Could the FDA Be the Next NFL Commissioner?: What Happens When a Medical Device Becomes Part of the Required Uniform
By Scott Edelstein, Esq. and Karl Nobert, Esq. of Squire Sanders on April 28, 2013
Summary:
Focusing on the National Football League’s recent decision to expand a recent pilot program that encourages team physicians and trainers to use a specially designed downloadable App intended to diagnose concussions and mitigate the risk of long-term permanent injury, the article discusses the FDA’s proposed regulation of mobile medical devices and medical Apps as described in its July 2011 “Draft Guidance for Industry and Food and Drug Administration Staff – Mobile Medical Applications.” The article also provides industry with strategic recommendations for steps that can be taken now when designing and developing similar mobile Apps to expedite and improve the FDA review and approval process. Specifically, industry can:
- Familiarize itself with FDA’s proposed regulatory approach as described in its 2011 Draft Guidance and the included criteria for determining whether a proposed App falls within the scope of the FDA’s regulatory authority.
- From the very beginning, design devices and corresponding Apps with the FDA’s proposed regulatory requirements and standards in mind.
- Develop and adopt a regulatory approval strategy early in the development process that possibly includes upfront FDA interaction to avoid future approval obstacles.
- Identify the various performance standards against which testing will likely be required prior to submitting either a 510(k) or PMA to FDA for review; and plan accordingly for the testing to be completed beforehand..
- Pay special attention to Data Security and Data Protection if your proposed device involves the wireless transmission of personal patient data to a third-party recipient.
- Seek guidance beforehand on what the FDA’s mHealth Product Reviewers are expecting to see upon reviewing a related mobile medical device or App submission.
Article:
Recently, the New York Times reported upon a decision by the National Football League to expand league-wide a 2012 pilot program involving the use of a post-injury sideline assessment tool.[1] The expanded program will permit all team physicians and trainers to use the assessment tool, which is composed of an iPad and a downloadable App (“NFL Concussion App”) to compare a player’s personal pre-season baseline and post-injury test results on a side-by-side basis in real time. This can then be used to diagnose concussions and determine whether a player should be removed from a game to limit the potential risk for long-term injury.
In July 2011, the U.S. Food and Drug Administration (“FDA”) published its draft guidance describing how it intends to regulate mobile medical applications (“2011 Draft Guidance”).[2] Focused specifically on those devices used to support the U.S.’s growing reliance on mobile health technologies or “mHealth” in clinical practice, the 2011 Draft Guidance provides a proposed regulatory blue print for industry and Agency employees themselves to consider when commercializing such products.
The 2011 Draft Guidance applies to mobile platforms that are handheld in nature, including products such as mobile smartphones, iPhones and iPads, patient monitoring devices, and other wireless devices, and on which a mobile medical application operates if the product meets the following statutory definition of a medical device:
“. . . an instrument, apparatus, implement, machine, contrivance, implant, in vitro reagent’ that is ‘intended for use in the diagnosis of disease or other conditions, or in the cure, mitigation, treatment, or prevention of disease, in man. . .’ or ‘. . . intended to affect the structure or any function of the body of a man or other animals…’ and is either ‘used as an accessory to a regulated medical device or transforms a mobile platform into a regulated medical device. . .”[3]
Of all the mobile medical applications available on the market for clinician and patient use today,the FDA only intends to regulate a very small subset of that total number. These include those intended for uses similar to existing medical devices. Examples of such products include Apps that provide a questionnaire for collecting patient specific results and either: (1) compute the prognosis of a particular condition or disease; (2) perform calculations that result in an index or score; (3) calculate dosage for a specific medication or radiation treatment; or (4) provide recommendations that aid a clinician in making a diagnosis or selecting a specific treatment for a patient.[4]
But did the FDA really intend to regulate iPads and things like the NFL Concussion App?
Even if that was not the Agency’s intent, in practice that is very much what might feasibly happen. According to the New York Times article,
“The mandatory post-injury sideline concussion assessment tool, instituted for the 2012 season along with a baseline test done during physicals at the start of preseason, will now be used in app form by all 32 teams, a method that was tried by a handful of teams in a pilot program last season. The hope is that being able to compare the results of a baseline test and a post-injury test side by side in real time will speed diagnosis and help doctors and trainers recognize when a player should be removed from a game. The league also plans to have independent neurological consultants on the sideline during each game to assist the team physician in diagnosing and treating players.”[5]
Intended for the purposes of diagnosing player post-impact concussions, the NFL Concussion App appears to fall within the scope of the FDA’s 2011 Draft Guidance rendering it an FDA regulated medical device just like an infrared brain hematoma detector (21 CFR 882.1935) which requires the submission and clearance of a 510(k) notice; or a self-expanding peripheral stent system (FDA product code: NIP) which requires Agency Pre-Market Approval. Under the FDA’s proposed regulatory model, it is possible that even some modifications or updates to the NFL Concussion App might trigger the need for supplemental submission and Agency review.
And when the NFL Concussion App is expanded beyond the NFL itself to other sports like hockey, wrestling, soccer and skiing, and the App is modified for use in those particular sports, will subsequent Agency review be needed? ? If yes, is it possible that FDA officials might seize uncleared devices during the middle of Wrestle Mania 2014 or high school soccer games
Although laughable, a variation of this hypothetical scenario could in fact be reality if the FDA finalizes and then strictly enforces the current language of the 2011 Draft Guidance. Accordingly, the FDA should amend its proposed regulatory approach before finalizing and implementing the system contained in the 2011 Draft Guidance. FDA’s final requirements should provide greater clarity on what constitutes a regulated mobile medical device and medical App; and provide greater flexibility when making changes to an existing cleared medical App.
In the meantime, companies developing and manufacturing mobile devices should be familiar with the 2011 Draft Guidance and its criteria for determining whether a proposed App falls within the scope of FDA regulation. Companies should be designing their devices and corresponding Apps with the 2011 Guidance Document in mind. It would be prudent for companies to develop FDA regulatory approval strategies at the same time they are thinking about items such as performance testing, data privacy and security, and power sources.
[1] See Judy Battista, N.F.L. Will Expand Concussion Efforts During Games, N.Y. Times (Feb. 26, 2013), available at http://www.nytimes.com/2013/02/27/sports/football/nfl-will-use-ipads-to-expand-in-game-concussion-testing.html?_r=3&.
[2] See Draft Guidance for Industry and Food and Drug Administration Staff – Mobile Medical Applications, CDRH (July 2011),http://www.fda.gov/medicaldevices/deviceregulationandguidance/guidancedocuments/ucm263280.htm.
[3] Id.
[4] See id.
[5] Battista, supra note 1 (emphasis added).
