FDA Efforts to Modernize Medical Software Regulation Continue
Consistent with FDA Commissioner Dr. Scott Gottlieb's and CDRH Director Dr. Jeffrey Shuren's efforts to modernize FDA's regulatory framework for medical technology software, on January 7, 2019, the Agency released three new documents which further support the Digital Health Precertification (Pre-Cert) Pilot Program (launched in August 2017). The three documents include (1) an outline of the Regulatory Framework, (2) its Test Plan, and (3) a Working Model for its implementation—focusing on certain Software as a Medical Device (SaMD) (software intended to be used for a medical purpose and is not part of the hardware of a medical device) and manufacturers who have demonstrated a robust culture of quality and organizational excellence.
As noted by FDA in the release of these documents and on FDA's February 7, 2019 webcast,1 these documents represent the next phase2 of Pre-Cert. FDA envisions this "Pre-Cert 1.0" phase as a voluntary pathway that will support the development of new technologies that are frequently updated and will allow developers who have been assessed by the FDA as meeting specific excellence principles to participate in a more tailored premarket submission process appropriate for their specific type of digital device. SaMD products are subject to rapid and frequent updates, which pose a challenge to FDA's conventional case-by-case determinations primarily used for hardware-based medical devices. The new framework seeks to offer greater efficiencies, allowing software developments and evolutions to occur in a timely manner. This pilot, if successful, has the potential to result in a new regulatory paradigm for medical technology and software developers, particularly in the areas of consumer wellness, treatment planning, remote drug delivery, and other areas of digital health.
FDA intends to consider stakeholder comments on this version of the working model by reviewing the public docket approximately every two weeks and incorporating comments into Pre-Cert 1.0 as appropriate. Public feedback will be accepted until March 8, 2019.
Part I of this advisory provides background on the genesis of the Pre-Cert 1.0 proposal and FDA's vision; Part II outlines the Pre-Cert 1.0 Regulatory Framework; Part III discusses FDA's 2019 Test Plan; and Part IV discusses how FDA plans to implement Pre-Cert 1.0's Working Model.
I. Genesis of the Pre-Cert 1.0 Model
History. After completion of the initial Pre-Cert Pilot Program, FDA successfully identified the key elements of a quality software development program and incorporated stakeholder feedback to introduce the next iteration: Pre-Cert 1.0. FDA specified that the de novo classification pathway would be used to implement the proposed streamlined regulatory framework which would evaluate a SaMD manufacturer on five elements of excellence principles (known as the "Excellence Appraisal"): (1) patient safety; (2) product quality; (3) clinical responsibility; (4) cybersecurity; and (5) proactive culture. FDA determined that certain elements (e.g., software design and validation and other aspects of Quality System Regulation (QSR) compliance) for a SaMD can now be evaluated at the organizational level during the "Excellence Appraisal," which could then be leveraged to streamline a manufacturer's de novo submission.
FDA's Vision. Pre-Cert 1.0 embraces the Total Product Lifecycle (TPLC) approach of allowing manufacturers to evaluate SaMD products throughout their lifecycle, enabling the evaluation and monitoring of a software product from its premarket development to postmarket performance, along with a continued demonstration of the organization's excellence. A TPLC approach focuses on sharing information throughout the entire lifecycle of the product. Ultimately, FDA envisions that the precertification program may include all software that meets the definition of a device as defined in section 201(h) of the Federal Food, Drug, and Cosmetic Act (FD&C Act) (21 U.S.C. § 321(h)), including SaMD, Software in a Medical Device (SiMD), and other software that could be considered accessories to the hardware of medical devices. Pre-Cert 1.0's current focus is to establish parameters for certain SaMD technologies, including software functions that use artificial intelligence and machine learning algorithms.
II. Summary of the Regulatory Framework
New Use of an Existing Classification Pathway. Drawing on the flexibility of the de novo classification pathway in other innovative medical device clearance/approval contexts, it is no surprise that FDA intends to leverage that existing pathway to implement Pre-Cert 1.0.3 FDA outlines the steps of the pilot as follows:
- Pre-Cert 1.0 participants who have a SaMD product eligible for the de novo classification process may submit an application for "Excellence Appraisal," which evaluates an organization based on five elements of excellence principles as discussed above. These elements correspond to certain de novo content, special control, or QSR requirements that FDA collects and records into a master file, which is used to support a de novo request or future premarket submission.
- The excellence-appraised manufacturer may choose to submit a "Review Determination Pre-Submission (Pre-Sub)" to discuss whether the SaMD product is appropriate for a de novo request. This discussion may include product-level information that can be referenced during the review of the subsequent de novo request.
- The excellence-appraised manufacturer would then submit a streamlined "Pre-Cert De Novo Request" that would incorporate content not received through the "Excellence Appraisal," such as applicable submission elements of a traditional de novo request. These elements, in addition to the content reviewed under the "Excellence Appraisal," provide the required information necessary to determine if the device is of low-to-moderate risk and that general controls or general and special controls can provide a reasonable assurance of safety and effectiveness. This submission would also include a certification that the manufacturer followed the processes and procedures that FDA reviewed under the "Excellence Appraisal."
- If FDA finds, after substantive review, that all de novo premarket requirements have been met, FDA would classify the device by written order, and if the device is class II, establish any special controls necessary to provide a reasonable assurance of safety and effectiveness for the device type. Special controls may include the "Excellence Appraisal" elements, requirements for notifying FDA if certain elements have changed after the "Excellence Appraisal" is conducted, or postmarket data collection requirements. Certain special controls may permit device modification without premarket review if such special controls mitigate the risks associated with those modifications.
Postmarketing Changes and Reviews. Importantly, the noted de novo order would establish a device classification that could be referenced for future 510(k) submissions for that same device type. Manufacturers could choose to submit a "Review Determination Pre-Sub" to confirm their SaMD is eligible for a 510(k) under the de novo classification and also discuss which special controls are satisfied by the "Excellence Appraisal." If eligible, the excellence-appraised sponsor would submit a special "Pre-Cert 510(k)" that includes product-specific submission requirements and that could leverage other submission requirements documented during the "Excellence Appraisal" or optional Pre-Sub. FDA believes the review of a "Pre-Cert 510(k)" would be more efficient than the review of traditional 510(k) submissions. Manufacturers that are not excellence-appraised but wish to market a device under the de novo order can still submit a traditional 510(k) submission. Postmarketing modifications made to the device would be treated the same as any other device—changes which significantly affect the safety or effectiveness of the device for the cleared intended use would require a subsequent submission following the Pre-Cert 510(k) pathway outlined earlier.
III. How Will FDA Define Success? Goals of the 2019 Test Plan
Prior to deploying the proposed Pre-Cert 1.0 Pathway as an alternative premarket pathway for SaMD, the Agency will test this model by setting up two parallel review processes using the same de novo submission—one using the Pre-Cert model that will review the sponsor's "Excellence Appraisal" information and proposed streamline submission content, and–for comparison–a traditional de novo review. This will allow FDA to determine whether the "Excellence Appraisal" and "Streamlined Review" components together produce an equivalent basis for determining a reasonable assurance of safety and effectiveness when compared to the traditional review process. Additionally, the results of each submission will provide input into the refinement of the Pre-Cert Program and subsequently be used to confirm the validity of the Pre-Cert framework.
Program Scope. In 2019, the scope of the Pre-Cert 1.0 Test Plan will be limited to selected SaMD products with De Novo Requests. FDA intends to focus testing on cases that represent a broad spectrum of software developers from small and large firms across a range of products (including low and high risk) in the digital health technology space.
Program Evaluation. FDA's Pre-Cert 1.0 model will be tested both retrospectively and prospectively:
- Retrospective tests will involve FDA revisiting previously-reviewed, complete submission packages to identify gaps in the proposed Streamlined Review pathway and Excellence Appraisal evaluation.
- Prospective tests will involve FDA conducting Excellence Appraisals with sponsors participating in the pilot, followed by a mock Streamlined Review of selected premarket submissions. This review will then be compared to the sponsor's traditional submission.
IV. A Model for the Future? FDA's Working Model for a Software Precertification Program
FDA hopes that the goals and visions of the pilot program will be achieved through TPLC, which puts more emphasis on the role of manufacturers to evaluate a SaMD product throughout its lifecycle, rather than requiring proactive and intrusive ongoing FDA review. The Pre-Cert program concept has been embraced by AdvaMed as a step which, "if implemented correctly, could substantially streamline FDA's capabilities to exercise its regulatory oversight of software technologies while providing manufacturers more appropriately designed pre- and post-market requirements."4
The Pre-Cert Program is divided into four key components in order to satisfy its goals:
- Demonstration of a culture of quality and organizational excellence through an "Excellence Appraisal" Precertification
- Requiring the review of SaMD products through "Review Determination"
- The conducting of a "Streamlined Review," and
- Verification of a SaMD product's continued safety, effectiveness, and performance, and the organization's commitment to a culture of quality through a postmarket "Real-World Performance Plan."
Below, we briefly summarize the key attributes of each of these components.
Excellent Appraisal and Precertification
Organizations may obtain pre-certified status by undergoing an Excellence Appraisal, an organization-level analysis designed to identify organizations that demonstrate a "culture of quality and organizational excellence."
The pilot program's appraisal should be based on five excellence principals (patient safety, product quality, clinical responsibility, cybersecurity responsibility, and proactive culture) and the scope of the assessment shall include an evaluation of the processes, activities, systems, tools, and culture of an organization to determine capability and performance of the organization seeking the assessment.
One of the key tenets of the five Excellence Principles is safety, which is evaluated during the "Excellence Appraisal." Organizations are evaluated on their commitment and ability to provide a safe patient experience along with their prioritization of patient safety as a critical factor in their decision-making process. Additionally, the TPLC approach allows continued monitoring of a product's safety so that any patient safety issues that arise can be quickly identified and remedied.
FDA is currently considering two levels of precertification based on both the excellence principals, as well as the organization's track record in delivering safe and effective software products.
Review Pathways Determination
Consistent with its risk-based approach to SaMD regulation, under the pilot, FDA intends to rely on pre-certified organizations to determine the premarket review pathway that is appropriate for their SaMD product based on a risk-based framework that would leverage the International Medical Device Regulators Forum (IMDF) risk categorization. Potentially, pre-certified organizations would be authorized to market low-risk products without an FDA premarket review or after only a streamlined premarket review.
Streamlined Premarket Review Process
Streamlined premarket review would be available to pre-certified organizations who determine that their product meets the requirement for being reviewed by the FDA. FDA envisions an interactive review process where the organization would share information regarding the SaMD's product performance, clinical association between the SaMD output and a clinical condition, and safety measures. Following the review, FDA would make a premarket decision and provide the organization a basis on which the determination was made.
FDA would require pre-certified organizations to develop a Real-World Performance Analytics Plan, which would monitor and consistently collect post-launch data regarding the performance of the SaMD product. FDA would be allowed to access the collected analytics on data elements relevant to organizational excellence and product-level safety and effectiveness. Sources of real world performance data would include information about a user's experience with the SaMD, software performance data, and clinical outcomes.
The Software Precertification Program and its support of a new streamlined regulatory framework represents FDA's continued commitment to reimagine FDA's traditional regulatory approach to medical software products. The program's design is an important policy shift and is expected to receive much stakeholder feedback and consideration as a precedent for other areas of device regulation. Currently, the industry has been far more receptive than critical of the Pre-Cert proposal; however, uncertainty has also arisen as to how FDA would ultimately implement such a program and under what statutory authorities. As discussed, FDA will, for now, use the de novo pathway but it hopes that in the future the regulatory framework tested in Pre-Cert will receive specific statutory authority. Companies throughout the life sciences and healthcare industries that develop and utilize both SaMD and SiMD products should carefully consider the opportunities presented by this important policy shift.
*Atiq Chowdhury contributed to this Advisory. Mr. Chowdhury is a graduate of the George Washington University Law School and is employed at Arnold & Porter's Washington, DC office. He is not admitted to the practice of law in Washington, DC.
*Ira Stup contributed to this Advisory. Mr. Stup is a graduate of the University of Michigan Law School and is employed at Arnold & Porter's Washington, DC office. He is admitted to practice in New York. He is not admitted to the practice of law in Washington, DC.
© Arnold & Porter Kaye Scholer LLP 2019 All Rights Reserved. This Advisory is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.
FDA hosted an interactive user session/webcast on Thursday, February 7, 2019, to help clarify stakeholder questions about the Software Pre-Cert Pilot Program, including the Pre-Cert Working Model Version 1.0. The webcast included a presentation detailing the 2019 Test Phase for the Pre-Cert pilot, followed by a question and answer session. During the event, FDA emphasized its intention to work with stakeholders over the course of the year to collect metrics and other data to assist in the development of the regulatory standards on which the framework will rely. A recording of the presentation and question and answer session, as well as a transcript of the event is available here.
Pre-Cert 1.0 builds on the FDA Digital Health Innovation Plan announced in July 2017, which outlined the Agency's efforts to ensure that Americans have timely access to high-quality safe and effective digital health products. FDA recognized that a distinctive regulatory framework would need to be developed in order to accommodate and keep pace with software products that are continuously updated. Subsequently, the initial Pre-Cert Pilot was launched in August 2017, with the goal of shortening the premarket review cycle time for certain digital health products by shifting the focus from product reviews to manufacturer reviews. In FDA's view, a company which consistently and reliably engages in high-quality software design and testing is more likely to develop safe and effective products and, thus, would benefit from a streamlined, less burdensome FDA premarket review for new or updated products. In order to identify the key elements of a robust, high quality software development program, FDA selected nine companies out of 100 applicants to be a part of its Pre-Cert Pilot program. These include: Apple, Fitbit, Johnson & Johnson, Pear Therapeutics, Phosphorus, Roche, Samsung, Tidepool, and Verily.
De novo classification is authorized under 513(f)(2) of the FD&C Act (21 U.S.C. § 360c(f)(2)(ii)) and allows FDA classification of novel types of low to moderate-risk medical devices, with no legally-marketed predicate, to obtain market authorization via premarket notification (i.e., a "510k") rather than them being automatically designated as class III, which would require premarket approval.
See Zachary A Rothstein, Re: Docket No. FDA-2017-N-4301: Fostering Medical Innovation: A Plan for Digital Health Devices; Software Precertification Pilot Program (April 6, 2018).