Mention the word “Obamacare” and most people think of health insurance options. Unfortunately, most folks don’t know about a key antifraud provision that forces pharmaceutical companies to disclose payments made to doctors. Embedded in the Affordable Care Act (the formal name for Obamacare) is the Open Payment initiative. That section of the law is also known as the Physician Payments Sunshine Act. This law is aimed at making the financial relationships between doctors and pharmaceutical companies more transparent.
Anyone can search the government’s database and see how much money their doctor took from big pharma. Searching is free and easy.
I looked up my cardiologist in the Phsysican Payments Sunshine Act database; he took less than $2000, well below the national average for specialty physicians. And none of the drugs he prescribed for me came from companies that paid him.
Am I worried about a doctor that accepts a $100 or $200 meal for his staff? Not at all. (Interesting fact, about 45% of doctors won’t accept anything of value.)
The law mandates full disclosure of any payments – that includes not just cash. Included under the umbrella of noncash payments are charitable contributions, consulting fees, education, entertainment, gifts, grants, honoraria, food and beverages, ownership or investment interests (including stocks or stock options), research grants, royalty or license payments, speaker fees for continuing education programs, traveling and lodging and space rental or facility fees. The latter is limited to teaching hospitals.
Congress hoped the new law would dissuade doctors from taking money from pharmaceutical companies. Even if within a safe harbor of the Anti Kickback Statute, we believe there is a direct correlation between getting money from a pharmaceutical company and prescribing their drugs. That is why in the first year of the program drug companies report paying over $2 billion per year.
We aren’t alone in our suspicion. Public Citizen investigated and found, “Recent analyses of industry payments to physicians show that receipt of industry payments is associated with increased physician prescribing of brand-name drugs over lower-cost generic drugs that are equally safe and effective.”
We can’t say we were shocked.
Did publishing the names of doctors who accepted gifts and cash – and who they got that cash from – shame the doctors or slow down the payments? No. In fact just the opposite happened.
In 2018, doctors reported receiving $9.8 billion in gifts and compensation. And it gets worse!
I said my doctor took less than $2 thousand, well below the national average of $13,000. A study by ProPublica found in the first year of reporting just one doctor reported receiving more than a million bucks. Now that number is up to 700.
Think about that, over 700 doctors received more than a million dollars apiece last year from drug and medical device companies? How can they possibly not be Influenced by that kind of money? Healthcare decisions should always be based on the best interests of the patients and never on who buys the nicest gifts or pays the biggest speaker fees.
We looked at the raw data published by ProPublica. The makers of expensive medicines seem to be paying doctors the most. A month’s supply of Xarelto costs about $805. It is no surprise that in 2016 they paid physicians $29.2 million.
The cost for Humira? $5411. Last year they paid $12.2 million to doctors.
According to ProPublica,
“Some academics and physicians predicted that the exposure might cause companies to rethink making payments and doctors to rethink taking them. A flurry of studies matched the payment data with doctors’ prescribing choices and found links between the payments and the products doctors chose. But ProPublica’s new analysis shows that the public reporting has not dampened the enthusiasm of the drug and medical device industry for having doctors deliver paid dinner talks and sponsored speeches or paying them to consult on products.”
Sadly, most patients don’t even know the law exists. (We know several physicians that don’t know that the government publishes this information.) That may explain why doctors are receiving more and more money, gifts and honoraria from big pharma.
Big Pharma Doesn’t Like Transparency or the Physician Payment Sunshine Act
The lack of knowledge from the public still hasn’t stopped those in the industry from complaining about the Physician Payments Sunshine Act law. We found this gem in Policy & Medicine.
“Regardless of whether tax-paying patients will use the database they are paying for, Clearly recognized that others will almost certainly be using this data including “law enforcement entities charged with ferreting out fraud and abuse, lawmakers critical of physician-industry ties, and whistleblowers looking to make a profit.”
The article also worried that the IRS might use the database to make sure doctors reported all their income and that Medicare could use the information to ferret out potential illegal kickbacks.
We view the law as a positive and see nothing wrong with preventing kickbacks and tax evasion. Since when is enforcing the law and stopping fraud a bad thing?
Congress built in many protections into the anti-kickback law. These safe harbors carve out transactions that have a low risk of fraud and abuse. Can a doctor get paid for speaking at a conference? Yes. But the government and public still has a legitimate interest in knowing if those payments become excessive or if there is no legitimate need for the services. In some instances, we have seen doctors given “research grants” but never perform the research.
Seeking Healthcare Workers with Inside Knowledge of Kickbacks
Pharmaceutical companies, hospitals and medical device companies have become very sophisticated in hiding kickbacks. We have seen hospitals “reward” doctors that keep patients hospitalized longer with discounted office space… drug companies that offer free lab testing if doctors write more scripts for their drugs and drug companies that offer phony research grants.
Under the federal False Claims Act and 29 state laws, whistleblowers with inside information of these schemes are eligible for cash whistleblower rewards. Million dollar rewards are not uncommon.
To learn more, visit our anti-kickback Medicare fraud whistleblower reward page. Ready to see if you have a case? Contact us online, by email or by phone at 202-800-9791. All inquiries are protected by the attorney – client privilege and kept confidential.