More Comments on Maryland's IRB Law

In January 2008, I commented on Adil E. Shamoo and Jack Schwartz, "Universal and Uniform Protections of Human Subjects in Research," American Journal of Bioethics 7 (December 2007): 7-9. That essay applauded a 2002 Maryland law that seeks to impose federal regulations on all human subjects research conducted within the state, even if not conducted at an institution with an FWA. As I noted at the time, the law is of dubious constitutionality, and it has probably survived this long only because it has never been enforced.

The November 2008 issue of the same journal reprints the Shamoo/Schwartz essay as a "target article," along with eight invited commentaries. Several of the commentaries complain that the federal regulations--and therefore the Maryland law--are insufficiently protective, rather than overly broad, but none of these address social science.

Three commentators do address Shamoo and Schwartz's failure to consider the impact on social science research. Neil W. Schluger complains that "their solution will do very little to protect human subjects, and perversely, it may actually make the situation worse by simply piling more studies into an overburdened and flawed system." (13) He notes that

a very large percentage of studies that IRBs review are studies involving minimal risk to subjects. Many of these are observational studies, reviews of existing data, studies in which the only intervention is administration of a questionnaire, or other types if studies where there really is no reasonable expectation that any harm could result. Although such studies can be reviewed by the use of expedited review procedures without convening the full IRB, they still require considerable administrative and regulatory oversight by IRB staff. Further efforts should be made to reduce the work associated with these harmless studies. (14)

David B. Resnik notes that the idea of regulating all research nationwide has been kicking around since 1995, and has been the subject of six failed bills in Congress. But, he continues, "it is not obvious that society would gain much by requiring an organization, such as Gallup or ABC News, to submit a proposal to an institutional review board (IRB) to conduct an anonymous survey each time that it decides to gauge public opinion on a particular issue. Social resources might be better spent overseeing riskier research, such as clinical trials." (6) He concludes that "Any proposal that is made into a law should include adequate provisions for exempting some low risk research and clarifying the definitions of important terms." (8)

Lisa M. Rasmussen complains that the Shamoo/Schwartz position "makes no distinction between highly risky biomedical research and, on the opposite end of the spectrum, research that involves no more risk than we all accept daily. Does beneficence really require that human subjects be protected from answering questionnaires or being interviewed? If so, why does this protection not extend to marketing, polling, or journalism?" (18)

Instead, Rasmussen proposes

the one-time approval of research “templates.” Taking advantage of the fact that a great deal of research follows traditional disciplinary methods, this model suggests that IRBs could approve a variety of research templates (written, for example, by discipline-specific bodies such as the American Psychological Association (Washington, DC), or by a researcher whose classes may repeat experiments semester after semester), and grant automatic exemption to any researcher using such templates. Accountability and oversight could be ensured by requiring the researcher to submit a simple form to the IRB agreeing to use such a template (which would also include provisions for protecting confidential data). Were this form electronically based, research could proceed as soon as the form was submitted, without requiring submission of a protocol or awaiting approval. This achieves the goals of both minimizing bureaucracy and protecting human subjects. It meets our moral obligations to human subjects of research without uniformly requiring IRB oversight of research. (18)

Rasmussen concludes that "universal and uniform regulation of all human subject research is well-meaning but un-nuanced." (18)

It is a pity that the journal does not print a reply by Shamoo and Schwartz. As I noted in my post last year, Shamoo himself has suggested that what he terms "low-risk research" is overregulated. I remain puzzled why he favors state laws that promise even more regulation of such research.