02/04/2023    Paul Kesselman, DPM

AZ Podiatrist Pulls His Investment in Modern Vascular

Kudos to Dr. Allen Jacobs for a superb essay on the
issues surrounding Modern Vascular.
Many of our colleagues in all fields of medicine
steer their patients to facilities such as ASC
where they are part owners. More recently an
orthopedic implant manufacturer was convicted of
incentivizing an orthopedic surgeon by providing
millions of dollars of free implants for surgeries
performed out of the USA. In return the surgeon
also performed many of those same surgeries here in
the US using these same implants. Just today an ENT
surgeon was also found guilty of re-using sinus
implants costing the tax payers millions of
dollars.

I wholeheartedly agree (as we all should) with the
last paragraph of Dr. Jacobs’ recent essay, that is
“The decision not to act is a decision.” For those
who wish to act responsibly, contacting a health
care attorney is the responsible measure to take to
determine whether an offer is too good to be true.
But even something while passing the legal sniff
test may still be morally improper.

A decision not to act is a decision you alone
ultimately have to make. If our colleagues continue
to act illegally, unethically or immorally, we
(providers) will continue to be audited. Audits do
not come without a high financial costs to
carriers. But so long as they have a strong
positive return on their investment (9:1 or more)
audits will continue. TPE is a start in a process
to remove practitioners who document responsibly,
but the barometer for passing is set way too high
(100%) and far too stringent.

Every medical specialty seems to attract a certain
spectrum of nefarious practitioner behaviors.
Recently Cellular Tissue products drew national
attention from CMS, but it does not stop there.
DME, mass nursing home nail debridement or
unnecessary surgeries are all part of the
podiatrists’ responsibility to provide in an
ethical manner. As anyone who reads the daily OIG
blog knows, there is no medical/surgical specialty
that does not have its bad actors.

However, the issue of nefarious practices is far
from one sided and not limited only to the side of
the practitioner or manufacturer.
Third party payers are also part of the problem.
Medicare Advantage Plans gaming the system by
providing false data mining results to CMS, denying
payments for claims which had been prior
authorized, agencies receiving a bounty on monies
reclaimed are only a small part of a one-sided
system biased in the payers' favor.

Claim auditors at all levels must receive better
training and act ethically and properly conduct
audits, not hanging ethical providers out to dry
because a single or few “I” were not dotted, or “T”
not crossed.

There is no room in my playbook for the actions of
overzealous auditors trying to make a name for
themselves by ruining an ethical practitioner’s
reputation, practice, or finances. Nor is there any
compassion for those who are punished for
unscrupulous billing practices or for performing
medically unnecessary services that do not benefit
patients.

It is no wonder that medicine in general is so
heavily audited. Yes Dr. Jacobs is correct, a
decision not to act is a decision. It’s high time
that both practitioners and third-party payers act
respectful and ethical to one another. We as health
care providers have taken an oath to do no harm.
That “harm” we need to avoid refers more than just
physical harm to the patient. We need not do harm
to the health care system which we too will one day
personally need to access.

Paul Kesselman, DPM, Oceanide, NY

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01/30/2023    Allen Jacobs, DPM

AZ Podiatrist Pulls His Investment in Modern Vascular (Randall Brower, DPM)

The potential abuse of patients by Modern Vascular
as suggested by the DOJ is neither surprising or
shocking. The article citing the DOJ accusations
against Modern Vascular notes the 90% referral role
here in St Louis. The DOJ further alleges that the
business model of Modern Vascular does not protect
the investors under safe harbor statutes.

I declined to invest after listening to their
description of this business model. The St Louis
facility now claims (I am told by local podiatry
investors) it has a profit distribution for local
investors of $1,000,000 following a relatively
short period of operation here.

There is a distinction between legal and ethical.
How could a writer to PM News claim 20 referrals a
month to this facility? Podiatrists (and other
referring practitioners) will rationalize their
participation by claiming they are not intervention
radiologists, cardiologists, or vascular surgeons.
They will maintain their concern for patients with
potential PAD. They will rightfully note that
ultimately, the decision to perform unnecessary
procedures was that of the cardiologist, vascular
surgeon, or radiologist. After all, when a PCP
refers a patient with a bunion, the decision to
proceed with surgery is that of the podiatrist AND
patient.

What is insulting to me is the suggestion that
those who invested were unaware of this abuse,
while cashing in. PAD intervention such as
angioplasty or stem ting is the new area of abuse.
The excessive and unnecessary use of such
procedures in the treatment of coronary artery
disease is well documented. Thus, our
interventional and vascular colleagues have moved
on to the lower extremities. They market referrals
from podiatrists by constantly “ lecturing “ at our
seminars. It is the new frontier of fraud and
abuse.

I have personally had patients who have been
subjected to in my opinion questionable procedures
at Modern Vascular here in St Louis. Oh I can hear
it now. “you are a podiatrist. Not a vascular
surgeon. Not a cardiologist. Not a radiologist.
What do you know”. Well, I know what I know.

The acceptance of legal but not ethical is rampant
in medicine, including podiatry. We have
podiatrists in St Louis who perform arthroscopic
cutting of the interosseous ligament and then
implant a “stent “ in the sinus tarsi. Who
routinely take uncomplicated toenail correction,
removal of protruding K wires, and simple wart
excisions to the surgery centers they own. Office
owned “laboratories” process toenail specimens on
every patient yet seldom actively treat
onychomycosis.

Everyone knows what is occurring. BUT, because they
are sharing in profit, the abuse of patients is
accepted as legal if not ethical, or as “part of
the art of medical practice“. The fraud and abuse
continue unchallenged as there is money to be made.
It is the Sergeant Shultz “I see nothing”.

The next time you complain about decreased
payments, increased regulatory burden, frequent
audits, consider that perhaps you reap what you
sow. The decision not to act is a decision. The
acceptance of that profit sharing check is tacit
approval of the illicit actions generating that
check. Do not however suggest that you were as said
in Casablanca, “Shocked. Shocked to find that there
was gambling going on in there.”

Allen Jacobs, DPM, St. Louis, MO