Can Following The Sunshine Act Requirements For CME Lead To Unintentional Discrimination?

I debated for quite a while over whether I should use the word discrimination in this post. It is a politically-charged word and one that I do not use lightly. In the end, I decided that unintentional discrimination was the correct term here. Perhaps I’m being unfair. I’ll leave it to you to judge for yourself.

The following is not a hypothetical scenario I developed as fodder for yet another rant against the Sunshine Act on this blog. It is an actual situation a colleague of mine faced and related to me recently, and one I can definitely see more of us facing in the near future. Here is the situation.

An ACCME-accredited organization holds a CME-certified conference for which they expect in excess of 100 attendees (and, in fact, had approximately 130 in attendance). The conference is funded via an educational grant from a pharmaceutical company and includes a buffet lunch. Both the CME provider and commercial supporter agree (I believe, correctly) that because of the type of meal being served and size of the audience partaking, the reporting of individual physician meals to CMS is not required. 

One attendee contacts the CME provider to request a kosher meal. The CME provider is happy to accommodate the individual, but now is aware of the identity of the individual receiving the meal and the cost. They inform the individual that due to Sunshine Act guidelines, they are now required to report his/her information and meal cost to the commercial supporter, who in turn will report the information to CMS and it will be listed on a public website. The individual, uncomfortable with having his meal publicly listed as an indirect payment from the commercial supporter, declines the kosher meal.

Here we have a situation where an individual who makes a special request due to religious reasons is subject to a penalty that his/her other colleagues are not. In order to avoid this penalty, he/she opts not to eat. 129 attendees of the conference get to eat their lunch with no concern of it being listed as a transfer of value on a public website, while one person is subject to reporting because of their religious beliefs. That’s wrong. It’s not intentional, but it’s still wrong.

This goes beyond religion. Presumably anyone with a dietary restriction (peanut allergy, gluten-free, vegan, etc) that is cause for a special meal request would be subject to reporting, while their colleagues are not. They would face the same dilemma of accepting their special meal and being reported or not eating and not being reported, all while their fellow participants get to freely eat their meal with no such repercussions.

I realize I’m making this sound a little worse by playing up the “not eating” angle. They could, of course, leave the conference area and purchase their own meal. But why should they have to, especially when no one else does? It’s wrong and it’s unfair and I think it needs to be addressed, sooner rather than later.

If I am incorrect or misinterpreting any of the Sunshine Act requirements towards meals at CME events, please let me know. I will gladly add an addendum to this post with a corrected explanation. If I am accurate in my assessment of this situation, then I think we have a problem. I’m curious to hear if other feel the same.

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One response to “Can Following The Sunshine Act Requirements For CME Lead To Unintentional Discrimination?

  1. An interesting and unintended potential side effect (aside from all the other more obvious ones) of the Act. I’d be interested to see this issue taken to Grassley et al for their weigh in on this. Then again, that could result in ALL meals having to be reported, no matter the number of attendees, and that is just unmanageable. But still an interesting situation that deserves further thought and feedback.

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