EP382: Pharma Conflicts of Interest and the Anti-Kickback Statute, With Aaron Mitchell, MD, MPH
October 06, 2022
382
32:47

EP382: Pharma Conflicts of Interest and the Anti-Kickback Statute, With Aaron Mitchell, MD, MPH

I saw a Tweet from Farzad Mostashari, MD, the other day; and I’m gonna rewrite it in the context of today’s show:

This is why we can’t have nice things! As soon as someone comes up with something that might accomplish some good things when done in moderation and with good intent, it gets exploited for revenue maximization.

I have to admit, this conversation with Aaron Mitchell, MD, MPH, and actually the one with Mark Miller, PhD (EP380), from two episodes ago were both kind of painful for me—and let me tell you why. It’s the same reason I find conversations painful about hospitals or leading cancer centers or even some self-insured employers and EBCs (employee benefit consultants): It hurts my heart when some percentage of healthcare industry peeps who have the opportunity to produce so much good in the world instead choose to do stuff that is financially or otherwise toxic.

But let me get to the point of today’s show. Dr. Aaron Mitchell and I are talking about conflicts of interest (COI), and we’re talking about COI in the payments that are made from Pharma to physicians. COI might mean when physicians are paid in a way that skews their clinical decision-making. Nobody wants to be the patient of a physician with skewed decision-making, after all. That’s the “why” of this whole discourse.

Now, let’s get into two important points re: skewed decision-making. Any payment that skews decision-making is, in fact, considered no bueno by the current writing of the AKS, the anti-kickback statute. Second, almost any payment, direct or indirect, turns out, skews physician decision-making.

It’s not just getting paid the big bucks to make a speech or consult or whatever. Getting a modest free lunch can also have the same effect. Prescribing is affected. That’s what the data show and what the recent paper that Dr. Aaron Mitchell and his colleagues published in the Journal of Health Politics, Policy and Law articulates. Their paper is titled “Industry Payments to Physicians Are Kickbacks: How Should Stakeholders Respond?”

So, hmmm. Much to cogitate upon in what I just said, which is what the conversation with Dr. Aaron Mitchell that follows is all about. But let me offer up a few spoilers and maybe some additional thoughts.

First of all, some “Are payments COI and kickbacks?” contemplations are pretty black and white. We start out the conversation in this healthcare podcast talking about the recent Biogen incident, I guess I’ll call it, which is sadly not an outlier. Biogen never admitted any wrongdoing here. But if what they are accused of doing is true, this could be considered not a gray area. This is black-and-white COI—unquestionably should not happen.

But where things get a little bit more open to interpretation and require some consideration and thoughtfulness is if we’re trying to weigh the gray in the middle between black and white. Here, what needs to be thought through is the aggregate good versus the aggregate bad of Pharma paying physicians to do stuff or buying things for them. If Pharma needs help during its clinical trials to figure out a breakthrough therapy and they want to talk to leading experts in a specialty, that’s maybe a good thing so that they can get a drug that actually works well for patients.

So is—and this is me talking, not Dr. Mitchell—but I could see that Pharma helping to figure out ways to educate clinicians about the best ways to help patients suffering with real diseases that nobody else is making any effort to do anything about at a national scale … it could help humans live better lives if Pharma takes the advice of the right thought leaders and helps to disseminate their teachings.

Maybe physician societies could fill this role, but a lot of times, who needs educated are not the actual doctors in the society in question. It’s other doctors the patient is seeing who don’t realize the root cause is a GI problem or CKD (chronic kidney disease) until the patient needs a liver transplant or “crashes” into dialysis in the ER.

But irrespective of the validity of my musings here, the point is to quantify the in-aggregate “good” that might happen as a result of Pharma paying appropriate clinical experts appropriate amounts.

Contrast that aggregate good against some not so good. Study findings that Pharma can drive up not only Rx’s (prescriptions) for its own drugs but also drugs in general when they buy stuff for doctors or pay doctors. Patient populations get overmedicated when compared to a baseline as a result. Too many patients get diagnosed and treated for some condition that they may not actually have. Too many expensive me-too drugs get prescribed at big unnecessary costs to patients, taxpayers, and employers. When I say costs to patients, by the way, I also might be implying a clinical overtone here as much as a financial one, because there’s almost no drug that comes without side effects.

So, what are some solutions that Dr. Aaron Mitchell mentions in this episode, or I that bring up, if we are trying to steer physician payments into the aggregate good zone and out of the bad COI zone? Here we go, and these are not necessarily in the order in which they are discussed:

  1. Keep an eye on practice patterns and overall costs. This might make physicians aware when their clinical decision-making is getting swayed, so to speak.

  2. Get payers involved. Listen to this whole episode for the “how” and “why” here, but if anyone has a visceral reaction to this, here’s one possible positive from a physician standpoint: It could be a way to get rid of a lot of PAs (prior auths). If a doc’s practice pattern is average, on trend, and/or they do not take industry dollars, then they get what amounts to a PA gold card. With that carrot, a doc may have less inclination to let their prescribing decisions sway and/or take pharma dollars.

  3. The federal government can get involved in a few ways that Dr. Mitchell talks about. One of them is a direct ban on all payments. Or maybe they could just clarify what is okay and what is not okay, since what is listed as COI in the current AKS is also currently considered an industry norm.

  4. Asking providers themselves to pay attention and self-regulate and to, for example, not accept speaking gigs where they are paid to talk to an empty room or “consult” on topics that really they should know they’re not thought leaders in.

You can learn more at Dr. Mitchell’s personal profile on the Memorial Sloan Kettering Cancer Center Web site.

You can also connect with Dr. Mitchell on Twitter at @TheWonkologist.

Aaron Mitchell, MD, MPH, is a practicing medical oncologist and health services researcher. He is an assistant attending at Memorial Sloan Kettering Cancer Center in the department of epidemiology and biostatistics. His research focuses on understanding how the financial incentives in the healthcare system affect physician practice patterns and care delivery to cancer patients. He cares for patients with prostate and bladder cancer.

07:32 How does the recent whistleblower case serve as a good example of what shouldn’t be permissible in Pharma?

11:23 “There’s a little bit of a disconnect between what the law currently says and maybe the ideal world that we would want.”

11:56 Dr. Aaron Mitchell’s paper in the Journal of Health Politics, Policy and Law, titled “Industry Payments to Physicians Are Kickbacks: How Should Stakeholders Respond?”

14:37 How should stakeholders react to this new legislation?

17:56 What is the aggregate benefit versus risk of these payments to doctors?

19:53 BMJ paper by Tyler Greenway and Joseph Ross.

23:51 What should providers and the federal government be doing in light of this new legislation?

29:07 “It’s just always so much harder to get to the outcomes because there’s so much more that happens in between the clinical decision and then what the patient’s outcome is down the road.”

30:42 Will innovation be stifled with this new crackdown on kickbacks?

You can learn more at Dr. Mitchell’s personal profile on the Memorial Sloan Kettering Cancer Center Web site.

You can also connect with Dr. Mitchell on Twitter at @TheWonkologist.

pharma,memorial sloan kettering cancer center,kickback,
|

Episode Support Provided By

Special Thanks to Our 2026 Sustaining Monthly Donors

Kimberly Carleson, Dylan Yahn, Benjamin Light, Matt McQuideAnn Kempski, Spencer Allen, Scott TromanhauserMarilyn Bartlett, 
Steven Elkins, Matthew Bunte, and Lori Smith.

Recent Episodes

EP508: Why Don't More Self-insured CEOs Take Bold Action in Health Benefits Strategy? With Lee Lewis
Relentless Health ValueApril 23, 2026
508
44:0240.31 MB

EP508: Why Don't More Self-insured CEOs Take Bold Action in Health Benefits Strategy? With Lee Lewis

Listen on Your Favorite App This episode is the very first episode that we have done that is an AMA—an Ask Me Anything—and here is our very first question. Sarah Monroe: Hi. This is Sarah Monroe in Chicago, and I'm a benefits procurement leader. And I'm curious why you think so few executives take p...

EP507: 4 Core Concepts to Buy or Deliver the Highest-Value Healthcare—A Review
Relentless Health ValueApril 16, 2026
507
33:5831.09 MB

EP507: 4 Core Concepts to Buy or Deliver the Highest-Value Healthcare—A Review

Listen on Your Favorite App Look, we wonks, meaning you and me, you're listening to this, so I am on to you. But we wonks in the Relentless Tribe, we move like lightning on Relentless Health Value. We tend to cover lots of ground pretty fast. So, sometimes I like to, with great intention, sum up wha...

EP506: How Other Employers, Shareholders, and Clinics Are Using Price Transparency Data—And It's an Arms Race, With Jerry DiMaso
Relentless Health ValueApril 09, 2026
506
35:5132.81 MB

EP506: How Other Employers, Shareholders, and Clinics Are Using Price Transparency Data—And It's an Arms Race, With Jerry DiMaso

Listen on Your Favorite App, So, we have a few miniseries afoot here on Relentless Health Value right now, and one of them is "The Inches That Are All Around Us"—finding the hidden fees, the hidden friction for plans and members and clinics themselves a lot of times in those inches. For a full trans...

EP505: The Death of the "What Is Value" Guessing Game for Clinical and Plan Decision-Makers Ready to Move On, With Ahilan Sivaganesan, MD
Relentless Health ValueApril 02, 2026
505
44:0240.31 MB

EP505: The Death of the "What Is Value" Guessing Game for Clinical and Plan Decision-Makers Ready to Move On, With Ahilan Sivaganesan, MD

Listen On Your Favorite App Hello, Relentless Tribe. Thank you so much for showing up today. All right … to start, let me lay out the goal of the episode today. This episode is for you if you are a self-funded employer looking to ensure your members are steered and tiered to real high-value care and...

EP504: A Back-to-Basics Roadmap Through the Perverse Incentives to Advanced Primary Care, With Ryan Jacobs
Relentless Health ValueMarch 26, 2026
504
33:3630.76 MB

EP504: A Back-to-Basics Roadmap Through the Perverse Incentives to Advanced Primary Care, With Ryan Jacobs

Listen On Your Favorite App It's been a while since we started from the beginning, so let's just take stock of the basics in this show, refresh ourselves if you're a longtime listener, or welcome if you're new around here. Today we are digging on and about what I would call the poster child for prov...

INBW46: Relentless Tribe Goings-On With Insights to Outwit the Hot Mess of the Non-Healthcare Market
Relentless Health ValueMarch 19, 202619:3717.96 MB

INBW46: Relentless Tribe Goings-On With Insights to Outwit the Hot Mess of the Non-Healthcare Market

Listen On Your Favorite App This inbetweenisode I wanna try something new for two reasons. One of them is that I need to check this episode off my to-do list because I am crushed for time. I'm going to be headed to Arizona tomorrow for the Collective Health Conference , which will have occurred thre...

EP503: Let's Go From Lazy PPO Networks to Smart Collaboration With Direct-to-Employer Specialty Care, With Ryan Wells; Leo Spector, MD, MBA; and Adam Stavisky
Relentless Health ValueMarch 12, 2026
503
46:1642.35 MB

EP503: Let's Go From Lazy PPO Networks to Smart Collaboration With Direct-to-Employer Specialty Care, With Ryan Wells; Leo Spector, MD, MBA; and Adam Stavisky

Listen On Your Favorite App Today we are digging into something I've said probably way too often: Collaboration is the next breakthrough innovation. And I'm doubling down on this because in the current healthcare landscape, two parties that actually should be talking—like burning up the phone wires ...

Listen and Follow

Sponsored by Aventria Health Group
©2026 BD Bridges LLC. All Rights Reserved.