October 10, 1997

Sheldon L. Goldberg, President
American Association of Homes
and Services for the Aging (AAHSA)
901 E Street N.W., Suite 500
Washington, D.C. 20004-2037

Dear Mr. Goldberg:

This correspondence is to address the concerns and issues you have raised in your September 24, 1997 letter to me regarding the Occupational Safety and Health Administration's (OSHA) Nursing Home Initiative. OSHA thanks and appreciates the American Association of Homes and Services for the Aging for its input and review on the Nursing Home Initiative in general. The Agency considers the Nursing Home Initiative to be a measured effort in a particular industry which has a high employee injury rate. We are confident that the process set forth is a sound structure from which to conduct our primary mission of inspection activity. We have provided a copy of your letter to our regional coordinators to make them aware of your concerns. In addition, the Agency is in contact with Health Care Financing Administration to address the concerns raised in your letter regarding the impact of OSHA inspection activity on the privacy rights of residents. We would strongly urge your organization to remain involved in this important program and continue to provide constructive input and guidance.

Thank you for your interest in safety and health.

Sincerely,

John B. Miles, Jr., Director
Directorate of Compliance Programs




September 24, 1997

Mr. John B. Miles
Directorate of Compliance Programs
200 Constitution Avenue, NW
Washington, DC 202 1 0

Dear Mr. Miles:

On April 30, 1997, AAHSA wrote to Frank Strasheim, Deputy Assistant Secretary for Occupational Safety and Health, to voice our concerns about the Nursing Home Initiative Inspections Policy and Procedures. AAHSA received a response dated June 3, 1997, and would like to specifically address some of the points that were raised in that correspondence. AAHSA appreciates the opportunity to discuss with OSHA the issues that are important to the long-term care industry.

As we stated in our earlier correspondence, it is important for any OSHA inspector who is conducting an inspection at a nursing facility to have experience in geriatrics and long-term care. OSHA seems convinced that the structure currently in place allows for professional inspections in the nursing home industry. AAHSA is not as convinced.

OSHA conducted a three-day training session to familiarize inspectors with the nursing home industry. This was not enough time for inspectors to recognize and comprehend specific nuances inherent in the Health Care Financing Administration (HCFA) long-term care regulations, which are the nursing facility regulations. For example, the first nursing home inspected in Missouri under OSHA's nursing home initiative had to be inspected twice because of inspectors lack of knowledge about nursing facilities. The inspectors thought they had completed an inspection at a nursing home, but a week later they called the administrator and asked if food was served at the facility. The inspectors had to revisit to inspect the kitchen. This situation shows a basic lack of understanding of what services nursing homes provide. All nursing homes serve food to residents. The nursing facility is a resident's home and that is why HCFA regulations focus so heavily on resident rights and quality of life as well as clinical issues.

Another example which illustrates OSHA inspectors' lack of understanding of the nursing home environment is explained by reexamining an inspector's presentation at an ergonomics conference held last summer in Lake Placid, NY. The inspector used OSHA's template slides which specifically discuss some of the HCFA regulations. When the inspector got to those slides, he stated that the HCFA regulations were "really unimportant to OSHA inspectors." He further stated that HCFA regulations were the responsibility of the nursing home provider and OSHA inspectors were not required to understand or comply with those regulations. These types of comments, once again, demonstrate the inspector's failure to understand the significance between HCFA and OSHA regulations. During OSHA's three-day training session to familiarize inspectors with nursing home operations, the facilitators and speakers stressed the importance of inspectors understanding HCFA regulations. OSHA inspectors must understand these regulations to effectively do their job. For example, OSHA inspectors must understand the HCFA regulations dealing with videotaping residents so there are no unfair consequences involving resident privacy issues to the nursing home provider during follow-up HCFA inspections.

AAHSA believes that OSHA's explanation of the Trinity Industries, Inc. v. Occupational Safety and Health Review Commission (16 F.3d 1455 [6th Cir. 1994]) is oversimplified. OSHA states that "a complaint inspection will generally examine only the items listed on a valid complaint and various recordkeeping issues such as the OSHA-200 and OSHA-101 information." Clearly, the general rule provides that when an employee complaint triggers an inspection of an employer's facility under section 8(f), the proper procedure is for the Secretary of Labor to secure a search warrant limited in scope to the employee complaint. Only when this limited search, together with a review of the employer's injury and illness records, leads the secretary to suspect that further investigation of the worksite is necessary, should the secretary then apply for a second warrant before a full-scope inspection is authorized. Expanding the employee complaint inspection to a full-scope inspection is not as simple of a task as OSHA may want us to believe.

AAHSA believes that OSHA inspectors should be responsible for obtaining a resident's consent prior to any videotaping. OSHA states that it "does not agree that an agreement or memorandum of understanding with HCFA [is necessary] to hold the facility blameless for a potential mistake on the part of the OSHA inspector(s) . . .". OSHA states that an inspection can be conducted with or without an agreement with HCFA, but that is not the point. The point is that nursing home providers may lose the privilege of participating in Medicare and Medicaid if they are not in "substantial compliance" with HCFA regulations. Under the HCFA regulations, each resident has the right to personal privacy and confidentiality (42 C.F.R. Section 483.10(e)) and the right to dignified existence, self-determination and communication with and access to persons and services inside and outside the facility (42 C.F.R. 483.10). If videotaping is conducted in an inappropriate manner in a nursing home facility, HCFA can and will cite the facility for that deficiency. Since OSHA is unwilling to take responsibility for its own, possibly inappropriate actions, AAHSA must inform OSHA that there may be times when an administrator finds it necessary to prohibit an inspector from videotaping certain residents.

AAHSA believes OSHA's statement that a nursing facility could "muster enough people for a safe team lift or refuse to admit or keep residents who object to mechanical hoists," once again shows a lack of understanding of HCFA regulations. One of the key challenges facing nursing facilities in assuring quality of life and care outcomes to residents is the ongoing shortage of nurse aids. Nurse aides are the individuals who provide the bulk, possibly as much as 70 percent, of the direct care to residents. While always a limited labor pool, this problem has been exacerbated in recent years by hospitals' downsizing of professional staff and increased use of aides - - creating a further drain on the already limited supply of personnel. OSHA's statement about being able to "muster enough people for a safe team lift" shows a general lack of understanding of the staffing problems that nursing homes have to face every day. Furthermore, under HCFA regulations, residents have the right to refuse treatment (42 C.F.R. 483.10(b)(4)), and nursing facilities do not have the right to transfer or discharge residents simply because they refuse certain treatment. It can be a very difficult and long process, as well as traumatic to the residents, to remove them from a facility that they consider to be their home. Costly litigation often results when a nursing home attempts to transfer or discharge a resident who does not want to be moved from the facility.

AAHSA believes that many ergonomic injuries in nursing homes occur not due to lack of training, or because employees do not know proper technique, or because equipment is not available or used, but because of unpredictability in resident behavior that is associated with the care of cognitively impaired or medically complex individuals. OSHA's statement that "such an assertion is shortsighted and indefensible," is incorrect. How do nursing home providers prepare for those times when: 1) a resident acts in an unavoidable, unpredictable and uncontrollable manner creating a hazardous situation?; or 2) an employee for some unpredictable reason consciously or unconsciously chooses not to use proper technique? Neither employee involvement, management commitment or safer procedures can ever assure against unpredictable behaviors from a resident who, in addition to other multiple, chronic and painful conditions, is also frequently experiencing severe dementia. In the past, nursing homes used restraints to control unpredictable residents behaviors, but research has demonstrated that this practice, long believed to be safety enhancing, is in fact counter-productive in terms of both physical function and emotional well-being. Even side rails can be considered restraints and therefore unacceptable for some residents.

AAHSA will complete its comparison of various OSHA and HCFA regulations at the end of this year, however, it is clear already that some of these regulations are conflicting. AAHSA recently sent Keith Motley, OSHA's Nursing Home Coordinator, HCFA guidelines suggesting that nursing home providers move beds closer to the floor. OSHA would most certainly object to this suggestion because it would violate its ergonomic guidelines.

AAHSA thanks and appreciates OSHA for the opportunity to voice our concerns. AAHSA believes that we may not ever entirely agree on certain issues, but we believe this correspondence allows us a forum for understanding and being understood.

Sincerely,

Sheldon L. Goldberg
President