Exemption Categories

• Category 1
• Category 2
• Category 3
• Category 4
• Category 5
• Category 6
• Category 7
• Category 8

Approval Criteria
Waivers or Alterations of Informed Consent
Exception to Informed Consent for Screening, Recruiting or Determining Eligibility
Waiving Documentation of Consent
Research with Children
Informed Consent for Non-Exempt Research

Research conducted in established or commonly accepted educational settings that specifically involves normal educational practices that are not likely to adversely impact students’ opportunity to learn required educational content or the assessment of educators who provide instruction.  This includes most research on regular and special education instructional strategies, and research on the effectiveness of or the comparison among instructional techniques, curricula, or classroom management methods.

 NOTE:   Research involving normal educational practices in this category may include various methods and types of data (including identifiable data), such as: 

·         student course grades, test scores, assignments, journals

·         videotapes, photos, or observation of classroom activity

·         curriculum-related interviews or questionnaires with students, teachers, parents, administrators

 Examples of educational research which may not qualify under this category include:

·         Research conducted by department or program chairs who also hold responsibility for evaluation of faculty,

·         Research involving the assignment of students to either a proven educational technique or a novel educational technique (i.e. experimental or quasi-experimental design).

 When academic records will be used for research, the investigator is responsible for compliance with the Family Educational Rights and Privacy Act (FERPA).  Refer to SOP 11.1 Use of Confidential Records and the Office of Registration and Records for more information.

Research that includes only interactions involving educational tests (cognitive, diagnostic, aptitude, achievement), survey procedures, interview procedures, or observation of public behavior (including visual or auditory recording) if at least one of the following criteria is met:

(i)            The information obtained is recorded by the investigator in such a manner that the identity of the human subjects cannot readily be ascertained, directly or through identifiers linked to the subjects;

(ii)           Any disclosure of the human subjects’ responses outside the research would not reasonably place the subjects at risk of criminal or civil liability or be damaging to the subjects’ financial standing, employability, educational advancement, or reputation; or

(iii)          The information obtained is recorded by the investigator in such a manner that the identity of the human subjects can readily be ascertained, directly or through identifiers linked to the subjects, and an IRB conducts a limited IRB review to make the determination required by §___.111(a)(7)

NOTE: This category has limited applicability where children will be involved: research involving educational tests, or public observation where the investigator does not take part in the activities being observed.  Surveys or interviews of children are not included in this category.

Research involving benign behavioral interventions in conjunction with the collection of information from an adult subject through verbal or written responses (including data entry) or audiovisual recording if the subject prospectively agrees to the intervention and information collection and at least one of the following criteria is met:

(A)   The information obtained is recorded by the investigator in such a manner that the identity of the human subjects cannot readily be ascertained, directly or through identifiers linked to the subjects;

(B)  Any disclosure of the human subjects’ responses outside the research would not reasonably place the subjects at risk of criminal or civil liability or be damaging to the subjects’ financial standing, employability, educational advancement, or reputation; or

(C)  The information obtained is recorded by the investigator in such a manner that the identity of the human subjects can readily be ascertained, directly or through identifiers linked to the subjects, and an IRB conducts a limited IRB review to make the determination required by §___.111(a)(7).

Provided all such criteria are met, examples of such benign behavioral interventions would include having the subjects play an online game, having them solve puzzles under various noise conditions, or having them decide how to allocate a nominal amount of received cash between themselves and someone else.

If the research involves deceiving the subjects regarding the nature or purposes of the research, this exemption is not applicable unless the subject authorizes the deception through a prospective agreement to participate in research in circumstances in which the subject is informed that he or she will be unaware of or misled regarding the nature or purposes of the research.

This category may not include children.

Secondary research for which consent is not required:  Secondary research uses of identifiable private information or identifiable biospecimens, if at least one of the following criteria is met:

(i)            The identifiable private information or identifiable biospecimens are publicly available;

(ii)           Information, which may include information about biospecimens, is recorded by the investigator in such a manner that the identity of the human subjects cannot readily be ascertained directly or through identifiers linked to the subjects, the investigator does not contact the subjects, and the investigator will not re-identify subjects;

(iii)          The research involves only information collection and analysis involving the investigator’s use of identifiable health information when that use if regulated under 45 CFR parts 160- and 164, subparts A and E [HIPAA], for the purposes of “health care operations” or “research” as those terms are defined at 45 CFR 164.501 or for “public health activities and purposes” as described under 45 CFR 164.512(b); or

(iv)          The research is conducted by, or on behalf of, a Federal department or agency using government-generated or government-collected information obtained for nonresearch activities, if the research generates identifiable private information that is or will be maintained on information technology that is subject to and in compliance with section 208(b) of the E-Government Act of 2002, 44 U.S.C. 3501 note, if all of the identifiable private information collected, used, or generated as part of the activity will be maintained in systems of records subject to the Privacy Act of 1974, 5 U.S. C. 552a, and if applicable, the information used in the research was collected subject to the Paperwork Reduction Act of 1995, 44 U.S. C. 3501 et seq.

*     By “secondary research,” this exemption is referring to re-using identifiable information and identifiable biospecimens that are collected for some other ‘primary” or “initial” activity.  The information or biospecimens that are covered by this exemption would generally be found by the investigator in some type of records (in the case of information) or some type of tissue repository (such as a hospital’s department for storing clinical pathology specimens).

*      In relation to Exemption 4(i), examples of identifiable information or identifiable biospecimens which are publicly available, include:

o   Use of archives in a public library,

o   Government or other institutional records where public access is provided on request,

o   From a commercial entity if the information is provided to members of the public on request of if the only requirement for obtaining the information is paying a user fee, registering or signing in as a visitor to an archive,

o   A commercial entity made identifiable biospecimens publicly available to anyone on request or for a fee.

*      NDSU is NOT a HIPAA Covered Entity (CE); therefore, exemption 4(iii) may not be used unless the research will take place at a covered entity and that entity determines through their IRB procedures that the exemption applies or NDSU Formally enters into a Business Associate Agreement with the CE.

*       It is important to recognize that this exemption does not cover any primary collections of either information or biospecimens.  For example, if an investigator wants to collect information directly from research subjects by asking them to complete a questionnaire, that would not be covered by this exemption.  If an investigator wants to collect biospecimens by having subjects swab their cheek, that would similarly not be covered by this exemption.

 Refer to SOPs 11.2, Human Biological Specimens and 11.3, Secondary Analysis of Existing Data for more information.

Research and demonstration projects that are conducted or supported by a Federal department or agency, or otherwise subject to the approval of department or agency heads (or the approval of the heads of bureaus or other subordinate agencies that have been delegated authority to conduct the research and demonstration projects), and that are designed to study, evaluate, improve, or otherwise examine public benefit or service programs, including procedures for obtaining benefits or services under those programs, possible changes in or alternatives to those programs or procedures, or possible changes in methods or levels of payment for benefits or services under those programs. Such projects include, but are not limited to, internal studies by Federal employees, and studies under contracts or consulting arrangements, cooperative agreements, or grants. Exempt projects also include waivers of otherwise mandatory requirements using authorities such as sections 1115 and 1115A of the Social Security Act, as amended.

(i)            Each Federal department or agency conducting or supporting the research and demonstration projects must establish, on a publicly accessible Federal website or in such other manner as the department or agency head may determine, a list of the research and demonstration projects that the Federal department or agency conducts or supports under this provision.  The research or demonstration project must be published on this list prior to commencing the research involving human subjects.

 NOTE: Guidance from OHRP indicates that institutions should consult the HHS funding agency before invoking this exemption.  In addition, it clarifies that:

 1)    The program under study must deliver a public benefit (e.g., financial or medical benefits as provided under the Social Security Act) or service (e.g., social, supportive, or nutrition services as provided under the Older Americans Act).

2)    The research or demonstration project must be conducted pursuant to specific federal statutory authority.

3)    There must be no statutory requirement that the project be reviewed by an Institutional Review Board (IRB).

4)    The project must not involve significant physical invasions or intrusions upon the privacy of participants.

Taste and food quality evaluation and consumer acceptance studies,

 (i)  if wholesome foods without additives are consumed,  or

 (ii) if a food is consumed that contains a:

*  food ingredient or additive at or below the level and for a use found to be safe by the Food and Drug Administration, or

*  agricultural chemical or environmental contaminant at or below the level found to be safe, approved by the Environmental Protection Agency or the Food Safety and Inspection Service of the U.S. Department of Agriculture.

Storage or maintenance of identifiable private information or identifiable biospecimens for potential secondary research use if an IRB conducts a limited IRB review and makes the determinations required by §46.111(a)(8).

Research involving the use of identifiable private information or identifiable biospecimens for secondary research use, if the following criteria are met:

(i) Broad consent for the storage, maintenance, and secondary research use of the identifiable private information or identifiable biospecimens was obtained in accordance with §46.116(a)(1) through (4), (a)(6), and (d);

(ii) Documentation of informed consent or waiver of documentation of consent was obtained in accordance with §46.117;

(iii) An IRB conducts a limited IRB review and makes the determination required by §46.111(a)(7) and makes the determination that the research to be conducted is within the scope of the broad consent referenced in paragraph (d)(8)(i) of this section; and (iv) The investigator does not include returning individual research results to subjects as part of the study plan. This provision does not prevent an investigator from abiding by any legal requirements to return individual research results.

(1)  Risks to subjects are minimized:

(i) By using procedures that are consistent with sound research design and that do not unnecessarily expose subjects to risk;

(ii) Whenever appropriate, by using procedures already being performed on the subjects for diagnostic or treatment purposes.

(2) Risks to subjects are reasonable in relation to anticipated benefits, if any, to subjects, and the importance of the knowledge that may reasonably be expected to result.  In evaluating risks and benefits, the IRB should consider only those risks and benefits that may result from the research (as distinguished form risks and benefits of therapies subjects would receive even if not participating in the research).  The IRB should not consider possible long-range effects of applying knowledge gained in the research (e.g., the possible effects of the research on public policy) as among those research risks that fall within the purview of its responsibility.

Categorize potential risk level:
no more than minimal risk*
minor increase over minimal risk
more than minor increase over minimal risk

Categorize potential benefits:
no prospect of direct benefit to individuals, but is likely to yield generalizable knowledge
prospect of direct benefit to individuals

* Minimal risk:  the probability and magnitude of harm or discomfort anticipated in the research are not greater in and of themselves than those ordinarily encountered in daily life or during the performance of routine physical or psychological examinations or tests.

(3) Selection of subjects is equitable.  In making this assessment the IRB should take into account the purposes of the research and the setting in which the research will be conducted.  The IRB should be particularly cognizant of the special problems of research that involves a category of subjects who are vulnerable to coercion or undue influence, such as children, prisoners, individuals with impaired decision-making capacity, or economically or educationally disadvantaged persons.

(4) Informed consent will be sought from each prospective subject or the subject’s legally authorized representative, in accordance with, and to the extent required by §___.116.

The Informed Consent contains the appropriate required elements:

(i) Informed consent must begin with a concise and focused presentation of the key information that is most likely to assist a prospective subject or legally authorized representative in understanding the reasons why one might or might not want to participate in the research.  This part of the informed consent must be organized and presented in a way that facilitates comprehension.

(ii) Informed consent as a whole must present information in sufficient detail relating to the research, and must be organized and presented in a way that does not merely provide lists of isolated facts, but rather facilitates the prospective subject’s or legally authorized representative’s understanding of the reasons why one might or might not want to participate.

(5)  Documentation of Informed Consent.  Informed Consent will be appropriately documented or appropriately waived in accordance with §___.117.

(6)  Data Monitoring.  When appropriate, the research plan makes adequate provision for monitoring the data collected to ensure the safety of subjects.

(7)  Privacy and Confidentiality.  When appropriate, there are adequate provisions to protect the privacy of subjects and to maintain the confidentiality of data.

When some or all of the subjects are likely to be vulnerable to coercion or undue influence, such as children, prisoners, individuals with impaired decision-making capacity, or economically or educationally disadvantaged persons, additional safeguards have been included in the study to protect the rights and welfare of these subjects.

§___.116(e) Waiver or alteration of consent in research involving public benefit and service programs conducted by or subject to the approval of state or local officials: 

The IRB may waive the requirement to obtain informed consent, or approve a consent procedure that omits some, or alters some or all, of the elements of informed consent set forth in §___.116(b) and (c) provided that the following criteria are met:

(i) The research or demonstration project is to be conducted by or subject to the approval of state or local government officials and is designed to study, evaluate, or otherwise examine:

(A) Public benefit or service programs;

(B) Procedures for obtaining benefits or services under those programs;

(C) Possible changes in or alternatives to those programs or procedures; or

(D) Possible changes in methods or levels of payment for benefits or services under those programs; and

(ii) The research could not practicably be carried out without the waiver or alteration.

§___.116(f) General waiver or alteration of consent:

The IRB may waive the requirement to obtain informed consent, or approve a consent procedure that omits some, or alters some or all, of the elements of informed consent set forth in §___.116(b) and (c) provided that the following criteria are met:

(i) The research involves no more than minimal risk to the subjects;

(ii) The research could not practicably be carried out without the requested waiver or alteration;

(iii) If the research involves using identifiable private information or identifiable biospecimens, the research could not practicably be carried out without using such information or biospecimens in an identifiable format;

(iv) The waiver or alteration will not adversely affect the rights and welfare of the subjects; and

(v) Whenever appropriate, the subjects or legally authorized representatives will be provided with additional pertinent information after participation.

An IRB may approve a research proposal in which an investigator will obtain information or biospecimens for the purpose of screening, recruiting, or determining the eligibility of prospective subject without the informed consent of the prospective subject or the subject's legally authorized representative, if either of the following conditions are met:

(1) The investigator will obtain information through oral or written communication with the prospective subject or legally authorized representative, or

(2) The investigator will obtain identifiable private information or identifiable biospecimens by accessing record or stored identifiable biospecimens.

An IRB may waive the requirement for the investigator to obtain a signed informed consent form for some or all subjects if it finds any of the following:

(i) That the only record linking the subject and the research would be the informed consent form and the principal risk would be potential harm resulting from a breach of confidentiality.  Each subject (or legally authorized representative) will be asked whether the subject wants documentation linking the subject with the research, the subject's wishes will govern;

(ii) That the research presents no more than minimal risk of harm to subjects and involves no procedures for which written consent is normally required outside of the research context; or

(iii)  If the subjects or legally authorized representatives are members of a distinct cultural group or community in which signing forms is not the norm, that the research presents no more than minimal risk of harm to subjects and provided there is an appropriate alternative mechanism for documenting that informed consent was obtained.

Children are persons who have not attained the legal age for consent to treatments or procedures involved in the research, under the applicable law of the jurisdiction in which the research will be conducted.

The IRB must find and document that:

• Adequate provisions re made for soliciting the assent of the children and the permission of their parents or guardians as set forth in §46.408

The research is approvable under one of the following permissible categories:

§46.404 Research not involving greater than minimal risk.

§46.405 Research involving greater than minimal risk but presenting the prospect of direct benefit to the individual subjects.

The IRB may approve research under this category if:

(a) The risk is justified by the anticipated benefit to the subjects;

(b) The relation of the anticipated benefit to the risk is at least as favorable to the subjects as that presented by available alternative approaches; and

§46.406 Research involving greater than minimal risk and no prospect of direct benefit to individual subjects, but likely to yield generalizable knowledge about the subject's disorder or condition.

(a) The risk represents a minor increase over minimal risk;

(b) The intervention or procedure presents experiences to subjects that are reasonably commensurate with those inherent in their actual or expected medical, dental, psychological, social, or educational situations;

(c) The intervention or procedure is likely to yield generalizable knowledge about the subjects' disorder or condition which is of vital importance for the understanding or amelioration of the subjects' disorder or condition.

§46.407 Research not otherwise approvable which presents an opportunity to understand, prevent, or alleviate a serious problem affecting the health or welfare of children.

(a) the IRB finds that the research presents a reasonable opportunity to further the understanding, prevention, or alleviation of a serious problem affecting the health or welfare of children; and

(b) the Secretary, after consultation with a panel of experts in pertinent disciplines (for example: science, medicine, education, ethics, law) and following opportunity for public review and comment, has determined either:

(1) that the research in fact satisfies the conditions of §46.404, §46.405, or §46.406, as applicable, or

(2) the following:

(i) the research presents a reasonable opportunity to further the understanding, prevention, or alleviation of a serious problem affecting the health or welfare of children;

(ii) the research will be conducted in accordance with sound ethical principles;

(iii) adequate provisions are made for soliciting the assent of children and the permission of their parents or guardians, as set forth in §46.408.

 §46.409 Wards.

(a) Children who are wards of the state or any other agency, institution, or entity can be included in research approved under §46.406 or §46.407 only if such research is:

(1) Related to their status as wards; or

(2) Conducted in schools, camps, hospitals, institutions, or similar settings in which the majority of children involved as subjects are not wards.

(b) If the research is approved under paragraph (a) of this section, the IRB shall require appointment of an advocate for each child who is a ward, in addition to any other individual acting on behalf of the child as guardian or in loco parentis. One individual may serve as advocate for more than one child. The advocate shall be an individual who has the background and experience to act in, and agrees to act in, the best interests of the child for the duration of the child's participation in the research and who is not associated in any way (except in the role as advocate or member of the IRB) with the research, the investigator(s), or the guardian organization.

Informed consent must begin with a concise and focused presentation of the key information that is most likely to assist a prospective subject or legally authorized representative in understanding the reasons why one might or might not want to participate in research.  This part of the informed consent must be organized and presented in a way that facilitates comprehension.

(1)   A statement that the study involves research, an explanation of the purposes of the research and the expected duration of the subject’s participation, a description of the procedures to be followed, and identification of any procedures that are experimental;

(2)  A description of any reasonably foreseeable risks or discomforts to the subject;

(3)  A description of any benefits to the subject or to others that may reasonably be expected from the research; 

(4)   A disclosure of appropriate alternative procedures or courses of treatment, if any, that might be advantageous to the subject;

(5)   A statement describing the extent, if any, to which confidentiality of records identifying the subject will be maintained;

(6)   For research involving more than minimal risk, an explanation as to whether any compensation and an explanation as to whether any medical treatments are available if injury occurs and, if so, what they consist of, or where further information may be obtained;

(7)  An explanation of whom to contact for answers to pertinent questions about the research and research subjects’ rights, and whom to contact in the event of a research-related injury to the subject;

(8)  A statement that participation is voluntary, refusal to participate will involve no penalty or loss of benefits to which the subject is otherwise entitled, and the subject may discontinue participation at any time without penalty or loss of benefits to which the subjects is otherwise entitled; and

(9)  One of the following statements about any research that involves the collection of identifiable private information or identifiable biospecimens:

a.       A statement that identifiers might be removed from the identifiable private information or identifiable biospecimens and that, after such removal, the information or biospecimens could be used for further research studies or distributed to another investigator for future research studies without additional informed consent from the subject or the legally authorized representative, if this might be a possibility; or

b.       A statement that subject’s information or biospecimens collected as part of the research, even if identifiers are removed, will not be used or distributed for future research studies.

(1)     A statement that the particular treatment or procedure may involve risks to the subject (or to the embryo or fetus, if the subject is or may become pregnant) that are currently unforeseeable;

(2)     Anticipated circumstances under which the subject’s participation may be terminated by the investigator without regard to the subject’s or the legally authorized representative’s consent;

(3)     Any additional costs to the subject that may result from participation in the research;

(4)     The consequences of a subject’s decision to withdraw from the research and procedures for orderly termination of participation by the subject;

(5)     A statement that significant new findings developed during the course of the research that may relate to the subject’s willingness to continue participation will be provided to the subject;

(6)     The approximate number of subjects involved in the study;

(7)     A statement that the subject’s biospecimens (even if identifiers are removed) may be used for commercial profit and whether the subject will or will not share in this commercial profit;

(8)     A statement regarding whether clinically relevant research results, including individual research results, will be disclosed to subjects, and if so, under what conditions; and

(9)     For research involving biospecimens, whether the research will (if known), or might include whole genome sequencing (i.e., sequencing of a human germline or somatic specimen with the intent to generate the genome or exome sequence of that specimen.