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Emergency Use

Emergency Use of a Test Article
Overview of the Emergency Use Procedure

The following is a brief overview of the emergency use process. More detailed information is found in the sections below.

If you believe you need to submit a request to administer a test article in an emergent situation in which there is no have time to obtain prior IRB approval, (see additional information below to be sure your situation qualifies), please complete and submit the Emergency Use Request Form.

The physician reviews the FDA definition of life threatening [21 CFR 56.102(d)] and can verify that the proposed use of an investigational drug or device meets that definition. The physician should contact the WVU OHRP or IRB for consultation regarding the potential emergency use. If the definition of life threatening is not met, emergency use procedures must not be followed. For additional options, consult the IRB guidance on Expanded Access for Investigational Drugs and Expanded Access for Unapproved Devices.


If using an investigational drug or biologic, the physician must either:

  1. Obtain an emergency use IND number from the FDA; or
  2. Obtain access to the drug under an existing IND number; the IND holder (usually the drug manufacturer) must authorize the drug to be used under the emergency use regulations, which may require contacting the FDA.
Emergency use may be requested through the FDA by telephone, fax, or other means of electronic communication. If there is an emergency that requires the patient to be treated before a written submission can be made, FDA may authorize use of the investigational drug to begin without a written submission. The FDA reviewing official may authorize the emergency use by telephone.
  • For investigational biological drug products regulated by the Center for Biologics Evaluation: (301) 827-1800 or 1-800-835-4709, ocod@fda.hhs.gov.
  • For all other investigational drugs: (301) 796-3400, druginfo@fda.hhs.gov.
  • After hours: 1-886-300-4374, emergency.operations@fda.hhs.gov.

If using an unapproved medical device the physician has obtained authorization from the IDE sponsor if an IDE exists for the device. If no IDE exists, the physician reports the emergency use to CDRH or CBER.


Informed Consent

Even for emergency use, the treating physician is required to obtain informed consent of the patient or the patient’s legally authorized representative. An informed consent must be submitted to the IRB. Although emergency use is not research, a research consent template may be used to create a consent form for emergency use situations. The drug/device manufacturer may possibly have a consent template available. The IRB consent template may also be used. Language in the consent form must reflect that the treatment is not FDA-approved and the treatment is an option for treating the patient’s life-threatening condition. The consent form must state that the patient is not receiving treatment as part of research.

Additionally, the FDA provides an exception from the requirements of informed consent [ 21 CFR 50.23] as outlined below.

If informed consent cannot be obtained before the use of the test article, both the treating physician and a physician who is not otherwise participating in the clinical investigation must certify all of the following:

  1. The human subject is confronted by a life-threatening situation necessitating use of test article.
  2. Consent cannot be obtained because of an inability to communicate with or obtain consent from the subject.
  3. Time is not sufficient to obtain consent from subject's legal representative.
  4. No alternative generally approved method is available.
  5. If immediate use of the test article is required to save the life of the subject and time is not sufficient to obtain independent determination by another physician, a determination by the treating physician shall be made. This determination is to be reviewed and evaluated in writing by a physician who is not participating in the investigation within 5 business days after use of article. Use the Certification for Emergency Use of a Test Article without Consent [DOC] found on the IRB website and submit the completed certification with the Report of Emergency Use in the ERICA system.

The documentation described above must be submitted to the IRB within 5 business days after the use of a test article.


Emergency Use of a Test Article Without Informed Consent

Background: Even for an emergency use, the investigator is required to obtain informed consent of the participant or the participant’s legally authorized representative unless both the investigator and a physician who is not otherwise participating in the clinical investigation certify in writing all of the following [ 21 CFR 50.23(a)]:

  1. The participant is confronted by a life-threatening situation necessitating the use of the test article.
  2. Informed consent cannot be obtained because of an inability to communicate with, or obtain legally effective consent from, the participant.
  3. Time is not sufficient to obtain consent from the participant's legal representative.
  4. No alternative method of approved or generally recognized therapy is available that provides an equal or greater likelihood of saving the subject's life.

If, in the physician/investigator's opinion, immediate use of the test article is required to preserve the participant's life, and if time is not sufficient to obtain an independent physician's determination that the four conditions above apply, the clinical investigator should make the determination and, within 5 business days after the use of the article, have the determination reviewed and evaluated in writing by a physician who is not participating in the clinical investigation. The investigator must notify the IRB within 5 working days after the use of the test article [ 21 CFR 50.23(c)].

The physician/investigator submits an Emergency Use protocol in WVU+kc system. If there is not sufficient time to submit an Emergency Use protocol in WVU+kc system prior to the treatment, the physician/investigator should submit the Emergency Use Concurrence Request.

  • The emergency use is reported to the IRB in WVU+kc before the treatment is given, unless the patient must be treated immediately. The physician/investigator must make an attempt to obtain concurrence from an IRB Chair, Vice Chair, or Physician IRB member (hereafter called designees), prior to treatment. If the patient must be treated immediately, the physician/investigator can request a concurrence for Emergency Use of a Test Article by completing and submitting an Emergency Use Concurrence Request.
  • If the patient was treated immediately, the emergency use is reported to the IRB in WVU+kc within 5 business days after the treatment.

Possible Determinations

  • If the IRB Chair (or designee) concurs that the proposed or reported activity meets the FDA requirements for exemption from prospective IRB review for emergency use of a test article, the treating physician will receive an acknowledgment from WVU OHRP or the IRB Chair (or designee).
  • If the IRB Chair (or designee) determines that there is time to review a proposed use of the test article (i.e. the test article has not been used yet) at the convened IRB, the physician will be required to complete the entire new study application and the application will not be considered for the exemption from prospective IRB review for emergency use.
  • If the IRB Chair (or designee) determines that a reported use of the test article (i.e. the test article has already been used) does not meet the definition of emergency use, you will be required to submit a protocol deviation and the IRB will review the use for non-compliance.


Emergency Use: Background and Regulation

The FDA defines "emergency use" as the use of a test article on a human subject in a life-threatening situation in which no standard acceptable treatment is available, and in which there is not sufficient time to obtain IRB approval [21CFR 56.102 (d)]. The FDA regulates use of all investigational drugs and devices, including emergency use. The IRB must be notified of all emergency use, even though it is not considered research.

Often, the term "emergency use" creates confusion because there are three different areas of concern. This web page offers more detailed information about each of these issues:

  1. IRB requirements: IRB approval is required for the use of a test article on a human subject unless there is not enough time to obtain approval at a convened board (even if the study is for only one patient). This means that no board will convene prior to the need to administer the treatment to the subject. This section explains how the IRB review process works in an emergency situation.
  2. Informed consent requirements: Informed consent must be obtained from a subject. A consent form must be prepared for use and submitted to the IRB. Regulations allow for an exception from informed consent in certain emergency situations. This section explains when the exception from informed consent is allowable.
  3. Requirements for the test article: These requirements deal with how the FDA allows the shipment and distribution of investigational drugs and devices in emergency situations. If an emergency IND or IDE is obtained, it does not necessarily qualify a protocol for the exemption from prospective IRB review or an exemption from informed consent. The following sections outline how drugs and devices are authorized for use by the FDA in an emergency use situation.


What Does Life-Threatening Mean?

Life-threatening, for the purposes of the above section [21 CFR 56.102(d)] includes the scope of both life-threatening and severely debilitating as defined below:

  • FDA definition of "life-threatening": Diseases or conditions where the likelihood of death is high unless the course of the disease is interrupted and diseases or conditions with potentially fatal outcomes, where the end point of clinical trial analysis is survival. The criteria for life threatening do not require the condition to be immediately life threatening or to immediately result in death. Rather, the subjects must be in a life-threatening situation requiring intervention before review at a convened meeting of the IRB is feasible.
  • FDA definition of "severely debilitating": Diseases or conditions that cause major irreversible morbidity. Examples of severely debilitating conditions include blindness, loss of arm, leg, hand or foot, loss of hearing, paralysis or stroke.

IRB Requirements

The FDA provides an emergency use provision in the regulations [21 CFR 56.104(c)] which allows an exception from prospective review by the IRB. Emergency use of a test article as defined above does not require review by a convened IRB, but the use must be reported to the IRB. The IRB Chair, Vice Chair, or a Physician IRB Member will determine whether the use complies with the regulatory requirements.

The treating physician must notify the IRB before the emergency use of the test article by submitting the Emergency Use Concurrence Request. If immediate use of the test article is required to save the life of the participant and there is not sufficient time to contact the IRB, the treating physician may proceed with the emergency use. In this case, the use of the test article must be reported to the IRB using the WVU+kc system as soon as possible and absolutely no later than 5 business days from the time the procedure is conducted or drug is administered.

Notifying the IRB of the emergency use (either before or after the procedure or drug administration) should not be construed as IRB approval . Documentation will be issued from the IRB Chair, Vice Chair, or a Physician IRB Member stating whether the proposed emergent use complies with the regulatory requirements.

If the IRB can reasonably hold a convened meeting to review all prepared emergency use materials prior to the use of the test article, it is not considered exempt from prospective review by the IRB. The IRB staff should be contacted as soon as possible to facilitate review at the convened meeting.


Is the emergency use of a test article considered "research?"

Emergency use of a test article [21 CFR 56.104(c)] is considered by FDA to be human research. It meets the FDA definition of clinical investigation and requires regulation under the Food, Drug and Cosmetic Act. It also involves the administration of a test article to a human, so it involves human subjects. Therefore under FDA regulations, it is human research.

The research must not be subject to DHHS regulation since DHHS has no corresponding exemption from prospective IRB review. The activity must not meet the DHHS definition of "research" and involve "subjects" as defined by DHHS regulations. In other words, the data from an emergency use may not be reported in a way that implies that the activity was a prospectively planned systematic investigation designed to develop or contribute to generalizable knowledge.



Emergency Use of an Investigational Drug

The emergency use of an unapproved investigational drug or biologic requires an Investigational New Drug (IND) number. For more information, please refer directly to the Emergency Use of an Investigational Drug or Biologic - Information Sheet found on the FDA website.

Obtaining access to an IND number can be accomplished in two ways:

  • Contact the manufacturer (or IND holder) of the product to determine if the drug or biologic can be made available for the emergency use under the existing IND. There may or may not be an existing, approved study (at any of the manufacturer’s study sites) using the IND. The manufacturer may be required to contact the FDA to obtain permission for the emergency use to occur using the existing IND.
  • A treating physician may request an emergency IND from the FDA specific to the emergency use case. An emergency use IND number is not associated with another other clinical trial or another emergency use case. In some cases, the need for an investigational drug or biologic may be a situation that does not allow time for a submission of an emergency IND and the FDA may authorize shipment of the test article in advance of the IND submission.

When a treating physician submits the Emergency Use protocol application in the WVU+kc system, an IND number must be provided.

A treating physician who is responsible for the emergency use of a drug, where drugs are stored and dispensed by the Investigational Drug Services (IDS), must abide by applicable IDS policies.

Emergency Use of an Unapproved Device

The FDA provides guidance that defines an unapproved medical device as a device that is utilized for a purpose, condition, or use for which the device requires, but does not have, an approved application for premarket approval under section 515 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 360e) (the act) or an approved IDE under section 520(g) of the act (21 U.S.C. 360j(g)).

An unapproved device should normally only be used in human subjects if it is approved for clinical testing under an IDE and if it is used by an investigator for the sponsor in accordance with the terms and conditions of the application. Emergency use of an unapproved device, however, may also occur when: 

(i) an IDE for the device does not exist, 

(ii) a physician wants to use the device in a way not approved under the IDE, or 

(iii) a physician is not an investigator under the IDE. 

A physician who intends to treat a patient with an unapproved medical device in an emergency situation should conclude that:

  1. The patient has a life threatening condition that needs immediate treatment
  2. No generally acceptable alternative treatment for the condition exists; and
  3. Because of the immediate need to use the device, there is no time to use existing procedures to get FDA approval for the use.

FDA expects the physician to make the determination that the patient's circumstances meet the above criteria, to assess the potential for benefit from the use of the unapproved device, and to have substantial reason to believe that benefits will exist.

The emergency use of an investigational device must be reported to the FDA by the IDE sponsor within 5 business days. If no IDE exists, the physician should follow the above procedures and report the emergency use to CDRH or CBER. For additional information on the procedures physicians should follow in an emergency situation, see the  Expanded/Emergency Use guidance on FDA's website.