The Physician Payment Sunshine Act (Open Payments) Final Rule has not clarified all of the expectations under the law. The language regarding meals at Continuing Medical Education (CME) events continues to create confusion, and Congressman Robert E. Andrews (D-1st District, New Jersey) is asking the Center for Medicare and Medicaid Services to do something about it in a letter dated November 5, 2013.
Exemption Criteria for CME Programs
Congressman Andrews requested that CMS exempt from individual reporting the cost of all food served at CME events for CME speakers/faculty and for CME attendees. The rule already exempts speaker/faculty honoraria, including meals, from qualifying CME events that meet the following three conditions:
- The CME program is accredited by the ACCME, AOA, AAFP, AMA, or ADA; AND
- The manufacturer does not make a payment or transfer of value directly to speakers/faculty or attendees/ participants that are deemed covered recipients; AND
- The manufacturer does not select or influence the selection of speakers/faculty or attendees/participants.
The CME Coalition released a comprehensive Sunshine Act Compliance Guide to help medical education providers, CME event sponsors, and commercial supporters organize CME programs in compliance with Open Payments, including a very helpful Compliance Decision Tree on the last page of the guide. The Coalition also released an updated frequently asked questions (FAQ) supplement that includes important answers, and citations to regulations, intended to answer a number of questions, including how to handle attendee meals (Section VI). Nevertheless, with so many possible scenarios related to meals, the current reporting requirements beg misunderstanding.
The easiest way to avoid necessary reporting, while still providing meals, is for the CME provider to serve only buffet style meals or “boxed lunches” at a communal table, which are already exempt. Reporting is also not required if the CME provider segregates physician-paid attendance fees to cover the cost of food and beverages, whereby the physicians are essentially purchasing their own meals. Additionally, meals under $10 per person also do not require reporting. The Coalition Guide does a nice job of clarifying that, even if the payment for a meal is exempt (under $10), it still should be tracked in case the aggregate amount for the year exceeds the $100 limit. And that’s where confusion can begin.
Solving the CME Reporting Problem
One issue related to reporting meals and beverages includes the logistics of getting the names of participating physicians to the applicable manufacturer. CME providers are not required under the law to track participating physicians, although commercial supporters can require such tracking through contractual agreements; however, there is significant confusion around providing commercial supporters with the attendance list until all post-activity outcome measures are complete. The ACCME has recently stated that they have no policy on attendee lists.
Large scale events that include accredited and unaccredited sessions, and may include buffet and plated meals, also present a logistical concern… and never-mind keeping track of the math if there are multiple commercial supporters for an event. It is also worth noting that a physician may be a speaker at one session of a large scale event, but an attendee at another session. Currently, if that physician received a plated meal worth more than $10 as an attendee, that meal would be reportable.
In his letter, the Congressman states:
The United States has some of the best medical practitioners and technology in the world and CME conferences allow physicians to stay abreast of the latest developments in medical science. Neither these physicians nor the manufactures who subsidize CME events should have to worry about reporting that a meal was provided at a demonstration on new techniques to detect cancer. CMS has already recognized that the accreditation bodies and existing industry standards “create important and necessary safeguards prohibiting the involvement of the sponsor in the educational content.” (citation omitted) Therefore, if the honoraria and expenses of the CME faculty are exempt on that basis, the meal that accompanies the presentation for the attendees should be exempt as well.
Congressman Andrews’ request that CMS exempt all food served at qualifying CME events is a common sense solution that will simplify the participation in, and planning of, educational programs that are crucial to keeping physicians current on best practices and technological advances.