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University of Pittsburgh

Presentation to Department of Ophthalmology

Outside Engagements within the Industry Relationship Policy

December 15, 2009 by Theresa J. Colecchia, JD/Associate General Counsel David T. Wehrle, CPA, CIA, CFE/Director, COI Office

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Outside Engagements with Industry—What is Allowed?

• True consulting, where payment is reasonable and related to the services provided, is permitted under the Industry Relationship Policy (IRP).

• Where consulting payments are made without services being provided, or where payment rates are out of proportion to the service provided, the payments may be considered kick-backs.

• Any consulting agreement, under University/UPMC policies, requires the prior approval of the department chair and/or dean.

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Consulting Contract Guidelines

A contract detailing the proposed services to be provided must be in writing;

Faculty member should provide company with “Guidelines for Contracting with Outside Industry” (see IRP, FAQ # 7);

Consultant cannot engage in promotional or marketing activities on behalf of the company; How do you know if it is promotional? Is it organized by the Marketing Dept or the R & D Dept.? Who invites the attendees? Who controls the content?

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Consulting Contract Guidelines (cont’d)

University’s/UPMC’s name and address cannot appear in the contract; consultant’s personal address must be used instead;

Any non-compete clause in the contract cannot interfere with faculty member’s duties at the University/UPMC;

Use of University/UPMC resources is not permitted; Use of consulting Addendum helps ensure that contract

terms will comply with IRP.

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Acceptable/Not Acceptable Consulting Activities

Not Acceptable

“Physician shall conduct and/or assist with any clinical studies and trials on behalf of Argus LLC, including reviewing data, and assist with the preparation of any reports or articles regarding same.”

Faculty are not permitted to conduct research as consultants. This work must be done, instead, through a sponsored research agreement with the company.

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Acceptable/Not Acceptable Consulting Activities (cont’d)

Not Acceptable “Develop strategies to implement approaches to

enhance surgical patient care processes involving Optical Adventure, Inc.’s MicroIncision forceps.”

“Train surgeons to use Optical Adventure, Inc.’s glaucoma shunts at UPMC’s Eye & Ear Institute.”

Acceptable “Serve on Cleervu, Inc.’s scientific advisory board or

data safety monitoring board.”

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Consulting Contract Guidelines (cont’d)

Compensation There must be a direct correlation between

services provided and payment received. Contract must include specific, legitimate tasks

and deliverables. …

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Consulting Contract Guidelines (cont’d)

Payment must be commensurate with the task performed;

Hourly payment of more than $500 is deemed excessive;

Consultant cannot be pre-paid for services.

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Does agreement provide legitimate tasks and deliverables?

Not Acceptable “Lensfix will pay you a $4,000 per month retainer for

your availability to be on our advisory board as needed. The board will meet as necessary.”

Acceptable “Advise Lensfix’s scientists on our experimental

plans, protocols, and equipment purchases; consultant should not be expected to develop entire protocols.”

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Is the type of compensation appropriate? Stock Options Not Acceptable

“Consultant will receive 500 stock options upon signing the consulting agreement with Hawkeye Corporation, and quarterly thereafter.”

Acceptable “500 stock options will be awarded for each hour

of service provided to Hawkeye Corporation by the scientific advisory board member. Options will be awarded only upon receipt of periodic invoices detailing the dates, hours, and types of services provided by the member.”

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Is the type of compensation appropriate? Royalties

Not Acceptable

“Ocular Adventure, Inc. will provide Consultant with 1% of royalties on net sales of products each annum.”

Receipt of royalties as compensation is always prohibited.

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Consulting Contract Guidelines Conveyance of IP

Not acceptable

“Consultant agrees to assign to Lensfix, Inc. all intellectual property rights, including, without limitation, patents, trade marks and copyrights, in the work performed hereunder.”

Acceptable “Any assignment of intellectual property rights shall be subject

to the superior rights of the University of Pittsburgh and UPMC, if any, under their respective Patent and Copyright policies, and only after they have waived such rights.”

Note: the University does not assert rights in the copyright to “scholarly works.”

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Speaking Contract Guidelines

A contract detailing the proposed services to be provided must be in writing (e.g., an e-mail invitation is not sufficient);

The Speaker’s Agreement Addendum helps ensure that contract terms will comply with provisions of the

IRP; Compensation for speaking is limited to a modest

honorarium not to exceed $2,500 per event, and reimbursement of reasonable travel expenses;

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Speaking Guidelines (cont’d)

Presentation must be designed to promote evidence-based clinical care and/or to advance scientific research;

Marketing activities and promotional speaking are not permitted;

Speakers must make clear that views expressed are their own, not those of the University/UPMC;

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Speaking Guidelines (cont’d)

Speaker must control content of presentation, and content cannot be subject to company’s approval;

Content must reflect a balanced assessment of current science and treatment options, and cannot focus on a single company’s product.

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Speaking Contract Language

Acceptable “Advisor will speak at a half-day meeting of Rod &

Cone, Inc., to discuss the latest research surrounding the treatment of retinal disease for an honorarium of $1,200 and agrees that this payment is at fair market value.”

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Speaking Contract Language (cont’d)

Not acceptable “You will receive $5,000 for attending a dinner

meeting at Buena Vista Resort where new Lensfix products will be unveiled.”

Not acceptable “Physician shall serve as a Lensfix advisor for

ongoing physician education activities; shall conduct presentations, lectures, and meetings at medical conferences in coordination with Lensfix; and shall conduct training of any employees, sales representatives, or distributors of Lensfix products.”

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Speaking Contract Language (cont’d)

Not acceptable “Physician shall provide presentation materials to

Tonometronics Corp. at least five days prior to their intended use in order to provide the company sufficient time to review and approve the materials. Presentation must comply with FDA requirements, and speaker agrees not to discuss off-label use of drugs.”

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Speaking Contract Language (cont’d)

Not acceptable

“If the Speaker intends to use any materials (e.g., scripts, notes, handouts, slides, etc.) in connection with the presentation that will refer, directly or indirectly, by illustration, text or otherwise, to Lensfix-manufactured or like products, the materials must be consistent with

labeling or other literature provided by Lensfix, Inc.”

Speaking Contract Language (cont’d)

Not acceptable

“The Company may provide you with formal or informal training for speaking on Rod & Cone’s behalf. Upon request, the Company will provide you with technical assistance in preparing or making available slides, videos or other audiovisual materials. The Company may from time to time also provide you with suggestions or input on the Company approved presentations.”

Speaking Contract Language (cont’d)

Not acceptable

“Formal ‘Surgeon Profile’ interview for Optometrics Sales Newsletter focused on experience using MicroIncision System. This interview will focus on both your clinical and surgical experience with the product….This interview will also include photos and commentary on intra-operative experience including commentary of use in your surgical practice along with commentary on other MicroIncisin methods.”

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Contacts

Barbara Barnes, MD

412-647-8212; barnesbe@upmc.edu Pamela Grimm, JD

412-647-4915; grimmp@upmc.edu Theresa J. Colecchia, JD 412-624-6281; tjc5@pitt.edu

David T. Wehrle, CPA, CIA, CFE412-383-1774; wehrledt@upmc.edu

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For more information…

On the University’s COI Web site:COI/Industry Relationship Policy pages:http://www.coi.pitt.edu/IndustryRelationships/index.htm

Also:Archives of Ophthalmology, September 2009: A Perspective on Commercial Relationships Between

Ophthalmology and Industry

http://archopht.ama-assn.org/cgi/content/full/127/9/1194