Filed under: Employment Law, Physicians, Quality Improvement
Peer review is pervasive in hospitals as well as large clinical practices as a result of statutes, courts’ adoption of the corporate negligence doctrine, and accreditation standards. And physicians subject to peer review are increasingly hospital employees or employees of large group practices. It should come as no surprise, then, that employment-based challenges to particular peer reviews have increasingly arisen in the courts — with claims ranging from being used to retaliate for whistleblowing to allegations that such reviews were undertaken as a means of discrimination on a variety of bases.
Of course, where “employment” is not involved, such challenges, whatever their abstract merits, fail because the physician is simply not protected by the relevant law. But even as more physicians became employees, many challenges continue to be unsuccessful because of the “adverse employment action” requirement of antidiscrimination statutes. Thus, the courts have construed Title VII and other laws as not proscribing discrimination per se but as prohibiting discrimination only if it results in sufficiently severe consequences. The effect of this rule is to insulate relatively minor workplace decisions from challenge. Where retaliation for filing a charge or otherwise opposing discrimination is concerned, the federal laws are somewhat more protective. In such cases, if the employer’s action is of the kind reasonably likely to deter protected conduct, it is sufficiently severe to be actionable.
This structure, of course, raises the question of whether peer reviews can be sufficient for liability – assuming, of course, that the employee can establish the requisite causal nexus between the peer review and the prohibited employer conduct.
There are few cases dealing explicitly with the problem, but most courts have thought not: merely referring a patient’s case or a physician’s practice more generally for peer review is common and does not automatically result in any adverse consequences at all. But these cases often conflate the question of whether a referral is adverse with whether the plaintiff can establish that the referral was motivated by discrimination or retaliation. For example, the Seventh Circuit wrote:
Patt has not offered evidence to show that the peer review activities constituted an adverse employment action. The record shows that participating in peer review was a requirement of Patt’s contract (like all doctors at Family Health), and that her male colleagues also had cases referred to peer review. Patt has offered no basis to conclude that the number of her cases referred to peer review was inordinate when compared to the number of her male colleagues’ cases referred for review. Nor has she offered evidence to suggest that any of her cases were inappropriate for peer review. Accordingly, Patt has failed to establish an adverse employment action. . . .
Patt v. Family Health Sys., 280 F.3d 749, 754-755 (7th Cir. 2002).
But what if a doctor can show reason to believe that peer review was wielded for impermissible motivations? Romero v. County of Santa Clara, 2014 U.S. Dist. LEXIS 94643(N.D. Cal. July 10, 2014), permits suit in such cases. In a kitchen-sink complaint, Dr. Luke Romero, an anesthesiologist, claimed a variety of claims for his treatment by the Santa Clara Valley Medical Center at which he worked. Although the district court dismissed most of his complaint, it upheld his retaliation claims where the alleged reprisal was via peer reviews. Dr. Romero had engaged in protected conduct, inter alia, by complaining about patient care issues and about discrimination. Beginning shortly thereafter, he was subjected to five peer review investigations. Looking to the principle that an action is sufficiently adverse if it is likely to deter the protected conduct at issue, the court found peer review to satisfy that standard. Low peer review ratings could subject a physician to discipline, and even loss of privileges with an attendant report to the National Practitioner Data Bank.
Of course, being subjected to peer review does not necessarily result in unfavorable findings, and Romero was not, in fact, subject to corrective action or any other tangible consequences. Only one of the reviews resulted in an unfavorable finding. But the court found that the possibility remained that the peer reviews themselves were an adverse employment action, at least where retaliation was claimed (remember, it has a somewhat lower standard).
That still left the question of whether the reviews were retaliatory, but the court had little problem finding that Romero survived summary judgment on this issue: the peer reviews “came close on the heels” of his protected conduct, and, in the two years prior to that protected conduct, he had not had a single peer review referral. Although neither party compared Romero’s rate of peer reviews with the average doctor at the hospital, Romero offered evidence of both other doctors unfairly targeted and suspicious procedural problems with the reviews.
The case is a textbook example of a clash between desirable public policies, both related to public health: peer review is central to improved patient care in the modern healthcare system, and disincentives to use it when appropriate threaten its success. On the other hand, peer review creates the opportunity to keep employees in line, and discourage the kind of whistleblowing which is thought to help keep the entire system honest. It also creates opportunities for racial, gender, or disability discrimination. Whether Romero is an outlier or the first of a new line of jurisprudence on this issue remains to be seen.
Filed under: Drugs & Devices, Monday Morning Recap
Well, once again it’s been two weeks since we last did a Monday Morning Recap, the post where we call out recent drug and device law and policy developments that caught our eye and made us think. And there’s been a lot going on…
1. The September issue of The Milbank Quarterly contains an original empirical study by Genevieve Pham-Kanter analyzing the effects of the financial ties that members of the Food and Drug Administration’s advisory committees have with drug manufacturers. Among her very interesting findings is the fact that while a committee member with ties to one manufacturer was more likely to recommend approval of that manufacturer’s drug, committee members with ties to multiple manufacturers did not show an overall bias in favor of approval. Aaron Carroll wrote about the study at the New York Times, here, and David Schlaes wrote about it here. Per Schlaes: “The take-home lesson to me is that experts are actually experts. Those that are in demand by multiple companies for help in analyzing or developing their products are more likely to be the kind of experts the FDA is seeking and less likely to let their financial and other relationships with sponsors get in the way of their expertise.”
2. The contentious debate between the drug and device industry and the Department of Justice over where to draw the line between protected speech, on the one hand, and punishable fraud, on the other, continues. In an article at FiercePharmaMarketing this week, Tracy Staton calls attention to a brief the government filed at the end of August. Staton writes: “In essence, the brief asks the court to determine that ‘speech that serves as a conduit for violations of the law’ isn’t protected by the First Amendment. PhRMA, of course, is asking for the opposite. It wants the court to decide that the law only prohibits ‘at most, false speech,’ which would give reps the chance to talk about off-label use of meds, as long as they’re telling the truth.”
3. This week also brought news that a supervisory pharmacist at the New England Compounding Center was arraigned and pled not guilty to a single count of mail fraud. Denise Lavoie of the AP reports: “Chin, a supervisory pharmacist, is accused of participating in a scheme to fraudulently cause one lot to be labeled as injectable, meaning it was sterile and fit for human use. The drug was shipped to Michigan Pain Specialists in Brighton, Michigan, and injected into patients. As a result, 217 patients contracted fungal meningitis, and 15 died. Chin is the first person to be charged criminally in the case, but prosecutors have said the prosecution is part of a larger criminal investigation of Chin and others.“
4. At the New England Journal of Medicine, Rita Redberg argues that “[b]linded, randomized, controlled trials (RCTs), in which the proposed therapy is compared with a placebo or a ‘sham’ (nontherapeutic) intervention,”which are currently “rare for medical devices” need to become more common. Dr. Redberg recommends that “the risk associated with performing unnecessary procedures … be weighed against the risk of mistaking a placebo effect for therapeutic benefit and therefore subjecting thousands or millions of patients to a procedure that actually does them no good.”
5. Finally, at the New Yorker this week, Andrew Solomon discusses the “terrifying dilemma” confronting women with depression who must weigh a dizzying array of known and unknown risks when deciding whether to pursue treatment with antidepressant medication. Solomon writes:
The debate rages, and the choice is a difficult one: to be depressed during pregnancy, with troubling consequences, or to be on medication during pregnancy, with unclear ramifications. It is not helpful when the complexity of the decision is belittled. ‘Everyone’s happier with this idea that the medications are O.K.,’ [Roni Caryn] Rabin wrote, quoting an expert. Everyone is second most happy learning, as Rabin suggests, that the medications are poison but depression is fine—because clarity and simplicity make life easy. If the meds help more than they harm, you take them; if they harm more than they help, you don’t take them. The problem is that this is a highly nuanced question to which there is no consistent answer, and about which we know too little. That makes everyone excruciatingly uncomfortable.
In this article I wrote several years ago, I review some of the reasons for the dearth of information about the risk-benefit ratio of drugs when used during pregnancy and make recommendations for policy responses.
Filed under: Chronic Health Conditions, Health Insurance
Cross-Posted at Bill of Health
In recent months, advocates have alleged that discrimination on the basis of health status in health insurance continues, notwithstanding the Affordable Care Act’s attempts to level the playing field for people with chronic health conditions. How the government and industry should respond to the allegations is not clear, however, in part because what constitutes “discrimination” is not clear in this context. As Jessica Roberts has noted, there is an “intrinsic tension between an antidiscrimination framework and the practices of the private, for-profit health-insurance industry.” This tension makes it difficult to pinpoint where permissible cost-consciousness ends and impermissible discrimination begins.
As has been widely reported, at the end of May, the National Health Law Program, along with the Tampa-based organization The AIDS Institute, filed an administrative complaint with the United States Department of Health and Human Services’ Office of Civil Rights in which they allege that four qualified health plans offered through the federally-facilitated marketplace in Florida discriminate by “charg[ing] inordinately high co-payments and co-insurance for medications used in the treatment of HIV and AIDS.” The complainants go on to allege that because “[o]ther issuers vary tiering or place HIV drugs on more affordable tiers,” “the practice of placing all anti-retrovirals on the highest tier is not a market-norm or necessity.”
The complaint’s emphasis on whether the plans’ actions reflect a “market-norm or necessity” tracks the Centers for Medicare & Medicaid Services’ 2015 Letter to Issuers in the Federally-Facilitated Marketplaces, in which CMS writes that “to ensure nondiscrimination in [qualified health plan ("QHP")] benefit design, CMS will perform an outlier analysis on QHP cost sharing (e.g., co-payments and co-insurance) as part of the QHP certification application process.” CMS goes on to specify that, with regard to prescription drugs, a plan will be considered an “outlier” if it has “an unusually large number of drugs subject to prior authorization and/or step therapy requirements in a particular category and class.”
As Sarah Rosenbaum has noted, “CMS does not provide a review methodology or define what is ‘unusually large’.” Even if it had, what if subjecting a large number of drugs to prior authorization or step therapy requirements did not make a plan unusual? Would that mean that doing so was not “discrimination”? A study released in June that was funded by the trade organization PhRMA found, among other things, that:
in seven of 19 classes of medicines for serious illnesses, such as cancer, HIV/AIDS, autoimmune diseases such as rheumatoid arthritis and multiple sclerosis, and bipolar disorder, more than 20 percent of Silver plans require coinsurance of 40 percent or more for all drugs in those classes. Similarly, in 10 of the 19 selected classes, at least 20 percent of Silver plans require coinsurance of 30 percent or greater for drugs in the classes.
A letter sent in late July by the I Am (Still) Essential campaign to the Secretary of the United States Department of Health and Human Services, Sylvia Mathews Burwell, similarly raised concerns that cut across chronic health conditions and might even be considered “market-norms”:
Based on reports of enrollee experiences during the first year of Marketplace implementation, we have identified a number of concerns. These include discriminatory benefit designs that limit access, such as restrictive formularies and inadequate provider networks; high cost-sharing; and a lack of plan transparency that may deprive consumers of information that is essential to making informed enrollment choices.
It seems to me that the benefit designs that PhRMA and the I Am (Still) Essential campaign complain of could be discriminatory even if they were a market-norm. The Affordable Care Act’s prohibition on discrimination on the basis of health status would be much less meaningful if discrimination were defined to exclude actions taken by all or a substantial portion of the issuers in the market, or by a single issuer with regard to all or a substantial portion of chronic health conditions. This raises the question of how to determine if a plan is discriminating if not by reference to whether it is an outlier. In its 2015 Letter to Issuers, CMS suggests an answer, stating that, in addition to performing an outlier analysis, it will review plans for “[d]iscriminatory cost-sharing language,” which, it says, ” would typically involve reduction in the generosity of a benefit in some manner for subsets of individuals other than based on clinically indicated common medical management practices.”
In a policy brief on tiered pharmacy benefit designs released last month, Sally McCarty and David Cusano discuss the potential for such designs to violate the Affordable Care Act’s anti-discrimination provisions. McCarty and Cusano write that “state insurance regulators do not always have the staff or other resources to detect discriminatory designs during the form review process[.]” They suggest that “advocates and other supportive groups may be able to offer assistance by promoting legislative efforts and developing new and creative resources to examine tiered formularies with specific groups or conditions in mind, much like the analysis conducted by the groups that filed the complaint against the Florida insurers.” To the extent that concerns about cost-sharing are market-wide, however, advocacy groups will likely also want to join together, in efforts like the I Am (Still) Essential campaign, to support state and federal legislative initiatives (McCarty and Cusano highlight a number of these at p. 4 of their brief) that would limit cost-sharing across issuers, across health conditions, and across plan designs.
This week, Seton Hall Law’s Kathleen Boozang published a blog post at Jotwell reviewing Joseph Yockey’s article Choosing Governance in the FCPA Reform Debate, which was published in the Journal of Corporation Law.
Dean Boozang writes:
In the end, Yockey suggests a climate that is not unlike that of healthcare enforcement more generally: ‘Some firms likely remain undeterred by the present FCPA enforcement climate, whereas the risk and expense associated with even modest FCPA scrutiny can cause socially responsible firms to seek check-list solutions to compliance challenges that they (and regulators) often do not fully understand. This dynamic does not help firms that seek to remain law-abiding, nor does it help regulators operating with limited capacities find ways to reduce overall levels of bribery.’
Yockey suggests a solution to this state of affairs in new governance, whereby firms would work in a consultative manner with regulators to create compliance programs that are context-specific and therefore more likely to be effective in combating corruption. This conversation seems quite timely, as life science companies are discussing whether it is more effective in resisting corruption to adopt a single template compliance program or tailor made programs specific to each region. Some support for the context-specific approach can be found in the October 2013 European Union Study on Corruption in the Healthcare Sector, which suggests that, because the triggers for corruption vary by economy, a one-size-fits-all solution does not best address corruption, the form of which also varies by member state.
You can read Dean Boozang’s entire post here.
Filed under: Drugs & Devices, Food and Drug Administration (FDA)
Last week, Seton Hall Law alum David Gibbons of Hyman, Phelps & McNamara published a blog post at the firm’s FDA Law Blog on a very interesting legal question, whether a court can order the FDA to order a drug manufacturer to recall a drug. In a suit brought by Hospira challenging the FDA’s approval of generic versions of one of Hospira’s drugs, a federal district court in Maryland recently reversed itself on this point. The court vacated its earlier–unprecedented–ruling that would have required the FDA to order the generic drug manufacturers to recall the generic versions of the drug at issue. As Gibbons explains:
Generally speaking, FDA cannot compel a mandatory recall, except in very limited circumstances as authorized by statute, none of which apply to drugs…
FDA states clearly and succinctly in its Brief: “FDA cannot order recalls.” The Agency goes on to argue that the recall ordered in the Hospira TRO could not even be requested by FDA because the basis for the recall was a patent dispute and not a matter of product safety or efficacy. FDA says: “consumers should believe that recalled products present a risk to health or are grossly deceptive. That is decidedly not the case here.” The Agency admitted that “[i]f a company chooses not to comply with an FDA request to recall, FDA has no mechanism to enforce its request because it does not have statutory authority to order drug recalls.”