HEALTHCARE BRIBERY
Welcome to our healthcare bribery resource page! Within our group, we split this topic into four parts: the Foreign Corrupt Practices Act, Big Pharma, Medicare Fraud and Kickbacks, and the Anti-Kickback statutes.
We read articles and the search results from google to see what the hot topics currently are in healthcare bribery. We hope you find this page useful!
I. Foreign Corrupt Practices Act
(1) WILMER CUTLER PICKERING HALE AND DORR, LLP, Foreign Corrupt Practices Update: Schering-Plough Settles FCPA Case with SEC for Payments to Charity Headed by Government Official, (June 30, 2004), [http://www.wilmerhale.com/files/Publication/360d4f59-6068-4068-9d65-a30270e5069b/
Presentation/PublicationAttachment/0be55739-9c98-4d1f-a886-dac5f2f26044/FCPA+06-30
-04.pdf.
This article begins by detailing the Schering-Plough v. SEC case, in which donations were made by Schering-Plough’s Polish subsidiary to a charitable foundation headed by a Polish government official. The SEC alleged that these payments were made to induce the official to purchase Schering-Plough’s pharmaceutical products for his region’s health fund. The article then describes the relevant provisions of the FCPA that were used in this case. Finally, the article makes recommendations to U.S. companies doing foreign business, and how they can incorporate compliance with the FCPA into their business deals.
(2) United States Department of Justice, Foreign Corrupt Practices Act http://www.usdoj.gov/criminal/fraud/fcpa.
This website has it all. It includes the FCPA statute itself, amendments, opinion procedures, recent court cases, a lay-person’s guide to the Act, and links to other anti-corruption websites. The lay-person’s guide, which was written in 2001, is particularly helpful in describing both the background of the FCPA, how it is enforced, and potential affirmative defenses to an allegation of violating the Act.
(1) Brett W. Johnson, Entering Global Markets Without Violating U.S. Law; Understanding the Foreign Corrupt Practices Act’s Anti-Bribery Provisions, 2-3 (Snell & Wilmer L.L.P., Global Connection, August 2007).
This article underlines the importance of the need for American businesses to compete globally. However, Johnson says, American companies need to be aware of the FCPA. The article begins with a very brief history of the FCPA anti-bribery provisions, and then goes on to cite specific examples of companies who have gotten into trouble with the law. The article also goes through specific provisions of the law and then states how those provisions are followed in practice. Finally, the author compares the FCPA provisions to U.S. law, to enable a U.S. company to better-understand how the FCPA works.
II. Big "Pharma"
Any discussion on healthcare bribery will assuredly include “Big Pharma,” or the drug companies’ influence on the healthcare providers. In 2006, it was reported that $20 billion was spent each year by drug companies to influence physicians. Advocates and patients suspect their doctors are choosing the more expensive medicines as a result of the drug companies’ influence, rather than in the best medical or economic interest of the patient.
(1) John Abramson, Overdo$ed America: The Broken Promise of American Medicine (HarperCollins 2004)
The author is a former family practitioner, teaching at Harvard Medical School. The author makes a strong argument that medicine in the United States has gone awry. The needed fix would not include the taint of profits. Abramson argues that the “industrial colonization” of medicine and academia research centers by the pharmaceutical industry has lead to a relationship that is at the expense of the patient. He argues that we are paying high prices for mediocre medicine. Due to the advertising of drug companies, patients are demanding the “new” drug on the market. Abramson explains how our medical knowledge transformed from a focus on the public, or “measured by its potential to improve our health, into a commodity, measured by its commercial value.”
(2) Bernard Lo, Resolving Ethical Dilemmas: A Guide for Clinicians (Lippincott Williams & Wilkins 2005)
This is the third edition of a guide in facing challenges for today’s practitioner. This is intended to provide answers on real patient problems. Included is material on disclosure of medical errors, gifts from drug companies and other ethical topics. Although Lo often distinguishes the doctor’s ethical obligations from the law, legal issues are outlined. This book was invaluable in having a front-line view of the extent of the influence of drug companies on physicians.
(1) New York Times, Is Your Doctor Tied to Drug Makers?, July 2, 2007
I accessed this editorial page from the Times’ online page. The “Health” section and Opinion pages both provide a search engine to aid in locating desired information. This article reports on the abuses in the relationship between the pharmaceutical company and doctors, especially the payments to doctors to act as consultants. Although the reporting can be sensationalized in newspaper reporting, newspapers do provide an eye into the pulse of a story.
(2) The Boston Globe
http://www.boston.com/business/articles/2008/04/16/
This was another example of an excellent article on the subject matter. I chose this article as it was supportive of the earlier research, and was the most current. This article ran April 16, 2008.
(1) Integrity in Science
http://cspinet.org/integrity/watch/200602172.html#4
This website seeks to raise awareness of the role corporate funding plays in publication and research, and the pharmaceutical gift influences on doctors. This site furnishes a database that allows the user to search scientists’ ties to industry. Available at this site are undisclosed scientific literature. Press releases are issued on a weekly basis. Resources include access to federal government Advisory Committee and legislative material.
(2) PubMed Central
http://www.pubmedcentral.nih.gov/articlerender.fcgi?artid=1126053
PubMed Central is a free digital archive of biomedical and life sciences journal literature. The selected article is from the British Medical Journal. This is a digital library of the U.S. National Institutes of Health (NIH). In this article, a journalist in Washington, D.C., discusses the conflicts of medical campuses with pharmaceutical companies. Entanglement between doctors and drug companies is widespread, and evidence shows that interactions with industry influence doctors' behavior. Leading academic institutions are currently debating the rules governing relations between researchers and sponsors. Critics argue that a culture of industry gift giving creates entitlements and obligations for doctors that conflict with their obligation to patients.
III. Medicare Fraud and Kickbacks
The Court in United States v. Fischer (529 U.S. 667, 120 S.Ct. 1780, 2000), held that Medicare fraud was included as a violation under the bribery statute. The following provides resources that will aid in understanding violations that courts have held to be Medicare fraud violations. Also included is an article that gives policy reasons and economic explanations for the continuing existence of Medicare fraud which may be beneficial to understanding fraud prevention and detection.
(1) John A. Bourdeau, Illegal remuneration under Medicare anti-kickback statute (Social Security Act § 1128B) (42 U.S.C.S. §§ 1320A-7b), 132 A.L.R. Fed. 601 (1996).
This article analyzes the Medicare kick-back statute and includes a detailed summary of arrangements that have been held to be violations among jurisdictions. Violations include recruitment agreements, hospital payments to induce doctors to join their staff, and acceptance of payments for serviced that patients were entitled to receive for free. Along with a comprehensive examination of the various violations, the article includes possible defenses that the medical community may assert, albeit a limited number. This article would be a great starting point to see if the reader could place their claim in a category already adjudicated.
(2) Roger Feldman, An Economic Explanation for Fraud and Abuse in Public Medical Care Programs 30 J. Legal Stud. 569 (2001).
This author suggests that the key to understanding Medicare fraud id to look at the economic incentives that lie behind. He argues that distorted prices and limited efficiency are the major problems in these public medical programs. The author is suggesting that providers, patients, and administrators have little incentive to prevent fraud. Although the article involves computational arguments, there is no need to be a mathematician to understand, just simple rational analysis.
(1) U.S. Department of Health and Human Services, Medicare Fraud
http://www.medicare.gov/fraudabuse/Overview.asp
The official site for people with Medicare, this page gives valuable information on how to prevent and detect Medicare fraud. It is easily accessible providing links with step by step instructions for reporting fraud as well as tips and publications relating to prevention and detection. The site provides resources for filing and billing. It is an essential resource to inform the general consumer of their rights under Medicare but also gives guidance on consumer protection.
IV. Anti-Kickback Statute
Anti- kickback statues have been adopted to deter and prosecute those committing health care fraud in the Medicare/ Medicaid context. The statutes are found in The Medicare and Medicaid Patient Protection Act of 1987, as amended, 42 U.S.C. 1320a-7b. The statutes primarily provide for criminal penalties against a principal who offers or receives any form of remuneration for referrals for service or for the purchase of supplies reimbursable under government health care programs.
(1) 13 Wash. U. J.L. & Pol'y 357 (2003)
Elaborating on Sham Transactions as Evidence of Violations of the Anti-
Kickback Statute
Schwartz, Jeffrey
(2) 51 Vand. L. Rev. 1003 (1998)
Calling Off the Bounty Hunters: Discrediting the Use of Alleged Anti-
Kickback Violations to Support Civil False Claims Actions
Phelps, Lisa Michelle
(1) Healthcare Briefings (FAX)HIR Publications
James A. Hawkins, ed./ pub.PO Box 14547Greenville, SC 29610
HIR@IX.NETCOM.COM
This a subscription based newsletter for healthcare professionals. The newsletter promises to brief its customer on “Healthcare delivery, reform, and management issues: managed care, capitation, development of integrated delivery system.” Federal Anti-kickback law updates are likely to be addressed in this newsletter.
(1) Legal Information and Buyer's Guide and Reference Manual 2006, Kendall F. Svengalis
http://www.indexmaster.com
A unique source for librarians and researchers. The book
provides selections of the best treatises in multiple subject areas.
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