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CMS Finalizes Changes Expanding the Scope of the Open Payments Program

On November 15, 2019, the Centers for Medicare & Medicaid Services ("CMS") finalized changes to the Open Payments Program as part of the CY 2020 Physician Fee Schedule Final Rule.  The Open Payments reporting requirements, also known as the Sunshine Act, require manufacturers of drugs, biologicals, devices, or medical supplies covered by Medicare, Medicaid, or CHIP to track and report annually to CMS certain payments or transfers of value made to physicians and teaching hospitals (“Covered Recipients”).  Manufacturers and group purchasing organizations also must report ownership or investment interests held by physicians or their immediate family members.  CMS publishes this data in a searchable online database accessible by the general public.  The final rule adopts all of the changes CMS proposed in August, which we previously reported on in an August 12, 2019 blog post

Perhaps most importantly, CMS broadened the list of Covered Recipients.  Starting for data collection for CY 2021, manufacturers will be required to track and report payments and transfers of value made to physician assistants, nurse practitioners, clinical nurse specialists, certified registered nurse anesthetists, and certified nurse midwives.   CMS also added three new nature of payment categories – debt forgiveness, long-term medical supply or device loan, and acquisitions.  CMS consolidated the two payment categories for continuing education programs – accredited/certified and unaccredited/non-certified – into one payment category for all continuing education programs.  Lastly, in a move expected to impose a substantial burden on medical device manufacturers, CMS added a reporting requirement for the ‘device identifier’ component of the unique device identifier for devices and medical supplies.

We will continue to monitor and report developments regarding the Open Payments Program.

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Brian P. Dunphy

Member / Co-Chair, Health Care Enforcement Defense Practice

Brian P. Dunphy is a member of the Health Care Enforcement & Investigations Group at Mintz. He defends clients facing government investigations and whistleblower complaints regarding alleged violations of the federal False Claims Act. Brian also handles commercial health care litigation.
Rachel Yount is a Mintz attorney who focuses her practice on health care industry transactions. Her clients include hospitals, health systems and plans, physician organizations, and pharmacy benefit managers.