Congress Retables VALID and VITAL Legislation to Regulate LDTs

The U.S. Food and Drug Administration’s response to the COVID-19 public health emergency has infused the longstanding efforts to overhaul the agency’s system of regulating Laboratory Developed Tests (LDTs) with new energy. This Spring, Congress exhumed a pair of bills, the VALID and VITAL Acts, that address the LDTs regulation conundrum in different ways.

The FDA’s Current Regulatory “System”

Since the original Food Drug & Cosmetics Act legislation doesn’t provide for regulation of laboratory tests, the FDA justifies its regulatory authority over LDTs, aka, in vitro clinical tests (IVCTs), as an extension of its power to regulate medical devices. Accordingly, it clears LDTs via the 510(k) premarket review pathway. Rather than following the notice of rulemaking process designed to ensure transparency and public input into new federal regulation, the agency regulates LDTs via informal guidance that it posts on its website. Adding to the arbitrariness is the “enforcement discretion” the agency exercises by deferring regulation of most LDTs to the Centers for Medicare and Medicaid Services (CMS) under the Clinical Laboratory Improvement Amendments (CLIA) law.

Fixing this mess has been an almost decade-long endeavor. On the legislative front, a bill called the Diagnostic Accuracy and Innovation Act (DAIA) would have removed diagnostic tests from the definition of a medical device and thus placed it outside the scope of the 510(k) pathway. Rather than totally stripping the FDA of regulatory authority over IVCTs, a 2018 bill called the Verifying Accurate, Leading-edge IVCT Development (VALID) proposed to limit it by establishing IVCTs as a new product category consisting of LDTs and test kits. The bill did not get far; nor did an updated version of it proposed in March 2020.

The VALID Act of 2021

The VALID Act of 2021 would create a risk-based framework for IVCT regulation:

High-Risk Tests: High-risk tests, like novel assays, would be required to go through premarket review to verify analytical and clinical validity.

Lower-Risk Tests: VALID would establish a separate technological certification program for lower-risk tests, as well as a new system allowing hospitals and laboratories to submit their tests electronically.

Emergency Use Tests: To eliminate the emergency use authorization (EUA) bottlenecks and delays that became apparent during the pandemic, validated tests would be authorized to use for emergency purposes pending review of their EUA clearance, analogous to the notification process FDA used for certain COVID-19 tests during the early days of the public health emergency.

Grandfathered Tests: Qualifying LDTs offered for clinical use before enactment of the legislation would receive “grandfathered” status and not require premarket review, provided that they carry a disclaimer on the label and are neither modified nor flagged by the FDA as posing a special concern.

Transitional Tests: IVCTs first offered between the date VALID is enacted and 90 days after it takes effect would be allowed to remain on the market as “transitional” IVCTs, provided that the test maker submits a timely marketing application to the FDA.

Other key features of the 2021 version of VALID:

• Establishment of test design and quality requirements for IVCTs, equivalent to the current Quality Systems requirements for medical devices;
• Creation of a new process that the FDA can use to request information from an otherwise exempt IVCT, such as a transitional or grandfathered test, in certain situations;
• Authority of FDA to participate in collaborative communities for purposes of “facilitating community solutions and decision-making” for IVCTs;
• A requirement that FDA create and maintain an IVCTs database that is more extensive than the current device registration and listing database; and
• New IVCT adulteration, misbranding and postmarket surveillance requirements mirroring current rules that apply to medical devices.

The VITAL Act

VALID isn’t the only LDTs regulation bill on the table. First introduced by Senator Rand Paul (R-KY) in March 2020, the newly reintroduced Verified Innovative Testing in American Laboratories Act (VITAL) would transfer the FDA’s regulatory powers over LDTs to the U.S. Department of Health and Human Services (HHS). Supporters of the bill believe that the FDA’s slow response in expanding access to SARS-CoV-2 virus tests during the pandemic reaffirms the need for stripping the agency of power to regulate LDTs. “When we face a health emergency, government should trust academic, community and public health labs to do what they are already trained and certified to do,” noted Senator Paul in a press release at the time. “With all of the debates about how government should respond, here’s one thing it can stop doing: piling counter-productive bureaucratic hurdles in the way of our medical professionals.”

Subsequent FDA management of the EUA process seemed to vindicate and strengthen the drive to get the agency out of the business of regulating LDTs. In August 2020, HHS issued a determination stating that the FDA cannot require premarket review of LDTs without notice and comment rulemaking. While not eliminating FDA regulatory authority over LDTs, the HHS determination barred the agency from its traditional—and to most in the industry—infuriating practice of exercising that authority via website guidelines and other informal pronouncements serving as shortcuts around the burdensome notice and comment rulemaking protocols.

Here are some of the key new FDA EUAs and clearances announced in July:

New FDA Emergency Use Authorizations (EUAs) & Approvals