BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  AB 761
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          Date of Hearing:   January 10, 2012

              ASSEMBLY COMMITTEE ON BUSINESS, PROFESSIONS AND CONSUMER 
                                     PROTECTION
                                 Mary Hayashi, Chair
               AB 761 (Roger Hernandez) - As Amended:  January 4, 2012
           
          SUBJECT  :   Optometrists

           SUMMARY  :   Allows optometrists to independently perform waived 
          clinical laboratory tests necessary for the diagnosis of 
          conditions and diseases of the eye.  Specifically,  this bill  :  

          1)Adds licensed optometrists to the list of persons who are 
            authorized under current law to perform a clinical laboratory 
            test or examination classified as waived under the federal 
            Clinical Laboratory Improvement Amendments (CLIA) of 1988.

          2)Includes licensed optometrists in the definition of 
            "laboratory director" for purposes of a clinical laboratory 
            test or examination classified as waived.

          3)Allows optometrists who are certified to use therapeutic 
            pharmaceutical agents (TPAs) to perform a clinical laboratory 
            test or examination classified as waived under CLIA necessary 
            for the diagnosis of conditions and diseases of the eye or 
            adnexa, or if otherwise specifically authorized by the 
            Optometry Practice Act.

           EXISTING LAW  

          1)Establishes CLIA under federal law, which regulates clinical 
            laboratories that perform tests on human specimens and sets 
            standards for facility administration, personnel 
            qualifications and quality control.  These standards apply to 
            all settings, including commercial, hospital or physician 
            office laboratories.

          2)Defines CLIA waived tests as simple laboratory examinations 
            and procedures that are approved by the Food and Drug 
            Administration (FDA) 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 the test is performed incorrectly.









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          3)Provides for the licensure and regulation of clinical 
            laboratories and their personnel by the State Department of 
            Health Services (now the Department of Public Health (DPH)), 
            and requires clinical laboratories to be operated under the 
            supervision of a laboratory director, as specified.

          4)Defines "laboratory director" to mean 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.

          5)Prohibits anyone 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 and the test is performed by specified health care 
            practitioners for specified purposes.

          6)Establishes the Optometry Practice Act, administered by the 
            State Board of Optometry (Board), to regulate the practice of 
            optometry.

          7)Defines the practice of optometry to include the prevention 
            and diagnosis of disorders and dysfunctions of the visual 
            system, and the treatment and management of certain disorders 
            and dysfunctions of the visual system, as well as the 
            provision of rehabilitative optometric services.

          8)Requires optometrists to apply for a certificate from the 
            Board and meet specified requirements in order to be certified 
            to use TPAs and authorized to treat specified conditions.

           FISCAL EFFECT  :   Unknown

           COMMENTS  :   

           Purpose of this bill  .

          According to the author, "State law prohibits the performance of 
          a clinical laboratory test or examination classified as waived 
          under the federal CLIA law unless the test or examination is 
          performed under the overall operation and administration of a 








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          laboratory director...Optometrists are not considered or 
          classified as a laboratory director, therefore cannot administer 
          these simple CLIA waived tests related to the eye.

          "AB 761 will allow optometrists to administer simple CLIA waived 
          tests that are already within their scope of their practice.  
          This legislation will designate optometrists as lab directors 
          for CLIA waived tests only and not for other more complex types 
          of testing?This will not expand the type or the number of tests 
          that would be considered CLIA waved."

           Background  .

          California clinical laboratories are subject to both federal and 
          state oversight.  Federal oversight falls under CLIA, which is 
          administered by the Centers for Medicare and Medicaid Services 
          (CMS) within the U.S. Department of Health and Human Services.  
          CLIA regulates clinical labs based on the complexity of tests 
          the lab offers.  

          "Waived" tests are approved by FDA for home use, use simple and 
          accurate methods that make the possibility of error negligible, 
          or pose no significant risk of harm to the patient if 
          incorrectly performed.  Clinical labs performing only "waived" 
          tests must register with the CLIA program, pay biennial 
          certificate fees, allow inspections, and perform tests according 
          to manufacturers' instructions.

          "Moderate" or "high" tests, which are more complex, may be 
          performed by clinical labs that pay higher fees, undergo 
          biennial inspections, and meet tougher standards for personnel, 
          supervision, quality assurance and proficiency testing.

          State oversight of clinical labs is administered by DPH, which 
          regulates about 19,000 clinical labs and their personnel 
          statewide, monitors proficiency testing, investigates 
          complaints, and sanctions labs that violate the law or 
          regulations.  

          In conformance with CLIA, DPH licenses or registers clinical 
          labs according to the complexity of testing they perform.  Labs 
          must be licensed for moderately or highly complex procedures, 
          and registered for low complexity.  About 3,000 clinical labs 
          are licensed for moderate and/or high complexity testing.  The 
          remaining are registered labs performing waived tests and/or 








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          provider-performed microscopy.

          Waived tests can be performed under the supervision of a lab 
          director and other specific conditions by a number of health 
          care practitioners, including physicians, podiatrists, dentists, 
          naturopathic doctors, physician assistants, nurses, respiratory 
          care practitioners, and others.  This bill adds licensed 
          optometrists to this list.

          A lab director must be a licensed physician and surgeon or meet 
          other licensure requirements, and is responsible for overseeing 
          the overall operation and administration of the lab.  For 
          purposed of waived tests, a lab director can also include a 
          licensed naturopathic doctor or a person 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.  This bill includes 
          optometrists in this definition, thereby allowing optometrists 
          to independently perform waived tests without supervision by a 
          separate lab director.

          The CMS issued a memo in September of 2006 to provide 
          clarification regarding optometrists serving as laboratory 
          directors of moderate complexity testing under CLIA.  The memo 
          states, "The Doctor of Optometry (OD) degree is suitable to meet 
          the personnel qualifications for laboratory director of moderate 
          complexity testing provided the testing is limited to tests 
          related to the medical specialty of optometry."

          This bill allows optometrists to serve as a lab director for 
          waived tests, which are simpler than the moderate complexity 
          testing that the CMS memo allows.

          Many states, including California, require additional 
          certification for optometrists who wish to administer, 
          prescribe, and dispense medications or "TPAs."  In California, 
          this certification requires additional education, examination 
          and experience.  

          Current law allows optometrists who are certified to use TPAs to 
          perform a number of procedures, such as blood draws for patients 
          suspected of having diabetes, suture removal with prior approval 
          of the treating physician, and use of an auto-injector to 
          counter allergic reaction.  This bill allows optometrists who 
          are certified to use TPAs to also perform waived tests or 








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          examinations that are necessary for the diagnosis of conditions 
          and diseases of the eye or its appendages.

           Support  .  The California Optometric Association states, 
          "Currently, patient safety is compromised because optometrists 
          cannot legally perform (CLIA waived) tests during an office 
          visit.  For example, the RPS Adeno Detector can diagnose viral 
          conjunctivitis while the patient is still in the office, which 
          allows the doctor to make an accurate diagnosis and limit spread 
          of disease while simultaneously reducing ocular antibiotic 
          resistance.  This legislation would designate optometrists as 
          lab directors for CLIA waived tests only (not for more complex 
          tests).  Specifically, it adds optometrists to the category of 
          lab directors that currently includes medical doctors, 
          osteopaths and naturopaths. The bill does not expand the type or 
          number of tests that would be considered waived."

           Opposition  .  The California Association for Medical Laboratory 
          Technology (CAMLT) states, "CAMLT recognizes the ability of 
          optometrists to perform certain waived tests limited to their 
          scope of practice pertaining to the eye, but had concerns about 
          the broad range of testing that the bill's sponsors have 
          indicated interest in, such blood and urine tests or those 
          relating to conditions, such as diabetes and infections, not 
          treatable by optometrists.  CAMLT?feels that a technical, 
          clarifying amendment?is still in order.

          "As previously stated, of greater concern is whether or not 
          optometrists receive the proper education and training to 
          perform as a laboratory director and those attendant functions 
          outlined in Section 1209 of the Business and Professions Code.  
          A review of Section 1209, designed to protect patient health and 
          safety, clearly defines and outlines the many duties and 
          significant responsibilities required to direct a clinical 
          laboratory in California."
           
          Previous legislation  .

          SB 1246 (Negrete McLeod), Chapter 523, Statutes of 2010 includes 
          naturopathic doctors in the list of health care practitioners 
          who can perform a clinical laboratory test or examination 
          classified as waived under CLIA, and designates naturopathic 
          doctors as clinical laboratory directors for CLIA waived tests 
          only.









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          AB 1442 (Feuer) of 2007 requires clinical laboratories that 
          perform tests to screen for human immunodeficiency virus (HIV) 
          that are classified as waived under CLIA to enroll in a 
          proficiency testing program and to obtain the appropriate 
          license or registration from DPH, as specified.  This bill was 
          held on the Assembly Floor.

          AB 185 (Dymally) of 2007 expands the duties that unlicensed 
          personnel are authorized to perform in a clinical laboratory and 
          revises the levels of supervision required when unlicensed 
          personnel perform them.  This bill was held in Assembly Business 
          and Professions Committee.

          AB 1370 (Matthews) of 2005 includes a pharmacist within the 
          definition of laboratory director if the clinical laboratory 
          test or examination is a routine patient assessment procedure, 
          as defined.  This bill was held in Assembly Business and 
          Professions Committee.

          AB 433 (Nava) of 2005 exempts physician office laboratories from 
          licensure and regulatory requirements governing clinical 
          laboratories and their personnel by the Department of Health 
          Services.  This bill was held in Assembly Health Committee.

           Double referred  .  This bill is double-referred to Assembly 
          Health Committee.

           REGISTERED SUPPORT / OPPOSITION  :   

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

           Opposition 
           
          California Clinical Laboratory Association (CCLA)
          California Association for Medical Laboratory Technology
           
          Analysis Prepared by  :    Angela Mapp / B.,P. & C.P. / (916) 
          319-3301 











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