Whoa! Rider’ may lasso OSHA’s TB standard
Rider may ask for IOM review to justify need
Last month, it looked as if a substantial roadblock to finalization of controversial federal tuberculosis regulations was about to pop up. Its effect could range anywhere from stalling for as long as another year to derailing completion of the proposed law designed to protect health care workers from TB on the job.
Congressman Roger Wicker (R-MS) is said to have decided to propose a rider to the new national appropriations bill. If enacted, the rider would stop work on the TB standard at the U.S. Occupational Safety and Health Administration (OSHA) by withholding funding for the project until a scientific review has determined there is a need for it.
OSHA responded by re-opening the Federal Register to comment on the subject of whether there is still a risk for acquiring TB on the job and, more broadly, whether there is a need for federal regulation.
OSHA derailment a good thing?
Nationally, many TB experts hailed the prospect of the OSHA derailment. "It makes sense to look at things a little more rationally," says Lee Reichman, MD, MPH, director of the National TB Center at New Jersey Medical School in Newark, NJ. "OSHA devotes an inordinate amount of time and effort to worrying about diagnosed cases. But what bothers all of us is that it’s the undiagnosed case that poses a problem, not the case you already know. All this nonsense about masks, respirators, fit-checking, fit-testing — you only do that for people you already know have TB."
Researchers are mulling over a mountain of fresh evidence on the subject of TB among health care workers. The StaffTrack project, conducted by the Division for TB Elimination at the Centers for Disease Control and Prevention in Atlanta, has been gathering data on TB among health care workers since 1992. Preliminary analysis of the data suggests that TB rates are linked more closely to the community where workers live than to the health care facility where they work.
The rider also is expected to call on Congress to ask the Institute of Medicine (IOM) to carry out a review of the need for a new TB standard. If Congress agrees, and if the IOM consents to do the study, the effect would certainly be to derail work on the standard for another year or so.
But insiders at both the IOM and OSHA are predicting that whatever else happens, there probably won’t be an IOM study. "I’m not sure that the IOM would be prepared to make what is essentially a political decision," says Ross Eisenbrey, JD, director of policy at OSHA.
That’s a fair descrip tion of how the IOM feels about it, too, some there say. "If an important scientific question out there needs an independent review, that’s what the IOM is here for, but the IOM doesn’t take on questions related to values," says Larry Geiter, PhD, MPH, a consultant to Sequellae Research Foundation in Rockville, MD, and the part-time IOM employee hired to oversee another TB-related review already under way.
If the rider asks the IOM to consider either of the following questions in its review, Geiter says, the IOM is certain to refuse:
• Should the health care industry be allowed to self-regulate because it’s doing such a good job?
• Is the fact that the health care industry was not doing such a good job at one time in the past just an aberration, or is it an indication that government regulation is necessary?
The issue of whether there will be an IOM review isn’t the only variable that’s still undecided, adds Eisenbrey. "Everything at this point still depends on whether the rider actually does get attached, and if it does, what it says," he explains. "It still has to pass both houses, survive a conference committee, and then be part of an enacted appropriations bill which the president signs. And none of that’s happened yet." Among others who might strenuously oppose enactment of the rider, there is the ranking Democrat on the Appropriations Committee, David Obey (D-MI).
Unlike Obey, Wicker has a history of opposing big government and faithfully advocating for small business. With a constituency that suffers the highest rates in the nation of heart attack and stroke, Wicker also is a staunch advocate of medical research. Last year, for example, he voted for generous increases in funding for the CDC and the National Institutes of Health.
Partisan politics aside, some observers say that even in a Republican-controlled Congress, life expectancy of proposed riders isn’t as high as it once was. Last year, for example, a Republican-led faction vowed to swear off the use of riders, filibusters, and other such back-door measures.
"I remember seeing a letter under the signature Rep. Bob Livingston [R-LA] to the effect that this wasn’t how Republicans were going to do business anymore," says Gary Orr, CPE, PE, chief architect of a set of proposed OSHA regulations on ergonomics.
"The feeling was that if someone had a problem with something, they would address it up front, not through the backdoor, by coming at it through Appropriations," he explains. The danger of backdoor schemes is that they can backfire, by forcing a lengthy holdup of appropriations, he adds.
Of course, until recently, his own ergonomics package also was stymied by a rider enacted in 1997. That standard regained its momentum after Congress decided the rider attached to it was too harsh because it not only stopped work on the package, it also prevented employers from even collecting information about job-related musculoskeletal injuries.
A third proposed federal standard, this one regarding falls on the job, also has faltered after being sideswiped by a rider.
Just do the right thing
Because they will closely mirror existing CDC guidelines on TB control and prevention among health care workers, proposed OSHA TB regulations shouldn’t impose additional burdens on employers who already are doing the right thing, argues Mandy Edens, MPH, industrial hygienist at OSHA.
"We’re not trying to penalize people who are doing a good job," she says. "Our position is simply that for those who aren’t doing a good job, their employees deserve protection and should have the right to issue a complaint. OSHA should have the ability to fight those employers and make sure they do what the standard says they should do."
For low-incidence areas, the proposed standard would compel employers to adhere to a smaller list of requirements, including baseline skin testing, a contingency plan, and periodic employee training. "As more and more of the country becomes low-incidence, more employers will qualify for the minimal program," she adds.
That doesn’t mean there’s no need for a standard, adds Eisenbrey. "Though TB in general is declining, the type people are getting is more resistant. It’s important to look at the whole picture."
Groups that oppose enactment of a federal TB standard have long argued that the regulations were first proposed when TB was undergoing a resurgence; with national TB rates now in decline, they say, there is no longer a need for an inflexible and costly federal standard.
TB rates among the general population are higher now than among health care workers, and the CDC may soon propose that, in low-incidence parts of the country, skin testing of employees should be conducted once every two years, not once a year, says Eddie Hedrick, MT (ASCP), CIC, chair of the TB task force at the Association of Professionals for Infection Control, citing what he says is unpublished CDC data.
Comments on shelters also being taken
In other developments, OSHA reopened the Federal Register to comments on the agency’s recently completed study of nine homeless shelters across the nation. The study found that funding for most shelters is, at least to some extent, earmarked so shelter operators would have a hard time using it to enact TB screening procedures, says Edens.
The shelter study also uncovered the fact that most shelter employees lack the skills needed to determine whether a client is symptomatic for TB.
An incident at a waste-treatment facility in Washington state has OSHA investigators taking a broad look at just such facilities, Edens adds. The question is whether workers at all medical waste facilities deserve additional protection (and their own section in the new TB standard), or whether the incident was specific to the facility in which it occurred.
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