How will the New Common Rule affect you as a researcher?
First and foremost, the new Rule only applies to new studies approved on or after 1/21/19. So, any of your studies that are either currently approved, or that will receive initial approval prior to 1/21/19, will stay covered under the requirements of the current Rule. Any of your studies approved on or after 1/21/19, will be subject to the new Rule.
What are some of the more significant changes coming with the New Rule?
- Requirement to post clinical trial consent forms to a federal website
Per the Common Rule and NIH Policy, clinical trial means a research study in which one or more human subjects are prospectively assigned to one or more interventions (which may include placebo or other control) to evaluate the effects of the interventions on biomedical or behavioral health-related outcomes.
This definition is important because if your research is funded by a Common Rule agency, or the Federal department or agency component conducting the trial, and meets the definition of a clinical trial, the New Rule requires that one IRB approved informed consent form used to enroll subjects must be posted by the awardee on a publicly available Federal website that will be established as a repository for such informed consent forms. The informed consent form must be posted on the Federal website after the clinical trial is closed to recruitment and no later than 60 days after the last study visit by any subject, as required by the protocol.
At this time, two publicly available federal websites that will satisfy the consent form posting requirement, as required by the revised Common Rule, have been identified: ClinicalTrials.gov and a docket folder on Regulations.gov (Docket ID: HHS-OPHS-2018-0021). HHS and other Common Rule departments and agencies are developing instructions and other materials providing more information to the regulated community about this posting requirement.
Additional federal websites that would satisfy the revised Common Rule’s clinical trial consent form posting requirement might be identified in the future.
- Exemption categories are changing
Exemption categories are changing, and some of them will require a ‘limited IRB’ review for the activity to be considered exempt. For the exemption categories adopted at our institution, limited IRB review means that only the approval criterion dealing with privacy and confidentiality needs to be met. This would need to be confirmed by an IRB Chair or member, and can be conducted by expedited review.
The new exemption categories may be reviewed in the “Exemption Application – NEW RULE”, available in the Forms and Templates library of IRBNet, to be uploaded shortly.
- Some research will no longer require continuing review, unless the IRB specifically determines otherwise
Unless an IRB determines otherwise, continuing review of research subject to the new Common Rule (i.e. approved on or after 1/21/19) is not required in the following circumstances:
- Research eligible for expedited review in accordance with 45 CFR 46.110;
- Research reviewed by the IRB in accordance with the limited IRB review (see prior section on exemptions requiring such review);
- Research that has progressed to the point that it involves only one or both of the following, which are part of the IRB-approved study:
- Data analysis, including analysis of identifiable private information or identifiable biospecimens, or
- Accessing follow-up clinical data from procedures that subjects would undergo as part of clinical care.
Why would an IRB determine that continuing review is required, when the Common Rule allows otherwise? Some reasons include (a) Required by other applicable regulations (e.g., FDA); (b) Required by the terms of a grant, contract, or other agreement (c) The research involves topics, procedures, or data that may be considered sensitive or controversial; (d) The research involves particularly vulnerable subjects or circumstances that increase subjects’ vulnerability; (e ) An investigator has minimal experience in research or the research type, topic, or procedures; and/or (f) An investigator has a history of noncompliance.
NOTE that even though continuing review by the IRB may not be required for the above referenced categories, you will still need to complete an annual progress report so that we can know if the study is still active (allowing for post-approval monitoring), and institutional requirements can be assessed (training and COI status of current research team etc.).
- Informed Consent Requirements are changing
a) General requirements that are added with the new rule are in red. We will follow-up with you in the near future regarding guidance on how to comply with concepts presented in #4, #5, #6.
- Before involving a human subject in research, an investigator shall obtain the legally effective informed consent of the subject or the subject’s LAR
- An investigator shall seek informed consent only under circumstances that provide the prospective subject or the LAR sufficient opportunity to discuss and consider whether or not to participate and that minimize the possibility of coercion or undue influence
- The information that is given to the subject or the LAR shall be in language understandable to the subject or the LAR
- The prospective subject or the LAR must be provided with the information that a reasonable person would want to have in order to make an informed decision about whether to participate, and an opportunity to discuss that information
- Informed consent must begin with a concise and focused presentation of the key information that is most likely to assist a prospective subject or LAR in understanding the reasons why one might or might not want to participate in the research. This part of the informed consent must be organized and presented in a way that facilitates comprehension
- Informed consent as a whole must present information in sufficient detail relating to the research, and must be organized and presented in a way that does not merely provide lists of isolated facts, but rather facilitates the prospective subject’s or LAR’s understanding of the reasons why one might or might not want to participate
- No informed consent may include any exculpatory language through which the subject or the LAR is made to waive or appear to waive any of the subject’s legal rights, or releases or appears to release the investigator, the sponsor, the institution, or its agents from liability for negligence.
b) An additional basic element of Informed Consent (this will be added to our consent template):
- One of the following statements about any research that involves the collection of identifiable private information or identifiable biospecimens:
- A statement that identifiers might be removed from the identifiable private information or identifiable biospecimens and that, after such removal, the information or biospecimens could be used for future research studies or distributed to another investigator for future research studies without additional informed consent from the subject or the legally authorized representative, if this might be a possibility; or
- A statement that the subject’s information or biospecimens collected as part of the research, even if identifiers are removed, will not be used or distributed for future research studies.
c) Additional elements of Informed Consent, as appropriate; these options will be added to our consent template)
- A statement that the subject’s biospecimens (even if identifiers are removed) may be used for commercial profit and whether the subject will or will not share in this commercial profit;
- A statement regarding whether clinically relevant research results, including individual research results, will be disclosed to subjects, and if so, under what conditions;
- For research involving biospecimens, whether the research will (if known) or might include whole genome sequencing (i.e., sequencing of a human germline or somatic specimen with the intent to generate the genome or exome sequence of that specimen).
d) Criteria for waiving or altering informed consent has been modified (new text is in red)
- The research or clinical investigation involves no more than minimal risk to the subjects;
- The research or clinical investigation could not practicably be carried out without requested waiver or alteration;
- If the research involves using identifiable private information or identifiable biospecimens, the research could not practicably be carried out without using such information or biospecimens in an identifiable format;
- The waiver or alteration will not adversely affect the rights and welfare of the subjects; and
- Whenever appropriate, the subjects or LARs will be provided with additional pertinent information after participation.
This option applies to both FDA-regulated and DHHS-conducted or supported research (although FDA regulations do not have #3 included at this time)
e) NEW: Screening, recruiting, or determining eligibility
NOTE: Although this provision is not in FDA regulations, the FDA does not consider records review or oral communication with the subject prior to obtaining consent to be part of the clinical investigation, therefore waivers are not required.
An IRB may approve a research proposal in which an investigator will obtain information or biospecimens for the purpose of screening, recruiting, or determining the eligibility of prospective subjects without the informed consent of the prospective subject or the subject’s legally authorized representative, if either of the following conditions are met:
- The investigator will obtain information through oral or written communication with the prospective subject or legally authorized representative, or
- The investigator will obtain identifiable private information or identifiable biospecimens by accessing records or stored identifiable biospecimens.
What is MMC’s timeline to transition Full Review Studies?
New Full Board submissions received by the January 7, 2019 deadline for the meeting to be held on 1/27/2019 will need to include, or additionally submit, the new “Initial Submission Supplement – NEW RULE”, and will need to be compliant with the new consent requirements described above.
What is MMC's timeline to transition Exempt and Expedited Studies?
New Exempt and Expedited projects submitted on or after January 1, 2019: All new exempt and expedited submissions received in IRBNet before 1/1/2019 should use the current submission forms and will be processed under the current regulations. However, if your submission is not approved before 1/21/2019, the project will be subject to the New Rule, and your submission may need to be updated to be in compliance with the New Rule (see “What if you have a study that’s currently in the approval ‘pipeline’?” below for more details). All new exempt and expedited submissions received in IRBNet on or after 1/1/2019 will need to be compliant with the new rule and submissions will be processed using the new forms (“Exemption Application – NEW RULE”, and an added “Initial Submission Supplement – NEW RULE”, respectively). Please note that these studies received on or after 1/1/2019 cannot be approved until 1/21/2019 or later. Consent forms that accompany expedited submissions will need to comply with the new consent requirements (see above).
What if you have a study that’s currently in the approval ‘pipeline’?
If you currently have a study in IRBNet that has not yet been approved, please be sure to reply to any outstanding conditions as soon as possible so that an approval can be granted under the current Rule, i.e., on or before January 20, 2019. If approval is not obtained by that date, the “Exemption Application – NEW RULE” (for exemptions) and the “Initial Submission Supplement – NEW RULE” (including the new consent template, for expedited and full review studies) will need to be submitted, and re-reviewed, for compliance with the New Rule.
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