BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                    AB 1774


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          Date of Hearing:  April 19, 2016


                   ASSEMBLY COMMITTEE ON BUSINESS AND PROFESSIONS


                                  Rudy Salas, Chair


          AB 1774  
          (Bonilla) - As Introduced February 3, 2016


          SUBJECT:  Clinical laboratories:  licensure.


          SUMMARY:  Repeals the laws requiring a clinical laboratory to be  
          licensed and inspected by the California Department of Public  
          Health (CDPH), including the licensing fees associated with  
          licensure of clinical laboratories; provides that clinical  
          laboratories in this state are still subject to the federal  
          Clinical Laboratory Improvement Amendments of 1988 (CLIA),  
          including the fees and enforcement policies set forth by CLIA.


          EXISTING STATE LAW:


          1)Provides for the licensure, registration, and regulation of  
            clinical laboratories and various clinical laboratory  
            personnel by the CDPH and authorizes the CDPH to inspect  
            clinical laboratories and assesses a fee for licensure of  
            those facilities. (Business and Professions Code (BPC) Section  
            1200, et seq.)
          2)Defines several terms, among others, for the purposes of  
            governing clinical laboratories: (BPC Section  
            1206(a)(5)-1206(a)(16))










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             a)   "Clinical laboratory test or examination" means 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 that 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 assessing the health of an  
               individual.
             b)   "Clinical laboratory science" means any of the sciences  
               or scientific disciplines used to perform a clinical  
               laboratory test or examination.


             c)   "Clinical laboratory practice" means the application of  
               clinical laboratory sciences or the use of any means that  
               applies the clinical laboratory sciences within or outside  
               of a licensed or registered clinical laboratory. Clinical  
               laboratory practice includes consultation, advisory, and  
               other activities inherent to the profession.


             d)   "Clinical laboratory" means a place used, or an  
               establishment or institution organized or operated, for the  
               performance of clinical laboratory tests or examinations or  
               the practical application of the clinical laboratory  
               sciences. That application may include any means that  
               applies the clinical laboratory sciences.


             e)   "Direct and constant supervision" means personal  
               observation and critical evaluation of the activity of  
               unlicensed laboratory personnel by a physician and surgeon,  
               or by a person licensed under this chapter other than a  
               trainee, during the entire time that the unlicensed  
               laboratory personnel are engaged in the duties, as  








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               specified.


             f)   "Direct and responsible supervision" means both of the  
               following:


               i)     Personal observation and critical evaluation of the  
                 activity of a trainee by a physician and surgeon, or by a  
                 person licensed under this chapter other than a trainee,  
                 during the entire time that the trainee is performing  
                 clinical laboratory tests or examinations.
               ii)    Personal review by the physician and surgeon or the  
                 licensed person of all results of clinical laboratory  
                 testing or examination performed by the trainee for  
                 accuracy, reliability, and validity before the results  
                 are reported from the laboratory.


             g)   "Licensed laboratory" means a clinical laboratory  
               licensed, as specified, pursuant to state law. 
             h)   "Location" means either a street and city address, or a  
               site or place within a street and city address, where any  
               of the clinical laboratory sciences or scientific  
               disciplines are practiced or applied, or where clinical  
               laboratory tests or examinations are performed.


             i)   "Physician office laboratory" means a clinical  
               laboratory that is licensed pursuant to state law and is  
               either: (A) a clinical laboratory that is owned and  
               operated by a partnership or professional corporation that  
               performs clinical laboratory tests or examinations only for  
               patients of five or fewer physicians and surgeons or  
               podiatrists who are shareholders, partners, or employees of  
               the partnership or professional corporation that owns and  
               operates the clinical laboratory; or (B) a clinical  
               laboratory that is owned and operated by an individual  
               licensed physician and surgeon or a podiatrist, and that  








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               performs clinical laboratory tests or examinations only for  
               patients of the physician and surgeon or podiatrist who  
               owns and operates the clinical laboratory.


             j)   "Point-of-care laboratory testing device" means a  
               portable laboratory testing instrument that is used within  
               the proximity of the patient for whom the test or  
               examination is being conducted; is used in accordance with  
               the patient test management system, the quality control  
               program, and the comprehensive quality assurance program  
               established and maintained by the laboratory, as specified;  
               it performs clinical laboratory tests or examinations  
               classified as waived or of moderate complexity under the  
               federal CLIA; performs clinical laboratory tests or  
               examinations on biological specimens that require no  
               preparation after collection; or, provides clinical  
               laboratory tests or examination results without calculation  
               or discretionary intervention by the testing personnel;  
               performs clinical laboratory tests or examinations without  
               the necessity for testing personnel to perform calibration  
               or maintenance, except resetting pursuant to the  
               manufacturer's instructions or basic cleaning.


             aa)  "Public health laboratory" means a laboratory that is  
               operated by a city or county, as specified.


             bb)  "Registered laboratory" means a clinical laboratory  
               pursuant to BPC Section 1265(a)(2). 


          3)Specifies that a person licensed to provide health care  
            services under the laws of this state, as specified, is not  
            prohibited from practicing the profession or occupation for  
            which he or she is licensed, nor does it authorize a person  
            licensed under the laws of this state to perform or order  
            services for which he or she is not licensed to perform or  








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            order. (BPC Section 1206)
          4)Exempts specified pharmacy clinical laboratory settings from  
            inspection by CDPH if the laboratory only performs specified  
            tests classified as waived under CLIA and are approved by the  
            federal Food and Drug Administration (FDA) for sale to the  
            public without a prescription in the form of an  
            over-the-counter test kit, as specified.  (BPC Section 1206.6)


          5)Defines "unlicensed laboratory personnel" to mean a laboratory  
            aide, histocompatibility technician, cardiopulmonary  
            technician, or other person performing the activities  
            authorized by Section 1269.  (BPC Section 1212)


          6)Requires each clinical laboratory to maintain records,  
            equipment, and facilities that are adequate and appropriate  
            for the services rendered and operated without injury to the  
            public health; requires the CDPH to inspect laboratories no  
            less than once every two years if licensed, maintain a record  
            of those inspections, ensure that every licensed clinical  
            laboratory in California is inspected at least that often;  
            provides that registered clinical laboratories shall not be  
            routinely inspected by CDPH; requires a clinical laboratory to  
            perform all clinical laboratory tests or examinations  
            classified as waived under CLIA in conformity with the  
            manufacturer's instructions; clinical laboratories performing  
            tests or examinations not waived under CLIA must establish and  
            maintain a patient test management system, as specified, must  
            establish and maintain a quality control program, and may use  
            alternative quality control testing procedures recognized CMS  
            or an Individualized Quality Control Plan and a comprehensive  
            quality assurance program, as specified.  (BPC Section 1220)


          7)Declares that it is the public policy of the state to ensure  
            that California's laboratory standards, including its  
            laboratory personnel standards, be sustained in order to  
            provide accurate, reliable, and necessary test results; that  








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            inspections are the most effective means of furthering this  
            policy; that it is not the intent of the Legislature to reduce  
            in any way the resources available to the department for  
            inspections, but rather to provide the department with the  
            greatest flexibility to concentrate its resources where they  
            can be most effective; that it is the intent of the  
            Legislature to provide for an inspection process that includes  
            state-based inspection components and that determines  
            compliance with federal and state requirements for clinical  
            laboratories. (BPC Section 1223(a))


          8)Authorizes the CDPH to employ, or contract for, inspectors,  
            special agents, and investigators, and provide any clerical  
            and technical assistance as necessary to administer this  
            chapter and may incur other expenses as necessary. (BPC  
            Section 1223(b))


          9)Provides that laboratories accredited by a private, nonprofit  
            organization shall be deemed by the CDPH to meet state  
            licensure or registration requirements, and be issued a  
            certificate of that deemed status by the CDPH, provided that  
            both the organization and the laboratory meet specified  
            requirements. (BPC Section 1223(c))


          10)Requires every person or clinical laboratory licensed or  
            registered under California clinical laboratory requirements  
            to report to the CDPH within 30 days of any change of name or  
            address.  (BPC Section 1227)


          11)Requires a clinical laboratory performing clinical laboratory  
            tests or examinations classified as of moderate or of high  
            complexity under CLIA to obtain a clinical laboratory license  
            as specified; provides that no clinical laboratory license  
            shall be issued by the CDPH unless the clinical laboratory and  
            its personnel meet the CLIA requirements for laboratories  








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            performing tests or examinations classified as of moderate or  
            high complexity, or both; requires a clinical laboratory  
            performing tests or examinations subject to a certificate of  
            waiver or a certificate of provider-performed microscopy under  
            CLIA, to register with the CDPH; provides that a license or  
            registration is valid for one year unless revoked or  
            suspended; provides that whenever a clinical laboratory ceases  
            operations, the laboratory owners, as specified, must notify  
            the CDPH of this fact, in writing, within 30 calendar days  
            from the date a clinical laboratory ceases operation and  
            maintain all medical records and laboratory records, as  
            defined, for specified timeframes; provides that a separate  
            license is required for each location except as specified;  
            provides that the CDPH must state in writing the reason for  
            denying an applicant for clinical laboratory licensure;  
            provides that a withdrawal of application for clinical  
            laboratory licensure does not deprive the CDPH to institute or  
            continue with a proceeding for denial; and provides that the  
            suspension, expiration, or forfeiture by operation of law of a  
            license or registration does not deprive the CDPH's authority  
            to institute or continue an action against a license or  
            registration.  (BPC Section 1265)


          12)Provides that a primary care clinic that submits an  
            application to the CDPH for a clinic license pursuant to  
            Health and Safety Code (HSC) 1204(a) may submit before or  
            along with the clinic application an application for a license  
            to conduct clinical laboratory tests and examinations, as  
            specified.  (BPC Section 1265.1)


          13)Requires a clinical laboratory's license and the license or  
            renewal permit of each person performing tests to be  
            conspicuously posted.  (BPC Section 1266)


          14)Provides that any denial, suspension, or revocation of a  
            license must be conducted in compliance with HSC Section  








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            100171.  (BPC Section 1267)


          15)Requires the CDPH to establish standards for the evaluation  
            of cytologic slides, reporting of slides, personnel competency  
            standards and a proficiency testing program for clinical  
            laboratories offering cytology services.  (BPC Section 1272.4)


          16)Requires the CDPH to develop or adopt a CDPH-administered  
            proficiency testing program for laboratories offering cytology  
            services to be administered by the CDPH or by a proficiency  
            testing program approved by the CDPH; provides that the  
            program conduct announced and unannounced onsite proficiency  
            testing under normal working conditions.  (BPC Section 1272.6)


          17)Specifies that it is unlawful for a person to own, operate,  
            maintain, direct, or engage in the business of operating a  
            clinical laboratory, as defined, unless he or she possess a  
            valid clinical laboratory license; provides that a health  
            facility, as specified, is not required to obtain a clinical  
            laboratory license.  (BPC Section 1281)


          18)Authorizes the CDPH to establish and charge fees, as  
            specified, for licensing activities, including:  (BPC Section  
            1300 - 1302)


             a)   Issuing a duplicate license for a change of name;  (BPC  
               Section 1268)
             b)   Application for licensure, renewal, and delinquency for  
               personnel and trainee licenses; (BPC Sections 1260.3,  
               1270.5, 


             c)   Application for a license to perform moderate or high  
               complexity tests, as defined under CLIA, based on the  








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               number of tests performed annually;


             d)   Renewal of a license to perform moderate or high  
               complexity tests, as defined under CLIA, based on the  
               number of tests performed annually;  


             e)   Examinations pursuant to this chapter, as specified;


             f)   Application for registration to perform tests or  
               examinations considered waived under CLIA or  
               provider-performed microscopy;


             g)   Cost recovery for CDPH to conduct a complaint  
               investigation, impose sanctions, or conduct a hearing, as  
               specified; specifies that the amount paid by a laboratory  
               for these enforcement activities is limited to no more than  
               the amount a laboratory would pay under CLIA for the same  
               actions; requires a laboratory applying for initial  
               licensures to pay for the CDPH to conduct any  
               re-inspections to ensure compliance;


             h)   Continuing education;  (BPC Section 1275)


             i)   Cost recovery for an inspector to travel to a clinical  
               laboratory outside of California to ensure compliance; and,


             j)   Additional laboratory locations, as specified. (BPC  
               Section 1300)


          19)Provides that the fees specified in BPC Section 1300 are  
            adjusted annually pursuant to HSC Section 100450.  (BPC  








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            Section 1300.1)
          20)Requires the CDPH to give written notice prior to a license  
            or registration expiring, as specified, and authorizes the  
            CDPH to require an examination as a condition for  
            reinstatement if the licenses renewal fee is not paid, as  
            specified.  (BPC Section 1301)


          21)Provides that CDPH may revoke or suspend a clinical  
            laboratory license if the laboratory does not meet the  
            requirements to operate, as specified; provides that CDPH may  
            impose directed plans of corrections, as defined under CLIA;  
            impose civil money penalties in specified amounts for each day  
            of noncompliance; and impose onsite monitoring, as defined  
            under CLIA, and recover costs associated with onsite  
            monitoring.  (BPC Section 1310)


          EXISTING FEDERAL LAW: 


          1)Establishes CLIA, 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 laboratory settings,  
            including commercial, hospital or physician office  
            laboratories.  (Title 42 of the Code of Federal Regulations  
            (CFR), Part 493)


          THIS BILL:


          1)Repeals state mandates for CDPH to conduct laboratory  
            inspections and contract with accreditation organizations.   
            (BPC Section 1223)
          2)Repeals reporting requirements for a licensed clinical  
            laboratory when the laboratory changes a name or address.   
            (BPC Section 1227)








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          3)Repeals provisions allowing a primary care clinic, or a  
            network of primary care clinics, as defined, to obtain a  
            license to operate a clinical laboratory that conducts  
            moderate to high complexity tests or examinations; repeals  
            application provisions for these primary care clinics to apply  
            for licensure.  (BPC Sections 1241.1, 1265.1)


          4)Repeals provisions requiring a clinical laboratory performing  
            moderate or high complexity tests or examinations to be  
            licensed by CDPH; repeals provisions requiring clinical  
            laboratories performing tests or examinations considered  
            waived under CLIA to register with CDPH; repeals provisions  
            describing the application process, lifetime of a license or  
            registration, notices required of CDPH as they relate to  
            licensed clinical laboratories, withdrawal and renewal of a  
            clinical laboratory license, suspension, expiration, and  
            forfeiture of a clinical laboratory license; and repeals  
            requirements for a licensed clinical laboratory to maintain  
            medical and laboratory records, as specified.  Repeals  
            provisions making it unlawful for a person to own, operate,  
            maintain, direct, or engage in the business of operating a  
            clinical laboratory, as defined, unless he or she possess a  
            valid clinical laboratory license. (BPC Section 1265 and 1281)


          5)Repeals requirements relating to the display of a clinical  
            laboratory license and the license or current renewal permit  
            of each person performing tests.  (BPC Section 1266)


          6)Repeals requirements for a denial, suspension, or revocation  
            of a license to be in compliance with HSC Section 100171.   
            (BPC Section 1267)


          7)Repeals fees associated with clinical laboratory licensing or  








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            registration.  (BPC Sections 1268, 1300(p), and 1300.1)


          8)Repeals requirements relating to standards and requirements  
            for cytology programs, including proficiency testing and  
            reporting to the CDPH.  (BPC Section 1272.4 and 1272.6)
          9)Repeals authorization for CDPH to impose, instead of  
            suspension or revocation of a license, directed plans of  
            corrections, as defined under CLIA; impose civil money  
            penalties in specified amounts for each day of noncompliance;  
            and impose onsite monitoring, as defined under CLIA, and  
            recover costs associated with onsite monitoring.  (BPC Section  
            1310)


          10)Specifies that clinical laboratories must continue to comply  
            with federal provisions specified in CLIA and must adhere to  
            quality control plans, inspections, and enforcement policies  
            set forth by CMS.


          11)Makes other conforming, technical, non-substantive changes.
          FISCAL EFFECT:  Unknown.  This bill is marked fiscal by the  
          Legislative Counsel. 


          COMMENTS:


          Purpose.  This bill repeals the laws requiring a clinical  
          laboratory to be licensed and inspected by the CDPH, including  
          the licensing fees associated with licensure of clinical  
          laboratories and provides that clinical laboratories in this  
          state are still subject to the federal CLIA, including the fees  
          and enforcement policies set forth by CLIA.


          This bill is sponsored by the author.  According to the author,  
          "Laboratory Field Services (LFS) is the state entity responsible  








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          for licensing clinical laboratories and clinical laboratory  
          personnel in California.  In two successive audits over [eight]  
          years, the State Auditor has found that LFS is woefully  
          neglecting its state mandate.  Despite past Legislative efforts  
          to increase its budget, allow for additional staffing, and  
          reduce workload through a mechanism to contract [with]  
          accrediting bodies, [LFS] continues to fail to meet the majority  
          of its mandates.  In the Auditor's September 2015 report, she  
          noted that state and federal law regarding clinical labs is  
          highly duplicative.  In fact, in the mid 1990's, California made  
          strides to try to become exempt from federal oversight.  In this  
          process, the Legislature passed laws which were purposely  
                                              duplicative of federal standards [(SB 113 (Maddy), Chapter 510,  
          Statutes of 1995)].  However, in 1999, the State decided not to  
          move forward with the exemption process.  This has left us with  
          a statutory and regulatory structure that largely copies the  
          federal structure.  AB 1774 implements the State Auditor's  
          recommendation that we repeal state clinical laboratory  
          licensing because the federal government oversight is highly  
          similar and also well implemented.  AB 1774 will free up state  
          resources to focus on personnel standards which are unique to  
          California, while ensuring a continued level of consumer  
          protection in clinical laboratories."


          Background.  Clinical laboratories analyze human specimens such  
          as blood, tissue, and urine so that medical professionals can  
          make diagnoses, prescribe treatment, and perform research.  The  
          CDPH oversees these laboratories through licensing, proficiency  
          testing, and inspections by the LFS within the CDPH.  Oversight  
          responsibilities for the LFS cover licensing of personnel, such  
          as clinical lab scientists and phlebotomists, and in-state  
          laboratories as well as out-of-state laboratories that test  
          specimens originating within California.  There are  
          approximately 2,800 licensed laboratories and approximately  
          19,300 registered labs.  A lab's license or registration is  
          separate from personnel licenses or other certifications. 










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          The difference between a licensed laboratory and a registered  
          laboratory is determined by the complexity of the tests  
          performed by the lab.  A laboratory must be licensed to perform  
          tests of moderate to high complexity, such as testing for  
          hepatitis or certain sexually transmitted diseases by DNA probe,  
          but is authorized to perform all tests.  Registered laboratories  
          may perform waived tests, which are simple tests with less  
          chance of error or risk, such as prepackaged manufactured tests.  
           A license or registration is valid for one year and must be  
          renewed annually for the laboratory to continue operating.   
          Additionally, laboratories must pay a set licensing or  
          registration fee determined by the volume and type of tests  
          performed.  Licensed laboratories must be inspected by the LFS  
          every two years and be notified of any deficiencies revealed by  
          an inspection.  Registered laboratories need not be inspected  
          every two years, but may be inspected as part of a complaint  
          investigation.


          The state has overseen laboratories since 1926 and has licensed  
          laboratories since the 1950s.  In addition to meeting state  
          requirements, all laboratories that the LFS licenses or  
          registers must adhere to federal regulations outlined in the  
          CLIA which was enacted to ensure the accuracy and reliability of  
          laboratory testing.  The federal Centers for Medicare and  
          Medicaid Services (CMS) has primary responsibility under the  
          CLIA to regulate laboratories across the nation.


          The CLIA groups laboratories into two categories based on the  
          complexity of the tests performed.  Laboratories that perform  
          complex tests are subject to ongoing oversight in the form of  
          biennial inspections and proficiency testing.  At the federal  
          level, these laboratories can choose to be overseen by the CMS  
          or by an accreditation organization that is approved by the CMS.  
           Laboratories that perform waived tests are overseen by the CMS.


          Inspections by Accreditation Organizations. The federal  








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          government contracts with the LFS or with CMS-approved  
          accredited organizations to carry out its inspection mandate.   
          Pursuant to a recommendation by the State Auditor in 2008, the  
          LFS began using a state checklist addendum while conducting the  
          federal CLIA inspections, which would incorporate additional  
          state laws into the CLIA inspection and qualify the one  
          inspection for both the CLIA and state requirements.  According  
          to the Auditor, the state checklist includes 15 criteria, most  
          of which relate to personnel standards. 


          Approved accredited organizations are national accrediting  
          organizations that the CMS has vetted and determined to possess  
          high standards and quality when conducting its accreditation  
          process.  Accreditation by one of these organizations meets the  
          federal CLIA inspection requirements.


          Although the LFS has been accepting applications since January  
          1, 2011, only one organization has been approved, two have been  
          pending for the last five years, and one was withdrawn.  The LFS  
          is required to approve (or deny) an application within six  
          months; however, the first application was under review for  
          almost two years. The organization was approved in August 2013,  
          but the LFS still has not entered into an agreement to specify  
          its role and responsibilities.


          The LFS inspects less than 20% of the laboratories that the LFS  
          has not contracted with the federal government to inspect.  In  
          the Northern California LFS office, one staff person is assigned  
          to inspect all 250 Northern California labs; however, only eight  
          inspections were conducted in 2013-2014.  In Southern  
          California, only 195 of 600 laboratories were inspected in the  
          same timeframe.


          Exemption to Federal Oversight.  A state can request to be  
          exempted from all or part of CLIA's requirements in order to  








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          retain full oversight over the laboratories within its  
          jurisdiction. Senate Bill 113 (Maddy), Chapter 510, Statutes of  
          1995 made several changes to state law to incorporate CLIA  
          standards and facilitate a CLIA exemption.  California earned  
          the CLIA exemption in 1999 but declined to pursue it because of  
          concerns regarding an annual $2.4 million overhead fee paid to  
          the federal Department of Health and Human Services.  As a  
          result, the state has been operating under a largely duplicative  
          set of state and federal standards.


          In order to be exempted, the state must establish standards that  
          are equal to or more stringent than federal CLIA.  CDPH has  
          highlighted some of the major differences between the CLIA law  
          and California law shown in the chart below:





           ---------------------------------------------------------------- 
          |Subject |CLIA law                   |California law             |
          |Matter  |                           |                           |
          |--------+---------------------------+---------------------------|
          |Laborato|Requires all laboratories  |Requires all laboratories  |
          |ry      |to have a qualified        |to have a director who is  |
          |Director|director who is a state    |qualified as a California  |
          |s       |licensed physician and     |licensed physician and     |
          |        |surgeon, bioanalyst, or    |surgeon, clinical          |
          |        |doctoral scientist (not    |laboratory bioanalyst, or  |
          |        |limited by specific        |doctoral scientist in      |
          |        |specialty areas).          |specific specialty areas.  |
          |--------+---------------------------+---------------------------|
          |        |Allows only one person to  |Allows multiple directors. |
          |        |serve as director.         |                           |
          |--------+---------------------------+---------------------------|
          |        |Does not require a         |Requires a pathologist     |
          |        |qualified pathologist to   |director for acute care    |
          |        |direct a hospital          |hospitals.                 |








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          |        |laboratory.                |                           |
          |--------+---------------------------+---------------------------|
          |        |Does not mandate any       |Requires a laboratory      |
          |        |requirements for an        |director for a waived      |
          |        |individual in charge of a  |laboratory.                |
          |        |waived laboratory.         |                           |
          |--------+---------------------------+---------------------------|
          |        |Requires notification to   |Requires appointment of an |
          |        |CMS within 30 days of      |interim laboratory         |
          |        |change of director.        |director within 5 days of  |
          |        |                           |major change and           |
          |        |                           |notification to CDPH       |
          |        |                           |within 30 days.            |
          |--------+---------------------------+---------------------------|
          |Laborato|Does not require licensure |Requires laboratory        |
          |ry      |for laboratory supervisors |supervisors to pass an     |
          |Supervis|but requires that          |examination and have       |
          |ors     |supervisors possess a      |licensure by state.        |
          |        |current state license if   |                           |
          |        |state licensure is         |                           |
          |        |required.                  |                           |
          |--------+---------------------------+---------------------------|
          |Clinical|Does not have category of  |Recognizes a waived        |
          |        |technical consultant for   |laboratory technical       |
          |Consulta|waived tests.              |consultant for waived      |
          |nt      |                           |tests.                     |
          |--------+---------------------------+---------------------------|
          |        |Requires clinical          |Requires clinical          |
          |        |consultant to meet         |consultant to be licensed  |
          |        |qualifications but they do |to direct a clinical       |
          |        |not require licensure, but |laboratory or have         |
          |        |requires that consultants  |California licensure as a  |
          |        |possess a current state    |physician and surgeon.     |
          |        |license if state licensure |                           |
          |        |is required.               |                           |
          |--------+---------------------------+---------------------------|
          |Testing |Does not specify education |Specifies education        |
          |Personne|requirements other than a  |requirements including     |
          |l       |minimum of an associate    |courses and credit hours:  |








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          |        |degree for high            |baccalaureate degree,      |
          |        |complexity, and high       |except for US military     |
          |        |school graduation for      |training and experience,   |
          |        |moderate and waived        |for high complexity;       |
          |        |testing.                   |associate degree for       |
          |        |                           |moderate and waived.       |
          |--------+---------------------------+---------------------------|
          |        |Does not require licensure |Requires licensure for     |
          |        |for testing personnel but  |testing personnel.         |
          |        |requires that testing      |                           |
          |        |personnel possess a        |                           |
          |        |current state license if   |                           |
          |        |state licensure is         |                           |
          |        |required.                  |                           |
          |--------+---------------------------+---------------------------|
          |        |Does not require           |Requires CE for renewal of |
          |        |continuing education (CE). |license.                   |
          |--------+---------------------------+---------------------------|
          |Cytology|Does not require licensure |Requires licensure of      |
          |        |of cytotechnologists.      |cytotechnologists.         |
          |--------+---------------------------+---------------------------|
          |        |Limits a cytotechnologist  |Limits a cytotechnologist  |
          |        |to reading 100 Pap slides  |to reading 80 Pap slides   |
          |        |per day, or perform 200    |per day, or perform 160    |
          |        |automated screenings.      |automated screenings, less |
          |        |                           |if adjusted for other      |
          |        |                           |duties.                    |
          |--------+---------------------------+---------------------------|
          |        |N/A                        |Requires a                 |
          |        |                           |cytotechnologist to record |
          |        |                           |the number of Pap slides   |
          |        |                           |read each day at all       |
          |        |                           |locations at which they    |
          |        |                           |work.                      |
          |--------+---------------------------+---------------------------|
          |        |Requires an authorized     |Requires a licensed person |
          |        |testing person to sign all |to review and release all  |
          |        |results.                   |results.                   |
          |--------+---------------------------+---------------------------|








                                                                    AB 1774


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          |Phleboto|Does not address issues of |Explains who may perform   |
          |my      |phlebotomy.                |phlebotomy and under what  |
          |        |                           |conditions, and sets       |
          |        |                           |requirements of education  |
          |        |                           |and training to be         |
          |        |                           |certified by CDPH to       |
          |        |                           |collect blood for testing. |
          |--------+---------------------------+---------------------------|
          |        |                           |Requires approval of       |
          |        |                           |phlebotomy training        |
          |        |                           |programs by CDPH.          |
          |--------+---------------------------+---------------------------|
          |Unlicens|Does not have category of  |Requires documentation of  |
          |ed      |laboratory aide.           |competence of unlicensed   |
          |Personne|                           |laboratory aides, limits   |
          |l as    |                           |their activities, and      |
          |Laborato|                           |specifies supervision      |
          |ry      |                           |requirements.              |
          |Aides   |                           |                           |
          |--------+---------------------------+---------------------------|
          |Personne|Does not inspect for or    |Checks compliance with     |
          |l       |enforce state personnel    |state personnel            |
          |Licensur|requirements; if personnel |requirements, and          |
          |e       |violations are found, they |sanctions or penalizes for |
          |Enforcem|are referred to state      |violations.                |
          |ent     |program.                   |                           |
          |--------+---------------------------+---------------------------|
          |Laborato|Does not define ownership  |Defines who can own and    |
          |ry      |or set qualifications for  |operate a laboratory,      |
          |Owners  |ownership.                 |requires ownership         |
          |        |                           |disclosure down to 5%      |
          |        |                           |interest.                  |
          |--------+---------------------------+---------------------------|
          |        |                           |Tracks change of ownership |
          |        |                           |and requires notification  |
          |        |                           |of CDPH within 30 days.    |
          |--------+---------------------------+---------------------------|
          |        |                           |Holds owner and director   |
          |        |                           |jointly and severally      |








                                                                    AB 1774


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          |        |                           |responsible for actions of |
          |        |                           |the lab.                   |
          |--------+---------------------------+---------------------------|
          |Physicia|Defines POL as a           |Closely defines POL and    |
          |n       |self-designated status.    |allows up to 5 doctors to  |
          |Office  |Does not specify limits to |oversee a POL to test on   |
          |Laborato|number of physicians or    |their own patients.  More  |
          |ries    |receipt of referral        |than 5 owners are required |
          |(POL)   |specimens from outside     |to register or be licensed |
          |        |physicians.                |as a laboratory.           |
          |--------+---------------------------+---------------------------|
          |Complain|CLIA does not address      |Performs complaint         |
          |ts      |business processes other   |investigations of          |
          |        |than Medicare, doesn't     |laboratories, offsite      |
          |        |certify or inspect         |collection stations,       |
          |        |stand-alone specimen       |inducement issues, or      |
          |        |collection sites, and does |personnel issues.          |
          |        |not address inducement     |                           |
          |        |issues, such as the        |                           |
          |        |provision of personnel or  |                           |
          |        |supplies in exchange for   |                           |
          |        |referrals of laboratory    |                           |
          |        |work.                      |                           |
          |--------+---------------------------+---------------------------|
          |Reportin|Do not require reporting   |Requires laboratories to   |
          |g of    |of infectious diseases as  |report infectious diseases |
          |Infectio|a condition of licensure.  |as a condition of          |
          |us      |                           |licensure.                 |
          |Diseases|                           |                           |
          |        |                           |                           |
          |--------+---------------------------+---------------------------|
          |Payment |Does not address           |Prohibits soliciting,      |
          |for     |fraudulent collection of   |selling, or buying blood   |
          |Blood   |blood samples.             |or other biological        |
          |Specimen|                           |specimens to laboratories, |
          |s       |                           |except for research,       |
          |        |                           |teaching, or quality       |
          |        |                           |assurance purposes.        |
          |--------+---------------------------+---------------------------|








                                                                    AB 1774


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          |Autoveri|Does not have a provision  |Allows autoverification    |
          |fication|for autoverification using |using a computer algorithm |
          |        |a computer algorithm in    |in conjunction with        |
          |        |conjunction with automated |automated instrumentation  |
          |        |instrumentation to review  |to review and verify the   |
          |        |and verify the results of  |results of clinical        |
          |        |clinical laboratory tests  |laboratory tests for       |
          |        |for accuracy and           |accuracy and reliability.  |
          |        |reliability.               |Requires annual review by  |
          |        |                           |director.                  |
          |        |                           |                           |
          |--------+---------------------------+---------------------------|
          |Posting |Does not require posting   |Requires personnel         |
          |of      |of personnel licenses in a |laboratory licenses to be  |
          |Personne|clinical laboratory.       |posted in a clinical       |
          |l       |                           |laboratory.                |
          |Licenses|                           |                           |
          |        |                           |                           |
          |--------+---------------------------+---------------------------|
          |Certific|Biennial certificate.      |Annual license and         |
          |ate and |                           |registration renewal.      |
          |Licensur|                           |                           |
          |e       |                           |                           |
          |Period  |                           |                           |
          |--------+---------------------------+---------------------------|
          |Histopat|Does not require direct    |Requires direct            |
          |hology  |supervision of personnel   |supervision by a           |
          |        |performing dissection,     |pathologist of a person    |
          |        |slide preparation or       |engaged in histological    |
          |        |staining of specimens for  |dissection when the person |
          |        |histological examination   |assisting a pathologist is |
          |        |because CLIA does not      |not board-certified.       |
          |        |consider these technical   |                           |
          |        |components to be testing.  |                           |
          |        |                           |                           |
          |--------+---------------------------+---------------------------|
          |Control |Federal government sets    |California controls        |
          |        |rules through regulation   |statutes and regulations,  |
          |        |and publication of         |with statutory changes     |








                                                                    AB 1774


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          |        |guidelines.                |subject to legislative     |
          |        |                           |authority and review.      |
           ---------------------------------------------------------------- 
          


          State Audit Reports.  In 2008, the California Bureau of State  
          Audits published an audit report on the effectiveness of LFS  
          titled Department of Public Health: Laboratory Field Services'  
          Lack of Clinical Laboratory Oversight Places the Public at Risk.  
           The report concluded that the LFS had not provided its state  
          mandated oversight of labs, struggled to respond to complaints,  
          and did not have sufficient controls for its policies and  
          procedures.  The LFS attributes these issues to a lack of  
          funding, but failed to properly increase fees.  The report  
          further detailed missed opportunities for the LFS to leverage  
          its resources to help meet their state mandated requirements.


          The State Auditor recently published its 2015 update report  
          (Follow-up - California Department of Public Health: Laboratory  
          Field Services is Unable to Oversee Clinical Laboratories  
          Effectively, but a Feasible Alternative Exists).  The update  
          concluded that the LFS is still not performing its mandated  
          oversight requirements.  Although the LFS has made progress in  
          rectifying issues raised in the 2008 report, the LFS continues  
          to be ineffective in maintaining laboratory oversight.   
          Additionally, the LFS made an unauthorized fee increase in 2015  
          that resulted in laboratories overpaying by more than $1  
                                                                million.  Since the 2008 report, the LFS has collected more than  
          $12 million in laboratory fees that have not been spent.   
          Despite this surplus, the LFS still faces personnel shortages  
          and continues to miss inspections, handle complaints and conduct  
          proficiency testing.


          The LFS has also demonstrated problems with its proficiency  
          testing program, sanctioning program, and complaint inspection.   
          According to the State Auditor, the LFS has not established  








                                                                    AB 1774


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          timeframes for complaint investigation, resolution, or follow  
          up.  The LFS has only sanctioned four facilities since 2007 and  
          did not collect any civil money penalties during the audit  
          period.  In one case, the LFS took more than 15 months to fine a  
          laboratory after investigating and confirming use of unlicensed  
          laboratory personnel. Furthermore, the Auditor found that the  
          LFS has not inspected half of the required laboratories in the  
          State, and has not inspected any of the required out-of-state  
          labs.  State law has required inspection of out-of-state  
          laboratories since 1996, but LFS did not begin inspecting them  
          until November 2014.  In 2014, the LFS failed to inspect 93% of  
          these labs.


          According to the State Auditor, "we believe Laboratory Services'  
          workload largely duplicates federal oversight with no meaningful  
          benefit to consumers. State law and CLIA are nearly equivalent  
          in their mandates, and the oversight each requires is redundant:  
          Both Laboratory Services and CMS collect fees from laboratories  
          to perform inspections, monitor proficiency testing, investigate  
          complaints, and issue sanctions. Eliminating the portion of  
          Laboratory Services that we have found to be exceedingly  
          deficient for many years would end the duplicate oversight and  
          the duplicate fees. CMS has processes in place to ensure that it  
          effectively administers CLIA; therefore, relying on CLIA would  
          keep the public health benefits of laboratory monitoring intact,  
          as they are today, while reducing the regulatory burden on  
          California's clinical labs."


          In short, the current system of state licensure for clinical  
          laboratories may not provide any additional benefits or  
          protections to consumers.


          Prior Related Legislation. SB 744 (Strickland), Chapter 201,  
          Statutes of 2009, authorized LFS to contract with accreditation  
          organizations, if approved by LFS, to serve as the state  
          inspecting agent.  If a laboratory earned accreditation from one  








                                                                    AB 1774


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          of these organizations, the laboratory would meet the state  
          inspection requirement. This bill was sponsored by the CDPH.


          ARGUMENTS IN SUPPORT: 


          The  California Society of Pathologists  writes in support, "[This  
          bill] does not disrupt current unique California personnel  
          standards or the enforcement of those standards. The specifics  
          of the reform can be debated but it is clear that reform of the  
          current LFS licensing authority is long overdue."


          The  California Society of Dermatology & Dermatological Surgery  
          (CalDerm)  writes in support, "This bill would save precious  
          health care resources by ending the State's redundant licensing  
          requirements - including ending the cost of redundant licenses  
          and enabling inspection and enforcement personnel to focus on  
          more critical issues."


          The  California Chapters of American College of Physicians  write  
          in support, "This bill would save precious health care resources  
          by ending the State's redundant licensing requirements -  
          including ending the cost of redundant licenses and enabling  
          inspection and enforcement personnel to focus on more critical  
          issues."


          The  California Hospital Association  writes in support, "The  
          [2015 State Auditor's report states] that since the problems  
          that have plagued LFS have persisted, the state's consumers  
          have, in effect, been relying on federal oversight from the  
          [CMS] through its administration of [CLIA]. LFS' oversight of  
          laboratory facilities largely duplicates federal oversight with  
          no meaningful benefit to consumers, yet both LFS and CMS collect  
          fees from laboratories to perform inspections, monitor  
          proficiency testing, investigate complaints, and issue  








                                                                    AB 1774


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          sanctions. [This bill] would repeal state law requiring that  
          laboratory facilities be licensed by the state, thus reducing  
          the regulatory and financial burden on laboratory facilities.  
          CHA does support the continuation of the personnel standards and  
          any efforts to ensure the enforcement of these standards."


          ARGUMENTS IN OPPOSITION:


          The  Engineers and Scientists of California, IFPTE Local 20   
          writes in opposition, "Federal law is different in this area and  
          the feds are not going to enforce this state's laws. Rather, we  
          should be providing more stringent direction to the [CDPH] and  
          [LFS] to ensure that they do their job protecting patients."


          The  California Labor Federation  writes in opposition, "[T]he  
          repeal of California laws regulating clinical laboratories would  
          only erode quality standards. California's regulations were put  
          into place to respond to specific concerns, and despite the  
          regulator's lack of oversight, those laws are still needed.  We  
          cannot depend on the federal government to enforce state law.  
          Rather than throw out state law, we should work to find a way to  
          make the state regulator more effective and thereby preserve  
          important state protections for patients and workers."


          The  California Association of Bioanalysts (CAB)  writes in  
          concern, "We urge you to address the root cause for the  
          unfavorable State audit, rather than reacting hastily to abolish  
          a licensure that, as far as the CAB is concerned, has provided  
          the clinical laboratories in the State of California with much  
          needed oversight and accountability."


          IMPLEMENTATION ISSUES:










                                                                    AB 1774


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          1)If the state clinical laboratory license requirements are  
            removed, all medical and laboratory records should be  
            maintained.
          2)If state licensure of a clinical laboratory is repealed, CDPH  
            should maintain its authority to inspect labs for personnel  
            standards and impose corrective actions or citations and  
            fines, as appropriate. The appropriate number and frequency of  
            inspections is debatable and the practicality of surprise  
            inspections versus scheduled biennial inspections may not be  
            implemented in such a way that clinical laboratories maintain  
            the highest level of consumer protection in regards to tests  
            and examinations, record maintenance, and proper training of  
            employees.


          3)It may be useful to amend the current state licensure  
            structure to a modified compliance structure. This modified  
            structure would require CDPH to recognize accreditation  
            organizations that are approved under the federal CLIA and  
            require CDPH to monitor labs for compliance with state  
            standards that are more stringent than federal standards. This  
            modified structure would also authorize the state to  
            concentrate its resources on upholding personnel standards,  
            allowing the CDPH to focus on the provisions that go above and  
            beyond what is required by the federal CLIA, during  
            inspections and complaint investigations.


          4)Although stakeholders maintain there are distinct and  
            stringent differences between state and federal law, it is  
            unclear what those differences actually are, and can make  
            inspections, mandated or not, difficult to conduct  
            consistently.  The author should consider requiring CDPH to  
            make these differences available to the public.


          Amendments:










                                                                    AB 1774


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          1)To address the maintenance of records issue raised above, the  
            bill should be amended as follows:


            On page 25 after lines 1-6, insert:


            "1272.1(a) Whenever a clinical laboratory ceases operations,  
            the laboratory owners, or delegated representatives of the  
            owners, and the laboratory directors shall notify the  
            department of this fact, in writing, within 30 calendar days  
            from the date a clinical laboratory ceases operation. For  
            purposes of this subdivision, a laboratory ceases operations  
            when it suspends the performance of all clinical laboratory  
            tests or examinations for 30 calendar days at the location for  
            which the clinical laboratory is licensed or registered.


            (b)(1) Notwithstanding any other provision of law, owners and  
            laboratory directors of all clinical laboratories, including  
            those laboratories that cease operations, shall preserve  
            medical records and laboratory records, as defined in this  
            section, for three years from the date of testing,  
            examination, or purchase, unless a longer retention period is  
            required pursuant to any other provision of law, and shall  
            maintain an ability to provide those records when requested by  
            the department or any duly authorized representative of the  
            department.


            (2) For purposes of this subdivision, "medical records" means  
            the test requisition or test authorization, or the patient's  
            chart or medical record, if used as the test requisition, the  
            final and preliminary test or examination result, and the name  
            of the person contacted if the laboratory test or examination  
            result indicated an imminent life-threatening result or was of  
            panic value.










                                                                    AB 1774


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            (3)For purposes of this subdivision, "laboratory records"  
            means records showing compliance with CLIA and this chapter  
            during a laboratory's operation that are actual or true  
            copies, either photocopies or electronically reproducible  
            copies, of records for patient test management, quality  
            control, quality assurance, and all invoices documenting the  
            purchase or lease of laboratory equipment and test kits,  
            reagents, or media.


            (4)Information contained in medical records and laboratory  
            records shall be confidential, and shall be disclosed only to  
            authorize persons in accordance with federal, state, and local  
            laws.


            (c)The department or any person injured as a result of a  
            laboratory's abandonment or failure to retain records pursuant  
            to this section may bring an action in a court of proper  
            jurisdiction for any reasonable amount of damages suffered as  
            a result thereof."


          2)To address the issue of enforcement authority, the author  
            should amend the bill to include: 
             a)   Authority for CDPH to impose corrective actions,  
               citations and fines, and sanctions; and, 
             b)   Authority for CDPH to enter clinical laboratories to  
               enforce state law and regulation including, but not limited  
               to, state standards that are more stringent than federal  
               standards.


          3)To address the issue of a modified compliance structure, the  
            author should amend the bill to: 
             a)   Require CDPH to recognize accreditation organizations  
               that are approved under the federal CLIA;
             b)   Require CDPH to monitor, inspect and investigate  
               unaccredited laboratories for compliance with state  








                                                                    AB 1774


                                                                     Page 29





               standards that are more stringent than federal standards;  
               and,


             c)   Authorize the state to concentrate its resources on  
               upholding personnel standards


          4)To address the issue of transparency in differences between  
            state and federal law with respect to clinical laboratories,  
            the author should amend the bill to:
            Require CDPH post on its Internet web site, a comprehensive  
            list of the differences between state and federal law.


          REGISTERED SUPPORT:  


          California Society of Pathologists


          California Society of Dermatology & Dermatologic Surgery  
          (CalDerm)


          California Chapters of American College of Physicians


          California Hospital Association


          REGISTERED OPPOSITION:  


          Engineers and Scientists of California, IFPTE Local 20


          California Labor Federation









                                                                    AB 1774


                                                                     Page 30






          California Association of Bioanalysts




          Analysis Prepared by:Gabby Nepomuceno / B. & P. / (916)  
          319-3301,  Vincent Chee / B. & P. / (916) 319-3301