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FDA

New FDA Guidance documents for combination drug/device products, medical devices, and FDA inspection trends.

Regulatory pathway & MedTech investor pitch deck

This article explains how to prepare a regulatory pathway analysis and an investor pitch deck for a MedTech startup.

Bipolar Forceps Regulatory pathway & MedTech investor pitch deck

Regulatory Pathway Case Study

This article uses two case study examples to explain how to determine the correct regulatory pathway for your medical device through the US FDA. One of the case study examples is bipolar forceps for use with an electrosurgical generator. A picture of the forceps is provided above. The second case study example is resin for repairing dentures. Rather than providing the second example in detail, we provided the information as we would summarize it in an investor pitch deck. You can also download the pitch deck template at the end of the article.

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What is the regulatory pathway for your device?

Every consultant likes to answer this type of question with the answer, “It depends.” Well, of course, it depends. If there were only one answer, you could Google that question, and you wouldn’t need to pay a regulatory consultant to answer the question. A more helpful response is to start by asking five qualifying questions:

  1. Does your product meet the definition of a device?
  2. What is the intended purpose of your product?
  3. How many people in the USA need your product annually?
  4. Is there a similar product already on the market?
  5. What are the risks associated with your product?

The first question is important because some products are not regulated as medical devices. If your product does not diagnose, treat, or monitor a medical condition, it may not be considered a device. For example, the product might be considered a general wellness product or clinical decision support software.  In addition, some products have a systemic mode of action, and these products are typically categorized as a drug rather than a device–even if the product includes a needle and syringe.

The intended purpose of the device directly impacts the product classification and regulatory pathway 

The intended purpose of a product is the primary method used by the US FDA to determine how a product is regulated. This also determines which group within the FDA is responsible for reviewing your product’s submission. The US regulations use the term “intended use” of a device, but the decision is based upon the “indications for use,” which are more specific. To understand the difference, we created a video that explains it.

Devices intended for very small patient populations fall into a rare regulatory pathway.

Even regulatory consultants sometimes forget to ask how many people need your product annually, but population size determines the regulatory pathway. Any patient population of less than 8,000 patients annually in the USA is eligible for a humanitarian device exemption, which offers a special regulatory pathway and pricing constraints. If your product is intended for a population of <8,000 people annually, your device could qualify for a humanitarian device exemption, and the market is small enough that there may not be any similar products on the market.

If your device is equivalent to a competitor product, you may be eligible for 510(k) clearance.

If similar products are already on the US market, determining the regulatory pathway is much easier. We can look up the competitor product(s) in the FDA’s registration and listing database. In most cases, you must follow the same pathway your competitors took, and the FDA database will tell us your regulatory pathway.

The FDA divides devices into three risk classifications (i.e., Class 1, 2, and 3)

If all the products on the US market have different indications for use, or the technological characteristics of your product differ from those of other devices, then you need to categorize the risks associated with your product. For low-risk devices, general controls may be adequate. For medium-risk devices, the FDA requires special controls. For the highest-risk devices, the FDA typically requires a clinical study, a panel review of your clinical data, and pre-market approval (PMA).

What is the US FDA regulatory pathway for your device?

The generic term used for regulator authorization is “approval,” but the US FDA reserves this term for Class 3 devices with a Premarket Approval (PMA) submission. The reason for this is that only these submissions include a panel review of clinical data to support the safety and effectiveness of the device. Approval is limited to ~30 devices each year, and approximately 1,000 devices have been approved through the PMA process since 1976, when the US FDA first began regulating medical devices.

Most Class 2 devices are submitted to the FDA as Premarket Notifications or 510k submissions. This process is referred to as “510k clearance,” because clinical data is usually not required with this submission, and there is no panel review of safety and effectiveness data. A 510 (k) was originally planned as a rare pathway that would only be used by devices that are copies of other devices already sold on the market. However, the 510 (k) pathway became the de facto regulatory pathway for 95% or more of devices sold in the USA.

For moderate and high-risk devices that are intended for rare patient populations (i.e., <8,000 patients per year in the USA), the humanitarian device exemption process is the regulatory pathway.

Class 1 devices typically do not require a 510k submission; most of these devices are exempt from design controls, and some are exempt from quality system requirements. These devices still require listing on the FDA registration and listing database; however, there is no FDA review to ensure that you have correctly classified and labeled Class 1 devices.

How do you find a predicate for your 510k submission?

As stated above, one of the most critical questions is, “Is there a similar product already on the market?” For our example of bipolar forceps, the answer is “yes.” There are approximately 169 bipolar forceps that have been 510k cleared by the FDA since 1976. If you are developing new bipolar forceps, you must prepare a 510k submission. The first step of this process is to verify that a 510k submission is the correct pathway and to find a suitable competitor product to use as a “predicate” device. A predicate device is a device that meets each of the following criteria:

  1. it is legally marketing in the USA
  2. it has indications for use that are equivalent to your device
  3. the technological characteristics are equivalent to your device

There are two search strategies we use to verify the product classification of a new device and to find a suitable predicate device. The first strategy is to use the free, public databases provided by the FDA. Ideally, you instantly think of a direct competitor that sells bipolar forceps for electrosurgery in the USA (e.g., Conmed bipolar forceps). You can use the registration and listing database to find a suitable predicate in this situation. First, you type “Conmed” into the database search tool for the name of the company, and then you type “bipolar forceps” in the data search tool for the name of the device.

Registration and Listing for Conmed Bipolar Forceps 1024x443 Regulatory pathway & MedTech investor pitch deck

If you are unaware of any competitor products, you will need to search using the product classification database instead. Unfortunately, this approach will result in no results if you use the terms “bipolar” or “forceps.” Therefore, you will need to be more creative and use the word “electrosurgical,” which describes a broader product classification that encompasses both monopolar and bipolar surgical devices, which come in various sizes and shapes, including bipolar forceps. The correct product classification is seventh out of 31 search results.

GEI Product code 1024x454 Regulatory pathway & MedTech investor pitch deck

Listing for Conmed Specification Developer 1024x398 Regulatory pathway & MedTech investor pitch deck

The most significant disadvantage of the FDA databases is that they can only be searched separately. The search is also a Boolean-type search rather than using natural language algorithms that we all take for granted. The second strategy is to use a licensed database (e.g., Basil Systems).

Basil systems search for bipolar forceps 1024x427 Regulatory pathway & MedTech investor pitch deck

Searching these databases is more efficient, and the software will provide additional information that the FDA website does not offer, such as a predicate tree, review time, and models listed under each 510k number are provided below:

Predicate Tree for K190909 1024x539 Regulatory pathway & MedTech investor pitch deck

What does the predicate tree look like for the predicate device you selected?

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How to create an investor pitch deck.

A pitch deck is brief. You want to generate interest and encourage questions from the audience. If the audience specifies a time limit, practice your pitch until you can “hit the post.” For Project MedTech, the target is a 6-minute pitch. Replace the image with your own and be creative with your image cropping. Replace our logo with your own. Replace “Medical Device Academy, Inc.” with your company name. Replace “MedTech Pitch Deck” with the name of the group or person you are pitching.

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Management Team

No need to label every slide. It should be obvious that this is your management team. Remember to focus on the relevant background, rather than everything. It’s just a brief summary, and this might be an opportunity to use the morph transition function to zoom in on each photo, name, and title as you say something NOT IN THE SLIDE about each of the people on the team. Consider a little self-deprecating humor (i.e., how each of them compensates for your weaknesses). The presenter does not need to talk about themselves because the quality of the pitch speaks volumes.

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Competitor Devices

In general, use very few words. The focus of the presentation should be on the presenter, not reading the slides. After all, you submit a slide deck, but you want the opportunity to pitch investors. Black backgrounds with a few high contrast words is easy to read and won’t detract from the you—the presenter. In this slide, “a story” is highlighted to emphasize an important point and to show you how a dash of yellow draws attention to what’s important. “[Dentures]” should be replaced by the common name for your type of device. Don’t make potential investors think too hard. Your selection of pictures will help demonstrate that you know who your competitors are (i.e., competitive analysis). “We have no competition” is a mistake, because that means the market doesn’t exist yet, or it is too small to attract any competitors.

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Subject Device

The ideal picture will immediately explain what makes your device unique and show investors what problem(s) you solved. If you can demonstrate this quickly in a presentation or video, do it. Vocal variety can also be used very effectively here by quietly telling the audience how your product is unique (i.e., it’s a secret). Concluding that secret with a silent 6-second pause is LOUDER than yelling. For example, you could whisper: “Our dentures won’t fall out.”

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What stage of development is your device?

We don’t want the history of the universe. We need to know where you are, when you plan to submit to the FDA, and when you expect to start generating revenue. Adding the date of a patent or provisional patent with the document # is a clever way to say that you have a patent without wasting time with the words. The addition of the Q-sub number adds credibility. If you are conducting clinical studies, it is essential to note the cost of these studies, as they can be significant. If you are prepared to identify reimbursement milestones, add them. Resist building this out to two slides if you are a start-up. You should have revenues already if you need two slides.

After providing a timeline with regulatory milestones, investors will expect you to explain the regulatory pathway of your device.

How do you create a regulatory pathway strategy for medical devices?

The best strategy for obtaining 510k clearance is to select a predicate device with the same indications for use that you want and was recently cleared by the FDA. Therefore, you will need to review FDA Form 3881 for each of the potential predicate devices you find for your device. In the case of the bipolar forceps, there are 169 devices to choose from; however, FDA Form 3881 is not available for 100% of those devices, as the FDA database only displays FDA Form 3881 and the 510(k) Summary for devices cleared since 1996. Therefore, you should select a device cleared by the FDA within the past ten years, unless there are no equivalent devices with recent clearance.

K190909 FDA Form 3881 798x1024 Regulatory pathway & MedTech investor pitch deck

Note: The FDA no longer uses FDA Form 3881 in the FDA PreSTAR or eSTAR, but a similar section exists in both submission templates.

In addition to identifying the correct product classification code for your device and selecting a predicate device, you will also need to develop a testing plan for verifying and validating your device. For electrosurgical devices, there is an FDA special controls guidance that defines the testing requirements and the content required for a 510k submission. Once you have developed a testing plan, confirm that the FDA agrees with your regulatory strategy and testing plan in a pre-submission meeting.

What type of 510k submission is required for your device?

There are three types of 510k submissions:

  1. Special 510k – 30-day review target timeline
  2. Abbreviated 510k – 90-day review target timeline (requires summary reports and use of recognized consensus standards)
  3. Traditional 510k – 90-day review target timeline

The special 510k pathway is intended for minor device modifications from the predicate device. However, this pathway is only eligible to your company if your company also submitted the predicate device. Originally, it was only permitted to submit a Special 510k for modifications that required the review of one functional area. However, the FDA recently completed a pilot study evaluating if more than one functional area could be reviewed. The FDA determined that up to three functional areas could be reviewed. However, the FDA determines whether they can complete the review within 30 days or if you need to convert your Special 510k submission to a Traditional submission. Therefore, you should also discuss the submission type with the FDA in a pre-submission meeting if you are unsure whether the device modifications will allow the FDA to complete the review in 30 days.

In 2019, the FDA updated the guidance document for Abbreviated 510k submissions. However, this pathway requires that the manufacturer use recognized consensus standards for the testing, and the manufacturer must provide a summary document for each test report. The theory is that abbreviated reports require less time for the FDA to review than full test reports. However, if you do not provide sufficient information in the summary document, the FDA will place your submission on hold and request additional information. This occurs in nearly 100% of abbreviated 510k submissions. Therefore, there is no clear benefit for manufacturers to take the time to write a summary for each report in the 510k submission. This also explains why less than 2% of submissions were abbreviated submission types in 2022.

The traditional type of 510k is the most common type of 510k submission used by manufacturers, and this is the type we recommend for all new device manufacturers.

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What is the regulatory pathway?

You don’t have to explain this. You could say, “This is a Class 2 device in the USA that requires a 510(k) submission. We have already identified a potential predicate, and we expect to submit our 510(k) in February.” If you don’t know the pathway this clearly, you should read our blog: https://medicaldeviceacademy.com/regulatory-pathway/. For most devices, we can answer this question in minutes. There are ~4,000 510(k) submissions each year, ~60 De Novo Submissions, and ~25 new PMAs (not including supplements). HDEs are even more rare. Therefore, if you plan to submit a De Novo application, you should already have a pre-submission or 513(g) classification request from the FDA to support it. Pre-subscriptions are always in the best interest of investors because they reduce the risk of having to repeat testing.

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What is the expected FDA review timeline?

The FDA review timeline is variable. The target is 90 days for FDA review, but your submission can be placed on hold for various reasons. Therefore, historical data is the best indicator of the likely review timeline. The median review timeline is most likely. I only use data since 2012, as the RTA process, implemented in 2012, was a significant change to the FDA process. The eSTAR is a change in format, but it has made the process faster and more predictable. Basil Systems is the best tool for estimating the FDA review timeline and performing searches, but it’s only affordable for consultants who do this work daily and for large firms. The denture repair resin had 116 devices, but the example below for biopolar forceps has 2,263.

Review Time for devices in the GEI product classification code 1024x452 Regulatory pathway & MedTech investor pitch deck

The two slides above in our MedTech investor pitch deck template are the only ones that specifically address the regulatory pathway. Another advantage of the Basil Systems software is that its database is lightning-fast, whereas the FDA database is a free government database (i.e., not quite as fast). Basil Systems also provides information that is hard to find in other places, such as the model number:

Conmed bipolar forceps listed under K854864 1024x323 Regulatory pathway & MedTech investor pitch deck

Wouldn’t having the model numbers for every device listed in the US FDA database be helpful?

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Fundraising efforts

Keep it simple. You aren’t sharing your CAP table, and if you aren’t confident when asking for money, nobody will give it to you.

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Use of funds

You need to explain where 80% of your money is going (not 100%). This is intended for potential investors, not an annual shareholder meeting or board meeting. You can always offer to answer more detailed questions after the presentation. To pay your salary is a horrible reason for using funds (suck it up and eat ramen), and to cover cash flow is the second-worst use of investor funds (that’s what loans are for). Sales, marketing, and developing sales channels are a good use of funds, but you have to be experienced in do this and have a specific plan you are prepared to defend. You also need to know who your potential suppliers will be, or you will not be prepared for fundraising. You need to have quotes in hand and be ready to spend that money.

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Business model

Most companies present a 5-year P&L Projection in graph form, and they all look the same: “A Hockey Stick.” Nobody can accurately predict a P&L summary before they have a product that is ready to sell. Therefore, if you are raising Round A, please describe your business model in simple terms (i.e., cost of goods sold and pricing model). For market size, don’t tell us you have a billion-dollar market. Instead, be specific about number of customers and how many devices they use per year. That will make it REAL. For the market share %, you need to do better than…”if we just capture 1% of the market,” and 10% is not a conservative market share for a start-up. 1-10 units is conservative.

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Contact us

Make it easy for people to contact you. You might not have your own YouTube channel, but you should have everything else on this page. No excuses!

Click on the button below for a copy of Medical Device Academy’s investor pitch deck template.

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FDA Guidance Documents Released Recently

The article reviews FDA guidance documents released in the past 90 days and provides links to those guidance.

Screenshot 2025 09 21 9.06.16 PM 1024x532 FDA Guidance Documents Released Recently

For anyone responsible for monitoring new and revised regulatory requirements, you should check the FDA website for new and revised guidance documents at least once every month. If you are not familiar with these FDA resources, here are the links for two of the FDA web pages:

Medical Device Academy will be updating this post weekly. We will also be updating training webinars and procedures associated with these guidance documents. The intent of this review is to help quality system auditors, quality managers, and other personnel responsible for regulatory affairs. It is difficult to stay current with the FDA regulations, and we are trying to make this easier.

New Final FDA Guidance Documents (Q3 2025)

There have been three new final FDA guidance documents released in Q3 2025:

  1. Animal Studies for Dental Bone Grafting Material Devices – Premarket Notification (510(k)) Submissions – Guidance for Industry and Food and Drug Administration Staff – August 22, 2025
  2. Marketing Submission Recommendations for a Predetermined Change Control Plan for Artificial Intelligence-Enabled Device Software Functions – Guidance for Industry and Food and Drug Administration Staff – August 18, 2025
  3. Medical Device User Fee Small Business Qualification and Determination – Guidance for Industry, Food and Drug Administration Staff and Foreign Governments – July 30, 2025

New Draft FDA Guidance Documents (Q3 2025)

There have been no new draft FDA guidance documents released since January 2025 due to a shift in federal policy.

Animal Studies for Dental Bone Grafting Material Devices

This guidance is specific to dental bone grafting material devices. This guidance was originally issued as a draft on March 29, 2024. The devices included within the scope of the guidance are limited to the class II bone grafting material devices regulated under 21 CFR 872.3930 with the following product codes: LYC, NPM, and NUN.

Predetermined Changed Control Plan for AI-Enabled Device Software Functions

This guidance is specific to device software functions (i.e., SiMD or SaMD) that is enabled with artificial intelligence (AI). This guidance was originally issued December 4, 2024. The FDA is issuing this guidance to provide recommendations for predetermined change control plans (PCCPs) tailored to artificial intelligence (AI)-enabled devices. The guidance is intended to support iterative improvement through modifications to AI-enabled devices while continuing to provide a reasonable assurance of device safety and effectiveness.

Medical Device User Fee – Small Business Qualification and Determination

This guidance is specific to small businesses (i.e., companies with annual revenue of less than $100 million). The small business qualification must be renewed each year. Most small businesses we work with fail to submit the form early enough to take advantage of this deduction, or the companies have difficulty gathering the tax records required for the application. You can download the applicable forms and guidance from our website using the links provided below (Updated July 2025):

  • Link to FDA Form 3602N for US Companies, Subsidiaries, Parent Companies, and Foreign Companies (New July 2025 Universal Form)
  • Link to FDA July 2025 Guidance (updated guidance)

Medical Device Academy has a web page dedicated to this process and we can help you complete the application and submit it as a consulting service if needed.

How to keep up on FDA Regulation Changes

If you are interested in keeping up on new and revised regulations from the FDA, I wrote a blog explaining four ways to identify new and updated FDA regulations. The blog identifies FDA web pages for the following four types of updates:

  1. Guidance Documents
  2. Recognized Consensus Standards
  3. Device Classifications
  4. Total Product Lifecycle (TPLC) Database

If you would like to receive email notifications where there are new or revised FDA guidance documents, please sign-up for our Lead Auditor Training course. Anyone that purchases the course will receive email notification of updates. They will also receive access to new and revised training to help them audit new and revised regulations as they are released.

FDA Guidance Documents Released Recently Read More »

FDA User Fees for FY 2026 released on July 31, 2025

The FDA User Fees for FY 2026, October 1, 2025 – September 30, 2026, were released on Thursday, July 31, 2025.

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 must 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 announced the FY 2026 FDA User Fees on July 31, 2025. The FDA will announce the user fees for FY 2027 in a Federal Register notice next August 2026.

What are the FDA User Fees for FY 2026?

FY 2026 FDA User Fees with waiver 1024x547 FDA User Fees for FY 2026 released on July 31, 2025

Is there a small business discount for the establishment registration?

Certain small businesses certified through the small business designation (SBD) program may qualify for a waiver for the registration fee if the business and its affiliates:

  1. have gross receipts and sales of no more than $1 million USD,
  2. can demonstrate paying the registration fee would represent a financial hardship (for example, proof the business is in active bankruptcy), and
  3. has proof of a prior year’s payment of the registration fee.

How much did user fees increase for FY 2026?

The increase in FDA user fees from FY 2025 to FY 2026 was 7.12%, except the annual FDA Registration fee, which increased by 23.1% to $11,423. There are three components to the increase:

  1. Base Fee = a statutory base fee for each FDA user fee
  2. Standard Fee = an inflation-adjusted statutory base fee
  3. Adjusted Fee = adjusted fee to meet revenue target

The reason for each component for the user fees is described in the Federal Register.

When does the FY 2026 increase take effect?

Each year the new FDA user fees take effect on the 1st day of the FDA’s new fiscal year (i.e., October 1). You cannot pay the annual registration fee for FY 2026 until October 1, 2026, and the last day you can submit under the FY 2025 user fee pricing is Tuesday, September 30, 2025. For the submission to be accepted under the current fiscal year, the submission must be uploaded to the Customer Collaboration Portal (CCP) no later than 4:00 p.m. ET on the 30th.

What do you do if you have already paid the FY 2025 price?

If you already paid the FY 2025, and your submission is received after 4:00 p.m. ET on September 30, 2025, you must complete FDA Form 3914 for an FDA user fee payment transfer request. You will also need to pay the difference in user fees (i.e., 7.12%). If your submission is received before the FY 2025 user fee is transferred and you have paid the difference in user fees, your submission will be placed on a user fee hold. If you paid the FY 2025 user fee and are not ready to transfer your previously paid user fee to FY 2025 (and pay the difference), you can request an FDA user fee refund by filling in an online form.

What is the annual registration fee for FY 2026 due?

The annual establishment registration user fee can be paid any time between October 1 and December 31. If you pay late, there is no penalty, but your registration status will be inactive, and you cannot submit new device submissions or import products to the USA. If you are not yet distributing any devices in the USA, you are not required to have your establishment registered, and establishment registration is not required before submitting a new device submission. If you are not required to register yet, when you are paying the user fee for a new device submission on the Device Facility User Fee (DFUF) website, you will click the “Yes” button because there is no “N/A” option for the question below.

Click Yes 1024x200 FDA User Fees for FY 2026 released on July 31, 2025

Is the annual FDA registration fee prorated?

Annual registration payments are not prorated when you are paying in the middle or even near the end of the year for your initial registration. Therefore, you will need to consider if the revenues you expect to gain before the end of the current fiscal year are worth the registration cost. If you need any help with annual registration or you need a US Agent, we offer these consulting services.

FDA User Fees for FY 2026 released on July 31, 2025 Read More »

FDA Human Factors Guidance

FDA released a final FDA Human Factors Guidance that explains the requirements for human factors testing of medical devices.

Screenshot 2016 02 04 at 1.24.04 PM FDA Human Factors Guidance

FDA Human Factors Guidance

The FDA released a final guidance document on the subject of “Applying Human Factors and Usability Engineering to Medical Devices.” This is a final guidance document that replaces the previous version that was released in 2000 and the draft that was released in 2011. The diagram below is Figure 3 from this new FDA guidance, and it includes references to sections 5 through 9 of the guidance document.

What’s in the FDA human factors guidance?

The organization of the guidance is similar to an ISO standard. Section 1 is the introduction. Section 2 is the scope of the guidance. Section 3 includes definitions, and Section 4 provides an overview of the human factors process and usability engineering as these concepts apply to medical devices. Sections 5 through 9 of the guidance explain the details of the process for applying these concepts to medical devices and risk management. The guidance document includes six references to national and international standards that include human factors engineering or usability engineering, and there are 19 references to articles about human factors engineering and usability engineering at the end of the guidance document.

Incorporating human factors in your design and risk management processes

The steps in the process for human factors engineering and usability engineering mirror the risk management process as defined in ISO 14971 except this guidance does not specify developing a risk management plan or the need to create a risk management file. Although the FDA human factors guidance does not specify that a usability engineering file (UEF) is required, a UEF is required for CE Marking and electrical medical equipment. Therefore, during the design planning phase of your design and development process you should also be identifying the human factors and usability engineering tasks that are needed to complete your UEF. The essential activities to include in your usability engineering plan include:

  1. creating a use specification (your user needs) – Requirements Phase of Design
  2. identifying known use errors (design inputs) – Requirements Phase of Design
  3. performing a task analysis – Development Phase of Design
  4. creating a use-related risk analysis (URRA) – Development Phase of Design
  5. conducting formative usability testing – Development Phase of Design
  6. implementing risk controls – Design “Freeze”
  7. creating a summative usability protocol – Verification Phase of Design
  8. writing a summative usability validation report – Validation Phase of Design

Risk controls (i.e., activity #6) are implemented in order to reduce the risk of potential use errors. The unlike other types of risk controls, use-related risk controls require validation instead of verification. The use-related risk controls can be validated through simulated use studies or clinical studies. For these reasons, we recommend documenting use-related risks separately from software risks, security risks, and hardware risks. For IVD 510k submissions, the FDA specifies two different places in the eSTAR to attached your validation documentation. For non-IVD 510k submissions the validation documentation is included in the non-clinical performance testing section of the FDA eSTAR.

Creating a Summative Usability Engineering Report

Clients often ask us what they need to do with regard to human factors engineering and usability engineering for documentation in their technical file (TF) and design history file (DHF). We recommend that they create a summative usability engineering report using the outline provided in the 2016 FDA human factors guidance. We also include a template based on this guidance with our usability procedure (SYS-048) and our human factors training series. If your company makes many types of products with multiple hazard types, then you will need a somewhat generic report template. However, companies with only one or two device families should be able to pre-populate a report template with sections for specific categories of hazards that are applicable to their device family. As discussed in our summative usability report webinar, you can also pre-populate the first seven sections of the report before you conduct summative testing.

Updating Your Risk Management File to Include Usability

As suggested above, we recommend establishing a separate usability engineering file from your risk management file. However, if you already have usability included in your risk management file we recommend updating your risk management file in the following ways:

  1. update your post-market surveillance plan/risk management plan to specifically gather information about use errors related to the use environment, the user, and the device/user interface
  2. update your hazard identification report to include hazards related to use errors
  3. update your risk analysis to include risk controls that you have implemented to reduce the risk of harm related to use errors
  4. perform and document verification and validation of any new risk controls that you may implement related to use errors
  5. update your instructions for use to include warnings and precautions about use errors
  6. develop training tools, such as videos, to demonstrate possible use errors and how to avoid them

The bulk of human factors engineering and usability engineering are documented in the risk management file. Risk management documentation is only required for FDA submissions that include: 1) software, 2) De Novo Classification Requests, and 3) PMA submissions. If you have a non-software device for which you are submitting a 510(k), then you do not include a risk analysis with your submission (exceptions are identified in special controls guidance). It is still critical that design teams address usability engineering, however, because identifying use errors and implementing risk controls to eliminate use errors will prevent product complaints and adverse events. Usability engineering files (UEFs) are also required for electrical medical equipment for IEC 60601-1-6 certification. If these issues are not addressed during the design of a new product, corrective actions and possibly recalls will be needed after the product launch. FDA inspectors will also identify weaknesses in your risk management activities when they identify complaints that are not addressed in your risk analysis.

Additional Training Resources for Usability Engineering

FDA Human Factors Guidance Read More »

FDA US Agent – What do they do?

Medical device companies exporting devices into the USA must have a US agent to register, but what does an FDA US agent do?

What does an FDA US agent do?

Every medical device company outside the USA that distributes devices in the USA must have an FDA US agent. This includes manufacturers, contract manufacturers, and specifications developers outside the USA. The US agent assists the FDA in communication with the device company. The most common communications concern questions about devices exported to the US and scheduling FDA inspections. The role of the US agent is very similar to a European Authorized Representative, a UK Responsible Person, or a Swiss Authorised Representative. Unlike an EC Representative, you do not include US agents in your device labeling. The US agent’s name and contact information only appear on your FDA Establishment Registration record on the FDA website. 

Is there any certification or contract required for a US agent?

FDA US agents have no certification process, but you should have a formal signed agreement or contract with your agent. I have never seen the FDA request a copy of the contract or a letter from a US agent or the company that is registered. However, since the agent has a legal role and responsibility, you should ensure an agreement or contract is in place. The agreement or contract should include the following elements:

  • Scope of service
  • Commitment to perform US agent services promptly
  • Duration of service (i.e., specific start and end dates)
  • Termination provisions
  • Consulting Fees for US agent services (typically an annual fee ranging from $250-$1,500)
  • Any additional consulting fees if the FDA contacts your agent
  • Who is responsible for payment of FDA User Fees ($11,423 for FY 2026 FDA User Fee)
  • Commitment to communicating complaints, especially for potential risks to public health, serious injuries, or death, directly to your company
  • Confidentiality clause or reference to a separate confidentiality agreement (Note: The agent may be compelled to disclose information they have to the FDA, but they should notify your company first if this happens.)
  • Non-solicitation of your customers or suppliers and no solicitation of employees
  • Force Majeure clause
  • Identification of the agent’s name, address, phone, and email
  • Identification of the company name, address, phone, DUNs Number
  • Identification of the company contact’s name, title, address, phone, and email
  • Identification of who will be the “Official Correspondent” in the FDA Registration Database
  • Signature and Date

The US Agent is not required to be a legal entity, but you will need to enter a “Company Name.” There is no place to enter an EIN, and DUNS number is optional. Here’s a screen capture of the account creation form below.

FURLS Account Set up 1024x811 FDA US Agent   What do they do?

You should also consider adding your agent to your Approved Supplier List (i.e., LST-003). If you do not already have a procedure for Supplier Quality Management (i.e., SYS-011), Medical Device Academy has a procedure available for purchase that includes a template for review and approval of new suppliers (i.e., FRM-005) and a template for an Approved Supplier List (i.e., LST-003). The FDA US agent doesn’t need a quality system, but they should be able to demonstrate competency in US FDA device regulations with their resume and/or training records. Specifically, competency should include 21 CFR 820, 803, 806, 830, and 807. In the future, your US agent must also be competent in ISO 13485:2016. FDA inspectors are expected to request evidence of an agreement between your company and the US agent. The inspector will also review your records for qualification, approval, and ongoing evaluation of the US agent as a supplier during FDA inspections. Ideally, your agent has been directly involved in previous FDA inspections, and they can prepare you by conducting a mock-FDA inspection.

What does the FDA do to qualify US agents?

The FDA does very little to qualify a US agent. The only thing the FDA “does” is to send an automated email to the FDA US agent when you submit your initial establishment registration or renew your FDA registration. The email subject line is “ACTION REQUIRED: U.S. Agent Assignment Notification.” The email is sent from “reglist@cdrh.fda.gov.” Your agent must ensure their email client has identified this email as a “safe sender” to prevent the email from ending up in a spam folder. For medical devices, there is no requirement for the US agent to submit any other proof to the FDA.

What is an “Action Required” email?

Below is an example of the “Action Required” email that the FDA sends to FDA US agents immediately after your registration and listing is completed by a foreign firm.

Action Required Email 1024x606 FDA US Agent   What do they do?

Your FDA US agent will receive an automated email from the FDA seconds after you complete your registration for an initial FDA establishment registration or the renewal of your FDA establishment registration. The agent then has ten (10) days to log in to their FURLS account and confirm that they are willing and able to serve as your company’s US agent. The email notifying your US agent includes the following language:

“If you are the U.S. Agent for this establishment, select “Yes”, and click “Submit”. If you are not the U.S. Agent for this establishment, select “No”, and click “Submit”. You must confirm you are the U.S. Agent within 10 business days. If you do not confirm that you are the U.S. Agent within 10 days, the system will automatically cancel your Receipt Code and remove the U.S. Agent information associated with the foreign establishment.”

Suppose the agent does not confirm their role within ten business days. In that case, the FDA will automatically email your company that the agent did not confirm their role. If you select a more reliable US agent, you must resubmit the request for the same person or a new person.

If you have additional questions or need a US agent, please contact Medical Device Academy.

FDA US Agent – What do they do? Read More »

What is the 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. If you want more information, please schedule a call with us, or you can download the FDA guidance. We have helped multiple clients successfully receive breakthrough device designation.

What are the benefits of receiving the designation?

The breakthrough designation helps the FDA identify new technology to focus on 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 32 breakthrough devices with 510k clearance was 152 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 312 days*. This significantly improved compared to the average De Novo Decision timeline of 390 days for 2019-2023.

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

Are there reimbursement benefits?

There have been multiple proposals to offer earlier reimbursement for Breakthrough Device Designation. Typically, CMS does not cover new technology 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. Unfortunately, none of the proposed bills for immediate coverage through CMS have been approved.

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 period (e.g., 45 days). The FDA provides an example of a Sprint discussion, such as a pre-submission meeting. Still, the 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 breakthrough device’s non-clinical and clinical testing plans. This may include starting clinical testing earlier while deferring certain non-clinical testing.

The third mechanism for improving the review time is the 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 Device 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 later. 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 after an Early Feasibility Study (EFS), which allows a maximum of ten clinical subjects.

Breakthrough Devices by FY 1 1024x555 What is the FDA Breakthrough Device Designation?

How many companies have received Breakthrough Device Designation from the FDA?

Since starting the Breakthrough Designation program in 2015, the FDA has granted 933 devices Breakthrough Device Designation*. CDRH, the device division of the FDA, granted 921, while CBER, the biologics division of the FDA, granted 12*. The breakthrough device designation, however, does not guarantee FDA market authorization. Only 95 of the breakthrough designations have resulted in market authorization so far. Four of the 95 devices were reviewed by CBER. Of the remaining 91 devices, 32 received 510k clearance, 30 De Novo Classification Requests were granted, and 31 PMAs were approved*. Given the number of submissions received yearly, 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. The data for breakthrough device designation is only reported through December 31, 2023, but the projected number of breakthrough designations for FY 2024 (ending September 30, 2024) is 232.

*Metrics updated on 4/14/2024 with data through 12/31/2024

**FY 2024 data is limited to one quarter

What is the FDA Breakthrough Device Designation? Read More »

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 is the 21st year.

How are the MDUFA V user fees decided?

Section 738A(b)(1) of the FD&C Act requires that the FDA consult with various stakeholders, including representatives from patient and consumer advocacy groups, healthcare professionals, and scientific and academic experts, to develop 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 could 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 the 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 discussing 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 must 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 announced the FY 2026 FDA User Fees on July 31, 2025. The FDA will announce the user fees for FY 2027 in a Federal Register notice around August 2026.

When does MDUFA V take effect?

Our team regularly checked the announcement of the MDUFA V user fees from August until the October 5, 2022 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 initially 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 the House and the Senate proposed. Therefore, to ensure that the FDA did not have to furlough employees when MDUFA IV funding expired, the President approved and signed a temporary reauthorization on September 30, 2022. The short-term continuing resolution is a temporary stopgap to fund 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.

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 2026 FDA User Fees 2 e1753968066641 1024x541 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. The increase in FDA user fees from FY 2023 to FY 2024 was 9.5%, except the Annual Registration Fee, which increased by 17.87% to $7,653.

Why is August 1st important?

August 1st is the first day the FDA accepts 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 submitting a Small Business Certification Request. For more information, please visit our webpage dedicated to small business qualifications.

What is MDUFA V? Read More »

Medical Device Shortage Reporting

The FDA and Health Canada both have executive-level orders requiring medical device shortage reporting or supply-chain disruptions.

In a previous article, we discussed supply-chain disruptions and mentioned that there might be medical device shortage reporting requirements if that disruption causes a market shortage of the manufactured device. Both the United States and Canada have reporting requirements for supply disruptions or the market’s ability to meet the demand of specific types of devices.

Both the U.S. FDA and Health Canada have executive-level orders that require reporting of shortages or disruptions to the supply of medical devices deemed necessary for the COVID-19 Health Emergency. There is some overlap, but each country is monitoring and experiencing shortages and disruptions of different devices.

Where did medical device shortage reporting responsibilities come from?

Check 21 CFR 820, ISO 13485:2016, and even peek at SOR 98-282 and see if you can find your obligations for reporting. Go ahead. I’ll wait… Not much in there, right? Adverse events, complaints, etc., but not market shortages.
Medical device shortage reporting is specific to health emergencies. The U.S. FDA and Health Canada happen to be two authorities having jurisdiction with reporting requirements for shortages concerning the COVID-19 Health Emergency. However, there may be others, so having your organization’s regulatory affairs manager verify the reporting requirements for the markets in which you are engaged might not be bad.

U.S. FDA 506J reporting-

fda logo Medical Device Shortage Reporting
U.S. FDA logo


In the United States, an Amendment to the U.S. Food, Drug, and Cosmetics Act requires regulatory reporting by medical device manufacturers to the U.S. FDA. It is sometimes called 506J reporting for the Section of the U.S. FD&C Act where it is located.

You will find the statutory requirements outlined within 21 USC 356J.

21 USC 356j screenshot from uscode.house .gov cropped title Medical Device Shortage Reporting
21 USC 356J Discontinuance or interruption in the production of medical devices

For the full text read, 21 USC 356j: Discontinuance or interruption in the production of medical devices. (Interestingly enough, the website where this information is available is not an HTTPS site, so visit at your own discretion).

http://uscode.house.gov/browse.xhtml

What devices are subject to 506J reporting?

There are two types of devices that the FDA is monitoring. “Critical” devices and an FDA-published list of devices for which COVID-19 is causing a higher than expected demand.

The FDA has released a guidance document that contains criteria for what is considered to be a “Critical Device”. This includes devices such as those used during surgery, emergency medical care, and those intended to treat, diagnose, prevent, or mitigate COVID-19.

fda guidance criteria for 506j critical devices Medical Device Shortage Reporting
Screenshot of the Critical Device Criteria for 506J reporting

There is also a published list of concerned devices that the FDA is specifically monitoring. The FDA website lists these devices by product code, but include the following device types;

  • Clinical Chemistry Products
  • Dialysis-Related Products
  • General ICU/Hospital Products
  • Hematology Products
  • Infusion Pumps and Related Accessories
  • Microbiology Products
  • Needles and Syringes
  • Personal Protective Equipment (PPE)
  • Sterilization Products
  • Testing Supplies and Equipment
  • Ventilation-Related Products
  • Vital Sign Monitoring
fda 506j shortage list screenshot Medical Device Shortage Reporting
Screenshot of the FDA Shortage List

Understandably this process may not be intuitive, and for this, the FDA has released a guidance document that addresses;

  • Who must make the notification
  • When you should make a notification
  • What information needs to be included within your 506J notification
  • How to make a notification, and
  • Penalties for failure to make a notification

The referenced product codes may not be an all-inclusive list or entirely up to date. The best suggestion for full compliance is to go straight to the source of the regulation, in part because noncompliance can result in enforcement action from the FDA. If you think that your device might require notification to the FDA but isn’t in the reference table, you should contact the FDA for notification clarification. Below is the quote from the FDA website, and it includes the contact email for asking these specific questions to ‘the agency.’

“If a device type is not included in this table, but you believe it requires a notification under section 506J of the FD&C Act, or if you have questions regarding the device types in this table, you should contact FDA at CDRHManufacturerShortage@fda.hhs.gov and include “Question” in the subject line of the email.”

Link to the FDA Guidance Document for 506J Reporting- HERE

How to make a 506J report to the U.S. FDA?

The FDA accepts 506J reports in multiple ways. For example, you may use the 506J Reporting web form or submit a notification by email directly to (Include Email Here). In addition, Medical Device Academy has developed a Work Instruction and Form to determine if your company is experiencing a reportable discontinuance or meaningful disruption in manufacturing a medical device as well as compiling the report for submission.

There are a few methods of notification, a web form for individual notifications and spreadsheet options for multiple notifications at once, or emailing a report directly to the FDA reporting email included below;

CDRHManufacturerShortage@fda.hhs.gov

fda 506j webform screenshot Medical Device Shortage Reporting
Screenshot of the FDA 506J reporting Webforms from https://fdaprod.force.com/shortages

It is for this process that Medical Device Academy developed WI-010 506J Shortage Reporting to the U.S. FDA. This work instruction and associated form, FRM-053 506J Reporting Form are designed to walk you through the process of determining reportability and compiling the information necessary to either complete the webform or email the report directly to the shortage reporting email.

Medical Device Shortage Reporting to Health Canada

health canada logo sante canada 1024x224 1 Medical Device Shortage Reporting
Health Canada logo

Rather than discontinuance and disruption of manufacture, Health Canada is monitoring for shortages of specific devices. Therefore, Health Canada wants Medical Device Shortage Reports regardless of the reason for the shortage. It also shows that this is not identical reporting of the same conditions to two different authorities. Health Canada will also accept reports from Importers because the frame of reference is Canada’s supply of medical devices concerning Canada’s needs.

As an Authority Having Jurisdiction, Health Canada also has reporting requirements for medical device shortage reporting of specific types of medical devices. Health Canada is also an independent authority that uses a different device classification system than the U.S. FDA.

The table below shows the device types by their classification level that HC requires supply chain disruption notifications for. This information is current as of September 5th, 2021, and the link below will take you to the HC website page for the most up-to-date list.

https://www.canada.ca/en/health-canada/services/drugs-health-products/medical-devices/shortages/covid19-mandatory-reporting.html

Class I Medical Devices
Masks (surgical, procedure or medical masks) – Level 1, 2, 3 (ATSM)
N95 respirators for medical use
KN95 respirators for medical use
Face shields
Gowns (isolation or surgical gowns) – Level 2, 3 and 4
Gowns (chemotherapy gowns)
Class II Medical Devices
Ventilators (including bi-level positive airway pressure or BiPAP machines, and continuous positive airway pressure or CPAP machines)
Infrared thermometers
Digital thermometers
Oxygen Concentrators
Pulse Oximeters (single measurement)
Aspirators/suction pumps (portable and stationary)
Laryngoscopes
Endotracheal tubes
Manual resuscitation bags (individually or part of a kit)
Medical Gloves – Examination and Surgical (Nitrile, Vinyl)
Oxygen Delivery Devices
Class III Medical Devices
Ventilators (including bi-level positive airway pressure or BiPAP machines)
Pulse Oximeters (continuous monitoring)
Vital Signs Monitors
Dialyzers
Infusion Pumps
Anesthesia Delivery Devices
Class IV Medical Devices
Extracorporeal Membrane Oxygenation (ECMO) Devices
List of ‘Specified Devices’ that Health Canada is monitoring for shortage reporting

One of the things that Health Canada does an excellent job of is defining its expectations. In the Second Interim Order Respecting Drugs, Medical Devices and Foods for a Special Dietary Purpose in Relation to COVID-19, it is explained the Manufacturers or Importers should report to the Minister actual or expected shortages of the device, OR components, accessories, or parts. These notifications must be made within 5-days of becoming aware of the shortage or the anticipated shortage date. Update reports must be made within 2-days of becoming aware of new information regarding the shortage, and a closing report must be made within 2-days of the end of the shortage.

(This link is to the HC website for the 2nd Interim Order referenced above)

https://www.canada.ca/en/health-canada/services/drugs-health-products/covid19-industry/drug-medical-device-food-shortages/interim-order-2021.html

How to make a shortage report to Health Canada?

These reports are submitted online through the Health Canada Website. They have an entire section dedicated to medical device shortages, and the reporting links can be found there (Link here). If you have any questions or are on the fence about notification, you can email Health Canada at MD.shortages-penurie.de.IM@canada.ca.

Inkedhc reporting shortages overview screenshot edited LI 1024x384 Medical Device Shortage Reporting
Health Canada Webforms for reporting a shortage and the end of a shortage

The webform for reporting a shortage is the same webform that is used for providing update reports to Health Canada as well. This is both for manufacturers of specified medical devices as well as importers.

Medical Device Shortage Reporting Read More »

Does your FDA inspection plan need to be proactive first?

Maybe you need an FDA inspection plan. Does everyone in your company know what they need to do when FDA inspectors arrive at your facility?

Be proactive and don’t just let FDA inspections happen. You need to have an FDA inspection plan, and that plan needs to cover the roles and responsbilities for everyone. Below we have a list of 15 items that are in our FDA inspection work instruction (WI-009). If you already have a plan, try using the following checklist to assess your readiness for the next next inspection:

  1. What will you ask and do when your FDA inspector calls the Friday before the inspection?
  2. Who should be contacted by the FDA inspector if you are on vacation?
  3. How will you communicate to the rest of your company that an FDA inspection is planned for Monday morning?
  4. Who will greet the FDA inspector upon arrival, and what should they do?
  5. Which conference room will the FDA inspector spend most of their time in?
  6. Who will be in the conference room with you and the FDA inspector?
  7. How will you track document and records requests, and how will you communicate that information to others?
  8. How will you retrieve documents and records requested by the FDA inspector?
  9. Who will conduct a tour of the facility with the FDA inspector and how will the tour be managed?
  10. When quality issues are identified, how will you respond?
  11. What will you do for lunches during the inspection?
  12. Who will attend the closing meeting with the FDA inspector?
  13. Should you “promise to correct” 483 inspection observations identified by the FDA?
  14. How and when will you repsond to the inspector with corrective action plans?
  15. If your company is outside of the USA, what should you do differently to prepare?

What will you ask and do when your FDA inspector calls the Friday before the inspection?

Most people begin their FDA inspection plan with the arrival of the inspector. However, you should consider including earlier events in your plan. Such as closure of previous 483 inspection observations, scheduling of mock-FDA inspections in your annual audit schedule, and details of how to interact with the inspector when they contact you just before an inspection. Most inspections will be conducted by a single inspector, but occasionally inspectors will be training another inspector. In this situation you can count on them following the QSIT manual more carefully, and you are more likely to receive an FDA 483 inspection observation. In the worst-case scenario, the lead inspector will split up from the trainee, and they will “tag-team” your company. This is not proper FDA procedure, but you should be prepared for that possibility. Therefore, make sure you ask the inspector if they are going to be alone or with another inspector when you speak with them on the phone. You should also get their name and phone number. You may even want to consider reviewing FDAZilla Store for details about your FDA inspector’s past inspection 483s and warning letters. Immediately after the call with the inspector, you should reserve a conference room(s) for the inspection and cancel your other meetings for the week. You should also verify that the person that contacted you is really from the FDA. You can do this by looking up their contact information on the Health and Human Services Directory. Your inspector should have a phone number and email you can verify on that directory.

Who should be contacted by the FDA inspector if you are on vacation?

You should always have a back-up designated for speaking with FDA inspectors, handling MDR reporting, and initiating recalls when you are on vacation. These are critical tasks that require timely actions. You can’t expect inspectors, MDRs, or recalls to wait you to get back in the office. It doesn’t matter what the reason is. Weddings, funerals, and ski trips should not be rescheduled. You need a back-up, and often that person is the CEO or President of your company. Make sure you have a strong systems in place (i.e. an FDA inspection plan, an MDR procedure, and a recall procedure). Whomever is your back-up needs to be trained and ready for action. This is also the purpose of conducting a mock-FDA inspection, including examples of MDRs in your medical device reporting procedure, and conducting mock recalls. This ensures you and your back-up are trained effectively. 

How will you communicate to the rest of your company that an FDA inspection is planned for Monday morning?

Most companies have an emergeny call list as part of their business continuity planning, and after the past 18 months of living with a Covid-19 pandemic your firm should certainly have a business continuity plan. Your FDA inspection plan should leverage that process. Contact the same people and notify them of when the FDA inspector is coming. If you are unable to find a conference room available for the inspection (i.e. see below), then ask the manager(s) that reserved the designated room for FDA inspections to relocate to another conference room for the week. Make sure you tell them who the inspector will be, and you might even be able to provide a photo of the inspector (try seraching LinkedIn). Make sure that you remind everyone to smile, and to listen carefully to the question asked. Everyone should be trained to answer only the questions asked, and nobody should run and hide. There should also be no need to stop your operations just because an inspector is visiting. You might even include the name of the inspector on a “Welcome Board” if your company has one at the entryway or in public areas. The more an FDA inspection appears as “routine” the better your outcome will be.

Who will greet the FDA inspector upon arrival, and what should they do?

By the time an FDA inspector(s) actually arrives at your company, all of the managers in your company should already been notified of the inspection and a conference room should be reserved for the inspection. Therefore, when the person that is greeting people in the lobby comes to work on Monday morning, you (or their supervisor) need to communicate with them and make sure that they are prepared for arrival. There are four things that should be communicated:

  1. the name of the inspector(s) that are arriving
  2. the list of managers that should be notified when the inspector(s) arrives (possibly identical to the buisness continuity call list)
  3. the conference room that is reserved for the inspection

If the person greeting the inspector(s) is also going to escort them to the conference room and help them get set-up, then they will need additional instructions. If that escorting inspectors to the conference room and helping them get set-up is delegated to a different person, then the following considerations should be included in that person’s instructions:

  1. the location of bathrooms and emergency exit instructions in case of a fire
  2. the information for wireless connectivity
  3. recommendations for seating in the conference room based upon the expected participants (see below)

It is important that an escort for the inspectors is able to bring the inspector(s) to the conference room as quickly as possible. They should not be expected to wait more than a few minutes for an escort.

Does your FDA inspection plan identify a specific room for the inspector? Is there a back-up?

Some companies have a specific room that is designated for inspections and 3rd party certification audits. If your comapny can do that, it will be very helpful because it reduces the decision making that is required immediatley prior to the inspection. Having a specific room for the inspection also eliminates the need to tell everyone else in the company where the inspector will be. Instead the location of the inspection can be in the work instruction or written FDA inspection plan. You shouldn’t need a back-up plan if there is a specific room designated for an FDA inspection, but our firm has a client that will be hosting three notified body auditors simultaneouly for three days. In that situation, you might need more than one room. 

Does your FDA inspection plan have assigned seating?

You might think that it really doesn’t matter where people sit in a conference room, but you will probably want consider the layout of charging cords and the flow of interviewees requested by the inspector. In your conference room, you will need room for at least the following people:

  1. the inspector(s)
  2. the management representative (i.e. you)
  3. a scribe
  4. an interviewee

If there is an inspector and a trainee, you will probably want to seat them together to facilitate them working together. You as the Management Representative also need to be in the room, and it may help for you to sit next to the scribe to facilitate communication between you and to make it easier for them to hand you documents after the scribe logs the documents into their notes. The scribe should probably sit closest to the door, because they will be receiving documents, logs, and records that are brought to the room. You will also need one more seat next to you, and probaby accross from the inspector(s), for interviewees. This person will rotate as different processes are reviewed. I also recommend having a location in the middle of the table for an “in box” where documents, logs, and records for the inspector are placed after being logged in. A second location in the middle of the table can be used for a “discard pile” as you finish using your copy of each document, log, and record. You may refer back to these copies later. The “discard pile” should be 100% copies rather than originals. Originals should never be brought into the room with the inspector.

Who is the scribe in your FDA inspection plan?

The perfect scribe would know the quality system well and they would have the typing skills of a professional stenographer. You might have someone that is an executive assistant in your company or a paralegal that could do this job, but you might also have a document control specialist that fits this requirement. Some companies will even hire a temp for the duration of the inspection that has this type of skill, but a temp is unlikely to know the jargon and quality system requirements well. I have taken on the role of scribe many times for my clients, because I type fast and know their quality system. I also don’t want to interferre with the inspection process. As scribe I can answer questions and offer suggestions when appropriate, but most of my time is spent taking notes and communicating by instant messenger with company members that are outside of the inspection room.

You should seriously consider using an application such as Slack as a tool for communication during the inspection. Then anyone in your company that needs to know the status of the inspection can be provided access to the Slack channel for the inspection. This can also act as your record of requests from the inspector. It’s even possible for people on the Slack channel to share pictures of documents to confirm that they have identified the document being requested. You could even invite someone to speak remotely with the inspector via Slack with Zoom integration. All the scribe needs to do is share the Zoom app with a larger display in the same conference room so the inspector can see it too.

Does your FDA inspection plan include provisions for  document and record retrieval?

The most important part of document and record retrieval during an FDA inspection is to remember that inspectors should never receive the original document. Ideally, a copier would be located immediately outside of the conference room and three copies would be made of every document before it enters the inspection room. The originals can be stored next to the copier until someone has time to return them to the proper storage location. The three copies should all be stamped “uncontrolled documents” to differentiate them from the originals. When the three copies are brought into the room, they should be handed to the scribe. The scribe should log the time the copies were delivered in the Slack channel. Then the copies should be handed to you, the Management Representative. You should skim the document to make sure that the correct document was received. Then one copy would be given to the inspector and another copy would be made available to the interviewee. If only two copies are needed, the extra copy can be placed in the “discard pile.”  Even if your system is 100% electronic, I recommend printing copies for the inspection. The paper copies are easier for inspectors to review, and it eliminates the ability for the inspector to hunt around your electronic document system. In this situation, the scribe may do all of the printing.

Does your FDA inspection plan indicate who will conduct a tour of the facility with the FDA inspector and how will the tour be managed?

I’m surprised by the number of companies that don’t seem to have a map of their facility. Medical device manufacturing facilities should have two kinds of facility maps. One should identify where pest control monitoring stations are located, and the second should indicate your evacuation route to exit the building. All guests should be shown the evacuation route map, probably within the first 30 minutes of arrival. The second map will be requested by the inspector eventually if you conduct manufacturing at your facility. Therefore, it would be helpful to use one or both of these facility maps as a starting point for creating a map of the route that inspectors should be taken on during a tour. I prefer to start with where raw materials enter the facility, and then I follow the process flow of material until we reach finished goods storage and shipping. If you can do this without back-tracking multiple times, then that will probalby be the preferred route. The purpose of planning the route out in advance is to help estimate how long the tour will take, and to make sure there is consistency. If someone starts the tour, and then another person takes over the tour, the new person should be aware of what the next location is and what areas have not been observed yet. There may also be safety reasons for avoiding certain areas during a tour and asking the inspector to observe those areas from a distance. Welding processes, for example, often fall into this safety category.

When quality issues (i.e. FDA 483 inspection observations) are identified, is this covered by your FDA inspection plan?

Third party certificaton body auditors will typically make you aware of nonconformities as they are identified, but FDA inspectors often will hold off on identifying 483 inspection observations until the end of the inspection in a closing meeting. However, you can typically identify several areas that may result in a 483 inspection observation during the inspection. You and the manager of that area may want to consider initiating a draft CAPA plan for each of these quality issues before the closing meeting. This would give you an opportunity to demonstrate making immediate corrections and you might be able to get feedback from the inspector on your root cause analysis and corrective action plan before the closing meeting. Sometimes this will result in an inspector identifying low-risk quality issues verbally instead of writing them out on FDA Form 483. I find the best way to make sure CAPA plans are initiated early is to have a debrief each day after the inspector leaves. All of the managers involved in the inspection should participate, and the debrief can be done virtually or in person. Virtually may be necessary, because often managers need to leave work before the inspector ends for the day. You should consider including this in your FDA inspection plan as well.

Does your FDA inspection plan include plans for daily lunches?

If your facility is located outside the USA, skip this paragraph and go to the section below about companies located outside the USA. If your company is locagted inside the USA, you can be certain that the FDA inspector will not eat lunch at your facility. They will leave for lunch on their own, and then they will return after lunch. Therefore, you may not have control of the timing of a lunch break but you will have time to take one. Most managers use the lunch break as a time to catch-up on emails. However, I think it makes more sense to change your email settings to “out of office.” You can indicate that you are hosting an audit and you will answer questions as a batch that evening or then next morning. You might use the lunch break to take a walk and relax, you might have  short debrief meeting with other managers, and you might spend some time preparing documents, logs, and records that the inspector may have requested before they left. Most inspectors use this strategy of asking for a list of documents and records in advance. This is also a good strategy to learn as an internal auditor or supplier auditor. If you have a back-room team that is supporting you, don’t make them wait for a break. Have someone in your company take their lunch orders or arrange for a catered buffet lunch. This will keep your support team happy, and you should definitely remember to include lunch for the team and changing your email settings to “out of office” in your FDA inspection plan.

Does your FDA inspection plan state who will attend the closing meeting?

Most companies have every manager that was in the opening meeting attend the closing meeting. This is ok, but it is important for anyone that might need to initiate a CAPA to be present in the meeting so that they can ask the inspector for clarification if needed. Scheduling a closing meeting should be part of your FDA inpsection plan. However, the past 18 months of the Covid-19 pandemic has taught us that we can attend this type of meeting remotely via Zoom. Therefore, we recommend letting the managers go home early if they are no longer needed as auditees. Instead, ask them to call in for a Zoom meeting at the time the FDA inspector estimates for review of the 483 inspection observations with the company.

Should you “promise to correct” 483 inspection observations identified by the FDA?

During the closing meeting the FDA inspector will review 483 inspection observations with you and any of the other managers present at the closing meeting. The inspector will ask if you promise to correct the 483 inspection observations that were identified. You should confirm that you will, and the FDA inspector will add this to the Annotations in the Observations section of FDA Form 483 that you will recive at the closing meeting. By stating this, you are agreeing to create a corrective action plan for each of the 483 inspection observations. You could change you mind later, but the better approach is to perform a thorough investigation of the 483 inspection observation first. If you determine that corrective action is not required, you can explain this in your CAPA plan and provide data to support it. The only likely reason for not correcting an observation is that you determined the incorrect information was provided to the inspector. In that case, you may need to do some retraining or organize your records better as a corrective action to prevent recurrence in a future inspection. You might even make modifications to your work instruction for “Conducting an FDA Inspection” (i.e. FDA inspection plan).

How and when will you repsond to the inspector with corrective action plans?

Your FDA inspection plan should include details on how respond to FDA 483 inspection observations and when the response must be submitted by. The FDA inspector will give you instructions for submission of your corrective action plans by email to the applicable email address for your region of the country. This email address and contact information should be added to your work instruction as an update after the first inspection if you are not sure in advance. You should respond with a copy of your CAPAs with 15 business days. Regardless of what the inspector told you, there is always a possibility that the outcome of your inspection could be “Official Action Indicated.” This is because the inspector’s supervisor makes the final decision on whether a Warning Letter will be issued and regarding the approval of the final inspection report. You should also confirm what the 15-day deadline is, because your state’s holidays may be different from the US Federal holidays.

If your company is outside of the USA, what should you do differently to prepare?

The US FDA only has jurisdiction over companies that are located in the USA. Therefore, if your company is registered with the FDA, you can only be inspected if you agree to host the FDA inspector when they contact you. FDA inspectors will contact foreign firms 6-8 weeks in advance, and they will typically give you a couple of weeks to choose from. After you confirm the dates for the inspection, then they will make their travel plans. Therefore, you will know exactly when the FDA inspection is schedulea and you will have more than month to prepare. Therefore, you should do four things differently:

  1. You should send the FDA inspector directions from the airport to your facility and provide recommendations for potential hotels to stay at. Ideally the hotels you recommend will provide transportation from the airport and managers that are speak passable English). The hotels should be appropriate for business travel–not royalty. If it is convenient, you may even offer to pick-up the inspector at the hotel each day to ensure they have no problems with local transportation.
  2. You should offer to provide lunches for the inspector during the inspection. This should not be considered entertainment. The purpose is make sure the inspector has lunch (i.e. a light meal or snacks) and drinks (i.e. water and coffee) during the inspection so that they do not have to negotiate local traffic, struggle with ordering food in a language they don’t know, and to eliminate delays associate with having lunch off-site. Make sure you remember to ask about food allergies and dietary restrictions. You might even follow-up with a draft menu to obtain confirmation that your proposed menu is appropriate.
  3. You should schedule a mock-FDA inspection immediately to verify that everyone is prepared and to identify any CAPAs that need to initiated before the FDA inspector finds the problems.
  4. During the first day of the inspection, you may consider asking the inspector if they would like to go out for dinner one of the evenings with a couple of people from your company or if they would like any recommendations for restaurants to eat at. If you are not familiar with US customs and international travel, ask the hotel concierge for advice. When you are out to dinner, the conversation should remain professional and if you normally drink alcohol at dinner you may want to consider the “BOB” compaign in the Netherlands as a role model. 

How are you going to train everyone in your company?

You need an easy way to train everyone in your company. Why not give them a video to watch? Next Monday, July 26, 2021 @ Noon EDT, we are hosting a webinar on how to prepare for an FDA inspection. It is a live webinar where you will be able to ask questions, and we are bundling the webinar with our new work instruction for “Conducting an FDA Inspection” (WI-009). If you register for the webinar, you will receive access to the live webinar, you will receive the native slide deck, and you will receive a copy of the work instruction. You can use the work instruction as an FDA inspection plan template for your company. The webinar will be recorded for anyone that is unable to attend the live session. You will be sent a link to download the recording to watch it as many times as you wish, and we recommend that you use the webinar as training for the rest of your company.

Does your FDA inspection plan need to be proactive first? Read More »

Are you a little curious, or fascinated by competitive warning letters?

Did you know you can download competitor inspectional observations to learn which quality issues are likely to result in warning letters?

Wheel of misfortune cropped 1 Are you a little curious, or fascinated by competitive warning letters?

Not long ago the FDA published their Inspectional Observation Data Sets. They are Excel spreadsheets of the dreaded 483 inspection observations and warning letters that the FDA issues after performing inspection of manufacturers. There is a spreadsheet for each of the following topic areas, and we will take a look at the ‘Devices’ observations. A post-mortem data analysis or speculative data autopsy if you will… What can we learn when examining an FDA inspection observation?

  • Biologics
  • Drugs
  • Devices
  • Human Tissue for Transplantation
  • Radiological Health
  • Parts 1240 and 1250
  • Foods (includes Dietary Supplements)
  • Veterinary Medicine
  • Bioresearch Monitoring
  • Special Requirements
  • Total number of inspections and 483s

These are nonconformities written by the FDA to the Code of Federal Regulations, so there won’t be any statistics for ISO 13485:2016 or Regulation (EU) 2017/745. There will be lots of findings under the ‘QSR’ or 21 CFR 820. The good news, unlike an ISO Standard, is that the Code of Federal Regulations is publicly available online for free. It isn’t a pay-to-play game and we can share the full text of the requirement without violating any copyright licensing agreements. 

The top 10 areas for inspection observations and warning letters are: 

  1. CAPA procedures
  2. Complaint procedures
  3. Medical Device Reporting
  4. Purchasing Controls
  5. Nonconforming Product
  6. Process Validation
  7. Quality Audits
  8. Documentation of CAPA actions and results
  9. Training
  10. Device Master Record

Corrective and preventive action is the most common reason for warning letters

The winning quality system requirement that resulted in the most 483 inspection observations and warning letters was for Corrective and Preventive Actions under 21 CFR 820.100(a). This finding is listed when a manufacturer fails to establish a CAPA procedure or the procedure is inadequate. This finding was cited 165 times. In addition, CAPA activities or their results were not documented or were not documented adequately a total of 32 times under 21 CFR 820.100(b). This gives us a grand total of 197 observations for the CAPA process.

Corrective and preventive actions are either fixing an identified problem and making sure it doesn’t happen again, or stopping a potential problem from happening in the first place. It is both the reactive and proactive response for quality issues and product non-conformance. The text of the requirement is:

§820.100 Corrective and preventive action.
(a) Each manufacturer shall establish and maintain procedures for implementing corrective and preventive action. The procedures shall include requirements for:
(1) Analyzing processes, work operations, concessions, quality audit reports, quality records, service records, complaints, returned product, and other sources of quality data to identify existing and potential causes of nonconforming product, or other quality problems. Appropriate statistical methodology shall be employed where necessary to detect recurring quality problems;
(2) Investigating the cause of nonconformities relating to product, processes, and the quality system;
(3) Identifying the action(s) needed to correct and prevent recurrence of nonconforming product and other quality problems;
(4) Verifying or validating the corrective and preventive action to ensure that such action is effective and does not adversely affect the finished device;
(5) Implementing and recording changes in methods and procedures needed to correct and prevent identified quality problems;
(6) Ensuring that information related to quality problems or nonconforming product is disseminated to those directly responsible for assuring the quality of such product or the prevention of such problems; and
(7) Submitting relevant information on identified quality problems, as well as corrective and preventive actions, for management review.
(b) All activities required under this section, and their results, shall be documented.

We can see that under section (a) the requirement is that there is an established and maintained process control with a numerical list of required inputs and outputs of that process. The process control is easy, use a procedure. You have to establish a procedure and you have to maintain it. That is one part of the first 165 observations.

The second part is that the procedure needs to be ‘adequate’. That means that bullets (1)-(7) need to be addressed within that procedure. For example number (2) is “Investigating the cause of nonconformities relating to product, processes, and the quality system;”. This means that the procedure should be explaining not only that your quality system will be doing that investigation, but who will be doing it and how they will be doing it. 

“The cause of nonconformities shall be investigated”, may not be an adequate process control. Yes, it addressed the need for a root cause evaluation, but does it do that adequately? 

“The RA/QA Manager will complete or assign a staff member to complete the root cause evaluation of Corrective Actions utilizing methods such as a ‘5-Why Analysis’ by filling in section 2. Of the CAPA report form.” This wording is much closer to what is needed in a procedure. It explains who is doing what, roughly how they might do it, where that activity gets documented and identifies the record that the activity produces.

Which brings us to the extra 32 findings where the activities and their results either weren’t documented or were done so poorly. This is why identifying the input (Root Cause Analysis) and the output (Section 2. of the CAPA report) are important. It allows you, the inspector or an auditor to trace from the procedure to the record that part of the process produces to demonstrate conformity. 

As the age old saying goes, “if it isn’t documented, it didn’t happen”. That record should show that yes you did a root cause analysis (the activity) and what the conclusion of that analysis was (the results of that activity). These types of records are so vital to your quality system that there is an entire process dedicated to the control of records. I’ll give you a hint, it is Subpart-M of the QSR. 

This is also a great segway to show how the processes go hand in hand and CAPA is interrelated to Document Control, Record Control, and your Quality System Record. Your system processes will continually wrap back around to each other in this manner. For example, CAPAs are a required input into your Management Review process so if you don’t have a CAPA procedure you aren’t performing adequate management reviews. 

A note on other systems

If your quality system is also ISO 13485:2016 compliant, Corrective Actions and Preventive Actions are separate items under separate sub-clauses. Corrective Actions are in 8.5.2., and Preventive Actions are in 8.5.3. Meaning if you have a mature quality system that has never had a preventive action, then your CA might be fine, but the PA of that process may be inadequate.

An industry standard for CAPAs is applying a risk based approach, and we have an entire webinar dedicated to the subject! How to create a risk-based CAPA process

Complaints are the second most common reason for warning letters

%name Are you a little curious, or fascinated by competitive warning letters?

The silver medal goes to complaints. Much like CAPA the biggest issue is no, or inadequate complaint handling procedures. This specific finding was cited 139 times (overall complaint handling has more but this specific issue was the most cited). Not to sound like a broken record but again, complaint handling is a specific process that requires an ‘established and maintained procedure”.

As a procedure it has to exist, it has to be maintained, and each process has requirements for inputs and outputs that must be outlined. Complaint handling is a little bit different in the QSR in that there isn’t a ‘complaint’ sub-part. Complaints are under Sub-Part M- Records, specifically 21 CFR 820.198 Complaint Files. 

To compare, Complaints in accordance with ISO 13485:2016 are under Measurement Analysis and Improvement, specifically Sub-clause 8.2.2. Complaint Handling. It is sandwiched in between Feedback and Reporting to Regulatory Authorities. That had to have been done on purpose because those processes are inherently intertwined and their inputs and outputs directly feed into each other:

§820.198 Complaint files.
(a) Each manufacturer shall maintain complaint files. Each manufacturer shall establish and maintain procedures for receiving, reviewing, and evaluating complaints by a formally designated unit. Such procedures shall ensure that:
(1) All complaints are processed in a uniform and timely manner;
(2) Oral complaints are documented upon receipt; and
(3) Complaints are evaluated to determine whether the complaint represents an event which is required to be reported to FDA under part 803 of this chapter, Medical Device Reporting.

This sub-section of ‘Records’ may be less intuitive than what we saw under CA/PA. We can see that we have to maintain complaint files. We also need a procedure that covers receipt, review, and evaluation of complaints. Then we have to name a formally designated complaint handling unit to do all of that. 

Further we need to make sure that complaints are handled uniformly and efficiently. It should be a cookie cutter process with a known timeline. Every complaint goes through the same review and evaluation within a specific time period. If it takes six months to review a complaint, that definitely is not a ‘timely manner’. 

Not every complaint will be sent to you via certified mail with ‘Complaint’ written across the top in big BOLD letters. Sometimes people will simply tell you about a complaint they have verbally and your process needs to define how it is addressing these verbal communications. Otherwise your FDA inspection observation will be written, and you run the risk of receiving warning letters.

This of course begs the question, what is a complaint? How will I know if I received one? Fortunately 21 CFR 820.3 provides us with definitions, one of them being what exactly a complaint is “(b) Complaint means any written, electronic, or oral communication that alleges deficiencies related to the identity, quality, durability, reliability, safety, effectiveness, or performance of a device after it is released for distribution.”.

There is no quiz at the end of this but I would caution you that this will probably be on the test. Anytime you ask a question like that and the regulation provides a definition for it, then it’s a good idea to include that definition within your procedure. This is a way to make sure that there is uniformity in the understanding of a procedure. If you miss a complaint because you didn’t realize that it was a complaint then your process is not effective. Eventually an auditor will pick up on the deficiencies in the process, document a finding and you will be doing a CAPA to fix it.   

Every complaint needs to be reviewed, but not every complaint needs to be investigated. This was a much less cited issue (5). You are allowed to decide that an investigation isn’t needed. However, if you do then you must keep a record of why you decided that and name the person responsible for that decision. 

That isn’t carte’ blanche to just write off investigations whenever you want. There are some things that require an investigation and there is no accepted rationale for not performing one. An example is when there is a possible failure of a device, it’s labeling or packaging to meet any of their specifications. Those need to be investigated without exception. What your system is allowed to do though is if you have already done an investigation and you received related similar complaints, there is no need to repeat the same investigation for every complaint. 

An important concept of complaint handling is that you should be triaging your complaints as you receive them. There are certain types of complaints that must be reported to the FDA. More information is actually found under 21 CFR 803, not the 820 that we have been examining. These special complaints need to be identifiably separate from your normal run of the mill complaints. These complaints specifically need a determination of; 

  • Whether the device failed to meet specifications;
  • Whether the device was being used for treatment or diagnosis; and
  • The relationship, if any, of the device to the reported incident or adverse event.

Outside of those special reportable complaints, all investigations have certain required outputs. By addressing every complaint in a uniform repeatable manner, this can be boiled down to a form. In fact creating a specific complaint form makes sure that all of the required information has been documented. Each record of an investigation by your formally designated complaint handling unit has to be include;

  • The name of the device;
  • The date the complaint was received;
  • Any unique device identifier (UDI) or universal product code (UPC), and any other device identification(s) and control number(s) used;
  • The name, address, and phone number of the complainant;
  • The nature and details of the complaint;
  • The dates and results of the investigation;
  • Any corrective action taken; and
  • Any reply to the complainant.

Some companies and corporations sprawl across the globe and have many sites all over the place. Not every manufacturer is limited to containing all of their operations within a single building. There are times where the formally designated complaint handling unit may be somewhere other than where the manufacturing is taking place. That is acceptable as long as communication between the two is reasonably acceptable. The manufacturer needs access to the records of the complaint investigations performed. Just as everything must be documented, all of that documentation must be producible as well. If not, your inspector will produce FDA 483 inpsection observations and warning letters.  

If the complaint handling unit is outside of the United States the records have to be accessible in the United states from either the place where the manufacturers records are normally kept or at the initial distributor. 

Complaint Handling and vigilance reporting are topics that we often find stuck together like velcro. We find them so interelated that we have a combined Complaint Handling and Vigilance Reporting Webinar.

Medical Device Reporting is the third most common reason for warning letters

The bronze medal recipient shows a drop in sheer numbers of FDA inspection observations. A total of 68 were written for the fiscal year of 2020, and these findings have a high likelihood of resulting in warning letters because these incidents may involve serious injuries and death. We are slowing down, but this is still a topic that gets an FDA inspection observation almost every week.

But again part of the issue is no, or bad procedures to control this process. Not to be confused with the (EU) MDR since as an industry we love acronyms so much, Medical Device Reporting is referenced within the Quality System Requirements of 21 CFR 820. We took a peek above in Complaint Handling. What makes this unique is that MDR actually lives in 21 CFR 803 Medical Device Reporting. What makes it even more special is that Part 803 is further broken down into sub-parts. 

We will take a look at Sub-part E which is the reporting requirements for manufacturers. Medical Device Reporting is a process and as such needs a procedure to control it and that procedure must be maintained. 

Some key points to capture is that there are reporting timelines that are measured in calendar days from when you become aware of information that reasonably suggests that one of your devices;

(1) May have caused or contributed to a death or serious injury or
(2) Has malfunctioned and this device or a similar device that you market would be likely to cause or contribute to a death or serious injury, if the malfunction were to recur
.”

There are some crucial takeaways. First, the clock starts ticking down calendar days, not work days, and holidays count. You can’t hold off reporting that your device killed someone because it’s around the holidays and over a few weekends. 

Second, is that reporting timelines vary, generally between 5 and 30 calendar days. That means it is important to know the specific timeline for the type of report you are making and what the authority having jurisdiction requires for a timeline. The FDA may differ from Health Canada which in turn may differ from the EU, etc. 

Third is that the bar to meet is what would be ‘reasonably known’, and that is somewhat of an ambiguous requirement open to interpretation.

They help clarify this with,

(i) Any information that you can obtain by contacting a user facility, importer, or other initial reporter;
(ii) Any information in your possession; or
(iii) Any information that you can obtain by analysis, testing, or other evaluation of the device.

The first two are usually not an issue, but the one that tends to get less attention is deeper analysis, testing or evaluation of the device. Due diligence is required here to make sure that you actually do know the information that should be ‘reasonably known’ to you. 

The burden of investigation and root cause determination is placed squarely on the shoulders of the manufacturers and that is a process that can take some time. What happens when the reporting timely is fast approaching but your investigation won’t be finished before the clock runs out? The short answer is to report it anyway.

The longer answer is to report what information you do have with an explanation of why the report doesn’t have all of the required information. Then explain what you did to try to get all of the information, and file a supplemental or follow-up report later to fill in the gaps. Only having a partial report ready is not an excuse to miss the reporting deadline. It is however, the perfect excuse to get an FDA inpsection observation or warning letters.

Are you a little curious, or fascinated by competitive warning letters? Read More »

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