APIC makes last-ditch effort to block TB rule

In an 11th-hour gambit aimed at blocking finalization of controversial federal tuberculosis regulations, the Association for Professionals in Infection Control and Epidemiology in Washington, DC, is calling on Congress to order a scientific review of the need for the standard. If successful, the move could indefinitely delay finalization of the 1997 proposed TB standard by the Occupational Safety and Health Administration, meaning infection control professionals would

not have to bring their programs into compliance with the full range of TB skin testing, respiratory protection, and other provisions detailed in the proposed rule.1

In developments outlined recently in Baltimore at the annual APIC conference, the association reports it has gained the sympathetic ear of U.S. Rep. Roger Wicker (R-MI), a member of the House Appropriations Subcommittee for Labor, Health and Human Services. According to a deal brokered by APIC governmental affairs representatives, Wicker is poised to introduce a "rider" to appropriations legislation that will essentially withhold funding unless OSHA submits the TB rule to a scientific review by the Institute of Medicine (IOM) in Washington, DC. Calls to Wicker’s office were not returned as this issue of Hospital Infection Control went to press. However, one of the APIC principals involved says all signs appear favorable for the legislation to be introduced, at which time APIC members will be asked to call the other members of the committee and lobby for passage.

"What we hope to accomplish is that the IOM study will put a halt to the promulgation of the proposal as it is currently," says Julie Sellers, RN, CIC, one of APIC’s leaders in the TB fight and immediate past chairperson of the governmental affairs committee. "Then through the information culled from the IOM study, identify what is really necessary, if anything is, beyond the CDC guidelines and adopt something that is finally science-based and is appropriate for the epidemiology and the rate of TB today."

Reaction was swift and critical from APIC’s principal opponent in the TB debate, the Service Employees International Union in Washington, DC. The SEIU, which represents some 650,000 health care workers, will adamantly oppose the rider if it is introduced, says Bill Borwegen, health and safety director at the SEIU.

"It just borders on outrageous," he says. "It is inconceivable that this could be delayed any longer. This was a rule that was going to be fast-tracked and it has been six years [in development]. This is an important standard that is going to save workers’ lives."

OSHA proposed the TB rule — and ignited one of the more controversial debates in recent infection control history — to protect health care workers from occupational TB after the disease dramatically resurged from 1986 to 1992. With TB incidence among U.S.-born residents in its sixth consecutive year of decline, APIC has continued to oppose the need for any regulation beyond the 1994 TB guidelines by the Centers for Disease Control and Prevention.2

APIC cites TB declines in HCWs

Further bolstering its argument that the standard is no longer needed, another APIC speaker said the association is aware of unpublished data from the CDC showing that rates of TB in health care workers are in decline and the recommended frequency of skin tests in some settings may be increased to every two years rather than annually. Independent confirmation of that development could not be obtained from the CDC’s division of TB elimination, where a spokeswoman says the agency would not comment on unpublished data. The matter was reported at APIC by Eddie Hedrick, MT(ASCP), CIC, chairman of the APIC TB task force.

"APIC was also provided with an analysis of the most current TB data from CDC demonstrating that the risk is actually higher in the general population than it is now in health care workers," Hedrick, infection control manager at the Univer sity of Missouri Hospital and Clinics in Columbia, told APIC attendees. "This has been substantiated in a phone call conversation with CDC personnel this past week. Recent unpublished CDC studies are finding very low [TB skin test] conversion rates in health care workers in different parts of the country, which is now stimulating them to reconsider the frequency of skin-testing requirements for health care workers in different geographic locations."

The development is another example of why flexible CDC guidelines are preferable to OSHA standards, allowing periodic revisions without having to amend a codified standard, Hedrick added.

"You try that with OSHA after it is carved in concrete; it ain’t going to happen for a long time," Hedrick tells HIC. "All we are looking for is a science-based document that is practical and effective in our facilities that we can work with. We’re really not adversaries. They seem to think that, but who else is responsible for protecting health care workers and patients? The idea is, how do we get there in a cost-effective [way]? We don’t have the money to throw out there for stuff that is unnecessary."

With OSHA expected to finalize the standard by year’s end or in 2000, the congressional maneuver appears to be APIC’s last realistic chance of blocking the regulation.

"A Republican-controlled House is good for us because they are pro-business rather than pro-OSHA, which tends to have Democratic supporters," Sellers adds. "So anything that is going to save money and avoid constraints on business is seen as a good thing in this Congress. Usually, the way the bargaining goes, each one of the appropriations [committee] members has one or two favors that they put on the table and they get if everybody else gets theirs on the committee. This is Wicker’s big one. This is what he wants, so we feel like we can get it through."

The rider scientific-review strategy is similar to the approach that has been used to long delay a federal ergonomics standard to protect workers from repetitive motion injuries, Borwegen says. Though conceding that the strategy can be effective in a Republican-controlled Congress, he also noted that riders may red-flag legislation for presidential veto.

Still, with the threat of multidrug-resistant strains of TB and continued increases in the disease among the foreign-born, APIC is wrong to oppose a standard that could, ironically, provide its members more job security as their facilities’ primary compliance officers, Borwegen says. "Why do they want to keep carrying the baggage for the corporate health care industry, which will only result in them getting downsized and unemployed?" Borwegen asks. "Why don’t they fight for the type of regulatory mandates that provide them with the resources to protect people?"

But Hedrick argues that APIC has consistently pursued a scientific approach to TB, and is not opposed to OSHA taking action against facilities that refuse to protect workers by following the CDC guidelines. "The voluntary approach to this on the part of most institutions in the United States has lowered the risk of TB to health care workers," he says. "For those facilities or people who are not complying with the CDC guidelines, OSHA needs to find a way to deal with it. I think they can use their general duty clause. At the [TB] hearings, we gave them a brief checklist of basic questions they could ask that will tell them whether somebody is in compliance. It isn’t rocket science." (See HIC, August 1998, p. 115.)

OSHA had not returned a call requesting comment on the matter as this issue went to press. Borwegen says OSHA cannot effectively enforce measures under its general duty clause because the citations are more easily challenged and delayed. "It’s not a solution, because when employers contest items under the general duty clause, we don’t really have a process in place to adjudicate those," he says.

What about undiagnosed cases?

In his APIC presentation, Hedrick reiterated that the association has fought the standard in part because so many of the requirements do not address transmission from the undiagnosed case. "Greater than 73% of occupational-acquired TB reported in the literature and experienced by most of us in this room is the result of an exposure to an undiagnosed or unsuspected infection," he said. "The additional [OSHA] control measures that go beyond the CDC guidelines address only the known case. So it misses a large percentage of what we are dealing with."

Some eight nosocomial TB outbreaks that occurred during 1990 to 1992 greatly concerned ICPs, but it is important to remember how the situation ended, he added. "All these outbreaks were brought under control using common-sense infection control programs which emphasize early diagnosis, treatment, and isolation," he said, drawing applause in adding, "They also were brought under control without the use of HEPA or N95 respirators — which didn’t exist then — or expensive respiratory protection programs."

Indeed, APIC attendees appeared to be enthusiastic about the opposition to the standard. "I really believe that it will be delayed, and I would hope then that the scientific review would show — if OSHA is needed at all — where [regulation] is needed," says Emily Bergman, RN, CIC, an audience member at the APIC TB session and infection control coordinator in the division of infectious disease at Children’s Memorial Hospi tal in Chicago. "[Due to] the fact that we have already got the numbers dropping, it seems unnecessary to me to spend the money on something federally."

References

1. Department of Labor. Occupational Safety and Health Administration. Occupational exposure to tuberculosis; proposed rule. 62 Fed Reg 54,160-54,307 (Oct. 17, 1997).

2. Centers for Disease Control and Prevention. Guidelines for preventing the transmission of Mycobacterium tuberculosis in health care facilities, 1994. MMWR 1994; 43:(No. RR-13) 1-133.