Right-to-Try Bills Push the Needle on Risk

Tony Hagen @oncobiz
Published: Sunday, Dec 24, 2017
Diana Zuckerman, PhD
Diana Zuckerman, PhD
Congressional “right-to-try” legislation could make investigational drugs available to desperately ill patients sooner in the trials process, but there are substantial risks, said a panel of experts at the Patient-Centered Oncology Conference, held November 16-17 in Philadelphia, Pennsylvania.

Earlier in the clinical trials process, less is known about the drugs, which may be highly toxic and may have no efficacy. Furthermore, the House of Representatives’ version of the bill would allow companies to charge any amount for access to their investigational drugs. That is a scary proposition due to the potential for cost exploitation, members of the panel said.

“Any of those drugs can be made available to patients who are desperate and who might be encouraged to [try them] by an unscrupulous person or company that is selling the product for perhaps thousands of dollars,” said panelist Diana Zuckerman, PhD, who is president of the National Center for Health Research in Washington, DC.

Currently, for the purposes of expanded access, companies can charge only for the cost to produce the drug, or they can charge nothing at all. This removes the profit motive. “A lot of times, the companies say no, and a lot of times they say no for good reasons. They know that this isn’t something that is likely to work,” she said.

Whereas now patients may apply for access to investigational drugs that have passed phase II and phase III trials, the proposed legislation would make drugs available that have successful phase I trial results and remain under investigation. The current standards were meant to ensure that at least some evidence existed for a belief that a drug could help a patient. The right-to-try legislation would weaken that standard—perhaps too much, members of the panel said.

Even if a phase I trial has been successful, it most likely involved healthy volunteers, or patients who were substantially healthier than the typical patient who would seek expanded access as a last resort, having exhausted all approved treatment options. For this reason, the evidence may mislead a determination whether an investigational drug would have any value for an applicant through an expanded access program, panelists said. One of the problems, they said, is that legislators are under intense pressure to make these drugs more available to patients. A case in point is the Josh Hardy fight of several years ago over an antiviral agent being investigated by Chimerix of Durham, North Carolina. The company was demonized in the press until it relented and made the agent available to the young boy, whose family wanted the drug to manage a virus that resulted from immunosuppression treatment. The boy’s condition did improve following use of the drug, but Hardy eventually succumbed to his illness.

The right-to-try legislation, a version of which has already been approved in the Senate, would virtually remove the FDA from playing an oversight role in access to these investigational drugs. Currently, patients who want access must obtain sponsorship from their physician, must obtain permission from the biopharmaceutical company making or testing the drug, must obtain approval from the FDA, and also must obtain approval from a medical institution’s institutional review board (IRB).

These steps all take precious time away from the patient who may have only weeks to live, which is one of the objections to current policy. But the panelists noted that each of these stages represents an important safeguard and it is important keep protections in place while streamlining the process to ensure that drugs are available to patients who could truly benefit from them.

The FDA has made enormous strides in recent years to speed up the drug approvals process and to simplify the application process for expanded access to investigational drugs. The FDA announced in October that consent would now be needed from only 1 IRB member as opposed to the full panel.

The FDA’s track record on approving investigational drugs for expanded access is at 99% and this demonstrates the agency’s commitment to this program, the panelists noted, but they said the FDA is still much too soft on insisting on documentation compliance. Once these patients gain access, their doctors are not submitting reports on adverse events and outcomes as often as they should.

“Compliance, as I understand from the FDA, is as low as 60% in providing reports,” said panelist Marjorie A. Speers, PhD, executive director of the WCG Foundation, of Atlanta, Georgia, which advocates for patients with expanded access needs. “One thing we need to do is educate physicians who decide they want to use an investigational drug through expanded access. They need to know what their roles and regulatory responsibilities are.”

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