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  • 1.  Use of non-harmonized standards to support conformity to specific GSPR

    This message was posted by a user wishing to remain anonymous
    Posted 21-Mar-2023 13:35
    This message was posted by a user wishing to remain anonymous

    Dear colleagues,

    I'd like to hear your opinion and experience regarding using non-harmonized standards to support compliance of your product to the EU MDR GSPR.

    My class IIa device technical documentation (device intended for remote physiological parameters monitoring) has undergone the first round of technical documentation review. 

    One of the deficiencies my notified body noted is related to not submitting a GAP analysis for each of the non-harmonized standards used to support GSPR compliance. 

    What we included in the submission package is an analysis and a rationale of why a given non-harmonized standard was used to support a GSPR or a part of a GSPR. The notified body is asking to provide a GAP analysis between the 93/42/EEC Essential Requirements and the 2017/745 GSPR, including a GAP analysis between the harmonized standards under the MDD and the standard used in the current technical documentation.

    Is this something standard, in your opinion? Did it happen to you in the past?

    Any thoughts?

    Thanks



  • 2.  RE: Use of non-harmonized standards to support conformity to specific GSPR

    Posted 21-Mar-2023 15:35

    Your notified body seems to be employing a classic infamous misuse of harmonized standards for the MDD and/or EU MDR.  I generally advise our clients to respectfully, carefully, and legislatively, push back on such misuse.  But without seeing the full details of the nonconformity and of your particular case, it is not possible to say for sure whether such push back is for certain appropriate for your scenario. 

    In general, much has been said in the Forum, for example here, regarding use of harmonized vs. non-harmonized standards. So I won't say much more about that in this current thread unless further questions are raised.  See also MDCG 2021-5 for the latest-and-greatest interpretations about this, such as the MDCG's ultimate summation that, "...in general the use of harmonized standards is voluntary."

    The real legislative requirement (see for example in my prior post linked above and in MDCG 2021-5) is for us to take into account the generally acknowledged state of the art.  That obligation is generally the same regardless of whether we are talking about the MDD or the EU MDR. Accordingly, any conformity solution should be anchored by that endeavor, especially in times like these where, so often, an updated harmonized standard isn't yet available for a given EU MDR GSPR.  Our ultimate legislative requirement is to show conformity with the applicable GSPR, not with a harmonized standard(s).  Yet notified bodies still try to assert that harmonized standards are required.  They do that either because the notified body doesn't understand the legislation or because it makes their job easier.

    On that note, while it might be helpful to provide a notified body a gap analysis between your conformity solution and a harmonized standard, it remains true that lack of such a gap assessment is not a valid reason for a nonconformity.  In general, the most that is appropriate for a notified body to do is request such a gap analysis as a matter of convenience for the notified body (notwithstanding the possibility of an overreaching clause in your business contract with the notified body).  Such a gap assessment is not legislatively required and thus shouldn't be lodged as a technical documentation nonconformity; instead, the legislation leaves us wide latitude in how we show conformity.

    Another strange aspect of your scenario is the notified body's request for a comparison between the GSPR conformity solution applied compared to an MDD harmonized standard.  Specifically, EU MDR conformity isn't based on evolutionary comparison, or any other comparison, to the MDD, its Essential Requirements (ER), or standards that were harmonized for use with the MDD.  Instead, EU MDR conformity is based on showing conformity to the EU MDR and its GSPR.  Indeed, the MDD ER or harmonized standards aren't required to be raised at all in an EU MDR technical documentation review unless the manufacturer has formally mandated itself to such an approach, like via a corresponding QMS document or regulatory strategy.

    Sounds like there are a number of dynamic variables in play in your scenario.  You might want to consider seeking some expert assistance to be sure your next steps are the right ones.  In any event, hopefully the legislative bottom lines noted in this post will be helpful for you as you formulate your response.



    ------------------------------
    Kevin Randall, ASQ CQA, RAC (Europe, U.S., Canada)
    Principal Consultant
    Ridgway, CO
    United States
    © Copyright 2023 by ComplianceAcuity, Inc. All rights reserved.
    ------------------------------



  • 3.  RE: Use of non-harmonized standards to support conformity to specific GSPR

    Posted 21-Mar-2023 15:53

    Should have added the further caveat that the only reason a standard harmonized for the MDD would be valid to be required by a notified body for an EU MDR technical documentation assessment is if the MDD harmonized standard coincidentally happens to be the current generally acknowledged state of the art.  But even then, the EU MDR gives us the liberty to justify the use of a different approach if such approach still assures that the subject device:

    • achieves the performance intended by its manufacturer and is designed and manufactured in such a way that, during normal conditions of use, is suitable for its intended purpose,

    • is safe and effective and doesn't compromise the clinical condition or the safety of patients, or the safety and health of users or, where applicable, other persons, provided that any risks which may be associated with its use constitute acceptable risks when weighed against the benefits to the patient, and

    •  is compatible with a high level of protection of health and safety.


    ------------------------------
    Kevin Randall, ASQ CQA, RAC (Europe, U.S., Canada)
    Principal Consultant
    Ridgway, CO
    United States
    © Copyright 2023 by ComplianceAcuity, Inc. All rights reserved.
    ------------------------------



  • 4.  RE: Use of non-harmonized standards to support conformity to specific GSPR

    Posted 22-Mar-2023 10:15

    My clients have experienced similar situations, but not this one.

    First, a little background.

    Neither MDD nor MDR requires the use of harmonized standards.

    Both MDD and MDR require the use of state-of-the-art standards. Often this was not an issue in MDD but has become significant in MDR.

    For MDD, the harmonization process broke, and the harmonized standards were often years behind the state-of-the-art standards. The MDR process is a little better, but there are not many harmonized standards.

    In satisfying the GS&PR you need the state-of-the-art standard. Your first choice should be a harmonized standard. Your second choice should be the current EN standard. Your third choice should be the current international standard (IEC, ISO, etc.)

    If you used that same standard, including version, for the MDD and the MDR, it is likely that the standard is not state-of-the-art. The NB is asking for a gap analysis to demonstrate that, even though you did not use the state-of-the-art standard, the changes do not apply to your device.

    In the most recent case, NB asked my client for a detailed list of the changes including an analysis of why they were not relevant. In addition, the NB wanted documentation of the competency of the person preparing the gap analysis. Because some of the items in the gap analysis should have been implemented in the device, the NB wanted an implementation plan and reports showing conformance.

    The message is that state-of-the-art is important in MDR, and the NB will expect your company to implement the standards as they change. This comes from the strategy that the people in Europe have access to the best health care in the world.

    Notice that this is not the FDA's expectation. Once a device is cleared, FDA does not expect it to incorporate changes from standards.

    The bad news is that the MDR may result in design changes that subsequently require a 510(k) change on the FDA side.



    ------------------------------
    Dan O'Leary CQA, CQE
    Swanzey NH
    United States
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  • 5.  RE: Use of non-harmonized standards to support conformity to specific GSPR

    Posted 22-Mar-2023 11:34

    I think it's practically imperative that the voluntary nature of standards be well understood (notwithstanding the mandatory requirement for use of some standards such as regarding symbols).  And regarding "state of the art", believe it or not, the legislation doesn't actually require compliance with the state of the art.  Instead, we must only "take into account" the general acknowledged state of the art.  Indeed, as the MDCG reiterates, the EU MDR and the MDD call for the need to take into account the generally acknowledged state of the art to comply with the health, safety and performance requirements. However, the MDCG underlines that "taking into account" is different from "compliance", due to the fact that "state of the art" is not a legally defined concept and involves several complex aspects which are difficult to be expressed in a single and clear definition.  So be leery about standardization mandates, even regarding state of the art standards.

    Again, the use of standards, whether harmonized or any other standard (e.g., state of the art) in the medical device sector, has been for decades, and continues to be, voluntary. MDCG reiterates that the voluntary character of the use of standards means in practice that the manufacturer may always choose to apply the technical solutions provided by European harmonized standards or by non-harmonized European standards, or by any other international or national standards, or even to develop its own technical solutions, provided that it is able to demonstrate that these different or alternative non-harmonized means are adequate to comply with the legal requirements applicable to the product.  MDCG emphasizes that choosing to use a standard or not belongs to the manufacturer, within its overall and ultimate responsibility on compliance.  MDCG reminds us that a gap assessment isn't mandatory for this.  It is not possible to impose the use of any specific standard, on the basis for instance of its status of harmonized European standard or of "state-of-the-art" standard, neither by national authorities in their market surveillance or vigilance activities, nor by notified bodies in the conformity assessment procedures they participate in. MDCG emphasizes that, to be lawfully placed on the EU market, medical devices must (see my preceding posts) comply with the health, safety and performance requirements of the applicable legislation, and not necessarily with the clauses of a standard.

    Yet, in the commonplace event that a standard is chosen by a manufacturer as its means for demonstrating conformity with a GSPR(s), then I would prioritize my standards selection as follows in alignment with the MDCG:

    1. The most recent editions of standards published by the standards organization as reflecting state-of-the-art, regardless of European harmonization status.
    2. European harmonized version.

    Indeed, I've had prominent notified bodies reject use of European harmonized standards that weren't the latest standard version from the standards organization.



    ------------------------------
    Kevin Randall, ASQ CQA, RAC (Europe, U.S., Canada)
    Principal Consultant
    Ridgway, CO
    United States
    © Copyright 2023 by ComplianceAcuity, Inc. All rights reserved.
    ------------------------------



  • 6.  RE: Use of non-harmonized standards to support conformity to specific GSPR

    Posted 22-Mar-2023 14:22

    Hi ,

    A gap assessment is often necessary when using non-harmonized standards or harmonized standards that do not fully cover the intended use of a medical device.

    The purpose of a gap assessment is to identify any differences between the requirements of the standard and the requirements of the medical device, and to determine what additional steps may be needed to ensure compliance with applicable regulations.

    I believe you have provided a   rationale of why a given non-harmonized standard was used to support a GSPR that is good. I believe the NB is requesting GAP analysis for each of the non-harmonized standards used to support GSPR compliance, out of their own convenience of reviewing.

    GAP analysis between the 93/42/EEC Essential Requirements and the 2017/745 GSPR, is not a requisite as per MDR .

     As mentioned by Kevin, EU MDR conformity is based on showing conformity to the EU MDR and its GSPR. I would think Unless you have MDD device being upgraded to MDR then the NB is reviewing only the changes as per MDR . Even then a comparison on ER and GSPR is not a requirement.



    ------------------------------
    Raje Devanathan
    Amerisource Bergen
    TPIreg, Innomar Strategies
    Senior Manager - Regulatory Affairs, Medical Devices
    rdevanathan@tpireg.com
    3470 Superior Court
    Oakville ON L6L0C4
    Canada
    ------------------------------



  • 7.  RE: Use of non-harmonized standards to support conformity to specific GSPR

    This message was posted by a user wishing to remain anonymous
    Posted 23-Mar-2023 08:18
    This message was posted by a user wishing to remain anonymous

    Thanks, everyone for the answers and very helpful feedback. I'd like to give you an example.

    Considering the state-of-the-art we decided to test our product for safety and EMC compatibility of our device according to the latest revision of the relevant IEC 60601-1(Edition 3.2 2020-08) and IEC 60601-1-2(Edition 4.1 2020-09). In addition to the standard GSPR checklist listing the standard version we applied for the test we added an additional document indicating which GSPR is covered by the standard and why we selected that standard. 

    They are now asking us to perform a GAP analysis between the latest revision of the standard and the harmonized version of that specific standard. They also stated that if we are using a standard that was never (neither the current version nor a past version) harmonized under the MDD we should provide an analysis between the standard and the relevant GSPR and indicate why we believe that standard to cover the GSPR. An example here would be IEC 81001-5-1. 

    Are they being unreasonable?




  • 8.  RE: Use of non-harmonized standards to support conformity to specific GSPR

    Posted 23-Mar-2023 10:08

    There are a few things going on here.

    First you should not be citing IEC standards, but EN standards. For the ones you mentioned you should be citing EN 60601-1:2006/A2:2021, EN 60601-1-2:2015/A1:2021, and EN IEC 81001-5-1:2022. These are the state of the art standards in the European system.

    They asked you to perform a GAP analysis between the latest revision of the standard and the harmonized version of that specific standard. You did not say whether they are asking for harmonization to MDD or to MDR. Neither of the standards listed above is harmonized to the MDR.

    None of the EN standards above are harmonized to the MDR.

    The key point here is that for a the MDR, the standards harmonized under the MDD are not relevant. The concept is that the MDR starts clean.

    I suspect that the NB is concerned that you have not implemented the state-of-the-art standards, and that your device meets only the standards your company used for the MDD certificate. You should have test reports for the state-of-the-art standards and they should be part of your MDR Annex II technical documentation.

    My recommendation is that you ask the NB why they think the gap analysis is warranted. In such cases I usually ask, "What is the problem for which is the solution?"



    ------------------------------
    Dan O'Leary CQA, CQE
    Swanzey NH
    United States
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  • 9.  RE: Use of non-harmonized standards to support conformity to specific GSPR

    This message was posted by a user wishing to remain anonymous
    Posted 23-Mar-2023 13:25
    This message was posted by a user wishing to remain anonymous

    Thanks for the answer Dan. I can confirm we cite the EN version of the standard in the GSPR checklist, and we did indeed include in the technical documentation the relevant test reports (tests performed by the accredited lab owned by the same NB).
    We have asked for clarification and we are waiting their response