D EPARTMENT OF HEALTH AND H UMAN SERVICES 

OFFICE OF INSPECTOR GENERAL 

WASHINGTON, DC 20201 

SEP 15 2014 


TO: Jerry Menikoff, M.D., J.D. 

Director 


Office for Human Research Protections 


FROM: Suzanne MUrri:r} 

Deputy Insjl.OCtur <,Jefieral 

for Evatuatiorvand Inspections 

SUBJECT: 	 Memorandum Report: The Office for Human Research Protections' 

Evaluation ofthe Surfactant, Positive Pressure, and Oxygenation 

Randomize d Trial, OEI-0 1-14-00560 

This memorandum report provides information about the review by the Department of 

Health and Human Services (HHS) Office of Inspector General to determine whether the 

Office for Human Research Protections (OHRP) followed its procedures in its 

compliance evaluation ofthe Surfactant, Positive Pressure, and Oxygenation Randomized 

Trial (SUPPORT). OIG reviewed relevant SUPPORT and compliance evaluation 

documents and conducted interviews to assess OHRP's response to an allegation 

re garding the use of informed consent in SUPPORT. Specifically, OIG's objectives 

were: 

(1) to ensure that OHRP followed procedures and exercised reasonable discretion in 

the compliance evaluation of SUPPORT; and 

(2) to provide specific recommendations for how OHRP or HHS can strengthen its 

review, approval, and monitoring procedures if any violation is found. 

We conducted this analysis in 2013 at the request of a Member of Congress, and we 

shared our findings with the requestor and with HHS. We are issuing this report to 

present our findings publicly. 

SUMMARY 

We found that OHRP followed its procedures and exercised discretion throughout its 

evaluation of SUPPORT. Generally, OHRP sees its role as educational and sees such 

evaluations as opportunities to strengthen human subjects protections in future research. 

The events following OHRP's determination in SUPPORT have raised important 
 

 

 

Page 2 – Jerry Menikoff, M.D., J.D. 

questions about the protection of human subjects in research that compares treatments 

within the current standard of care. 

BACKGROUND 

OHRP 

Section 491 of the Public Health Service Act (42 U.S.C. § 289) authorizes the Secretary 

to establish a process to respond to alleged violations of human subjects protection in 

research conducted or supported by HHS. The Secretary has delegated this authority to 

OHRP.1 Pursuant to this authority, when OHRP receives allegations of violations it may 

conduct for-cause compliance evaluations.2 

OHRP has developed an 11-step procedure for conducting a for-cause compliance 

evaluation. In general, OHRP’s process involves notifying the institution and requesting 

that it investigate the allegation, provide a written response with supporting documents, 

and develop a corrective action plan if any noncompliance is revealed. OHRP evaluates 

the institution’s response and issues a determination letter addressing the allegations of 

noncompliance. If OHRP identifies noncompliance with human subjects protections 

regulations, it can (1) require the institution to take corrective measures, such as 

developing a corrective action plan or improving institutional policies; (2) restrict or 

suspend research at the institution; and/or (3) recommend that an institution or 

investigator be debarred from receiving Federal funds for research. 

OHRP has considerable discretion in this process. For example, OHRP is able to 

determine whether to conduct a for-cause compliance evaluation; how to assess the 

institution’s investigation; whether to consult with experts; and what, if any, are 

appropriate corrective actions. 

SUPPORT 

SUPPORT was a randomized multisite study that enrolled about 1,300 premature infants 

between 2005 and 2009. The National Institute of Child Health and Human 

Development (NICHD) within the National Institutes of Health (NIH) funded SUPPORT. 

The University of Alabama, Birmingham (UAB) was the lead coordinating institution of 

the 23 sites in the study.3

 Research Triangle Institute (RTI) was the data-coordinating 

center responsible for collecting, storing, and analyzing study data for all sites. 

1

 65 Fed. Reg. 37136–37 (June 13, 2000). 

2

 OHRP also conducts not-for-cause evaluations in the absence of allegations or indications of
 

noncompliance. OHRP selects institutions for not-for-cause evaluations on the basis of a range of factors, 

including volume of supported research, history of low-level reporting to OHRP, and geographic location.

3

 Other institutions involved in SUPPORT were Case Western Reserve University, Duke University, 

Wake Forest University, Women and Infants Hospital of Rhode Island, Brown University, the University of
 

Utah, the University of Cincinnati, Tufts Medical Center, the University of Texas Southwestern Medical 

Center, Emory University, the University of Rochester, Indiana University, Stanford University, the 

University of Miami, Wayne State University, the University of Iowa, Yale University, the University of 

California, Sharp Mary Birch Hospital for Women & Newborns, and the University of New Mexico.
 

OHRP’s Evaluation of SUPPORT (OEI-01-14-00560) 
 

 

 

 

Page 3 – Jerry Menikoff, M.D., J.D. 

One purpose of the study was to determine the appropriate levels of oxygen saturation in 

infants with extremely low birth weights by comparing those receiving lower levels of 

oxygen saturation to those receiving higher ones. Enrolled infants were randomized into 

two groups and maintained in one of two oxygen saturation target ranges (85–89 percent 

or 91–95 percent).4 At the time of the study, the standard of care was to treat premature 

infants within an oxygen saturation range of 85–95 percent. In practice, clinicians adjust 

oxygen saturation levels within that range according to an infant’s individual needs and 

characteristics.5 

One objective of the study was to test the hypothesis that a lower target range of oxygen 

saturation compared to a higher range would reduce the incidence of severe retinopathy 

of prematurity (a disease that causes abnormal blood vessel growth in the eye, leading to 

blindness and other visual impairments) or death among infants with extremely low birth 

weights. A second objective of the study was to compare two ventilation treatments in 

such infants. 

Allegation of Violation and OHRP’s Determination Letter. In May 2011, OHRP received 

an email about SUPPORT alleging that (1) the study design was unethical because some 

infants received “severely reduced” oxygen and (2) the researchers had not obtained 

informed consent. In response, OHRP conducted a for-cause compliance evaluation of 

SUPPORT at UAB (see Attachment: Chronology of OHRP’s Evaluation of SUPPORT). 

OHRP issued a determination letter to UAB in March 2013 stating that “the conduct of 

this study was in violation of the regulatory requirements for informed consent, stemming 

from the failure to describe the reasonably foreseeable risks of blindness, neurological 

damage and death.” 

METHODOLOGY 

We reviewed how OHRP conducted its for-cause compliance evaluation of SUPPORT. 

We assessed how OHRP followed its 11 procedural steps and how the agency exercised 

its discretion. 

We reviewed the following documents provided by OHRP: 

 the emailed allegation regarding SUPPORT; 

 emails and written communication of relevant OHRP staff involved in the 

SUPPORT compliance evaluation, including communication among staff from 

OHRP, NIH, other HHS offices, UAB, and RTI; 

4

 SUPPORT Study Group of the Eunice Kennedy Shriver NICHD Neonatal Research Network, “Target 

Ranges of Oxygen Saturation in Extremely Preterm Infants.” The New England Journal of Medicine, 2010; 

362: 1959–1969, May 27, 2010. 5

 J.M. Drazen et al., “Informed Consent and SUPPORT.” The New England Journal of Medicine, 2013; 

368: 1929–1930, May 16, 2013. 

OHRP’s Evaluation of SUPPORT (OEI-01-14-00560) 
 

 

 

 

Page 4 – Jerry Menikoff, M.D., J.D. 

 the study documents that OHRP requested from UAB as part of its evaluation, 

including SUPPORT’s Data Safety Monitoring Committee (DSMC) documents 

and approved informed-consent documents;6 and 

 a summary report of previous OHRP investigations or actions involving UAB. 

We also reviewed the minutes for both open and closed DSMC meetings and adverse 

event data provided by RTI. In addition, we conducted structured interviews with OHRP 

and NIH staff involved with SUPPORT. 

We did not review the appropriateness of OHRP’s determination or actions in its 

SUPPORT evaluation. 

This study was conducted in accordance with the Quality Standards for Inspection and 

Evaluation issued by the Council of the Inspectors General on Integrity and Efficiency. 

RESULTS 

We found that OHRP followed its for-cause compliance evaluation procedures, 

which are broadly drawn and provide the office with substantial discretion. 

OHRP’s activities to ensure institutions’ compliance are not codified in Federal statute or 

regulations; rather, they appear in compliance procedures issued by OHRP. These 

procedures give OHRP considerable discretion in how it conducts such evaluations.7 

OHRP specifies 11 steps in a for-cause compliance evaluation; we found that after 

receiving the allegation, OHRP followed its procedures for each step. Below, we list 

each step and describe the actions OHRP took and how it exercised its discretion. 

Step 1: OHRP determines whether it has jurisdiction to evaluate allegations. 

After receiving the emailed allegation on May 24, 2011, OHRP reviewed the published 

results of SUPPORT in a New England Journal of Medicine article referenced in the 

allegation and determined that the study fell within its jurisdiction.8

 The article stated 

that SUPPORT was an NIH-funded study; OHRP confirmed this fact by contacting NIH. 

OHRP has the authority to evaluate allegations pertaining to human subject research that 

HHS conducts or supports.9 According to officials at OHRP, the agency receives 

between 80 and 100 allegations per year, of which 5 to 10 fall within its jurisdiction.10 

6

 A DSMC is an independent committee of experts responsible for reviewing clinical trial data on an 

ongoing basis to ensure the safety of study subjects and validity and integrity of the data. 

7

 OHRP, Compliance Oversight Procedures for Evaluating Institutions, October 14, 2009. Accessed at 

http://www.hhs.gov/ohrp/compliance/evaluation/ on July 23, 2013. 8

 SUPPORT Study Group of the Eunice Kennedy Shriver NICHD Neonatal Research Network, “Target 

Ranges of Oxygen Saturation in Extremely Preterm Infants.” The New England Journal of Medicine, 2010;
 

362: 1959–1969, May 27, 2010. 9 42 U.S.C. § 289(b)(2); 65 Fed. Reg. .37136–37 (June 13, 2000). 

10 In addition, OHRP has authority to evaluate allegations when an institution is covered by an applicable 

OHRP-approved Federalwide Assurance. A Federalwide Assurance is a written document that commits 

the institution to full compliance with HHS regulations whenever the institution is engaged in human
 

subject research that HHS conducts or supports. 

OHRP’s Evaluation of SUPPORT (OEI-01-14-00560) 
 

 

Page 5 – Jerry Menikoff, M.D., J.D. 

Step 2: OHRP notifies complainant as to whether it will open an evaluation. 

On July 18, 2011, OHRP notified the complainant that it would be “evaluating the 

allegations related to informed consent/parental permission.” 

Step 3: If OHRP chooses to conduct a for-cause compliance evaluation, OHRP sends an 

inquiry letter to the institution. 

Step 4: OHRP sends copies of the inquiry letter to the principal investigator(s) involved in 

the research. 

OHRP sent an inquiry letter to UAB and RTI on July 18, 2011, copying the principal 

investigator for SUPPORT along with relevant individuals at NIH, NICHD, and the Food 

and Drug Administration (FDA).11 OHRP’s inquiry letter included all required 

information outlined in its procedures. It explained OHRP’s compliance procedures, 

described the allegations, and requested that UAB investigate and respond in writing with 

corrective actions if the investigation revealed a violation. 

OHRP discretion in initiating the evaluation. Within 2 weeks of receiving the allegation, 

OHRP conducted a preliminary analysis to determine whether the allegation warranted an 

evaluation. OHRP first obtained from NIH the research protocol and the template for 

informed-consent documents. OHRP’s initial decision was that the template did not 

include all reasonably foreseeable risks. OHRP staff told us that OHRP chose to initiate 

an evaluation even though enrollment in SUPPORT had ended and therefore the element 

of ongoing risk to human subjects was absent. OHRP considered the evaluation to be 

important because NIH has increasingly funded research of similar design (i.e., involving 

human subjects who are assigned to receive different treatments within the current 

standard of care). OHRP staff reported that when they decide to initiate an evaluation, 

they consider primarily the level of risk to human subjects. Because each compliance 

evaluation requires OHRP to commit significant human resources, new evaluations may 

require OHRP to reprioritize ongoing or planned evaluations. 

OHRP discretion in defining the scope of the evaluation. OHRP reviewed the allegation 

and relevant study documents and chose to focus its evaluation on one institution, one 

study objective, and only the informed-consent issue. 

OHRP chose to focus its evaluation on the lead institution, UAB, rather than all of the 

institutions involved in the study. OHRP staff told us that they expected the outcomes 

among the multiple sites would be similar, so focusing the review on the lead institution 

seemed appropriate. 

11 OHRP staff indicated that they also included RTI because data-coordinating centers “often have access to 

materials that the individual sites don’t have.” OHRP later determined that RTI had limited involvement in 

the conduct of SUPPORT and only collected, stored, and analyzed data for SUPPORT. OHRP 

communicated to RTI that it need not respond. 

OHRP’s Evaluation of SUPPORT (OEI-01-14-00560) 
Step 5: OHRP evaluates the documentation submitted by the institution in response to its 

inquiry letter to determine whether additional information is needed. 

Step 6: OHRP engages external expert consultants as needed. 

Step 7: OHRP presents any questions and concerns in additional written correspondence to 

the institution. OHRP can conduct interviews and onsite visits at institutions if relevant. 

 

 

Page 6 – Jerry Menikoff, M.D., J.D. 

OHRP staff also explained that they chose to focus the evaluation on one of the two 

research objectives of SUPPORT because the allegation referred specifically to the 

comparison of different oxygen saturation ranges.12 

Lastly, OHRP focused its evaluation on the initial informed-consent document that UAB 

used, with the goal of determining whether that document appropriately described the 

research purpose and all reasonably foreseeable risks to human subjects. OHRP did not 

assess whether any new risks were identified throughout the trial that should have been 

communicated to human subjects as required by 45 CFR 46.116(b). According to OHRP 

staff, their concern was that known risks at the start of SUPPORT were not set out in the 

informed-consent document that UAB used. 

UAB responded to OHRP’s inquiry letter on August 26, 2011, stating that it had 

reviewed the institutional review board (IRB) file for SUPPORT and had interviewed 

relevant study staff. UAB found that its informed-consent document complied with 

45 CFR § 46.116(a). Specifically, UAB stated that “there were no data from 

evidence-based trials to indicate increased risk or benefits between the two ranges of 

oxygen saturations tested.” It also stated that the DSMC had reviewed the study data 

several times and found no concerns with increased risk or benefit. 

OHRP started its review of UAB’s response in January 2012 when it assigned the case to 

a specific coordinator in its Division of Compliance Oversight. OHRP did not engage 

experts external to HHS in its evaluation, but it did consult experts in NIH before issuing 

its inquiry letter to UAB. OHRP did not conduct interviews or site visits in its evaluation 

of SUPPORT. OHRP requested additional information from both NICHD and UAB via 

email between January 2012 and April 2012. OHRP requested informed-consent 

documents from all SUPPORT-involved sites to conduct a comparative analysis of all the 

documents.13 OHRP also requested additional DSMC documents from UAB after 

receiving only some of the open meeting minutes. OHRP received no additional DSMC 

documents because UAB had none. OHRP also requested clarification regarding 

oxygen-saturation practices for premature infants at UAB at the time of the study. 

OHRP discretion in prioritizing evaluations. Although OHRP received a response from 

UAB to its inquiry letter on August 26, 2011, it did not begin its review until 

12 The other arm of the study compared different ventilation treatments. 13 OHRP’s analysis of all informed-consent documents found that none of the documents listed death as a
 

risk and that two listed blindness as a risk. 

OHRP’s Evaluation of SUPPORT (OEI-01-14-00560) 
 

Step 8: On the basis of the institution’s responses and any relevant information received 

from the complainant or other sources, OHRP issues its determination letter(s) to the 

institution pertaining to the allegations and the institution’s program for protecting human 

subjects. 

 

Page 7 – Jerry Menikoff, M.D., J.D. 

January 2012. OHRP staff stated they were unable to commit resources in the interim 

because of ongoing evaluations and insufficient staffing. In addition, SUPPORT had 

completed enrollment, results had been published, and the element of ongoing risk to 

human subjects was absent. 

OHRP discretion in engaging experts. According to OHRP staff, OHRP’s review of 

SUPPORT was based on information included in the SUPPORT protocol and 

informed-consent documents written by the principal investigators themselves and no 

external expert was needed. OHRP staff explained that they rarely consult outside 

experts during an evaluation, but often contact NIH or FDA to obtain more information 

about specific research and related clinical practices, medical devices, or drugs. OHRP 

discussed handling the SUPPORT allegation in a manner similar to that of past 

allegations by identifying experts at NICHD who could discuss the trial and by 

requesting a copy of the protocol and model parental permission form. In addition, 

OHRP staff told us that OHRP had in-house expertise and was familiar with the science 

and debate regarding retinopathy and premature infants. 

OHRP discretion in conducting interviews or site visits. According to OHRP staff, 

OHRP conducts site visits when it has concerns of systemic issues at an institution; when 

certain events occur, such as an unexpected death of a study subject; or when 

correspondence with the institution has been difficult. None of these issues were 

applicable in OHRP’s evaluation of SUPPORT. 

OHRP issued a determination letter to UAB and RTI on February 11, 2013. RTI 

contacted OHRP and requested that OHRP remove it from the determination letter 

because of its limited involvement in the trial. OHRP removed RTI from the letter and 

reissued it on March 7, 2013. In its determination letter, OHRP copied UAB’s principal 

investigator on SUPPORT along with the principal investigators at each institution in the 

multisite trial. 

OHRP’s determination letter addressed in detail the specific noncompliance with Federal 

regulations at 45 CFR 46.11(a)(2) that require a description in the informed-consent 

document of any reasonably foreseeable risks and discomforts to the subject. According 

to OHRP staff, the determination letter included significant detail so that it could serve as 

a resource for the research community. 

OHRP’s procedures specify eight possible outcomes for evaluations, ranging from 

identifying no issues of noncompliance to recommending suspension and debarment of 

an institution or investigator. The determination letter to UAB aligns with one possible 

outcome that OHRP described in its procedures, i.e., a determination that the research 

OHRP’s Evaluation of SUPPORT (OEI-01-14-00560) 
Step 9: If OHRP makes no determinations of noncompliance or determines that 

noncompliance has been adequately addressed through corrective action, OHRP concludes 

the evaluation and informs the institution of this final outcome in writing. 

Step 10: OHRP informs the complainant in writing of OHRP’s determinations and any 

corrective actions taken by the institution upon completion of the evaluation. 

 

Page 8 – Jerry Menikoff, M.D., J.D. 

project as conducted was out of compliance with one or more requirements of the Federal 

regulations. OHRP procedures require that in such an instance the institution develop 

and implement corrective actions. Specifically, OHRP required UAB to provide a plan to 

its IRB to ensure that its approved informed-consent documents include the elements of 

45 CFR § 46.116(a). 

OHRP discretion in copying all institutions. OHRP conducted its evaluation at the lead 

institution only, but OHRP copied all institutions involved in the study to educate them 

regarding the issues it examined. OHRP staff told us that OHRP’s determination letters 

are commonly reviewed by the broader research community. OHRP staff reported that 

the agency’s primary purpose in overseeing federally funded research is educational 

rather than punitive. Furthermore, staff referenced OHRP’s common practice of limiting 

evaluations to one or two institutions in multisite studies and copying the others. They 

said that conducting one evaluation and making one determination is more efficient and 

achieves the same impact as the alternative—in this case, conducting 23 separate but 

similar evaluations. 

OHRP discretion in focusing on one regulatory concern. In its original inquiry letter, 

OHRP listed two concerns with SUPPORT’s informed-consent documents’ not 

adequately addressing two basic elements required by Federal regulations: 

(1) a description of any reasonably foreseeable risks and discomforts and 

(2) an explanation of the purposes of the research. OHRP staff reported that the agency 

chose to focus its determination letter on the failure to describe in the informed-consent 

document any reasonably foreseeable risks and discomforts. The staff stated that they 

made this decision because they thought it would be confusing to address both concerns. 

OHRP staff explained that OHRP letters tend to focus on the central regulatory issue, and 

in this case, they believed that the issue was that human subjects were not adequately 

informed of the risks of participating in the study. 

OHRP issued a determination letter, so this step was not applicable. 

At the time of our review (i.e., 2013), OHRP’s evaluation of SUPPORT was not final and 

OHRP had not informed the complainant of its determination. 

OHRP’s Evaluation of SUPPORT (OEI-01-14-00560) 
Step 11: An institution or complainant may request that the Director of OHRP reconsider 

any determinations resulting from a for-cause compliance oversight evaluation. 

 

 

 

 

 

 

Page 9 – Jerry Menikoff, M.D., J.D. 

No evidence exists that UAB asked the Director of OHRP to reconsider OHRP’s 

determination. Rather, UAB responded to OHRP’s determination on March 22, 2013, 

with a list of corrective actions that the institution had implemented to ensure that 

approved informed-consent documents would include and would adequately address the 

basic elements of consent as required by Federal regulations. These corrective actions 

included a revision to UAB’s template for informed-consent documents; the creation of a 

new protocol checklist; and a reminder to the UAB staff of the IRB that all risks must be 

described, even when treatment falls within the parameters of standard of care. 

OHRP discretion in maintaining its determination. In mid-April 2013, NIH contacted 

OHRP and raised concerns regarding OHRP’s determination letter. Later that month, 

NIH encouraged OHRP to reverse its determination. OHRP maintained its determination 

but suspended all compliance actions against UAB. In a followup letter to UAB on 

June 4, 2013, OHRP committed to providing guidance to address the appropriate way to 

communicate risks to human subjects enrolled in research involving different treatments 

within the standard of care. On August 28, 2013, HHS held a public meeting to discuss 

the protection of human subjects in such research. 

SUMMARY OF EVENTS FOLLOWING OHRP’S DETERMINATION 

In the time since OHRP issued its determination letter in March 2013, additional 

important events and discussion have taken place. On April 10, 2013, a consumer 

advocacy group brought the determination letter to the attention of the public by sending 

an open letter to HHS Secretary Kathleen Sebelius. The group agreed with OHRP’s 

finding that the informed-consent document was inadequate, but alleged that OHRP had 

“failed to demand adequate and meaningful corrective actions by HHS, the medical 

centers that conducted this research, and the IRBs that reviewed and approved it.” 

After the group released its letter, SUPPORT and OHRP’s determination received 

significant attention in the popular media and in professional journals. Prominent 

scholars, physicians, and bioethicists wrote to the editor of The New England Journal of 

Medicine expressing a range of views. Some argued that randomizing infants to different 

oxygen-saturation ranges within a standard of care may increase risk for study subjects. 14 

These individuals agreed with OHRP that the informed-consent documents used in 

SUPPORT were inadequate. Others argued that treatments within a standard of care, by 

definition, cannot increase risk; that the risk of death in SUPPORT was not supported by 

current research; and that all premature infants have an increased risk of death as a result 

of their condition.15, 16 These individuals considered OHRP’s determination regarding 

the informed-consent document to be inappropriate.17 

14 R. Macklin et al., “The OHRP and SUPPORT—Another View.” The New England Journal of Medicine, 

2013; 369: e3, June 26, 2013. 

15 J.M. Drazen et al., “Informed Consent and SUPPORT.” The New England Journal of Medicine, 2013; 

368: 1929–1930, May 16, 2013. 

OHRP’s Evaluation of SUPPORT (OEI-01-14-00560) 
 

 

 

 

Page 10 – Jerry Menikoff, M.D., J.D. 

NIH encouraged OHRP to withdraw its determination letter on SUPPORT, arguing that 

at the start of SUPPORT, researchers did not have scientific evidence to expect a 

difference in mortality between the two target ranges for oxygen saturation. Furthermore, 

NIH acknowledged that OHRP’s determination letter has raised a larger issue: the 

question of how risks should be conveyed when the purpose of the research is to compare 

interventions that are all considered to be within the standard of care. According to NIH 

officials, the outcome of this debate “could affect how we conduct and communicate 

about critical research on interventions that are within the standard of care for all diseases 

and conditions.”18 

In response to the concerns of the research community and NIH, OHRP issued a 

followup letter to UAB on June 4, 2013. OHRP reaffirmed its decision that the 

informed-consent document was inadequate, but acknowledged the difficulty in defining 

reasonably foreseeable risks in research involving interventions considered to be within 

the standard of care. OHRP put on hold compliance actions against UAB relating to 

SUPPORT and committed to providing guidance on this topic. 

On June 26, 2013, HHS announced a public meeting to be held August 28, 2013, on how 

regulations on human subjects protections should be applied to research on interventions 

within the standard of care. Issues for consideration included defining reasonably 

foreseeable risks and what should be disclosed to subjects in such research.19 The 

announcement also stated that HHS was considering changes to OHRP’s compliance 

oversight procedures, including the use of experts during compliance reviews and the 

establishment of an administrative process for appealing OHRP’s determinations.20 HHS 

held this public meeting to gather input as it considered developing guidance on the topic. 

Twenty-seven individuals, including SUPPORT subjects’ parents, bioethicists, 

physicians, and researchers, presented a range of views and provided feedback to OHRP 

on ways to improve oversight of human subjects protections. 

FURTHER DISCUSSION 

We offer the following observations based on this review and the events that have 

occurred since OHRP issued its determination letter in March 2013. Our observations 

relate to the retrospective nature of OHRP’s compliance review of SUPPORT, OHRP’s 

flexibility in its procedures for conducting reviews, and research comparing treatments 

within the standard of care. 

16 D. Magnus and A.L. Caplan, “Risk, Consent, and SUPPORT.” The New England Journal of Medicine, 

2013; 368: 1864–1865, May 16, 2013. 

17 B.S. Wilfond et al., “The OHRP and Support.” The New England Journal of Medicine, 2013; 368: e36,
 

June 20, 2013. 

18 K.L. Hudson et al., “In Support of SUPPORT—A View from the NIH.” The New England Journal of
 

Medicine, 2013; 368: 2349–2351, June 20, 2013. 

19 78 Fed. Reg. 38343, 38345 (June 26, 2013). 

20 Ibid. 

OHRP’s Evaluation of SUPPORT (OEI-01-14-00560) 
 

 

 

Page 11 – Jerry Menikoff, M.D., J.D. 

Retrospective nature of the SUPPORT review 

OHRP’s ability to influence directly the informed-consent process for a particular study 

is limited. Federal regulations rely on IRBs and research institutions, as well as the 

funders of research, to protect human subjects through initial determination of the ethics 

and merits of any particular study and through the informed-consent process. 

OHRP received the complaint about the SUPPORT trial 2 years after patient enrollment 

in the trial had concluded. The study had been completed and the results had already 

been published. As a result, any actions that OHRP took could not have affected the 

course of the research, the informed-consent documents, or the enrollment of individual 

subjects in the study. Although OHRP’s review of SUPPORT was retrospective, its 

determination letter addressed the institution’s failure to include or adequately address 

reasonably foreseeable risks. The letter required the institution to provide a plan that its 

IRB will use to ensure and adequately address the basic elements of consent in future 

research involving human subjects, as required by Federal regulations. OHRP shared this 

determination letter with the other 22 institutions involved in the research and posted it 

on its Web site to educate those institutions about expectations for this type of research. 

Flexibility in conducting compliance reviews 

OHRP’s 11-step process for conducting evaluations and the considerable discretion 

provided therein allow it to prioritize and shape its reviews in response to the specific 

circumstances of each allegation. OHRP can largely choose the specific allegations that 

it evaluates, as well as the content of any determination letters that it issues. Its 

compliance activities are not codified in Federal statute or regulations; rather, they appear 

in procedures issued by the agency. 

In its review of SUPPORT, OHRP exercised its discretion to focus the evaluation on 

risks known at the start of the trial and on whether those risks had been communicated in 

the initial informed-consent document. Furthermore, in focusing its evaluation on the 

initial informed-consent documents, OHRP exercised its discretion not to review other 

aspects, such as whether any new risks were identified during the trial that should have 

been communicated to human subjects. Such risks might be found, for example, by the 

DSMC, which reviews data that might not be available to the funders of the research or to 

OHRP.21 

Differing views on research comparing treatments within the standard of care 

Finally, the discussions about SUPPORT have drawn attention to the protection of human 

subjects in research that compares treatments within the current standard of medical care. 

The goal of such research is to improve current knowledge and practice by determining 

the more effective intervention for diseases and conditions. OHRP’s evaluation and 

21 In our review, we became aware that OHRP may not have access to the minutes and records from the 

closed DSMC meetings. We are following up with OHRP to seek clarification on its authority to obtain all 

DSMC records when needed. 

OHRP’s Evaluation of SUPPORT (OEI-01-14-00560) 
 

Page 12 – Jerry Menikoff, M.D., J.D. 

determination made public fundamental differences on this topic, not just within the 

research and patient advocacy community, but also among government agencies that fund 

and oversee this research. 

For example, in an article published in The New England Journal of Medicine, NIH 

leadership wrote: “[W]e respectfully disagree with the conclusions of the OHRP, which 

we believe resulted from a fundamental difference in interpretations of how the 

regulations should apply to the state of scientific understanding when the SUPPPORT 

study commenced.”22 Given the differing perspectives of NIH and OHRP, HHS is 

reexamining this issue to better ensure that appropriate protections of human subjects are 

in place, while not discouraging progress in scientific research. 

CONCLUSION 

Our review of OHRP’s for-cause compliance evaluation of SUPPORT found that it 

followed its published procedures in conducting that evaluation. Those procedures are 

broad, meaning that the office has substantial discretion in how it carries out any one 

evaluation. 

This report is being issued directly in final form because it contains no recommendations. 

If you have comments or questions about this report, please provide them within 60 days. 

Please refer to report number OEI-01-14-00560 in all correspondence. 

Attachment 

22 K.L. Hudson et al., “In Support of SUPPORT—A View from the NIH.” The New England Journal of 

Medicine, 2013; 368:2349-2351, June 20, 2013. 

OHRP’s Evaluation of SUPPORT (OEI-01-14-00560) 
 Attachment: 

 Chronology of OHRP’s Evaluation of SUPPORT 

 (from OHRP’s 5/24/11 receipt of complaint to UAB’s 3/22/13 response 

 to OHRP’s determination letter)

May 24 OHRP receives an email complaint alleging that SUPPORT was 

unethical and researchers did not obtain informed consent from 

participants.

May 25 OHRP confirms SUPPORT is funded by Eunice Kennedy Shriver 

National Institute of Child Health (NICHD) Neonatal Research Network 

and that OHRP has jurisdiction to conduct an evaluation.

May 31 OHRP responds to the complainant acknowledging that the complaint 

was received and is under review.

June 6 OHRP receives the SUPPORT protocol and informed-consent template 

from NICHD and conducts a preliminary review. OHRP identifies some 

preliminary concerns with the informed-consent document. 

July 7 OHRP initiates a conference call with NICHD to discuss the complaint.

July 18 OHRP opens an evaluation by sending an inquiry letter to UAB (the lead 

institution of SUPPORT) and RTI (the SUPPORT data-coordinating 

center). 

OHRP informs the complainant of its action the same day.

Aug. 26 UAB responds to OHRP’s inquiry letter, stating that it found no 

violations during its investigation. 

Jan. OHRP requests additional information from UAB, such as DSMC 

documents and clarification on aspects of SUPPORT.

June OHRP drafts its determination letter to UAB. OHRP asks for additional 

information from UAB and redrafts a few versions before finalizing.

Feb. 11 OHRP sends its final determination letter to UAB and RTI. 

Mar. 7 In response to RTI’s request, OHRP removes RTI from the determination 

letter and reissues it.

Mar. 22 UAB responds to OHRP’s determination letter with corrective actions.

2011 

2012 

2013