Rose-Colored Transparency: The Sunless Reality of Physician Payment Disclosure

130 Pages Posted: 28 Mar 2018

See all articles by Seth Whitelaw

Seth Whitelaw

Mitchell Hamline School of Law

Date Written: December 18, 2011

Abstract

As healthcare costs continue to rise there is increasing concern about financial interactions between healthcare professionals and life sciences companies corrupting the professional’s independent medical judgment. With the resources available to healthcare services continuing to shrink, resulting in increased competition among life sciences companies, and others, for each healthcare dollar, many now argue that these interactions lead to poor treatment decisions and higher overall healthcare costs. Academic medical centers, biomedical journals and various state and federal governmental entities all have seized upon this concern and attempted to fashion remedies to either eliminate or reduce what each entity sees as inappropriate financial interactions.

Some form of disclosure is at the heart of all the current remedies, but unfortunately, to date, efforts to contain and curtail this “corruption” have resulted in a “patchwork” of institutional policies, federal regulations, state law regimes and legal settlements that is neither well thought out nor comprehensive. With the passage of the Patient Protection Affordable Care Act (“PPACA”), the effort to contain inappropriate interactions between medical professionals and life science companies finally is enshrined in federal law.

The paper examines the current disclosure remedies and the new PPACA provision in an effort to assess whether or not these disclosure remedies are effective to curb the perceived bias.

Examining the available evidence and measurements, this paper argues that current disclosure remedies are not effective.All of these efforts, including our new federal law, fall short of achieving the real objective of preventing the “abuses” from occurring in the first instance, because disclosure, or the lack of it, is not the problem, rather “[b]ias from financial ties is the problem, and disclosure does not solve it.”

While disclosure remedies have a role to play in mitigating bias, modifications are needed to make a payment disclosure system meaningful. This paper further argues that the new final rule addressing financial conflicts of interest in PHS-funded research provides a good basis for those modifications.

Keywords: PPSA, Physician Payment Sunshine Act, Sunshine Act, Open Payments, ICMJE, Affordable Care Act, Healthcare Professionals, Investigator Disclosure

Suggested Citation

Whitelaw, Seth, Rose-Colored Transparency: The Sunless Reality of Physician Payment Disclosure (December 18, 2011). Available at SSRN: https://ssrn.com/abstract=3148040 or http://dx.doi.org/10.2139/ssrn.3148040

Seth Whitelaw (Contact Author)

Mitchell Hamline School of Law ( email )

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St. Paul, MN 55105-3076
United States
2152751556 (Phone)

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