The medical device industry was pleased last week when the Massachusetts House of Representatives voted 145-4 to repeal the “gift ban” law as part of a bigger piece of economic development legislation.
House Debate
Representatives Garrett Bradley (3rd Plymouth), Brian Dempsey (3rd Essex), and Barry Finegold (7th Essex), spoke in favor of repealing the ban because it was “discouraging out-of-state interests from doing business in Massachusetts, and that the ban had not led to demonstrable reductions in health care costs.”
In fact, Representative Dempsey asserted during the House floor debate, that no one has seen the gift ban theory “translate into reduced costs.” Instead, the gift ban has caused “a publicly traded company to reduce its marketing budget and shift the funds to neighboring states or into the dividend they are paying their shareholders.” The last place money is going is back to the consumer, as Dempsey pointed out.
The unintended results of the gift ban have caused a “loss of some convention business, and a reduction in medical training and clinical research.” It has also “sent out a message that has chilled opportunities for training and clinical research.” The ripple effect of this legislation has also impacted the restaurant business.”
Those trying to preserve the ban, including Reps. Alice Wolf (25th Middlesex), Ruth Provost (27th Middlesex), Jason Lewis (1st Worcester), and Elizabeth Malia (11th Suffolk), claimed that since “the state had already heavily invested itself in implementing the ban, the state needed to give the law more time to work itself out. Such an idea is disastrous. Patients cannot afford to wait for legislation that will only harm them and hinder the treatment they receive, and physicians cannot experience any further gap in education and training that will result if such a ban is continued.
The rhetoric used by those members who voted to preserve the ban relied on the claim that “more biotech is coming to Massachusetts.” Such a statement clearly ignores recent evidence that shows quite the opposite. And as Representative Feingold pointed out, the gift ban has had a “chilling effect on the medical device industry.”
One of the bigger statements regarding the repeal of the gift ban came from Massachusetts Senate minority leader Richard Tisei (R-Wakefield), who called the ban "foolhardy" and is glad the legislation passed the House. He asserted that "anything that makes it unappealing to do business in Massachusetts is probably a mistake." He further added that “the restrictions on pharmaceutical and medical device companies are more restrictive than those that are in place on legislators, which he called ridiculous."
What Tisei called for is legislation that can “be doing everything to promote Massachusetts as a business-friendly state, as opposed to a state that thinks that everybody in the industry is corrupt.”
Tisei also “voted for a restaurant exemption that failed in the Senate on a 19-18 vote during debate on the state budget. The House proposal — although nearly identical to the Senate's — gives members an advantage their colleagues in the Senate didn't have: it retains the $50 gift ban reporting requirement, rather than striking the ban entirely.”
Medical Device Companies
In response to the House vote, Richard Packer, CEO of Zoll Medical Corp, a medical device company located in Chelmsford, Massachusetts told MassDevice that its "silly" that a doctor can visit Zoll but the company isn't allowed to serve them a sandwich. Packer also pointed out that because “Zoll sells capital equipment, it's more practical for doctors to visit the company than for Zoll representatives to make visits to doctors' offices.” Since the ban prevents his company from serving visiting doctors refreshments, Packer noted that his company has not “hosted anyone in Massachusetts because it's just too embarrassing not to be able to offer them a cup of coffee or a doughnut in the morning."
That is troubling information to hear from an innovative medical device manufacturer, who provides training and devices that save people’s lives, and provide the future foundation for training and education of our next generation’s physicians.
Such a revelation is also disappointing because offering food and “bringing healthcare providers to companies' facilities to train on various devices and procedures is a common practice in the industry,” one that has shown numerous cases of success. Just ask any patient who has a stent or pacemaker, or artificial hip or knee.
Zoll is not the only company to feel the impact of the state ban. As Packer pointed out, “many firms have had to curtail those activities in the Bay State.” This is serious because when “companies stop training Massachusetts doctors, they can't penetrate the Commonwealth's market,” which leaves them with few options.
Packer also pointed out that the timing of such legislation also causes difficulty for device makers because "there's no way to quantify not being able to build relationships, not being about give someone a Coke in your factory, not having people come visit.” This kind of prohibition “is death by a thousand cuts."
Despite recent evidence that the impact of the gift ban has significantly impacted the device and pharmaceutical industry, Boston University law professor Kevin Outterson said the “law has not been in effect long enough to have an impact on the industry.” Why should doctors and patients have to wait any longer for physicians to be able to visit a device manufacturer and meet with them off-hours “when they aren’t looking to book and bill for medical procedures?”
As Outterson himself told MassDevice in June 2009, there’s no doubt that "you have to work with the doctors" to develop medical devices.
So then, if the gift ban is not repealed, who is going to tell a patient that their doctor is not trained to implant a device because their physician could not take a lunch break to receive such training, their elected representative?
Until the ban is totally repealed, which we urge, if a doctor needs training and only has time during their lunch break, perhaps a patient can order lunch for their physician and have it delivered to the device manufacturer. Or is that a conflict for the patient to want to live? What is the difference between a lunch for a doctor, and a constituent sending a campaign contribution to their representative? Last we checked, physicians save lives, and the gift ban in Massachusetts this past year has made their job only more difficult.