HCBA Lawyer Magazine Vol. 29, No. 3 | Page 35

Continued from page 32 consents” to obtain samples, or biospecimens, from individuals that they then “banked” for future unspecified research purposes. (Hence, the term biobank.) The revised Common Rule, however, puts in place a specific regulatory framework for the “broad consent” process, contained at 45 C.F.R. § 46.116(d), which may impact biobanks. The new “broad consent” process essentially allows an alternative to the typical informed consent process (defined in 45 C.F.R. § 46.116(b)-(c)) for these biospecimens to be used in future research, or secondary research, as HHS has labelled it. Without delving into the technical elements of the new “broad consent” process, one change is that when individuals opt-out of consent for secondary research, the relevant institutional review board (IRB) overseeing such secondary research cannot later issue a waiver of consent to permit these individuals’ identifiable banked biospecimens to be used in a future research study. This creates a mechanism whereby those who have opted out via the broad consent process must have their refusals continually tracked to ensure their samples are not used in an identifiable manner in any secondary research. Although many institutions likely already implemented these safeguards, the reality is that they no longer can rely on a waiver of consent from the IRB for all of the samples to be used in a secondary research study. Institutions now, according to the regulation, will have to confirm that the proper “broad consents,” or “opt-ins,” were obtained from all individuals whose biospecimens may be used in an identifiable manner in a secondary research study. HHS has released questions and answers surrounding the “broad consent” process, but has yet to issue compre- hensive guidance on “broad consents” and how they tie into the existing, and future, framework for biobanks. With this new “broad consent” process, institutions will have to ensure that opt-ins and opt-outs are documented for all future secondary research involving banked biospecimens. Although HHS has stated that the use of individuals’ biospecimens in a nonidentifiable manner still is permissible, the advent of genome sequencing raises significant questions about what is nonidentifiable. For institutions, the challenge will be ensuring that the correct pathways are followed for all secondary research involving biospecimens, so that their highly futuristic lab (or old freezer) operates properly as a biobank. Author: Kevin Rudolph – Shriners Hospital for Children JAN - FEB 2019 | HCBA LAWYER 33