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OSHA enters the duty hours debate as the ACGME prepares to vote on revisions to its duty hour standards later this month
September 10, 2010
Health Law Alert
Author(s): Lindsay Maleson

OSHA announced last week that it would review and consider a petition calling for federal regulation of the duty hours of medical residents. The regulations proposed by the OSHA petitioners are even more restrictive than the 2011 revised standards currently under consideration by the ACGME.  Any new standards approved by the ACGME this month would become effective in July of 2011. It is unclear how OSHA’s recent announcement might affect that timeline, if at all. Teaching institutions should expect and prepare for heightened scrutiny and enforcement of duty hour limits, as well as the possibility of unprecedented involvement by federal regulators.

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The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) announced last week that it would review and consider a petition calling for OSHA’s regulation of the duty hours of medical residents.

The petition, submitted to OSHA by Public Citizen, the American Medical Student Association, the Committee of Interns and Residents/SEIU Healthcare, and others,[1] calls for the enactment of federal regulations that would include the following:

  • A limit of 80 hours of work in each and every week, without averaging;
  • A limit of 16 consecutive hours worked in one shift for all resident physicians and subspecialty resident physicians;
  • At least one 24-hour period of time off work per week and one 48-hour period of time off work per month for a total of five days off work per month, without averaging;
  • In-hospital on-call frequency no more than once every three nights, no averaging;
  • A minimum of at least 10 hours off work after a day shift, and a minimum of 12 hours off after a night shift; and
  • A maximum of four consecutive night shifts with a minimum of 48 hours off after a sequence of three or four night shifts.

Dr. David Michaels, the Assistant Secretary of Labor for OSHA, in a published Statement, said that OSHA is

very concerned about medical residents working extremely long hours, and we know of evidence linking sleep deprivation with an increased risk of needle sticks, puncture wounds, lacerations, medical errors and motor vehicle accidents.
. . .
Hospitals and medical training programs are not exempt from ensuring that their employees’ health and safety are protected.

OSHA steps into the duty hours debate at a time when the Accreditation Council on Graduate Medical Education (ACGME) is on the verge of voting on its 2011 revised duty hour and supervision rules developed by an ACGME Task Force convened in February 2009 following the release of the Institute of Medicine’s (IOM) Report entitled, “Resident Duty Hours: Enhancing Sleep, Supervision, and Safety.” Please see our prior alert for a discussion of the IOM recommendations, many of which have been included in the OSHA petition. Following a period of public comment, the ACGME Board of Directors is expected to meet later this month, on September 27–28, to take action on its proposed standards.

The regulations proposed by the OSHA petitioners are even more restrictive than the revised standards under consideration by the ACGME (which revised standards are, of course, more restrictive than the currently effective ACGME standards). For example, the ACGME’s proposed revisions would shorten the maximum allowable continuous duty period from 30 hours to 16 hours for first-year residents (PGY1s) only, while more senior residents could work up to 28 hours. The petition being considered by OSHA requests that the 16-hour continuous duty rule apply to all residents, not just PGY1s. The petition also calls for a strict 80-hour work week, with no averaging, while the ACGME would continue to allow for an 80-hour work week with averaging over a four-week period. The table below compares the current ACGME standards, the ACGME’s 2011 proposed standards, and the regulations recommended in the OSHA petition.

The OSHA petition calls for strict enforcement of regulations including making residents’ schedules public, whistleblower processes and protection, frequent unannounced inspections, and fines for violations.

A Comparison of Current and Proposed Duty Hour Rules

 

Current ACGME Standards

2011 ACGME Proposed Standards

OSHA Petitioners’ Proposed Regulations

Maximum hours per week

80 hours per week, averaged over 4 weeks

80 hours per week, averaged over 4 weeks

80 hours per week, no averaging

Exceptions to 80-hour rule allowed?

Yes, programs may apply for up to 88 hours

Yes, programs may apply for up to 88 hours

No

Maximum continuous duty period

24 hours

PGY1s : 16 hours

PGY2s and above : 24 hours (napping suggested)

All residents: 16 hours

Additional hours for transfer of care, didactics, clinic, etc.

6 hours

PGY1s : None

PGY2s and above : 4 hours (transfer of care)

None

Minimum time off between duty periods

Should have 10 hours

PGY1s : Should have 10, must have 8 hours

“Intermediate-level residents”:[2] Should have 10, must have 8 hours. After 24 hours in the hospital, must have 14 hours off.

“Residents in final years”: Should have 10, must have 8 hours. Specialty-specific exceptions permitted.

Must have at least 10 hours after a day shift, 12 hours after a night shift

Maximum on-call frequency

Every third night, averaged over 4 weeks

PGY2s and above: Every third night, averaged over 4 weeks

Every third night, no averaging

Maximum consecutive nights in hospital (night float)

Specialty-specific

6 nights

4 nights, with a minimum of 48 hours off after 3-4 night shifts

Mandatory time off

One day in 7, averaged over 4 weeks

One day in 7, averaged over 4 weeks

One day in 7, no averaging, with one 48-hour period per month. Total of 5 days off per month, no averaging.

Any new standards approved by the ACGME this month would become effective in July of 2011. It is unclear how OSHA’s recent announcement might affect that timeline, if at all. Certainly the possibility of federal regulation of duty hours raises many questions about the future of graduate medical education.

Whether OSHA or Congress regulates residents’ duty hours or the ACGME continues to be the only body overseeing duty hours on a national level, the trends are clear. More restrictive duty hour rules and increased accountability are coming. Teaching institutions should expect and prepare for heightened scrutiny and enforcement of duty hour limits, as well as the possibility of unprecedented involvement by federal regulators. Enforcement protocols already being used by the ACGME have the potential to place programs and institutions in accreditation jeopardy swiftly, with serious consequences for an entire teaching institution.

Institutions or programs with citations, ACGME Resident Survey results, or state survey results indicating potential noncompliance with duty hour rules should address such violations immediately and proactively and are advised to seek outside assistance when necessary.


  1. In April of 2001, a similar petition was submitted to OSHA, but it was denied. At that time, the ACGME issued a lengthy response.
    [Back to reference]
  2. Terms in quotes are left to be interpreted/defined by the specialty-specific Residency Review Committees (RRCs).
    [Back to reference]

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