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Dear Chairman Pallone, Chairwoman DeGette, Ranking Member Walden, and Representative
Bucshon,
The American Association for Clinical Chemistry (AACC) appreciates the opportunity to
provide input on the draft Verifying Accurate, Leading-edge IVCT Development (VALID) Act,
which would establish a new model for regulating in vitro clinical tests (IVCT). Although we
share your desire to improve the quality of patient care, we have reservations about whether this
bill, in its current form, would accomplish that objective.
AACC is a global scientific and medical professional organization dedicated to clinical
laboratory science and its application to healthcare. AACC brings together more than 50,000
clinical laboratory professionals, physicians, research scientists, and business leaders from
around the world focused on clinical chemistry, molecular diagnostics, mass spectrometry,
translational medicine, lab management, and other areas of laboratory science to advance
healthcare collaboration, knowledge, expertise, and innovation.
AACC agrees that the increase in the number and complexity of laboratory developed tests
(LDTs) perhaps warrants a new assessment of regulatory and professional oversight for these
tests. Although we agree some adjustments may be necessary, we believe that the current
Clinical Laboratory Improvement Amendments (CLIA) oversight structure is adequate to
address any concerns regarding LDTs and that a major change in policy is unwarranted.
Current Regulatory System
There appears to be a misconception that because the FDA is using its “enforcement discretion”
regarding LDTs that these tests are unregulated. This belief is inaccurate. Currently, all
laboratories performing LDTs are regulated under CLIA. These testing facilities are categorized
as high complexity laboratories, subject to stringent personnel, quality control and proficiency
testing requirements as well as regular inspections.
Many of these same facilities actively participate in the New York State, Joint Commission,
College of American Pathologists (CAP) or other oversight programs, where they often must
meet requirements more stringent than CLIA. We are concerned that expanding oversight to
include another federal agency will add to the regulatory burden and costs of performing LDTs.
This added burden may result in many laboratories discontinuing these tests, stifling diagnostic
innovation and negatively impacting patient care.
AACC feels it is important to note that the FDA regulatory structure is designed for medical
device manufacturers, not clinical laboratories. Manufacturers provide invaluable test kits and
instrumentation that assist laboratories in providing accurate test results. Laboratories
occasionally modify FDA cleared or approved tests or develop new in-house tests to meet
specific clinical needs. The results from these tests are used to diagnose and treat patients. To
apply FDA regulatory requirements to hospitals and independent laboratories utilizing LDTs
would be misguided and counterproductive to excellent patient care. AACC believes that
reforming the medical device review process for manufacturers of in vitro diagnostics (IVD) test
kits and providing enhanced oversight of LDTs under CLIA are two separate issues and should
be treated as such.
Risk-Based Classification Process
AACC supports the use of a risk-based approach to stratify LDTs and determine the appropriate
level of oversight. The current definitions of high- and low-risk in the draft document are
reasonable, but we are concerned how this language could be interpreted, particularly the term
“remote” in the definition of high-risk. How “remote’ is defined can result in a very large or
limited number of tests placed within this category.
From our perspective, the high-risk category should be very narrow in scope. For example,
AACC suggests the following criteria for designating high-risk tests:
- the accuracy of the test cannot be independently verified;
- there is a lack of transparency regarding the underlying data to support claims made about the
test; and
- the absence of professional consultation/interpretation could lead to serious patient harm.
Examples of high-risk tests include In Vitro Diagnostic Multivariate Index Assays (IVDMIAs)
and direct-to-consumer genetic tests. We are also concerned that there is
category in this scheme, which could lead to many tests unnecessarily being classified as highrisk when it is not warranted to ensure patient safety.
Grandfathering of LDTs and Maintaining Innovative LDTs
The draft measure would grandfather LDTs that are performed prior to a certain date from
having to comply with premarket review requirements. Although AACC does not believe LDTs
should be subject to the FDA review process, we oppose the grandfathering of LDTs. The
development of LDTs plays a critical role in providing new innovative technologies that offer
hope and assistance to many patients. The clinical laboratory community has historically been
quick to respond to changing clinical and service demands, such as meeting the need for more
sensitive and specific therapeutic drug monitoring tests and filling the gaps when FDA-cleared or
approved commercial tests are unavailable, for example, new tests for inborn errors of
metabolism, Ebola, Zika or H1N1. The best means of maintaining this innovative process is to
keep the current regulatory structure in place with only minor modifications—thus excluding
grandfathering from any reform initiative.
Tests for Rare Diseases
There are many medical conditions for which it is not cost-effective for an IVD manufacturer to
develop a commercial assay. Clinical laboratories have traditionally filled this void through
LDTs. The draft bill identifies several testing categories that would be exempt from pre-market
review, such as low-risk, rare disease, and public health surveillance testing, amongst others, if
they meet certain criteria. We agree that these LDTs should not be subject to additional FDA
oversight. AACC has real concerns about how the FDA, if it was given authority over this
testing, would implement the provisions.
The revised measure does not exempt newborn screening from FDA oversight. AACC suggests
that a separate section on Public Health Testing be created that specifically exempts newborn
screening.
The draft bill also defines a rare disease as testing fewer than 8,000 individuals annually for a
condition. This is an arbitrary number, which seems low. Further, the characterization differs
from the definition adopted by Congress in the 2002 Rare Disease Act (Public Law 107-280),
which specifies that a rare disease is “any disease or condition that affects less than 200,000
persons in the United States.” This provision needs clarification.
Precertification
VALID proposes a precertification provision that would allow an individual, if they meet certain
criteria, to introduce tests without going through the premarket review process. The wording of
this section is confusing as it applies to clinical laboratories. This section seems to require a
single individual (i.e., test developer) to apply for precertification. It is unclear whether the “test
developer” can be an individual, a laboratory or a manufacturer. In addition, once
precertification is achieved, it is unclear whether high- or low-risk tests can be developed or
whether any type of review of those tests will be performed.
Regardless of whether the intent of the draft bill is to focus on the individual or the entity, the
precertification process appears to be nearly as cumbersome and costly, from a clinical
laboratory perspective, as the existing 510(k) review process. According to the document, the
applicant would need to seek precertification for each “single technology.” It is not clear whether
this phrase applies solely to the methodological platform, the assays used on the platform, or
each individual analyte. We request further clarification on the scope of this phrase. How this
phrase is defined could dramatically affect the number of applications laboratories would be
required to submit.
AACC also requests further clarity on whether test developers seeking precertification must
submit the raw data from their validation studies. Section 587B(b)(3) states no, but Section
587D(c)(G)(ii) states yes.
This section re-enforces our underlying premise—clinical laboratories are not medical device
manufacturers and that possible modifications pertaining to regulatory oversight of clinical
laboratories should be made within CLIA. The ultimate effect of requiring laboratories to go
through the 510(k) or precertification processes will be to abolish many LDTs and stifle
innovation.
Registration and Notification
The proposed measure recommends that manufacturers and laboratories register annually with
the Secretary if they develop LDTs. In addition, test developers would be required to provide the
Secretary with 17 types of data for each test. AACC is concerned that this process is redundant,
costly, and presents an undue administrative and financial burden on many testing facilities.
Currently, CMS requires that all CLIA laboratories submit a laboratory activity list to the agency
that comprises all the tests it performs, including LDTs, as well as the methodologies utilized.
CAP, a key private accrediting body, requires that laboratories provide a specific list of all LDTs
they perform. Further, much of the data requested under the draft measure is already collected
by CMS and the CLIA program and/or its deemed accrediting bodies. AACC suggests that any
additional data be gathered during routine CLIA inspections within the current regulatory
framework. At a minimum, the paperwork reduction principle should be applied so that
laboratories need only submit information once per review cycle and that data should be shared
amongst regulatory agencies.
Quality System Requirements
Recently there has been flexibility introduced into laboratories performing LDTs in the form of
the Individual Quality Control Program (IQCP) option to meet quality system documentation
requirements. We feel that this framework meets many of the intentions of the proposed FDA
oversight, and therefore we suggest that IQCP under CLIA be the standard quality system
requirement for laboratories performing LDTs.
Adverse Event Reporting
The FDA document states that test developers shall “establish, maintain, and implement” a
reporting system that notifies the agency of adverse events quarterly, unless the event presents an
imminent threat to public health or involves a patient death. AACC does not believe the adverse
event framework, which was developed for reporting problems involving medical devices, is
appropriate for services provided by clinical laboratories. Results from LDTs do not generally
result or contribute to the death or severe injury of a patient.
During a January 2015 FDA Public Workshop on LDTs, the Mayo Clinic reported that over the
previous five years it had produced more than 2.5 million LDT-based tests without a single
sentinel event (The Joint Commission defines a sentinel event as a safety event that results in
death or permanent harm to the patient). One reason for the overall safety of LDTs is that
laboratories implement internal quality controls that detect many analytical and pre-analytical
errors and prevent wrong results from being reported. The current CLIA regulatory framework
also requires laboratories to identify, document and perform corrective measures for any
laboratory errors, and this would include errors resulting in patient harm if they were to occur.
This documentation is reviewed on a regular basis by CLIA or accrediting bodies. AACC
recommends that when a laboratory identifies a testing error it should report that mistake to the
appropriate oversight body.
User Fees
The draft measure would create a new user fee program that can be applied to laboratories
performing LDTs. Reimbursement for clinical laboratories is being cut dramatically under the
Protecting Access to Medicare Act, while at the same time testing facilities must pay
registration/accreditation fees under CLIA (which are planned to increase by 20 percent), as well
as incur the costs of on-site inspections and periodic proficiency testing to demonstrate
performance. The regulatory requirements outlined in this draft measure, along with the
additional costs, would assure that only a few laboratories would continue to offer LDTs.
Unfortunately, this outcome would stifle innovation and harm patient care.
On behalf of AACC, I would like to thank you for the opportunity to provide comments on this
draft legislation. If you have any questions, please email Vince Stine, PhD, AACC’s Senior
Director of Government and Global Affairs, at [email protected].
Sincerely,
Carmen L. Wiley, PhD, DABCC, FADLM
President, AACC