Current Issues in Patient and Product Support. October 20, 2016

Similar documents
CBI PAP LEGAL UPDATE MEDICARE & MEDICAID A REVIEW OF COMPLIANCE WITH GOVERNMENT PROGRAMS. September 26, Sarah difrancesca Partner Cooley LLP

Supplemental Special Advisory Bulletin: Independent Charity. Patients who cannot afford their cost-sharing obligations

COMPLIANCE WITH PATIENT ASSISTANCE PROGRAMS AND CO-PAY CARDS. Judd Katz JD MHA November 2016

Product Reimbursement Services and Patient Assistance Programs KATHY CHAURETTE ALESSANDRO MARTUSCELLI

Will Life Sciences Companies Face More Scrutiny In 2018?

Manufacturer Patient Support Initiatives: Current Practices and Recent Challenges. Andrew Ruskin Morgan Lewis

Contracting with Specialty Pharmacies and Hubs 17 th Annual Pharma and Medical Device Compliance Congress. October 20, 2016

Legal Considerations for Patient Assistance Programs

Medicare and Patient Assistance

Finding the Rx for Your Patient Assistance Program CBI Manufacturer Workgroup Presented by Ross Margulies, Esq. Foley Hoag LLP March 17, 2017

Structuring Specialty Pharmacy Distribution Arrangements in a Turbulent Regulatory Environment Mini Summit XVIII

Telemedicine Fraud and Abuse Under the Microscope

Gifts to Referral Sources. Kim C. Stanger (11-17)

Anti-Kickback Statute Jess Smith

This webinar is sponsored by the Fraud and Abuse Practice Group.

HEALTH CARE FRAUD. EXPERT ANALYSIS HHS OIG Adopts New Anti-Kickback Safe Harbor and Civil Monetary Penalty Exceptions

HEATHER I. BATES Managing Director, BRG Health Analytics. BERKELEY RESEARCH GROUP, LLC 1800 M Street NW, 2 nd Floor Washington, DC 20036

A Special Type of Government Scrutiny: Pharmaceutical Manufacturer Relationships with Specialty Pharmacies: Part II

HealthWell Foundation & Our Commitment to OIG Compliance

2017 PHARMACEUTICAL COMPLIANCE CONGRESS

Managing Financial Interests: The Anti Kickback Statute (AKS)

Hospital Incentive Payments to Physicians for Quality and Cost Savings

GAINSHARING & PAY FOR PERFORMANCE -- P4P UPDATE ON RECENT DEVELOPMENTS AND INITIATIVES

Ensuring Compliance with the Law - Properly Structuring Innovative Marketing and Creative Joint Ventures. Top 5 Things to Know for CE:

Ensuring Compliance with the Law - Properly Structuring Innovative Marketing and Creative Joint Ventures. Clay Stribling, Esq.

Health Care Fraud for Physicians

Patient Assistance Programs

Health Law 101: Issue-Spotting In Dealing With Health-Care Providers. by William H. Hall Jr.

Gainsharing Is it Still Feasible? May 14, 2010

COMPLIANCE TRAINING 2015 C O M P L I A N C E P R O G R A M - F W A - H I P A A - C O D E O F C O N D U C T

CBI Pharmaceutical Compliance Congress Washington, D.C.

DEPARTMENT OF HEALTH AND HUMAN SERVICES. Office of Inspector General s Use of Agreements to Protect the Integrity of Federal Health Care Programs

A DISCUSSION WITH THE OIG

Beneficiary Inducements

Industry Funding of Continuing Medical Education

Developed by the Centers for Medicare & Medicaid Services

Position Paper on the Government Prohibition of Free Manufacturer Copayment/Financial Assistance. April 14, 2015

The Intersection of Specialty Pharmacy and the Law

Patient Access Programs: A Legal Perspective

Disclaimer LEGAL ISSUES IN PHYSICAL THERAPY

Fraud and Abuse Compliance for the Health IT Industry

Bogies: Federal Anti- Kickback Law & EMS Contracting - Emerging Issues Pamela L. Johnston Foley & Lardner LLP Partner, Los Angeles.

Contracts With Doctors:

H e a l t h C a r e Compliance Adviser

D E B R A S C H U C H E R T, C O M P L I A N C E O F F I C E R

DEFICIT REDUCTION ACT AND FALSE CLAIMS POLICY INFORMATION FOR All NEW YORK WORKFORCE MEMBERS

COMPLIANCE; It s Not an Option

Potential Perils of Using New Media in Marketing and Promotion. Christina M. Markus (202)

Web Seminar. Physician Payments in the "Sunshine": Implications of CMS Regulations for Business and the Future of American Health Care.

Investigator Compensation: Motivation vs. Regulatory Compliance

Health Care Practice Center

Legislative Update HIPAA/HITECH

ANCILLARY services: How to Stay Out of Trouble. The neurosurgical minefield Informed consent

Required CMS Contract Clauses Revised 8/28/14 CMS MCM Guidance Chapter 21

Medicare Parts C & D Fraud, Waste, and Abuse Training and General Compliance Training

The Impact of the Fraud and Abuse Laws on Pharmaceutical Advertising and Marketing Compliance: A Manufacturer s Perspective

Improving Integrity in Nursing Centers

Is the Current Anti-Kickback Enforcement Environment Stifling Innovation in Health Care?

Specialty Pharmacy Trends: Payer and Industry Considerations for Specialty Pharmacies

Compliance Program. Health First Health Plans Medicare Parts C & D Training

RESPIRONICS, INC. CONTRACTING WITH HEALTHCARE PROFESSIONALS OR PROVIDERS AND REFERRAL SOURCES POLICY

Industry Consolidation: Role of Compliance in Mergers, Acquisitions, and Divestitures

Repay Overpayments (18 USC 1347; 42 CFR et seq.)

Contracting With Research Sites And Investigators: A Fraud And Abuse Primer

This course is designed to provide Part B providers with an overview of the Medicare Fraud and Abuse program including:

These restrictions apply to:

Analysis of the New Medicare Part D Drug Benefit and Changes to Medicare Part B Reimbursement: New Rules of the Road

Developed by the Centers for Medicare & Medicaid Services Issued: February, 2013

HIPAA Enforcement Under the HITECH Act; The Gloves Come Off

Legal Issues: Fraud and Abuse Navigating Stark and Kickback. Reece Hirsch, Esq. Jordana Schwartz, Esq. HIT Summit West March 7, 2005

Health Care Compliance Association

Healthcare Law Compliance Policies

MANAGING HOSPITAL/PHYSICIAN FINANCIAL RELATIONSHIPS

Telemedicine Agreements: FMV, Commercial Reasonableness Compliance in Compensation Arrangements

PURCHASING INTERNET LEADS: SURE, IT CAN BE DONE, BUT BE VERY CAREFUL. Denise Leard, Esq Brown & Fortunato, P.C.

The Anti-Kickback Statute. May 3, 2013 Tennessee Hospice Organization Compliance Forum

Self-Disclosure: Why, When, Where and How

Medicare Parts C & D Fraud, Waste, and Abuse Training and General Compliance Training. Developed by the Centers for Medicare & Medicaid Services

Merck's Ethical Operating Standards Handbook. Business Practices for U.S. Related Activities

Law Department Policy No. L-8. Title:

The Anesthesia Company Model: Frequently Asked Questions

August 11, Submitted electronically via Regulations.gov

Medicare Parts C & D Fraud, Waste, and Abuse Training

Mar. 31, 2011 (202) Federal agencies address legal issues regarding Accountable Care Organizations

Panelists. ABA 31 st Annual National Institute on White Collar Crime. Healthcare Fraud and Abuse Panel

Health Care Compliance Association

Private Equity Investments in Health Care Practices

SIGNIFICANT PROPOSED CHANGES TO THE ANTI- KICKBACK STATUTE AND THE CIVIL MONETARY PENALTIES LAW

Disclaimer. The materials and views expressed in this presentation are the views of the presenters and not necessarily the views of Northwell Health

Anti-Kickback Statute and False Claims Act Enforcement

Health Care Legal Implications of User Interface Technology. Barbara Bennett Partner Hogan & Hartson, LLP

Check Your Physician Contracts

Mission Statement. Compliance & Fraud, Waste and Abuse Training for Network Providers 1/31/2019

LITIGATING AWP. Mitch Lazris/Lyndon Tretter Hogan & Hartson L.L.P. November 15, 2002

The Basics of HIPAA Business Partner and Chain of Trust Agreements Coverage and Requirements

Federal Administrative Sanctions

SIDE-BY-SIDE OF THE PHYSICIAN PAYMENTS SUNSHINE ACT

Medical Ethics. Paul W. Kim, JD, MPH O B E R K A L E R

Partnership for Part D Access

FAST BREAK : HOLIDAY GIFTS Jake Harper December 18, Morgan, Lewis & Bockius LLP

Transcription:

Current Issues in Patient and Product Support October 20, 2016

How Did a Perennial Issue Become the Hot Topic? 1. Reimbursement Support 2. Patient Assistance Programs 3. Donations to Charitable Foundations 4. Copay Coupons 2

It is an Election Year It is time to deal with skyrocketing out-of-pocket costs and runaway prescription drug prices that are going up We don t negotiate the price of the drugs so we re spending perhaps $300 to 350 billion more buying drugs from our drug companies Hogan Lovells 3

The Media Has Made a Connection Public scrutiny of patient and product support programs related to highcost drugs Drug Coupons: Helping a Few at the Expense of Everyone, New York Times (October 12, 2016) Drug coupons may save you money, but they re keeping prices high. Here s how. Washington Post (June 23, 2016) How Big Pharma Uses Charity Programs to Cover for Drug Price Hikes, Bloomberg News (May 19, 2016) Drug Companies Patient-Assistance Programs Helping Patients or Profits?, New England Journal Of Medicine (July 10, 2014) 4

And the Government is Pursuing that Connection Government scrutiny of patient and product support programs related to high-cost drugs Recent Congressional investigations: Valeant, Turig, Mylan, naloxone manufacturers, among others October 2015 Warner Chilcott settlement Beginning in late 2015, Boston USAO sent subpoenas to over a dozen manufacturers seeking information about their relationships with independent charitable foundations Investigation likely expanding to other patient support activities and hub services HHS-OIG activity Supplemental Special Advisory Bulletin on Independent Charity Patient Assistance Programs (2014) Modified advisory opinions to independent charitable foundations Special Advisory Bulletin on co-pay coupons (2014) August 2016 GAO report on copay coupons for physician-administered (Part B) drugs Hogan Lovells 5

Reimbursement Support Compliance Risks Could be viewed by government as remuneration having independent value to a customer Substitute for activities that are part of the customer s cost of doing business Free consulting services for which customers otherwise would pay Food, Drug and Cosmetic Act (FDCA) promotional violations Supporting unapproved uses by seeking reimbursement for them HIPAA Privacy Rule Disclosure of PHI pursuant to statutorily defined purpose or based on valid patient authorization 6

OIG Guidance on Reimbursement Support Special Advisory Bulletin on the Practices of Business Consultants (2001): Abusive practices include suggesting the use of inappropriate billing codes in order to elevate reimbursement, describing methods to avoid detection, adopting a patently unreasonable interpretation of a reimbursement law, regulation, or rule to justify substantially increased reimbursement OIG Compliance Program Guidance for Pharmaceutical Manufacturers (2003): [L]imited reimbursement support services in connection with [a manufacturer s] own products have no independent value and standing alone may not implicate the antikickback statute However, when such support is provided in tandem with another service or program that confers a benefit on a referring provider the arrangement would raise kickback concerns. OIG Advisory Opinions: 00-10; 06-16; 08-12 7

The Latest Salvo: Warner Chilcott In October 2015, Warner Chilcott Sales US pled guilty to a felony health care fraud charge and agreed to pay $23M in criminal penalties and $102M in civil penalties The global settlement covered two main types of conduct Promotional payments and gifts to speakers Prior authorization services provided to physicians Sales reps filling out prior authorization requests using canned language Unauthorized access to medical records Reps calling insurers and claiming they worked for the physician Hub activities part of the Boston USAO investigation of copay charity donations 8

Patient Assistance via Independent Foundations In 2014, OIG issues updated Special Advisory Bulletin reemphasizing need to sever link between donors and assistance provided by foundations Identifies two types of arrangements that will draw its scrutiny Disease funds limited to a subset of available products, rather than all approved products for the treatment of the disease state Disease funds that cover only one product or the products of a single manufacturer that is a significant donor to the fund Recent advisory and modified advisory opinions clarify OIG s expectations Boston USAO investigation 9

OIG Guidance on Copay Charity Donations Grants for patient assistance to bona fide independent charity/foundations permissible as long as the foundation Is truly independent and not influenced or controlled by manufacturer donors Awards assistance in an independent manner that severs any link between donor funding and the beneficiary Provides assistance without regard to the interests of any donor or the applicant s choice of product, provider, etc. Develops financial eligibility criteria based on reasonable, verifiable and uniform measure of financial need that is applied in a consistent manner Charities may provide limited information to donors, such as aggregate data on the number of applicants and the number of patients receiving assistance Actions by donors to correlate funding with support or their own products implicates the AKS 10

OIG Advisory Opinion 15 11: Free Drug Program Implications Accepts limited quick start program that includes federal program beneficiaries Exceptional circumstances Second-line cancer drug with breakthrough therapy designation by FDA Alternative treatments have serious side effects and black box warning Limited scope and considerable program safeguards, including Initial prescription, for on-label diagnosis Patient has experienced 5 business day delay in obtaining insurance coverage determination No active marketing to patients Very low-volume use of program (0.0008%) Our conclusions with respect to the anti-kickback statute are based on the particular facts of this Arrangement. We might reach different conclusion on different facts, such as if the Arrangement were used as a marketing tool or if the Arrangement appeared to be used at a greater rate than would be expected based on typical insurance approval rates. 11

Copay Coupons: Regulatory Challenges Exclusion of FHCP beneficiaries September 2014 OIG report and Special Advisory Bulletin: Warns manufacturers they bear ultimate responsibility to structure and administer coupon programs in compliance with law Failure to take appropriate steps to ensure that copay coupons do not induce the purchase of drugs through FHCPs may be evidence of intent to induce within the meaning of the AKS After HHS confirms ACA exchanges are not FHCPs and thus not subject to the AKS CMS discourages cost sharing assistance from commercial entities to ACA exchange patients and encourages plans to reject third party payments 12

GAO Study on Impact of Coupon Use on Part B Spending August 26, 2016 GAO issued a report on coupon programs for privately insured patients and their potential impact on Medicare Part B drug spending Report analyzed data on 18 of the 50 highest expenditure drugs under Part B for 2013 19% of patients who used drugs also used a copay coupon, and realized just over $2,000 in annual savings Part B ASP-based drug reimbursement methodology does not account for direct discounts/rebates to patients GAO found that the ASP for the drugs with coupons exceeds the effective market price by 0.7% on average (~$69M more in Part B spending in 2013) GAO notes growing use of coupons may make Part B rates less suitable over time Recommends Congress consider giving CMS authority to collect data on drug discount programs and report on implications to Part B payments Hogan Lovells 13

www.hoganlovells.com "Hogan Lovells" or the "firm" is an international legal practice that includes Hogan Lovells International LLP, Hogan Lovells US LLP and their affiliated businesses. The word partner is used to describe a partner or member of Hogan Lovells International LLP, Hogan Lovells US LLP or any of their affiliated entities or any employee or consultant with equivalent standing.. Certain individuals, who are designated as partners, but who are not members of Hogan Lovells International LLP, do not hold qualifications equivalent to members. For more information about Hogan Lovells, the partners and their qualifications, see www.hoganlovells.com. Where case studies are included, results achieved do not guarantee similar outcomes for other clients. Attorney advertising. Images of people may feature current or former lawyers and employees at Hogan Lovells or models not connected with the firm. Hogan Lovells 2016. All rights reserved