Clinical Laboratory Improvement Amendments

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The Clinical Laboratory Improvement Amendments (CLIA) of 1988 are United States federal regulatory standards that apply to all clinical laboratory testing performed on humans in the United States, except clinical trials and basic research. [1]

Contents

CLIA Program

In accord with the CLIA, the CLIA Program sets standards and issues certificates for clinical laboratory testing. [2] CLIA defines a clinical laboratory as any facility which performs laboratory testing on specimens derived from humans for the purpose of providing information for:[ citation needed ]

An objective of the CLIA is to ensure the accuracy, reliability and timeliness of test results regardless of where the test was performed. Most laboratory-developed tests have been regulated under this program. [3] In 2014 the FDA started a public discussion about regulating some LDTs. [4]

Test complexity

A CLIA Certificate of Compliance (CoC) CLIA Certificate of Compliance (CoC) example.png
A CLIA Certificate of Compliance (CoC)

Per CLIA, each specific laboratory system, assay, examination is graded for level of complexity by assigning scores of 1, 2, or 3 for each of the following seven criteria. A score of 1 is the lowest level of complexity, and a score of 3 indicates the highest level. Score 2 is assigned when the characteristics for a particular test are intermediate between the descriptions listed for scores of 1 and 3. [5]

Criteria for categorization:

  1. Knowledge
  2. Training and experience
  3. Reagents and materials preparation
  4. Characteristics of operational steps
  5. Calibration, quality control, and proficiency testing materials
  6. Test system troubleshooting and equipment maintenance
  7. Interpretation and judgment

Centers for Medicare and Medicaid Services (CMS) has the primary responsibility for the operation of the CLIA Program. Within CMS, the program is implemented by the Center for Medicaid and State Operations, Survey and Certification Group, and the Division of Laboratory Services.

List of CLIA test complexity categorizations:

Complementary and alternative medicine laboratories

Complementary and alternative medicine tests, such as live blood analysis (LBA), biological terrain assessment (BTA), dental sensitivity testing, and cytotoxic testing have not been categorized by the CDC, and are thus treated as high complexity laboratory developed tests. [6] [7] CAM tests are often ordered by chiropractors, naturopaths, and nutritionists and accompanied by non-validated clinical interpretations which are used to recommend or justify costly, unnecessary, and potentially damaging treatments. [8] [9] A 2001 OIG report found that the majority of laboratories performing CAM tests were not enrolled in CLIA and that CAM laboratory personnel did not meet the high complexity qualifications. [10] For laboratories enrolled in CLIA, they had their certificates revoked or were sent deficiency notices for failing to adhere to CLIA regulations. [10] No CLIA laboratory has been able to validate their LBA CAM tests per standards. [10] CAM tests are not covered by health insurance. [6] The number of CAM laboratories is unknown and the sales of supplemental remedies based on the results of these tests is unknown. [11] Since CLIA does not regulate the clinical validity/usefulness of a test, it is possible for a CLIA laboratory to offer tests that have no clinical utility. [8] [12]

Getting laboratories that conduct CAM testing to enroll in CLIA is itself a challenge. Medical laboratories enroll in CLIA to qualify for Medicare/Medicaid reimbursement, nearly all providers bill patients directly for CAM laboratory tests. [10] Additionally, CAM providers are concerned by the closure of other CAM laboratories under CLIA, and have sought to avoid detection. [10] Some CAM providers and laboratory personnel have not had exposure to laboratory curriculum and are unaware of CLIA requirements. [10] CLIA is largely reliant on laboratories to self-identify themselves for enrollment. [10]

Providers of CAM laboratories have opposed oversight by CLIA and have suggested they should regulated by their peers or under a CAM specific division. [13] [10] CAM providers have stated that they should be exempt from CLIA since CAM laboratories do not participate in health insurance. [10] Others claim that they are exempt from CLIA because the tests are performed solely for research purposes and not used in patient care and treatment decisions. [11] Several pathologists have stated that CAM testing falls within the scope of their medical license and should not be regulated under CLIA. [10]

CLIA provisions are geared towards CLIA certified laboratories, but not for those that have not enrolled. When a CAM laboratory is found to be operating without a CLIA certificate, they are sent a cease and desist letter to stop testing until the laboratory is CLIA certified. [10] There are no administrative remedies available to CMS when a laboratory refuses to enroll in CLIA and refuses to cease testing. [10] CMS cannot impose monetary or other administrative penalties on laboratories that defy the law, but can only refer cases to other Federal or State agencies. [10] CMS plays the primary role in federal oversight of laboratories under CLIA and there are limited regulations at the state level that restrict CAM laboratories. [10]

Andrology and embryology laboratories and reproductive tissue banks

CLIA applies to sperm analysis and the postcoital test, but does not apply to andrology nor embryology laboratories, nor testing performed as part of an assisted reproductive technology (ART), nor reproductive tissue banks. There are no federal personnel requirements. [14] [15] [16] [17]

The lack of CLIA applicability has been criticized noting how semen analysis is categorized as a high complexity test whereas the analysis of oocytes and embryos is unregulated, despite similar equipment and techniques in use. [18] There are accreditation programs such the CAP/ASRM Reproductive Laboratory Accreditation Program (RLAP), and TJC and CAP offer specialty accreditations, but these are voluntary in nature. [18] [15]

In the summer of 1991, HHS notified the American Society of Reproductive Medicine (ASRM) and the Society for Assisted Reproductive Technology (SART) that in vitro fertilisation (IVF) and gamete intrafallopian transfer (GIFT) laboratories were to be covered under CLIA '88. [14] However, when CLIA '88 was published on February 28, 1992, it did not explicitly mention andrology and embryology laboratories creating uncertainty in regulatory oversight. [14] In 1992, Senator Ron Wyden (D-OR) introduced the Fertility Clinic Success Rate and Certification Act (FCRCA), colloquially called the "Wyden bill", requiring the Disease Control and Prevention (CDC) to develop a model program for the certification of embryo laboratories, to be carried out voluntarily by interested states. [15] [19] [14] This created initial confusion as to whether CLIA was applicable. [14] In 1994, HCFA stated that in vitro fertilization was categorized as the therapeutic procedure, not a diagnostic procedure and therefore not covered under CLIA. [14] As such, AAB/ABB took the position that IVF laboratories test are covered under CLIA, while ASRM and SART took the opposing position. [14] On September 16, 1998, the Clinical Laboratory Improvement Advisory Committee (CLIAC) made a non-binding recommendation that CLIA coverage apply to embryology laboratories and suggested the College of American Pathologists (CAP) and ASRM accreditation checklist. [14] However, the United States Secretary of Health and Human Services Donna Shalala did not implement the recommendation prompting the AAB to sue HHS to force a decision on March 16, 1999. [15] [14] In response, ASRM filed an amicus brief opposing AAB's lawsuit. [14] On March 8, 2000, the lawsuit was dismissed by Thomas F. Hogan due to lack of standing. [14]

In 1994, the American Board of Bioanalysis (ABB) created the first CLIA-approved HCLD board exam for andrologists and embryologists. [14]

Fees/Funding

The CLIA Program is funded by user fees collected from approximately 200,000 laboratories, most located in the United States. [3]

CLIA-waived tests

Under CLIA, tests and test systems that meet risk, error, and complexity requirements are issued a CLIA certificate of waiver. [20] In November 2007, the CLIA waiver provisions were revised by the United States Congress to make it clear that tests approved by the FDA for home use automatically qualify for CLIA waiver, [21] although many waived tests are not done according to designed protocols – more than 50% of such tests are done incorrectly – and result in medical errors, some with fatal consequences. [22]

Record and specimen retention

CLIA [23] and the College of American Pathologists (CAP) [24] have written policies for the minimum period of that laboratories should keep laboratory records and materials, with some examples as follows:

Microscopy slidesHistology and non-forensic autopsy10 years [23]
Forensic autopsyIndefinitely [23]
Cytology, fine needle aspiration10 years [24]
Cytology, apart from fine needle aspiration5 years [23]
Paraffin-embedded blocksNon-forensic2 [23] or 10 years [24]
ForensicIndefinitely [23]
Requisition form and test reportPathology reports10 years [23]
Other2 years [23]
Blood bank recordsQuality control records5 years [24]
Donor and recipient records10 years [24]
Records of indefinitely deferred donorsIndefinitely [24]
Wet tissuesUntil report is completed [23] or 2 weeks thereafter [24]
Proficiency testing records and quality management/quality control records2 years [23]
Discontinued procedures2 years [23]
Blood smears and other body fluid smears, microbiology slides (including Gram stains)7 days [24]
Flow cytometry plots10 years [24]

During the retention period, specimens are considered to be part of the medical record and must be kept under a CLIA accredited laboratory to ensure compliant handling and storage conditions. [25] [26] If a specimen is sent-out to a non-CLIA biorepository and recalled, the additional testing would not be in compliance. [25] There is an effort to make more biobanks CLIA equivalent as specimen recalls become more common due to expanded testing. [25]

Specimen ownership and utilization

Though CLIA does specify minimum retention periods, it does not explicitly specify which entity maintains ownership of the specimen while it is being retained and after the retention period has passed.The US currently does not have well-defined federal regulations regarding the ownership and utilization of physical human tissue specimens, their derivatives, as well as the biological information they contain. [27] [28] [29] [30] [31] [32] The current standing by bioethicists is that patients who have consented to have their diagnostic specimens collected have also abandoned them, and thus have no ownership rights. [29] [33] The Common Rule permits the use of biospecimens that would otherwise be discarded provided that the donor can not be identified, though utilization of the materials for research may require Institutional review board (IRB) approval. [29] The Association of American Medical Colleges (AAMC) has taken the stance that it "unambiguously rejects the concept that individuals retain any property interest in their excised tissues." [34]

Proponents of patient ownership rights advocate that patients must own their samples so that they can make informed decisions about how the tissues will be used, such as in bioweapons development, stem cell research, and for-profit ventures. [31] The 21st Century Cures Act enacted in December 2016 allows researchers to waive the requirement for informed consent when clinical testing "poses no more than minimal risk" and "includes appropriate safeguards to protect the rights, safety, and welfare of the human subject."

The probability that a patient may sue researchers who utilize tissues that would typically be discarded is low, but as genetics research becomes more prevalent, this likelihood may increase. [29] Ideally, researchers should obtain informed consent from individuals, and aim for transparency in their intended use for the human tissue while protecting the privacy of the donor. [29]

CAP and other laboratory accreditation organizations (AO) have additional requirements and protocols for repurposing biospecimens that would otherwise be discarded. [31]

In July 2011, an Advance Notice of Proposed Rule Making (ANPRM), entitled "Human Subjects Research Protections: Enhancing Protections for Research Subjects and Reducing Burden, Delay, and Ambiguity for Investigators" was published in the Federal Register . [35]

The rise in direct-to-consumer (DTC) genetic testing has created concerns for secondary use of both patient samples and their data. [36]

Newborn screening card retention & utilization

These newborn screening DNA databases make a complete mockery of informed consent. What people also don't know is...it is done by the state department of public health.

Jeremy Gruber, Council for Responsible Genetics [37]

In the US, newborn screening (NBS) is mandated in all states, though parents may decline the screening process based on religious beliefs or philosophical reasons in some states. [37] Few parents opt of the program due to health concerns, and a lack of awareness of the ability to opt-out. [37] After the initial testing is complete, the residual dried blood spots (DBS) on newborn screening cards may be used for secondary purposes including shared with law enforcement and sold for research. [38] The decreasing costs of whole genome sequencing have also raised concerns that blood spots may be sequenced in the future, limiting any de-identification procedures. [39] [40] [41] While CLIA does specify minimum retention requirements, it does not specify a federal maximum retention period. Retention periods for NBS cards vary by state with several states storing the cards long-term such as New Jersey with 23 years, or Texas which may keep the cards indefinitely. [42] [43] The absence of parental awareness and consent for these activities, and a lack of transparency and federal regulations, has led to significant public concern and apprehension. [44] [45] [46] [47]

New Jersey is this blank void where there's no statute telling the health department that they can keep it, and there's no oversight or limits on what they can do with it. It's limited only to the health department's imagination on how they want to use this blood.

Brian Morris, Institute for Justice(2023) [48]

The CDC Good laboratory practice guidelines for newborn screening recommends that "laboratory specimen retention procedures should be consistent with patient decisions." [49] Researchers have described the NBS samples as a gold mine representing a patient population that would otherwise be impossible to get. [46] The American Civil Liberties Union (ACLU), Council for Responsible Genetics(CRG), and the International Association of Privacy Professionals(IAPP) oppose the long term storage of identifiable NBS blood spots. [50]

In 2009, the Texas NBS program had to destroy millions of stored blood spots that were stored for decades without consent. [51] In Michigan, a 2022 lawsuit found that the NBS program long term storage and sales to third-parties was found to violate state statues noting how "post-testing conduct is not necessary to effectuate that interest because 'the health of the child is no longer at stake.'" [52] In New Jersey, the Institute for Justice filed a class-action lawsuit in 2022 under the 4th amendment seeking to limit the retention period of NBS cards after they were found to be used in warrantless law enforcement investigations without consent. [48] [53] [54]

History

The origins of CLIA can be traced back to the late 1960s, when cytology laboratories faced issues due to overworked personnel and a high incidence of errors in reading PAP smears. In response to these concerns, the Clinical Laboratory Improvement Amendment was introduced in 1967, which laid down the first set of regulations for laboratory standards, focusing mainly on independent and hospital laboratories. [55]

The Clinical Laboratory Improvement Act of 1988 (CLIA 88) was passed in the USA subsequent to the publication of an article in November 1987 in The Wall Street Journal entitled "Lax Laboratories: The Pap Test Misses Much Cervical Cancer Through Labs Errors", which alerted the public to the fact that a pap smear may be falsely negative. The article implied that false negative tests resulted largely from the carelessness of doctors. Subsequent to this, claims involving pap smears showed an alarming growth. The Act aimed at a comprehensive regulation of gynecologic cytology laboratories. [56]

CLIA certificates

Types of CLIA certificates [57]
AcronymCertificateNotes
CoWCertificate of WaiverIssued to a laboratory that performs only waived tests.
PPMCertificate for Provider-performed Microscopy proceduresIssued to a laboratory in which a physician, midlevel practitioner or dentist performs specific microscopy procedures during the course of a patient's visit. A limited list of provider-performed microscopy procedures is included under this certificate type, which are categorized as moderate complexity testing.
Certificate of RegistrationIssued to a laboratory to allow the laboratory to conduct nonwaived (moderate and/or high complexity) testing until the laboratory is surveyed (inspected) to determine its compliance with the CLIA regulations. Only laboratories applying for a certificate of compliance or a certificate of accreditation will receive a certificate of registration.
CoCCertificate of ComplianceIssued to a laboratory once the State Agency or CMS surveyors conduct a survey (inspection) and determine that the laboratory is compliant with the applicable CLIA requirements. This type of certificate is issued to a laboratory that performs nonwaived (moderate and/or high complexity) testing.
COACertificate of AccreditationIssued to a laboratory on the basis of the laboratory's accreditation by an accreditation organization approved by CMS. This type of certificate is issued to a laboratory that performs nonwaived (moderate and/or high complexity) testing.

Accrediting organizations

For CLIA laboratories licensed under a Certificate of Accreditation (CoA), bi-annual inspections are conducted by a third-party accreditation organization (AO) that meets or exceeds the CLIA requirements.

Though Foundation for the Accreditation of Cellular Therapy (FACT) (formerly Foundation for Accreditation of Hematopoietic Cell Transplantation) does not have deeming status under CLIA, most laboratories involved in cell therapies are accredited by FACT. [58]

In Dec 2022, TJC announced they would no longer recognize Commission on Office Laboratory Accreditation (COLA) for lab accreditation at TJC hospitals as of Jan 1, 2023 and facilities would have until Dec 31, 2024 to transition accredidation. [59] [60] With the COVID-driven inspection backlog and a lack of inspectors, the move was criticized as being purely a financially driven attempt to capture additional market share. [61] [62] No reason for the change was given by CLIA, COLA., or TJC TJC had originally begun recognizing COLA accreditation in 1997. [63] [64]

CLIA Accreditation organizations (AO) [65] [58]
AcronymAccrediting OrganizationDeemedNotes
AABB Association for the Advancement of Blood & Biotherapies 1995formerly American Association of Blood Banks
A2LA American Association for Laboratory Accreditation 2014
ACHC Accreditation Commission for Health Care 1995Formerly (AOA/AAHHS/HFAP)American Osteopathic Association / Accreditation Association for Hospitals and Health Systems/ Healthcare Facilities Accreditation Program
ASHI American Society for Histocompatibility and Immunogenetics 1995
COLA Commission on Office Laboratory Accreditation 1993
CAP College of American Pathologists 1994
TJC The Joint Commission 1995formerly Joint Commission on Accreditation of Healthcare Organizations (JCAHO)
Specialty/Subspecialty by CLIA Accreditation Organizations (AO) [66]
SpecialtySubspecialityAABBA2LAACHCASHICOLACAPTJC
HistocompatibilityXXXXX
MicrobiologyBacteriologyXXXXXX
MicrobiologyMycobacteriologyXXXXX
MicrobiologyMycologyXXXXX
MicrobiologyParasitologyXXXXX
MicrobiologyVirologyXXXXXX
Diagnostic ImmunologySyphilis SerologyXXXXXX
Diagnostic ImmunologyGeneral ImmunologyXXXXXXX
ChemistryRoutine ChemistryXXXXXX
ChemistryUrinalysisXXXXX
ChemistryEndocrinologyXXXXX
ChemistryToxicologyXXXXXX
HematologyXXXXXX
ImmunohaematologyABO/Rh GroupXXXXXXX
ImmunohaematologyAntibody TransfusionXXXXXX
ImmunohaematologyAntibody Non-TransfusionXXXXXX
ImmunohaematologyAntibody IdentificationXXXXXX
ImmunohaematologyCompatibility TestingXXXXXX
PathologyHistopathologyXXXXX
PathologyOral PathologyXXXXX
PathologyCytologyXXXXX
RadiobioassayXXXX
CytogeneticsXXXX

Validation Surveys

FY 2020 CLIA Validation Survey Results [67]
AABBA2LAACHCASHICAPCOLATJC
Number of Accredited Labs1863127111633959651927
Validation Surveys1111387110
Surveys with Condition-Level DeficienciesNANANANA2104
Surveys with One or More Condition-Level Deficiencies missed by AONANANANA183
Disparity RateNANANANA2.6%11.3%30.0%
*N/A: When a minimum sample size of five is not achieved for an AO, no data is reported given the lack of statistical significance. [67]

Laboratory directors

Clinical laboratories in the US that perform high complexity testing require a high complexity laboratory director (HCLD) that has earned doctoral degree in a chemical, physical, biological or clinical laboratory science from an accredited institution and be certified and continue to be certified by a board approved by HHS. The current approved boards are the following:

Certifying Boards for a high complexity laboratory director (HCLD) [68]
AcronymNameNotes
ABB American Board of Bioanalysis
ABCC American Board of Clinical Chemistry
ABFT American Board of Forensic Toxicology (limited to individuals with a doctoral degree with Fellow status)
ABMGG American Board of Medical Genetics and Genomics (formerly known as American Board of Medical Genetics (ABMG))
ABMLI American Board of Medical Laboratory Immunology no longer accepting new exam applicants
ABMM American Board of Medical Microbiology
ACHI American College of Histocompatibility and Immunogenetics (formerly known as American Board of Histocompatibility and Immunogenetics (ABHI))
NRCC National Registry of Certified Chemists
ASCP American Society for Clinical Pathology Diplomate in Medical Laboratory Immunology (DMLI)

Complaint Handling

CLIA complaints tri-fold Clinical Laboratory Improvement Amendments (CLIA) - Complaints TriFold Brochure.pdf
CLIA complaints tri-fold

Under CLIA, anyone, including patients and their families, laboratory personnel, and the general public, can submit anonymous complaints if there are concerns about the quality of laboratory testing. [69] The most common CLIA complaints are concerns about a laboratory's operations, such as: unlabeled specimens, unqualified staff, record falsification, missing or incorrect test results and the confidentiality of patient information. [69] For laboratories accredited by a laboratory Accreditation Organization (AO), complaints may be referred to the laboratory’s AO. [69]


Though anyone may lodge a complaint, relatively few laboratory complaints have been filed. [70]

This may due to a lack of publicity on complaint filing, since CLIA does not require that laboratory employees or patients be made aware on how to file a complaint, and privacy concerns from the lack whistleblower protections. Other limiting factors include an increasing reliance of on-the-job (OTJ) trained lab personnel unaware of regulatory requirements, foreign sponsored H1b medical technologists fearing retaliatory deportation, and an aging workforce awaiting retirement. Laboratory whistleblowers may face countersteps such as cover-ups, loss of income, position, employment, punitive lawsuits, and attacks on the individual's reputation which would degrade their living conditions and dissuade bringing fraud to light. [71]

A June 2006 GAO report found that lab workers may file complaints infrequently because of concern about retaliation and a lack of understanding about how to file a complaint. [72] The report that CMS require labs to prominently display complaint posters instructing lab workers how to file anonymous complaints. [72] In a July 2007 response to the GAO, CMS said that they lacked the legal authority to mandate labs to display posters. [72] They plan to take several other steps to increase awareness of complaint processes including: (1) posting fact sheet on the CMS web site on complaint filing (2) adding information on filing complaints to the interpretive guidelines used by surveyors (3) adding complaints received by accrediting organizations to their complaints database and (4) reminding states and accrediting organizations by letter about the importance of complaints. [72] CMS reported that it sent a letter about complaint tracking to accreditation organizations, exempt states, and professional laboratory organizations on November 30, 2007. [72] According to CMS, this letter highlighted the importance of complaint tracking and filing, and encouraged the publication of compliant processes. [72] CMS has also developed a CLIA Brochure on Complaints which was being prepared for release as of September 2008. [72] Once released, CMS anticipates posting the brochure on its website and printing copies for distribution to laboratories. We will continue to monitor implementation of this recommendation. [72] In 2009, the GAO recommended that CMS require all survey organizations to develop and require labs to prominently display posters instructing lab workers how to file anonymous complaints. [72] CMS determined that this would not be practical and instead is working on publishing a brochure that will be distributed by surveyors to labs, published on the CMS CLIA Web site, and distributed at lab professional meetings. [72] Few labs were the subject of a complaint each year from 2002 through 2004—significantly less than one complaint per lab per year. [72] Concerns that labs can easily identify the lab workers who file complaints and lab workers’ lack of familiarity with how to file a complaint may explain why so few laboratory workers report problems. [72] Complaints are an important tool in detecting quality problems between lab surveys. [72] For example, complaints about testing at a hospital lab were crucial because information had been concealed, complicating the detection of quality problems during the lab’s surveys. [72] As a result of a complaint, surveyors were able to substantiate inadequate calibration of testing equipment that could adversely affect patient care. [72]

Several of the AOs, such as CAP, require laboratories to post the complaint contact signs, but only in employee areas. [73]

Whistleblower Protection

Few labs are subject to complaints. [72] [70] For 2024, CLIA budgeted for approximately 209 onsite complaint surveys, representing ~0.06% of the 320,000 CLIA labs. [74] The low volume of lab complaints may be related to complainants’ concerns about anonymity and fear of retaliation for filing a complaint. [72] It may be easy for a lab to determine the source of a complaint filed by a lab worker. [72] For example, in some cases, either the nature of the complaint or the piece of testing equipment in question could narrow the list of possible complainants. [72] Because of the difficulty of protecting the anonymity of lab workers who file complaints, whistle-blower protections for such individuals are particularly important. Following congressional testimony by a Maryland hospital lab worker that she and her colleagues feared losing their jobs because of the complaints, a whistleblower protection bill entitled "Clinical Laboratory Compliance Improvement Act of 2005" was introduced, but died in committee. [75] [76] [72]

CLIA and federal law provide no specific whistleblower protection to laboratory employees who report CLIA violations. [76] However, CLIA complaints made under the False Claims Act (FCA) may be afforded by whistleblower protections. [76] The FCA which prohibits fraud against government programs, including Medicare and Medicaid, may cover CLIA violations that give rise to FCA violations such as laboratory deficiencies that render billed services medically worthless. [76] Whether CLIA compliance is a condition of Medicare payment is a contested issue. [76] To qualify for protection under FCA, the whistleblower must demonstrate that they were engaged in FCA-protected activity and that the employer knew their activity was protected under the FCA, which presents a challenge for whistleblowers who merely report regulatory violations. [76] To be protected under the FCA, they must reasonably believe the regulatory noncompliance has or will amount to fraud against the government and they must put the employer on notice that their protected activity relates to the filing of false or fraudulent claims. [76] Laboratory workers who merely report CLIA violations without tying the issues to Medicare or Medicaid reimbursement are unlikely to receive FCA whistleblower protection. [76]

From 2004-2005, approximately 460 patients Maryland General Hospital were tested for Hepatitis C and HIV with invalid controls. [77] [78] [79] Follow-up retesting was not possible as many patients were unreachable due to being homeless. [80] The incident prompted CAP to add whistleblower protections. [81]

In September 2015, a Theranos employee email complaint to the Centers for Medicare and Medicaid Services (CMS) outlining regulatory noncompliance led to the company's exposure as a fraud and subsequent downfall. [76]

External videos
Nuvola apps kaboodle.svg CBS COVID LAB: State Secrets Exposed

The Valencia Lab fiasco was exposed by whistleblowers, and eventually the lab’s contract was quietly cancelled—a testament to the importance of the role of whistleblowers in exposing problems.

Scott Wilk, California State Senator (2022) [82]

In Feb 2021, a series of whistleblowers reached out to the CBS Sacramento alleging improprieties and CLIA violations at the CAP accredited California Department of Public Health (CPDH) Valencia Branch Laboratory that had partnered with PerkinElmer in a $1.7 Billion no-bid contract. PerkinElmer subsequently sued the whistleblowers for breach of confidentiality. [83] CBS 13 subsequently investigated the Valencia laboratory along with CDPH which investigated itself and found the allegations substantiated. The laboratory was found to have significant immediate jeparody deficiencies, but was not sanctioned. The laboratory medical director had previously overseen Theranos. [84] [85] In response, California State Senator Scott Wilk introduced the The Whistleblower Protection Act (SB 947) in February 2022, to extend the existing California Whistleblower Protection Act (CWPA) afforded to California state employees to the employees of government contractors that hold state contracts over $5 million dollars. [86] Wilk noted how "brave whistleblowers from the lab risked their livelihoods to expose unlicensed lab techs sleeping on the job, a lack of supervision over untrained staff, contaminated tests, swapped samples, testing errors, a high rate of "inconclusive" results, and inaccurate results, with no process for addressing or rectifying errors" were subsequently "subject to litigation in response to their brave actions to expose the abuse of state funding in the lab, and the potential public health issues stemming from improperly processing and handling COVID 19 specimens." [87] The bill passed unanimously in the California State Senate [82] , but died in the California State Assembly. The CPDH partnership contract with PerkinElmer was terminated on May 15, 2022 and was subsequently criticized for its excess costs, failure to meet expectation, and the states poor handling of the investigation. [88] . [86]

False Claims Act

In recent years, there have been several successful FCA claims related to CLIA that have opened a new avenue of regulatory liability to laboratories and provided a financial incentive to whistleblowers. Historically, laboratory complianace issues have primarily been viewed as billing issues, but increasingly, quality of care issues are recieving attention as whistleblower lawsuits allege substandard or poor quality testing, which is actionable under the False Claims Act as "worthless service." [89] An improper proficiency testing (PT) referral may result in an FCA claim under the "false certification" theory. [76] [90] [91]

In 2011, a medical technologist filed a FCA claim under the "worthless services" theory against the Mimbres Memorial Hospital in Deming, New Mexico alleging that routine quality control for microbiology was not performed per CLIA and that the hospital knowingly released and billed for non-verifiable results before the department was shutdown. [92] In 2013, the United States District Court for the District of New Mexico dismissed the FCA claim since maintaining compliance with a CLIA Certificate of Compliance (CoC) was not a condition of payment under Medicare, only a condition of participation. [93]

In 2020, an FCA claim against DaVita was filed under the “implied false certification” alleged that specimens from around the country were shipped under poorly controlled environmental conditions to Florida, where Davita maintained its laboratories for tax benefits, without validating specimen storage conditions. The case settled. [94] [95]

In 2021, an oncology clinic in St. Petersburg, Florida was subject to an FCA claim that resulted in a total judgment of US$1.179 million on 214 fraudulent claims to Medicare that totaled US$755.54 stemming from the lack of a CLIA certificate. The oncology practice had its own CLIA certificate and acquired another oncology clinic with an in-house lab, but did not acquire the CLIA license and the existing CLIA certificate did not cover the new practice. Because the lab at the newly aquired oncology practice lacked the a proper CLIA certificate, reimbursement was denied, but the practice opted to resubmit the bills to fraudulently show the tests were performed at an office that had a valid CLIA certificate. In doing so 214 times, the federal government suffered $755.54 in damages. The court trebled the damages to $2,266.62 and imposed the minimum statutory penalty of $5500 per violation, for each of the 214 violations. The Elevth ciruit noted that “[s]eeing a judgment of $1.179 million based on $755.54 in actual damages may raise an eyebrow,” noting that “[f]raud harms the United States in ways untethered to the value of any ultimate payment” and that “[i]n the context of the FCA, we also consider the deterrent effect of a monetary award.” [96] [97] [98] [99] [100] [101]

Litigation

CLIA itself has not been the subject of much litigation. [91] Federal district courts have held that the CLIA did not create a private cause of action for individuals to sue laboratories that do not comply with its provisions. [91]

Budget

For the 2024 fiscal year, CLIA was budgeted US$23.5 million. [74] The approximately 86 surveyors conduct 120 surveys annually, 112 initial/recertification and eight follow-up surveys, spending an average of up to 14 hours per survey. [74] The staffing ratio is one clerk per three surveyors, one professional support staff per six surveyors, and one supervisory surveyor per seven surveyors. [74] The projected workload is 9,172 compliance initial and recertification surveys, 642 complaint/follow-up onsite laboratory surveys (approximately 209 of the 642 will be complaint surveys), and 433 validations of accredited laboratory surveys. [74] The Waived Laboratory Survey Initiative remains discontinued and CLIA waived and PPM laboratories will not receive routine inspection. [74]

See also

References

Attribution

  1. ↑ CLIA related Federal Register and Code of Federal Regulation Announcements, and the FDA's Clinical Laboratory Improvement Amendments (CLIA). Accessed Nov. 14, 2015.
  2. ↑ CLIA Program homepage
  3. 1 2 "CLIA Overview". CMS. 11 April 2018.
  4. ↑ "Laboratory Developed Tests". FDA. 26 March 2018. Archived from the original on January 14, 2017.
  5. ↑ CLIA Categorization Criteria (December 2012)
  6. 1 2 "CLIA: Special Alert Live Blood Cell Analysis (LBA) Under CLIA [Alternative - Non-Traditional Laboratory Testing]" (PDF). Centers for Medicare & Medicaid Services. Mar 17, 2017. Retrieved 27 February 2024.
  7. ↑ Stephen Barrett (March 9, 2004). "CLIA Hits Questionable Tests". Quackwatch . Retrieved 27 February 2024.
  8. 1 2 Jones, Stuart; Campbell, Bruce; Hart, Tanya (February 27, 2019). "Laboratory tests commonly used in complementary and alternative medicine: a review of the evidence" . Annals of Clinical Biochemistry: International Journal of Laboratory Medicine. 56 (3): 310–325. doi:10.1177/0004563218824622. PMID   30813740. S2CID   73494636.
  9. ↑ Bellamy, Jann (March 14, 2019). "Experts slam CAM lab tests, call for better regulation". Science-Based Medicine . Retrieved 27 February 2024.
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Sources

Books
Journals
  • Garrett, Brandon L.; Mitchell, Gregory (2018). "The Proficiency of Experts". University of Pennsylvania Law Review. 166: 901–960. Retrieved 15 April 2024.
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