2014 FDA Guidance - Types of Communication During the Review of Medical Device Submissions

Innolitics introduction 🔗

This guidance is useful for regulatory professionals who communicate with the FDA.

If you’re looking for a regulatory firm that specializes in software as a medical device (SaMD), we’d love to talk. We can help you develop an efficient regulatory strategy, compile submissions, and handle communication with the FDA.

Preamble 🔗

Document issued on April 4, 2014.

The draft of this document was issued on April 5, 2013.

For questions regarding this document, contact the Premarket Notification (510(k)) Section or the Premarket Approval (PMA) Section of CDRH at 301-796-5640 or CBER’s Office of
Communication, Outreach and Development at 1-800-835-4709 or 301-827-1800.

Contains non-binding guidance.

1. Introduction 🔗

During the review of a premarket submission, FDA’s practice has been to communicate with applicants¹ through either a formal communication (such as a Major Deficiency Letter or an additional information request issued through a letter, or through phone, fax, or email, with a follow-up letter confirming the hold) or through the process of Interactive Review. The concept of Interactive Review was discussed in detail in the Commitment Letter from the Secretary of Health and Human Services (the Secretary) to Congress² as part of the Medical Device User Fee Act (MDUFA) II of 2007 and the process was further described in the guidance “Interactive Review for Medical Device Submissions: 510(k)s, Original PMAs, PMA Supplements, Original BLAs, and BLA Supplements” (http://www.fda.gov/MedicalDevices/DeviceRegulationandGuidance/GuidanceDocuments/ucm089402.htm).

The Medical Device User Fee Amendments of 2012³ (MDUFA III), amended the Federal Food, Drug, and Cosmetic Act (FD&C Act) to authorize FDA to collect user fees for the review of certain premarket submissions received on or after October 1, 2012, including premarket notification submissions (510(k)s). The additional funds obtained from user fees will enable FDA, with the cooperation of industry, to improve the device review process to meet certain performance goals and implement improvements for the medical device review process.

During discussions with representatives of the medical device industry in the development of the Agency’s recommendations for MDUFA III,⁴ the Agency proposed process improvements to provide further transparency for the review process, including new communication commitments. These additional communications are in the context of: acceptance review;⁵ substantive interactions; and, if applicable, missed MDUFA goals. These communications are outlined in the MDUFA III Commitment Letter⁶ and are further described in this guidance. In addition, this guidance updates the Agency’s approach to Interactive Review to reflect FDA’s commitments in the MDUFA III Commitment Letter and to incorporate an expanded use of this communication tool to increase the efficiency of the review process.

FDA's guidance documents, including this guidance, do not establish legally enforceable responsibilities. Instead, guidances describe the Agency's current thinking on a topic and should be viewed only as recommendations, unless specific regulatory or statutory requirements are cited. The use of the word should in Agency guidance documents means that something is suggested or recommended, but not required.

2. Scope 🔗

This guidance describes four types of communication that occur during the review of a medical device submission. The four types of communication and the submissions to which they apply are:

• Acceptance Review Communication for premarket notification submissions (510(k)s),⁷ original premarket approval applications (Original PMAs), Panel-Track PMA Supplements, and Pre-Submissions;⁸ʼ⁹ʼ¹⁰ʼ¹¹
• Substantive Interaction¹⁰ for 510(k)s, Original PMAs, Panel-Track PMA Supplements, and 180-Day PMA Supplements;
• Interactive Review; and
• Missed MDUFA Decision Communication¹⁰ for 510(k)s, Original PMAs, and Panel-Track PMA Supplements.

Appeals (including requests for dispute resolution),¹² and general policy discussions are not within the scope of this guidance document.

3. Acceptance Review Communication 🔗

a. Purpose of Acceptance Review Communication 🔗

The purpose of the Acceptance Review Communication is to: (1) identify the lead reviewer or Regulatory Project Manager¹³ assigned to the submission and (2) confirm acceptance of the submission or notify the submitter that the submission was not accepted based upon the review of the submission against objective acceptance criteria. FDA has issued guidance documents on acceptance review: “Refuse to Accept Policy for 510(k)s,” available at http://www.fda.gov/downloads/MedicalDevices/DeviceRegulationandGuidance/GuidanceDocuments/UCM315014.pdf, and “Acceptance and Filing Review for Premarket Approval Applications (PMAs),” available at http://www.fda.gov/downloads/MedicalDevices/DeviceRegulationandGuidance/GuidanceDocu ments/UCM313368.pdf.

b. Timing of Acceptance Review Communication 🔗

The Acceptance Review Communication should occur within 15 days¹⁴ of receipt of a 510(k), Original PMAs, or a Panel-Track PMA Supplement and within 14 days of receipt of a Pre-Submission.

Please note that the Acceptance Review does not start until FDA has received a valid eCopy and, if applicable, the user fee has been paid.¹⁵

c. Content of Acceptance Review Communication 🔗

FDA should communicate the outcome of the Acceptance Review to the applicant by fax, email, or other written communication. This communication represents a review of the submission for completeness and is not intended to identify deficiencies that may be identified later in the review cycle.

(1) When the submission is accepted

FDA should provide the name of the FDA lead reviewer or Regulatory Project Manager and notify the applicant that the submission has been accepted. For a 510(k) and Pre-Submission, the submission is accepted for substantive review. For an Original PMA or Panel-Track PMA Supplement, the submission is accepted for filing review.¹⁶

(2) When the submission is not accepted

FDA should provide the name of the FDA lead reviewer or Regulatory Project Manager and notify the applicant that the submission has not been accepted and identify those items necessary for the submission to be considered accepted.

4. Substantive Interaction 🔗

a. Purpose of Substantive Interaction 🔗

Substantive Interaction is one of the following actions:

• FDA notification that we intend to continue working with the applicant to resolve any outstanding deficiencies via Interactive Review, and the submission will not be placed on hold; or
• FDA notification placing the submission on hold and identifying the deficiencies to be addressed in order for substantive review to continue.

b Timing of Substantive Interaction 🔗

Substantive Interaction should occur following acceptance of the submission and after FDA has performed a complete review¹⁷ of the submission and within:

• 60 days of the receipt date of a complete submission for 510(k)s;
• 90 days of the filing date for Original PMAs and Panel-Track PMA Supplements; and
• 90 days of the receipt date for 180-Day PMA Supplements.

Note that the timeframes for Substantive Interaction include the 15 days used for the Acceptance Review.

An approval, approvable, or clearance letter issued prior to the Substantive Interaction goal date is considered an on-time Substantive Interaction for the purpose of meeting the MDUFA III goal.

1. Content of Substantive Interaction

Based on the nature and/or extent of the deficiencies, the submission may or may not be placed on hold.

(1) When the submission is not placed on hold

FDA should inform the applicant via email or fax that, based on a complete review of the entire submission, the agency does not intend to place the submission on hold and that any additional deficiencies will be handled through Interactive Review. This type of Substantive Interaction has no start/stop impact on the review clock.

(2) When the submission is placed on hold

FDA intends to place the submission on hold in accordance with current practice.¹⁸, ¹⁹ Deficiencies identified in the hold notification should be based upon a complete review of the entire submission, and should include both major and any unresolved minor deficiencies.²⁰

5. Interactive Review 🔗

a. Purpose of Interactive Review 🔗

The purpose of the Interactive Review process is to facilitate the efficient and timely review and evaluation by FDA of premarket submissions through increased informal interaction between FDA and applicants, including the exchange of scientific and regulatory information. More specifically, the Interactive Review process is designed to help accomplish the following:

• improve the interaction between the FDA review staff and the applicant during the review process;
• prevent unnecessary delays in the completion of the review, thus reducing the overall time to market;
• ensure that FDA’s concerns are clearly communicated to the applicant during the review process, as appropriate;
• minimize the number of review cycles;
• minimize the number of review questions conveyed through deficiency letters; and
• ensure timely responses from applicants.

b. Timing and Expectations for Interactive Review 🔗

There are different expectations for Interactive Review depending on when, during FDA’s review of the submission, the need to communicate occurs.

(1) Interactive Review After Substantive Interaction for 510(k)s, Original PMAs, Panel-Track PMA Supplements, and 180-Day PMA Supplements

FDA intends to engage in Interactive Review after Substantive Interaction.

(2) Additional Interactive Review

FDA encourages the use of Interactive Review at other points in the review process to facilitate the efficient and timely review of medical device submissions. More specifically, at FDA’s discretion, Interactive Review can be used:

• prior to Substantive Interaction for 510(k)s, Original PMAs, Panel-Track PMA Supplements, and 180-Day PMA Supplements; and
• as needed for other submission types, such as:
  • other PMA submissions (Real-Time Supplements, Special Supplements, 30-Day Notices/135-Day Supplements, Manufacturing Site Change Supplements, Post-Approval Study Supplements, Annual Reports, Post-Approval Study Reports);
  • Pre-Submissions;
  • Third Party 510(k)s;
  • Evaluation of Automatic Class III Designations (de novo petitions);
  • 513(g) submissions;
  • Original BLAs and BLA supplements;
  • Humanitarian Device Exemption (HDE) applications;
  • Investigational Device Exemptions (IDEs); and
  • Product Development Protocols (PDPs).

c. Types of Deficiencies Appropriate for Interactive Review 🔗

FDA has found that Interactive Review can be used more broadly than was suggested by our previous guidance on this subject, which this guidance supersedes, “Interactive Review for Medical Device Submissions: 510(k)s, Original PMAs, PMA Supplements, Original BLAs, and BLA Supplements.” The initial guidance indicated that only minor deficiencies (e.g., those deficiencies that, if unaddressed, could be communicated in a PMA approvable letter) would be considered appropriate for Interactive Review. Since then, FDA has found that the benefits of Interactive Review could be expanded by using Interactive Review to address deficiencies that are more significant than “minor,” but could likely be addressed by the applicant in a time frame that would allow FDA review of the response prior to the MDUFA performance goal for that submission type²¹ without placing the submission on hold. Examples include, but are not limited to: requests for limited additional short-term laboratory bench or biocompatibility testing; further justification for the omission of a test; and additional statistical analysis of the clinical data not related to the primary safety or effectiveness endpoint. FDA review staff should obtain appropriate management input and approval prior to communication of any deficiencies.

d. The Interactive Review Process 🔗

Interactive Review, by definition, occurs when the submission is under review.²² Interactive Review has no start/stop impact on the review clock.

Whenever Interactive Review is used, FDA should determine an acceptable timeframe for the applicant to provide a response to the deficiencies based on MDUFA, Office, or Center timelines. The established timeframe should be based on the impending review deadline, the estimated time that the applicant should need to respond, and the estimated time that FDA should need to review the response. FDA should clearly communicate the due date for responding to the Interactive Review request.

As the end of the review cycle approaches, FDA intends to communicate the remaining issues, limiting the applicant’s response timeframe to a time specified by FDA, not to exceed 7 calendar days and allowing time for FDA to review the response, so that a timely MDUFA decision can be made.

If the submission was previously on hold, then any new deficiencies (i.e., deficiencies not raised as part of the hold notification) should be limited to issues raised by the information provided by the applicant in its response, unless the reviewer concludes (and received supervisory concurrence) that the initial deficiencies identified do not adequately address important issues materially relevant to a decision of substantial equivalence (510(k)) or safety and effectiveness (PMA).²³ For example, following the communication of deficiencies in a 510(k) AI letter, FDA might become aware of a heightened potential for device failure through a series of recalls on other devices with a similar feature. If these recalls indicate that the particular bench test performed by the applicant to evaluate this feature is not predictive of clinical performance, an FDA reviewer, with appropriate supervisory concurrence, might request additional testing to address the safety of this feature to determine substantial equivalence.

Please note that if the outstanding deficiencies are not likely to be resolved through Interactive Review (e.g., a device submitted in a 510(k) has a new intended use or different technological characteristics that raise new questions of safety or effectiveness; a new clinical study will be needed for a device submitted in a PMA), FDA may proceed with a MDUFA decision without engaging in Interactive Review (e.g., issuing a Not Substantially Equivalent (NSE) letter for a 510(k) or a Not Approvable (NOAP) letter for a PMA).

In limited circumstances and at our discretion, a second AI letter for a 510(k) may be appropriate. One example of such a circumstance would be when a first AI letter indicates that FDA believes that the proposed predicate is not appropriate, but the submitter is then able to identify a different, but appropriate predicate. A subsequent review of the comparison of the subject device to the newly identified predicate could raise questions appropriate for a second AI request. FDA has two reasons for limiting the circumstances under which FDA will consider issuing a second AI letter, as opposed to an NSE letter. First, where the applicant should know what data are needed for its device to meet the applicable review standards (e.g., because of guidance, web-posted 510(k) summaries), the initial submission should be complete, and, therefore, a second hold letter would be contrary to the stated goal of MDUFA III to reduce the number of review cycles and the Total Time to Decision.²⁴ Second, when such information is not available (e.g., guidance is not clear or the device incorporates a new technology or feature), the applicant should have utilized the Pre-Submission Program²⁵ to obtain FDA’s recommendations for the planned submission.

e. Communication Tools for Interactive Review 🔗

Communication tools that should facilitate Interactive Review are described below. Application of these communication tools should remain flexible to balance speed and efficiency with the need to ensure appropriate FDA supervisory concurrence. Appropriate communication tools for Interactive Review include the following:²⁶

• Email and Fax²⁷ʼ²⁸ - FDA’s preferred mechanisms for communication are email and fax because they are efficient and create a permanent record of the interaction.
• Phone Calls²⁹ʼ³⁰ - Phone calls should be used primarily for requests for clarification that the FDA reviewer can easily document (e.g., the location of specific information within the submission, interpretation of a graph).

f. Responses to Deficiencies Requested via the Interactive Review Process 🔗

FDA should accept email responses to the information requested via the Interactive Review process and include that information as part of the official administrative file for the submission. FDA should not request that the applicant also formally submit these Interactive Review responses to the appropriate Document Control Center (DCC) as part of an official submission.

Please note that eCopy requirements do **not** apply to information obtained during the Interactive Review process (via email, phone, and/or fax) once a submission is under review, if that information is not submitted to CDRH’s or CBER’s DCC. However, should an applicant choose to submit a response to an Interactive Review request to CDRH’s or CBER’s DCC [which should only occur if the size of the response makes communication by email (no individual email should exceed 50MB) or fax infeasible], it will be logged in as an amendment and be subject to the eCopy requirements.³¹

g. Applicant’s Role in the Interactive Review Process 🔗

1. What the Applicant Can Do to Help Ensure an Efficient Interactive Review Process To help ensure that the Interactive Review process is effective, the applicant should do the following:

   • submit a well organized and administratively and scientifically complete submission consistent with applicable regulations, recommendations in the available guidance documents, and communications with FDA prior to submission;
   • include complete contact information in the cover letter (i.e., name, email, phone number, fax number) in the company cover letter for each submission. FDA also recommends providing alternative contact information in case the lead contact is not available. In addition, foreign applicants should have a U.S. representative³² available to participate in the Interactive Review process and to provide a means to contact the foreign company as quickly as possible;
   • apply appropriate material or testing standard(s) and submit the necessary declarations or data to support the use of the standard(s); and
   • provide a complete response to all deficiencies communicated via Interactive Review within the FDA-allotted timeframe

2. Examples of When the Applicant Should Contact the Lead Reviewer [CDRH] or Regulatory Project Manager [CBER] Examples of when the applicant should contact the lead reviewer or Regulatory Project Manager (RPM) of the submission include the following:³³

   • to reconcile any disagreement with a deficiency cited by the lead reviewer or consulting reviewer during Interactive Review;
   • to correct errors in the data submitted;
   • to clarify information in the submission that the applicant subsequently notices is unclear; and
   • to alert FDA that it intends to submit new, unsolicited information or data (depending on its extent, the information/data may necessitate a new submission or be logged in as an amendment to an existing submission).
   • to inquire whether a revised Interactive Review timeframe may be given to address a deficiency because the initial timeframe cannot be met (this does not pertain to our last Interactive Review communication at the end of the review cycle, which we intend to limit to 7 calendar days);
   • to discuss procedural questions related to the submission;

Applicants should refrain from using Interactive Review to request status updates as such requests may interfere with FDA’s ability to meet applicable timeframes.

h. FDA Review Team Considerations 🔗

FDA consulting reviewers, like the lead reviewer, should participate in the Interactive Review of submissions. However, the lead reviewer/RPM should determine whether or not a consulting reviewer should communicate directly with the applicant or communicate to the applicant through the lead reviewer/RPM to resolve minor deficiencies.

In cases where a consulting reviewer communicates directly with the applicant on a particular deficiency, a documented record of the exchange should be made available to the lead reviewer/RPM (e.g., “cc” on an email). The consulting reviewer is also expected to document any interaction as part of his/her review record back to the lead reviewer/RPM.

6. Missed MDUFA Decision Communication 🔗

a. Purpose of Missed MDUFA Decision Communication 🔗

The purpose of this communication is to facilitate a timely resolution to any outstanding issues that have precluded FDA from reaching a MDUFA decision prior to the appropriate MDUFA decision goal.

b. Timing of Missed MDUFA Decision Communication 🔗

A Missed MDUFA Decision communication should occur for those submissions that have not reached a MDUFA decision by:

• 100 FDA days for 510(k)s; and
• 20 FDA days after the applicable FDA day goal for Original PMAs and Panel-Track PMA Supplements.

c. Content of Missed MDUFA Decision Communication 🔗

FDA intends to provide written (e.g., email) feedback to be discussed in a meeting or teleconference. The feedback should reflect appropriate management input and approval and should include:

• all outstanding issues with the application preventing FDA from reaching a decision;³⁴
• action items for FDA and/or the applicant;
• the estimated completion date for the action items identified for each party; and
• proposed dates for meetings from which the applicant may choose (the applicant may, in turn, propose alternative dates to FDA).

Outstanding issues should be resolved through Interactive Review whenever possible. If all of the outstanding issues are adequately presented through the written correspondence, FDA and the applicant can agree that a meeting or teleconference is not necessary.