Speaker Program Kickbacks: Pharmaceutical Kickbacks Trigger False Claims Act Liability with Patients’ Lives in the Crosshairs

Kickbacks from pharmaceutical companies cloud the medical judgment of health care providers and run afoul of federal and state anti-kickback laws. Most prominently, the federal Anti-kickback Act (AKS) was specifically designed to ensure that physicians prescribe drugs based on patient need, not personal greed.

The AKS is violated when a person or entity makes or accepts payment for referring, recommending or arranging for federally-funded medical items or services, including items or services provided under the Medicare, Medicaid, and TRICARE programs. Violations of the AKS are per se violations of the federal False Claims Act, the government’s primary pharmaceutical fraud-fighting weapon.

Dishonest drug companies will skirt the AKS, knowing their bribes will influence prescribing habits and, in turn, result in the provision of pharmaceutical products that are more expensive and/or medically unnecessary or even harmful to a vulnerable patient population.  Over the last fifteen years, dozens of pharmaceutical companies have shelled out multimillion dollar settlement checks to quiet allegations that they showered doctors with illegal kickbacks.

In recent years, some companies have become increasingly cleaver in disguising illegal kickbacks. For example, companies regularly employ massive speaker bureaus and advisory boards, all in an attempt to disguise excessive payments as fees for “speaking engagements,” “consulting services” or “training sessions.” Typically, instead of recruiting speakers and consultants based on their experience or credentials, dishonest companies will target physicians based on their potential prescription-writing volume. Furthermore, once physicians are accepted into their programs, wayward marketing and sales executives will require speakers to meet minimum prescription levels.

Whistleblowers are needed to unmask illegal payments. The government simply doesn’t have the resources to unravel these schemes, unless pharmaceutical employees and health care providers courageously provide the necessary inside information. For those who do take this stand, the rewards are potentially worth millions.