Physician Payment Sunshine: Marketing Research Association Declares a Victory

While insurance companies, pharmaceutical and medical device makers, and doctors are still trying to determine how the newly passed health care legislation will affect the business of medicine, the Marketing Research Association (MRA) is declaring a victory. Specifically, MRA noted that the new health care law signed by President Obama on Tuesday is positive because it includes the Physician Payment Sunshine Act. They regard such a provision as “an important win for the survey and opinion research profession” because “the Sunshine Act excludes incentive payments for doctors who participate in marketing research projects.

MRA and other organizations were worried about the impact the Sunshine Act would have of was designed to do which is “curb manufacturers’ efforts to influence the prescribing behavior of physicians.”

MRA’s Director of Government Affairs, Howard Fienberg, PLC, explained however, that Congress made the right choice. The act “recognized that the only influence sought through research incentives is to encourage and thank a difficult to reach but highly important community to participate in research.”

The press release noted that Section 6002 of the new law (originally known as the Physician Payments Sunshine Act) requires public reporting by pharmaceutical, biologic, medical device and medical supply manufacturers of any “payment or other transfer of value” to a doctor over $10, or $100 aggregate annually.

Originally, this would have included incentives for participation in research, even if offered as a directed charitable contribution. MRA noted that such a public disclosure “could have devastated most research with doctors.” Consequently, MRA successfully lobbied Congress to define “payment or other transfer of value” to exclude “a transfer of anything of value that is made indirectly to a covered recipient through a third party in connection with an activity or service in the case where the applicable manufacturer is unaware of the identity of the covered recipient.”

In other words, as long as marketing research is conducted by an independent survey and opinion research company and the manufacturer sponsoring the research does not know who participates in the study, incentives can still be offered as a thank you to physicians who participate in research.

Despite this progress, MRA noted that the impact of the Sunshine act still is “unclear” regarding how will affect existing state laws, meaning that further state legislation and litigation is likely. As those final details are ironed out, the success of MRA with regards to the Sunshine provision is important because “requiring public reporting of incentives could have devastated the research profession in this country and harmed the most basic principle of the research process: confidentiality.”