Physician speaker programs have often been used as a vehicle to pay kickbacks and influence physician prescribing practices, particularly in the pharmaceutical and medical device industries.
While not always illegal, speaker programs may run afoul of the Anti-Kickback Statute and the False Claims Act. Speaker programs are especially problematic when they influence physicians’ treatment decisions, which should be based on what is best for their patients – not on the amount of money a provider may receive for promoting and prescribing a particular drug.
Whistleblowers’ qui tam lawsuits have played a key role in enforcement efforts to stop illegal kickbacks through physician speaker programs. Among the more recent high-profile examples of whistleblower cases against pharma companies alleging sham speaker programs include qui tam cases against Novartis Pharmaceuticals and Insys Therapeutics.
- Physician speaker programs – kickbacks and healthcare fraud
- How whistleblowers can report fraudulent physician speaker programs
- Examples of physician speaker programs and whistleblower cases
Physician speaker programs – kickbacks and healthcare fraud
Problematic speaker programs may have nominal educational content, but in reality are primarily a mechanism to give financial inducements to providers. Pharma and medical device companies’ sham speaker programs pay physicians a generous fee to promote their experiences with particular drugs or medical devices, usually at an expensive dinner with other healthcare providers. Ostensibly, the speakers talk about the benefits, risks and appropriate uses of the drug or medical devices.
In practice, the events often serve instead as opportunities for drug makers and medical device companies to channel kickbacks to physician speakers in exchange for influencing attendees prescribing practices.
Studies have shown that doctors who receive payment or other forms of remuneration, including free dinners, from a company are more likely to prescribe or order that company’s products – possibly compromising patient care in the process.
The Office of Inspector General for the Department of Health and Human Services defines speaker programs as “company-sponsored events at which a physician or other health care professional (collectively, ‘HCP’) makes a speech or presentation to other HCPs about a drug or device product or a disease state on behalf of the company … [which] pays the speaker HCP an honorarium, and often pays remuneration (for example, free meals) to the attendees.”
In a special fraud alert, OIG said it “is skeptical about the educational value of such programs,” and warned pharma companies and medical device manufacturers to consider whether programs raise kickback concerns.
According to HHS, pharmaceutical companies and medical device manufacturers reported pay nearly $2 billion to physicians for speaker-related services during a recent three-year period.
The OIG fraud alert listed hallmarks of sham speaker programs, such as these:
- High-prescribing physicians are selected as speakers and rewarded with lucrative deals. Top-prescribing physicians may receive hundreds of thousands of dollars in “speaker fees” for aggressive prescribing practices.
- Speaker remuneration is tied to certain sales targets. In some cases, receipt of speaker honoraria requires meeting a certain prescription quota.
- Physician speaker events are held at entertainment venues or during recreational events. Physician speaker programs do not advance physician knowledge or patient interest by taking place at wineries or resorts, or by taking physicians on golfing and fishing trips.
- Likewise, physician speaker programs at high-end restaurants with expensive meals are suspect. In some cases, physicians attending an “educational event” were wined and dined for multiple hundred dollars each.
- Alcohol is freely available at speaker program dinners.
- Physician speaker programs include friends, family and other parties that have no legitimate reason to be in attendance.
How whistleblowers can report sham physician speaker programs
Healthcare whistleblowers are empowered to report fraudulent physician speaker programs by filing “qui tam” lawsuits under the False Claims Act.
The whistleblower lawsuits must contain detailed information about the bribery and kickbacks. The False Claims Act requires that whistleblowers work with an attorney to file qui tam lawsuits since they are brought on behalf of the government.
The law offers whistleblowers protection from job retaliation and substantial rewards based on the amount of money the government collects as a result of the whistleblower’s information.
Whistleblowers who file qui tam cases may not be fired, demoted, threatened or otherwise harassed by employers. They are entitled to sue for reinstatement, doubled back pay and other compensation if they are targeted as a result of their qui tam case.
If the government joins the qui tam lawsuit, whistleblowers may receive 15% to 25% of the amount recovered as a result of their case.
If the government declines to join the qui tam case, whistleblowers are entitled to 25% to 30 % of the amount recovered.
The exact percentage of the whistleblower reward depends on a number of considerations, such as the extent and detail of the information provided by the whistleblower, whether the speaker program fraud posed a significant patient safety issue and the quality and amount of assistance in the case provided by the whistleblower and their attorney.
Physician speaker programs and whistleblower cases – examples
Whistleblowers have helped expose wrongful kickback practices associated with physician speaker programs. Here are some examples:
- A whistleblower filed a qui tam lawsuit that led to a $678 million settlement by Novartis Pharmaceuticals in 2020. The whistleblower and the government alleged Novartis operated a sham speaker program to induce physicians to prescribe its diabetes and cardiovascular drugs.
- According to the settlement, Novartis organized tens of thousands of sham speaking events and plied doctors with “cash payments, recreational fishing and golfing outings, lavish meals and expensive alcohol” to prescribe its drugs. Federal healthcare programs paid hundreds of millions of dollars in reimbursements for those prescriptions.
- A government official described Novartis’s speaker programs as “nothing more than bribes to get doctors across the country to prescribe Novartis’s drugs.”
- Teva Pharmaceuticals paid $54 million in 2020 to settle kickback and fraud charges related to a speaker program, which also was exposed by a whistleblower. A former Teva sales representative and another whistleblower alleged that the pharm company paid doctors as “consultants” or “speakers” for sham speaker events. The scheme promoted prescriptions of Teva’s multiple sclerosis drug Copaxone and Parkinson’s drug Azilec.
Sham speaker programs also have been implicated in the deadly opioid crisis by whistleblowers.
Insys Therapeutics, the now-bankrupt manufacturer of the powerful opioid Subsys, used sham speaker programs and cash bribes as part of its illegal efforts to encourage physicians to aggressively over-prescribe the addictive fentanyl spray. The scheme was revealed in part by a former Insys sales rep, who exposed Insys’s crooked marketing in a qui tam lawsuit. Phillips & Cohen and the Law Office of Mark Kleiman represented the courageous whistleblower.
If you are aware of fraud or kickbacks in physician speaker programs and are considering blowing the whistle, it is important that you consult with experienced whistleblower counsel to protect yourself and the potential for a reward.
To learn more about your options for blowing the whistle, contact Phillips & Cohen LLP for a free confidential review of your potential case.