Doctors Should Act Now to See ‘Sunshine Act’ Payments Data Before it is Published, Doolittle Advises

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LeClairRyan healthcare attorney warns of need to see—and correct—government data on payments made to physicians by pharmaceutical and medical device companies.

Ted Doolittle

It is vital to understand what data CMS will be publishing about you with a view toward correcting any inaccuracies

Regulators are about to cast “sunshine” on money given to doctors over the past year by pharmaceutical and medical device companies. But to see—and potentially correct—what the federal government will be saying about them, doctors would be well advised to register now with the Centers for Medicare and Medicaid Services (CMS), cautioned veteran healthcare attorney Theodore M. “Ted” Doolittle, a partner in the Annapolis office of national law firm LeClairRyan.

On June 30, CMS will publish the first full-year report of payments to physicians from these companies, noted Doolittle, whose responsibilities as a former senior anti-fraud official in the Obama Administration included leading the implementation of the Sunshine Act/Open Payments. The program mandates the reporting of payments to physicians for the likes of speaking engagements; travel expenses; meals; entertainment; gifts; educational materials; participation in paid advisory boards; and royalties, consulting fees, research or other grants, etc.

For physicians, Doolittle noted, the first step involved in seeing and correcting the data is to create an account at the CMS Enterprise Portal page. By registering, doctors will be first in line to receive notification from CMS about the official start date of the critical 45-day “Review & Dispute” period, which opened on April 6 and will conclude on May 20. “This is the only time in which physicians will be allowed to dispute and correct their payments data for the full year,” Doolittle said. “Bear in mind that the initial report, published in September 2014, covered data only from the last five months of 2013.”

Pre-publication review of the Open Payments data is important to individual physicians for multiple reasons, noted the attorney, whose long career in healthcare and law enforcement includes extensive experience with health- and fraud-related investigations and litigation.

“The initial set of data contained a large amount of incorrect, mismatched, or otherwise misleading data, which in some cases created the impression that a doctor had received payments that in fact were not made,” Doolittle said. “Many hospitals or other physician employers have used the Open Payments site to validate compliance by employed physicians with the hospital’s own ethics or conflict-of-interest policies. So it is therefore vital to understand what data CMS will be publishing about you with a view toward correcting any inaccuracies.”

Indeed, patients and consumer advocacy groups can access this data easily, which may result in questions to the physician, the attorney noted. This can only be expected to increase in 2015 because CMS has recently made its website even easier to use, he added. “The best way to respond to such questions is to know in advance what data is on Open Payments, and better yet, to correct any misleading or incorrect data before it is even published,” Doolittle advised.

When physicians choose to dispute any data they find during the Review and Dispute period, the Open Payment system triggers communication between the physician and the relevant manufacturer. If a mutually agreeable resolution is reached before the date of publication, CMS will publish the corrected data. If a mutually agreeable resolution is not possible before the publication deadline, CMS will not mediate between a physician and a manufacturer. Rather, the data will be published as reported by the manufacturer, but marked as “disputed,” Doolittle explained.

As CMS continues to refine the system and make it easier to access and understand the data, physicians should expect an increase in questions stemming from payments they have received from drug and medical device manufacturers, Doolittle noted.

“Much as the rise of websites such as Zillow, which contains real estate pricing data, have made it easier for individuals to access house and mortgage information nearly effortlessly, so should doctors now expect that patients, malpractice investigators, potential employers, and even just the idly curious will be able to access a full slate of information regarding payments from drug and medical device manufacturers,” the attorney explained. “Physicians are therefore well advised to make it an annual ritual to visit the Open Payments site, pre-publication. This will enable the physician to prepare written or oral responses to questions about his or her data, and/or to dispute the content if necessary.”

About LeClairRyan
As a trusted advisor, LeClairRyan provides business counsel and client representation in corporate law and litigation. In this role, the firm applies its knowledge, insight and skill to help clients achieve their business objectives while managing and minimizing their legal risks, difficulties and expenses. With offices in California, Colorado, Connecticut, Georgia, Maryland, Massachusetts, Michigan, Nevada, New Jersey, New York, Pennsylvania, Texas, Virginia and Washington, D.C., the firm has approximately 380 attorneys representing a wide variety of clients throughout the nation. For more information about LeClairRyan, visit http://www.leclairryan.com.
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