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State licensing boards still say what’s OK for nurses to do
A federal court has upheld the ability of occupational health nurses to perform the measures required in the Occupational Safety and Health Administration’s (OSHA) respirator standard, much to the consternation of some physicians, but the fight may not be over yet. Occupational health nursing leaders say the court ruling is a tremendous victory, but there may be more battles yet to come.
The U.S. 11th Circuit Court of Appeals recently decided to deny a petition challenging OSHA’s Respiratory Protection Standard (29 CFR 1910.134), filed by the American College of Occupational and Environ-mental Medicine (ACOEM) in Arlington Heights, IL. ACOEM had requested a review of language that allows nonphysician licensed health care providers to perform requirements of the respirator standard.1
The issue had been simmering for a while, with occupational health physicians contending that nurses should not be allowed to conduct the examinations and monitoring required in the standard. Physicians have said that such activities fall more properly within the realm of a physician. With support from the Washington, DC-based American Nurses Association, leaders with the American Association of Occupational Health Nurses (AAOHN) in Atlanta strongly opposed ACOEM’s action and insisted that nurses are fully capable of performing the activities outlined in the respirator standard. AAOHN president Deborah DiBenedetto, MBA, RN, COHN-S, ABDA, says the recent court ruling is important in ensuring that occupational health nurses can work to their full potential.
"This is a tremendous victory for registered nurses and other professionals trained to provide surveillance," she says. "The court has recognized that nurses with the expertise, competencies, and training can provide safe, effective surveillance of occupational exposures. States hold the responsibility to regulate the scope in which nurses practice, and trained surveillance is well within our scope."
In turning down ACOEM’s request, the court found that "the standard essentially defers to state law on the question of who may provide the medical evaluation services" and that everyone had received adequate warning of the standard’s wording before it was issued. ACOEM had argued that the definition of "physician or other licensed health care provider [is] inherently circular and ambiguous, and employers cannot be certain whether they are in compliance with the standard." The court ruled that ACOEM’s claims in that regard were "wholly without merit."
State issues still to be determined
More than 6 million work sites nationwide are required to comply with the standard, so the question involves divvying up a substantial amount of occupational health work. Most employees who wear respirators work in manufacturing and construction.
The respirator standard requires surveillance activities that include determining if an employee is fit to wear a respirator and ensuring proper fit of the respirator on the worker. The standard also requires someone to administer the employer’s respirator program, including training the workers and keeping track of scheduled assessments.
The debate over the respirator standard gained momentum when the final standard was released in January 1998. ACOEM almost immediately challenged the standard in court and asked OSHA to set aside the language that allowed nonphysicians to perform compliance activities. However, Kae Livsey, RN, MPH, public policy and advocacy manager with AAOHN, tells Occupational Health Management that the debate is about more than just this one standard. The outcome of the fight could have an impact on other OSHA standards, Livsey says.
"Previous standards issued by the agency required physician oversight for everything," she says. "For our membership, this respirator standard means that finally the agency is recognizing that they are qualified to do a lot of these things. It does not mean we are trying to become doctors, but it shows some recognition of what our folks are capable of doing and are, in fact, doing."
ACOEM president disappointed
The president of ACOEM tells OHM that the group is disappointed with the court ruling. Robert McCunney, MD, MPH, director of environmental medicine at the Massachusetts Institute of Technology in Boston, says ACOEM fought the wording in the respirator standard because members thought that physicians were best suited to help employers ensure compliance.
"ACOEM is primarily concerned with the provision of the highest quality care to working people, and this decision centers on what we call scope of practice issues," he says. "ACOEM will continue to advocate for the highest quality health care for the working population, and we feel that regulated examinations should be provided by the providers with the greatest amount of training. We recognize the quality care that nurses provide, but on the other hand, we recognize that physicians generally have wider training and are more experienced."
With the respirator standard, the physician’s expertise is most in demand for the medical review required prior to a person being able to wear a respirator, McCunney says.
That examination is crucial for ensuring the safety of respirator use, he says, and the examination can uncover a wide range of potential problems. In that situation, a physician’s expertise offers a substantial benefit over a nurse’s. A qualified physician should do any regulated medical evaluation, he adds.
"We value the important role and contributions of nurses, especially those with advanced training as nurse practitioners, but it’s our position that such examinations, at the very least, ought to be supervised by a physician," he says. "The college will not pursue further legal options in the wake of this ruling; however, we will continue to promote the goal of providing the highest quality health care for working populations."
While the AAOHN sees the court ruling as a great victory, Livsey cautions that it does not end the debate. The court ruling only means that the federal government finds it acceptable for nurses to perform the compliance activities, and states still can say otherwise.
Federal rules do not prohibit nurses from performing the compliance activities, but the language in the respirator standard defers to state licensing boards to determine whether the activities fall within the nurses’ scope of practice in that state.
Each state licensing board determines its scope of practice independently, so it is possible that some state boards would look at the required activities and determine that the state’s nurses should not be allowed to perform them. That position would leave the activities to the doctors in that state.
Livsey says she has received several determinations from state boards around the country saying that these activities do fall within their scopes of practice for nursing. Other states are still making that determination, with local AAOHN chapters lobbying for the boards to fall in line with the federal ruling.
Livsey knows of no state boards rejecting the nurses yet, but she says she expects the fight to continue for a while. Even if the debate over the respirator standard is settled, the same fight may erupt over any other standard newly issued by OSHA.
"The battle is not over yet," she says. "In addition to working with these states, we will continue to work with OSHA because we very much want to see OSHA adopt this language as a matter of policy. As it is, we have to fight this battle from scratch every time they adopt a new standard."
1. American College of Occupational and Environmental Medicine v. Department of Labor, CA 7, No. 98-1519 (March 5, 1998).