BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | AB 159| |Office of Senate Floor Analyses | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- THIRD READING Bill No: AB 159 Author: Calderon (D), et al. Amended: 7/6/15 in Senate Vote: 21 SENATE HEALTH COMMITTEE: 8-0, 6/10/15 AYES: Hernandez, Nguyen, Hall, Mitchell, Monning, Pan, Roth, Wolk NO VOTE RECORDED: Nielsen SENATE BUS, PROF. & ECON. DEV. COMMITTEE: 8-0, 6/29/15 AYES: Hill, Bates, Block, Galgiani, Hernandez, Jackson, Mendoza, Wieckowski NO VOTE RECORDED: Berryhill SENATE APPROPRIATIONS COMMITTEE: 7-0, 8/27/15 AYES: Lara, Bates, Beall, Hill, Leyva, Mendoza, Nielsen ASSEMBLY FLOOR: 74-2, 5/18/15 - See last page for vote SUBJECT: Investigational drugs, biological products, and devices SOURCE: Author DIGEST: This bill permits a manufacturer of an investigational drug, biological product, or device to make available an investigational drug, biological product, or device to an eligible patient, as defined. Prohibits this bill from requiring that a manufacturer make available an investigational drug, biological product, or device to an eligible patient. ANALYSIS: AB 159 Page 2 Existing law: 1) Establishes the Sherman Food, Drug, and Cosmetic Law (Sherman Law), which regulates the packaging, labeling, and advertising of drugs and devices, administered by the Department of Public Health (DPH). Prohibits, in the Sherman Law, the sale, delivery, or giving away of a new drug or device unless it is either: a) A new drug or new device for which DPH has approved a new drug or device application, and has not withdrawn, terminated, or suspended that approval; or, b) A new drug, and a new drug application has been approved for it by the U.S. Food and Drug Administration (FDA), pursuant to federal law, or it is a new device for which a premarket approval application has been approved, and that approval has not been withdrawn, terminated, or suspended under the FDA. 2) Establishes the Protection of Human Subjects in Medical Experimentation Act which prescribes various protections for subjects of medical experimentation relating to a bill of rights; informed consent procedures and documentation; and, the provision of specified disclosures, including the right for a subject to give or withdraw consent freely and without duress. Imposes penalties for violations of these protections. This bill: 1) Permits a manufacturer of an investigational drug, biological product, or device to make available an investigational drug, biological product, or device to an eligible patient, as defined. Prohibits this bill from requiring that a manufacturer make available an investigational drug, biological product, or device to an eligible patient. 2) Defines "investigational drug, biological product, or device" as a drug, biological product, or device that has successfully completed phase one of a clinical trial approved by the FDA, but has not been approved for general use by the AB 159 Page 3 United States Department of Agriculture and remains under investigation in a clinical trial approved by the FDA. 3) Defines "eligible patient" as a person who: a) Has an immediately life-threatening disease or condition. Defines "immediately life-threatening disease or condition" as a stage of disease in which there is a reasonable likelihood that death will occur within a matter of months; b) Has considered all other treatment options currently approved by the FDA; c) Has not been accepted to participate in the nearest clinical trial to his or her home for the immediately life-threatening disease or condition within one week of completion of the clinical trial application process, or, in the treating physician's medical judgment, it is unreasonable for the patient to participate in that clinical trial due to the patient's current condition and stage of disease; and, d) Has received a recommendation from his or her primary physician and a consulting physician, as defined, for an investigational drug, biological product, or device. Defines "consulting physician" as a physician and surgeon or an osteopathic physician and surgeon who: i) Examines the qualified individual and his or her relevant medical records; ii) Confirms, in writing, the primary physician's diagnosis and prognosis; and, iii) Verifies, in the opinion of the consulting physician, that the eligible patient is competent, acting voluntarily, and has made an informed decision. e) Has given written informed consent for the use of the investigational drug, biological product, or device, or, if he or she lacks the capacity to consent, his or her AB 159 Page 4 legally authorized representative has given written informed consent on his or her behalf. Defines "written informed consent" as a written document that has been approved by the primary physician's IRB or an accredited independent IRB, is signed by an eligible patient, or his or her legally authorized representative when the patient lacks the capacity to consent, and attested to by the patient's primary physician and a witness that, at a minimum: i) Explains the currently approved products and treatments for the disease or condition from which the patient suffers; ii) Attests to the fact that the patient, or his or her legally authorized representative, concurs with the primary physician in believing that all currently approved and conventionally recognized treatments are unlikely to prolong the patient's life; iii) Clearly identifies the specific proposed investigational drug, biological product, or device that the patient is seeking to use; iv) Describes the potentially best and worst outcomes of using the investigational drug, biological product, or device and describes the most likely outcome, as specified; v) Clearly states that the patient's health plan or insurer, if any, and health care provider are not obligated to pay for the investigational drug, biological product, or device or any care or treatments consequent to use of the investigational drug, biological product, or device; vi) Clearly states that the patient's eligibility for hospice care may be withdrawn if the patient begins curative treatment and that care may be reinstated if the curative treatment ends and the patient meets hospice eligibility requirements; vii) Clearly states that in-home health care may be denied if treatment begins; and, AB 159 Page 5 viii) States that the patient understands that he or she is liable for all expenses consequent to the use of the investigational drug, biological product, or device, and that this liability extends to the patient's estate, except as otherwise provided in the patient's health benefit plan or a contract between the patient and the manufacturer of the drug, biological product, or device. 4) Permits a manufacturer to provide an investigational drug, biological product, or device to an eligible patient without receiving compensation and to require an eligible patient to pay the costs of or associated with the manufacture of the investigational drug, biological product, or device. 5) Prohibits this bill from expanding coverage provided by health plans or insurers, the Medi-Cal program, or county organized health systems. 6) Specifies that this bill does not require a health plan or insurer to provide coverage for the cost of any investigational drug, biological product, or device, or the costs of services related to the use of an investigational drug, biological product, or device under this bill, but permits one to provide such coverage. 7) Prohibits an investigational drug, biological product, or device from being offered if a clinical trial for that investigational drug, biological product, or device is closed due to the lack of efficacy or for toxicity. Requires the manufacturer and the patient's primary physician, if notice of closure of a clinical trial is given for an investigational drug, biological product, or device taken by a patient outside of a clinical trial, to notify the patient of the information from the safety committee of the clinical trial. 8) Prohibits the heirs of an eligible patient, if he/she dies while being treated by an investigational drug, biological product, or device made available pursuant to this bill, from being liable for any outstanding debt related to the treatment or lack of insurance for the treatment. AB 159 Page 6 9) Prohibits a state regulatory board from revoking, failing to renew, or taking any other disciplinary action against a physician's license based solely on the physician's recommendation to an eligible patient regarding, or prescription for or treatment with, an investigational drug, biological product, or device if the recommendation or prescription is consistent with protocol approved by the physician's IRB or an accredited independent institutional review board. 10)Requires the physician's IRB or an accredited institutional review board to biannually report to DPH, the Medical Board of California, and the Osteopathic Medical Board of California: a) The number of requests made for an investigational drug, biological product, or device; b) The status of the requests made; c) The duration of the treatment; d) The costs of the treatment paid by eligible patients; e) The success or failure of the investigational drug, biological product, or device in treating the disease or condition, as specified; and, f) Any adverse event for each investigational drug, biological product, or device. 11)Prohibits a state agency from altering any recommendation made to the federal Centers for Medicare and Medicaid Services regarding a health care provider's certification to participate in the Medicare or Medicaid program based solely on the recommendation from an individual health care provider that a patient have access to an investigational drug, biological product, or device. 12)Makes a violation of this bill not subject to the Sherman Law. 13)Specifies that this bill does not create a private cause of action, and that actions taken pursuant to this bill do not AB 159 Page 7 serve as a basis for a civil, criminal, or disciplinary claim or cause of action, including, but not limited to, product liability, medical negligence, or wrongful death, against a manufacturer of an investigational drug, biological product, or device, or against any other person or entity involved in the care of an eligible patient for harm done to the eligible patient or his or her heirs resulting from the investigational drug, biological product, or device, or the use or nonuse thereof, if the manufacturer or other person or entity has complied with the terms of this article in relation to the eligible patient, unless there was a failure to exercise reasonable care. Comments 1)Author's statement. According to the author, terminally ill patients often do not have the luxury of waiting for the FDA to grant compassionate use or participating in the lengthy process of clinical trials. AB 159 gives terminally ill patients a chance to try potentially life-saving treatments after all other options have been exhausted. It removes barriers for patients who need to immediately obtain investigational treatments, while also protecting physicians, hospitals, and manufacturers from retribution. 2)Background. According to an April 9, 2015, Health Policy Brief on the issue of right-to-try laws in Health Affairs, under current federal regulations, patients with serious or life-threatening illness have two primary options to access experimental therapies that may treat their condition but that have not yet been approved by the FDA: participate as a human subject in a clinical trial or, for patients who cannot be enrolled in that trial (because of their medical status or geographic location, for example), apply to the FDA for access to the experimental drug under the expanded access (also known as compassionate use) program. 3)Clinical trials. According to the 2015 Health Affairs brief, clinical testing of an experimental drug is typically a three-phase process. Phase I trials are small (20 to 80 patients) and are used primarily to evaluate safety and dosing ranges, usually in healthy volunteers. Phase II trials are larger (typically 100 to 300 patients) and are designed to show early evidence of efficacy in the patients that the drug AB 159 Page 8 is intended to treat. Phase III trials may include hundreds or thousands of patients and are used to demonstrate that the drug is effective compared to a control (such as a placebo). Typically, a manufacturer submits an application to the FDA for marketing approval once a drug has successfully completed Phase III trials. The drug may be only administered to patients who are formally enrolled in that clinical trial. The study population for that trial may be limited based on any number of factors, including specific diagnosis, age, stage of illness, or comorbidities. 4)Expanded access program. According to the 2015 Health Affairs brief, the expanded access program is an attempt at flexibility in the regulatory process and to allow patients with no other treatment options a chance to try therapies they may not otherwise have access to. The program allows patients who meet certain eligibility requirements to receive an experimental therapy outside of the formal clinical research process. There are three categories of expanded access: treatment, single patient, and intermediate, which are further split into two subcategories. One is "expanded access INDs," through which the manufacturer submits a separate IND for a patient or group of patients, and the other is "expanded access protocols," whereby the manufacturer amends the protocol under an existing IND to include the patient (or patients) seeking access. Under treatment INDs, a relatively large group of patients (hundreds or thousands) are permitted to access an experimental drug, provided that the sponsor is actively pursuing FDA approval and is in later stages of testing (or has already submitted trial results to the FDA for review). According to an article published in the January 15, 2015 New England Journal of Medicine (NEJM), the FDA has permitted almost all expanded access requests regardless of category. The FDA estimated that by 2006, approximately 100,000 patients had obtained expanded access to experimental drugs. Between 2010 and 2013, the FDA imposed clinical holds on only two of the 2,472 individual, non-emergency protocols, on one of 66 intermediate-size requests, and on none of the 41 widespread expanded-access protocols it received. The Health Affairs brief states that critics of the expanded access program have argued that the application process is unnecessarily burdensome and lengthy (it is estimated that the IND application requires about 100 hours to complete), which AB 159 Page 9 discourages doctors and manufacturers from applying. An IRB review adds an additional layer of paperwork and potential delay. These requirements were put in place in response to highly publicized incidents of harm caused by unsafe drugs. In the past decade, there have been several attempts made at the federal and judicial levels to further relax restrictions on the administration of experimental therapies to terminally ill patients. One, led by the Abigail Alliance for Better Access to Developmental Drugs, submitted a Citizen Petition to the FDA in 2003 requesting that it make experimental therapies available to terminally ill patients, provided that the drug had passed Phase I testing. Following several years of litigation, the D.C. Court of Appeals ruled against the Abigail Alliance, stating that terminally ill patients have no constitutional right to access experimental therapies. 5)FDA action. According to an article in the Wall Street Journal published on February 9, 2015, the FDA announced it would "simplify and accelerate" the application process for "unapproved investigational drugs" that have passed Phase I safety trials. It is estimated that the new application form will take 45 minutes to complete, asks attending physicians to fill in eight pieces of patient information, and requires only one attachment. The FDA issued draft guidance and included a copy of the new form, asking for comment until April 13, 2015. The FDA is now in the process of reviewing the public comments and will not likely finalize the guidance before early fall. NOTE: Please refer to the Senate Health Committee analysis for detailed background on this bill. FISCAL EFFECT: Appropriation: No Fiscal Com.:YesLocal: No According to the Senate Appropriations Committee: One-time costs of $20,000 and ongoing costs of $10,000 per year to review plan filings by the Department of Insurance (Insurance Fund). One-time costs of $380,000 in 2015-16 to respond to requests for information about prior independent medical review decisions and ongoing costs of $210,000 per year to respond to AB 159 Page 10 consumer complaints and requests for independent medical review for access to investigational drugs by the Department of Managed Health Care (Managed Care Fund). Uncertain impact on state-funded California Public Employees' Retirement System health care coverage (General Fund and special funds). SUPPORT: (Verified8/28/15) ALS Association Golden West Chapter Los Angeles County Board of Supervisors OPPOSITION: (Verified8/28/15) Association of Northern California Oncologists California Nurses Association California Right to Life Committee, Inc. ASSEMBLY FLOOR: 74-2, 5/18/15 AYES: Achadjian, Alejo, Travis Allen, Baker, Bigelow, Bloom, Bonilla, Bonta, Brough, Brown, Burke, Calderon, Campos, Chang, Chau, Chávez, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle, Daly, Dodd, Eggman, Frazier, Beth Gaines, Gallagher, Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gray, Grove, Hadley, Harper, Roger Hernández, Holden, Irwin, Jones, Jones-Sawyer, Lackey, Linder, Lopez, Low, Maienschein, Mayes, McCarty, Medina, Mullin, Nazarian, Obernolte, O'Donnell, Olsen, Patterson, Perea, Rendon, Ridley-Thomas, Rodriguez, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Wagner, Waldron, Weber, Wilk, Williams, Wood, Atkins NOES: Levine, Quirk NO VOTE RECORDED: Gordon, Kim, Mathis, Melendez Prepared by:Melanie Moreno / HEALTH / 8/31/15 15:12:22 **** END **** AB 159 Page 11