BILL ANALYSIS                                                                                                                                                                                                    Ó






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          |SENATE RULES COMMITTEE            |                        AB 159|
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                                   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:








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          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                new drug or device application, and has not withdrawn,  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  







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             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  







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                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,







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                  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.








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           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  







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             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  







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            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  







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            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  







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            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  ****


          









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