Companies in FDA-regulated industries continue to engage in fraud. From pharmaceutical fraud and biotech fraud, to medical device fraud and medical equipment fraud, the landscape has broadened. One reason may be a lack of sufficient resources for the FDA to regulate and fully police these industries. To report FDA fraud, either instead of, or in conjunction with filing a qui tam lawsuit, the most relevant governmental agency to contact is the FDA’s Office of Criminal Investigations (FDA-OCI), located in Rockville, Maryland.
Should you choose to contact us to report FDA fraud, we suggest taking the following steps:
A. Describe the organization of the company. Explain divisions, hierarchy, management names, etc. Which divisions were involved? What were their responsibilities?
B. List and describe the Management Players.
C. Summarize the fraud in detail (four common areas are listed below):
1) Off-Label Marketing
i. Describe sales training. Include the time period and all details about any off-label aspect of it, both initial and thereafter. Also include medical liaisons and reimbursement specialists, if applicable, and any others who were part of the sales force.
ii. Describe sales meeting details.
iii. Describe compensation details.
iv. Explain off-label uses targeted.
v. Explain the percentage of estimated off-label sales of each product and a breakdown of the off-label use percentage.
vi. Explain types of physicians targeted for off-label use; what reports and target lists reps were provided with, etc.
vii. Describe the techniques used to interact with physicians.
viii. Describe any misrepresentations made to physicians.
2) Kickbacks
i. Describe any speaker programs, clinical trials, registries, and other “clinical” programs handled by marketing or sales; and attendee benefits (include discussion of speaker training, of speaker presentations, and whether they kept to script, attendee selection, etc.).
ii. Describe any and all of the following payments made for or to physicians:
– Honorariums;
– Grants;
– Preceptorships;
– Advisory Board Meetings (“Round Tables”); and
– Other consultant positions.
iii. Describe any inappropriate payments made to equipment distributors, hospital systems, specialty pharmacies, any Pharmacy Benefit Manager fraud, or any other fraud involving third parties.
iv. Make a list of all documents that are not in your possession but that you believe are relevant. Doing so now will also be helpful to you to crystallize the facts, whether or not you file a qui tam lawsuit.
i. Describe any material unreliability issues, known quality control failures, finished product release specification issues (i.e. describe how the devices were manufactured with performance characteristics that were set below what was claimed as performance specifications in respective product inserts, PMA’s and 510(k) submissions, which has resulted or could result in substandard, defective products). Describe other problems that the manufacturer is or should be aware of but has not adequately fixed or warned the provider community.
ii. Make a list of all documents that may or may not be in your possession but that you believe are relevant.
4) Pharmaceutical Pricing Violations (Pharma Companies Only)
i. Describe misrepresentations of any price reporting to the Center for Medicare and Medicaid Services (CMS).
ii. Make a list of all documents that may or may not be in your possession but that you believe are relevant.
If we accept your case for investigation, Nolan Auerbach, will engage in a thorough and confidential evaluation of the facts. We will assess whether the law and regulations, together with the evidence, support allegations of widespread healthcare fraud. We will then provide you with feedback on your potential case, and jointly discuss whether to proceed.
Kathleen Hawkins, RN MSN, had been employed by Defendant, Catholic Healthcare West (CHW) for approximately 6 years when she decided she had had enough of trying to change the hospital system from within.
CHW, a California not-for-profit corporation that operated hospitals in California, Arizona, and Nevada, was at the time the eighth largest hospital system in the nation and the largest not-for-profit hospital provider in California.
Joe Strom contacted us in 2005. We were very grateful that he did. We immediately formed an all-star legal team and a process to stop a very harmful pharmaceutical marketing strategy. It was this process we set into motion that ultimately returned hundreds of millions of dollars to the U.S. Treasury, and a portion of that, very well-deserved, into Joe’s bank account.
Joe told us a very troubling story about the off-label promotion of a pharmaceutical drug for patients who already suffered from chronic heart failure.
Bruce Moilan was a seasoned hospital systems expert by the time he contacted our Firm. At the time he decided to file his qui tam lawsuit, he was employed by South Texas Health System as a System Director for Materials Management. In this position, he oversaw $24 million in annual purchases of supplies and equipment and helped determine budget, reduction and cost analysis throughout the contract bidding and negotiations process. His job was to insure proper implementation for purchasing, receiving and management of inventory, for McAllen Hospitals, L.P.
