Position on Reporting Reprints and Textbooks Appears to Be Shifting

Sept. 27, 2018 – Although it was the Obama administration’s position that reprints and textbooks received by physicians were transfers of value that were fully reportable under the Sunshine Act Open Payments regulation, the Trump administration and Congress are taking another look at the matter, according to John Kamp, Washington Counsel, Coalition for Healthcare Communication.

Speaking at a Sept. 25 teleconference sponsored by the Coalition, “45-minute Update: What to Watch for in Washington This Month,” Kamp told attendees that although the Obama administration and the Centers for Medicare & Medicaid Services (CMS) and the Department of Health and Human Services (HHS) made the decision that these textbooks were not educational materials and had to be reported by medical professionals under the Sunshine Act, “this is a new administration and a very different one on all sorts of government regulation.”

Kamp stated that “two very good things have happened in the recent months that give us an opportunity to weigh in again” on the reprints and textbooks issue.

The House appropriations conference report for Labor/HHS includes some very strong language that Kamp believes reiterates the intent of Congress all along: “The Committee encourages the [HHS] Secretary to clarify that medical text books and journal article republications are considered as non-reportable transfers and permissible under the patient education exclusion as intended by Congress. The Committee believes that these publications serve as direct patient education and should not be subject to reporting requirements of section 1128G of the Social Security Act.”

According to Kamp, “that language would be every strong language in this Appropriations bill.” This “gives HHS the cover, or the impetus, for HHS to make a change in the Obama administration’s position,” he said.

Further, CMS has sent out a Request for Information (RFI) (https://go.cms.gov/2NIWeg5) asking the public and the stakeholders to address this issue. “In effect, the RFI gives them more ammunition to protect them if, in fact, they make this reversal,” Kamp noted.

“They are asking several questions about [continuing medical education] and whether or not the reprints and textbooks accrue to patients’ benefit,” he explained. “This RFI essentially is an open request by the government to explain to them what the effects of the existing policy at CMS are, and how they might change that policy to move forward and make it possible for these [materials] to no longer be reportable under the Sunshine Act,” he said.

“I am asking all of you who are interested in that to contact me,” he added. “It would be good for our side of this issue for many of you to respond individually to this RFI, and I would be more than happy to support that and help you make those comments. The Coalition also will make comments to CMS on this, and we are looking forward to hearing from any of you who are interested in weighing in,” he said. Kamp can be reached at jkamp@cohealthcom.org/