BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  AB 761
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          Date of Hearing:  January 10, 2012

                            ASSEMBLY COMMITTEE ON HEALTH
                              William W. Monning, Chair
               AB 761 (Roger Hernández) - As Amended:  January 4, 2012
           
          SUBJECT  :  Optometrists.

           SUMMARY  :  Permits optometrists to serve as clinical laboratory 
          directors and specifies that optometrists can perform simple 
          laboratory examinations or tests to aid in the diagnosis of 
          conditions of the eye or adnexa (appendages of an organ such as 
          the eye).  Specifically,  this bill  :  

          1)Adds a licensed optometrist to those health care provider 
            types who can perform waived (from licensure) clinical 
            laboratory tests or examinations.

          2)Permits a duly licensed optometrist to be a laboratory 
            director for the purposes of a clinical laboratory test or 
            examination classified as waived.

          3)Adds to the practice of optometry for those optometrists who 
            are certified to use therapeutic pharmaceutical agents, as 
            specified, authorization to perform a clinical laboratory test 
            or examination classified as waived under the federal Clinical 
            Laboratory Improvement Amendments of 1988 (CLIA) necessary for 
            the diagnosis of conditions and diseases of the eye or adnexa, 
            or if otherwise specifically authorized by law.

           EXISTING LAW  :

          1)Regulates, pursuant to federal and state laws and regulations, 
            clinical laboratory testing and examinations of tests that are 
            classified as waived, moderately complex, and highly complex. 

          2)Defines clinical laboratory test or examination as the 
            detection, identification, measurement, evaluation, 
            correlation, monitoring, and reporting of any particular 
            analyte, entity, or substance within a biological specimen for 
            the purpose of obtaining scientific data which may be used as 
            an aid to ascertain the presence, progress, and source of a 
            disease or physiological condition in a human being, or used 
            as an aid in the prevention, prognosis, monitoring, or 
            treatment of a physiological or pathological condition in a 
            human being, or for the performance of nondiagnostic tests for 







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            assessing the health of an individual.

          3)Defines laboratory director as any person who is a duly 
            licensed physician and surgeon, or, only for purposes of a 
            clinical laboratory test or examination classified as waived, 
            is a duly licensed naturopathic doctor, or is licensed to 
            direct a clinical laboratory and who substantially meets the 
            laboratory director qualifications under CLIA for the type and 
            complexity of tests being offered by the laboratory. 

          4)Prohibits a person from performing a clinical laboratory test 
            or examination classified as waived under CLIA unless the 
            clinical laboratory test or examination is performed under the 
            overall operation and administration of the laboratory 
            director, as specified, and the test is performed by specified 
            health care professionals including a licensed physician and 
            surgeon, podiatrist, dentist, physician assistant, medical 
            assistant, and other health care personnel providing direct 
            patient care.
          5)Permits an optometrist who is certified to use specified 
            therapeutic pharmaceutical agents to order smears, cultures, 
            sensitivities, complete blood count, mycobacterial culture, 
            acid fast stain, urinalysis, and X-rays necessary for the 
            diagnosis of conditions or diseases of the eye or adnexa.  
            Permits an optometrist to order other types of images subject 
            to prior consultation with an ophthalmologist or appropriate 
            physician and surgeon.

           FISCAL EFFECT  :  This bill has not yet been analyzed by a fiscal 
          committee.

           COMMENTS  :

           1)PURPOSE OF THIS BILL  .  According to the author, this bill 
            allows optometrists to administer simple CLIA waived tests 
            that are already within their scope of practice, and 
            designates optometrists as lab directors for CLIA waived tests 
            only, and not for other more complex types of testing.  The 
            author states that this bill will not expand the type or the 
            number of tests that would be considered CLIA waived.  The 
            author asserts that some tests are designed to diagnose 
            conditions optometrists are allowed to treat, like dry eye.  
            Others are needed to determine if the patient has a more 
            serious underlying condition that requires a referral.  The 
            author states that sending CLIA waived tests to an outside lab 
            unnecessarily delays appropriate diagnosis and treatment.  







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            Tests that would be used in optometric offices, according to 
            the author, are tests for contagious viral conjunctivitits 
            (pink eye), blood glucose finger stick for diabetes, and 
            urinalysis to detect infection, bleeding, diabetes, and other 
            problems.

           2)BACKGROUND  .  CLIA was enacted in 1988 when questions were 
            raised about quality control procedures resulting from reports 
            of inaccurate Pap smear testing.  CLIA established quality 
            standards for all lab testing to ensure the accuracy, 
            reliability and timeliness of patient test results regardless 
            of where the test is performed.  The Centers for Medicare and 
            Medicaid Services (CMS) oversees CLIA and delegates to the 
            federal Food and Drug Administration (FDA) classification 
            (categorization) of commercially marketed tests.  The 
            California Department of Public Health (DPH) is responsible 
            for licensing, registering, and overseeing clinical 
            laboratories in California, although labs are also required to 
            be licensed or certified by CMS.  DPH Laboratory Field 
            Services division is required to inspect licensed and 
            registered labs, monitor proficiency testing, investigate 
            complaints, and sanction labs that fail to correct 
            deficiencies.  According to DPH, California regulates a total 
            of 20,297 labs, 11,007 of them are registered as waived labs.  
            Another 2,890 held a CLIA certificate prior to January 1, 1996 
            and their certificate serves as state registration.  

           3)WAIVED TESTS  .  Lab licensure and requirements are based on the 
            complexity of the test performed.  Generally, waived tests are 
            simple laboratory examinations and procedures cleared for home 
            use, employ methodologies that are so simple and accurate as 
            to render the likelihood of erroneous results negligible, or 
            pose no reasonable risk of harm to the patient if performed 
            incorrectly.  Waivers are permitted: for tests specified in 
            federal regulation; in instances where the manufacturer has 
            provided scientifically valid data verifying that the waiver 
            criteria have been met; or, when cleared by the FDA for home 
            use.  Examples of some of the tests identified in the federal 
            regulation include dipstick or tablet urinalysis, fecal occult 
            blood, and urine pregnancy tests.  According to DPH, there are 
            not many complaints received by the department about waived 
            testing, however state inspectors have found deficiencies 
            where the lab does not have the manufacturer's instructions 
            available for testing personnel to follow the manufacturer's 
            instructions, or where they do, personnel are not following 
            manufacturer's instructions.







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           4)SUPPORT  .  The California Optometric Association (COA) supports 
            this bill because they believe under the current law patient 
            safety is compromised when optometrists cannot legally perform 
            certain tests during an office visit.  As an example, COA 
            indicates a specified test (RPS Adeno Detector) can diagnose 
            viral conjunctivitis while the patient is still in the office 
            allowing the provider to make an accurate diagnosis and limit 
            the spread of the disease while simultaneously reducing ocular 
            antibiotic resistance.  The California Academy of Eye 
            Physicians and Surgeons also support this bill.
           
           5)OPPOSED UNLESS AMENDED  .  The California Association for 
            Medical Laboratory Technology (CAMLT) is opposed unless 
            amended because of concerns about the broad range of testing 
            that would be permitted and because of the provisions 
            permitting optometrists to serve as lab directors.  However, 
            CAMLT would change its position to neutral if the bill were 
            limited so that optometrists can only perform those lab tests 
            which current law authorizes optometrists to order under 
            Business and Professions Code §3041(e)(9).   

           6)PREVIOUS LEGISLATION  .  SB 1246 (Negrete McLeod), Chapter 523, 
            Statutes of 2010, includes naturopathic doctors in the list of 
            health care practitioners who could perform a clinical 
            laboratory test or examination classified as waived and 
            defines a naturopathic assistant for purposes of the 
            Naturopathic Doctors Act, and specifies certain functions for 
            naturopathic assistants.

           7)DOUBLE REFERRAL  .  This bill has been double referred.  It will 
            also be heard in the Assembly Business, Professions and 
            Consumer Protection Committee on January 10, 2012.

           8)SUGGESTED AMENDMENTS  .

             a)   To address the concerns raised by CAMLT, the author may 
               wish to amend this bill on page 14, line 25 as follows:

             (10) Performing a clinical laboratory test or examination 
               classified as waived under CLIA  and as designated in 
               3041(e)(9)  necessary for the diagnosis of conditions and 
               diseases of the eye or adnexa, or if otherwise specifically 
               authorized by this chapter.

             b)   The term adnexa means appendages to an organ or 







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               anatomical part.  To clarify that the term adnexa as used 
               in the optometry scope of practice refers to ocular adnexa 
               the author may wish to amend this bill on page 16, line 23 
               as follows:

             (k)   For purposes of this chapter "adnexa" refers to ocular 
               adnexa.  
                
               (l)   In an emergency, an optometrist?.

           9)POLICY QUESTION  .  Do optometrists have sufficient training to 
            serve as lab directors for waived testing?  According to DPH, 
            there may be technical and policy issues related to allowing 
            optometrists to act as a director for other waived tests such 
            as HIV, infectious diseases or chemistry tests without having 
            the laboratory training or experience to serve as the 
            director.  




           
          REGISTERED SUPPORT / OPPOSITION  :  

           Support 
           
          California Optometric Association (sponsor)
          California Academy of Eye Physicians and Surgeons

           Opposition 
           
          None on file.
           

          Analysis Prepared by  :    Teri Boughton / HEALTH / (916) 319-2097