US 'right to try' laws may not help dying get unapproved drugs

So-called "right to try" laws, intended to expand dying patients' access to experimental treatments, may not work as expected - and might strip patients of federal safety protections, some experts say.

The laws, enacted in at least 24 states, have been promoted as a way to help dying patients get hold of medicines and devices that haven't been approved by the U.S. Food and Drug Administration (FDA).

But the laws haven't yet helped patients gain access to experimental therapies, Alison Bateman-House, an ethicist at New York University Langone Medical Center, and colleagues argue in an article in Annals of Internal Medicine.

The state laws may also cover access only for terminally ill patients, excluding people with serious or rare diseases with limited treatment options that are not immediately life-threatening, the authors note.

And the laws may disrupt the current system for granting so-called "compassionate use" of unproven treatments to dying or seriously ill patients, which includes FDA oversight to track any safety issues, Bateman-House said by email.

"The FDA's participation in this process helps protect patients from what may be an even worse outcome than what they are facing," Bateman-House said. "By seeking to remove the FDA from approving compassionate use attempts, right to try laws remove an essential safeguard."

Under current federal policy, when terminally ill patients want to use drugs and devices that are too early in their development to be approved by the FDA, their doctors typically ask for the drug or device companies to grant expanded access to the experimental therapies.

If the company agrees, the FDA and a review board where the physician works would also vet the request. Among other things, reviewers might assess whether the patient has exhausted other options and understands the potential risks and benefits of therapies that generally haven't yet been tested in large-scale human trials.

The FDA has not taken a position on right to try legislation, Sarah Peddicord, an FDA spokeswoman, said by email. The FDA approved more than 99 percent of compassionate use applications, also known as expanded access requests, received during the 2010 to 2014 fiscal years, she said. The FDA is required to respond to these requests within 30 days, but often does so much more quickly, she added.

States have approved right to try laws, however, because the current system doesn't move quickly enough for terminally ill patients who seek experimental treatments as a last resort, said Kurt Altman, director of national affairs at the Goldwater Institute, which has drafted model legislation and helped promote the laws.

He doesn't dispute the FDA's 99 percent approval rate for compassionate use requests. Instead, Altman argues that these requests represent only a fraction of the patients who might have benefited from getting experimental treatments.

"What the 99 percent figure does not tell us is how many terminal patients didn't know about expanded access, had a doctor with insufficient time to complete the process, etc.," Altman said by email.

The application can take doctors more than 100 hours to complete, he said. Though the FDA announced plans to streamline this process so it takes only 45 minutes, Altman said he isn't aware of this being implemented yet.

"Overall, I think right to try is a first step that will lead to reforms that not only speed some FDA processes but also make their processes more transparent and understandable," Altman said.