Bribe to Prescribe—the Omnicare Debacle Continues

Mariner Health Care of Oxnard, California is the latest entity to get caught in the Omnicare Pharmacy kickback scandal that I wrote about in Could Carrots be at the Root of Psychotropic Trends back in January. The Justice Department alleged in the most recent case that both SavaSenior Care and Mariner conspired to direct nursing home business to Omnicare for 15 years in exchange for $50 million.

According the US Attorney’s Office District of Massachusetts, Mariner has entered into a Corporate Integrity Agreement with the OIG and agreed to pay a $14 million settlement to the US government. The CIA centers around ensuring that the company does not enter into arrangements that violate the antikickback statute. In addition, the Office of the Inspector General reserves its right to seek exclusion of Sava and all principals involved from participation in Medicare and Medicaid programs in the future.

Last time I wrote about Omnicare I focused on the possible relationship between pharmacy kickbacks for certain psychotropic drugs and the frequency of use of those drugs in nursing homes. I did that because I thought the antikickback statute was well known. Since this scenario continued to unfold, however, I thought I’d clarify the statute itself for my readers.

The antikickback statute is part of the Medicare and Medicaid Patient Protection Act of 1987 (42 U.S.C. 1320a-7b) and, in brief, states that anyone who knowingly and willfully solicits or receives any remuneration in return for referrals or purchase or in return for purchasing or recommending any service or item, and anyone who willfully and knowingly offers and pays any remuneration to induce referrals or purchase of any item paid for under the Medicare or a State health program shall be guilty of a felony. The statute prohibits solicitation, offering, and receiving any type of remuneration (in cash or in kind, directly or indirectly) for the defined activities.

There can be no health care driven by anything other than the true needs of residents in long-term care. This is why most long-term care organizations have rules against staff taking tips, because throwing money into the mix of resident care decisions muddies the water and makes it more difficult to be clear and clean in our judgments about who should receive what. I don’t know whether the kickbacks alleged in the Mariner and SavaSenior Care cases resulted in any wrongdoing by the companies or their facilities, but perhaps that’s the point—we can’t know for sure. As the US Attorney in this case wrote, “Nursing home residents and their families are entitled to have decisions about who provides care to them free of the distortions caused by illegal kickback schemes.”

The very existence of kickbacks gives cause for suspicion about how health care decisions are made, and that is enough to warrant action on the part of society to ensure that kickbacks do not occur at all in any form. You would certainly hate to be vulnerable, sick, and lying in a hospital bed having to wonder whether the medications being prescribed to you are the ones that would be best for your needs or the ones the pharmacy is bribing the hospital to prescribe.