VALID Could Hurt Home Sample Testing: Attorneys

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Attorneys Gail Javitt and Jeffrey Gibbs (Hyman, Phelps & McNamara) say the “grandfathering” provision in the proposed VALID Act to regulate laboratory-developed tests (LDTs) could adversely affect in-home specimen collection used in telehealth applications. Writing in their firm’s FDA Law Blog, the two say it does not appear that inhibiting telehealth laboratory services is a goal of the legislation. Rather, they say, it is an inadvertent side effect of the rush to approve legislation that has never been considered by a House committee or by either chamber as a standalone bill.

Javitt and Gibbs say that under the grandfather provision, laboratories may continue performing their LDTs on home-collected specimens only if the specimen collection devices have been specifically authorized for such use or, for devices that are otherwise exempt from FDA review, the device’s use is deemed consistent with the limitations on the exemption.

“Since very few specimen collection devices include home use indications and FDA could take the view that an otherwise exempt device forfeits the exemption if intended for home use, the VALID Act may effectively limit the performance of LDTs to specimens collected in a healthcare setting,” the attorneys write. “Thus, this seemingly insignificant clause in VALID could have far-reaching, unintended consequences. This makes us wonder what else is lurking in this nearly 250-page, 43,000-word bill that could have far-reaching, and unintended, consequences…. The seemingly inadvertent limitation on home testing for telehealth stands as a warning sign that the effects of the bill should be better understood by Congress before the bill is enacted.”

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