It’s always with mixed emotion when a person learns that their predictions of government evil have started to become reality. And so I write this post, with the egotistic “I told you so”, but wishing that it wasn’t so, and hoping that this will not become the next arena of government attacking innocent citizens for money or job advancement. This might be the first case of its type, but I can guarantee that if the government achieves any type of monetary reward, it won’t be the last. And my next prediction is, once they have worked this profession into the prison cell, yours might be next.
And again, you can depend on the media to present the situation in the worst light as possible. I hope I can clarify a few points for people to understand. If you understand what I write here, please spread the word so that others understand as well.
The Next Group Targeted by the Feds
We now have pharmaceutical representatives being charged criminally for doing their job. On Sept 29, 2016, FBI agents arrested Jeffrey Pearlman, a former district sales manager for Arizona-based Insys Therapeutics, for paying kickbacks in relation to a federal health care program.
The Basis for These New Attacks
Now what is the legal definition of “kickback?” It is “The seller’s return of part of the purchase price of an item to a buyer or buyer’s representative for the purpose of inducing a purchase or improperly influencing future purchases.”
Though many types of kickbacks are prohibited under federal and state law, kickbacks are not illegal per se. If a kickback does not specifically violate federal or state laws and such kickbacks are made to clients throughout the industry, the kickback may be normal, legal, and even tax deductible.
Beginning in the 1970s, the health care industry became the particular focus for government efforts to prevent kickbacks due to escalating health care costs. This led to the passage of the Medicare Fraud Statute (42 U.S.C.A. §§ 1320a–1327b) in 1995. This statute prohibits kickback schemes such hospitals paying physicians for patient referrals, and drug companies and medical device manufacturers paying physicians to prescribe their products to patients. However, the broad definition of “any remuneration” has been turned into another witch hunt by the federal prosecutors. As in this case they are now targeting drug reps providing speaker dinners for education purposes. This is an insult to the medical profession—claiming doctors’ prescribing practices can be bought with a free lunch.
It has been standard policy for doctors to find out about new pharmaceuticals or treatment methods through speaker dinners. When a doctor has been working up to 12 hours a day, they have to eat, and going to a dinner put on by a drug company to learn about a product is simple convenience. It is not a “payoff” or “kickback”. Anyone who thinks that a doctor’s prescribing decisions can be bought off by a free lunch doesn’t have much respect for their physician’s integrity.
The interpretation of this statute should be the following: If a drug company pays a doctor $$$ per prescription, and the prescription is not justified by medical need, then the doctor’s behavior should be evaluated. But that should be by the Board of Medicine, not the government. It is standard and usual practice, even after 1995 when this statute was created, for pharmaceutical companies to set up speaker dinners for education purposes. These are important, and should not be stopped or considered fraudulent.
ProPublica has done some research in the purported “kickbacks” to doctors. You can see their research results here: http://healthimpactnews.com/2014/doctors-earn-3-5-billion-in-kickbacks-from-pharmaceutical-companies/ . There is really nothing there where doctors are being “paid off” for their prescribing practices.
Jeff Pearlman’s case
The “kickbacks” he is being charged with were speakers programs that the Federal prosecutors called “sham” to pay off doctors for prescribing Subsys, a sublingual form of Fentanyl approved for breakthrough pain in cancer patients. These programs were education gatherings to inform health professionals about pain management but federal officials claim they were “social gatherings” at which Pearlman picked up the bill for food and drink and [therefore] paid prescribers to attend. Well, folks, that is “usual and customary” for pharmaceutical reps to do. Instead, the media jump on the government propaganda wagon and call it “organizing a kickback scheme that paid tens of thousands of dollars in illicit fees to medical professionals. I’m sorry, but paying for a speaker dinner is not “illicit fees”. But then the feds go on with a really inflammatory statement like:
“The payoff scheme probably cost Medicare millions of dollars by inducing physicians and other medical professionals to prescribe the painkiller to patients who were not eligible for the treatment under federal heath guidelines.”
Now Pearlman was the kind of drug rep that got the job done, as evidenced by his $95,000 quarterly bonus in 2013. He was also promoted to District manager after 6 months. But since when should doing your job well make you a government target? Well, as you can see, they are now delving into the private corporate world. Face it, anyone can become a target, and do, depending on the prosecutor’s discretion. This has to stop. We have to rein in our Justice Department if we want business to continue in this country.
Now supposedly one nurse practitioner in one clinic, the Comprehensive Pain and Headache Treatment Center of Derby, Ct, received $83,000 in kickbacks. The “kickbacks” turn out to be speaker payments. Ms. Alfonso prescribed a lot of Subsys to her patients and became a speaker for the company. All of that is legitimate, ordinary practice. However, because some of her patients were Medicare/Medicaid, and pain management clinics are being scrutinized, her prescribing habits became a target, obviously for remuneration to the government by fraud charges. She, however, pleaded guilty and is “cooperating”, which means she is saying whatever lies the prosecutor wants her to say, to decrease her own punishment. Obviously, the Feds think they can get more by going after the drug company (like they did with Purdue), then they can a nurse practitioner.
So why is this drug rep being charged with a crime for doing his job? First, with all the media attention on Fentanyl, and since that is the legitimate drug in this product, the media attention would, of course, give the prosecution more ammunition for a win. Even Reuters’ news article started out saying “He participated in a scheme to pay kickbacks to doctors to prescribe a drug containing the opioid fentanyl, U.S. prosecutors said” Also, “these charges come as Insys faces a number of state and federal investigations involving Subsys as U.S. authorities seek to combat a national epidemic of opioid abuse.”
Do we see another Purdue Pharma situation here?
Two other former Insys employees, Jonathan Roper and Fernando Serrano, are being attacked in Manhattan for engaging in a similar kickback scheme involving speaker fees. They have pleaded not guilty.
In August, Illinois’ attorney general sued Insys, accusing it of deceptively marketing and selling Subsys to doctors for off-label uses. That lawsuit remains pending.
Members of the jury, you have to find these defendants innocent, or the next attack might be against you.