Wednesday, March 25, 2009

Gifting Is Bribing

Pharmaceutical bribing violates the anti-kickback statute, 42 U.S.C. & 1320a-7b (b) of 1987 is a serious issue. The statute is regulated by the Department of Health and Human Services (DHHS,, and their Office of The Inspector General (OIG), led by Daniel Levinson. Drug companies violate the False Claims Act (F.C.A.) with their marketing activities often by fracturing this statute.

This can result in causing the submission of false claims in the form of prescriptions to government health care programs. The company knowingly causes to be presented to the Fed. Govt. false/fraudulent claims for payment/approval.

Or the company knowingly causes to be made or used a false premise to get a false or fraudulent claim approved or paid by the Federal Government. Drug companies pay doctors to have them write more prescriptions for their promoted products.

And this violates this statute. Fed. Health care programs will not pay claims that were induced by kickbacks. This is knowingly and willfully paying of remuneration to induce others to refer or arrange for a health care item that is reimbursable under federal health care programs. It is a prerequisite to payment of federal health care funds, so kickbacks are F.C.A.s.

The company, by violating the anti-kickback statute, knowingly and willfully acts with deliberate ignorance and reckless disregard of the public's health. This marketing is offending to many, yet not many know about its frequency. Sales reps. constantly try to make health care providers favor and utilize their drugs for their patients, and these drug reps are often told by their employers that bribing them is the most effective tool in making this happen.

A useful prosecutorial tool is this anti-kickback statute, yet it is not a deterring statute, so it seems. Whoever knowingly and willingly offers or pays remuneration directly or indirectly, overtly or covertly, in cash or in kind to another in order to induce the prescriber, is now guilty of a felony. This crime could lead to a fine of 25,000 dollars, and less than 5 years in prison.

It is illegal criminal commercial bribery that prevents health care providers from fully acting in the best interest of public health with many of these providers, because the bribes potentially cloud their clinical assessment of patients. The drug companies often bribe those prescribers who write prescriptions in high volume.

Examples of those who have been caught utilizing this inducement:

Forest Pharmaceuticals, Feb. 2009-
Paid kickbacks to induce health care providers to prescribe their drugs by providing these prescribers with various forms of illegal remuneration, such as high cash payments and valuable goods and services.

Sept. 2007: BMS- 515 million-
“Knowingly and willfully paid illegal remuneration to physicians and other health care providers to induce them to purchase BMS drugs. BMS paid the illegal remuneration in the form of consulting fees and expenses to physicians and other health care providers to participate in various consulting programs, advisory boards, and preceptorships.

By paying this illegal remuneration, BMS knowingly caused the submission of false and fraudulent claims to the federal health care programs.

“Illegal drug marketing schemes will be vigorously persued by OIG”--- Daniel Levinson, HHS Inspector General: “We are committed to ensuring that others are not taken advantage of by those engaging in unscrupulous practices”.

11-08: Bayer- 100 million
Paid others to use their products overtly. “Those who pay illegal kickbacks should expect to be held -accountable.” --- Daniel Levinson

8—06: S Plough 435 million.
Kickbacks to insurers. “health care corruption erodes public confidence and affects both patients and doctors.” --- Daniel Levinson

Biovail 25 million for paying thousands of doctors 1000 dollars each to enroll 13 patients to place on their drug cardizem.

2-08: Merck 650 million:
Paid illegal remuneration to health care providers to induce them to prescribe merck’s products. Multiple programs were implemented by their sales reps. To induce health care providers to prescribe their products. This included excess fees to health care providers that were illegal kickbacks intended to induce the purchase of merck products.

Novartis pays about 50 million for eluding and impeding federal audits, as well as violating the fed. Anti-kickback statute by giving free medical equipment to potential clients. DOJ never did a press release. St. Louis Post Dispatch, and Bloomberg were only sources that reported this event.

90 percent of new health care fraud enforcement actions were initiated by whistleblowers. Less than 10 percent are sales representatives. One third of prosecuted schemes were illegal marketing, inappropriate financial relationshipsand kickbacks.

Dan Abshear

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