Blunt, Bond Fear Ergonomics Study Is "Off Course"

 Blunt said, "The National Academy of Sciences is not supposed to be helping the Occupational Safety and Health Administration (OSHA) to create an ergonomics rule."  They are supposed to be finding the facts." The mandate from Congress was based on researching seven questions through a "study of all the available literature examining the cause-and-effect relationship between repetitive tasks in the workplace and musculoskeletal disorders." A letter to HHS Secretary Donna Shalala raises "deep concerns" about "an aura of secrecy" surrounding work on the study and questions a trip the study group took to the Ford Motor Company to look at an ergonomics program. 

 "Apparently," Blunt said, " a review by the Congressional Research Service would indicate the National Academy of Sciences panel is taking a much broader and unauthorized course in its work than set by the Congress in 1999 legislation for the $890,000 inquiry."

 "What is equally troubling is that the work of the panel is being done out of the view of the public, despite assurances that members of Congress and interested parties would be kept appraised of all aspects of this project on a regular basis.... Unfortunately, there has been no communication at all about how the panel is proceeding since the June 18 letter--more than eight months ago," the lawmakers wrote. 

 The letter authored by Blunt, Bond and Texas Congressman Henry Bonilla, urges an Inspector General's inquiry, saying, "The Panel is not authorized to develop a unified theory of what ergonomics programs should contain.  Anything beyond or inconsistent with the legislative mandate would in all likelihood not be authorized and thus is not acceptable or fundable."  The lack of communication between NAS and Congress, has left lawmakers wondering if there is any way of determining whether the Panel is proceeding according to its mandate.  

The Honorable Donna Shalala
Secretary, Department of Health and Human Services
200 Independence Ave., S.W.
Washington, DC 20201

Dr. Bruce Alberts, President
National Academy of Sciences
and Chairman, 
National Research Council

Dr. Kenneth I. Shine, President
Institute of Medicine
2101 Constitution Avenue, N.W.
Washington, DC 20418

RE: National Academy of Sciences Study on Musculoskeletal Disorders (MSDs) and the Workplace; Award No. HHS-100-99-0001

Dear Madame Secretary and Drs. Alberts and Shine:

Please note our deep concern regarding the Panel on MSDs and the Workplace.  Congress funded this study through $890,000 appropriated to the Department of Health and Human Services under the Omnibus Spending measure for FY 1999.  

To begin, our letter of May 28, 1999, requested updates on a quarterly basis.  Moreover, your letter of June 18, 1999, expressed an intent to "keep your staff appraised of all aspects of this project on a regular basis...."  Unfortunately, there has been no communication at all about how the panel is proceeding since the June 18 letter-- more than eight months ago. 

Since the Panel was convened last May, only specific information gathering sessions have been open to the public, and one of these was not in the Washington area.  However, the discussions of the Panel for that meeting, as well as, all the other meetings were conducted out of view of the public.  Although synopses of the meetings are posted on the NAS web site after meetings, these are so superficial as to be meaningless in terms of following the activities of the Panel.  As this study is funded through federal taxpayer funds, there should be an opportunity to observe how the Panel is conducting itself and whether the Panel is proceeding consistent with the Congressional mandate.  

NAS held another meeting of the Panel on February 21-22. The summary posted on the NAS web site indicates that there was a presentation on economic influences that appears to have been open to the public.  The Committee then went into a closed session where they discussed various issues relating to their report: "The panel and staff discussed the content and structure of their report manuscript and began reviewing each chapter outline and/or preliminary draft. [On February 22] the panel and staff continued to discuss the content and structure of their report and review chapter outlines and/or preliminary drafts. A preliminary discussion of findings, conclusions, and recommendations to be made in the final report was held."  There was no notice given to the interested Congressional offices, or even outside parties.  This was uncovered by someone randomly checking the NAS web site. This is yet another departure from the NAS promise to keep Congressional offices fully apprised.

The legislation passed by Congress and signed by the President mandating this study called for a "study of all the available literature examining the cause-and-effect relationship between repetitive tasks in the workplace and musculoskeletal disorders."  (1999 Omnibus Appropriations Act, emphasis added)  This language is explicit in that the Panel's efforts are to be focused exclusively on reviewing the literature, in an effort to determine whether the data and evidence available supports OSHA's efforts to promulgate an ergonomics regulation.  However, the activities of the Panel seem to be either shrouded in an aura of secrecy or veering off course.

To date, we have been able to ascertain only certain bits and pieces regarding the Panel's activities.  These bits and pieces have lead us to believe that the Panel is exceeding its mandate and is pursuing an agenda that is inconsistent with the authorizing legislation.  One example of this is the Panel visiting Ford Motor Company to review its ergonomics program. This clearly goes beyond the legislated scope of studying the available literature.  The goal of this study is simply to determine what the state of the scientific evidence is, so that an objective determination of whether there is sufficient evidence to support an OSHA regulation in this area can be made.  The Panel is not authorized to develop a unified theory of what ergonomics programs should contain.  Anything beyond or inconsistent with the legislative mandate would in all likelihood not be authorized and thus not acceptable or fundable.

The Panel's specific charge was expressed in the seven questions contained in the House Labor, Health and Human Services and Education Appropriations Report for FY 1999 and originally proposed by Congressman Livingston (Attachment 1).  Your letter of June 18, 1999 reiterated your organizations' commitment to using those questions as the "focus" of this project.  However, the contract executed between NAS and the Department of Health and Human Services, through the National Institute of Occupational Safety and Health, contains the "Statement of Task" drawn up by the NRC/IOM (Attachment 2), which lists six tasks to be pursued by the panel rather than the seven questions posed by Congressman Livingston.  These tasks obfuscate the original questions and in so doing, deviate significantly from the original seven questions posed by Congressman Livingston and captured in the House report.  Accordingly, it is our opinion that the intent of Congress was clearly and explicitly stated in the seven questions and that these questions laid out the scope of work for the Panel's efforts.

A recent review conducted by the Congressional Research Service (Attachment 3) points out the various ways in which the Tasks do not match the Questions posed by Congress.  For example, Question 1 asks, "what are the conditions affecting humans that are considered to be work-related MSDs?"  The CRS analysis concludes: "This would seem to call for a listing of specific injury types or syndromes in the MDS category that are ‘work-related'.  The contract does not explicitly provide for such a listing."  

Question 3 from Congressman Livingston, asks for the "state of knowledge, characterized by the degree of certainty or lack thereof, with regard to occupational and non-occupational activities causing [musculoskeletal disorders]."  Instead, Task 2 (the closest in content to Question 3) seeks to "examine the research literature on the individual and non-work related activities that can contribute to or help prevent or remediate musculoskeletal disorders." CRS concludes that the "approach taken...may differ in emphasis from what some may have expected."  We would add that this is an entirely different approach than what was requested, as "examine" does not mean the same thing as stating the level of knowledge, or characterizing the degree of certainty on this subject--an objective which is not included in any of the tasks.  The CRS analysis also notes that "Task 5 of the contract is not explicitly related to the mandated questions."

As a result of these discrepancies and others, we are concerned about whether or not the Panel is:  
 1) being responsive to its mandate;
 2) proceeding appropriately; and
 3) spending appropriated funds as Congress intended.  

Accordingly, we are requesting the HHS Office of Inspector General to conduct a review of the oversight being conducted by NIOSH of this contract.  In addition, we are also asking the Inspector General to examine whether the allocated funds have been spent consistent with the Congressional mandate.

With the publication by OSHA of their proposed ergonomics regulation, and Assistant Secretary Jeffress' expressed intent to conclude the rulemaking before the end of this year, whether the NAS study will have any relevance is now a matter of great concern and speculation.  Because of the lack of communication between NAS and Congress, we have no way of determining whether the Panel is proceeding according to its mandate.  

For these and other reasons we request a detailed oral briefing during the week of April 3 so that we can be "apprised of all aspects of this project" as was promised in your letter of June 18, 1999.  As part of this briefing, please be prepared to provide all documents pertaining to the Panel's use of Congressionally appropriated funds, including but not limited to, receipts and expense reports, contracts or authorizing letters describing the project and its scope, and all committee meeting minutes.  These documents should be provided to Marc Freedman of the Senate Committee on Small Business by noon on March 29.  He can be reached at 202-224-5175.  Thank you in advance for your corporation in this matter.
      Sincerely,
 

Roy Blunt                                 Henry Bonilla                               Christopher S. "Kit" Bond

Attachments:  Congressman Livingston's Original Seven Questions 
                      NRC/IOM Statement of Task
                      CRS Comparison of Ergonomics Research Contract with Legislative Mandate

cc: HHS Inspector General June Gibbs Brown