OSHA Allows ‘Enforcement Discretion’ During COVID-19
CMS also drops routine surveys to focus on coronavirus
Responding to respirator shortages during the outbreak of novel coronavirus, the Occupational Safety and Health Administration (OSHA) has issued a memorandum allowing “enforcement discretion” by compliance officers citing the Respiratory Protection standard (29 CFR § 1910.134).
“OSHA recommends HCP employers follow existing CDC guidelines, including taking measures to conserve supplies of these respirators while safeguarding HCP,” the agency memo stated. “One such measure is that healthcare employers may provide HCP with another respirator of equal or higher protection, such as N99 or N100 filtering facepieces, reusable elastomeric respirators with appropriate filters or cartridges, or powered air-purifying respirators (PAPR).”1
OSHA instructed its field offices to exercise enforcement discretion on the annual fit-testing requirement as long as employers:
- Make a good-faith effort to comply with 29 CFR § 1910.134.
- Use only NIOSH-certified respirators.
- Use CDC and OSHA methods to optimize the supply of N95s and prioritize their use.
- Perform initial fit tests with each employee using the same model, style, and size respirator that the worker will be required to wear.
- Inform HCP the annual fit testing of N95 filtering facepiece respirators is suspended to preserve and prioritize the supply of respirators.
- Explain the importance of performing a fit check at each donning to ensure an adequate face seal, in accordance with the procedures outlined in 29 CFR § 1910.134, Appendix B-1.
- Conduct a fit test if there are any physical changes to the employee that may affect respirator fit (e.g., facial scarring, dental changes, cosmetic surgery, or obvious changes in body weight) and explain to workers that if their face shape has changed since their last fit test, they may no longer be getting a good facial seal with the respirator.
- Remind HCP to inform their supervisor or their respirator program administrator if the integrity and/or fit of their N95 is compromised.
CMS Targets COVID-19
The Centers for Medicare & Medicaid Services (CMS) is suspending routine inspections to focus on issues related to infection control and COVID-19 in hospitals, nursing homes, and other accredited sites, a CMS official announced.
“[We are] suspending nonemergency surveys across the country so our surveyors can focus on the most serious health and safety threats like infectious disease,” said Daniel Schwartz, MD, MBA, chief medical officer of the CMS Survey and Certification Group. “Our colleagues in the accrediting agencies will follow us on this policy as well.” Hospital, dialysis centers, and other facilities with a history of infection control deficiencies still are in line for surveys, he added.
In a March 4 memorandum, CMS said its action allows “inspectors to turn their focus on the most serious health and safety threats like infectious diseases and abuse. This shift in approach also will allow inspectors to focus on addressing the spread of the coronavirus disease 2019 (COVID-19).”2
- According to CMS, effective immediately, surveys are limited to the following, which are listed in priority order:
- All immediate jeopardy complaints and allegations of abuse and neglect;
- Infection control complaints, including facilities with potential COVID-19 or other respiratory illnesses;
- Statutorily required recertification surveys such as nursing homes, home health, and hospice.
- Any revisits necessary to resolve current enforcement actions;
- Initial certifications;
- Surveys of facilities with a history of infection control deficiencies at the immediate jeopardy level in the last three years;
- Surveys of facilities, hospitals, and dialysis centers with a history of infection control deficiencies at lower levels than immediate jeopardy.
If a CMS inspector identifies or suspects COVID-19, they are to work closely with CMS regional offices in coordination with the CDC. CMS has deployed an infection preventionist to the CDC to assist with guideline development.
- Occupational Safety and Health Administration. Temporary enforcement guidance — Healthcare respiratory protection annual fit-testing for N95 filtering facepieces during the COVID-19 outbreak, March 14, 2020. Available at: https://www.osha.gov/memos/2020-03-14/temporary-enforcement-guidance-healthcare-respiratory-protection-annual-fit
- Centers for Medicare & Medicaid Services. Suspension of survey activities, March 4, 2020. Available at: https://www.cms.gov/medicareprovider-enrollment-and-certificationsurveycertificationgeninfopolicy-and/suspension-survey-activities
Responding to respirator shortages during the outbreak of novel coronavirus, the Occupational Safety and Health Administration has issued a memorandum allowing “enforcement discretion” by compliance officers citing the Respiratory Protection standard (29 CFR § 1910.134).
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