Statement from FDA Commissioner Scott Gottlieb, M.D., on advancing new digital health policies to encourage innovation, bring efficiency and modernization to regulation

Today we’re announcing three new, significant policy documents to advance the FDA’s approach to the development and proper oversight of innovative digital health tools. We know that consumers and health care providers are increasingly embracing digital health technologies to inform everyday decisions. From fitness trackers to mobile applications tracking insulin administration, these digital tools can provide consumers with a wealth of valuable health information. Further, clinical evidence demonstrates that consumers who are better informed about health make better and more efficient decisions, take steps to improve their lifestyles and their health choices, and often experience better outcomes.

Given these meaningful benefits from empowering consumers, we believe the FDA must, whenever possible, encourage the development of tools that can help people be more informed about their health. And we recognize that our regulations play a crucial role in the efficient development of such technologies. Therefore, our approach to regulating these novel, swiftly evolving products must foster, not inhibit, innovation. Moreover, we must always lean in the direction of enhancing access to more information – not restricting information flow – given the ability of reliable information to positively impact daily life.

Over the last five years, the FDA has made great strides in adapting our policies to better align our regulatory approach to the iterative nature of digital health products. We’re finding that in some parts of our regulatory portfolio, our traditional approach to overseeing certain health care products does not easily fit the types of innovations that are being developed. In these cases, we must adapt and evolve our policies to make sure we continue to provide a gold standard for oversight, while enabling advancement of beneficial innovations and greater consumer access to technologies that can improve their health.

To this aim, this past summer, we issued the Digital Health Innovation Action Plan, which outlines our efforts to reimagine the FDA’s approach to ensuring all Americans have timely access to high-quality, safe and effective digital health products. As part of this plan, we committed to several key goals, including increasing the number and expertise of digital health staff at the FDA, launching the digital health software precertification pilot program (“Pre-Cert”) and issuing guidance to modernize our policies.

As we come to the end of 2017, I’m proud of the significant progress the FDA’s digital health team has made on the Action Plan. We launched the Pre-Cert pilot and selected nine diverse companies to participate. We also have invested in hiring additional talent for our digital health team, including announcing the Entrepreneurs in Residence program. Yet, we recognize there’s more work to do.

Today, we’re announcing three new guidances – two draft and one final – that address, in part, important provisions of the 21st Century Cures Act (“Cures Act”), that offer additional clarity about where the FDA sees its role in digital health, and importantly, where we don’t see a need for FDA involvement. We’ve taken the instructions Congress gave us under the Cures Act and are building on these provisions to make sure that we’re adopting the full spirit of the goals we were entrusted with by Congress.

The first draft guidance, “Clinical and Patient Decision Support Software,” outlines our approach to clinical decision support software (CDS). CDS has many uses, including helping providers, and ultimately patients, identify the most appropriate treatment plan for their disease or condition. For example, such software can include programs that compare patient-specific signs, symptoms or results with available clinical guidelines to recommend diagnostic tests, investigations or therapy. This type of technology has the potential to enable providers and patients to fully leverage digital tools to improve decision making. We want to encourage developers to create, adapt and expand the functionalities of their software to aid providers in diagnosing and treating old and new medical maladies.

This draft guidance is intended to make clear what types of CDS would no longer be defined as a medical device, and thus would not be regulated by the agency. For example, generally, CDS that allows for the provider to independently review the basis for the recommendations are excluded from the FDA’s regulation. This type of CDS can include software that suggests a provider order liver function tests before starting statin medication, consistent with clinical guidelines and approved drug labeling.

However, the FDA will continue to enforce oversight of software programs that are intended to process or analyze medical images, signals from in vitro diagnostic devices or patterns acquired from a processor like an electrocardiogram that use analytical functionalities to make treatment recommendations, as these remain medical devices under the Cures Act. For example, we would continue to oversee software that analyzes data from a patient’s spinal fluid test to diagnose tuberculosis meningitis or viral meningitis. These are areas in which the information provided in the clinical decision software, if not accurate, has the potential for significant patient harm, and the FDA plays an important role in ensuring the safety and effectiveness of these products.

Similarly, the CDS draft guidance also proposes to not enforce regulatory requirements for lower-risk decision support software that’s intended to be used by patients or caregivers -- known as patient decision support software (PDS) -- when such software allows a patient or a caregiver to independently review the basis of the treatment recommendation. Although PDS was not part of the Cures Act, the FDA believes that PDS should follow a similar regulatory structure as CDS. An example of lower-risk PDS products could include software that reminds a patient how or when to take a prescribed drug, consistent with the drug’s labeling. PDS software that does not clearly allow independent review of the recommendation by the patient or a caregiver would continue to be subject to the FDA’s active oversight. This might include a warfarin monitoring device that makes recommendations for dosing based on the outcome of a home blood test.

We believe our proposals for regulating CDS and PDS not only fulfill the provisions of the Cures Act, but also strike the right balance between ensuring patient safety and promoting innovation.

The second draft guidance being issued recently, “Changes to Existing Medical Software Policies Resulting from Section 3060 of the 21st Century Cures Act,” addresses other digital health provisions included in the Cures Act. Specifically, this second guidance outlines the FDA’s interpretation of the types of software that are no longer considered medical devices. We’re making clear that certain digital health technologies – such as mobile apps that are intended only for maintaining or encouraging a healthy lifestyle – generally fall outside the scope of the FDA’s regulation. Such technologies tend to pose a low risk to patients, but can provide great value to consumers and the healthcare system.

Through this draft guidance, we’re proposing changes to previously published agency guidance documents, including: General Wellness and Mobile Medical ApplicationS, among others, to be consistent with the Cures Act and reflective of the agency’s new, more modern approach to digital health products. The proposed changes include updating the categories of products for which, prior to the Cures Act, the FDA already intended to exercise enforcement discretion owing to their very low risk and potential benefits to patients from greater innovation. Now, to create an even clearer distinction, consistent with the Cures Act, we’re saying that many of these products no longer qualify as medical devices that would be subject to the FDA’s oversight.

In addition to taking steps to clarify the FDA’s position on digital health, we’re also working with our global counterparts to harmonize and streamline the regulation of digital health products internationally.

Innovations in digital health remind us that we live in an interconnected world – one that reaches across borders and joins us in new and unique ways. That’s why in recent years, we’ve worked closely with regulatory authorities across the globe through the International Medical Device Regulators Forum (IMDRF) to evaluate requirements in individual countries, and harmonize our regulatory approaches to digital health medical devices, where possible. Many of our global counterparts are represented, including Australia, Brazil, Canada, China, the European Union, Japan, Russia and Singapore.

As part of our package of policies being announced today, the FDA also is issuing a final guidance, “Software as a Medical Device: Clinical Evaluation,” in fulfillment of these international harmonization efforts. This guidance was initially issued in draft in October 2016 and informed by global and domestic comments. Today’s final guidance expands on that draft. It establishes common principles for regulators to use in evaluating the safety, effectiveness and performance of Software as a Medical Device (SaMD). This final guidance provides globally recognized principles for analyzing and assessing SaMD, based on the overall risk of the product. The agency’s adoption of these principles provides us with an initial framework when further developing our own specific regulatory approaches and expectations for regulatory oversight, and is another important piece in our overarching policy framework for digital health.

In sum, these three important guidance documents being issued today will continue to expand our efforts to encourage innovation in the ever-changing field of digital health. Our aim is to provide more clarity on and innovative changes to our risk-based approach to digital health products so that innovators know where they stand relative to the FDA’s regulatory framework. Our interpretation of the Cures Act is creating a bright line to define those areas where we do not require premarket review. And we’re providing more detail on those technologies and applications that would no longer be classified as a medical device subject to FDA regulation. This will allow us to focus our efforts on the highest-risk products. Finally, we’re issuing new details on the common principles we and our international partners will use for evaluating the safety and effectiveness of SaMD. Through this comprehensive approach, we can deliver on our commitment of promoting beneficial innovation in this space while providing proper oversight where it’s merited.

We’ll be taking other steps to implement our Digital Health Innovation Action Plan. We’re hosting a Pre-Cert Pilot Program workshop on January 30-31, 2018 to update FDA staff, participants and stakeholders on the lessons learned from the pilot. Later in the year, we’ll share the pilot’s proof of concept and outline next steps for establishing a Pre-Certification Program. We look forward to working with patients, providers, technology developers and other customers in helping Americans access safe and innovative digital health products.