Final Rule

2017 Final Rule

  • First major revision to 45 CFR 46 since 1991
  • Regulation for human subjects research for 16 Federal Agencies that support the Common Rule
  • Revised regulations take into account advancements in science & technology, as well as a rapidly changing research landscape.
  • Currently cheduled to take effect January 19, 2018.
  • 45 CFR 46 Federal Policy for the Protection of Human Subjects: Final Rule This version includes an extensive preamble with discussions about and explanations for each change.
  • 45 CFR 46 (published January 17, 2017) This version includes jut the Final Rule without the preamble.

On January 19, 2017, DHHS issued a Final Rule to the Federal Policy for the Protection of Human Subjects that extensively updates the Common Rule - 45 CFR 46 - for the first time since 1991. Not all of the changes proposed in the 2015 Notice of Proposed Rule-Making were included in the Final Rule. The promulgated changes are intended to add flexibility and to reduce regulatory burden. Whether or not the goals will be actually achieved remains to be seen.

The new regulations are currently scheduled to go into effect on January 19, 2018 with the exception of the requirement for a single IRB for Cooperative Research. However, OHRP submitted a proposed rule to the Office of Management and Budget (OMB) requesting a one-year delay in the implementation of the Final Rule - with the exception of 3 burden-reducing regulations that were not specified. OMB has yet to respond so the actual implementation date of the Final Rule is as yet, uncertain.

When the Final Rule goes into effect it will apply to the following:

  • New studies
  • Most existing studies at the time of their next IRB review - e.g. with the next amendment or continuing review

What are the most important changes?

  • Updates to definitions
  • Changes to the Exempt Research categories
  • New: Concept of Broad Consent (not being implemented at this time at CHOP)
  • Changes to the requirements for Continuing Review
  • New: Requirement for single IRB review for multi-site research funded by the federal government
  • Changes to the requirements for informed consent
  • New: Additional criteria for waiver of consent and waiver of documentation of consent
  • New: Requirement to post informed consent forms on a public website for clinical trials
  • Change to the consent requirements fo screening subjects.

Changes to Definitions

The definition of who is a human subject has been expanded to include both identifiable data and identifiable biospecimens. From a pragmatic perspective, this doesn't change much since most IRBs already implicitly included identifiable biospecimens as part of an individual's identifiable private information.

An explicit definition of "clinical trials has also been added. "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."

Changes to Exempt Critera

Certain categories of minimal risk research are exempt from the regulatory requirements of 45 CFR 46. The Final Rule modifies the existing categories, adds several new categories and also adds limited IRB review to several categories. The most important change is to Category 4 which previously applied to the use of existing data or specimens if the sources were publicly available or recorded by the investigator in such a manner that subjects cannot be identified, directly or through identifiers linked to the subjects. The revised Category 4 will now permit the use of data and in some cases biospecimens that are both existing and prospective, collected as part of clinical care or during another research study, and will allow investigators to record identifiers when HIPAA applies.

Broad Consent

Broad consent is a new concept that would allow patients the opportunity to opt-in or out from having their identifiable data and leftover specimens used for future research. The research use of data/specimens stored under broad consent would be eligible for a determination of exemption after a limited IRB review. Implementation of broad consent would require an institutional effort to put in place a tracking mechanism for each patient's choices. The IRB cannot waive the requirement for consent for an individual who declined broad consent, which might limit the use of data and specimens in future. Given the obstacles and complexity of implementing board consent, CHOP and many other institutions are not planning on implementing broad consent at the present time.

Changes to Requirements for Continuing Review

Currently, all non-exempt research requires continuing review and approval by the IRB at least once a year. The CHOP IRB has extended the review period for non-federally funded, non-FDA regulated studies to every 3 years. The Final Rule will do away with the requirement for annual review altogether for minimal risk research - except for FDA-regulated research - and for studies reviewed by the full board where the only ongoing activities are limited to data analysis or access to follow-up clinical data from procedures that subjects would undergo as part of clinical care. On a case-by-case basis the IRB can impose additional continuing review requirements.

At the time of the first continuing review for each currently approved study that takes place after January 19, 2018, the IRB will conduct a continuing review. From that point onwards, the new regulations will apply. Not all continuing review activities will cease; changes to the research will still require submission of an amendment and reportable events will still need to be submitted.

Single IRB Review

The Final Rule mandates single IRB review for all federally funded cooperative research. 45 CFR 46.114 has been expanded to include the requirement for single IRB review for all Cooperative Research which means research that involves more than one institution.

45 CFR 46.114(b)(1)" Any institution located in the United States that is engaged in cooperative research must rely upon approval by a single IRB for that portion of the research that is conducted in the United States." Since the NIH has already mandated single IRB review for research that it funds (all competing grant applications for due dates on or after January 25, 2018), this will not be a major change for many institutions. However, this requirement will now apply to the other federal departments and agencies that have adopted the Common Rule.

Changes to Informed Consent

The Final Rule adds requirements intended to make the informed consent form more focused and understandable. 45 CFR 46.116(a)(4) adds a new standard for what level of information should be in the consent form. "(4) The prospective subject or the legally authorized representative 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." There are new elements of informed consent related to future use of identifiable information/biospecimens, disclosure (if applicable) of profit from commercial use, return of research results and information related to genome sequencing. These elements have been generally included in consent forms already but the regulation formalizes their inclusion.

Changes to Waiver Criteria & Waiver of Documentation of Consent

There are new requirements added to the criteria for waiver of consent at 45 CFR 46.116(f)(3). If a subject has declined broad consent, the IRB cannot subsequently waive the informed consent requirements for that individual.

There is now a new option at 45 CFR 46.117(c)(1)(iii) to waive documentation of consent if the subjects or legally authorized representatives are members of a distinct cultural group or community in which signing forms is not the norm, provided the research presents no more than minimal risk of harm to subjects and there is an appropriate alternative mechanism for documenting that informed consent was obtained.

Posting of Informed Consent Document

There is a new regulation at 45 CFR 46.116(h) that requires the posting of clinical trial consent forms.

(h) Posting of clinical trial consent form.

  1. For each clinical trial conducted or supported by a Federal department or agency, one IRB- approved informed consent form used to enroll subjects must be posted by the awardee or the Federal department or agency component conducting the trial on a publicly available Federal Web site that will be established as a repository for such informed consent forms.
  2. If the Federal department or agency supporting or conducting the clinical trial determines that certain information should not be made publicly available on a Federal Web site (e.g. confidential commercial information), such Federal department or agency may permit or require redactions to the information posted.
  3. The informed consent form must be posted on the Federal Web site 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.

Changes to Consent Requirements for Screening

Consent is no longer required for screening subjects for eligibility, if the procedures are limited to: (a) obtaining information through oral or written communication with the prospective subject or legally authorized representative, and/or (b) obtaining identifiable private information or identifiable biospecimens by accessing records or stored identifiable biospecimens.

This change aligns the requirements of 45 CFR 46 with the FDA's requirements for screening prospective subjects questions to determine if they are eligible or reviewing their existing medical records or biospecimens – e.g. blood tests, urine tests, radiographic imaging, etc. - then subjects will need to consent prior to conducting those procedures.

While consent is no longer required for these screening activities, if HIPAA applies to the research, then either HIPAA authorization or a waiver of HIPAA authorization will still be required. If HIPAA authorization is required, a stand-alone HIPAA authorization should be used.