http://www.nytimes.com/2001/10/04/business/04DRUG.html?pagewanted=print
October 4, 2001
2 Drug Makers to Pay $875 Million to Settle Fraud Case
By MELODY PETERSEN
The settlement against the joint venture, TAP Pharmaceutical Products, is
the largest for health care fraud. Prosecutors contended that sales representatives for TAP gave doctors free
samples of Lupron, a drug used to treat prostate cancer and infertility, and
then helped them get government reimbursements at hundreds of dollars for
each dose. Prosecutors also indicted six current and former employees of TAP —
including Alan MacKenzie, now the president of Takeda Pharmaceuticals North
America — charging them with conspiracy to pay kickbacks to doctors if they
prescribed Lupron. The kickbacks included trips to resorts, medical equipment
and money offered to the doctors as "educational grants,"
prosecutors said. Takeda Pharmaceuticals is the American subsidiary of Takeda Chemical
Industries of Japan. Abbott Laboratories is based in Abbott Park, Ill. The investigation began more than four years ago after Douglas Durand, a
former vice president for sales at TAP, and Dr. Joseph Gerstein, a urologist
employed by the Tufts Associated Health Maintenance Organization in Waltham,
Mass., separately told federal officials about what they believed were
illegal sales practices on the part of TAP. After starting to work with federal investigators, Dr. Gerstein met with
TAP sales representatives who offered him $65,000 in grants that they said he
could use for any purpose if he would reverse his decision to have his health
maintenance organization use only Zoladex, a less expensive drug that
competes with Lupron. Dr. Gerstein, Mr. Durand and Tufts are to share roughly $95 million of the
settlement for serving as whistleblowers under federal law. The settlement agreement, which had been expected for months, comes as
other drug companies are under scrutiny for similar practices. Bristol-Myers Squibb (news/quote)
and Schering-Plough (news/quote)
have said they are being investigated by the same prosecutors in Boston who
announced the settlement with TAP yesterday. Those investigations also
involve questions about how the companies marketed and priced drugs covered
by Medicare. Both companies said yesterday that they had done nothing wrong. Michael J. Sullivan, the United States attorney for Massachusetts, said at
a news conference in Boston yesterday that the settlement and indictments
sent "a very strong signal to the pharmaceutical industry." "These types of behavior are not tolerated," Mr. Sullivan said,
"and are going to be investigated, even if it takes four and a half
years to bring to conclusion." The $875 million settlement is more than the $840 million paid last year
by HCA-the Healthcare Company, the large hospital chain, to settle health
care fraud charges. It is also more than TAP's sales of Lupron last year,
which were about $800 million. Thomas Watkins, the president of TAP, which is based in Lake Forest, Ill.,
said yesterday that the joint venture "fundamentally disagreed"
with most of the prosecution allegations, but had decided to settle the case
because the government had threatened to stop all federal reimbursements for
Lupron. Those reimbursements accounted for about $450 million of the drug's
sales last year, he said. "We could not afford to have this drug denied to our patients,"
he said. Mr. Watkins added that the availability, safety and effectiveness of
Lupron was never a question in the case. He said that TAP admitted it provided free samples of Lupron to a number
of physicians, primarily in the early to mid-1990's, knowing that the doctors
would seek reimbursement from the federal government. "The billing for free samples is wrong, and it should never have
happened," Mr. Watkins said. "We have taken strong action so that
this inappropriate marketing practice will never happen again." Takeda Pharmaceuticals said that Mr. MacKenzie had decided to take a leave
of absence from the company to focus on his defense against the government's
charges. "We fully support him in his belief that he will be exonerated,"
said Matt Kuhn, a Takeda spokesman, "and we look forward to his
return." Medicare now covers a very limited number of drugs. Most of them are
products like Lupron, which must be administered by a physician. Pharmaceutical companies supply doctors with drugs to give Medicare
patients, and Medicare then repays the doctors based on a price provided by
the companies called the "average wholesale price." The government charged TAP with inflating that price so that doctors could
be reimbursed more than TAP actually charged them for the drug. The excessive
government reimbursements were cited by sales representatives, the government
said, as a way to get doctors to prescribe Lupron rather than its
lower-priced competitor. In addition, since the government pays just 80 percent of the price of the
drug, and patients pay the rest, prosecutors said that TAP had defrauded
hundreds of elderly Medicare patients, mostly men suffering from prostate
cancer, by inflating Lupron's average wholesale price. At least one lawsuit has been filed against TAP to recover the excessive
payments by patients. The government has also charged five doctors with health care fraud in the
case. Prosecutors said that those doctors had conspired with the company to
receive excessive Medicare reimbursements. Four of those doctors were charged
months ago and all have pleaded guilty to the charges. The fifth doctor was
indicted yesterday. As part of yesterday's settlement, TAP also agreed to comply with a 33-
page "corporate integrity agreement." The document requires TAP to
train its employees in the proper methods of promoting and marketing drugs
covered by federal health programs. The agreement also requires TAP to
accurately report its true average sales price for Lupron and other drugs to
the Medicare and Medicaid programs. The company would be forced to pay a fine of $2,500 for each day it fails
to comply with the agreement, which is effective for the next seven years. Charles S. Prouty, special agent in charge of the F.B.I. in New England,
which was part of the investigation, said that other cases were still going
forward and would result in "very significant settlements." Medicare frauds, he said, "are an insidious kind of white-collar
crime, and we have made some serious inroads in attacking them." |
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