BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                     AB 170


                                                                    Page  1





          Date of Hearing:  April 28, 2015


                            ASSEMBLY COMMITTEE ON HEALTH


                                  Rob Bonta, Chair


          AB 170  
          Gatto - As Amended April 21, 2015


          SUBJECT:  Newborn screening:  genetic diseases:  blood samples  
          collected.


          SUMMARY:  Requires Department of Public Health (DPH) to provide  
          information about the genetic disease screening tests and obtain  
          a signed informational acknowledgment form for the receipt of  
          information by the parent or guardian of a newborn child  
          regarding the storage, retention, and use of the newborn child's  
          blood sample for medical research. Specifically, this bill:


          1)Permits a parent or legal guardian of a minor, or an  
            individual who is at least 18 years of age, to request that  
            DPH destroy the blood sample of the minor collected as a  
            newborn, or not use it for research purposes, or both.




          2)Requires DPH to comply with any requests to destroy the blood  
            sample of the minor collected as a newborn, or not use it for  
            research purposes, or both. 











                                                                     AB 170


                                                                    Page  2






          3)Requires DPH to prepare and provide informational materials  
            regarding newborn child blood samples collected that include,  
            but are not limited to, all of the following:




             a)   Storage, retention, and use of the blood sample;




             b)   The parent or legal guardian's right to request that his  
               or her minor child's blood sample be destroyed or not used  
               for research purposes, or both, and the information  
               necessary to make that request; and, 




             c)   The right of an individual who is at least 18 years of  
               age to request that his or her blood sample be destroyed or  
               not used for research purposes, or both, and the  
               information necessary to make that request.




          4)Requires informational materials to be confined to a single  
            page and presented in a separate document from informational  
            materials pertaining to the newborn screening program.



          5)Requires the informational materials and the standard  
            informational acceptance form prepared to be distributed as  
            follows:









                                                                     AB 170


                                                                    Page  3







             a)   Requires maternity care providers to provide a pregnant  
               woman, prior to the estimated date of delivery, with a copy  
               of the informational materials and a copy of the standard  
               informational acceptance form provided by DPH.



             b)   Requires every perinatal licensed health facility to  
               provide each pregnant woman admitted for delivery with a  
               copy of the informational materials and a copy of the  
               standard informational acceptance form provided by DPH,  
               prior to collection of the blood sample, if that  
               information or standard informational acceptance form was  
               not provided at the perinatal care visit.



          6)Requires DPH to provide to a parent or legal guardian a  
            standard informational acceptance form regarding the options  
            for newborn child screening and retention of newborn child  
            blood samples collected.  The standard informational  
            acceptance form must include all of the following:



             a)   A brief, plain language explanation of, and the purpose  
               for, the newborn child screening test and retention of  
               newborn child blood samples collected pursuant to this  
               article;




             b)   A description of the benefits of both early newborn  
               child screening and the associated research undertaken  
               regarding preventable heritable or congenital disorders;









                                                                     AB 170


                                                                    Page  4








             c)   A description of the California Biobank Program,  
               specifically as it pertains to the Genetic Disease  
               Screening Program, and subsequent storage, retention, and  
               use of the newborn child's blood sample for medical  
               research;




             d)   A space for the parent or legal guardian of the newborn  
               child to acknowledge receipt of informational materials  
               regarding the newborn child screening test, and the  
               storage, retention, and use of the newborn child's blood  
               sample for medical research; and,




             e)   A space for the parent or legal guardian of the newborn  
               child to sign and date the form.




          7)Requires a copy of the standard informational acceptance form  
            to be maintained with the newborn child's medical records.

          EXISTING LAW:  


          1)Requires DPH to establish a genetic disease unit to coordinate  
            all DPH programs in the area of genetic disease that will  
            promote a statewide program of information, testing, and  
            counseling services and to have the responsibility of  
            designating tests and regulations to be used in executing this  
            program and to have the responsibility of designating tests  








                                                                     AB 170


                                                                    Page  5





            and regulations to be used in executing the California Newborn  
            Screening Program (CNSP). 

          2)Requires DPH to provide genetic screening and follow-up  
            services.  Allows DPH to provide laboratory (lab) testing  
            facilities or work with qualified outside labs to conduct  
            testing.

          3)Requires DPH to charge a fee for newborn screening and  
            follow-up services, and requires the amount of the fee to be  
            periodically adjusted in order to meet the costs of CNSP. 

          4)Requires DPH to evaluate and prepare recommendations on the  
            implementation of tests for the detection of hereditary and  
            congenital diseases, including, but not limited to,  
            biotinidase deficiency and cystic fibrosis.  Requires DPH to  
            also evaluate and prepare recommendations on the availability  
            and effectiveness of preventative follow-up interventions,  
            including the use of specialized medically necessary dietary  
            products.  

          5)Requires statewide screening of newborns to include tandem  
            mass spectrometry screening for fatty acid oxidation, amino  
            acid, and organic acid disorders and congenital adrenal  
            hyperplasia, and to include screening for severe combined  
            immunodeficiency, as soon as possible.

          FISCAL EFFECT:  This bill has not yet been analyzed by a fiscal  
          committee.


          COMMENTS: 


          1)PURPOSE OF THIS BILL.  According to the author, newborn  
            screening is one of the great public health success stories in  
            this country, but what happens to the samples after the  
            screening process is completed raises serious and troubling  
            questions of consent and privacy. In the case of California  








                                                                     AB 170


                                                                    Page  6





            and a handful of other states, these samples are indefinitely  
            stored in state repositories and made available to researchers  
            for a fee.  The author states that most parents are poorly  
            informed, if at all, about the storage and medical research of  
            these samples.

          The author argues that parents are assumed to have consented to  
            long-term storage and third-party use of their child's  
            biological sample unless they explicitly refuse in writing.   
            California must revise its approach to long-term storage and  
            use of newborn Deoxyribonucleic acid (DNA) samples, and  
            include parents in the decision-making process.  It is  
            imperative for both the health of this program and  
            Californians' continued trust in their government that parents  
            be fully informed of the Biobank program and the intended  
            future use of their child's DNA.

          The author concludes that this bill will ensure that parents  
            have the right to protect their children's genetic privacy.   
            Parents, understandably, want to be actively involved in  
            decision-making regarding their children's personal health  
            information.  That choice is currently being denied.

          2)BACKGROUND.  In 1966 California began its CNSP with the  
            testing of phenylketonuria.  Since its creation, the CNSP has  
            been expanded several times as new discoveries are made and  
            tests developed and now screens for more than 70 disorders.   
            Diseases have been continually added through regulation and  
            legislation.

             a)   CNSP.  Prior to leaving the hospital, a few drops of  
               blood from the newborn's heel are collected on filter  
               paper.  The newborn screening test should be done when the  
               baby is at least 12 hours of age but before six days of  
               age.  The ideal time to do the test is when the baby is  
               between 24 and 48 hours of age.  Blood collected before 12  
               hours of age is not always reliable for some metabolic  
               diseases.  The sample is sent to one of eight regional labs  
               that contract with the DPH for testing.  The results are  








                                                                     AB 170


                                                                    Page  7





               sent to DPH for data collection and quality control.   
               Parents obtain the test results from the baby's doctor or  
               clinic.  It takes about two weeks for the doctor to receive  
               the written results.  If the baby needs more tests, parents  
               get a letter or a phone call a few days after discharge  
               from the hospital.  Positive test results are immediately  
               telephoned to a follow-up coordinator at one of the Newborn  
               Screening Area Service Centers throughout the state.  The  
               coordinator contacts the newborn's physician to arrange for  
               repeat testing.  If repeat testing determines that the baby  
               has a disorder, the coordinator will supply the latest  
               clinical information on diagnosis and treatment and assist  
               with referrals to special care.  In 2009-10, approximately  
               520,000 newborns were screened for 75 genetic disorders.   
               Approximately 9,200 or under 2% were classified as positive  
               or questionable and were referred for follow-up testing or  
               services. 

             Disorders screened for by the CNSP have varying degrees of  
               severity.  If identified early many of these conditions can  
               be treated before they cause serious health problems.   
               Treatments may include medication, dietary supplements,  
               avoidance of fasting and/or special diet and comprehensive  
               care to reduce morbidity and mortality.  This test screens  
               for specific diseases in the following groups:

               i)     Metabolic:  chemical reactions in the body to create  
                 energy and build tissue;
               ii)    Endocrine:  hormones that affect body functions;


               iii)   Hemoglobin:  red blood cells that carry oxygen;


               iv)    Other genetic diseases;


               v)     Cystic Fibrosis; and,









                                                                     AB 170


                                                                    Page  8






               vi)    Severe Combined Immunodeficiency.



          CNSP disorders cause delays in development, neurological damage,  
          dehydration, incorrect sex assignment, mental retardation, and  
          death if not treated at an early newborn age.  In California  
          about one out of every 600 babies tested will have one of these  
          conditions or diseases.



          Current regulations permit a parent to decline the test.  A  
          parent must then sign a special form that states that not having  
          the test done can result in serious illness or permanent damage  
          to their child.  It also states that the parent must accept  
          responsibility should this occur.



             b)   California BioBank.  DPH maintains a large and diverse  
               biobank, the California Biobank Program, which houses over  
               17.5 million prenatal serum samples and newborn leftover  
               blood spots.  These samples were collected for testing by  
               the Prenatal and Screening Program and CNSP that are  
               administered by the Genetic Disease Screening Program  
               (GDSP) and are linked to GDSP data and California Birth  
               Defects Monitoring Program (CBDMP) registry data.  The  
               samples and data are also linked to the State Registrar of  
               Vital Statistics databases that include fetal death, live  
               birth and death data.  The California Biobank Program (CBP)  
               is an internationally recognized public health asset  
               because of its large size and culturally, geographically  
               and genetically diverse population.  The CBP is unique in  
               that no other state or international effort approaches its  
               scale in terms of the number and quality of specimens  
               collected and preserved annually, the number of historic  
               specimens, and existing linkage with statewide prenatal and  








                                                                     AB 170


                                                                    Page  9





               newborn screening program data, birth defects data, CBDMP  
               data and other population databases.
          3)SUPPORT.  The Council for Responsible Genetics (CRG) states in  
            support of the bill that it will assist parents in California  
            in making a truly informed choice about whether the state of  
            California shall permanently retain and use their children's  
            personal genetic information.  Before they are even a week  
            old, 98% of the 4.3 million babies born annually in the United  
            States have a small sample of blood taken from their heels.   
            These newborn bloodspots (NBS) are then screened for a variety  
            of inherited conditions and are often later stored in  
            state-operated databases.  Newborn screening itself is an  
            important public health program, but while there are concrete  
            benefits of newborn testing there are also troubling consent  
            and privacy issues raised by the storage and use of the  
            samples long after the screening process has concluded.  CRG  
            states that with respect to sample storage and use, there is  
            little transparency regarding storage procedures or the use of  
            the samples after they have been screened.  CRG argues not  
            only do most parents never realize they have "consented" to  
            storage of their children's biological material, they fail to  
            understand that the actual state government (as opposed to the  
            hospital) is the entity in possession of this sample.  

            CRG argues that several studies have shown that the vast  
            majority of parents want to be actively involved in decision  
            making regarding their children's personal health information,  
            want the choice as to whether the state should maintain their  
            child's sample after screening is completed and most oppose  
            the indefinite storage and use of such samples without  
            consent.   Even though parents want informed consent to store  
            and use the samples, many states including California do not  
            have clearly articulated policies about consent for the  
            storage and use of samples, do not effectively communicate  
            these policies to parents and do not offer parents a truly  
            informed choice about whether to participate in storage and  
            subsequent use procedures, including human subject research.

            CRG further states that the concern of parents that states  








                                                                     AB 170


                                                                    Page  10





            retain their children's biological information is heightened  
            because storage procedures and security at these state  
            facilities are arcane and there are laws that truly protect  
            the privacy of genetic information. Californians are  
            enthusiastic about the promise of genetic medicine; but are  
            understandably fearful about how this powerful information can  
            be abused.  The sheer amount of genetic data being generated  
            today, and its commercialization, raises serious medical  
            privacy concerns.  Many individuals are legitimately concerned  
            that their genetic information will be used against them and  
            are unwilling to participate in medical research or be tested  
            clinically, even when they are at risk for serious disease.   
            CRG concludes that the government has not classified the  
            collection and use of NBS data as research and it's unclear  
            whether the Common Rule, which requires informed consent for  
            human subject research, would apply.  This lack of clarity  
            leaves newborn data ripe for misuse.

            The American Federation of State, County and Municipal  
            Employees (AFSCME), states in support that it provides parents  
            the tools necessary to be fully informed on why and how their  
            child's blood samples are being used by DPH.

          4)OPPOSITION.  The California Hospital Association (CHA),  
            California Healthcare Institute, Advanced Medical Technology  
            Association, and Biocom write in opposition to a previous  
            version of the bill that the net result of this bill would be  
            to decrease the number of newborns tested for these  
            devastating disorders which can be prevented or ameliorated if  
            detected.  Opponents write that the mothers who are most  
            likely to decline the testing are those without insurance or  
            with high deductibles, and mothers who are inordinately  
            suspicious of government while other mothers might decline  
            testing due to their lack of understanding of science and  
            medicine.  CHA further states that this bill would also  
            increase the administrative burdens on hospitals, physicians,  
            and new mothers which, in turn, will increase health care  
            costs.  Finally, according to the opposition, this bill bill  
            would increase the legal liability on hospitals and  








                                                                     AB 170


                                                                    Page  11





            physicians; if a mom opts out of testing her baby, and her  
            baby has one of these devastating disorders which could have  
            been detected, she will likely sue physician and/or hospital. 

          The University of Southern California states in opposition to a  
            previous version of the bill that the current California  
            bloodspot database serves as an important resource to assist  
            in the early identification of these rare diseases.   
            California's database is internationally recognized as a  
            critical public health asset and allows for the study of these  
            rare diseases among its diverse communities.

          The American Academy of Pediatrics, California and March of  
            Dimes California Chapter (March of Dimes) writes in opposition  
            to a previous version of the bill that they oppose any  
            amendments that would link consent for storage and research of  
            newborn screening blood spots with the initial collection and  
            testing of the blood spots.  March of Dimes recognizes both  
            the value of newborn screening blood spots for research use by  
            the scientific community and the importance of appropriate  
            parental involvement in decisions regarding storage and use of  
            post-screening blood spots.  However, the March of Dimes  
            overriding interest is to safeguard the benefit to newborns of  
            early detection of conditions that seriously threaten their  
            lives or health and the initiation of treatment that is made  
            possible by timely newborn screening.

          The California Children's Hospital Association (CCHA) writes  
            with concerns on a previous version of this bill, stating that  
            the current California blood spot database is an  
            internationally recognized public health asset because of its  
            size and diversity.  The ability to study rare diseases,  
            diseases contained to small geographical areas or to small  
            subsets of California's genetically diverse population, as  
            well as the ability to link clinical and environmental data  
            (such as pesticides), would not be possible without  
            California's blood spot database.  Implementing an informed  
            consent policy will require significant financial resources to  
            address education of families, training for health care  








                                                                     AB 170


                                                                    Page  12





            providers in distributing and explaining the consent forms,  
            logistics and follow-up (e.g. destruction of blood spots).   
            Given that the federal Common Rule must be finalized by the  
            end of 2016 and will then govern these processes for the  
            majority of research in California, it would be best to ensure  
            that state law is congruent with federal policy.  Currently,  
            this bill would move ahead with changes to state law that  
            could be in conflict with the final version of the federal  
            regulations.

          CCHA concludes that under the legislation as written, parents  
            could receive the consent form twice or more, with the  
            potential for them to change their decision in between.  This  
            could lead to confusion at DPH or the hospital gathering the  
            consent forms.  This bill should contain some guidance about  
            how to handle this conflict.

          5)CONCERN.  The University of California (UC) writes with  
            concerns to a previous version of the bill that this measure  
            could significantly limit the availability of the valuable  
            data and biosamples collected by the CNSP for research use.   
            One of the greatest values of California's current process for  
            collecting and storing newborn dried blood samples comes from  
            its size and diversity.  The samples stored by DPH reflect  
            California's diverse population and allows us to research how  
            different diseases affect different ethnicities.  The sheer  
            number of samples makes research into rare diseases possible,  
            and also facilitates robust studies of regional environmental  
            factors that can cause disease.  This bill's revised process  
            for research use of newborn dried blood samples is likely to  
            severely limit the number of samples that may be collected  
            which in turn, would greatly diminish the research value of  
            the current newborn dried blood samples stored by DPH.  The UC  
            indicates concern that the bill's research terminology is  
            inconsistent with the Federal Policy for the Protection of  
            Human Subjects, or the "Common Rule."  The Common Rule is  
            utilized by all Human Subject Protection Programs for  
            federally-funded research.  The UC worries that the revised  
            consent process under this bill may confuse new parents  








                                                                     AB 170


                                                                    Page  13
                                                            




            instead of creating a greater understanding about the benefits  
            of the CNSP and the research it supports.

          6)PREVIOUS LEGISLATION.



             a)   AB 1559 (Pan), Chapter 565, Statutes of 2014, expands  
               DPH statewide screening of newborns to include screening  
               for adrenoleukodystrophy (ALD) as soon the federal  
               Recommended Uniform Screening Panel approved the addition  
               of ALD.



             b)   SB 222 (Padilla) of 2014 would have enacted the Genetic  
               Information Privacy Act, which would have required an  
               individual's written authorization prior to the collection  
               of genetic information for testing, analysis, retention, or  
               disclosure.  SB 222 was held in the Senate Appropriations  
               Committee. 



             c)   SB 1267 (Padilla) of 2012 would have required an  
               individual's written authorization prior to the collection  
               of genetic information for testing, analysis, retention or  
               disclosure.  Would have required destruction of the genetic  
               information upon completion of the purpose authorization  
               was obtained.  SB 1267 was held in the Senate  
               Appropriations Committee.  



             d)   AB 395 (Pan), Chapter 461, Statutes of 2011, expands  
               statewide screening of newborns to include screening for  
               severe combined immunodeficiency. 










                                                                     AB 170


                                                                    Page  14






             e)   SB 1103 (Committee on Budget and Fiscal Review), Chapter  
               228, Statutes of 2004, expands statewide screening of  
               newborns to include tandem mass spectrometry screening for  
               fatty acid oxidation, amino acid, organic acid disorders,  
               and congenital adrenal hyperplasia. 



             f)   SB 537 (Greene), Chapter 1011, Statutes of 1998,  
               required DPH to establish a program to provide extended  
               newborn genetic screening services for persons who elect to  
               have, and pay for, the additional screening.  



          7)DOUBLE REFERRAL.  This bill has been double referred. It  
            passed the Assembly Committee on Privacy and Consumer  
            Protection with a vote of 9-2 on March 3, 2015
              


          8)COMMITTEE AMENDMENTS.
                 


             a)   Who stores the form?  This bill requires the  
               informational acceptance form to be given to a woman at  
               prenatal visits and at the time of delivery.  Because of  
               this broad time frame, a child's medical record may not yet  
               exist, and therefore the form would not be able to be  
               stored there as this bill provides.  The Committee may  
               recommend amending this bill to provide that the signed  
               informational acceptance form be retained in the mother's  
               medical record.



             b)   Default provisions.  This bill does not indicate what  








                                                                     AB 170


                                                                    Page  15





               happens in the event that there is no signed informational  
               acceptance form.  Because care providers are now required  
               to retain a signature on documents, it could lead to  
               confusion on what happens when a form is not present.  The  
               Committee may recommend amending this bill to make it clear  
               that in the event that there is not a signed informational  
               acceptance form on file, the care provider is directed to  
               submit the NBS sample for storage and research.



             c)   Technical/clarifying amendments.  



               i)     Regarding the process for parents to opt-out of a  
                 newborn screening test if they wish to do so, current  
                 statute reads as follows: 



                 "(d) This section shall not apply if a parent or guardian  
                 of the newborn child objects to a test on the ground that  
                 the test conflicts with his or her religious beliefs or  
                 practices."





                 Amendments submitted by the author sought to keep the  
                 language regarding the process for the NBS test exactly  
                 the same.  Some changes were inadvertently made during  
                 the drafting process, and the Committee may recommend  
                 amendments that will reinstate this language and maintain  
                 exactly what is currently in statute regarding the  
                 newborn genetic disease screening test process.










                                                                     AB 170


                                                                    Page  16






               ii)    Section 2 (c) of this bill requires DPH to provide  
                 to a parent or legal guardian a standard informational  
                 acceptance form regarding the options for newborn child  
                 screening and retention of newborn child blood samples  
                 collected.  The informational acceptance form is intended  
                 to apply only to the storage of child blood samples that  
                 are collected, and is not intended to be a part of the  
                 newborn screening test procedures. The Committee may  
                 recommend clarifying and conforming amendment language as  
                 follows: 



                 Page 6, line 36-37: "(c) The department shall provide to  
                 a parent or legal guardian the standard informational  
                 acceptance form provided in Section 125004 regarding the  
                  options for newborn child screening and  retention of  
                 newborn child blood samples collected pursuant to this  
                 article."





                 Page 8, line 11 - "(4) A space for the parent or legal  
                 guardian of the newborn child to acknowledge receipt of  
                 informational materials regarding the  newborn child  
                 screening test, and the  storage, retention, and use of  
                 the newborn child's blood sample for medical research."


          REGISTERED SUPPORT / OPPOSITION: 


          Support











                                                                     AB 170


                                                                    Page  17






          American Federation of State, County and Municipal Employees
          Council for Responsible Genetics


          Opposition


          Advanced Medical Technology Association (prior version)
          American Academy of Pediatrics, California (prior version)
          Biocom (prior version)
          California Children's Hospital Association (prior version)
          California Healthcare Institute (prior version)
          California Hospital Association
          March of Dimes California Chapter 
          University of Southern California (prior version)


          Analysis Prepared by:Paula Villescaz / HEALTH / (916) 319-2097