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Senior living industry leaders brought their concerns about a proposed federal COVID-19 healthcare rule to the table on Wednesday in testimony reiterating their opposition to broad requirements that they call “overly prescriptive” and confusing.

The Department of Labor’s Occupational Safety and Health Administration says the final rule, proposed in March, will protect assisted living and other healthcare workers from exposure to COVID-19 in the workplace, but the agency solicited comments on the rule through April 22 and scheduled a hearing about it that began yesterday.

In her testimony, National Center for Assisted Living Executive Director LaShuan Bethea reiterated comments that she submitted last week with American Health Care Association / NCAL Senior Vice President of Government Relations Clif Porter calling for consistency among regulatory agencies. Collaboration, she said, is critical for optimizing compliance and mitigating confusion, particularly for employers who must comply with guidance from multiple agencies.

“From the beginning, long-term care has been at the forefront of this pandemic,” Bethea testified. “We’ve experienced high-profile outbreaks, severe shortages of personal protective equipment and a lack of testing and supplies.”

Despite those challenges, she said, long-term care staff members showed up and put themselves at risk to care for the most vulnerable populations. At the same time, providers had to adapt to rapidly evolving guidance from multiple sources, which often was duplicative, and at times inconsistent — including guidance about PPE use, cleaning measures, requirements for aerosol-generating procedures, and employee vaccination.

Consistency is key

Following the Centers for Disease Control and Prevention’s evidence-based guidelines — which use science to make determinations about best practices — is the most appropriate course of action for senior living providers, Bethea said. 

OSHA initially announced a COVID-19 healthcare emergency temporary standard in June. It required assisted living communities and other healthcare settings to conduct hazard assessments and have written plans to mitigate the spread of the coronavirus; called on healthcare employers to provide some employees with N95 respirators and other PPE; and included social distancing, employee screening, and cleaning and disinfecting protocols.

The agency withdrew the non-recordkeeping parts of the standard in December after failing to complete work on a final rule within the timeframe established by the Occupational Safety and Health Act of 1970, then proposed the final rule in March.

Language in OSHA’s standard requiring physical distancing barriers and masks took a toll on the health, happiness and well-being of residents, Bethea said.

“We must find a way to minimize risk for severe illness, death and outbreaks while still protecting staff and preserving residents’ quality of life,” Bethea said.

Argentum President and CEO James Balda also testified at the OSHA hearing, stating that having residents wear masks and partitioning rooms with plexiglass “misses the point that senior living communities are homes and not facilities.”

Bethea said that OSHA’s permanent COVID-19 healthcare standard intends to cover a broad range of settings compared with the CDC’s guidance, which differs based on settings. Conflicting guidance, she added, can erode staff members’ trust not only in the federal agencies but also in their employers.

Pennsylvania Health Care Association President and CEO Zach Shamberg testified alongside Bethea; PHCA is the state affiliate of AHCA / NCAL. Shamberg echoed many of Bethea’s remarks, adding that attention to the nuances and differences within the healthcare continuum plays an important role in maintaining the health and safety of residents and staff members. 

“Due to the complexity of the provisions within this rule, we’re concerned about OSHA enforcement efforts around the ETS,” Shamberg said, adding that PHCA recommends that inspectors recognize providers’ good-faith efforts to meet the standards and allow them flexibility to meet requirements beyond deadlines. 

Leave senior living out

In comments submitted last week to OSHA, Balda argued that assisted living communities should be exempt from the COVID-19 healthcare standard requirements. Wednesday, he again questioned the applicability of the standard to senior living, saying that the requirements would do more harm than good for residents, would add another layer of financial distress to the industry, and would “chase away desperately needed workers.”

“While Argentum appreciates OSHA’s efforts to protect healthcare and healthcare support service workers from exposure and harm from COVID-19, we believe that the nature of the services our members provide, and the residences in which they are provided, differs significantly from that provided by other types of settings, like nursing facilities, and should thus be outside the scope of ‘healthcare services’ as the term is used by OSHA in this rulemaking,” Balda testified. 

He said that senior living communities have proven to be lower-risk environments than “hospital ambulatory care settings” and “non-hospital ambulatory care settings,” which were exempt from the ETS in certain circumstances.

Calling OSHA’s infection control requirements duplicative, Balda said that senior living communities already are subject to stringent infection control requirements at the state and local levels, which have allowed providers to implement “dynamic infection control programs that have kept their residents safe.” 

The industry associations, which jointly commented on the OSHA standard in August, agreed that consistency throughout the healthcare settings eliminates confusion and creates a level playing field.

The American Seniors Housing Association and LeadingAge also recently submitted written comments on the proposed final COVID-19 healthcare rule.

Testimony will continue through Monday, after which stakeholders will have 21 days to file additional evidence and data, as well as final written briefs.