BILL ANALYSIS Ó AB 761 Page 1 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 AB 761 Page 2 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. AB 761 Page 3 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. AB 761 Page 4 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 AB 761 Page 5 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