OSHA as a Regulator of Assisted Living.

The regulation of assisted living communities is primarily the function of the individual states. However, one of the areas where assisted living is federally monitored--and, like other sectors of healthcare, increasingly so--is workplace safety. From the standards it imposes on virtually all employers, to addressing the particulars of healthcare environments, the Occupational Safety and Health Administration (OSHA) is making its mark on assisted living.

The Occupational Safety and Health Act (OSH) was enacted in 1970 to encourage the reduction of workplace hazards and to implement new or improved safety and health programs for employees. In carrying out this role, OSHA develops and enforces mandatory job safety and health standards. While states are free to adopt their own employee safety programs, and 23 states have done so, state programs are identical to federal OSHA regulations in most major respects.

At first, many assisted living communities had only limited interaction with OSHA. Inspections in many parts of the country tended to focus on the more "traditional" OSHA issues, such as hazards created by machines with uncovered moving parts. That has been changing over the last few years. As with the rest of the healthcare industry, OSHA has had a history of "regulatory creep" followed by an avalanche of standards.

OSHA's recent focus on long-term care, including assisted living, is based largely on federal Department of Labor statistics showing an unusually high incidence of back, musculoskeletal and other work-related injuries, many of which reportedly come from repetitive motions by employees or heavy lifting. But if lifting or transferring assisted living residents is the first thing that comes to mind where OSHA is concerned, the agency's mission is actually far broader than that. In the past 20 years, OSHA has published and enforced a rapid succession of new regulations, many of which apply to assisted living settings. These cover topics ranging from the use of personal protective equipment, to record keeping and reporting of employee illnesses and injuries, to the communication to employees of warnings about hazardous substances used in the workplace.

Earlier this year, the Bush administration overturned the newly created Ergonomics Standard, a standard that would have had a major impact on the industry. Many other standards still remain applicable to long-term care, however, and demand significant commitments of time and effort on the part of employers who must assess employee risk levels for various hazards. Some OSHA standards that most frequently apply in this setting include those that address bloodhorne pathogens, needle sticks, hazardous chemicals and record keeping. Once risks are identified, the employer must develop a plan to eliminate or minimize them, institute ongoing employee training, encourage employee reporting of injuries and illnesses, and conduct medical follow-up of reported incidents. Compliance with the standards might require modification of the work environment, including structural and job task modifications.

OSHA's enforcement ofthe standards can be quite costlyto an employer in terms of time and effort, as well as dollars. In cases where OSHA senses a lack of employer commitment to hazard reduction, the agency traditionally moves quickly to mandate such programs. Stiff monetary penalties or injunctions are only some of the tough and costly remedies. OSHA's greatest power is probably its ability to issue citations and require remedial action under Section 504 of the OSH Act, known as the "General Duty Clause." This broad provision empowers OSHA to address employee risks and injuries wherever they occur, even where no specific standard applies, and comes cloaked with fewer procedural protections for employers than OSHA's issue-specific standards.

Looking at OSHA's history in long-term care since the mid-i 980s, one cannot help but see a correlation between the level of OSHA activity and that of other agencies with differing missions. For instance, OSHA's enforcement of its standards with regard to nursing homes increased dramatically at the same time that the Centers for Medicare and Medicaid Services (known then as the Health Care Financing Administration, or HCFA) and state survey agencies were increasing the intensity of their facility inspections.

The more one reviews the agency's activities, the more it becomes clear that OSHA has become a key player in the regulation of all types of long-term care employers. In the skilled nursing facility arena, the publication in rapid succession of multiple mandatory standards addressing hazard communication made OSHA the second most-active regulatory agency in the mid-to late 1990s, surpassed only by HCFA and the state regulatory agencies that carry out its survey and enforcement activities.

OSHA inspection activity in assisted living has not been at the level experienced by other long-term care providers because, in part, assisted living providers generally serve a more mobile, less frail population. For instance, assisted living residents require fewer medical or invasive procedures and, therefore, less exposure to related hazards. There also is less physical assistance provided by the caregivers and, consequently, fewer back and other musculoskeletal injuries. It appears inevitable, though, that OSHA will become a bigger player in the regulation of assisted living for a number of reasons, e.g., the perception (whether accurate or not) that the industry is caring for higher-acuity residents; an increasing demand by consumer groups and employee unions/associations for stricter safety standards; and the continuing failure of the public, lawmakers and regulators to understand the critical distinctions between nursing homes and assisted living communities. As OSHA inspections become a more common occurrence in the operation of assisted living communities, providers might wish to evaluate their OSHA inspection readiness and prepare accordingly.

Information on OSHA standards and the inspection process is available online at www.osha.gov. This site also contains a library of OSHA materials, including manuals, directives and statistical information.

Kenneth L. Burgess is a partner and Berta H. Schweinberger is of counsel in the San Francisco office of Hooper, Lundy & Bookman, ALFA's national General Counsel.