Will Physician Payment Sunshine Act Data Usher in a New Era of False Claims Act Litigation?

This post was authored by Scot Hasselman, Elizabeth Carder-Thompson, Katie Pawlitz and Jillian Riley.

While attention has been focused on Medicare physician payment data released by CMS yesterday, upcoming Sunshine Act data will shine a new spotlight on financial relationships between physicians and pharmaceutical and medical device companies – with potential FCA implications.

Last week marked the deadline for pharmaceutical and medical device manufacturers and group purchasing organizations (GPOs) to register with and submit aggregate 2013 payment and investment interest data to the Centers for Medicare & Medicaid Services (CMS) on certain financial relationships between themselves and physicians and teaching hospitals, as required by the Physician Payment Sunshine Act.1 In May, manufacturers and GPOs will be required to submit to CMS detailed 2013 payment data. With some exceptions, CMS will be making these data public by September 1, 2014. While the publicly available data are intended to provide more transparency for patients – to allow them to have a better understanding of the financial relationships between physicians and pharmaceutical and medical device companies – patients will certainly not be the only group interested in this public information. The Department of Health and Human Services (HHS) Office of the Inspector General (OIG), Department of Justice (DOJ), and relators’ attorneys will likely utilize these data to initiate investigations and support complaints under the federal False Claims Act (FCA). As with the recent release of the 2012 Medicare Part B Physician Fee Schedule data, members of the media will likely make inferences about certain financial relationships.

The U.S. government recovered $3.8 billion in settlements and judgments from civil cases involving fraud against the government in the fiscal year ending Sept. 30, 2013.2 Fiscal 2014 looks to be a record-breaking year, with ever-increasing civil settlements by major pharmaceutical companies.3

As the reporting deadlines approach, it is worth considering an interesting, and largely unknown, potential implication of the public availability of these data: How will it affect future FCA litigation? The publically available Sunshine Act data could become relevant to FCA litigation in a variety of ways; two in particular are discussed below.

Anti-Kickback Statute Violations

The data could give rise to suspicions of violations of the federal Anti-kickback Statute (AKS). The AKS makes it a criminal offense to knowingly and willfully offer or pay remuneration to induce the referral of, or arrange for the provisions of, federal health care program business.4 In other words, the law prohibits any person or entity from giving, receiving – or offering to give or receive – anything of value in return for or to induce referrals for businesses covered by Medicare, Medicaid, or any other federally funded health care program. Violators of the AKS face imprisonment, criminal, and civil fines, as well as exclusion from federal health care programs.5

It is easy to see how publishing information regarding payments from pharmaceutical and medical device manufacturers to physicians and teaching hospitals could implicate the AKS, and by extension, the FCA. The Patient Protection and Affordable Care Act (ACA) made explicit that violations of the AKS are also violations of the FCA.6 Any payment from a pharmaceutical or medical device manufacturer to a physician who prescribes a product manufactured by the company providing the payment could be viewed as potentially inappropriate remuneration intended to influence prescribing behavior.

Off-Label Promotion

Publically available information reported as a result of the Sunshine Act may also have off-label promotion implications. Notably, reports to CMS must include the name of the drug or the type of device that forms the basis of the payment.7 Tying the payment to a particular drug or type of device could raise suspicions of off-label promotion. A pharmaceutical or medical device manufacturer that promotes its products for uses for which the product has not yet been approved by the United States Food and Drug Administration (FDA), i.e., off-label uses, is at risk of FCA liability. A false claim can arise when a manufacturer promotes a product for off-label, non-covered uses (that is, for a use that both has not been approved by FDA and is not covered by the federal health care programs). Payments going to physicians who specialize in an area that is outside the scope of a pharmaceutical or medical device’s approved indication could necessarily raise suspicions that the manufacturer is promoting the product for unapproved uses.

Potential Limits

Besides the risk of government identifying potential issues for further investigation and prosecution as a result of reported Sunshine Act data, private parties may also mine the publically available data. One substantial impediment to relators’ attorneys using Physician Sunshine Payment data in FCA litigation is the limitation that publicly available data cannot form the basis of a whistleblower claim.8 This is known as the public disclosure bar, although the effectiveness of this defense has been diminished with recent FCA amendments.

That said, the Sunshine Act data, even if not the basis of a claim, could nonetheless impact the litigation in many ways. For example, it could provide additional evidence for the government to review in reaching its decision whether to intervene in a qui tam action. Both OIG and DOJ could review the data before it is publicly available to assist in the determination that a given matter warrants intervention. Additionally, the publicly available data – beyond providing flavor in support of an FCA claim and assisting with meeting the heightened pleading standard associated with fraud allegations9 – could be a potential mine for plaintiff attorneys to locate areas of focus. Relators’ attorneys will no doubt track the data to ascertain potential problem drugs or companies about which they can then dedicate efforts to uncovering fraud and abuse in the federal health care system.

Going Forward

It remains to be seen how all of these risks will play out going forward. Courts will have to decide how these new data will fit into FCA litigation. OIG and DOJ will have to determine how much to rely on the new information. And relators’ attorneys will need to make decisions about how many resources to dedicate to mining the Sunshine Act data.

One potential consequence that we are already starting to see occur is that pharmaceutical and medical device manufacturers may halt or limit payments to physicians, and/or that physicians themselves will be reluctant to accept such payments, e.g., for research, for expenses associated with training on a device, and the like. Companies may decide to do so for a variety of reasons, including avoiding the administrative burdens associated with tracking and reporting such payments for purposes of the Sunshine Act, fear of FCA litigation, or for public relations reasons. Many physicians simply do not want their names publicized. It remains to be seen how these trends will evolve.
 

1 42 C.F.R. § 403.908(a).
2 DOJ Press Release, available at: http://www.justice.gov/opa/pr/2013/December/13-civ-1352.html. 3 See, e.g., DOJ Press Release, available at: http://www.justice.gov/opa/pr/2013/November/13-ag-1170.html.
4 42 U.S.C. § 1320a-7.
5 Id.
6 42 U.S.C. § 1320a-7b(g). Note that manufacturers may submit “assumptions documents” as part of Sunshine reporting. Although CMS stated in the preamble to the Sunshine regulations its belief that the contents of such documents “should not be made public,” it acknowledged that it could provide access to the documents during an audit or investigation by other HHS divisions, the Office of Inspector General, or the Department of Justice.
7 42 C.F.R. 403.94(c)(8).
8 31 U.S.C. § 3730(e)(4).
9 Fed. R. Civ. P. Rule 9(b).

FDA Proposal Amends Medical Device Classification Rules

This post was written by Jennifer Pike.

On March 25, 2014, the Food and Drug Administration (FDA) published a proposal to amend its regulations governing the classification and reclassification of medical devices. In addition to conforming the regulations to recent changes made by the 2012 Food and Drug Administration Safety and Innovation Act (FDASIA), the proposed rule makes changes unrelated to FDASIA. Among other changes to 21 CFR Part 860, FDA proposes to:

  • Amend several definitions at 21 CFR § 860.3, including the definitions of Class I, Class II and Class III to reflect the key principle underlying device classification that a reasonable assurance of safety and effectiveness is necessary for all three classes, but that the level of regulation necessary to provide such assurance is specific to the level of risk.
  • Amend the definition of Class III to clarify which devices fall in this category.
  • Establish special controls for Class II devices by replacing the term “performance standards” in 21 CFR § 860.7.
  • Amend 21 CFR § 860.84 to remove from the classification process the requirement to answer the classification questionnaire and provide information using the supplemental data sheet.
  • Revise the procedure at 21 CFR § 860.130 to reflect the FDASIA requirement that devices reclassified under 513(e) of the Food, Drug and Cosmetic Act be reclassified using an administrative order procedure.
  • Revise the process under 21 CFR § 860.133 for the filing of a premarket approval for Class III preamendment devices to conform to FDASIA.

Comments to the proposed rule may be submitted in writing, or at www.regulations.gov, on or before June 23, 2014.

Advisory Panel Recommends Access Standards for Medical Diagnostic Equipment

The Access Board's Medical Diagnostic Equipment Accessibility Standards Advisory Committee has issued its final report on “Advancing Equal Access to Diagnostic Services: Recommendations on Standards for the Design of Medical Diagnostic Equipment for Adults with Disabilities.” The report includes detailed recommendations on standards for access to equipment such as examination tables and chairs, weight scales, and diagnostic equipment. Among other things, the report address transfer access, armrests, lift compatibility, and other features for accessibility. The standards, which are being developed as directed under the ACA, still must be approved by the full Access Board.

CMS, FDA Extend Pilot Program for Parallel Review of Medical Products

In October 2011, CMS and the FDA formally launched a voluntary parallel review pilot program for sponsors of medical devices. At the time, the agencies stated that they intended to run the pilot program for two years, with the possibility of an extension. In a December 18, 2013 notice, the FDA and CMS announced that they were extending the program for another two years in light of the significant interest in the pilot. The agencies are working through the process with the approved pilot program participants, and they will formally evaluate the program after a “representative group of participants have completed the pilot process.”

CMS Revises Hospital Equipment Maintenance Requirements

CMS has issued updated survey guidance clarifying requirements for hospital maintenance of facilities, supplies, and equipment.  Most notably, under certain circumstances, CMS is allowing a hospital to adjust its maintenance, inspection, and testing frequency and activities for facility and medical equipment from what is recommended by the manufacturer, based on a risk-based assessment performed by qualified personnel. Hospitals that choose to employ such “alternate equipment maintenance” activities and/or schedules must implement a documented program to minimize risks to patients and others in the hospital associated with the use of facility or medical equipment.

DOJ Touts $3.8 Billion in FY 2013 False Claims Act Recoveries

The Department of Justice (DOJ) recently announced that it recovered $3.8 billion in settlements and judgments in civil False Claims Act cases in fiscal year (FY) 2013, including health care fraud recoveries totaling approximately $2.6 billion. The DOJ notes that about $1.8 billion in recoveries involved alleged false claims for drugs and medical devices under federally insured health programs (with an additional $443 million recovered for state Medicaid programs). The Department also reports that in FY 2013, a record 752 qui tam/whistleblower suits were filed and $2.9 billion was recovered in such suits (with whistleblowers recovering $345 million).

IPPS New Technology Add On Applications for FY 2015 Due November 25

The deadline for interested parties to submit an application for FY 2015 new technology add-on payments under the Medicare inpatient prospective payment system (IPPS) is November 25, 2013.

OIG Highlights Volume of Spinal Surgeries Tied to Physician-Owned Distributors (PODs)

A recent OIG report links the growing presence of physician-owned distributorships, or PODs, to increased spinal surgery volumes and potentially increased Medicare costs. The OIG notes a “substantial presence” of PODs in the spinal device market, with PODs supplying spinal devices for 19% of the spinal fusion surgeries billed to Medicare in FY 2011. According to the OIG, hospitals that purchased devices from PODs performed more spinal surgeries in 2012 than hospitals that did not purchase from PODs, and hospitals increased the rate of growth in the number of spinal surgeries after they began purchasing from PODs. Hospitals identified surgeon preference as the strongest influence on their decisions to purchase spinal devices from PODs. The OIG also disagrees with PODs’ claims that their devices cost less than those from other suppliers; rather, in the categories examined by the OIG, the devices cost the same as or more than devices from companies not owned by physicians. This fact, coupled with increased volumes, according to the OIG, could increase overall Medicare costs over time. In addition, the OIG raises concerns about inconsistencies in hospital policies regarding physician disclosure of ownership to either hospitals or their patients of interests in PODs (although the OIG suggests that the new “Sunshine Act” disclosure rules may improve the ability of hospitals and patients to identify physicians’ investment in device companies).  For a case urging an alternative perspective on PODs, see the report on our sister blog, http://www.lifescienceslegalupdate.com/, about a recent complaint filed in the U.S. District Court for the Central District of California that seeks a declaration that the OIG’s Special Fraud Alert on PODs unfairly and unconstitutionally burdens First Amendment rights of free speech and due process. The complaint defends the lawfulness of the physician-owned model, and characterizes the Fraud Alert as the result of a multi-year lobbying campaign by “Big Corporations” forced to compete with small physician-owned entities. For more details, see our full report.

China Life Sciences Regulatory Crackdown Spreads to Medical Device Sector

As reported on Reed Smith's Life Sciences Legal Update blog, the local Beijing office of the Ministry of Health (MOH) of the People's Republic of China recently announced that it has started a three-month review of the use of high-value medical consumables and large-scale medical equipment in Beijing. Noting that prior inspections of hospitals had found continuing problems with the misuse and overuse of medical devices to increase profits, the investigation is intended to strengthen hospitals’ management of the use of medical devices and to regulate the use of high value medical consumables.  The Beijing MOH will also develop a database that will track the price and model of devices implanted in each patient, require hospitals to improve their purchasing management systems, and conduct periodic inspections of hospitals’ purchasing and management of medical consumables.  For more information about this recent investigation and increased life sciences regulatory enforcement in China, see the full post.

CMS Revises Medicare National Coverage Determination Process, Eases Path to Discontinue Outdated Coverage Policies

CMS has announced updates to the process for making Medicare national coverage determinations (NCDs) to provide clarity and transparency with regard to modifications made to the coverage process since the Medicare Modernization Act. Among other things, the notice addresses: the procedures for requesting an NCD or reconsideration of an existing NCD; public participation in the NCD process; informal contacts prior to requesting an NCD; what constitutes a complete, formal request for an NCD or formal request for reconsideration of an existing NCD; external requests for NCDs; CMS internally-generated review of NCDs; and time frames. CMS had previously addressed these topics in a 2003 Federal Register notice and in subsequent subregulatory guidance documents.

Most notably, the notice outlines a new, expedited administrative process to remove certain NCDs that CMS determines to be no longer needed, thereby enabling local Medicare contractors to determine Medicare coverage. In explaining the impetus for its proposal, CMS notes that “[w]e are aware that clinical science and technology evolve and that items and services that were once considered state-of the-art or cutting edge may be replaced by more beneficial technologies or clinical paradigms.” CMS therefore intends to periodically review the inventory of NCDs that have not been reviewed for more than 10 years to evaluate whether there is a continued need for national policies. CMS believes that local contractor discretion is more appropriate in these cases because “the future utilization for items and services within these policies will be limited.” Under the new, streamlined process, rather than use the formal NCD reconsideration process (which generally takes 9 to 12 months), CMS will periodically publish on its website a list of NCDs proposed for removal along with the agency’s rationale. CMS will solicit public comment for 30 calendar days, and then either: (1) follow the proposal to remove the NCD; (2) retain the policy as an NCD; or (3) formally reconsider the NCD and post a tracking sheet to that effect on the CMS coverage website. The final list will be effective upon posting it to the website.

CMS states that the notice does not alter or amend its regulations that establish rules related to the administrative review of NCDs. CMS also states that it continues to “pursue our efforts to work with various sectors of the scientific and medical community to develop and publish on our website documents that describe our approach when analyzing scientific and clinical evidence to develop an NCD.”

The notice is effective on August 7, 2013.

In Advance of Sunshine Act Reporting, CMS Releases Physician & Industry Resources

Data collection under the ACA Physician Payment Sunshine Act begins on August 1, 2013. To assist covered manufacturers of pharmaceuticals or medical devices with reporting obligations, CMS has announced new “OPEN PAYMENTS” mobile applications that could be used to track payments and other financial transfers.  While physicians are not required to report any information, CMS notes that they could use this technology to help validate reports submitted by manufacturers about payments the physicians have received.  In addition, CMS is compiling answers to frequently-asked-questions on the Sunshine Act.  On June 22, 2013, CME released a notice in the Federal Register concerning the collection of information under the Sunshine Act, specifically related to the following subjects: registration; attestation; dispute resolution and corrections; record retention; and submitting an assumptions document. Comments are due to CMS by September 20, 2013.  Finally, CMS is hosting an educational call on August 8, 2013 for physicians and teaching hospitals on the Sunshine Act policy, with a focus on third party payments, indirect payments, and the Physician Resource Toolkit. 

Draft FDA Guidance Recommends Cybersecurity Risk Assessments and Management Plans for Premarket Medical Device Submissions

This post was written by Kevin Madagan and Jennifer Pike.

The Food and Drug Administration (FDA) has announced the availability of a new draft guidance document entitled "Content of Premarket Submissions for Management of Cybersecurity in Medical Devices." The draft guidance identifies cybersecurity issues that medical device manufacturers should consider in preparing premarket submissions for medical devices – including Premarket Notifications (510(k)), Premarket Approval Applications (PMA), Product Development Protocols (PDP), and Humanitarian Device Exemption (HDE) submissions– in order to provide effective cybersecurity management and to reduce the risk that device functionality is intentionally or unintentionally compromised. The draft guidance highlights the need for effective medical device cybersecurity given "the increasing use of wireless, Internet- and network-connected devices and the frequent electronic exchange of medical device-related health information."

FDA’s draft guidance relates to a recommendation by the Government Accountability Office (GAO) in August 2012 that FDA develop and implement a plan to expand its focus on information security risks, with a particular focus on security risks resulting from intentional threats (e.g., hacking, malware).

Comments on the draft guidance should be submitted in writing, or online at www.regulations.gov, by September 12, 2013.

In a related matter, FDA recently released two Safety Communications (available here and here) concerning cybersecurity for medical devices and hospital networks. The Safety Communications recommend that medical device manufacturers and health care facilities take steps to reduce the risk of failure due to cyberattack, which could be initiated by the introduction of malware into the medical equipment or unauthorized access to configuration settings in medical device and hospital networks. Specifically, the Safety Communications recommend the following:

  • Device Manufacturers.  Device manufacturers should "remain vigilant" about identifying risk and hazards and take "appropriate steps" to reduce the risk of device failure due to cyberattack. This includes reviewing cybersecurity practices and policies to "assure that appropriate safeguards are in place," such as:

--Taking steps to limit unauthorized device access to trusted users only, particularly for those devices that are life-sustaining or could be directly connected to hospital networks;

-- Protecting individual components from exploitation and developing strategies for active security protection appropriate for the device’s use environment;

-- Using design approaches that maintain a device’s critical functionality, even when security has been compromised ("fail-safe" modes); and

-- Providing methods for retention and recovery after an incident where security has been compromised.

  •  Hospital Networks/Health Care Facilities.  Hospital networks and health care facilities should evaluate their network security and take steps to protect the network. This includes:

--  Restricting unauthorized access to the network and networked medical devices;

-- Making certain appropriate antivirus software and firewalls are up-to-date;

-- Monitoring network activity for unauthorized use;

-- Protecting individual network components through routine and periodic evaluation, including updating security patches and disabling all unnecessary ports and services;

-- Contacting the specific device manufacturer if a cybersecurity problem related to a medical device is suspected; and

-- Developing and evaluating strategies to maintain critical functionality during adverse conditions.

Reed Smith will be issuing additional updates in the near future about these recent cybersecurity developments.

OIG Special Fraud Alert Deems Physician-Owned Distributors (PODs) As "Inherently Suspect" Under Anti-Kickback Statute

On March 26, 2013, the HHS Office of Inspector General (OIG) released a Special Fraud Alert highlighting the risks associated with PODs -- physician-owned entities that sell (or arrange for the sale of) implantable medical devices ordered by their physician-owners for use in procedures the physician-owners perform on their own patients at hospitals or ambulatory surgical centers. Building on previous OIG and Congressional scrutiny of PODs, the Special Fraud Alert details specific attributes and practices of PODs that the OIG believes “produce substantial fraud and abuse risk and pose dangers to patient safety.”  A Reed Smith analysis of the Alert is available on our Life Sciences Legal Update blog.

FDA Issues New Guidance Documents

This post was written by Jennifer Pike.

In recent weeks, the Food and Drug Administration (FDA) has issued a number of new draft and final guidance documents on a range of issues, including financial disclosure by clinical investigators, medical device recalls, prescription drug labeling, and medical devices for pediatric uses. Highlights include the following:

CMS Releases Physician Payments Sunshine Act Final Rule

This post was written by Elizabeth Carder-Thompson, Katie C. Pawlitz, and Nancy E. Bonifant.

The Centers for Medicare & Medicaid Services (CMS) released late today its final rule implementing the physician payment transparency provisions of the Patient Protection and Affordable Care Act (Section 6002), commonly referred to as the "Physician Payments Sunshine Act." Among other things, the Act requires drug, device, biological or medical supply manufacturers to report payments or other transfers of value to physicians and other covered recipients. In addition, the Act requires manufacturers and group purchasing organizations (GPOs) to report certain information regarding ownership or investment interests held by a physician in the manufacturer or GPO.

The official version of the final rule, titled “Transparency Reports and Reporting of Physician Ownership of Investment Interests” (the “Final Rule”), will be published in the Federal Register on February 8, 2013. A proposed rule was previously published in the Federal Register on December 19, 2011, for which CMS received over 300 comments from a wide range of stakeholders.

The Final Rule provides important guidance to manufacturers and GPOs regarding the Physician Payments Sunshine Act, resolves several questions remaining after publication of the Proposed Rule, and raises some new ones. Notably, CMS has announced that manufacturers and GPOs will not be required to collect required information until August 1, 2013. Manufacturers and GPOs will be required to report the data for August through December of 2013 to CMS by March 31, 2014 and CMS will release the data publicly by September 30, 2014

We are in the process of conducting a full review of the lengthy Final Rule and will release shortly a Client Alert providing a detailed analysis of the Rule. In the meantime, please contact Elizabeth Carder-Thompson (202-414-9213), Katie C. Pawlitz (202-414-9233), Nancy E. Bonifant (202-414-9353) or any other member of the Reed Smith Health Care Group with whom you work, if you would like additional information or if you have any questions. 

FDA Issues Final Rule on Current Good Manufacturing Practice Requirements for Combination Products

This post was written by Jennifer Pike.

FDA has issued a final rule on the current good manufacturing practice (CGMP) requirements applicable to combination products. The rule clarifies which CGMP requirements apply when drugs, devices, and biological products are combined to create combination products. For certain types of combination products the application of CGMP requirements is straightforward – the constituent parts of a combination product are each subject only to the CGMP requirements applicable to that type of constituent part if the parts are manufactured and marketed separately. In other words, where parts of a combination product are separately manufactured and marketed, they remain separate for the purposes of applying CGMP regulations. The application of CGMP requirements to “single-entity” and “co-packaged” combination products is more complex. Thus, the final rule also sets forth a transparent and streamlined regulatory framework for manufacturers to use when demonstrating compliance with CGMP requirements for such products. Specifically, manufacturers may demonstrate compliance with CGMPs for “single-entity” and “co-packaged” combination products in one of two ways: (1) by demonstrating compliance with the specifics of all CGMP requirements applicable to each of the constituent parts included in the combination product; or (2) if the combination product contains both a drug and a device, demonstrating compliance with either drug CGMPs or quality system regulations for devices, in addition to other requirements set forth in the final rule. “Single-entity” combination products are products comprised of two or more regulated components that are physically, chemically, or otherwise combined or mixed and produced as a single-entity. “Co-packaged” combination products are two or more separate products packaged together in a single package or as a unit and comprised two regulated components. The rule becomes effective on July 22, 2013.

Obama Administration's Regulatory Agenda Points to Busy 2013 for HHS

On January 8, 2013, the Obama Administration published its latest semiannual regulatory agenda, outlining planned regulatory initiatives in a number of policy areas. The Federal Register version of the agenda includes only a portion of the regulations in the pipeline, however; the full agenda has been posted on the Office of Management and Budget (OMB) web site. Major Department of Health and Human Services (HHS) regulations are highlighted after the jump.

  • An HHS Office of Inspector General (OIG) proposed rule that would add new/modify existing safe harbors under the anti-kickback statute; add new/revise existing regulations governing OIG's authority to impose civil money penalties and assessments; add new/revise existing regulations governing OIG's exclusion authority; and codify new exceptions to the beneficiary inducement prohibition (expected July 2013);
  • A final Centers for Medicare & Medicaid Services (CMS) rule implementing Affordable Care Act (ACA) provisions related to Medicaid reimbursement for covered outpatient drugs (expected in August 2013);
  • A CMS proposed rule to establish Medicare payment safeguards to prevent providers and suppliers that do not meet Medicare requirements from remaining enrolled in or submitting claims to Medicare (expected May 2013);
  • Proposed emergency preparedness requirements for Medicare and Medicaid participating providers and suppliers (expected in July 2013);
  • A final CMS rule establishing requirements for disclosure of skilled nursing facilities' ownership (expected May 2013);
  • A final rule on long-term care facility agreements with hospice agencies (expected October 2013);
  • A proposed rule to establish a prospective payment system for Federally Qualified Health Centers (expected June 2013);
  • Annual Medicare payment update rules (various dates);
  • Various rules implementing insurance-related provisions of the ACA (various dates);
  • A final rule modifying HIPAA privacy, security, enforcement, and breach notification rules (expected but not released in December 2012);
  • An advance notice of proposed rulemaking to establish a methodology allowing an individual harmed by an offense punishable under HIPAA to receive a percentage of any civil money penalty or monetary settlement collected (expected March 2013);
  • A final rule to enhance human subjects research protections (expected April 2013); and
  • A Food and Drug Administration (FDA) final rule establishing a unique device identification system for medical devices (expected May 2013).

There are also some surprises on the Administration’s list of “long-term actions” – including the long-overdue final ACA “Sunshine Act” rule requiring applicable manufacturers of drugs, devices, biologicals, or medical supplies to annually report certain payments to physicians or teaching hospitals (“final action” listed as December 2014). Other long-term actions include a final rule implementing ACA requirements related to reporting and returning of overpayments (February 2015); a variety of rules dealing with the 340B discount drug program (timing listed as “to be determined”); and a final HIPAA privacy rule on accounting for disclosures under the Health Information Technology for Economic and Clinical Health Act (TBD).

Access Board Committee to Meet on ACA Medical Diagnostic Equipment Standards (Jan. 22-23)

The Medical Diagnostic Equipment Accessibility Standards Advisory Committee is holding its next meeting on January 22 and 23, 2013 to discuss its February 9, 2012 proposed rule on medical diagnostic equipment accessibility standards. Among other things, the session will focus on standards for transfer surfaces.

FDA Requests Comments on Review of Medical Device Submissions

This post was written by Jennifer Pike.

The FDA has announced an opportunity for public comment on the statement of work for an assessment for the process of review of medical device submissions. Under the Medical Device User Fee Act of 2012 (MDUFA III), which gives FDA the authority to collect device user fees from industry for 2013-2017, FDA has committed to reaching certain performance goals. Among others, FDA is committed to participate, with the device industry, in a comprehensive assessment of the process for the review of device applications. The assessment will be conducted in two phases by a private, independent contractor. FDA is providing a comment period on the statement of work before requesting proposals for the assessment. Comments should be submitted in writing or electronically, at www.regulations.gov, by February 4, 2013.

FDA Issues Final Guidance Documents on Drug and Medical Device Submissions

This post was written by Jennifer Pike.

On January 2, 2013, the FDA issued three final guidance documents related to drug and medical device submissions. The first guidance, Acceptance and Filing Reviews for Premarket Approval Applications, is intended to clarify the criteria for accepting and filing a premarket approval application (PMA) to assure the consistency of FDA’s acceptance and filing decisions. The guidance is applicable to original PMAs and PMA panel-track supplements reviewed by the Center for Devices and Radiological Health (CDRH) and the Center for Biologics Evaluation and Research (CBER). The second guidance, eCopy Program for Medical Devices Submissions, explains the new electronic copy (eCopy) Program for medical devices submissions, provides the standards for a valid eCopy, and identifies the submission types that must include an eCopy in accordance with such standards for the submission to be processed and accepted for review by FDA. The final guidance, Refuse to Accept Policy for 510(k)s, explains the procedures and criteria FDA intends to use in determining whether a 510(k) submission is administratively complete. The guidance is applicable to 510(k)s reviewed by CDRH and CBER.Comments regarding the guidances may be submitted at any time.

Older Entries

January 11, 2013 — FDA To Hold Workshop on Accessible Standardized Medical Device Labeling (April 29-30)

December 20, 2012 — IRS Issues Regulations to Implement ACA Medical Device Tax

December 18, 2012 — FDA Issues Two New Draft Guidance Documents Related to the Conduct of Clinical Trials

December 18, 2012 — New FDA Draft Guidance Documents Address Product Safety and Risk Minimization

November 28, 2012 — FDA Addresses Food and Drug Administration Safety and Innovation Act (FDASIA) Implementation

November 27, 2012 — Massachusetts Issues Final Drug/Device "Sunshine" Rules

November 12, 2012 — Meeting on ACA Medical Diagnostic Equipment Access Standards (Dec. 3-4)

November 5, 2012 — Massachusetts Approves Emergency Amendments on State "Sunshine Act" Drug/Device Manufacturer Reporting Requirements

October 16, 2012 — GAO Flags Concerns about Implantable Medical Device Information Security

September 6, 2012 — Vermont Offers Limited Amnesty to Device and Biologic Manufacturers who Failed to Report Payments to Health Care Providers

September 6, 2012 — FDA Final Rule Implementing Device Registration and Listing Requirements

September 5, 2012 — FDA Guidance on FY 2013 Medical Device User Fee Small Business Qualification and Certification

September 5, 2012 — FDA Issues Guidance for Comment on Refuse to Accept Policy for 510(k)s

July 31, 2012 — Medical Device User Fee Rates for FY 2013

July 31, 2012 — FDA Issues Draft Guidance Regarding Acceptance & Filing Review for PMA Applications

July 17, 2012 — Massachusetts Loosens Drug/Device Manufacturer Gift Ban and Disclosure Law, Allows Certain Drug Coupons and Vouchers

July 16, 2012 — FDA Proposes Unique Device Identification System for Medical Devices

July 16, 2012 — FDA Draft Guidance the Medical Device Pre-Submission Program/Meetings with FDA Staff

June 28, 2012 — Congress Clears FDA Safety & Innovation Act

June 18, 2012 — OIG Examines Scientific Disagreements at CDRH Regarding Medical Device Reviews

June 18, 2012 — Medicare Trends in Implantable Medical Device (IMD) Procedures

June 8, 2012 — House Approves ACA Device Tax Repeal Bill in Face of Veto Threat

May 31, 2012 — House Panel Takes Up ACA Medical Device Tax Repeal, Other Health Tax Policy Bills

May 25, 2012 — House Leaders Plan June Vote on ACA Medical Device Tax Repeal

May 11, 2012 — House Panel Unanimously Approves FDA User Fee Act

May 11, 2012 — FDA Guidance on Medical Device Pre-market Approval

May 11, 2012 — FDA Seeks Information on Risks, Benefits of Metal-on-Metal (MoM) Hip Replacements

May 11, 2012 — International Collaboration Highlighted in FDA Global Engagement Report

May 4, 2012 — CMS Announces Data Collection for the Physician Payments Sunshine Act Will Not Be Required Before 2013

April 23, 2012 — HHS Issues its Open Government Plan Version 2.0

April 23, 2012 — April Congressional Health Policy Hearings and Markups

April 23, 2012 — GAO Examines FDA Device Review Process

April 18, 2012 — New Hampshire Quietly Considers Prohibition Of Physician Relationships With Medical Device Companies

April 2, 2012 — Advisory Committee on ACA Medical Diagnostic Equipment Access Standards

February 13, 2012 — GAO Examines Price Transparency for Implantable Medical Devices

February 13, 2012 — Access Standards Proposed for Medical Diagnostic Equipment under the ACA

February 13, 2012 — FDA Issues Guidance on New Informed Consent Requirements

February 10, 2012 — IRS Proposes Regulations to Implement ACA Medical Device Tax

February 10, 2012 — FDA and Industry Reach Agreement in Principle on Medical Device User Fees

February 10, 2012 — February Congressional Health Policy Hearings

January 27, 2012 — Overview and Analysis of the Proposed Federal Sunshine Regulations

January 25, 2012 — E&C Health Subcommittee Plans FDA User Fee Hearings in February

January 23, 2012 — E&C Health Subcommittee Plans FDA User Fee Hearings in February

January 5, 2012 — GAO Report on Pediatric Medical Devices

December 29, 2011 — FDA Issues Draft Guidance Regarding Evaluation of Sex Differences in Medical Device Clinical Studies

December 29, 2011 — FDA Provides Draft Guidance on Evaluating Substantial Equivalence in Premarket Notifications

December 29, 2011 — FDA Guidance Regarding CDRH Appeals Process

December 14, 2011 — CMS Releases Long-Awaited Physician Payments Sunshine Act Proposed Rule

December 13, 2011 — FDA Draft Guidance on Artificial Pancreas Device Systems, Hepatitis B Screening of Blood/Blood Components

November 30, 2011 — ACA "Physician Payment Sunshine Act" Rule at OMB

November 29, 2011 — Congressional Health Policy Hearings

November 29, 2011 — FY 2013 IPPS New Technology Payment Town Hall Meeting (Feb. 14, 2012)

November 11, 2011 — Congressional Health Policy Hearings & Markups

October 28, 2011 — Correction Notice on CMS/FDA Parallel Review Pilot Program

October 14, 2011 — FDA Issues Draft Guidance to Clarify De Novo Classification Process

October 12, 2011 — CMS and FDA Publish Parallel Review Pilot Program Notice

September 29, 2011 — CMS Seeks Comments on Potential Medicare Coverage Determination Topics

September 29, 2011 — Congressional Hearings Examine Variety of Health Industry Issues

September 22, 2011 — Upcoming House Hearings on Drug Shortages, Device/Drug Regulations

September 1, 2011 — HHS Issues Final Plan to Reduce Regulatory Burdens

September 1, 2011 — FDA Issues Draft Guidance Proposing Risk Based Approach to Oversight of Clinical Investigations

August 16, 2011 — FDA Issues Draft Guidance Regarding Design of Pivotal Clinical Investigations for Medical Devices

July 28, 2011 — FDA Issues Draft Guidance Regarding When to Submit a 510(k) for a Change to an Existing Device; Guidance Follows 510(k) Working Group Recommendations

July 26, 2011 — FDA Issues Draft Guidance Regarding Mobile Medical Applications

July 26, 2011 — FDA Issues Guidance and Final Rule Regarding Focused Ultrasound Stimulators for Aesthetic Use

July 18, 2011 — FDA Issues Draft Guidance Related to IVD Companion Diagnostic Devices

July 18, 2011 — FDA Proposed Rule Would Eliminate Certain Drug Pedigree Requirements

June 28, 2011 — GAO Issues Report on FDA Oversight of Medical Device Recalls.

June 14, 2011 — Lawmakers Seek Investigation of Physician Owned Distributors (PODs) for Medical Devices

June 13, 2011 — June Congressional Hearings on Health Policy Issues

May 31, 2011 — Federal Agencies Outline Regulatory Review Plans

May 13, 2011 — FDA Publishes Draft Guidance on Reprocessing of Reusable Medical Devices

May 13, 2011 — FDA to Hold Public Workshop on Reprocessing Reusable Medical Devices (June 8)

April 29, 2011 — FDA Final Guidance Documents on Writing Requests for Product Designation

April 29, 2011 — FDA Issues Guidance on Manufacturing Method/Process Changes

April 12, 2011 — Congressional Hearings This Week on FDA Medical Device Approvals, Drug Imports/Diversion

March 7, 2011 — FDA Finalizes Medical Device Data Systems Rule

February 18, 2011 — Congressional Hearings

February 10, 2011 — FDA Launches Medical Device Initiative to Reform the 510(k) Process, Meeting Scheduled to Receive Feedback

February 10, 2011 — FDA Announces Texas Town Hall Meeting with CDRH Director

February 10, 2011 — FDA Public Workshop on Drug/Medical Device Regulatory Requirements (June 20-21)

January 27, 2011 — FDA Announces Plans to Reform 510(k) Process

December 29, 2010 — HHS Semiannual Regulatory Agenda for FY 2011

December 15, 2010 — IRS Guidance on ACA Fee on Prescription Drug Manufacturers/Importers; Comment Request on Medical Device Excise Tax.

December 15, 2010 — FDA Requests Notification of Intent to Participate in Medical Device User Fee Reauthorization Process

December 14, 2010 — FDA Public Workshop on Sentinel Initiative (Jan. 12)

December 6, 2010 — CMS Meeting on New Technology Add-On Payments (Feb. 2, 2011)

November 15, 2010 — Senators Seek Accelerated HHS Action on Physician Payment "Sunshine Act" Provisions

October 29, 2010 — Common Formats for Patient Safety Data Collection/Event Reporting

October 15, 2010 — FDA Seeks Comment on 5 Year Strategic Priority Plan

September 17, 2010 — Parallel CMS/FDA Review of Medical Products

August 30, 2010 — FDA Meeting on Medical Devices and Nanotechnology: Manufacturing, Characterization, and Biocompatibility Considerations

August 13, 2010 — Memorandum of Understanding Between FDA and CMS

August 13, 2010 — FDA Announces Medical Device User Fees for FY 2011, Upcoming Meeting (Sept. 12)

August 13, 2010 — FDA Proposes Changes to the 510(k) Program; Seeks Public Comment

August 13, 2010 — FDA Withdraws Direct Final Rule Requiring the Submission of Information on Pediatric Uses of Devices

August 13, 2010 — CDRH Announces 2010 Compliance Strategic Plan

July 7, 2010 — FDA Guidance on Frequently-Asked Questions for In Vitro Diagnostic Studies

June 18, 2010 — FDA and FCC Join for Public Meeting on Integration and Use of Wireless Technology with Health Care Devices (July 26-27)

May 25, 2010 — IOM Recommendation for Greater FDA Authority on Post-market Surveillance