Final Common Rule – Sixteen Agencies Update Regulations on Individuals Who Participate in Human Research

The Department of Health and Human Services (HHS), along with fifteen other federal agencies, issued a final rule updating regulations that safeguard individuals who participate in research. The rule updates current regulations, known as the “Common Rule,” which has been in place since 1991, and finalizes a September 2015 proposal. The rule does not become effective until January 19, 2018, although cooperative research is not required to be compliant until January 20, 2020.

Since the Common Rule was promulgated, the volume and landscape of research involving human subjects have changed considerably. Research with human subjects has grown in scale and become more diverse. Examples of developments include: an expansion in the number and types of clinical trials, as well as observational studies and cohort studies; a diversification of the types of social and behavioral research being used in human subjects research; increased use of sophisticated analytic techniques to study human biospecimens; and the growing use of electronic health data and other digital records to enable very large datasets to be rapidly analyzed and combined in novel ways. However, these developments have not been accompanied by major change in the human subjects research oversight system.

HHS notes that the rule seeks to strengthen “protections for people who volunteer to participate in research” while balancing administrative burden, particularly for low-risk research.

According to HHS, more than 2,100 comments were received and as such, the final rule contains a number of significant changes from the proposed rule. Proposed policies that were ultimately not adopted include:

• The final rule does not adopt the proposal to require that research involving non-identified biospecimens be subject to the Common Rule, and it does not require that consent be obtained to conduct such research. In general, researchers can continue to use such biospecimens in the way they are currently using them.
• To the extent that some of the NPRM proposals relied on tools or standards that had not yet been proposed, the final rule either does not adopt those proposals or includes revisions to eliminate such reliance. Examples of items that were not included in the final rule include a template to be used for broad consent forms, and a decision tool to be used for making exemption determinations.
• The final rule does not expand the policy to cover clinical trials that are not federally funded.
• The final rule does not adopt the NPRM’s proposed concept of “excluded” activities. Generally, activities proposed to be excluded are now described as not satisfying the definition of what constitutes research under the regulations or are classified as exempt.
• The final rule does not include the proposed standardized privacy safeguards for identifiable private information and identifiable biospecimens. Instead, in most respects, it retains the current approach to privacy standards.
• The final rule does not adopt the proposal for more stringent criteria for obtaining a waiver of the consent requirements for identifiable biospecimens.

Some of the significant changes made to the Common Rule include:

• Establishes new requirements regarding the information that must be given to prospective research subjects as part of the informed consent process.
• Allows the use of broad consent (i.e., seeking prospective consent to unspecified future research) from a subject for storage, maintenance, and secondary research use of identifiable private information and identifiable biospecimens. Broad consent will be an optional alternative that an investigator may choose instead of, for example, conducting the research on nonidentified information and nonidentified biospecimens, having an institutional review board (IRB) waive the requirement for informed consent, or obtaining consent for a specific study.
• Establishes new exempt categories of research based on their risk profile. Under some of the new categories, exempt research would be required to undergo limited IRB review to ensure that there are adequate privacy safeguards for identifiable private information and identifiable biospecimens.
• Creates a requirement for U.S.-based institutions engaged in cooperative research to use a single IRB for that portion of the research that takes place within the United States, with certain exceptions. This requirement becomes effective 3 years after publication of the final rule.
• Removes the requirement to conduct continuing review of ongoing research for studies that undergo expedited review and for studies that have completed study interventions and are merely analyzing study data or involve only observational follow up in conjunction with standard clinical care.

An HHS press release on the rule is available here.