BILL ANALYSIS                                                                                                                                                                                                    Ó



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          Date of Hearing:  April 28, 2015


                   ASSEMBLY COMMITTEE ON BUSINESS AND PROFESSIONS


                                Susan Bonilla, Chair


          AB 757  
          (Gomez) - As Amended March 26, 2015


          SUBJECT:  Healing arts:  clinical laboratories.


          SUMMARY:  Authorizes a medical assistant, who meets specified  
          criteria, to perform a total protein refractometer test analysis  
          in a licensed plasma collection facility in this state.


          EXISTING FEDERAL LAW:


          1)Regulates laboratory testing and requires that clinical  
            laboratories obtain a certificate before accepting materials  
            derived from the human body for the purpose of providing  
            information for the diagnosis, prevention, or treatment of any  
            disease or the impairment of, or assessment of the health of  
            human beings.  (Clinical Laboratory Improvement Amendments  
            (CLIA), Title 42 United States Code (USC) § 263a)


          2)Classifies laboratory tests using three categories: "waived  
            tests," "moderate complexity," or "high complexity." (Title 42  
            Code of Federal Regulations (CFR) § 493.5)


          3)Defines "waived tests" as simple laboratory examinations and  








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            procedures which: 1) are cleared by Federal Food and Drug  
            Administration (FDA) for home use; 2) employ methodologies  
            that are so simple and accurate as to render the likelihood of  
            erroneous results negligible; or 3) pose no reasonable risk of  
            harm to the patient if the test is performed incorrectly.  (42  
            CFR § 493.15)


          4)Specifies nine types of tests that are automatically  
            categorized as waived: 1) various dipstick or tablet reagent  
            urinalysis (non-automated), including protein; 2) fecal occult  
            blood; 3) ovulation tests-visual color comparison tests; 4)  
            urine pregnancy tests-visual color comparison tests; 5)  
            erythrocyte sedimentation rate-non-automated; 6)  
            hemoglobin-copper sulfate-non-automated; 7) blood glucose by  
            glucose monitoring devices cleared by the FDA specifically for  
            home use; 8) spun microhematocrit; and 9) hemoglobin by single  
            analyte instruments with self-contained or component features  
            to perform specimen/reagent interaction, providing direct  
            measurement and readout.  (42 CFR § 493.15) 


          5)Requires laboratories to ensure that each individual  
            performing moderate complexity testing possesses a current  
            license issued by the state where laboratory is located, if a  
            license is required, and meet one of the following  
            requirements: (42 CFR § 493.1423)


             a)   Be a doctor of medicine or doctor of osteopathy licensed  
               to practice medicine or osteopathy in the State in which  
               the laboratory is located or have earned a doctoral,  
               master's, or bachelor's degree in a chemical, physical,  
               biological or clinical laboratory science, or medical  
               technology from an accredited institution.
             b)   Have earned an associate degree in a chemical, physical  
               or biological science or medical laboratory technology from  
               an accredited institution.









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             c)   Be a high school graduate or equivalent and have  
               successfully completed an official military medical  
               laboratory procedures course of at least 50 weeks duration  
               and have held the military enlisted occupational specialty  
               of Medical Laboratory Specialist (Laboratory Technician).


             d)   Have earned a high school diploma or equivalent, and  
               have documentation of training appropriate for the testing  
               performed prior to analyzing patient specimens. 


          6)Defines a refractometer as a device used to determine the  
            amount of solute in a solution by measuring the index of  
            refraction (the ratio of the velocity of light in a vacuum to  
            the velocity of light in the solution). The index of  
            refraction is used to measure the concentration of certain  
            analytes (solutes), such a plasma total proteins and urinary  
            total solids. Measurements obtained by this device are used in  
            the diagnosis and treatment of certain conditions. (21 CFR §  
            862.2800(a))
          EXISTING STATE LAW:


          7)Provides for the licensure, registration, and regulation of  
            clinical laboratories and various clinical laboratory  
            personnel by the California Department of Public Health  
            (CDPH), with specified exceptions. (BPC § 1200-1327)


          8)Prohibits a person from performing a test classified as of  
            moderate complexity test under CLIA unless the test is  
            performed under a laboratory director, as described in BPC §  
            1209, the laboratory director provides documentation of the  
            adequacy of the qualifications and competency of the  
            personnel, and the test is performed by any of the following  
            individuals: (BPC § 1206.5)









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             a)   A licensed physician and surgeon;
             b)   A licensed podiatrist or a licensed dentist;


             c)   A person licensed to engage in clinical laboratory  
               practice or to direct a clinical laboratory;


             d)   A certified local health officer;


             e)   A licensed physician assistant if authorized by a  
               supervising physician and surgeon;


             f)   A registered nurse;


             g)   A perfusionist if authorized under BPC § 2590;


             h)   A respiratory care practitioner;


             i)   A person certified to perform nuclear medicine  
               technology under CDPH;


             j)   Any person if performing blood gas analysis in  
               compliance with BPC § 1245; 


             aa)A certified or licensed emergency medical technician II or  
               paramedic while providing prehospital medical care; and,


             bb)A person licensed as a psychiatric technician, as a  
               vocational nurse, or as a licensed midwife, or certified by  








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               the CDPH as a nurse assistant or a home health aide, who  
               provides direct patient care, if the person meets the  
               following:


               i)     Is performing the test as an adjunct to the  
                 provision of direct patient care by the person;
               ii)Is utilizing a point-of-care laboratory testing device  
                 at a site for which a laboratory license or registration  
                 has been issued;


               iii)Meets the minimum clinical laboratory education,  
                 training, and experience requirements set forth in  
                 regulations adopted by the CDPH; and,


               iv)Has demonstrated to the satisfaction of the laboratory  
                 director that the person is competent in the operation of  
                 the point-of-care laboratory testing device for each  
                 analyte to be reported.


             cc)Any person within a physician office laboratory if the  
               test is performed under the supervision of the patient's  
               physician and surgeon or podiatrist who is accessible to  
               the laboratory to provide onsite, telephone, or electronic  
               consultation as needed, and meets the following:
               i)     Ensures that the person is performing test methods  
                 as required for accurate and reliable tests; and
               ii)Has personal knowledge of the results of the clinical  
                 laboratory testing or examination performed by that  
                 person before the test results are reported from the  
                 laboratory.


             dd)A pharmacist, if ordering drug therapy-related laboratory.
          9)Authorizes a medical assistant to do the following: (BPC §  
            2069)








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             a)   Administer medication through intradermal, subcutaneous,  
               or intramuscular injections; and, 
             b)   Perform skin tests and additional technical supportive  
               services upon the specific authorization and supervision of  
               a licensed physician and surgeon or a licensed podiatrist.  
               A medical assistant may also perform all these tasks and  
               services upon the specific authorization of a physician  
               assistant, a nurse practitioner, or a certified  
               nurse-midwife.


          10)                                                    Defines a  
            "medical assistant" as a person who may be unlicensed who  
            meets the following: (BPC § 2029(b)(1))
             a)   Performs basic administrative, clerical, and technical  
               supportive services for a licensed physician and surgeon, a  
               licensed podiatrist, a medical or podiatry corporation, a  
               physician assistant, a nurse practitioner, or a certified  
               nurse-midwife, or a health care service plan; 
             b)   At least 18 years of age; and,


             c)   Has had at least the minimum amount of hours of  
               appropriate training pursuant to standards established by  
               the Medical Board. 


          11)                                                    Defines  
            "specific authorization" as a specific written order or a  
            standing order  prepared by the supervising physician and  
            surgeon, podiatrist, physician assistant, nurse practitioner,  
            or certified nurse-midwife, authorizing the procedures to be  
            performed on a patient.  (BPC § 2069(b)(2))
          12)                                                    Defines  
            "supervision" as the supervision of procedures authorized by  
            this section by the following practitioners, within the scope  
            of their respective practices, who shall be physically present  
            in the treatment facility during the performance of those  
            procedures:  (BPC § 2069(b)(3))








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             a)   A licensed physician and surgeon;
             b)   A licensed podiatrist; and,


             c)   A physician assistant, nurse practitioner, or certified  
               nurse-midwife as provided in subdivision (a).


          13)                                                    Defines  
            "technical supportive services" as simple routine medical  
            tasks and procedures that may be safely performed by a medical  
            assistant who has limited training and who functions under the  
            supervision of a licensed physician and surgeon, a licensed  
            podiatrist, a physician assistant, a nurse practitioner, or a  
            certified nurse-midwife.  (BPC § 2069(b)(4))
          THIS BILL:


          14)                                                     
            Authorizes a medical assistant, as defined in BPC § 2069, to perform a  
            total protein refractometer test analysis in a licensed plasma  
            collection facility in this state if all of the following  
            conditions are met:


             a)   The medical assistant has earned a high school diploma  
               or equivalent, as determined by Health Care Financing  
               Administration (HCFA) under CLIA.
             b)   The medical assistant performs the total protein  
               refractometer test analysis in a licensed plasma collection  
               facility.


             c)   The medical assistant been instructed by a physician and  
               surgeon licensed in this state or by a licensed clinical  
               laboratory director who is in charge of the licensed plasma  
               collection facility in the proper procedure to be employed  








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               when performing a total protein refractometer test  
               analysis.


             d)   The medical assistant performs the total protein  
               refractometer test analysis under the direction and  
               supervision of the physician and surgeon or licensed  
               clinical laboratory director.


             e)   The medical assistant submits the analysis for  
               interpretation to the physician and surgeon or licensed  
               clinical laboratory director under whose direction and  
               supervision he or she performed the analysis.


          15)                                                    States  
            that no reimbursement is required pursuant to Section 6 of  
            Article XIII                                           B of  
            the California Constitution, as specified. 
          FISCAL EFFECT:  Unknown. This bill is keyed fiscal by the  
          Legislative Counsel. 


          COMMENTS:


          16)Purpose.  This bill is sponsored by  Grifols, Inc  .  According  
            to the author, "Plasma donation centers are critical to  
            ensuring the availability of therapies that treat rate,  
            chronic, and sometimes life-threatening diseases. AB 757 would  
            authorize a medical assistant who meets specified criteria to  
            perform a total protein refractometer test analysis - a  
            standard, mostly automated procedure performed during donor  
            intake and assessment to determine donor eligibility - in  
            state licensed plasma collection facility in California. This  
            will help promote efficiencies, where appropriate, in the  
            biomedical industry while continuing to prioritize patient  
            health and safety."








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          17)Background.  At the federal level, laboratories that perform  
            tests on human specimens are certified under CLIA. The  
            requirements for CLIA certification vary depending on the  
            complexity of the laboratory tests performed.  Clinical  
            laboratories or other testing sites need to know whether a  
            test system is waived, moderate or high complexity for each.  
            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. They include certain 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. 


          Tests not classified as waived are assigned a moderate or high  
            complexity category on the basis of seven criteria given in  
            the CLIA regulations. For commercially available FDA-cleared  
            or approved tests, the test complexity is determined by the  
            FDA during the pre-market approval process. 


          In California, anyone may perform a waived test in a licensed  
            laboratory.  However, only licensed or certified individuals  
            may perform moderate complexity tests, for instance, a medical  
            laboratory technologist (MLT) under BPC § 1260.3.  There is  
            are two exceptions for unlicensed individuals to perform a  
            moderate complexity test in California, and that is for a  
            blood gas analysis under BPC § 1245 and anyone in a  
            physician's office laboratory with a physician readily  
            available.  Because medical assistants are unlicensed and  
            there is no exception for them, they cannot perform moderate  
            or high complexity tests. 


          Total Protein Refractometer Test.  According to the sponsors,  
            Grifols measures a potential plasma donor's total protein  
            levels as part of the initial screening process.  In general,  
            the measurement of total protein uses an instrument called a  








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            refractometer. A refractometer is a device that shines a beam  
            of light through a sample of liquid.  The device measures the  
            amount of light that is refracted (bent) due to the solids in  
            the sample.  In blood, protein causes light to bend.  The  
            greater the amount of protein, the more light is bent from the  
            light path.  


          There are multiple types of protein refractometer devices,  
            ranging from manual to automatic and digital.  However, the  
            FDA's medical device database shows that the FDA has  
            classified all total protein refractometer devices as of  
            moderate complexity under CLIA.  


          There are other types of devices that can measure total protein,  
            such as chemical analyzers using whole blood.  The FDA has  
            classified most of the whole blood chemical analyzers as  
            waived. 


          CLIA Waiver by Application.  The sponsor points out that the  
            type of refractometer device it uses to perform total protein  
            tests is very simple to use and does not require special  
            training.  However, because the device is so simple to use, it  
            is unclear why it was not classified as waived.  Further, it  
            is unclear why the manufacturer did not try to obtain a waiver  
            by application.  The sponsor believes that there was no  
            financial incentive. 


          A manufacturer may submit a CLIA waiver by application if it  
            thinks the FDA has mistakenly categorized the test. For  
            example, if the FDA initially categorized a test as moderately  
            complex, but the manufacturer believes the test is simple to  
            use, it may submit a CLIA waiver by application to request  
            re-categorization as waived. 










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          A CLIA waiver by application must demonstrate in clinical  
            studies conducted at the intended use sites that the test is  
            accurate and poses little to no risk of incorrect results.  It  
            must also include the following information:


             a)   A description of the device that demonstrates it is  
               simple to use.
             b)   The results of risk analysis including the  
               identification of potential sources of error for your  
               device.


             c)   The results of flex studies demonstrating insensitivity  
               of the test system to environmental and usage variations  
               under conditions of stress.


             d)   The results of risk evaluation and control including a  
               description of (1) measures you have implemented to  
               mitigate the risk of errors, and (2) validation and/or  
               verification studies demonstrating the ability of failure  
               alert, fail-safe mechanisms, and other control measures  
               that you have incorporated into your device to mitigate the  
               risk of errors, even under conditions of stress.


             e)   A description of the design and results of clinical  
               studies you conducted to demonstrate that the device has an  
               insignificant risk of erroneous results in the hands of the  
               intended user (hereinafter operator).


             f)   Proposed labeling with instructions for use consistent  
               with a device that is "simple."


          ARGUMENTS IN SUPPORT: 









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           Grifols, Inc.  (sponsor) writes in support, "a total protein  
          refractometer test can be administered in 48 states by a trained  
          healthcare professional equivalent to what California defines as  
          a medical assistant. However, California law does not authorize  
          this simple, almost entirely automated test to be conducted by a  
          highly trained and supervised medical assistant at a licensed  
          plasma donation center.


          AB 757 represents a minor expansion in the tasks authorized for  
          medical assistants, especially given the unique setting, virtual  
          automation of the subject test and the array of supervisory,  
          licensed health care personnel in the plasma collection center -  
          including the responsible physician and surgeon and/or other  
          licensed 'facility' manager. The end goal of this measure is to  
          help licensed plasma donation centers operate more efficiently  
          by authorizing a medical assistant to conduct this simple task  
          as part of the donor intake process."


          The  Blood Centers of California  writes in support, "The need for  
          source plasmas - defined as the fluid portion of human blood  
          collected by plasmapheresis and intended as source material for  
          further manufacturing use is growing. Source plasma is used to  
          develop plasma based medicines and therapies which are used to  
          treat over eighty diseases.


          Assuring that eligible, trained personnel are available for this  
          growing segment of the blood industry is necessary. We support  
          the designation of a "donor center processor' as the staff who  
          can perform the" simple, automated total protein refractometer".  
          AB 757 will assure that licensed plasma centers have the  
          appropriate staff carrying out the necessary functions to obtain  
          and process source plasma which is converted into life  
          sustaining medicines and therapies."










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          ARGUMENTS IN OPPOSITION:


          The  California Association for Medical Laboratory Technology   
          writes in opposition, "The primary function of the total protein  
          analysis is to provide an accurate and precise value in order to  
          ensure donor safety prior to donating plasma. An erroneously  
          performed analysis, like a false negative result, which allows  
          the plasma center to proceed with the donation, could cause  
          significant donor harm. As a result, the regulatory agencies  
          have mandated that the individuals performing the total protein  
          test must have demonstrated a higher level of education and  
          training such as those individuals listed in BPC section 1206.5  
          (b).  


          Plasma donors are paid. They can donate every two weeks if their  
          total protein is at least 6 g/dL.  Many plasma collection  
          centers "bleed" their donors down to 6 g/dL of protein  
          regularly.  If the protein refractometer test and/or calibration  
          is done incorrectly and the protein read is higher than it  
          actually is, there is a potential to over "bleed" a donor  
          causing donor harm, such as death from untreated low protein,  
          immune deficiency, heart and respiratory problems, bruising,  
          insufficient blood clotting, muscle wasting and reduced energy.  
          In short, the current personnel standard needs to be  
          maintained."


          The  California Society of Pathologists  writes in opposition, "We  
          believe that this type of legislation that would seek to carve  
          out certain tests from the CLIA and state personnel requirements  
          will only lessen the quality of testing? There are existing  
          laboratory personnel who can perform this test. We believe  
          maintaining that standard is preferable to undoing the existing  
          test classification system that is universal to clinical  
          laboratory practice. That system is designed to maintain test  
          result integrity and protection for patients."
                                                                              








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          The  Engineers & Scientists of California, IFPTE Local 20 , writes  
          in opposition, "ESC, which represents Clinical Laboratory  
          Scientists, strongly believes that having unlicensed, untrained  
          individuals performing these tests, even if its moderate to low  
          complexity, isn't good for patient safety. It's going backwards  
          to a time before phlebotomy certification."


          POLICY ISSUES FOR CONSIDERATION:


          This bill seeks to carve out a narrow personnel exception for a  
          specific device that performs a moderately complex test on human  
          blood.  According to the sponsors, the device is used in the  
          very initial screening process, and even if there was an error  
          in the testing, the rest of the intake process will properly  
          screen the individual.  


          However, there are other waived devices that the sponsor can use  
          without having to make a special exception in law. The sponsor  
          has stated that it is in process switching to a waived device.


          AMENDMENTS:


          18)Insert a three year sunset provision to provide the sponsor  
            an opportunity to finish switching to a waived device. 
          On page 2, between lines 26-27, insert subdivision (b):


           (b) This section shall remain in effect only until January 1,  
            2019, and as of that date is repealed.


           19)Narrow the class of test to ensure that only the device the  
            sponsor wants excluded is included in the bill:








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          On page 2, between lines 12-13, insert:


           (2) He or she performs the total protein refractometer test  
            analysis using an automatic, button-operated refractometer  
            with a digital readout.


           20)Make conforming changes:


          On page 2, line 7, before "A" insert subdivision (a):


           (a)


           On page 2, line 11, strike out "(a)" and insert:


           (1)


           On page 2, line 13, strike out "(b)" and insert:


           (3)


           On page 2, line 15, strike out "(c)" and insert:


           (4)


           On page 2, line 20, strike out "(d)" and insert:









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           (5)


           On page 2, line 23, strike out "e" and insert:


           (6)


           REGISTERED SUPPORT:  


          Grifols, Inc. (sponsor)


          Blood Centers of California




          REGISTERED OPPOSITION:  
          California Association for Medical Laboratory Technology


          California Society of Pathologists


          Engineers & Scientists of California, IFPTE Local 20 




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













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