corporate integrity agreements and emerging issues a presentation to the fifth annual pharmaceutical...

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Corporate Integrity Agreements and Emerging Issues A presentation to the Fifth Annual Pharmaceutical Regulatory and Compliance Congress and Best Practices Forum Paul Kalb, JD, MD, Partner, Sidley, Austin, Brown and Wood Jonathon Kellerman, Director, PricewaterhouseCoopers Arjun Rajaratnam, Esq., Compliance Officer, GlobalPharmaceuticals, GlaxoSmithKline

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Page 1: Corporate Integrity Agreements and Emerging Issues A presentation to the Fifth Annual Pharmaceutical Regulatory and Compliance Congress and Best Practices

Corporate Integrity Agreements and Emerging Issues

A presentation to the Fifth Annual Pharmaceutical Regulatory and Compliance Congress and Best Practices Forum

Paul Kalb, JD, MD, Partner, Sidley, Austin, Brown and Wood

Jonathon Kellerman, Director, PricewaterhouseCoopers

Arjun Rajaratnam, Esq., Compliance Officer, GlobalPharmaceuticals, GlaxoSmithKline

Page 2: Corporate Integrity Agreements and Emerging Issues A presentation to the Fifth Annual Pharmaceutical Regulatory and Compliance Congress and Best Practices

Corporate Integrity Agreements and Emerging Issues

CIA Implementation – 10 Steps to Success

Arjun Rajaratnam, Esq., Compliance Officer, GlobalPharmaceuticals, GlaxoSmithKline

Page 3: Corporate Integrity Agreements and Emerging Issues A presentation to the Fifth Annual Pharmaceutical Regulatory and Compliance Congress and Best Practices

CIA Implementation – 10 Steps to Success

1. Understand requirements of Corporate Integrity Agreemento Who is a Covered Person?; Who is excluded?

o Do you have to train secretaries on healthcare law?

2. Seek clarification from Legal and Office of Inspector Generalo Obtain clear guidance on all major interpretations

o Which contractors are included?

o Which activities and departments are covered?

3. Form a cross-functional team with senior management supporto Establish CIA Steering Committee

o Hire a full time dedicated manager

o Secure the right budget

4. Determine deliverables and best method to implemento Annual Worker Screening

o CIA Training

5. Develop Project Plan to include:o Annual report production and delivery

o Development and implementation of processes / operations

Page 4: Corporate Integrity Agreements and Emerging Issues A presentation to the Fifth Annual Pharmaceutical Regulatory and Compliance Congress and Best Practices

CIA Implementation – 10 Steps to Success

6. Communicate

o Communicate requirements and plans to all involved staff

o Establish collaborative work environment

o Keep executives informed of progress through regular updates

7. Track Progress against Plan

o Assign and track actions/issues to completion

o Discuss progress at regular meetings

8. Maintain Regular communications with Independent Review Organization

9. Check on progress and direction with OIG; seek further clarification if necessary

10. Create a new CIA delivery plan for each year

o Hold oneself accountable to other stakeholders as a model

Page 5: Corporate Integrity Agreements and Emerging Issues A presentation to the Fifth Annual Pharmaceutical Regulatory and Compliance Congress and Best Practices

Key Dependencies

5

2005

Training

Managed Markets

Operations

SPCM

CIA Deliverable Timeline: 2004 to 2005

IRO

Today

AnnualTraining

General Training to Covered Persons

Specific Training to Relevant Covered Persons

Systems Review

Draft Medicaid Drug Rebate Systems Report

Systems Review

Updated Systems, Processes, Policies & Procedures

Contract Pricing Review Complete

Draft IROReport

Annual Report Copy of Training Materials

Annual Report

Certificationof Prof.Independence

Final IROReport

Track & Record Distribution of Changes Changes Communicated to

All Covered Persons

Tracking of MM PersonsAdjust Process, If Needed

Annual Process Assessment

Response & CorrectiveAction Plan of Issues Raised by IRO

Annual Report

4Q 2004 Jan Feb3Q 2004 Mar Apr May Jun Jul

CIA eLearning Modules Developed

Verfiy Certifications for Refresher Training

New Hire Training

Page 6: Corporate Integrity Agreements and Emerging Issues A presentation to the Fifth Annual Pharmaceutical Regulatory and Compliance Congress and Best Practices

Jun

Key Dependencies

6

2005

CIA Annual Report

MasterSchedule

Jul

CIA Deliverable Timeline – 2005 Annual Report

May

Today

Certification of ComplianceOfficer

Final IRO Report

Response & CorrectiveAction Plan of Issues Raised by IRO

RevisedSummary ofIRO Engagements

Summary of ReportableEvents

Issue Annual Report to OIG

Copy of Training Materials

Assurances of Training

Summary of Ongoing Investigation or Legal Proceeding

Description of PersonnelActions

Summary of Disclosures in Disclosure LogRelating toFed. HealthCare Programs

Summary ofSignificantChanges to Policies or Procedures

Legal and StakeholderReview Complete

Draft Annual Report to Legal & Stakeholders

April 29 May 27 June 3 June 10 June 17 June 24 July 1 July 8

Changes to GSK Locations

May 13

Description of CoPromotion Agreements

Send Representation Letter to IRO

July 15

Annual Report Due to OIG

Page 7: Corporate Integrity Agreements and Emerging Issues A presentation to the Fifth Annual Pharmaceutical Regulatory and Compliance Congress and Best Practices

Corporate Integrity Agreements and Emerging Issues

Deconstructing Recent CIAs – Implications to Risk Management and Compliance Programs

Jonathon Kellerman, Director, PricewaterhouseCoopers

Page 8: Corporate Integrity Agreements and Emerging Issues A presentation to the Fifth Annual Pharmaceutical Regulatory and Compliance Congress and Best Practices

Deconstructing Recent CIAs – Implications to Risk Management and Compliance Programs

New elements of CIA/IRO requirements

1. Government Pricingo MMA mandated ASP reporting and testing of transactions to methodology

o Broader scope from government reimbursed products to “covered products”

o Inclusion of AMP in scope

o Certification of MMA ASP by CFO or “high managerial agent”

2. Off Label Promotiono IRO - Comprehensive promotional and product services systems review

o IRO - Transactions testing from inquiry management system (i.e., focusing on medical inquiries through sales reps)

o IRO - Transactions testing of financial programs or relationships with HCPs

o CIA – Notification of communications regarding off-label uses issues

o CIA – Review of records reflecting content of detailing sessions

Page 9: Corporate Integrity Agreements and Emerging Issues A presentation to the Fifth Annual Pharmaceutical Regulatory and Compliance Congress and Best Practices

Deconstructing Recent CIAs – Implications to Risk Management and Compliance Programs

“Setting the bar”

1. A formal system, supported by policies, to ensure that medical inquiries from HCPs are unsolicited and to “monitor” alerts

2. A computer system through which information and documentation relating to the financial programs or relationships that may be initiated by the sales force is tracked and tied back to budgeting

3. Using and “testing” commercially available non-company records reflecting the content and subject matter of detailing interactions between sales reps and HCPs (e.g., Verbatims)

Page 10: Corporate Integrity Agreements and Emerging Issues A presentation to the Fifth Annual Pharmaceutical Regulatory and Compliance Congress and Best Practices

Deconstructing Recent CIAs – Implications to Risk Management and Compliance Programs

Other new areas of focus:

1. Greater focus on the sales force, their interaction with HCPs

2. Focus on sales force interactions with medical affairs specialists and medical affairs specialists with HCPs

3. Focus on process and controls around handling requests for participating in a company-sponsored clinical trial or for sponsoring independent research (including the referral of any requests or inquiries of other companies)

4. Focus on processes and controls around disciplinary action for violations of policies (not broad CIA, but specific policies)

5. Focus on systems, policies, processes for compensating sales force personnel (base compensation and compensation for product performance)

Page 11: Corporate Integrity Agreements and Emerging Issues A presentation to the Fifth Annual Pharmaceutical Regulatory and Compliance Congress and Best Practices

Deconstructing Recent CIAs – Implications to Risk Management and Compliance Programs

Implications

1. Investigations/Settlementso Understand the scope and limitations (e.g., information systems) of existing

controls

o Focus on clear definitions (e.g., what is promotional) and expectation-setting regarding scope (e.g., coverage of medical affairs)

o Make sure what is covered is in line with the core investigation issues

2. Proactive Risk Managemento Ensure current compliance program address these and other emerging risks

o Use the new CIAs as “templates” to guide the development of and/or testing/monitoring of internal controls, policies, etc.

Page 12: Corporate Integrity Agreements and Emerging Issues A presentation to the Fifth Annual Pharmaceutical Regulatory and Compliance Congress and Best Practices

Corporate Integrity Agreements and Emerging Issues

CIAs Reflect the Changing Enforcement Environment

Paul Kalb, JD, MD, Partner, Sidley, Austin, Brown and Wood

Page 13: Corporate Integrity Agreements and Emerging Issues A presentation to the Fifth Annual Pharmaceutical Regulatory and Compliance Congress and Best Practices

Plaintiffs Are Attacking Allegedly “False” Claims

1. Reimbursemento AWP

o Estimated Acquisition Cost

2. Medicaid Rebateso Grants

o Repackaging/Relabeling

o Nominal

o Bundling

o Service Agreements

3. 340B Program

4. Federal Supply Schedule/Federal Ceiling Prices

Page 14: Corporate Integrity Agreements and Emerging Issues A presentation to the Fifth Annual Pharmaceutical Regulatory and Compliance Congress and Best Practices

Improper Inducements

Off-Label Promotion

“Fraud-on- the-FDA”

FCA

17200

Product Liability

Plaintiffs Are Pushing Legal Boundaries

NDAs, 510ks, AERs, GMPs, Research Conflicts?

Page 15: Corporate Integrity Agreements and Emerging Issues A presentation to the Fifth Annual Pharmaceutical Regulatory and Compliance Congress and Best Practices

Investigations Part of Broader Focus on “Marketing”

1. Privacy

2. Antitrust/Hatch-Waxman

3. False Advertising

4. GMPs

Page 16: Corporate Integrity Agreements and Emerging Issues A presentation to the Fifth Annual Pharmaceutical Regulatory and Compliance Congress and Best Practices

Implications for CIAs

o Pricing

o Marketing

o Off-Label

o Privacy?

o Hatch-Waxman?

o False Advertising?

o GMPs?