This does not strike me as a good idea. I appreciate
that you do not see this as something that could create
a competitive advantage for any pharmaceutical company,
but it might create such an advantage for those
reps willing to make these payments, compared to
those who decline to do so.
I see significant risk, and I suspect that the government
would conclude that this arrangement violates the federal
anti-kickback statute, because federally funded
health care programs are involved in the relationship,
either directly or indirectly. The statute makes it a violation
of criminal and civil law for any person to offer,
solicit, receive, or pay anything of value, in cash or in
kind, to reward or induce a referral under a federally funded
health care program. If even one of several
motives is to “reward or induce” referrals, the statutory
prohibition applies. Similar state laws apply regardless of who makes the offer.
The payments would not fit within any safe harbor to
the federal law. Accordingly, if a prohibited intent is
present (in whole or in part), you would violate the anti kickback
statute. You could argue that the policy discourages
unwanted sales calls, but the government could
ask why physicians did not simply refuse to meet with
unwanted sales representatives.
The government could well conclude that you intended
to receive the funds, at least at some level, to reward
or induce referrals. It’s hard to imagine what other
motive a pharmaceutical company would have in making
these payments.
