What Does the Sunshine Act Mean for Orthopedic and Spine Surgeons?

At the 12th Annual Spine, Orthopedic and Pain Management-Driven Conference in Chicago on June 13, a group of orthopedic and spine surgeons discussed CMS' Sunshine Act.

The panel discussion was moderated by Tara Shewchuk, vice president of ethics and compliance for Medtronic Spinal. Panelists included James Lynch, MD, neurosurgeon with Spine Nevada in Reno, Nick Shamie, MD, spine surgeon with UCLA Spine Surgery, and Hythem Shadid, MD, orthopedic surgeon with Genesis Orthopaedics and Sports Medicine in St. Charles, Ill.

Ms. Shewchuck began the discussion with an overview of CMS' Open Payments program, more colloquially known as the Sunshine Act. The act applies to manufacturers (all pharmaceutical, biologic and device companies) and their exchanges of value to physicians (excluding residents) and teaching hospitals. Subject to reporting are direct payments, indirect payments or transfers, physicians' ownership and investment interests in a manufacturer, and payments made on behalf or at the request of a physician or teaching hospital.

Sixteen categories of payment are covered by the law, including consulting fees, meals, travel and gifts. Items that are not reportable include product samples and transfers of less than $10, but Ms. Shewchuck said the latter is a bit of a misnomer. "The aggregate total is still $100, so if the value equates to $100 over a reporting period, it is reportable," she said. For instance, if a physician accepts 30 $4 coffees over the course of a year from a vendor, that would be a reportable gift, as it would total $120 over a reporting period. "From the manufacturing standpoint, we have to track every manufacturing value, no matter how little it is," said Ms. Shewchuck.

Dr. Lynch said he finds the intention of the Sunshine Act honorable. "The transparency is noble, and it's transparency for patients, so they can look at their doctor and make individual assessments. We get that. That's front and center," said Dr. Lynch. "But a secondary thing is the government is trying to wrestle some control into this, trying to [reign] physicians in a little bit."

Dr. Shamie said the media's reaction to this information makes him most concerned. "The media has not been very favorable toward physicians. Our patients are going to read about this doctor and that doctor [and] unnecessary surgeries. When the Medicare data came out about how spinal fusions were done, I was so scared until I found out I was average. It's forcing us all to become average," he said.

The Sunshine Act has signaled the new normal, in Dr. Shadid's opinion, and physicians need to begin thinking in different ways. "We all have different ideologies about the role of government in our lives, but I think we'll do better if we come off not complaining about it," he said. "If we're defensive, people assume the worst. We need to be thinking about how we tell our story about this. All of us need to be able to explain how we're connected in the industry."

More Articles on the Sunshine Act:
CMS Releases Sunshine Act Final Rule
Will Physician Payment Sunshine Act Data Usher In A New Era Of FCA Litigation?
OIG Issues Special Fraud Alert on Physician-Owned Distributorships

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