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Revising the Common Rule: Ethics, Scientific Advancement, and Public Policy in Conflict

Published online by Cambridge University Press:  01 January 2021

Abstract

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Type
Columns: Currents in Contemporary Bioethics
Copyright
Copyright © American Society of Law, Medicine and Ethics 2017

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References

Department of Health and Human Services et al., “Final Rule: Federal Policy for the Protection of Human Subjects,” Federal Register 82, no. 12 (2017): 7149-7274, at 7150.Google Scholar
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The case of the Havasupai Tribe cinvolved researcher collection and testing of blood samples to study diabetes (with tribal council approval), with allegations that researchers also studied and published articles about schizophrenia, in-breeding, and migration of the tribe allegedly without the tribal members' knowledge or consent. The case illustrates issues of group-based harm based in linking individual members of a group with a stigmatizing condition as well as undermining a fundamental cultural belief system of the group. See, e.g., Rothstein, M. A., “Is Deidentification Sufficient to Protect Health Privacy in Research?” American Journal of Bio-ethics 10, no. 9 (2010): 3-11, at 6; Wolf, L. E., “Advancing Research on Stored Biological Materials: Reconciling Law, Ethics, and Practice,” Minnesota Journal of Law, Science, and Technology 11, no. 1 (2010): 99–156, at 118-122; Rothstein, M. A., “Ethical Issues in Big Data Health Research,” Journal of Law, Medicine & Ethics 43, no. 2 (2015): 425–429, at 426-427 (citing Tilousi v. Arizona State Univ. Bd. of Regents, 2005 WL 6199562 (D. Ariz., March 3, 2005); Drabiak-Syed, K., “Lessons from Havasupai Tribe v. Arizona State University Board of Regents: Recognizing Group, Cultural, and Dignitary Harms as Legitimate Risks Warranting Integration into Research Practice,” Journal of Health & Biomedical Law 6, no. 2 (2010): 175–225); Hurley, E. A., “From the Director: Informed Consent in the Revised Common Rule,” available at <http://blog.primr.org/ftd-informed-consent-revised-common-rule/> (last visited August 23, 2017).CrossRefGoogle Scholar
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The federal departments and agencies that are signatories to the final rule are the Department of Homeland Security, the Department of Agriculture, the Department of Energy, the National Aeronautics and Space Administration, the Department of Commerce, the Social Security Administration, the Agency for International Development, the Department of Housing and Urban Development, the Department of Labor, the Department of Defense, the Department of Education, the Department of Veterans Affairs, the Environmental Protection Agency, the Department of Health and Human Services, the National Science Foundation, and the Department of Transportation. Although the Central Intelligence Agency has not issued the Common Rule in regulations, historically it has complied with all subparts of the HHS regulations at 45 CFR part 46, and it will continue to do so pursuant to Executive Order 12333 of December 4, 1981, as amended. The Department of Labor was not a signatory to the 1991 rule but has now adopted the final rule. The Consumer Product Safety Commission, subject to Commission vote, intends to adopt the final rule through a separate rulemaking. The Department of Justice, which has been a signatory to the 1991 rule, is not a signatory to the final rule. Final Rule, supra note 1, at 7154.Google Scholar
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As categorized by the Council on Government Relations, the highest number of public comments were received from patients, the general public, researchers, universities/medical centers/IRBs, professional associations, and advocacy groups. Council on Government Relations website, “Analysis of Common Rule Comments,” available at <http://www.cogr.edu/Human-Subjects-and-Animal-Research> (last visited August 23, 2017).+(last+visited+August+23,+2017).>Google Scholar
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“Limited IRB review” includes such findings as broad consent was properly obtained, the research is within the scope of that consent, provisions to protect confidentiality are adequate, and the study plan does not include returning individual research results. See Final Rule, supra note 1, at 7197-7199; §__.111(a)(8).Google Scholar
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This point was made by a commenter to the NPRM and is highlighted in the Preamble to the final rule. See Final Rule, supra, note 1, at 7167.Google Scholar
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