October 23, 2018

October 23, 2018

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October 22, 2018

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FDA Issues Fourth and Final Software as a Medical Device Clinical Evaluation Guidance

Summary

The FDA recently released “Software as a Medical Device (SAMD): Clinical Evaluation,” a final guidance document that aims to establish a common understanding of clinical evaluation and principles for demonstrating the safety, effectiveness and performance of Software as a Medical Device. Rather than replace or conflict with existing regulatory requirements or provide recommendations for application to specific situations, the guidance provides an evidentiary and technical framework to evaluate safety and performance of SaMDs throughout the product’s lifecycle.

In Depth

On December 7, 2017, the US Food and Drug Administration (FDA) released a final “Software as a Medical Device (SAMD): Clinical Evaluation” guidance document (Guidance). The goal of the final Guidance is to establish a common understanding of clinical evaluation and principles for demonstrating the safety, effectiveness and performance of SaMD. As with previously issued SaMD guidance documents, the Guidance is not intended to replace or conflict with existing premarket or postmarket regulatory requirements related to the regulatory classification of medical devices, and it does not provide recommendations for application to specific regulatory situations. Rather, the Guidance provides an evidentiary and technical framework to evaluate safety and performance of SaMDs throughout the product’s lifecycle. It incorporates established quality management principles that developers should consider in the development and design of medical software. FDA intends to consider the principles set forth in the Guidance in the development of its regulatory approaches for digital health technologies through public processes. SaMD software uses an algorithm that operates on data input to produce an output intended for medical purposes, such as to treat, diagnose, drive clinical management, or inform clinical management. Mobile applications that meet this definition are considered SaMD. These products include many functions that are regulated by FDA as medical devices.

The Guidance is intended to build on the previous three SaMD guidance documents: “Software as a Medical Device (SaMD): Key Definitions,” “Software as a Medical Device: Possible Framework for Risk Categorization and Corresponding Considerations” and “Software as a Medical Device (SaMD): Application of Quality Management System,” all issued by the International Medical Device Regulators Forum (IMDRF). The IMDRF is a voluntary group of medical device regulators from Australia, Brazil, Canada, China, Japan, Russia, Singapore, the United States and European countries. The group provides harmonized principles for individual jurisdictions to adopt based on their own regulatory framework. Collectively, the previous IMDRF SaMD guidance documents and the clinical evaluation Guidance provide a framework for defining which functions are considered SaMD, identifying and characterizing risks associated with SaMD functions, developing quality management systems (QMS) and controls for SaMDs, and validating the clinical effectiveness and safety of SaMDs.

As we summarized in our FDA 2016 Year in Review report, FDA released a draft of the Guidance in October 2016. The final Guidance provides further detailed instruction to manufacturers but does not represent a departure from the October 2016 draft.

SaMDs are categorized on the basis of the state of the health care situation or condition in which it is used (critical, serious or non-serious) and the intended medical purpose of the information provided by the SaMD (treat or diagnose, drive clinical management or inform clinical management). The four categories (I, II, III and IV) are based on the levels of impact the SaMD has on patient or public health. The categories are in relative significance to each other. Category IV has the highest level of impact, Category I the lowest. SaMD output used to treat or diagnose a critical health care situation or condition is the highest categorization (IV). Below is the risk categorization framework in the IMDRF SaMD “Possible Framework for Risk Categorization and Corresponding Considerations” guidance. This framework is not intended to supersede FDA’s framework for medical device classifications but, rather it is intended to provide a framework for determining what type and how much data will be required to validate the performance of the device.

State of Health care Situation or Condition

Significance of information provided by SaMD to the healthcare decision

Treat or Diagnose

Drive Clinical

Management

Inform Clinical

Management

Critical

IV

III

II

Serious

III

II

I

Non-Serious

II

I

I

The Guidance emphasizes the importance of independent review, i.e., review conducted by outside experts such as formal consultation with regulators, third parties on behalf of regulators, the editorial board of a peer-reviewed journal or “non-conflicted” internal expert reviewers without significant involvement in the development of the SaMD, particularly for SaMDs categorized as III or IV.

The Guidance describes clinical evaluation as an ongoing lifecycle process that involves a set of activities conducted in the assessment and analysis of a SaMD’s clinical safety, effectiveness and performance as intended by the manufacturer. Monitoring real world performance data can help SaMD functionality and intended use evolve after initial introduction into the market. The reference to the use of real world data for performance validation reflects the growing importance of real world evidence (RWE) and real world data (RWD) for product development. See Use of Real-World Evidence to Support Regulatory Decision-Making for Medical Devices (Aug. 31, 2017). The Guidance focuses on three key principles for clinical evaluation:  

  • Valid Clinical Association: whether there is a valid clinical association (i.e., scientific validity) between the SaMD output and its targeted clinical condition in the real world through existing evidence (e.g., literature searches, clinical research, professional society guidelines) or by generating new evidence (e.g., secondary data analysis, clinical trials). In other words, Clinical Association demonstrates the level of clinical acceptance and how much meaning and confidence can be assigned to the clinical significance of the SaMD’s output in the intended health care situation and the clinical condition or psychological state (i.e., well-established or novel).

  • Analytical Validation: whether the SaMD correctly processes input data to generate accurate, reliable and precise output data (i.e., confirms and provides objective evidence that the software was correctly constructed through display of accuracy, repeatability and reproducibility and demonstrates the software meets its specifications that conform to user needs and intended uses) through verification and validation activities as part of quality management system (QMS) or by generating new evidence (e.g., curated databases, previously collected patient data). In other words, Analytical Validation is intended to confirm whether the software was correctly constructed.

  • Clinical Validation: whether use of SaMD’s accurate, reliable and precise output data achieves its intended purpose in the target population in the context of clinical care, i.e., yields a clinically meaningful output. Clinically meaningful means a positive impact on the health of an individual or population, to be specified as meaningful, measurable, patient-relevant clinical outcome(s), including outcome(s) related to the function of the SaMD (e.g., diagnosis, treatment, prediction of risk, prediction of treatment response), or a positive impact on individual or public health. In other words, Clinical Validation shows the relationship between the verification and validation results of the SaMD algorithm and clinical conditions of interest as part of QMS or good software engineering practices or by generating new evidence (e.g., clinical data).

If the foregoing cannot be established, the manufacturer must modify the SaMD’s intended use such that it can be supported by available evidence, modify the target clinical association and/or make changes to the software.

On the same day that this Guidance was issued, FDA published draft guidance on clinical decision support software and made technical corrections to existing medical software policies. We describe both guidance documents in detail here. Taken together, the guidance statements clarify how developers should approach the development and classification of software-based medical device products in preparation for pre and postmarket decision-making.  In the absence of specific guidance on the implementation of FDA’s Medical Device Quality System Regulation (QSR) for digital health products and software-based medical devices, this guidance and the previously issued IMDRF Guidance documents provide a useful framework for designing, testing and validating medical software.

© 2018 McDermott Will & Emery

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Veleka Peeples-Dyer, McDermott Will Emery, life sciences industry, FDA attorney, drug safety lawyer, health care fraud counsel,
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Veleka Peeples-Dyer is a partner in the law firm of McDermott Will & Emery LLP and is based in the Firm's Washington, D.C., office. She is an experienced attorney with an extensive background in the Life Sciences Industry, including Food and Drug Administration (FDA) regulation, clinical trials, manufacturing and supply, drug safety, licensing, product acquisition due diligence, health care fraud and abuse and compliance matters. Additionally, Veleka’s experience includes conducting internal investigations, developing and implementing legal and compliance...

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    Vernessa T. Pollard is a partner in the law firm of McDermott Will & Emery LLP and is based in the Washington, D.C., office. Vernessa serves as co-head of the Firm’s Food and Drug Administration (FDA) practice.

    Vernessa advises companies on regulatory, compliance, enforcement and legislative matters involving pharmaceuticals, medical devices, digital and mobile health, health IT solutions and services, and emerging technologies and software. She also advises national and international food and cosmetic producers and retailers on regulatory and compliance issues related to food and cosmetic marketing and safety.

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    Michael W. Ryan is a partner in the law firm of McDermott Will & Emery LLP and is based in the Firm’s Washington, D.C. office.

    Michael focuses his practice on the legal, regulatory and reimbursement issues that manufacturers and investors encounter in the development and commercialization of pharmaceuticals, medical devices, biotechnology products and laboratory services.  Michael counsels entities as they seek to obtain authorization to market their products from the U.S. Food and Drug Administration, maintain compliance with applicable laws and regulations (including the...

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    Anisa Mohanty, McDermott Law Firm, Health Care Attorney
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    Anisa Mohanty advises life sciences companies on regulatory, compliance, enforcement, policy, and legislative matters arising under the Federal Food, Drug, and Cosmetic Act (FDCA). She counsels pharmaceutical, medical device, and consumer product companies on premarket pathways, advertising and promotion, and current Good Manufacturing Practice (cGMP) and Quality System requirements. Anisa also assists clients with US Food and Drug Administration (FDA) engagement strategies and responding to FDA administrative and enforcement actions. 

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    Vanessa K. Burrows is an associate in the law firm of McDermott Will & Emery LLP and is based in the Firm’s Washington, D.C., office.  She focuses her practice on health care law, with an emphasis on medical device, food and drug, and pharmacy law. Her broad-based experience also includes HIPAA compliance, health privacy and security laws, and public health law. She advises health care entities and their contractors on compliance, regulatory, data-sharing, licensing, and enforcement matters.

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