Lawmakers request audit of DOL proposal to allow teens to operate powered patient lifts

Washington — The chair of the renamed House Committee on Education and Labor, along with a likely 2020 presidential candidate, are among the lawmakers asking for an audit of the Department of Labor’s proposal to allow unsupervised 16- to 17-year-old workers to operate powered patient lifts.

Sen. Elizabeth Warren (D-MA), who announced her potential bid for the White House on Dec. 31, joined Rep. Bobby Scott (D-VA) and three House Democrats in writing a letter to DOL Inspector General Scott Dahl. In the Jan. 7 letter, the group asks if the department “deviated from agency regulatory and data quality requirements” in developing its notice of proposed rulemaking, issued Sept. 27.

The proposed rule would alter the Hazardous Occupations Orders under the Fair Labor Standards Act to allow 16- and 17-year-old employees to operate power-driven patient lifts. DOL states that operating the equipment is “safer for workers than the alternative method of manually lifting patients,” and would benefit young workers in the health care industry.

The lawmakers counter that the NPRM “cites exactly one piece of direct, empirical evidence” – the 2012 Massachusetts Department of Public Health’s Teens at Work Project survey. DOL also did not include full survey results in its original docket or “any information regarding its methodology.” “DOL’s failure to publicly disclose the 2012 survey during the public comment period deviates from [Executive Order 13563] transparency requirements that ensure the public is able to make meaningful, informed comments on proposals,” the letter states.

The lawmakers also express concerns that the survey violates DOL’s data quality guidelines. Debbie Berkowitz, program director for worker safety and health for the National Employment Law Project, an advocacy group, obtained a copy of the full results and shared them with Safety+Health in December.

The survey was sent to 42 vocational programs, but 25 or fewer responded to 12 of the 15 multiple-choice questions. The median number of responses to the questions was 22. When asked if they knew about the DOL policy on “the conditions under which hoists can be used by persons under the age of 18,” eight of 22 respondents said no and two answered they did not know.

“The results of this survey were that Massachusetts decided they need to educate votech programs and employers on the new policy – not that the new policy was not working,” Berkowitz wrote in an email to S+H.

In their letter, the lawmakers also point to a 2011 NIOSH report that concluded “many 16- and 17-year-old employees cannot safely operate power-driven hoists to lift and transfer patients by themselves” and recommends that two caregivers operate the lift to move patients.

The proposed rule states that teens seeking to learn the skill would need – according to federal or state regulations – at least 75 hours of training and at least 16 hours of supervision under a registered nurse who has at least two years of experience.

The comment period on the NPRM ended Dec. 11. The American Health Care Association/National Center for Assisted Living, the Wisconsin Aging Advocacy Network, and LeadingAge are among the organizations supporting the change. Some commenters in favor of the proposed rule point to staffing shortages at health care facilities.