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Vol. 4, no. 1, pp.1,4,-5

Copyright © 2000, International Health Care Worker Safety Center


California Leads the Way with

Health Care Worker Safety Law

By Jane L. Perry, M.A.

On September 30, 1998, California Governor Pete Wilson signed ground-breaking legislation that will require California OSHA (Cal/OSHA) to issue new safety needle guidelines to protect health care workers. The legislation, AB 1208, mandates amendments to the state's Bloodborne Pathogens Standard, making California the first state to require health care facilities to purchase needles designed to prevent needlesticks.

Emergency regulations will be in effect by January 15, 1999, which give notice to employers of the new requirements. Full compliance will be required by August 1, 1999.

The legislation was introduced in May 1998 by Assemblywoman Carol Migden (D-San Francisco). When the governor signed the bill in September, Migden commented: "This is a long overdue measure for worker safety in California. Safety needles have been on the market for 10 years now. Failure to use this technology to protect workers has been unconscionable. We've finally changed that."

The bill was passed by the California State Assembly on a vote of 46-to-25, and by the State Senate on a vote of 22-to-12, and was sent to the governor on August 28. The governor was expected to veto the bill in response to opposition by the California Healthcare Association (CHA), representing 600 hospitals, health systems and physicians in California. Then, in the final few days, the CHA withdrew its opposition and wrote a letter to the governor supporting the bill.

In signing the bill, Gov. Wilson said, "This legislation recognizes the need to further address the hazard of employee exposure to bloodborne pathogens and calls for reasonable amendments to the Cal/OSHA bloodborne pathogens standard." He added, "In the absence of federal guidance, California finds it necessary to move forward with its own regulatory solution, which will most likely become the model for a national standard." Similarly, John Duncan, director of the State's Department of Industrial Relations, said "California has led the way on worker safety over the years. I challenge [federal regulators] to follow us."

A diverse coalition of groups representing health care workers, hospitals, and medical device manufacturers came together in support of the bill. Gov. Wilson called the bill "an important symbol of the consensus among the health care industry, labor, and regulatory agencies on the need to move forward with this occupational safety and health issue, and the wisdom of doing so through the public rulemaking process."

A driving force behind the effort was the Service Employees International Union (SEIU), which organized a fax campaign to the governor and a candlelight vigil in San Francisco. SEIU president Andrew Stern said that the union had worked for "nearly a decade to get safer needles into the hands of healthcare workers" and was "proud of our role" in getting the legislation passed. He also commented, however, that "California's action begs the question: Why haven't [federal] OSHA and FDA acted to protect healthcare workers nationwide?"

Glenda Canfield, R.N., who coordinates SEIU's Nurses' Alliance in California and who organized the fax campaign to the governor, said that "nurses are the largest group of health care workers affected by this bill, and nurses all over California are excited about it." But, she said, until the revised Standard comes into full effect in August 1999 and more safety devices are available, health care workers are still vulnerable: "Recently I got a call from a public health nurse who had just been stuck with a needle that had been used on an AIDS patient, and she was very upset. Here we are, so close to having the protection this bill will afford, and yet, as far as she's concerned, it's a million miles away. When I say next August to some people, that seems like a long time to wait."

Much of the coalition-building and consensus that made the successful passage of the bill possible took place over the summer during Cal/OSHA advisory committee meetings on the revision of California's bloodborne pathogens standard (BPS). Key participants included representatives from Kaiser Permanente (the nation's largest non-profit health care corporation, with 28 hospitals in California), CHA, SEIU, and device manufacturers, as well as nursing and infection control representatives and leading researchers in the prevention of occupational exposures.

Len Welsh, special counsel for Cal/OSHA and co-chair of the advisory committee on the BPS revision, comments that "advisory committee meetings are very powerful tools, if you want to address a technical area [such as bloodborne pathogens] and you can get people with the appropriate expertise to volunteer their time." In this case, he said, "it was particularly helpful that Kaiser and the SEIU were partnering around this issue." Enid Eck, R.N., M.P.H., a senior consultant for HIV and infectious diseases for the California division of Kaiser and a member of the advisory committee, observes that "At Kaiser, on the issue of sharps safety in particular, collaboration between management and labor is not at all unusual. What we brought to the table that facilitated the outcome, if anything, was a history built on trust and experience with our labor representatives. They have been invaluable to us over the years, particularly in the process of evaluating and implementing safety devices."

Roger Richter, a senior vice president at CHA and another member of the advisory committee, agreed that collaboration and compromise were key to getting an agreement on what should be in the revised BPS and how the timetable for its implementation, which is mandated in the bill, should be structured. "CHA opposed [AB 1208], almost until the end, on the basis that it was onerous and extremely costly. But thanks to the good work of the Cal/OSHA staff, a compromise was finally reached on what should be sent to the standards board for adoption. Assemblywoman Migden gathered all interested parties together and got agreement that, while the law said there had to be emergency regs in place by January 15, what would actually be required at that point was that everyone effected by the revised standard would be notified and would start working on implementation, but there wouldn't be any punitive action by Cal/OSHA until August. We felt comfortable that by August 1, 1999, hospitals can have programs in place to convert over to safety devices."

How have CHA member hospitals responded to the new requirements? "Since we've supported the bill," Richter says, "we've heard nothing but positive comments from our members. Although hospitals realize that conforming to the new law and regulations will be costly at first, the hope is that the cost will mostly be up front and that once the programs are put in place, the prices on devices will come down." When asked if the CHA had any figures on what the new regulations would cost, he responded, "If a hospital is currently not using any safety devices, implementing the new devices could cost three to seven times what they are currently paying for devices. But it's difficult to come up with numbers because many, if not most hospitals already have at least some safety devices in place."

Enid Eck of Kaiser says that the new legislation and regulations will cost "major money." In general, she notes, safety devices "cost two or three times more than conventional ones-and sometimes even more than that. The impact for those organizations that have not implemented any safety devices will be huge." But, she adds, "For organizations like ours that have been gradually implementing safety devices, while there will be an incremental increase in cost as we standardize, the impact won't be as big. All of the hospitals in the Kaiser system already have at least some safety devices."

Experts in health care worker safety and infection control, as well as leaders from industry, have universally praised the bill. Janine Jagger, M.P.H., Ph.D., director of the International Health Care Worker Safety Center at the University of Virginia, predicts that the legislation "will have an impact far beyond the borders of California. The new law will certainly spur similar legislative initiatives in other states and nationally. Furthermore, the impact on industry will be profound because California represents at least 10% of the medical device market. Supplying California with safety devices will require increases in production and will attract more companies to compete in this new market, hopefully resulting in more choices and lower costs."

Could the legislation have an impact outside the United States? "The United States is the global springboard for new technology," Jagger says. "If we create a thriving safety device market in the U.S., the new technology has a better chance of being adopted in other areas of the world."

Many experts agree that the legislation will likely have a ripple effect. Tom Sutton, vice-president for marketing at Bio-Plexus, thinks the legislation will "cause a wave of similar actions in other states and at the federal level." Murray Cohen, Ph.D., chairman of the Frontline Healthcare Workers Safety Foundation, says "we often look to California to take a leadership role on important issues. I have every hope that this legislation will be seen as a good idea that will quickly spread across the country, and that Congress will take a similar, non-partisan approach to quickly introducing more and better safety devices to protect health care workers."

Gina Pugliese, R.N., M.S., former director of infection control and environmental safety at the American Hospital Association and now a consultant with Etna Communications, commended the bill for its thoughtful approach and flexibility: "The new law has some valuable components. First is a requirement for a written exposure control plan that includes a procedure for identifying and selecting existing sharps prevention technology. It often takes one or two years to successfully implement a new safety device, and the plan can be the most important component of that process. The law also allows for exemptions in implementing safer devices-for example, in a case where using safety devices might interfere with patient care. So it gives the employer some flexibility. This will be particularly helpful as devices are evaluated because not all safety devices work in all settings and there are some medical procedures for which effective safety devices are not available. Finally, the bill has a component that requires recording of exposure incidents in a sharps injury log, which will greatly expand the current criteria for reporting of needlesticks that is required by federal OSHA. From my perspective, this law is the most reasonable attempt to implement safer technology that has been proposed thus far."

Like other experts in the field, Patti Tereskerz, J.D., Ph.D., director of health law and policy for the U.Va. Health Care Worker Safety Center, hopes that the California legislation will "serve as a catalyst for passage of similar federal legislation" because, she says, "the level of protection a health care worker is afforded against contracting occupational infections should not be dependent upon his or her state of employment. Use of safety devices should become the national standard." Len Welsh of Cal/OSHA echoes that belief: "California is just the starting point for this issue. These are protections all U.S. health care workers should have." Lynda Arnold, a nurse who contracted HIV from a needlestick injury in 1992 and who has led a national campaign for the past two years to get hospitals to adopt safety devices, says she is "proud of everyone's efforts" in getting the legislation passed. But, she adds wryly, "health care workers in California are luckier than those in the rest of the country."