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When Should Professionals (Including Health Care Providers) Issue Conflict-of-Interest Disclosures?

Posted by Tracy Green | Jun 12, 2018

When there are referrals to and from health care providers, attorneys, accountants or other professions, one issue is whether there is a business relationship between the referring professional and the recipient of the referral.
For example, if a physician has a business relationship with another entity or prescribes medications for which speaking fees are received, then it makes sense to have a conflict of interest disclosure. This is especially needed for those in the workers' compensation health care field due to requirements of the Labor Code. If a naturopathic doctor recommends a certain brand of supplements purchased off the Internet and receives a commission for that purchase, that business relationship should probably be disclosed to the patient even where not legally required. In this type of case, the professional rules arguably require it. 
On the criminal side, one way that those receiving government funds (whether Medicare or grants or public funds) have been prosecuted for conflicts of interest is in a crime known as "honest services fraud." For example, if a physician received a payment for referring a patient to a certain hospital or surgery center for surgery and failed to disclose the payment to the patient, the federal crime of honest services fraud has been used as an alternative theory to charge for the payment. The professional conduct and state laws regarding referrals are used to help show the duty to disclose.
Even if the relationships are legal, you may have an obligation to disclose their existence. Rules about disclosing and managing conflicts of interest
come from a variety of sources, including grant funders, such as States, universities, and the National Institutes of Health, and from the Food and Drug Administration (FDA) when data are submitted to support marketing approval for new drugs, devices, or biologics.
To “manage” your conflicts of interest, consider the conflicts policies that affect your professional activities, candidly disclose any industry money subject to
these policies, and adhere to restrictions on your activities. If you are uncertain whether a conflict exists, ask someone. You always can apply the “newspaper test” and ask yourself whether you would want the arrangement to appear on the front page of your local newspaper.

About the Author

Tracy Green

Past recipient of the Public Counsel Law Center's "Outstanding Advocate" Award, Tracy Green is a founding partner of Green & Associates. She combines more than 25 years of experience with a strategic...

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