Doctor wearing protective suit to fight coronavirus pandemic covid-2019.
(Credit: miodrag ignjatovic / Getty Images)

A proposed federal COVID-19 healthcare rule is “overly prescriptive” and creates confusion, according to senior living industry leaders. 

In comments to the Occupational Safety and Health Administration regarding a proposed final rule that the federal agency says will protect assisted living and other healthcare workers from exposure to COVID-19 in the workplace, senior living and care advocates called for broader requirements and flexibility to respond to changing circumstances. 

Argentum, the American Seniors Housing Association, American Health Care Association / National Center for Assisted Living and LeadingAge also recommended that OSHA defer, in most cases, to the Centers for Disease Control and Prevention as the public health expert.

OSHA announced in March that it was accepting additional comments on the rule until April 22. An informal public hearing is scheduled to begin Wednesday.

LeadingAge Vice President of Legal Affairs and Social Accountability Cory Kallheim wrote in his remarks to the Labor Department agency that a final rule is unnecessary because “sufficient guidance and regulations” already exist through the CDC and the Centers for Medicare & Medicaid Services. Existing OSHA tools to enforce workplace safety are adequate to address pandemic concerns, he added. 

“Although OSHA’s efforts are well-intended, a final healthcare rule is unnecessary and overly burdensome at this point, as there are existing regulatory requirements that adequately address workplace and resident safety,” Kallheim wrote. 

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 personal protective equipment; 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.

Among the potential changes OSHA said in March that it is considering related to its previously issued emergency temporary standard are aligning the rule with CDC infection control procedures; relaxing masking, barrier and physical distancing provisions for vaccinated workers in healthcare settings; and adjusting paid time off or sick time requirements for employers.

The agency said that it does not plan to include an employee vaccination requirement in the rule, although it is considering requiring employer support for employees who wish to stay up to date on vaccines and boosters.

The industry associations, which previously jointly commented on the OSHA standard in August, agreed that consistency throughout healthcare settings eliminates confusion and creates a level playing field. They also implored the agency to consider the industry’s severe workforce shortages and that differing requirements could exacerbate the crisis.

Last week, NCAL Executive Director LaShuan Bethea and AHCA / NCAL Senior Vice President of Government Relations Clif Porter wrote that consistency among regulatory agencies is “critical for optimizing compliance, mitigating confusion,” particularly for employers who must comply with guidance from multiple agencies.

In new remarks, Argentum reiterated its opposition to OSHA including assisted living communities in its definition of “healthcare facilities.” Assisted living communities provide only limited healthcare services, the association said. 

In his statement, Argentum President and CEO James Balda noted that assisted living communities already are subject to state and local infection control regulations, and communities have implemented enhanced protocols to prevent COVID-19 from entering and spreading in assisted living communities. 

“Argentum believes the protocols assisted living facilities have had in place for more than two years already fulfill the spirit of what the rule is trying to achieve,” Balda stated. “Adding an additional layer of regulatory complexity on a community that has experienced severe financial distress will be to the detriment of the elderly population we are committed to serving.”

In his statement, ASHA President and CEO David Schless strongly urged OSHA to consider financial and product support for senior living providers to cover personal protective equipment, tests and other supplies needed to comply with its rule, “in the event of a surge or a new variant that may once again stress the system.”

“Unlike other healthcare providers, senior living communities had to procure these supplies without assistance from the government, and were typically sourced at price gouging levels,” Schless wrote. “While costs have declined, many of these supplies, plan development and training will be an ongoing expense for the communities, especially as new variants emerge.”