Representatives can play an important role in keeping physicians updated on proper use of manufacturers’ products. But they can also integrate themselves into practices in ways that violate the law.
All physician practices have representatives (“Reps”) from various manufacturers knocking on their doors. This can include Reps from companies selling pharmaceuticals, durable medical equipment, imaging devices, lab services, and more. These Reps often play an important role in keeping physicians updated on the availability and proper use of products. Other times, Reps can integrate themselves into physician practices in a manner that is inappropriate and noncompliant with the law.
There are many instances where Reps interaction in the practice and with patients can be troubling. Here are three issues for your practice to consider regarding how Reps are welcomed into your practice:
Make time for Reps, but don’t let physicians’ schedules become the victim.
Reps are salespeople and will continue to call and visit until you see them. Reps may demand interaction with the physician instead of practice staff, which can disrupt schedules and upset patients. Interaction with Reps rarely takes the five minutes they promise.
Consider setting a certain day of week and/or time of day when Reps can schedule an appointment or see a physician, and then stick with your chosen approach. Aggressive Reps will continue to push, so standing firm can help set boundaries as well as control the practice flow more consistently.
Use lunch as a time to meet with representatives.
Reps can still sponsor practice lunches if there is an educational component involved. This can mean a meal for the office and a less interrupted day while still learning about new products. Be sure to track the Rep’s visits, keep a copy of attendees on file, and gather any information you can about the cost of the lunch. Do not accept any gifts in any form from the Rep.
Remember, all meals and items provided will be tracked-and reported in dollar amount-in accordance with the Physician Payments Sunshine Act. This information is available to the public. You can search the CMS listing of such payments by physician at https://openpaymentsdata.cms.gov/. Manufacturers that do not appear to be reporting such lunches when required should be a source for concern, and the practice should discontinue any further interaction with them.
Consider Reps’ interactions with physicians and staff.
Some Reps interact more with physician and their staff than others. Many device manufacturers and specialty drug Reps almost embed themselves into physician practices. They may be present during surgical procedures or meeting directly with patients. Every physician needs to determine whether a Rep’s involvement with a patient is appropriate based on the facts involved.
Unfortunately, I have been involved in many cases where a Rep’s role in the practice was overreaching and inappropriate. Some examples include Reps performing services that should be performed by practice staff. This can raise questions about “free” services and possible kickback concerns. Reps completing patients’ prescriptions and prior authorization forms, including medical necessity statements, also create concerns. Physicians can be lax about receiving prescriptions/forms before signing and assume they’ve been completed by practice staff. This does not always turn out to be the case. If the physician has signed off on documents that may be inaccurate or inappropriate, it can be difficult to later prove the truth of what occurred.
While Reps from many manufacturers can help physicians to learn about new products, it is important for physicians to understand their motives and to draw a professional line in the sand. Reps do not work for the practice and should not be integrated into the office or allowed free access to data, forms, patients, or other practice resources. Many Reps are paid based on each sale, prescription, or order they generate. This means that Reps’ goals and what is best for physician practices-and their patients-are not always aligned.
Ericka L. Adler has practiced in the area of regulatory and transactional healthcare law for more than 20 years. She represents physicians and other healthcare providers across the country in their day-to-day legal needs, including contract negotiations, sale transactions, and complex joint ventures. She also works with providers on a wide variety of compliance issues such as Stark law, Anti-Kickback Statute, and HIPAA. Ericka has been writing for Physicians Practice since 2011.