July 16, 2013
I was approached by a manufacturer of a product I use in my practice who wants to pay me to market their product. I use it in my practice already. Is there an issue with me accepting compensation in addition from the company if I only recommend when I deem medically appropriate?
Dr. L, with many arrangements the devil is in the details. However, here, I can relay without reviewing the specific arrangement that it is likely this arrangement will be violative of the Federal Anti-Kickback statute and potentially state anti-kickback prohibitions, which, generally, prohibit remuneration in exchange for referrals. Qualifying for a safe harbor under the Anti-kickback statute may serve to render a proposed arrangement as viable. Factors that assist in such a review are having compensation be set in advance at fair market value, and not be related to the volume or value of referrals for the product being marketed. When reviewing marketing arrangements, be advised that family members are treated as standing in the treating provider's shoes, so naming a loved one in a marketing agreement will not shield you from potential exposure in such an arrangement.
For a specific analysis, I will have to review the proposed arrangement, including the potential agreement you are thinking of entering in to. Proceeding without a review is not recommended as potential exposure and liability is substantial. Finally, thank you for bringing this concern to light. As our general rule of thumb, if an arrangement sounds to good to be true (getting paid extra for a product you already recommend), it probably is!