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Christina Kuhn

Christina Kuhn provides pharmaceutical and medical device companies advice on a variety of federal and state regulatory matters.

Our clients increasingly apply agile product and business development methodologies when they are developing digital health solutions.  “Ideation” is the part of that process and involves the rapid identification and creation of ideas for digital health solutions, which are then prototyped and tested.  Covington has created a Top 10 Questions for Ideation of Digital Health

As previewed by Commissioner Gottlieb several months ago (see our earlier post here), FDA published a notice in the Federal Register on November 20, 2018, to propose a new framework for “prescription drug-use-related software.” The Agency defines this digital health category widely as software disseminated by a prescription drug sponsor for use with the sponsor’s prescription drug(s). Last spring, the Commissioner stated that FDA would be seeking input “on how to support the development of digital health tools that are included as part of approved drugs.”  The goal in establishing the framework, Gottlieb stated, would be “to develop an efficient pathway for the review and approval of digital health tools as part of drug review, so that these tools reach their full potential to help us treat illness and disease, and encourage synergies between software and therapeutics that meet FDA’s gold standard for safety and effectiveness.”

This policy development is significant, not only because it is one of CDER’s first policy statements on digital health associated with pharmaceuticals (see a few of our earlier posts about pharma-related digital health here and here), but also because it implicates a broad range of information that could be made available by prescription drug sponsors through software used with their products. We encourage prescription drug sponsors with any interest in providing digital health solutions, including through collaborations, to review the Federal Register notice and consider submitting comments to FDA.

Here are a few key takeaways from FDA’s notice:

  • Under the proposed framework, software with the same drug-related functionalities will be subject to different regulatory approaches by FDA, depending on the developer of the software. FDA will apply the proposed framework to prescription drug-user-related software developed by or on behalf of pharmaceutical manufacturers, and a different approach to drug-related software developed “independently” by third-party software developers and other entities that are not prescription drug sponsors.
  • It is unclear from the notice how the proposed framework, including the evidentiary standards described in the Federal Register notice, will align with other FDA initiatives such as the use of real-world evidence for drug development and the pre-certification program (see our earlier post here).
  • An important question for prescription drug sponsors in particular is whether the proposed framework will encourage continued digital health innovation, including through collaborations, or whether FDA’s proposal will create challenges that may discourage advances in this area.

Continue Reading Significant FDA Digital Health Policy Development for Prescription Drug Sponsors

On April 26, Commissioner Gottlieb addressed the agency’s progress on FDA’s Digital Health Innovation Action Plan and announced several additional steps the agency is taking to advance the potential benefits of digital health. Here is a recap of the key updates:

(1) Launch of New FDA Program to Apply Digital Health to Drugs

As our

On February 1, 2018, Covington’s Digital Health team hosted a webinar examining U.S. and EU regulatory issues for digital health associated with pharmaceuticals.  Here are some key takeaways from that webinar:

  • Neela Paykel from Proteus Digital Health, noted that “you need to think outside the box for how to engage, whether you’re a pharma company

On December 8, FDA addressed the agency’s evolving approach to digital health by issuing two new draft guidance documents: “Clinical and Patient Decision Support Software” (the “CDS Draft Guidance”) and “Changes to Existing Medical Software Policies Resulting From Section 3060 of the 21st Century Cures Act” (the “Software Policies Draft Guidance”). These draft guidances announce the agency’s initial interpretation of the health software provisions enacted as part of last year’s 21st Century Cures Act (the “Cures Act”).

Given the rapid pace of digital health innovation across the life sciences, technology and health care sectors, FDA guidance on these topics is critical. Here are a few key takeaways from the draft guidances:

  • FDA’s initial interpretation of the Cures Act provision related to clinical decision support (CDS) software may lead to a fairly narrow carve-out—in other words, many cutting-edge CDS software functions could remain subject to FDA regulation.
  • FDA’s draft guidances do not directly address dynamic digital health solutions, such as those that incorporate machine learning, artificial intelligence (AI), or blockchain.
  • FDA has proposed an enforcement discretion approach for decision support software aimed at patients that generally parallels the regulatory approach for CDS software aimed at clinicians, even though patient decision software was not addressed directly in the Cures Act.
  • Consistent with the Cures Act, FDA’s draft guidances reflect that many of the software functions that were previously subject to FDA enforcement discretion (i.e., not actively regulated as devices) no longer meet the definition of “device.”
  • Significant for pharmaceutical companies, CDER joined one of the draft guidances, and that draft guidance makes clear that other FDA requirements may apply to digital health products disseminated by or on behalf of a drug sponsor beyond those outlined in the draft guidance.

FDA’s regulatory approach has a significant impact on the investment in and development of digital health solutions across the digital health ecosystem. Stakeholders should consider submitting comments to the agency to help shape the direction of FDA’s final guidances on these topics.Continue Reading FDA Outlines Updated Approach to Regulating Digital Health Technologies

On November 14, lawyers from Teva Pharmaceuticals and Covington & Burling discussed digital health innovation from a medical device regulation perspective in the U.S. and the EU. The presentation by Rachel Turow, Executive Counsel – Regulatory Law, Teva Pharmaceuticals, and Grant Castle, Scott Danzis, Sarah Cowlishaw, and Christina Kuhn of Covington, covered topics such as

On Friday, July 28, FDA announced a new Software Pre-certification (Pre-Cert) Pilot Program in a Federal Register notice.  The Pre-Cert program is one of three main action items discussed in the agency’s recently-released Digital Health Innovation Action Plan.  CDRH also held a webinar on August 1 to provide an overview of the program and answer stakeholder questions.

In an accompanying FDA Voice blog post, Commissioner Gottlieb acknowledged that “FDA’s traditional approach to medical devices is not well suited” to digital health products.  The agency is looking to develop a new regulatory framework that “accommodates the distinctive nature of digital health technology, its clinical promise, the unique user interface, and industry’s compressed commercial cycle of new product introductions.”

The Pre-Cert pilot program is the agency’s first step in developing the Pre-Cert program that the agency initially announced last month.  The Pre-Cert program will replace the agency’s current product-by-product premarket review process with a process to pre-certify software developers who demonstrate sufficient quality performance.  Pre-certified developers would be able to market their software devices with no, or streamlined, premarket review.  The program is intended to allow manufactures of software devices to get to market faster and have greater flexibility to iterate product design based on real world experience.

To move the Pre-Cert program from concept to implementation, the agency is initiating a pilot program.  The goal of the pilot is to leverage input from the participating companies to help the agency establish the appropriate criteria for pre-certification and appropriate review process for pre-certified companies.  Thus, participating companies will have a remarkable opportunity to shape the program and the agency’s regulatory approach to digital health products.

The Pre-Cert program’s developer-based approach represents a significant shift from the agency’s longstanding, fundamental approach to regulating medical products on a product or category basis regardless of the manufacturer.  We expect that there will be significant interest in the pilot, although FDA will only select nine companies to participate.  FDA also strongly encourages companies who do not participate in the pilot to submit feedback through the public docket.Continue Reading FDA Initiates Software Precertification Pilot Program

On July 27, FDA published its Digital Health Innovation Action Plan. The plan provides details and timelines for the agency’s Digital Health Innovation Plan, announced by FDA Commissioner Scott Gottlieb last month.

The action plan describes the agency’s “next steps” over the coming year to “encourage digital health innovation by redesigning [FDA’s] policies and

On April 5, the Federal Trade Commission (FTC), in conjunction with the Food and Drug Administration (FDA) and the Department of Health and Human Services (HHS), released a new web-based interactive tool to assist mobile health app developers in navigating applicable federal laws and regulations in the areas of advertising and marketing, medical devices, and data security and privacy.

The interactive tool consists of 10 questions designed to identify whether a particular mobile health app is subject to any of the following federal laws:

  • the privacy, security and breach notification rules issued under the Health Insurance Portability and Accountability Act (HIPAA);
  • the Food, Drug, and Cosmetic Act (FDCA);
  • the Federal Trade Commission (FTC) Act; and
  • the breach notification rules issued by the FTC.

Regardless of whether mobile apps are subject to any of these federal laws, the guidance directs app developers to newly issued FTC best practices for protecting the privacy and security of consumer data.Continue Reading FTC Releases Online Tool to Help Health App Developers Identify Applicable Laws

On November 2, 2015, the HHS Office of Inspector General (OIG) published its FY 2016 Work Plan, which summarizes new and ongoing activities that OIG plans to pursue with respect to HHS programs and operations during the fiscal year.

The FY 2016 Work Plan includes a new review initiative to examine “whether FDA’s oversight of hospitals’ networked medical devices is sufficient to effectively protect associated electronic protected health information (ePHI) and ensure beneficiary safety.”  The Work Plan notes that networked medical devices, such as radiology systems and medication dispensing systems that are integrated with electronic medical records and the larger health network, “pose a growing threat to the security and privacy of personal health information.”  OIG’s Work Plans for FY 2014 and FY 2015 both included a similar review focused on oversight by CMS of hospitals’ security controls over networked medical devices.  This review activity has been removed in the FY 2016 Work Plan.Continue Reading OIG FY 2016 Work Plan Includes Review of FDA’s Oversight of Networked Devices