82_FR_48972 82 FR 48770 - Clinical Laboratory Improvement Amendments of 1988 (CLIA); Fecal Occult Blood (FOB) Testing

82 FR 48770 - Clinical Laboratory Improvement Amendments of 1988 (CLIA); Fecal Occult Blood (FOB) Testing

DEPARTMENT OF HEALTH AND HUMAN SERVICES
Centers for Medicare & Medicaid Services

Federal Register Volume 82, Issue 202 (October 20, 2017)

Page Range48770-48773
FR Document2017-22813

This final rule amends the Clinical Laboratory Improvement Amendments of 1988 (CLIA) regulations to clarify that the waived test categorization applies only to non-automated fecal occult blood tests.

Federal Register, Volume 82 Issue 202 (Friday, October 20, 2017)
[Federal Register Volume 82, Number 202 (Friday, October 20, 2017)]
[Rules and Regulations]
[Pages 48770-48773]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2017-22813]


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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Centers for Medicare & Medicaid Services

42 CFR Part 493

[CMS-3271-F]
RIN 0938-AS04


Clinical Laboratory Improvement Amendments of 1988 (CLIA); Fecal 
Occult Blood (FOB) Testing

AGENCY: Centers for Medicare & Medicaid Services (CMS), HHS; Centers 
for Disease Control and Prevention (CDC), HHS.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This final rule amends the Clinical Laboratory Improvement 
Amendments of 1988 (CLIA) regulations to clarify that the waived test 
categorization applies only to non-automated fecal occult blood tests.

DATES: These regulations are effective December 19, 2017.

FOR FURTHER INFORMATION CONTACT: Nancy Anderson, CDC, (404) 498-2280, 
or Daralyn Hassan, CMS, (410) 786-9360.

SUPPLEMENTARY INFORMATION: 

[[Page 48771]]

I. Background

    The Clinical Laboratory Improvement Amendments of 1988 (CLIA) 
(section 353 of the Public Health Service Act, codified at 42 U.S.C. 
263a) requires any facility performing examinations of human specimens 
(for example, tissue, blood, and urine) for diagnosis, prevention, or 
treatment purposes to be certified by the Secretary of the Department 
of Health and Human Services (HHS). The objective of the CLIA program 
is to ensure accurate and reliable laboratory testing. The Centers for 
Medicare & Medicaid Services (CMS) is responsible for the 
administration of CLIA. The Centers for Disease Control and Prevention 
(CDC) provides scientific and technical support/consultation to HHS and 
CMS. The Food and Drug Administration (FDA) is responsible for test 
categorization.
    To receive a certificate of waiver (COW) under CLIA, a laboratory 
must only perform tests listed as waived in the CLIA regulations at 42 
CFR 493.15(c) (for example, urine pregnancy tests--visual color 
comparison tests) or tests which the FDA has determined to be waived 
because they are simple with an insignificant risk of error. Waived 
tests are exempt from most CLIA requirements, and the laboratories that 
perform them receive no routine surveys.
    Waived laboratories must meet only the following requirements under 
CLIA:
     Enroll in the CLIA program;
     Pay applicable certificate fees biennially; and
     Follow manufacturers' test instructions.
    Since the implementation of the CLIA program in 1992, the types of 
tests waived under CLIA have increased from 8 to currently 97; 
consequently, the percentage of laboratories issued a COW has grown 
significantly from 20 percent to almost 72 percent of the approximate 
250,000 laboratories enrolled.
    Dipstick or tablet reagent urinalysis (non-automated) and fecal 
occult blood (FOB) are two of the original 8 waived tests published in 
the Federal Register in 1992, as specified at Sec.  493.15(c)(1) and 
(2), respectively. The regulation specifies that waived test status is 
applicable to ``non-automated'' dipstick or tablet reagent urinalysis, 
but it does not specify ``non-automated'' for FOB tests. At the time 
the regulation was adopted, the FOB test was only available as a manual 
or non-automated test. However, there are now automated FOB analyzers 
that use complex and sophisticated technology, which do not meet the 
CLIA criteria for waiver and, therefore, should not be waived. It was 
therefore necessary to propose amendments to the regulations to exclude 
these automated tests from the list of waived tests in the CLIA 
regulations.
    Furthermore, since the development and proliferation of the waived 
test for hemoglobin by single analyte instruments with self-contained 
or component features, as described at Sec.  493.15(c)(9), it was our 
understanding that the non-automated hemoglobin by copper sulfate 
method at Sec.  493.15(c)(6) was no longer in use. Therefore, we 
proposed to remove the hemoglobin by copper sulfate method from the 
list of waived tests at Sec.  493.15(c)(6) if commenters confirmed that 
the method is no longer used.

II. Provisions of the Proposed Regulations

    On November 7, 2014, we published a proposed rule in the Federal 
Register (79 FR 66348 through 66350) entitled, ``Clinical Laboratory 
Improvement Amendments (CLIA); Fecal Occult Blood (FOB) Testing.'' In 
that rule, we proposed to revise Sec.  493.15(c)(2) by adding the words 
``non-automated'' following ``Fecal occult blood.'' This change would 
exclude the more complex automated FOB analyzers from the list of 
waived tests in the CLIA regulations.
    In addition, we proposed to remove the hemoglobin by copper sulfate 
method from the list of waived tests at Sec.  493.15(c)(6) if we 
received public comments confirming that this method is no longer used.
    Finally, we proposed to renumber the remaining paragraphs if Sec.  
493.15(c)(6) was removed.

III. Analysis of and Responses to Public Comments

    In response to the November 7, 2014 proposed rule, we received 7 
public comments. Interested parties that submitted comments included 
blood donor centers, laboratories and accreditation organizations. A 
summary of the comments and our responses are as follows:
    Comment: One commenter supported our proposal to add the words 
``non-automated'' following ``Fecal occult blood.''
    Response: We appreciate the commenters' support. This change would 
exclude the more complex automated FOB analyzers from the list of 
waived tests in the CLIA regulations.
    Comment: In regard to our proposal to remove the hemoglobin by 
copper sulfate method from the list of waived tests if comments 
confirmed that this method is no longer used, one commenter stated that 
they collect approximately 10,000 units of blood per year and currently 
use the hemoglobin by copper sulfate method for cost reasons. Another 
commenter stated that they use the hemoglobin by copper sulfate method 
as a qualitative method to detect hemoglobin levels of 12.5g/dl or 
greater.
    Several commenters indicated that they use the hemoglobin by copper 
sulfate method to screen donors for acceptable pre-donation hemoglobin. 
Specifically, they perform approximately 20,000 to 30,000 tests per 
year.
    Response: In consideration of these public comments, which indicate 
that the hemoglobin by copper sulfate method is still in use, we are 
not finalizing our proposal to remove the hemoglobin by copper sulfate 
method from the list of waived tests at Sec.  493.15(c)(6).
    Comment: One commenter stated that it is appropriate to require 
``automated FOB tests'' to be evaluated through the CLIA waiver process 
instead of automatically waiving these devices. However, the commenter 
believed that ``waived testing'' poses risk to patients in certain 
settings and that any test that may result in harm should not be 
waived.
    Response: We appreciate the commenter's support for requiring 
``automated FOB tests'' to be evaluated through the CLIA waiver process 
instead of automatically waiving these devices. According to section 
263a(d)(3) of the CLIA statute, waived tests are simple laboratory 
examinations and procedures that have been approved by the FDA for home 
use or that, as determined by the Secretary, are simple laboratory 
examinations and procedures that have an insignificant risk of an 
erroneous result, including those that employ methodologies that are so 
simple and accurate that the likelihood of inaccurate result by the 
user is negligible, and those that the Secretary has determined pose no 
unreasonable risk of harm to the patient if performed incorrectly. 
Therefore, we believe that waived tests that are determined to have met 
the statutory criteria do not pose a significant risk of harm to 
patients.

IV. Provisions of the Final Regulations

    We are adopting as final the provision set forth in the November 7, 
2014 proposed rule (79 FR 66348 through 66350) with the following 
modifications:
     In consideration of public comments, we are not finalizing 
our proposal to remove the hemoglobin by

[[Page 48772]]

copper sulfate method from the list of waived tests at Sec.  
493.15(c)(6).
     Since we are not removing Sec.  493.15(c)(6), we are not 
finalizing our proposal to renumber the remaining paragraphs in this 
section.

V. Collection of Information Requirements

    This document does not impose information collection requirements, 
that is, reporting, recordkeeping or third-party disclosure 
requirements. Consequently, there is no need for review by the Office 
of Management and Budget under the authority of the Paperwork Reduction 
Act of 1995 (44 U.S.C. 3501 et seq.).

VI. Regulatory Impact Statement

    We have examined the impact of this rule as required by Executive 
Order 12866 on Regulatory Planning and Review (September 30, 1993), 
Executive Order 13563 on Improving Regulation and Regulatory Review 
(January 18, 2011), the Regulatory Flexibility Act (RFA) (September 19, 
1980, Pub. L. 96-354), section 1102(b) of the Social Security Act, 
section 202 of the Unfunded Mandates Reform Act of 1995 (March 22, 
1995; Pub. L. 104-4), Executive Order 13132 on Federalism (August 4, 
1999), the Congressional Review Act (5 U.S.C. 804(2)), and Executive 
Order 13771 on Reducing Regulation and Controlling Regulatory Costs 
(January 30, 2017).
    Executive Orders 12866 and 13563 direct agencies to assess all 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). A 
regulatory impact analysis must be prepared for major rules with 
economically significant effects ($100 million or more in any 1 year). 
This rule does not reach the economic threshold and thus is not 
considered a major rule.
    This final rule amends the CLIA regulations at Sec.  493.15(c)(2) 
to provide that only non-automated FOB tests are waived by the 
regulation. Automated test systems that detect FOB would, therefore, be 
subject to test categorization by the FDA as moderate or high 
complexity as described in Sec.  493.17. These test systems would only 
be considered for waiver approval if the manufacturer submits a waiver 
application to the FDA demonstrating the particular test system meets 
the statutory waiver criteria of being simple and having an 
insignificant risk of an erroneous result.
    As of July 11, 2017, the FDA CLIA test categorization database 
includes 134 FOB test systems. Five of these test systems are automated 
and are categorized by the FDA as moderate (non-waived) complexity; all 
others are waived non-automated methods (http://www.accessdata.fda.gov/scripts/cdrh/cfdocs/cfCLIA/search.cfm). Only two of the five automated 
test systems are sold in the United States. Because the current 
regulation governing FOB tests does not specify automated or non-
automated FOB tests, it could be misconstrued that automated FOB test 
systems are available for use by laboratories with a COW. As amended, 
it will be clear that automated FOB test systems are not permitted for 
use by a laboratory with a COW under Sec.  493.15(c)(2). This means 
that testing sites using one or both of the two automated test systems 
noted above (which are categorized as moderate complexity tests) would 
be impacted by this rule if they are currently operating under a COW. 
According to the information on automated analyzers for FOB testing 
distributed in the United States provided by manufacturers, we estimate 
that no more than 26 laboratories would be impacted by this regulatory 
change. We developed a range of the estimated economic impact for 
changes that may result from this final rule. Our highest estimate 
totals approximately $151,000 for the first year, due to the initial 
costs required to change certificate types for all potentially impacted 
laboratories. This would decrease in years two through five, projected 
to be as low as approximately $3,000 per year in years two and four, 
when no certificate fees would be paid. Therefore, this rule does not 
meet the economic threshold to be considered a major rule.
    The RFA requires agencies to analyze options for regulatory relief 
of small entities. For purposes of the RFA, small entities include 
small businesses, nonprofit organizations, and small governmental 
jurisdictions. Most hospitals and most other providers and suppliers 
are small entities, either by nonprofit status or by having revenues of 
less than $7.5 million to $38.5 million in any 1 year. Individuals and 
states are not included in the definition of a small entity. We are not 
preparing an analysis for the RFA because we believe that approximately 
79 percent of United States medical laboratories qualify as small 
entities based on their nonprofit status as reported in the American 
Hospital Association Fast Fact Sheet, updated July 11, 2017 (http://www.aha.org/research/rc/stat-studies/fast-facts.shtml). However, as 
previously described, due to the low number of automated analyzers 
distributed in the United States, we estimate that no more than 26 
laboratories would potentially be impacted by this regulatory change. 
As its measure of significant economic impact on a substantial number 
of small entities, HHS uses a change in revenue of more than 3 to 5 
percent. We do not believe that this threshold would be reached by the 
requirements in this final rule because very few small entities would 
be subject to the provisions in this rule.
    In addition, section 1102(b) of the Social Security Act (the Act) 
requires us to prepare a regulatory impact analysis if a rule may have 
a significant impact on the operations of a substantial number of small 
rural hospitals. This analysis must conform to the provisions of 
section 604 of the RFA. For purposes of section 1102(b) of the Act, we 
define a small rural hospital as a hospital that is located outside of 
a Metropolitan Statistical Area for Medicare payment regulations and 
has fewer than 100 beds. We do not expect this final rule to have a 
significant impact on a substantial number of small rural hospitals. 
The changes in this final rule would apply only to the laboratories 
previously described, which do not include any small rural hospitals at 
this time. Thus, an analysis under section 1102(b) of the Act is not 
required for this rulemaking.
    Section 202 of the Unfunded Mandates Reform Act of 1995 also 
requires that agencies assess anticipated costs and benefits before 
issuing any rule whose mandates require spending in any 1 year of $100 
million in 1995 dollars, updated annually for inflation. In 2017, that 
threshold is approximately $148 million. This rule will have no 
consequential effect on state, local, or tribal governments or on the 
private sector.
    Executive Order 13132 establishes certain requirements that an 
agency must meet when it promulgates a proposed rule (and subsequent 
final rule) that imposes substantial direct requirement costs on state 
and local governments, preempts state law, or otherwise has Federalism 
implications. Since this regulation does not impose any costs on state 
or local governments, the requirements of Executive Order 13132 are not 
applicable.
    Executive Order 13771, entitled ``Reducing Regulation and 
Controlling Regulatory Costs,'' was issued on January 30, 2017 (82 FR 
9339, February 3, 2017). Section 2(a) of Executive Order 13771 requires 
an agency, unless

[[Page 48773]]

prohibited by law, to identify at least two existing regulations to be 
repealed when the agency publicly proposes for notice and comment, or 
otherwise promulgates, a new regulation. In furtherance of this 
requirement, section 2(c) of Executive Order 13771 requires that the 
new incremental costs associated with new regulations shall, to the 
extent permitted by law, be offset by the elimination of existing costs 
associated with at least two prior regulations. OMB's interim guidance, 
issued on April 5, 2017, https://www.whitehouse.gov/the-press-office/2017/04/05/memorandum-implementing-executive-order-13771-titled-reducing-regulation, explains that for Fiscal Year 2017 the above 
requirements only apply to each new ``significant regulatory action 
that imposes costs.'' It has been determined that this final rule is 
not a ``significant regulatory action thus does not trigger the above 
requirements of Executive Order 13771.

List of Subjects in 42 CFR Part 493

    Administrative practice and procedure, Grant programs--health, 
Health facilities, Laboratories, Medicaid, Medicare, Penalties, 
Reporting and recordkeeping requirements.

    For the reasons set forth in the preamble, the Centers for Medicare 
& Medicaid Services amends 42 CFR part 493 as set forth below:

PART 493--LABORATORY REQUIREMENTS

0
1. The authority citation for part 493 continues to read as follows:

    Authority: Sec. 353 of the Public Health Service Act, secs. 
1102, 1861(e), the sentence following sections 1861(s)(11) through 
1861(s)(16) of the Social Security Act (42 U.S.C. 263a, 1302, 
1395x(e), the sentence following 1395x(s)(11) through 1395x(s)(16)), 
and the Pub. L. 112-202 amendments to 42 U.S.C. 263a.

0
2. Section 493.15 is amended by revising paragraph (c)(2) to read as 
follows:


Sec.  493.15  Laboratories performing waived tests.

* * * * *
    (c) * * *
    (2) Fecal occult blood-non-automated;
* * * * *

    Dated: August 24, 2017.
Seema Verma,
Administrator, Centers for Medicare & Medicaid Services.

    Dated: October 5, 2017.
Anne Schuchat,
RADM, U.S. Public Health Service, Principal Deputy Director, Centers 
for Disease Control and Prevention.

    Dated: October 12, 2017.
Eric D. Hargan,
Acting Secretary, Department of Health and Human Services.
[FR Doc. 2017-22813 Filed 10-19-17; 8:45 am]
 BILLING CODE 4120-01-P



                                             48770             Federal Register / Vol. 82, No. 202 / Friday, October 20, 2017 / Rules and Regulations

                                             C. Paperwork Reduction Act (PRA)                        significant regulatory action under                   shall not postpone the effectiveness of
                                               This action does not impose an                        Executive Order 12866.                                such rule or action.
                                             information collection burden under the                 J. National Technology Transfer and                   List of Subjects in 40 CFR Part 52
                                             provisions of the Paperwork Reduction                   Advancement Act
                                             Act, 44 U.S.C. 3501 et seq.                                                                                     Environmental protection, Air
                                                                                                       This rulemaking does not involve                    pollution control, Incorporation by
                                             D. Regulatory Flexibility Act (RFA)                     technical standards. The EPA is not                   reference, Sulfur oxides.
                                                I certify that this action will not have             revising any technical standards or                       Authority: 42 U.S.C. 7401 et seq.
                                             a significant economic impact on a                      imposing any new technical standards
                                                                                                                                                             Dated: October 13, 2017.
                                             substantial number of small entities                    in this action.
                                                                                                                                                           E. Scott Pruitt,
                                             under the RFA. This action will not                     K. Executive Order 12898: Federal                     Administrator, EPA.
                                             impose any requirements on small                        Actions To Address Environmental
                                             entities.                                               Justice in Minority Populations and                     For the reasons set forth in the
                                             E. Unfunded Mandates Reform Act                         Low-Income Populations                                preamble, EPA amends 40 CFR part 52
                                             (UMRA)                                                                                                        as follows:
                                                                                                        The EPA believes that this action does
                                               This action does not contain an                       not have disproportionately high and                  PART 52—APPROVAL AND
                                             unfunded mandate of $100 million or                     adverse human health or environmental                 PROMULGATION OF
                                             more as described in UMRA, 2 U.S.C.                     effects on minority populations, low-                 IMPLEMENTATION PLANS
                                             1531–1538, and does not significantly or                income populations, and/or indigenous
                                             uniquely affect small governments.                      peoples, as specified in Executive Order              ■ 1. The authority citation for part 52
                                                                                                     12898 (59 FR 7629, February 16, 1994).                continues to read as follows:
                                             F. Executive Order 13132: Federalism
                                                                                                     The documentation for this decision is                    Authority: 42 U.S.C. 7401, et seq.
                                               This action does not have federalism                  contained in section III above.
                                             implications. It will not have substantial                                                                    Subpart DD—Nevada
                                             direct effects on the states, on the                    L. Determination Under Section 307(d)
                                             relationship between the national                                                                             § 52.1488    [Amended]
                                                                                                        Pursuant to CAA section 307(d)(1)(B),
                                             government and the states, or on the                    the EPA has determined that this action               ■ 2. Section 52.1488 is amended by
                                             distribution of power and                               is subject to the provisions of section               removing and reserving paragraph (d).
                                             responsibilities among the various                      307(d). Section 307(d) establishes                    [FR Doc. 2017–22701 Filed 10–19–17; 8:45 am]
                                             levels of government.                                   procedural requirements specific to                   BILLING CODE 6560–50–P
                                             G. Executive Order 13175: Consultation                  certain rulemaking actions under the
                                             and Coordination With Indian Tribal                     CAA. Pursuant to CAA section
                                             Governments                                             307(d)(1)(B), the rescission of the MGS
                                                                                                                                                           DEPARTMENT OF HEALTH AND
                                               This action does not have tribal                      FIP is subject to the requirements of
                                                                                                                                                           HUMAN SERVICES
                                             implications, as specified in Executive                 CAA section 307(d), as it constitutes a
                                             Order 13175. It will not have substantial               revision to a FIP under CAA section                   Centers for Medicare & Medicaid
                                             direct effects on any Indian tribes, on                 110(c). Furthermore, CAA section                      Services
                                             the relationship between the federal                    307(d)(1)(V) provides that the
                                             government and Indian tribes, or on the                 provisions of section 307(d) apply to                 42 CFR Part 493
                                             distribution of power and                               ‘‘such other actions as the Administrator
                                             responsibilities between the federal                    may determine.’’ The EPA determines                   [CMS–3271–F]
                                             government and Indian tribes. Thus,                     that the provisions of 307(d) apply to
                                             Executive Order 13175 does not apply                    the EPA’s action on the MGS FIP                       RIN 0938–AS04
                                             to this action.                                         rescission.
                                                                                                                                                           Clinical Laboratory Improvement
                                             H. Executive Order 13045: Protection of                 M. Congressional Review Act (CRA)                     Amendments of 1988 (CLIA); Fecal
                                             Children From Environmental Health                         This rule is exempt from the CRA                   Occult Blood (FOB) Testing
                                             Risks and Safety Risks                                  because it is a rule of particular                    AGENCY:  Centers for Medicare &
                                               The EPA interprets Executive Order                    applicability. The EPA is not required to             Medicaid Services (CMS), HHS; Centers
                                             13045 as applying only to those                         submit a rule report regarding this                   for Disease Control and Prevention
                                             regulatory actions that concern health or               action under section 801 because this is              (CDC), HHS.
                                             safety risks that the EPA has reason to                 a rule of particular applicability that
                                                                                                                                                           ACTION: Final rule.
                                             believe may disproportionately affect                   only applies to a single,
                                             children, per the definition of ‘‘covered               decommissioned facility.                              SUMMARY:    This final rule amends the
                                             regulatory action’’ in section 2–202 of                 N. Petitions for Judicial Review                      Clinical Laboratory Improvement
                                             the Executive Order. This action is not                                                                       Amendments of 1988 (CLIA) regulations
                                             subject to Executive Order 13045                           Under CAA section 307(b)(1),                       to clarify that the waived test
                                             because it merely rescinds a FIP                        petitions for judicial review of this                 categorization applies only to non-
                                             covering a generating station that has                  action must be filed in the United States             automated fecal occult blood tests.
                                             been decommissioned and demolished.                     Court of Appeals for the appropriate                  DATES: These regulations are effective
                                                                                                     circuit by December 19, 2017. Filing a
nlaroche on DSK9F9SC42PROD with RULES




                                             I. Executive Order 13211: Actions                                                                             December 19, 2017.
                                                                                                     petition for reconsideration by the
                                             Concerning Regulations That                                                                                   FOR FURTHER INFORMATION CONTACT:
                                                                                                     Administrator of this final rule does not
                                             Significantly Affect Energy Supply,                     affect the finality of this rule for the              Nancy Anderson, CDC, (404) 498–2280,
                                             Distribution, or Use                                    purposes of judicial review nor does it               or Daralyn Hassan, CMS, (410) 786–
                                                This action is not subject to Executive              extend the time within which a petition               9360.
                                             Order 13211 because it is not a                         for judicial review may be filed, and                 SUPPLEMENTARY INFORMATION:



                                        VerDate Sep<11>2014   14:59 Oct 19, 2017   Jkt 244001   PO 00000   Frm 00016   Fmt 4700   Sfmt 4700   E:\FR\FM\20OCR1.SGM   20OCR1


                                                               Federal Register / Vol. 82, No. 202 / Friday, October 20, 2017 / Rules and Regulations                                        48771

                                             I. Background                                           therefore necessary to propose                        commenter stated that they collect
                                                The Clinical Laboratory Improvement                  amendments to the regulations to                      approximately 10,000 units of blood per
                                             Amendments of 1988 (CLIA) (section                      exclude these automated tests from the                year and currently use the hemoglobin
                                             353 of the Public Health Service Act,                   list of waived tests in the CLIA                      by copper sulfate method for cost
                                             codified at 42 U.S.C. 263a) requires any                regulations.                                          reasons. Another commenter stated that
                                                                                                        Furthermore, since the development                 they use the hemoglobin by copper
                                             facility performing examinations of
                                                                                                     and proliferation of the waived test for              sulfate method as a qualitative method
                                             human specimens (for example, tissue,
                                                                                                     hemoglobin by single analyte                          to detect hemoglobin levels of 12.5g/dl
                                             blood, and urine) for diagnosis,
                                                                                                     instruments with self-contained or                    or greater.
                                             prevention, or treatment purposes to be
                                                                                                     component features, as described at                      Several commenters indicated that
                                             certified by the Secretary of the
                                                                                                     § 493.15(c)(9), it was our understanding              they use the hemoglobin by copper
                                             Department of Health and Human
                                                                                                     that the non-automated hemoglobin by                  sulfate method to screen donors for
                                             Services (HHS). The objective of the
                                                                                                     copper sulfate method at § 493.15(c)(6)               acceptable pre-donation hemoglobin.
                                             CLIA program is to ensure accurate and
                                                                                                     was no longer in use. Therefore, we                   Specifically, they perform
                                             reliable laboratory testing. The Centers
                                                                                                     proposed to remove the hemoglobin by                  approximately 20,000 to 30,000 tests per
                                             for Medicare & Medicaid Services (CMS)
                                                                                                     copper sulfate method from the list of                year.
                                             is responsible for the administration of
                                                                                                     waived tests at § 493.15(c)(6) if                        Response: In consideration of these
                                             CLIA. The Centers for Disease Control
                                                                                                     commenters confirmed that the method                  public comments, which indicate that
                                             and Prevention (CDC) provides
                                                                                                     is no longer used.                                    the hemoglobin by copper sulfate
                                             scientific and technical support/
                                             consultation to HHS and CMS. The                        II. Provisions of the Proposed                        method is still in use, we are not
                                             Food and Drug Administration (FDA) is                   Regulations                                           finalizing our proposal to remove the
                                             responsible for test categorization.                                                                          hemoglobin by copper sulfate method
                                                                                                        On November 7, 2014, we published                  from the list of waived tests at
                                                To receive a certificate of waiver                   a proposed rule in the Federal Register
                                             (COW) under CLIA, a laboratory must                                                                           § 493.15(c)(6).
                                                                                                     (79 FR 66348 through 66350) entitled,                    Comment: One commenter stated that
                                             only perform tests listed as waived in                  ‘‘Clinical Laboratory Improvement
                                             the CLIA regulations at 42 CFR                                                                                it is appropriate to require ‘‘automated
                                                                                                     Amendments (CLIA); Fecal Occult                       FOB tests’’ to be evaluated through the
                                             493.15(c) (for example, urine pregnancy                 Blood (FOB) Testing.’’ In that rule, we
                                             tests—visual color comparison tests) or                                                                       CLIA waiver process instead of
                                                                                                     proposed to revise § 493.15(c)(2) by                  automatically waiving these devices.
                                             tests which the FDA has determined to                   adding the words ‘‘non-automated’’
                                             be waived because they are simple with                                                                        However, the commenter believed that
                                                                                                     following ‘‘Fecal occult blood.’’ This                ‘‘waived testing’’ poses risk to patients
                                             an insignificant risk of error. Waived                  change would exclude the more
                                             tests are exempt from most CLIA                                                                               in certain settings and that any test that
                                                                                                     complex automated FOB analyzers from                  may result in harm should not be
                                             requirements, and the laboratories that                 the list of waived tests in the CLIA
                                             perform them receive no routine                                                                               waived.
                                                                                                     regulations.
                                             surveys.                                                                                                         Response: We appreciate the
                                                                                                        In addition, we proposed to remove
                                                Waived laboratories must meet only                                                                         commenter’s support for requiring
                                                                                                     the hemoglobin by copper sulfate
                                             the following requirements under CLIA:                                                                        ‘‘automated FOB tests’’ to be evaluated
                                                                                                     method from the list of waived tests at
                                                • Enroll in the CLIA program;                        § 493.15(c)(6) if we received public
                                                                                                                                                           through the CLIA waiver process
                                                • Pay applicable certificate fees                    comments confirming that this method
                                                                                                                                                           instead of automatically waiving these
                                             biennially; and                                                                                               devices. According to section 263a(d)(3)
                                                                                                     is no longer used.
                                                • Follow manufacturers’ test                            Finally, we proposed to renumber the               of the CLIA statute, waived tests are
                                             instructions.                                           remaining paragraphs if § 493.15(c)(6)                simple laboratory examinations and
                                                Since the implementation of the CLIA                 was removed.                                          procedures that have been approved by
                                             program in 1992, the types of tests                                                                           the FDA for home use or that, as
                                             waived under CLIA have increased from                   III. Analysis of and Responses to Public              determined by the Secretary, are simple
                                             8 to currently 97; consequently, the                    Comments                                              laboratory examinations and procedures
                                             percentage of laboratories issued a COW                    In response to the November 7, 2014                that have an insignificant risk of an
                                             has grown significantly from 20 percent                 proposed rule, we received 7 public                   erroneous result, including those that
                                             to almost 72 percent of the approximate                 comments. Interested parties that                     employ methodologies that are so
                                             250,000 laboratories enrolled.                          submitted comments included blood                     simple and accurate that the likelihood
                                                Dipstick or tablet reagent urinalysis                donor centers, laboratories and                       of inaccurate result by the user is
                                             (non-automated) and fecal occult blood                  accreditation organizations. A summary                negligible, and those that the Secretary
                                             (FOB) are two of the original 8 waived                  of the comments and our responses are                 has determined pose no unreasonable
                                             tests published in the Federal Register                 as follows:                                           risk of harm to the patient if performed
                                             in 1992, as specified at § 493.15(c)(1)                    Comment: One commenter supported                   incorrectly. Therefore, we believe that
                                             and (2), respectively. The regulation                   our proposal to add the words ‘‘non-                  waived tests that are determined to have
                                             specifies that waived test status is                    automated’’ following ‘‘Fecal occult                  met the statutory criteria do not pose a
                                             applicable to ‘‘non-automated’’ dipstick                blood.’’                                              significant risk of harm to patients.
                                             or tablet reagent urinalysis, but it does                  Response: We appreciate the                        IV. Provisions of the Final Regulations
                                             not specify ‘‘non-automated’’ for FOB                   commenters’ support. This change
                                             tests. At the time the regulation was                   would exclude the more complex                          We are adopting as final the provision
                                             adopted, the FOB test was only                                                                                set forth in the November 7, 2014
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                                                                                                     automated FOB analyzers from the list
                                             available as a manual or non-automated                  of waived tests in the CLIA regulations.              proposed rule (79 FR 66348 through
                                             test. However, there are now automated                     Comment: In regard to our proposal to              66350) with the following
                                             FOB analyzers that use complex and                      remove the hemoglobin by copper                       modifications:
                                             sophisticated technology, which do not                  sulfate method from the list of waived                  • In consideration of public
                                             meet the CLIA criteria for waiver and,                  tests if comments confirmed that this                 comments, we are not finalizing our
                                             therefore, should not be waived. It was                 method is no longer used, one                         proposal to remove the hemoglobin by


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                                             48772             Federal Register / Vol. 82, No. 202 / Friday, October 20, 2017 / Rules and Regulations

                                             copper sulfate method from the list of                     As of July 11, 2017, the FDA CLIA test             studies/fast-facts.shtml). However, as
                                             waived tests at § 493.15(c)(6).                         categorization database includes 134                  previously described, due to the low
                                               • Since we are not removing                           FOB test systems. Five of these test                  number of automated analyzers
                                             § 493.15(c)(6), we are not finalizing our               systems are automated and are                         distributed in the United States, we
                                             proposal to renumber the remaining                      categorized by the FDA as moderate                    estimate that no more than 26
                                             paragraphs in this section.                             (non-waived) complexity; all others are               laboratories would potentially be
                                             V. Collection of Information                            waived non-automated methods (http://                 impacted by this regulatory change. As
                                             Requirements                                            www.accessdata.fda.gov/scripts/cdrh/                  its measure of significant economic
                                                                                                     cfdocs/cfCLIA/search.cfm). Only two of                impact on a substantial number of small
                                               This document does not impose                         the five automated test systems are sold              entities, HHS uses a change in revenue
                                             information collection requirements,                    in the United States. Because the                     of more than 3 to 5 percent. We do not
                                             that is, reporting, recordkeeping or                    current regulation governing FOB tests                believe that this threshold would be
                                             third-party disclosure requirements.                    does not specify automated or non-                    reached by the requirements in this final
                                             Consequently, there is no need for                      automated FOB tests, it could be                      rule because very few small entities
                                             review by the Office of Management and                  misconstrued that automated FOB test                  would be subject to the provisions in
                                             Budget under the authority of the                       systems are available for use by                      this rule.
                                             Paperwork Reduction Act of 1995 (44                     laboratories with a COW. As amended,                     In addition, section 1102(b) of the
                                             U.S.C. 3501 et seq.).                                   it will be clear that automated FOB test              Social Security Act (the Act) requires us
                                             VI. Regulatory Impact Statement                         systems are not permitted for use by a                to prepare a regulatory impact analysis
                                                                                                     laboratory with a COW under                           if a rule may have a significant impact
                                                We have examined the impact of this                                                                        on the operations of a substantial
                                             rule as required by Executive Order                     § 493.15(c)(2). This means that testing
                                                                                                     sites using one or both of the two                    number of small rural hospitals. This
                                             12866 on Regulatory Planning and                                                                              analysis must conform to the provisions
                                             Review (September 30, 1993), Executive                  automated test systems noted above
                                                                                                     (which are categorized as moderate                    of section 604 of the RFA. For purposes
                                             Order 13563 on Improving Regulation                                                                           of section 1102(b) of the Act, we define
                                             and Regulatory Review (January 18,                      complexity tests) would be impacted by
                                                                                                     this rule if they are currently operating             a small rural hospital as a hospital that
                                             2011), the Regulatory Flexibility Act                                                                         is located outside of a Metropolitan
                                             (RFA) (September 19, 1980, Pub. L. 96–                  under a COW. According to the
                                                                                                     information on automated analyzers for                Statistical Area for Medicare payment
                                             354), section 1102(b) of the Social                                                                           regulations and has fewer than 100
                                             Security Act, section 202 of the                        FOB testing distributed in the United
                                                                                                     States provided by manufacturers, we                  beds. We do not expect this final rule
                                             Unfunded Mandates Reform Act of 1995                                                                          to have a significant impact on a
                                             (March 22, 1995; Pub. L. 104–4),                        estimate that no more than 26
                                                                                                     laboratories would be impacted by this                substantial number of small rural
                                             Executive Order 13132 on Federalism                                                                           hospitals. The changes in this final rule
                                             (August 4, 1999), the Congressional                     regulatory change. We developed a
                                                                                                     range of the estimated economic impact                would apply only to the laboratories
                                             Review Act (5 U.S.C. 804(2)), and                                                                             previously described, which do not
                                             Executive Order 13771 on Reducing                       for changes that may result from this
                                                                                                     final rule. Our highest estimate totals               include any small rural hospitals at this
                                             Regulation and Controlling Regulatory                                                                         time. Thus, an analysis under section
                                             Costs (January 30, 2017).                               approximately $151,000 for the first
                                                                                                     year, due to the initial costs required to            1102(b) of the Act is not required for
                                                Executive Orders 12866 and 13563                                                                           this rulemaking.
                                             direct agencies to assess all costs and                 change certificate types for all
                                                                                                                                                              Section 202 of the Unfunded
                                             benefits of available regulatory                        potentially impacted laboratories. This
                                                                                                                                                           Mandates Reform Act of 1995 also
                                             alternatives and, if regulation is                      would decrease in years two through                   requires that agencies assess anticipated
                                             necessary, to select regulatory                         five, projected to be as low as                       costs and benefits before issuing any
                                             approaches that maximize net benefits                   approximately $3,000 per year in years                rule whose mandates require spending
                                             (including potential economic,                          two and four, when no certificate fees                in any 1 year of $100 million in 1995
                                             environmental, public health and safety                 would be paid. Therefore, this rule does              dollars, updated annually for inflation.
                                             effects, distributive impacts, and                      not meet the economic threshold to be                 In 2017, that threshold is approximately
                                             equity). A regulatory impact analysis                   considered a major rule.                              $148 million. This rule will have no
                                             must be prepared for major rules with                      The RFA requires agencies to analyze               consequential effect on state, local, or
                                             economically significant effects ($100                  options for regulatory relief of small                tribal governments or on the private
                                             million or more in any 1 year). This rule               entities. For purposes of the RFA, small              sector.
                                             does not reach the economic threshold                   entities include small businesses,                       Executive Order 13132 establishes
                                             and thus is not considered a major rule.                nonprofit organizations, and small                    certain requirements that an agency
                                                This final rule amends the CLIA                      governmental jurisdictions. Most                      must meet when it promulgates a
                                             regulations at § 493.15(c)(2) to provide                hospitals and most other providers and                proposed rule (and subsequent final
                                             that only non-automated FOB tests are                   suppliers are small entities, either by               rule) that imposes substantial direct
                                             waived by the regulation. Automated                     nonprofit status or by having revenues                requirement costs on state and local
                                             test systems that detect FOB would,                     of less than $7.5 million to $38.5                    governments, preempts state law, or
                                             therefore, be subject to test                           million in any 1 year. Individuals and                otherwise has Federalism implications.
                                             categorization by the FDA as moderate                   states are not included in the definition             Since this regulation does not impose
                                             or high complexity as described in                      of a small entity. We are not preparing               any costs on state or local governments,
                                             § 493.17. These test systems would only                 an analysis for the RFA because we                    the requirements of Executive Order
                                             be considered for waiver approval if the                believe that approximately 79 percent of
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                                                                                                                                                           13132 are not applicable.
                                             manufacturer submits a waiver                           United States medical laboratories                       Executive Order 13771, entitled
                                             application to the FDA demonstrating                    qualify as small entities based on their              ‘‘Reducing Regulation and Controlling
                                             the particular test system meets the                    nonprofit status as reported in the                   Regulatory Costs,’’ was issued on
                                             statutory waiver criteria of being simple               American Hospital Association Fast                    January 30, 2017 (82 FR 9339, February
                                             and having an insignificant risk of an                  Fact Sheet, updated July 11, 2017                     3, 2017). Section 2(a) of Executive Order
                                             erroneous result.                                       (http://www.aha.org/research/rc/stat-                 13771 requires an agency, unless


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                                                               Federal Register / Vol. 82, No. 202 / Friday, October 20, 2017 / Rules and Regulations                                         48773

                                             prohibited by law, to identify at least                   Dated: August 24, 2017.                             collection requirement contained in the
                                             two existing regulations to be repealed                 Seema Verma,                                          Commission’s Report and Order, FCC
                                             when the agency publicly proposes for                   Administrator, Centers for Medicare &                 17–25, published at 82 FR 22742, May
                                             notice and comment, or otherwise                        Medicaid Services.                                    18, 2017. The OMB Control Number is
                                             promulgates, a new regulation. In                         Dated: October 5, 2017.                             3060–1243. The Commission publishes
                                             furtherance of this requirement, section                Anne Schuchat,
                                                                                                                                                           this document as an announcement of
                                             2(c) of Executive Order 13771 requires                                                                        the effective dates of the rules. Note that
                                                                                                     RADM, U.S. Public Health Service, Principal
                                             that the new incremental costs                          Deputy Director, Centers for Disease Control
                                                                                                                                                           the rules effective on February 12, 2018,
                                             associated with new regulations shall, to               and Prevention.                                       as listed above, are effective on that date
                                             the extent permitted by law, be offset by                                                                     pursuant to the Report and Order,
                                                                                                       Dated: October 12, 2017.                            paragraph 142, the date 270 days after
                                             the elimination of existing costs                       Eric D. Hargan,                                       publication of the text or a summary
                                             associated with at least two prior                      Acting Secretary, Department of Health and            thereof in the Federal Register. If you
                                             regulations. OMB’s interim guidance,                    Human Services.                                       have any comments on the burden
                                             issued on April 5, 2017, https://                       [FR Doc. 2017–22813 Filed 10–19–17; 8:45 am]          estimates listed below, or how the
                                             www.whitehouse.gov/the-press-office/                    BILLING CODE 4120–01–P                                Commission can improve the collection
                                             2017/04/05/memorandum-                                                                                        and reduce any burdens caused thereby,
                                             implementing-executive-order-13771-                                                                           please contact Cathy Williams, Federal
                                             titled-reducing-regulation, explains that               FEDERAL COMMUNICATIONS                                Communications Commission, Room 1–
                                             for Fiscal Year 2017 the above                          COMMISSION                                            C823, 445 12th Street SW., Washington,
                                             requirements only apply to each new                                                                           DC 20554. Please include the OMB
                                             ‘‘significant regulatory action that                    47 CFR Parts 1 and 20                                 Control Number 3060–1243 in your
                                             imposes costs.’’ It has been determined                 [GN Docket No. 13–111; FCC 17–25]                     correspondence. The Commission will
                                             that this final rule is not a ‘‘significant                                                                   also accept your comments via email at
                                             regulatory action thus does not trigger                 Promoting Technological Solutions to                  PRA@fcc.gov.
                                             the above requirements of Executive                     Combat Contraband Wireless Devices                      To request materials in accessible
                                             Order 13771.                                            in Correctional Facilities                            formats for people with disabilities
                                                                                                                                                           (Braille, large print, electronic files,
                                             List of Subjects in 42 CFR Part 493                     AGENCY:   Federal Communications                      audio format), send an email to fcc504@
                                                                                                     Commission.                                           fcc.gov or call the Consumer and
                                               Administrative practice and
                                                                                                     ACTION: Final rule; announcement of                   Governmental Affairs Bureau at (202)
                                             procedure, Grant programs—health,                       effective date.                                       418–0530 (voice), (202) 418–0432
                                             Health facilities, Laboratories, Medicaid,
                                                                                                                                                           (TTY).
                                             Medicare, Penalties, Reporting and                      SUMMARY:   In this document, the Federal
                                             recordkeeping requirements.                             Communications Commission                             Synopsis
                                                                                                     (Commission) announces that the Office                  As required by the Paperwork
                                               For the reasons set forth in the
                                                                                                     of Management and Budget (OMB) has                    Reduction Act of 1995 (44 U.S.C. 3507),
                                             preamble, the Centers for Medicare &                    approved, for a period of three years, the
                                             Medicaid Services amends 42 CFR part                                                                          the Commission is notifying the public
                                                                                                     information collection associated with                that it received final OMB approval on
                                             493 as set forth below:                                 the Commission’s Report and Order,                    October 2, 2017, for the information
                                                                                                     FCC 17–25. This document is consistent                collection requirement contained in 47
                                             PART 493—LABORATORY
                                                                                                     with the Report and Order, which stated               CFR 1.9020(n), 1.9030(m), 1.9035(o),
                                             REQUIREMENTS                                            that the Commission would publish a                   20.18, and 20.23(a), as amended in the
                                                                                                     document in the Federal Register                      Commission’s Report and Order, FCC
                                             ■ 1. The authority citation for part 493                announcing OMB approval of the                        17–25.
                                             continues to read as follows:                           information collection requirement and                  Under 5 CFR part 1320, an agency
                                               Authority: Sec. 353 of the Public Health              the relevant effective date of the rules.             may not conduct or sponsor a collection
                                             Service Act, secs. 1102, 1861(e), the sentence          DATES: The rule amendments to 47 CFR                  of information unless it displays a
                                             following sections 1861(s)(11) through                  1.9020(n), 1.9030(m), 1.9035(o), and                  current, valid OMB Control Number. No
                                             1861(s)(16) of the Social Security Act (42              20.23(a), published at 82 FR 22742, May               person shall be subject to any penalty
                                             U.S.C. 263a, 1302, 1395x(e), the sentence               18, 2017, which required OMB                          for failing to comply with a collection
                                             following 1395x(s)(11) through 1395x(s)(16)),           approval, are effective on October 20,                of information subject to the Paperwork
                                             and the Pub. L. 112–202 amendments to 42                2017. The rule amendments to (1) 47                   Reduction Act that does not display a
                                             U.S.C. 263a.                                            CFR 1.9020(d)(8), 1.9030(d)(8),                       current, valid OMB Control Number.
                                             ■ 2. Section 493.15 is amended by                       1.9035(d)(4), and 20.18(a), which did                 The OMB Control Number is 3060–
                                             revising paragraph (c)(2) to read as                    not require OMB approval; and (2) 47                  1243.
                                                                                                     CFR 20.18(r), which required OMB                        The foregoing notice is required by
                                             follows:
                                                                                                     approval, published at 82 FR 22742,                   the Paperwork Reduction Act of 1995,
                                             § 493.15   Laboratories performing waived               May 18, 2017, are effective on February               Public Law 104–13, October 1, 1995,
                                             tests.                                                  12, 2018.                                             and 44 U.S.C. 3507. The total annual
                                             *     *    *     *     *                                FOR FURTHER INFORMATION CONTACT: For                  reporting burdens and costs for the
                                                                                                     additional information, contact Cathy                 respondents are as follows:
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                                               (c) * * *                                                                                                     OMB Control Number: 3060–1243.
                                                                                                     Williams by email at Cathy.Williams@
                                               (2) Fecal occult blood-non-automated;                                                                         OMB Approval Date: October 2, 2017.
                                                                                                     fcc.gov and telephone at (202) 418–
                                                                                                                                                             OMB Expiration Date: October 31,
                                             *     *    *     *     *                                2918.
                                                                                                                                                           2020.
                                                                                                     SUPPLEMENTARY INFORMATION: This                         Title: Sections 1.9020(n), 1.9030(m),
                                                                                                     document announces that, on October 2,                1.9035(o), Community notification
                                                                                                     2017, OMB approved the information                    requirement for certain contraband


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Document Created: 2017-10-20 00:06:42
Document Modified: 2017-10-20 00:06:42
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionRules and Regulations
ActionFinal rule.
DatesThese regulations are effective December 19, 2017.
ContactNancy Anderson, CDC, (404) 498-2280, or Daralyn Hassan, CMS, (410) 786-9360.
FR Citation82 FR 48770 
RIN Number0938-AS04
CFR AssociatedAdministrative Practice and Procedure; Grant Programs-Health; Health Facilities; Laboratories; Medicaid; Medicare; Penalties and Reporting and Recordkeeping Requirements

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