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Four easy ways 510k and De Novo content is different

It’s a common misconception that FDA De Novo content is very different from FDA 510k submission content, but is that true?

What do you think the De Novo content differences are?

Most people think the difference between a 510k and a De Novo is time and money. That conclusion is based upon a very important assumption: a 510k will not require clinical data, and a De Novo will require clinical data. That assumption is not always correct. 10-15% of 510k submissions include clinical data to support the performance claims, and last year our team submitted three De Novo submissions that did not include any clinical data. So what are the differences between a 510k and a De Novo content?

We use the same FDA eSTAR template for both types of FDA submissions, and on the first page of the eSTAR template, we identify if the submission is a 510k or De Novo. If we select De Novo, the eSTAR will be pre-populated with four unique De Novo content requirements that are not found in a 510k. The four unique requirements are:

  1. identifying alternative practices and procedures for the same indications
  2. recommending a classification, providing a justification for that classification, and explaining what efforts were taken to identify a suitable 510k product code
  3. providing a written benefit/risk analysis starting with the clinical benefits of your device
  4. recommendations for special controls for your new product code based upon the risks to health and the mitigation measures for each risk

Alternate practices and procedures 1024x547 Four easy ways 510k and De Novo content is different

What alternative practices and procedures are currently available?

The unique De Novo content requirement is to provide a description of alternative practices and procedures for treatment or diagnosis of the same indications that you are proposing for your subject device. This is a subsection of the device description section in the FDA eSTAR template. Your should description should include other 510k-cleared products, drugs, and even products that have similar indications but are not identical. The description of alternative practices and procedures must also be attached as a document in the section for benefits, risks, and mitigation measures. To maintain consistency throughout your submission, you should create the document for attachment first and copy and paste the content into the text box at the end of the device description section.

You need to recommend a classification in your De Novo

The unique De Novo content requirement is found in a section titled “Classification.” There is a shorter classification section included in 510k submissions, but the 510k version only has four cells. The first three are populated by selecting one of the options from a dropdown menu, and the fourth cell is only used if your subject device includes other product classification codes.

Classification 1024x346 Four easy ways 510k and De Novo content is different

The De Novo version of the eSTAR is identical for the first row of the classification section, but then you must select a proposed product classification (i.e., Class 1 or Class 2) in accordance with FDA Classification Procedures (i.e., 21 CFR 860). The third cell is a text box for you to enter your justification for the proposed classification. Next, the FDA requires you to enter a proposed classification name. Finally, at the end of the classification section, the FDA requires that you provide a classification summary or reference to a previous NSE 510k submission.

A Benefit/Risk Analysis is required in the De Novo Content

For new devices, the FDA uses a benefit/risk analysis to decide if a device should be authorized for marketing in the USA.  This process includes humanitarian device exemptions, De Novo applications, and Premarket Approval submissions. The FDA has a guidance document that provides guidance for FDA reviewers and the industry. The most important aspect is, to begin with, the benefits of the device and to provide a quantitative comparison of benefits and risks. Many De Novo submissions have been rejected because the submitter did not provide objective evidence of clinical benefits for the subject device.

Benefit Risk Analysis 1024x210 Four easy ways 510k and De Novo content is different

The FDA guidance documents are helpful for creating a benefit/risk analysis, but you can also find information in the ISO/TR 24971:2020–the guidance for the application of ISO 14971:2019. Our company also includes a template for a benefit/risk analysis as part of our risk management procedure (i.e., SYS-010).

What are your recommended Special Controls?

In FDA De Novo Classification Decision Summaries, there is a table provided that identifies the identified risks to health and the recommended mitigation measures for each risk category. In the FDA eSTAR, you are required to add a similar table for De Novo content. The only difference between the table in summary and the eSTAR is that the eSTAR table has a third column where the FDA wants you to reference the supporting data provided for each mitigation measure–including the document and page within the document. The FDA also provided an example table in the eSTAR, copied below.

Risk Mitigation Table Four easy ways 510k and De Novo content is different

The above table for the risks to health and mitigations needs to be translated into a list of recommended Special Controls for Class II devices. Since most De Novo applications are for Class II devices, you will need to convert each of your mitigations into a corresponding Special Control and type these controls into the text box provided in the FDA eSTAR.

Special Controls Four easy ways 510k and De Novo content is different

What else is different from a 510k?

There are no additional mandatory elements that you need to include in a De Novo application, but there are several elements of a 510k submission that are not included in a De Novo. The most obvious of these sections is the Substantial Equivalence Comparison Table in the section labeled “Predicates and Substantial Equivalence.” Another difference is that you are more likely to need clinical data to support a De Novo application than for a 510k submission. It is also possible that subsequent 510k submissions for the same product code may not need to provide clinical data because the 510k process only requires a demonstration of substantial equivalence rather than clinical benefits outweighing risks to health. The FDA review time for a Traditional 510(k) varied between 190 and 210 days in 2022, while the De Novo review timeline averaged 390 days in  2022. Finally, the FDA user fees for 510k submissions are far less than those for a De Novo application.

Posted in: 510(k), De Novo

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What is an FDA Breakthrough Device Designation?

The FDA Breakthrough Device Designation was created in 2015 to expedite device access for life-threatening and debilitating diseases.

What is the FDA Breakthrough Device Designation?

The FDA Breakthrough Device Designation is a formal identification by the US FDA that a device in development should be expedited for patient access because it has a reasonable chance of providing more effective treatment than the standard of care for the treatment or diagnosis of life-threatening or irreversibly debilitating human disease or conditions.

To be granted breakthrough status, your device must also meet at least one of the following four secondary criteria:

  1. Represents Breakthrough Technology
  2. No Approved or Cleared Alternatives Exist
  3. Offers Significant Advantages over Existing Approved or Cleared Alternatives
  4. Device Availability is in the Best Interest of Patients

Once the FDA has designated your device as a breakthrough device, all future communications with the FDA related to that device should be identified with the Q-sub reference number assigned to your breakthrough request.

What are the benefits of receiving the designation?

The breakthrough designation helps the FDA identify new technology to focus on in order to expedite access to novel devices that will save lives and treat debilitating diseases. It takes the FDA longer to review these devices because they may raise novel scientific and regulatory issues. Therefore, the FDA prioritizes 510k and De Novo submissions for breakthrough devices over other 510k and De Novo submissions, and the FDA’s senior management is involved in the review process. The average review time for the seventeen 510k cleared breakthrough devices was 155 days*. This may not seem like an expedited review, but the average review time for 510k cleared devices that require additional testing data is almost 270 days. The average review time for the twenty De Novo Classification Requests designated as breakthrough devices was 251 days*. This represents a significant improvement compared to the average De Novo Decision timeline of 338 days for 2019-2022.

*Metrics updated on 10/31/2022 with data through 9/30/2022

Breakthrough Device Designation by the FDA also has a benefit concerning reimbursement. Typically new technology is not covered by CMS for the first two years. Specifically, the Centers for Medicare and Medicaid Services (CMS) typically takes two years to establish qualification for public reimbursement coverage in the USA. In contrast, private insurers are inconsistent in their coverage because Medicare Administrative Contractor (MAC) is divided into 13 different US regions, each making independent coverage decisions case-by-case. When you receive Breakthrough Device Designation, you receive immediate coverage through CMS until traditional coverage takes effect. This interim coverage period allows your company to establish the clinical benefits of your device so that you can apply for payment and coding to establish long-term reimbursement coverage.

Mechanisms of Expedited FDA Review

In addition to identifying breakthrough devices for priority review and involving the FDA’s senior management, the FDA also offers four other mechanisms for improving the review time. First, the FDA offers “Sprint discussions.” A “Sprint” discussion allows the FDA and the company to discuss a single topic and reach an agreement in a set time period (e.g., 45 days). The FDA provides an example of a Sprint discussion similar to a pre-submission meeting, but the overall timeline is half the duration of the FDA’s target MDUFA V decision goals.

The second mechanism for improving the review time is a Data Development Plan (DDP). Using this mechanism, the FDA will work with the company to finalize the non-clinical and clinical testing plans for the breakthrough device. This may include starting clinical testing earlier while deferring certain non-clinical testing.

The third mechanism for improving the review time is Clinical Protocol Agreement. In this scenario, the FDA will interactively review changes to clinical protocols rather than conducting a protocol acceptance review first. Therefore, the time required to review and approve a clinical protocol change is less, and the sponsor can complete their clinical studies in less time.

The fourth mechanism for improving the review time is a prioritized pre-submission review. If a company prefers to discuss multiple issues in one meeting rather than conducting Sprint discussions on single topics, then the FDA will prioritize pre-submission review. The prioritized pre-submission will be tracked as an interactive review with a shorter timeline than other pre-submission meeting requests.

How do you apply to the FDA for Breakthrough Designation?

To receive the designation, you must prepare a Breakthrough Device Designation request and submit it to the FDA Document Control Center (DCC) as an eCopy. The eCopy can be done via FedEx or through the new Customer Collaboration Portal (CCP) launched by the FDA in 2022. Your application could consist of a single document, but we recommend at least three documents: 1) a formal request outlining how your device meets the criteria for breakthrough designation, 2) a detailed device description, and 3) preliminary clinical data demonstrating the feasibility of your device delivering performance claimed in your request for designation. There are no user fees associated with the application for breakthrough designation, and you are not prevented from submitting other types of submissions in parallel with the breakthrough designation request, such as a pre-submission or investigational device exemption (IDE).

When should you apply to the FDA?

If the FDA denies an initial breakthrough designation request, the company may re-submit a request at a later date. Therefore, companies should submit requests as soon as they can provide preliminary clinical data to demonstrate the feasibility of the device’s claimed performance. Therefore, a breakthrough designation request would typically be submitted at the conclusion of an Early Feasibility Study (EFS), which allows a maximum of ten clinical subjects.

How many companies have received Breakthrough Designation from the FDA?

of Breakthrough Designations vs. Year 2 What is an FDA Breakthrough Device Designation?

Since the start of the Breakthrough Designation program in 2015, the FDA has granted 728 devices Breakthrough Device Designation*. CDRH, the device division of the FDA, granted 722, while CBER, the biologics division of the FDA, granted 6*. The breakthrough designation, however, does not guarantee FDA market authorization. Only 56 of the breakthrough designations have resulted in market authorization so far. Two of the 56 devices were reviewed by CBER. Of the remaining 54 devices, 16 devices received 510k clearance, 18 De Novo Classification Requests were granted, and 20 PMAs were approved*. Given the number of submissions received each year, only 10-15% of De Novo and PMA submissions are also Breakthrough Devices. In contrast, only about 0.1% of 510k submissions are also Breakthrough Devices.

*Metrics updated on 10/31/2022 with data through 9/30/2022

Posted in: De Novo, FDA

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How long does it take FDA to review De Novo submissions?

The new FDA goal is to review De Novo submissions within 150 days for 70% of De Novo submissions, but how long does it take now?

What is an FDA De Novo submission?

An FDA De Novo submission is an application submitted to the FDA for creating a new device product classification. There are three classifications of devices by the FDA: Class 1, Class 2, and Class 3. Class 1 devices are the lowest-risk devices, and they only require general controls. Class 2 devices are moderate-risk devices that require “Special Controls,” and Class 3 are high-risk devices that require Pre-Market Approval (i.e., PMA). De Novo applications can only be submitted for Class 1 and Class 2 devices, and most of the De Novo submissions require clinical data to demonstrate that the clinical benefits of the new device classification outweigh the risks of the device to patients and users.

What is the FDA’s goal for a decision timeline?

Initially, the FDA required that Class 2 devices must be first submitted as a 510k submission. If the device did not meet the criteria for a 510k, then the company could re-submit a De Novo Classification Request to the FDA. On July 9, 2012, the regulations were revised to allow companies to submit De Novo Classification Requests directly. This makes sense because some devices have novel indications for use, and submission of a 510k would be a complete waste of time in money. For example, the first SARS-COV-2 test had to be submitted as a De Novo by Biofire to obtain permanent approval for the test instead of emergency use authorization (EUA).

On October 4, 2021, the FDA published a final rule for the review timeline of De Novo Classification Requests. This new regulation identified the review clock for a De Novo as 120 calendar days. Even though 120 days is 30 days longer than the FDA review clock for a 510k, the actual timeline to review De Novo submissions was much longer.

Every five years, when Congress reauthorizes user fee funding of the FDA, new MDUFA goals are established. The draft MDUFA performance goals (which impact FDA funding) were published recently. The specific performance goal to review De Novo submissions is:

FDA will issue a MDUFA decision within 150 FDA Days for 70% of De Novo requests.

There are two problems with this goal. First, the term “FDA Days” is based on calendar days minus the number of days the submission was placed on hold, and we don’t have any visibility into the number of days submissions are placed on hold. In the past, submissions could be placed on hold multiple times during the Refusal to Accept (RTA) screening process, and the “FDA Days” is reset to zero days each time the company receives an RTA hold letter. In addition, even after the submission is finally accepted, the FDA places the submission on hold when they request additional information (i.e., AI Hold). RTA and AI Hold periods can last up to 180 days, and during the Covid-19 pandemic, companies were allowed to extend this up to 360 days.

The second problem with the MDUFA goal is that we only have visibility into the outcome of De Novo submissions that were granted. More than 60 De Novo submissions are submitted each year, but the number of De Novo Classification Requests granted ranged between 21 and 30 over the past three years. Therefore, the 50%+ of De Novo applications denied could skew the % of De Novo that meets the MDUFA goal.

What is the FDA track record in reviewing a De Novo?

Every CEO I speak with asks the same question: “How long does the FDA review take?” In preparation for a webinar I taught about De Novo Classification Requests in 2019, I researched the latest review timelines for De Novo submissions. I expected the review timelines to be close to 150 calendar days because the FDA decision goal was 150 FDA days. The 150-day goal was set in 2018 when Congress approved MDUFA IV. The 2019 data held two surprises:

  1. only 21 De Novo requests were granted in 2019, and
  2. the average review timeline was 307 calendar days (i.e., the range was 108 days to 619 days).

FDA days are not the same as calendar days. Only 23.8% of De Novo submissions were reviewed within 150 calendar days. The FDA doesn’t calculate the number of FDA days as calendar days, but there is no way to know how much time each De Novo spent on hold publicly. Upon seeing the announcement of a new decision goal for MDUFA V on October 5, 2022, I decided to revisit my previous analysis.

De Novo review timeline How long does it take FDA to review De Novo submissions?

*Only 9+ months of data for 2022, because data was collected on October 17, 2022.

We can blame the Covid-19 pandemic for the slower review timelines during the past few years, but you would expect a longer average duration in 2020 if that was the root cause of the FDA’s failure to achieve the MDUFA IV target of 150 calendar days. You would also expect 2021 to have the longest review timelines. Instead, the review timelines are the slowest for 2022. The number of De Novo submissions remains small, and therefore it is hard to be conclusive regarding the root cause of the failure to reach the 150-day decision goal. In addition, the percentage of De Novo applications granted within 150 calendar days was lowest in 2021, as you would expect if the reason for delays is primarily due to the Covid-19 pandemic.

Is there any good news?

The FDA is allowing the new eSTAR templates to be used for De Novo Classification Requests. These new electronic submission templates standardize the format of all 510k and De Novo submissions for FDA reviewers. The eSTAR also forces companies to answer all questions in the FDA reviewer’s checklist to ensure the submission is complete and accurate before the new submission is submitted to the FDA.

The new eSTAR templates were first used in 2021, and our firm has observed shorter overall review timelines and fewer deficiencies identified by FDA reviewers when they submit an “Additional Information Hold” (AI Hold) to companies.

How can the FDA improve De Novo timelines?

The FDA, industry, and Congress seem to be taking the same approach pursued five years ago to improve the review timeline for De Novo submission. MDUFA V authorized additional user fees for De Novo submissions (i.e., 17.8% increase), and the FDA will be authorized to hire additional employees each year during MDUFA V if the performance goals are met. However, there are three other options that the FDA and industry should have seriously considered during the FDA-industry negotiations.

The first option that should have been considered is to allow third-party reviewers to review the elements of a De Novo that are identical to a 510k submission:

  1. sterilization validation
  2. shelf-life testing
  3. biocompatibility testing
  4. software validation
  5. electrical safety testing
  6. EMC testing
  7. wireless testing
  8. interoperability testing
  9. benchtop performance testing
  10. animal performance testing
  11. human factors engineering

The above approach would require blended pricing where the FDA charges a smaller user fee than a Standard De Novo user fee, and the third-party reviewer charges a smaller fee than a 510k. The combined cost would be higher than the FDA Review of a De Novo, but this would reduce the number of hours the FDA needs to complete their review of a De Novo, and it would allow for pricing that is much lower than the De Novo standard user fee for qualified small businesses.

A second approach would be to pilot a modular review approach. A modular review would be similar to modular reviews for PMA submissions. In a modular review, the FDA can review most submission sections and provide feedback before the human clinical performance data is available. This would not help the few De Novo submissions that do not include human clinical performance data, but this would have a profound positive impact on most De Novo projects. First, the FDA would be able to complete the review of all sections in the submission except the human clinical performance data without delaying the final De Novo decision. Second, a successful review of non-clinical data by the FDA would give investors more confidence to fund pivotal clinical studies required to complete the De Novo submission.

A third approach would be for the FDA to force manufacturers to submit testing plans and protocols as pre-submissions to the FDA. This approach would give the FDA more familiarity with each device and the testing plan before reviewing the data. This approach would also reduce the hours FDA reviewers spend reviewing data that doesn’t meet the requirements and writing deficiencies. This approach would also give investors more confidence to fund De Novo projects for all V&V testing.

Posted in: De Novo

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What is MDUFA V?

MDUFA V is the agreement between the FDA and the medical device industry to fund the review of medical device submissions by the FDA.

What is MDUFA V?

The Medical Device User Fee and Modernization Act (MDUFMA or MDUFA) is a set of agreements between the Food and Drug Administration (FDA) and the medical device industry to provide funds for the Office of Device Evaluations (ODE) to review medical device submissions. FDA user fees were first authorized via MDUFMA in 2002 for FY 2003. Each MDUFA reauthorization has lasted five years, and FY 2023 will be the 21st year.

How are the MDUFA V user fees decided?

Section 738A(b)(1) of the FD&C Act requires that FDA consult with a range of stakeholders, including representatives from patient and consumer advocacy groups, healthcare professionals, and scientific and academic experts, in developing recommendations for the next MDUFA five-year cycle. The FDA initiated the reauthorization process by holding a public meeting on October 27, 2020, where stakeholders and other public members were allowed to present their views on the reauthorization. The following is a list of the four industry groups represented in the MDUFA V negotiations with the FDA:

The FD&C Act further requires that FDA continue meeting with the representatives of patient and consumer advocacy groups at least once every month during negotiations with the regulated industry to continue discussions of stakeholder views on the reauthorization and their suggestions for changes.

What are FDA user fees?

At the very core of it, the FDA user fees fund the FDA Office of Device Evaluation (ODE) budget. Without these user fees, the FDA cannot begin reviewing a medical device submission. This includes 510k, PMA, and De Novo submissions. Before the FDA assigns a reviewer to your submission, you must pay the appropriate device user fee in full unless eligible for a waiver or exemption. If you pay the user fee by credit card, you will need to allow a few extra days for the user fee to clear. Otherwise, your submission will be placed on “User Fee Hold.” Small businesses may qualify for a reduced fee. The FDA will announce the user fees for FY 2024 in a Federal Register notice next August 2023.

When does MDUFA V take effect?

Our team regularly checked the announcement of the MDUFA V user fees from August until last week’s announcement. The announcement of the FY 2023 user fees was delayed because Congress did not approve the MDUFA reauthorization until the last week of September. The new user fees were originally expected to take effect on October 1, 2022, but the announcement of actual user fees for 2022 was announced on October 5, 2022. This was two months later than expected.

Why was MDUFA V delayed, and will it happen again?

MDUFA V was delayed because the user fee reauthorization requires an act of Congress. The House of Representatives approved the Food and Drug Amendments of 2022 on June 8, 2022. However, the Senate did not file a bill until after the August recess. There were also differences between the legislation proposed by the House and the Senate. Therefore, to ensure that the FDA did not have to furlough employees when MDUFA IV funding expired, a temporary reauthorization was approved and signed by the President on September 30, 2022. The short-term continuing resolution is a temporary stopgap to continue funding the FDA until December 16, 2022. However, the continuing resolution covers funding for medical device user fees through September 30, 2027. Therefore, the device industry can expect the FDA to continue to operate regardless of the outcome of temporary policies that expire this December. Still, similar delays occurred with previous MDUFA reauthorization, and we expect more of the same US partisan politics between August 2027 and the November 2027 election.

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How much did MDUFA V user fees increase?

The increase is dependent upon the fee type. Annual registration fees are increasing by 14.47% (i.e., $5,672 to $6,493). The MDUFA V user fees increased by a stupendous amount (+55.90%) from $12,745 to $19,870 for the 510k user fees. Yikes! De Novo Classification Requests increased by 17.79% from $112,457 to $132,464. Other submissions increased by similar amounts. For more details, check out the table below (also posted on our homepage).

20190810 075548 300x225 What is MDUFA V?

FDA User Fee FY 2023 represents a 55.90% increase in the 510(k) user fee

FY 2023 User Fees 1024x587 What is MDUFA V?

Do user fees ever decrease?

If we lived in a magical world where gas prices dropped and stayed low, the inflation-adjusted pricing would decrease for FDA user fees. That has happened once, but I fit into skinny jeans once too.

Why is August 1st important?

August 1st is the first day the FDA starts to accept Small Business Certification Requests for the new fiscal year. That means any small business that wants to keep small business status needs to reapply, and any new business that qualifies for small business status must also apply. The importance of applying for small business status is how much you could save on your submission. The FDA will complete its review of the Small Business Certification Request within 60 calendar days of receipt. Upon completion of the review by the FDA, the FDA will send you a decision letter with your small business designation number or a justification for denial.

Does small business status expire?

Yes, small business status expires. The small business status expires on September 30 of the fiscal year it is granted. A new MDUFA Small Business Certification Request must be submitted and approved each fiscal year to qualify as a small business. If you forget to reapply for small business status on August 1, you can reapply anytime during the year. Still, you will temporarily lose small business status from October 1 until the qualification is renewed. The good news is there is no fee associated with the submission of a Small Business Certification Request. For more information, please visit our webpage dedicated to small business qualifications.

Posted in: 510(k), De Novo, FDA

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FDA CCP now accepts FDA eSTAR & eCopy

Finally, we can use the new FDA CCP to eliminate FedEx shipments, and 100% of your submissions will be electronic through the portal.

July 2022 Update for the FDA eCopy process

The FDA created a Customer Collaboration Portal (CCP) for medical device manufacturers. Originally, the portal’s purpose was to provide a place where submitters can track the status of their submissions and verify the deadlines for each stage of the submission review process. Last week, on July 19, the FDA emailed all active FDA CCP account holders that they can upload both FDA eCopy and FDA eSTAR files to the portal 100% electronically. Since our consulting team sends out submissions daily, everyone on the team was able to test the new process. If you have a CCP account, you no longer need to ship submissions via FedEx to the Document Control Center (DCC).

FDA CCP step-by-step uploading process

When you are uploading an FDA eCopy for medical device submission to the Document Control Center (DCC), using the new FDA CCP, the following steps are involved:

  1. Confirm your eCopy complies with FDA’s eCopy guidance.
  2. Compress your eCopy into a “.zip” file.
  3. Sign in to the portal on the login page
  4. Click on the “+” symbol on the left panel of the webpage (if you hover over the “+” symbol, you will see “Send a submission”)
  5. Select your desired upload format (pre-submissions, meeting minutes, breakthrough device designations, and withdrawal letters must be submitted as an eCopy)Format Selection 1024x515 FDA CCP now accepts FDA eSTAR & eCopy
  6. Click on the “Next” button that appears below the selection formats once a format is selected
  7. Drag & drop your single “.zip” file here, or browse for it.
  8. Click on “Send” button to complete the uploading process.Send Step 1024x528 FDA CCP now accepts FDA eSTAR & eCopy
  9. Verify that the FDA CCP site gives you a confirmation for the successful uploading of your submission.Confirmation that eCopy was sent 1024x556 FDA CCP now accepts FDA eSTAR & eCopy

FDA Q&A about the new FDA CCP Submission Uploading Process

  1. Medical Device Academy Question: Who will be permitted to use the FDA CCP to upload submissions for the DCC? FDA Response: We will first offer this feature in batches to people like you who already use CCP so we can study its performance. We will then refine it and make it available to all premarket submitters.
  2. Medical Device Academy Question: What do you need to use the FDA CCP? FDA Response: You don’t need to do anything to participate since you already use CCP. We will email you again when you can start sending your next submissions online.
  3. Medical Device Academy Question: Suppose another consultant asks me to submit an eSTAR or eCopy for them, or I do this for a member of my consulting team. Is there any reason I cannot upload the submission using my account even though the other person is the official submission correspondent and their name is listed on the cover letter? FDA Response: The applicant and correspondent information of the submission is still used when logging the submission in. The submitter (i.e., the person uploading the submission) is not used in any part of the log-in process. The submission portal is essentially replacing snail mail only; once the DCC loads the submission, whether it be from a CD or an online source, the subsequent process is identical to what it used to be, for now.
  4. Medical Device Academy Question: Is there any type of eCopy that would not be appropriate for this electronic submission process (e.g., withdrawal letters, MAF, or breakthrough device designations)? FDA Response: You can use the eCopy option to submit anything that goes to the DCC, so all your examples are fair game, though interactive review responses would still be emailed to the reviewer.
  5. Medical Device Academy Question: How can I get help from the FDA? FDA Response: If you have questions, contact us at CCP@fda.hhs.gov.

Posted in: 510(k), De Novo

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Classification Recommendation – How to write one for a De Novo request

This article explains how to write your classification recommendation for a De Novo Classification Request using a risk-based approach.

Classification Recommendation 1024x678 Classification Recommendation   How to write one for a De Novo request

“Automatic Class III Designation” does not mean that your device is a Class III device. That phrase means that the device is new, and therefore it will be automatically classified as Class III until a company submits a De Novo Classification Request. You and your company, not the FDA, should make the classification recommendation and propose the regulatory pathway for a new device. Submitting a 513g request is an option, but a 513g request involves paying the FDA money to write a classification recommendation. The FDA will always be more conservative in their assessment than the manufacturer.

Although no FDA guidance explains how to write a classification recommendation, companies have been writing these documents for years–for Technical Files. Most countries have risk-based classification rules, while the FDA’s product classification database is centered upon precedents and adjusted over time by historical trends of adverse events and recalls. Therefore, you should write a classification recommendation for the FDA that is focused on a documented risk assessment. Your approach will also need to be modified to include classification information for similar indications for use and technological characteristics that are already established in the US market.

Most Common Mistakes in Writing a Classification Rationale 

Many people mistakenly write a short classification rationale for a technical file, which simply states which classification rule applies and why. Although this approach is acceptable for a Declaration of Conformity, you must provide a comprehensive classification rationale in your technical file. First, you need to make sure that there is only one classification rule that applies. For example, classification rules fall into four general categories:

  1. Non-invasive Devices
  2. Invasive Devices
  3. Active Devices
  4. Special Rules

The software was haphazardly added to the active devices category until recently, and special rules were created to address emerging areas of interest and concern. Therefore, most active devices have a second rule that applies regarding the invasive nature of the device–or lack thereof. In order to write a comprehensive classification rationale, you need to review each classification rule and document your explanation for why it applies or does not apply to your device.

A Classification Recommendation Compares Indications for Use

The FDA does have classification rules, but the rules are not 13 numbered items in the Code of Federal Regulations (CFR). The FDA expects a risk assessment of comparing your device with existing devices on the US market. The basis of comparison should be: 1) the indications for use and 2) the technological characteristics. First, you should identify other devices that have similar indications for use. For example, a device intended for home use or over-the-counter (OTC) use represents a higher risk to patients and users than a device intended for prescription use only. Patients may fail to identify contraindications for a device properly, or the lack of formal medical training may result in use errors that would not occur when a physician uses the same device.

Other aspects of indications for use that impact the risk assessment are the part of the body where your device will be used and the duration of use. For example, implants are at higher risk than non-implants, because implants are in contact with the body for a much longer period of time. Implants can also expose the body to systemic risks, while a surface contacting device is likely only to have a localized effect. Degradation of implants also exposes the body to small particles, with more surface area, that can travel from one part of the body to another.

If your device is used for life support, the device will also be considered at higher risk than devices that are not required for life support. If your device is the only device used for diagnosis, this also represents a higher risk than a device that acts as an adjunct to other devices. Finally, if your device is an accessory to other devices that are high risk, your device may be considered a higher risk as well–especially if it controls the higher risk device.

In your analysis, you need to identify devices that are already on the US market that have similar indications for use. Usually, those devices will be Class II devices. However, if some of those devices are Class I or Class III, you will need to be more careful with how you differentiate your indications for use from those other devices.

A Classification Recommendation Compares Technological Characteristics

When comparing technological characteristics, the following aspects should be considered: 1) materials, 2) design, 3) energy source, and 4) other design features. For example, absorbable materials are generally considered at higher risk than devices that are not absorbable. Sterile devices are generally at higher risk than non-sterile devices because the failure of the sterilization process or the package integrity can result in serious infections and death. Devices that are electrically powered are usually considered at higher risk than devices that are not powered. Finally, software-controlled devices that provide feedback control are considered at higher risk than a device that does not have feedback control. Each technological characteristic also represents a different category of hazard. Hazard categories are listed in Table E1 of Annex E in ISO 14971:2007. These include chemical, biological, electrical, radiation, etc.

Once you have identified the Classification of other devices with similar indications for use and technological characteristics, you need to estimate the risks for each hazard identified. This involves more than just listing hazards and assigning scores for severity and probability for the occurrence of harm. Severity should consider the type of injuries, the number of injuries, and the duration of harm. Probability should consider the frequency of events (P1), and the probability of events resulting in injury (P2). These risk estimates also require clinical data.

Benefit/Risk Analysis

In the end, you prepare a benefit/risk analysis for your device. This is much more than a statement that the benefits outweigh the risks. You need to identify the clinical benefits of your device when compared to alternative treatments. You also need to analyze risks relative to alternative treatments. You will need to prepare this as a summary of risks–not a list of hazards. Ultimately, your benefits should be equivalent to the benefits of existing devices on the market or better, and the risks should be equivalent to existing devices on the market or less.

Examples of Classification Recommendation

Eight different medical devices are legally marketed in the USA for weight loss or weight management:

  1. Lap-Band Adjustable Gastric Banding System – Class III, PMA
  2. Maestro Rechargeable System – Class III, PMA
  3. ORBERA Intragastric Balloon System – Class III, PMA
  4. Obalon Balloon System – Class III, PMA
  5. TransPyloric Shuttle/TransPyloric Shuttle Delivery Device – Class III, PMA
  6. AspireAssist – Class III, PMA
  7. Sensor Monitored Alimentary Restriction Therapy (SMART) Device – Class II, De Novo
  8. Plenity – Class II, De Novo

The indications for use for these products are similar, but not identical. Plenity is indicated for patients with a BMI of 25 – 40 kg/m2. In comparison, ORBERA is indicated for patients with a BMI of 30-40 kg/m2, and AspireAssist is indicated for patients with a BMI of 35-55 kg/m2. All three of these indications have overlapping BMI ranges. However, the clinical benefits to a person with a BMI of 25 kg/m2 are not the same as the clinical benefits to a person with a BMI of 40 or 50 kg/m2. Therefore, these minor differences in BMI can have a significant impact on the benefit/risk analysis used for a De Novo approval decision and the Classification (i.e., Class II or Class III) determined by the FDA.

The only two weight management devices that received the approval of the De Novo Classification Request had very different technological characteristics from the other six devices. All six Class III, PMA devices, are implants, while the Class II devices are not implants. The risks associated with implants are much greater than with non-implants. The risk of implants breaking or leaking, and the difficulty in removing an implant, are just two of the considerations that must be evaluated in deciding whether an implantable device should be a Class II or Class III device.

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De Novo pre IDE Meeting

The article describes the most critical part of the preparation for a De Novo Classification Request, the De Novo pre IDE meeting.pre IDE Meeting Timeline De Novo pre IDE Meeting

There are two critical differences between a De Novo classification request and a 510k submission. First, 510k clearance is based upon a substantial equivalence comparison of a device and a predicate device that is already marketed in the USA, while a De Novo classification is based upon a benefit-risk analysis of a device’s clinical benefits compared with the risk of harm to users and patients. Second, 510k clearance usually does not require clinical data to demonstrate safety and efficacy, while a De Novo classification request usually does require clinical data to demonstrate safety and efficacy. Therefore, it makes sense that the two most common challenges for innovative medical device companies are: 1) learning how to write a benefit-risk analysis, and 2) designing a clinical study. Success with both of these tasks can be significantly improved by requesting a De Novo pre IDE meeting with the FDA.

Benefit-Risk Analysis Questions to Ask During a De Novo pre IDE Meeting

Most device companies are only familiar with substantial equivalence comparisons–not a benefit/risk analysis. The statement “the benefits outweigh the risks” is not a benefit/risk analysis. The European MDD requires a benefit/risk analysis (mentioned eight times), while Regulation (EU) 2017/745 mentions benefit/risk 69 times. Despite the obvious increased emphasis on benefit/risk analysis in the new EU Regulations, the new ISO 14971 standard that is expected to be released next month still does not require a benefit/risk analysis for all risks as required by the regulations. The international standard also does not clearly explain how to perform a benefit/risk analysis. The best explanation for how to perform a benefit/risk analysis is provided in the FDA guidance.

In addition to reading that guidance, you will need to systematically identify all of the current alternative methods of treatment, diagnosis, or monitoring for your intended use. Therefore, you should ask in a pre-submission meeting if there are any additional devices or treatments that the FDA feels should be considered. You should review each of the alternative treatments for clinical studies that may help you in the design of your clinical study. You should carefully review the available clinical data for alternative treatments to help you quantify the risks and benefits associated with those treatments too. Finally, you should consider whether one or more of these alternative treatments might be a suitable control for your clinical study. Ideally, your clinical study design will show that the benefits of your device are greater, and the risks are less, but either may be enough for approval of your classification request. If you think the risks of your device are significantly less than alternative treatments, then ask the FDA about using this factor as an endpoint in your study design.

Clinical Study Design Considerations

Ideally, there is already a well-accepted clinical model for assessing efficacy for your desired indications. This means multiple, published, peer-reviewed journal articles. You might have a better method for evaluating subjects, but don’t propose that method instead of a “gold standard.” If you feel strongly that your method is more appropriate, propose both methods of evaluation. You also need multiple evaluators who can be objective. Randomization, blinding, and monitoring of clinical studies is critical to ensure an unbiased evaluation of clinical results.

You also need to design your study with realistic expectations. Murphy’s law is always active. That means, “things will go wrong in any given situation if you give them a chance.” Therefore, you must avoid optimism and devise methods for detecting errors quickly. This is why electronic data capture systems and eSource is preferred for data collection instead of the manual collection of data on paper case study forms. Not only does it reduce errors in data collection, but it also facilitates remote monitoring of clinical sites. This includes asking questions that are open-ended or quantitative–instead of Yes/No questions or qualitative evaluations that encourage subjectivity. You can always anticipate every mistake that will be made, and open-ended questions often capture essential data that would otherwise be lost. Asking the quantitative questions also will provide you with additional data you can analyze, which may reveal unexpected relationships or help you to explain unexpected results. To help facilitate the development of these questions, try asking yourself how you could detect an error for each data point you are collecting. Then add a detection mechanism to your data collection plan wherever and whenever you can.

Goals of De Novo pre IDE Meeting

A pre-IDE meeting is not typically your first pre-submission meeting with the FDA. Usually, your first pre-submission meeting is to verify that the FDA agrees that the regulatory pathway is a De Novo classification request rather than a 510(k) submission. Hopefully, you also were able to review your overall testing plan with the FDA during your first pre-submission meeting. You may have even reviewed a clinical synopsis with the FDA during your initial pre-submission meeting. During the pre-IDE meeting, your goal is to finalize your clinical study protocol. That doesn’t mean that the FDA should agree 100% with your draft protocol. You want positive and negative feedback on all aspects of your protocol before the IDE submission. During the IDE review, changes will be made.

The most important aspects of getting right before the IDE submission are the fundamentals. Most of my De Novo clients feel that a control group is not possible, because they think that test subjects will know when a sham is used. However, trying to avoid a control group is nearly impossible. The most important factors for why a control group is needed are:

  • you need to minimize differences between experimental and control subjects, but you can’t do that if you are relying on data from other clinical studies
  • you also need to ensure that your evaluation methods are identical, which is nearly impossible when performed by different people, at different facilities, using slightly different protocols

Another area of weakness in most draft clinical protocols is the method of evaluation. Specifically:

  • Who is doing evaluations?
  • Which endpoints are important?
  • When are your endpoints?
  • What are your acceptance criteria?

The last area to consider in a pre-IDE meeting is your statistical plan. You need a statistical plan, but the statistical analysis seldom appears to be the reason for the rejection of clinical data. The reason is that changes can be made to your statistical analysis of data after the study is completed, but you can’t change the data once the study is over. The FDA is now accepting adaptive designs that allow the company to analyze data during the study to recalculate the ultimate sample size needed based upon actual data rather than initial assumptions.

Other De Novo Classification Request Resources

On Thursday, October 17, we presented a live webinar showing medical device companies on how to avoid a stunning disaster. Click here to access the webinar recording. We recorded another webinar about the preparation De Novo Classification Requests that you can download from our website. I wrote a blog about De Novo classification requests. You can also learn a lot about how to Design your own De Novo clinical study by reviewing the Decision Summaries published by the FDA for each De Novo in the list of De Novo classification requests. Finally, the FDA pre-sub guidance 2019 is an invaluable resource for preparing any pre IDE meeting request.

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De Novo Application – If there is no 510(k) predicate

There are four differences between a De Novo application and a 510k submission, and they do not include time or money.

De Novo Pathway 300x169 De Novo Application   If there is no 510(k) predicate

De Novo Application – If there is no 510(k) predicate

The best regulatory experts plan regulatory submissions months before the performance testing is completed, and often the strategic regulatory pathway is determined before the design of the device even begins. If your design team is developing innovative technology, you may have difficulty finding a predicate device that is substantially equivalent to your device. If you have not completed a De Novo application before, where do you start?

History of the De Novo

Historically, a De Novo application required that your device be submitted through the 510k process first. If the FDA determined that your device was not substantially equivalent to the predicate you chose, then you received a “Not Substantially Equivalent” (NSE) letter from the FDA. Once you receive an NSE letter, you have three options: 1) select a different predicate and re-submit, 2) re-submit the device through the Pre-Market Approval (PMA) process, or 3) submit the device through the De Novo application process. You were not allowed to submit a De Novo application until you received an NSE letter.

The De Novo application process was revised on July 9, 2012 to allow manufacturers to submit a De Novo application without a preceding 510k submission. This was done because there are many products that are technologically equivalent to a predicate device, but the indications for use are quite different. For example, many in vitro diagnostic (IVD) products are indicated for the diagnosis of new viruses, but the device uses technology equivalent to another IVD product the manufacturer already makes. For this reason, most of the first 100+ De Novo application approvals were for IVD products.

Draft Guidance Document

The De Novo application process still (updated September 6, 2017) does not have an approved final guidance document. For now, there is only a draft guidance document. However, with the new fees being charged for De Novo applications as part of MDUFA IV for FY 2018 FDA user fees, you can expect that a final guidance document with an application checklist will be expedited.

Pre-Sub Meetings Prior to a De Novo Application

Pre-sub meetings are generally recommended by the FDA for manufacturers that intend to submit a De Novo application without a prior 510k submission and subsequent NSE letter. If the device is a Class II, a  pre-sub meeting allows the manufacturer to request input from the FDA,  regarding performance testing and special controls. The draft De Novo guidance document specifically recommends following the existing content guidelines for a pre-sub meeting request, but the guidance also recommends including the following elements in the pre-sub meeting request:

  1. Proposed product classification (i.e., Class I, Class II exempt, or Class II)
  2. Details of efforts previously taken in order to identify a predicate
  3. Risks and Risk/Benefit Analysis
  4. Proposed Performance Testing and/or Special Controls

Before you submit a pre-submission request for a potential De Novo application, you should consider the following questions. First, is your device suitable for a De Novo application (see point #2 above)? Second, when is the ideal time for you to submit your application? At least 90 days before your design freeze is needed if the meeting request is going to have any impact on the performance testing plans. Third, what questions do you want the FDA to answer regarding data requirements? Sometimes providing some preliminary data can help you persuade the FDA to accept less total data for approval of the final application. Finally, you may want to consider preparing a draft Special Controls Guidance for the FDA to review as a supplement to your pre-submission meeting. 

A De Novo for Class I and Class II Exempt Devices?

Most manufacturers mistakenly assume that De Novo applications are only for devices that are Class II and will require a 510k submission for future product submissions in the same classification. However, the regulations require that the application cover letter include both a “Classification Summary” and a “Classification Recommendation.” The recommendation for classification may be for Class I, Class II exempt, or Class II non-exempt. If you recommend that the FDA classify the device as Class II exempt, then the recommendation must include a justification for why premarket notification is not required.

Regardless of which classification is recommended, the justification for classification needs to be based upon a risk/benefit analysis. Class I and Class II exempt classifications are likely to be recommended more in the future for many of the standalone software products that are being developed by manufacturers because those software devices generally have a low risk. Existing product classifications may be used, but if the indications for use are not substantially equivalent to a predicate the manufacturers will submit a 510k and receive NSE letters. For the companies that are claiming substantial equivalence to products that already have a product classification that is exempt from premarket notification, manufacturers will continue to register and list products under existing classification codes until the FDA intervenes–even if the indications for use are not equivalent.

How to Modify Your 510k Templates

Twenty sections comprise a 510k submission, but regulatory experts typically use templates for each section in order to streamline the process of preparing a new device submission. For a De Novo application, a large percentage of the sections required for a 510k submission are the same. The draft guidance identifies one unique section of a De Novo: the cover letter (i.e., Attachment II in the De Novo guidance). However, there are three sections of a 510k submission that also need to be eliminated for a De Novo application:

  1. Section 1: User Fee Cover Sheet, because De Novo applications do not require a user fee
  2. Section 5: 510k Summary or 510k Statement is not required, because this is not a 510k submission
  3. Section 12: Substantial Equivalence Comparison, because a De Novo does not claim equivalence to a predicate

Do you need help submitting your De Novo Classification Request?

If you need help with the validation of your FDA eCopy, we offer an FDA eCopy print and ship service for $99/eCopy. We will also be updating this webinar in 2022 to explain how to use the new FDA eSTAR template for De Novo Classification Requests.

New De Novo Webinar

Companies developing devices with truly innovative technologies frequently have difficulty identifying suitable predicate devices. The best regulatory experts plan in advance for these regulatory submissions by honing their knowledge of the De Novo application process. On Thursday, January 28th we recorded a webinar sharing our tips and templates for De Novo applications. Click here to learn more about the webinar.

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