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What the New Standard Requis
SEE BOOKLET ON STANDARD WITH THIS ISSUE
ADA CHALLENGES OSHA STANDARD 0 e rta in provisions of the new OSHA regulations aim ed at guarding health care w orkers ag ain st the th re a t of bloodborne diseases have spurred an ADA challenge th a t could lead to a court battle. The Board of Trustees in December authorized attorneys for th e ADA to file a petition challenging certain pro visions of the bloodborne patho gen stand ard issued Dec. 6 by the federal Occupation al Safety and H ealth Adm inis tration and to ask the U.S. 7th Cir cuit Court of Appeals in Chicago to stay enforce m ent of some provisions w ithin the standard. If g ra n t ed, the stay would bar OSHA from enforcing specific provisions of its bloodborne pathogen rule until th e court has ruled on the ADA’s petition. The ADA Board also directed 30
JADA, Vol. 123, February 1992
th e W ashington office to pursue federal legislative am endm ents to remove w hat the Association called “unnecessary and unjus tified” requirem ents from the new OSHA standard, set to take effect in stages beginning M arch 6. “This is one of the most
im portant advocacy roles the Association has played in recent years,” said ADA President G eraldine Morrow. “We believe it is critical for the ADA to
stan d up for the rights of our m em bers and th eir patients, who will be adversely affected by the increased cost of dental care this standard brings w ith it.” She added, “This type of overregulation does not add to the safety of the patient; it only adds to the cost of care. We stand firmly behind the univeral pre cautions and the C enters for Disease Con trol’s recom m endations on infection control, b u t the OSHA stan d ard far exceeds w hat CDC, good medical practice and simple common sense call for.” Scott Railton, a W ashington, D.C., attorney who specializes in OSHA cases, is helping the Association prepare its case, including the request for a stay, which is sim ilar to an injunction. For the court to g ran t a stay, the Association m ust show that: ■“ the ADA’s case h as an excellent chance of succeeding
on its m erits—of overturning in th e long ru n “objectionable” provisions of the OSHA standard; ■■ the new stan d ard will have a su b stan tial negative effect on th e regulated community (in th is case, dentists and the services they provide); “ th e h ealth care workers OSHA seeks to protect would not be adversely affected by the stay and review; "> th e stay would be in the public interest. Mr. Railton, who says he th in k s th e court will act w ithin about a m onth on the stay, would not speculate on how OSHA m ight respond to the ADA’s challenge—m ainly because G erard Scannell, the agency adm inistrator since 1989, resigned last m onth. “Things are a bit up in the air rig h t now,” said Mr. Railton a t press tim e, before a successor to Mr. Scannell had been named. The new OSHA standard covers dental-office barrier techniques, sterilization and disinfection, laundry, waste handling, vaccination and follow-up on injuries. It m andates training of all employees who provide or assist in providing patient care as well as those staff who clean operatories, instrum ents and gowns. OSHA regulations apply exclusively to employees. D ental offices w ith one or more employees—including parttim e, tem porary and probationary w orkers—m ust comply w ith the new standard. Also, dentists who own incorporated practices are counted as employees of the corporation and are subject to th e standard. Nationwide, an estim ated 316,000 dental-office
w orkers are affected by the new regulations. OSHA’s own tim etable on the stan d ard cites May 5 as the d ate when employers m ust have w ritten exposure control plans for th eir offices. These plans m ust identify employees w ith occupational exposure to blood and other potentially infectious m aterials—and specify how these w orkers will be protected and trained. The plan also m ust include the employer’s protocol for b a rrier techniques, sterilization and disinfection, hepatitis B
D e n ta l offices w ith one o r m ore em p lo yee s
—
in c lu d
in g p a r t- tim e , te m p o r a ry a n d p r o b a tio n a r y w o rk e rs
—
m u s t c o m p ly
w ith th e n ew s ta n d a r d . vaccination, handling office accidents, post-exposure evaluation and follow up, communication of hazard to employees and recordkeeping. The plan m ust be reviewed and updated a t least annually, and it m ust be accessible to employees. By Ju n e 4, th e new standard says, employers m ust provide inform ation and training program s for employees, during working hours and a t no cost to the employee. (Employees train ed in 1991 need not be retrain ed by Ju n e 4, except on any p a rt of the stan d ard not previously covered.) T raining sessions m ust be repeated annually and detailed records of train in g kept for three years. Also by Ju n e 4, the 25 states and territories w ith th eir own OSHA plans m ust adopt the
federal agency’s new stan d ard or a sim ilar rule th a t is a t least as strict. S tates and territories w ith th eir own OSHA plans are Alaska, Arizona, California, Connecticut, Hawaii, Indiana, Iowa, Kentucky, M aryland, M ichigan, M innesota, Nevada, New Mexico, New York, N orth Carolina, Oregon, Puerto Rico, South Carolina, Tennessee, U tah, Vermont, Virginia, Virgin Islands, W ashington and Wyoming. (State plans in Connecticut and New York apply only to state and local governm ent employees—all other workplaces in these states are covered by federal OSHA regulations.) The ADA, in seeking changes in th e stan d ard through the courts and Congress, will argue th a t certain OSHA requirem ents are not based on sound scientific evidence and th a t the agency’s estim ated cost of compliance is out of line. OSHA estim ates its new safety rules will cost dentist employers $87.4 million a year—about $872.76 annually for a d entist’s office. ADA President Morrow labeled the agency prediction “grossly underestim ated.” She cited the OSHA estim ate of $93.69 a year per dental office for gloves as an example of the agency’s “absurd” underestim ation. “They also have grossly underestim ated the cost of m asks, vaccination and post exposure follow up, a w ritten plan, training, recordkeeping and sharps disposal,” said the ADA President. “The rule will drive up the cost of dental care significantly for dentists and, ultim ately, for the Am erican public.” ■
JADA, Vol. 123, February 1992
31
WHAT THE NEW STANDARD REQUIRES 0 SHA says its new blood borne pathogen standard, which takes effect in stages beginning M arch 6, will apply to 316,237 employees in 100,174 dental offices nationwide. W hat follows are descrip tions of m ajor provisions of the new standard, aim ed a t protecting h ealth care employees from bloodborne diseases such as AIDS and h epatitis B: ■* By May 5, all employers m u st have a w ritten exposure control plan identifying w orkers w ith occupational exposure to blood and other potentially infectious m aterials and specifying how these employees will be protected and trained. The plan also m ust include th e em ployer’s protocol for b a rrier techniques, sterilization and disinfection, h epatitis B vaccination, handling office accidents, post exposure evaluation and follow up, comm unications of hazards to employees and recordkeeping. The plan m ust be accessible to employees, and it m u st be reviewed and updated a t least each year. **■ The stan d ard requires such engineering controls as puncture-resistant containers for used needles, handw ashing w hen gloves are changed and “appropriate” personal protective equipm ent. "■> The stan d ard prohibits home laundering of gowns and
32
JADA, Vol. 123, February 1992
other protective clothing. *■ Recapping of sharps also is prohibited unless the employer can dem onstrate th a t no alternative is feasible or th a t such action is required by a specific medical procedure. In such cases (for example, when an anesthetic is being adm inistered), only a onehanded technique or m echanical device can be used. ™ Employees m ust w ear gloves and gowns when th ere is a reasonable chance of skin contact w ith blood, saliva or body tissue. Disposable gloves m ay not be w ashed for reuse. ■■ Employees m ust w ear m asks and protective eyewear or face shields when splashes, spray, sp a tte r or droplets of blood, body tissue or saliva m ay be generated and eye, nose or m outh contam ination can reasonably be anticipated. If protective eyewear is necessary, it m ust include solid side shields. ™ Employers m ust ensure th a t employees w ear protective gowns, m asks, gloves and eyewear—and pay for these items. “ Sharps containers m ust be labeled, easily accessible and as close as possible to work stations w here sharps are used. *■ Employers m ust offer the hepatitis B vaccine w ithout charge to employees after they are train ed and w ithin 10 days of assignm ent to a position w ith occupational exposure. W orkers m ay decline the vaccine by
signing a form to th a t effect, but they retain the rig h t to employer-provided vaccinations if they change th eir minds. Employers also m ust pay for Public H ealth Service-recommended boosters. ■■ By Ju n e 4, employers m ust provide train in g for all employees w ith occupational exposure. T raining m u st be provided during working hours and a t no cost to the employee. Employees train ed in 1991 need not be retrained by the Ju n e 4 deadline, except on any p a rt of th e stan d ard not previously covered. Detailed records of train in g m ust be kept for three years. “ The standard identifies various substances and m aterials as infectious w aste requiring special handling: blood and body fluid; item s th a t release blood, body fluid or saliva when compressed; item s caked w ith dried blood, body fluid or saliva if they are capable of releasing these fluids w hen handled; sharps; pathological waste. These waste m aterials m ust be placed in special, labeled containers. OSHA rejected a proposal th a t dentists be exem pted from using personal protective clothing and equipm ent when dealing w ith young children. ■
ADA CHALLENGES OSHA STANDARD 0 e rta in provisions of the new OSHA regulations aim ed at guarding health care w orkers ag ain st the th re a t of bloodborne diseases have spurred an ADA challenge th a t could lead to a court battle. The Board of Trustees in December authorized attorneys for th e ADA to file a petition challenging certain pro visions of the bloodborne patho gen stand ard issued Dec. 6 by the federal Occupation al Safety and H ealth Adm inis tration and to ask the U.S. 7th Cir cuit Court of Appeals in Chicago to stay enforce m ent of some provisions w ithin the standard. If g ra n t ed, the stay would bar OSHA from enforcing specific provisions of its bloodborne pathogen rule until th e court has ruled on the ADA’s petition. The ADA Board also directed 30
JADA, Vol. 123, February 1992
th e W ashington office to pursue federal legislative am endm ents to remove w hat the Association called “unnecessary and unjus tified” requirem ents from the new OSHA standard, set to take effect in stages beginning M arch 6. “This is one of the most
im portant advocacy roles the Association has played in recent years,” said ADA President G eraldine Morrow. “We believe it is critical for the ADA to
stan d up for the rights of our m em bers and th eir patients, who will be adversely affected by the increased cost of dental care this standard brings w ith it.” She added, “This type of overregulation does not add to the safety of the patient; it only adds to the cost of care. We stand firmly behind the univeral pre cautions and the C enters for Disease Con trol’s recom m endations on infection control, b u t the OSHA stan d ard far exceeds w hat CDC, good medical practice and simple common sense call for.” Scott Railton, a W ashington, D.C., attorney who specializes in OSHA cases, is helping the Association prepare its case, including the request for a stay, which is sim ilar to an injunction. For the court to g ran t a stay, the Association m ust show that: ■“ the ADA’s case h as an excellent chance of succeeding
on its m erits—of overturning in th e long ru n “objectionable” provisions of the OSHA standard; ■■ the new stan d ard will have a su b stan tial negative effect on th e regulated community (in th is case, dentists and the services they provide); “ th e h ealth care workers OSHA seeks to protect would not be adversely affected by the stay and review; "> th e stay would be in the public interest. Mr. Railton, who says he th in k s th e court will act w ithin about a m onth on the stay, would not speculate on how OSHA m ight respond to the ADA’s challenge—m ainly because G erard Scannell, the agency adm inistrator since 1989, resigned last m onth. “Things are a bit up in the air rig h t now,” said Mr. Railton a t press tim e, before a successor to Mr. Scannell had been named. The new OSHA standard covers dental-office barrier techniques, sterilization and disinfection, laundry, waste handling, vaccination and follow-up on injuries. It m andates training of all employees who provide or assist in providing patient care as well as those staff who clean operatories, instrum ents and gowns. OSHA regulations apply exclusively to employees. D ental offices w ith one or more employees—including parttim e, tem porary and probationary w orkers—m ust comply w ith the new standard. Also, dentists who own incorporated practices are counted as employees of the corporation and are subject to th e standard. Nationwide, an estim ated 316,000 dental-office
w orkers are affected by the new regulations. OSHA’s own tim etable on the stan d ard cites May 5 as the d ate when employers m ust have w ritten exposure control plans for th eir offices. These plans m ust identify employees w ith occupational exposure to blood and other potentially infectious m aterials—and specify how these w orkers will be protected and trained. The plan also m ust include the employer’s protocol for b a rrier techniques, sterilization and disinfection, hepatitis B
D e n ta l offices w ith one o r m ore em p lo yee s
—
in c lu d
in g p a r t- tim e , te m p o r a ry a n d p r o b a tio n a r y w o rk e rs
—
m u s t c o m p ly
w ith th e n ew s ta n d a r d . vaccination, handling office accidents, post-exposure evaluation and follow up, communication of hazard to employees and recordkeeping. The plan m ust be reviewed and updated a t least annually, and it m ust be accessible to employees. By Ju n e 4, th e new standard says, employers m ust provide inform ation and training program s for employees, during working hours and a t no cost to the employee. (Employees train ed in 1991 need not be retrain ed by Ju n e 4, except on any p a rt of the stan d ard not previously covered.) T raining sessions m ust be repeated annually and detailed records of train in g kept for three years. Also by Ju n e 4, the 25 states and territories w ith th eir own OSHA plans m ust adopt the
federal agency’s new stan d ard or a sim ilar rule th a t is a t least as strict. S tates and territories w ith th eir own OSHA plans are Alaska, Arizona, California, Connecticut, Hawaii, Indiana, Iowa, Kentucky, M aryland, M ichigan, M innesota, Nevada, New Mexico, New York, N orth Carolina, Oregon, Puerto Rico, South Carolina, Tennessee, U tah, Vermont, Virginia, Virgin Islands, W ashington and Wyoming. (State plans in Connecticut and New York apply only to state and local governm ent employees—all other workplaces in these states are covered by federal OSHA regulations.) The ADA, in seeking changes in th e stan d ard through the courts and Congress, will argue th a t certain OSHA requirem ents are not based on sound scientific evidence and th a t the agency’s estim ated cost of compliance is out of line. OSHA estim ates its new safety rules will cost dentist employers $87.4 million a year—about $872.76 annually for a d entist’s office. ADA President Morrow labeled the agency prediction “grossly underestim ated.” She cited the OSHA estim ate of $93.69 a year per dental office for gloves as an example of the agency’s “absurd” underestim ation. “They also have grossly underestim ated the cost of m asks, vaccination and post exposure follow up, a w ritten plan, training, recordkeeping and sharps disposal,” said the ADA President. “The rule will drive up the cost of dental care significantly for dentists and, ultim ately, for the Am erican public.” ■
JADA, Vol. 123, February 1992
31
WHAT THE NEW STANDARD REQUIRES 0 SHA says its new blood borne pathogen standard, which takes effect in stages beginning M arch 6, will apply to 316,237 employees in 100,174 dental offices nationwide. W hat follows are descrip tions of m ajor provisions of the new standard, aim ed a t protecting h ealth care employees from bloodborne diseases such as AIDS and h epatitis B: ■* By May 5, all employers m u st have a w ritten exposure control plan identifying w orkers w ith occupational exposure to blood and other potentially infectious m aterials and specifying how these employees will be protected and trained. The plan also m ust include th e em ployer’s protocol for b a rrier techniques, sterilization and disinfection, h epatitis B vaccination, handling office accidents, post exposure evaluation and follow up, comm unications of hazards to employees and recordkeeping. The plan m ust be accessible to employees, and it m u st be reviewed and updated a t least each year. **■ The stan d ard requires such engineering controls as puncture-resistant containers for used needles, handw ashing w hen gloves are changed and “appropriate” personal protective equipm ent. "■> The stan d ard prohibits home laundering of gowns and
32
JADA, Vol. 123, February 1992
other protective clothing. *■ Recapping of sharps also is prohibited unless the employer can dem onstrate th a t no alternative is feasible or th a t such action is required by a specific medical procedure. In such cases (for example, when an anesthetic is being adm inistered), only a onehanded technique or m echanical device can be used. ™ Employees m ust w ear gloves and gowns when th ere is a reasonable chance of skin contact w ith blood, saliva or body tissue. Disposable gloves m ay not be w ashed for reuse. ■■ Employees m ust w ear m asks and protective eyewear or face shields when splashes, spray, sp a tte r or droplets of blood, body tissue or saliva m ay be generated and eye, nose or m outh contam ination can reasonably be anticipated. If protective eyewear is necessary, it m ust include solid side shields. ™ Employers m ust ensure th a t employees w ear protective gowns, m asks, gloves and eyewear—and pay for these items. “ Sharps containers m ust be labeled, easily accessible and as close as possible to work stations w here sharps are used. *■ Employers m ust offer the hepatitis B vaccine w ithout charge to employees after they are train ed and w ithin 10 days of assignm ent to a position w ith occupational exposure. W orkers m ay decline the vaccine by
signing a form to th a t effect, but they retain the rig h t to employer-provided vaccinations if they change th eir minds. Employers also m ust pay for Public H ealth Service-recommended boosters. ■■ By Ju n e 4, employers m ust provide train in g for all employees w ith occupational exposure. T raining m u st be provided during working hours and a t no cost to the employee. Employees train ed in 1991 need not be retrained by the Ju n e 4 deadline, except on any p a rt of th e stan d ard not previously covered. Detailed records of train in g m ust be kept for three years. “ The standard identifies various substances and m aterials as infectious w aste requiring special handling: blood and body fluid; item s th a t release blood, body fluid or saliva when compressed; item s caked w ith dried blood, body fluid or saliva if they are capable of releasing these fluids w hen handled; sharps; pathological waste. These waste m aterials m ust be placed in special, labeled containers. OSHA rejected a proposal th a t dentists be exem pted from using personal protective clothing and equipm ent when dealing w ith young children. ■