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80–805 2013

HEALTH INFORMATION TECHNOLOGIES: 

HARNESSING WIRELESS INNOVATION 

HEARING 

BEFORE THE

SUBCOMMITTEE ON COMMUNICATIONS AND 

TECHNOLOGY 

OF THE

COMMITTEE ON ENERGY AND 

COMMERCE 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED THIRTEENTH CONGRESS 

FIRST SESSION 

MARCH 19, 2013 

Serial No. 113–20 

( 

Printed for the use of the Committee on Energy and Commerce 

energycommerce.house.gov 

(II) 

COMMITTEE ON ENERGY AND COMMERCE 

FRED UPTON, Michigan 

Chairman 

RALPH M. HALL, Texas 

JOE BARTON, Texas 

Chairman Emeritus 

ED WHITFIELD, Kentucky 

JOHN SHIMKUS, Illinois 

JOSEPH R. PITTS, Pennsylvania 

GREG WALDEN, Oregon 

LEE TERRY, Nebraska 

MIKE ROGERS, Michigan 

TIM MURPHY, Pennsylvania 

MICHAEL C. BURGESS, Texas 

MARSHA BLACKBURN, Tennessee 

Vice Chairman 

PHIL GINGREY, Georgia 

STEVE SCALISE, Louisiana 

ROBERT E. LATTA, Ohio 

CATHY MCMORRIS RODGERS, Washington 

GREGG HARPER, Mississippi 

LEONARD LANCE, New Jersey 

BILL CASSIDY, Louisiana 

BRETT GUTHRIE, Kentucky 

PETE OLSON, Texas 

DAVID B. MCKINLEY, West Virginia 

CORY GARDNER, Colorado 

MIKE POMPEO, Kansas 

ADAM KINZINGER, Illinois 

H. MORGAN GRIFFITH, Virginia 

GUS M. BILIRAKIS, Florida 

BILL JOHNSON, Missouri 

BILLY LONG, Missouri 

RENEE L. ELLMERS, North Carolina 

HENRY A. WAXMAN, California 

Ranking Member 

JOHN D. DINGELL, Michigan 

Chairman Emeritus 

EDWARD J. MARKEY, Massachusetts 

FRANK PALLONE, JR., New Jersey 

BOBBY L. RUSH, Illinois 

ANNA G. ESHOO, California 

ELIOT L. ENGEL, New York 

GENE GREEN, Texas 

DIANA DEGETTE, Colorado 

LOIS CAPPS, California 

MICHAEL F. DOYLE, Pennsylvania 

JANICE D. SCHAKOWSKY, Illinois 

JIM MATHESON, Utah 

G.K. BUTTERFIELD, North Carolina 

JOHN BARROW, Georgia 

DORIS O. MATSUI, California 

DONNA M. CHRISTENSEN, Virgin Islands 

KATHY CASTOR, Florida 

JOHN P. SARBANES, Maryland 

JERRY MCNERNEY, California 

BRUCE L. BRALEY, Iowa 

PETER WELCH, Vermont 

BEN RAY LUJAN, New Mexico 

PAUL TONKO, New York 

(III) 

SUBCOMMITTEE ON COMMUNICATIONS AND TECHNOLOGY

GREG WALDEN, Oregon 

Chairman 

ROBERT E. LATTA, Ohio 

Vice Chairman 

JOHN SHIMKUS, Illinois 

LEE TERRY, Nebraska 

MIKE ROGERS, Michigan 

MARSHA BLACKBURN, Tennessee 

STEVE SCALISE, Louisiana 

LEONARD LANCE, New Jersey 

BRETT GUTHRIE, Kentucky 

CORY GARDNER, Colorado 

MIKE POMPEO, Kansas 

ADAM KINZINGER, Illinois 

BILLY LONG, Missouri 

RENEE L. ELLMERS, North Carolina 

JOE BARTON, Texas 

FRED UPTON, Michigan, ex officio 

ANNA G. ESHOO, California 

Ranking Member 

EDWARD J. MARKEY, Massachusetts 

MICHAEL F. DOYLE, Pennsylvania 

DORIS O. MATSUI, California 

BRUCE L. BRALEY, Iowa 

PETER WELCH, Vermont 

BEN RAY LUJAN, New Mexico 

JOHN D. DINGELL, Michigan 

FRANK PALLONE, JR., NEW JERSEY

BOBBY L. RUSH, Illinois 

DIANA DEGETTE, Colorado 

JIM MATHESON, Utah 

G.K. BUTTERFIELD, North Carolina 

HENRY A. WAXMAN, California, ex officio 

(V) 

C O N T E N T S 

Page 

Hon. Greg Walden, a Representative in Congress from the State of Oregon, 

opening statement ................................................................................................ 1 

Prepared statement .......................................................................................... 3 

Hon. Robert E. Latta, a Representative in Congress from the State of Ohio, 

opening statement ................................................................................................ 3 

Hon. Doris O. Matsui, a Representative in Congress from the State of California, opening statement .................................................................................... 4 

Hon. Marsha Blackburn, a Representative in Congress from the State of 

Tennessee, opening statement ............................................................................ 6 

Hon. Henry A. Waxman, a Representative in Congress from the State of 

California, opening statement ............................................................................. 7 

Hon. Fred Upton, a Representative in Congress from the State of Michigan, 

prepared statement .............................................................................................. 175 

Hon. Leonard Lance, a Representative in Congress from the State of New 

Jersey, prepared statement ................................................................................. 175 

Hon. Anna G. Eshoo, a Representative in Congress from the State of California, prepared statement .................................................................................. 176 

WITNESSES

Robert Jarrin, Senior Director, Government Affairs, Qualcomm ........................ 9 

Prepared statement .......................................................................................... 12 

Bradley Merrill Thompson, General Counsel, mHealth Regulatory Coalition ... 56 

Prepared statement .......................................................................................... 58 

Ben Chodor, Chief Executive Officer, Happtique .................................................. 69 

Prepared statement .......................................................................................... 71 

Jonathan Spalter, Chairman, Mobile Future ........................................................ 104 

Prepared statement .......................................................................................... 106 

T. Forcht Dagi, MD, MPH, DmedSC, Partner, HLM Venture Partners ............. 123 

Prepared statement .......................................................................................... 126 

George Ford, Chief Economist, Phoenix Center for Advanced Legal and Economic Public Policy Studies ................................................................................ 132 

Prepared statement .......................................................................................... 134 

SUBMITTED MATERIAL

Report by the Center on Budget and Policy Priorities, March 11, 2013, submitted by Ms. Matsui ........................................................................................... 178 

Letter of March 18, 2013, from SDI Diagnostics to the subcommittee, submitted by Ms. Matsui ........................................................................................... 183 

Study entitled, ‘‘Diagnostic Inaccuracy of Smartphone Applications for Melanoma Detection,’’ JAMA Dermatology, January 16, 2013, submitted by Ms. 

Matsui ................................................................................................................... 185 

Letter of March 18, 2013, from CTIA—The Wireless Association to the subcommittee, submitted by Mr. Walden ................................................................ 189 

Letter of March 19, 2013, from Ideomed to the Committee, submitted by 

Mr. Walden ........................................................................................................... 191 

(1) 

HEALTH INFORMATION TECHNOLOGIES: 

HARNESSING WIRELESS INNOVATION 

TUESDAY, MARCH 19, 2013 

HOUSE OF REPRESENTATIVES, 

SUBCOMMITTEE ON COMMUNICATIONS AND TECHNOLOGY, 

COMMITTEE ON ENERGY AND COMMERCE, 

Washington, DC. 

The subcommittee met, pursuant to call, at 10:37 a.m., in room 

2123 of the Rayburn House Office Building, Hon. Greg Walden 

(chairman of the subcommittee) presiding. 

Present: Representatives Walden, Latta, Terry, Shimkus, Terry, 

Blackburn, Scalise, Lance, Guthrie, Gardner, Kinzinger, Long, 

Ellmers, Matsui, Luja ́n and Waxman (ex officio). 

Staff present: Ray Baum, Senior Policy Advisor/Director of Coalitions; Matt Bravo, Professional Staff Member; Andy Duberstein, 

Deputy Press Secretary; Neil Fried, Chief Counsel, Communications and Technology; Debbee Hancock, Press Secretary; Sydne 

Harwick, Staff Assistant; Brittany Havens, Staff Assistant; Sean 

Hayes, Counsel, Oversight and Investigations; Robert Horne, Professional Staff Member, Health; Andrew Powaleny, Deputy Press 

Secretary; David Redl, Counsel, Telecom; Charlotte Savercool, Executive Assistant, Legislative Clerk; Roger Sherman, Democratic 

Chief Counsel; Shawn Chang, Democratic Senior Counsel; Patrick 

Donovan, FCC Detailee; Margaret McCarthy; and Kara van 

Stralen, Democratic Special Assistant. 

OPENING STATEMENT OF HON. GREG WALDEN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF OREGON 

Mr. WALDEN. We are going to call to order the Subcommittee on 

Communications and Technology for our hearing on ‘‘Health Information Technology: Harnessing Wireless Innovation.’’ 

I want to welcome our witnesses and our participants in today’s 

hearing. It is not every day that the Subcommittee on Communications and Technology holds a hearing addressing FDA regulation, 

but the fact that we are having such a hearing is a testament to 

the breadth of innovation using wireless smartphones and tablets, 

and all that that is bringing to nearly every aspect of our lives. 

There are literally thousands of apps in the various smartphone 

and tablet app stores in the health and wellness categories, actually tens of thousands, everything from simple calorie counters to 

complex analytical tools. The more than 300 million wireless devices we depend on every day are revolutionizing health and 

wellness. 

2 

If I stopped here, this hearing could be about the success of 

bringing the innovation and investment of the wireless ecosystem 

to bear on the ever more costly health care system. And make no 

mistake about it, that could still be the outcome. But the specter 

of costly and time-consuming regulation, to say nothing of a 2.3 

percent excise tax, looms large over this industry. We have heard 

from investors, wireless device manufacturers, and application developers that are concerned about the uncertainty of a FDA regulatory regime, that may or may not apply to them, and the possibility of an additional excise tax that cuts into already thin margins. 

The collision of worlds in the mobile health, or mHealth, is a 

study in contrasts. The app economy is characterized by low barriers to entry, quick time to market, and the ability to adapt to 

quickly changing user needs. Medical devices, on the other hand, 

face a long and costly premarket approval process at the FDA. 

Now, we all want to make sure that patient safety is taken care 

of first, but why would we treat mobile applications the same as 

a dialysis machine? These are the kinds of questions we need to get 

answers to about where that sweet spot is and that fine. 

The answer may be that the wireless economy represents a 

tempting target for the 2.3 percent excise tax that the President’s 

health care law placed on medical devices. While the IRS and the 

FDA have provided some draft guidance on how they will apply the 

medical device definition and the medical device tax, their analysis 

is not a poster child of clarity and it leaves large parts of the economy wondering if they will be on the hook for what is essentially 

a tax on innovation, and we certainly are hearing that from our 

witnesses and others. 

The FCC and the Obama administration have both joined the 

wireless industry in trumpeting the virtuous cycle of innovation 

and investment in mobile technologies: investment in wireless networks and devices creates opportunities for app developers to create new and innovative uses for wireless services, which in turn 

spurs further investment in networks and devices. MHealth is part 

of this virtuous cycle that is driving faster speeds, lowering costs, 

spurring innovation and creating patient benefits. Given the interconnected nature, we should be aware that an impact on one segment of this industry has the potential to slow the entire cycle. 

The overbroad application of FDA regulation and the health care 

law’s medical device tax are not, as some have suggested, outside 

the realm of possibility. In a 2012 report by the Institute of Medicine, one expert author suggested that all health IT products 

should be treated as class III medical devices, which receive the 

highest level of regulatory scrutiny and therefore should be subject 

to the tax. Now, that is just one person’s opinion but it is in the 

prestigious Institute of Medicine report. 

Luckily, while these are not hypothetical concerns, they are also 

by no means foregone conclusions, which is why we are having a 

hearing today. Wireless has and can continue to be a system that 

brings the mobile revolution to our Nation’s health and wellness 

sector, but we must ensure that as we bring the innovation of the 

wireless economy to health and wellness that we not place unnecesVerDate Nov 24 2008 15:24 Feb 26, 2014 Jkt 037690 PO 00000 Frm 00008 Fmt 6633 Sfmt 6633 F:\MY DOCS\HEARINGS 113\113-20 CHRIS
3 

sary hurdles in the way of the developers and investors that are 

fueling mHealth. 

[The prepared statement of Mr. Walden follows:] 

PREPARED STATEMENT OF HON. GREG WALDEN

It’s not every day that the Subcommittee on Communications and Technology 

holds a hearing addressing FDA regulation. The fact that we are having such a 

hearing is a testament to the breadth of innovative uses wireless smartphones and 

tablets are bringing to nearly every aspect of our lives. There are literally thousands 

of apps in the various smartphone and tablet app stores in the health and wellness 

categories—everything from simple calorie counters to complex analytical tools. The 

more than 300 million wireless devices we depend on every day are revolutionizing 

health and wellness. 

If I stopped here, this hearing could be about the success of bringing the innovation and investment of the wireless ecosystem to bear on the ever more costly health 

care system. And make no mistake, that could still be the outcome. But the specter 

of costly and time-consuming regulation—to say nothing of a 2.3 percent excise 

tax—looms large over this industry. Investors, wireless device manufacturers and 

application developers all face the uncertainty of an FDA regulatory regime that 

may or may not apply to them and the possibility of an additional excise tax that 

cuts into already thin margins. 

The collision of worlds in the mobile health—or mHealth—market is a study in 

contrasts. The app economy is characterized by low barriers to entry, quick time to 

market, and the ability to adapt to quickly changing user needs. Medical devices, 

on the other hand, face a long and costly pre-market approval process at the FDA. 

We all want to ensure patient safety, but why would we treat mobile applications 

the same as a dialysis machine? 

The answer may be that the wireless economy represents a tempting target for 

the 2.3 percent excise tax that the president’s health care law placed on medical devices. While the IRS and the FDA have provided some draft guidance on how they 

will apply the medical device definition and the medical device tax, their analysis 

is not a poster child of clarity and leaves large parts of the economy wondering if 

they will be on the hook for what is essentially a tax on innovation. 

The FCC and the Obama administration have both joined the wireless industry 

in trumpeting the ‘‘virtuous cycle’’ of innovation and investment in mobile technologies: investment in wireless networks and devices creates opportunities for app 

developers to create new and innovative uses for wireless services, which in turn 

spurs further investment in networks and devices. mHealth is part of this virtuous 

cycle that is driving faster speeds, lowering costs, spurring innovation and creating 

patient benefits. Given their interconnected nature, we should be aware that an impact on one segment has the potential to slow the entire cycle. 

The overbroad application of FDA regulation and the Obamacare medical device 

tax are not, as some have suggested, outside the realm of possibility. In a 2012 report by the Institute of Medicine, one expert author suggested that all health IT 

products should be treated as Class III medical devices, which receive the highest 

level of regulatory scrutiny and could be subject to the tax. 

Luckily, while these are not hypothetical concerns, they are also by no means 

foregone conclusions. Wireless has and can continue to bring the mobile revolution 

to our nation’s health and wellness sector. But we must ensure that as we bring 

the innovation of the wireless economy to health and wellness that we not place unnecessary hurdles in the way of the developers and investors that are fueling 

mHealth. 

# # # 

Mr. WALDEN. So I want to thank our witnesses for being here, 

and I would now recognize the vice chair of the subcommittee, Mr. 

Latta. 

OPENING STATEMENT OF HON. ROBERT E. LATTA, A 

REPRESENTATIVE IN CONGRESS FROM THE STATE OF OHIO 

Mr. LATTA. I thank the chairman for yielding, and I also thank 

our distinguished panel for testifying today. 

4 

The mobile application industry is a modern American economic 

success story. Just this year alone, mobile apps were projected to 

be a $25 billion industry. No one, at least no one in Washington, 

could have predicted the incredible growth and the extraordinary 

uses for these apps, particularly in the mobile health world. The 

health and wellness opportunities for mobile apps have great potential for our health care delivery system. 

I am concerned that the regulatory uncertainty coming from the 

FDA will discourage innovation and investment in mobile apps and 

that Americans will lose out on potentially lifesaving technology. 

This climate of regulatory uncertainty could also have adverse effects on the overall wireless ecosystem, which continues to drive 

economic growth in this country. Furthermore, I believe the medical device tax will be extremely detrimental to our economy. The 

potential application of the medical device tax to mobile apps will 

only further deter investment and development in the industry. 

Mr. Chairman, I look forward to our testimony today and our 

witnesses, and I yield back. 

Mr. WALDEN. I thank the gentleman for his comments. We now 

recognize the ranking member of the subcommittee today, Ms. Matsui of California. 

OPENING STATEMENT OF HON. DORIS O. MATSUI, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA 

Ms. MATSUI. Thank you, Mr. Chairman, and I would like to 

thank the witnesses for being here today. 

Technology is changing health care as we know it. A smart spectrum policy that is driving wireless revolution is also transforming 

our health care sector. We are seeing the benefits of health care 

providers utilizing WiFi and high-quality, unlicensed spectrum to 

spur the development of next-generation patient care monitoring 

applications that could transmit patients’ vital health data to their 

doctor or hospital. Whether it is monitoring diabetes, glucose levels, 

tracking blood pressure or providing real-time hydration levels, the 

list goes on and on. 

We are seeing cloud technologies transforming health IT through 

the creation of select community health clouds forming in regions 

across the country, enabling hospitals to better treat patients while 

ensuring HIPAA-compliant transfers of secure medical information. 

It will only become more important as the mobile app economy continues to drive consumer demand for smartphones and tablets. 

The fact is, the ever-evolving app economy is helping to transform the health care sector, integrating science, medicine and technology to provide individuals with real-time access to vital health 

information, much of which was previously unavailable outside of 

a hospital or a doctor’s office. House calls are becoming a thing of 

the past. Virtual checkups are becoming the new digital-age house 

call. Doctors are using iPads to issue prescriptions and diagnose 

patients. Smartphones are creating new paths of virtual interactions between doctors and patients. Texting your doctor has become a more common practice as more Americans, particularly 

young people, are finding greater comfort and accessibility in communicating electronically with their doctors. 

5 

The Affordable Care Act also has allowed the health care industry to become more innovative using technology. I believe we will 

see a growing ecosystem of health IT innovation now that the Affordable Care Act is here to stay. 

My home State of California has been a pioneer in ACA implementation. Our exchange, Covered California, has already begun 

using mobile devices to launch online features so consumers can estimate their monthly premiums and compare health care options. 

Physicians and hospitals in my district of Sacramento are using the 

exchange to improve their health IT capabilities. For example, the 

Live Health Online Initiative already permits doctors to care for 

patients through a secure online visit using laptop Web cams and 

ultimately through video-enabled tablets and smartphones regardless of where the doctor and patient are located. 

With more than 50 million additional Americans expected to obtain health insurance this year due to the law, an efficient and effective health IT network is even more imperative. In order to realize the full potential of innovative health technologies, the regulatory environment must keep pace with rapidly changing technology. 

In 2011, the FDA released draft guidance to provide rules of the 

road for medical app developers clarifying which medical apps 

would require its attention and which would not. I believe the draft 

guidance attempts to strike the appropriate balance between enabling innovative medical apps and ensuring patient safety, and I 

urge the agency to move forward expeditiously. Now, moving forward, I believe the FDA must be mindful of the fact that technology continues to evolve at a rapid pace and the need for them 

to provide clarity to the marketplace. 

Another way to foster greater innovation in the health sector is 

through creating a workable federal definition for telehealth services. I am developing legislation to do just that. I believe having 

certainty here would spur innovation and research in the private 

sector and in programs like Medicare. We must continue to chart 

a technology-friendly course that promotes better patient care for 

all Americans. 

And Mr. Chairman, I would like to ask unanimous consent to 

enter into the record the following three items: a report from the 

Center on Budget and Policy Priorities on the medical device excise 

tax, a letter from SDI Diagnostics, a small medical device manufacturer, regarding FDA regulatory oversight of the medical device 

market, a study published in the peer-review journal, JAMA Dermatology, identifying risks and depending on smartphone apps for 

diagnosis. 

Mr. WALDEN. Without objection. 

[The information appears at the conclusion of the hearing.] 

Ms. MATSUI. Thank you. And I look forward to working with my 

colleagues to continue to promote health IT. I look forward to hearing from our witnesses today. Thank you. I yield back. 

Mr. WALDEN. The gentlelady yields back the balance of her time. 

The Chair now recognizes the gentlewoman from Tennessee, Ms. 

Blackburn, for 5 minutes. 

6 

OPENING STATEMENT OF HON. MARSHA BLACKBURN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF TENNESSEE 

Mrs. BLACKBURN. Thank you, Mr. Chairman, and I want to 

thank our witnesses for being here today. We are deeply appreciative that you all are here, and we are appreciative of what you 

are doing in the industry and in this space in which you are working. 

You know, I was stunned in doing some work on this and talking 

with some of the innovators in Nashville. Five hundred thousand 

jobs are attributed to your sector, and you are one of the few areas 

where there has actually been some job growth since the misery 

that was there in 2008 and 2009 and when you look at mHealth, 

you are talking about a $27 billion industry within the next couple 

of years, so we thank you for this. Not only is it productive and not 

only is there opportunity to profit from your innovations, there is 

the opportunity to encourage R&D and to provide better outcomes 

and better wellness and maintenance of effort in health to expand 

the use of telemedicine and mobile health. So hearing from you 

where you think we need to travel with this is going to be helpful 

and it is going to be instructive as we look at this entire space for 

health care informatics and the opportunities that exist there. 

I think that we are all concerned about what would help with the 

medical device tax being applied to this. Of course, it is muddy as 

muddy water when you are trying to figure out where the FDA is 

actually looking to go. I know there are about 300,000 apps that 

are available, or 50,000 apps, I think it is, and 300,000 downloads, 

that are through the Apple app store. So people like the convenience of this, and we want to do what we can to make certain that 

it remains accessible and affordable and is not levied with a tax 

that is going to end up being a hindrance. 

So we appreciate your ability to make way for us in your schedules to be here, and Mr. Chairman, I yield back. 

Mr. SHIMKUS. Would the gentlelady yield? 

Mrs. BLACKBURN. Yes. 

Mr. SHIMKUS. Thank you. I would just like to weigh in. 

The medical device tax is a very pernicious tax by itself. One of 

the problems I have is the gross nature, taxing just gross versus 

obviously net after costs and expenses. I mean, where else but in 

Washington can you dream up such a bad tax provision? But as 

was stated earlier by my colleagues, what is critical for you all in 

your testimony today is to help us sort through your concerns, your 

risks, your level of being able to capitalize or not, and then where 

is this line? I mean, it is very vague, and so when there is uncertainty, there is higher risk. When there is higher risk, there is 

more cost of capital and it could be damaging to any business 

model that you would address. 

So we really appreciate you being here. We are probably going 

to ask some pretty specific questions, especially for those of you 

who are in that space innovating and creating jobs. We thank you 

for coming. 

And with that, I yield back to my colleague. 

7 

Mrs. BLACKBURN. I thank the gentleman for yielding back. Did 

Mr. Lance, one of my other colleagues, want any of the remaining 

time? OK. Mr. Chairman, I yield back. 

Mr. WALDEN. The gentlelady yields back. The Chair now recognizes the former chairman of the committee, the gentleman from 

California, Mr. Waxman. 

OPENING STATEMENT OF HON. HENRY A. WAXMAN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA 

Mr. WAXMAN. Thank you, Mr. Chairman. 

This is a hearing to look at mobile medical applications, and this 

is the first of three hearings on this subject this week. The highspeed wireless broadband access is creating new opportunities in 

consumer services in nearly every segment of our economy including health care. Mobile medical applications hold incredible promise for patients and health care providers, potentially reducing 

costs, improving health care delivery and saving lives. That is why 

we made a significant investment in medical communications, because this is a really important area. We all want to see this exciting innovation continue. 

At the same time, we have to be cognizant of the need to protect 

patient safety. That is why the Food and Drug Administration has 

released a draft guidance regarding mobile medical applications. So 

their guidance says if it is a dietary tracking app or a reminder 

service for medical appointments, they certainly don’t need FDA 

approval for that. But an app that purports to diagnose cancer? 

Well there ought to be some review and have regulatory scrutiny. 

Let me give an example. A group of dermatologists recently published a study of four apps that claim to be able to diagnose melanomas. Well, the dermatologists found that three of the four incorrectly classified 30 percent or more of melanomas as benign when 

they were actually malignant. Well, we can’t tell the American people buyer beware when potentially life-and-death care decisions are 

at stake. 

My Republican colleagues say that FDA is hoping to subject 

smartphones and tablets to the medical device tax. Well, that 

doesn’t really hold up to scrutiny. I think they have their facts 

wrong. Allegations that ordinary smartphones and tablets could be 

subject to added red tape or new taxes under Obamacare are absolute myths. In fact, FDA’s draft guidance specifically states that 

the agency does not intend to regulate distributors of mobile medical apps like the iTunes store or the makers of smartphones or 

tablets like Apple. Smartphones and tablets are not listed with 

FDA as medical devices, so they are completely outside the scope 

of the medical device tax. 

Furthermore, it is my understanding that most mobile medical 

apps would also be exempt from the medical device tax because of 

the IRS ‘‘retail exemption.’’ This provision says that devices are exempt from the tax if they are regularly available for purchase and 

use by ordinary consumers, including over the Internet, and if they 

are not primarily intended for use in a medical institution or by a 

medical professional. 

8 

To go back to the case of the dermatologists, those apps would 

not be subject to the medical device tax, but they would be subject 

to FDA scrutiny to be sure that the patients are not being harmed. 

There are legitimate concerns that we ought to examine, instead 

of using today’s hearing to invent new fallacies to attack the Affordable Care Act. We have already had a number of hearings this 

year on a tax on Obamacare. Well, my Republican colleagues didn’t 

like it. They all voted against it. They hoped that the Supreme 

Court would have thrown it out. The Supreme Court upheld it. 

They hoped the election would replace the President so they could 

have repealed it. The electorate voted for President Obama. This 

is all going to go into effect at the end of this year and it will be 

fully in place by January of 2014. We have already seen a lot of 

improvements in health care by virtue of the Affordable Care Act. 

The Affordable Care Act is going to serve a very important purpose. It is not going to require mobile apps to be regulated or to 

be taxed. FDA released the draft guidance for mobile medical apps, 

and we should commend them for this action. Both industry and 

consumers would benefit from the clarity of final guidance. I hope 

that FDA is working expeditiously toward that goal. 

You have to make distinctions. You don’t blur it all to serve the 

political point of view to attack the Affordable Care Act. We have 

got to look at the law, draw the distinctions, and make sure that 

the public is protected while innovation is still encouraged. And I 

think that we are looking to a lot of very important innovation and 

we want to see that come into action. 

Thank you, Mr. Chairman. Yield back. 

Mr. WALDEN. The gentleman yields back the balance of his time. 

The Chair would ask unanimous consent to enter into the record 

a letter from the CTIA CEO and former Representative Steve 

Largent, raising concerns of the wireless industry, and a letter 

from Keith Brophy, CEO of Ideomed from Grand Rapids, Michigan. 

It is a medical app device developer, and also has concerns about 

the uncertainty, which is why we are having this hearing today. 

Without objection. 

[The information appears at the conclusion of the hearing.] 

Mr. WAXMAN. Mr. Chairman, I certainly have no objections. I 

just wanted to point out to the witnesses that there is another 

hearing going on so I will be back and forth, and I apologize for 

not being here. 

Mr. WALDEN. No problem. Feel free to take the full time in the 

other hearing if you like. No, I am just—we actually have a little 

fun together here, so it is fine. Thank you. And we have got other 

members that are going to be coming and going. It is a good reminder, because there is an Energy and Power Subcommittee meeting as well. 

So with that, we welcome our witnesses, and I know Dr. Dagi’s 

plane was a little delayed getting out of Boston, apparently a little 

snow up there, but he has arrived, and he will be joining us momentarily, but we will go ahead, and again, we thank you all for 

being here. I have read through your testimony. It is most helpful 

in our efforts to shine some light on this issue. 

So we are going to start with Mr. Robert Jarrin, Senior Director 

of Government Affairs for Qualcomm. Mr. Jarrin, we are delighted 

9 

to have you here this morning and look forward to your testimony, 

sir. 

STATEMENTS OF ROBERT JARRIN, SENIOR DIRECTOR, GOVERNMENT AFFAIRS, QUALCOMM; BRADLEY MERRILL 

THOMPSON, GENERAL COUNSEL, MHEALTH REGULATORY 

COALITION; BEN CHODOR, CHIEF EXECUTIVE OFFICER, 

HAPPTIQUE; JONATHAN SPALTER, CHAIRMAN, MOBILE FUTURE; T. FORCHT DAGI, MD, MPH, DMEDSC, PARTNER, HLM 

VENTURE PARTNERS; AND DR. GEORGE FORD, CHIEF ECONOMIST, PHOENIX CENTER FOR ADVANCED LEGAL AND ECONOMIC PUBLIC POLICY STUDIES 

STATEMENT OF ROBERT JARRIN 

Mr. JARRIN. Thank you. Good morning, Chairman Walden, Ranking Member Matsui, and members of the subcommittee. First and 

foremost, I would like to thank you for having me participate as 

a witness in today’s hearing. I have worked in various capacities 

over the span of two decades, at times preparing others to sit before you. Today, I am truly honored to be the one sitting here. 

I will begin by starting with mobile technology. It is the largest 

platform in the history of mankind. The population of the world is 

approximately 7 billion people, and there are nearly 6.6 billion mobile connections. In the United States alone, there are 323 million 

mobile subscriptions for a population of 315 million people. 

Consumer research suggests that two-thirds of people sleep with 

their mobile device next to them, and one-third interact with their 

device before they even get out of bed. Those with a mobile phone 

tend to check it about 150 times per day, roughly about once every 

61⁄2 minutes. 

Mobile devices are powerful and sophisticated. Today, a typical 

smartphone has more computing power than Apollo XI did when it 

landed on the moon. Computing devices are now built around mobile experiences with always-on connectivity, location awareness, 

augmented reality and powerful processing. Soon there will come 

a day when virtually everyone and everything in our world will be 

connected through a ubiquitous wireless technology. 

Let me also share some startling statistics of a different nature 

yet related, chronic disease in America. According to the CDC, 

about out of every two adults in the United States has at least one 

chronic illness. Seven out of 10 deaths among Americans are due 

to chronic disease. Obesity, for example, affects one in three adults 

as well as one in three children who are either overweight or obese. 

Although chronic diseases are among the most common, they are 

also the costliest of all health problems. The CDC states they are 

also among the most preventable. 

This presents an interesting opportunity. Many Americans are 

sick yet more have access to a personal, powerful, mobile computing device. Hence, it was only a matter of time before the health 

care technology innovators would take notice of the potential to 

personalize a mobile platform and facilitate the delivery of affordable health care. Nowhere is this growth more obvious than in the 

mobile health applications landscape. Quite simply, the growth of 

mobile health apps has skyrocketed. Approximately 27,000 unique 

10 

health apps are available. Over 7,000 health apps are specifically 

intended for use by students and health care professionals. Five 

hundred new mobile health apps launch every month. Interestingly, however, a survey conducted by MobiHealthNews shows that 

to date, FDA has only cleared fewer than 80 mobile medical apps 

through its 510(k) process. They further estimate that as little as 

5 percent of all health-related apps could potentially be considered 

medical, and possibly subject to FDA regulation. 

On July 21, 2011, the FDA issued a draft guidance on mobile 

medical applications. The agency went on to receive more than 700 

pages of comments from over 100 interested stakeholders. They 

also held a 2-day workshop and engaged the public at large in 

briefings and events. FDA officials have expressed their views that 

the final MMA guidance would be deregulatory. In fact, it would 

delineate how the agency would exercise enforcement discretion to 

not proactively regulate many low-level-risk mobile medical apps. 

However, it is now March 19, 2013, and unfortunately, FDA has 

yet to release a final MMA guidance document. Qualcomm and others are concerned that the failure to release final guidance has created uncertainty among countless budding entrepreneurs and large 

corporations that fear the prospect of facing FDA regulation. 

Qualcomm offers the following recommendations for consideration. 

First, FDA should promptly finalize the MMA draft guidance 

document. Second, the final guidance should offer specific examples 

of low-risk regulated mobile medical devices that FDA, through enforcement discretion, would not regulate. Third, there should be 

clarity on intended use in light of ambiguous and general health 

claims and terms. Fourth, for apps that do not warrant listing as 

low-risk class I medical devices—rather, that do warrant listing as 

low-risk class I medical devices, the agency should consider how it 

will assess exemption from Good Manufacturing Practices. Fifth, 

accessories should be classified according to their individual level 

of risk and not according to the device with the highest classification level. Sixth, FDA should continue its commitment to consistency, predictability and transparency by coordinating internal and 

external efforts through a single dedicated office within FDA the 

agency. Seventh and lastly, the agency would benefit to utilize external facing resources such as CDRH Learn, Device Advice and 

the Division of Small Manufacturers, International and Consumer 

Assistance to work with app developers and their communities. 

FDA has a proven and successful policy, regulatory, and legal 

framework, that has been formed from over 100 years of innovation, science and learning, a framework that puts the patient first 

and ensures the safety and effectiveness of all health and medical 

products in the U.S. marketplace. We recommend that FDA be 

given the fullest support it needs to continue doing its fine work 

while allowing innovation to drive the U.S. healthcare system. 

In closing, I would like to say a few words about Qualcomm. 

Qualcomm, Inc., is the leading supplier of wireless chips, having 

shipped worldwide well over 11 billion chips to date. Qualcomm is 

the leading developer of 3G, 4G and other next-generation wireless 

technologies. In addition, Qualcomm has a wholly owned medical 

device subsidiary focused on producing medical device data systems. We are committed to the health care space through various 

11 

public and private efforts as further described in my written testimony and on Qualcomm’s Web site. 

Thank you, and I look forward to answering your questions. 

[The prepared statement of Mr. Jarrin follows:] 

12 


80805.001

Statement of 

Robert Jarrin 

Senior Director, Government Affairs 

Qualcomm Incorporated 

Before the 

u.S. House of Representatives 

Energy and Commerce Committee 

Subcommittee on Communications & Technology 

Hearing on "Health Information Technologies: Harnessing Wireless Innovation" 

March 19,2013 
13 


80805.002

2 

Summary 

Mobile technology is the largest platform in history. Mobile touches every aspect of our society 

and is at the center of our lives. Mobile devices are powerful and sophisticated - a typical 

smartphone has more computing power than Apollo 11 did when it landed on the moon. Soon, 

there will come a day when virtually everyone and everything in our world will be connected 

through ubiquitous wireless technologies. 

Startling statistics on a different, but related topic are those of chronic disease: About one out of 

every two adults in the U.S. has at least one chronic illness and seven out often deaths among 

Americans are due to chronic disease. This presents an interesting opportunity: Many 

Americans are sick, yet even more have access to a personal, powerful, mobile computing 

device. 

Hence it was only a matter of time before healthcare technology innovators would take notice of 

the potential to personalize and take advantage of the mobile platform to facilitate and improve 

the delivery of affordable healthcare. Nowhere is this growth more obvious than in the mobile 

health applications landscape, which has, quite simply, skyrocketed. 

On July 21,2011, the FDA issued a Draft Guidance on Mobile Medical Applications eMMA). 

Officials from FDA have since expressed their views that the final MMA guidance document 

would be de-regulatory. It is now March 19,2013, and unfortunately FDA has yet to release a 

final MMA guidance document. 

Although FDA has a proven and successful policy, regulatory and legal framework, Qualcomm 

and others are concerned that the failure to release final MMA guidance has created uncertainty 

among countless budding entrepreneurs and large corporations that fear the prospect of facing 

FDA regulation. 

Qualcomm offers tbe following recommendations for consideration: 

1. FDA should promptly finalize the MMA draft guidance document. 

2. The final MMA guidance should offer specific examples of low-risk, regulated mobile 

medical devices that FDA, through enforcement discretion, would not regulate. 

3. There should be clarity on "Intended Use" in light of ambiguous and general health 

claims and terms that are popularly used by the health IT industries. 

4. For those apps that warrant listing as low-risk Class I devices, the Agency should 

consider how it will assess exemption from Good Manufacturing Practices (GMP). 

5. Accessories should be classified according to their individual level of risk and not 

according to the device with the highest classification level. 

6. FDA should continue its commitment to consistency, predictability and transparency by 

coordinating internal and external efforts through a single dedicated office of mobile 

health within FDA. 

7. The agency would benefit to utilize external facing resources such "CDRH Learn", 

"Device Advice" and the Division of Small Manufacturers, International and Consumer 

Assistance (DSMICA) to work with app developers and their communities. 
14 


80805.003

3 

Good morning, Chairman Walden, Ranking Member Eshoo, and Members of the Subcommittee. 

It is an honor for me to testifY. 

Mobile technology is the largest platform in history. The population of the world is 

approximately 7 billion people, and there are nearly 6.6 billion mobile connections - 3.2 billion 

of which are unique users.' In the United States alone, there are 323 million mobile 

subscriptions for a population of 315.5 million. 

Mobile touches every aspect of our society and is at the center of our lives. Whether for reasons 

of health, safety, education, commerce, art, entertainment or sports, at any given moment, all 

around the world, billions of people are utilizing a mobile device to enrich their lives. Those 

with a mobile phone tend to check it about 150 times per day - an average of once every sixand-a-half minutes.' Consumer research suggests that two-thirds of people sleep with their 

mobile device next to their bed, and more than one-third of U.S. smartphone users interact with 

their device before they even get out of bed.' 

Mobile devices are powerful and sophisticated. A typical smartphone has more computing 

power than Apollo 11 did when it landed on the moon: Mobile devices have changed how 

people access the Internet, making it also the most pervasive platform for computing. Today's 

I See Wireless Intelligence, (Jan. 2013); see also U.S. Census Bureau Population Clock 

http://www.census.gov/maini\\.ww/popclock.html. 

2 See Tomi T. Ahonen Research, (Feb. 2011). 

, See From Apps To EvelJ,day Situations, An Ericsson Consumer InSight Summary, Ericsson.com 

http://www.cricsson.comires/docsI20IJlsilicon vallev brochure letter.pdf, (Consumers were found to check, first 

thing each morning, apps for social networking, news, weather, and classified ads sites); see also 66% of all 

respondents sleep with their mobile device right next to their bed, TIME Mobility Poll, in cooperation with 

Qualcomm, (Aug. 2012). 

4 See Id. 
15 


80805.004

4 

computing devices are built around mobile experiences, with a focus of always-on connectivity, 

location awareness, augmented reality and powerful processing. Soon, there will come a day 

when virtually everyone and everything in our world will be connected through ubiquitous 

wireless technologies. 

Let me also share some startling statistics on a different, but related topic - chronic disease in 

America. According to the Centers for Disease Control, about one out of every two adults in the 

U.S. has at least one chronic illness.' Seven out often deaths among Americans are due to 

chronic disease.' Obesity alone affects one in three adults, and one in three children are either 

overweight or obese.' Although chronic diseases are among the most common and costly health 

problems, the CDC states they are among the most preventable. 

This presents an interesting opportunity: Many Americans are sick, yet even more have access 

to a personal, powerful, mobile computing device. Hence it was only a matter of time before 

healthcare technology innovators would take notice of the potential to personalize and take 

advantage of the mobile platform to facilitate and improve the delivery of affordable healthcare. 

From the smartphones used by care providers to communicate with patients, to the field laptops 

utilized by emergency management technicians, to devices like tablet computers that enable 

doctors to download diagnostic data or remotely monitor patients, mobile devices and ubiquitous 

, See Chronic Diseases are the Leading Causes of Death and Disability in the U.S., 

http://www.cdc.gov/chronicdisease/overview/indcx.htm. (Mar. 2013). 

6 See Id 

, See Id, see also Obesity by the Numbers, http://www.lctsmove.govlleam-facts/epidemic-childhood-obesitv, (Mar. 

2013). 
16 


80805.005

5 

high-speed 30 and 40 wireless broadband data networks are at the heart of the growing mHealth 

reality. 

Nowhere is this growth more obvious than in the mobile health applications landscape. The 

development and availability of mobile health apps has, quite simply, skyrocketed. 

Approximately 27,000 unique health apps are available for consumers and healthcare 

professionals.' About 500 new mobile health apps launch every month, which is up from about 

400 health apps that launched every month this time last year. Q Over 7,000 apps are specifically 

intended for use by medical students, physicians, nurses, clinicians and other healthcare 

professionals. 10 The availability of so many mobile health apps begs the question: "Which ones 

should be regulated as mobile medical devices?" 

A survey conducted by Mobihealthnews shows that the Food and Drug Administration (FDA) 

has cleared fewer than 80 mobile medical apps through its 51 O(k) process to date, although they 

estimate that as many as 5 percent of all health-related apps could potentially be considered of a 

medical nature and, therefore, may be subject to FDA regulation as medical devices. Whether a 

mobile health app is a medical device or not depends heavily on the "intended use" or public 

marketing claims of each individual mobile health app - a topic of intense debate among 

developers, lawyers and industry watchers. This ambiguous area has led to confusion, 

apprehension and, in some cases, reluctance by mobile health app developers to enter the market 

for fear of regulation. 

8 See Mobihealthnews, http://mobihealthnews.com/, (Mar. 2013) 

9 See Id 

10 See Id 
17 


80805.006

6 

On July 21,2011, the FDA issued Draft Guidance for Industry and Food and Drug 

Administration Staff on Mobile Medical Applications (MMA).', This document signaled an 

important and encouraging first step notifying the public and all interested stakeholders that FDA 

would firm up and share its "current thinking" on what constitutes a mobile medical app or 

"device" under section 201(h) of the Food, Drug and Cosmetic Act (FD&C). The issuance of 

this draft guidance started a 90-day comment period during which FDA accepted more than 700 

hundred pages of comments from over 100 organizations and interested parties. 

Qualcomm submitted comments for the record, a copy of which is appended to this Statement. 

As we stated in our comments to FDA in October of2011, "Although the Draft Guidance states 

that FDA intends to apply its regulatory requirements solely to a subset of mobile apps that meet 

the definition of a medical device, enough questions and issues linger that we encourage the 

Agency to address the entire range of mobile apps to remove any uncertainty as it finalizes the 

mobile medical apps guidance document." 

FDA continued to demonstrate its leadership when, in September 2011, the Agency hosted a 

two-day workshop where it brought together experts and innovators from around the country to 

further discuss the MMA draft guidance. FDA used the opportunity to also discuss accessories 

in a mobile medical context and standalone software that provide clinical decision support. 

In addition, FDA officials continued to actively engage the public on this important matter 

throughout the spring and summer of2012 by speaking at various meetings and conferences to 

11 See Department of Health Human Services, Food and Drug Administration, Draft Guidance for Industry and Food 

and Drug Administration Staff - Mobile Medical Applications, 

http://www.fda.gov/medicaldcviccs/dcviceregulationandguidance/guidancedocuments/ucm263280.htm. (Jul. 2011). 
18 


80805.007

7 

discuss the development of the MMA draft guidance. These efforts taken individually and 

collectively were extremely useful and demonstrated the Agency's commitment to outreach and 

transparency. 

On May 18, 2012, at a public briefing, officials from FDA expressed their views that the final 

MMA guidance document would be de-regulatory because it would, in effect, delineate how the 

Agency would exercise enforcement discretion not to regulate many low level risk mobile 

medical apps - that is, apps with a medical purpose that should be regulated according to FDA 

regulations but involve such low-risk of harm that they do not merit agency oversight. " 

Examples given of low-risk apps that would not merit FDA oversight included: Educational 

tools (apps that provide a list of questions to ask medical professionals), medication reminders 

for therapy adherence, IV drug dose calculators (e.g., for calculating drip rates), body mass index 

(BMI) calculators, drug-drug interaction formulae, diabetes management guides (e.g., nutritional 

guides or pre-diabetes risk assessments), and substance abuse behavior guides. 

The officials also stated that FDA would create a website to post generic examples of mobile 

medical apps that will not be regulated, in addition to serving as a forum to discuss broader 

policy development issues related to mobile health. These comments were met with approval by 

large segments of the industry. In fact, Qualcomm and its industry partners found them 

extremely promising. 

12 See AP-Daybook-Fri-General (Two takes), http://www.krg ... com/news/ap-daybook-fri-general-two-takes-, (May 

2012); see also Capitol Hill Discussion on the Regulatory Future for Mobile Medical Apps, 

http://www .himss.org/NewslNewsDetaiJ.aspx?ltcmNumber=3224, (May 2012). 
19 


80805.008

8 

It is now March 19,2013, and unfortunately FDA has yet to release a final MMA guidance 

document. Qualcomm and others are concerned that the failure to do so has created uncertainty 

about whether to produce richer mobile health apps by countless garage entrepreneurs and large 

corporations that fear the prospect offacing FDA regulation. Right now, mobile health app 

developers are left guessing about whether FDA regulatory obligations will impact their products 

or not. Indeed, comments such as those I describe by FDA officials would suggest that many 

low-risk apps would not need to pursue listing as a regulated medical device with FDA. 

This would change tomorrow if FDA were to release final guidance along the lines discussed 

above. FDA has a long history of exercising enforcement discretion on products or aspects of 

products it detennines do not warrant regulation. In clarifying its position on certain types of 

low-risk devices, the Agency would go far to ensure predictability, consistency and transparency. 
20 


80805.009

Qualcomm offers the following recommendations for consideration: 

I. FDA should promptly finalize the MMA draft guidance document. 

2. The final MMA guidance should offer specific examples of low-risk regulated mobile 

medical devices that FDA, through enforcement discretion, would not regulate. 

3. There should be clarity on "Intended Use" in light of ambiguous and general health 

claims and terms that are popularly used by the health IT industries. 

4. For those apps that warrant listing as low-risk Class I devices, the Agency should 

consider how it will assess exemption from Good Manufacturing Practices (GMP). 

5. Accessories should be classified according to their individual level of risk and not 

according to the device with the highest classification level. 

6. FDA should continue its commitment to consistency, predictability and transparency by 

coordinating internal and external efforts through a single dedicated office of mobile 

health within FDA. 

7. The agency would benefit to utilize external facing resources such "CDRH Learn", 

"Device Advice" and the Division of Small Manufacturers, International and Consumer 

Assistance (DSMICA) to work with app developers and their communities. 

FDA has a proven and successful policy, regulatory and legal framework that's been formed 

from over 100 years of innovation, science and learning-a framework that puts the patient first 

and ensures the safety and effectiveness of all products in the U.S. market related to health and 

medicine. We recommend that FDA be given the fullest support it needs to continue doing its 

fine work while allowing innovation to drive the US healthcare system. 

9 
21 


80805.010

10 

Qualcomm believes that improving healthcare delivery in America should be a national priority 

of highest order, which can be achieved in large part through the use of mobile broadband 

technologies. Qualcomm looks forward to working with Congress, the FDA and other public 

and private stakeholders to ensure that health IT, devices, services, and applications are utilized 

as extensively as possible to improve the delivery of healthcare in the U.S. 

Thank you, and I look forward to answering your questions. 
22 


80805.011

II 

About Qualcomm 

Qualcomm Incorporated is the number one global supplier of wireless chips, and the leading 

inventor of wireless technologies. To date, Qualcomm has shipped over II billion chips. 

Qualcomm is a world leader in 30, 40 and next-generation wireless technologies. If a person is 

using a 30 or 40 device today, Qualcomm's technology and ingenuity is being used. 

Qualcomm Life (QCL), a wholly-owned subsidiary ofQualcomm Incorporated, is a medical 

device manufacturer focused on producing medical device data systems. QCL has developed the 

2netTM Hub and 2netTM Platform. The 2net Hub, connects medical devices to the 2net Platform's 

data center and is a compact "plug-and-play" mobile broadband gateway that supports Bluetooth, 

Bluetooth Low Energy, Wi-Fi, and ANT + local area radio protocols. The 2netTM Platform 

reliably captures and delivers medical device data to integrated portals or databases. 

The Qualcomm Life Fund was established in 201 1 with the amount of$100 million of funding 

with the goal of accelerating global wireless health services and technology adoption. The 

Qualcomm Life Fund specifically focuses on investing in venture-backed wireless health startups that will help accelerate the 2netTM Platform commercialization. 

The Qualcomm Foundation, which Qualcomm established in 2010, is dedicated to developing 

and strengthening communities worldwide. Specifically, the Qualcomm Foundation focuses it 

philanthropic efforts on helping create and sustain educated, healthy, culturally vibrant 

communities in regions around the globe. As sponsor of the Qualcomm Tricorder X PRIZE 
23 


80805.012

competition, the Qualcomm Foundation is proud to support the discovery of innovative mobile 

solutions that will contribute to the advancement of health care and diagnostics. 

12 

Qualcomm's Wireless Reach initiative is a strategic program that brings wireless technology to 

underserved communities globally. Wireless Reach invests in projects that foster 

entrepreneurship, aid in public safety, enrich teaching and learning, improve environmental 

sustainability and enhance the delivery of health care. Wireless Reach has 73 projects in various 

stages of development in 31 countries (15 projects are related specifically to healthcare). 

Qualcomm includes Qualcomm's licensing business, QTL, and the vast majority of its patent 

portfolio. Qualcomm Technologies, Inc., a wholly-owned subsidiary of Qualcomm 

Incorporated, operates, along with its subsidiaries, substantially all ofQualcomm's engineering, 

research and development functions, and substantially all of its products and services businesses, 

including its semiconductor business, QMC. 

### 
24 


80805.013

Before the 

FOOD AND DRUG ADMINISTRATION 

Rockville, MD 20554 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

Food and Drug Administration 

Draft Guidance for Industry and Food 

and Drug Administration Staff; Mobile 

Medical Applications 

Docket No. FDA-20ll-D-0530 

COMMENTS OF QUALCOMM INCORPORATED 

Dated: October 19, 2011 

Dean R. Brenner 

Vice President, Government Affairs 

Robert Jarrin 

Senior Director, Government Affairs 

1730 Pennsylvania Avenue, NW 

Suite 850 

Washington, DC 20006 

(202) 263-0020 
25 


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TABLE OF CONTENTS 

INTRODUCTION ........................................................................................................................... 1 

M-HEAL TH AND HEALTHCARE DELIVERY IN AMERiCA ................................................. .3 

Mobile Broadband Technology And Preventable Disease In The U.S ........................................... 5 

Mobile Broadband And America's Shrinking Healthcare Workforce ............................................ 6 

ABOUT QUALCOMM ................................................................................................................... 8 

RECOMMENDA nONS AND COMMENTS ............................................................................ 14 

I. FDA Should Clarify The Scope And Regulatory Approach Of The Guidance 

Document ........................................................................................................................... 14 

II. FDA Should Provide Clarity On "Intended Use" .............................................................. 15 

III. FDA Should Exempt Some Low-Level Risk Apps From Regulatory 

Requirements Or GMP ...................................................................................................... 19 

IV. FDA Should ClassifY Accessories According To Their Individual Level Of Risk 

And Not According To The Device With The Highest Classification Level .................... 21 

V. Clinical Decision Support Software Is Outside The Scope Of Mobile Medical 

Apps ................................................................................................................................... 23 

VI. FDA Should Emphasize Coordination of its Internal Efforts Related To Wireless 

Health ................................................................................................................................. 24 

VII. FDA Should Promote External Resources "CDRH Learn", "Device Advice" And 

DSMICA ........................................................................................................................... .26 

VIII. FDA Should Adopt The mHealth Regulatory Coalition's Proposed Guidance On 

The Regulation OfmHealth Technology ........................................................................... 27 

CONCLUSION .............................................................................................................................. 29 

-i-
26 


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INTRODUCTION 

Qualcomm Incorporated ("Qualcomm") submits these comments in response to the Food 

and Drug Administration's ("FDA" or the "Agency") Draft Guidance for Industry and Food and 

Drug Administration Staff, Mobile Medical Applications (the "Draft Guidance").' 

Qualcomm greatly appreciates the FDA's preparation ofthe Draft Guidance to inform all 

stakeholders, including manufacturers, distributors, the health care community, and even the 

FDA staff iteslf, of the Agency's current intentions regarding regulation of software applications 

that meet the legal definition of a medical device and are used on mobile platforms (referred to 

as mobile applications or "apps"). Such guidance is particularly timely and important given the 

rapid expansion and broad availability of mobile consumer and professional health apps and the 

potential of these apps to improve healthcare in so many ways. Consumers are taking full 

advantage of the many capabilities that are packed into today's mobile broadband-enabled 

devices, including smartphones and tablets. In contrast to traditional means of accessing 

information via the Internet on fixed devices, consumers are finding apps to be less time 

consuming and complex than typical desktop/laptop computer software programs. 

Above all, the ability to access apps on mobile devices is highly beneficial for consumers. 

Apps, by design, provide direct, anywhere/anytime, access to requested information-be it 

health, news, weather, email, newspapers, books, photos, games, videos, and movies, to name a 

few. Today's apps turn a smartphone into a GPS guiding system, a book, a celestial viewer, a 

physical trainer, or an ECG waveform viewer, and the possibilities keep growing. As a result, 

data usage by smartphone users is exploding. In fact, the average smartphone user now 

See Draft Guidance for Industry and Food and Drug Administration Staff: Mobile Medical Applications 

(July 2011), available at http://\\ww.fda.gov/downloads/McdicalDcviccslDeviceRegulationandGuidancel 

GuidanccDocuments/UCM263366.pQf. 
27 


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consumes 435 MB per month, which is nearly double the per month amount smartphone users 

consumed just one year ago.2 

In essence, smartphones and tablets have become an extension of to day's consumer. 

Indeed, more than one-third of U.S. smartphone users interact with non-voice smartphone 

applications before they even get out of bed.3 In the health, fitness, and medical app space, 

mobile consumer and professional health apps are estimated to number over 13,000, and it's 

increasing each day.' Over 9,000 consumer health apps are listed in Apple's App Store alone, in 

addition to more than 3,600 professional medical apps.5 Interestingly, app innovation has been 

fueled by an unlikely segment of industry: solo developers and small companies. Solo 

developers account for 30% ofapp developers, while small companies (defined as 2-9 

employees) represent 34.3% of app developers. The fact that nearly two-thirds of all mobile 

apps are developed by individuals or small companies is remarkable. 

Qualcomm's advanced technologies help enable these wireless health and life sciences 

applications, including mobile health ("mHealth") products and services. In these Comments, 

Qua1comm describes the importance of mHealth technologies in the delivery of care in America, 

given the increasing burden of chronic disease and a shrinking healthcare workforce. We also 

See Ina Fried, "Smartphone Users Continue to Gobble Data At a Staggering Rate," WALL STREET JOURNAL 

ALLTHlNGsD.cOM (June 17,2011) available at http://allthingsd.com/20110617/smartphone-users-contjnue-togobble-data-at-a-staggering-rate/. (based on Nielsen's analysis of cellular phone bills for smartphone O\\l1erS, noting 

that the growth among the heaviest users has been even more astonishing). 

3 Sec From Apps To Everyday Situations, An Ericsson Consumer Insight Summary, Ericsson.com (2011) 

available at http://www.ericsson.comIresldocs/2011/silicon vallev hrochure letter.pdf (consumers were found to 

check. first thing each morning, apps for social networking, news, weather, and classified ads sites). 

Estimates provided by Brian Dolan, Mobil!ealthNews (www.mobihea!thnews.com). September 30, 2011, 

include over 9,000 consumer health apps in the Apple App Store (September 2011) and over 3,600 professional 

medical apps in the Apple App Store (October 2011). These figures do not take into consideration other mobile app 

catalogs or markets that include the popular Android Market, BlackBerry App World and Verizon's Media Apps 

catalog, which may offer duplicate versions or additional unique consumer and professional health apps, 

Id, 

-2-
28 


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describe Qualcomm's businesses and interests with respect to mobile health. Finally, we explain 

how traditional interpretations of medical device regulations should be clarified for mHealth 

applications by offering practical considerations to FDA about converged medical devices in our 

increasingly interconnected and highly mobile world. 

Although the Draft Guidance states that FDA intends to apply its regulatory requirements 

solely to a subset of mobile apps that meet the detlnition of a medical device, enough questions 

and issues linger that we encourage the Agency to address the entire range of mobile apps to 

remove any uncertainty as it tlnalizes the mobile medical app guidance document. 

In sum, Qualcomm believes that improving healthcare delivery in America should be a 

major national priority that can be achieved in large part through the use of mobile broadband 

technology. Qualcomm looks forward to working with the FDA and with all other public and 

private sector stakeholders to ensure that mobile broadband technologies, devices, services, and 

applications are used to improve the delivery of health care in the U.S. 

M-HEALTH AND HEALTHCARE DELIVERY IN AMERICA 

In 20 I 0, total national health expenditures were estimated to be $2.6 trillion dollars or 

roughly $8,324 dollars per person in the United States: By 2020, national health spending is 

expected to reach $4.6 trillion and comprise 19.8 percent of the nation's GDP.' Many Americans 

today spend more on healthcare than on housing or food, and if the escalating costs of healthcare 

continue, the Congressional Budget Oft1ce estimates that by 2020, approximately 27 percent of 

See National Health Expenditure Projections 2010-2020, 

httos:!!www.cms.govlNationalllealthExpcndDataidownloads/proj201 O.pdf. Centers for Medicare and Medicaid 

Services. 2010. . 

Id. 

-3-
29 


80805.018

federal spending will be on healthcare. Healthcare spending has become a national concern and 

has been identified as a top priority by President Obama and Congress. 

A large part ofthe nation's healthcare expenses is accounted for by today's antiquated, 

inefficient, duplicative, insular, and painstakingly manual system that governs the delivery of 

care. Incredible as it may seem, in 2011 modern medicine still relies heavily on paper systems, 

rooted in manila folders and administered through manual entry of patient data. The often 

forgotten casualty is the patient who continues to have little access, if any, to relevant data, 

personal electronic medical records, or ongoing instructions from their clinicians, care providers, 

or hospital. 

Passage of the American Recovery and Reinvestment Act of 2009 and the Patient 

Protection and Affordable Care Act of2010 have ushered in the most significant changes to 

America's health care system since the passage of Medicare and Medicaid legislation.' These 

extraordinary measures pave the way for a national focus on implementing and utilizing the most 

advanced health information technologies to create a modern system of health care based on the 

exchange of electronic health information that will be highly personalized and focused on the 

most important aspect: the patient. 

Today, wireless communications technologies are enabling health products and services 

that are improving by many measures the delivery and provision of health care in the U.S. Health 

information technologies such as medical devices, health sensors and software applications are 

increasingly using wireless functionality to transmit raw data, diagnostic health information, 

See American Recovery and Reinvestment Act of2009, P.L. 111-5 http://frwebgatc.access.gpo.gov/cgibin/getdoc.cgi?dbname~lll eong bills&docid~f:h leor.pdf; See also The Patient Protection and Affordable Care 

Act of20lO, P.L. 111-148 http://thvebgate.access.gpo.gov/cgibin/gctdoc.cgi?dbname~ll1 eong bills&docid~f:h3590enr.t.\t.pdf 

-4-
30 


80805.019

critical aspects of care, emergency services, and personalized information. These services are at 

the forefront of a revolution in America-a revolution that collapses time, space, and distance--

to more efficiently and effectively monitor patients, develop analytical trends, and save lives. 

Increasingly, health information technologies utilize broadband technologies over mobile wide 

area networks or wireless local area networks to seamlessly provide important patient 

information to healthcare professionals, clinicians. or loved ones at fractional costs and in secure 

timely formats. 

Mobile Broadband Technology And Preventable Disease In The U.S. 

The burden of preventable illness in the U.S. is large and growing. Chronic diseases, 

such as heart disease, cancer, and diabetes, are the leading causes of death and disability in the 

U.S., according to the Center for Disease Control ("CDC,,).9 Chronic diseases account for 7 out 

of 1 0 deaths among Americans each year, while also causing major limitations in daily living for 

25 percent of people with chronic conditions. lo In the U.S., the care of chronic illness accounts 

for almost 75 percent of total healthcare costs. I I Chronic diseases are generally found among 

older adults, but they affect people of all ages and are now recognized as a leading health 

concern of the nation. 12 Although chronic diseases are among the most common and costly 

health problems, the CDC states that they are also among the most preventable. Thus, the most 

preventable diseases are of the greatest cost in the U.S. annually. 

See Centers for Disease Control and Prevention. "Chronic Disease Prevention and Health Promotion," 

http://\\ww.cdc.gov/nccdphp/index.htm. 

10 See Centers for Disease Control and Prevention, "Chronic Disease Overview," 

http://www.cdc.gov/nccdphp/overvicw.htm . 

11 See J. Geyman "Disease management: Panacea. another false hope. or something in between?", Annals of 

Family Medicine 5(3):257-260 (2007). 

12 Chronic Diseases: The Power to Prevent, the Call to Control, at Pages 1-2 (2009). 

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Today, mobile broadband already plays a role in healthcare. From the cell phones used 

by care providers to communicate between professionals and their patients, to the field laptops 

utilized by emergency management responders to keep track of patient information and records, 

to the handheld devices like tablet PCs, PDAs, or smartphones that specialists use to download 

diagnostic data or drug information, ubiquitous high-speed 3G wireless broadband data networks 

are at the heart of the mHealth reality. Mobile medical apps such as Mobile MIM's remote 

diagnostic imaging tool, AirStrip Technologies various app based mobile solutions (OB, 

CARDIOLOGY, or PATIENT MONITORING), WellDoc's DiabetesManager / 

DiabetesManager Rx System, Vocel's PiIIPhone app or Calgary Scientific's Resolution MD app, 

are all changing the face of health care for doctors and patients alike." 

Mobile Broadband And America's Shrinking Healthcare Workforce 

While healthcare information technology is growing, America's healthcare resources are 

shrinking. Hospitals nationwide are beginning to face clinical workforce shortages due to an 

aging healthcare workforce. Many nurses and physicians are among the baby boomers set to 

retire in the next few years. 14 Despite a current easing of the nursing shortage due to the 

recession, the U.S. nursing shortage is projected to grow to 260,000 registered nurses by 2025." 

13 See http://ww\v.mimsoftware.com/products!mobiJemim; See also 

http://airstriptech . com!Portals! default/Skins! A irstripSkin!tabidiS Smefault.aspx; See also 

ww\\'. welldocinc.com!Products-and-Services.aspx; See also https:!!""w.pillphone.comlPiliLogin.htm; See also 

http://\\"\\,\,I,,'.calgar\' scienti fie.com/index. php?id=5. 

14 lsgur, Benjamin, "Healing the Health Care Staffing Shortage," Trustee, ABl!INFORM, Health Forum Inc .• 

Pg. ]8 (February 2008). 

15 Dr. Peter Buerhaus, July!August 2009 Health Affairs 

http://w\\"\\'.aacn.nche.edu/medialfac(shccts/nursingshortage.hlm. 

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A shortage of this magnitude would be twice as large as any nursing shortage experienced in this 

country since the mid-1960s. 16 

The federal government is predicting that by 2020, nurse and physician retirements will 

contribute to a shortage of approximately 24,000 doctors and nearly 1 million nurses. 17 While 

hospital leaders voice concerns over possible shortages, the implications are greater as they 

extend well into the healthcare delivery system and into the quality of care in America. 

Furthermore, the expense associated with educating new nurses and doctors is astounding, with 

taxpayer-funded Medicare spending $8 billion a year for residency training of physicians alone. 18 

While health care shortages are on the rise, the U.S. has more physicians and nurses than 

ever before. Unfortunately these healthcare providers are not distributed or deployed efficiently, 

underscoring the problems faced with the delivery of quality and timely healthcare in America. 

Underserved patients are not just those typically found in rural America or in geographic areas of 

low population density; with an aging baby boomer demographic more and more people will 

continue to place greater demands on the nation's healthcare infrastructure everywhere. In the 

U.S. alone, the population of those 65 and older will more than double by 2050, rising from 39 

million in 2009 to 89 million. 19 This is a global phenomenon, with the world's 65-and-older 

16 Id. 

17 See PricewaterhouseCoopers' Health Research Institute, "What works' Healing the healthcare staffing 

shortage," http://www.wiche.edu/info/a2endaBook/nov07/prcscntationsICarparcili.pdf. 

18 Id. 

19 See U.S. Census Bureau, "Census Bureau Reports World's Older Population Projected to Triple by 2050," 

(released June 23, 2009), http://www.census.~ov/newsroom!reJeases/archives!international population/cb09-

97.html. 

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population projected to triple by midcentury, from 516 million in 2009 to 1.53 billion in 2050, 

according to the US Census Bureau.20 

Quite simply, the U.S. population is aging. An aging population creates a demand for 

health services. At the same time, our nation is already facing a shortage of health care providers 

from nurses to primary care providers. The healthcare labor shortage coupled by an increasingly 

older population will exponentially increase health care disparities in urban, suburban, and rural 

America all the same. Logistical burdens-be it 5 miles or 500 miles-impede access to 

healthcare by the elderly, infirmed, and chronically ill. 

The demand for America to go beyond traditional methods of delivering health services 

is real. mHealth technologies enabled by powerful mobile broadband networks exist, are 

growing in number, and will increasingly be relied upon to supplement America's healthcare 

delivery. This is where companies like Qualcomm can lend a helping hand. 

ABOUT OUALCOMM 

Qualcomm is a world leader in developing innovative wireless technologies, including 

Code Division Multiple Access ("CDMA") -based and Orthogonal Frequency Division Multiple 

Access ("OFDMA") -based cellular technologies used throughout the world for voice and 

broadband communications as well as countless mobile products and services. Qualcomm's chip 

division, QCT, is the world's largest provider of wireless chipset technology that is used in cell 

phones and consumer electronics devices. QCT's multimode chipsets support the full gamut of 

standardized, globally harmonized wide area mobile broadband and cellular technologies, several 

20 rd. 

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AGPS location tools, Bluetooth, Wi-Fi, and many operating systems, such as Android, Windows 

Phone 7, and iOS. 

Qua1comm technology powers 3G and 4G cellular networks operated by wireless carriers 

throughout the U.S. and around the world. These carriers' networks enable hundreds of millions 

of Americans-in rural, suburban, and urban areas alike--to enjoy ubiquitous and highly 

advanced mobile voice and broadband data services. Based on the most recently available FCC 

data, over 95.6% of all Americans live within the coverage of one mobile broadband network, as 

the FCC has defined mobile broadband, that is 3G EV-DO or HSPA.21 Patients, doctors, and 

hospitals all need ubiquitous mobile broadband coverage if wireless health is to deliver on its 

potential. 

Qualcomm has a long track record of investment and innovation. Qua1comm spends 

billions of dollars annually to develop innovative technologies that extend into every aspect of 

wireless, especially the healthcare field. Since its inception in 1985, Qua1comm has invested 

more than $15.5 billion in R&D. In fiscal 2010 alone, Qualcomm spent $2.55 billion, or 23% 

of its revenues, on R&D. These enormous expenditures have enabled Qua1comm to invent 

many of the wireless technologies fueling the unprecedented growth in mobile voice and 

broadband services. 

Today, Qua1comm's innovative technologies enable the use of mobile broadband 

connectivity for chronic disease management, remote patient monitoring, diagnostic care, as well 

21 See Bringing Broadband to Rural America. Report on a Rural Broadband Strategv, released May 22, 2009, 

at Pgs. 12-13. At the time of the report, the FCC found, Verizon Wireless, Sprint, Leap Wireless and others 

provided mobile broadband service to areas in which over 95% of Americans live via EV -DO Revision A, which 

supported peak data speeds of 3.1 Mbps on the downlink and 1.8 Mbps on the uplink. Likewise, AT&T was 

concluding its network upgrade to HSUPA, which supported peak data speeds of up to 1.8 Mbps to 5.6 Mbps on the 

uplink, and was in the midst of upgrading its HSP A network to support peak speeds of 7.2 Mbps. Those 

technologies have improved dramatically since that report. 

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as products associated with general health, wellness, fitness, and aging. In addition, Qualcomm 

has fonned partnerships with foundations, health institutions, medical device manufacturers, 

health alliances, associations, and finns that are involved in numerous facets of the healthcare 

ecosystem with an interest to leverage wireless technologies and mobile broadband to improve 

healthcare and maximize the potential of health care delivery through these technologies. Not 

only are Qualcomm and its partners working to bring about an unprecedented convergence of 

science, medicine, engineering, and technology to effectuate dramatic improvements in the 

quality of health care, but we strive to reduce costs and inefficiencies in the American healthcare 

system. 

One example of the company's many efforts related to healthcare is Qualcomm Labs, 

Inc. (QL). QL is a wholly owned subsidiary ofQualcomm and serves as an internal wireless 

product and services incubator, positioned to transfonn emerging ideas and technologies into 

viable businesses. QL's areas of focus include context marketing, media enablement, machineto-machine communication, enhanced wireless access services, and wireless health. In the area 

of wireless health, fitness, and medical products, QL's investments include Sotera Wireless 

(mobile rapid response monitoring), Telcare (mobile glucometer), AliveCor (mobile ECG), 

Work Smart Labs (wireless fitness technology) & Cambridge Temperature Concepts (wireless 

fertility monitoring). 

Qualcomm further demonstrates its commitment to health care through the company's 

Wireless ReachTM initiative. Qualcomm's Wireless Reach initiative is a strategic program that 

brings wireless technology to underserved communities globally. By working with partners, 

Wireless Reach invests in projects that foster entrepreneurship, aid in public safety, enhance the 

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delivery of health care, enrich teaching and learning and improve environmental sustainability." 

Wireless Reach began in 2006 and now has 73 projects in various stages of development in 31 

countries. Some of these include: 

China - 3G Mobile Medicine. Working with partners in China, Wireless Reach is 

helping to improve the delivery of care in rural health clinics using 3G handsets and 3Gready PCs, pre-installed with a customized health care application. Through the Wireless 

Heart Health project, Wireless ReachTM also partnered to provide 3G-enabled 

electrocardiograph monitors to remotely screen and monitor cardiovascular diseases for 

underserved communities in China. 

Japan - The Wireless_Health_Care@Homeprojectallows300remote local residents to 

send critical health information to doctors through a 3G wireless network. 

Kenya - Wireless Reach TM has teamed with partners to develop a new system that 

increases efficiency and improves the accuracy of reporting in the supply management of 

antiretroviral medicines (ARVs) using 3G wireless connectivity. 

Peru - Wireless technology enables remote speech therapy and provides critical medical 

care to rural communities, and has resulted in over 123,000 people receiving treatment 

and more than 1,300 surgeries performed. 

Sec Global Citizenship, Healthcare Overview; http://www.gualcomm.comicitizenship/wirelessreach!projects!health-care. 

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Philippines - Wireless Access for Health uses 30 wireless technology to improve health 

care in the Philippines by reducing the time required for reporting and by improving 

access to accurate and relevant patient information. 

Portugal- Wireless ReachTM is working with a project that provides 30 solutions for 

people with severe disabilities so they can communicate and live a more autonomous life 

using 30 mobile devices specially designed to accommodate their disability. 

South Africa - With the help of the Mobile Health Information System (MHIS) - an 

Internet-capable, commercially available smartphone pre-loaded with a locally relevant 

and reliable clinical library nurses can access much-needed information at the point of 

care. 

South Korea - This Wireless Reach project provides health care related support to lowincome and/or disabled seniors via a lightweight device called SHOWCare that uses 

Qualcomm mirasolTM display technology. 

Spain - Wireless ReachTM provides the elderly with tools to better communicate and 

socially integrate themselves with family members and health care providers utilizing a 

videoconferencing system on the participant's TV set, a wireless HSPA router, a web cam 

and 30 mobile phones. 

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Thailand - This project helps improve health care throughout Thailand's rural areas by 

providing patients at participating clinics with the ability to communicate with doctors in 

major cities via CAT Telecom's 30 broadband Internet connection. 

United States - Wireless ReachTM provided laptops with EY-DO Rev. A data cards to 

enable trauma surgeons to use a robot to reach patients in need. Additionally, Wireless 

Reach worked with partners to implement a study that demonstrates how 30 wireless 

technology can improve health outcomes for hypertensive patients in underserved urban 

communities, and resulted in patients reporting improved medication adherence rates and 

increased prescription refill rates with the use of the Pill Phone medication reminder 

application. 

These activities are examples of the many ways in which Qualcomm, and its subsidiaries, 

are involved in the delivery of health care and demonstrates the reason why we are submitting 

these comments on the FDA's efforts in the wireless and mHealth space. 

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RECOMMENDATIONS AND COMMENTS 

Qualcomm respectfully submits the following recommendations and comments in 

response to FDA's proposed Draft Guidance for Industry and Food and Drug Administration 

Staff on Mobile Medical Applications. 

I. FDA Should Clarify The Scope And Regulatory Approach Of The Guidance 

Document 

The FDA should clarify the scope and regulatory approach of the Draft Guidance. 

Although well-intentioned, the Draft Guidance lacks context and specificity that is necessary to 

help the nascent mHealth industry-many members of which are not traditional medical device 

companies-understand the FDA's legacy regulations, which were adopted decades ago, and 

how to apply those regulations to modem science and technology. The scope of the final 

guidance document should be more than a mere declaration that FDA will regulate certain types 

of mobile apps that meet the statutory definition of a medical device.23 The guidance document 

should explain how to interpret that language for all apps, particularly in light of the mHealth 

mobile apps that utilize ambiguous terms to describe and market themselves such as focusing on 

"health", "well ness", "fitness", "sleep", "diet" and "stress." 

The final guidance should more clearly describe the regulatory approach that the agency 

intends to apply to mobile apps. It is not enough to restate the obvious-that in the past, present 

and future, FDA will regulate medical devices and medical apps. Concepts such as a intended 

use and level of risk should be explained and FDA's rationale for applying these concepts to 

mobile apps disclosed. We suggest further that the document explain how FDA will apply these 

23 See Draft Guidance for Industry and Food and Drug Administration Staff: Mobile Medical Applications 

(July 2011), available at http://www.fda.gov/downloads/MedicaIDevices!DeviceRegulationandGuidancel 

GuidanceDocuments/UCM263366.pdf, footnote 4. Page 7. 

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concepts to mobile medical apps. As written, the guidance mentions those concepts in passing 

without any meaningful context for how levels of criticality shall be weighed when assessing the 

potential risk some mobile medical apps pose to public health. 

Furthermore, FDA should explain how it will examine the subset of mobile apps that it 

intends to regulate. For example, we recommend that FDA balance how a product is marketed 

through claims about its intended use and its functionality with the level of risk that product 

poses to its users. It is particularly important to understand how FDA weighs those criteria when 

assessing the regulatory status of mobile medical apps, particularly for stakeholders in the 

mHealth industry that have never experienced the FDA's regulatory process. 

II. FDA Should Provide Clarity On "Intended Use" 

The FDA should offer more insight to clarify its current thinking on how claims made by 

manufacturers about a product's intended use affect how products are regulated. According to 

the Draft Guidance, FDA deems a "mobile medical app" those apps that 1) meet the definition of 

a medical "device" as specified in section 201 (h) ofthe FD&C Act and 2) either are used as an 

accessory to a regulated medical device or transforms a mobile platform into a regulated medical 

device." The Draft Guidance tries to offer perspective on the definition of a device by way of a 

footnote, which states: 

24 

Products that are built with or consist of computer and/or software components or 

applications are subject to regulation as devices when they meet the definition of 

a device in section 201(h) of the FD&C Act. That provision defines a device as 

" ... 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 

[d, at Page 7. 

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man ... " or " .. .intended to affect the structure or any function of the body of man 

or other animals ... " Thus. software applications that run on a desk-top computer, 

laptop computer, remotely on a website or "cloud," or on a handheld computer 

may be subject to device regulation ifthey are intended for use in the diagnosis or 

the cure, mitigation, treatment, or prevention of disease, or to affect the structure 

or any function of the body of man. The level of regulatory control necessary to 

assure safety and effectiveness varies based upon the risk the device presents to 

public health.' (See Appendix B for examples).25 

Unfortunately, this reiteration of the statutory definition offers little practical guidance. 

We are concerned that it may create the impression that the Agency will adopt what could be 

characterized as a heavy-handed approach towards the regulation of medical devices that could 

result in over-regulation of some mobile medical apps that should not (depending on 

interpretation) meet the definition of a mobile medical app. It is also not sufficient to provide a 

handful of examples representing mobile apps that FDA does not consider to be mobile medical 

apps for purposes ofthis guidance.'6 Likewise, providing short examples of mobile apps that 

FDA considers to be mobile medical apps subject to its regulatory oversight leaves many 

unanswered questions. Stakeholders in the mHealth industry need a more detailed explanation of 

the factors that determine whether FDA will regulate a mobile app and at what level of 

regulation, so that while a mobile app is under development, the app developer, potential 

investors, and other interested stakeholders can fully appreciate the level of regulatory oversight 

that applies. 

Further, it is unclear whether it is FDA's intent to regulate devices that may not fall 

neatly within the strict definition of a medical device. Strict interpretation without the benefit of 

context and guidance may result in all mHealth mobile app products being required to undergo 

25 Id. footnote 4, Page 7. 

26 Id. at Pages 10-11. 

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strenuous FDA regulatory requirements that present significant barriers to innovation and market 

entry. The Agency should appreciate that compliance with its regulations is not easy, even tor 

entities that are traditionally regulated by FDA. Firms that are new to the medical device 

industry must (at great expense in terms of finances and human resources) institute significant 

procedural, technical, policy, staffing, and facility controls prior to marketing a medical device. 

The Agency, in the Final Rule for Medical Device Data Systems (MDDS), reported that costs to 

manufacturers to comply with FDA's Quality Systems and Medical Device Reporting (MDR) 

regulations "would likely be less than $20,000 for the manufacturer to bring its quality system 

into compliance" and could exceed $20,000 if the manufacturer also needed to hire a full time 

employee to manage the quality system. Many believe these numbers to be significantly 

underestimated, with some noting that a single employee with regulatory compliance expertise 

costs $143,000 annually, including salary and benefits. 

The impact of compliance with FDA regulations will have a considerable effect, 

independent of whether the mobile app is created by a sizable firm or a solo developer. In terms 

of mobile and mHealth apps, many apps are developed by garage entrepreneurs, including 

individual doctors or clinicians, that work from their home. These mobile app developers should 

not be underestimated as they represent a significant engine of U.S. innovation. Solo developers 

account for 30% ofapp developers, while small companies (defined as 2-9 employees) represent 

34.3% of app developers. The fact that nearly two-thirds of all mobile apps are developed by 

individuals or small companies must not be overlooked because the impact of over-regulation 

will not only be substantial but will undoubtedly restrict the innovation and growth that the U.S. 

economy and healthcare system desperately needs. 

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Taken in context, the number of overall mobile app developers is significant, while the 

numbers ofapps they develop is extraordinary. Apple alone reports that as of August 2010, over 

50,000 active app developers contributed to the more than 635,700 mobile apps available at that 

time on Apple's App Store." The number oftotal apps continues to grow exponentially, in 2009 

to 2010 by as much as 196.1 percent." By 2016, the number of available apps is expected to 

reach 6.9 million." In 2011, application storefronts are expected to generate approximately 

$10.51 billion in app sales revenue on an estimated 4.01 billion paid downloads.30 As stated 

herein, mobile health apps (including consumer health apps and professional medical apps) 

account for more than 13,000 of the available apps.31 The sheer number of mobile apps that will 

fall within the broad scope of this guidance is overwhelming. Compound that with the fact that 

two out of three developers of these regulated mobile apps are individuals or small companies 

that have never worked with the FDA and the demand for Agency resources to educate, review, 

and enforce regulatory requirements will be astronomical and unprecedented. 

It is, therefore, imperative that the final guidance is narrowly-tailored to focus solely on 

those intended uses that involve significant risk to patients. FDA should explain how intended 

2J See Analysis Of The Smartphone Application Storefront Market & its Impact On The Smartphone 

Ecosystem (Frost & Sullivan), pp. 5,22, September 2011. 

Id. at Pages 5, 24. 

29 Id. at Page 24. 

30 Id. at Page 5. 

]J Estimates provided by Brian Dolan, MobiHealthNews (www.mobihcalthnews.com). September 30, 2011, 

include over 9,000 consumer health apps in the Apple App Store (September 2011) and over 3,600 professional 

medical apps in the Apple App Store (October 2011). These figures do not take into consideration other mobile app 

catalogs or markets that include the popular Android Market, BlackBerry App World and Verizon's Media Apps 

catalog, which may offer duplicate versions or additional unique consumer and professional health apps. 

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use claims made by manufacturers affect how mobile apps are regulated (if at all). We offer 

below some ways to add this much-needed clarity. 

III. FDA Should Exempt Some Low-Level Risk Apps From Regulatory Requirements 

OrGMP 

We believe that the FDA should make a determination and offer guidance as to whether it 

will require the same degree of regulatory rigor when assessing low-risk mobile medical apps as 

compared to moderate-higher-risk medical apps and devices. FDA should consider risk-based 

tiers within Class I to segregate those devices (mobile apps) that pose little risk to users. Those 

mobile apps that would qualify should be exempted from some, or all, of the general controls 

that moderate- to higher-risk devices (including higher risk within Class I) are required to 

perform. We are not advocating for the creation of new regulations, but rather we are looking 

for guidance on how to treat low-risk mobile medical apps as compared to moderate-higher-risk 

medical apps and devices. 

Ambiguous terms as previously discussed include claims made by developers on topics 

such as "health", "wellness", "well-being", "fitness", "patient satisfaction", "heart health", 

"unhealthy", "sleep deprived/deprivation", "stress", "stress management" and "fat." These terms 

do not seem to trigger section 201(h) of the FD&C Act, but there is no hard guidance to 

strengthen that assumption. FDA must clarify whether and what regulatory requirements apply 

if a mobile app involves low risk and is associated with general health claims, but alludes to 

possibly benefiting known diseases or conditions. Consider the following illustrative mock 

example: 

An unregulated health and fitness mobile app monitors physical activity and 

allows for manual input of caloric intake. If such a product included the 

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following marketing claim: "Use of this health and fitness mobile app coupled 

with exercise and a healthy diet may lessen the risk of obesity in some people." 

Under current guidance, such a statement would be impermissible and trigger regulatory 

obligations because it mentions the prevention of disease in man. We believe, however, that this 

hypothetical mobile app should not trigger regulatory requirements because it is of a particularly 

low risk to human harm. Rather than regulating low-risk mobile apps under the overburdensome medical device framework, FDA should consider requiring a disclaimer similar to 

those used by supplemental vitamin manufacturers, such as "This statement has not been 

evaluated by the FDA. This product is not intended to diagnose, treat, cure, or prevent any 

disease." 

FDA should also consider focusing its limited resources on enforcing regulations for 

mobile apps that actually pose a risk of harm to a user, while exempting or excluding those 

mobile apps that pose little risk to consumers. The Agency has clearly begun to do just that. 

The Draft Guidance offers examples of products that the Agency does not consider to be a 

mobile medical app for purposes of the guidance, such as electronic health records (EHRs) and 

personal health records (PHRs).32 But it does not offer substantive explanations on how it 

reached its decisions or how it will exercise its enforcement discretion to exempt such products." 

The guidance should clarify how FDA intends to exercise its discretion to decline to pursue 

32 See Draft Guidance for Industry and Food and Drug Administration Staff: Mobile Medical Applications 

(July 2011), available at http://www.fda.gov/downloads/MedicaIDevices/DeviceRegulationandGuidancel 

GuidanceDocuments/LJCM263366.pdf, Page 11. 

33 1d. at Page 12. 

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enforcement actions for violations of the FD&C Act or applicable regulations." We encourage 

FDA to contemplate exercising enforcement discretion on mobile medical apps that present little 

risk to consumers as well as those that stand to benefit the public at large. 

Although the Agency prides itself on its focus on innovation, it is also charged with the 

tremendous responsibility of protecting and promoting the health and well-being of the American 

people. Those two goals should not be mutually exclusive and it is incumbent upon the FDA to 

not only ensure the safety and efficacy of FDA-regulated products but to take proactive steps to 

foster scientific innovation that will lead to tomorrow's new breakthrough products like those 

found in mHealth. 

IV. FDA Should Classify Accessories According To Their Individual Level Of Risk And 

Not According To The Device With The Highest Classification Level 

The Agency's traditional approach of regulating accessory devices should be 

reconsidered for mHealth systems, mobile apps, and mobile medical apps. Generally, FDA 

regulates a product as an accessory to a specific medical device when the manufacturer of the 

initial product intends for it to be used with the medical device or when the medical device 

manufacturer requires the use of the other product, which is sold separately. Traditionally, 

products that are deemed accessories to classified medical devices take on the same classification 

as the "parent" device.35 For example, an accessory such as software that accepts input from 

34 Id. 

35 See for example, Content of a 51 O(k) --

http;! Iwww .fda.govlMedieaIDevieesiDevieeRegulationandGuidance/Ho"1oMarket Y ourDevicelPremarketSubmissio 

nsIPremarketNotifieation51 Ok/uem 142651.htm) ("Accessories to classified devices take on the same classification 

as the "parent" device. An accessory such as software that accepts input from multiple devices usually takes on the 

classification oflhe "parent" device with the highest risk, i.e., class."); See also Final Rule, Medical Devices, 

Medical Device Data Systems, 76 Fed. Reg. 8637. 8643-8644 (Feb. IS, 201l). 

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multiple devices usually takes on the classification of the "parent" device with the highest risk, 

i.e., class.36 FDA's rationale is predicated on ensuring that accessories and their parents should 

share equal risk when it comes to the failure of either the parent or its accessories. Thus, the 

parent medical device with the higher risk classification rules all. 

The scope of the accessory rule is problematic considering the inherent capabilities and 

functionality oftoday's interoperable communications systems. Health and mHealth products 

are only going to become more interrelated and interoperable as medical products, devices, 

software, and mobile apps will be marketed in the future with broad system claims. The age of 

traditional independent and insular medical devices is over. The FDA's regulatory approach to 

mobile apps should establish the framework for these interconnected devices. 

In establishing this framework, the Agency should regulate products according to their 

specific level of risk, independent of those medical devices to which they connect. Therefore, a 

product that connects to a device with a higher risk classification would be subject to the 

regulatory requirements that apply to the product based on the risk of the product itself, not 

based on the risk of its connection to the higher-risk device. Even if the manufacturer of either 

device claims compatibility with the other device, the regulatory obligations that apply to the 

other device should remain unchanged. More specifically, where the manufacturer of a medical 

device claims compatibility with a medical device of lower classification, the claim by the 

manufacturer of the higher-classified device should not result in heightened regulatory 

requirements for the lower-classified device. 

36 ld. 

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FDA can ensure appropriate risk controls and compatibility between parent devices and 

accessories by requiring product manufacturers to substantiate accessory claims. Such claims of 

compatibility should be substantiated through adequate validation to demonstrate that the 

associated risk is recognized and appropriately tailored to the devices and their functions. Even 

though a lower-class device is not "up-regulated," substantiation of claims ensures the proper 

level of oversight for the risk associated with the two products. The substantiation obligation 

should lie with the manufacturer making the claim of compatibility. 

V. Clinical Decision Support Software Is Outside The Scope Of Mobile Medical Apps 

Clinical Decision Support ("CDS") software should not be considered as part of the 

mobile medical apps guidance document. It is simply a separate and distinct issue that confuses 

the subject of mobile apps and mobile medical apps. The FDA recognized the need for this 

distinction by stating, "This guidance does not specifically address ... classification and 

submission requirements related to clinical decision support ... software .... The FDA intends 

to address these topics through separate guidance(s)."" Given that statement, it is unclear why 

FDA proceeded to publish the Federal Register Notice of Availability on mobile medical apps 

with several questions related to CDS functionality and controls. This uncertainty was 

compounded by the fact that one day of a two-day workshop was devoted to CDS without any 

discernable tie-in to mobile medical apps.38 

.17 See Draft Guidance for Industry and Food and Drug Administration Staff: Mobile Medical Applications 

(July 20 II), available at http://www'[da.Qov/downloads/MedicaIDcvices/DeviceRegulationandGuidancel 

GuidanceDocuments!UCM263366.pdf. 

38 See Public Workshop - Mobile Medical Applications Draft Guidance, September 12-13, 2011, 

http://www.fda.gov/MedicaIDevieeslNewsEvents/WorkshopsConfCrenccs/ucm267821.htm . 

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We believe that the FDA final guidance on mobile medical apps should not contain 

definitional discussions on CDS or how to categorize standalone CDS software. Including the 

seemingly unrelated topic of CDS in the mobile medical apps guidance is likely to cause 

confusion. We urge FDA to consider CDS software through separate guidance as it is simply not 

within the scope of this mobile medical apps guidance document. Furthermore, any mention or 

discussion (including examples) of CDS software should be removed from the guidance. 

VI. FDA Should Emphasize Coordination of its Internal Efforts Related To Wireless 

Health 

We respecfully suggest that FDA place more emphasis on coordination of its policy and 

regulatory efforts related to wireless health and life sciences. The regulation of mobile health 

and mobile medical products, devices, and apps should be coordinated within the Center for 

Devices and Radiological Health by one group or in open collaboration within the Agency. Over 

the past few years, FDA has signaled an increasing interest to better understand this evolving 

area of science, technology, and medicine. FDA has undertaken the issuance of several draft 

guidance documents, made public pronouncements, hosted workshops, and launched initiatives 

that in one way or another discuss wireless and mobile technologies. A cursory sample ofthose 

efforts reveals the following: 

39 

• 2007 Draft Radio-Frequency Wireless Technology in Medical Devices39 

• 2010 Medical Device Home Use Initiative Workshop ("Wireless Issues for Home 

Care Medical Devices,,)4o 

Radio·Frequency Wireless Technology in Medical Devices DRAFT GUIDANCE 

http://ww\\ .. fda.gov/MedicaIDeviceslDcviceRegulationandGuidance/GuidanceDocuments/ucm0772JO.htm. 

40 Wireless Issues for Home Care Medical Devices (Don Witters, CDRH/OSEL), 

http://,,,\w,fda,gov/McdicaIDcviccslNewsEvents/WorkshopsConlerenccs/ucm205804.htm. 

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80805.039

• 2010 Memorandum of Understanding between the Federal Communications 

Commission and the FDA Center for Devices and Radiological Health41 

• 2010 FDA/FCC Public Workshop: Enabling the Convergence of Communications 

and Medical Systems42 

• 2011 Draft Guidance for Industry and Food and Drug Administration Staff: 

Mobile Medical Applications43 

• 2011 Public Workshop: Mobile Medical Applications Draft Guidance44 

• 2011 Regulatory Science in FDA's Center for Devices and Radiological Health: 

A Vital Framework for Protecting and Promoting Public Health ("Emerging 

Technology Trends,,)45 

These efforts, taken individually, are very encouraging because they demonstrate FDA's 

commitment to the area of wireless health. However, taken together, some of these efforts seem 

to overlap and to be duplicative. Our concern is that the FDA's recent efforts in wireless health 

may be causing confusion, which we understand is the exact opposite of the Agency's intention. 

Ultimately, FDA should better coordinate its policy and regulatory efforts related to wireless 

health, including mobile health, and should consider placing these efforts under one organization 

within CDRH and consolidating public information related to wireless health on one web site. 

41 Memorandum of Understanding between the Federal Communications Commission and the FDA Center 

for Devices and Radiological Health, http://transition.fcc.govlDailv ReleaseslDailv Business!2010!db0726!DOC300200A2.pdf. 

42 Public Meeting, Converged Communications and Health Care Devices Impact on Regulation, July 26-27, 

20 I 0; hltp:ll" ww. laa.gm/MedicaIDcvices/N ewsEvents/W orkshopsConferences/ucm2 15046.htm. 

43 Draft Guidance for Industry and Food and Drug Administration Staff - Mobile Medical Applications; 

http://v\'\V\\.tOa.gov/MedicaiDcviccslDeviceReguiationandGuidance/GuidanccDocuments/ucm263280.htm. 

44 Public Workshop - Mobile Medical Applications Draft Guidance, September 12-13,2011; 

http://vnn\'.fda.gov/MedicaIDeYiceslNe,,sEvents/WorkshopsConferences/ucm26 7 821 .htm. 

45 Regulatory Science in FDA's Center for Devices and Radiological Health: A VITAL FRAMEWORK FOR 

PROTECTING AND PROMOTING PUBLIC HEALTH; 

http://m''' . fda. QOV I downloadsl AboutFD AiCentersOftices/CDRHlCDRH Reports/U CM2 74 I 62.pdf. 

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80805.040

VII. FDA Should Promote External Resources "CDRH Learn", "Device Advice" And 

DSMICA 

During the Public Workshop on Mobile Medical Applications Draft Guidance, held on 

September 12-13, 20 II at the FDA White Oak facility, numerous industry stakeholders 

expressed the need for FDA to improve its method of communication, beyond the need for 

regulatory clarity on issues and intentions, but more on the order of making documents less 

confusing and easier to digest. We believe that the FDA should proactively educate its 

constituency, clearly articulate its intentions, and offer public information in more accessible 

ways. 

In addition, FDA should improve its efforts to promote its internal resources like FDA's 

Center for Devices and Radiological Health (CDRH) web page for industry education (called 

"CDRH Learn") or the Agency's comprehensive regulatory assistance page (called "Device 

Advice"), which offers information on determining how to comply with the federal laws and 

regulations governing medical devices.46 Likewise, FDA should enhance the role of the Division 

of Small Manufacturers, International and Consumer Assistance (DSMICA) for CDRH as a 

means to educate and respond to industry and consumer questions.47 More should be done to 

raise public awareness of FDA's services. 

46 CDRH Learn http:lhnvw.fda.Qov/Training/CDRlILearn/default.htm; See also Device Advice 

http://w~\w.fda.goY/MedicaIDeviceslDeviccRegulationandGuidance/default.htm. 

47 DSMI CA for CDRH h!tp:ll\\ww. fda.goY IMedicaIDeYicesIDeviccReguiationandGuidance/ucm 142656.htm. 

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80805.041

VIII. FDA Should Adopt The mHealth Regulatory Coalition's Proposed Guidance On 

The Regulation Of mHealth Technology 

The FDA should adopt the mHealth Regulatory Coalition's ("MRC") Proposed Guidance 

on the Regulation ofmHealth Technology under the good guidance practice." The MRC intends 

to submit the document to the FDA on October 19,2011 as part of their comments on FDA's 

Draft Mobile Medical Apps Guidance document. Qualcomm is a founding member of the MRC, 

a coalition that was formed over one year ago by a diverse group of stakeholders that are 

representative of industry, public advocacy, and non-governmental representatives. The MRC 

came together with the goal of answering two questions: I) what mHealth products should the 

FDA regulate and 2) if such products are regulated, in what device classification should the FDA 

place them? The document developed by the MRC specifically addresses those two fundamental 

questions, as well as other interrelated issues on software that specifically address mobile 

medical apps. The MRC's proposed document addresses: 

I) The types of intended uses that a product may have and associated claims that a 

manufacturer can make about a product without it being regulated as a medical device; 

2) The framework for addressing products that have traditionally been regulated as 

accessories to other medical devices; and 

3) A framework for software in an mHealth system. 

The MRC chose to address those questions because its members, including Qualcomm, 

believe that the interests of the public health and patient safety demand appropriately tailored 

FDA oversight. Moreover, the MRC sought to help FDA develop a clear, predictable, and 

48 See Mobile Health Regulatory Coalition, AiRC's Proposed Guidancefor Industry and FDA Staff 

Regulation ofmHealth Technology, http;llmhealthregulatorvcoalition.org/. 

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80805.042

targeted regulatory framework that will promote innovation and discovery of new ways to 

improve the delivery of care, reduce the cost of health care, facilitate private investment in large 

and small businesses in the mHealth industry, and stimulate job creation in the United States. 

Qualcomm believes the FDA could reasonably implement the proposed principles through their 

good guidance practices and strongly encourages the Agency to do so. 

* * * 

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80805.043

CONCLUSION 

With 5.7 billion global mobile subscribers and the number of wireless devices in the U.S. 

now outnumbering the U.S. population, it is safe to say that the world is going mobile. 

Consumers are adopting mobile broadband-enabled smartphones, tablets, e-readers, and other 

handheld computers faster than any other computing platform in the history of mankind. 

Deloitte's Technology, Media and Telecommunication Group predicts that this year, the 

combined sales of smartphones, tablets, and netbooks will exceed 400 million units worldwide, 

overtaking traditional PC sales by many millions. Indeed, many consumers today own multiple 

mobile broadband-enabled devices, and it is not at all uncommon to see people carrying a 

smartphone, a tablet, and an e-reader. 

These powerful handheld devices have become integral to the personal and business lives 

of millions of American consumers who demand anywhere/anytime broadband access to 

communicate with healthcare professionals, clinicians, and family via videoconference; watch 

entertainment programming; or store and retrieve from the cloud limitless amounts of data in the 

form of emails, documents, books, newspapers, magazines, photos, videos, music, and movies. 

These technologies, supported by highly integrated chips, enable wireless health and life 

sciences products as well as converged medical devices to advance the critically important work 

carried out by America's healthcare community including doctors, nurses, clinicians, emergency 

medical technicians, critical public safety personnel, and-most importantly-patients and their 

loved ones. 

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80805.044

As a result of the important role that we play in this community, Qualcomm is actively 

engaged in intensive research and technology development efforts related to mobile health and 

wireless life sciences. We appreciate the FDA's guidance, and we look forward to working 

together with FDA and all other stakeholders in this exciting and innovative field. 

Dated: October 19, 2011 

Respectfully submitted, 

QUALCOMM INCORPORATED 

By: 

Dean R. Brenner 

Vice President, Government Affairs 

Robert Jarrin 

Senior Director, Government Affairs 

1730 Pennsylvania Avenue, NW 

Suite 850 

Washington, DC 20006 

(202) 263-0020 

Attorneys for QUALCOMM Incorporated 

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56 

Mr. WALDEN. Mr. Jarrin, thank you for the thought you put into 

your testimony and for being here today. 

We will now go to Mr. Bradley Merrill Thompson, General Counsel, mHealth Regulatory Coalition. Mr. Thompson, thank you for 

being here today. We look forward to hearing your testimony. 

STATEMENT OF BRADLEY MERRILL THOMPSON 

Mr. THOMPSON. Well, thank you very much for inviting me. As 

you can tell from the name of our organization, the topic today is 

of very great interest to us. 

Our coalition is a very diverse coalition, which is both fun and 

challenging. It is fun, because we have a lot of spirited discussions. 

It is challenging because it represents a lot of different points of 

view. We have folks in there from the traditional medical device industry, we have app developers in there, we have the telecommunication firms in there, patient groups and so forth. And frankly, the 

way I navigate consensus-building in our group is to say, look, we 

only have one rule, and that is, put the patient first, leave economics at the door and let us figure out what policy puts the patient 

first. 

In that vein, I have three simple points that I want to make this 

morning in my testimony. The first one is that we would urge FDA 

to publish its guidance just as soon as possible and indeed expand 

on that guidance in the future. I cheated a little bit, and I read the 

testimony of my other fellow witnesses here, and it seems like 

there is going to be good agreement on that score. What I would 

offer, as the nerdy lawyer maybe among the panel, is that I think 

that maybe FDA is delaying because they are going for the complete and final definitive for-all-time answer to these questions, 

and it is really tough because the industry changes on almost a 

daily basis. So they write a draft, it goes through a couple of 

months of review. By that couple months, the environment has 

changed a bit and they want to go back and erase some of what 

they wrote previously. 

I think what they need to do is get a final version out there and 

then use the guidance process to update it periodically as the environment changes, as the regulatory issues shift, as the questions 

shift, simply update the guidance periodically. We have talked 

about creating a Web site, where they would on a more real-time 

basis, offer some guidance. There are some tools that are available 

to them but bottom line is, I think FDA is struggling a bit with 

how to get hits guidance out, and in our opinion, it needs to get 

out because there is an awful lot of business that is frozen on the 

sidelines waiting to see what that guidance says. 

The second point I want to make to you is a bit counterintuitive 

probably for someone from industry to say, and that is, we would 

like to see more FDA enforcement in this area, and particularly 

more balanced FDA enforcement in this area. And the way I can 

make this point is best through an example, and it is an example 

I read about of a new app just a few weeks ago announced from 

India where you can do urinalysis with your iPhone, and everyone 

was talking about it on the Internet because I think a lot of people 

were trying to figure exactly where you pee on this thing in order 

to get the reading, and it turns out you do a very traditional techVerDate Nov 24 2008 15:24 Feb 26, 2014 Jkt 037690 PO 00000 Frm 00062 Fmt 6633 Sfmt 6633 F:\MY DOCS\HEARINGS 113\113-20 CHRIS
57 

nique: you pee in a cup and put a strip in that cup, it changes 

color, and then use the camera on the iPhone to more accurately 

assess what the color changes were. 

And they introduced this thing. It hasn’t yet hit the U.S. market 

but they have announced their intention to go through the Apple 

app store in introducing it. The problem is, FDA has regulated urinalysis for 30-some years. That is a very traditional medical device, 

and the typical one looks about the size of a cash register, so I got 

to tell you, doing it on an iPhone, that is cool, that is really cool, 

but what they did is, on the front page, at the bottom of the front 

page, they basically said in legalese this is not a medical device. 

Well, honestly, if it were that simple, I know a lot of other companies that would like to do that same thing, right? If you could avoid 

FDA by putting a disclaimer at the bottom of your home page and 

yet the whole rest of the Web site explains how it is used in urinalysis, that is a problem. 

So this is in part a competitive issue, right? Because different 

companies are held to different standards. But it is a public health 

issue because this is an important app, and if it gets the urinalysis 

reading wrong, people with diabetes, people with serious conditions 

could be relying on that app. So either deregulate it, which would 

take an act of Congress, I believe, because it is clearly a medical 

device, or more evenly enforce the rules. 

The third and final point that I want to make is that we favor 

sticking with FDA as the regulator for both the traditional device 

industry and the less traditional mHealth area. There was a rumor 

circulating, and who knows where these start, that people wanted 

to move mobile health regulation away from FDA. We couldn’t support that. We couldn’t support it because it would create two systems where if you do it on an iPhone system, if you do it on a cash 

registered-sized machine, you have a completely different system. 

To us, that actually increases the uncertainty and the complexity 

and the confusion, and so we have found that FDA has the knowledge that they need. This is a new technology. We are all learning 

the technology, but they have the public health knowledge in order 

to do this and to do it right, so we favor sticking with the agency. 

Those are the three points I wanted to make this morning, and 

I appreciate the time. 

[The prepared statement of Mr. Thompson follows:] 

58 


80805.045

Testimony of Bradley Merrill Tbompson 

General Counsel 

mHealtb Regnlatory Coalition 

Before tbe House Energy and Commerce Committee 

Subcommittee on Communications and Tecbnology 

Marcb 19,2013 

Chairman Walden, Ranking Member Eshoo, and members of the Subcommittee, thank you for 

inviting me to testifY before you today on behalf of the mHealth Regulatory Coalition ("MRC"). 

MRC members represent a diverse array of stakeholders, including medical device 

manufacturers, smartphone healthcare application developers, cellular handset manufacturers, 

network operators, and back end software services and data storage providers, as well as 

representatives of provider organizations, and other industry and trade associations. Our 

members share the common goals of protecting patient safety and promoting a balanced 

approach toward regulation in order to foster innovation and get new products to the market for 

patients. 

First and foremost, we would like to thank the Committee and the Congress as a whole for the 

passage for the Food Drug Administration Safety and Innovation Act, and specifically Section 

618, which calls upon the Department of the Health and Human Services (HHS) through the 

Food and Drug Administration ("FDA"), the Federal Communications Commission ("FCC") and 

the Office of the National Coordinator for Health Information Technology "(ONC") to develop a 

strategy and recommendation for Health IT, including mobile health technologies, by the end of 
59 


80805.046

Bradley Merrill Thompson 

this year. This section further authorizes the formation of a workgroup to afford the agencies an 

opportunity to seek input from all relevant stakeholders as they seek to define a balanced 

regulatory framework that promotes innovation while ensuring patient safety. 

The goal of this hearing, as I understand it, is to identify changes in federal regulatory policy 

needed to help ensure that patients have access to important, innovation tools for healthcare in 

the form of mobile medical apps. In my remarks today, I want to focus on the need for clarity 

around the scope offederal regulation when it comes to which mobile medical apps are subject 

to regulation, as well as the need for balanced FDA enforcement of those regulations. 

I. FDA NEEDS TO CLARIFY THE RULES FOR MOBILE MEDICAL APPS 

Mobile health technologies are quickly changing the way we manage our health, and the way 

healthcare is delivered. The development and adoption of these technologies has been so swift 

that thousands of mobile health apps are already on the market, and include everything from 

calorie counters to more complex apps that perform diagnostic or critical clinical functions. 

Indeed, many simply replace traditional medical devices, for example allowing doctors to view 

ultrasound images. 

Many mobile apps, however, present essentially no risk to the patient, and therefore should not 

be regulated. For example, apps allow users to actively monitor and trend their exercise activity 

on a daily basis, as a way to maintain or improve their overall condition. Apps also enable users 

to monitor their sleeping cycle, helping users understand their sleeping patterns. These types of 

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Bradley Merrill Thompson 

apps allow consumers to be much more actively engaged in managing their health and wellness 

than even just a few years ago. Regulation should be commensurate to the risk the apps pose to 

the patients. Overregulating these apps negatively impacts manufacturers and developers who 

have to comply with requirements that are disproportionate to the very low risk level of these 

products. 

Other mobile apps such as apps that function as an electrocardiogram device, or apps intended to 

diagnose skin cancer present a risk to the patient, and therefore ought to be regulated. 

We appreciate FDA's efforts in preparing the Draft Mobile Medical Apps Guidance in July 

2011. The guidance was helpful in explaining the scope of federal regulation. 

Like others, we filed comments on that draft guidance and have met with FDA to offer 

suggestions on ways to make the guidance even more useful. The agency seems very open to 

improving the document to sharpen the line between the regulated and unregulated worlds. 

We have been discussing with FDA the need to address additional issues that go beyond the 

issues specific and limited to mobile apps, including products used for wellness, rather than the 

treatment of disease, and the scope of what medical device accessories get regulated. We believe 

FDA understands our needs for further guidance and is preparing to address them. 

Now we need final guidance on mobile medical apps to assure innovative products get to market 

so that healthcare professionals, patients and consumers all have access to needed tools to 

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Bradley Merrill Thompson 

manage their health. A final guidance would provide the regulatory predictability necessary for 

investors to support, and manufacturers to develop, important new products. 

II. FDA NEEDS TO TAKE BALANCED ENFORCEMENT ACTION IN ORDER 

TO ENSURE PATIENT SAFETY 

At least some app developers already follow FDA's regulation, and implement appropriate 

quality systems, registration, adverse event reporting processes in order to ensure compliance 

with the regulatory requirements. Very recently, I saw an innovative app that allows you to do 

urinalysis with your iPhone. The company website presents the app as able to help patients 

understand and manage diseases like diabetes, urinary tract infections and pre-eclampsia, a high 

blood pressure pregnancy complication. 

You do the test mostly the old-fashioned way of collecting urine in a cup and then inserting a 

test strip. All the app does is objectively read the results using the camera on the phone. 

According to a company press release, the plan is to make the app available from the App Store 

for 0.99 cents and a kit consisting of a color mat to calibrate the app plus 5 sample urine 

dipsticks for $19.99 through the company's website. 

But here is the problem--this app falls within longstanding FDA regulation for urinalysis. It 

seems to me that the company must be aware ofthe potential for FDA regulation, because on its 

home page, at the very bottom, after extolling the clinical uses of its product to monitor disease, 

the company tries to simply disclaim FDA medical device status. 

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Bradley Merrill Thompson 

The problem is the company's website is also full of statements suggesting that people use their 

kit in lieu on the FDA regulated instruments used for urinalysis. It states the smart phone app 

"can help you analyse, interpret and trend your urinalysis data to help you understand and 

manage diseases like diabetes and its, urinary tract infections and pre-eclampsia." 

Further, it couldn't be any clearer that instruments used for urinalysis are indeed medical 

devices, and in particular class L The device classification regulation, 21 CFR Sec. 862.2900 

Automated urinalysis system, clearly establishes that FDA regulates urinalysis systems: 

"An automated urinalysis system is a device intended to measure certain of the physical 

properties and chemical constituents of urine by procedures that duplicate manual urinalysis 

systems. This device is used in conjunction with certain materials to measure a variety of urinary 

analytes." 

So here's the problem. There are all sorts of companies out there trying to do this kind of stuff 

right. They follow the rules, and that costs money. In the case of the class I device that means 

using a quality system to make sure the device actually does what it's supposed to do. It would 

appear that this company wishes to avoid using the quality system, registering, reporting adverse 

events and doing all the other things that bona fide medical device companies do. 

This app will sell for about 20 bucks. Companies that employ a quality system will probably 

have to charge more than that to make a decent return. How can a company lawfully compete 

with those that are willing to try to avoid FDA regulation with a simple disclaimer? 

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80805.050

Bradley Merrill Thompson 

Yes, FDA has not published its final guidance on mobile medical apps. But it certainly doesn't 

need to publish that guidance to enforce the statute and a 26-year old regulation that requires 

FDA compliance for a urinalysis test. 

On the one hand, it might seem like I am picking on this company. But frankly, it is simply 

typical of what we are seeing day in and day out show up in the various app stores. 

At the end of the day, these rules are there for a reason. People get hurt when medical devices do 

not possess the quality they need to reliably perform their functions. If this test, for example, 

under-reports or over-reports an analyte, a person might be lulled into believing they do not have 

a medical condition when in fact they do. For diseases like diabetes, that can have deadly 

consequences. Of course, if FDA regulation is no longer necessary for urinalysis, I am sure 

everyone in that business would appreciate FDA rescinding that regulation. 

For a regulated industry, one of the worst things that can happen is a law on the books that is 

not enforced. That puts every ethical company in a dilemma -- do you sink to the level of your 

competition that seems to be getting away with flouting the laws, or do you stick to your ethical 

guns. 

Since this app was just announced, obviously FDA has not had time to respond. It will be 

interesting to see what they do. To enforce these laws, FDA has the burden to develop evidence 

of a violation, which may be especially complicated and expensive when the developers are 

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Bradley Merrill Thompson 

located overseas. FDA is going to need to develop an enforcement process that is fair, efficient 

and effective. On the one hand, I would hate to have that responsibility myself, because fairness 

costs money and that is in short supply. But on the other hand, I hate to see these ethical 

companies struggling mightily while trying to do the right thing. There must be a better way. 

III. WE FAVOR WORKING WITH FDA 

In our opinion, it would not make sense to try to separate out apps from other medical devices 

that have the same functionality. Take the urinalysis app for example. FDA has long regulated 

instruments used for that test. It would make no sense for an app used for urinalysis to be 

regulated under different standards. Creating artificial distinctions between a traditional device 

and a mobile platform will result in regulatory duplication and confusion. 

Nor does it make sense to create a new agency, or move responsibility to another existing 

agency. Stakeholders are looking for more certainty and clarity from the existing federal 

government agencies, and a whole new regulatory scheme would frankly be counterproductive in 

that regard. 

FDA has the longstanding expertise to protect the public health and to balance regulation with 

permitting innovation. In "mobile health" there is the term "mobile" but there is also "health," 

and FDA has been successfully protecting public health through regulating devices for more than 

40 years. 

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Bradley Merrill Thompson 

We certainly agree we are entering a novel phase in health product development. As such, the 

MRC believes that an office within FDA dedicated to mobile and wireless health technologies 

could focus on balancing public health interests and safety, and innovation. 

This obviously does not mean we favor more regulation, but that we need a clearer and more 

transparent regulatory framework. 

FDA should coordinate work with other agencies such as FCC, ONC, and the Federal Trade 

Commission ("FTC") to build a clearer and more predictable regulatory environment for these 

medical devices. Those agencies all have a certain expertise regarding wireless health 

technology and the healthcare sector will benefit from these agencies sharing their expertise with 

FDA. 

Moreover, FDA already has sufficient statutory powers such as requiring registration and 

adverse events reporting, just to name a few, that will protect patient safety. It is unclear how a 

new agency would enhance patient safety with regard to these mobile apps over what FDA does 

already. Nor is it clear how another agency would do any better at allowing innovation to 

flourish. 

We fear the added complexity and jurisdictional confusion likely following the creation ofa new 

agency will cause the U.S. patients to see novel medical devices well after the rest of the world. 

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Bradley Merrill Thompson 

FDA has been actively working collaboratively with the MRC and industry more generally to 

improve the regulatory landscape. The existing statutory framework gives FDA the flexibility it 

needs to further adapt the regulatory scheme to this novel form of technology. 

An additional challenge the industry is facing is the excise tax on medical devices. The 

Congress imposed the excise tax on medical devices of all stripes. We believe the tax will 

negatively impact innovation and development of all medical devices, including mobile devices. 

One other benefit of the FDA's drive to adopt a clearer, more limited definition of mobile 

medical apps is to reduce the number of apps subject to the 2.3% excise tax on medical devices. 

Based on FDA's current thinking reflected in the draft guidance, it would appear that FDA is 

trying to exclude some apps from the definition of a medical device that might otherwise fall 

within that statutory framework. FDA can only go so far in reducing the scope of the excise tax, 

but ultimately, the Congress will need to take action. 

CONCLUSION 

Mobile technologies are changing the fundamental behaviors of patients and consumers to make 

them more engaged in their health. Mobile technologies are also changing the way healthcare 

providers offer care to their patients. This new model of health care has its challenges -

innovative developers are creating more sophisticated products, and the regulatory framework 

will need to be flexible in order to leave room for future developments. FDA has the resources 

and expertise to address these challenges. 

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Bradley Merrill Thompson 

The MRC looks forward to continue working with FDA, other regulatory agencies, and Congress 

to find the appropriate and balanced regulatory framework governing mobile technologies. 

This will ensure that patients have access to the best available resources to manage their health, 

and manufacturers and developers are able to bring innovative products to market. 

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80805.055

Testimony of Bradley Merrill Thompson 

General Counsel for the mHealth Regulatory Coalition 

Before the House Energy and Commerce Committee 

Subcommittee on Communications and Technology 

March 19,2013 

I. FDA NEEDS TO CLARIFY THE RULES FOR MOBILE MEDICAL APPS 

Many mobile apps present essentially no risk to patients including, for example, apps allow users 

to track their exercise activity on a daily basis, as a way to maintain or improve their overall 

health. FDA should clearly distinguish between disease-related apps that merit regulation and 

wellness related apps that do not. FDA needs to be careful not to overregulate harmless apps that 

offer the opportunity for enhanced patient engagement, as well as accessories that offer simple 

connectivity to sensors and the like. 

II. FDA NEEDS TO TAKE BALANCED ENFORCEMENT ACTION TO 

ENSURE PATIENT SAFETY 

Unless FDA deregulates a category of devices, mobile apps should comply with the existing 

regulatory requirements, and FDA should implement an enforcement process that is fair. 

efficient and effective. 

III. WE FAVOR WORKING WITH FDA 

Creating a new agency, or moving responsibility to another exiting agency, would create 

confusion that would be counterproductive, stifling innovation, not encouraging it. FDA has the 

longstanding expertise to protect public health interests and innovation. 
69 

Mr. WALDEN. Mr. Thompson, thank you for your testimony. We 

will now go to Mr. Ben Chodor, who is the Chief Executive Officer 

of Happtique, like health app boutique. 

Mr. CHODOR. Exactly. 

Mr. WALDEN. Everybody with me now. All right, Mr. Chodor, you 

are on. 

STATEMENT OF BEN CHODOR 

Mr. CHODOR. Good morning, Mr. Chairman Walden and Ranking 

Member Matsui, and members of the subcommittee. My name is 

Ben Chodor and I am the CEO of Happtique. It is an honor to testify today on mobile health technology, which Happtique believes 

can change health care delivery systems. My testimony addresses 

two important issues in our industry—— 

Mr. WALDEN. Will you make sure your microphone is on? 

Mr. CHODOR. Is that better? 

Mr. WALDEN. There we go. 

Mr. CHODOR. My testimony addresses two important issues facing our industry: questions about regulations, and the applicability 

of medical device tax to mobile devices. Happtique is a mobile 

health solution company whose mission is to integrate mobile 

health into patient care and daily life. Happtique is owned and operated by GNYHA Ventures, a business arm of Greater New York 

Hospital Association. GNYHA has a robust family of companies to 

assist its members in addressing business and operational issues. 

Happtique, the newest member of the companies, was established 

in direct response to members’ needs to develop comprehensive mobile health strategies to support clinicians, facilitate patient engagement and improve their own operations. Happtique’s principle 

offerings include individually branded, secure, multiplatform applications for hospitals, physician and patient: our MRX, it is our patent pending technology that enables physicians to actually prescribe apps to their patient, a unique system of classifying apps in 

more than 300 categories, and our brand-new private sector solution to a big problem, we have just launched our certification program for health apps. 

Happtique created these solutions to harness the unprecedented 

potential for mobile health technologies. Think about it: 87 percent 

of physicians use smartphones or tablets every day. One out of five 

smartphone users has at least one health app on it. There are over 

40,000 health apps on the market and it is growing every day, and 

there is little to no barrier of entry for these apps. This has incredible opportunity for innovation in health care but comes with certain concerns, namely how credible is this app for myself or for my 

patient. 

So who should monitor the mobile health industry? Clearly, the 

industry needs to balance three things: innovation, safety and effectiveness. The FDA released its guidelines in 2011, which Mr. 

Jarrin went over, and Happtique’s belief is that the FDA is in the 

best position of any agency to regulate health apps because of its 

long health expertise in assuring patient safety, but we have to say 

from our point of view, the FDA has to release these guidelines 

sooner than later. It is about time that they come out. 

70 

We don’t believe the FDA should regulate mHealth products that 

are not considered medical devices. The FDA’s draft guidance addressed which mobile apps the FDA does not anticipate classifying 

as mobile apps for purpose of regulation. The industry is pleased 

that the FDA recognizes its own limits. 

Complementary to the FDA regulatory framework, Happtique, 

our company, has created a certification program with industry 

stakeholders to offer clinicians and patients a way to identify technically and validation of an app. Happtique developed a health app 

certification standard under the direction of a blue ribbon panel, 

and we are reviewing operability, privacy, security, and content. In 

the development of the standards, we consulted with key publicprivate sector organizations—the FDA, the FTC, the FCC, the 

AMA, the AAMC and many, many other organization. This conducted the certification process. Again, Happtique is an engaged, 

well-known security company to ensure operability, privacy and security, and we are engaging specialists, so if it is a cardiology app, 

cardiologists should review the material. Apps that pass both the 

technical and testing content review will be awarded the Happtique 

certification seal. Our goal here is that the users will be reassured 

that a certified app delivers credible content, safeguards user data 

and functions as described. 

I would like to switch gears for a second and now talk about the 

medical device tax and how it relates to mobile apps since I know 

several members of the committee also care a great deal about this 

issue. Happtique does not believe that Congress intended to impose 

a device tax on iPhones, iPads, Android phones or tablets, or BlackBerrys, or apps that run on these devices. If congressional intent 

is ambiguous, we firmly believe the retail exemption applies. If the 

IRS wants to implement this tax on this technology, Congress 

needs to pass a law that specifically states that tax applies. Imposing a device tax on apps will undoubtedly stifle innovation, developers and publishers, and frankly, the threat of tax stifles innovation too. 

In closing, thank you for my allotted time, and I would like to 

thank the chairman and ranking member and the subcommittee for 

asking me to testify today. 

[The prepared statement of Mr. Chodor follows:] 

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80805.056

Congress of the United States 

U.S. House of Representatives 

Committee on Energy and Commerce 

Subcommittee on Communications and Technology 

Washington, D.C. 

Hearing on: 

Health Information Technologies: Harnessing Wireless Innovation 

March 19,2013 

Testimony of: 

Benjamin M. Chodor 

Chief Executive Officer 

Happtique, Inc. 

New York, New York 
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80805.057

Testimony of Benjamin M. Chodor, Chief 'Executive Officer 

Happtique, Inc. 

Committee on Energy and Commerce Subcommittee on Communications and Technology 

March 19,2013 

Summary 

IJapptique is a mobile health solutions company whose mission is to integrate mobile health into 

patient care and daily life. Happtique was founded in 2010 and is 0\\11ed and operated by 

G;-..JYIIA Ventures, Inc" the business arm of the Greater New York Hospital Association 

(G:\YHA). G~YBA represents nearly 250 hospitals and long tcrm care facilities in New York, 

New Jersey, Connecticut, and Rhode Island, and provides a wide range of membership services 

to these health care organizations including health information tcchnology, 

Happrique believes that the FDA. among the many interested federal agencies, is in the best 

position to regulate health apps because of its deep expertise on issues of patient safety. Its risk 

based approach strikes an appropriatc balance or guarding against consumer harm, while n~t 

chilling technological innovation, and because it is the most prepared to do so. Happtiquc urges 

the FDA to release its final guidance on mobile medical apps as soon as possible, 

As a complemcnt to the FDA regulatory fraJl1ework. Happtique has created a certification 

program with industry stakeholders to offer clinicians and patients a way to identify technically 

and substantively valid apps. With the cooperation of recognized industry pattners, the 

Ffapptique Health API' Certification Program will provide a valuable tool tor the review ofheaith 

apps. 

Happtique does not believe the medical device excise ta.'( should apply to any phones, tablets or 

mobile health apps. Any application of the tax [0 these products would be beyond what 

Congress intended and would serve to slow innovation by placing burdensome costs on app 

developers in a new and growing market 

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80805.058

Good morning. Chairman Upton and Members of the Subcommittee, my name is Ben Chodor 

and I am the Chief Executive Offieer of Happtique, Inc. It is a distinct honor for me to be here 

today, and I want to thank you for the opportunity to testify on the very important topic of 

mobile health tcchnology and applications. 

1'd like to begin by telling you about Happtique. Happtique is a mobile health solutions company 

whosc mission is to integrate mobile health into patient eare and daily life. Happtique was 

founded in 2010 and is o\vned and operated by GNYHA Ventures, Inc., the business arm of the 

Greatcr New York Hospital Association (GNYHA). GNYHA represents nearly 250 hospitals 

and long term care facilities in New York, New Jersey, Connecticut, and Rhode Island, and 

provides a wide range of membership services to these health care organizations including 

advocacy; education; cmcrgency preparedness and response; and leadership on key initiatives in 

such critical areas as health care quality improvement, patien! satety, population health 

management, workforce development and training, and health information technology. 

GNYHA's businesses, which are national in scope and operated under the umbrella ofGNYIIA 

Ventures, Inc., provide group purchasing, consulting. and othcr valuable products and services to 

health care organizations across the entire continuum of care with the goal of helping these 

organizations succeed in delivering high quality health care services in an efficient and costeffective manner. Today, these businesscs serve more than 25,000 customers across the U.S. and 

are responsible for more than $ J 0 billion in commerce annually. 

Happtique, which is the newest member of the GNYHA Venturcs' family of companies, was 

established in direct response to GNYHA members' need for assistance in developing 

comprehensive mobile health strategies and utilizing mobile health technologies to support their 

clinicians, facilitate patient cngagcment, and improve their operations. Happtique's principal 

offerings include: 

• Individually branded, sccure, multi-platform application stores for hospitals, continuing 

care facilities, and physician practices for staff and patient use; 

• mRxT!IJ, patent-pending technology that enables physicians to "prescribe" apps to their 

patients; 

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o a unique system developed by a nationally known medical librarian and a team of 

physicians and nurses for classifying apps into more than 300 clinically-meaningful 

categories. This classification system is designed to make the discovery of apps easier 

and more intuitive to clinicians and consumers; and 

.. a voluntary certification program for health apps. 

I would be happy to discuss any oj' Happtique's offerings in detail, but in light of the focus of 

this hearing on the regulation of mobile health technology and applications, r would like to 

devoie the balance of my testimony to a discussion of our certification program and issues 

related to the mobile health app market and regulation thereof. 

Mobile bealth technology olTers unprecedented potential to connect patients and providers-and 

is coming of age at the perfect time in the history of the American healthcarc system. As 

Americans, we are all cognizant tbat the costs associated \~ith heaithcare management and 

prevention need to be priOlitized. Happlique helicves that, in order to move away from individual 

encounters in the healtheare system toward patient-centered care, greater focus sbould be placed 

on connectivity and care management across the continuum. However, before we can fully 

embrace the necessity for realignment of how healthcare ought to be delivered, we need to 

recognize that patient engagement is paramount. Fortunately, we have the technological 

capabilities today (e.g", smartphones, tablets, peripheral devices) that can serve as the ideal 

vehicles to COmle(;( patients and providers remotely and in real time. 

llighlights of 'vfarket Statistics: 

o 87% of adults own a cell phone (Mobile, Pew Internet, January 2013) 

o lout of 3 cell phone owners has used their phone to look for health information 

online (Mobile Health 2012, Pew Internet, ~ovember 2012) 

" lout of 5 smartphone owners has at least one health app (Mobile Health 20]2, 

Pew Internet. ~ovember 2012) 

• 87% of physicians usc a smartphone or a tablet in their practice (Screen to Script: 

The Doctors Digital Path to Treatment, thinkwithgoogJe.com, June 2012) 

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80805.060

.. 78% of consumers believe in the benefits of mIIealth (mHealth US end-user 

research: Beliefs. barriers, success factors and recommendations. GSMA, 2012) 

.. S200 million in sales lor hcalthcare apps (frost & Sullivan, 20] l) 

.. 600 million health apps were downloaded in 2012 (Pyramid) 

~v10rc than 40,000 health apps exist on the market to assist hcal1hcare professionals deliver and 

improve patient care, in addition to allowing consumers to become educated and manage their 

own health and wcllness. ''''hat's driving this proli/eration? Unlike other aspects of the 

healthcarc marketplace, there is little to no barrier to entry into the health app market-so 

basically a!1yonc with an idea and programming skills can build a mobile health app. While this 

has exposed thc healthcare industry to an influx of technologically sophisticated and innovative 

dcvelopers who arc eager to make positive transformations, it has simultaneously madc (he 

industry vulnerable to a new breed of inwntors who are novice to its regulatory landscape. 

Thus, the easy entry into mlIealth offers incredible opportunity for innovation in hcalthcare; 

however, the open market comes with certain concerns, namely, "how credible arc thc apps I am 

(or my patients are) using?" 

Of course, this raises the issue of who should monitor the mobile health industry. The mHealth 

community is in need of both direction and a level of expectation to foster il1l1ovation while 

assuring safety and effectiveness, Happtique beJicyes that the industry would benefit from a 

balanced, risk-based approach where regulation and oversight is borne by various appropriate 

groups and that is clearly conveyed to all stakeholders. 

Recognizing the exponential gro\Vih and adoption of health apps by health care professionals and 

consumers, the FDA released Draft Guidance in July 2011. The Draft Guidance describes plans 

to provide oversight with respect to the safety and effectiveness for a subset of mobile apps 

mobile medical applications ("mobile medical apps"). These consist of mobile apps that have 

either already been classified as medical devices themselves or "affect the performance or 

functionality of a currently regulated medical devices." 

The FDA chose to define a "mobile medical app" in the Draft Guidance as: 

A mobile app that meets the definition of "device" in section 201 (h) of the Federal Food. 

Drug, and Cosmetic Act (FD&C Act). and either: 

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80805.061

" is used as an accessory to a regulated medical device,' or 

" tram/orms a mohile pial/arm into a regulated medical device, 

Examples of "mobile medical apps" that the FDA plans to provide regulatory oversight for 

include: 

• Mobile apps that are an extension of one or more medical dcvice(s) by 

connecting to such device(s) for purposes of controlling the dcvice(s) or 

displaying, storing, analyzing, or transmitting patient-specific medical 

device data; 

• :'>10bile apps that transform the mobile platform into a medical device by 

using attachments, display screens, or sensors or by including 

functionalities similar to those of cunently regulated medical devices; and 

.. Mobile apps that allow the user to input patient-specific information andusing formulae or processing algorithms output a patient-specific result, 

diagnosis, or treatment recommendation to he used in clinical practice or 

(0 assist in making clinical decisions. 

The FDA also provided the follo\ving categories of types of mobile medical apps and 

their associated classiflcations: 

e Displaying, storing or transmitting patient-specific medical device data in 

its original format 

.. Controlling the intended usc. function, modes, or energy source of the 

connectcd medical device 

" Transforming or making the mobile platform into a regulated medical 

device 

.. Creating alarms, recommendations or creating new information (data) by 

analyzing or interpreting medical device data 

See Appendix A of the Draft Guidance for examples of each of the above mobile medical 

app categories/types. 

Regulatory Requirements: 

In Appendix C of the DraH Guidance, the FDA also provides a "high level description of 

some select regulatory requirements for medical devices, including mobile medical apps" 

(e.g" Establishment Registration and Medical Device Listing, Labeling requirements, 

Premarket submission for approval or clearance, Quality System rebrulalion, Medical 

Device Reporting, Reporting Coneelions and Removals), 

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80805.062

lIapptiquc echoes the concerns of the FDA with respect to technologies that pose significant risk 

and may fall under their surveillance. That said, we don't belieye that the FDA should regulate 

mhealth products that are not considered to be medical devices. The FDA provided clarity in the 

Draft Guidance as to which mobile apps they do not anticipate classifying as mobile medical 

apps for purposes of regulation. Happtique agrees with the exclusions, as several significant 

topics that were cxeluded from tl1C Draft Guidance are of great importance to the industry. 

1bc following are exmnples of mobile apps ;':OT considered "mobile medical apps" by 

the FDA for purposes ofthc Draft Guidance: 

o vlobile apps that are electronic "copies" of medical textbooks, teaching 

aids or reference materials, or are solely used to provide clinicians with 

training or reinforce training previously received 

o :\10bile apps that arc solely used to log, record, track, evaluate, or make 

decisions or suggestions related to developing or maintaining general 

health m1d well ness 

o Mobile apps that only automate general office operations with 

functionalities that include billing, inventory, appointments. or insurance 

transactions 

• Mobile apps that arc generic aids that assist users but are not commercially 

marketed for a specific medical indication 

Mobile apps that perform the functionality of an electronic health record 

system or personal hcal1h record system 

Topics that were excluded from Draft Guidance (or (0 be addressed in a separate piece) 

include: 

• wireless safety considerations 

• classification and submission requirements related to clinical decision 

support software 

Q application of quality systems to software 

" mobile medical apps that are intended to analyze, process. or interpret 

medical device data (electronically collected or manually entered) from 

more than one medical deY!cc 

Due to clarity provided in the Draft Guidance, including these exclusions, lIapptique, along with 

other industry stakeholders, anticipates only a small subset of the health app market (we estimate 

about 2()%) would fall subject to regulatory oversight by the FDA in the event that any final 

guidance issued by fDA strongly resembles its Draft Guidance. In such event, much of the 

current health app market would appropriately not be subjected to heighted regulation or 

6 
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80805.063

supervision. The majority of heaith apps would only be subject to regulation and oversight by 

other government agencies snch as the Federal Communications Commission (FCC) and Federal 

Trade Commission (FTC). The size and expressed concern regarding the expected segment or 

the health app market not subject to heightened scmtiny by the FDA or other government 

agencies served as the genesis for Happtique to develop our Health App Certification Program 

(HACP). 

lIapptiquc's Health App Certification Program is a voluntary program borne out of the expressed 

need by many health care organizations and clinicians for a way to identify technically and 

substantively valid apps. As previously mentioned, there are currently as many as 40,000 health 

apps across multiple platforms on the market, with thousands more being added each year. While 

some app developers have submitted their applications to the FDA and received approval as 

medical devices, there is no reliable way for app users to readily distinguish credible apps [rom 

all others; thus, I !apptique saw the need fi)r an objective app assessment and validation process. 

As you arc aware, much in our health care delivery systcm is regulated by private sector 

organizations. For example, The Joint Commission accredits hospitals and other health care 

organizations and the various medical specialty societies provide physician board certification in 

their specialties. As a company whose origins arc deeply rooted in health care; that is platform. 

device, and application neutral; has an in-depth understanding of existing regulatory 

requirements pertaining to medical devices, privacy and security rcquirements as defined under 

the Health Insurance Portability and Accountability Act (IIIP AA) and Health Information 

Technology for Economic and Clinical Health Act (HITECH), children's online privacy 

requirements, and other health care-related laws and regulations; and has close ties to many key 

stakeholders in the health care industry, including hospitals, continuing care facilities, payers, 

and clinicians, we felt that tbere was a critical role and need for a private sector-based app 

certification program and that we were well suited to undertake this role. 

Our efforts to develop a voluntary certification program began over a year ago with the 

formation of a distinguished Blue Ribbon Panel comprised of recognized leaders in mobile 

health, heallh care technology, health care certification and accreditation progran1s, and patient 

7 
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80805.064

advocacy. Attached to my written testimony is a list of the members of this Panel, which I am 

pleased to submit for the record (Attachment A). Under the direction of this Panel. we have 

developed what we bclicve are a very rigorous set of standards and associated performance 

requirements. The standards encompass four areas: Operability. Privacy, Security, and Content 

In total, there arc nearly 150 standards and performance requirements: of these, 13 individual 

standards and more than 60 performance requirements focus specifically on privacy and security 

alone. 

In developing tbe standards, 'Ne consulted with key public and private sector organizations, 

including the FDA, FTC, FCC, Office of the National Coordinator for Health lnfonnation 

Technology (Ol\Cl, American Medical Association (AMA) Association of American Medieal 

Colleges (AAMC), Mobile Marketing Association (:'vlMA), GSM Association (GSMA), mobile 

Healthcare Information and Management Systems Society (mlIIMSS), and Association for 

Competitive Technology (ACT). 

In July, 2012, we published the standards in draft form for public comment and received 115 

comments from app developers/vendors. hospitals and health systems, trade organizations, 

information technology organizations, and other entities and individuals. After a thorough 

analysis of the comments, we made a number of revisions to the standards, and last month 

published the final set of standards and performance requirements, which we will use to evalnate 

apps once the certification program is underway, It should be noted that. while our standards are 

not officially endorsed by any Federal agency, they are explicitly designed to complement the 

existing regulations and guidelines of the FDA. FTC, FCC, and O;-.;e, and it is our intent to 

modify them, as necessary, to ensure that they remain in lockstep with any new guidance or rules 

pertaining to mobile health applications that these agencies may issue in the future. As 

important:y. however, [or the first lime, they provide a solid basis for evaluating the thousands of 

apps that are not currently subject to any public agency regulation or oversight. Attached to my 

written testimony is a copy of HACP' s final Standards and Performance Requirements, which J 

am also pleased to submit for the record (Attachment B). 

8 
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80805.065

HACP is a voluntary certification program that will be available to any publisher or developer of 

medical, health, and fitness apps intended for sale and/or use in the L.S. and that run on iOS. 

Android, Blackberry, or Windows smartphones and tablets. Web-based applications (so-called 

"Web apps"), other mobile health products, and mobile apps intended for sale or use outside the 

U.S. are not presently included in our certification program, but may be added in the future. 

To conduct the certification process, we are engaging key organizations as certification program 

partners. lntertek, an internationally-recognized leader in the provision of testing, inspection, 

certification and auditing services to a wide range of industries and in the mobile application 

space, will test each app submitted for certification for its compliance with our Operability, 

Privacy, and Security-or so-called "Technical"-standards. Apps that pass the technical 

assessment will then be reviewed to validate their content. Content reviewers will have 

credentials relevant and appropriate for the content being rcvicwcd. So. for example, 

cardiologists will review cardiology apps. nurses will revie,v nursing apps, dieticians \vill review 

diet and nutrition apps. certified personal trainers will review fitness apps, and so forth. 

Presently. we are pleased that the AAMC and CGF\'S International have agreed to serve as 

program partners for the purposes of reviewing medical/patient education apps and nursing apps, 

respectively, and we expect to finalize agreements shortly with numerous other partner 

organizations that will provide content experts in the many other clinical specialties and 

disciplines that we need to conduct this program. Apps that pass both the technical testing and 

content review will be awarded the JIapptique Certification Seal. Certification will be valid for a 

two-year period and is specifically associated with the version of the app that was submitted for 

evaluation. 

We are currently fInalizing numerous other operational details associated with this program. 

including submission requirements, re-certit1cation requirements, procedures for assuring 

compliance \\1th our standards between certification reviews, and so forth. We arc also forming 

an Advisory Board that will provide ongoing oversight of the operation of the program. Like 

any cCliification or accreditation program, we expect to continuously monitor the standards 

performance requirements and update them, as necessary. We arc currently beta testing all of our 

systems and processes with a number of apps and expect to formally launch HACP this spring. 

9 
81 


80805.066

We are very excited about our certification program and believe it will play an extremely 

valuable role and make an important contribution in the mobile health arena b~ giving health 

care professionals, consumers, and patients the confidence they deserve to have in the apps they 

are l:sing or recommending. 

Mr. Chairman and members of the Subcommittee, I would now like to make a few remarks about 

questions regarding the medical device tax and hov. it relates to mobile health apps. 

The Patient Protection and Affordable Care Act (PPACA) imposes an excise tax of 2.3% on 

certain medical devices in order to generate revenue to help offset the spending created by the 

law. In general. under the PPACA, a taxable medical device is a device that is listed by the FDA 

under Section SlOG) of the Federal Food. Drug. and Cosmetic Act and 21 CFR Part 807. There 

are specific medical devices that are exempt from the PPACA's excise ta;'(. such as eyeglasses, 

contact lenses, and hearing aids. There is also an exemption. commonly called the retail 

exemption, for any device of a type that is generally purchased by the general public at retail for 

individual usc. 

The final regulations issued by the Internal Revenue Service pro\'ide for a "facts and 

circumstances" approach to determine whether a type of de\ice meets the retail exemption. The 

regulations enwnerate several factors that arc relevant, with the determination being based on the 

overall balance of factors re]cvant to a particular type of device. A device will be considered 

exempt if it is regularly available for purchase and usc by individual consumers who are not 

medical professionals, and if the design of the device demonstrates that it is not primarily 

intended for usc in a medical institution or office or by a medical professional. One of several 

factors relevant is whether consumers who are not medical professionals can purchase the device 

in person, over the telephone. or over the lnternet, through retail businesses such as drug storcs, 

supermarkets, or medical supply stores and retailers that primarily sell devices. 

Since the passage of PP ACA, and increasingly over the last several months, the medical device 

excise tax has come under broad attack from industry groups, commentators, and legislators. 

While Happtique does not have a position on the existence of the medical device excise tax as a 

10 
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80805.067

general matter, we arc opposed to its imposition on the sale of smartphones, tablet devices, and 

apps used by any type of individual in any setting or circumstance. 

We do not believe that it was the intent of Congress to impose an excise tax on iPhoncs, iPads, 

Android phones or tablets, or Blackberries. A fair reading of the tinal regulations implementing 

the tax should lead one to conclude that the retail exemption applies to alJ smart phones and 

tablets that are on the market today. A physician's use of an iPhone app to treat or diagnose a 

patient that has been regulated by the FDA as a mobile medical app does not change the nature 

of the iPhone from a consumer device sold to the general public at retail to a medical device 

subject to the medical device excise tax. As far as we can asce.rtain, nobody in the Congress, the 

Congressional Budget Oftice, or the investor community thought that the PP ACA was imposing 

a 2.3% tax on Apple or RIM. We think that the retail exemption should apply in all 

circuP.1stances to all smartphoncs and tablets that are sold the general public, but if for some 

reason there is confusion, doubt, or the IRS reaches a different conclusion, then changes should 

be made to the statute as appropriate, to the effectuate such a result. 

With respect to mobile health apps, while we belicye the FDA is the best suited and most 

appropriate agency to regulate those apps that fall under thcir purview for the reasons stated 

above, we believe that mobile apps, regardless of their intended usc, or classification as medical 

devices or accessories to medical devices under the FDA's existing regulatory framework, 

should be exempt from the medical device excise tax. We recognize that due to the nature of 

some apps, the facts and circumstance test and the factors enumerated by the regulations may in 

some cases lead (0 the conclusion that the retail exemption does not apply, despite the [act that 

the app is sold in the App Store. We do not believe it was the intent of Congressto tax any apps 

sold in the Apple App Store Of Google Play. If apps were intended to be taxed, the statute would 

have expressly stated so, and the tax would have been referred to as the medical device and 

software tax. Further, the imposition, or even the threat of imposing the medical device excise 

tax on app \vill stifle innovation for app developers and publishers, which is a market thaI was 

no! the intended target of the tax. 

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80805.068

In closing, may I again thank the Chainnan and members of the Subcommittee for the 

opponunity to panicipatc in this hearing. r would be happy to answer any questions you might 

have. 

12 
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80805.069

Attachment A 

Happtique Health App Certification Program 

Blue Ribbon Panel 

David Lee Scher, M.D., Pane! Chair - former practicing cardiologist and mHealth authority 

Franklin Schaffer, EdD, RN, FMN - Chief Executive Officer, CGFNS International 

Shuvo Roy, Ph.D. Director, Biomedical Microdevices Laboratory and Associate Professor, 

Department of Bioengineering and Therapeutic Sciences, School of Pharmacy, University 

of California, San Franciso 

Dave deBronkart ('ePatient Dave") - well-known spokesman for patient engagement 
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80805.070

Attachment B 
86 


80805.071

Privacy Standards Pages 6-9 

Content Standards Pages 14-17 
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80805.072

Standard 01'1 

The app installs, launches, and runs consistently' on the target device(s) and target operating 

system(s) for that app. 

Performance Requirements for Standard OP1 

OPLOl The app downloads and installs on the target device(s} and target 

operating system{s). 

OPL02 The app consistently launches and runs on the target device(s) that it is 

installed upon. 

Standard OP2 

If applicable, the app connects consistently to any and all peripheral or accessory devices 

(e.g., NFC, Bluetooth), third party mobile application or software, regulated or unregulated, 

required for operation and/or marketed for use in conjunction with such app. 

Performance Requirements for Standard 01'2 

OP2.01 The app connects to the peripheral device(s) and operates consistently. 

OP2.02 The app has a mechanism to notify the user in the event that the app 

fails to connect to any and all peripheral or accessory devices. 

OP2.03 The app connects conSistently to any and all third party mobile 

applications, software, and online user accounts, but such connection 

shall only occur after: (I) notifying user; (ii) requesting permission; and 

(iii) receiving consent from the user. 

OP2.04 The app has a mechanism to notify user of any and all updates applicable 

or necessary for app to connect to any such device, application, software 

or onHne user accounts. 

Standard 01'3 

If the app requires that it be connected to a network, the app is able to connect and operates 

consistently on the intended domestic and global carriers or Local Area Network {LAN}.3 

Performance Requirements for Standard OP3 

OP3.01 The app connects to the network via wireless technology (e.g., 

CDMA2000 and GSM). 

OP3.02 Toe app connects to the LAN via well-established standards (e.g., 802.11, 

802.15,802.16). 

t These standards are based, in part, on materials from the National A!liance for Health Information Technology, 

the Mobile Marketing Association's "Mop:le Application Privacy Policy Framework" (December, 2011), and GSM 

Association's "Privacy Design Guidelines for Mobile Application Development" (February, 2012). 

1 To be defined in conjunctIon With vendors performing Technical Standards testing. 

30ue to the number of mobile operators {approx. SOO}, two U.S. operators and W1Fi wi1l be used a5 a proxy for 

this test 
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80805.073

Standard 01'4 

If the app connects to the network, the IP addresses and URIs are known or can be 

determined. 

Performance Requirements for Standard 01'4 

• OP4.01 The Hst of IP addresses and/or URIs that the app connects to are 

documented, and the owners of those addresses and domain names are 

either disclosed or are capable of being determined from testing. 

• OP4.02 The app does not connect to any hidden IP addresses that are used 

behind the firewall of a router or gateway, Without user's knowledge, 

control, or consent. 

Standard 01'5 

A method for contacting the App Publisher and technical support (if different than the App 

Publisher) is provided. 

Performance Requirements for Standard 01'5 

OPS.Ol The App Publisher's contact information-including but not limited to, 

mailing address, email address for support and general inquiries, web 

address and/or DNS address-is provided within the app, or the app 

provides a link to a webpage that contains the same information. 

• OPS.02 The app provides a method for users to submit feedback to the App 

Publisher for purposes of improving the user experience, Including 

without limitation, any technical issues, bugs, and errors detected by 

users. 

Standard OP64 

The app shall be designed to operate in a manner that supports a usable and useful end-user 

experience. 

Performance Requirements for Standard 01'6 

• OP6.0! App Publisher has a documented process to reView, escalate and 

incorporate, on a timely basis, modifications needed to address suspected 

errors and other technical issues. 

OP6.02 In designing and maintaining the app, the App Publisher has a 

documented process for addressing: 

o User feedback regarding effiCiency (the speed with which users can 

complete their tasks), effectiveness (the accuracy and completeness 

with which users can complete tasks), and satisfaction (the user's 

satisfaction with how well the app operates); and 

4This Standard is derived from 1 he mHIMSS report, "Selecting A Mobile App_ Evaluating the Usability of Medica! 

Applications" 
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80805.074

Standard OP7 

o Reasonable requests by users regarding features and functionality 

not supported by the app (e.g., support in additional languages, 

audiology assistance, visual impairment support, and other requests 

specific to the demographic of the app's intended audience). 

Electronic health record (EHR) systems optimized for mobile devices are apps for certified 

EHRs (EHRs that have been certified by a Federally-designated Authorized Testing and 

Certification Body). Certified EHRs may consist of complete EHRs or EHR modules. 

Performance Requirements for Standard OP7 

• OP7.01 The app operates in accordance with the documented functionality 

provided by the Certified EHR. 

OP7.02 Documentation is provided regarding any relevant EHR certification 

received. 

Standard OPS 

An app that is intended to connect to an Electronic Health Record (EHR) or Personal Health 

Record (PHR) enables users to send and retrieve patient information between a mobile device 

and the EHR/PHR, and does so in a secure manner. 

Performance Requirements for Standard OPS: 

OPS.O! The EHR and/or PHR systems with which the app connects (e.g., 

Allscripts, Epic, Microsoft HealthVault, etc.) are specifically enumerated 

and documentation of the interoperability with each specified EHR and 

PHR is provided. 

• OP8.02 The details and description of the data fields that the app saves, sends 

to, and/or receives from each specified EHR/PHR systems regarding 

patient information (e.g., medical history, diagnoses, treatment plan, 

medications, laboratory results, radiology images, etc.) is provided. 

• OPS.03 The app maintains (at rest) and transmits (in motion) patient information 

in a secure, HIPAA-compliant manner, as applicable (see Standards 52, 

53, and 54). 

Standard OP9 

The App Publisher certifies that the app constitutes a medical device as defined by the U.S. 

Food and Drug Administration (FDA), has ascertained its correct and either 

certifies that the app complies with all applicable or certifies 

that it is not a medical device. 

Performance Requirements for Standard 01'9 

OP9.01 The App Publisher has ascertained that the app, including any and all 

peripheral devices required or intended for operation and/or marketed for 
90 


80805.075

r""i"nrti"n with such peripheral devices, is a ',,"L',;,>L_~L;L>_0d 

OP9.02 App provides documentation demonstrating that the app 

complies with all applicable FDA requirements, including but not limited 

to: Establishment registration; Medical Device Listing; 

J::i20flG£tiQ:.~,_j2>..:-<?r unless exempt, or 

Investigational Device Exemption (IDE) 

System (QS) regulation; Labeling requirements; 

Reporting (MDR). 

• OP9.03 The App's Publisher has a mechanism to immediately notify all users and 

Happtique about an FDA-approved app that is recalled, the subject of an 

FDA advisory, or similar status that calls the app's safety and/or 

effectiveness into question. 

• OP9.04 If the app does not constitute a medical device as defined by the FDA, 

the App Publisher certifies that the app is not a medical device by written 

attestation on the HACP App Submission Form. 
91 


80805.076

Standard Pl 

The type(s) of data that the app obtains, and how and by whom that information is used, is 

disclosed to the user in a Privacy Policy. 

Performance Requirements for Standard Pl 

P1.01 Prior to downloading, installing, or activating an app, the identity of any 

entities that will have access to, collect and/or use of the user's personal 

information, including a company or individual name, country of origin, and 

related contact information is disclosed to the user. 

P1.02 App Publisher discloses any and all ownership, rights or licenses to any 

data collected in connection with the app and its usage, including the use 

of any data for commercial purposes. 

Plo03 The app has a section (tab, button or equivalent) or active link to its 

Privacy Policy, and owner represents that commercially reasonable efforts 

are used to notify users of any material changes to its Privacy Policy. 

• Pl.04 If registration is required to use all or some of the app's features, the user 

is provided with an explanation as to the uses of the registration 

information. 

PLOS User is provided (or has access to) a clear list of all data points collected 

and/or accessed by the app, including by App Publisher and any and all 

third parties such as in-app advertisers, pertaining to the usage of the app, 

including but not limited to browsing history, device (e.g., unique 

identifiers), operating system, and IP addresses. How and from where such 

data points are collected is disclosed. 

PI. 06 User 'is provided (or has access to) a clear list of all data paints collected 

and/or accessed by the app pertaining to the specific user, including usergenerated data and data that are collected automatically about the user 

through other means or technologies of the app. This includes data points 

collected for the purpose of any third-party sharing. How and from where 

such data points are collected is disclosed. 

PL07 App Publisher obtains affirmative express consent before using user data in 

a materially different manner than was previously disclosed when collecting 

the data or collecting new data, including for the purpose of third-party 

sharing. 

P1.08 App Publisher obtains affirmative express consent before collecting 

personal data, in particular information about children, financial and health 

information, Social Security numbers, and location data. 

• Plo09 The Privacy Policy informs users how they can get a copy oftheir personal 

information that was collected by the app. The Privacy Policy also informs 

users how they can correct and update information supplied by, or 

collected about them, held by or on behalf of the owner, or shared with 

!lIn genera!, these Privacy Standards are intended to be consistent with the principles set forth in "Protecting 

Consumer Privacy in an Era of Rapid Change: Recommendations for Businesses and Policymakers," Federal Trade 

Commission, March, 2012. 
92 


80805.077

third parties, including the identity of such third parties, particularly in 

compliance with the HIPAA E!:iva;;yJ"I,dLq", if applicable, and any other laws, 

rules, or regulations to the extent applicable. 

Pl.l0 If not otherwise provided by default, the app allows users to control the 

collection and use of their in-app browsing data by supporting an online Do 

Not Track mechanism, if applicable. 

P1.11 If not otherwise provided by default, the app allows users to control their 

receipt of commercial messages from the App Publisher and third parties 

through an "opt out" option, "do not contact," or substantially similar 

feature. 

P1.12 Each major component of the Privacy Policy is affirmatively agreed to by 

the user. Such components include, but are not limited to, entities that will 

have access to, collect and/or use of the user's personal information; all 

ownership, rights or licenses to any data collected and its usage; list of all 

data paints collected; and so forth. 

• P1.13 Except when expressly disclaimed by App Publisher and the user provides 

an affirmative consent, App Publisher does not share any user data with 

third parties, unless App Publisher: (i) has an agreement with such third 

party that addresses safeguarding any and all such user data; and (Ii) takes 

the necessary measures to anonymize/de-identify all user data. The App 

Publisher has documented this within the Privacy Policy. 

Standard P2 

If data are collected, the user is informed about how long the data are retained. 

Performance Requirements for Standard P2 

P2.01 The Privacy Policy discloses the retention policy regarding user information. 

Such statement includes policies with respect to data retention under any 

third-party data sharing arrangement. 

P2.02 Retention and deletion time periods, which are based on clearly defined 

business needs or legal obligations, are set. If business needs are defined 

as "in perpetuity," this is disclosed. 

Standard P3 

The app user is informed if the app accesses local resources (e.g., device address book, 

mobile and/or LAN network interface, GPS and other location-based services, contacts, 

camera, photos, SMS or MMS messaging, and Bluetooth) or resources from andlor for social 

networking platforms, provided with an explanation by any appropriate means (e.g., the 

"About" section) as to how and why such resources are used, and prior consent is obtained to 

access such resources. 
93 


80805.078

s 

Performance Requirements for Standard 1'3 

P3.01 If the app uses the mobile network, why the network is being used and a 

reasonably likely estimate of the average amount of bandwidth consumed 

per user per month is disclosed to the user. 

P3.02 If the app uses a LAN, why the network is accessed and a likely estimate of 

the average amount of bandwidth consumed per user per month is 

disclosed to the user. 

P3.03 If the app or App Publisher uses SMS or MMS messaging, the user is 

provided with a likely estimate of the average number of messages per 

month, and a disclosure that data rates will apply. 

• P3.04 If the app or App Publisher sends emails, the user is provided with a likely 

estimate of the number of emails sent per month. 

P3.05 If the app uses Bluetooth, why Bluetooth is being used and which of the 

Bluetooth profiles are being used is disclosed to the user. 

P3.06 If the app uses the device's camera, why the camera is being used is 

disclosed to the user. 

• P3.07 If the app uses device-available methods to determine location, why the 

location is being determined is disclosed to the user. 

P3.08 If the app accesses the device's native address book, why the address book 

is being used is disclosed to the user. 

P3.09 If the app accesses the device's native calendaring or alarm system, why 

the calendar and/or alarm system is being used is disclosed to the user. 

P3.10 If the app accesses the Public Switched Telephone Network (PSTN), why 

the PSTN is being accessed is disclosed to the user. 

• P3.11 If the app accesses social networking sites, the reason why such sites are 

being accessed is disclosed to the user. 

Standard P4 

If the app, on behalf of a Covered Entity or a Business Associate (each as defined by HIPM 

and HITECH and the rules thereunder), collects, stores, and/or transmits information that 

constitutes Protected Health Information (as defined by HIPM and HITECH and the rules 

thereunder), it does so in full compliance with HIPM, HITECH, and all applicable laws, rules 

and regulations. 

Performance Requirements for Standard P4 

P4.01 The user can affirmatively opt in or out (at any time) of information shared 

with or given access by third parties. 

P4.02 The App Publisher certifies that a Business Associate Agreement (BAA) has 

been executed pursuant to HIPM with any and all necessary third parties. 

P4.03 The user has the ability to access or request any of his/her Protected 

Health Information (PHI) collected, stored and/or transmitted by the app, 

and has the ability to learn the identity of any person or entity who had or 

has been granted access to his/her PHI. 

P4.04 The App Publisher uses requisite efforts to limit the use and disclosure of 

PHI, including ePHI, to the minimum necessary to accomplish the intended 

purpose (e.g., "need-to-know"). 
94 


80805.079

Standard 1'5 

~n'()nd~rlCe with applicable laws and 

Performance Requirements for Standard 1'5 

PS.Oi The app provides clear notice of the content that will be made available 

and its sUitability for specific age groups. 

P5.02 The app includes a clear and conspicuous Privacy Policy that addresses use 

by any child under the age of 13. 

PS.03 The app provides for an age verification process-either automatic or selfreported-to control access to age-restricted content and to minimize the 

inappropriate collection, use, or disclosure of personal information from a 

child. 

PS.04 The apa does not, without obtaining verifiable parental/legal guardian 

consent, collect, use, or disclose data from any child under the age of 13. 

PS.OS The app enables a parent/legal guardian who becomes aware that the child 

has provided information without his/her consent to contact the App 

Publisher. 

PS.06 The Privacy Policy provides that the App Publisher will delete any child's 

personal information upon notice, or in the event that the App Publisher 

becomes aware or has knowledge, that such information was provided 

without the consent of a parent/legal guardJan, including information that 

was shared with a third party. 

P5.07 Apps that are intended for children must have a location default setting that 

enables parents/legal guardians to prevent the app from automatically 

publishing their child's location. 

Standard P6 

Retroactive or prospective material changes to Privacy Policies require the prior consent of 

the user. 

Performance Requirements for Standard P6 

P6.01 A mechanism is in place to notify users of changes to the Privacy Policy. 

P6.02 A mechanism is provided that enables users to acknowledge and consent to 

changes to the Privacy Policy. 
95 


80805.080

Standard Sl 

The app, including without limitation, any advertisement displayed or supported through the 

app, is free of known malicious code or software such as malware, including, but not limited 

to, viruses, worms, trojan horses, spyware, adware, rootkits, backdoors, keystroke loggers, 

and/or botnets. 

Performance Requirements for Standard 51 

51.01 A scan of the app using scanning software does not reveal any known 

malicious code or software objects. 

51.02 A scan of any third party code, including advertising networks, incorporated 

into app for purposes of displaying or supporting advertisements (e.g., 

banner, interstitial) does not reveal any known malicious code or software. 

Standard S2 

The App Publisher ensures that the app's security procedures comply at all times with 

generally recognized best practices and applicable rules and regulations for jurisdiction(s) in 

which the app is intended to be sold or used and such procedures are explained or made 

available to users. 

Performance Requirements for Standard S2 

52.01 Administrative, physical, and technical safeguards to protect users' 

information from unauthorized disclosure or access are provided and 

employed. 

• 52.02 Access to user's information is limited to those authorized employees or 

contractors who need to know the information in order to operate, 

maintain, develop, or improve the app. 

52.03 If the app utilizes unique identifiers, the identifier is linked to the correct 

user and is not shared with third parties. 

• 52.04 Where possible, risk-appropriate authentication methods are used to 

authenticate users. 

• 52.05 A written description of security procedures (in detail sufficient to apprise 

end users about how their personal information is safeguarded) is provided 

in a section of the app (tab, button, or equivalent) or through an active 

link. The security procedures are written in clear, easy-to-understand 

language and terms and are affirmatively agreed to by the user. Such 

components include, but are not limited to, how personal information is 

safeguarded, how unique identifiers are linked to the correct user, and 

authentication methods used. 

• 52.06 The Apo Publisher has a mechanism in place to review security procedures 

on an ongoing basis and update security procedures, as necessary, to 

ensure that they comply at all times with applicable rules and regulations 

for jurisdiction(s) in which the apo is intended to be sold or used. 

52.07 Cloud-based apps meet Statement on Standards for Attestation 

Engagements (SSAE) No. 16 requirements and a SSAE No. 16 audit report 

is provided. 
96 


80805.081

52.08 If the app uses 5MS or MM5, the user is informed whether messages are 

encrypted and, if so, the level of encryption. 

• 52.09 The App Publisher has a formal and documented secure software 

development lifecycle (SDLC) process that has been implemented 

throughout the inception, testing, implementation, deployment, and 

maintenance of the app. 

Standard S3 

If the app collects, stores or transmits any personal information, including, but not limited to, 

usernames and passwords, such information is collected, stored, and transmitted using 

encryption. 

Performance Requirements for Standard S3 

53.01 Passwords are stored using a random length, one-way salted hash, 5HA-l 

or better. 

53.02 Usemames and passwords are collected and transmitted only when using 

encryption between the client app and the server. 

• 53.03 Other personal information while at rest and/or in motion is encrypted using 

a generally recognized, industry-accepted encryption method (e.g., FIPS 

140-2.", ISO/lEC) for such information and the encryption level is disclosed. 

53.04 App contains security safeguards to verify the identity of intended user in 

the event of forgotten, lost or unknown user name, password and/or 

passcode ("unique identifiers"), for purposes of reminders, re-linking, or 

creation of new unique identifiers. 

Standard S4 

If the app collects, stores and/or transmits information that constitutes PHI as defined by 

HIPAA, HlTECH, and the rules thereunder (e.g., App Publisher constitutes a Business 

Associate pursuant to HIPAA and HlTECH), it uses requisite efforts to maintain and protect 

the confidentiality, integrity, and availability of individually identifiable health information that 

is in electronic form (e.g., ePHI). 

13 

Performance Requirements for Standard S4 

• 54.01 If the app, or through its use, subjects the user or any party to HIPAA or 

HlTECH, the App Publisher has implemented administrative, physical and 

technical safeguards, and developed policies and procedures, pursuant to 

the HIPAA 5ecl,~q)\"h,13, as applicable. For purposes of the technical 

safeguards/security controls, only certain certified encryption technologies 

are permissible for compliance with HIPAA and HlTECH. 

54.02. If the app is, or through its use becomes, subject to HIPAA or HlTECH, ali 

PHI collected and/or stored is encrypted at all times and is otherwise 

protected in accordance with HIPAA and HlTECH. 
97 


80805.082

54.03 If the app is or becomes subject to HIPAA or HITECH, all data transmission 

to and/or from the app through any network with any server, system, 

software, application and third party is encrypted at all times. 

54.04 If applicable, the app or the App Publisher has safeguards in place and/or 

uses requisite efforts to comply with any and all obligations pursuant to any 

BAA, including capabilities to assist a covered entity in curing any breach, 

and address all other requirements of HlTECH in the event of a breach. 

54.05 The App Publisher has the capabilities to enable compliance, and shall 

comply with any and all applicable notification requirements to its users in 

the event that users' PHI is or is suspected to be (e.g., 

Breach Notification Rule pursuant to HIPAA and including the 

capability to support and execute .~;iL(2t]9D :.Q'i.ki:9.J:t2.0t:.S 

Standard SS 

If the app collects, stores and/or transmits personal information, the app offers one or more 

industry-accepted methods for guarding against identity theft. 

Performance Requirements for Standard SS 

55.01 The app provides a method for securely authenticating the user at a 

session level (e.g., password, pass phrase, PIN, challenge phrase) and also 

utilizes additional methods or techniques" to further secure the identity of 

the users whenever the system is initially establishing identity or the 

system has indications that the identity might have been compromised 

(e.g., multiple password failures). 

Standard S6 

The App Publisher has a mechanism to notify end users about apps that are banned or 

recalled by the App Publisher or any regulatory entity (e.g., FDA, FrC, FCC). 

Performance Requirements for Standard S6 

56.01 In the event that an app is banned or recalled, a mechanism or process is 

in place to notify all users about the ban or recall and render the app 

inoperable. 

56.02 In the event that the app constitutes a medical device (e.g., SlO(k)) or is 

regulated by the FDA in any other capacity, the App Publisher has a policy 

and a mechanism in place to comply with any and all applicable rules and 

regulations for purposes of handling all aspects of a product notification or 

recall, including all corrections and removals. 

Examples of additional methods or techniques might be the use of certificates signed by recognized certificate 

authorities, two· factor authentication methods, static knowledge based authentication methods, ar.d/or 

dynamIC knowledge-based authentications. 
98 


80805.083

Standard 57'6 

The app implements reasonable and requisite security measures to safeguard user financial 

data in accordance with any and all applicable laws, regulations, industry best practices, and 

standards. 

Performance Requirements for Standard 57 

S7.01 Any app that collects, stores and/or transmits user financial data for any 

purpose, including payment processing, or the app directs to any website 

for the purpose of collecting and/or processing of financial information, 

including any third party website, shall comply with any and all applicable 

Federal and state laws, rules and regulations, and private sector regulatory 

best practices guidelines and initiatives regarding data security 

requirements (e.g., Section 5 of the FTC Act, Fair Credit Reporting Act, 

Gramm-Leach-Bliley Act, Payment Card Institute Data Security Standards, 

the SANS Institute's security poliCY templates, and standards and best 

practices guidelines for the financial services industry provided by BITS, the 

technology policy division of the Financial Services Roundtable). 

:it> HC Act, Section 5, available at: 

PC! Security Standards Council, PCI sse Da.ta Security Standards Overview, availab(e at: 

SANS Institute, information Sect;rity Policy Templates, available at: 

BITS, Fina1cia1 Services Roundtable BITS Publications, available at: 

b ··s 
99 


80805.084

14 

Standard (1 

The app is based on one or more credible information sources such as an accepted protocol, 

published guidelines, evidence-based practice, peer-reviewed journal, etc. 

Performance Requirements for Standard (1 

C1.01 If the app is based on content from a recognized source (e.g., guidelines 

from a public or private entity), documentation (e.g., link to journal article, 

medical textbook citation) about the information source and copyright 

compliance is provided. 

• C1.02 If the app is based on content other than from a recognized source, 

documentation about how the content was formulated is provided, 

including inforenation regarding its relevancy and reliability. 

Standard (2 

The app's content reRects up-to-date information (as of the date that the app is submitted for 

certification ). 

Performance Requirements for Standard (2 

C2.01 Documentation about the source of the app's content and explanation as to 

why it is deemed to be up-to-date is provided. 

C2.02 The date(s)/source(s) of the app's content is provided through an "About" 

section (tab, button or equivalent). 

C2.03 The App Publisher has a method or protocol for determining if an app's 

content requires updating in order to remain up-to-date. 

• C2.04 The App Publisher has a method or protocol for updating the app's content 

when new or changing information warrants. Updates should include a 

description of and documentation for each change. 

Standard (3 

For any app that contains content that is derived from a third-party source (e.g., accepted 

protocol, published guidelines, evidence-based practice, peer-reviewed journal), any 

Significant deviations in an app's content from the original source (e.g., excerpts, abbreviated 

versions) are indicated and explained_ Any such app shall also provide a method or citation to 

enable the user to locate to the complete content. 

Performance Requirements for Standard (3 

C3.01 For any app derived from a third-party source that does not contain the 

original source's complete content, such app's description or "About" 

l7 These standards are based, in part, on materials from the Association of American Medical Colleges (AAMC), 

includit1g AAMC's MedEdPORTAl Submission Standards and Schoiarly Criteria 
100 


80805.085

section shall indicate the specific portiones) absent and contain an 

explanation as to why each portiones) is not included, 

(3,02 For any app derived from a third-party source that does not contain the 

original source's complete content, the app provides a link, reference, or 

other appropriate method to enable the user to locate the complete 

content. 

Standard C4's 

The app's description and content are truthful, fair, and not misleading, 

Performance Requirements for Standard C4 

• C4,01 Backup documentation is provided to substantiate any claims made in the 

description and/or content. 

• (4,02 Disclosures are provided, as needed, to prevent deception, Such disclosures 

shall be presented in a clear and conspicuous manner. 

• (4,03 Disclosures are provided, as needed, if the app requires an additional feels) 

(e,g" subscription fee) in order to fully access the app, its associated 

functionality, and/or content. 

Standard C5 

An app that contains tools that perform user or patient management functions, including but 

not limited to, mathematical formulae, calculations, data tracking, reminders, timers, 

measurements, or other such functions, does so with consistent accuracy and reliability to the 

degree specified in the app, 

Performance Requirements for Standard C5 

• (5,01 When operated, the app produces consistent and accurate results that are 

independently verifiable, 

Standard C6 

Reference apps (e,g" apps that are used for reference purposes to inform clinical decisionmaking, etc.) derive their content from one Dr more authoritative sources. 

Performance Requirements for Standard C6 

(6,01 The app's content is based on authoritative sources as recognized by the 

field or discipline that is the subject of the app, 

(6,02 As appropriate, prior accepted work (e.g" published, peer reviewed) is 

used to derive the content of the app, 

• (6,03 The source(s) and date(s) (e.g" published, last modified) of the app's 

content are cited. 

,8 for further information and guidance, refer to j'Dot Com Disclosures: Information about Onllne Advertising," 

Federal Trade Commission, 1:,."'-/ ..•. //:: ••. ::_Co • .1.1 
101 


80805.086

15 

Standard C7 

Instructional, educational assessment, and other such apps (e.g., apps used in educational 

settings for physicians, nurses, students, etc.) derive their content from one or more 

authoritative sources and are based on accepted pedagogy and/or learning strategies or 

techniques that are appropriate for the intended audience(s). 

Performance Requirements for Standard C7 

• G.Ol The app's content is based on authoritative sources as recognized by the 

field or discipline that is the subject of the app (e.g., recognized textbook 

and/or peer-reviewed journals in an applicable field or discipline). 

• G.02 As appropriate, prior accepted work (e.g., published, peer reviewed) is 

used to derive the content of the app. 

• G.03 The source(s) and date(s) (e.g., published, last modified date) of the app's 

content are cited. 

G.04 The app's learning goals and objectives are clearly stated. 

C7.05 The app uses suitable teaching and/or learning approaches to meet its 

stated objectives. 

C7.06 A process or method for assessing and documenting improvements in 

knowledge or skills is provided. 

Standard C8 

Apps that constitute clinical decision support (CDS) software and apps that integrate or work 

in conjunction with CDS software, comply with current rules and regulations, if applicable 

(e.g., for CDS software that is regulated by the FDA), and evidence-based/accepted practice 

guidelines. 

Performance Requirements for Standard C8 

C8.01 Documentation is provided regarding the regulations and any applicable 

evidence-based/accepted practice guidelines that the app operates in 

accordance with. 

C8.02 App has a process and meclhanism to deliver ali applicable updates 

pursuant to any relevant guidelines when such guidelines are issued or 

made available. 

Standard C9 

For a multi-purpose app (e.g., apps that have reference, instructional, or educational 

assessment content, integrate or work with CDS software, etc.),where each element of the 

app can be separated for testing, each element of the app meets the requirements of the 

relevant Content Standard(s) herein. 

Performance Requirements for Standard C9 

C9.01 Each separate function and/or content area is defined, documented, and 

operates in accordance with relevant Content Standards described herein. 
102 


80805.087

Standard C10 

An app that contains advertisements clearly identifies the advertising and complies with any 

and all applicable regulatory requirements, particularly advertisements that involve or relate to 

products or services that are clinical or related to health. 

Performance Requirements for Standard C10 

CIO.Or Information in any app that constitutes advertising is denoted by the 

message "This is an advertisement" or equivalent. 

C10.02 Information in any app that constitutes advertising will at all times comply 

with all applicable regulatory requirements related to the marketing of 

any product or service, including, but not limited to those of the FDA, 

FTC, FCC, and any laws, rules, regulations and poliCies of other 

regulatory entities in all jurisdictions that app's owner makes its app 

available. 

• CIO.03 App Publisher takes commercially reasonable efforts to clearly and 

prominently indicate (e.g., in the "About" section) that any 

advertisement, which may be perceived as health care or medical advice 

or treatment, is being displayed for the sole purpose of advertising and 

should not be construed as a substitute for medical or clinical advice. 

Standard Cll 

The content of apps should be written and presented in a manner that is appropriate for the 

intended audience. 

Performance Requirements for Standard Cl1 

C11.01 The content of an app is designed and written in a way that is 

appropriate for the target audience (e.g., age, educational background, 

healthcare professional versus patient or consumer, caregiver, and so 

forth). 
103 


80805.088

A number of acronyms are used in this document. The following table provides the full term 

for each acronym. 

EHR 

fCC 

fDA 

fTC 

GPS 

GSM 

HlPAA 

IUTECH 

!.AI\! 

!>STIII 

SMS 

URI 
104 

Mr. WALDEN. Mr. Chodor, thank you for your very good testimony, and that is why we are having this hearing is to try and 

shine some light and bring some clarity. 

Mr. Jonathan Spalter is next. He is the Chairman of Mobile Future. Mr. Spalter, thank you for being here. 

STATEMENT OF JONATHAN SPALTER 

Mr. SPALTER. And thank you, Chairman Walden, and members 

of the subcommittee for giving me the opportunity to testify on behalf of Mobile Future and our member companies. My name is Jonathan Spalter and I am Chairman of Mobile Future. We represent 

innovators across the wireless ecosystem, and I sit before you, I 

think, at a very, very hopeful time for our community. 

It is now believed by many scientists that there has already been 

a child born in the world who will live to 150 years old. What an 

exciting notion for our children and our grandchildren. These leaps 

and bounds in the quantity and the quantity of our lives are in no 

small part due to the astounding progress we are all witnessing at 

the nexus that we are talking about today of health care and mobile innovation. 

This morning I would like to very focus very practically my comments on what mobile innovators need from government to help us 

all advance our health. We know that the virtuous cycle of investment in the mobile ecosystem from networks to devices to applications provides an unparalleled foundation for health innovation, 

and I believe government can help build on it by providing our mobile health innovators four key and achievable certainties. First, a 

clear understanding of where regulation begins and where it ends. 

The mobile medical app guidance now has been pending for 2 

years. Clear guidelines and regulatory certainty are needed now, 

commonsense and affordable approval processes that are measured 

in months, not in years, timely decisions across government that of 

course encourages a careful balance to safeguard patient safety and 

privacy on the one hand, which we all care about, without inhibiting the development and use of mobile medical apps, and finally, 

basic fairness when it comes to the taxes we pay, all consumers 

pay, on wireless services and applications. Bottom line: Americans 

would benefit from clear guidelines on when applications go to 

which government agency and for what set of approvals. 

But let us also not forget that none of this progress would be possible without spectrum and without investment, and therefore it is 

imperative that the incentive auctions, which are being designed 

now at the FCC, are open and inclusive so that all Americans can 

take advantage of wireless health applications, and it is also worth 

noting that the needed spectrum is held by government agencies, 

significantly held by government agencies, so all of our eyes, all of 

America’s eyes are on the federal agencies who hold much of this 

underutilized spectrum hoping they will make a meaningful contribution. 

I know that all of us can personalize this progress that we are 

talking about today. My daughter Willa was diagnosed 2 years ago 

at age 8 with type 1 diabetes. She has been extremely fortunate 

that from her very first week with the disease to have been in a 

clinical trial at Stanford University that is pursuing the holy grail 

105 

of diabetes research: the artificial pancreas. Even having worked in 

mobile innovation and technology myself for years, I wasn’t prepared, my family wasn’t prepared, for just how personally and profoundly relevant mobile innovation would become so quickly to my 

daughter. On the first day of her trial, there was her 

endocrinologist, Bruce Buckingham, and her research nurse, Jen 

Block, explaining the research and the hope that it holds for 3 million Americans who are dealing with this disease. And then Dr. 

Buckingham, not really knowing what I do for a living, spoke about 

the importance of spectrum as he explained the wireless sensors 

that were all around my daughter’s hospital room and the wireless 

glucose monitor that she now wears in her body. The medical team 

included software coders, application developers, algorithm writers, 

network engineers, all pushing together towards what could be and 

I indeed hope will be nothing short of a revolution in diabetes management, and this is the future of American health care. We all 

have a personal stake in speeding its process, and ultimately this 

is not about government stepping away, rather it is a profound opportunity for government to lean in and demonstrate that it too can 

innovate, that it can act flexibly, that it can move quickly with 

common sense and with the understanding that innovation is born 

of many, many things including a healthy dose of humility and restraint when it comes to regulation. 

So on behalf of application developers and wireless innovators 

across our country, on behalf of my little girl and the millions of 

Americans who are managing chronic diseases, I really thank you 

for the opportunity to testify about our Nation’s promising mobile 

future, and I really look forward to your questions. 

[The prepared statement of Mr. Spalter follows:] 

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TESTIMONY OF JONATHAN SPALTER 

CHAIRMAN, MOBILE FUTURE 

on 

"HEALTH INFORMATION TECHNOLOGIES: HARNESSING WIRELESS INNOVATION" 

before the 

Subcommittee on Communications and Technology 

Committee on Energy and Commerce 

UNITED STATES HOUSE OF REPRESENTATIVES 

WASHINGTON, D.C. 

March 19,2013 
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TESTIMONY OF JONATHAN SPALTER 

Chairman Walden, Ranking Member Eshoo and members of the subcommittee, thank you for 

this opportunity to testify on behalf of Mobile Future and its member companies. 

My name is Jonathan Spa Iter, and I am Chairman of Mobile Future, which represents innovators 

across the wireless ecosystem-from applications developers to device makers to service 

providers-as well as a range of non-profit organizations which depend on them. We are 

united in our commitment to advancing a policy environment that encourages the profound 

mobile investment and innovation we see all around us today. 

* * * 

Summary 

The subject of this hearing-and mobile health generally-is one very close to Mobile Future's 

mission of fostering a policy environment that supports continued investment and innovation in 

the nation's mobile ecosystem and the next generation of wireless broadband networks and 

services. We are very focused on how we as a nation can ensure that innovators and 

entrepreneurs have the opportunity and incentives they need to develop new services, new 

applications, and new technologies, and in so doing, create new jobs, grow our economy, and 

sustain American competitive leadership globally. It is also critical that American citizens can 

reap the benefits of this innovation. 
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With respect to mHealth initiatives specifically, we have the additional promise of improving 

the effectiveness of patient care, empowering Americans to better manage and control their 

own and their loved ones' health, and radically reducing the cost and increasing the 

effectiveness of health care delivery in the United States. 

My message today is simple: 

1. Though still in their infancy, mHealth applications and services already are helping to 

save lives and improve health care delivery. If properly fostered, mobile entrepreneurs 

and innovators can help re-invent health care delivery in the years to come as 

Americans benefit from a more connected life. The virtuous cycle of investment in the 

mobile ecosystem-from networks, to handsets and tablets, to applications-provides 

an unparalleled foundation for innovation and advancement in mHealth. First and 

foremost, we need to ensure our nation's innovators, businesses and consumers will 

have the wireless spectrum required - now and in the future to support these 

powerful and promising new applications. 

2. We must find the best way to advance the nation's health and wellness and protect our 

citizens' safety and privacy without stifling innovation and investment. mHealth 

innovators.,.. and the millions of Americans they serve - need a clear understanding of 

where regulation begins and ends, common-sense approval and review processes, low 

economic barriers to entry, timely decisions reflective of the short development cycle 

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for mobile applications, and a coherent and cohesive approach across government 

agencies. In order to succeed, mHealth entrepreneurs also need advanced networks 

and the regulatory restraint, certainty and speed, that is essential to support the 

substantial annual private capital investment needed to keep the nation's wireless 

infrastructure state-of-the-art and capable of keeping pace with fast-rising demand for 

mobile Internet-driven by consumers, by businesses and the rapidly expanding 

machine-to-machine connectivity that is certainly a key component of the mHealth 

renaissance we are enjoying today. 

Our World is Going Wireless 

Wireless connectivity is increasingly a central part of our everyday lives - from how we work 

and learn, to how we stay connected to friends and family, and increasingly how we take care 

of our health, diet and fitness. Overall, wireless innovation supports nearly 3.8 million 

American jobs today and contributes nearly $200 billion to the economy. One-third of 

smartphone users in the u.s. already use their mobile device to keep track of things like diet 

and exercise. For Americans under the age of 35, that number rises to 60 percent. By some 

estimates there are already 40,000 apps and counting in the broad mHealth category. Venture 

capitalists so far have invested three-quarters of a billion dollars in early-stage mHealth apps 

and devices. 

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These are the early signs of anytime, anywhere healthcare taking hold and this has the 

significant potential to improve the outcomes of the nation's health care system especially at a 

time when the u.s. ranks 36th globally in terms of overall health care outcomes, though first in 

all categories for per capita health care costs and spending. Popular demand for mobile 

medical applications underscores a market-driven explosion in the use of health information 

technology in ways that engage consumers and health care providers to enhance care 

outcomes, promote self-management, improve safety, and lower health costs. 

Looking more broadly, it took Apple nine months after its App Store was established five years 

ago to reach 1 billion total app downloads. By the end of this year, it is estimated that 2 billion 

apps will be downloaded every single week. This "virtuous cycle" of wireless innovation is the 

great American success story: app developers from the smallest start-up to now Fortune 500 

companies riding on the U.S.'s world-class wireless infrastructure utilizing the best mobile 

handsets, tablets, and operating systems. The average mobile user today has over 100 mobile 

apps on smartphones and other devices, and by one estimate, the number of consumer devices 

with mHealth apps doubled just last year. 

Overall, wireless innovation is transforming each facet of our daily lives from education and 

energy to public safety and civic engagement. Smart Grid, mCommerce, and digital textbooks 

allow us to re-imagine entire sectors of the economy - with improved efficiencies and exciting 

opportunities. In the years to come, the Internet of Things with machine-to-machine 

connectivity - promises even more advanced mobile functionalities. 

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mHealth: The Future is Now 

Nowhere is that promise of future innovation and opportunity greater than mobile health: 

from wearable mobile devices that track your activity levels, to using your smartphone to 

measure your blood sugar and transmit the results to a doctor, parent, or caregiver, and the 

frontiers of nanotechnology where tiny microchips and digestible antennas can confirm an 

elderly parent has taken their pills. I could keep going - walking canes that can do everything 

from provide turn-by-turn directions to alerting your caregiver to an irregular heartbeat, and 

just this week MIT's Technology Review announced that researchers have found a way to 

directly print wireless sensors on to our skin - as we could spend days discussing these exciting 

mHealth advances alone. Our message today is that the innovation and vision exist now in both 

the medical and technology communities working together collaboratively. This progress will 

proceed, in many respects, as rapidly as government allows. 

And I'm quite certain that each of us can personalize this progress. I have a daughter who two 

years ago at age 8 was diagnosed with Type 1 diabetes. We are fortunate that she was 

accepted in her first week with the disease into a NIH-supported clinical trial at Stanford 

University's lucile Packard Children's Hospital that is working to pursue the 'holy grail' of 

diabetes research-the artificial pancreas. Even having worked in the field of mobile 

innovation for years, I was not prepared for just how personally relevant mHealth - and mobile 

technology in general- would so quickly become. On the first day of her trial, there was her 

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endocrinologist, Dr. Bruce Buckingham, and her research nurse, Jen Block, explaining the 

research and the hope it holds out to the nearly three million Americans living with type 1 

diabetes. And then the very same medical researchers began talking about the importance of 

wireless spectrum, as they explained the mobile sensors and other wireless technologies all 

around the hospital room. 

Their team includes software coders, application developers, algorithm writers, network 

engineers and other mobile innovators-all pushing together for what could be-indeed I hope 

will be-nothing short of a revolution in diabetes management. As for my daughter today, and 

many millions of Americans who courageously will be managing chronic diseases tomorrow, 

their health - and for many quite literally their lives - will depend on continued innovation in 

mobile health applications and services. 

This is the future of American health care, and we all have a strong, personal stake in 

supporting it. This is not about the government stepping away. Rather mHealth presents an 

extraordinary opportunity for our government to instead 'lean in' and demonstrate decisively 

to our citizens that our lawmakers and our regulators can move judiciously and quickly when it 

comes to the medical needs of our families - and they can do so with the understanding that 

innovation is born of many things, including a healthy dose of humility about the role of 

regulation. In short, when it comes to mobile innovation, our government now has a real 

moment of opportunity to prove that regulation will never be an "app killer," but a fierce 

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exponent of and catalyst to the next "killer app" - an app which may well improve our health, 

prolong our lives, and enhance our wellness. 

Indeed, across virtually every metric, mHealth applications hold such great promise to help 

improve our nation's health care system. By one estimate, connected devices reduce intensive 

care stays by 17 percent and cut mortality rates by 25 percent. Similar studies have found that 

the cost of elderly care in rural areas could be reduced by as much as 25 percent with remote 

wireless monitoring and other mHealth efforts. The cost savings projected can be staggering-

$200 billion from remote monitoring alone in the next 25 years. 

The FCC's mHealth Task Force found similar savings in health care administration: 30 percent 

cost savings due to wireless and remote access to health records, and electronic prescriptions 

could save $29 billion over the next decade. Not surprisingly, given the magnitude of 

opportunities, the market for mHealth apps is expected to grow by 23 percent annually over 

the next five years, reaching $26 billion by 2017. This does not even necessarily include 

countless mHealth apps and services that are available for free to consumers. 

Among the tens of thousands of mHealth services and apps available today, I wanted to 

highlight a handful of start-up companies, and Mobile Future members, that are leveraging 

technology to improve patient outcomes: 

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Infield Health offers a range of text-based solutions to help patients transition from 

hospital to home and follow doctors' orders. The delivery of care information straight 

to a patient's wireless device has been found to result in a SO percent improvement in 

reported outcomes. 

HealthCrowd provides an individualized messaging service to reduce hospital 

readmissions and improve daily self-care. Solutions are geared to pulmonary 

rehabilitation, diabetes management and other chronic illnesses. These solutions have 

been found to double the likelihood that a patient completes a six month outpatient 

care program. 

Supermechanical's Twine personal home wireless sensors entirely financed by a 

crowd-funded Kickstarter initiative - allows, among other things, the families and 

caregivers of the elderly or infirm to be aware that those under care remain ambulatory 

in their homes with email or text alerts provided when refrigerators, doors, or even 

medications are opened. 

Vox iva sends regular text-based messages to expectant mothers via its Text4Baby 

program. 

Still other companies are pursuing a host of different solutions: remote monitoring 

applications, wearable sensors, smart bandages, and video telemedicine solutions. 

Importantly, solutions are not just for consumers, they are also for clinical professionals. There 

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is significant ongoing investment in cloud-based secure enterprise services that help provide 

more integrated clinical solutions. All share the promise of improving the quality of care, 

reducing costs, and improving citizens' overall experience. 

These applications provide the tools Americans need to more actively engage and take control 

of their own care, and better utilize preventive care solutions. In rural America, mHealth also 

expands the reach of health care facilities and access to specialists hundreds of miles away. 

Too many communities do not have the medical care they need, and doctor shortages in 

underserved communities are an increasing national challenge. mHealth can help patients 

reduce travel times, improve health outcomes, and substantially reduce the cost of care, both 

in terms of time and money. 

A Balanced Regulatory Framework 

We appreciate the subcommittee's commitment - both in holding this hearing as well as its 

long-standing efforts to advocate on behalf of greater regulatory certainty and clarity. It is 

essential that our nation have the world's most effective and nimble regulatory framework for 

mHealth services and applications that protects patient safety and privacy while facilitating 

continued progress in applying mobile innovation to advancing the nation's health and 

wellness. 

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Any discussion of the apps economy and government should begin with the broader mobile 

ecosystem and the critical role government plays in ensuring there is sufficient spectrum 

available for mobile broadband use. Here too, the subcommittee has shown great leadership 

and we thank you for the Spectrum Act and related efforts to help unlock additional spectrum 

for commercial use. 

The ability of mHealth applications to deliver on their promise is entirely reliant on continued 

investment in - and advancement of - our nation's wireless networks. Thus, as wireless 

providers seek to invest in more and faster wireless broadband infrastructure (last year alone 

brought $25 billion in capital investment), Mobile Future shares your view that additional 

spectrum is critically needed to aid in these efforts. 

Mobile data traffic is expected to grow 100-fold over the next 10 years, and all of the mHealth 

initiatives we discuss today will require strong and scalable broadband networks to keep up this 

explosion in demand. As this subcommittee understands, strong broadband networks require 

adequate wireless spectrum capacity. This is an issue that has the government's attentionboth in the Administration and at the FCC. We have to move forward in a timely way to achieve 

the goal set forth in the National Broadband Plan to make significantly more spectrum available 

to consumers and to the millions of Americans who are turning to their mobile devices to help 

improve their health. 

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The FCC is hard at work advancing innovative incentive auctions that aim to make significantly 

more spectrum available to expand mobile broadband, and we fully support those efforts. It is 

imperative that these auctions are open and inclusive so all Americans have access to the 

mobile capacity needed to empower these mHealth innovations. Additionally, much of the 

spectrum necessary to achieve our objectives is controlled today by the federal government. 

applaud the efforts of the Administration and NTIA to transition under-utilized federal 

spectrum to commercial use, and urge action to move forward quickly to deliver on that 

promise. It is also imperative that we have a vibrant, flexible and fully functioning secondary 

market and an efficient and quick-paced regulatory review process supporting it to ensure that 

already available commercial spectrum is put to consumer use. 

It is equally important that health care facilities themselves are connected and we support the 

FCC's recent effort to expand telehealth networks across the nation through much-needed 

reform of the Rural Health Care funding program. For mHealth to succeed, doctors and medical 

professionals themselves cannot be dependent upon dial-up or slow connections at clinics and 

hospitals. In addition, the FCC has also taken important steps to allow greater use of spectrum. 

for Mobile Body Area Network devices, and has remained vigilant regarding the spectrum 

needs of other health care services. 

With respect to mobile medical applications, my member companies - and hundreds, if not 

thousands, more potential developers and innovators - have the technological tools to harness 

4G networks to improve patients' lives. But they do not always know if their new service or 

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application will be regulated. Assuring patient safety and privacy is critical, and the 

government's approach should be tailored to meet those core objectives without stifling 

innovation. 

We can all agree there is a clear cut need for some degree of oversight over clinical treatment, 

and housing that functionality on a mobile device does not eliminate the need for thoughtful 

review. All parties in the ecosystem would, however, benefit from a clearer set of guidance on 

when they go to which government agency and for what set of approvals. The dynamic nature 

of innovation in mHealth requires a predictable, rapid and transparent approach. 

First, we are hopeful that there is limited regulatory duplication and the government will speak 

with one voice to the greatest extent practicable. The risk of confusion, duplication and 

jurisdictional overlap is heightened here as old regulatory silos - medical devices regulated at 

the FDA and communications devices at the FCC - have been blurred, if not eliminated 

altogether. mHealth solutions also face potential scrutiny from the Federal Trade Commission 

(FTC), Centers for Medicare and Medicaid Services (CMS), and the HHS Office of the National 

Controller (ONe). Congress' mandate for a strategic Health IT plan by January 2014, including 

both the FDA and FCC, is promising. As are efforts within the FCC and FDA to improve 

collaboration and coordination like the FCC's call for its own health care director, and the FCC 

mHealth Task Force's recommendation for expanded inter-agency collaboration. We urge clear 

delineation of regulatory jurisdiction between agencies to help preserve the incentive to 

innovate. 

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Second, we hope the FDA will provide much-needed clarity to application providers and 

developers as to how and when mHealth applications will be regulated and the applicable 

approval process. The line between medical devices and well ness application is not always 

clear: When does a health and wellness app become a regulated clinical tool? The Mobile 

Medical Act (MMA) guidance has been pending since 2011 at the FDA. A clear, predictable, and 

appropriately tailored regulatory framework for mHealth applications is critical. The MMA was 

an important first-step to establishing regulations for mobile medical apps, but more work 

needs to be done to promote greater regulatory certainty. Specifically, the MMA guidance 

lacks clarity on how the FDA intends to apply its regulatory authority over particular elements 

and functions of mHealth products and services. 

We urge a careful balance to safeguard patient safety and privacy without inhibiting the 

development and use of mobile medical apps. We are also hopeful that any necessary approval 

processes are measured in months, not years. It is critical for policymakers to put in place a 

process to modernize regulations so that health information technologies can keep pace with 

emerging technology and meet consumer demand. The continued absence of clear and 

unequivocal guidance on mobile medical applications could jeopardize health IT providers' 

ability to promptly and flexibly bring innovative products to market 

Entrepreneurs and app developers - and the capital markets, financial institutions and venture 

capitalists supporting them - need predictability and certainty to invest. Added costs in the 

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form of onerous and lengthy regulatory review and approval processes, as well as uncertainty 

or delay - could mean some applications that provide tangible benefits to patients may never 

be developed, negatively impacting patient welfare. Capital that could otherwise be invested in 

mHealth may well be diverted to other opportunities in the mobile ecosystem. It is useful to 

remember that at a time when the average pre-approval clinical trial costs for a medical device 

range from anywhere from $1 million to $10 million or more, and take from months to years to 

complete, most applications are offered to consumers for free or at very low cost. I am hopeful 

we can all work together collaboratively to develop a sensible regulatory framework that best 

serves patient welfare, keeps barriers to entry low, and helps jump start greater investment in 

these mHealth solutions that hold so much promise. To put it simply - our government has a 

real opportunity to provide a constructive policy environment and clear guidelines, so app 

developers can focus their innovation and genius on improving the health our nation. 

I would like to close with a very brief note on the continued excessive and unfair taxation of 

wireless consumers that hits low-income Americans hardest and frustrates our collective efforts 

to drive mobile broadband adoption efforts. As has been reported broadly, the average 

wireless customer is charged a tax rate two and a half times higher than other goods and 

services. We support bipartisan efforts to curb actions by states and localities to add even 

additional discriminatory taxes on to wireless consumers, and we urge Congress to watch 

closely any actions that could result in increased tax burdens at any level on wireless consumers 

that could limit usage or adoption of innovative mobile services, devices or applicationsincluding for new mobile medical devices. 

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* * * 

Thank you again for the opportunity to testify this morning, and I look forward to your 

questions and the continued opportunity to work together to help promote innovation and 

opportunity in the mobile broadband ecosystem. 

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123 

Mr. WALDEN. Mr. Spalter, thank you for sharing your very powerful story with us. It really sheds clear light on our task here, and 

of course, it also shows that we are the most important subcommittee in the Congress because we did make available new 

spectrum and we are continuing to pursue the government excess 

spectrum as we might find. 

Mr. SPALTER. And that has the added advantage of being true, 

Mr. Chairman. 

Mr. WALDEN. Thank you. You are welcome to come back on a 

weekly basis. Seriously, thank you very much and thanks for the 

work you are doing. 

We will now go to Dr. T. Forcht Dagi, I believe, MD, MPH, 

DmedSC—I will let you explain all of those things—Partner at 

HLM Venture Partners. We are delighted you were able to get another flight and get down here from Boston. Thank you very much. 

Go ahead and push that button in front of you there. 

STATEMENT OF T. FORCHT DAGI 

Dr. DAGI. Thank you, Mr. Chairman. Chairman Walden, Ranking 

Member Eshoo, members of the subcommittee, I am Dr. T. Forcht 

Dagi. I am a Partner of HLM Venture Partners based in Boston, 

Massachusetts, and San Francisco, California. I am a board-certified neurosurgeon trained at Johns Hopkins and the Massachusetts General Hospital and hold or have held leadership positions 

in clinical and academic medicine for over 20 years. I am Chair of 

the Committee on Perioperative care of the American College of 

Surgeons at present, and I hold a professorial appointment at Harvard Medical School. 

On behalf of HLM Venture Partners, the venture industry and 

the entrepreneurial community, and also as a physician devoted to 

the betterment of health care, it is my privilege to testify before 

this committee on the subject of mobile medical apps, MMAs. 

Venture capitalists are committed to the funding of American’s 

best and most innovative entrepreneurs. They work closely to 

transform breakthrough ideas and to emerging growth companies 

that drive job creation and economic growth in the United States. 

One of the top priorities for health care and life science investors 

is to work and discover innovative solutions that address unmet 

medical needs, enhance health care outcomes and lower overall 

health care costs while preserving the safety and the quality of the 

American health care system. 

For investment to grow in the formative stages of emerging medical mobile applications, there need to be well-defined regulatory 

pathways to market. Uncertainties in the regulatory environment 

create significant risk for innovative companies and deter investment in many promising ideas. We believe that regulatory pathways should be risk based, transparent, consistent, predictable, 

and above all, balance the problem of patient safety and its protection against innovation. 

I believe that medical mobile applications will prove to be a central, important, and potentially critical tool in optimizing communications among clinicians, and especially between clinicians and 

patients. Also, they will help broaden and sustain shared decision 

making, which is a critical part of any type of health care reform. 

124 

I believe that MMAs will prove invaluable for patient engagement 

in education. They can materially enhance integrated strategies for 

health care, help coordinate the management of chronic disease 

and promote patient safety while lowering health care costs. Here 

are some examples of the critical roles they already play. They are 

used to help diabetics follow and refine insulin regimens. Mr. 

Spalter, I didn’t know you were going to speak to that. Thank you. 

They are used to screen for diseases of the retina, for telemedical 

consultations, to help patients with congestive heart failure avoid 

readmission, to diagnose moles and screen for cancer, and to coordinate across groups of physicians in different institutions. They 

provide a means for sending sentinel emergency alerts to providers. 

They also facilitate home health care and remote monitoring of patients in other settings like the intensive care unit. They hold tremendous promise in patient care, and I emphasize, safety. 

I would also like to emphasize my concern about the 2.3 percent 

medical device tax with regard to medical innovation and U.S. job 

creation. We also believe Congress did not intend to burden the 

emerging MMA companies with this new tax. Their products are 

not included in the traditional medical devices. The 2.3 percent tax 

on revenue has already started to have detrimental effects on 

early-stage medical device companies. They are regressive and repressive. It creates a major market inefficiency by increasing the 

capital intensity of innovation and discourages venture capitalists 

from investing in these companies now and in the future. The tax 

would be even more devastating for companies developing MMAs 

because of their revenue structure. 

The tax of 2.3 percent sounds modest but it is not. This is a tax 

on revenue. It is not a tax on profits. The vast majority of entrepreneurial ventures developing MMAs are very small and very early. 

Some of the companies in which we invest may in fact generate 

some revenue but very unlikely to generate profit. Revenues are 

plowed back into the company for growth, and therefore the 2.3 

percent tax on small startup companies delays their ability to reach 

profitability and increases the amount that must be invested before 

a company can become cash flow positive. 

Venture capitalists and entrepreneurs stand ready to participate, 

along with other public and private stakeholders, to find solutions 

that will help move these important innovations into the health 

care system. We would like to offer the following recommendations 

to help stimulate investment in this very important sector. 

First, promote a regulatory framework that is predictable, consistent, transparent and risk based. The Food and Drug Administration issued draft guidance for mobile medical applications on the 

21st of July 2011. This guidance addresses some regulatory concerns and reduces some regulatory uncertainty but leaves open 

questions around enforcement discretion decisions. The uncertainty 

must be resolved. Second, the FDA and other stakeholders are encouraged to collaborate and formulate alternative oversight frameworks that meet the goals of patient safety and mobile medical applications, but also encourage and foster innovation and invention. 

Third, we would ask that the FDA solicit very broad input in evaluating new regulatory frameworks, especially from those at the forefront of the innovation that promotes health care transformation. 

125 

And finally, we would ask that mobile medical applications that are 

defined as medical devices be exempted from the 2.3 percent medical device tax. 

Mr. Chairman, Member Eshoo, members of the subcommittee, 

thank you for the opportunity to testify. I look forward to working 

with you to address these critical issues. 

[The prepared statement of Dr. Dagi follows:] 

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Testimony of 

T. Forcht Dagi, MD, MPH, DmedSc 

HLM Venture Partners 

on the 

Health Information Technologies: Harnessing Wireless Innovation 

before the 

u.s. House of Representatives 

Committee on Energy & Commerce 

Subcommittee on Communications and Technology 

March 19, 2013 
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Introduction 

Chairman Walden, Ranking Member Eshoo and members of the Subcommittee, I am Dr. Teo Forcht Dagi, 

Partner of HLM Venture Partners, based in Boston, MA. I am a board certified neurosurgeon trained at 

Johns Hopkins and the Massachusetts General Hospital. I hold a professorial appointment at Harvard 

Medical School and served as President of the Georgia Neurosurgical Society and as a Director of the 

American Association of Neurological Surgeons. I also sit on the steering committee of the Harvard-MIT 

Program in Biomedical Entrepreneurship, and was a director of the Goergen Institute for 

Entrepreneurship at the Wharton School of the University of Pennsylvania. I also chair the Committee on 

Perioperative Care for the American College of Surgeons and serve as a director and officer of the Council 

for Surgical and Perioperative Safety and a director of the Anesthesia Patient Safety Foundation. 

Prior to joining HLM, I raised a venture capital fund focused on very early stage ventures in the 

Southeast By investing $17 million in 11 early stage companies focused on healthcare and the life 

sciences, the fund yielded over a 30D-fold increase in value. It participated in the development of drugs 

and devices that benefit millions of patients world-Wide and created numerous new jobs. 

HlM Venture Partners is a leading dedicated health care venture capital firm providing over $400 million 

in capital to some of the most dynamic, innovative companies nationwide. HLM is focused on building 

sustainable, profitable companies to the advantage of patients, healthcare profeSSionals, entrepreneurs 

and investors in the Health Care Information Technology, Health care Services and Medical Device 

sectors. HLM was established in 1983 and qualifies as one of the most experienced healthcare funds in 

the industry. Because of its experience and its focus, it is uniquely positioned to provide insightful 

guidance on a range of health care industry issues. We take pride in partnering with exceptionally 

talented entrepreneurs and with strategiC partners from the industry to develop emerging companies. 

Over the course of my 15 year venture capital career, which overlaps with over 30 years in the practice 

of clinica! and academic surgery, I have worked side-by-side with entrepreneurs to create and finance 

many start-ups. 

In addition to representing HLM Partners and its portfolio companies, I also am testifying on behalf of the 

National Venture capital Association (NVCA) based in Arlington, Virginia. NVCA represents nearly 400 

U.S. venture capital firms and empowers its members and the entrepreneurs they fund by advocating for 

poliCies that encourage innovation and reward long-term investment. 

On behalf of HLM Venture Partners, the venture industry and entrepreneurs, it is my privilege to share 

our perspective on the current state of investment in the Health Information Technologies and Health 

Care Services Sectors and how emerging technologies are positioned to improve patients' access to better 
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health care, achieve improvements in patient outcomes, provide greater efficiencies and drive down costs 

in the overal! healthcare system, 

Venture Capital Plays a Key Role in Innovation 

According to a 2011 IHS Global Insight report, companies that were founded as small start-ups with 

venture capital accounted for 12 million jobs and $32 trillion in revenues in the United States. These 

figures equate to 11 percent of private U.S. employment and 21 percent of our country's GDP. 

Venture-backed companies are responsible for the creation of entire industry sectors here in the United 

States including semiconductors, biotechnology, Internet content and software. Today, we are creating 

the companies that will serve as cornerstones for cloud-based computing, internet security, healthcare, 

social media and new energy. Many companies founded with venture capital are household names 

today, including Apple, Genentech, Starbucks, Facebook, Home Depot and FedEx. With more than 

18,000 companies having received venture funding in the last five years, the next generation of 

successful companies innovating in healthcare, the life sciences, high technology, and new energy are 

poised to follow in their footsteps. 

The Healthcare and Ufe Sciences sectors account for 25 percent of all venture capital (VC) dollars 

invested. The majority of dollars are invested in the biopharma (60%) and medical devices (26%) 

sectors. A smaller portion is invested in the Health Care ServiCes and Health Care Information 

Technology (4%). (PwC/NVCA Money Tree Report based on Thomson Reuters) 

Venture capitalists are committed to funding America's best and most innovative entrepreneurs. They 

work with them closely to transform breakthrough ideas into emerging growth companies that drive job 

creation and economic growth in the United States. One of the top priorities for healthcare and life 

sciences investors such as myself is to work with healthcare focused entrepreneurs to develop new 

treatments and technologies for patients and discover innovative solutions that address unmet medical 

needs, enhance healthcare outcomes, and lower overall healthcare costs without compromising the 

safety and the quality of the American healthcare system. 

For investment to grow in the formative stages of emerging medical mobile applications, which, as a 

group, stand to make a significant contribution to these goals, there need to be well defined pathways to 

market that balance patient safety and efficacy with rewards for undertaking investment risk in 

healthcare innovation. Uncertainties in the regulatory environment create significant risk for investors 

and deter investment in many promising ideas. We believe that regulatory pathways should be riskbased, transparent, consistent and predictable. 

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Bringing Promise to our Hea!thcare System 

I believe that medical mobile applications (MMAs) will prove to be a central, important and potentially 

critical tool in optimizing and integrating communications among cliniCians and between clinicians and 

patients, and will help broaden and sustain shared deCision making. MMAs will prove invaluable for 

patient engagement and education and have the potential to materially enhance integrated strategies for 

patient care, coordination of the management of chronic disease, improve healthcare outcomes, promote 

patient safety, and lower healthcare costs. In fact, MMAs are already playing a critical role in patient 

care, MMAs are in development and in use to help diabetics follow and refine their insulin regimens; to 

screen for diabetic disease of the retina; for telemedical consultations in remote areas; to help patients 

with congestive heart failure avoid readmission; to diagnose moles and screen for melanoma; to 

eXChange diagnostic images and obtain consultations; and to coordinate and integrate care across groups 

of physicians in different institutions, MMAs also provide a means for sending sentinel alerts to providers, 

They help patients adhere to medication protocols. They facilitate home health care as well as remote 

patient monitoring in other settings, like the intensive care unit. All in ali, MMAs hold tremendous 

promise with respect to improving patient safety, increasing the quality of care and helping to contain the 

costs of delivering effective healthcare. 

The Medical Device Tax is Impacting Investment in Health Care Innovation 

r would like to also express my concerns about the medical device tax is having regarding medical 

innovation and U.s. job creation. MMAs that are listed as a device with the FDA under section 5100) of 

the Federal Food, Drug and Cosmetic Act, and 21 CFR part 807, pursuant to FDA requirements are 

subject, under the provision of the Accountable Care Act (ACA), to a 2,3% medical device excise tax on 

revenues. The tax is intended to raise approximately $30 billion to help pay for the implementation of 

the ACA. 

As you know, there was a lengthy debate during the ACA legislative deliberations regarding which 

products should pay the 2.3% tax, We believe Congress did not intend to burden emerging MMA 

companies with this new tax since their products aren't included in "traditional" medical devices. The 

2.3% tax on revenue has already started to have a detrimental effect on early stage medical device 

companies, It creates a major market inefficiency by increasing the capital intenSity of innovation, and 

affects the ability of venture capitalists to invest in these companies in the future. This tax would be even 

more devastating for companies developing MMAs, 

The tax of 2,3% sounds modest, but is it not, This is a tax on revenue, not profits. The vast majority of 

entrepreneurial ventures developing MMAs are very small and very early start-up companies. Most of the 

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companies in which we invest may generate some revenue, but likely not profit. Revenues are plowed 

back into the company for development and for growth. Therefore, the 2.3% tax on small start-up 

companies delays their ability to reach profitability and increases the amount that must be invested 

before a company can become cash flow positive. 

Even when profitability is attained, a company in this space might deliver profits of no more than 10% of 

revenue. A tax of 2.3% on revenue at that stage is the equivalent of a 23% tax on profits, over and 

above the corporate state and federal income tax companies are already obligated to pay, The effect on 

after-tax profits is material and severe. This tax dramatically reduces after tax profits. Correspondingly, 

it chokes the company, and can be expected to reduce the value of the company to prospective acquirers 

or public market investors. Thus, as you can see, more has to be invested for a smaller return, reducing 

the incentive for investors to support high risk, early stage companies working to bring important and 

innovative solutions to patients with unmet medical needs, and depriving the healthcare system of 

valuable tools and expedients. Rather than growing and creating new jobs, companies will be 

increasingly and unreasonably constrained. To pay the tax, they must cut R&D budgets and cut jobs. 

As we have noted, these early-stage companies form the core of the ecosystem that has resulted in 

leading and sustainable medical innovation and in a briil1ant American success story for patients and the 

economy alike. 

We believe MMAs that are defined as medical devices should be exempted from the medical device tax. 

And more generally, we believe that Congress should repeal the entire tax because of the impact it is 

having on emerging growth companies that are focused on fueling medical innovation and job creation. 

Recommendations to help drive investment in Health Care Services 

Venture capitalists and entrepreneurs stand ready to partiCipate, along with other public and private 

stakeholders, to find solutions that will help move these important innovations into the health care 

system. We would like to offer the following recommendations to help stimulate investment in this 

important sector. 

Promote a regulatory framework that is predictable, consistent, transparent and risk-based. The 

Food and Drug Administration (FDA) issued draft guidance for mobile medical applications on July 21, 

2011 that addresses some regulatory concerns and reduces some regulatory uncertainty, but leaves open 

questions around enforcement discretion decisions. FDA's delay in finalizing this guidance document has 

had deleteriOUS effects on the industry. It has prolonged ambiguity, impaired the ability of investors and 

innovators to evaluate regulatory risk, and discouraged investment. The lack of definitive guidance has 

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also affected the consistency of decisions made within the FDA by its reviewers. We also note that the 

FDA has broad discretion with respect to enforcement decisions that determine the regulatory status of 

MMAs--whether they are listed as medical devices and whether they are subject to the 2.3% excise tax. 

The FDA should publish final guidance documents regarding MMAs in order to shrink the grey area into 

which many of these applications fall. Publication will serve to reduce the current state of procedural and 

regulatory ambiguity, and relieve at least some of the burden of liability for the medical device excise tax. 

We believe there should be a risk-based approach to regulating mobile medical devices that balances 

protecting patient safety with fostering innovation. The regulatory environment should be rational, 

transparent, consistent and predictable. 

FDA and other stakeholders should collaborate and formulate alternative oversight frameworks 

that meet the goals of patient safety in mobile medical applications, but also encourage and foster 

innovation and invention. While the FDA remains the gold standard in the protection of patient interests, 

with unique credibility and expertise, it is essential that the pace of regulation keep up with the pace of 

innovation. Both are critical. Nevertheless, in order to address the healthcare challenges facing our 

nation, we must ensure that proposed alternatives to regulation of mobile medical devices by the FDA are 

feasible in today's resource-constrained environment, that they do not lead to duplicative or increased 

regulation, and that they neither slow innovation and nor create confusion through the implementation 

process. 

Solicit broad input, in evaluating new regulatory frameworks, especially from those at the 

forefront of innovation that promotes healthcare transformation. We are pleased that a working group is 

being convened to aid the Secretary of Health and Human Services in formulating a strategy and 

recommendations for an appropriate, risk-based regulatory framework pertaining to health information 

technology, including MMAs. Given the importance of this task and the need to optimize future 

applications of health IT, we encourage the Secretary to gather input through public forums beyond this 

working group so that ali stakeholders might be heard. 

Medical mobile applications that are defined as medical devices should be exempted from the 

2.3% medical device tax. 

Thank you for the opportunity to testify. I look forward to working with you to address these critical 

issues. 

5 
132 

Mr. WALDEN. Dr. Dagi, thank you very much for your very 

learned testimony. 

We will now go to Dr. George Ford, who is the Chief Economist, 

Phoenix Center for Advanced and Legal Economic Public Policy 

Studies. Dr. Ford, we are delighted to have you. Please go ahead 

with your testimony. 

STATEMENT OF GEORGE FORD 

Mr. FORD. Chairman Walden, Ranking Member Matsui and 

members of the committee, thank you for the invitation to speak 

today and appear before this committee again. 

At issue in this hearing is the role of FDA oversight in healthrelated applications for mobile devices and the platforms on which 

they run. MHealth applications are believed to have great potential 

to promote better health and improve the efficiency of the health 

care system. MHealth can also help address the documented health 

in lower-income segments of the population where the provision of 

health services and treatment compliance can be challenging. In 

my testimony today, I touch upon a couple of thoughts about the 

possible regulation of mobile applications and platforms as medical 

devices by the FDA. 

First, by its very nature, regulatory intervention into mHealth by 

the FDA will have direct implications for the Nation’s mobile communications industry. Mobile applications, mobile devices and mobile networks are all part of the mobile communications ecosystem. 

In a greater or lesser degree, to touch one, is to touch them all. 

United States mobile industry is a true American success story, 

and the mobile app economy is said to employ about a half a million persons. Many believe that the continued growth in the mobile 

sector, both in size and innovative capacity, is critical for the U.S. 

economy. One study suggests that the diffusion of new technology 

and mobile wireless communications supports about 400,000 jobs 

annually, and the billions invested annually in mobile and fixed 

networks supports and creates hundreds of thousands of jobs. 

Accordingly, regulating mobile applications is not only a health 

care issue but a much broader economic one. The difference between a good decision and a bad decision regarding the FDA’s regulation of the mobile sector may have significant economic impacts. 

Indeed, economic theory and ample literature demonstrate that the 

inevitable and arguably intended effect of FDA involvement is to 

raise the cost of innovation, to alter the trajectory of innovation, to 

reduce competition and to favor larger firms that can afford the 

overhead of dealing with a federal regulatory agency. In a tradeoff 

with efficiency and efficacy and safety, these negative effects may 

be acceptable. Gains from improvements in safety and quality may 

be sufficient to offset the lost innovation and higher prices from 

less competition. Normally, the cost-benefit tradeoff is limited to 

the health sectors, but in the mobile ecosystem, the FDA’s intervention could spill over into the entire mobile broadband industry. 

The dangers are significant, and I applaud this committee for taking this matter seriously. 

Second, while the scope of the FDA’s regulation of mHealth is a 

complex issue on its own, the decision is made ever more complex 

by the Affordable Health Act’s medical device excise tax. RegulaVerDate Nov 24 2008 15:24 Feb 26, 2014 Jkt 037690 PO 00000 Frm 00138 Fmt 6633 Sfmt 6633 F:\MY DOCS\HEARINGS 113\113-20 CHRIS
133 

tion and taxation are completely different questions, and there is 

no reason to believe, and every reason to suppose, that the proper 

methodologies for choosing when is appropriate or not will be quite 

different in scope and severity. Taxes may or may not raise revenues, but taxes always discourage the activity being taxed and play 

no apparent role in ensuring the safety of the product being sold. 

Yet the role of the FDA in assessing mobile health applications 

cannot be treated today as independent of the tax question since 

defining applications medical devices may very well lead to the taxation of such applications under the Affordable Health Act. 

In addition, given health disparities for low-income Americans 

and given the expectation that mHealth will be particularly effective with low-income Americans, the medical device tax may prove 

to be a regressive tax. 

Moreover, the medical device can be described, or what I describe 

as, a virtue tax. Normally, the government applies taxes to items 

it wants people to consume less of, that is, sin taxes. The medical 

device tax, in contrast, applies to items a government agency has 

declared to be good for people. If we want innovation to drive a 

healthier America, then why tax such innovation? It doesn’t seem 

to be very good policy, perhaps doing more harm than good. 

Finally, and perhaps most significantly, I believe the FDA’s draft 

guidance leaves the door wide open for inserting the FDA into the 

innovation flow of mobile handsets, tablets and other devices, or 

what we refer to as platforms. There are good reasons to believe 

that formal role for the FDA in the mobile handsets and tablets 

would significantly curtail the pace of innovation in that sector, an 

innovative pace that is rapid and highly beneficial. My written testimony discusses this concern in detail. 

A critical question is: could a regulator or tax collector, or even 

an overzealous regulator or tax collector, make a legally defensible 

argument that these general purpose devices, or even the entire 

mobile network, are medical devices and thus subject to regulation 

or the medical device tax? In an ecosystem like the wireless industry where all the components are tightly intertwined, where does 

the line get drawn on what is and what is not a medical device? 

Obviously, clarity is needed, and there needs to be some limitations 

on the scope of the FDA’s reach, lest regulation and taxation become very broad in a mobile ecosystem and do significant damage 

to innovation in the sector. 

Mr. Chairman, thank you again for the invitation to testify 

today. I welcome any questions. 

[The prepared statement of Mr. Ford follows:] 

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PHOENIX ::)(~~~[~'~~~l~:~)\\l( 

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Written Statement of 

George S. Ford, PhD 

Chief Economist 

Phoenix Center for Advanced Legal & Economic Public Policy 

Studies 

Before the 

House of Representatives 

Committee on Energy and Commerce 

Subcommittee Communications and Technology 

Hearing on 

"Health Information Technologies: 

Harnessing Wireless Innovation" 

March 19, 2013 
135 


80805.113

Testimony of George S. Ford, PhD 

Chief Economist, Phoenix Center for Advanced Legal & Economic 

Public Policy Studies 

House Committee on Commerce and Energy 

Subcommittee on Communications and Technology 

Hearing on "Health Information Technologies: 

Harnessing Wireless Innovation" 

March 19, 2013 

I. Introduction 

Mr. Chairman, Ranking Member Eshoo, and members of the Subcommittee, 

good morning and thank you for inviting me to testify once again before the Committee 

today. 

My name is George S. Ford, and I am the Chief Economist of the Phoenix Center 

for Advanced Legal and Economic Public Policy Studies. I hold a PhD. in Economics 

from Auburn University, and the economics of the communications industry has been 

the focus of my career. Prior to joining the Phoenix Center full-time, I worked at the 

Federal Communications Commission as well as for several companies in the 

telecommunications industry. I have written numerous research studies that explore 

this industry, and many of these studies were subsequently published in peer-reviewed 

academic journals, books and other academic outlets. Recently, my work has evaluated 
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TESTIMONY OF DR. GEORGE FORD 

PAGE 2 OF 25 

the effect of Internet use on health outcomes, and the results reveal the potential for the 

Internet to improve the health of Americans and reduce healthcare expenses.! I am 

pleased that the Sub-Committee has asked for my insight on the issue of health 

information technologies. 

By means of introduction, the Phoenix Center is a non-profit 501 (c) (3) 

organization that studies broad public policy issues related to governance, social and 

economic conditions, with a particular emphasis on publishing academic-quality 

research about the law and economics of regulated industries. Among other activities, 

the Phoenix Center publishes a PuBLIC POLICY PAPER SERIES, a POLICY BULLETIN SERIES, a 

POLICY PERSPECTIVES SERIES, and our blog @LAWANDECONOMICS, where we provide 

real-time comment on current events, as well as to highlight market examples of the 

relevancy of our research. We also sponsor Congressional briefings, Policy Roundtables, 

educational retreats, as well as our Annual US. Telecoms Symposium. The Phoenix 

Center makes it a policy not to endorse or support any particular piece of federal or state 

legislation or proposed rule. Our primary mission is not to tell you what to think about 

an issue but how to think about it. As such, our contributions to communications policy 

are decidedly more analytical than most, and we refuse to ignore the institutional 

realities and economic constraints of the communications business and related sectors 

See, e.g., George S. Ford and Sherry G. Ford, Internet Use and Depression Among the Elderly, 23 

PHOENIX CENTER POLlCY PAPER No. 38 (October 2009) (available at: http://;vww.phoenix. 

center.org/pcpp/PCPP38FinaLpdD and published as 28 COMPUTERS IN HUMAN BERA VIOR 496 (2012). 
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TESTIMONY OF DR. GEORGE FORD 

PAGE30F25 

including the health care industry. I have attached to my testimony a bibliography of 

our work, all of which is available at www.phoenix-center.org. 

II. Summary of Testimony 

My testimony today consists of three basic parts: First, I point out that in any 

discussion of regulatory intervention by the FDA into mHealth, we must remember that 

this intervention will have a direct effect on the broader U.S. mobile industry. Second, I 

explain that not only could regulation of mHealth slow down the rate of innovation and 

growth of the wireless industry, but mHealth regulation of mobile devices could also 

trigger the 2.3% medical excise tax required by the Affordable Care Act, which could 

also slow innovation and, worse yet, impose a regressive tax on those Americans who 

could most benefit from the efficiencies and breakthroughs created by mHealth. Given 

the nature of regulation, the costs to innovation and competition may not be offset by 

improvements in safety and efficacy. Finally, I would like to highlight some of the 

specific language in the FDA's 2011 Draft Guidance that I believe an over-zealous 

regulator or tax collector could use to make a legally-defensible argument that mobile 

handsets, tablets and other devices, or even the entire mobile network, was a medical 

device and thus subject to regulation or the medical device tax. 

III. Background 

At issue in this hearing is the role of FDA oversight of health-related applications 

for mobile devices, commonly referred to as (or included in the class of) "mobileHealth" or "mHealth." Mobile health applications are believed to have great potential 

to promote better heath care through improved communications between doctors and 
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TESTIMONY OF DR. GEORGE FORD 

PAGE 4 OF 25 

patients, better decision-making by health professionals and patients, the 

encouragement of active and healthy lifestyles, and better access to medical and health 

information. mHealth also promises to improve the efficiency of health care operations 

and thus reduce the costs of providing health care to Americans. While much attention 

is directed at the benefits of mHealth in less advanced economies,2 the use of mobile 

telecommunications in health care is rapidly growing in advanced economies. Patient 

monitoring systems alone are expected to be a $21 billion market by 2016.3 Even in 

advanced economies, mHealth can help address the documented health disparities in 

lower-income segments of the population where the provision of health services and 

treatment compliance can be challenging .• 

In this set of hearings, I am certain you will hear of the many actual and potential 

benefits of mHealth technologies. Suffice it to say that the present and future benefits 

derived of mHeaIth are (for now) not much disputed and potentially large, though there 

are challenges in widespread and effective implementation. 

2 World Health Organization, eHealth Tools and Sen'ices: Needs of Member States (2005) (available at: 

http://www.who.int/kms/initiatives/tools and services final.pdf); Vital Wave Consulting, mHeaIth for 

Development: The Opportunity of Mobile TeChnology for Healtheare in the Developing World (2009) (available at: 

http:! (www. unfounda lion.org( news-and-media (publications-and-speeches! mhealth-for-developmentmobile-technology-for-healthcare.html). 

N. Verse!, Wireless patient monitoring to be $20.9B business in U.s. by 2016, MOBIHEALTHNEWS 

(July 18, 2012) (available at: http:! (mobihealthnews.com!17951!wireIess-patient-monitoring-to-be-20-9bbusiness-in-u-s-by-2016). 

CDC Health Disparities and Inequalities Report - United States, 2011, Center for Disease Control and 

Prevention, 60 MORBIDITY AND MORTALITY WEEKl.Y REPORT (January 14, 2011) (available at: 

http://www.cdc.gov/nunwr(pdf/other/su6001.pdf); B.D. Smedley, Addressing Racial and Ethnic Health 

Care Disparities, Testimony to the House Energy and Commerce Committee, Health Subcommittee (March 

2009) (available at: http://www.jointcenter.org/hpi/sites/ all /files(Smedlev%20testimony.pdf). 
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TESTIMONY OF DR. GEORGE FORD 

PAGES OF 25 

By its very nature, a discussion of the regulatory intervention into mHealth by 

the FDA has direct implications for the nation's mobile communications industry. 

Mobile applications, mobile devices, and mobile networks are all part of the mobile 

communications ecosystem. The United States mobile wireless industry is a true 

American success story. As FCC Chairman Julius Genachowski just testified before 

your colleagues in the Senate Commerce Committee earlier this month, the United States 

has as many LTE subscribers as the rest of the world combined.s Moreover, Mr. 

Genachowski further testified that while mobile infrastructure investment in Europe and 

Asia has been roughly flat since 2009, annual mobile investment in the u.s. is up 40% 

over this period. 6 And, according to statistics compiled by CTIA-The Wireless 

Association, not only does the U.s. wireless industry directly/indirectly employ more 

than 3.8 million Americans, which accounts for 2.6% of all U.s. employment, but these 

wireless employees are paid 65% higher than the national average for other workers. 

Finally, and particularly germane to my testimony today, CTIA reports that the "mobile 

app" economy employs 519,000 developers and related jobs, and grew from almost zero 

to nearly $10 billion in four years.7 

S Prepared Statement of FCC Chairman Julius Genachowski Before the United States Senate 

Committee on Commerce, Science, and Transportation, "OverSight of the Federal Communications 

Commission" (March 12, 2013) at 1 (available at 

http:// transition.fcc.gov I Daily Releases I Daily Business120131 db0312IDOC-319476A1.pd[). 

Id. 

7 CTIA, 50 Wireless Quick Facts (available at: 

http://www.ctia.org/media/industry info/index.cfm/AID(10377); M. Mandel, Where the Jobs Are: TI,e 

App Economy, TEOfNET (February 7, 2012) (available at: http://www.technetorg/wpFootnote Continued ... 
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PAGE60F25 

Many believe that the continued growth in the mobile sector, both in size and 

innovative capacity, is critical for the U.s. economy. The deployment of new mobile 

technologies brings significant benefits. For example, last year a study- The Employment 

Effects of Advances in Internet and Wireless Technology: Evaluating the Transitions from 2G to 

3G and from 3G to 4G-considered the impact of progress in mobile technology on jobs.8 

This study reports that the investment in mobile network upgrades, and the resulting 

adoption of smarter devices and the apps that ride on them, have stimulated significant 

job creation in the US. Indeed, the authors of the study conclude, the "shift from 2G to 

3G Internet and wireless network technologies led to the creation of nearly 1.6 million 

new jobs across the United States, between April 2007 and June 2011-even as total 

private sector employment fell by nearly 5.3 million positions." Based on computations 

using their estimated relationship between employment and wireless technology 

diffusion, the authors conclude that the advancement of wireless technology created 

content/uploadsI2012/02/TechNet-App-Economv-!obs-Studv.pdf); M. Mandel and J. Scherer, The 

Geography of the App Economy, CTIA: The Wireless Association (September 20, 2012) (available at: 

http://files.ctia.org/pdf!The Geography of the App Economv.pdf); Creating Jobs 711roUgh Innovation, 

Apple (available at: http://www.apple.com/about/job-creation); but c.j, D. Streitfeld, As Boom Lures App 

Creators, Tough Part is Making a Living, NEW YORK T[MFS (November 17, 2012) (available at: 

http://www.nytimes.com/2012/ 11 / 18 /business / as-boom-lures-app-creators-tough-part -is-making -aliving.html?pagewanted=2&hp& r=O). 

R. Shapiro and K. Hasset, The Employment Effects of Advances in Internet and Wireless 

Technology: Evaluating the Transitions from 2G to 3G and from 3G to 4G Oanuary 2012) (available at: 

http:// ndn.orgl sites / defaultl files Iblog files IThe % 20Emp[oyment% 20Effects % 200f%20Advances % 20In % 

201nternet%20and %20Wireless%20Technology 1.pdf. 
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about 400,000 jobs annually (1.585 million jobs over about four years). This is a big 

number, which is a good thing given current economic conditions.9 

Accordingly, regulating mobile applications is not only a healthcare issue but a 

much broader economic one. Healthcare and information technology, as well as related 

industries such as retail and manufacturing, are significant economic sectors upon 

which the growth of the u.s. economy depends. The difference between a good decision 

and a bad decision regarding the FDA's regulation of the mobile sector may have 

significant economic impacts. I commend this Committee for taking this issue seriously. 

IV. Discussion 

A. TIle Law of Unintended Consequences 

The "app economy" is a fast growing segment of the U.s. economy. Healthrelated applications are a significant part of this growth and offer significant promise for 

improved health care. Perhaps billions of dollars are at stake. In some cases, these 

medical applications can directly and materially influence health outcomes. Naturally, 

concerns have arisen regarding the largely unregulated nature of these mobile health 

applications. In July 2011, the FDA issued a Draft Guidance on how the agency plans to 

Similar results are found in T.R. Beard, GS. Ford, and H. Kim, Jobs, Jobs, Jobs: Communications 

Policy and Employment Effects in the Information Sector, PHOENIX CENTER POLICY BULLETIN No. 25 (October 

2010) (available at: http://phoenix-center.org/PolicyBulletin/PCPB25Final.pdO. Mobile Intemet use has 

also been shown to have a large and statistically significant effect on sustaining active job search, cutting in 

half the probability an unemployed person abandons efforts to find new employment due to 

discouragement about labor market prospects. In fact, mobile use reduces labor market discouragement 

even more than broadband use at horne. G Ford, Mobile Broadband and Job Search: An Empirical Test, PHOENIX 

CEl\'TER POLICY PERSPECTIVE No. 11-05 (2011) (available at: http://www.phoenixcenter .org I perspectives I Perspectivell-05Final. pdD. 
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regulate, or not, mobile medical applications as medical devices.lO Many praised the 

effort as a solid first step, but many questions remain as the guidance lacked specificity 

and clarity. It appears the industry is ready for further guidance. As noted in the 

Federal Communications Commission's National Broadband Plan, the "[pJotentiallack of 

clarity about the appropriate regulatory approach to these convergent technologies 

threatens to stifle innovation, slow application approval processes and deter adoption."l1 

Without doubt, the scope of the FDA's regulation of mobile health applications is 

a complex issue on its own. Unfortunately, the regulatory decision is made even more 

complex by an important side effect of the regulation: specifically, the proper definition 

of a "medical device" for purposes of FDA regulation also affects the taxation of such 

devices under the Affordable Care Act CACA"), which levies a 2.3% excise tax on 

medical devices (subject to some exclusions). It is tempting to assume that a single 

operative definition of a medical device will do for both regulation and taxation. I urge 

Congress to resist this temptation. Regulation and taxation are completely different 

questions, and there is no reason to believe, and every reason to suppose, that the proper 

methodologies will be quite different in scope and severity. The taxation requirements 

are not insignificant, and economists would broadly agree that such taxes will reduce 

10 U.s. Department of Health and HUllliIn Services, Food and Drug Administration, Draft Guidance for 

Industry and Food and Drug Administration Staff Mobile Medical Applications (June 11, 2011) (available at: 

http:// www.fda.gov / downloads/MedicalDevices/DeviceRcgulationandGuidance/GuidanceDocuments/ 

UCM263366.pdt) 

11 National Broadband Plan: Connecting America, Federal Communications Commission (March 2010) 

(available at: http://www.broadband.gov/download-plan) at 207. 
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the introductions of new devices by lowering the returns the innovator can expect from 

them. Taxes may (or may not) raise revenues, and they always discourage the activity 

being taxed, but they are not very useful means of assuring the safety of the product 

being sold. Yet, the role of the FDA in assessing mobile health applications cannot be 

treated today as independent of the tax question, since defining applications as "medical 

devices" may very well lead to the taxation of such applications under the ACA. 

examine the distinct issues of regulation and taxation on the mobile industry next. 

1. The Potential Effects of FDA Regulation on the Mobile Industry 

Many (but not all) believe that the regulation by the FDA of medical devices lies 

squarely within the sphere of FDA's traditional function of assuring the safety and 

efficacy of medical goods. Agreement on the specifics of the regulatory approach is not, 

however, universal. Some believe that the FDA should play no role in regulating 

medical applications, while others believe a balanced, risk-based framework is better for 

both consumers and the industry. Whichever side one takes, most agree that FDA 

regulation has implications not only for safety, but also for innovation and competition. 

An inevitable and arguably intended effect of FDA involvement is to raise the 

cost of innovation and to alter the trajectory of innovation. Uncertainty, delays and the 

fixed costs related to the regulatory process reduce expected returns, and thus 
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discourage firms from participating in the healthcare industry.12 As such, we must 

expect FDA review of mobile applications to slow innovation and to reduce competition. 

Also, the fixed cost of compliance will likely reduce participation in the market by small 

firms that cannot afford the overhead of dealing with a federal regulatory agency. As 

such, the regulations will likely favor large, incumbent firms that already have such 

apparatus in place. Given the nature of the app economy, where small firms are 

common, FDA oversight could materially alter the structure of the industry. 

In a trade-off with efficacy and safety, these negative side effects may be 

acceptable. Improvements in safety and quality have benefits, and these gains may be 

sufficient to offset the lost innovation and higher prices from less competition. This 

trade-off is affected by the nature of the regulation. A risk-based approach to the 

problem, which is what is outlined in the Draft Guidance, is arguably a sensible 

approach. The devil is in the details, however, and those details remain unspecified. 

Regardless of the level of intervention, the industry will evolve into something different. 

12 In one case, the FDA approval of a mobile application took two-and-one-half years and costs the 

applicant hundreds of thousands of dollars. J. Stossel, The FDA Kills: How Government Regulations Raise 

Prices and Stifle Medical Innovations, REASON (November 10, 2011) (available at: 

http://reason.com!archives/2011/11/l0/the-fda-kills); VCs Take Their Case For FDA Reform To Capitol Hill, 

WALL STREET JOURNAL (October 6, 2011)(available at: http://blogs.wsj.com!venturecapital/2011/l0/06!vcstake-their-case-for-fda-reform-to-capitol-hill/l; T. Hay, Frustrated Investors Swap FDA War Stories, Share 

Advice, WALL STREET JOURNAL (April 25, 2011)(available at: 

http://blogs. \'lsj .coml venturecapital I 2011! 04/25 I frustrated -investors-swap-fda-war-stories-share-advice). 
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Merely determining whether regulations do or do not apply can be a complex problem,13 

and this alone may discourage participation in the industry. 

These theoretical risks of intervention are understood by most persons familiar 

with the effects of regulation. In fact, the risk-based framework for determining what 

applications are to be regulated arises out of the desire to minimize the cost and 

maximize the benefit of regulatory intervention. There is, however, a fundamental error 

in the typical evaluation of the FDA's role in mHealth. For the health industry, the 

FDA's role is, put simply, to regulate private sector innovation, and the necessity for 

such intervention is based on the idea that the private sector may have inadequate 

incentives for safety and effectiveness. It is frequently argued that the FDA is needed to 

offset the incentive problem and by doing so the health products that hit the shelves in 

America are safer and more effective. However, to some extent, the argument is guilty 

of what economists refer to as the Nirvana fallacy)4 The Nirvana fallacy is described by 

noted economist Harold Demsetz as follows: 

The view that now pervades much public policy economics implicitly 

presents the relevant choice as between an ideal norm and an existing 

'imperfect' institutional arrangement. This nirvana approach differs 

considerably from a comparative institution approach in which the 

relevant choice is between alternative real institutional arrangements. In 

practice, those who adopt the nirvana viewpoint seek to discover 

13 B.M. Thompson, FDA Regulation of Mobile Health, 2010 Report, MOBlHEALTIiNEWS (June 2010) 

(available at: http://mobihealthnews.com/wp-content/pdf/FDA Regulation of Mobile Health.pdf). 

14 H. Demsetz, Information and Efficiency: Another Viewpoint, 12 JOURNAL OF LAW AND ECONOMICS 1 

(1969), p. 2 (emphasis in original). 
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discrepancies between the ideal and the real and if discrepancies are 

found, they deduce that the real is inefficient. Users of the comparative 

institution approach attempt to assess which alternative real institutional 

arrangement seems best able to cope with the economic problem; 

practitioners of this approach may use an ideal norm to provide 

standards from which divergences are assessed for all practical 

alternatives of interest and select as efficient that alternative which seems 

to most likely to minimize the divergence. The nirvana approach is 

much more susceptible than is the comparative institutional approach to 

committing three logical fallacies - the grass is always greener fallacy, the 

fallacy of the free lunch, and the people could be different fallacy. 

The Nirvana fallacy points to the error of an unqualified belief that a regulated outcome 

will be superior to an unregulated outcome simply because the unregulated outcome is 

not to your liking. The grass is not always greener, and regulation has costs of its own. 

Instead, the proper comparison involves the economic well-being across the regulated 

and unregulated states as they can actually be expected to exist, rather than treating the 

regulated state as some perfection (i.e., nirvana) that solves the static defects of the 

market outcome. While it is true that market outcomes-which are simply the outcomes 

of interactions among buyers and sellers (that is, human beings)-sometimes may be 

sensibly labeled as inadequate in some regard, particularly when lives are at stake, the 

FDA is an institution run by human beings with their own incentives and limitations. 

Regulatory agencies, including the FDA, are imperfect, and the problems it attempts to 

solve are very complex. In some instances, the FDA's oversight may render positive 

outcomes, while in others the costs of its action may well exceed the benefits. As a Iifesaving treatment awaits approval, people die; when a dangerous treatment is rejected, 

people live. There are costs and benefits inherent in the process; there is no free lunch. 
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Research on the FDA, which is extensive, presents widely different assessments 

of the agency, many highly critical of the agency." The Government Accountability 

Office ("GAO") has pointed to a number of shortfalls in the FDA's regulatory efforts.16 

Some economic research suggests that the lives lost from delay in approval may 

significantly overwhelm the lives saved from the FDA approval process.17 Some studies 

say otherwise.18 Recently, the FDA's own scientists and leadership describe the agency 

as "fundamentally broken" and "failing to fulfill its mission,"19 and lament the agency's 

tendency to consider the "political consequences"20 of its decisions. Some refer to the 

FDA as "government's most dysfunctional agency."21 

15 See, e.g., S. Peltzman, An Evaluation of Consumer Protection Legislation: The 1962 Drug Amendment5, 81 

JOURNAL OF POLITICAL ECONOMY 1049-1091 (1973); F. Hawthorne, INSIDE TIlE FDA: THE BUSINESS AJ).'D POLfIlCS 

BEHIND TIrE DRUGS WE TAKE AND TIlE FOOD WE EAT (2005); P. Hilts, PROTECTING AMERICA'S HEALTII: THE 

FDA, BUSIJ).'ES$, AND ONE HUNDRED YEARS OF REGULATION (2004); B. Richards, FIGHT FOR YOUR HEALTII: 

EXPOSING TIlE FDA's BETRAYAL OF AMERICA (2006); R. Higgs, HAZARDOUS TO OUR HEALTII? FDA REGULATION 

OF HEAL TIl CARE PRODUCTS (1995). 

16 FDA Has Met Most Performance Goals but Device Reviews are Taking Longer, GOVERNMEJ).'T 

ACCOUNTABILITY Ol-rICE, GAO-12-418 (February 2012) (available at: 

http://www.gao.gov/assets/590/588970.pdO. 

17 D. Gieringer, TI,e Safety and Efficacy of New Drug Approval, 5 CATO JOURNAL 177-201 (1985). 

18 T. J. Philipson, E. R. Berndt, A. H. B. Gottschalk, M. W. Strobeck, Assessing the Safety and Efficacy of 

the FDA: The Case of the Prescription Drug User Fee Acts, NBER Working Paper 11724 (2005) (available at: 

http://www.nber.org/papers/ wll724). 

19 A. Mundy and J. Favole, FDA Scientists Ask Obama to Restructure Drug Agency, WALL STREET 

JOURNAL Ganuary 8, 2009) (available at: http://online.wsj.com!article!SB123142562104564381.html). 

20 Lamictal Efficacy Comparable to Carbamazepine in First-Line Epilepsy, Glasgow Study; Lamotrigine in 

Phase III for Mono/herapy, Pediatrics, PHARMACEUTICAL ApPROVALS MONTHLY, F-D-C REPORTS Ganuary 1996), at 

p.29. 

21 See, e.g., J. Entine, FDA SpyGate - New Revelations Challenge TIle New York Times Investigation of 

Agency "Enemies List," Raise More Questions About the "Government's Most Dysfunctional Agency, FORBES 

(August 20, 2012) (available at: http://www.forbes.com/sites!ionentine!2012/08/20/fda-spvgate-newrevelations-challenge-the-new-york-times-investigation-of-agency-enemies-list-raise-more-questions-aboutthe-governments-most-dysfunctional-agencv); Medical Device VCs Link FDA Dysfunction With Company 

Footnote Continued ... 
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Put simply, some question whether the cost-benefit tradeoff for FDA 

involvement is favorable on average, and clearly the tradeoff could be net negative for 

any specific drug or device. It is possible that FDA intervention may do more harm than 

good due to the nature of the problems its tries to solve or to its alleged dysfunction. 

Even a well intentioned, perfectly functioning FDA may not improve matters through its 

regulation given the inherent uncertainty and complexity of its tasks. 

Legislation and regulation would be easy if all one had to do was to vote for a 

policy of "safer products," but this is not possible. "Safety" is not a policy; it is an idea, 

or a goal. Too often the debate over regulation centers on ideas rather than policies. A 

policy is a set of legally-defensible and specific rules telling people what to and not to 

do. The policy is about how and when to move the box from pallet A to pallet Band 

who is to do it. Human implementation of a complex set of human-designed rules 

aimed at improving safety may, in the end, increase danger. We have made personal 

decisions that we thought wise, yet turned out be to otherwise; regulators are people 

too. Recognizing that regulation has shortcomings need not imply the regulators 

necessarily behave badly; rather, in my experience, regulatory solutions to even simple 

problems are hard enough to construct, implement, and enforce even under the best of 

intentions, and the FDA hardly ever deals with simple problems. Certainly, the FDA is 

not dealing in "safety." Rather, the FDA establishes very specific rules that firms must 

Shutdowns, VENtURE WIRE (June 23, 2011) (available at http://www.atvcapital.com/teclmoiogynews I medicai-device-vcs-Iink-fda-dysfunction-with-company-shu tdowns). 
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follow in the hope that the rules will increase safety (or possibly serve some political 

end). Success is a probability; not a certainty. 

On the issue of mobile health applications, even those that believe the FDA has 

an important role to play in the regulation of mobile health applications contend that the 

FDA has failed in the sense that it has acted too slowly or has failed in that it has 

provided too little guidance. "More action" or "more guidance" seems to flow naturally 

from such thoughts. In the course of these hearings, the testifying experts and some 

members of the Committee will likely say things like "the FDA should be doing" 

something it is not. But it is also important to recognize that the "should be doing it" 

implies necessarily that the FDA is not doing what it should be doing. Embedded in a 

call for "more" is the recognition of "failure." It is important to keep in mind we are not 

dealing the FDA we wish existed, but the FDA we have, including all of its warts. As 

we contemplate the role of the FDA in regulating mHealth applications and devices, we 

must not only consider the inevitable negative consequences on innovation and 

competition (and hopefully the benefits of safety and efficacy), but it is important to 

keep in mind that the actions of the agency mayor may improve safety, efficacy or 

quality.22 It is sensible to guard against letting hope overcome experience. 

22 For example, the GAO has identified a wide variety of concerns related to FDA's ability to fulfill its 

mission of protecting the public health. FDA's Premarket Review and Postmarket Safety Efforts, GOVERNMENT 

ACCOUNTABILITY OFFICE, GAO-11-556T (April 13, 2011) (available at: http://www.gao.gov/products/GAO11-556T); FDA Should Expand Its Consideration of Information Security for Certain Types of Devices, GoVERNMENT 

ACCOUNTABILITY OFFICE, GAO-12-816 (August 31, 2012) (available at: http://gao.gov/products/GAO-12-

816). Also see M. Carey, Medical Research, FDA and Mental Health Programs Face Budget Bite, KAISER HEALTH 

Footnote Continued ... 
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2. Medical Device Taxation: Is it a Regressive Tax? 

The Affordable Care Act levies a 2.3% excise tax on medical devices, and the 

FDA's regulation of mobile apps is likely to label such apps as medical devices. 

Whether or not these applications are taxed is an important consideration naturally 

flowing from the FDA's activity in this area. Economists would broadly agree that such 

taxes will reduce the rate of innovation and the introductions of new mobile applications 

and devices by lowering the returns on such innovations. Taxes may (or may not) raise 

revenues, but they always discourage the activity being taxed (other things constant). 

Taxes do nothing to improve safety or efficacy. Is it important that Congress and the 

FDA consider the implications of such taxation on the mHealth sector, the health sector 

broadly, and the mobile communications sector that is a perfect complement to these 

applications. 23 Clear guidance is needed to avoid unnecessary loss of innovative 

capacity in this sector. 

Another significant concern with taxes on medical devices, particularly those in 

the mHealth space, is that such taxes could be regressive in nature. Government studies 

regularly document the health disparities in lower-income segments of the population.2' 

NEWS (March 1, 2013) (available at: http://www.kaiserhealthncws.org/Stories!2013/March!01/heaIthprograms-budget-cuts-seguester.aspx). 

23 D. Furchtgott-Roth and H. Furchtgott-Roth, Employment Effects of the New Excise Tax on the Medical 

Device Industry, Furchtgott-Roth Economic Enterprises (September 2011) (available at: 

http://www.chi.org/uploadedFiles/lndustry at a glance/090711EmploymentEffectoITaxonMedicalDevic 

elndustrvFINAL.pdf). 

24 See supra n. 4. 
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Studies also show that lower-income residents are also more likely to access the Internet 

using a mobile device, suggesting that mHealth will be particularly beneficial in 

improving health care for poorer Americans.25 Indeed, mHealth is frequently targeted at 

lower income populations, whether in less-developed economies or within advanced 

economies. The combination of health disparities and use of mobile technology in 

lower-income populations suggests that the medical device tax could be regressive, with 

lower income Americans shouldering a relatively high tax burden. More research on 

this topic is obviously needed, particularly in light of universal health care, but the 

conditions appear suitable for such an outcome. 

3. The Odd Case of the Medical Device Tax 

Without dispute, taxes reduce the production and consumption of goods and 

services. "Sin taxes" are a clear manifestation of this fact, where goods that are deemed 

socially undesirable are taxed more heavily in order to curb their consumption (e.g., 

tobacco). With that in mind, it is interesting to consider the implication of taxing 

regulated medical devices, including mobile medical applications. 

In order to market a "regulated medical device," the device must be reviewed or 

certified by the FDA. This "certification" by the FDA indicates that the medical device is 

a "good one," or one that is efficacious and safe and will improve the general well being 

25 A. Smith, 35% ~f American Adults Own a Smartphone, PEW INTERNET & AMERICAN LIFE PROJECT, Pew 

Research Center (July 11, 2011) (available at: 

http:// pewinternet.orgl -(medial (Files! Reports!2011(PIP Smartphones.pdf). 
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and health of society. If the device is not efficacious and safe, then it will not be 

certified; it is a "bad" device. It is only after receiving the FDA's stamp-of-approval as a 

"good" and "health improving" device is the ACA's excise tax applied. Oddly, the tax, 

which necessarily discourages the consumption of the "good" medical device, applies 

only to those medical devices which improve the well being of SOCiety. The ACA's 

medical device tax may thus be labeled a "virtue" tax, as opposed to a "sin" tax. Only 

those things society deems as desirable are targeted by the tax, thereby reducing the use 

of the desirable devices. By reducing the consumption of the" good" medical device, the 

tax reduces the social value of the FDA by reducing the benefits of the agency's efforts 

without affecting its costs. 

When the medical device tax is contemplated within the context of its 

relationship to FDA approval, the ACA's medical device tax is a particularly odd form 

of taxation. I am not surprised that there is bipartisan support for a repeal of this 

"virtue" tax; there appears to be good reason to do 50.26 

v. Is the iPhone a Medical Device? 

All of the mobile applications in question are running on mobile platforms like 

iPhones, Android phones, iPads, and so forth. Technological innovation in these 

26 P. Kasperowicz, GOP, Dems Call for Repeal of $30 Billion Medical Device Tax, THE HILL (February 7, 

2013)(available at: http://thehill.com/blogs/floor-action/house/281691-gop-dems-call-for-end-to-30-

billion-medical-device-tax)(" A bipartisan group of 180 House members - consisting of about 40 percent of 

the House - has reintroduced a bill to end the 2.3 percent tax on medical devices that was imposed under 

President Obama's healthcare law.") 
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platforms is rapid and provides substantial benefits to consumers. The ubiquity of such 

devices is amazing considering that the first iPhone was released in 2007. The most 

troubling (to me) about the FDA's Draft Guidance on the regulation of mHealth is the 

potential for inserting the FDA into the innovation flow of mobile handsets, tablets, and 

other devices. I suspect many would find a requirement for FDA approval on each new 

mobile device a scary thought. It would certainly curtail the pace of innovation. While 

many do not believe the FDA will regulate mobile platforms as a regulated medical 

device, some do, and I believe the Draft Guidance plainly leaves that door wide open. 

In the FDA's Draft Guidance, it defines a "mobile platform" as "as commercial offthe-shelf (COTS) computing platforms, with or without wireless connectivity, that are 

handheld in nature. Examples of these mobile platforms include mobile computers such 

as the iPhone, BlackBerry phones, Android phones, tablet computers, or other 

computers that are typical1y used as smart phones or personal digital assistants 

(PDAs)."27 As such, we can equilibrate the iPhone (for example) with the "mobile 

platform." The same document defines a mobile application as "as a software 

application that can be executed (run) on a mobile platform, or a web-based software 

application that is tailored to a mobile platform but is executed on a server."28 In turn, 

the "mobile medical application" that is to be subject to FDA regulation is a "mobile 

application" is defined as an application "that meets the definition of 'device' in Section 

27 FDA Draft Guidance, supra n. 10 at p. 7. 

28 Id. 
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201(1) of the Federal Food, Drug and Cosmetic Act (FD&C Act); and either (a) used as an 

accessory to a regulated medical device; or (b) transforms a mobile platform into a 

regulated medical device."29 Per the Draft Guidance, the application would meet the 

definition of a "device" when "the intended use of a mobile app is for the diagnosis of 

disease or other conditions, or the cure, mitigation, treatment, or prevention of disease, 

or is intended to affect the structure or any function of the body of man."30 

My initial concern about the treatment of handsets and tablets as regulated 

medical devices subject to FDA jurisdiction should be immediately apparent from these 

definitions. Specifically, a "mobile medical application" is one that "transforms a mobile 

platform into a regulated medical device," which (by substitution) could be read as 

saying it "transforms [an iPhone) into a regulated medical device." This language is 

troubling, and it may be that the specific words do not accurately reflect the intent of the 

FDA or could be interpreted differently. Nevertheless, the plain language suggests, at 

least to me, that the mobile platform can be a "regulated medical device" by implication 

of its complementary use with a mobile health application.3l 

29 ld. 

30 ld. at p. 8. For the full definition of a device, see 

http://www.fda.gov fmedicaldevicesf devicereb'Ulationandguidance f overview f classifyyourdevicef ucm05 

1512.htm. 

31 Such language appears elsewhere in the Draft Guidance ("Mobile apps that transform the mobile 

platform into a medical devices by using attachments, display screens or sensors or by including 

funcationalities similar to those of currently regulated medical devices (Draft Guidance, supra n. 10 at p. 

15).") 
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There is more to demand concern. In an attempt to clarify the guidance on 

mobile platform regulation, the FDA's Draft Guidance provides an example, stating "if it 

is possible to run mobile medical apps on BrandNamePhone but BrandNamePhone is 

not marketed by BrandNameCompany with a medical device intended use, then 

BrandNameCompany would not be a medical device manufacturer."32 Clearly, the 

example addresses the treatment of the "phone." The example reveals that whether the 

"phone" qualifies as a "medical device" depends on "intended use." Thus, the Guidance 

leaves open the question of whether the "phone" is a "medical device," which takes us 

back to the question of a "transformation" of the platform into a regulated medical 

device. 

What is meant by "intended use" is obviously an important concept. Is it 

possible, for example, for a manufacturer of blood glucose meters to avoid FDA by 

describing its product as a paperweight? No. The term "intended use," as applicable to 

the FDA, "refer[s] to the objective intent of the persons legally responsible for the 

labeling of devices. The intent is determined by such persons' expressions or may be 

shown by the circumstances surrounding the distribution of the article. This objective 

intent may, for example, be shown by labeling claims, advertising matter, or oral or 

written statements by such persons or their representatives."" Intent, therefore, may be 

32 Id. at p. 10. 

33 21 CFR § 801.4 (available at: 

http:// www.accessdata.fda.gov Iscriptsl cdrhl cfdocsl defr / CFRSearch.cfm?FR=801.4). 
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reflected not in specific labeling, but in other materials and actions. To clarify, consider 

the discussion provided in a paper written by my co-panelist Bradley Thompson34, 

Figuring out the actual intended use of the article depends entirely on 

the facts. I teach this topic at Columbia Law School, and I generally begin 

the session by taking out a popsicle stick. To employ a case study, I tell 

the students that I'm the CEO of a company that makes these sticks, and I 

want to know whether I have to comply with FDA regulations. At that 

point I encourage them to ask questions of me in my hypothetical role as 

CEO, and then ultimately to advise me. 

If they have done their homework, they will start to ask me how I 

promote the stick. In my answers, I'm pretty coy at first, simply 

explaining that I sell sticks and what my customers do with them is their 

business. I explain that my labeling for the product merely identifies the 

product as a stick without going into its possible uses. 

Hopefully my students have read enough to know that the 

regulations define "intended use" as: "the objective intent of the persons 

legally responsible for the labeling of devices. The intent is determined 

by such persons' expressions or may be shown by the circumstances 

surrounding the distribution of the article. This objective intent may, for 

example, be shown by labeling claims, advertising matter, or oral or 

written statements by such persons or their representatives. It may be 

shown by the circumstances that the article is, with the knowledge of 

such persons or their representatives, offered and used for a purpose for 

which it is neither labeled nor advertised .... " So what I say in my 

labeling is not the last word, but ultimately what matters is the totality of 

what I have done to promote the article and to some extent what I know 

about how my customers are using it. 

Eventually my students start asking me about what trade shows I attend, 

what types of magazines I use to advertise the sticks, what my salesmen 

say to customers, and what I know about the actual usages of the sticks. 

And it turns out, in my hypothetical, I know that many of my customers 

are using them as pediatric tongue depressors, I promote them in 

advertisements in hospital journals, and at least some of my salesmen 

might encourage their use as tongue depressors. So eventually my 

34 Thompson, supra n. 13. 
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students come to the view that my simple popsic1e sticks might in fact 

qualify as medical devices and be subject to FDA regulation. 

As this discussion reveals, and the regulatory language infers, the term "intended use" 

is not the same as "stated use." Mobile platforms are typically sold as just that: generalpurpose handsets, tablets, phones, and so forth. Yet, the manufacturers of such 

platforms frequently advertise the use of their products as health devices. For example, 

Apple's "iPhone in Business" and "iPad in Business" series describes the benefits of its 

handsets and tablets in healthcare systems, with the apparent intent of promoting its 

devices to healthcare organizations. These reports state, for example, the "iPhone is 

clearly helping to improve health care"" and is "helping doctors treat patients" and 

"take care of [J patients."36 Apple has also made corporate announcements about its 

devices use for medical care with demonstrations from major medical companies.37 

(Many of the claimed usages are for records management, however, which is a largely 

unregulated field today.) Nor is it clear that such representations rise to the level of 

"intended use." Perhaps the critical question is could an over-zealous regulator or tax 

collector make a legally-defensible argument that devices or even the entire mobile 

network was a medical device and thus subject to regulation or the medical device taX?38 

35 http:((www.apple.com(iphone(business(profiles(memorial-hermann. 

36 http://www.apple.com/iphone(business/profiles/mt-sinai; 

http://www.apple.com/ipad /business/profiles (dr-ferencz; 

http:( / www.apple.com( ipad / business (profiles (rehabcare / #video-rehabcare; 

http:(/www.apple.com(ipad/business(profiles/medtronic!#video-medtronic. 

37 http://mobihealthnews.com/949/iphone-30-aI!-about-mhealth. 

also 

38 The platforms, as general purpose devices purchased by consumers, may qualify under the retail 

Footnote Continued ... 
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In an ecosystem, where all components are intertwined, where does the line get drawn 

on what is and what is not a medical device? Obviously, clarity is needed, and there 

needs to be some limitations on the scope of FDA's reach lest regulation taxation become 

very broad in the mobile ecosystem and due significant damage to innovation in the 

sector. 

VI. Conclusion 

Mr. Chairman, thank you again for the invitation to testify today. I would 

welcome any questions the Subcommittee might have. 

exemption. 
159 

Mr. WALDEN. Dr. Ford, thank you very much for your testimony 

and that of all of our witnesses today. I think it has helped explain 

why we are doing this hearing to begin with because we kept hearing that there is a lot of uncertainty in the marketplace that may 

indeed be slowing down, stifling investment, innovation and new 

U.S. job growth and technologies, so that is why we are doing this 

hearing, and I know Mr. Waxman, who had to leave, and I understand that we all have to juggle here, thinks the law is very clear. 

Obviously, you all don’t, especially when it comes to the FDA’s lack 

of a final rule in this area. Look, we are all for patient safety, and 

there is no separation here. We are all patients eventually. We 

want patient safety. We don’t want fraudulent devices on the market. We recognize the importance of appropriate regulation. 

But Dr. Ford, you reminded me of something I always was told, 

that if you want less of something, tax it more, and you really 

summed it up and basically said, look, you are taking innovation 

in health care, don’t we want more of that. Is that not what you 

were—— 

Mr. FORD. Yes. 

Mr. WALDEN. And a gross-receipts tax, which could completely 

stifle innovation. 

Mr. FORD. The gross-receipts tax will significantly deter involvement of companies in this space. It is a fairly severe tax, particularly when we are dealing with innovation, new products, new companies and even hospitals and doctors themselves have entered 

into the business to design their own applications. This virtue-tax 

issue is an interesting one, and I think it is weird when you have 

a government agency say OK, here is the good stuff and now we 

want you not to use it so much. 

Mr. WALDEN. We have run into that in my own State of Oregon. 

There was a medical device manufacturer who for various reasons, 

but they said including the new gross-receipts tax, I believe laid 

off, what a couple hundred people already, and I am hearing about 

it around the country. 

Dr. Dagi, are you seeing a move to take this offshore in terms 

of innovation and development and offshore these jobs and all that 

now, or not? 

Dr. DAGI. I am, sir, seeing two things. We are seeing that many 

companies attempted to take this offshore, and they are also attempting—they are also thinking about launching offshore where 

profits will not be taxed and where the regulatory path is both simpler and more direct. 

Mr. WALDEN. So is it accurate to say that Obamacare is driving 

this sort of medical technology and innovation to other countries 

because of this tax? 

Mr. FORD. I am not expert enough to say that it is Obamacare 

specifically. 

Mr. WALDEN. Well, but the 2.3 percent tax is part of the President’s health care law. 

Mr. FORD. Yes, sir. 

Mr. WALDEN. All right. And so Mr. Spalter, what does that 

mean, people like your daughter and the innovation that could 

come from that? Are you concerned about a reduction in innovation 

in this area and that these really smart people who are probably, 

160 

I don’t know, 14 sitting in a garage somewhere creating apps, are 

going to create another Angry Birds as opposed to something in 

this area? And I would open that up to anybody here. That is my 

concern is that public policy has an impact. Is it going to have a 

negative impact here, which is not what we want. 

Mr. SPALTER. America’s wireless consumers, all of are actually 

paying roughly 17 percent of our monthly bill of our wireless services to taxes. Wireless services are taxed at two and a half times 

other goods and services on average across our country. We are 

very concerned, Mr. Chairman, that these types of taxes, if they 

are applied to mobile medical applications and devices, will stifle 

innovation, will tempt entrepreneurs to pursue, as you suggested, 

other types of innovation and apply their genius and their efforts 

to other parts of the mobile ecosystem rather than efforts to make 

our children, our families, our parents healthier. So there is an impact and we need to be very, very vigilant and cautious about going 

down this path. 

Mr. WALDEN. Mr. Jarrin, in your testimony you mentioned that 

as many 5 percent of the 27,000 health-related apps could be subject to regulation, yet as our data would indicate, fewer than 80 

medical apps have gone through the FDA process. I was a journalism major, not a math major, but I think that leaves 1,200 apps 

in a state of regulatory uncertainty, roughly. 

Mr. JARRIN. Correct. 

Mr. WALDEN. Is that accurate, and are you concerned about the 

time delays and all of that? 

Mr. JARRIN. Yes, we are very concerned about the fact that we 

haven’t found any clear guidance. The draft guidance document 

needs to be finalized, and we were hoping that through that finalized document we would have a better understanding of whether 

or not these apps that are on the market should be regulated or 

the agency will use their enforcement discretion to not regulate 

them. That is a very important thing, because when you are talking about a device, a medical device will always be a medical device. It is up to the agency whether or not they are going to 

proactively regulate that medical device, and I am speaking about 

the very low risk end of devices, not medium risk or higher risk 

devices, which I think we all agree are not the ones that we are 

discussing. But when we are talking about a mobile application, a 

health application, there is a lot of ambiguity. For example, if I 

were to use some of the terms like ‘‘well being’’ in my marketing 

claims or ‘‘heart health’’ or ‘‘sleep deprivation’’ or ‘‘patient satisfaction’’, ‘‘stress’’, even mentioning—— 

Mr. WALDEN. Do those trigger FDA? 

Mr. JARRIN. Unsure, and that is the kind of clarity that we are 

looking for from the agency, and they seemingly were ready to deliver that clarity. I believe in this very building, less than a year 

ago, Dr. Jeffrey Shuren, the center director, spoke about some of 

the things they were contemplating to take off the table, and they 

spoke about some of the things like medication adherence software 

potentially could be off the table, BMI calculators, I mean body 

mass index calculators, drug-drug formula, drug dosing calculators. 

That would have been very helpful for the industry. 

Mr. CHODOR. Can I add something? 

161 

Mr. WALDEN. If you are real quick, because I am over my time. 

Mr. CHODOR. Well, we are hearing from developers and hospitals 

and docs that a lot of them are waiting on the sidelines until there 

is final—when are the guidelines going to come out, is there going 

to be a tax until they start developing in the space. 

Mr. WALDEN. And those are separate issues? 

Mr. CHODOR. Separate issues, but they are not going forward because they are waiting. 

Mr. WALDEN. All right. Thank you all, and I thank the courtesy 

of the committee, we went over, but we will turn now to Ms. Matsui for 5 minutes. 

Ms. MATSUI. Thank you, Mr. Chairman. 

Let me just go through this. You know, the Affordable Care Act 

was carefully drafted so not to add to the deficit. It imposes a small 

tax on a wide range of industries that will benefit from expansion 

of health insurance coverage for nearly 30 million Americans under 

the reform. Now, one such levy is the 2.3 percent excise tax on 

medical devices. Now, let me just—without getting into the merits 

of the device tax, I would like to ask some questions to clarify 

quickly the applicability to smartphones, tablets and app stores. 

Mr. Thompson, is FDA proposing to regulate devices like 

smartphones and iPads or app stores like the iTunes store? 

Mr. THOMPSON. I think in the draft guidance, they did about the 

best they could to explain no, that they don’t want to regulate 

those articles if they can avoid it. Admittedly, it is not the model 

of crafting but I think their intent came through. 

Ms. MATSUI. OK. So if the FDA is not regulating smartphones, 

tablets or app stores, would they be subject to the medical device 

tax? 

Mr. THOMPSON. So if they are not medical devices, they would 

not be subject to the medical device tax. 

Ms. MATSUI. So Mr. Thompson, it is also my understanding that 

IRS looks at something called the retail exemption when examining 

the applicability of medical device devices. 

Mr. THOMPSON. Right. 

Ms. MATSUI. Could you explain that exemption? 

Mr. THOMPSON. Well, the exemption is meant to cover medical 

devices that are basically sold at retail for use by laypeople in managing their health, and so those are exempt from the tax, and it 

covers most things other than, for example, the professional use 

apps that we have referred to a few times. So whether it is for 

reading an ultrasound image for a doctor or whatever, those apps 

would be subject to the tax. But stuff sold to consumers through 

the app store would not, as I understand it. 

Ms. MATSUI. OK. Mr. Chodor, you state in your testimony that 

a fair reading of the final regulations implementing the tax should 

lead one to conclude that the retail exemption applies to all 

smartphones and tablets that are on the market today. So do you 

agree with Mr. Thompson that based on current IRS rules, 

smartphones and iPads are not subject to the medical device tax? 

Mr. CHODOR. Absolutely, Happtique agrees with that. 

Ms. MATSUI. OK. So from all you have stated then, smartphones 

and tablets will not be taxed as medical devices. 

162 

Now, I understand the frustration here, and I am frustrated too 

regarding the draft of 2011, and I agree the FDA needs to move 

swiftly to finalize the mobile medical app guidance. I understand 

that. The clarity of the final guidance can improve confidence for 

investment and bringing new innovative applications to the consumer, and I wholly agree with you there, and I think we really 

need to encourage that in a very expeditious manner. 

I want to move on to something else here. Spectrum is something 

that I am very much involved in, and we are all involved on this 

committee. We understand how important that is and how important it is to free up the federal spectrum. Mr. Spalter, your testimony discusses the importance of making more spectrum available 

to expand mobile broadband, and I couldn’t agree more. Do 

mHealth applications have particular spectrum needs? Are hospitals and other health care providers going to be affected if we do 

not address the looming spectrum crunch? 

Mr. SPALTER. I believe profoundly yes. Mobile health applications 

are at their nascent stage now. We are expecting there are going 

to be extraordinary levels of adoption, innovation, new products, 

new services, new applications brought to the market, and we need 

to have a predictable and reliable continuum of access to spectrum 

for enabling and deploying these innovations. Similarly, for hospitals, patient communities, professional health care providers, the 

need for secure, reliable, profoundly strong and scalable networks, 

is only going to become more important, and that is based on the 

availability of spectrum. 

Ms. MATSUI. Right, exactly, but the unlicensed spectrum is also 

necessary for you too, correct? 

Mr. SPALTER. Both unlicensed and licensed spectrum are going 

to be critical to advancing the prospect and the promise of innovation in America’s health care. 

Ms. MATSUI. So you think that this is going to be the future, and 

in essence, as fast as we can do this, the better it is going to be? 

Mr. SPALTER. The President has spoken about the fierce urgency 

of now for the sake of our patients, for the sake of our families. Nowhere is that urgency more important than in the health care of 

our citizens, and mobile innovation based and built on spectrum assets and reliable networks is what will get us there. 

Ms. MATSUI. Well, thank you very much. I see my time is exceeded. I yield back. Thank you. 

Mrs. ELLMERS [presiding]. Thank you. I now turn to Vice Chairwoman Blackburn for her questions. 

Mrs. BLACKBURN. Thank you, Madam Chairman, and thank you 

all again for being here with us. 

You know, listening to you all and listening to some of the questions, I think that we are kind of walking through a period of the 

what-ifs, and some of the what-ifs are, well, if it is light touch, if 

they stay out of our business, we are going to do this, and if it is 

overregulating, talk to me. If the FDA says we are going to go after 

all of our mobile devices as well as go after some of these 80,000 

apps, what is that going to do? Because we are talking about a 

gross-receipts tax, not a tax on your profits. So talk to me. If they 

go heavy-handed on this, does it stifle all the innovation? Does it 

163 

shut it off? Anybody that wants to speak, raise your hand and then 

I will recognize you. Go right ahead. 

Dr. DAGI. The problem is that there is a risk to developing any 

kind of a medical application or medical device. For investors to 

come in and to provide the investment capital, they have to see a 

reward. Sooner or later, reward is going to be based on profits, but 

in the early stages it is going to be based on gross revenues. If you 

cut the gross revenues, first of all, you cut the valuations of the 

company. They become less valuable and less likely to be—— 

Mrs. BLACKBURN. So it is like anything else? The money is going 

to find an easier path? 

Dr. DAGI. It will find an easier path. 

Mrs. BLACKBURN. OK. I appreciate that. 

Anybody, anything else to add to that? No? OK. I want to—Mr. 

Chodor, I think that probably you are the one to go to on this. I 

saw the national coordinator’s Patient Safety Action Plan, and of 

course, with all of your health information management systems, 

a lot of that work is done down in my district in Tennessee, and 

we appreciate that they are there, and I know that for the HIMS 

members, many times with meaningful use, you have got the private certifications that are working in that space. Do you think a 

similar model would work for the mobile medical apps and have it 

go through that process as opposed to a more lengthy regulatory 

process? 

Mr. CHODOR. From Happtique’s point of view, we don’t think it 

would be the same because when you take an app, as we were 

mentioning earlier today, where it takes a mole and takes a picture 

of it and says is it a melanoma or not, and someone is going to 

make a clinical decision based on an app, we believe that is something that should go in the hands of the FDA, an organization that 

has done that, and that should be done by the government as opposed to private sector. Just like Happtique’s certification program, 

we aren’t covering apps that should be FDA. We think those apps 

that are really making clinical decisions should be regulated. 

Mrs. BLACKBURN. OK. Anybody else want to add to that? No? 

Nothing else? 

OK, Mr. Jarrin. The IOM recommendations, when did you suggest FDA move forward with its draft guidance? 

Mr. JARRIN. When did we suggest? 

Mrs. BLACKBURN. Yes. 

Mr. JARRIN. We suggested when we offered comments to the 

agency back in October of 2011. The agency released their draft 

guidance document in July. They opened up a 90-day comment period, and I believe they accepted over 700 pages of comments from 

over 100 stakeholders in the industry and the public, et cetera, and 

we were one of those, meaning Qualcomm Incorporated. We submitted a document, which I actually appended to my written statement, so you will find it at the back of my written statement. 

Mrs. BLACKBURN. OK, then. You and Mr. Thompson, let me ask 

you this. Do you think the FDA or Congress should set the policy 

on how we move forward with IMS regulation? 

Mr. JARRIN. IMS regulation? 

164 

Mrs. BLACKBURN. Yes, with the management systems, health 

management systems, the mobile apps. Do you think it should be 

us or FDA? 

Mr. JARRIN. I think FDA is squarely within its jurisdiction right 

now to move and to act, and that is what they had begun to do. 

We took a lot of their initial actions as a very promising indication 

to the industry at large that they were willing to work with all of 

us. 

Mrs. BLACKBURN. OK. Let me get Mr. Thompson in. 

Mr. THOMPSON. I agree with Mr. Jarrin. I think FDA is taking 

a fairly measured look at health information technology and is trying to do in some ways the least that they can do in the hopes of 

allowing innovation to flourish as much as possible, so I am optimistic now. Having said that, I want to see the document because—— 

Mrs. BLACKBURN. Yes, kind of back to Dr. Dagi’s point that if the 

overreach is there, the money, the VC, the funding stops. 

Mr. THOMPSON. Right. We need to see the document. 

Ms. BLACKBURN. Thank you. Yield back. 

Mrs. ELLMERS. I now turn to Mr. Waxman. 

Mr. WAXMAN. Thank you very much, Madam Chair. 

First of all, let me say that I agree that innovation is important, 

that overregulation can harm public health just as underregulation 

can. I think there can be great value in discussing how to determine the correct balance and how to achieve it. But when I read 

the Republican memo for today’s hearing, I got the impression that 

the only two issues of interest to my colleagues on the other side 

of the aisle with respect to health IT whether the FDA will inhibit 

innovation and whether all of our smartphones will be subject to 

a device excise tax. I understand Mr. Walden agreed with my earlier statement that there is a federal interest in ensuring patient 

safety, and I very much appreciate that. 

I would like to hear from our expert witnesses whether you think 

there is a need for any FDA oversight of any mobile medical apps. 

In my opening statement, I mentioned the example of the apps that 

claim to be able to educate the consumers as to whether a mole is 

a sign of a melanoma. Clearly, if such an app is accurate, it could 

lower health care costs by minimizing unnecessary trips to the doctor for the nine moles and could save lives by encouraging people 

to go to a doctor when they might otherwise have ignored a mole 

that could kill them. On the other hand, an app that is inaccurate 

can do just the opposite. 

So Mr. Chodor, do you think such an app warrants going through 

an FDA premarket clearance process just as it would have to do 

if it were a conventional standalone medical device? 

Mr. CHODOR. Yes, we believe that any app that is going to make 

clinical decisions should go through a FDA type of program. 

Mr. WAXMAN. Thank you. Mr. Thompson, what do you think? 

Mr. THOMPSON. I agree with that. I think if you look at the 80 

apps, for example, that have already been submitted to FDA, they 

represent fairly high-risk technologies that should be reviewed by 

FDA. 

Mr. WAXMAN. And Mr. Jarrin? 

Mr. JARRIN. Yes, I would agree with that assessment as well. 

165 

Mr. WAXMAN. Mr. Spalter, do you agree? 

Mr. SPALTER. I do agree. I think that the important issue, in addition to whether there should be preapproval is, we also need to 

keep our eyes and our minds focused on the costs to application developers who are going through those approval processes, the time 

it takes, and the importance of having a precedential document finally that will set forth the clear guidance and outline and suggest 

what the real balance is between assuring, as we need to, patient 

privacy and security at the same time not inhibiting innovation. 

Mr. WAXMAN. Good points. Dr. Dagi, do you agree that there 

ought to be an FDA premarket clearance for some of these devices? 

Dr. DAGI. Absolutely. There is a balance between innovation and 

patient safety. Patient safety comes first, and the balance has to 

be there as well. 

Mr. WAXMAN. And Dr. Ford, do you agree or disagree? 

Mr. FORD. Sure. There is a balance that has to be maintained. 

I think it depends on perhaps what representations are made by 

a particular application, things like that. 

Mr. WAXMAN. To Mr. Thompson, in Mr. Jarrin’s testimony, he 

stated that 500 new mobile health apps are being launched every 

month compared to 400 apps that were being launched every 

month just a year ago. Those statistics indicate to me that the mobile medical app industry is growing at a healthy rate. We all want 

to see this pace of innovation in the mobile medical app market 

continue and accelerate. Do you think that the certainty of final 

guidance from FDA would help the mobile medical app industry 

continue to attract investment? 

Mr. THOMPSON. Absolutely. Getting a document out there in final 

form will relieve a lot of the uncertainty, and I think folks who 

have been sitting on the sidelines will be encouraged to jump in at 

that point. 

Mr. WAXMAN. Are the members of your coalition concerned that 

FDA has plans to aggressively regulate this industry or do they 

just want certainty? 

Mr. THOMPSON. It is a little bit of both, in all honesty. For the 

most part, we want certainty. We always live in some fear of overregulation but we haven’t seen any evidence of that, so as of right 

now, we feel pretty good about it. 

Mr. WAXMAN. Good. Mr. Chodor, you discussed Happtique’s app 

certification program and the need for an objective validation process for mobile medical apps. Do you see Happtique’s certification as 

a substitute of any and all regulation of mobile medical apps? 

Mr. CHODOR. Absolutely not. It is an add-on. 

Mr. WAXMAN. And what types of mobile medical apps should be 

subject to FDA oversight? 

Mr. CHODOR. I think anything that is going to make a clinical 

decision, anything a doctor is going to use or patient is going to use 

that can lead to surgery or a clinical decision. 

Mr. WAXMAN. Do you believe an unfettered market creates incentives to ensure patient safety, and if not, who should step in to ensure patient safety? 

Mr. CHODOR. That is a great question. I think it is a combination. I mean, in that case there is a place for the government and 

the federal agencies to participate in that, and for the public. 

166 

Mr. WAXMAN. Of course, if a patient and a doctor can’t trust the 

efficacy of a product, that is not going to do much good. 

Mr. CHODOR. Exactly. 

Mr. WAXMAN. Thank you very much. I yield back my time. 

Mrs. ELLMERS. Thank you. I now turn to Mr. Latta for his questions. 

Mr. LATTA. Thank you very much, and just following on. I think 

that as Chairman Walden said earlier, we want to make sure that 

there is a clear line out there for patient safety, and we also agree 

that there is the need out there for FDA to ensure that patients 

are safe, and we also have to make sure there is a clear line to 

make sure that those apps that are out there that need to be regulated and those that don’t have to be delineated, and I think that 

is what we are hearing from our panel today, and I just want to 

again, as I had mentioned earlier, thank you all for being here 

today because again I think it is an excellent panel and excellent 

information that we are receiving here today, and if I can just 

start, Mr. Chodor—I would like to go back to what you said a little 

bit earlier, saying that there is a clear need for the FDA to be reviewing these regs sooner than later. Would you want to just go 

into that a little bit? 

Mr. CHODOR. Well, it has been July 2011 that they came out 

with their draft guidelines, comment period came back. The public 

needs to know, the developers need to know, hospitals need to 

know, doctors need to know what is going to be regulated and what 

is not going to be regulated. Right now, we are just sitting in this 

middle ground and no one knows, and I think that is the scariest 

part because the longer it takes, more apps are going to be developed, and should they be FDA approved or shouldn’t they be FDA 

approved, nobody knows. 

Mr. LATTA. Let me go to Dr. Dagi, and thank you very much for 

your effort. Many of us know what it is like to be on planes that 

are delayed or canceled, so we appreciate you making the effort to 

be here today. You know, just following on to that, when you are 

looking at the venture capitalist side, if folks don’t have that line 

out there knowing how fast these things are going to be approved, 

what is that going to do for folks wanting to invest into these apps 

into the future? 

Dr. DAGI. It is going to increase the risk of investment and venture capitalists will put their money elsewhere. 

Mr. LATTA. OK. And when you say putting their money elsewhere, does that mean taking that money offshore to have these 

apps developed? 

Mr. DAGI. They might. 

Mr. LATTA. And in your testimony, you were giving some numbers. How much money are we talking about, do you think, that 

these medical device apps would be bringing in for venture capitalist and they would be investing into in a year’s time? 

Dr. DAGI. That is a hard number to get a hold of right now because there are a number of things that may or may not be medical 

apps. We don’t know whether the extension, for example, of patient 

engagement is a communication or whether it is a medical device. 

But probably I am sure we are talking about hundreds of millions 

of dollars, but I can’t give you a specific number at this point. 

167 

Mr. LATTA. Well, following up a little bit when you were just 

talking about folks wanting to make an investment in this, what 

about when they have to look at that 2.3 percent medical device tax 

and they have to add that in to the equation? What does that do 

to an investor? 

Dr. DAGI. If 2.3 percent is taken off the top, you have a regressive and repressive tax that is going to tell the venture capitalist 

the return that you can get investing in this area will be curtailed 

at the very early stage, at the very vulnerable stage of company development. That is the fear: the risk increases. 

Mr. LATTA. And Mr. Jarrin, again, thanks for your testimony 

today too, and also, I think that Chairman Walden had brought 

this up, but it is really looking at, again, on the FDA side, not getting these things done quickly and slowing down that development, 

and we used to talk about slowing down development, again, as 

you just have heard from Dr. Dagi and Mr. Chodor, what does that 

tell people out there if they want to get into this or not? I think 

the chairman had mentioned a little bit earlier about, does that 

mean somebody doesn’t get into the mobile medical app side and 

they go and develop some type of a game or something like that, 

what does that mean to the industry? 

Mr. JARRIN. Well, it is really tough on the industry. I have got 

a great example. There is a company out in California called 

MedCell, which changed to Vocel, that had an application called 

the Pill Phone, and they brought it to market, and in construction 

with the FDA, they actually pushed the FDA and said we are 

thinking about making this app and we hope that you can help us 

make this app, and they ended up being a regulated app. The CEO 

of that company claims that that was very helpful to them because 

it made them make a better product. However, the FDA has mentioned that those apps potentially may not even have to undergo 

regulation. So he ended up spending several thousands of dollars 

going into the hundreds of thousands of dollars, to go through all 

of the Good Manufacturing Practices and quality systems to actually ensure that it would really fall under the FDA guidelines and 

regulations, and if in fact, he wouldn’t have had to go through that, 

then that is a major capital expense that he incurred technically 

for nothing, so we can also argue that it was actually better because his product came out better in the long run. So you would 

have to weigh both sides, but I think that is very hard on the industry not knowing whether or not you are or are not going to be 

regulated because you have to take that into consideration. 

Mr. LATTA. Thank you very much, and Madam Chair, I see my 

time is expired and I yield back. 

Mrs. ELLMERS. Thank you. I now turn to Mr. Luja ́n for his questions. 

Mr. LUJA ́ N. Thank you very much, Madam Chair, and to everyone that is here today, we really appreciate your time today. 

Mr. Chodor, I think the questions have been asked but I think 

just for clarification because of the memo that we received about 

today’s hearing, I think that is why you are getting a lot of similar 

questions just to make sure that we are able to get answers to 

these questions. Do you think that some types of mobile medical 

apps deserve different levels of scrutiny than others? 

168 

Mr. CHODOR. Yes, I do. 

Mr. LUJA ́ N. And is there anyone on the panel that disagrees with 

that? I don’t hear anyone. That is good to hear. 

For example, some apps might not need any premarket oversight 

as you have described. For some apps, consumers and health professionals might expect a version of a voluntary Good Housekeeping seal that is adequate like your organization is providing, 

and some apps might warrant a little more mandatory federal oversight. Do you think the FDA’s draft guidance recognizes these distinctions? 

Mr. CHODOR. I think they do. We can’t wait to see the final 

guidelines. 

Mr. LUJA ́ N. Well, and I appreciate the testimony today because 

one area where I have seen agreement by the entire committee 

today is that we want to push the FDA, we want the certainty associated with this document to be put into final form, so that way 

we are able to move on and work together. 

With that being said, Mr. Thompson, you mentioned in your testimony that there is already 40,000 apps available on smartphones 

and tablets under the broad mHealth category, and we saw them 

double just last year. Have you seen any slowdown in mHealth innovation since the passage of the Affordable Care Act? 

Mr. THOMPSON. I haven’t seen any slowdown. I am not in the 

best position. I think actually Mr. Jarrin follows those statistics 

better than I do, but my impression is that it is growing quite rapidly. 

Mr. LUJA ́ N. With that being said, Mr. Jarrin, have you seen a 

slowdown? 

Mr. JARRIN. No, no slowdown at all. As a matter of fact, it is almost like a hockey stick. Two years ago when I formed our comments to the agency, I believe that the figures I was using were 

about 13,000 apps in one of the app stores and 10,000 in the other, 

and those were not unique apps. When you hear the current statistics of 40,000 apps, I think it is even higher. It might be actually 

45,000 apps, but some of those are the same company, just different types of the same app in essence, so you can’t really count 

them as unique. My understanding from MobiHealthNews, which 

is one of the sources for the industry right now, is that there are 

27,000 unique apps, so in 2 years it has basically doubled, and that 

is just unique apps, so I see no slowdown at all. I think that this 

is a very dynamic, vibrant space. 

Mr. LUJA ́ N. I appreciate that, Mr. Jarrin. The memo that we received today said that the Food and Drug Administration could potentially classify smartphones and tablets that run the apps as 

medical devices. I think that is one of the reasons that we are here 

today, and when you look at the FFDCA section 201(h), it states 

that if a device addresses the diagnosis of a disease or other conditions or in the care and mitigation, treatment or prevention of disease, that it could be subject to one of these classifications. I just 

bought these really great pair of Nikes that have this little chip in 

them that communicates to my phone, so do we need to provide 

clarification that that shoe is not going to be classified as a medical 

device? 

Mr. JARRIN. Are you speaking to me, sir? 

169 

Mr. LUJA ́ N. Yes, Mr. Jarrin. 

Mr. JARRIN. No, because that is a general health and fitness type 

of device. 

Mr. LUJA ́ N. I appreciate that, and that is the point that I wanted 

to make today is, when I ride my mountain bike and I have a 

Bluetooth connection to it and it sends some information to my doctor and he says Ben, you have gotten a little bit chubby since you 

have gone to Congress, you need to start watching what you are 

eating, you need to start running a little bit more, and so these 

other devices that are communicating to a mobile device, I think 

what has been clear today is that there is no evidence even in what 

the FDA has put out when we talk about a difference between component manufacturers and device manufacturers, that there is a 

concern there, but we can all agree again that we need to put the 

FDA together. 

And lastly, Madam Chair, as my time expires, I hope that there 

is agreement with the committee and we work with the chairman 

and Ranking Member Waxman that we put as much pressure as 

we can on the FDA to get this document out, that I heard a lot of 

concerns from my Republican colleagues about the 2.3 percent tax, 

and I completely hear their opposition to this. I am hoping that 

they can join me in voting against the Paul Ryan budget this week 

because the Republican budget released last week relies on the revenue generated by the medical device excise tax to achieve its revenue targets. So, look there are some ways to talk about this today 

and some ways to show opposition, but when it is included in the 

blueprints associated with the future of what we are looking at 

here, there has to be a better way to do this. 

The only good thing I can say today, Madam Chair, is that I 

think we have seen some clear agreement in this area, and just one 

last thing. When we talk about the apps even in the startup companies and the concerns associated with the 2.3 percent excise tax 

that was included in the Affordable Care Act, there is one other 

thing that startups making retail mobile applications have an explicit retail exemption in the law that excludes these types of apps 

along with products like contact lenses and hearing aids. That is 

the truth. So we as Members of Congress also need to be careful 

with how we create uncertainty when we are out saying things that 

sometimes mislead the public, and I hope that we can work together and make sure I can join with some of my friends and use 

those new Nike shoes and go for a little jog. Thanks, Madam Chair. 

Mrs. ELLMERS. Thank you, Mr. Luja ́n, and I would like to say as 

far as clarity and factual information, the Ryan budget does not in 

fact do that. 

I now turn to Mr. Shimkus. 

Mr. SHIMKUS. Yes, it is a nice attempt. We just think it is important to balance your budget by 10 years and start paying down 

debt, so I guess if balancing the budget in 10 years and not paying 

down debt is not important to you, then I guess you go to your 

processes. 

Mr. LUJA ́ N. Would the gentleman yield? 

Mr. SHIMKUS. No, actually not. I was going to try to ask for time, 

but I think I will use mine on this debate. 

170 

Mr. Dagi and Mr. Ford, in follow-up to my colleague’s other questions, talk about that chip in the phone. Does it—I mean, he is assuming that the whole panel agrees. Where do you stand on what 

could happen, Mr. Dagi first and Mr. Ford, with that example that 

my colleague just expressed? 

Dr. DAGI. It depends on the application, sir. If you have, for example, chips in shoes that can be used for a runner but can also 

be used to look at a child with cerebral palsy and use it to treat 

them—— 

Mr. SHIMKUS. My colleague is not paying attention to your answer, and since I would hope that he would do that, go ahead. 

Dr. DAGI. The same chip can have multiple applications, and traditionally, the FDA has regulated applications and clings as well 

as devices themselves, so the safety piece of it and the efficacy is 

one part. The second part is the application. We would ask for clarity on the way these are going to be regulated, and we would ask 

that the goalpost not be moved in the process of bringing devices 

to the market. 

Mr. SHIMKUS. Mr. Ford? 

Mr. FORD. Well, I think it is interesting that we keep asking the 

FDA for certainty about things and then we make certain claims 

about what they will or will not do. It has got to be one or the 

other. We either need certainty or we don’t. The other issue with 

uncertainty that I think is important to clarify, resolving the uncertainty is not helpful in itself. What if we become very certain that 

they intend to regulate everything very heavily as class III devices 

and tax mobile phones and everything else? I don’t think that 

would be very helpful for innovation. So resolving the certainty/uncertainty issue depends on what we become certain about and what 

we remain uncertain about. So resolving uncertainty is not really 

that helpful if we become more certain that the regulation is going 

to be very heavy-handed. 

Mr. SHIMKUS. And that is a great segue. Mr. Jarrin, you talked 

about the hockey stick, all these new apps. How many of you actually have apps right now? And what is the approval process to have 

an app right now? 

Mr. CHODOR. None. 

Mr. SHIMKUS. Why do you think we have so many apps? Now, 

I have got my iPad here. I have got 21 updates, map updates. If 

you had go through—let me ask another question. How often do 

you update an app, Mr. Chodor? 

Mr. CHODOR. I mean, all developers do it differently. Some developers update it three, four, five times a year. Some developers are 

only updating once a year. 

Mr. SHIMKUS. So if you have to go through the same regulatory 

regime on approval of the original app and then all the updates, 

doesn’t that segue back into the uncertainty of the risk the raising 

of capital? That is a problem. Would you agree? 

Mr. CHODOR. If the app is going to make clinical decisions, then 

that is the cost of being in a heavily regulated industry called 

health care where we are dealing with patients and physicians. 

Mr. SHIMKUS. But you are living I a world right now where you 

don’t have it, right? 

Mr. CHODOR. Well, we—— 

171 

Mr. SHIMKUS. We are in a new world, a new, brave world of 

health care delivery that everyone is going to be happy with. But 

health apps developed in the absence of Obamacare and they are 

plentiful throughout the system, and our concern is, as the federal 

government gets involved, it creates uncertainty, it raises the cost 

of capital, it slows up the delivery process, and it could be very 

problematic for delivering the same care that we are all espousing. 

Mr. Dagi, you are nodding yes. Do you agree with that? 

Dr. DAGI. Absolutely. I believe that the medical application can 

be seen as a provider extender in some cases, so we don’t have 

enough primary care physicians, we don’t have enough specialty 

physicians. This is a way of getting to the patient. 

Mr. SHIMKUS. So we are all saying FDA should publish final 

guidance to clear up confusion. However, Mr. Dagi, you noted that 

we should be looking at alternatives to the FDA framework. I 

mean, there are some of us that realize government is big, costly, 

bureaucratic, slow, the Telecommunications Subcommittee. The 

great thing about this sector is it moves faster than we can regulate, and this is a concern that we are going to slow it down. 

Mr. Dagi, do you believe that the FDA framework is the best way 

to balance patient safety and innovation in this space? 

Dr. DAGI. They have the credibility and the experience. They 

need to take information outside the FDA. It can’t be positivist. It 

can’t be only from the inside. But with the appropriate inputs, yes. 

Mr. SHIMKUS. And you can bring the technology community in 

and be tech savvy, and that would be helpful. 

Dr. DAGI. That is correct. 

Mr. SHIMKUS. Thank you, Madam Chairman. I yield back my 

time. 

Mrs. ELLMERS. Thank you. I now turn to my colleague, Mr. Gardner, for his questions. 

Mr. GARDNER. Thank you, Madam Chair, and thank you to the 

witnesses for joining us today at this hearing. 

A couple weeks ago I met with a constituent of mine in Colorado. 

He was a software developer in his earlier life, earlier years, and 

since has focused his attention on developing applications for a variety of uses, and one of the things he was talking about was a recent health care scare that he had. He had a conversation with a 

doctor in Colorado where the doctor was showing him some of the 

new technologies that he is able to use today when it comes to 

medical applications, apps, software apps, things like that, but also 

in the near future things that we will be using, and he described 

a scenario where you could walk into your bedroom and you would 

have a scale and you would get on the scale and you would check 

your weight. That scale would have a Bluetooth connection to it, 

to the iPad, and it would send your weight to the iPad, and then 

you could actually use the iPad for as little as 100 bucks, I think 

you said, with a device that was attached to it where you could 

check your blood pressure, your heartbeat, your heart rate, oxygen 

levels, and that that would be collected through the iPad as well. 

There may be some other things in the room that you could have 

that would also check your health status, and then that would send 

it through Bluetooth to the iPad, it would collect it and then send 

it directly to the doctor’s office. At what point then are any of those 

172 

things an app that could be subject to regulation, subject to a device tax? Would the scale qualify at that point as a device, Mr. 

Jarrin? 

Mr. JARRIN. The scale would qualify as a device if it is a medical 

device, if that is the intended use of the device. There are medicalgrade weight scales and there are non-medical-grade weight scales 

on the market. 

Mr. GARDNER. So but just if you had just a scale that was attached to Bluetooth, then that scale would become a regulated 

medical device? 

Mr. JARRIN. Not necessarily. You need the intended use from the 

manufacturer. 

Mr. GARDNER. So the intended use would be just you go buy a 

scale and the intended use is to check your weight. That is what 

a scale is. 

Mr. JARRIN. Right. 

Mr. GARDNER. That weight then gets sent. Is that a medical device? 

Mr. JARRIN. Not necessarily. It depends again on the intended 

use by the manufacturer. 

Mr. GARDNER. So not necessarily but it could be? 

Mr. JARRIN. Correct. It could be. 

Mr. GARDNER. OK. So there is no clarity there. 

Mr. JARRIN. Well, it really—what we would need is more information about what the manufacturer intends with—— 

Mr. GARDNER. Well, it is intended as a scale. It is intended to 

check your weight. 

Mr. JARRIN. But there are some scales that are just for informational purposes and there are others that are—— 

Mr. GARDNER. Well, all scales are for informational purposes. 

Mr. JARRIN. Correct, but some make medical claims, and if 

that—— 

Mr. GARDNER. A medical claim as in, you weigh 150 pounds, 

which clearly I do not. 

Mr. JARRIN. But this could be used for medicine. 

Mr. GARDNER. But aren’t scales used for medicine? 

Mr. JARRIN. Not all. 

Mr. GARDNER. Well, why would you check your weight then? 

Mr. JARRIN. For informational purposes. You want to lose 

weight—— 

Mr. GARDNER. For informational purposes, so it is like reading 

a description of a coloring box, this is red, this is blue, this is yellow. That has nothing to do with the color, it just is information? 

Mr. JARRIN. It is information. 

Mr. GARDNER. That makes no sense to me. A scale is used to 

check your weight. 

Dr. Dagi, at what point does everything in your room then, the 

Bluetooth connection, the iPad, could it check your oxygen level? Is 

the scale a medical device subject to a tax? 

Dr. DAGI. You are 72 years old. You have just come out of the 

hospital with congestive heart failure. If your weight goes up 6 

pounds, you may be about to go back into the hospital with another 

cycle of congestive heart failure. That scale has to be sufficiently 

accurate and precise to be able to adjust your medications, and at 

173 

that point it becomes a medical device. If you put a penny in a 

scale at an arcade, that is not a medical device. 

Mr. GARDNER. So is there clarity, though, of whether the iPad at 

that point that collects the information from the scale? 

Dr. DAGI. It depends on whether the iPad has a built-in algorithm that does something with the information. It is not only the 

data, it is converting the data into usable information and how that 

information will be used. 

Mr. GARDNER. So I am hearing from several of the panelists that 

it depends. It might be, it could be. To me, that is not clarity. To 

me, that means that you have an entire room of iPhones, iPads, 

BlackBerrys that communicate with each other but it just depends 

on whether or not something is used for its intended purpose. 

Dr. Dagi, is there the clarity that we need in this field to ensure 

innovation? 

Dr. DAGI. We do not have the necessary clarity. 

Mr. GARDNER. And Mr. Jarrin, would you agree with that at that 

point? 

Mr. JARRIN. It depends. 

Mr. GARDNER. It depends? ‘‘It depends’’ is not clarity. If it depends, that doesn’t seem to me to give you the kind of certainty 

and innovation and funding that we are seeking. 

Mr. JARRIN. There is insufficient clarity with low-risk medical devices or low-risk devices. 

Mr. GARDNER. But is low risk a scale? 

Mr. JARRIN. Yes, it could be, if it is for recreational purposes. 

Mr. GARDNER. Mr. Spalter, so is there sufficient clarity in this 

realm to know that innovation can continue unfettered? 

Mr. SPALTER. Clearly not, and we have a group of experts here 

that are struggling with this question. Imagine what it must be 

like for the members that we represent, the app developers who are 

sitting on their laptops in their living rooms trying to dream up the 

next innovations. How are they dealing with this level of uncertainty? What we are asking for is not necessarily one framework 

or another. What we are asking for is let us create that balance, 

let us find the line, let us put down on paper where we actually— 

what we need to understand, and once we get there, I think the 

hockey stick that we talked about, 40,000 medical apps, will become 100,000, 200,000 medical apps. In fact, I would even say that 

if we had that clarity, that the smartphone that is enabled to test 

urinalysis that we talked about earlier today, there would already 

be three or five new apps that have been developed just this morning. 

Mr. GARDNER. Madam, if I can just ask one follow-up? So I mean, 

the line clearly is in the wrong place at this point, and we have 

got to adjust it. Would you agree with that, Mr. Spalter? 

Mr. SPALTER. I believe that we need clarity, yes. 

Mr. GARDNER. Dr. Dagi? 

Dr. DAGI. Yes, sir. 

Mr. GARDNER. Thank you. Madam Chair, thank you for your indulgence. 

Mrs. ELLMERS. Thank you. Mr. Luja ́n, did you have additional 

questions or comments that you wanted to make? OK. I will finish 

up with my questioning. 

174 

Mr. Thompson, I have a question for you. In the wireless world, 

most wireless devices are replaced in a 2-year cycle, and mobile operating systems are replaced in as little as 1 year by their next 

version. Considering the high rate of technology advancement that 

is taking place, in your experiences with the FDA’s regulatory processes, how long does the premarket approval process take on average for a noninvasive medical device? 

Mr. THOMPSON. There is quite a range but the range could be 

anywhere from about 90 days at the earliest for the actual FDA review, to up closer to a year and a half would also be reasonably 

typical. 

Mrs. ELLMERS. So basically a year and a half is going to elapse 

before some of these very important medical applications can be 

put forward. 

I would just like to finish by asking all of you to respond to a 

couple of questions. Yes or no or unclear, I would like the response. 

I think one of the things that this very important subcommittee 

hearing has really brought to light is, one, we all care about patient safety and we want to practice appropriately. We agree that 

there is FDA approval and regulatory processes that need to be in 

place for certain levels, especially when we are looking at something as important as diagnosing a disease. Mr. Spalter, I listened 

to your testimony and I have personal experience with diabetes. 

My older brother was diagnosed 40 years ago. Where would he be 

today had we had some of that innovation in place. 

This is one where I would like to start to get a yes, no or unclear 

answer. Do you all agree that it is still unclear where we are with 

what is a medical device, starting with Mr. Jarrin? 

Mr. JARRIN. Yes. 

Mr. THOMPSON. Yes. 

Mr. CHODOR. Yes. 

Mr. SPALTER. Yes. 

Dr. DAGI. Yes. 

Mr. FORD. Yes. 

Mrs. ELLMERS. The other question that I have for you is this. 

FDA regulation and medical device tax, or gross tax are the two 

issues that we are really talking about today. In your opinion, if 

it is FDA regulated, should the medical device tax be in place? I 

guess I should preface that by saying, do you believe that the medical device tax is going to hamper innovation? And I would like for 

each of you to answer that question first. 

Mr. JARRIN. Unclear. 

Mr. THOMPSON. I would say it definitely hampers innovation. 

Mr. CHODOR. Unclear. 

Mr. SPALTER. It is still unclear. 

Dr. DAGI. Definitely yes. 

Mr. FORD. The tax will hamper innovation. 

Mrs. ELLMERS. In your opinion then, if FDA regulation is in 

place, and certainly we have seen the need for FDA regulation. We 

need to make sure we are practicing safely and best practices are 

being adhered to. Do you believe if the FDA regulation is in place 

that a medical device tax for such a product should be in place as 

well? 

Mr. JARRIN. Unclear. 

175 

Mr. THOMPSON. We oppose the tax. 

Mr. CHODOR. Unclear. 

Mr. SPALTER. Unclear. 

Dr. DAGI. Separate the tax from the regulation. 

Mr. FORD. Two completely different questions. 

Mrs. ELLMERS. Thank you very much. I truly appreciate the testimony that all of you have given here today. This really opens up 

that door on this discussion that we need to have as to whether or 

not this medical device tax is something we need to move forward 

with, and of course, all important FDA regulations, so thank you 

very much. 

This subcommittee hearing is adjourned. 

[Whereupon, at 12:24 p.m., the subcommittee was adjourned.] 

[Material submitted for inclusion in the record follows:] 

PREPARED STATEMENT OF HON. FRED UPTON

Imagine the potential to improve Americans’ wellbeing if we were to bring wire- less innovation to health care. Wireless carriers invested $25.4 billion in capital expenditures from mid-2011 to mid-2012, and that investment was made in a poor fiscal environment. The mobile application business has experienced explosive growth 

since its inception a half decade ago—responsible for the creation of approximately 

500,000 jobs and it is now a projected $25 billion industry for this year. The 321.7 

million connected mobile devices in the United States as of mid-2012 exceeds the 

number of citizens, as many consumers now use a combination of smartphones, tablets, and laptops. And 60 percent of adults already say they track health data, seven 

percent using an ‘‘app’’ or other tool on their wireless device. That figure is only 

going to continue to rise as apps become more and more a part of our daily lives. 

Helping people take better care of themselves with their mobile devices can make 

them healthier while at the same time cutting costs. 

The question is: how do we harness this innovation? The mobile application economy is characterized by low barriers to entry, quick time to market, inexpensive retail prices, and rapid upgrade cycles. That will not be sustainable, however, if we 

indiscriminately regulate and tax mobile applications, smartphones, and tablets as 

if they were artificial hips or pacemakers. Arbitrarily applying the definition of 

‘‘medical device’’ and the medical device tax to the wireless world could prove disastrous and grind this innovation cycle to a halt. 

We certainly want to ensure patient safety, but the approach we take must be 

a smart one. My hope today is that our witnesses can shed light on how the medical 

device definition and tax is being applied to mobile devices and applications and 

what the impact is. I look forward to their testimony. 

# # # 

PREPARED STATEMENT OF HON. LEONARD LANCE

Thank you Mr. Chairman and thank you to the witnesses who have all come to 

share their experience and expertise with us today. 

The mobile app market place is growing at an exponential pace. We are seeing 

more innovative new apps on the market every day that help American consumers 

with innumerable daily tasks. This is one space where we are truly seeing fast 

paced development and where new, tech savvy entrepreneurs can quickly make 

their brainstorm into a reality and bring it to the market almost immediately upon 

completion. 

There is a significant sector of this market aimed at helping Americans live 

healthier lives; this is the mobile health sector. A simple search for health and fitness apps for the iPhone produces page after page of options ranging from heart 

rate monitors, to calorie counters, to exercise apps and so much more. These technologies, as well as more advanced equipment and programs that are being used 

in doctor’s offices and hospitals every day are helping to improve consumers’ health 

and well being and in my cases bring down the overall cost of providing health care 

in this country. 

176 

Unfortunately, the prospect of arduous regulatory processes, or worse, the prospect of being subject to a poorly thought out regressive tax loom as potentially 

chilling barriers for some new entrants into this market. There rightly is a role for 

the FDA to have a regulatory role with many of these new technologies but they 

must be clear about what kinds of apps and devices will be required to undergo 

their full regulatory review and what others would be exempt. Some of our witnesses point out that FDA is still finalizing many of its regulations that determine 

what is a ‘‘medical device’’ and what is not and that this final analysis may have 

a significant impact on what qualifies under Obamacare’s medical device tax. Uncertainty like this is one of the largest drags on our nescient economic recovery. 

This brings me to the Medical Device Tax itself. I, like many of my colleagues 

on both sides of the aisle, view the imposition of the 2.3% tax on the medical device 

industry as arbitrary and wrongheaded. Mr. Ford makes that case pretty succinctly 

in his testimony in my opinion. This $20 billion tax should be repealed as soon as 

possible. The fact that there is any question as to whether or not a mobile device 

like an iPhone, iPad, or blackberry may be subject to this regressive tax would be 

comical if it weren’t such a potentially serious issue. 

I have a constituent back home in New Jersey who is working with companies 

on the leading edge of some of this innovation. John Letko is President & CEO of 

U.S. Healthcare Supply located in Milford, NJ. His company provides care for 

roughly 150,000, most Medicare beneficiaries with diabetes. Mr. Letko is currently 

working with another company in development of a new glucometer that attaches 

to a smartphone and a corresponding app to help patients with diabetes monitor 

and track their glucose levels and seamlessly share that information with caregivers 

or family members. Fortunately for him, recent IRS guidance appears to put this 

new device under the so called retail exemption from the medical device tax and 

hopefully the same applies to the app. However, he recently wrote me a letter expressing serious concerns he has with the medical device tax’s possible effect on his 

industry. He rightfully points out that for a company like his, the President’s sequester has already resulted in a 2% cut the provider side of Medicare and recent 

cuts to the reimbursement for mail order diabetes supplies have created a very challenging environment. A further 2.3% tax could be very damaging to the industry. 

While my colleagues and I work to finally repeal this damaging tax provision I 

would encourage the FDA to carefully consider how it regulates these new and innovative technologies. We must ensure safety but should not impede technological 

progress unnecessarily. We must find the right balance between protecting consumers and harnessing the power of America’s innovators to ensure that the U.S. 

remains at the forefront of the boom we are seeing in the development of such technologies. 

PREPARED STATEMENT OF HON. ANNA G. ESHOO

Mr. Chairman, today’s hearing provides an opportunity to examine the exciting 

intersection between mobile technology and healthcare. Representing Silicon Valley 

and serving as Co-Chair of the House Medical Technology Caucus, I see first-hand 

the impact that the next generation of mobile health applications and devices are 

having on healthcare accessibility and improvements to care. 

In July 2011, the FDA announced it was seeking input with respect to how the 

agency should approach oversight of certain mobile medical apps used on 

smartphones, tablets and other mobile devices. In the nearly two years since the 

FDA sought comment, there have been over 700 pages of comments, the vast majority of which support the FDA’s draft guidance. The FDA also conducted a two-day 

workshop on mobile medical apps which provided feedback from a variety of stakeholders, including manufacturers, healthcare providers and app developers. Unfortunately, in a hearing intended to examine how ‘‘FDA regulations and taxes could impact innovation in mobile applications and services,’’ we don’t have the FDA here 

to tell their story. 

Also absent from this discussion is the importance of unlicensed spectrum to hospitals and other healthcare professionals around the country. For example, in 

Logan, Ohio, through the power of unlicensed spectrum below 1 gigahertz, the Hocking Valley Community Hospital has a robust broadband solution that is improving 

the efficiency and quality of care throughout the hospital. Elsewhere in the country, 

unlicensed spectrum is supporting nurse call systems, mobile duress pendants, as 

well as fluid pump, respirator and other medical equipment alarm telemetry. 

I understand the desire of innovators to have a predictable regulatory process for 

the apps they’re developing. But mobile medical applications are an emerging and 

exciting new field of technology and we’re still trying to get a handle on what the 

177 

landscape looks like. As technology advances, the clear lines of what’s considered 

a medical device are becoming blurred. We have to be careful not to lock ourselves 

into a misguided pathway without a more complete picture of what these new technologies are capable of. The FDA’s primary goal is to ensure patient safety and I 

believe they are working diligently on final guidance for regulation of mobile health 

applications. 

Despite the FDA’s absence from today’s hearing, I look forward to hearing from 

our witnesses and their enthusiasm for this emerging field of innovation that could 

one day transform our healthcare system. I share this enthusiasm and hope to see 

patients and the industry flourish. 

178 


80805.137

Center on 

I Budget 

and Policy 

Priorities 

Updated March 11, 2013 

820 First Street NE, Suite 510 

Washington, DC 20002 

Tel: 202-408-1080 

Fax: 202-408-1056 

cen,et@cbpp.org 

wwo.·.cbpp.org 

Excise Tax on Medical Devices Should Not Be Repealed 

Industry lobbyists Distort Tax's Impact 

By Paul N. Van de Water 

Bills introduced in the House (H.R. 523) and Senate (S. 232) would repeal the 2.3-percent excise 

tax on medical devices that policymakers enacted in 2010 to help pay for health reform. Tbe 

provision is sound, however, and the arguments against the tax don't withstand scrutiny. 

• The tax does not single out the medical device industry for unfair treatment. The 

excise tax is one of several new levies on sectors that will gain business due to health reform. 

The expansion of health coverage will increase the demand for medical devices and could 

offset the effect of the tax. 

• The tax will not cause manufacturers to shift production overseas. The tax applies 

equally to imported and domestically produced devices, and devices produced in the United 

States for export are tax-exempt. 

• The tax will have little effect on innovation in the medical device industry. To the 

contrary, health reform may well spur medical device innovation by promoting more costeffective ways of delivering care. 

The Joint Committee on Taxation estinutes that repealing the excise tax would cost $29 billion 

over the 2013-2022 period.1 Repealing the tax would undercut health reform in at least two ways. 

Pay-as-you-go procedures would require Congress to offset the cost of repeal by increasing other 

taxes or reducing spending; one likely target would be the provisions of the Affordable Care Act 

(ACA) that expand health coverage to 27 million more Americans. Also, repealing the tax would 

encourage efforts to repeal other revenue-raising provisions of the ACA, which in turn would either 

require still morc painful offsets or increase the budget deficit (if Congress failed to offset the cost). 

The industry's lobbying campaign against the medical device tax is based on misinfonnation and 

exaggeration, as a number of industry executives and analysts confirm. For example, Martin 

Rothenberg, head of a device manufacturer in upstate New York, calls claims that the tax would 

cause layoffs and outsourcing "nonsense." TIle tax, he writes, will add litde to the price of a new 

I Joint Committee on Taxation, Dm:,;ptiun of HR 4 J6, The "Protec' MedictllInnovation Act of 2011, "Publication JCX-45-12, 

May 29. 2012. In March 2010 the committee estimated that the excise tax would raise $20 billion over the 2013~2019 

period. The more recent estimate is higher only because it covers three more years. 
179 


80805.138

device that his firm is developing. "If our new device proves effective and we market it effectively, 

this small increase in cost will have zero effect on sales. It would surely not lead us to layoff 

employees or shift to overseas production.,,2 Martin Boyle, founder of a Massachusetts firm that 

makes diagnostic equipment, insists that the device tax is "not a job killer. It would never stop a 

responsible manager from hiring people when it's time to grow the business.'" 

The excise Tax on Medical Devices 

Congress carefully designed the ACA so that it will not add to the budget deficit. To help pay for 

the expansion of health coverage to 27 million uninsured Americans, the ACA either reduces 

Medicare payments or increases taxes for a wide range of industries that will benefit from health 

reform, including hospitals, home health agencies, clinical laboratories, health insurance providers, 

drug companies, and manufacturers of medical devices. 

The ACA imposes a 2.3-percent excise tax on the sale of any taxable medical device by the 

manufacturer or importer of the device starting in 2013. The tax does not apply to eyeglasses, 

contact lenses, hearing aids, or any other medical device that the public generally buys at retail for 

individual use! Sales for further manufacture or for export are also tax-exempt.; The Internal 

Revenue Service (IRS) published proposed regulations in February 2012 and final regulations in 

December providing detailed guidance on how the tax ",-ill. be applied." The IRS has also issued 

interim guidance for determining the price of a taxable device and providing transition relief from 

penalties for failure to pay the tax. 7 

Lawmakers initially considered a higber tax, but the medical device industry succeeded during the 

health reform debate in halving the amount of revenue that a fee or tax on devices would raise. 

Since the excise tax was enacted, lobbyists for the industry have been pressing for its delay or repeal. 

Last year the House passed H.R. 436, which would have repealed the tax, and bills to repeal the tax 

have been introduced in both the House and Senate this year. 

Medical devices encompass an extremely wide range of products, such as surgical gloves, dental 

instruments, wheelchairs, coronary stents, artificial knees and hips, defibrillators, cardiac pacemakers, 

irradiation equipment, and advanced imaging technology. The U.S. medical device industry has 

estimated total sales of$106 billion to $116 billion a year.' A few large firms account for the lion's 

'Martin Rothenberg, "Numbers show AU not responsible for layoffs," Syraa<Se Posl-Slandarri, September 25, 2012, 

http://hlQ§.syracuse,com/opinion/2012/09/numbers show aca not re§pQPsib,hrml, 

'Alec MacGillis, "Urn, ."bout That Medical Device Tax," The New Republit, September 28,2012. 

'The excise tax is established by section 1405 of the Health Care ""d Education Reconciliation Act of 2010 (Public Law 

111-152), which effectively substituted for section 9009 of the Patient Protection and Affordable Care Act of 2010 

(public Law 111-148). 

5 'Ibe excise tax is one of several manufacturers~ excise taxes included in subtitle D, chapter 32, of the Internal Revenue 

Code. Section 4221 of the Code provides that sales for forther manufacture or export are exempt from these excises. 

G Federal Regftter, Februa!}' 7, 2012, pp. 6028-38; December 7, 2012, pp. 72924-39. 

7 Internal Revenue Service, Notice 2012-77, Interim Guidance and Request for CommentI; Medical Device ExaJe Tax; 

Manufoct;m:r; Excise Tax,,; CO!IIt1'flctivc Sale Price; DepOSit Penaltier, http·/ f wwwirs.gov/pub/irs-drop/n·12·77.pdf. 

8 Christopher Flavelle, MeditalDevice Indmtry OlierstalU Tax Impact, Bloomberg Government Study, February 9, 2012. 

2 
180 


80805.139

share of this revenue. For example, Johnson and Johnson's worldwide sales of medical devices and 

diagnostics totaled $27 billion in 2012; the firm had total sales (on both medical devices and other 

products) of $67 billion, on which it earned profits of nearly $11 billion.' Medtronic had $16 billion 

in sales and profits of nearly $4 billion in its 2012 fiscal year.lO One trade group has estimated that 

the ten largest medical device makers w'JI account for 86 percent of the sales of covered medical 

devices and hence pay 86 percent of the receipts from the excise tax.ll 

Tax Will Not Shift Employment Offshore 

Despite claims to the contrary, the excise tax creates no incentive whatever for medical device 

manufacturers to move production overseas. The tax applies to imported as well as domestically 

produced devices. Thus, sales of medical devices in the United States will be equally subject to the 

tax whether they are produced here or abroad, and the tax will not make imported devices any more 

attractive to domestic purchasers. 

In addition, devices produced in the United States for e.."'<port ate exempt from the tax, so it will 

not reduce the competitiveness of U.S.-made devices in international markets. Making a tax-free 

sale for export is straightforward, and the administrative burden of securing an exemption is small. 

The device manufacturer and the U.S. exporter will register with the IRS (foreign purchasers of 

articles for export need not register), and the U.S. exporter must simply provide its registration 

number to the manufacturer and certifY that the devices will be exported. 12 

A much-cited 2011 study financed by Adval\1ed, an industry trade association, alleges that the tax 

would cause 10 percent of device manufacturing to move offshore, leading to the loss of 43,000 U.S. 

jobs." Analysis by Bloomberg Government, however, finds that the study "is not credible." Its 

assumptions, Bloomberg concludes, "conflict with economic research, overstate companies' 

incentives to move jobs offshore, and ignore the positive effect of new demand created by the 

(health reform] law."" 

AdvaMcd commissioned another study in 2012, but it is not credible either. AdvaMed hired the 

consulting firm Battelle to assess the effect of a ''hypothetical econornic event" that results in a $3 

, johnson & Johnson &pori! 2() 12 POllrlhQuarlff and Pull. Year RUIl!t:, January 22, 2013, 

http://www.investor.jnj.com/rde.sedetaiLcfrn?Release!D= 734 718. 

10 Medtwnic, Inc., 2012 Ann1/.! &port, p. 28. 

New], March 24, 

cQmpames/. 

'2 P,derai &gjster, February 7, 2012, p. 6033. 

" Diana Furchtgott-Roth and Harold Furchtgott-Roth, Employment Efftcts of the NrlJ! Exd" Tax on the Medica! DevUe 

Industry, o\dvanced .'.1edical Technology Association, September 2011, 

http:// "W-ww<.dvamed.Qtg(NR/rdonlyres !2iADD F3E-292D-4DFC-B4ED-

:a9JID3E6D5ADiQ/02Q1.l1EmplovmentEf(!:\J.QfTa,wnM~Qj~~~lndustJ;yFINALpdf. 

14 Christopher Flavelle, "How "fuch Will the Medical Device Tax Hurr?," B/Qamb,rgBHJintJS4~,k, \{arch 22, 2012, 

http;/ /"'l."'WW. busines<;week.com! ori...nter i arddes! 1487 4~how~rnuch-\vill· the~medical-dcvke-tax-hurt. 

3 
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billion annual decline in the medical device industry." Battelle used what economists call an inputoutput model to estimate that this event would cause a loss of 10,000 jobs in the medical device 

industry and 29,000 jobs in other sectors of the economy. But tbere is no reason to think that the 

UlX will cause a $3 billion drop in the sale of devices. Moreover, input-output models are not an 

appropriate way to analyze how changes in a given industry affect the economy as a whole.'· 

As The Economist magazine states, the effect of the excise tilX on the medical device industry will be 

"trivial compared ",oith other shifts," such as "scandals, recalls, stingy customers, [and] anxious 

regulators," all of which have left the industry in a "rut.,,17 For example, device-maker Stryker 

Corporation revealed plans last year to layoff 1,000 workers, or 5 percent of its workforce, and 

implement other restructuring activities. In a press release announcing the changes, Stryker cited the 

excise tax but also stated that the restructuring aims "to allow for continued investInent in strategic 

areas and drive growth despite the ongoing challenging economic environment and market 

slowdown in elective procedures."" Critics of the excise tax, however, have rushed to ascribe the 

layoffs to the tax." \!;'hen the Colllmblls Dispatch investigated similar claims in Ohio, home to many 

small device manufactUIers, it found that "industry officials could not cite an example in Ohio of a 

company that has cut jobs or put growth plans on hold in anticipation of the tax."zo 

In fact, health reform may, on balance, benefit the medical device industry and boost its sales. By 

extending health coverage to 27 million more Americans, or by nearly 10 percent, the Affordable 

Care Act will increase the demand for medical devices and the revenue of device manufactUIers. As 

the industry notes, older patients, who use a disproportionate number of medical devices, already 

have coverage through Medicare. However, the substantial expansion of health coverage will 

increase the number of elective medical procedures performed on those who were previously 

uninsured and, in tum, the use of medical devices. Bloomberg Government finds that the effect of 

the UlX "could be offset by demand from millions of new customers."Zl 

Tax Will Have Uttle Effect on Innovation 

The excise tilX also will likely have very little effect on innovation in the medical device industry, 

despite claims to the contrary. The consulting firm PricewaterhouseCoopers has identified five 

l5 Battelle, Th, Economic Impact of the U.S. Aduanctd M,dical TtCh"ohgy Intiuttry, March 2012, 

http://www.advamed.org/NR/rdon1/r<S 16CS14FB6-8497 -47SC-84DC7 872A 9DDBADC (Q/BattellefinalAdva ?>.-fedBqwQmic[mpacrReportMatcb2()l2 pdf. 

" Paul N. Van de Water, "More Bogus Economics from the Medical Device Indus",),," Off/he Charts Bhg; March 30, 

2012, http:(!www.off!hecbartsblog.Qrg/mQ.re-bogus-ccQ!lomics-from-the-medical-OO~ce-industlJ'1. 

17 "Left to their own de'vices: 11edtronic and the woes of America's medical-technology industry," The Economist, 

September 10, 2011, http:!(www.economiSl.cominQde/?1528644. 

18 Stryker Corporation, <'Stryker Announces Actions to Drive Over $100 Ivfillion in Annual Productivity Gains," 

November 10, 2011, http·!!phuotpo(are-ir.netiphQenix.zhlml?c118965&p-irol-

~~cJe&ID-1629222&highlight. 

19 Han Zhong, Medical Device Excise Tax Claims Its First Victims, American Action Forum, November 16, 2011. 

W Ben Southerly, "Medical-device makers fight blx." The Columbus Dispatch, May 15, 2012, 

http://www.di:;parch com /contem/stories /Ioqll 12012/QS i 15/medical-device-makro-fjght-tax.html. 

1l Flavelle, "How Much Will the Medical Device Tax Hurt?" 
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pillars of medical technology innovation: financial incentives, human and physical resources, a 

favorable regulatory climate, demanding and price-insensitive patients, and a supportive investment 

community.:'" Each pillar comprises more than a dozen separate factors, and the tax rate is just one 

of the many factors affecting financial incentives. 

The rate of innovation in medical technology has slowed in recent years for reasons entirely 

unrelated to the excise tax. "like Big Pharma, which introduced many 'me too' drugs," writes The 

Economist, "device companies have sustained themselves by making small improvements to existing 

products. Spending on R&D has so fat failed to yield many truly innovative devices." 

I Iealth reform may well spur medical-device innovation by promoting more cost-effective ways of 

delivering care. As PricewaterhouseCoopers observes: 

Government pressure to lower health care costs could ... fore[e] developed nations to turn 

to innovative technology to achieve better results at lower costs. In the United States, for 

example, the [ACA] calls for reduced annual payment updates for most Medicare services, 

substantial cuts to managed care plan payments, and the creation of an Independent 

Payment Advisory Board. These are small steps in what will be a prolonged and complex 

effort by Western nations to rein in healthcare costs.23 

Tax WIll Have Minimal Effect on Consumers 

The effect of the excise tax on consumers' costs for health care and health insurance will be 

minimal and will be swamped by other factors. Spending on taxable medical devices represents less 

than 1 percent of total personal health expenditures, so a small increase in their price would have an 

almost imperceptible effect on health insurance premiums. 

De,,-ice manufacturers generally do not hold enough market power to pass on the entire excise tax 

to consumers through higher prices. For some common medical devices (for example, heart valves 

and hip and knee replacement parts), buyers have several availahle alternatives and can negotiate for 

a favorable price. For other products, manufacturers may not be able to pass on the full tax to 

consumers because treatment of the hcalth condition is elective or physicians can select other . '4 treatment optlOns.-

Taking all of its prov-isions into account, health reform will modestly reduce the cost of health 

insurance. The Congressional Budget Office estimates that the ACA will reduce premiums for 

employers with more than 50 workers - which account for 70 percent of the total insurance market 

- by up to 3 percent by 2016. For small employers, the estimated change in premiums ranges from 

an increase of 1 percent to a reduction of 2 percent25 

"-' PricewaterhouseCoopers (PwC), M,dical Technology Innovation Srorm:mf: The Rat< for Global I.$arimhip, January 2011. 

23PwC,p.12. 

24 Personal communication from Dr. Rena Conti, assistant professor of health policy and economics, University of 

Chicago_ 

Z5 Congressional Budget Office, An A.ab-sis of Health Insuran" Premiums U .df' th, Patient Prot,ction and AJforthbk Carr Atl, 

November 30, 2009, h!:tp;l/www.cbQ gPyjftp;:\Q"jl07xx/doc10781 ilJ.:1QJ'~.4lM. 

5 
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sdi 

DIAGNOSTICS 

March 18,2013 

The Honorable Greg Walden The Honorable Anna Esboo 

Cbainnan Ranking Member 

Energy and Commerce Committee Energy and Commerce Committee 

Subcommittee on Communications and Technology Subcommittee on Communications and Technology 

US House of Representatives U.S. House of Representatives 

Dear Chainnan Walden and Ranking Member Eshoo, 

Recent comments concerning the Medical Device Tax and potential harmful effects on job creation and 

innovation are interesting, but seem more like political speech rather than thoughtful analysis. Current technology 

such as smartphones and tablets, for which apps are being developed have also come under scrutiny as possibly 

being subject to the Tax and, therefore hindering innovation. 

We are a small business with just over 50 employees. We manufacture our products right here in AmeriCd. As 

with most such companies we are in business to make money. We are finally pulling out of the economic 

slowdown. We fully expect that in the next few years we will see a growth spurt due to more Americans having 

affordable health care. Ifwe manage our business prudently we will welcome the increased sales and the positive 

effects there from. It is difficult to imagine that a responsible manager would not embrace growth even though 

there will be a tax imposed on it. Why would we not hiTe new people, buy new production equipment and 

increase space to have the resources to make more money? That is our job. To avoid growth to avoid a tax is not 

prudent management. 

The same logic applies to development of new products whether they be new hardware based or app based. If the 

innovation would result in a saleable product it would make no sense for a responsible manager to not innovate. 

There are thousands and thousands of new products under development across the entire medical device industry. 

There seems to be no reduction in FDA applications for new products due to the ACA. 

In tenns ofthe applicability of FDA regulations to new smartphone and tablet devices we see no reason that 

current reasoning should not continue. The definition of a medical device is rather straightforward. The use of 

this definition could be easily applied to new app technology. If a device is simply used to record data and not 

used to actually generate the data or make a diagnosis based on the data, it would not fit the definition. If the 

TEN HAMPDEN DRIVE. EASTON, MASSACHUSETTS 02375 

TELEPHONE 508·238·7033 • FAX 508·230·6497 
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sdi 

DIAGNOSTICS 

device were used to make measurements andlor diagnose from those data, then it would be regnlated. We have 

all seen the effects of insufficient regulation. China which is well known to have had severe problems with lack 

of oversight has suffered from many cases of serious effects from contaminated food and drugs. Right here in 

Massachusetts there is an ongoing situation with a firm that produced products that were not regulated by the 

FDA and under regulated by the state. Americans deserve to have the confidence that products that can affect 

their health are safe and effective. We also need reasonable and logical debate on matters that effect laws and 

regulations that can produce that confidence. 

Sincerely, 

~~~~~ 

SDI Diagnostics, Inc. 

10 Hampden Drive 

Easton, MA 02375 

TEN HAMPDEN DRIVE. EASTON. MASSACHUSETTS 02375 

TELEPHONE 508-238-7033 II FAX 508·230~8497 
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ONLINE FIRST 

Diagnostic Inaccuracy of Smartphone Applications 

for Melanoma Detection 

Joel A. Wolf, BA;Jacqueline Moreau, BA; OlegAkilov, MD; Timothy Patton, DO;]oseph C. English III, MD; 

Janhan Ho, MD; Laura K. Ferns, MD, PhD 

Oblectlve: To measure the performance of smartphone applications that evaluate photographs of skin lesions and provide the user with feedback about the likelihood of malignancy. 

Results: Sensitivity of the 4 tested applications ranged 

from 6.8% to 98.1%; specificity, 30.4% to 93.7%; positive predictive value, 33.3% to 42.1 %; and negative predictive value, 65.4% to 97.0%. The highest sensitiviry for 

melanoma diagnosis was observed for an application that 

sends the image directly to a board-certified dermatologist for analysis: the lowest, for applications that use aUtomated algorithms to analyze images. 

Design: Case-control diagnostic accuracy study. 

SetHng: Academic demtatology department. 

Participants an. Material.: Digital clinical images 

of pigmented cutaneous lesions (60 melanoma and 128 

benign comrollesions) with a histologic diagnosis rendered by a board-certified dermatopathologist. obtained before biopsy from patients undergoing lesion removal as a part of routine care. 

Conclusion .. The performance of smartphone applications in assessing melanoma risk is highly variable. and 

3 of 4 smartphone applications incorrectly classified 30% 

or more of melanomas as unconcemmg. Reliance on these 

applications, which are not subject to regulatory oversight, in lieu of medical consultation can delay the diagnosis of melanoma and hann llsers. 

Mat. outc ... Measures: Sensitivity, specificity, and 

positive and negative predictive values of 4 smartphone 

applications designed to aid nondinician users in determining whether their skin lesion is benign or malignant. 

JAMA Dermatol. 

Author Affiliations: 

Deparunent of Dermatology; 

University of Pittsburgh 

Medical Center, Pitl.Sburgh, 

Pennsylvania (Drs Akilov, 

Pauon, English, Ho, and 

Ferris). Mr Wolf and 

Ms Moreau are medical 

students at the University of 

Pittsburgh, Pittsburgh, 

Pennsylvania. 

Published online January 16, 2013. 

doi:10.1001Ijamadennato1.2013.2382 

As SMARTPHONES USE INcreases, these devices are 

applied to functions beyond communication and 

entertainment and often 

become tools that are involved intimately 

in many aspects of daily life through the 

use of specialized applicatiOns. Several applications in the field of health care, marketed directly to the public, are readily 

available. Some examples include applications that are intended to aid users in 

learning about adverse effects of medications, to track their caloric intake and expenditure to manage weight loss, and to 

log their menstrual cycles to monitor fertility. Although such applications have the 

potential to improve patient awareness and 

physician-patient communication, applications that provide any type of medical 

advice might result in hann to the patient 

if that advice is incorrect or misleading. 

A review of the applications available 

for the 2 most popular smartphone plat~ 

forms reveals several that are marketed to 

nonclinician users to assist them in de~ 

ciding whether a skin lesion is potentially 

a melanoma or otherwise of concern and 

requires medical attention or whether it 

is likely benign based on analysis of a digital clinical image, Such applicatiOn.') are 

available for free or for a relatively low cost 

compared with an in-person medical consultation. These applications are not subject to any sort of validation or regulatory 

overSight. Despite disclaimers that these 

applications are intended for educational 

purposes, they have the potential to harm 

users who may believe mistakenly that the 

evaluation given by suchan application is 

a substitute for medical advice, This Iisk 

is of particular concern for economically 

disadvantaged and uninsured patients, Because a substantial percentage of melanomas are detected initially by patients,l-4 the 

potential effect of such applications on 

melanoma detection patterns is panicu· 

larly relevant. 'We therefore sought to 

determine the accuracy of these applications in determining the benign vs maligJAMA DERMATOl PUBLlSHEDQ:-lUNEJANUARY 16. 2013 WWW.]AMADERM.COM 

El 
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nant nature of a series of images of pigmented skin lesions using the histologic finding as the reference standard. 

'1I1J10DS 

SKIN LESION IMAGES 

The University of Pittsburgh institutional review board reviewed this study and determined that it was t.xempt from full 

board review provided that all images u..<;ed did not contain identifiable patient features or data and images were already in $xistence at the staT[ of the study. The images of skin lesions were 

selected from our database of images that are captured routinely before skin lesion removal to allow clinicopathologic cor~ 

relation in making medical management decisions. We only used 

dose-up images of lesions. Images that contained any identi~ 

Hable features, such as facial features, tattoos, or labels with 

patient infonnation, wefe excluded or cropped to remove the 

identifiable features or infonnation. Because histologic diag~ 

n05i.<; was used as the referencesrandard for subsequem analy~ 

sis, we only used images for which a clear histologic diagnosis 

was rendered by a board-certified dermatopathologist V.H.), 

Lesions with eqUIvocal diagnoses, such as "melanoma cannot 

be ruled out" or "atypical rndanocytic proliferation," were ex~ 

eluded, as were Spitz nevi, pigmented spindle cell nevus of Reed • 

and other uncommon or equtvocallrsions, We also excluded 

lesions with moderate or high~grade atypia given the controversy over their management. The remaining images were stratified into 1 of the fonowing categories: invasive melanoma, mdaw 

noma in situ, lentigo, benign nev-us (including compound, 

junctional, and low-grade dysplastic nevi), dermatofibroma, seborrheic keratosis, and hemangioma. Because 1 application used 

assessments by a remote dermatologist, we cropped images to 

remove rulers or stickers that might reveal that our images were 

from a dermatologist and not a patient. This process .... 'as per~ 

fonned using a computer program CiPhoto; Apple lnc) and did 

not compromise the integrity of the: images. Two investigators 

O.W. and LKF.) then revi.ewed all images for image quality 

and omitted those that were of poor quality or resolution. 

SMARTPHONE APPLICATIONS 

We searched the applicationsloresof the 2 most popular smart» 

phone operating systems for applications that claim or suggest 

an ability to assist users in determining whether a skin lesion 

may be malignant. Our search lent's included shin., shin cancer, 

melanoma, and mole. We reviewed the descriptions of aU appli- cations returned by these searches to determine whether they 

use a photograph of a skin lesion to make 3S,<;eSStnents and whether 

they suggest any type. of diagnosis or estimate the risk of malignancy" These applications then were evaluated to detennine 

whether they could be used with an existing image (ie, if an im~ 

age could be uploaded into the application rather than requir» 

ing that the image be captured in real time -within the application). Three applications were excluded because they could not 

use existing photographs. Applications that allowed the use of 

existing images were selected for funher evaluation. Our search 

yielded a total of 4 applications that met our criteria. Because 

the purpose of our study was to determine the accuracy of such 

applications in general and not to make a direct statement about 

a particular application, we have chosen not to identify lhe applications by their commercial name but rather to number them. 

Application 1 uses an automated algOrithm to detect the bor~ 

der of the lesion. although it also allows manual input to con~ 

firm or to change the detected border. Of the applicatiOns we 

rested, only application 1 has this feature of user input for bor~ 

def detection. The application then analyzes the image and gives 

an assessment of "problematic," which we considered to rea positive test result; "okay," which we considered to be a negative test 

result; or "error~ if the image could not be assessed by the application. We categOrized the latter group as unevaluable. 

Application 2 uses anauromared algorithm to evaluate an im~ 

age that has been uploaded by the user. Theoutput given is "mc1a~ 

noma," which we considered to be a positive test result, or "look .. 

good," which we considered to be a negative test result. If the itn~ 

age could not be analyzed, a message of " skin condition not found" 

was given and we considered the image to be uncvaluable. 

Application 3 asks the user to upload an image to the ap~ 

plication and then to position it \\ithin a box to ensure that 

the. correct lesion is analyzed. The output given by the appli~ 

cation is '"high risk," which we considered to bea positive test 

result, or "medium risk" or "'low risk," both of which we con~ 

sidered to be a negative test re.sult. The presence ora medium~ 

risk category in application 3 pre..<>ented some difficulty in analy~ 

sis beco:l.use only this application among those tested gave an 

intermediate output. Thus, we performed sensitivity and specificity analyses with mediumwrisk lesions counting as a posi~ 

dve test result because we do not know how a user would in~ 

terpretsuch a result Some lesions generated a message of "error," 

and these were considered unevaluable. 

Application 4 can be run on a smartphone or from a website. 

This program differs from the others because it dots not use an 

automated analysis algOrithm to evaluate images; rather, each 

image is sent to a board~certified dermatologist for evaluation, 

and that assessment is returned to the userw:ithin 24 hours. The 

identity of the dermatologist is not given, and we do not know 

whether all the images were read by the same dermatologist or 

by several different dermatologists. The output given is "atypical," which we considered to be a positive tcst result, or "typical," which we considered to bea negative test result. For some 

images we submitted, we were given a response of "send an~ 

other photograph" or "unable to categOrize," and we considered these images to be unevaluable in our analysis, 

DETERMINATION OF APPLICATION ACCURACY 

AND STATISTICAL ANALYSES 

Each of the 4 applications was presented with each eligible pig" 

mented skin lesion image. and we attempted evaluation. We 

recorded output as a test result of positive, negative, or unevaluable as described in the preceding section. We calculated 

the percentage of images presented to each application that were 

considered to be evaluable. Subsequent analySiS of the overall 

sensitivity. speaficity, positive predicative value (PPV), and nega~ 

tive pred.ictive value (NPV) for each application was per~ 

fanned with 95% confidence intervals. These calculations were 

perfonned only for evaluable lesions because we did not have 

the option of submitting anorher image, and we did not want 

this limitation to bias our results. To compare application per~ 

fonnances with each other, the relative sensitivities of each application were compared using the McNemar test v ... ith HolmBonferroni adjustment for multiple comparisons. To perform 

this calculation, only lesions £hat were considered evaluable by 

both applications being compared were included. We perw 

formed statistical analysis using commercially avadab1e soft~ 

ware (StatR, version 12.1; StataCorp). 

nt Sl I IS 

IMAGES SELECTED FOR EVALUATION 

\Ve reviewed a total of 390 images for possible inclusion 

in this study. We excluded 202 as being of poor image qualJAMA DERMAl Ot PtJBl.lSHED ONLINE JA,>.JUARY 16. 2013 \V\VW.JAM.A.DERM.COM 

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Table 1. Histologic Diagnosis of 188 Evaluated Laslons 

lesion 

MelaooffiIJ 

Invasive 

lnsltu 

8eniOnlesions 

Lentigo 

Benign nevus 

Seborrheic keratosis 

Hemangioma 

Dermatofibroma 

No·fAoI 

60(31.9) 

44(23.4) 

16(8.5) 

128(58.1) 

8(4.3) 

94 (50.0) 

20(10.6) 

2(1.1) 

4(2.1) 

Table 2. Sensitivity and Specificlty.f Applications 

Using Evaluabl.lmage. 

AppHCltloll 

No. 

EVlwable Image, No. (%) 

182 (96.8) 

185(98.4) 

170(90.4) 

159(84.6) 

S ... III"Iy, % S ... lIldly, % (95% CI) (95% ClI 

70.0 (56.6-80.8) 39.3 (30.7-48.6) 

69.0 (55.HO.l) 37.0 (28.7-46.1) 

6.8 (2.2-17.3) 93.7 (87.1l-97.2) 

98.1 (88.8-99.9) 30.4 (22.1-40.3) 

ity, containing identifiable patient information or features, or lacking sufficient clinical or histologic information. A total of 188 lesions were evaluated using the 4 

applications. Of these lesions, 60 were melanoma. (44 invasive and 16 in situ), The remaining 128 lesions were benign. The categorization of all lesions is given in faille 1. 

APPLICATION SENSITIVITY, 

SPECIFICITY, PPV, AND NPV 

Each application was presented with each of the 188 lesions in the study, and the test result was recorded as posi· 

rive, negative. or unevaluable as outlined in the "Smart~ 

phone Applications" subsection of the "Methods" section. 

The primary end point of our study was the sensitivity to 

melanoma categorization because most of the lesions removed in our practice are removed owing to concern about 

malignancy, and thus we expected the specificity to be low. 

As reponed in T.II •• 2, the applications considered 

84.6% to 98,4% of the images evaluable. Using only those 

imagt"s considered evaluable for each application, we calculated the overall sensithi.ty and specificity with 95% confidence intervals for each application (Table 2). Sensitivities ranged from 6.8% to 98.1%. Application 3 had the 

lowest sensitivity when a readout of medimn risk was considered to be a negative test result. When analysis was performed considering the medium-risk readout to be a positive test result, the calculated sensitivity was 54.2% (95% 

CI, 40.8%-67.1%). Application specificities ranged from 

30.4% to 93.7%. When the medium-risk result was considered to be a positive test result, the specificity of application3 dropped to 61.3% (95% CI, 51.5%-70.2%). When 

we compared the 4 applications with each other, application 4 had higher sensitivity than the other 3 (P < .001 

vs applications 1 and 3; P " .02 vs application 2). 

We also calculated the PPV, NPV, and 95% confidence interval for each application. The results are shown 

Table 3_ Predlellve Values 01 AppilcaUo.s 

Using Evaluable Image. 

AppIloeti .. 

No. PPV, % (95% ell 

362(27.8-45.7) 

33.3 (25.2-42.6) 

36.4(12.4-68.4) 

42.1 (33.4-51.2) 

NPV, % {95%CI) 

72.7 (SO.2-82.S) 

72.3 (59.5-82.3) 

55.4 (57M2.7) 

97.0 (82.5-99.8) 

Abbreviations: NPV, negative predictive value; PPV, positive predictive 

value. 

in T .... 1e 3. The PPVsranged from 33.3% t042.1%; the 

NPVs, from 65.4% to 97.0%. 

{O\lMINI 

More than 13 000 health care applications marketed to 

consumers are available in the largest online application store alone, and the mobile health applkation industry generated an estimated $718 million worldwide 

in 2011 according to a recent report.' Two-thirds o[ physicians use smartphone applications in their practice.6 

Some of these applications have been evaluated in the peerreviewed literature, including instruments used to aid a,u~ 

tobiographical memory in patients with Alzheimer disease/ to assist in the delivery of cardiac life support,8 and 

to manage diabetes mellitus.'! However, this type of evaluation is not common for applications marketed directly 

to consumers. 

In dermatology, several applications are available that 

offer educational information about melanoma and skin 

self-examination and that aid the user in tracking the evolution of individual skin lesions. However, the applications we evaluated in our study go beyond aiding patients 

in cataloging and tracking lesions and additionally give an 

assessment of risk or probability that a lesion is benign or 

malignant. This fmding is of particular concern because 

patients may substitute these readouts for standard medical consultation. Three of the 4 applications we evaluated 

do not involve a physician at any point in the evaluation. 

Even the best-performing among these 3 appJications classified 18 of 60 melanomas (30%) in our study as benign. 

The explosion of smartphone applicatiOns geared at 

health~related decision making has not gone unnoticed 

by the US Food and Drug Administration (FDA).lnjuly 

of 2011, the FDA announced plans to regulate smartphone applications that pair with medical devices already regulated by the FDA, such as cardiac monitors and 

radiologic imaging devices. to InJune 2012, Congress approved the FDA Safety and Innovation Act,ll which al~ 

lows the FDA to regulate some medical applications on 

smartphones. However, how this process \\-iU occur, which 

applications will be subject to this regulation, and which 

applicatiOns will be exempt remain unclear. Although clarification of these guidelines were projected before the end 

of 2012, at the time of publication their impact remains 

uncertain. In 2011, the Federal Trade Commission fined 

the developers of 2 applications that made unsubstanti~ 

ated claims to treat acne using colored light that could 

JAMA DER.'JATOL Pt;BU$HED ONLINE JANUARY 16. 2013 \VW\V.jAMADERM COM 

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be shone on the skin from a smartphone application. Both 

applications were withdrawn from the market. l1 

In our study, the application with the highest sensitivity essentially functions as a tool for store-and-forward 

teledennatology. Using this application, only 1 of the S3 

melanomas evaluated was rated a5 typical Cie, benign). Although our results show that the physician-based method 

is superior in sensitivity to the applications that use an automated algorithm for analysis, this application was also 

the most expensive in tenns of cost per use at $5 for each 

lesion evaluated. By contrast, the costs of the other applications range from free to $4.99 for evaluation of an un~ 

limited number of lesions. In addition, although applications 1, 2, and 3 provided immediate feedback on lesions 

(mean duration, <1 minute), the evaluation given by application 4 was received in about 24 hours. 

Our study has some intrinsic limitations. To power this 

pilot study adequatelywhiJe resnicting our inclusion criteria to lesions for which histopathologic evaluation as the 

reference standard for diagnosis was available, we were limited to the use of existing photographs of lesions that had 

been removed before the start of the study. This limitation has several implications. First, our images consisted 

primarily of lesions that were considered to be atypical in 

clinical appearance by at least 1 dermatologist. For this reason, and because of the potentially devastating conse- quences of missing a melanoma (compared with classify~ 

inga benign lesionasof concern), we made sensitivity our 

primary end point. In addition, we could not evaluate the 

perfonnance of applications that require images to be caprured in real time within the application because we limited our study to existing images. However, because we 

are not comparing applications for the purpose of recommending one over the other, our results still prOvide valu~ 

able information about the general threat that such applications may pose. Finally, because the lesions in our images 

were no longer present on the patient, we could not re~ 

take a photograph if a lesion was considered unevalu~ 

able. To compensate for this limitation, we included only 

evaluable lesions in our analyse.<;. 

Technologies that improve the rate of melanoma selfdetection have potential to improve mortality due to melanoma and would be welcome additions to our efforts to 

decrease mortality through early detection. However, extreme care must be taken to avoid harming patients in the 

process. Despite disclaimers presented by each of these applications that they were designed for educational purposes rather than actual diagnosis and that they should 

not substitute for standard medical care, releasing a tool 

to the public requires some thought as to how it could be 

misused. This potential is of particular concern in times 

of economic hardship, when uninsured and even insured 

patients, deterred by the cost of copayments for medical 

visits, may turn to these applications as alternatives to physician evaluation. Physicians must be aware of these applications because the use of medical applicatiOns seems 

to be increasing over time; whether such applications may 

be subject to regulatory oversight, whether oversight is appropru.te, and when overSight might be applied remain 

unclear. However, given the recent media and legislative 

interest in such applications, the dermatologist should be 

aware of those: relevant to our field to aid us in protecting 

and educating our patients. 

Accepted for Publication: October 29, 2012. 

Published Online: January 16, 2013. doi:10.lOOl 

Ijamadermatol.2013.2382 

Correspondence: Laura K. Ferris, MD, PhD, Department of Dennatology, UniverSity of Pittsburgh Medical 

Center, 3601 Fifth Ave, Fifth Floor, Pittsburgh, PA 15213 

(ferrislk@uprnc.edu). 

Author Contributions: Dr Ferris had fun access to all the 

data in the study and takes responsibility for the integrity 

of the data and the accuracy of the data analysis. Study concept and design: Wolf and Ferris. Acquisition of data: Wolf, 

Akilov, Patton, English, Ho, and Ferris. Analysis and interpretation of data: Wolf, Moreau, and Ferris. Drafting of 

the manusCtipt: Wolf, Moreau. and Ferris. Critical revision of the mantL~[riptJor important intellectual content Wolf, 

Moreau, Akilov, Patton, English, Ho, and Ferris. Statisti~ 

cal analysis: Moreau. Obtained funding: AkUov and Ferris. 

Administrative, technical, and material support: Wolf, Pat~ 

ton, Ho, and Fenis, Study supervision: English and Fenis. 

Conflict ofInterest Disclosures: Dr Ferris reported having served as an investigator and consultant for MELA 

SCiences, Inc. 

Funding/Support: This study was supported by grants 

ULlRR024153 and ULlTR000005 from the l'ationallnstitutes of Heallh. 

+I"";'H'I 1, Brady MS, Qliveria SA, Christos PJ, Ilt al. Patterns 01 detection in patients with 

cutaneous melanoma. cancer. 2000;S9(2}:342·347. 

2, Epstein OS, Lange JR. Gruber sa, Mond M, Koch SE. Is physician detection associated with thinner melanomas? JAMA 1999;281 (7):640·643, 

3. Kantor J, Kantor OE. Routine dermatologist-pertormed fuHOdy sldn examination and early melanoma detection, Arr:h Dermatol. 2009;145(8);873-876, 

4, McGuire ST, Secrest AM. Andru!oms R, Ferris LK. Surveillance 01 patients for 

early detection of m(lhmoma: pattems in dermatotogistvs patiellt discovery. Arch 

DermatoJ. 2011 :141(6):673-678 

S. MorrisOP. Healtfl·careapps forsmartpllones pitFOAagainsttech industry. Washington Post. June 22, 2012. http://www.washingtonpOSl..com/buSl!less/economy 

/health·care-apps-for-smartphones-pit-fda·against-tech-lndustryI2012106/22 

IgJQAHCcBvV _story _2 .htm!. AccessedAugusl25, 2012. 

6. SeniorK, $martpllones: Mwclinlca! tooisinoncology? Lancet Oncel, 2011 ;12(5): 

429-430. 

7. Delco G, Briv!o E, Sautter SW. Supporting autobiographical memory in patients 

with Alzheimer's disease using smart phones. App/ NetJropsychol. 2011;18{i): 

69-76. 

8. low 0, Clat1c N. Soar J. et al. A ram:lomlsed cootrol trial to determine if use of the 

iReStls@app!icationonasmartphoneimprovestheperformanceofanadvanced 

life support provider in a simulated medica! emergency. Anaesthesia. 2011 :65 

(4):255-262. Cloi:10,1111~.1365-2044.2011.06649.x. 

9. Ciemins E, Coon p. Sarti C. An analysis of data m~nagement loois for diabetes selfmanagement can smart phonetechfloklgy ke~ up? J OiaiJelesSciTechnoi. 2010; 

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31. 2012, http://www.fda.govlMedicatOevlceS!OeviceRegulationandGufdance 

IOverviewJucm3i0927.htm. Accessed August 25, 2012 

12. Jilthlral Trade Commission. "ACne cur&~ mobile: app marketern wil! drop baseless ctalms under FTC settlements. Released SeptemberS, 2011, htlp:f/www,ftc 

.gov/opaJ2011/09!acnecure.shtm.Accessed August 25, 2012. 

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The Honorable Greg Walden 

Chainnan 

March 18,2013 

House Subcommittee on Communications & Technology 

2182 Rayburn House Office Building 

Washington, D.C. 20515 

Re: March 19 Hearing on Health Infonnation Technologies: Harnessing Wireless Innovation 

Dear Chainnan Walden: 

On behalf of CTIA-The Wireless Association® ("CTIA"), I commend you for conducting 

tomorrow's subcommittee hearing. Innovative mobile health ("mHealth") technologies and 

applications have enonnous potential to improve the delivery of health care in the United States and 

around the world by strengthening personalized care for patients. lowering health care costs, and 

removing geographic and economic disparities in health care delivery. However, licensing 

restrictions limit the potential of mHealth technologies and applications, and additional actions by the 

Food and Drug Administration ("FDA") and Congress could further hinder their availability and 

effectiveness. 

The migration of U.S. wireless networks from second-generation to third-generation and now fourthgeneration capabilities has created a powerful platfonn on which mHealth technologies and 

applications can thrive. These advanced mobile networks provide faster and more-intelligent 

delivery of a multitude ofvoice, video, and data applications. While many such applications are 

focused on entertainment and productivity, an increasing number facilitate real-time interaction 

between patients and health Care} professionals. 

For example, there are applications that turn any web-enabled phone into an interactive diabetes 

monitoring and management device. There are systems that link a patient's home with his or her 

pharmacy and prescribing physician, and even include a medication dispensing unit that can be 

installed in a patient's home and connect with the prescribing physician using a secure two-way 

connection. In addition, there are services that connect cardiac telemetry capabilities to remotely 

monitor thousands of patients with chronic heart conditions; and other services that dispatch home 

health care and hospice personnel to patients in the greatest need in real time. 

mHealth applications can allow the millions of Americans living in rural or insular areas to ''visit'' 

the best doctors' offices in the nation, eliminating health care disparities based on geographic 

location and economic differences. These applications could radically change decisions about where 

and from whom to seek medical advice, especially for patients who are not physically capable of 

travelling long distances to obtain medical care. 

One study estimated that remote monitoring of patients with chronic diseases could save $197 billion 

in direct costs over 25 years by reducing emergency room visits, hospital admissions, and the length 

of stay in hospitals. (See Robert E. Litan, :'Vital Signs via Broadband: Remote Health Monitoring 

Transmits Savings, Enhances Lives.") The societal and economic impact ofmHealth applications is 

thus substantial. 
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To ensure that mHealth technologies and applications flourish, policymakers must be mindful of the 

impact of government actions. U.S. wireless carriers must have access to enough licensed spectrum 

to enable real-time deliveIY of bandwidth-intensive mHealth applications. Access to a sufficient 

amount of licensed spectrum has become more important as the use of applications on smartphones 

and tablets has led to an exponential growth in consumer demand for spectrum. This is why it 

remains critically important for the subcommittee to pursue policies aimed at bringing additional 

spectrum for licensed, commercial mobile use to market as expeditiously as possible. 

In addition, wireless ~arriers must be able to manage traffic on their networks so that patients can 

establish secure connections with their doctors and other health care providers. If carriers cannot 

manage their networks, connections could be hacked, exposing sensitive health information, which 

would discourage patients from utilizing potentially life-saving applications. Patients would also 

lose confidence in diagnostic applications that were slow or repeatedly subject to interruptions. 

Further, restrictions on the deliveIY of health care across state lines inhibit the effectiveness of 

mHealth solutions. As mentioned above, mHealth applications can obliterate the disparity of health 

care options between urban and rural areas. However, if health care deliveIY has to stop at state 

lines, patients in certain states will not have access to the same level of care as patients in other 

states, even though technology enables them to do so. 

Finally, several actions by the FDA and Congress could have a significantly negative impact on the 

success ofmHealth applications and the use of mobile technology to improve health care deliveIY. If 

the FDA classifies mHealth applications, as well as the smartphones and tablets on which they 

operate, as medical devices, the FDA could subject such applications and devices to a timeconsuming approval process, which would provide an enormous disincentive to innovation in this 

sector and compromise the availability of life-saving technologies. 

And the excise tax on medical devices (a categOIY in which the FDA may seek to include mHealth 

applications and mobile devices) enacted as part of the Affordable Care Act threatens to raise the 

cost of wireless health products and services, and to discourage research and innovation intended to 

enable more effective, lower cost treatments. It should be repealed. 

Thank you again for exploring how wireless can help to improve health care in America. CTIA's 

members are truly excited about the potential for mHealth solutions to revolutionize health care 

deliveIY and we look forward to working with you to ensure that government actions fucilitate the 

development and deployment of life-saving technologies and applications. 

Sincerely, 

Steve Largent 

President and CEO 
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Tuesday, March 19th 2013 

The Honorable Fred Upton 

Chairman 

House Energy and Commerce Committeee 

2125 Rayburn House Office Building 

Washington, DC 20515 

Chairman Upton, 

ldeemed' 

Thank you very much for holding this important hearing. My name is Keith Brophy 

and [ am the CEO of a health focused software development company based in 

Michigan. My company, [deomed, is changing the game in health care tracking. Our 

apps help people with asthma, heart conditions, and diabetes with more on the 

way. We work to transform the usual pitfalls such as medication adherence into new 

opportunities for patient engagement - and lasting behavior change .. Our 

applications do not dispense medical advice but they do provide motivation, 

inspiration and self-tracking capabilities. 

Mobile applications have enormous value in the healthcare space, especially from 

the consumer perspective. During the development process of our application. we 

undertook rigorous clinical trials to understand what consumers needed from a 

patient engagement application. We are using the experience gained in this effort to 

inform our product development of existing and new products. 

Ideomed has 25 employees with offices in Grand Rapids. and Ann Arbor Michigan. 

and employs some of the nation's best and brightest technology, product 

development. and human engagement experts. Our solution has received the State 

of Michigan's Accelerate Michigan award for most innovative IT company, the 

Michigan Comcast award for Business Innovation, and a national Edison Silver 

Medal award for on-line tool innovation. The accomplishment we are most proud of, 

however, is that our solution has made a positive impact on the lives of those who 

use it as measured by clinical trial outcomes and by glowing user feedback. 

Unfortunately, the FDA's failure to put out a final rule governing mobile applications 

and health IT hampers innovation and increases uncertainty. The slo'o/ pace of the 

FDA does not match today's pace of innovation; there is pent-up desire by both 

developers and health care providers to address today's medical problems using 
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80805.151

mobile devices and mobile applications. However, emerging businesses in this space 

need seed capital from venture capitalists and venture capitalists need regulatory 

certainty. 

The traditional FDA process is lengthy and often very costly. This is a process we 

respect and recognize as merited for certain kinds of applications and clinical use. 

However, we believe it will be critical for any FDA mobile health rule to be "right 

sized" and not capture every application as the same by default simply because it 

has the word "medical" or "health" in the description. We've been able to scale up 

our operation from an app that helps people with asthma to apps that help people 

with heart condition tracking and diabetes tracking. However, if each one of our 

current and future platforms required a new extensive FDA approval process, we 

would be unable to respond to the needs of our consumers in a timely fashion, 

slowing our growth as a company and our consumers ability to manage their own 

health. 

At Ideomed. we understand the value the FDA provides and believe that products 

with clinical applications need oversight We agree that mobile applications with 

clear clinical applications should need to follow the FDA process. However, 

burdensome rules for very useful apps that improve patient engagement may drive 

emerging business entities to step back from the market rather than deal with a 

lengthy approval process. The FDA has a tremendous opportunity to allow safe and 

well thought innovation to be embraced and flourish in the healthcare space. 

Again, I want to thank you and the committee for undertaking this hearing. and I 

hope that it produces the kind of results we are working for: a happier, healthier 

nation that is engaged in stewarding health in innovative ways. 

Sinre"l~ &r1r 

Keith Brophy 

Chief Executive Officer 

Ideomed