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Medicare Compliance & Reimbursement

Enforcement Watch:

How To Shrug Off An Anti-Kickback Investigation

Published on Sat Aug 07, 2004

Eight TAP execs off the hook for drug marketing tactics.

The collision between the feds and TAP Pharmaceutical Products, Inc. that started with a bang may end with a whimper.
     
The government's fraud crusade that reeled in a record $885 million settlement from the Lake Forest, IL drug giant back in 2001 was derailed July 15 when a U.S. District judge acquitted eight current and former TAP sales managers, the Chicago Tribune reports. The defendants were charged with bribing doctors to prescribe the company's lucrative cancer drug Lupron.
     
Prosecutors were allegedly unable to convince a jury that gifts, dinners, lavish trips and cash offered to doctors qualified as kickbacks. According to the Tribune, defense attorneys made their case on the grounds that:
     
  • the business practices in question were intended to educate and build "goodwill";
         
  • current and former employees could not have conspired because they worked in different parts of the country and did not know each other;
         
  • health-care anti-kickback laws were constantly changing during the 1990s, complicating communication between TAP attorneys and Lupron sales marketers; and
         
  • a heavier burden of proof exists for convicting employees.
          Another blow to federal prosecutors: the possible waiver of a guilty plea entered in December by former TAP district sales manager Kimberlee Chase.
         
    Chase was charged with allegedly defrauding Medicare by giving inducements to physicians. However, the Chicago Tribune said July 22 that U.S. District Judge Douglas Woodlock, who presided over both Chase's case and the acquittals, was considering setting aside Chase's plea: "I have come to question whether I would have accepted Ms. Chase's plea if I had known then what I know now," Woodlock stated in a memorandum.
         
    According to the Tribune, Chase had young children and was concerned that a loss at trial would impose a significantly stiffer sentence.
       
    Lesson Learned: The government's probe into drug companies' sales practices may have to take a new tack.

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