Transcript Slide 1

Clearing Away the Fog:
FDA Approval and
Product Reimbursement
Welcome
Charles Schalliol
Baker & Daniels
Mike Brooks
President & CEO, IHIF
Tony Armstrong
President, IURTC
David Johnson
President & CEO, BioCrossroads
Today’s Theme: Planning Ahead
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Each presentation will highlight advance
planning
How you approach the issues will impact
the result
Time spent determining strategy is not
added time
Today’s Presenters
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Ralph Hall
Extensive experience in FDA, health care law, and corporate compliance,
especially with respect to the medical device industry, and a Professor at
University of Minnesota.
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Suzanne O’Shea
21 years prior experience as regulatory counsel for the FDA, including
Deputy Director of the Office of Combination Products.
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Amy Judge-Prein
Amy has 15 years experience with FDA law, including as Associate
General Counsel for Eli Lilly & Company with extensive experience around
selling and marketing of products and clinical trials.
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Dan Carmichael
Dan has many years of life science legal representation having concluded
his Eli Lilly & Company career as Secretary to the Board of Directors and
Deputy General Counsel. He is a key member in developing Baker &
Daniels’ FDA & Regulatory practice.
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The Regulatory Process /
Trends
Ralph Hall
Where is Value Added?
Concept / Idea
and Market Need
Innovators
Establish Value
- Clinical Trials
(FDA)
- Needs and economics
(CMS)
- Protect Value
(IP)
- Permission to market
(FDA)
Linkage and coordinated strategy is required to
maximize value
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Current FDA/Business Interface
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2007-19 NCEs approved
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Increasing cost
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Clinical studies
Submissions
Uncertain timing
Increasing regulation
Increasing scrutiny
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lowest in 24 years
Congress
Media
FDA
Tremendous pressure on industry
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More products
Better products
Safer products
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Key Questions
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Is the product regulated?
─ If
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Is the activity regulated?
─ If
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so, what is it?
so, how?
Must FDA approve the product before
marketing?
Who will pay for it?
Is it protected via IP?
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Types of Regulated Products
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Drugs
Devices
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Diagnostics
Biologics
Cosmetics
Foods/Dietary Supplements
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Impact of Definitions
Product
Time
Drug
Cost
Clinical
$750 MM+ 5-30,000
8-10 years
PMA
Device
510(k)
Device
Biologic
(biotech)
$50 MM
1,000
$10 MM
-0-
5 years
3 years
$750 MM+ 5-30,000
8 years
Cosmetic
$5 MM
2 years
-013
Drug Definition
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“Intended to”
Treat, cure, mitigate, etc. a disease
─ Affect the structure or function of body
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Generally acts “chemically”
Intended use key concept
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Objective intent of manufacturer
You define what the market is
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Other Key Definitions
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Device
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“Intended to”
 Treat, cure, mitigate, etc. a disease
 Affect the structure or function of the body
Acts “mechanically” (not chemically)
─ Devices include diagnostics
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Biologic
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Vaccine, blood product, tissue, serum
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Drug & Biologics Regulation
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Drugs must be shown to be “safe and
effective”
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Clinical trials required
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Risk/benefit assessment
Burden on company
Investigational new drug approval
Approved protocols
IRB approval
Informed consent
Ongoing manufacturing and reporting duties
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Device Regulation
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Risk based classification system
I – low risk
─ Class II – medium risk (510(k))
─ Class III – high risk (PMA)
─ Diagnostic products
─ Class
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Requirements vary based on
classification
Ongoing quality and reporting duties
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System Integration
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Product approval is indication specific
Clinical trials are for specific uses
Patents are for specific claims
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Actions and strategies must be linked
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Strategic data development
─ Strategic product placement
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Compliance
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Failure to comply can be catastrophic
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Inability to sell the product
Inability to market it
Inability to get paid
Inability to sell the company
Significant enforcement exposure
 Financial penalties
 Criminal liabilities without fault
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Four Key Trends
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FDA’s approach to new technology
Clinical trial issues
Pediatric products
FDAAA implementation and implications
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New Technology
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Evolutionary vs. revolutionary technology
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FDA accustomed to dealing with new uses of
known scientific principals
A new use or therapy doesn’t make the technology
revolutionary
Stents use known mechanical and biologic
processes
FDA comfortable using existing structures for
evolutionary technology
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Revolutionary Science
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FDA challenges with revolutionary science
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Do existing systems fit?
Does FDA have the necessary expertise?
FDA always seeks to “make the science fit”
Sample revolutionary technology
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Stem cells
Software and networking
Genetic and personalized medicine
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Nanotechnology as Revolutionary
Great attention on nanotechnology
 Do nano particles act differently than nonnano article of same type?
 Do nano particles act chemically or
physically?
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Are these drugs, devices or biologics?
Are these combo products?
Is FDA prepared for nanotechnology
submissions?
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Clinical Trial Issues
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Recent public criticism of clinical trial
oversight
GAO report
─ “Mice and rats get more protection than
humans?”
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Increased FDA focus
Initial review and approval
─ Inspections
─ Greater transparency
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Clinical Trial Issues
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Potentially slower approvals of INDs/IDEs
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More inspections
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Greater scrutiny
More questions
Clinical trial holds
Enforcement actions
Data challenges
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Data mining
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Pediatric Products
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Must consider pediatric indications
Use of adult data for approval
─ Surrogate
endpoints
─ Use of other pediatric age group data
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Drug patent extension
Potential opportunity for faster review
─ Remember
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safety
Post market surveillance requirements
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FDAAA Implementation
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FDAAA passed Sept. 2007
Substantial changes and additions to
FDCA
Congress willing to get involved in detail
Pressure on FDA
─ Constant oversight
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FDAAA Implementation
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Key provisions
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User fees
Pediatric drugs and devices
Post market surveillance
Posting clinical trial information
Food safety and imports
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FDAAA Implementation
Major FDA effort required
 200 + major tasks
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Consume resources
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New regulations and guidances
Rules can change
Impact on reviews?
Role of user fees
Impact on management priorities and policies
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Conclusion
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Regulations getting more complex
Approvals may be slowing
Beware of timelines
Increasing enforcement
Congressional and public oversight
Integrated regulatory strategy can yield
big benefits
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Regulatory Strategy
Suzanne O’Shea
The Regulatory Review Process
pre-clinical
data
IND
IDE
clinical trials
CMC
510(k)
design controls PMA
NDA
REMS
MDR
lot release
BLA
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5296154
Strategy: the artful and ingenious
use of resources
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Resources include
statutory authorities and regulations
Federal Register of August 28, 1996
61 FR 44395, 44401
The Tobacco Rule
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Regulatory Strategy
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The artful and ingenious use of statutes,
regulations, policies, and guidance
documents to achieve the optimal
pathway through FDA for a particular
product, a particular company, in a
particular set of circumstances.
One size does not fit all.
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Investors
Drug,
Device,
or Biologic
Intended
Use
Unregulated
Article
Reimbursement/
Payment
Combination
Product
Clinical
Trial
Design
Lead
Agency
Center
Time to
Approval
Patent
Protection
FDA
Exclusivity
Number and
Type of
Application
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Reg-Map: New Use for an Old Drug
Bleomycin for
systemic administration
NDA supplement
by drug company
electroporation
device
510(k)
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Reg-Map: New Use for an Old Drug
electroporation
device
+
PMA
clinical trials
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Reg-Map: New Fangled Delivery Device
new device
Drug X
old drug
general use 510(k)
clinical trial of
device + old drug
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Reg-Map: New Fangled Delivery Device
Drug X
old drug
contract
manufacturer
505(b)(2)
application to CDER
clinical trials
pre-filled, single use
disposal device
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Reg-Map: Follow the $
drug + implant =
combination product
drug to treat a rare
but deadly side effect
of implanted device
510(k) working
with implant
manufacturer
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Reg-Map: Follow the $
drug to treat a rare
but deadly side effect
of implanted device
NDA to CDER
clinical trial, data
development
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Clinical Trial Contracting
Amy Judge-Prein
Current Pressures for Transparency
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Concern for bias with funding
Registry / disclosure requirements
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Contracting Barriers
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Publications
Inventorship
Subject Injury Reimbursement
Indemnification / Insurance
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Increasing Need for Financial Clarity
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Enforcement trends
Anti-kickback need for clear budgets
Complications of reimbursement
MSP memorandum
─ Concern for fraudulent submissions
─ Avoiding promotion
─
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Device Reimbursement:
Planning for
Value-Based Payment
Dan Carmichael
The New Yorker, May 12, 2008
First principals. . .
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We’re facing an “innovation arms race”
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Securing “value-based payment” requires
evidence, advocates and time
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Stakeholders define value differently
Successful reimbursement work is fully
integrated into broader product plan
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New product launches outpace policy development
Not just code applications and billing guides
Senior leadership “owns” reimbursement
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Commit resources; set realistic expectations
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A cyclist and a jogger collide on a local trail. Both
are taken to the emergency room with contusions,
abrasions and possible concussion. Brain function
is assessed using Product X. Both are treated and
released.
Total charges:
$1,262
Total payment cyclist: $1,118
Total payment jogger: $629
How can payment be so different when the
same services are provided?
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Payers employ different
reimbursement mechanisms
•
What kind of insurance does the patient have?
Medicare
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> 65 years
 Disabled
 ESRD
Medicaid
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Commercial
(private)
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Financial need
Employed
 Self-insured
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Reimbursement mechanisms depend
on the site of service
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Where is the service taking place?
Inpatient
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Outpatient
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Ambulatory
Surgical Center
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Physician’s Office
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Patient’s Home
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Single, prospectively set facility payment
Multiple, prospectively set facility payments
possible
 Separate payment for product possible
Single, prospectively set facility payment
Fee schedule
 Prospectively set contracted amount
Separate payment for product possible
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Three interrelated principals underpin
US healthcare reimbursement
Coverage
Coding
Payment
Securing value-based payment requires
attention to all three.
(Corollary: Just “getting a new code” is likely not be sufficient. . .)
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Coverage policy establishes whether the
product or service is an available benefit
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Different criteria than FDA
The item or service may be covered if it is:
“Reasonable and necessary for the diagnosis or
treatment of an illness or injury or to improve the
functioning of a malformed body part. . .”
Social Security Act 1862(a)(1)(A)
Coverage decisions are made based
on the quality of evidence
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Payers follow a rigorous process to set
coverage policy for their members
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Review published data and professional
society guidelines, consult with relevant
specialties, consider decisions made by
other payers and technology assessment
groups
Attempt to reconcile goals of fiduciary
responsibility and access
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National non-coverage policies
preclude coverage
Medicare contractors may not pay if noncoverage determination in place
 Commercial payers: “Experimental,
investigational or unproven”
 To overcome this hurdle:
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Manufacturers bring new evidence
Standard practice changes
Professional societies request/support change
Providers/patients demand access
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Payers evaluate precedent set by
each others’ coverage policies
Medicare coverage policy is influential for private
payers—but not determinative
 Larger payers also have clinical resources that
may determine coverage policy, including the
BlueCross BlueShield Association’s Technology
Evaluation Center (TEC), Kaiser and Aetna
 Smaller payers may look to both public and
private “bellwether payers” for precedent in
setting their policies
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Coverage Determination Processes
Payer
CMS (Medicare)
BCBSA
Aetna
Advisory Body
MedCAC
TEC
Corporate Medical
Affairs
National Coverage
Decisions
Yes
Yes
Yes
Regional medical
director can make
decision in absence
of a corporate
policy
Local
Yes
Plan Medical
Director Makes
Decision
Who Trumps?
National
Local
National
Website
www.cms.hhs.gov
www.bcbsa.com
www.aetna.com
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Coding systems are the
“language of reimbursement”
ICD-9-CM
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Patient diagnosis
Inpatient hospital procedures
CPT
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Physician procedures
Hospital outpatient procedures
Diagnostic tests
Clinical lab procedures
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HCPCS
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Durable medical equipment
Prosthetics, orthotics
Surgical dressings
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Coding systems are managed by
constellation of decision makers
ICD-9-CM
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Patient diagnosis-- NCHS
Inpatient hospital procedures--CMS
CPT
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AMA with
Physician procedures
Hospital outpatient procedures-- input from
professional
Diagnostic tests
societies
Clinical lab procedures
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HCPCS
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Durable medical equipment CMS
Prosthetics, orthotics-HCPCS
Surgical dressings
Workgroup
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How do coverage, coding and
payment fit together?
Reimbursement equals:
 Coverage (is an item or service qualified to be
paid); AND
 Coding (defines the category of benefit and links
to an associated payment); AND
 Payment (what is the reimbursed amount for the
service or item?)
Each reimbursement element is interrelated; each must
be calibrated in order to achieve appropriate
reimbursement
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Code pairs are used to process claims
ICD-9-CM
Diagnosis
850.0
Concussion with no loss of
consciousness
CPT
99283
Level 3 Emergency Visit
CPT
95816
EEG
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Code pairs “map” to payment
according to site of service
Service
Physician
Office
Physician
Service
Hospital
Inpatient
Hospital
Outpatient
Ambulatory
Surgical
Center
Physician Fee Schedule
Facility and Bundled into
Supply Costs
Physician
fee schedule
MS-DRG
APC
Pricer Group
Prosthetics
and Select
Supplies
DMEPOS
Fee
Schedule
MS-DRG
APC or APC
Transitional
Pass-Through
Payment
DMEPOS
Fee
Schedule
Drugs
ASP+6%
MS-DRG
Variety of
Payment
Formulas
Pricer Group
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Payers’ role in healthcare system
is shifting
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From “claims processor” to “proactive
consumer”
Focus on value
─ Improving
treatment outcomes
─ Reducing cost of care
─ Evidence-based decision making
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Often drives payers to seek data in addition
to that required for market clearance
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Who defines product value?
Payers
Value
Patients
Providers
Industry
Stakeholder Interests
Physicians
Clinical
Evidence
Hospital/Facility
Purchasing
Agent
X
Cost Effective
Treatment
Payment
Amount
X
Access to
novel
treatments
X
Payers
Patients/
Patient
Groups
X
X
X
X
X
X
X
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Track policy development; f/u payer meetings
Coding application
Guideline development with societies
Monitor payer response; ID coverage trends proactively
Prospective data collection
Commence reimbursement support
POC
-12
-6
0
+6
+12
Sales force education, mobilization
Materials preparation; billing guide, etc.
Professional societies work
“Courtesy” introductions to bellwether payers; feedback on evidence plan
Identify target payers’ requirements for robust evidence development
Confirm strategy, evidence planning; seek reimbursement for clinical trials?
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Strategic planning can accelerate valuebased payment for innovative technologies
Start planning early
Consider whether clinical evidence is sufficient
Evaluate payer mix and target the key payers
Consider how these payers have evaluated
evidence to make coverage decisions for similar
technology
 Are there strong advocates in the professional
societies? In patient advocacy groups?
 Which arguments will be most effective with
which stakeholder to obtain positive coverage?
 Data, data, data!!
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Conclusion & Questions
Charles Schalliol
Conclusions
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Advance planning will help your
company achieve the desired FDA and
payment results.
Coordinated, planned regulatory
strategy is essential to achieving the
outcome you desire.
Regulation can be used to create
competitive advantage!
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Dennis the Menace
"SOME DAYS JUST HAVE MORE RULES THAN FUN."
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Thank you!
Questions?