FDA Approval Not Needed for Medicare Coverage: Court
Attorney Michelle Yeary (Dechert) says a Texas federal court recently rejected a whistleblower’s argument that because FDA has not determined the safety and effectiveness of off-label use of biliary stents used in a vascular stenting procedure, Medicare payment claims for the stents were false. Essentially, she writes in an online blog post, “plaintiffs’ theory is a ban on off-label use where government health insurance is involved. Plaintiffs want the court to say that off-label use is across the board ‘not reasonable,’ ‘unnecessary,’ and/or ‘experimental.’”
Yeary says that FDA review of a medical device is not a substitute for an insurance eligibility determination. And of more significance in the decision, she says, lack of FDA approval or clearance for a specific use does not categorically disqualify a device from Medicare coverage. “As we’ve seen time and time again, however, off-label use is often the standard of care,” she writes. “Medicine leads, regulations follow.”