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ENQUIRE TODAY
2015 PORZIO LIFE SCIENCESYEAR-END REPORT
WWW.PORZIOLIFESCIENCES.COM
NAVIGATING THE REGULATORY LANDSCAPE
TO OUR CUSTOMERS
Customers and Colleagues:
We at Porzio Life Sciences ("PorzioLS") have been a leading resource for the life sciences industry
for over 11 years. The 2014 YearEnd Report was the first annual PorzioLS accounting of the key
events of the prior year. Continuing in this vein, we proudly offer the 2015 YearEnd Report:
Navigating the Regulatory Landscape.
Undoubtedly, 2015 proved to be another exciting and challenging year for the life sciences industry:
• The Food and Drug Administration ("FDA") Office of Prescription Drug Promotion issued a total of
nine enforcement letters to pharmaceutical companies, including a notable one in response to Kim
Kardashian's social media posts regarding the morning sickness drug Diclegis.
• Per the federal Drug Supply Chain Security Act Draft Guidance, wholesale distributors and third
party logistics providers ("3PLs") were required to submit licensing information to the FDA, while
several states introduced or passed legislation and/or adopted regulations to license 3PLs separate
from wholesale distributors.
• There were several, significant settlements in ongoing government prosecutions, and the
introduction of notable lawsuits brought against the FDA.
• There was an influx of legislation introduced to amend the scopes of practice of advanced practice
registered nurses in various states, including the expansion of prescriptive authority and/or
modifications to collaborative practice agreement requirements.
• The Centers for Medicare and Medicaid Services published the submitted 2014 Open Payments
data, providing insight into the first full year of Sunshine Act reporting. Additionally, Congress
introduced legislation to amend the Sunshine Act.
Our hope is that this report serves as a useful reference of 2015 key events, and provides
meaningful, practical information to you and your company. We thank you for continuing to trust
PorzioLS with your regulatory and compliance challenges, and wish you a successful year.
Sincerely,
The Porzio Life Sciences Team
Track and Trace Requirements for Wholesalers, Manufacturers andRepackagers: 2015 Update
On November 26, 2014, the U.S. Food and Drug Administration ("FDA") released a draft guidance
entitled "DSCSA Standards for the Interoperable Exchange of Product Information for Tracing of Certain
Human, Finished, Prescription Drugs: How to Exchange Product Tracing Information." The draft guidance
is intended to help trading partners (manufacturers, wholesale distributors, dispensers and repackagers)
comply with the track and trace requirements outlined in the Drug Supply Chain Security Act ("DSCSA")
"through the extension and/or use of current systems and processes." In response to concerns from
trading partners of "unforeseen complications with the exchange of the required information," the FDA
issued a Compliance Policy indicating that it "does not intend to take action against trading partners who
do not, prior to May 1, 2015, provide or capture the product tracing information required by [the DSCSA]."
To date, the FDA has not extended the May 1, 2015 deadline.
In October 2015, the FDA published on its website a searchable database of licensing information
reported by wholesale distributors and third party logistics providers ("3PLs") in accordance with the
DSCSA. As expressed in the DSCSA, 3PLs (beginning November 27, 2014) and wholesale distributors
(beginning January 1, 2015) are required to report annually certain information related to the various
state licenses held by each entity. The FDA required 3PLs to submit their initial report between
November 27, 2014, and March 31, 2015. Wholesale distributors were required to submit their initial
report between January 1 and March 31, 2015. The FDA requires wholesale distributors and 3PLs to use
its CDER Direct Electronic Submissions Portal to facilitate reporting as required by the DSCSA. Both
3PLs and wholesale distributors are required to submit subsequent reports between January 1 and
March 31, annually. In October 2015, the FDA published on its website a searchable database of
licensing information reported by wholesale distributors and 3PLs.
Wholesaler and 3PL Licenses Reporting 2015 Recap
DistributionLicensing&
Third-Party Logistics Providers Licensing: State UpdateAccording to the DSCSA, states are prohibited from regulating 3PLs as wholesale distributors. As
such, many states have introduced legislation and/or proposed amendments to its regulations to
conform with the federal requirements.
In July 2012, Massachusetts enacted legislation amending Section 3 of Chapter 175H of the
Commonwealth's General Laws (“Law”). This section of the Law generally prohibits any person from
soliciting, receiving, or offering any remuneration when a payment is or may be made in whole or in part
by a health care insurer. Prior to July 2012, this general prohibition prevented the distribution of
discounts, rebates, and vouchers in Massachusetts. As amended, this section of the Law exempts from
the general prohibition “any discount, rebate, product voucher or other reduction in an individual’s outof
pocket expenses, including copayments and deductibles, on: (i) any biological product… or (ii) any
prescription drug provided by a pharmaceutical manufacturing company…that is made available to an
individual if the discount, rebate, product voucher or other reduction is provided directly or electronically
to the individual or through a point of sale or mailin rebate, or through similar means.” Please note that
the amended law prohibits a pharmaceutical manufacturing company from providing "any discount,
rebate, product voucher or other reduction in an individual's outofpocket expenses, including
copayments and deductibles, for any prescription drug that has an AB rated generic drug equivalent as
determined by the United States Food and Drug Administration."
As originally passed, the added exemption to the general prohibition was scheduled to be repealed on
July 1, 2015. In 2015, however, Massachusetts enacted legislation extending the repeal day to
July 1, 2017.
Massachusetts Alternatives to Sampling
The following states have made moves to separately license 3PLs; many of these states previously
treated 3PLs as wholesale distributors:
Arkansas California
Florida Louisiana North Dakota
Ohio Oklahoma Tennessee West Virginia
Medical Device Excise Tax
Among other things, the Patient Protection and Affordable Care Act imposes an excise tax of 2.3% to the
sale of any taxable medical device. The term "taxable medical device" includes an
"instrument, apparatus, implement, machine, contrivance, implant, in vitro reagent, or other similar or
related article, including any component, part, or accessory, which is recognized in the official National
Formulary, or the United States Pharmacopeia, or any supplement to them, intended for use in the
diagnosis of disease or other conditions, or in the cure, mitigation, treatment, or prevention of disease, in
man or other animals, or intended to affect the structure or any function of the body of man or other
animals, and which does not achieve its primary intended purposes through chemical action within or on
the body of man or other animals and which is not dependent upon being metabolized for the achievement
of its primary intended purposes."
On December 18, 2015, President Obama signed legislation that suspends the medical device tax for two
years. This suspension does not apply to sales during the period beginning on January 1, 2016, and
ending on December 31, 2017.’’ The tax suspension only applies to sales completed after December 31,
2015.
The FDA's Office of Prescription Drug Promotion ("OPDP") issued a total of nine (9) enforcement
letters to pharmaceutical companies in 2015: two (2) Warning Letters and seven (7) Untitled Letters.
The most cited violations were "Minimization, Omission or Misleading Presentation of Risk
Information" (identified in 74% of the occurrences), and "Misleading or Unsubstantiated Efficacy
Claim(s)" (found in 59% of the letters).
The number ofUntitled and Warning Letterscontinued its downward trend. The 9 letters issued in 2015stood in stark contrast to the156 letters issued in 1998.
OPDP Enforcement Letters
Enforcement Actions
According to the Warning Letter, the social media post entirely omits all risk
information, and indicating at the end of the post that more information is
available at www.diclegis.com and www.DiclegisImportantSafetyInfo.com
does not make up for the omission. OPDP also finds the social media post
to be misleading because it fails to provide material information regarding
Diclegis’ full approved indication, including important limitations of use,
specifically, that Diclegis has not been studied in women with hyperemesis
gravidarum.
On August 31st, in response to the August 7th Warning Letter, Kim
Kardashian posted updated endorsements of Diclegis on Instagram,
Twitter and Facebook that include acknowledgement of the pill’s side
effects.
The OPDP issued a Warning Letter on August 7, 2015, to Duchesnay, Inc. for its morning
sickness drug, Diclegis (doxylamine succinate and pyridoxine hydrochloride), citing a violative
social media post by Kim Kardashian. The social media post was also submitted in a
complaint to the OPDP Bad Ad Program.
OPDP Meets Social Media
In contrast to six FDA guidances on drug promotion issued in 2014, the FDA produced only one new
guidance on this issue in 2015: Revised Draft Guidance for Industry: Brief Summary and Adequate Directions
for Use: Disclosing Risk Information in ConsumerDirected Print Advertisements and Promotional Labeling for
Prescription Drugs.
The new guidance revises the draft guidance entitled Brief Summary: Disclosing Risk Information in
ConsumerDirected Print Advertisements (issued January 2004). According to the OPDP, the draft guidance
incorporates results from recent social science research that suggest consumers may get overwhelmed by
large amounts of information, or may not understand the technical content. FDA regulations require print
advertisements to include a “brief summary” of risk information, and promotional labeling to be disseminated
with the full FDAapproved prescribing information.
In terms of language and readability, FDA recommends that drugmakers translate warnings in the package
insert into a casual tone, using lay language. With respect to content, the guidance suggests that the
consumer brief summary include contraindications, boxed warnings, and the most common or serious
adverse events, or those that lead to discontinuation of the drug.
FDA Guidances Regarding Drug Promotion
January 29, 2015: Singulex, Inc. reached a $1.5million settlement in regards to antikickback
(referrals) and false claims (fraudulent billing and
coding) charges. The Corporate Integrity
Agreement ("CIA") requires Singulex to provide
training that covers how a specific arrangement
may implicate the AntiKickback Statute and the
Stark Law, and other regulations and guidance.
Singulex's policies and procedures must also
address the AntiKickback Statute and the Stark
Law.
March 31, 2015: Health Diagnostic Laboratory, Inc.("HDL") reached a $47 million settlement after
allegedly inducing physicians to make referrals to HDL
through the payment of illegal remuneration, in
addition to fraudulent billing and coding claims. The
HDL CIA requires that HDL create procedures to
ensure that all future arrangements do not violate the
AntiKickback Statute and the Stark Law, and provide
training that covers how a specific arrangement may
implicate the AntiKickback Statute and the Stark Law,
among other regulations.
Government Prosecutions: Major Settlements
November 29, 2015: NovartisPharmaceuticals Corporation agreed to pay$390 million to over 40 states, resolving
allegations of providing kickbacks to specialty
pharmacies in exchange for recommending
the drug Exjade to Medicaid and Medicare
patients.
August 31, 2015: Genzyme Corporation (now abusiness unit of Sanofi US) reached a $32.5 million
settlement following allegations that the company
caused a medical device to become adulterated and
misbranded while being held for sale. Under the two
year deferred prosecution agreement, Genzyme
agreed to: 1) admit to and accept responsibility for the
facts underlying the charges; and 2) enhance its
compliance program. If Genzyme fulfills its obligations
under the agreement, the government will dismiss the
charges.
Pharmaceutical Companies vs. The FDA
AmarinOn December 3, 2012, the United States Court of Appeals for the Second Circuit handed down its
decision in U.S. v. Caronia, ruling that the government cannot prosecute pharmaceutical manufacturers
for speech promoting the lawful, offlabel use of an FDAapproved drug.
In May 2015, Amarin Pharmaceuticals sued the FDA, claiming that it should be allowed to tell
physicians that its cholesterollowering drug Vascepa can help lower triglyceride levels in patients
whose levels are between 200 and 499 mL/dL of blood and who are already taking statins, even though
its approved indication is for an adjunct to diet in patients with triglyceride levels over 500. On August 7,
2015, a New York federal judge ruled that Amarin has a constitutional right to promote Vascepa for an
offlabel use as long as the communication is truthful and not misleading. Even though Vascepa
(icosapent ethyl) lacks FDA approval to treat patients with persistently high triglycerides, the ruling in
Amarin Pharma Inc., et al. v. Food and Drug Administration et al. allows Amarin to make statements
and disclosures to doctors regarding that population. This decision rejects the government’s view that
offlabel promotion can be prosecuted even if truthful and nonmisleading.
In 2014, the FDA issued a warning letter demanding that Pacira Pharmaceuticals immediately cease
sharing information about using Exparel following surgeries other than bunion or hemorrhoid. At the
agency’s direction, the company issued a statement correcting the earlier claims and agreed to stop
distributing those promotional materials.
On September 10, 2015, Pacira sued the FDA, claiming a First Amendment right to promote its Exparel
postsurgical nonopioid analgesic for a wide range of surgeries, citing the Amarin federal court ruling that
truthful offlabel claims are protected free speech. In Pacira Pharmaceuticals Inc., et al. v. Food and
Drug Administration et al., the company maintains that its promotional information is truthful and should
be allowed under the recent Amarin ruling.
On October 20, 2015, in an unprecedented move, the FDA removed Pacira's Warning Letter from the
FDA website.
On December 15, 2015, the FDA formally withdrew the September 2014 warning letter regarding Exparel
as part of a settlement reached by both parties. The FDA also agreed to allow Pacira to market Exparel
as a pain treatment beyond the two surgeries originally cited, and both parties agreed to revise the
labeling to clarify the expanded approved scope.
To date, FDA has not commented on the reasoning behind the letter’s removal because it is a matter
related to pending litigation.
Pacira
International Transparency
For the past several years, PorzioLS has published an annual White Paper analyzing the evolution of
the global transparency movement. A primary catalyst for the rapid acceleration of the international
transparency movement was the adoption of the European Federation of Pharmaceutical Industries
and Associations ("EFPIA") Code on Disclosure of Transfers of Value from Pharmaceutical Companies
to Healthcare Professionals and Healthcare Organisations ("Disclosure Code"). EFPIA represents the
pharmaceutical industry in Europe and is comprised of thirtythree national member associations and
forty corporate members.
The expansion of exUS transparency requirements goes well beyond EFPIA, however, as there have
been legislative reporting developments recently in France, Denmark, Portugal, Romania, Greece,
England, and Scotland. Geographically, the global transparency movement extends to the Pacific Rim,
as the Japanese and Australian pharmaceutical industry groups modified their individuallevel reporting
requirements in 2015.
There were also many developments over the past year in the United States, the birthplace of the
transparency movement. Transparency of healthcare professional ("HCP") and healthcare organization
("HCO") interactions are affecting not only innovative pharmaceutical companies but other parts of the
life sciences industry as well.
To read the full White Paper, click here.
Ready Or Not: Make Way for the Global Transparency Movement
2015: Key Ex-US Events
May• EFPIA celebrated International
Clinical Trials Day on May 20, 2015.
• EFPIA and the China
Pharmaceutical Industry Association
("CPIA") released a joint press
release announcing a joint
organization. panies, "SFEE," (Greek
pharmaceutical industry group) and
Pharma.be (Belgian pharmaceutical
industry group) both revised transfer
of value reporting templates.
June• Hellenic Association of
Pharmaceutical Companies, "SFEE,"
(Greek pharmaceutical industry
group) and Pharma.be (Belgian
pharmaceutical industry group) both
revised transfer of value reporting
templates.
• IPHA launched a Disclosure of
Transfers of Value section of its
website.
• Farmindustria adopted revisions to
the Code of Professional Conduct.
• The Croatian Association
Innovative Pharmaceutical Initiative
adopted revisions to its Code of
Conduct of Innovative
Pharmaceutical Companies.
• The Japan Pharmaceutical
Manufacturers Association, "JPMA,"
(Japanese pharmaceutical industry
group) announced that beginning
with 2016 spend to be reported in
2017, transfers of value relating to
research and development spend
will have to be disclosed at the
individual recipient level.
March• LIF (the Swedish Association of
the Pharmaceutical Industry)
revised its Ethical Rules for the
Pharmaceutical Industry in Sweden,
which took effect on March 1, 2015.
• EFPIA and the Association of
Pharmaceutical Researchers and
Developers ("APRaD") (Ukrainian
pharmaceutical industry group)
signed a letter of intent to advance
healthcare reform in Ukraine.
• The Pharmaceutical Research
Based Industry Malta Association
("PRIMA") (Maltese pharmaceutical
industry group) released its
disclosure provisions.
April• The Australian Competition and
Consumer Commission issued its
final determination on the
application submitted by Medicines
Australia, and granted conditional
authorization to Medicine Australia's
Code of Conduct.
• EIG (Slovenian pharmaceutical
industry group) amended its Code
on Disclosure of Transfers of Value
from Pharmaceutical Companies to
Healthcare Professionals and
Healthcare Organisations.
January• EFPIA published the final version
of its FAQs for its Code on
Disclosure of Transfers of Value
from Pharmaceutical Companies
to Healthcare Professionals and
Healthcare Organisations.
• The Irish Pharmaceutical
Healthcare Association ("IPHA")
released its updated Code of
Marketing Practice for the
Pharmaceutical Industry.
• IPHA also adopted a revised
template for transfer of value
reporting.
• Farmindustria (Italian
pharmaceutical industry group)
adopted amendments to its Code
of Professional Conduct.
February• The Association of Research
Based Pharmaceutical Companies
("AiFD"), the Turkish
pharmaceutical industry group,
published an English version of its
Code of Good Promotional
Practice and Good
Communication.
• The French Supreme Court,
Conseil d'Etat, issued a decision
on a challenge to the French
Sunshine Act's implementing
regulations.
• The European Generic
Medicines Association adopted its
Code of Conduct on Interactions
with the Healthcare Community.
September• FSA (German pharmaceutical
industry group) approved revisions to
the Code of Transparency for
Interaction with Healthcare
Professionals and Healthcare
Organisations.
• The European Generic Medicines
Association released Enforcement
Guidelines outlining how the EGA
Code of Conduct will be enforced and
how complaints will be handled.
• The Belgian Minister of Health
announced a "Pact of the Future for
the patient with pharmaceutical
industry."
October• Medicines Australia issued a press
release announcing support for
transparency.
• The European Court of Justice
("ECJ") issued a ruling and declared
the Safe Harbor Program invalid
(October 6, 2015).
• European Union's Article 29
Working Party on the Protection of
Individual with regard to the
Processing of Personal Data issued a
statement about the ECJ's ruling that
the Safe Harbor Program was invalid.
• The European Justice
Commissioner announced that the
European Union and the United
States have agreed in principle on a
new transAtlantic data transfer pact.
November• EFPIA posted six disclosure
related articles on its Pharma Views
Blog.
• The European Commissioner
issued a press release on
transatlantic data flows, FAQs, and
a 16page paper titled
"Communication from the
Commission to the European
Parliament and the Council on the
Transfer of Personal Data from the
EU to the United States of America
under Directive 95/46/EC following
the Judgment by the Court of Justice
in Case C362/14 (Schrems)."
• India's Ministry of Chemicals &
Fertilizers, Department of
Pharmaceuticals, extended the
review period for its voluntary
Uniform Code of Pharmaceuticals
Marketing Practices.
• The Association of the British
Pharmaceutical Industry ("ABPI")
announced further proposals to
amend its Code of Practice for the
Pharmaceutical Industry.
December• EFPIA posted six disclosure
related articles on its Pharma Views
Blog.
• MedTech Europe adopted a Code
of Ethical Business Practice.
• EU negotiators reached a
compromise agreement to move
forward with general data protection
regulation.
• ABPI issued a guidance document
regarding the expected content of
methodology notes.
July• Scienceindustries (Swiss
pharmaceutical industry group)
adopted revisions to its Code of
Conduct of the Pharmaceutical
Industry.
• Pharmig (Austrian pharmaceutical
industry group) adopted revisions
to its Pharmig Code of Conduct.
• Belgium's Medical Device
Industry Group adopted EFPIAlike
reporting for its members.
• AiFD adopted revisions to its
Code of Good Promotional Practice
and Good Communicationof its
Code of Conduct and Explanatory
Notes.
August• Farmindustria adopted and issued
revisions to its Code of
Professional Conduct.
• iF! (Croatian pharmaceutical
group) adopted and issued
revisions to its Code of Conduct of
Innovative Pharmaceutical
Companies.
• EFPIA released its 2014 Annual
Report.
• The Dutch pharmaceutical
industry group released a revised
version of its Code of Conduct and
Explanatory Notes.
2016 Reporting Deadlines
Australia
AustriaBelgiumBulgariaCroatiaCyprus
Czech RepublicDenmarkEstoniaFinlandFrance
GermanyGreece
HungaryIreland
ItalyJapanLatvia
LithuaniaMalta
NetherlandsNorwayPoland
PortugalRomaniaRussiaSerbia
SlovakiaSlovenia
SpainSweden
SwitzerlandTurkeyUkraine
United Kingdom
HCP report: 31/8/2016 & 28/2/2017;
Sponsorship report: 31/8/2016 & 28/2/2017
30/6/2016
30/4/2016
30/6/2016
30/6/2016
30/6/2016
30/6/2016
31/1/2016
1/6/2016
30/6/2016
Agreements: within 15 days;
Benefits: 1/2/2016 & 1/8/2016
30/6/2016
30/6/2016
30/6/2016
30/6/2016
30/6/2016
Companyspecific
30/6/2016
30/6/2016
30/6/2016
19/2/2016
30/6/2016
30/6/2016
Within 30 days of payment
31/3/2016 & 30/6/2016
30/6/2016
30/6/2016
31/1/2016 & 30/6/2016
30/6/2016
30/6/2016
30/6/2016
30/6/2016
30/6/2016
30/6/2016
31/3/2016
Porzio GSTPorzio Life Sciences developed Porzio GST to meet our customers' goals of implementing an ex
US platform for transparency reporting. This solution facilitates data collection and transparency
reporting for Japan, Australia and all European jurisdictions and addresses the challenges
surrounding crossborder spend, HCP consent, data privacy, and global language and currency
distinctions, to facilitate efficient and accurate reporting.
• Language: user interface translated to local user’s language; reports generate in local language
• Crossborder: track, aggregate and report spend against HCPs across multiple jurisdictions;
technical solutions to data privacy
• Profile management to streamline tracking of addresses and interactions
• Consent management to track and audit consent, refusal and revocation
• Agreement management to track and store HCP and HCO contracts
• Store PDFs in conjunction with transactions, profiles and agreements
• Compliance Reports that comport to the formats and requirements in almost 40 exUS jurisdictions
• Robust Ad Hoc reporting tool and dashboards
• Workflow and task management
Key Features
For more information about Porzio GST, please call 9735381690 or visitwww.PorzioLifeSciences.com.
Key Changes to Mid-Level Regulations in 2015Arkansas*: Effective July 22,2015, the Arkansas Board of
Medicine is permitted to authorize
advanced practice registered
nurses ("APRNs") and PAs to
prescribe hydrocodone combination
drugs, even if they are in Schedule II.
APRNs and PAs may not prescribe
any other Schedule II controlled
substances.
Idaho: Effective July 1, 2015,legislation that created the
naturopathic physician licensure law
is repealed.
Louisiana: Effective July 1, 2015,supervising physicians in Louisiana
may delegate prescriptive authority
for Schedule II controlled substances
to qualified PAs.
Previously, PAs were not permitted
to prescribe controlled substances in
Schedule II.
Minnesota: Effective January 1,2015, all categories of advanced
nurse practitioners in Minnesota are
permitted to prescribe and administer
drugs and therapeutic devices
without having a collaborative
management agreement with a
supervising physician. Previously,
only certified nurse midwives could
practice and prescribe independently.
Colorado: Effective September 1,2015, the number of collaborativeagreement practice hours to obtain
full APRN prescriptive authority
decreased to 1,000 hours.
Previously, APRNs were required
to practice in a collaborative
agreement with a licensed
physician for 1,800 hours in order
to obtain full prescriptive authority.
Maryland: On May 12, 2015, theGovernor of Maryland approved
legislation authorizing the Board of
Nursing to create the DirectEntry
Midwifery Advisory Committee.
The Committee will establish
education, licensure, and practice
requirements for directentry (non
nurse) midwives. Directentry
midwives in Maryland will not be
permitted to prescribe medications.
They will be permitted, however, to
administer approved medications.
Please note that implementing
regulations have not yet been
promulgated.
Alabama*: Effective January 1,2015, the Alabama Board of MedicalExaminers began issuing Limited
Purpose Schedule II Permits for
physician assistants ("PAs"), certified
registered nurse practitioners, and
certified nurse midwives. The permit
allows these practitioners to
prescribe, administer and authorize
for administration Schedule II
controlled substances "which are
generally and customarily used in the
specialty practice of the supervising
physician with whom the PA is
registered or the specialty practice of
the collaborating physician with
whom the CRNP/CNM has a
collaborative agreement."
Georgia*: On February 12, 2015,Georgia introduced legislation that
would permit supervising physicians
to delegate prescriptive authority
to PAs for Schedule II controlled
substances. As proposed,
supervising physicians would be
prohibited from delegating to a PA
the authority to issue a prescription
for any Schedule II controlled
substance in excess of a 30day
supply, or to issue a prescription for
any Schedule II controlled substance
not within the physician's scope of
practice.
Mid-Level Regulations
*Controlled Substances Prescriptive Authority Changes
New York: Effective January 1,2015, nurse practitioners in NewYork who have practiced under a
written collaborative agreement with
a licensed physician for at least
3,600 hours may practice and
prescribe drugs independently.
Pennsylvania*: On May 28, 2015,the Pennsylvania House of
Representatives introduced
legislation
to expand the scope of practice
for clinical nurse specialists. This bill
would permit qualified clinical nurse
specialists to prescribe and dispense
nonproprietary drugs, which is “a
drug
containing any quantity of a
controlled substance or any
drug which requires a prescription
pursuant to an applicable Federal
or State law.” This bill is still pending.
Rhode Island: On July 9, 2015, theGovernor of Rhode Island approved
legislation that would allow non
nurse midwives to prescribe certain
medications as authorized by the
state Director of Health. Please note
that implementing regulations have
not yet been promulgated.
Texas*: In June 2015, theGovernor of Texas signed
legislation to eliminate the state
controlled substances registration
requirement for persons who
manufacture, distribute, prescribe,
possess, analyze, or dispense
controlled substances in the state of
Texas. This legislation will become
effective on September 1, 2016.
Washington*: The Washington
Senate introduced on February 4,2015, Senate Bill 5815, whichwould expand the prescriptive
authority of naturopathic physicians
practicing in the state. Currently,
naturopathic physicians may
prescribe legend drugs, and
codeine and testosterone products
that are contained in Schedules III,
IV, and V. If passed, SB 5815
would permit naturopathic
physicians to prescribe legend
drugs, hydrocodone products
contained in Schedule II, and
controlled substances in Schedules
III through V.
Missouri*: Effective August 28,2015, supervising physicians in
Missouri are permitted to delegate to
APRNs and PAs the authority to
prescribe Schedule II hydrocodone
drugs.
New Jersey*: In October 2014, theU.S. Drug Enforcement
Administration reclassified products
containing hydrocodone from
Schedule III to Schedule II; as a
result, optometrists in New Jersey,
who are only permitted to prescribe
controlled substances from Schedules
III, IV, and V, were prohibited from
prescribing these products. To
remedy this effect, New Jersey
enacted legislation on June 26, 2015,
that permits optometrists to continue
prescribing, administering, and
dispensing pharmaceutical agents
containing hydrocodone, regardless
of the controlled substance schedule.
New York*: The New YorkDepartment of Health has adopted
amendments to its regulations that
remove language prohibiting
licensed PAs from prescribing
Schedule II controlled substances.
Effective March 11, 2015,licensed PAs in New York are
permitted to prescribe controlled
substances in Schedules II, III, IV,
and V for patients under the care of
their supervising physician.
*Controlled Substances Prescriptive Authority Changes
The APRN Independence MovementIn 2015, we saw an influx of legislation introduced to amend the scopes of practice of APRNs in
various states. Many states introduced legislation to expand APRNs' prescriptive authority, and/or
modify or eliminate collaborative practice agreement requirements.
2015 showed an
uptick in introduced
APRNrelated legislation
as compared to 2014.
Of the 79 bills that
were introduced in
2015, 9 were signed
and approved.
The number of bills
introduced in 2015
related to PAs also
increased over
last year.
U.S. Transparency
According to the Sunshine Act, applicable manufacturers of covered drugs, devices, biological products,
and medical supplies must report annually certain information regarding payments and other transfers of
value to physicians and teaching hospitals. An additional provision requires applicable manufacturers and group
purchasing organizations ("GPOs") to report all ownership and investment interests held by
physicians or members of their families. The Sunshine Act requires that the reported data be made
available to the public on an Internet website that is searchable, clear, and understandable.
On June 30, 2015, the Centers for Medicare and Medicaid Services ("CMS") published the 2014 Open
Payments data submitted and attested to by manufacturers and GPOs. The published data included
information about "11.4 million financial transactions attributed to over 600,000 physicians and more than 1,100 teaching hospitals, totaling $6.49 billion." The June 2015 publication also included 2013
resubmitted data that had been rejected by CMS in the first publication cycle.
Below are highlights from the published data. These numbers reflect the CMS revised totals as of
January 15, 2016.
Sunshine Act Statistics
Total U.S. Dollar Value: $6.45 BillionGeneral Payments, Disputed/Undisputed, U.S. Dollar Value: $3.56 Million / $2.52 BillionResearch Payments, Disputed/Undisputed, U.S. Dollar Value: $14.55 Million / $3.21 BillionOwnership or Investment Interest, Disputed/Undisputed, U.S. Dollar Value: $541,000 / $476 Million
Total Records Published: 11.37 MillionGeneral Payments, Disputed/Undisputed, Number of Records: 1,735 / 10.78 MillionResearch Payments, Disputed/Undisputed, Number of Records: 1,031 / 580,000Ownership or Investment Interest, Disputed/Undisputed, Number of Records: 2 / 4,782
Total Physicians with Payment Records: 607,000General Payments, U.S. Dollar Value: $1.98 BillionResearch Payments and Associated Research Funding, U.S. Dollar Value: $68.47 Million
Total Teaching Hospitals with Payment Records: 1,122General Payments, U.S. Dollar Value: $542 MillionResearch Payments, U.S. Dollar Value: $704 Million
Total Companies Making Payments: 1,442General Payments, U.S. Dollar Value: $2.52 BillionResearch Payments: US Dollar Value: $3.22 Billion
Numbers above 10,000 have been rounded.
On October 31, 2014, CMS announced that it had published a final rule in the Federal Register, which
included amendments to the rules implementing the Sunshine Act. Although effective as of October
31, 2014, these changes apply to data collected during the 2016 program year for reporting in 2017.
The final rule included the following revisions:
• The final rule deletes the definition of "covered device." CMS notes that this amendment is merely a
technical change, as the definition of "covered drug, device, biological, or medical supply" is already
provided in the rules.
• The final rule requires that applicable manufacturers and applicable GPOs report the "marketed name
and therapeutic area or product category of the related covered drugs, devices, biologicals, or medical
supplies, unless the payment or other transfer of value is not related to a particular covered or
non‐covered drug, device, biological or medical supply." Previously, device and medical supplymanufacturers were given the option of reporting either the marketed name or the therapeutic
area/product category. To make the rules more consistent, these manufacturers will now have to
report a product's marketed name if one exists and is relevant to the transfer of value being disclosed.
• The final rule requires applicable manufacturers to report stocks, stock options, or any other
ownership interest as distinct categories.
In addition to these changes, the final rule also deletes the Continuing Education Exclusion in its
entirety. This deletion means that applicable manufacturers will now be required to report
compensation provided to physician speakers at continuing education events, unless the payment or
other transfer of value is not reportable or otherwise excluded. CMS provided additional information
regarding this change:
• "Starting in 2016, when an applicable manufacturer provides an indirect payment or other transfer of
value to a continuing education organization for a continuing education event to physicians, and knows
or finds out the identity of the physician attendees/speakers within the reporting year or by the end of
the second quarter of the following reporting year, that payment must be reported to CMS in 2017."
• "Starting in 2016, when an applicable manufacturer provides an indirect payment or transfer of value
to a continuing education organization for payment to a physician speaker at a continuing education
event, regardless of the accreditation status of the organization, the payment must be reported to CMS
in 2017."
Sunshine Act Changes Affecting 2016 Data
On July 10, 2015, the United States House of Representatives passed House Bill 6 ("H.R.6"), also
known as the "21st Century Cures Act." Among other things, H.R.6 would amend the Sunshine Act by
excluding from the reporting requirement "peerreviewed journals, journal reprints, journal supplements,
medical conference reports, and medical textbooks." Currently, the rules do not exclude these materials
from reporting. According to the preamble of the final regulations implementing the Sunshine Act,
educational materials (including medical textbooks) provided to covered recipient physicians for their
own education, but that do not directly benefit patients, are subject to reporting. CMS notes in the
preamble that although these items are important for physicians and may have "downstream benefits" for
patients, they are not directly beneficial to patients and are not intended for patient use. Therefore,
according to CMS, these items are currently reportable under the Sunshine Act.
H.R.6 would also add to the current list of exclusions an indirect payment or transfer of value to a
covered recipient who is a physician for "speaking at, or preparing educational materials for, an
educational event for physicians or other health care professionals that does not commercially promote a
covered drug, device, biological, or medical supply," or "that serves the sole purpose of providing the
covered recipient with medical education, such as by providing the covered recipient with the tuition
required to attend an educational event or with materials provided to physicians at an educational event."
H.R.6 is currently pending consideration by the United States Senate.
On October 7, 2015, Senator Charles Grassley, coauthor of the Sunshine Act, introduced Senate Bill
2153 ("S. 2153"), also known as the "Provider Patient Sunshine Act." S. 2153 would amend the
Sunshine Act to require applicable manufacturers to also report payments made to physician assistants,
nurse practitioners, and other advance practice nurses. This requirement would not apply to PAs and
APRNs who are employees of the applicable manufacturer that is required to submit information under
the Sunshine Act.
In a released statement, Senator Grassley noted that "there ought to be a complete record for consumer
benefit. The goal of sunshine for payments to doctors is to help the public. It makes sense to apply the
sunshine to anyone who prescribes medicine. The goal of this bill is to continue the transparency that
brings accountability." Senator Richard Blumenthal, cosponsor of S. 2153, added that "[r]equiring
companies to disclose gifts and payments made to other health care providers not just doctors is
absolutely essential. The Provider Patient Sunshine Act will rein in dishonorable behavior by increasing
transparency and accountability across the entire healthcare industry. Increased access to information is
in the public's best interest, and this legislation will ensure healthcare consumers receive safe, efficient,
and costeffective practices."
This amendment would apply to "information required to be submitted under [the Sunshine Act]...each
calendar year beginning with 2017." This bill is currently pending in the Senate.
21st Century Cures Act
Senator Grassley's Act
Pending Legislation to Amend Sunshine Act
TrendAlert!
On September 10, 2015, the United States Senate introduced Senate Bill 2023 ("S. 2023"), which would
create the Prescription Drug Affordability Act of 2015. Among other things, S. 2023 would require
manufacturers of approved drugs to submit an annual report on the total amount spent during the
previous calendar year on the development, manufacture, and promotion of the drug. Specific reportable
costs include the total amount spent on drug research and development, clinical trials, materials and
manufacturing, and acquisition costs. In addition to these expenditures, S. 2023 would require
manufacturers to report the total amount spent during the previous calendar year on "marketing and
advertising for the promotion of the drug to consumers and prescribers." S. 2023 would require
manufacturers to submit their reports to the Secretary of Human and Health Services and to Congress.
The reports would be made available to the public.
Throughout 2015, California, Massachusetts, New York, New Jersey, North Carolina, Oregon, and
Pennsylvania introduced similar legislation that would require manufacturers to report the costs of
marketing and advertising their drugs to consumers and prescribers. The California and Oregon bills did
not pass, and the New Jersey and Pennsylvania bills died upon adjournment. The remaining bills are
still pending in their respective state legislatures.
Effective July 1, 2014, APRNs who have practiced and prescribed in collaboration with a licensed
physician for at least three years are permitted to independently (1) diagnose and treat alterations in
health status, and (2) prescribe, dispense, and administer medical, therapeutic and corrective measures
and dispense professional samples. Please note that those APRNs who do not qualify to practice
independently are required to practice and prescribe, dispense, and administer medication in
collaboration with a physician licensed to practice medicine in the state.
Connecticut enacted legislation requiring applicable manufacturers that provide payments or other
transfers of value to APRNs engaged in independent practice to submit annual reports to the
Connecticut Commissioner of Consumer Protection. The first report is due no later than July 1, 2017,
and should include payments or other transfers of value provided to APRNs from January 1 –
December 31, 2016.
To date, the state has not provided regulatory guidance on implementing the law. In addition, the
Commissioner of Public Health is required to publish annually on the Department of Public Health's
website a list of APRNs who are authorized to engage in independent practice. Applicable
manufacturers must refer to this list when determining whether they must report information on
payments or other transfers of value made to an APRN. This list has not yet been published.
State Legislation Requiring the Reporting ofMarketing and Advertising Costs
Pending Legislation to Amend Sunshine Act
Connecticut Legislation Affecting 2016 Data Collection
On December 3, 2015, PorzioLS presented the 10th Annual Porzio Compliance Forum, in conjunction
with Porzio, Bromberg & Newman, P.C. and the Center for Health & Pharmaceutical Law & Policy of
the Seton Hall Law School. A record number of attendees and esteemed speakers made the 2015
Forum a particularly successful and productive meeting.
"Compliance 2.0 – The Next Level" offered guests valuable insight into the next level of compliance
from corporate, law firm and law school leaders in the life sciences industry. Program highlights
included expectations of European transparency based on lessons learned from the American
experience, an analysis of internal versus external investigations, and how to use data analytics to
predict future behavior.
Join us for the 2016 Porzio Compliance Forum!
PORZIOCompliance Forum