Industries & Practices

Health Care Industry

    Back

    HIPAA Privacy Regulations: Uses and Disclosures For Which an Authorization or Opportunity to Agree or Object is Not Required: Research Purposes - § 164.512(i)

    As Contained in the HHS HIPAA Privacy Rules

    HHS Guidance: Research

     

    HHS Regulations as Amended January 2013
    Uses and Disclosures For Which an Authorization or Opportunity to Agree or Object is Not Required: Uses and Disclosures for Research Purposes - § 164.512(i)

     

    (i) Board approval of a waiver of authorization. The covered entity obtains documentation that an alteration to or waiver, in whole or in part, of the individual authorization required by §164.508 for use or disclosure of protected health information has been approved by either:

    (A) An Institutional Review Board (IRB), established in accordance with 7 CFR lc.107, 10 CFR 745.107, 14 CFR 1230.107, 15 CFR 27.107, 16 CFR 1028.107, 21 CFR 56.107, 22 CFR 225.107, 24 CFR 60.107, 28 CFR 46.107, 32 CFR 219.107, 34 CFR 97.107, 38 CFR 16.107, 40 CFR 26.107, 45 CFR 46.107, 45 CFR 690.107, or 49 CFR 11.107; or

    (B) A privacy board that:

    (1) Has members with varying backgrounds and appropriate professional competency as necessary to review the effect of the research protocol on the individual's privacy rights and related interests;

    (2) Includes at least one member who is not affiliated with the covered entity, not affiliated with any entity conducting or sponsoring the research, and not related to any person who is affiliated with any of such entities; and

    (3) Does not have any member participating in a review of any project in which the member has a conflict of interest.

    (ii) Reviews preparatory to research. The covered entity obtains from the researcher representations that:

    (A) Use or disclosure is sought solely to review protected health information as necessary to prepare a research protocol or for similar purposes preparatory to research;

    (B) No protected health information is to be removed from the covered entity by the researcher in the course of the review; and

    (C) The protected health information for which use or access is sought is necessary for the research purposes.

    (iii) Research on decedent's information. The covered entity obtains from the researcher:

    (A) Representation that the use or disclosure sought is solely for research on the protected health information of decedents;

    (B) Documentation, at the request of the covered entity, of the death of such individuals; and

    (C) Representation that the protected health information for which use or disclosure is sought is necessary for the research purposes.

    (2) Documentation of waiver approval. For a use or disclosure to be permitted based on documentation of approval of an alteration or waiver, under paragraph (i)(1)(i) of this section, the documentation must include all of the following:

    (i) Identification and date of action. A statement identifying the IRB or privacy board and the date on which the alteration or waiver of authorization was approved;

    (ii) Waiver criteria. A statement that the IRB or privacy board has determined that the alteration or waiver, in whole or in part, of authorization satisfies the following criteria:

    (A) The use or disclosure of protected health information involves no more than a minimal risk to the privacy of individuals, based on, at least, the presence of the following elements;

    (1) An adequate plan to protect the identifiers from improper use and disclosure;

    (2) An adequate plan to destroy the identifiers at the earliest opportunity consistent with conduct of the research, unless there is a health or research justification for retaining the identifiers or such retention is otherwise required by law; and

    (3) Adequate written assurances that the protected health information will not be reused or disclosed to any other person or entity, except as required by law, for authorized oversight of the research study, or for other research for which the use or disclosure of protected health information would be permitted by this subpart;

    (B) The research could not practicably be conducted without the waiver or alteration; and

    (C) The research could not practicably be conducted without access to and use of the protected health information.

    (iii) Protected health information needed. A brief description of the protected health information for which use or access has been determined to be necessary by the institutional review board or privacy board, pursuant to paragraph (i)(2)(ii)(C) of this section;

    (iv) Review and approval procedures. A statement that the alteration or waiver of authorization has been reviewed and approved under either normal or expedited review procedures, as follows:

    (A) An IRB must follow the requirements of the Common Rule, including the normal review procedures (7 CFR 1c.108(b), 10 CFR 745.108(b), 14 CFR 1230.108(b), 15 CFR 27.108(b), 16 CFR 1028.108(b), 21 CFR 56.108(b), 22 CFR 225.108(b), 24 CFR 60.108(b), 28 CFR 46.108(b), 32 CFR 219.108(b), 34 CFR 97.108(b), 38 CFR 16.108(b), 40 CFR 26.108(b), 45 CFR 46.108(b), 45 CFR 690.108(b), or 49 CFR 11.108(b)) or the expedited review procedures (7 CFR 1c.110, 10 CFR 745.110, 14 CFR 1230.110, 15 CFR 27.110, 16 CFR 1028.110, 21 CFR 56.110, 22 CFR 225.110, 24 CFR 60.110, 28 CFR 46.110, 32 CFR 219.110, 34 CFR 97.110, 38 CFR 16.110, 40 CFR 26.110, 45 CFR 46.110, 45 CFR 690.110, or 49 CFR 11.110);

    (B) A privacy board must review the proposed research at convened meetings at which a majority of the privacy board members are present, including at least one member who satisfies the criterion stated in paragraph (i)(1)(i)(B)(2) of this section, and the alteration or waiver of authorization must be approved by the majority of the privacy board members present at the meeting, unless the privacy board elects to use an expedited review procedure in accordance with paragraph (i)(2)(iv)(C) of this section;

    (C) A privacy board may use an expedited review procedure if the research involves no more than minimal risk to the privacy of the individuals who are the subject of the protected health information for which use or disclosure is being sought. If the privacy board elects to use an expedited review procedure, the review and approval of the alteration or waiver of authorization may be carried out by the chair of the privacy board, or by one or more members of the privacy board as designated by the chair; and

    (v) Required signature. The documentation of the alteration or waiver of authorization must be signed by the chair or other member, as designated by the chair, of the IRB or the privacy board, as applicable.

     

    HHS Description and Commentary From the January 2013 Amendments
    Uses and Disclosures For Which an Authorization or Opportunity to Agree or Object is Not Required: Uses and Disclosures for Research Purposes

     

    The changes were technical only, changing the words IRB to institutional review board and correcting a broken sentence.

     

    HHS Description of and Commentary of August 2002 Revisions
    Uses and Disclosures For Which an Authorization or Opportunity to Agree or Object is Not Required: Uses and Disclosures for Research Purposes

     

    Institutional Review Board (IRB) or Privacy Board Approval of a Waiver of Authorization.

    December 2000 Privacy Rule. The Privacy Rule builds upon existing Federal regulations governing the conduct of human subjects research. In particular, the Rule at § 164.512(i) establishes conditions under which covered entities can use and disclose protected health information for research purposes without individual authorization if the covered entity first obtains either of the following:

    • Documentation of approval of a waiver of authorization from an Institutional Review Board (IRB) or a Privacy Board. The Privacy Rule specifies requirements that must be documented, including the Board’s determination that eight defined waiver criteria had been met.

    • Where a review of protected health information is conducted preparatory to research or where research is conducted solely on decedents’ information, certain representations from the researcher, including that the use or disclosure is sought solely for such a purpose and that the protected health information is necessary for the purpose.

    March 2002 NPRM. A number of commenters informed the Department that the eight waiver criteria in the December 2000 Privacy Rule were confusing, redundant, and internally inconsistent. These commenters urged the Department to simplify these provisions, noting that they would be especially burdensome and duplicative for research that was currently governed by the Common Rule. In response to these comments, the Department proposed the following modifications to the waiver criteria for all research uses and disclosures of protected health information, regardless of whether or not the research is subject to the Common Rule:

    • The Department proposed to delete the criterion that “the alteration or waiver will not adversely affect the privacy rights and the welfare of the individuals,” because it may conflict with the criterion regarding the assessment of minimal privacy risk.

    • In response to commenters’ concerns about the overlap and potential inconsistency among several of the Privacy Rule’s criteria, the Department proposed to turn the following three criteria into factors that must be considered as part of the IRB’s or Privacy Board’s assessment of minimal risk to privacy:

      • There is an adequate plan to protect the identifiers from improper use and disclosure;

      • There is an adequate plan to destroy the identifiers at the earliest opportunity consistent with the conduct of the research, unless there is a health or research justification for retaining the identifiers, or such retention is otherwise required by law; and

      • There are adequate written assurances that the protected health information will not be reused or disclosed to any other person or entity, except as required by law, for authorized oversight of the research project, or for other research for which the use or disclosure of protected health information would be permitted by this subpart.

    • In response to concerns that the following waiver criterion was unnecessarily duplicative of other provisions to protect patients’ confidentiality interests, the Department proposed to eliminate the criterion that: “the privacy risks to individuals whose protected health information is to be used or disclosed are reasonable in relation to the anticipated benefits, if any, to the individual, and the importance of the knowledge that may reasonably be expected to result from the research.”

    In sum, the NPRM proposed that the following waiver criteria replace the waiver criteria in the December 2000 Privacy Rule at § 164.512(i)(2)(ii):

    Overview of Public Comments. The following discussion provides an overview of the public comment received on this proposal. Additional comments received on this issue are discussed below in the section entitled, “Response to Other Public Comments.”

    The overwhelming majority of commenters were supportive of the Department’s proposed modifications to the Privacy Rule’s waiver criteria. These commenters found that the proposed revisions adequately addressed earlier concerns that the waiver criteria in the December 2000 Rule were confusing, redundant, and internally inconsistent. However, a few commenters argued that some of the proposed criteria continued to be too subjective and urged that they be eliminated.

    Final Modifications. The Department agrees with the majority of commenters that supported the proposed waiver criteria, and adopts the modifications as proposed in the NPRM. The criteria safeguard patient privacy, require attention to issues sometimes currently overlooked by IRBs, and are compatible with the Common Rule. Though IRBs and Privacy Boards may initially struggle to interpret the criteria, as a few commenters mentioned, the Department intends to issue guidance documents to address this concern. Furthermore, the Department notes that experience and guidance have enabled IRBs to successfully implement the Common Rule’s waiver criteria, which also require subjective determinations.

    This final Rule also contains a conforming modification in § 164.512(i)(2)(iii) to replace “(i)(2)(ii)(D)” with “(i)(2)(ii)(C).”

    Response to Other Public Comments

    Comment: It was suggested that the Department eliminate the March 2002 NPRM waiver criterion that requires IRBs or Privacy Boards to determine if there is an “adequate plan to protect identifiers from improper use and disclosure,” in order to avoid the IRB having to make subjective decisions.

    Response: The Department disagrees with the commenter that the waiver criterion adopted in this final Rule is too subjective for an IRB or a Privacy Board to use. First, the consideration of whether there is an adequate plan to protect identifiers from improper use and disclosure is one of three factors that an IRB or Privacy Board must weigh in determining that the use or disclosure of protected health information for the research proposal involves no more than a minimal risk to the privacy of the individual. The Department does not believe that the minimal risk determination, which is based upon a similar waiver criterion in the Common Rule, is made unduly subjective by requiring the IRB to take into account the researcher’s plans for maintaining the confidentiality of the information.

    Second, as noted in the discussion of these provisions in the proposal, the Privacy Rule is intended to supplement and build upon the human subject protections already afforded by the Common Rule and the Food and Drug Administration’s human subject protection regulations. One provision already in effect under these authorities is that, to approve a study, an IRB must determine that “when appropriate, there are adequate provisions to protect the privacy of subjects and to maintain the confidentiality of data.” (Common Rule ' ____.111(a)(7), 21 CFR 56.111(a)(7).) The Department, therefore, believes that IRBs and Privacy Boards are accustomed to making the type of determinations required under the Privacy Rule.

    Nonetheless, as stated above, the Department is prepared to respond to actual issues that may arise during the implementation of these provisions and to provide the guidance necessary to address concerns of IRBs, Privacy Boards, and researchers in this area.

    Comment: A few commenters requested elimination of the waiver element at § 164.512(i)(2)(ii)(A)(2) that would require the IRB or Privacy Board to determine that “there is an adequate plan to destroy identifiers at the earliest opportunity consistent with the conduct of the research, unless there is a health or research justification for their retention or such retention is required by law.” These commenters argued that this requirement may lead to premature destruction of the data, which may hinder investigations of defective data analysis or research misconduct.

    Response: The waiver element at § 164.512(i)(2)(ii)(A)(2) accounts for these concerns by permitting the retention of identifiers if there is a health or research justification, or if such retention is required by law. It is expected that IRBs and Privacy Boards will consider the need for continued analysis of the data, research, and possible investigations of research misconduct when considering whether this waiver element has been met. In addition, destroying identifiers at the earliest opportunity helps to ensure that the use or disclosure of protected health information will indeed pose no more than “minimal risk to the privacy of individuals.” Requiring the researcher to justify the need to retain patient identifiers provides needed flexibility for research, while maintaining the goal of protecting individuals’ privacy interests. If additional issues arise after implementation, the Department can most appropriately address them through guidance.

    Comment: Commenters also requested clarification of the proposed waiver element at § 164.512(i)(2)(ii)(A)(3), that will require an IRB or Privacy Board to determine that there are “adequate written assurances that the protected health information would not be reused or disclosed to any other person or entity, except as required by law, for authorized oversight of the research project, or for other research for which the use or disclosure of protected health information would be permitted by this subpart.” Specifically, the commenter’s concern centered on what effect this criterion could have on retrospective studies involving data re-analysis.

    Response: The Department clarifies that the Privacy Rule permits the use or disclosure of protected health information for retrospective research studies involving data re-analysis only if such use or disclosure is made either with patient authorization or a waiver of patient authorization as permitted by § 164.508 or § 164.512(i), respectively. If issues develop in the course of implementation, the Department intends to provide the guidance necessary to address these questions.

    Comment: A few commenters suggested clarifying that recruitment for clinical trials by a covered entity using protected health information in the covered entity’s possession is a health care operation function, not a marketing function. These commenters argued that a partial IRB or Privacy Board waiver of authorization for recruitment purposes would be too burdensome for the covered entity, and would prevent covered health care providers from communicating with their patients about the availability of clinical trials.

    Response: Research recruitment is neither a marketing nor a health care operations activity. Under the Rule, a covered entity is permitted to disclose protected health information to the individual who is the subject of the information, regardless of the purpose of the disclosure. See § 164.502(a)(1)(i). Therefore, covered health care providers and patients may continue to discuss the option of enrolling in a clinical trial without patient authorization, and without an IRB or Privacy Board waiver of patient authorization. However, where a covered entity wants to disclose an individual’s information to a third party for purposes of recruitment in a research study, the covered entity first must obtain either authorization from that individual as required at § 164.508, or a waiver of authorization as permitted at § 164.512(i).

    Comment: It was suggested that the Rule should permit covered health care providers to obtain an authorization allowing the use of protected health information for recruitment into clinical trials without specifying the person to whom the information would be disclosed and the exact information to be disclosed, but retaining the authorization requirements of specified duration and purpose, and adding a requirement for the minimum necessary use or disclosure.

    Response: The Department understands that the Privacy Rule will alter some research recruitment but disagrees with the commenter’s proposal to permit broad authorizations for recruitment into clinical trials. The Department decided not to adopt this suggestion because such a blanket authorization would not provide individuals with sufficient information to make an informed choice about whether to sign the authorization. In addition, adopting this change also would be inconsistent with Department’s decision to eliminate the distinction in the Rule between research that includes treatment and research that does not.

    Comment: It was suggested that the Department exempt from the Privacy Rule research that is already covered by the Common Rule and/or FDA’s human subject protection regulations. Commenters stated that this would reduce the burden of complying with the Rule for covered entities and researchers already governed by human subject protection regulations, while requiring those not previously subject to compliance with human subject protection regulations to protect individuals’ privacy.

    Response: Many who commented on the December 2000 Privacy Rule argued for this option as well. The Department had previously considered, but chose not to adopt, this approach. Since the Common Rule and the FDA’s human subject protection regulations contain only two requirements that specifically address confidentiality protections, the Privacy Rule will strengthen existing human subject privacy protections for research. More importantly, the Privacy Rule creates equal standards of privacy protection for research governed by the existing regulations and research that is not.

    Comment: It was argued that the waiver provision should be eliminated. The commenter argued that IRBs or Privacy Boards should not have the right to waive a person’s privacy rights, and that individuals should have the right to authorize all uses and disclosures of protected health information about themselves.

    Response: The Department disagrees that safeguarding individuals’ privacy interests requires that individuals be permitted to authorize all uses and disclosures of protected health information about themselves. In developing the Privacy Rule, the Department carefully weighed individuals’ privacy interests with the need for identifiable health information for certain public policy and national priority purposes. The Department believes that the Privacy Rule reflects an appropriate balance. For example, the Rule appropriately allows for the reporting of information necessary to ensure public health, such as information about a contagious disease that may be indicative of a bioterrorism event, without individual authorization. With respect to research, the Department strongly believes that continued improvements in our nation’s health require that researchers be permitted access to protected health information without individual authorization in certain limited circumstances. However, we do believe that researchers’ ability to use protected health information without a patient’s authorization is a privilege that requires strong confidentiality protections to ensure that the information is not misused. The Department believes that the safeguards required by the final Rule achieve the appropriate balance between protecting individuals’ privacy interests, while permitting researchers to access protected health information for important, and potentially live-saving, studies.

    Comment: A few commenters stated that, if the Rule permits covered entities to release protected health information to sponsor-initiated registries related to quality, safety, or effectiveness of FDA-regulated products, then this permission should apply to academic institutes and non-profit organizations as well. Otherwise, the commenters argued, the Rule establishes a double standard for research registries created by FDA-regulated entities versus registries created by academic or non-profit sponsored entities.

    Response: The provisions under § 164.512(b)(iii) are intended to allow the disclosure of information to FDA-regulated entities for the limited purpose of conducting public health activities to ensure the qualify, safety, or effectiveness of FDA-regulated products, including drugs, medical devices, biological products, and food. Thus, the Department does not believe a modification to the research provisions is appropriate. The Privacy Rule permits covered entities to disclose protected health information to a registry for research purposes, including those sponsored by academic and non-profit organizations, if such disclosure: is required by law under § 164.512(a), is made pursuant to an IRB or Privacy Board waiver of authorization under § 164.512(i), is made pursuant to the individual’s authorization as provided by § 164.508, or consists only of a limited data set as provided by § 164.514(e).

    Comment: It was suggested that the Department modify the Rule’s definition of “research” or the provision for preparatory research to explicitly permit the building and maintenance of research databases and repositories. The commenter further asserted that, under the Common Rule, “research” signifies an actual research protocol, and would not include a data or tissue compilation that is undertaken to facilitate future protocols. Therefore, since the Privacy Rule and the Common Rule have the same definition of “research,” this commenter was concerned that the Privacy Rule would not permit a pre-research practice in which a covered entity compiles protected health information in a systematic way to either assist researchers in their reviews that are preparatory to research, or to conduct future research.

    Response: The Department does not believe such a modification is necessary. Under the Common Rule, the Office for Human Research Protections (OHRP) has interpreted the definition of “research” to include the development of a repository or database for future research purposes. In fact, OHRP has issued guidance on this issue, which can be found at the following URL: http://ohrp.osophs.dhhs.gov/humansubjects/guidance/reposit.htm. The Department interprets the definition of “research” in the Privacy Rule to be consistent with what is considered research under the Common Rule. Thus, the development of research repositories and databases for future research are considered research for the purposes of the Privacy Rule.

    Comment: A commenter suggested eliminating the minimum necessary requirement for uses and disclosures made pursuant to a waiver of authorization by an IRB or Privacy Board. The commenter argued that this proposal would lessen covered entities’ concern that they would be held responsible for an IRB or Privacy Board’s inappropriate determination and would, thus, increase the likelihood that covered entities would rely on the requesting researcher’s IRB or Privacy Board documentation that patient authorization could be waived as permitted at § 164.512(i). This commenter further argued that this proposal would discourage covered entities from imposing duplicate review by the covered entities’ own IRB or Privacy Board, thereby decreasing burden for covered entities, researchers, IRBs, and Privacy Boards.

    Response: Although the Secretary acknowledges the concern of these commenters, the Rule at § 164.514(d)(3)(iii)(D) already permits covered entities to reasonably rely on documentation from an external IRB or Privacy Board as meeting the minimum necessary requirement, provided the documentation complies with the applicable requirements of § 164.512(i). The Department understands that covered entities may elect to require duplicate IRB or Privacy Board reviews before disclosing protected health information to requesting researchers, but has determined that eliminating the minimum necessary requirement would pose inappropriate and unnecessary risk to individuals’ privacy. For example, if the covered entity has knowledge that the documentation of IRB or Privacy Board approval was fraudulent with respect to the protected health information needed for a research study, the covered entity should not be permitted to rely on the IRB or Privacy Board’s documentation as fulfilling the minimum necessary requirement. Therefore, in the revised Final Rule, the Department has retained the minimum necessary requirement for research uses and disclosures made pursuant to § 164.512(i).

     

    HHS Description from Original Rulemaking
    Uses and Disclosures For Which an Authorization or Opportunity to Agree or Object is Not Required: Uses and Disclosures for Research Purposes

     

    The NPRM would have permitted covered entities to use and disclose protected health information for research–regardless of funding source–without individual authorization, provided that the covered entity obtained documentation of the following:

    (1) a waiver, in whole or in part, of authorization for the use or disclosure of protected health information was approved by an Institutional Review Board (IRB) or a privacy board that was composed as stipulated in the proposed rule;

    (2) the date of approval of the waiver, in whole or in part, of authorization by an IRB or privacy board;

    (3) the IRB or privacy board had determined that the waiver, in whole or in part satisfied the following criteria:

    (i) the use or disclosure of protected health information involves no more than minimal risk to the subjects;

    (ii) the waiver will not adversely affect the rights and welfare of the subjects;

    (iii) the research could not practicably be conducted without the waiver;

    (iv) whenever appropriate, the subjects will be provided with additional pertinent information after participation;

    (v) the research could not practicably be conducted without access to and use of the protected health information;

    (vi) the research is of sufficient importance so as to outweigh the intrusion of the privacy of the individual whose information is subject to the disclosure;

    (vii) there is an adequate plan to protect the identifiers from improper use and disclosure; and

    (viii) there is an adequate plan to destroy the identifiers at the earliest opportunity consistent with the conduct of the research, unless there is a health or research justification for retaining the identifiers; and

    (4) the written documentation was signed by the chair of, as applicable, the IRB or the privacy board.

    The NPRM also proposed that IRBs and privacy boards be permitted to adopt procedures for “expedited review” similar to those provided in the Common Rule (Common Rule § ____.110) for records research that involved no more than minimal risk. However, this provision for expedited review was not included in the proposed regulation text.

    The board that would determine whether the research protocol met the eight specified criteria for waiving the patient authorization requirements (described above), could have been an IRB constituted as required by the Common Rule, or a privacy board, whose proposed composition is described below. The NPRM proposed no requirements for the location or sponsorship of the IRB or privacy board. Under the NPRM, the covered entity could have created such a board and could have relied on it to review research proposals for uses and disclosures of protected health information for research. A covered entity also could have relied on the necessary documentation from an outside researcher's own university IRB or privacy board. In addition, a covered entity could have engaged the services of an outside IRB or privacy board to obtain the necessary documentation.

    Absent documentation that the requirements described above had been met, the NPRM would have required individuals' authorization for the use or disclosure of protected health information for research, pursuant to the authorization requirements in proposed § 164.508. For research conducted with patient authorization, documentation of IRB or privacy board approval would not have been required.

    The final rule retains the NPRM's proposed framework for permitting uses and disclosures of protected health information for research purposes, although we are making several important changes for the final rule. These changes are discussed below:

    Documentation Requirements of IRB or Privacy Board Approval of Waiver

    The final rule retains these documentation requirements, but modifies some of them and includes two additional documentation requirements. The final rule's modifications to the NPRM's proposed documentation requirements are described first, followed by a description of the three documentation requirements added in the final rule.

    The final rule makes the following modifications to the NPRM's proposed documentation requirements for the waiver of individual authorization:

    1. IRB and privacy board membership. The NPRM stipulated that to meet the requirements of proposed § 164.510(j), the documentation would need to indicate that the IRB had been composed as required by the Common Rule (§ ___.107), and the privacy board had been composed as follows: “(A) Has members with varying backgrounds and appropriate professional competency as necessary to review the research protocol; (B) Includes at least one member who is not affiliated with the entity conducting the research, or related to a person who is affiliated with such entity; and (C) Does not have any member participating in a review of any project in which the member has a conflict of interest” (§ 164.510(j)(1)(ii)).

    The final rule modifies the first of the requirements for the composition of a privacy board to focus on the effect of the research protocol on the individual's privacy rights and related interests. Therefore, under the final rule, the required documentation must indicate that the privacy board has members with varying backgrounds and appropriate professional competency as necessary to review the effect of the research protocol on the individual's privacy rights and related interests.

    In addition, the final rule further restricts the NPRM's proposed requirement that the privacy board include at least one member who was not affiliated with the entity conducting the research, or related to a person who is affiliated with such entity. Under the final rule, the board must include at least one member who is not affiliated with the covered entity, not affiliated with any entity conducting or sponsoring the research, and not related to any person who is affiliated with such entities.

    The other documentation requirements for the composition of an IRB and privacy board remain the same.

    2. Waiver of authorization criteria. The NPRM proposed to prohibit the use or disclosure of protected health information for research without individual authorization as stipulated in proposed § 164.508 unless the covered entity had documentation indicating that an IRB or privacy board had determined that the following waiver criteria had been met:

    (i) the use or disclosure of protected health information involves no more than minimal risk to the subjects;

    (ii) the waiver will not adversely affect the rights and welfare of the subjects;

    (iii) the research could not practicably be conducted without the waiver;

    (iv) whenever appropriate, the subjects will be provided with additional pertinent information after participation;

    (v) the research could not be practicably be conducted without access to and use of the protected health information;

    (vi) the research is of sufficient importance so as to outweigh the intrusion of the privacy of the individual whose information is subject to the disclosure;

    (vii) there is an adequate plan to protect the identifiers from improper use and disclosure; and

    (viii) there is an adequate plan to destroy the identifiers at the earliest opportunity consistent with the conduct of the research, unless there is a health or research justification for retaining the identifiers.

    The final rule continues to permit the documentation of IRB or privacy board approval of a waiver of an authorization as required by § 164.508, to indicate that only some or all of the § 164.508 authorization requirements have been waived. In addition, the final rule clarifies that the documentation of IRB or privacy board approval may indicate that the authorization requirements have been altered. Also, for all of the proposed waiver of authorization criteria that used the term “subject,” we replace this term with the term “individual” in the final rule.

    In addition, the final rule (1) eliminates proposed waiver criterion iv, (2) modifies proposed waiver criteria ii, iii, vi, and viii, and (3) adds a waiver criterion.

    Proposed waiver criterion ii (waiver criterion § 164.512(i)(2)(ii)(B) in the final rule) is revised as follows to focus more narrowly on the privacy interests of individuals, and to clarify that it also pertains to alterations of individual authorization: “the alteration or waiver will not adversely affect the privacy rights and the welfare of the individuals.” Under criterion § 164.512(i)(2)(ii)(B), the question is whether the alteration or waiver of individual authorization would adversely affect the privacy rights and the welfare of individuals, not whether the research project itself would adversely affect the privacy rights or the welfare of individuals.

    Proposed waiver criterion iii (waiver criterion § 164.512(i)(2)(ii)(C) in the final rule) is revised as follows to clarify that it also pertains to alterations of individual authorization: “the research could not practicably be conducted without the alteration or waiver.”

    Proposed waiver criterion vi (waiver criterion § 164.512(i)(2)(ii)(E) in the final rule) is revised as follows to be more consistent with one of the Common Rule's requirements for the approval of human subjects research (Common Rule, § ___.111(a)(2)): “the privacy risks to individuals whose protected health information is to be used or disclosed are reasonable in relation to anticipated benefits if any to individuals, and the importance of the knowledge that may reasonably be expected to result from the research.” Under criterion § 164.512(i)(2)(ii)(E), the question is whether the risks to an individual's privacy from participating in the research are reasonable in relation to the anticipated benefits from the research. This criterion is unlike waiver criterion § 164.512(i)(2)(ii)(B) in that it focuses on the privacy risks and benefits of the research project more broadly, not on the waiver of individual authorization.

    Proposed waiver criterion viii (waiver criterion § 164.512(i)(2)(ii)(G) in the final rule) is revised as follows: “there is an adequate plan to destroy the identifiers at the earliest opportunity consistent with the conduct of the research, unless there is a health or research justification for retaining the identifiers, or such retention is otherwise required by law.”

    In addition, the final rule includes another waiver criterion: waiver criterion § 164.512(i)(2)(ii)(H). The NPRM proposed no restriction on a researchers' further use or disclosure of protected health information that had been received under proposed § 164.510(j). The final rule requires that the covered entity obtain written agreement from the person or entity receiving protected health information under § 164.512(i) not to re-use or disclose protected health information to any other person or entity, except: (1) as required by law, (2) for authorized oversight of the research project, or (3) for other research for which the use or disclosure of protected health information would be permitted by this subpart. For instance, in assessing whether this criterion has been met, we encourage IRBs and privacy boards to obtain adequate assurances that the protected health information will not be disclosed to an individual's employer for employment decisions without the individual's authorization.

    3. Required signature. The rule broadens the types of individuals who are permitted to sign the required documentation of IRB or privacy board approval. The final rule requires the documentation of the alteration or waiver of authorization to be signed by (1) the chair of, as applicable, the IRB or the privacy board, or (2) a member of the IRB or privacy board, as applicable, who is designated by the chair to sign the documentation.

    Furthermore, the final rule makes the following three additions to the proposed documentation requirements for the alteration or waiver of authorization:

    1. Identification of the IRB or privacy board. The NPRM did not propose that the documentation of waiver include a statement identifying the IRB or privacy board that approved the waiver of authorization. In the final rule we require that such a statement be included in the documentation of alteration or waiver of individual authorization. By this requirement we mean that the name of the IRB or privacy board must be included in such documentation, not the names of individual members of the board.

    2. Description of protected health information approved for use or disclosure. The NPRM did not propose that the documentation of waiver include a description of the protected health information that the IRB or privacy board had approved for use or disclosure without individual authorization. In considering waiver of authorization criterion § 164.512(i)(2)(ii)(D), we expect the IRB or privacy board to consider the amount of information that is minimally needed for the study. The final rule requires that the documentation of IRB or privacy board approval of the alteration or waiver of authorization describe the protected health information for which use or access has been determined to be necessary for the research by the IRB or privacy board. For example, if the IRB or privacy board approves only the use or disclosure of certain information from patients' medical records, and not patients' entire medical record, this must be stated on the document certifying IRB or privacy board approval.

    3. Review and approval procedures. The NPRM would not have required documentation of IRBs' or privacy boards' review and approval procedures. In the final rule, the documentation of the alteration or waiver of authorization must state that the alteration or waiver has been reviewed and approved by: (1) an IRB that has followed the voting requirements stipulated in the Common Rule (§ ___.108(b)), or the expedited review procedures as stipulated in § ___.110(b); or (2) a privacy board that has reviewed the proposed research at convened meetings at which a majority of the privacy board members are present, including at least one member who is not affiliated with the covered entity, not affiliated with any entity conducting or sponsoring the research, and not related to any person who is affiliated with any such entities, and the alteration or waiver of authorization is approved by the majority of privacy board members present at the meeting, unless an expedited review procedure is used.

    For documentation of IRB approval that used an expedited review procedure, the covered entity must ensure that the documentation indicates that the IRB followed the expedited review requirements of the Common Rule (§ ___.110). For documentation of privacy board approval that used an expedited review procedure, the covered entity must ensure that the documentation indicates that the privacy board met the expedited review requirements of the privacy rule. In the final rule, a privacy board may use an expedited review procedure if the research involves no more than minimal risk to the privacy of the individuals who are the subject of the protected health information for which disclosure is being sought. If a privacy board elects to use an expedited review procedure, the review and approval of the alteration or waiver of authorization may be carried out by the chair of the privacy board, or by one or more members of the privacy board as designated by the chair. Use of the expedited review mechanism permits review by a single member of the IRB or privacy board, but continues to require that the covered entity obtain documentation that all of the specified waiver criteria have been met.

    Reviews Preparatory to Research

    Under the NPRM, if a covered entity used or disclosed protected health information for research, but the researcher did not record the protected health information in a manner that persons could be identified, such an activity would have constituted a research use or disclosure that would have been subject to either the individual authorization requirements of proposed § 164.508 or the documentation of the waiver of authorization requirements of proposed § 164.510(j).

    The final rule permits the use and disclosure of protected health information for research without requiring authorization or documentation of the alteration or waiver of authorization, if the research is conducted in such a manner that only de-identified protected health information is recorded by the researchers and the protected health information is not removed from the premises of the covered entity. For such uses and disclosures of protected health information, the final rule requires that the covered entity obtain from the researcher representations that use or disclosure is sought solely to review protected health information as necessary to prepare a research protocol or for similar purposes preparatory to research, no protected health information is to be removed from the covered entity by the researcher in the course of the review, and the protected health information for which use or access is sought is necessary for the research purposes. The intent of this provision is to permit covered entities to use and disclose protected health information to assist in the development of a research hypothesis and aid in the recruitment of research participants. We understand that researchers sometimes require access to protected health information to develop a research protocol, and to determine whether a specific covered entity has protected health information of prospective research participants that would meet the eligibility criteria for enrollment into a research study. Therefore, this provision permits covered entities to use and disclose protected health information for these preliminary research activities without individual authorization and without documentation that an IRB or privacy board has altered or waived individual authorization.

    Research on Protected Health Information of the Deceased

    The NPRM would have permitted the use and disclosure of protected health information of deceased persons for research without the authorization of a legal representative, and without the requirement for written documentation of IRB or privacy board approval in proposed § 164.510(j). In the final rule, we retain the exception for uses and disclosures for research purposes but in addition require that the covered entity take certain protective measures prior to release of the decedent's protected health information for such purposes. Specifically, the final rule requires that the covered entity obtain representation that the use or disclosure is sought solely for research on the protected health information of decedent, and representation that the protected health information for which use or disclosure is sought is necessary for the research purposes. In addition, the final rule allows covered entities to request from the researcher documentation of the death of the individuals about whom protected health information is being sought.

    Good Faith Reliance

    The final rule clarifies that covered entities are allowed to rely on the IRB's or privacy board's representation that the research proposal meets the documentation requirements of § 164.512(i)(1)(i) and the minimum necessary requirements of § 164.514.

    In addition, when using or disclosing protected health information for reviews preparatory to research (§ 164.512(i)(1)(ii)) or for research solely on the protected health information of decedents (§ 164.512)(1)(iii)), the final rule clarifies that the covered entity may rely on the requesting researcher's representation that the purpose of the request is for one of these two purpose, and that the request meets the minimum necessary requirements of § 164.514. Therefore, the covered entity has not violated the rule if the requesting researcher misrepresents his or her intended use of the protected health information to the covered entity.

    Additional Research Provisions

    Research Including Treatment

    To the extent that a researcher provided treatment to persons as part of a research study, the NPRM would have covered such researchers as health care providers for purposes of that treatment, and required that the researcher comply with all of the provisions of the rule that would be applicable to health care providers. The final rule retains this requirement.

    Individual Access to Research Information

    Under proposed § 164.514, the NPRM would have applied the proposed provision regarding individuals' access to records to research that includes the delivery of treatment. The NPRM proposed an exception to individuals' right to access protected health information for clinical trials, where (1) protected health information was obtained by a covered entity in the course of clinical trial, (2) the individual agreed to the denial of access when consenting to participate in the trial (if the individual's consent to participate was obtained), and (3) the trial was still in progress.

    Section 164.524 of the final rule retains this exception to access for research that includes treatment. In addition, the final rule requires that participants in such research be informed that their right of access to protected health information about them will be reinstated once the research is complete.

    Obtaining the Individual's Authorization for Research

    The NPRM would have required covered entities obtaining individuals' authorization for the use or disclosure of information for research to comply with the requirements applicable to individual authorization for the release of protected health information (proposed § 164.508(a)(2)). If an individual had initiated the use or disclosure of his/her protected health information for research, or any other purpose, the covered entity would have been required to obtain a completed authorization for the use or disclosure of protected health information as proposed in § 164.508(c).

    The final rule retains these requirements for research conducted with authorization, as required by § 164.508. In addition, for the use and disclosure of protected health information created by a covered entity for the purpose, in whole or in part, of research that includes treatment of the individual, the covered entity must meet the requirements of § 164.508(f).

    Interaction with the Common Rule

    The NPRM stated that the proposed rule would not override the Common Rule. Where both the NPRM and the Common Rule would have applied to research conducted by the covered entity–either with or without individuals' authorization–both sets of regulations would have needed to be followed. This statement remains true in the final rule. In addition, we clarify that FDA's human subjects regulations must also be followed if applicable.

     

    HHS Response to Comments Received from Original Rulemaking
    Uses and Disclosures for Research Purposes

     

    Documentation Requirements of IRB or Privacy Board Approval of Waiver

    Comment: A number of commenters argued that the proposed research requirements of § 164.510(j) exceeded the Secretary's authority under section 246(c) of HIPAA. In particular, several commenters argued that the Department was proposing to extend the Common Rule and the use of the IRB or privacy boards beyond federally-funded research projects, without the necessary authority under HIPAA to do so. One commenter stated that, “Section 246(c) of HIPAA requires the Secretary to issue a regulation setting privacy standards for individually identifiable health information transmitted in connection with the transactions described in section 1173(a),” and thus concluded that the disclosure of health information to researchers is not covered. Some of these commenters also argued that the documentation requirements of proposed § 164.510(j), did not shield the NPRM from having the effect of regulating research by placing the onus on covered health care providers to seek documentation that certain standards had been satisfied before providing protected health information to researchers. These commenters argued that the proposed rule had the clear and intended effect of directly regulating researchers who wish to obtain protected health information from a covered entity.

    Response: As discussed above, we do not agree with commenters that the Secretary's authority is limited to individually identifiable health information transmitted in connection with the transactions described in section 1173(a) of HIPAA. We also disagree that the proposed research documentation requirements would have constituted the unauthorized regulation of researchers. The proposed requirements established conditions for the use of protected health information by covered entities for research and the disclosure of protected health information by covered entities to researchers. HIPAA authorizes the Secretary to regulate such uses and disclosures, and the final rule retains documentation requirements similar to those proposed.

    Comment: Several commenters believed that the NPRM was proposing either directly or indirectly to modify the Common Rule and, therefore, stated that such modification was beyond the Secretary's authority under HIPAA. Many of these commenters arrived at this conclusion because the waiver of authorization criteria proposed in § 164.510(j) differed from the Common Rule's criteria for the waiver of informed consent (Common Rule, § ___.116(d)).

    Response: We do not agree that the proposed provision relating to research would have modified the Common Rule. The provisions that we proposed and provisions that we include in the final rule place conditions that must be met before a covered entity may use or disclose protected health information. Those conditions are in addition to any conditions required of research entities under the Common Rule. Covered entities will certainly be subject to laws and regulations in addition to the rule, but the rule does not require compliance with these other laws or regulations. For covered health care providers and health plans that are subject to both the final rule and the Common Rule, both sets of regulations will need to be followed.

    Comment: A few commenters suggested that the Common Rule should be extended to all research, regardless of funding source.

    Response: We generally agree with the commenters on the need to provide protections to all human subjects research, regardless of funding source. HIPAA, however, did not provide the Department with authority to extend the Common Rule beyond its current purview. For research that relies on the use or disclosure of protected health information by covered entities without authorization, the final rule applies the Common Rule's principles for protecting research subjects by, in most instances, requiring documentation of independent board review, and a finding that specified criteria designed to protect the privacy of prospective research subjects have been met.

    Comment: A large number of commenters agreed that the research use and disclosure of protected health information should not require authorization. Of these commenters, many supported the proposed rule's approach to research uses and disclosures without authorization, including many from health care provider organizations, the mental health community, and members of Congress. Others, while they agreed that the research use and disclosure should not require authorization disagreed with the NPRM's approach and proposed alternative models.

    The commenters who supported the NPRM's approach to permitting researchers access to protected health information without authorization argued that it was appropriate to apply “Common Rule-like” provisions to privately funded research. In addition, several commenters explicitly argued that the option to use a privacy board, in lieu of an IRB, must be maintained because requiring IRB review to include all aspects of patient privacy could diffuse focus and significantly compromise an IRB's ability to execute its primary patient protection role. Furthermore, several commenters believed that privacy board review should be permitted, but wanted equal oversight and accountability for privacy boards and IRBs.

    Many other commenters agreed that the research use and disclosure should not require authorization, but disagreed with the proposed rule's approach and proposed alternative models. Several of these commenters argued that the final rule should eliminate the option for privacy board review and that all research to be subject to IRB review. These commenters stated that having separate and unequal systems to approve research based on its funding source would complicate compliance and go against the spirit of the regulations. Several of these commenters, many from patient and provider organizations, opposed the permitted use of privacy boards to review research studies and instead argued that IRB review should be required for all studies involving the use or disclosure of protected health information. These commenters argued that although privacy board requirements would be similar, they are not equitable; for example, only three of the Common Rule's six requirements for the membership of IRBs were proposed to be required for the membership on privacy boards, and there was no proposed requirement for annual review of ongoing research studies that used protected health information. Several commenters were concerned that the proposed option to obtain documentation of privacy board review, in lieu of IRB review, would perpetuate the divide in the oversight of federally-funded versus publicly-funded research, rather than eliminate the differential oversight of publicly- and privately-funded research, with the former still being held to a stricter standard. Some of these commenters argued that these unequal protections would be especially apparent for the disclosure of research with authorization, since under the Common Rule, IRB review of human subjects studies is required, regardless of the subject's consent, before the study may be conducted.

    Response: Although we share the concern raised by commenters that the option for the documentation of privacy board approval for an alteration or waiver of authorization may perpetuate the unequal mechanisms of protecting the privacy of human research subjects for federally-funded versus publicly-funded research, the final rule is limited by HIPAA to addressing only the use and disclosure of protected health information by covered entities, not the protection of human research subjects more generally. Therefore, the rule cannot standardize human subjects protections throughout the country. Given the limited scope of the final rule with regard to research, the Department believes that the option to obtain documentation of privacy board approval for an alteration or waiver of authorization in lieu of IRB approval provides covered entities with needed flexibility. Therefore, in the final rule we have retained the option for covered entities to rely on documentation of privacy board approval that specified criteria have been met.

    We disagree with the rationale suggested by commenters who argued that the option for privacy board review must be maintained because requiring IRB review to include all aspects of patient privacy could diffuse focus and significantly compromise an IRB's ability to execute its primary patient protection role. For research that involves the use of individually identifiable health information, assessing the risk to the privacy of research subjects is currently one of the key risks that must be assessed and addressed by IRBs. In fact, we expect that it will be appropriate for many research organizations that have existing IRBs to rely on these IRBs to meet the documentation requirements of § 164.512(i).

    Comment: One health care provider organization recommended that the IRB or privacy board mechanism of review should be applied to non-research uses and disclosures.

    Response: We disagree. Imposing documentation of privacy board approval for other public policy uses and disclosures permitted by § 164.512 would result in undue delays in the use or disclosure of protected health information that could harm individuals and the public. For example, requiring that covered health care providers obtain third-party review before permitting them to alert a public health authority that an individual was infected with a serious communicable disease could cause delay appropriate intervention by a public health authority and could present a serious threat to the health of many individuals.

    Comment: A number of commenters, including several members of Congress, argued that since the research provisions in proposed § 164.510(j) were modeled on the existing system of human subjects protections, they were inadequate and would shatter public trust if implemented. Similarly, some commenters, asserted that IRBs are not accustomed to reviewing and approving utilization reviews, outcomes research, or disease management programs and, therefore, IRB review may not be an effective tool for protecting patient privacy in connection with these activities. Some of these commenters noted that proposed § 164.510(j) would exacerbate the problems inherent in the current federal human subjects protection system especially in light of the recent GAO reports that indicate the IRB system is already over-extended. Furthermore, a few commenters argued that the Common Rule's requirements may be suited for interventional research involving human subjects, but is ill suited to the archival and health services research typically performed using medical records without authorization. Therefore, these commenters concluded that extending “Common Rule-like” provisions to the private sector would be inadequate to protect human subjects and would result in significant and unnecessary cost increases.

    Response: While the vast majority of government-supported and regulated research adheres to strict protocols and the highest ethical standards, we agree that the federal system of human subjects protections can and must be strengthened. To work toward this goal, on May 23, the Secretary announced several additional initiatives to enhance the safety of subjects in clinical trials, strengthen government oversight of medical research, and reinforce clinical researchers' responsibility to follow federal guidelines. As part of this initiative, the National Institutes of Health have undertaken an aggressive effort to ensure IRB members and IRB staff receive appropriate training in bioethics and other issues related to research involving human subjects, including research that involves the use of individually identifiable health information. With these added improvements, we believe that the federal system of human subjects protections continues to be a good model to protect the privacy of individually identifiable health information that is used for research purposes. This model of privacy protection is also consistent with the recent recommendations of both the Institute of Medicine in their report entitled, “Protecting Data Privacy in Health Services Research,” and the Joint Commission on Accreditation of Healthcare Organizations and the National Committee for Quality Assurance in their report entitled, “Protecting Personal Health Information: A Framework for Meeting the Challenges in a Managed Care Environment.” Both of these reports similarly concluded that health services research that involves the use of individually identifiable health information should undergo IRB review or review by another board with sufficient expertise in privacy and confidentiality protection.

    Furthermore, it is important to recognize that the Common Rule applies not only to interventional research, but also to research that uses individually identifiable health information, including archival research and health services research. The National Bioethics Advisory Commission (NBAC) is currently developing a report on the federal oversight of human subjects research, which is expected to address the unique issues raised by non-interventional human subjects research. The Department looks forward to receiving NBAC's report, and carefully considering the Commission's recommendations. This final rule is the first step in enhancing patients' privacy and we will propose modifications to the rule if changes are warranted by the Commission's findings and recommendations.

    Comment: Many commenters argued that the proposed research provision would have a chilling affect on the willingness of health plans and covered providers to participate in research because of the criminal and civil penalties that could be imposed for failing to meet the requirements that would have been required by proposed § 164.510(j). Some of these commenters cautioned, that over time, research could be severely hindered if covered entities choose not to disclose protected health information to researchers. In addition, one commenter recommended that a more reasonable approach would be to require IRB or privacy board approval only if the results of the research were to be broadly published. Another commenter expressed concern that the privacy rule could influence IRBs or privacy boards to refuse to recognize the validity of decisions by other IRBs or privacy boards and specifically recommended that the privacy rule include a preamble statement that: (1) the “risk” balancing consider only the risk to the patient, not the risk to the institution, and (2) add a phrase that the decision by the initial IRB or privacy board to approve the research shall be given deference by other IRBs or privacy boards. This commenter also recommended that to determine whether IRBs or privacy boards were giving such deference to prior IRB or privacy board review, HHS should monitor the disapproval rate by IRB or privacy boards conducting secondary reviews.

    Response: As the largest federal sponsor of medical research, we understand the important role of research in improving our Nation's health. However, the benefits of research must be balanced against the risks, including the privacy risks, for those who participate in research. An individual's rights and welfare must never be sacrificed for scientific or medical progress. We believe that the requirements for the use and disclosure of protected health information for research without authorization provides an appropriate balance. We understand that some covered health care providers and health plans may conclude that the rule's documentation requirements for research uses and disclosures are too burdensome.

    We rejected the recommendation that documentation of IRB or privacy board approval of the waiver of authorization should only be required if the research were to be “broadly published.” Research findings that are published in de-identified form have little influence on the privacy interests of individuals. We believe that it is the use or disclosure of individually identifiable health information to a researcher that poses the greater risk to individuals' privacy, not publication of de-identified information.

    We agree with the commenters that IRB or privacy board review should address the privacy interests of individuals and not institutions. This provision is intended to protect individuals from unnecessary uses and disclosures of their health information and does not address institutional privacy.

    We disagree with the comment that documentation of IRB or privacy board approval of the waiver of authorization should be given deference by other IRBs or privacy boards conducting secondary reviews. We do not believe that it is appropriate to restrict the deliberations or judgments of privacy boards, nor do we have the authority under this rule to instruct IRBs on this issue. Instead, we reiterate that all disclosures for research purposes under § 164.512(i) are voluntary, and that institutions may choose to impose more stringent requirements for any use and disclosure permitted under § 164.512.

    Comment: Some commenters were concerned about the implications of proposed § 164.510(j) on multi-center research. These commenters argued that for multi-center research, researchers may require protected health information from multiple covered entities, each of whom may have different requirements for the documentation of IRB or privacy board review. Therefore, there was concern that documentation that may suffice for one covered entity, may not for another, thereby hindering multi-center research.

    Response: Since § 164.512(i) establishes minimum documentation standards for covered health care providers and health plans using or disclosing protected health information for research purposes, we understand that some covered providers and health plans may choose to require additional documentation requirements for researchers. We note, however, that nothing in the final rule would preclude a covered health care provider or health plan from developing the consistent documentation requirements provided they meet the requirements of § 164.512(i).

    Comment: One commenter who was also concerned that the minimum necessary requirements of proposed § 164.506(b) would negatively affect multi-center research because covered entities participating in multi-site research studies would no longer be permitted to rely upon the consent form approved by a central IRB, and nor would participating entities be permitted to report data to the researcher using the case report form approved by the central IRB to guide what data points to include. This commenter noted that the requirement that each site would need to undertake a separate minimum necessary review for each disclosure would erect significant barriers to the conduct of research and may compromise the integrity and validity of data combined from multiple sites. This commenter recommended that the Secretary absolve a covered entity of the responsibility to make its own individual minimum necessary determinations if the entity is disclosing information pursuant to an IRB or privacy board-approved protocol.

    Response: The minimum necessary requirements in the final rule have been revised to permit covered entities to rely on the documentation of IRB or privacy board approval as meeting the minimum necessary requirements of § 164.514. However, we anticipate that much multi-site research, such as multi-site clinical trials, will be conducted with patients' informed consent as required by the Common Rule and FDA's protection of human subjects regulations, and that patients' authorization will also be sought for the use or disclosure of protected health information for such studies. Therefore, it should be noted that the minimum necessary requirements do not apply for uses or disclosures made with an authorization. In addition, the final rule allows a covered health care provider or health plan to use or disclose protected health information pursuant to an authorization that was approved by a single IRB or privacy board, provided the authorization met the requirements of § 164.508. The final rule does not, however, require IRB or privacy board review for the use or disclosure of protected health information for research conducted with individuals' authorization.

    Comment: Some commenters believed that proposed § 164.510(j) would have required documentation of both IRB and privacy board review before a covered entity would be permitted to disclose protected health information for research purposes without an individual's authorization.

    Response: This is incorrect. Section 164.512(i)(1)(i) of the final rule requires documentation of alteration or waiver approval by either an IRB or a privacy board.

    Comment: Some commenters believed that the proposed rule would have required that patients be notified whenever protected health information about themselves was disclosed for research purposes.

    Response: This is incorrect. Covered entities are not required to inform individuals that protected health information about themselves has been disclosed for research purposes. However, as required in § 164.520 of the final rule, the covered entity must include research disclosures in their notice of information practices. In addition, as required by § 164.528 of the rule, covered health care providers and health plans must provide individuals, upon request, with an accounting of disclosures made of protected health information about the individual.

    Comment: One commenter recommended that IRB and privacy boards also be required to be accredited.

    Response: While we agree that the issue of accrediting IRBs and privacy boards deserves further consideration, we believe it is premature to require covered entities to ensure that the IRB or privacy board that approves an alteration or waiver of authorization is accredited. Currently, there are no accepted accreditation standards for IRBs or privacy boards, nor a designated accreditation body. Recognizing the need for and value of greater uniformity and public accountability in the review and approval process, HHS, with support from the Office of Human Research Protection, National Institutes of Health, Food and Drug Administration, Centers for Disease Control and Prevention, and Agency for Health Care Research and Quality, has engaged the Institute of Medicine to recommend uniform performance resource-based standards for private, voluntary accreditation of IRBs. This effort will draw upon work already undertaken by major national organizations to develop and test these standards by the spring of 2001, followed by initiation of a formal accreditation process before the end of next year. Once the Department has received the Institute of Medicine's recommended accreditation standards and process for IRBs, we plan to consider whether this accreditation model would also be applicable to privacy boards.

    Comment: A few commenters also noted that if both an IRB and a privacy board reviewed a research study and came to conflicting decisions, proposed § 164.510(j) was unclear about which board's decision would prevail.

    Response: The final rule does not stipulate which board's decision would prevail if an IRB and a privacy board came to conflicting decisions. The final rule requires covered entities to obtain documentation that one IRB or privacy board has approved of the alteration or waiver of authorization. The covered entity, however, has discretion to request information about the findings of all IRBs and/or privacy boards that have reviewed a research proposal. We strongly encourage researchers to notify IRBs and privacy boards of any prior IRB or privacy board review of a research protocol.

    Comment: Many commenters noted that the NPRM included no guidance on how the privacy board should approve or deny researchers' requests. Some of these commenters recommended that the regulation stipulate that privacy boards be required to follow the same voting rules as required under the Common Rule.

    Response: We agree that the Common Rule (§ ___.108(b)) provides a good model of voting procedures for privacy boards and incorporate such procedures to the extent they are relevant. In the final rule, we require that the documentation of alteration or waiver of authorization state that the alteration or waiver has been reviewed and approved by either (1) an IRB that has followed the voting requirements of the Common Rule (§ ___.108(b)), or the expedited review procedures of the Common Rule (§ ___.110); or (2) unless an expedited review procedure is used, a privacy board that has reviewed the proposed research at a convened meeting at which a majority of the privacy board members are present, including at least one member who is not affiliated with the covered entity, not affiliated with any entity conducting or sponsoring the research, and not related to any person who is affiliated with any such entities, and the alteration or waiver of authorization is approved by the majority of privacy board members present at the meeting.

    Comment: A few commenters were concerned that the research provisions would be especially onerous for small non-governmental entities, furthering the federal monopoly on research.

    Response: We understand that the documentation requirements of § 164.512(i), as well as other provisions in the final rule, may be more onerous for small entities than for larger entities. We believe, however, that when protected health information is to be used or disclosed for research without an individual's authorization, the additional privacy protections in § 164.512(i) are essential to reduce the risk of harm to the individual.

    Comment: One commenter believed that it was paradoxical that, under the proposed rule, the disclosure of protected health information for research conducted with an authorization would have been more heavily burdened than research that was conducted without authorization, which they reasoned was far less likely to bring personal benefit to the research subjects.

    Response: It was not our intent to impose more requirements on covered entities using or disclosing protected health information for research conducted with authorization than for research conducted without authorization. In fact, the proposed rule would have required only authorization as stipulated in proposed § 164.508 for research disclosures made with authorization, and would have been exempt from the documentation requirements in proposed § 164.510(j). We retain this treatment in the final rule. We disagree with the commenter who asserted that the requirements for research conducted with authorization are more burdensome for covered health care providers and plans than the documentation provisions of this paragraph.

    Comment: A number of comments, mostly from the pharmaceutical industry, recommended that the final rule state that privacy boards be permitted to waive authorization only with respect to research uses of medical information collected in the course of treatment or health care operations, and not with respect to clinical research. Similarly, one commenter recommended that IRBs and privacy boards be authorized to review privacy issues only, not the entire research project. These commenters were concerned that by granting waiver authority to privacy boards and IRBs, and by incorporating the Common Rule waiver criteria into the waiver criteria included in the proposed rule, the Secretary has set the stage for privacy boards to review and approve waivers in circumstances that involve interventional research that is not subject to the Common Rule.

    Response: We agree with the commenters who recommended that the final rule clarify that the documentation of IRB or privacy board approval of the waiver of authorization would be based only on an assessment of the privacy risks associated with a research study, not an assessment of all relevant risks to participants. In the final rule, we have amended the language in the waiver criteria to make clear that these criteria relate only to the privacy interests of the individual. We anticipate, however, that the vast majority of uses and disclosures of protected health information for interventional research will be made with individuals' authorization. Therefore, we expect it will be rare that a researcher will seek IRB or privacy board approval for the alteration or waiver of authorization, but seek informed consent for participation for the interventional component of the research study. Furthermore, we believe that interventional research, such as most clinical trials, could not meet the waiver criteria in the final rule (§ 164.512(i)(2)(ii)(C)), which states “the research could not practicably be conducted without the alteration or waiver.” If a researcher is to have direct contact with research subjects, the researcher should in virtually all cases be able to seek and obtain patients' authorization for the use and disclosure of protected health information about themselves for the research study.

    Comment: A few commenters recommended that the rule explicitly state that covered entities would be permitted to rely upon an IRB or privacy boards' representation that the research proposal meets the requirements of proposed § 164.510(j).

    Response: We agree with this comment. The final rule clarifies that covered health care providers and health plans are allowed to rely on an IRB's or privacy board's representation that the research proposal meets the requirements of § 164.512(i).

    Comment: One commenter recommended that IRBs be required to maintain web sites with information on proposed and approved projects.

    Response: We agree that it could be useful for IRBs and privacy boards to maintain web sites with information on proposed and approved projects. However, requiring this of IRBs and privacy boards is beyond the scope of our authority under HIPAA. In addition, this recommendation raises concerns that would need to be addressed, including concerns about protecting the confidentiality of research participants and propriety information that may be contained in research proposals. For these reasons, we decided not to incorporate this requirement into the final rule.

    Comment: One commenter recommended that HHS collect data on research-related breaches of confidentiality and investigate existing anecdotal reports of such breaches.

    Response: This recommendation is beyond HHS' legal authority, since HIPAA did not give us the authority to regulate researchers. Therefore, this recommendation was not included in the final rule.

    Comment: A number of commenters were concerned that HIPAA did not give the Secretary the authority to protect information once it was disclosed to researchers who were not covered entities.

    Response: The Secretary shares these commenters' concerns about the Department's limited authority under HIPAA. We strongly support the enactment of additional federal legislation to fill these crucial gaps in the Secretary's authority.

    Comment: One commenter recommended that covered entities should be required to retain the IRB's or privacy board's documentation of approval of the waiver of individuals' authorization for at least six years from when the waiver was obtained.

    Response: We agree with this comment and have included such a requirement in the final rule. See § 164.530(j).

    Comment: One commenter recommended that whenever health information is used for research or administrative purposes, a plan is in place to evaluate whether to and how to feed patient-specific information back into the health system to benefit an individual or group of patients from whom the health information was derived.

    Response: While we agree that this recommendation is consistent with the responsible conduct of research, HIPAA did not give us the authority to regulate research. Therefore, this recommendation was not included in the final rule.

    Comment: A few commenters recommended that contracts between covered entities and researcher be pursued. Comments received in favor of requiring contractual agreements argued that such a contract would be enforceable under law, and should prohibit secondary disclosures by researchers. Some of these commenters recommended that contracts between covered entities and researchers should be the same as, or modeled on, the proposed requirements for business partners. In addition, some commenters argued that contracts between covered entities and researchers should be required as a means of placing equal responsibility on the researcher for protecting protected health information and for not improperly re-identifying information.

    Response: In the final rule, we have added an additional waiver criteria to require that there are adequate written assurances from the researcher that protected health information will not be re-used or disclosed to any other person or entity, except as required by law, for authorized oversight of the research project, or for other research for which the use or disclosure of protected health information would be permitted by this subpart. We believe that this additional waiver criteria provides additional assurance that protected health information will not be misused by researchers, while not imposing the additional burdens of a contractual requirement on covered health care providers and health plans. We were not persuaded by the comments received that contractual requirements would provide necessary additional protections, that would not also be provided by the less burdensome waiver criteria for adequate written assurance that the researcher will not re-use or disclose protected health information, with few exceptions. Our intent was to strengthen and extend existing privacy safeguards for protected health information that is used or disclosed for research, while not creating unnecessary disincentives to covered health care providers and health plans who choose to use or disclose protected health information for research purposes.

    Comment: Some commenters explicitly opposed requiring contracts between covered entities and researchers as a condition of permitting the use or disclosure of protected health information for research purposes. This commenters argued that such a contractual requirement would be too onerous for covered entities and researchers and would hinder or halt important research.

    Response: We agree with the arguments raised by these commenters, and thus, the final rule does not require contracts between covered entities and researchers as a condition of using or disclosing protected health information for research purposes without authorization.

    Comment: A large number of commenters strongly supported requiring patient consent before protected health information could be used or disclosed, including but not limited to use and disclosure for research purposes. These commenters argued that the unconsented-to use of their medical records abridged their autonomy right to decide whether or not to participate in research. A few referenced the Nuremberg Code in support of their view, noting that the Nuremberg Code required individual consent for participation in research.

    Response: We agree that it is of foremost importance that individuals' privacy rights and welfare be safeguarded when protected health information about themselves is used or disclosed for research studies. We also strongly believe that continued improvements in the nation's health requires that researchers be permitted access to protected health information without authorization in certain circumstances. Additional privacy protections are needed, however, and we have included several in the final rule. If covered entities plan to disclose protected health without individuals' authorization for research purposes, individuals must be informed of this through the covered entity's notice to patients of their information practices. In addition, before covered health care providers or health plans may use or disclose protected health information for research without authorization, they must obtain documentation that an IRB or privacy board has found that specified waiver criteria have been met, unless the research will include protected health information about deceased individuals only, or is solely for reviews that are preparatory to research.

    While it is true that the first provision of the Nuremberg Code states that “the voluntary consent of the human subject is absolutely essential,” it is important to understand the context of this important document in the history of protecting human subjects research from harm. The Nuremberg Code was developed for the Nuremberg Military Tribunal as standards by which to judge the human experimentation conducted by the Nazis, and was one of the first documents setting forth principles for the ethical conduct of human subjects research. The acts of atrocious cruelty that the Nuremberg Code was developed to address, focused on preventing the violations to human rights and dignity that occurred in the name of “medical advancement.” The Code, however, did not directly address the ethical conduct of non-interventional research, such as medical records research, where the risk of harm to participants can be unlike those associated with clinical research.

    We believe that the our proposed requirements for the use or disclosure of protected health information for research are consistent with the ethical principles of “respect for persons,” “beneficence,” and “justice,” which were established by the Belmont Report in 1978, and are now accepted as the quintessential requirements for the ethical conduct of research involving human subjects, including research using individually identifiable health information. These ethical principles formed the foundation for the requirements in the Common Rule, on which our proposed requirements for research uses and disclosures were modeled.

    Comment: Many commenters recommended that the privacy rule permit individuals to opt out of having their records used for the identified “important” public policy purposes in § 164.510, including for research purposes. These commenters asserted that permitting the use and disclosure of their protected health information without their consent, or without an opportunity to “opt out” of having their information used or disclosed, abridged individuals' right to decide who should be permitted access to their medical records. In addition, one commenter argued that although the research community has been sharply critical of a Minnesota law that limits access to health records (Minnesota Statute Section 144.335 (1998)), researchers have cited a lack of response to mailed consent forms as the primary factor behind a decrease in the percentage of medical records available for research. This commenter argued that an opt-out provision would not be subject to this “nonresponder” problem.

    Response: We believe that a meaningful right to “opt out” of a research study requires that individuals be contacted and informed about the study for which protected health information about themselves is being requested by a researcher. We concluded, therefore, that an “opt out” provision of this nature may suffer from the same decliner bias that has been experienced by researchers who are subject to laws that require patient consent for medical records research. Furthermore, evidence on the effect of a mandatory “opt out” provision for medical records research is only fragmentary at this time, but at least one study has preliminarily suggested that those who refuse to consent for research access to their medical records may differ in statistically significant ways from those who consent with respect to variables such as age and disease category (SJ Jacobsen et al. “Potential Effect of Authorization Bias on Medical Records Research.” Mayo Clin Proc 74: (1999) 330-338). For these reasons, we disagree with the commenters who recommended that an “opt out” provision be included in the final rule. In the final rule, we do require covered entities to include research disclosures in their notice of information practices. Therefore, individuals who do not wish for protected health information about themselves to be disclosed for research purposes without their authorization could select a health care provider or health plan on this basis. In addition, the final rule also permits covered health care providers or health plans to agree not to disclose protected health information for research purposes, even if research disclosures would otherwise be permitted under their notice of information practices. Such an agreement between a covered health care provider or health plan and an individual would not be enforceable under the final rule, but might be enforceable under applicable state law.

    Comment: Some commenters explicitly recommended that there should be no provision permitting individuals to opt out of having their information used for research purposes.

    Response: We agree with these commenters for the reasons discussed above.

    IRB and Privacy Board Review

    Comments: The NPRM imposed no requirements for the location or sponsorship of the IRB or privacy board. One commenter supported the proposed approach to permit covered entities to rely on documentation of a waiver by a IRB or privacy board that was convened by the covered entity, the researcher, or another entity.

    In contrast, a few commenters recommended that the NPRM require that the IRB or privacy board be outside of the entity conducting the research, although the rationale for these recommendations was not provided. Several industry and consumer groups alternatively recommended that the regulation require that privacy boards be based at the covered entity. These comments argued that “if the privacy board is to be based at the entity receiving data, and that entity is not a covered entity, there will be little ability to enforce the regulation or study the effectiveness of the standards.”

    Response: We agree with the comment supporting the proposed rule's provision to impose no requirements for the location or sponsorship of the IRB or privacy board that was convened to review a research proposal for the alteration or waiver of authorization criteria. In the absence of a rationale, we were not persuaded by the comments asserting that the IRB or privacy board should be convened outside of the covered entity. In addition, while we agree with the comments that asserted HHS would have a greater ability to enforce the rule if a privacy board was established at the covered entity rather than an uncovered entity, we concluded that the additional burden that such a requirement would place on covered entities was unwarranted. Furthermore, under the Common Rule and FDA's protection of human subjects regulations, IRB review often occurs at the site of the recipient researchers' institution, and it was not our intent to change this practice. Therefore, in the final rule, we continue to impose no requirements for the location or sponsorship of the IRB or privacy board.

    Privacy Board Membership

    Comment: Some commenters were concerned that the proposed composition of the privacy board did not adequately address potential conflicts of interest of the board members, particularly since the proposed rule would have permitted the board's “unaffiliated” member to be affiliated with the entity disclosing the protected health information for research purposes. To address this concern, some commenters recommended that the required composition of privacy boards be modified to require “...at least one member who is not affiliated with the entity receiving or disclosing protected health information.” These commenters believed that this addition would be more sound and more consistent with the Common Rule's requirements for the composition of IRBs. Furthermore, it was argued that this requirement would prohibit covered entities from creating a privacy board comprised entirely of its own employees.

    Response: We agree with these comments. In the final rule we have revised the proposed membership for privacy board to reduce potential conflict of interest among board members. The final rule requires that documentation of alteration or waiver from a privacy board, is only valid under § 164.512(i) if the privacy board includes at least one member who is not affiliated with the covered entity, not affiliated with any entity conducting or sponsoring the research, and not related to a person who is affiliated which such entities.

    Comment: One commenter recommended that privacy boards be required to include more than one unaffiliated member to address concerns about conflict of interest among members.

    Response We disagree that privacy boards should be required to include more than one unaffiliated member. We believe that the revised membership criterion for the unaffiliated member of the privacy board, and the criterion that requires that the board have no member participating in a review of any project in which the member has a conflict of interest, are sufficient to ensure that no member of the board has a conflict of interest in a research proposal under their review.

    Comment: Many commenters also recommended that the membership of privacy boards be required to be more similar to that of IRBs. These commenters were concerned that privacy boards, as described in the proposed rule, would not have the needed expertise to adequately review and oversee research involving the use of protected health information. A few of these commenters also recommended that IRBs be required to have at least one member trained in privacy or security matters.

    Response: We disagree with the comments asserting that the membership of privacy boards should be required be more similar to IRBs. Unlike IRBs, privacy boards only have responsibility for reviewing research proposals that involve the use or disclosure of protected health information without authorization. We agree, however, that the proposed rule may not have ensured that the a privacy board had the necessary expertise to protect adequately individuals' privacy rights and interests. Therefore, in the final rule, we have modified one of the membership criteria for privacy board to require that the board has members with varying backgrounds and appropriate professional competency as necessary to review the effect of the research protocol on the individual's privacy rights and related interests.

    Comment: Two commenters recommended that IRBs and privacy boards be required to include patient advocates.

    Response: The Secretary's legal authority under HIPAA does not permit HHS to modify the membership of IRBs. Moreover, we disagree with the comments recommending that IRBs and privacy board should be required to include patient advocates. We were not persuaded that patient advocates are the only persons with the needed expertise to protect patients' privacy rights and interests. Therefore, in the final rule, we do not require that patient advocates be included as members of a privacy board. However, under the final rule, IRBs and privacy board members could include patient advocates provided they met the required membership criteria in § 164.512(i).

    Comment: A few commenters requested clarification of the term “conflict of interest” as it pertained to the proposed rule's criteria for IRB and privacy board membership. In particular, some commenters recommended that the final rule clarify what degree of involvement in a research project by a privacy board member would constitute a conflict, thereby precluding that individual's participation in a review. One commenter specifically requested clarification about whether employment by the covered entity constituted a conflict of interest, particularly if the covered entity is receiving a financial gain from the conduct of the research.

    Response: We understand that determining what constitutes conflict of interest can be complex. We do not believe that employees of covered entities or employees of the research institution requesting protected health information for research purposes are necessarily conflicted, even if those employees may benefit financially from the research. However, there are many factors that should be considered in assessing whether a member of an IRB has a conflict of interest, including financial and intellectual conflicts.

    As part of a separate, but related effort to the final rule, during the summer of 2000, HHS held a conference on human subject protection and financial conflicts of interest. In addition, HHS solicited comments from the public about financial conflicts of interest associated with human subjects research for researchers, IRB members and staff, and research sponsors. The findings from the conference and the public comments received are forming the basis for guidance that HHS is now developing on financial conflicts of interest.

    Privacy Training for IRB and Privacy Boards

    Comment: A few commenters expressed support for training IRB members and chairs about privacy issues, recommending that such training either be required or that it be encouraged in the final rule.

    Response: We agree with these comments and thus encourage institutions that administer IRBs and privacy boards to ensure that the members of these boards are adequately trained to protect the privacy rights and welfare of individuals about whom protected health information is used for research purposes. In the final rule, we require that privacy board members have varying backgrounds and appropriate professional competency as necessary to review the effect of the research protocol on the individual's privacy rights and related interests. We believe that this criterion for privacy board membership requires that members already have the necessary knowledge or that they be trained to address privacy issues that arise in the conduct of research that involves the use of protected health information. In addition, we note that the Common Rule (§ ___.107(a)) already imposes a general requirement that IRB members posses adequate training and experience to adequately evaluate the research which it reviews. IRBs are also authorized to obtain the services of consultants (§ ___.107(f)) to provide expertise not available on the IRB. We believe that these existing requirements in the Common Rule already require that an IRB have the necessary privacy expertise.

    Waiver Criteria

    Comment: A large number of comments supported the proposed rule's criteria for the waiver of authorization by an IRB or privacy board.

    Response: While we agree that several of the waiver criteria should be retained in the final rule, we have made changes to the waiver criteria to address some of the comments we received on specific criteria. These reason for these changes are discussed in the response to comments below.

    Comment: In addition to the proposed waiver criteria, several commenters recommended that the final rule also instruct IRBs and privacy boards to consider the type of protected health information and the sensitivity of the information to be disclosed in determining whether to grant a waiver, in whole or in part, of the authorization requirements.

    Response: We agree with these comments, but believe that the requirement to consider the type and sensitivity of protected health information was already encompassed by the proposed waiver criteria. We encourage and expect that IRBs and privacy boards will take into consideration the type and sensitivity of protected health information, as appropriate, in considering the waiver criteria included in the final rule.

    Comment: Many commenters were concerned that the criteria were not appropriate in the context of privacy risks and recommended that the waiver criteria be rewritten to more precisely focus on the protection of patient privacy. In addition, some commenters argued that the proposed waiver criteria were redundant with the Common Rule and were confusing because they mix elements of the Common Rule's waiver criteria—some of which they argued were relevant only to interventional research. In particular, a number of commenters raised these concerns about proposed criterion (ii). Some of these commenters suggested that the word “privacy” be inserted before “rights.”

    Response: We agree with these comments. To focus all of the criterion on individuals' privacy interests, in the final rule, we have modified one of the proposed waiver criteria, eliminated one proposed criterion, and added an additional criterion : (1) the proposed criterion which stated, “the waiver will not adversely affect the rights and welfare of the subjects,” has been revised in the final rule as follows: “the alteration or waiver will not adversely affect the privacy rights and the welfare of the individuals;” (2) the proposed criterion which stated, “whenever appropriate, the subjects will be provided with additional pertinent information after participation,” has been eliminated; and (3) a criterion has been added in the final rule which states, “there are adequate written assurances that the protected health information will not be re-used or disclosed to any other person or entity, except as required by law, for authorized oversight of the research project, or for other research for which the use or disclosure of protected health information would be permitted by this subpart.” In addressing these criteria, we expect that IRBs and privacy boards will not only consider the immediate privacy interests of the individual that would arise from the proposed research study, but also the possible implications from a loss of privacy, such as the loss of employment, loss or change in cost of health insurance, and social stigma.

    Comment: A number of commenters were concerned about the interaction between the proposed rule and the Common Rule. One commenter opposed the four proposed waiver criteria which differed from the Common Rule's criteria for the waiver of informed consent (§ ___.116(d)) on the grounds that the four criteria proposed in addition to the Common Rule's waiver criteria would apply only to the research use and disclosure of protected health information by covered entities. This commenter argued that this would lead to different standards for the protection of other kinds of individually identifiable health information used in research that will fall outside of the scope of the final rule. This commenter concluded that this inconsistency would be difficult for IRBs to administer, difficult for IRB members to distinguish, and would be ethically questionable. For these reasons, many commenters recommended that the final rule should permit the waiver criteria of the Common Rule, to be used in lieu of the waiver criteria identified in the proposed rule.

    Response: We disagree with the comments recommending that the waiver criteria of the Common Rule should be permitted to be used in lieu of the waiver criteria identified in the proposed rule. The Common Rule's waiver criteria were designed to protect research subjects from all harms associated with research, not specifically to protect individuals' privacy interests. We understand that the waiver criteria in the final rule may initially cause confusion for IRBs and researchers that must attend to both the final rule and the Common Rule, but we believe that the additional waiver criteria adopted in the final rule are essential to ensure that individuals' privacy rights and welfare are adequately safeguarded when protected health information about themselves is used for research without their authorization. We agree that ensuring that the privacy rights and welfare of all human subjects—involved in all forms of research—is ethically required, and the new Office of Human Research Protection will immediately initiate plans to review the confidentiality provisions of the Common Rule.

    In addition, at the request of the President, the National Bioethics Advisory Commission has begun an examination of the current federal human system for the protection of human subjects in research. The current scope of the federal regulatory protections for protecting human subjects in research is just one of the issues that will be addressed in the by the Commission's report, and the Department looks forward to receiving the Commission's recommendations.

    CONCERNS ABOUT SPECIFIC WAIVER CRITERIA

    Comment: One commenter argued that the term “welfare” was vague and recommended that it be deleted from the proposed waiver of authorization criterion which stated, “the waiver will not adversely affect the rights and welfare of the subjects.”

    Response: We disagree with the comment recommending that the final rule eliminate the term “welfare” from this waiver criterion. As discussed in the National Bioethics Advisory Commission's 1999 report entitled, “Research Involving Human Biological Materials: Ethical Issues and Policy Guidance,” “Failure to obtain consent may adversely affect the rights and welfare of subjects in two basic ways. First, the subject may be improperly denied the opportunity to choose whether to assume the risks that the research presents, and second, the subject may be harmed or wronged as a result of his or her involvement in research to which he or she has not consented....Subjects' interest in controlling information about themselves is tied to their interest in, for example, not being stigmatized and not being discriminated against in employment and insurance.” Although this statement by the Commission was made in the context of research involving human biological materials, we believe research that involves the use of protected health information similarly requires that social and psychological harms be considered when assessing whether an alteration or waiver will adversely affect the privacy rights and welfare of individuals. We believe it would be insufficient to attend only to individuals' privacy “rights” since some of the harms that could result from a breach of privacy, such as stigmatization, and discrimination in employment or insurance, may not be tied directly to an individuals' “rights,” but would have a significant impact on their welfare. Therefore, in the final rule, we have retained the term “welfare” in this criterion for the alteration or waiver of authorization but modified the criterion as follows to focus more specifically on privacy concerns and to clarify that it pertains to alterations of authorization: “the alteration or waiver will not adversely affect the privacy rights and the welfare of the individual.”

    Comment: A few commenters recommended that the proposed waiver criteria that stated, “the research could not practicably be conducted without the waiver,” be modified to eliminate the term “practicably.” These commenters believed that determining “practicably” was subjective and that its elimination would facilitate IRBs' and privacy boards' implementation of this criterion. In addition, one commenter was concerned that this term could be construed to require authorization if enough weight is given to a privacy interest, and little weight is given to cost or administrative burden. This commenter recommended that the criterion be changed to allow a waiver if the “disclosure is necessary to accomplish the research or statistical purpose for which the disclosure is to be made.”

    Response: We disagree with the comments recommending that the term “practicability” be deleted from this waiver criterion. We believe that an assessment of practicability is necessary to account for research that may be possible to conduct with authorization but that would be impracticable if authorization were required. For example, in research study that involves thousands of records, it may be possible to track down all potential subjects, but doing so may entail costs that would make the research impracticable. In addition, IRBs have experience implementing this criterion since it is nearly identical to a waiver criterion in the Common Rule (§ ___.116(d)(3)).

    We also disagree with the recommendation to change the criterion to state, “disclosure is necessary to accomplish the research or statistical purpose for which the disclosure is to be made.” We believe it is essential that consideration be given as to whether it would be practicable for research to be conducted with authorization in determining whether a waiver of authorization is justified. If the research could practicably be conducted with authorization, then authorization must be sought. Authorization must not be waived simply for convenience.

    Therefore, in the final rule, we have retained this criterion and clarified that it also applies to alterations of authorization. This waiver criterion in the final rule states, “the research could not practicably be conducted without the alteration or waiver.”

    Comment: Some commenters argued that the criterion which stated, “whenever appropriate, the subjects will be provided with additional pertinent information after participation,” should be deleted. Some comments recommended that the criterion should be deleted for privacy reasons, arguing that it would be inappropriate to create a reason for the researcher to contact the individual whose data were analyzed, without IRB review of the proposed contact as a patient intervention. Other commenters argued for the deletion of the criterion on grounds that requiring researchers to contact patients whose records were used for archival research would be unduly burdensome, while adding little to the patient's base of information. Several commenters also argued that the criterion was not pertinent to non-interventional retrospective research requiring access to archived protected health information.

    In addition, one commenter asserted that this criterion was inconsistent with the Secretary's rationale for prohibiting disclosures of “research information unrelated to treatment” for purposes other than research. This commenter argued that the privacy regulations should not mandate that a covered entity provide information with unknown validity or utility directly to patients. This commenter recommended that a patient's physician, not the researcher, should be the one to contact a patient to discuss the significance of new research findings for that individual patient's care.

    Response: Although we disagree with the arguments made by commenters recommending that this criterion be eliminated in the final rule, we concluded that the criterion was not directly related to ensuring the privacy rights and welfare of individuals. Therefore, we eliminated this criterion in the final rule.

    Comment: A few commenters recommended that the criterion, which required that “the research would be impracticable to conduct without access to and use of the protected health information,” be deleted because it would be too subjective to be meaningful.

    Response: We disagree with comments asserting that this proposed criterion would be too subjective. We believe that researchers should be required to demonstrate to an IRB or privacy board why protected health information is necessary for their research proposal. If a researcher could practicably use de-identified health information for a research study, protected health information should not be used or disclosed for the study without individuals' authorization. Therefore, we retain this criterion in the final rule. In considering this criterion, we expect IRBs and privacy boards to consider the amount of information that is needed for the study. To ensure the covered health care provider or health plan is informed of what information the IRB or privacy board has determined may be used or disclosed without authorization, the final rule also requires that the documentation of IRB or privacy board approval of the alteration or waiver describe the protected health information for which use or access has been determined to be necessary.

    Comment: A large number of comments objected to the proposed waiver criterion, which stated that, “the research is of sufficient importance so as to outweigh the intrusion of the privacy of the individual whose information is subject to the disclosure.” The majority of these commenters argued that the criterion was overly subjective, and that due to its subjectivity, IRBs and privacy boards would inevitably apply it inconsistently. Several commenters asserted that this criterion was unsound in that it would impose on reviewing bodies the explicit requirement to form and debate conflicting value judgments about the relative weights of the research proposal versus an individual's right to privacy. Furthermore these commenters argued that this criterion was also unnecessary because the Common Rule already has a requirement that deals with this issue more appropriately. In addition, one commenter argued that the rule eliminate this criterion because common purposes should not override individual rights in a democratic society. Based on these arguments, these commenters recommended that this criterion be deleted.

    Response: We disagree that it is inappropriate to ask IRBs and privacy boards to ensure that there is a just balance between the expected benefits and risks to individual participants from the research. As noted by several commenters, IRBs currently conduct such a balancing of risks and benefits because the Common Rule contains a similar criterion for the approval of human subjects research (§ ___.111(a)(2)). However, we disagree with the comments asserting that the proposed criterion was unnecessary because the Common Rule already contains a similar criterion. The Common Rule does not explicitly address the privacy interests of research participants and does not apply to all research that involves the use or disclosure of protected health information. However, we agree that the relevant Common Rule criterion for the approval of human subjects research provides better guidance to IRBs and privacy boards for assessing the privacy risks and benefits of a research proposal. Therefore, in the final rule, we modeled the criterion on the relevant Common Rule requirement for the approval of human subjects research, and revised the proposed criterion to state: “the privacy risks to individuals whose protected health information is to be used or disclosed are reasonable in relation to the anticipated benefits if any to the individuals, and the importance of the knowledge that may reasonably be expected to result from the research.”

    Comment: One commenter asserted that as long as the research organization has adequate privacy protections in place to keep the information from being further disclosed, it is unnecessary for the IRB or privacy board to make a judgment on whether the value of the research outweighs the privacy intrusion.

    Response: The Department disagrees with the assertion that adequate safeguards of protected health information are sufficient to ensure that the privacy rights and welfare of individuals are adequately protected. We believe it is imperative that there be an assessment of the privacy risks and anticipated benefits of a research study that proposes to use protected health information without authorization. For example, if a research study was so scientifically flawed that it would provide no useful knowledge, any risk to patient privacy that might result from the use or disclosure of protected health information without individuals' authorization would be too great.

    Comment: A few commenters asserted that the proposed criterion requiring “an adequate plan to destroy the identifiers at the earliest opportunity consistent with the conduct of the research, unless there is a health or research justification for retaining identifiers,” conflicted with the regulations of the FDA on clinical record keeping (21 CFR 812.140(d)) and the International Standard Organization on control of quality records (ISO 13483, 4.16), which require that relevant data be kept for the life of a device.

    In addition, one commenter asserted that this criterion could prevent follow up care. Similarly, other commenters argued that the new waiver criteria would be likely to confuse IRBs and may impair researchers' ability to go back to IRBs to request extensions of time for which samples or data can be stored if researchers are unable to anticipate future uses of the data

    Response: We do not agree with the comment that there is a conflict between either the FDA or the ISO regulations and the proposed waiver criteria in the rule. We believe that compliance with such recordkeeping requirements would be “consistent with the conduct of research” which is subject to such requirements. Nonetheless, to avoid any confusion, in the final rule we have added the phrase “or such retention is otherwise required by law” to this waiver criterion.

    We also disagree with the comments that this criterion would prevent follow up care to individuals or unduly impair researchers from retaining identifiers on data for future research. We believe that patient care would qualify as a “health...justification for retaining identifiers.” In addition, we understand that researchers may not always be able to anticipate that the protected health information they receive from a covered health care provider or health plan for one research project may be useful for the conduct of future research studies. However, we believe that the concomitant risk to patient privacy of permitting researchers to retain identifiers they obtained without authorization would undermine patient trust, unless researchers could identify a health or research justification for retaining the identifiers. In the final rule, an IRB or privacy board is not required to establish a time limit on a researcher's retention of identifiers.

    ADDITIONAL WAIVER CRITERIA

    Comment: A few comments recommended that there be a additional waiver criterion to safeguard or limit subsequent use or disclosure of protected health information by the researcher.

    Response: We agree with these comments. In the final rule, we include a waiver criterion requiring “there are adequate written assurances that the protected health information will not be re-used or disclosed to any other person or entity, except as required by law, for authorized oversight of the research project, or for other research for which the use or disclosure of protected health information would be permitted by this subpart.”

    Waiving Authorization, in Whole or in Part

    Comment: A few commenters requested that the final rule clarify what “in whole or in part” means if authorization is waived or altered.

    Response: In the proposed rule, it was HHS' intent to permit IRBs and privacy boards to either waive all of the elements for authorization, or alternatively, waive only some of the elements of authorization. Furthermore, we also intended to permit IRBs and privacy boards to alter the authorization requirements. Therefore, in the final rule, we clarify that the alteration to and waiver of authorization, in whole or in part, are permitted as stipulated in § 164.512(i).

    Expedited Review

    Comment: One commenter asserted that the proposed rule would prohibit expedited review as permitted under the Common Rule. Many commenters supported the proposal in the rule to incorporate the Common Rule's provision for expedited review, and strongly recommended that this provision be retained in the final rule. Several of these commenters argued that the expedited review mechanism provides IRBs with the much-needed flexibility to focus volunteer-IRB members' limited resources.

    Response: We agree that expedited review should be available, and included a provision permitting expedited review under specified conditions. We understand that the National Bioethics Advisory Commission is currently developing a report on the federal oversight of human subjects research, which is expected to address the Common Rule's requirements for expedited review. HHS looks forward to receiving the National Bioethics Advisory Commission's report, and will modify the provisions for expedited review in the privacy rule if changes are warranted by the Commission's findings and recommendations.

    Required Signature

    Comment: A few commenters asserted that the proposed requirement that the written documentation of IRB or privacy board approval be signed by the chair of the IRB or the privacy board was too restrictive. Some commenters recommended that the final rule permit the documentation of IRB or privacy board approval to be signed by persons other than the IRB or privacy board chair, including: (1) any person authorized to exercise executive authority under IRB's or privacy board's written procedures; (2) the IRB's or privacy board's acting chair or vice chair in the absence of the chair, if permitted by IRB procedures; and (3) the covered entity's privacy official.

    Response: We agree with the commenters who argued that the final rule should permit the documentation of IRB or privacy board approval to be signed by someone other than the chair of the board. In the final rule, we permit the documentation of alteration or waiver of authorization to be signed by the chair or other member, as designated by the chair of the IRB or privacy board, as applicable.

    Research Use and Disclosure with Authorization

    Comment: Some commenters, including several industry and consumer groups, argued that the proposed rule would establish a two-tiered system for public and private research. Privately funded research conducted with an authorization for the use or disclosure of protected health information would not require IRB or privacy board review, while publically funded research conducted with authorization would require IRB review as required by the Common Rule. Many of these commenters argued that authorization is insufficient to protect patients involved in research studies and recommended that IRB or privacy board review should be required for all research regardless of sponsor. These commenters asserted that it is not sufficient to obtain authorization, and that IRBs and privacy boards should review the authorization document, and assess the risks and benefits to individuals posed by the research.

    Response: For the reasons we rejected the recommendation that we eliminate the option for privacy board review and require IRB review for the waiver of authorization, we also decided against requiring documentation of IRB or privacy board approval for research conducted with authorization. HHS strongly agrees that IRB review is essential for the adequate protection of human subjects involved in research, regardless of whether informed consent and/or individuals' authorization is obtained. In fact, IRB review may be even more important for research conducted with subjects' informed consent and authorization since such research may present greater than minimal risk to participants. However, HHS' authority under HIPAA is limited to safeguarding the privacy of protected health information, and does not extend to protecting human subjects more broadly. Therefore, in the final rule we have not required documentation of IRB or privacy board review for the research use or disclosure of protected health information conducted with individuals' authorization. As mentioned above, HHS looks forward to receiving the recommendations of the National Bioethics Advisory Commission, which is currently examining the current scope of federal regulatory protections for protecting human subjects in research as part of its overarching report on the federal oversight of human subjects protections.

    Comment: Due to concern about several of the elements of authorization, many commenters recommended that the final rule stipulate that “informed consent” obtained pursuant to the Common Rule be deemed to meet the requirements for “authorization.” These commenters argued that the NPRM's additional authorization requirements offered no additional protection to research participants but would be a substantive impediment to research.

    Response: We disagree with the comments asserting that the proposed requirements for authorization for the use or disclosure of protected health information would have offered research subjects no additional privacy protection. Because the purposes of authorization and informed consent differ, the proposed rule's requirements for authorization pursuant to a request from a researcher (§ 164.508) and the Common Rule's requirements for informed consent (Common Rule, § ___.116) contain important differences. For example, unlike the Common Rule, the proposed rule would have required that the authorization include a description of the information to be used or disclosed that identifies the information in a specific and meaningful way, an expiration date, and where, use of disclosure of the requested information will result in financial gain to the entity, a statement that such gain will result. We believe that the authorization requirements provide individuals with information necessary to determine whether to authorize a specific use or disclosure of protected health information about themselves, that are not required by the Common Rule.

    Therefore, in the final rule, we retain the requirement for authorization for all uses and disclosures of protected health information not otherwise permitted without authorization by the rule. Some of the proposed requirements for authorization were modified in the final rule as discussed in the preamble on § 164.508. The comments received on specific proposed elements of authorization as they would have pertained to research are addressed below.

    Comment: A number of commenters, including several from industry and consumer groups, recommended that the final rule require patients' informed consent as stipulated in the Common Rule. These commenters asserted that the proposed authorization document was inadequate for research uses and disclosures of protected health information since it included fewer elements than required for informed consent under the Common Rule, including for example, the Common Rule's requirement that the informed consent document include: (1) a description of any reasonably foreseeable risks or discomforts to the subject; (2) a description of any benefits to the subject or to others which may reasonably be expected from the research (Common Rule, § ___.116(a)).

    Response: While we agree that the ethical conduct of research requires the voluntary informed consent of research subjects, as stipulated in the Common Rule, as we have stated elsewhere, the privacy rule is limited to protecting the confidentiality of individually identifiable health information, and not protecting human subjects more broadly. Therefore, we believe it would not be within the scope of the final rule to require informed consent as stipulated by the Common Rule for research uses and disclosures of protected health information.

    Comment: Several commenters specifically objected to the authorization requirement for a “expiration date.” To remedy this concern, many of these commenters proposed that the rule exempt research from the requirement for an expiration date if an IRB has reviewed and approved the research study. In particular, some commenters asserted that the requirement for an expiration date would be impracticable in the context of clinical trials, where the duration of the study depends on several different factors that cannot be predicted in advance. These commenters argued that determining an exact date would be impossible due to the legal requirements that manufactures and the Food and Drug Administration be able to retrospectively audit the source documents when patient data are used in clinical trials. In addition, some commenters asserted that a requirement for an expiration date would force researchers to designate specific expiration dates so far into the future as to render them meaningless.

    Response: We agree with commenters that an expiration date is not always possible or meaningful. In the final rule, we continue to require an identifiable expiration, but permit it to be a specific date or an event directly relevant to the individual or the purpose of the authorization (e.g., for the duration of a specific research study) in which the individual is a participant.

    Comment: A number of commenters, including those from the pharmaceutical industry, were concerned about the authorization requirement that gave patients the right to revoke consent for participation in clinical research. These commenters argued that such a right to revoke authorization for the use of their protected health information would require complete elimination of the information from the record. Some stated that in the conduct of clinical trials, the retrieval of individually identifiable health information that has already been blinded and anonymized, is not only burdensome, but should this become a widespread practice, would render the trial invalid. One commenter suggested that the Secretary modify the proposed regulation to allow IRBs or privacy boards to determine the duration of authorizations and the circumstances under which a research participant should be permitted to retroactively revoke his or her authorization to use data already collected by the researcher.

    Response: We agree with these concerns. In the final rule we have clarified that an individual cannot revoke an authorization to the extent that action has been taken in reliance on the authorization. Therefore, if a covered entity has already used or disclosed protected health information for a research study pursuant to an authorization obtained as required by § 164.508, the covered entity is not required under the rule, unless it agreed otherwise, to destroy protected health information that was collected, nor retrieve protected health information that was disclosed under such an authorization. However, once an individual has revoked an authorization, no additional protected health information may be used or disclosed unless otherwise permitted by this rule.

    Comment: Some commenters were concerned that the authorization requirement to disclose “financial gain” would be problematic as it would pertain to research. These commenters asserted that this requirement could mislead patients and would make it more difficult to attract volunteers to participate in research. One commenter recommended that the statement be revised to state “that the clinical investigator will be compensated for the value of his/her services in administrating this clinical trial.” Another commenter recommended that the authorization requirement for disclosure of financial gain be defined in accordance with FDA's financial disclosure rules.

    Response: We strongly believe that a requirement for the disclosure of financial gain is imperative to ensure that individuals are informed about how and why protected health information about themselves will be used or disclosed. We agree, however that the language of the proposed requirement could cause confusion, because most activities involve some type of financial gain. Therefore, in the final rule, we have modified the language to provide that when the covered entity initiates the authorization and the covered entity will receive direct or indirect remuneration (rather than financial gain) from a third party in exchange for using or disclosing the health information, the authorization must include a statement that such remuneration will result.

    Comment: A few commenters asserted that the requirement to include a statement in which the patient acknowledged that information used or disclosed to any entity other than a health plan or health care provider may no longer be protected by federal privacy law would be inconsistent with existing protections implemented by IRBs under the Common Rule. In particular they stated that this inconsistency exists because IRBs are required to consider the protections in place to protect patients' confidential information and that IRBs are charged with ensuring that researchers comply with the confidentiality provisions of the informed consent document.

    Response: We disagree that this proposed requirement would pose a conflict with the Common Rule since the requirement was for a statement that the “information may no longer be protected by the federal privacy law.” This statement does not pertain to the protections provided under the Common Rule. In addition, while we anticipate that IRBs and privacy boards will most often waive all or none of the authorization requirements, we clarify an IRB or privacy board could alter this requirement, among others, if the documentation requirements of § 164.512(i) have been met.

    Reviews Preparatory to Research

    Comment: Some industry groups expressed concern that the research provision would prohibit physicians from using patient information to recruit subjects into clinical trials. These commenters recommended that researchers continue to have access to hospitals' and clinics' patient information in order to recruit patients for studies.

    Response: Under the proposed rule, even if the researcher only viewed the medical record at the site of the covered entity and did not record the protected health information in a manner that patients could be identified, such an activity would have constituted a use or disclosure that would have been subject to proposed § 164.508 or proposed § 164.510. Based on the comments received and the fact finding we conducted with the research community, we concluded that documentation of IRB or privacy board approval could halt the development of research hypotheses that require access to protected health information before a formal protocol can be developed and brought to an IRB or privacy board for approval. To avoid this unintended result, the final rule permits covered health care providers and health plans to use or disclose protected health information for research if the covered entity obtains from the researcher representations that: (1) use or disclosure is sought solely to review protected health information as necessary to prepare a research protocol or for similar purposes preparatory to research; (2) no protected health information is to be removed from the covered entity by the researcher in the course of the review; and (3) the protected health information for which use or access is sought is necessary for the research purposes.

    Comment: A few commenters asserted that the final rule should eliminate the possibility that research requiring access to protected health information could be determined to be “exempt” from IRB review, as provided by the Common Rule (§ ___.101(b)(4)).

    Response: The rule did not propose nor intend to modify any aspect of the Common Rule, including the provision that exempts from coverage, “research involving the collection or study of existing data, documents, records, pathological specimens, or diagnostic specimens, if these sources are publically available, or if the information is recorded by the investigator in such a manner that subjects cannot be identified, directly or indirectly through identifiers linked to the subjects” (§ ___.101(b)(4)). For the reasons discussed above, we have included a provision in the final rule for reviews preparatory to research that was modeled on this exemption to the Common Rule.

    Deceased Persons Exception for Research

    Comment: A few commenters expressed support for the proposal to allow use and disclosure of protected health information about decedents for research purposes without the protections afforded to the protected health information of living individuals. One commenter, for example, explained that it extensively uses such information in its research, and any restrictions were likely to impede its efforts. Alternately, a number of commenters provided arguments for eliminating the research exception for deceased persons. They commented that the same concerns regarding use and disclosure of genetic and hereditary information for other purposes apply in the research context. They believed that in many cases the risk of identification was greater in the research context because researchers may attempt to identify genetic and hereditary conditions of the deceased. Finally, they argued that while information of the deceased does not necessarily identify living relatives by name, living relatives could be identified and suffer the same harm as if their own medical records were used or disclosed for research purposes. Another commenter stated that the exception was unnecessary, and that existing research could and should proceed under the requirements in proposed § 164.510 that dictated the IRB/privacy board approval process or be conducted using de-identified information. This commenter further stated that in this way, at least there would be some degree of assurance that all reasonable steps are taken to protect deceased persons' and their families' confidentiality.

    Response: Although we understand the concerns raised by commenters, we believe those concerns are outweighed by the need to keep the research-related policies in this rule as consistent as possible with standard research practice under the Common Rule, which does not consider deceased persons to be “human subjects.” Thus, we retain the exception in the final rule. With regard to the protected health information about a deceased individual, therefore, a covered entity is permitted to use or disclose such information for research purposes without obtaining authorization from a personal representative and absent approval by an IRB or privacy board as governed by § 164.512(i). We note that the National Bioethics Advisory Committee (NBAC) is currently considering revising the Common Rule's definition of “human subject” with regard to coverage of the deceased. However, at this time, NBAC's deliberations on this issue are not yet completed and any reliance on such discussions would be premature.

    The final rule requires at § 164.512(i)(1)(iii) that covered entities obtain from the researcher (1) representation that the use or disclosure is sought solely for research on the protected health information of decedents; (2) documentation, at the request of the covered entity, of the death of such individuals; and (3) representation that the protected health information for which use or disclosure is sought is necessary for the research purposes. It is our intention with this change to reduce the burden and ambiguity on the part of the covered entity to determine whether or not the request is for protected health information of a deceased individual.

    Comment: Some commenters, in their support of the research exception, requested that HHS clarify in the final rule that protected health information obtained during the donation process of eyes and eye tissue could continue to be used or disclosed to or by eye banks for research purposes without an authorization and without IRB approval. They expressed concern over the impediments to this type of research these approvals would impose, such as added administrative burden and vulnerabilities to the time sensitive nature of the process.

    Another commenter similarly expressed the position that, with regard to uses and disclosures of protected health information for tissue, fluid, or organ donation, the regulation should not present an obstacle to the transfer of donations unsuitable for transplant to the research community. However, they believed that consent can be obtained for such purposes since the donor or donor's family must generally consent to any transplant purposes, it would seem to be a minimal additional obligation to seek consent for research purposes at the same time, should the material be unsuitable for transplant.

    Response: Protected health information about a deceased individual, including information related to eyes and eye tissue, can be used or disclosed further for research purposes by a covered entity in accordance with § 164.512(i)(1)(iii) without authorization or IRB or privacy board approval. This rule does not address whether organs unsuitable for transplant may be transferred to researchers with or without consent.

    Modification of the Common Rule

    Comment: We received a number of comments that interpreted the proposed rule as having unnecessarily and inappropriately amended the Common Rule. Assuming that the Common Rule was being modified, these comments argued that the rule was legally deficient under the Administrative Procedures Act, the Regulatory Flexibility Act, and other controlling Executive orders or laws.

    In addition, one research organization expressed concern that, by involving IRBs in the process of approving a waiver of authorization for disclosure purposes and establishing new criteria for such waiver approvals, the proposed rule would have subjected covered entities whose IRBs failed to comply with the requirements for reviewing and approving research to potential sanctions under HIPAA. The comment recommended that the rule be changed to eliminate such a punitive result. Specifically, the comment recommended that the existing Common Rule structure be preserved for IRB-approved research, and that the waiver of authorization criteria for privacy purposes be kept separate from the other the functions of the IRB.

    Response: We disagree with the comments asserting the proposed rule attempted to change the Common Rule. It was not our intent to modify or amend the Common Rule or to regulate the activities of the IRBs with respect to the underlying research. We therefore reject the comments about legal deficiencies in the rule which are based on the mistaken perception that the Common Rule was being amended. The proposed rule established new requirements for covered entities before they could use or disclose protected health information for research without authorization. The proposed rule provided that one method by which a covered entity could obtain the necessary documentation was to receive it from an IRB. We did not mandate IRBs to perform such reviews, and we expressly provided for means other than through IRBs for covered entities to obtain the required documentation.

    In the final rule, we also have clarified our intent not to interfere with existing requirements for IRBs by amending the language in the waiver criteria to make clear that these criteria relate to the privacy interests of the individual and are separate from the criteria that would be applied by an IRB to any evaluation of the underlying research. Moreover, we have restructured the final rule to also make clear that we are regulating only the content and conditions of the documentation upon which a covered entity may rely in making a disclosure of protected health information for research purposes.

    We cannot and do not purport to regulate IRBs or modify the Common Rule through this regulation. We cannot under this rule penalize an IRB for failure to comply with the Common Rule, nor can we sanction an IRB based on the documentation requirements in the rule. Health plans and covered health care providers may rely on documentation from an IRB or privacy board concerning the alteration or waiver of authorization for the disclosure of protected health information for research purposes, provided the documentation, on its face, meets the requirements in the rule. Health plans and covered health care providers will not be penalized for relying on facially adequate documentation from an IRB. Health plans and covered health providers will only be penalized for their own errors or omissions in following the requirements of the rule, and not those of the IRB.

    Use Versus Disclosure

    Comment: Many of the comments supported the proposed rule's provision that would have imposed the same requirements for both research uses and research disclosures of protected health information.

    Response: We agree with these comments. In the final rule we retain identical use and disclosure requirements for research uses and disclosures of protected health information by covered entities.

    Comment: In contrast, a few commenters recommended that there be fewer requirements on covered entities for internal research uses of protected health information.

    Response: For the reasons discussed above in § 164.501 on the definition of “research,” we disagree that an individual's privacy interest is of less concern when covered entities use protected health information for research purposes than when covered entities disclose protected health information for research purposes. Therefore, in the final rule, the research-related requirements of § 164.512(i) apply to both uses and disclosures of protected health information for research purposes without authorization.

    Additional Resources for IRBs

    Comment: A few commenters recommended that HHS work to provide additional resources to IRBs to assist them in meeting their new responsibilities.

    Response: This recommendation is beyond our statutory authority under HIPAA, and therefore, cannot be addressed by the final rule. However, we fully agree that steps should be taken to moderate the workload of IRBs and to ensure adequate resources for their activities. Through the Office for Human Research Protections, the Department is committed to working with institutions and IRBs to identify efficient ways to optimize utilization of resources, and is committed to developing guidelines for appropriate staffing and workload levels for IRBs.

    Additional Suggested Requirements

    Comment: One commenter recommended that the documentation of IRB or privacy board approval also be required to state that, “the health researcher has fully disclosed which of the protected health information to be collected or created would be linked to other protected health information, and that appropriate safeguards be employed to protect information against re-identification or subsequent unauthorized linkages.”

    Response: The proposed provision for the use or disclosure of protected health information for research purposes without authorization only pertained to individually identifiable health information. Therefore, since the information to be obtained would be individually identifiable, we concluded that it was illogical to require IRBs and privacy boards document that the researcher had “fully disclosed that...appropriate safeguards be employed to protect information against re-identification or subsequent unauthorized linkages.” Therefore, we did not incorporate this recommendation into the final rule.

    1. The use or disclosure of protected health information involves no more than a minimal risk to the privacy of individuals, based on, at least, the presence of the following elements:

      (a) an adequate plan to protect the identifiers from improper use and disclosure;

      (b) an adequate plan to destroy the identifiers at the earliest opportunity consistent with conduct of the research, unless there is a health or research justification for retaining the identifiers or such retention is otherwise required by law; and

      (c) adequate written assurances that the protected health information will not be reused or disclosed to any other person or entity, except as required by law, for authorized oversight of the research project, or for other research for which the use or disclosure of protected health information would be permitted by this subpart;

    2. The research could not practicably be conducted without the waiver or alteration; and

    3. The research could not practicably be conducted without access to and use of the protected health information.