Let’s be honest. Most people who work in facilities management, infection control, property management, safety, industrial hygiene, or engineering want to protect the people in their buildings from Legionella and other waterborne pathogens—not just in hospitals, but also in schools, hotels, nursing homes, apartment and condo properties, commercial buildings, and industrial facilities.
But, they have a plethora of other risks to manage, rules to follow, and maintenance tasks to perform — and their money, staff, and time are already like a rubber band stretched so far it’s fraying, about to snap.
Health officials are facing pressure, too. If building operators do not heed warnings and voluntarily follow and become compliant with the ASHRAE Standard 188, state agencies will be compelled to adopt and enforce regulations to protect public health. If they don’t, they could be accused of neglecting the public they are called to protect.
How did we get to this point?
Laws for Legionella prevention were established in the United Kingdom and Australia in 1991, relatively soon after the 1976 outbreak in Philadelphia that led to the discovery of Legionnaires’ disease. In the United States, however, pressure caused by insufficient action to reduce the risk of a preventable disease has been building for 40 years.
Inaction was not because of insufficient information. Legionella was studied more than any other waterborne pathogen after the 1976 outbreak and into the 1980s. Numerous scientific papers were published. In the late 1990s and into the new millennium, government and industry groups released Legionella position statements and guidance documents urging building operators to maintain and operate their water systems to minimize Legionella. Although the documents varied about specific preventive measures, they agreed that the best strategy for reducing the risk of Legionnaires’ disease is to manage to build water systems to minimize Legionella bacteria.
What changed with the June 2015 release of ASHRAE 188 was that it represented agreement among key parties—not only about the need for Legionella prevention in building water systems—but also about the approach to it (see “Unprecedented Agreement in the United States About the Approach to Legionella Prevention”). The essential components ASHRAE 188 requires in order to have companies meet compliance for a water management program are almost identical to those the World Health Organization recommended in 2007 and the United States Veterans Health Administration (VHA) has required since 2014.
ASHRAE 188 has received more attention and support than any government or industry Legionella document released in the United States to date:
- In July 2015, just a few days after the release of ASHRAE Standard 188, New York City and State responded to a major NYC outbreak of Legionnaires’ disease by adopting emergency ASHRAE 188-related regulations for minimizing Legionella risk associated with cooling towers. The regulations were updated and made permanent in 2016.
- In June 2016, the Centers for Disease Control and Prevention (CDC) report in Morbidity and Mortality Weekly Report (MMWR) about a rise in Legionnaires’ disease cases and the need for better building water management caught the attention of the mainstream media, which immediately published stories highlighting the responsibility of building owners and managers:
Washington Post: “Legionnaires’ outbreaks: Cases nearly quadrupled in 15 years.”
Wall Street Journal: “Almost all Legionnaires’ disease outbreaks are preventable with improvements in water systems management.”
USA Today: “Most outbreaks can be prevented through better water management, according to the CDC report.”
- The same month—June 2016—the CDC clarified its expectations in the Vital Signs article “Legionnaires’ Disease: Use water management programs in buildings to help prevent outbreaks,” telling building owners and managers to “develop and use a Legionella water management program” and state and local officials to “consider changing building and public health codes to include Legionella water management programs.”
- The CDC went even further by issuing “Developing a Water Management Program to Reduce Legionella Growth & Spread in Buildings: A Practical Guide to Implementing Industry Standards” to help facility operators “develop and implement a water management program to reduce your building’s risk for growing and spreading Legionella.” Referencing ASHRAE Standard 188, the CDC wrote, “Legionella water management programs are now an industry standard for large buildings in the United States.”
- The Building Owners and Managers Association International (BOMA) posted an announcement on boma.org that the CDC “asks building owners and managers to adopt newly published standards that promote Legionella water management.”
Since the responsibility to manage water systems for Legionella control has never been more clearly defined and communicated, legal and brand damage risk is likely at an all-time high for US building operators that do not comply with ASHRAE 188 (see “Four Reasons CDC’s New Toolkit Could Impact Legionnaires’ Litigation“). Last July, law.com issued a report concluding, “Compliance with the new ASHRAE standard likely will be viewed by courts as the standard of care in personal injury lawsuits involving exposure to Legionella. …Adopting industry-standard practices and complying with applicable law is the best defense. Conversely, failure to follow such standards and legal requirements could expose building owners and operators to potentially significant liability.”
The pressure is therefore on building owners and managers to comply with ASHRAE 188 and on health officials to make sure they do.
What can be done to relieve pressure without neglecting the goal to drastically reduce Legionnaires’ disease? Let’s look at the roles of service providers, building operators, and health departments.
How can service providers help?
Most facility operators have neither the time nor expertise to establish and implement a good water management plan (WMP) on their own. Most need help from a combination of water treatment companies, engineering firms, industrial hygiene firms, and Legionella testing laboratories.
To meet the demand with high quality and reasonable prices, service providers need to become better educated and more proficient. Some companies have personnel that understands water systems but are not providing Legionella related services because of liability concerns or the time required to learn how to conduct site surveys or solves Legionella problems. Some are providing services but poorly (e.g., making Legionella remediation recommendations that are costly but ineffective). Others charge too much for WMPs because of inefficiency.
HC info has a responsibility here, too, because service providers (our WMP partners), as well as building operators, use our LAMPS cloud application. We need to improve LAMPS to further simplify and streamline the development and implementation of WMPs and develop new e-courses to cover unmet educational needs.
What should building owners and managers do?
The responsibility and opportunity to reduce the risk of Legionnaires’ disease ultimately lies with building operators. Legionnaires’ disease will continue to cause illness and death unless they implement effective WMPs. Fortunately, establishing and implementing a top-notch water management program does not take a burdensome amount of time and money if done intelligently and efficiently.
Many organizations with valuable brands have already established WMPs. They understand that implementing a good WMP is not only the right thing to do for the people who spend time in their buildings, it’s a smart investment for their organization to show good corporate citizenship and protect themselves against loss of business, brand damage, and legal risk.
For a quick evaluation of your organization’s water management program, see the January 2017 Buildings Magazine article, “6 Questions to Test Your Water Management Preparedness: Legionella threatens risk of disease, lawsuits and brand damage.”
What are the options for health departments?
Relying on voluntary prevention or enacting detailed regulations are not the only options for health departments. State health departments could issue an advisory echoing the CDC’s Vital Signs advice to building operators or adopt less restrictive principle-based regulations.
A health department advisory will not likely move the needle much, so let’s look at just three options – no regulations, detailed regulations, and principle-based regulations:
- No regulations
Although the number of facilities implementing Legionella WMPs has increased several-fold since ASHRAE 188 was finalized, the percentage is still low. Perhaps other facilities will do so eventually, simply out of concern for their legal risk and the health and life of the people in their buildings, but indications are that most need a nudge—maybe even a shove. Unless insurance companies begin requiring Legionella WMPs in the facilities they insure for liability, the nudge will likely need to come from health departments.
- Detailed regulations
Developing and enforcing regulations requiring specific control measures for the water systems that cause most cases of Legionnaires’ disease—domestic (potable) plumbing systems and cooling towers—would be difficult, time-consuming, and expensive. It could take years to enact such regulations. New York State and New York City tackled the challenge for cooling towers with impressive speed but setting rules that make sense for all domestic water systems would be far more complex.
Since regulations with detailed procedures must be one-size-fits-all, applying to many types of buildings and situations, they would end up overly burdensome for some buildings and inadequate for others. For facilities as well as governments, it would be the costliest and most burdensome path to prevention.
However, when considering healthcare costs and human suffering related to Legionnaires’ disease, regulated prevention is less expensive than inadequate prevention and will, therefore, be necessary if building operators ignore warnings to comply with ASHRAE 188. Health and life must take priority.
- Principle-based regulations
Instead of adopting regulations requiring a long list of water management procedures—and then inspecting properties or documentation to check compliance—health departments could establish principle-based regulations for Legionella water management programs.
The success of principle-based versus detailed regulations has been debated for manufacturing processes, financial services, safety and security in international trade, life insurance policy reserves, nursing homes, and other applications.
In a study of nursing homes, researchers were surprised to find that Australian principle-based (outcome-based) regulations produced better results than detailed standards required in the United States.
The researchers expected the US regulations to be superior since specific standards could be more easily inspected and enforced. What they found, however, was the detailed rules apparently encouraged checking boxes over caring for the elderly. The staff members in the US nursing homes—focused on meeting minimum requirements—used less creativity to find ways to offer better care. The Australian rules, by contrast, giving managers and staff flexibility to find ways to meet a principle-based outcome (e.g., to create “a home-like environment”) resulted in much better care and conditions. Inspections showed the detailed standards for the U.S. nursing homes were considerably less reliable than the broader Australian standards.
Pointing out some catastrophic failures of detailed regulations (e.g., the 2001 collapse of Enron), researchers contend detailed rules can even be risky since some will follow them to the letter but find ways to avoid the overall objective.
What does this have to do with managing building water systems for Legionella control? Perhaps principle-based regulations could be employed to “nudge” building operators to follow ASHRAE 188 soon, and at a relatively low cost to government agencies and building owners.
For example, a state health department could simply require WMP registration. In an online database, facilities would be required to answer some basic but telling questions about their WMP and then upload it in PDF. The online portal might look similar to the “Water Management Plan (WMP) Registration Example” shown in the figure below.
Health departments could add more specific questions that are shown in the sample, for example, “Does your WMP include cooling tower start-up and shut-down and water treatment control measures consistent with ASHRAE Guideline 12?” A simple algorithm could be employed to flag WMPs for review based on the data entered and question answers.
What are the likely outcomes of three regulatory options?
Consider three criteria to compare no regulations, detailed regulations, and WMP registration:
- Prevention: Percentage of facilities that will implement effective control measures in all water systems that can harbor and transmit Legionella bacteria
- The cost to government: Time, personnel, and financial burden to health departments or other government entities (taxpayers) to develop and enforce the regulation
- The cost to facilities: Time, personnel and financial burden
The percentage of facilities implementing effective Legionella control measures would likely remain low without regulations. Compared with WMP registration, detailed regulations with inspections might result in a slightly higher percentage of facilities complying but, based on studies of regulations, perhaps with less effective implementation and at a significantly higher cost.
Could facility operators cheat a simple WMP registration system, setting up an inadequate and ineffective WMP? Yes, but doing so would put them at risk for debilitating civil lawsuits and even criminal charges if their facility is implicated in a case of Legionnaires’ disease. Moreover, facilities that try to fudge WMP registration system would find a way to cheat detailed regulations as well.
Regulations aren’t needed for the organizations that have already established WMPs, or will soon, but that comprises a small percentage (5%?) of facilities. And regulations of any type will not bring effective prevention in the small percentage (5%?) of facilities that will do as little as possible to comply. The target group, then, is the 90% or so in the middle that wants to do the right thing but need to convince their managers to approve the money for it. They just need a nudge. If they are forced by principle-based regulations (e.g., WMP registration) to establish a WMP, they are likely to do it well. They don’t need regulations outlining details to follow.
WMP registration might yield even better prevention than detailed regulations since facility operators would be responsible for implementing defensible control measures. They would have to defend their WMP if questioned about its effectiveness. It’s easier to check boxes next to a list of regulated procedures than to defend what you have decided upon and created. Moreover, as happened with the nursing homes in Australia, building operators might take more interest and pride in a WMP for which they have ownership, using their creativity and intelligence to do it well.
Detailed regulations and inspections would be much costlier than WMP registration, with facilities as well as the regulating government agencies. WMP registration would likely result in significantly more risk reduction for the time and money spent and could be established much more quickly.
Where do we go from here?
The purpose of this article is not to propose a specific solution but to attempt to define the problem, discuss possible solutions, and invite your input. Perhaps agreement on the following three points can provide a foundation on which to begin a conversation:
- Nearly all cases of Legionnaires’ disease will be prevented by minimizing Legionella bacteria in domestic water systems, cooling towers, whirlpool spas, and decorative fountains.
- The ideal outcome is for a very high percentage of building operators to manage their water systems to effectively minimize Legionella—at the lowest possible cost to government agencies (taxpayers) and the facilities.
- Although implementing Legionella preventive measures is ultimately the responsibility of building operators, service providers, and health departments play an important role in maximizing prevention and minimizing costs.
Update: On 8/14/19, The National Academies of Sciences, Engineering, and Medicine released a report recommending all hospitals falling under the CMS memorandum routinely test for Legionella and that all public buildings — including hotels, businesses, schools, apartments, and government buildings — be required to implement water management programs (WMPs).
What do you think can be done to maximize prevention and minimize costs? Please leave a comment below.