BILL ANALYSIS Ó SENATE COMMITTEE ON HEALTH Senator Ed Hernandez, O.D., Chair BILL NO: AB 2179 --------------------------------------------------------------- |AUTHOR: |Gipson | |---------------+-----------------------------------------------| |VERSION: |June 22, 2016 | --------------------------------------------------------------- --------------------------------------------------------------- |HEARING DATE: | June 29, 2016 | | | --------------------------------------------------------------- --------------------------------------------------------------- |CONSULTANT: |Melanie Moreno | --------------------------------------------------------------- SUBJECT : Hepatitis C testing SUMMARY : Authorizes a hepatitis C counselor who meets specific requirements to perform any hepatitis C virus (HCV) test that is classified as waived under the federal Clinical Laboratory Improvement Act. Existing federal law: 1)Defines "laboratory" or "clinical laboratory" (lab or clinical lab) as a facility for the biological, microbiological, serological, chemical, immuno-hematological, hematological, biophysical, cytological, pathological, or other examination of materials derived from the human body for the purpose of providing information for the diagnosis, prevention, or treatment of disease or impairment or health assessment of human beings. 2)Requires labs to obtain a certificate, meet quality standards, and undergo inspections, among other things, before accepting materials derived from the human body. Exempts laboratories with a certificate of waiver from the Clinical Laboratory Improvement Amendments (CLIA), provided that the laboratory follows the manufacturer's instructions. 3)Provides that a lab is eligible for a certificate of waiver if it only performs "waived tests," which are simple examinations and procedures that: a) Have been approved by the Food and Drug Administration (FDA) for home use; b) The FDA has determined are so simple and accurate that there is a negligible chance of erroneous results; or, AB 2179 (Gipson) Page 2 of ? c) Pose no unreasonable risk of harm to the patient if performed incorrectly. 4)Authorizes a state to enact and enforce laws relating to CLIA to the extent that the state laws are not inconsistent with the CLIA laws and regulations. Existing state law: 1)Provides for the licensure, registration, and regulation of clinical labs and various clinical lab personnel by the Department of Public Health (DPH). 2)Prohibits a person from performing a clinical lab test or examination classified as waived under CLIA unless the clinical lab test or examination is performed under the overall operation and administration of the lab director, as specified, and the test is performed by one the following persons if within the person's scope of practice: a) A licensed physician and surgeon holding a M.D. or D.O. degree; b) A licensed podiatrist, a licensed dentist, or a licensed naturopathic doctor; c) A person licensed in California to engage in clinical laboratory practice or to direct a clinical laboratory; d) A person authorized by a local health laboratory to perform tests pursuant to a certificate issued by the DPH; e) A licensed physician assistant; f) A licensed nurse; g) A licensed vocational nurse; h) A certified perfusionist (a specialized healthcare professional who uses the heart-lung machine during cardiac surgery and other surgeries that require cardiopulmonary bypass to manage the patient's physiological status); i) A licensed respiratory care practitioner; j) A medical assistant; aa) A pharmacist; bb) A naturopathic assistant; cc) A licensed optometrist; dd) Other health care personnel providing direct patient care; or, ee) Any other person performing non-diagnostic AB 2179 (Gipson) Page 3 of ? testing. 3)Establishes the Office of AIDS (OA) within DPH as the lead agency within the state, responsible for coordinating state programs, services, and activities relating to HIV/AIDS, and AIDS-related conditions (ARC). 4)Requires DPH to authorize the establishment of training programs throughout the state for counselors for publicly funded HIV testing programs. 5)Permits a HIV counselor to perform a HIV, HCV, or combination HIV/HCV test that is classified as waived under CLIA if the following conditions exist: a) The performance of the HIV, HCV, or combination HIV/HCV test meets the requirements of CLIA and the California clinical lab requirements. b) The HIV counselor meets one of the following criteria: i. Is trained by the OA and working in a HIV counseling and testing site funded by the DPH through a local health jurisdiction, or its agents; ii. Is working in a HIV counseling and testing site that utilizes HIV counseling staff who are trained by the OA or its agents; or, has a quality assurance plan approved by the local health department in the jurisdiction where the site is located and has HIV counseling and testing staff who comply with the quality assurance requirements as specified by DPH. c) The HIV, HCV, or combination HIV/HCV test is performed under the overall operation and administration of a lab director; d) The patient is informed that the preliminary result of the test is indicative of the likelihood of HIV infection or HCV exposure and that the result must be confirmed by an additional more specific test, or, if approved by the federal Centers for Disease Control and Prevention (CDC) for that purpose, a second different rapid HIV, HCV, or combination HIV/HCV test; and, e) If performing skin punctures for the purpose AB 2179 (Gipson) Page 4 of ? of withdrawing blood for HIV, HCV, or combination HIV/HCV testing, the counselor must: i. Work under the direction of a licensed physician and surgeon; ii. Have specific authorization from a licensed physician and surgeon; and, iii. Be trained in both rapid HIV, HCV, or combination HIV/HCV test proficiency for skin puncture blood tests and oral swab tests and in universal infection control precautions, consistent with best infection control practices established by the Division of Occupational Safety and Health (DOSH) in the Department of Industrial Relations (DIR) and the CDC. 6) Permits a HIV counselor to order and report the results from the HIV, HCV, or combination HIV/HCV test to a patient without authorization from a licensed health care professional or the patient's authorized representative. 7) Requires patients with indeterminate or positive results from the HIV, HCV, or combination HIV/HCV test be referred to a licensed health care provider whose scope of practice includes the authority to refer patients for laboratory testing for further evaluation. 8) Provides that a HIV counselor is not authorized to perform any other test unless that person meets the statutory and regulatory requirements for performing the other test. This bill: 1)Requires HCV counselors to meet one of the following criteria: a) Be trained by the OA and work in a HIV counseling and testing site funded by DPH through a LHJ, or its agents. b) Work in a HIV counseling and testing site that: c) Utilize HIV counseling staff who are trained by OA or its agents to provide both HIV counseling and testing and hepatitis C counseling and testing; d) Have and retain a quality assurance plan approved by the local health department (LHD) in the jurisdiction where the site is located and have HIV AB 2179 (Gipson) Page 5 of ? counseling and testing staff who comply with the quality assurance requirements as specified by DPH; and, e) Work at a site approved by the LHD to provide HCV rapid testing and counseling, and has been trained using a curriculum approved by the LHD, and retained by the site, or approved by DPH, which, at a minimum, provides training in universal precautions, safe working conditions, proper running and reading of HCV rapid test kit technology, and providing accurate information to clients including the importance of confirmatory tests, linkages to medical care, and the prevention of HCV transmission. 2)Permits HCV counselors who meet these requirements to: a) Perform any HCV test that is classified as waived under CLIA if: i. The performance of the HCV test meets the requirements of CLIA and state law. ii. In the case of performing skin punctures for the purpose of withdrawing blood for waived HCV testing, specific authorization from a licensed physician is obtained and the person: 1) Works under the direction of a licensed physician and surgeon. 2) Has been trained in rapid test proficiency for skin puncture blood tests and in universal infection control precautions, consistent with best infection control practices established by the Division of Occupational Safety and Health in the Department of Industrial Relations and the CDC. iii. The person performing the HCV test meets the requirements for the performance of waived laboratory testing pursuant to existing state law 2) above. iv. The patient is informed that the preliminary result of the test is indicative of the likelihood of HCV exposure and that the result must be confirmed by an additional more AB 2179 (Gipson) Page 6 of ? specific test, or, if approved by the CDC for that purpose, a second, different rapid HCV test. b) Order and report HCV test results from tests to patients without authorization from a licensed health care practitioner or his or her authorized representative. Requires a patient who has an indeterminate or positive test result to be referred to a licensed health care practitioner whose scope of practice includes the authority to refer a patient for laboratory testing for further evaluation. 3)Prohibits a HIV counselor who meets the requirements of this bill with respect to performing any CLIA-waived HCV from performing any other test unless that person meets the statutory and regulatory requirements for performing that other test. 4)Specifies that compliance with this bill does not fulfill any requirements for certification as a phlebotomy technician or a limited phlebotomy technician, unless the HCV counselor has otherwise satisfied the certification requirements imposed pursuant to existing state law. FISCAL EFFECT : According to the Assembly Appropriations Committee, uncertain, potential cost pressure to the DPH. This bill does not place direct requirements on the department, but is intended to allow local health jurisdictions (LHJs) flexibility to approve and implemented their own training programs. However, DPH indicates cost pressure in the hundreds of thousands of dollars to promulgate and implement regulations, provide technical assistance, and review, approve, and potentially implement Hepatitis C counselor trainings. PRIOR VOTES : ----------------------------------------------------------------- |Assembly Floor: |80 - 0 | |------------------------------------+----------------------------| |Assembly Appropriations Committee: |20 - 0 | |------------------------------------+----------------------------| |Assembly Business and Professions |16 - 0 | |Committee: | | AB 2179 (Gipson) Page 7 of ? ----------------------------------------------------------------- COMMENTS : 1)Author's statement. According to the author, the hepatitis C virus (HCV) is a communicable disease that is spread by blood-to-blood contact. If untreated, HCV can lead to liver cancer, liver disease, cirrhosis, and death. Early detection reduces the likelihood of disease progression, reduces costs of treatment, and prevents new infections in the community. It is necessary that California reduce the costs and procedural barriers for training non-medical personnel to perform rapid HCV tests in order that local health departments can respond in a manner that is safe and appropriate to the urgency of the epidemic. AB 2179 would allow local health jurisdictions (LHJs) as well as CDPH, to certify training standards for hepatitis C test counselors to administer low-risk, easy-to-use, finger-stick rapid tests that meet the standards for "waiver" under the federal Clinical Laboratory Improvement Amendments of 1988 (CLIA). The bill would remove the prerequisite that personnel be trained to administer an HIV rapid test before be trained to administer the hepatitis C rapid test. Only persons working in sites authorized by LHJs to offer HCV rapid testing would be allowed to administer CLIA-compliant tests. Background. According to DPH, hepatitis C is a liver disease caused by HCV and usually spread through blood. People can become infected through sharing needles, needle-stick injuries in health care settings, or being born to a mother who has hepatitis C. Less commonly, a person can also get HCV infection through sharing personal care items that may have come in contact with another person's blood (like razors or toothbrushes), or having sexual contact with a person infected with the virus. Hepatitis C can be either "acute" or "chronic," and can range in severity from a mild illness lasting a few weeks to a lifelong illness. According to the CDC, millions of Americans have hepatitis C, but most don't know it, because people often have no symptoms and can live with an infection for decades without SB 1303 | Page 3 feeling sick. About 80 percent who have HCV infection develop a chronic, or lifelong, infection. Hepatitis C is a leading cause of liver cancer and the leading cause of liver transplants. According to data from 1999 to 2008, about three-fourths of U.S. patients with HCV infection were born between 1945 and 1965. The most important risk factor for HCV AB 2179 (Gipson) Page 8 of ? infection is past or current IDU, with most studies reporting a prevalence of 50 percent or more. The incidence of HCV infection was more than 200,000 cases per year in the 1980s but decreased to 25,000 cases per year by 2001. According to the CDC, there were an estimated 16,000 new cases of HCV infection in 2009 and an estimated 15,000 deaths in 2007. USPSTF recommendations. Released in June 2013, the USPSTF recommendations for HCV infection screening apply to all asymptomatic adults without known liver disease or functional abnormalities. Persons born between 1945 and 1965 are more likely to be diagnosed with HCV infection, possibly because they received blood transfusions before the introduction of screening in 1992 or have a history of other risk factors for exposure decades earlier. The recommendations state that a risk-based approach may miss detection of a substantial proportion of HCV-infected persons in the birth cohort because of a lack of patient disclosure or knowledge about prior risk status. As a result, one-time screening for HCV infection in the birth cohort may identify infected patients at earlier stages of disease who could benefit from treatment before developing complications from liver damage. Federal and state lab requirements. Under the federal CLIA law, labs that perform tests on human specimens must be certified by the Centers for Medicare and Medicaid Services (CMS). The requirements for CLIA certification vary depending on the complexity of the laboratory tests performed. The three complexities are waived, moderate, and high complexity. In general, the more complicated the test, the more stringent the requirements under CLIA. As defined by CLIA, waived tests are simple tests with a low risk for an incorrect result. Waived tests include tests listed in the CLIA regulations, tests cleared by the FDA for home use, and tests approved for waiver by the FDA using the CLIA criteria. In order for the FDA to approve a test device as waived, the manufacturer must show that the test is accurate and consistent when performed by untrained individuals. This includes performing studies conducted using participants without laboratory training, no prior experience of the test, and no verbal instruction. The study participants must be able to generate accurate results using only the product label and included instructions. AB 2179 (Gipson) Page 9 of ? Because waived tests are essentially consumer-level products, facilities that use only waived tests are eligible for a certificate of waiver. Those with a certificate of waiver are not subject to the CLIA requirements as long as the tests are performed according to the manufacturer's instructions. However, CLIA still requires that all laboratories meet individual state personnel license requirements. Under California law, all laboratory tests classified under CLIA must be performed by personnel specified in statute under the overall operation and administration of a laboratory director, with limited exceptions. As of 2014, California is one of 15 other states that regulate laboratories in addition to the CLIA standards. HIV and HCV counselors. Existing law allows HIV counselors to perform a HIV, HCV, and combination HIV/HCV test as long as it is classified as waived under CLIA, the facility or clinic has obtained a certificate of waiver from CMS and DPH approval, and the HIV counselor has attended trainings specific to each type of test. Currently, the OA establishes or approves a local health jurisdiction's (LHJ's) HIV Counseling and Testing (C&T) training programs, which are conducted by community-based, non-profit HIV organizations for HIV testing. However, not all LHJs are able to access the trainings. According to the OA's Integrated HIV Surveillance, Prevention, and Care Plan (Integrated Plan), budget cuts during fiscal year 2009-10 reduced the OA's funding for many of its AIDS programs. Since 2012, the majority of the OA's HIV prevention activities have been funded solely through a five-year funding opportunity from the CDC. The program established three funding areas in California: the Los Angeles and San Francisco Metropolitan Statistical Areas (which receive funds directly from the CDC), and the California Project Area (CPA). The CPA includes a limited number of LHJs that have demonstrated a high incidence of HIV. LHJs within the CPA receive the C&T training as a part of the CDC's program, but the remaining LHJs must pay for the C&T training out of their own funds and spaces within the C&T trainings are limited. The sponsor notes that having to pay out of pocket for the C&T training burdens the LHJs that have not met the HIV-incidence thresholds but may still have a high incidence of HCV. Currently, the counselors working in LHJs outside of the CPA AB 2179 (Gipson) Page 10 of ? cannot attend the HCV C&T training without attending the HIV C&T training. If the LHJ does not have the funds or the offered training is full, the counselor will be unable to provide HCV testing and screening at the testing site. This bill seeks to remedy this issue in two ways: 1) authorizing a LHJ to approve a HCV C&T training program and 2) authorizing a HCV counselor who works at a testing site approved by the LHJ to perform a CLIA-waived HCV test after attending the training program. Double referral. This bill was heard in the Senate Business and Professions Committee on June 21, 2016, and passed with a 9-0 vote. Previous legislation. AB 761(Roger Hernández, Chapter 714, Statutes of 2012), provides that a laboratory director may include a licensed optometrist and authorizes an optometrist to perform certain clinical laboratory tests or examinations classified as waived under CLIA. SB 1481(Negrete McLeod Chapter 874, Statutes of 2012), allows pharmacists to perform specific CLIA waived tests without the supervision of a laboratory director. AB 1382 (Roger Hernández, Chapter 643, Statutes of 2011), authorized HIV test counselors to perform HCV or combined HIV/HCV tests in addition to HIV tests. AB 221 (Portantino, Chapter 421, Statutes of 2009), among other things, removed the HIV counselor training equivalency credit towards a limited phlebotomy technician certification and instead exempted an HIV counselor who works under a licensed physician and surgeon, and who is trained in rapid HIV test proficiency and universal infection control precautions, from the requirement that he or she hold a valid certification as a phlebotomist technician. AB 685 (Leno, Chapter 2, Statutes of 2004), provided that HIV counselors that completed HIV counselor training were deemed to have met the requirements for certification as a limited phlebotomy technician. AB 1263 (Migden, Chapter 324, Statutes of 2001), among other things, authorized HIV counselors to perform HIV tests classified as waived under CLIA. AB 2179 (Gipson) Page 11 of ? Support. Project Inform is the sponsor of this bill and states current state law allows non-medical personnel to administer HCV rapid tests in compliance with CLIA standards, but only if personnel are working at a DPH-OA funded site, or authorized by a LHJ; have been trained to administer an HIV testing and counseling using a DPH-OA approved curriculum; and have completed an additional HCV test counseling and testing module approved by DPH-OA. The sponsor notes this bill will give local governments greater flexibility and reduce costs related to training non-medical personnel to administer the rapid test to screen for HCV in community settings by allowing LHJs as well as DPH to certify training standards for HCV rapid test counselors. Mendocino County AIDs/Viral Hepatitis Network (MCAVNH) supports this bill stating that they are the only HIV/IDS/HCV service-oriented, community based harm reduction organization in all of Mendocino County. MCAVNH notes that they have adapted their services to assist those with multiple co-morbid conditions, and within Mendocino County persons who inject drugs have a projected HCV positive rate of 85%, and that early detection reduces the likelihood of disease progression, reduces costs of treatment, and prevents new infections in the community. MCAVNH concludes that California must reduce the costs and procedural barriers for training non-medical personnel to perform rapid HCV tests in order that local health departments can respond in a manner that is safe and appropriate to the urgency of the epidemic. SUPPORT AND OPPOSITION : Support:Project Inform (sponsor) Access Support Network AIDS Community Research Consortium Asian Pacific Health Foundation Bay Area Black Nurses Association California Black Health Network California Chronic Care Coalition California Hepatitis Alliance California Life Sciences Association C.O.R.E. Medical Clinic, Inc. Desert AIDS Project Drug Policy Alliance Harm Reduction Coalition AB 2179 (Gipson) Page 12 of ? Health Officers Association of California HIV Education and Prevention Project of Alameda County Mendocino County AIDS/Viral Hepatitis Network San Francisco Hepatitis C Task Force S.T.O.P. Hepatitis Task Force Wall Las Memorias Project Oppose: None received -- END --