Licensed professionals under methylene chloride surveillance rule

July 7, 1997

Robert S. Rhodes, MD, President
American College of Occupational and Environmental Medicine
[Recipient address omitted]
Dear Dr. Rhodes:

Thank you for your letter of June 9, 1997, which petitioned for modification of the Occupational Safety and Health Administration's (OSHA) Methylene Chloride (MC) Standard. We wish to assure you that OSHA is aware of the concerns you raise regarding the medical surveillance provisions of the MC rule. However, for the reasons described below, OSHA does not intend to modify the MC standard at this time.

In OSHA's MC standard, paragraph (j)(3) requires that all medical procedures be performed by a physician or other licensed health care professional, defined as "an individual whose legally permitted scope of practice (i.e., license, registration, or certification) allows him or her to independently provide or be delegated the responsibility to provide some or all of the health care services required by paragraph (j) of the standard." Use of this phrase is designed to increase the flexibility and performance orientation of the standard. OSHA is increasingly taking initiatives, as encouraged by Congress and the Office of Management and Budget, to replace regulatory requirements that specify the precise means by which employers must meet a particular goal with performance standards that define a goal and let employers meet it in the most efficient ways their circumstances allow. In this case, by increasing the performance orientation of the rule (specifying only that a provider be licensed to perform a service rather than have a specific type of license or academic credential), OSHA has minimized the costs of medical surveillance, ensured a high quality of service, and improved access to services. Moreover, by specifying that health care professionals can only act within the scope of their state licensure, OSHA has ensured that medical evaluations will be conducted by qualified individuals.

OSHA has long considered the issue of whether and how to identify the particular professionals who are to perform the various medical surveillance tasks required by its health standards. The Agency recognizes that the personnel able to provide the required medical surveillance may vary from state to state, depending on state licensing laws. Under the final rule, an employer has the flexibility to retain the services of a range of qualified licensed health care professionals, thus potentially reducing costs, increasing flexibility, and allowing employers to identify those professionals with the greatest facility in assessing and counseling individual employees, diagnosing occupational diseases, and discerning patterns and trends in morbidity and mortality. In future rulemakings, OSHA may attempt, with the cooperation of all interested stakeholders, to provide guidance on which licensed health care professionals are the most appropriate to perform the program components required by the Agency's standards, including assessment, diagnosis, medical management, and data aggregation and review.

OSHA is concerned that you have interpreted the standard to infer that the Agency is pre-empting the rights of states to decide the scope of practice of health care professionals. In fact, language was added, in part, to do exactly the opposite: to specifically respect the rights of states to determine the scope of practice of health care professionals. In some states, a physician is the only health care practitioner who is licensed to conduct or supervise many of the medical surveillance tasks under the MC standard. The definition in the final standard in no way changes the practice in those states. On the other hand, there are many states in which licensed health care professionals other than physicians (for example, nurse practitioners) have been empowered by state law to independently conduct many of the tasks in the MC medical surveillance provisions. In those states, requiring that medical surveillance be conducted by or under the supervision of a physician would be unduly restrictive. The language in the MC standard follows the state determination regarding the appropriate scope of practice for health care professionals providing the medical surveillance services.

As you note, pre-1990 OSHA health standards provide that medical surveillance must be conducted by a physician. However, there has been a growing societal trend in recent years to reduce medical costs and improve access to health care by expanding the role of non-physician health care providers. OSHA's post-1990 health standards, such as the Bloodborne Pathogens standard (issued in 1991) and the 1,3-butadiene standard (issued in 1996) reflect this trend. They also reflect OSHA's continuing efforts to make standards more performance-oriented and cost-effective.

In addition, you contend that this provision will create an incentive for employers to hire unqualified licensed health care professionals. To the contrary, OSHA believes that this provision may serve to increase the quality and level of expertise of the health professionals conducting the medical surveillance program, by encouraging the use of physician or non-physician specialists in occupational health in place of or in conjunction with non-specialist physicians. In addition, under the MC standard, no person may conduct any part of the medical surveillance unless specifically licensed to do so independently or through delegation by a licensed individual.

Finally, as you point out, the proposed rule's medical surveillance provisions did not specifically allow, as does the final rule, non-physician professionals to conduct such surveillance. However, the rulemaking process is intended to allow the Agency to learn ways in which its proposed rules can be improved, and it is therefore common for final rules to differ from those that were proposed. As discussed above, the change from the proposed rule to allow some medical surveillance tasks to be conducted by non-physician licensed professionals as well as physicians was designed to make the final rule more cost-effective and performance-oriented. OSHA does not believe that such a change required reopening of the record for additional notice and comment.

For these reasons, the Agency has decided not to grant your petition for modification of the MC standard. Thank you for bringing your concerns to our attention. Your interest in occupational safety and health is greatly appreciated.

Sincerely,

Adam M. Finkel, Sc.D.

[Requester letter reproduced on OSHA page; omitted here.]