What is the FDA Breakthrough Device Designation?

5 Comments / De Novo, FDA / By Robert Packard / 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:

Represents Breakthrough Technology
No Approved or Cleared Alternatives Exist
Offers Significant Advantages over Existing Approved or Cleared Alternatives
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.

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 »

Jul 29 2023

FDA User Fees for FY 2024 released on July 28, 2023

8 Comments / FDA / By Robert Packard / FDA User Fees, FY 2024, MDUFA V

The FDA User Fees for FY 2024, October 1, 2023 – September 30, 2024, were released on Friday, July 28, 2023.

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 2024 FDA User Fees on July 28, 2023. The FDA will announce the user fees for FY 2025 in a Federal Register notice next August 2024.

What are the FDA User Fees for FY 2024?

How much did user fees increase for FY 2024?

The increase in FDA user fees from FY 2023 to FY 2024 was 9.5%, except the annual FDA Registration fee, which increased by 17.87% to $7,653. There are three components to the increase:

Base Fee = a statutory base fee for each FDA user fee
Standard Fee = an inflation-adjusted statutory base fee
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 2024 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 2024 until October 1, 2024, and the last day you can submit under the FY 2023 user fee pricing is Friday, September 29, 2023. For the submission to be accepted under the current fiscal year, the submission must be uploaded to the Customer Collaboration Portal (CCP) or received by the Document Control Center (DCC) via courier no later than 4:00 pm EDT on the 29th.

What do you do if you have already paid the FY 2023 price?

If you already paid the FY 2023, and your submission is received after 4:00 pm EDT on September 29, 2023, 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., 9.5%). If your submission is received before the FY 2023 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 2023 user fee and are not ready to transfer your previously paid user fee to FY 2024 (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 2024 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.

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 2024 released on July 28, 2023 Read More »

Jul 29 2023

What is MDUFA V?

4 Comments / 510(k), De Novo, FDA / By Alysha Bellarouse / FDA User Fees, MDUFA V

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

What is MDUFA V?

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

How are the MDUFA V user fees decided?

Section 738A(b)(1) of the FD&C Act requires that 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?

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

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 »

May 9 2023

FDA US Agent – What do they do?

3 Comments / FDA, Registration / By Robert Packard

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 ($7,653 for FY 2024 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.

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.

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 »

Apr 4 2023

OpenAI and Elsmar never trust their help with regulatory questions?

5 Comments / FDA, Quality Management System, Registration, Regulatory Consultant / By Robert Packard / Elsmar Cove, QA information resource

Everyone has a favorite resource they use to answer regulatory questions, but can you trust OpenAI or Elsmar to answer correctly?

If you are deathly afraid of trying new technology, the image above is a screen capture from OpenAI describing “itself.” OpenAI is artificial intelligence (AI), but it is not self-aware yet. The image below is a screen capture from the “About” webpage for Elsmar Cove. This article was the oldest post on the Medical Device Academy, and it described how to use Elsmar Cove as a resource for quality systems and regulatory questions. To update that blog, we are comparing the use of OpenAI with Elsmar Cove. Just in case you were wondering, Elsmar Cove is #6 on our list of favorite search tools, and OpenAI is #5:

Ask the Medical Device Academy team – 1st place, you can email Lindsey Walker or call 802.989.3939
Use Basil Systems software we license – 2nd place, you can email Mike Belongie or call 612.237.3404
Search the FDA.gov device databases – 3rd place, you can email DICE or call 301.796.7100
Search Google (world’s #1 search engine) – 4th place, ask any 5-year-old for help

Are the answers provided by OpenAI and Elsmar Cove accurate?

To test the accuracy of a common regulatory question, we chose a question we weren’t 100% sure about when a client asked last month. I asked my team, but nobody was 100% certain. Basil Systems is limited to submission and post-market surveillance data. I searched FDA.gov, but it was not clear. Google gave us a link to the FDA website. I asked a couple of ex-FDA consultants, but they gave me outdated information. On Thursday, March 30, 2023, I asked Lisa King during an AAMI course I was co-teaching. Lisa is a Consumer Safety Officer at the FDA responsible for reviewing device entries into the FDA. She is also in very high demand for public training courses. She said the contract manufacturers used to be exempt from registration if they shipped to a legal manufacturer first. The regulations changed, and now 100% of contract manufacturers making a finished device must register with the FDA. She also clarified that the FDA doesn’t use the term “legal manufacturer.”

As you can see from the above answer provided by OpenAI, the ChatGPT engine [i.e., Model: Default (GPT-3.5)] effectively produces the correct answer. Using the same wording for the regulatory question, “Does a foreign contract manufacturer need to register with the FDA if they are shipping the medical device to the legal manufacturer first before the device is exported to the USA?” there were no results from Elsmar Cove. After several attempts, I found what I was looking for using the following search terms, “FDA registration of contract manufacturers.” There were multiple related search results, but the most useful discussion threads in the Elsmar Cove discussion forum were:

#4 “Medical Device Contract Manufacturer – Does the CM need to register with FDA” (March 6, 2021)
#5 “Medical Device Contract Manufacturer – Does the CM need to register with FDA” (February 23, 2021)
#19 “Requirements for Contract Manufacturing of a Medical Device” (November 10, 2017)

The most succinct correct answer in the forum is copied below.

Can you trust OpenAI and Elsmar Cove to answer your regulatory questions?

OpenAI is only as effective as the data used to train it. This is constantly evolving, but we have identified search results that were 100% accurate, results that were outdated, and results that were scary wrong. The same is true of discussion forums. Elsmar Cove is one of the best discussion forums for the medical device industry, but people also use ASQ, RAPS, and AAMI. The quality of the information provided depends upon the knowledge and experience of the people participating in the forum, but it also depends upon the forum’s moderation. Elsmar Cove has some experienced moderators with decades of experience. There is always the chance that the most experienced person in the world could answer your regulatory question incorrectly. This usually creates a problem because everyone else in the forum hesitates to challenge a recognized expert. Therefore, regardless of which resource(s) you use, always try to get a reference to the trustworthy source of the applicable regulation. Even Lisa King could make a mistake, but she immediately said, you can find the regulations in the US Code of Federal Regulations (i.e., 21 CFR 807). The bottom line is, always do your fact-checking and reference your source(s).

OpenAI and Elsmar never trust their help with regulatory questions? Read More »

Mar 22 2023

Regulatory pathway analysis–a case study

510(k), FDA / By Robert Packard / 510(k), FDA, Medical Device, Regulatory Pathway

This article uses a case study example to explain how to determine the correct regulatory pathway for your medical device through the US FDA.

Regulatory Pathway 1 Regulatory pathway analysis a case study — **How do you select the right 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 was only one answer, you could google that question, and you wouldn’t need to pay a regulatory consultant to answer the question. A more useful response is to start by asking five qualifying questions:

Does your product meet the definition of a device?
What is the intended purpose of your product?
How many people in the USA need your product annually?
Is there a similar product already on the market?
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, then your product may not be 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 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 a submission for your product. 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 explaining the difference.

Even regulatory consultants sometimes forget to ask how many people need your product annually, but population size determines the regulatory pathway. Any intended patient population less than 8,000 patients annually in the USA is eligible for a humanitarian device exemption with 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 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.

If all of the products on the US market have different indications for use, or the technological characteristics of your product are different from other devices, then you need to categorize your product’s risks. For low-risk devices, general controls may be adequate. For medium-risk devices, special controls are required by the FDA. For the highest-risk devices, the FDA usually requires a clinical study, a panel review of your clinical data, and the FDA requires pre-market approval.

This article will use the example of bipolar forceps used with an electrosurgical generator as a case study.

Bipolar Forceps Regulatory pathway analysis a case study

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 510k was originally planned as a rare pathway that would only be used by devices that are copies of other devices that are already sold on the market. However, the 510k pathway became the defacto regulatory pathway for 95+% of devices that are 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, but there is no review of the device by the FDA to ensure 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:

it is legally marketing in the USA
it has indications for use that are equivalent to your device
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.

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 larger product classification that includes both monopolar and bipolar surgical devices that have many sizes and shapes–including bipolar forceps. The correct product classification is seventh out of 31 search results.

The most significant disadvantage of the FDA databases is that you can only search each database 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).

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:

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

I’m glad I don’t need to manually enter the 510k review time for 2,263 devices to create the above graph.

Wouldn’t having the model numbers for every device identified in the US FDA listing database be nice?

Another advantage of the Basil Systems software is that the database is lightning-fast, while the FDA is a free government database (i.e., not quite as fast).

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, but FDA Form 3881 is not available for 100% of those devices because 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 in the past ten years unless there are no equivalent devices with a recent clearance.

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 the verification and validation of 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 develop a testing plan, you should confirm that the FDA agrees with your regulatory strategy and testing plan in a pre-submission meeting.

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

There are three types of 510k submissions:

Special 510k – 30-day review target timeline
Abbreviated 510k – 90-day review target timeline (requires summary reports and use of recognized consensus standards)
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 require 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 decides 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 happens for 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 type 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.

Regulatory pathway analysis–a case study Read More »

Jan 10 2023

Why modernize 21 CFR 820 to ISO 13485?

Leave a Comment / FDA, Human Factors, ISO 13485:2016, Post-Market Surveillance, Quality Management System, Software Verification and Validation / By Robert Packard

The FDA patches the regulations with guidance documents, but there is a desperate need to modernize 21 CFR 820 to ISO 13485.

FDA Proposed Amendment to 21 CFR 820

On February 23, 2022, the FDA published a proposed rule for medical device quality system regulation amendments. The FDA planned to implement amended regulations within 12 months, but the consensus of the device industry is that a transition of several years would be necessary. In the proposed rule, the FDA justifies the need for amended regulations based on the “redundancy of effort to comply with two substantially similar requirements,” creating inefficiencies. In public presentations, the FDA’s supporting arguments for the proposed quality system rule change rely heavily upon comparing similarities between 21 CFR 820 and ISO 13485. However, the comparison table provided is quite vague (see the table from page 2 of the FDA’s presentation reproduced below). The FDA also provided estimates of projected cost savings resulting from the proposed rule. What is completely absent from the discussion of the proposed rule is any mention of the need to modernize 21 CFR 820.

Are the requirements “substantively similar”?

The above table provided by the FDA claims that the requirements of 21 CFR 820 are substantively similar to the requirements of ISO 13485. However, there are some aspects of ISO 13485 that will modernize 21 CFR 820. The areas of impact are 1) software, 2) risk management, 3) human factors or usability engineering, and 4) post-market surveillance. The paragraphs below identify the applicable clauses of ISO 13485 where each of the four areas are covered.

Modernize 21 CFR 820 to include software and software security

Despite the limited proliferation of software in medical devices during the 1990s, 21 CFR 820 includes seven references to software. However, there are some Clauses of ISO 13485 that reference software that are not covered in the QSR. Modernizing 21 CFR 820 to reference ISO 13485 will incorporate these additional areas of applicability. Clause 4.1.6 includes a requirement for the validation of quality system software. Clause 7.6 includes a requirement for the validation of software used to manage calibrated devices used for monitoring and measurement. Clause 7.3 includes a requirement for validation of software embedded in devices, but that requirement was already included in 21 CFR 820.30. The FDA can modernize 21 CFR 820 further by defining Software as a Medical Device (SaMD), referencing IEC 62304 for management of the software development lifecycle, referencing IEC/TR 80002-1 for hazard analysis of software, referencing AAMI TIR57 for cybersecurity, and referencing ISO 27001 for network security. Currently, the FDA strategy is to implement guidance documents for cybersecurity and software validation requirements, but ISO 13485 only references IEC 62304. The only aspect of 21 CFR 820 that appears to be adequate with regard to software is the validation of software used for automation in 21 CFR 820.75. This requirement is similar to Clause 7.5.6 (i.e., validation of processes for production and service provisions).

Does 21 CFR 820 adequately cover risk management?

The FDA already recognizes ISO 14971:2019 as the standard for the risk management of medical devices. However, the risk is only mentioned once in 21 CFR 820. In order to modernize 21 CFR 820, it will be necessary for the FDA to identify how risk should be integrated throughout the quality system requirements. The FDA recently conducted two webinars related to the risk management of medical devices, but implementing a risk-based approach to quality systems is a struggle for companies that already have ISO 13485 certification. Therefore, a guidance document with examples of how to implement a risk-based approach to quality system implementation would be very helpful to the medical device industry.

Modernize 21 CFR 820 to include Human Factors and Usability Engineering

ISO 13485 references IEC 62366-1 as the applicable standard for usability engineering requirements, but there is no similar requirement found in 21 CFR 820. Therefore, human factors are an area where 21 CFR 820 needs to be modernized. The FDA has released guidance documents for the human factors content to be included in a 510k pre-market notification, but the guidance was released in 2016 and the guidance does not reflect the FDA’s current thoughts on human factors/usability engineering best practices. The FDA recently released a draft guidance for the format and content of human factors testing in a pre-market 510k submission, but that document is not a final guidance document and there is no mention of human factors, usability engineering, or even use errors in 21 CFR 820. Device manufacturers should be creating work instructions for use-related risk analysis (URRA) and fault-tree analysis to estimate the risks associated with use errors as identified in the draft guidance. These work instructions will also need to be linked with the design and development process and the post-market surveillance process.

Modernize 21 CFR 820 to include Post-Market Surveillance

ISO/TR 20416:2020 is a new standard specific to post-market surveillance, but it is not recognized by the FDA. There is also no section of 21 CFR 820 that includes a post-market surveillance requirement. The FDA QSR focuses on reactive elements such as:

21 CFR 820.100 – CAPA
21 CFR 820.198 – Complaint Handling
21 CFR 803 – Medical Device Reporting
21 CFR 820.200 – Servicing
21 CFR 820.250 – Statistical Techniques

The FDA does occasionally require 522 Post-Market Surveillance Studies for devices that demonstrate risks that require post-market safety studies. In addition, most Class 3 devices are required to conduct post-approval studies (PAS). For Class 3 devices, the FDA requires the submitter to provide a plan for a post-market study. Once the study plan is accepted by the FDA, the manufacturer must report on the progress of the study. Upon completion of the study, most manufacturers are not required to continue PMS.

How will the FDA enforce compliance with ISO 13485?

It is not clear how the FDA would enforce compliance with Clause 8.2.1 in ISO 13485 because there is no substantively equivalent requirement in the current 21 CFR 820 regulations. The QSR is 26 years old, and the regulation does not mention cybersecurity, human factors, or post-market surveillance. Risk is only mentioned once by the regulation, and software is only mentioned seven times. The FDA has “patched” the regulations through guidance documents, but there is a desperate need for new regulations that include critical elements. The transition of quality system requirements for the USA from 21 CFR 820 to ISO 13485:2016 will force regulators to establish policies for compliance with all of the quality system elements that are not in 21 CFR 820.

Companies that do not already have ISO 13485 certification should be proactive by 1) updating their quality system to comply with the ISO 13485 standard and 2) adopting the best practices outlined in the following related standards:

AAMI/TIR57:2016 – Principles For Medical Device Security – Risk Management
IEC 62366-1:2015 – Medical devices — Part 1: Application of usability engineering to medical devices
ISO/TR 20416:2020 – Medical devices — Post-market surveillance for manufacturers
ISO 14971:2019 – Medical Devices – Application Of Risk Management To Medical Devices
IEC 62304:2015 – Medical Device Software – Software Life Cycle Processes
ISO/TR 80002-1:2009 – Medical device software — Part 1: Guidance on the application of ISO 14971 to medical device software
ISO/TR 80002-2:2017 – Medical device software — Part 2: Validation of software for medical device quality systems

What is the potential impact of the US FDA requiring software, risk management, cybersecurity, human factors, and post-market surveillance as part of a medical device company’s quality system?

Why modernize 21 CFR 820 to ISO 13485? Read More »

Jan 4 2023

Best human factors questions?

1 Comment / 510(k), FDA, Human Factors, Usability / By Robert Packard / human factors

Best human factors questions to ask the FDA during a pre-submission meeting, and what information content do you need in a 510k?

Human factors questions to ask the FDA?

The FDA did not start enforcing the requirement to apply human factors and usability engineering to medical device design until 2017 because the final version of the human factors guidance document was not released until February 3, 2016. Approximately ninety percent of the human factors testing reports submitted to the FDA in 510k pre-market submissions are deficient because the 510k submission content only includes the final summative testing report. The FDA needs a complete usability engineering file, and the human factors information needs to comply with FDA guidelines for the format and content of a 510k pre-market submission–not just IEC 62366-1:2015.

What human factors information does the FDA want?

For several years, FDA submission deficiency letters indicated that you should not include the frequency of occurrence in your estimation of use-related risks. Still, the FDA never provided this information in a guidance document. On December 9, 2022, the FDA finally released a draft human factors guidance regarding the format and content of a 510k pre-market submission. The new draft guidance includes a use-related risk analysis (URRA) requirement in table 2 (copied below).

In this new draft FDA guidance, the FDA identifies three different human factors submission categories. For the first category, only a conclusion and high-level summary are needed. For the second category, a user specification is also needed. For the third category, you need a comprehensive human factors engineering report with the following elements described in Section IV of the draft FDA guidance:

Submission Category 1, 2, and 3

Conclusion and high-level summary

Submission Category 2 and 3

Descriptions of intended device users, uses, use environments and training
Description of the device-user interface
Summary of known use problems

Submission Category 3 only

Summary of preliminary analyses and evaluations
Use-related risk analysis to analyze hazards and risks associated with the use of the device
Identification and description of critical tasks
Details of validation testing of the final design

Before spending tens of thousands or hundreds of thousands of dollars on human factors testing, you want to ensure the FDA agrees with your human factors testing plan. Otherwise, you will pay for the testing twice: once for your initial submission and a second time in your response to the FDA request for additional information to address deficiencies. Testing can cost more than your electrical safety testing. The facility needs the right equipment and space for the testing; you need support personnel to set up the equipment; you need to recruit participants; you need to compensate participants; and you need device samples.

When can you ask the FDA human factors questions?

The FDA cannot provide consulting advice on a submission, and the agency will not review data during pre-submission meetings. The FDA can provide feedback on protocols, specifications, and scientific justifications. Therefore, you should submit questions to the FDA in a pre-submission when you have a draft protocol, a draft specification, or a draft justification for why a task is not critical. Pre-submissions are “non-binding.” You can change your design and approach to human factors. Therefore, don’t wait until your information is 100% finalized. Share your documentation at the draft stage during the development phase and before your design freeze. You need these answers when you are planning a study and obtaining quotes.

What are the best human factors questions to ask in a pre-sub?

In the FDA guidance for pre-submission meetings, the FDA provides suggested questions to ask:

Does the Agency have comments on our proposed human factors engineering process?
Is the attached use-related risk analysis plan adequate? Does the Agency agree that we have identified all the critical tasks?
Does the Agency agree with our proposed test participant recruitment plan for the human factors validation testing?

The above examples are only suggestions, but the best approach is to provide a brief example of what the human factors information will look like and ask the FDA to comment on the examples. The FDA does not have time to review data during a pre-sub meeting, but the FDA can review a few rows extracted from your URRA and comment on your proposed approach to the human factors process.

Human factors questions that are not appropriate

The FDA pre-submission guidance cautions you only to ask 3-4 questions for each meeting request because the FDA has difficulty answering more questions in a 60-minute teleconference. Therefore, you should not ask questions already answered in the FDA guidance. The new draft guidance includes examples of when a device modification can leverage existing human factors information and when new information is needed to support a premarket submission. Instead of asking a question specific to leveraging existing human factors information, provide your rationale for leveraging existing data and ask if the FDA has any concerns with your overall approach to human factors.

Recommended human factors action items

Create a procedure for your human factors process that includes detailed instructions for creating the information required in a usability engineering report and templates for each document.

Best human factors questions? Read More »

Nov 29 2022

Software validation documentation for a medical device

Leave a Comment / 510(k), FDA, Software Verification and Validation / By Robert Packard / 510(k), fault tree, hazard analysis, IEC 62304, IEC/TR 80002-1, premarket submission, SaMD, SiMD, software validation documentation

Learn why you need to start with software validation documentation before you jump into software development.

When do you create software validation documentation for a medical device or IVD?

At least once a week, I speak with the founder of a new MedTech company that developed a new software application as a medical device (SaMD). The founder will ask me to explain the process for obtaining a 510(k), and they want help with software validation documentation. Many people I speak with have never even heard of IEC 62304.

Even though they already have a working application, usually, validation documentation has not even been started. Although you can create all of your software validation documentation after you create a working application, certain tasks are important to perform before you develop software code. Jumping into software development without the foundational documentation will not get your device to market faster. Instead, you will struggle to create documentation retroactively, and the process will be slower. In the end, the result will be a frustrating delay in the launch of your device.

What are the 11 software validation documents required by the FDA?

In 2005 the FDA released a guidance document outlining software validation documentation content required for a premarket submission. There were 11 documents identified in that guidance:

software validation documentation 1024x385 Software validation documentation for a medical device

What the FDA guidance fails to explain is that some of these documents need to be created before software development begins, or your software validation documentation will be missing critical design elements. Therefore, it is important to create a software development plan that schedules activities that result in those documents at the right time. In contrast, four of the eleven documents can wait until your software development is complete.

Which of the software validation documents can wait until the end?

The level of concern only determines what documents the FDA wants to review in a submission rather than what documents are needed for a design history file. In fact, the level of concern (LOC) document is no longer required as a separate document in premarket submissions using the FDA eSTAR template because the template already incorporates the questions that document your LOC. The revision level history document is simply a summary of revisions made to the software during the development process, and that document can be created manually or automatically at the end of the process, or the revision level history can be a living document that is created as changes are made. The traceability matrix can also be a living document created as changes are made, but its only purpose is to act as a tool to provide traceability from hazards to software requirements, to design specifications, and finally to verification and validation reports. Other software tools, such as Application Lifecycle Management (ALM) Software, are designed to ensure the traceability of every hazard and requirement throughout the entire development process. Finally, unresolved anomalies should only be documented at the time of submission. The list may be incomplete until all verification and validation testing is completed, and the list should be the shortest at the time of submission.

What documentation will be created near the end of development?

The software design specification (SDS) is typically a living document until your development process is completed, and you may need to update the SDS after the initial software release to add new features, maintain interoperability with software accessories, or change security controls. The SDS can not begin, however, until you have software requirements and the basic architecture defined. The verification and validation activities are discrete documents created after each revision of the SDS and must therefore be one of the last documents created–especially when provided to the FDA as a summary of the verification and validation efforts.

Which validation documents do you need first?

At the beginning of software development, you need a procedure(s) that defines your software development process. That procedure should have a section that explains the software development environment–including how patches and upgrades will be controlled and released. If you don’t have a quality system procedure that defines your development process, then each developer may document their coding and validation activities differently. That does not mean that you can’t improve or change the procedure once development has begun, but we recommend limiting the implementation of a revised procedure when making major software changes and discussing how revisions will be implemented for any work that remains in progress or has already been completed.

When do the remaining software validation documents get created?

The remaining four software validation documents required for a premarket submission to the FDA are:

Software description
Software hazard analysis
Software requirements specification (SRS)
Architecture design chart

Your development process will be iterative, and therefore, you should be building and refining these four documents iteratively in parallel with your software code. At the beginning of your project, your design plan will need a brief software description. Your initial software description needs to include the indications for use, a list of the software’s functional elements, and the elements of your user specification (i.e., intended patient population, intended users, and user interface). If you are using lean startup methodology, the first version of your device description will be limited to a minimal viable product (MVP). The target performance of the MVP should be documented as an initial software requirements specification (SRS). This initial SRS might only consist of one requirement, but the SRS will expand quickly. Next, you need to perform an initial software hazard analysis to identify the possible hazards. It is important to remember that software hazards are typically hazardous situations and are not limited to direct physical harm. For each potential hazard you identify in your hazard analysis, you will need a software requirement to address each hazard, and each requirement needs to be added to your SRS. As your software becomes more complex by adding software features, your device description needs to be updated. As you add functions and requirements to your software application, your SRS will need updates too. Finally, your development team will need a tool to track data flow and calculations from one software function to the next. That tool is your architecture design chart, and you will want to organize your SRS to match the various software modules identified in your architecture diagram. This phase is iterative and non-linear, you will always have failures, and typically a team of developers will collaborate virtually. Maintaining a current version of the four software documents is critical to keeping your development team on track.

How do you perform a software hazard analysis?

One of the most important pre-requisite tasks for software developers is conducting a hazard analysis. You can develop an algorithm before you write any code, but if you start developing your application to execute an algorithm before you perform a software hazard analysis, you will be missing critical software requirements. Software hazard analysis is different from traditional device hazard analysis because software hazards are unique to software. A traditional device hazard analysis consists of three steps: 1) answering the 37 questions in Annex A of ISO/TR 24971:2020, 2) systematically identifying hazards by using Table C1 in Annex C of ISO 14971:2019, and 3) reviewing the risks associated with previous versions of the device and similar competitor devices. A software hazard analysis will have very few hazards identified from steps 1 and 2 above. Instead, the best resource for software hazard analysis is IEC/TR 80002-1:2009. You should still use the other two standards, especially if you are developing software in a medical device (SiMD) or firmware, but IEC/TR 80002-1 has a wealth of tables that can be used to populate your initial hazards analysis and to update your hazard analysis when you add new features.

How do you document your hazard analysis?

Another key difference between a traditional hazard analysis and a software hazard analysis is how you document the hazards. Most devices use a design FMEA (dFMEA) to document hazards. The dFMEA is a bottom-up method for documenting your risk analysis by starting with device failure modes. Another tool for documenting hazards is a fault tree diagram.

Fault Tree Example from AAMI TIR 80002 1 2009 300x239 Software validation documentation for a medical device — Copied from Section 6.2.1.5 from AAMI / IEC TIR 80002-1:2009

A fault tree is a top-down method for documenting your risk analysis, where you identify all of the potential causes that contribute to a specific failure mode. Fault tree diagrams lend themselves to complaint investigations because complaint investigations begin with the identification of the failure (i.e., complaint) at the top of the diagram. For software, the FDA will not allow you to use the probability of occurrence to estimate risks. Instead, software risk estimation should be limited to the severity of the potential harm. Therefore, a fault tree diagram is generally a better tool for documenting software risk analysis and organizing your list of hazards. You might even consider creating a separate fault tree diagram for each module of your software identified in the architecture diagram. This approach will also help you identify the potential impact of any software hazard by looking at the failure at the top of the fault tree. The higher the potential severity of the software failure, the more resources the software team needs to apply to developing software risk controls and verifying risk control effectiveness for the associated fault tree.

Software validation documentation for a medical device Read More »

Mar 15 2022

Medical Device Shortage Reporting

1 Comment / FDA, Health Canada / By Matthew Walker / FDA, Medical Device

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-

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

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 5^th, 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 2^nd 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 »