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CMS Finalizes Medicare National Coverage for Diagnostic Next Generation Sequencing Tests

On March 16, 2018, the Centers for Medicare & Medicaid Services (CMS) issued a National Coverage Determination (NCD) for Next Generation Sequencing (NGS) as a diagnostic laboratory test for patients with certain advanced stages of cancer. The NCD process was initiated by Foundation Medicine, Inc.’s request for Medicare coverage for its FoundationOne CDx test, the … Continue Reading

HHS Issues Guidance on HIPAA and Cloud Providers

The Department of Health and Human Services (HHS) recently published guidance on HIPAA requirements governing the use of cloud computing entities, specifically cloud services providers (CSPs). In this guidance, HHS explains that CSPs that create, receive, maintain, or transmit protected health information (PHI) on behalf of a covered entity or business associate are considered business … Continue Reading

Industry Guidance on Unapproved or Off-Label Information Provides Insight Into Issues Under FDA Review

As we recently reported, in the wake of court rulings and settlements addressing the First Amendment in the context of providing truthful, non-misleading speech, including about unapproved (or, “off-label”) use of approved or cleared medical products, on September 1, 2016, the FDA issued a notice that it will hold a public hearing on November 9 and … Continue Reading

FDA Releases Draft Guidance on Dissemination of Patient-Specific Information by Device Manufacturers

Last month, the FDA released a draft guidance document on the sharing of patient-specific data associated with medical devices, including information recorded, stored, processed, retrieved, and/or derived from the device.  FDA noted that patients increasingly seek to play an active role in their own health care and that providing patients access to information regarding medical … Continue Reading

HHS Launches Portal Seeking Questions from Mobile Health Application Developers

On October 5, the Office for Civil Rights (OCR) at the U.S. Department of Health and Human Services launched a new platform to enable developers of mobile health technology, as well as others “interested in the intersection of health information technology and HIPAA privacy protection.” OCR notes that there is currently “an explosion of technology … Continue Reading

CDRH Schedules Next Generation Sequencing Workshops

CDRH has scheduled two next generation sequencing (NGS) workshops on November 12 and 13, 2015 (see here and here for the Federal Register announcements) to further advance the conversation with stakeholders on the Agency’s development of new regulatory strategies for NGS-based clinical tests.  These workshops will build upon a discussion paper published in December 2014, … Continue Reading

Multistakeholder Group Seeks Comment on Draft Framework for IoT Device Manufactures

Last week, our colleague Libbie Canter published a post on a draft framework for Internet of Things (IoT) device manufacturers.  This post describes the Online Trust Alliance’s draft framework for best practices for IoT manufacturers and developers, such as connected home devices and wearable fitness and health technologies.  The OTA is seeking comments on its draft framework … Continue Reading

21st Century Cures Act Passes the House: Contains Key Provisions Related to Medical Devices

The 21st Century Cures Act (“the Act”) was passed by the U.S. House of Representatives on July 10, 2015, by a vote of 344-77. The Act includes provisions that would significantly affect the regulation of pharmaceuticals, biological products, and medical devices. We previously summarized the medical device provisions of a discussion draft of the Act … Continue Reading

FDA is Examining Device Risk Assessments in Postmarket Settings

On March 19, 2015, FDA published a public workshop notice entitled “An Interactive Discussion on the Clinical Considerations of Risk in the Postmarket Environment.” This meeting is being held on April 21 in order for FDA to further engage with the medical device industry on “assessing changes in medical device risk as quality and safety situations arise … Continue Reading

21st Century Cures Discussion Draft Act Proposes Changes to Medical Device Regulation

A discussion draft of the highly anticipated legislation, the 21st Century Cures Act, was released on January 27, 2015 (Draft Act). The Draft Act includes proposals that stem from the 21st Century Cures Initiative that was launched in April 2014 by House Energy and Commerce (E&C) Committee. The Draft Act contains five titles that are … Continue Reading

FDA Publishes Draft Guidances Describing General Wellness Claims and Risk-Based Classification of Accessories

FDA published two much anticipated draft guidances on January 16, 2015, which outline the Center for Devices and Radiological Health’s (CDRH) policy regarding low risk general wellness products and regulation of medical device accessories.  Although not solely focused on software, these guidances provide further clarification to the rapidly developing and expanding mobile app and software … Continue Reading

Latest Proposal to Repeal Medical Device Excise Tax Gains Traction

On January 6, Representative Erik Paulsen (R-MN) introduced the latest bill to repeal the 2.3% excise tax on medical devices imposed by the Affordable Care Act, commonly referred to as “ObamaCare.”  Legislators have introduced similar legislation each year since the tax was passed in 2010.  The current bill (H.R. 160) has over 250 cosponsors, including … Continue Reading

Court Rejects FDA’s Interpretation of the Statute’s Device Definition as “Erroneous and Unreasonable”

The United States District Court for the District of Columbia, in Prevor v. FDA (Prevor II), rejects for the second time FDA’s “erroneous and unreasonable interpretation” of the definition of “device” under the Federal Food, Drug and Cosmetic Act (FDCA) (op. at 21).  The court has remanded the case to FDA to use a lawful standard … Continue Reading

Decision Requiring Commercial-Item Suppliers to Comply with Non-Standard Terms under the FAR Is Stayed Pending Appeal

Medical device manufacturers and life sciences companies frequently supply commercial products and services to the U.S. Government under the Federal Supply Schedule (FSS) or General Services Administration (GSA) Schedules program.  For example, in one such program managed by the Department of Veterans Affairs, suppliers provide surgical instruments, hospital equipment, and surgical dressing materials to the … Continue Reading

MHRA creates new expert advisory group on medical devices

On 18 July 2014, the Medicines and Healthcare Products Regulatory Agency (MHRA) announced that it will create a new independent Devices Expert Advisory Committee (DEAC) before April 2015. The DEAC will be responsible for providing independent expert advice to help the MHRA regulate medical devices.  The MHRA hopes that the DEAC will help the MHRA … Continue Reading

Commission Updates EU Medical Devices Borderline Manual

The European Commission’s Borderline and Classification Medical Devices Expert Group has published a new version of its Manual on Borderline and Classification in the Community Regulatory Framework for Medical Devices.  The updated manual includes a new section on software and mobile applications reflecting the growing industry of medical device software.  The manual also provides new … Continue Reading

FDA Finalizes Appeals Guidance on Section 517A

On July 30, 2014, FDA issued a final guidance, “Center for Devices and Radiological Health Appeals Processes:  Questions and Answers About 517A,” which provides an interpretation of key terms for appeals of certain CDRH decisions under section 517A of the Food, Drug, and Cosmetic Act (FDCA), including what constitutes a “significant decision” and a “substantive … Continue Reading

FDA Finalizes Guidance on the Evaluation of 510(k) Substantial Equivalence

On July 28, 2014, FDA issued an important final guidance relating to the Agency’s substantive review of 510(k) notifications, entitled “The 510(k) Program: Evaluating Substantial Equivalence in Premarket Notifications [510(k)].”  This guidance applies to the 510(k) review process for both diagnostic and therapeutic devices and is applicable to 510(k) reviews undertaken by the Center for … Continue Reading

FDA Denies Citizen Petition’s Request to Ban Marketing of Non-Absorbable Surgical Mesh Products for Transvaginal Repair of Pelvic Organ Prolapse

On July 14, 2014, FDA publicly posted its response denying Public Citizen’s August 2011 citizen petition concerning the marketing of non-absorbable surgical mesh products for transvaginal repair of pelvic organ prolapse (POP).  In its response, FDA took the position that a ban or recall of POP devices is not warranted at this time. As background, … Continue Reading

FDA Issues Draft Guidance on Benefit-Risk Considerations

On July 15, 2014, FDA issued a draft guidance entitled “Benefit-Risk Factors to Consider When Determining Substantial Equivalence in Premarket Notifications [510(k)] with Different Technological Characteristics,” which describes the benefit and risk factors that FDA may consider during the review process for a 510(k) submission (“draft guidance”).  This draft guidance applies to both diagnostic and … Continue Reading

FDA Relaxes Regulation of Certain Software Devices

On June 20, 2014, FDA issued a draft guidance entitled “Medical Device Data Systems, Medical Image Storage Devices, and Medical Image Communications Devices,” informing manufacturers and others “that the Agency does not intend to enforce compliance with the regulatory controls” that apply to these three types of devices. Medical device data systems (MDDS), medical image … Continue Reading

New UK Guidance on Software as a Medical Device

The UK Medicines and Healthcare Products Regulatory Agency (MHRA) has published guidance on software as a medical device, including apps.  The guidance aims to assist those working in healthcare, and software developers, to determine whether a specific piece of stand-alone software or an app constitutes a medical device.  The MHRA provides illustrative examples of software, … Continue Reading

FDA Issues Report on 2012 QSR Enforcement Activities

FDA recently issued a report entitled “Food and Drug Administration (FDA) Medical Device 2012 Quality System Data, FDA Inspectional Observations (Form 483) and Warning Letter Citations” (the Report), which highlights the key 2012 inspection and warning letter findings related to compliance with the medical device Quality Systems Regulations (QSRs).… Continue Reading

FDA Issues Draft Guidance on Voluntary Consensus Standards

On May 13, 2014, FDA announced the availability of a draft guidance entitled “Appropriate Use of Voluntary Consensus Standards in Premarket Submissions for Medical Devices.”  When finalized, the guidance will supersede FDA’s September 2007 guidance on the use of consensus standards.  The draft guidance is intended to provide further clarity to industry and FDA staff … Continue Reading
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