Does CDC Need More Authority to Enforce Its Own Ebola Protocols?

The Centers for Disease Control and Prevention on Monday strengthened safety protocols for health workers caring for Ebola patients. But the agency still must rely on hospitals to follow the guidelines, and the Occupational Safety and Health Administration to enforce them if hospitals fall short.

CDC’s Ebola protocols were intended as the gold standard on practices including when hospital workers should don personal protective equipment and cover most or all of their skin. But the exposure of two nurses at Texas Health Presbyterian Hospital in Dallas to the deadly virus this month while caring for now-deceased patient Thomas Eric Duncan called the protocols into question, prompting the update.

Groups representing the nurses, however, have called not only for even stricter safety standards, but for stronger enforcement.

National Nurses United is circulating a petition for President Obama to “invoke his executive authority to mandate uniform, national standards and protocols that all hospitals must follow to safely protect patients, registered nurses, other front-line health care workers and the public.”

The petition stated: “The only way to adequately confront the Ebola crisis, that the World Health Organization has termed the most significant health crisis in modern history, is every health care employer must be directed to follow the Precautionary Principle and institute optimal protocols and personal protective equipment for Ebola that meets the highest standards used by Nebraska Medical Center, or a higher standard.”

Enforcement is another issue, observers say. “Part of the problem,” R. Scott Oswald, managing principal of the Employment Law Group, told Government Executive, “is that we have such a fractured health system. CDC issues guidelines that are not mandatory to hospitals and health organizations, but these have consequences. The Labor Department can cite a hospital for not following employee protections, but there’s no unified effort to deal with the problem.”

Oswald added, “workers in these hospitals are in a precarious position. They generally have a duty of loyalty to employers, follow instructions, and an additional loyalty to their medical license professions.”

The American Nurses Association gave credit to CDC after its Oct. 16 conference call on revising workplace guidance, calling it “a step in the right direction,” but said the changes did not fully address member concerns about clarity. “ANA recommends that health care organizations adopt … standards that have been demonstrated to provide effective protection for nurses and other health care workers in the clinical setting when caring for Ebola patients, such as those used by Doctors Without Borders and the protocols developed by Emory University Hospital,” the association stated.

The CDC also has heard from Rep. Bennie Thompson, D-Miss., ranking member of the House Homeland Security Committee, who on Oct. 15 sent a list of questions suggesting skepticism on consistency of the guidelines’ implementation around the country and the depth of CDC’s success in prompting proper hospital staff training.

“There is no question,” Thompson wrote of the two nurses who became infected in Dallas after treating the first Ebola patient in the country, “as to their courage, compassion, or most importantly, their competence. There are doubts, however, as to whether the infection control protocols utilized were sufficient to protect health care workers charged with caring for [Duncan] and whether health care workers were provided sufficient training on those procedures prior to their being asked to take on such a high-risk mission.”

On NBC News’ “Meet the Press” this Sunday, host Chuck Todd told two senators, “CDC protocols are voluntary. They're not mandatory. Do you think we should make them mandatory for a temporary basis? And basically usurp the states?” Sen. Roy Blunt, R-Mo., was unenthusiastic. “I'm not sure that if you made them mandatory, you'd have a way to enforce that mandatory determination,” he said.

The CDC and its parent agency, the Health and Human Services Department, addressed the implementation challenge in an Oct. 15 press call. “There are intensive efforts under way to train, retrain and supervise staff,” at the Dallas hospital, CDC Director Dr. Thomas Frieden said. “The single most important way to get consistency is a site manager. And we have now ensured that 24/7 there will be a site manager who will monitor how personal protective equipment is put on, taken off, and what's done when people are in it.”

HHS Secretary Sylvia Mathews Burwell added a note on efforts to jawbone. “We're doing a lot of communication,” she told reporters. “Clinicians will be doing another call from HHS for our assistant secretary for preparedness, and Dr. Mary Wakefield who is a nurse herself, a senior leadership member, will do a call.”

The reality on the ground, however, is that CDC cannot be in every hospital. It must depend on a multi-party patchwork of private employers and state regulators -- who set standards for handling medical waste, for example -- as well as the federal Occupational Safety and Health Administration, which conducts inspections and can impose fines for violations through its 10 regional offices. (The California version of OSHA recently issued its own Ebola standards.) 

“Any worker who may reasonably be expected to come into contact with the Ebola virus, either from the work environment or from direct contact with individuals infected, has the right to know the hazards associated with this potential exposure and how to protect themselves during work activities,” OSHA’s website advises. OSHA cites specific Code of Federal Regulations provisions requiring worker protection, noting that “while OSHA’s Hazard Communication Standard … does not apply to the Ebola virus itself, employers may be required to comply with the standard when chemicals are used for cleaning and disinfection of the work environment.”

An OSHA spokeswoman on Monday told Government Executive, “OSHA is working closely with CDC and other government agencies on worker protection issues, [and is] participating in the investigation of health care worker infections at Texas Presbyterian in Dallas.”

Both OSHA and CDC rely on research and recommendations on equipment, such as air purifying respirators, from HHS’ National Institute for Occupational Safety and Health. And the nurses cite the authority of private nonprofit groups such as the American Society for Testing and Materials, which has a standard for viral penetration that leaves no skin exposed or unprotected.

Hospital managers do have incentives to comply with protocols voluntarily, according to F. Curt Kirschner Jr., a partner at the law firm Jones day who is designated outside labor counsel to the American Hospital Association. “There are definitely overlapping guidance and regulations, but hospitals try to follow all that are applicable. And while it’s true that CDC guidelines are not by themselves enforceable, one condition that hospitals must follow to participate in Medicare is to follow CDC guidelines on infection control.” Hospitals, Kirschner added, must show Medicare surveyors that they have active programs for prevention, control and investigation of infection and communicable disease.”

Still, health care workers’ fears are not unfounded, Oswald said.  “It is important that workers are not mandated to protect patients to their own detriment,” Oswald said, noting that workers have a right to refuse if their grounds are reasonable. “There is real fear among employees now. A lot asking ‘What are our rights?’ Until they’re sure all employers are following the protocols, then the workers have a right to be concerned.”