FDA Finalizes Rules on Access to Investigational Drugs

14 August 2009 Publication
Author(s): Nathan A. Beaver David L. Rosen Judith A. Waltz

Legal News Alert: Life Sciences

On August 13, 2009, the U.S. Food and Drug Administration (FDA) published two final rules concerning access to investigational drugs and charging patients for investigational new drugs. The first rule, which addresses access to investigational drugs, does not change the methods by which seriously ill patients who are unable to participate in clinical trials can gain access to investigational therapies, but rather clarifies existing rules that have allowed some patients to access investigational drugs for several years and expands the class of patients that may have access. The second rule clarifies the conditions under which it is appropriate for drug sponsors to charge patients participating in clinical trials for investigational new drugs. Both rules take effect on October 13, 2009.

The first rule, entitled “Expanded Access to Investigational Drugs for Treatment Use,” proposed at the end of 2006, clarifies the criteria for access to investigational drugs, enumerates the requirements for access submissions, establishes safeguards to protect patients from adverse side-effects, and implements mechanisms for maintaining meaningful data about treatment use and results. Per the rule, those who may be granted access to investigational drugs include individuals with a serious or immediately life-threatening disease and for whom there is no comparable satisfactory alternative therapy; intermediate-size patient populations comprising individuals who are ineligible to participate in clinical trials or whose disease is so rare that a drug is not being developed; and larger populations under a treatment protocol or in a trial conducted as part of an Investigational New Drug (IND) application.

The expanded access rule specifies that drug sponsors are responsible for submitting IND safety reports (and annual reports when the protocol continues for one year or more) and for providing treating physicians with necessary information to maximize the benefits and minimize the risks of treatment. Physicians who administer the treatments, who are considered “investigators” for purposes of this rule, must report adverse drug events to the sponsor, ensure that informed consent requirements are met, and maintain accurate case histories and drug disposition records. In support of the effort to help seriously ill patients gain access to these therapies, the FDA has launched a Web site where patients and their physicians can learn about options for access to investigational drugs.

The second rule, entitled “Charging for Investigational Drugs Under an Investigational New Drug Application,” amends the existing rules concerning when drug sponsors may charge patients for investigational drugs. Though drug sponsors for years have been able to apply for permission to charge clinical trial participants for drugs, the rules were unclear about the circumstances under which it was appropriate and the types of costs that could be recovered. This rule specifies that a sponsor who wishes to charge a clinical trial participant for a drug must show that the drug may provide a significant advantage over other available treatments (as demonstrated by the trial), that the data from the trial is essential to demonstrating the drug’s safety and efficacy, and that charging participants is essential because the cost of the drug is “extraordinary to the sponsor.”

This second rule also specifies that sponsors may charge clinical trial participants to recover only the direct costs of making an investigational drug available, which include those costs per unit to manufacture the drug for the trial or to acquire the drug from another manufacturer and shipping and handling costs. If the investigational drug is used to treat intermediate-sized patient populations or large populations under a treatment protocol or IND, as authorized in the companion regulation, sponsors also may charge enough to recover the costs of monitoring the expanded-access protocol or IND. Finally, the rule also states that the FDA will withdraw authorization to charge for the investigational drug if the agency determines that charging is interfering with the development of the drug for marketing approval or if the criteria for the authorization are no longer being met.

In a press release issued by the FDA, Dr. Janet Woodcock, the director of the FDA’s Center for Drug Evaluation and Research (CDER), said, “[T]he final rules balance access to promising new therapies against the need to protect patient safety and seek to ensure that expanded drug access does not discourage participation in clinical trials or otherwise interfere with the drug development process.”

Foley will continue to provide updates on important FDA-related topics.


Legal News Alert is part of our ongoing commitment to providing up-to-the-minute information about pressing concerns or industry issues affecting our clients and our colleagues. If you have any questions about this update or would like to discuss this topic further, please contact your Foley attorney or the following:





Nathan A. Beaver
Washington, D.C.

Joyce E. Gresko
Washington, D.C.

David L. Rosen
Washington, D.C.

Judith A. Waltz
San Francisco