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MOU 225-13-023

MEMORANDUM OF UNDERSTANDING
Between the FOOD AND DRUG ADMINISTRATION
CENTER FOR DEVICES AND RADIOLOGICAL HEALTH
and the NATIONAL INSTITUTES OF HEALTH
NATIONAL INSTITUTE OF NEUROLOGICAL DISORDERS AND STROKE
 
 
  I. PURPOSE
 
This Memorandum of Understanding (MOU) between the Food and Drug Administration/Center for Devices and Radiological Health (FDA/CDRH) and the National Institutes of Health/National Institute of Neurological Disorders and Stroke (NIH/ NINDS) (individually referred to as a “Participant” and collectively referred to as the “Participants”) provides a framework for coordination and collaborative efforts between these two entities, which are both components of the United States Department of Health and Human Services (HHS). This MOU also provides the principles and procedures by which information sharing between FDA/CDRH and NIH/NINDS under this MOU shall take place.
 
II. BACKGROUND
 
FDA and NIH are agencies within HHS. Both FDA and NIH exist and work to protect the public health but have different statutory mandates and responsibilities. FDA is a science-based regulatory agency responsible for protecting the public health through the regulation of food, cosmetics, and medical products, including human drugs, biological products, animal drugs, and medical devices. FDA administers the Federal Food, Drug, and Cosmetic Act and relevant sections of the Public Health Service Act, among other statutes. Among its duties, FDA reviews and monitors the use of investigative articles in clinical studies, conducts on-site inspections of biomedical research, approves pre-market applications, conducts regulatory research, conducts inspections of manufacturing facilities, and monitors post-marketing adverse events. FDA also refers civil and criminal cases to the Department of Justice to enforce applicable laws and regulations. Within FDA, CDRH’s mission is to protect and promote the public health by assuring that patients and providers have timely and continuous access to safe, effective, and high-quality medical devices and safe radiation-emitting products. CDRH provides consumers, patients, their caregivers, and providers with understandable and accessible science-based information about the products CDRH oversees. CDRH facilitates medical device innovation by advancing regulatory science, providing industry with predictable, consistent, transparent, and efficient regulatory pathways, and assuring consumer confidence in devices marketed in the U.S. 
 
The NIH is the Federal focal point for biomedical research in the United States. The NIH mission is to uncover new knowledge that will lead to better health for everyone. The NIH works toward this mission by conducting research in its own laboratories, supporting the research of non-Federal scientists in universities, medical schools, hospitals and research institutions throughout the country and abroad, facilitating the training of research investigators, and fostering communication of medical information and research discoveries. Within the NIH, the NINDS is the nation’s leading supporter of biomedical research on disorders of the brain and nervous system. The mission of the NINDS is to reduce the burden of neurological disease. To achieve this mission, the NINDS, among other things, conducts, fosters, coordinates and guides research on the causes, prevention, diagnosis and treatment of neurological disorders and stroke, including basic research in related scientific areas.  The NIH’s and FDA’s respective missions to protect the public health are complementary and may overlap depending upon the subject matter.   The agencies work collaboratively to protect and improve public health. Sometimes FDA/CDRH or NIH/NINDS may have information that could be useful to the other Participant in that ’Participant’s performance of its responsibilities. Timely sharing of information between NIH/NINDS and FDA/CDRH is therefore critical in achieving the shared goals of protecting and improving the public health.
 
III. SUBSTANCE OF MOU AND RESPONSIBILITIES OF EACH AGENCY
 
A.     Coordination and Collaboration Relative to Public Health Activities
Subject to compliance with applicable laws, regulations and policies, it is mutually agreed that:
1.     FDA/CDRH and NIH/NINDS will coordinate and collaborate with each other to protect and improve the public health. To achieve this, each Participant will utilize the expertise, resources, and relationships of the other in order to increase its own capability and readiness to respond to situations. In addition, each Participant will designate central contact points to coordinate communications from the other, dealing with matters covered by this MOU.
2.     Each Participant will take part in periodic joint meetings to promote better communication and understanding of regulations, policies, and statutory responsibilities, and to serve as a forum for questions and problems that may arise.
3.     Each Participant will notify the other when issues of mutual concern become evident to the extent such notification does not interfere with the public health, oversight, enforcement, or compliance responsibilities of the notifying agency.
4.     The Participants will present, as appropriate, reciprocal in-house presentations to their corresponding staff on topics of common interest such as FDA’s regulatory review process and NIH/NINDS’s extramural, federally-funded translational research initiatives and programs, specifically those applicable to development of medical devices for treatment of neurologic diseases, conditions and disorders.
5.     Where appropriate, FDA/CDRH will provide relevant reference documents that describe the investigational product review process and marketing approval processes for use by NIH/NINDS staff involved in conferring with prospective translational research grantees to assist in the design and implementation of clinical studies that comply with FDA/CDRH guidance and regulations.
6.     The Participants will take advantage of opportunities to work collaboratively together in order to improve generally the efficiency of the submission and review process for clinical investigator applications that request funding from NIH/NINDS and may require submission of an Investigational Device Exemption (IDE) application to FDA/CDRH.
7.     Under this MOU, the Participants will promote communication and consultation on select policy issues and guidance documents of particular interest and relevance to researchers, consumers and/or health care professionals pertaining to novel devices. This cooperative interaction will target possible health risks posed to the public as well as address research and regulatory processes affecting the pace of bench top to bedside research translation.
8.     NIH/NINDS will invite FDA/CDRH input and recommendations during development of Funding Opportunity Announcements targeting relevant, essential research areas in order to foster and support the development of device therapies for treating neurologic disease and stroke.
9.     As appropriate, FDA/CDRH will invite NIH/NINDS input and recommendations on selected applications that seek FDA/CDRH permission to initiate clinical studies involving novel medical devices whose scientific and clinical aspects may be complex and non-conventional where NIH/NINDS may have expertise.
10.FDA/CDRH staff will have the opportunity to participate in NIH/NINDS-sponsored conferences that pertain to development of devices. FDA/CDRH contributions may include: (1) participation in workshops, (2) individual presentations, (3) use of existing videotaped FDA conferences/workshops on select regulatory policy and process issues. 
11.This MOU does not preclude NIH/NINDS or FDA/CDRH from entering into other agreements which may set forth procedures for special programs which can be handled more efficiently and expertly by other agreements.
 
B.     Principles and Procedures for the Sharing of Non-Public Information
 
Subject to compliance with applicable laws, regulations and policies, FDA/CDRH and NIH/NINDS agree that the following principles and procedures will govern the sharing of non-public information, as resources permit, between the two Participants.
As fellow agencies within HHS, FDA and NIH can generally share information in the possession of either agency with each other. Both Participants recognize and acknowledge it is essential that any non-public information that is shared between FDA/CDRH and NIH/NINDS whether written or oral cannot be further shared unless authorized by law. See, e.g., 21 U.S.C. § 331(j), 21 U.S.C. § 360j(c), 18 U.S.C. § 1905, 21 CFR Parts 20 and 21, 45 CFR Parts 5 and 5b, and 42 U.S.C. § 241(d). Safeguards are needed to protect shared non-public information, both written and oral, such as trade secrets, confidential commercial information and intellectual property information; identities of study participants and other personal privacy information; privileged and/or pre-decisional agency information; research proposals, progress reports, and/or unpublished data. The sharing of national security information is not contemplated by this MOU. Such safeguards also help ensure FDA/CDRH’s and NIH/NINDS’s compliance with applicable laws and regulations. To facilitate the sharing of non-public information, written or oral, FDA/CDRH and NIH/NINDS will implement procedures to ensure that such sharing is appropriate and that the Participant receiving shared non-public information (Receiving Participant) will guard the confidentiality of all non-public information received.[1] Both Participants are committed to responding to requests for information in a complete and timely manner, consistent with budgetary and resource constraints, and to the extent permitted by law, regulation or agency policy and practice. Provisions for sharing of non-public information, both written and oral, in accordance with applicable statutes or regulations are set out below:
 1.      The requesting Participant must specify, in writing, the information requested (to facilitate identification of relevant information), provide a brief statement of why the information is needed, and include the following requesting party template language: ‘This request is made pursuant to the Memorandum of Understanding for Sharing of Non-Public Information between FDA/CDRH and NIH/NINDS, dated [insert date]. [insert name of requesting Participant] agrees not to disclose any non-public information shared between FDA/CDRH and NIH/NINDS whether orally or in writing, in any manner.’ This request shall state which internal Participant offices and/or individuals are requesting the information.
2.      In response to a request for information from the Receiving Participant, the Participant that is considering sharing information (Sharing Participant) will first determine what should be shared.  The Sharing Participant will review the information to be shared and identify whether any of this information is non-public. If non-public information has been identified, the Sharing Participant will clearly label the relevant materials as follows: “This document contains non-public information. Do not disclose without permission of [insert name of Sharing Participant].”
3.      The Sharing Participant will tell the Receiving Participant that the information that it intends to share contains non-public information. At this time the Receiving Participant, must promise in writing that it will not further disseminate the shared non-public information without permission of the Sharing Participant or as required by law. The promise can be accomplished through a written letter, e.g. email. A model promise letter is attached. Upon mutual agreement, FDA/CDRH and NIH/NINDS may modify the request letter appropriately, e.g., to permit the sharing of related non-public information over a specified period of time.
4.      The Receiving Participant shall comply with the following conditions: 
a.       The Receiving Participant shall limit the dissemination of shared non-public information it receives to internal unit offices and/or employees that have been identified in its written request and/or have a need to know. The Participant official who signs the promise letter shall be responsible for ensuring that there are no inappropriate recipients of the information.
b.      If the Receiving Participant receives a Freedom of Information Act (FOIA) request for the shared information, it shall: (a) if the request implicates documents from the Sharing Participant in their original form, refer the request to the Sharing Participant for that Participant to respond directly to the requester, and notify the FOIA requester of the referral and that a response will issue directly from the  Sharing Participant regarding the releaseability of the information; and (b) if the request implicates documents authored by the Receiving Participant that incorporates information from shared documents, consult with the Sharing Participant about how to respond to the FOIA request. The Receiving Participant will not indicate to the FOIA requester whether the Sharing Participant has responsive or releasable records.
c.       The Sharing Participant shall include a transmittal letter along with any agency non-public information shared. The transmittal letter shall indicate the type of non-public information contained in the shared materials (e.g., confidential commercial information, personal privacy, or pre-decisional). A model transmittal letter is attached. As stated above, the shared documents containing non-public information should be stamped “This document contains non-public information. Do not disclose without permission of [insert name of Sharing Participant]” as is applicable. 
d.      The Receiving Participant shall promptly notify the contact person or designee of the Sharing Participant when there is any attempt by a third party to obtain shared non-public information by compulsory process, including, but not limited to, a FOIA request, judicial order, subpoena, discovery request, or litigation complaint or motion.
e.       The Receiving Participant will notify the Sharing Participant before complying with any judicial order that compels the release of shared non-public information, so that the Participants may determine the appropriate measures to take, including, where appropriate, legal action.
 
IV. RESOURCE OBLIGATIONS
 
All activities undertaken pursuant to the MOU are subject to the availability of personnel, resources, and funds.  This MOU does not affect or supersede any existing or future agreements or arrangements between the Participants and does not affect the ability of the Participants to enter into other agreements or arrangements related to this MOU.  This MOU and all associated agreements will be subject to the applicable policies, rules, regulations, and statutes under which FDA and NIH operate.
 
V. LIASON OFFICERS
 
Liaison Officers will participate in the management, coordination and oversight of this MOU. The Liaison Officers will constitute a Steering Committee comprised of an equal number of member representatives from the FDA/CDRH and the NIH/NINDS. Two Liaison Officers, one designate from each participating agency, will serve as co-chairs of the Steering Committee.
Member appointments shall be authorized by the signatories to this MOU. The Liaison Officer Steering Committee shall meet at least once every six months for the first year of this MOU and then once annually thereafter to review the progress of this MOU, resolve any issues and disputes that may arise, and oversee necessary modifications to the MOU.
 
A.      For FDA/CDRH
 
John R. Doucet, Ph.D.
Scientific Reviewer – Neuroscientist and Biomedical Engineer
Division of Neurological and Physical Medicine Devices
Office of Device Evaluation
Center for Devices and Radiological Health
Food and Drug Administration
White Oak 66, Room G246
10903 New Hampshire Avenue
Silver Spring, Maryland 20993-0002
Telephone: 301-796-6474
 
Cristin G. Welle, Ph.D. (Alternate)
Staff Fellow
Division of Physics
Office of Science and Engineering Laboratories
Center for Devices and Radiological Health
Food and Drug Administration
White Oak 62, Room 1208
10903 New Hampshire Avenue
Silver Spring, Maryland 20993-0002
Telephone: 301-796-2492
 
B.      For NIH/NINDS 
 
Stephanie Fertig, M.B.A.
Small Business Project Manager
National Institute of Neurological Disorders and Stroke
National Institutes of Health
Neuroscience Center, Room 2142
6001 Executive Blvd.
Bethesda, MD 20892-9521
Tel: (301) 496-1779
 
Kip Ludwig, Ph.D. (Alternate)
Program Director for Neural Engineering
National Institute of Neurological Disorders and Stroke
National Institutes of Health
Neuroscience Center, 6001 Executive Blvd. Room 2207
Bethesda, MD 20892
Telephone: (301) 496-1447
Fax: (301) 480-1080
 
 
VI. PERIOD OF AGREEMENT
 
This MOU becomes effective on date of latest signature, and shall continue in effect for a period of five years, or until terminated by either Participant upon a ninety (90) day advance written notice to the other Participant. Not later than 120 days prior to the expiration of this MOU, each Participant will provide a recommendation regarding the extension of the MOU, including modifications if any.
 
AUTHORIZED SIGNATURES
 
APPROVED AND ACCEPTED FOR NATIONAL INSTITUTES OF HEALTH
National Institute of Neurological Disorders and Stroke
 
Walter J. Koroshetz, M.D.
Acting Director
 
May 5, 2015
 
APPROVED AND ACCEPTED FOR THE FOOD AND DRUG ADMINISTRATION
Center for Devices and Radiological Health
 
Jeffrey Shuren, M.D.
 
May 8, 2015
 
Model Language for Promise Not to Disclose Letter from FDA/CDRH
 
The Food and Drug Administration/Center for Devices and Radiological Health (FDA/CDRH) requests the following information from the National Institutes of Health, National Institute of Neurological Disorders and Stroke (NIH/NINDS) for the following purpose(s): [Identify information and purpose]
FDA/CDRH agrees that it will not disclose any information that NIH/NINDS shares with it and designates non-public to any other party without prior written permission from NIH/NINDS and that FDA/CDRH will comply with the principles and procedures set forth in the Memorandum of Understanding on information sharing between FDA/CDRH and NIH/NINDS (MOU no. [Insert MOU number]). FDA/CDRH acknowledges that applicable statutes and regulations may govern the disclosure of such information. See, e.g., 5 U.S.C. § 552; 5 U.S.C. § 552a; 18 U.S.C. § 1905; 21 U.S.C. § 331(j) and 360j(c); 21 C.F.R. Parts 20 and 21; 45 CFR Parts 5 and 5b; and 42 U.S.C. § 241(d). 
FDA/CDRH will limit dissemination of any shared non-public information to the following FDA/CDRH offices and/or employees, unless it identifies additional FDA/CDRH employees who have a need to know the non-public information: [Identify office(s) and/or employee(s)]
 
 
 
________________________                                    _____________
                        Name                                                                       Date
 
[Signature and Date by FDA/CDRH official with requisite responsibility and authority.]
 
 
Model Language for Promise Not to Disclose Letter from NIH/NINDS
 
The National Institutes of Health/National Institute of Neurological Disorders and Stroke (NIH/NINDS) requests the following information from the Food and Drug Administration/Center for Devices and Radiological Health (FDA/CDRH) for the following purpose(s): [Identify information and purpose]
NIH/NINDS agrees that it will not disclose any information that FDA/CDRH shares with it and designates non-public to any other party without prior written permission from FDA/CDRH and that NIH/NINDS will comply with the principles and procedures set forth in the Memorandum of Understanding on information sharing between NIH/NINDS and FDA/CDRH (MOU No. [Insert MOU number]). NIH/NINDS acknowledges that applicable laws and regulations may govern the disclosure of such information. See, e.g., 5 U.S.C. § 552; 5 U.S.C. § 552a; 18 U.S.C. § 1905; 21 U.S.C. § 331(j) and 360j(c); 21 C.F.R. Parts 20 and 21; 45 CFR Parts 5 and 5b; and 42 U.S.C. § 241(d). 
NIH/NINDS will limit dissemination of any shared information to the following NIH/NINDS offices and/or employees, unless it identifies additional NIH/NINDS employees who have a need to know the non-public information: [Identify office(s) and/or employee(s)]
 
 
 
________________________                        _____________
                          Name                                                         Date
   
 [Signature and Date by NIH/NINDS official with requisite responsibility and authority.]
 
 
Model Transmittal Letter from NIH/NINDS to FDA/CDRH
 
This letter accompanies information that the National Institutes of Health/National Institute for Neurological Disorders and Stroke (NIH/NINDS) is sharing with the Food and Drug Administration/Center for Devices and Radiological Health (FDA/CDRH) in response to FDA/CDRH’s request, dated                    . This information contains one or more of the following categories of non-public information, which include information the disclosure of which may be prohibited by law:
 [NIH/NINDS checks applicable categories below]
___ confidential research proposals, progress reports, and/or unpublished data
___ privileged or pre-decisional agency information
­___ trade secrets
___ confidential commercial or financial information
___ information the disclosure of which would constitute a clearly unwarranted invasion of personal privacy
___ information contained in records subject to the Privacy Act
___ information contained in the inter-agency or intra-agency memoranda
___ records or information compiled for law enforcement purposes
___ other (explain)
 
FDA/CDRH shall notify the contact person or designee of NIH/NINDS if there are any attempts to obtain such shared non-public information by compulsory process, including, but not limited to, Freedom of Information Act requests, subpoenas, judicial orders, discovery requests, and litigation complaints or motions.
By a signed request letter dated                    , FDA/CDRH has agreed not to disclose the above-described shared non-public information without prior written permission of NIH/NINDS. FDA/CDRH has acknowledged that applicable laws and regulations may govern the disclosure of such information. See, e.g., 5 U.S.C. § 552; 5 U.S.C. § 552a; 18 U.S.C. § 1905; 21 U.S.C. § 331(j) and 360j(c); 21 C.F.R. Parts 20 and 21; 45 CFR Parts 5 and 5b; and 42 U.S.C. § 241(d). 
FDA/CDRH has also agreed to comply with the principles and procedures set forth in the Memorandum of Understanding on information sharing between FDA/CDRH and NIH/NINDS, (MOU no. [Insert number here]).
 
Model Transmittal letter from FDA/CDRH to NIH/NINDS
 
This letter accompanies information that the Food and Drug Administration/Center for Devices and Radiological Health (FDA/CDRH) is sharing with the National Institutes of Health/National Institute for Neurological Disorders and Stroke (NIH/NINDS) in response to NIH/NINDS’s request, dated            . This information contains one or more of the following categories of non-public information, including information the disclosure of which may be prohibited by law:
 
[FDA/CDRH checks applicable categories below]
___ trade secrets
___ confidential commercial or financial information
___ information the disclosure of which would constitute a clearly unwarranted invasion of personal privacy
___ information contained in records subject to the Privacy Act
___ information contained in inter-agency or intra-agency memoranda
___ records or information compiled for law enforcement purposes
___ other (explain)
 
NIH/NINDS shall notify the contact person or designee of FDA/CDRH if there are any attempts to obtain such shared non-public information by compulsory process, including, but not limited to, Freedom of Information Act requests, subpoenas, judicial orders, discovery requests, and litigation complaints or motions.
By a signed request letter dated                     , NIH/NINDS has agreed not to disclose the above-described shared non-public information without prior written permission of FDA/CDRH. NIH/NINDS has acknowledged that applicable laws and regulations may govern the disclosure of such information. See, e.g., 5 U.S.C. § 552; 5 U.S.C. § 552a; 18 U.S.C. § 1905; 21 U.S.C. § 331(j) and 360j(c); 21 C.F.R. Parts 20 and 21; 45 CFR Parts 5 and 5b; and 42 U.S.C. § 241(d).   NIH/NINDS has also agreed to comply with the principles and procedures set forth in the Memorandum of Understanding on information between FDA/CDRH and NIH/NINDS (MOU no. [Insert number here]).
 

 

[1] Each Participant has implemented or will implement their respective agency’s data and information security statutory, regulatory, policy, or procedural requirements and has implemented or will implement, to the extent necessary and practicable, all data and information security recommendations suggested by the other agency.

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