BILL ANALYSIS                                                                                                                                                                                                    Ó



          SENATE COMMITTEE ON
          BUSINESS, PROFESSIONS AND ECONOMIC DEVELOPMENT
                              Senator Jerry Hill, Chair
                                2015 - 2016  Regular 

          Bill No:            SB 1418         Hearing Date:    April 18,  
          2016
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          |Author:   |Lara                                                  |
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          |Version:  |April 13, 2016                                        |
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          |Urgency:  |No                     |Fiscal:    |Yes              |
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          |Consultant|Sarah Huchel                                          |
          |:         |                                                      |
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                        Subject:  Clinical laboratory testing


          SUMMARY:  Allows direct access laboratory (lab) testing and does not  
          require a healing arts licensee to review the results of a lab  
          test he or she did not order.  

          Existing state law:
          
         1)Provides for the licensure, registration, and regulation of  
            clinical laboratories and various clinical lab personnel,  
            including cytotechnologists, by the California Department of  
            Public Health.  (Business and Professions Code (BPC) §§  
            1200-1327)


          2) States that the chapter regulating clinical labs does not  
             authorize any person to practice medicine and surgery or to  
             furnish the services of physicians for the practice of  
             medicine and surgery. Current law further emphasizes that the  
             chapter does not repeal or in any manner affect any provision  
             of this code relating to the practice of medicine.  (BPC §  
             1240)

          3) Defines "diagnose" or "diagnosis" for the purposes of  
             regulating the practice of medicine to include any  
             undertaking by any method, device, or procedure whatsoever,  
             and whether gratuitous or not, to ascertain or establish  
             whether a person is suffering from any physical or mental  







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             disorder. Such terms shall also include the taking of a  
             person's blood pressure and the use of mechanical devices or  
             machines for the purpose of making a diagnosis and  
             representing to such person any conclusion regarding his or  
             her physical or mental condition.  (BPC § 2038)

          4) States that any person may request, and any registered lab  
             may perform, the following waived lab tests:  pregnancy,  
             glucose level, cholesterol, occult blood, and any other test  
             for which there is a test 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. The  
             results from any test may be provided directly to the person  
             requesting the test if the test is on or for his or her own  
             body. These test results shall be provided in a manner that  
             presents clear information and that identifies results  
             indicating the need for referral to a physician and surgeon.   
             (BPC § 1246.5)

          5) Requires a person conducting or operating a clinical lab to  
             accept assignments for tests only from and make reports only  
             to persons licensed under the provisions of law relating to  
             the healing arts or their representatives.  A report of  
             results issuing from a clinical lab shall show clearly the  
             name and address of the lab and the name of the director.   
             (BPC § 1288)

          Existing federal law:
          
          1)Establishes conditions that laboratories must meet for  
            certification to perform testing on human specimens under  
            Clinical Laboratory Improvement Amendments (CLIA).  (Title 42,  
            Code of Federal Regulations (CFR) § 493.1)

          2)Establishes standard requirements for information presented on  
            clinical lab test reports.  (42 CFR § 493.1291) 
          This bill:

          1) Authorizes a person to request, and a licensed clinical lab  
             or public health lab to perform, any lab test that the  
             laboratory offers to the public without an order from a  
             healing arts licensee or their representative. 

          2) States that if a lab test of a person is conducted without an  








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             order from a healing arts licensee or their representative,  
             the test results shall be provided to the person who was the  
             subject of the test. 

          3) Requires the test results report to state in bold type that  
             it is the responsibility of the person who was tested to  
             arrange with his or her health care provider for consultation  
             and interpretation of the test results. 

          4) States that a healing arts licensee is not required to review  
             or act on a lab test result if the healing arts licensee or  
             their representative did not order the lab test.  States that  
             a healing arts licensee shall not be subject to liability or  
             disciplinary actions for failure to review or act on the  
             results of a lab test of any person if the healing arts  
             licensee or their representative did not order the lab test. 

          5) States that it does not require that any lab test be covered  
             by a health care service plan contract or health insurance  
             policy.

          6) Deletes provisions of law requiring assignments for tests  
             only from and to make reports only to persons licensed under  
             the provisions of law relating to the healing arts or their  
             representatives.    

          FISCAL  
          EFFECT:  This bill is keyed "fiscal" by the Legislative Counsel.

          COMMENTS:
          
          1. Purpose.  This bill is Author sponsored.  According to the  
             Author's office, "this bill would remove barriers in existing  
             law regarding individuals ordering their own laboratory  
             tests. It would open the market for Californians to all  
             laboratory tests, with [sic] having to be symptomatic in  
             order to get a doctor to order the test and insurance to pay  
             for it. 

             "The current restrictions ultimately result in costly  
             outcomes for patients and the health system itself, and  
             inhibit[s] individuals from accessing tests that will help  
             them prevent disease and illness, leading the State to be at  
             the forefront of a nationwide movement towards increased  








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             patient engagement, autonomy, and personal ownership of  
             health outcomes."

          2. Background.  The traditional gatekeeper model of healthcare  
             requires a licensed healthcare provider to order lab testing  
             for his or her patient.  The patient is tested by a lab,  
             which then provides the results to the provider who  
             interprets the results and consults with the patient.   
             However, deviations in this model began to appear in the  
             1950s, according to a 2012 policy paper by the American  
             Society for Clinical Laboratory Science, when certain  
             over-the-counter (OTC) urine tests became available.  This  
             progression accelerated with home diabetes testing,  
             increasing availability of other OTC tests, and now the  
             marketplace is opening further to accommodate direct access  
             testing for those tests a lab makes available to the public.

          3. State access laws.  California currently allows individuals  
             to obtain pregnancy, glucose, cholesterol, occult blood, and  
             any other OTC tests approved by the FDA without an order from  
             a healthcare licensee.
             
             According to information provided by Theranos, a company that  
             provides direct access testing, nine states allow consumers  
             to order some tests directly from a lab.  Last year, Arizona  
             passed HB 2645, which made it the first state to explicitly  
             allow consumers to order any publicly available test  
             directly.  
             
          4. Regulation of laboratory developed tests (LDTs).  As direct  
             access testing gathers momentum and companies develop new  
             technologies and business strategies to adapt, concerns have  
             been raised about the regulation of laboratory developed  
             tests (LDT). 

             FDA defines a LDT as an in vitro diagnostic test that is  
             intended for clinical use and designed, manufactured, and  
             used within a single lab.  LDTs are a significant part of the  
             direct access test market.  While LDTs were explicitly  
             included in the 1976 Medical Device Amendments to the Food,  
             Drug and Cosmetic (FD&C) Act, by its own admission, FDA has  
             generally not enforced those provisions.     

             The Centers for Medicare & Medicaid Services (CMS) regulates  








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             laboratories, including those that develop LDTs, under CLIA.  
             CLIA governs the accreditation, inspection and certification  
             process for laboratories, but they do not assess the clinical  
             validity of a LDT (i.e., the accuracy with which the test  
             identifies, measures, or predicts the presence or absence of  
             a clinical condition or predisposition in a patient).  

             The Office of Public Health Strategy and Analysis Office  
             within the FDA issued a report on November 16, 2015 that  
             argued for increased FDA oversight of LDTs titled "The Public  
             Health Evidence for FDA Oversight of Laboratory Developed  
             Tests: 20 Case Studies  of the Commissioner Food and Drug  
             Administration." 

             The report states, "As technology and science have advanced,  
             LDTs have increased in complexity and availability and are  
             now used to diagnose common, serious medical conditions,  
             including cancer and heart disease. Others guide therapy for  
             these and other conditions, while still others predict one's  
             personal risk of developing a particular disease. Some  
             individual laboratories that initially developed LDTs have  
             now morphed into separate businesses that market complex  
             tests nationwide. These activities take place in much larger  
             populations than the local or limited patient populations who  
             may have used these products four decades ago. As the field  
             of medicine evolves, the need for accurate, reliable, and  
             clinically meaningful tests is essential. ?But inaccurate or  
             unreliable LDTs and unsupported or disproven claims can  
             undermine progress in Precision Medicine and other fields."

             In addition to the lack of clinical validation, the report  
             notes the following concerns about LDTs:

                       Deficient adverse event reporting. 

                       No premarket review of performance data. 

                       Unsupported manufacturer claims. 

                       Inadequate product labeling. 

                       Lack of transparency. 

                       Threats to the scientific integrity of clinical  








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                  trials. 

                       No comprehensive listing of all LDTs currently  
                  being used. 


             Thus, while CLIA oversight is important, it alone does not  
             ensure that LDTs are properly designed, consistently  
             manufactured, and are safe and effective for patients.  

             FDA released a Draft Guidance for Regulatory Oversight of  
             LDTs (Guidance) on July 31, 2014 and intends to finalize it  
             this year.  The Guidance describes a risk-based framework for  
             regulating LDTs based on the existing medical device  
             classification system. According to the Guidance, "In  
             determining the risk an LDT poses to the patient and/or the  
             user, FDA will consider several factors including whether the  
             device is intended for use in high risk disease/conditions or  
             patient populations, whether the device is used for screening  
             or diagnosis, the nature of the clinical decision that will  
             be made based on the test result, whether a  
             physician/pathologist would have other information about the  
             patient to assist in making a clinical decision (in addition  
             to the LDT result), alternative diagnostic and treatment  
             options available to the patient, the potential  
             consequences/impact of erroneous results, [and] number and  
             type of adverse events associated with the device, etc."   
             Tests will be divided into three classes, on which FDA  
             intends to issue specific information within 18 months of the  
             Guidance's finalization.  

             This Guidance is timely because Theranos, an innovator in the  
             direct access space, has been recently highlighted in the  
             media about concerns with its LDT testing and clinical  
             practices.  CMS issued a letter in January 2016 indicating  
             Theranos' facility was not in compliance with certification  
             standards for CLIA and that their "deficient practices" pose  
             "immediate jeopardy to patient health and safety." The  
             following month, The Journal of Clinical Investigation  
             published a report questioning Theranos' lab results.  The  
             Journal published a study that tested 60 healthy adults using  
             Theranos' proprietary finger prick method (in which a smaller  
             volume of blood is drawn from a patient's finger) and a  
             traditional blood draw from two other major clinical testing  








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             services, Quest and LabCorp, to compare the respective  
             accuracy in 22 common clinical lab tests.  The analysis  
             indicated concerns with Theranos' testing system because the  
             samples were rejected at a higher rate than the other  
             companies,' and there were significant variations in results  
             between the testing services.  

             The report concluded that, "While laboratory practice  
             standards exist to control this variability [in testing  
             services, sample collection times, and subjects that  
             influenced the lab results], the disparities between the  
             testing services we observed could potentially alter clinical  
             interpretation and health care utilization.  Greater  
             transparency and evaluation of testing technologies would  
             increase their utility in personalized health management."   
             Essentially, broad use of LDT may not be in the best  
             interests of consumers until better regulation of the quality  
             of the testing and results are available.  

          1. Test results interpretation California law restricts the  
             ability to diagnose to certain licensed healthcare providers.  
              "Diagnose," as defined in law, includes the use of  
             mechanical devices for the purpose of representing any  
             conclusion regarding a person's medical condition.  Giving  
             consumers direct access to lab results places labs in a  
             delicate position of informing results without implying  
             disease.  
             
             This bill will require test results reports to state in bold  
             type that it is the responsibility of the person who was  
             tested to arrange with his or her health care provider for  
             consultation and interpretation of the test results.  
             Healthcare providers are also exempt from liability for  
             failing to review or act on a lab report that he or she did  
             not order.  
          
          2. Policy considerations.  Current law restricts the authority  
             for broad lab testing to licensed healthcare providers who  
             are in a better position than most consumers to understand  
             the possibilities and limitations of various lab tests.   
             Acknowledging the market deficiencies raised by the FDA and  
             its planned regulatory intervention, policymakers should  
             consider whether California should allow consumers direct  
             access to lab tests in advance of federal regulation, given  








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             the potential significant health impacts of false positives  
             and negatives.

          3. Author's amendments.  The Author is accepting the following  
             amendments to ensure greater quality for laboratory processes  
             and testing:
          
             On page 2, line 6, after "a," insert "laboratory certified by  
             CLIA or a CLIA authorized accreditor to perform high  
             complexity tests" 

             On page 2, line 6, delete "licensed clinical laboratory or  
             public health"

             On page 2, line 7 delete the first "laboratory" and after  
             "any," insert "FDA-approved" 

             On page 2, line 8, after "public," insert "on a direct access  
             basis"      
          
          SUPPORT AND OPPOSITION:
          
           Support:  None on file.

           Opposition:  None on file. 
                                      -- END --