrees that the DOJ instead will go after a few outliers, figures who – very specifically – will garner little sympathy amongst the public, and indeed, who can be held out, with good effect, for public castigation. Preferably, these figures will be individuals about whom the marketing departments of one ICD manufacturer or another will have generated a few embarrassingly glowing e-mails, celebrating the sheer number of sales these doctors have produced, and discussing strategies – offering speaking engagements in exotic locations, putting on pig roasts, &c. – to keep the ball rolling.

In other words, it is likely at the end of the day the DOJ will produce a few doctors who are truly abusing the system, and harming patients to boot, and who will actually deserve what they will get.

There is no guarantee about this, of course. DrRich has written about how he himself, in his pristine innocence, was once the target of a federal investigation of ICD implants. And while he had on his side the virtues of good medical practice, truth, justice, the American Way, ethics, and even the law, and while he eventually was extricated from his situation with an entirely clean record, it was a close thing, and his escape was based more on luck than on being right. More recently, when DrRich had the “opportunity” to testify under oath in a DOJ investigation on another matter (which he is not yet at liberty to discuss, but regarding which, happily, he was only a witness this time, and not a target), DrRich was required by the DOJ to answer several questions about this very blog and its content, which (as far as DrRich could tell) had nothing whatsoever to do with the matter at hand. By this means DrRich was led to know that the Feds are either among his very great fans (Hi, Fellas!) – or something else.

DrRich’s paranoia, you see, is hard-won, not to mention evidence-based.

So it is indeed possible for innocents to get drawn into such matters – collateral damage is always unavoidable when one is at war – but odds are it won’t be You, or You, or You, so like Larry says, not to worry. They are looking for true evil-doers.

DrRich also agrees with Larry that this DOJ investigation is not a direct response to the JAMA article. The JAMA article appeared a mere week or two before HRS made its announcement – and its announcement obviously was so carefully lawyered-up that it must have taken weeks if not months to negotiate just that one detail with the DOJ. This has all been in the works for a while.  But DrRich does not believe for a moment that the DOJ was unaware that the JAMA article was coming out, or that its content, and the subsequent media attention it would create regarding the widespread ICD abuses being perpetrated by EPs, would dovetail nicely with the subsequent revelation by HRS of the DOJ investigation.

ICDs, and their implanters, have long been a target of the payers – both government payers and insurers – and this new enterprise is merely the latest battle in a long war.

As it happens, DrRich spoke at a certain investigators’ meeting just this past weekend, which was attended by a score or so of prominent electrophysiologists. He can report that the JAMA article (which defined off-guideline ICD usage as bad medicine and harmful to patients), followed by the intense publicity in the media this article generated (also emphasizing bad medicine and harm to patients), followed by the DOJ investigation related to the “proper use of guidelines” in ICD implantation, followed by the co-opting and the gagging of the EPs’ own professional organization, is having a delightfully chilling effect on the profession. DrRich thinks it is unlikely that very many off-guideline ICD implants will be performed for the foreseeable future, no matter how much individual patients might benefit from them, at least while this investigation continues. In fact, while the investigation is ongoing, DrRich suspects that even referrals to EPs for ICD implants will drop off. Because, until then, it will remain an open question just how rigorously one must stick to the letter of the guidelines in order for the DOJ to give one a pass, and to not be considered as guilty of crimes against humanity. The profession is duly intimidated.

Whatever the final outcome of this investigation, it has has already had its intended effect.  DrRich respectfully suggests that the DOJ might just as well take its time with it, and let the effect percolate to perfection.

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Note: Further evidence came this afternoon (January 24) that the effect the Central Authority had in mind is being realized, when Wells Fargo Securities downgraded St. Jude Medical from Outperform to Market Perform. The downgrade was based on WFS’ assessment that ICD implants will be reduced by 10% in 2011, thanks to the DOJ investigation. That reduction doesn’t quite do it, of course, but it’s a start.

7 Responses to “What Should Electrophysiologists Make Of The DOJ Investigation?”

  1. Tom says:

    Dr. Rich,
    I enjoy your blog immensely – I am curious to hear your thoughts on this:

    http://www.hhs.gov/news/press/2011pres/01/20110124a.html

    Cheers,

    Tom

    • DrRich says:

      Tom,

      Thanks for your kind words. Regarding your link, I have written extensively how the anti-fraud imperative will be used to criminalize certain legitimate medical practices that the Central Authority would like to see curtailed. (The move against ICDs is just one example.) I have a whole chapter in my book about it; you can read an extensive excerpt of this chapter here:

      http://guthealthcare.com/understanding_it/feds_regulatory_abuse.html

      Rich

      • Tom says:

        Dr. Rich,
        Thanks for the link – I am seriously considering purchasing your book. I have worked in medical necessity/compliance for about the last ten years, and I couldn’t agree more with the description of what is produced by CMS as “a confusing array of vague, disparate, poorly worded, obscure, and mutually incompatible rules, regulations and guidelines.” I had not previously heard of the PATH audit, which certainly sounds like ex post facto extortion by your account. I cannot help but wonder how much of the four billion dollars in “taxpayer money” “recovered” in 2010 was truly fraudulently obtained – CMS does not include such information in their press releases.
        Here is an interesting article about the lucrative career of whistleblowing, an occupation I had never considered before:

        http://www.latimes.com/news/nationworld/nation/la-na-whistle-blower-20110124,0,3483872,full.story

        This seems to corroborate the information you provided yesterday – although I wouldn’t dream of throwing any doubts on the motives of courageous whistleblowers, who just happen to make millions of dollars by taking on the evil pharmaceutical companies.

        Cheers,

        Tom

  2. Dr. Wes says:

    Rich –

    Nicely said.

    It still damn tough, though, to look a 33yo young lady in the eyes with an EF of 13% discovered after Adriamycin 20 years prior, lots of 5-beat runs of NSVT, a systolic pressure of 90 on tiny doses of Coreg and Liniopril, and feel warm and fuzzy about her going home with a LifeVest for 90 days before she gets her ICD.

  3. Tom – Buy the book. It’s worth it, and about the same price as a couple of Starbucks breaks.

    The Feds know exactly what they’re doing, and the chilling effect they aim to have on procedures not “authorized” by guidelines is clearly the intent. Docs have two possible choices to look forward to: investigation for malpractice, or investigation for guideline violation.

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