Why State Officials Hold the Keys to Preventing Legionnaires’ Disease
And ASHRAE 188 is the Best Standard for Regulations
by Matt Freije | May 3, 2018
Eight lessons learned from ASHRAE Standard 188, New York City cooling tower regulations, and the Centers for Medicare & Medicaid Services (CMS) Legionella requirement point to a strategy for preventing Legionnaires’ disease in the United States that is profoundly simple—and almost entirely dependent on state health officials:
1. Only a small percentage of facilities will implement an effective water management program (WMP) voluntarily.
Despite government and industry warnings since the 1990s that building water systems must be properly managed to reduce the risk of Legionnaires’ disease—and guidelines to explain how—only a small percentage of facilities have implemented preventive measures voluntarily.
The anticipated spike in prevention from the release of ASHRAE Standard 188 in June 2015 turned out to be only a blip, even after the Centers for Disease Control and Prevention (CDC) urged compliance with the standard.
Why building owners would object to WMPs is puzzling given the benefits versus cost. Whether it’s apathy, ignorance, or budget constraints, it would be foolish to assume more the same—education, guidelines and standards, articles, speeches, and conferences—will yield a different outcome. The reality is that most facilities have done only what is required.
2. Legionella regulations must be reasonable, with consequences for non-compliance.
Many building owners did not set up a cooling tower maintenance plan per New York City regulations prior to being inspected and fined. And, some healthcare facilities largely ignored the CMS Legionella requirement until Joint Commission began issuing citations for inadequate (or non-existent) WMPs.
How big does the stick need to be? Probably just a little bigger than the net cost of complying. It’s natural for people to weigh options. Even my kids, when they were younger, sometimes responded to commands by asking what the penalty would be for disobeying. They decided (usually) to obey after I assured them, in terms, they clearly understood, that the cost of disobedience would far exceed the cost of compliance.
Regulated procedures that are reasonable, beneficial and inexpensive relative to the cost of non-compliance are likely to be followed, which is one reason (discussed next) overly prescriptive regulations can be counter-productive.
3. Costly prescriptive regulations can be less preventive than simple, principle-based ones.
Prescriptive regulations—ones requiring a long list of detailed, specific procedures—are costlier to establish, monitor, and enforce than are principle-based (outcome-based) regulations. Moreover, although prescriptive regulations give more control over facilities, evidence indicates they can be less effective than principle-based rules. In a study of nursing homes, researchers were surprised to find that Australian principle-based regulations produced better results than detailed standards required in the United States.
For Legionella, we can compare New York City’s prescriptive cooling tower regulations with the CMS principle-based requirement.
In the short term, New York City regulations made a significant difference in cooling tower maintenance—building owners that had completely ignored cooling tower maintenance began addressing it. The longer-term result is not so clear. After NYC Health began requiring building owners to follow the department’s model cooling tower maintenance document, some owners that had set up a Legionella WMP for plumbing systems in addition to cooling towers—i.e., a more comprehensive plan—were fined because the document they presented to inspectors included many more procedures than listed on the department’s model form. Because of the fines, some of those facilities downgraded their WMP to eliminate plumbing system measures so they could present only the model plan to inspectors. For those facilities—the ones really trying to reduce Legionella risk associated with all their building water systems—the box-checking regulations hindered prevention.
By contrast, the CMS principle-based regulation—simply requiring a WMP that follows ASHRAE Standard 188 and “minimizes the risk of Legionnaires’ disease”—in less than one year has multiplied the number of hospitals and nursing homes implementing WMPs. As discussed in #4, however, for the CMS requirement and most other principle-based regulations to have maximum effectiveness, key performance parameters must be monitored.
4. A regulation based on ASHRAE Standard 188 must have measurable performance parameters.
Some hospitals and nursing homes have tried to pass off two pages of vague policies as a CMS-compliant WMP. If Joint Commission had not cited them for deficiencies, they may not have realized—or been convinced—it was inadequate.
A regulation based on ASHRAE 188 must include measurable performance parameters to ensure key elements of the standard are understood and implemented. A simple list will suffice, either in a checklist used by inspectors or, if inspections are not conducted, in an online registration portal.
5. Regulations should be based on a standard.
Evidence indicates one or more of three problems will occur if US states attempt to develop and mandate their own list of Legionella control measures instead of requiring compliance with a recognized standard: The regulations will take years to finalize, be too limited in scope (e.g., water system types), or be too burdensome and costly.
The speed with which New York City established Legionella regulations for cooling towers following the July 2015 outbreak was impressive, but they could not have done it nearly as fast or well if they had tried to include procedures for domestic water (plumbing) and other building water systems. Developing regulations only for cooling towers will provide inadequate protection. Regulations for all building water systems are beyond the capabilities of state health departments.
Moreover, if several states were to develop their own version of Legionella WMP requirements, the cost of compliance would be overly burdensome for building owners and service providers operating in multiple states. The higher cost would result in box checking, corner cutting, and ultimately less prevention (see #3).
Even the minuscule differences between New York State and New York City cooling tower regulations caused confusion for building owners and service providers (e.g., water treatment companies) trying to make sure they were complying with both.
Water treatment companies, industrial hygiene firms, and consultants that provide WMP set-up services will have to charge more money if multiple states develop their own regulations because each project will take more time. This will increase the burden and cost for all parties, with no prevention benefit.
Regulations based on a standard are much lower in cost for the regulatory agency, too. There’s no need for updating procedures, as that is handled by the publisher of the standard. And, as discussed next, a standard-based regulation can be established quickly.
6. Regulations based on a standard can be established quickly.
CMS simply issued a memorandum stating that hospitals and nursing homes must implement a WMP that reduces the risk of Legionnaires’ disease.
The entire memorandum was less than 3 1/2 pages, most of which provided background information. The directive itself consisted of only three sentences.
Three sentences!
With what seemed like the stroke of a pen, CMS did more to increase Legionella prevention in hospitals and nursing homes than had been accomplished with decades of guidelines, warnings, standards, articles, speeches, conferences, seminars, and e-courses.
However, CMS could not have established the requirement so simply or quickly without a standard (ASHRAE 188) to reference as a guide for WMPs.
7. State health officials hold the keys to Legionella prevention.
Since regulations are needed for facilities to implement WMPs, state officials hold the keys to preventing Legionnaires’ disease since states are the entities most likely to regulate.
The CDC won’t establish regulations. It has influence but does not issue regulations.
The US Environmental Protection Agency (EPA) focuses on water distribution up to the street tap, not on systems within buildings.
Water treatment professionals, engineers, and consultants can continue talking about better methods and procedures. That’s valuable. We need to keep learning. But the information won’t prevent disease unless it changes the way building water systems are designed, operated, and maintained.
Ultimately, then, it’s up to health departments or other state agencies.
8. ASHRAE Standard 188 is the best five-year option.
ASHRAE 188 is the best standard on which to base Legionella regulations, at least for the next five years. Why?
- It’s ready. Waiting for a “better” standard—which would likely take at least five years start to finish—would cost health and life.
- It’s in continuous maintenance. ASHRAE (the American Society of Heating, Refrigerating and Air-Conditioning Engineers) has a formal process for accepting and considering comments and has already made changes to Standard 188 based on comments received.
- Standard 188 outlines the essential elements and framework for a WMP. States can monitor documentation for specific procedures and performance criteria they deem imperative.
- ASHRAE has proven trustworthy. A water management standard will have little impact if it cannot serve as the basis for regulations (Lesson #1). For a standard to be regulation-worthy, its publisher cannot be tainted by financial conflicts of interest. ASHRAE has not exploited Standard 188. It charges for the standard document, which is reasonable, and has offered a seminar on it, but does not charge for services required to comply with the standard. Moreover, ASHRAE has not partnered with or promoted any particular company providing such services. This issue is crucial to the long-term success of Legionella prevention because state governments cannot establish or continue regulations based on a standard tainted by financial conflicts of interest.
A Five-Year Strategy
The eight lessons indicate the best available five-year strategy for minimizing cases of Legionnaires’ disease is for states to require building owners to implement a water management program that includes the essential elements outlined in ASHRAE 188, report key performance parameters, and pay fines for non-compliance.
The CDC apparently had the insight to know what was needed before the above eight lessons unfolded over the last two years, advising state and local officials, in its June 2016 Vital Signs article, to “consider changing building and public health codes to include Legionella water management programs.”
But none have, except for New York State and New York City. (Update 7/13/20: Regulations have passed in the State of Virginia and are pending in Illinois and New Jersey, and in Vancouver, BC, Canada.)
How many people suffer and die from Legionnaires’ disease in the United States over the next five years will be determined by the utilization of knowledge, technology, and services already available. The power to prevent is in place but only state officials can flip the switch.
Will you write your state’s governor and top health official, urging them to establish a regulation requiring building owners to comply with ASHRAE Standard 188? Please comment below to let me know and to encourage others to do so.
Update 5 June 2018: This article has been reprinted with permission by Building Operating Management and Facility Executive magazines. You may leave comments there as well.
Thanks for this article, Matt. This is what I am going to write to my governor in Ohio:
Dear Governor Kasich,
Establishing a simple regulation requiring building owners to implement water management programs in compliance with ANSI/ASHRAE Standard 188-2015 would be a good investment of Ohio tax dollars. It would reduce suffering from Legionnaires’ disease and other infections caused by waterborne bacteria, and reduce healthcare costs. Evidence of the need is outlined in the article at here: States must require ashrae 188 to prevent legionnaires disease.
Thank you,
Grace Graham, MPH
Thank you Grace!
Thank you for the article, and the practical approach to implementation of regulation that could save lives. Legionnaires’ disease has been extensively studied and the industry has expended countless volunteer hours to develop ASHRAE 188, and other references, that can be quickly deployed to minimize the risk associated with the disease. However, we still encounter resistance to implementing water management plans.
You’re not alone, Tony. I hear the same from other water treatment companies trying to do what’s best for their customers. Thanks for your comments
I agree.
No additional comments.
Thanks Rose!
The analogy to consequences of inaction by your children rings true.
I see over and over again, the first steps are taken on creating a WMP. then, they balk at the costs or fail to implement what was a good idea when CMS came out.
BTW, LAMPS is superior to the what we see the competition selling.
Thanks Bill. It’s true that the response to principle-based regulations like the CMS Legionella requirement are not always optimum, especially at first, but in time most facilities will work out the kinks and implement control measures well–sooner and more effectively than they would with prescriptive regulations. Thank you for the encouraging comments about LAMPS.
I agree with this article, Matt. Lives should always be the utmost priority rather than costs and having the government require building owners to comply with ANSI/ASHRAE Standard 188-2015 is the best solution to stop/minimize Legionaries Disease or other water born pathogens.
Thank you Greg!
Matt,
Thank you for a thoughtful and well-argued article and video. I have posted a link to both to the Governor of Delaware, John Carney and the Secretary of the Delaware Dept. of Health and Human Services, Dr. Kara Odom Walker. The text of the message to both follows. Anyone that wishes to copy and use my simple words to their public officials may certainly do so.
Richard C. Mason
I urge you to research and understand the impact on public health of Legionella. I further urge you to research and understand the simple, standards-based prevention measures that could and should be applied to facilities in the First State in order to prevent Legionella based illness and death. I understand that our State like many others faces many issues that beg to be resolved. Some are simple, and some are much more complex. Preventing illness and death due to Legionella in building water systems is one of the simple issues that can be resolved and will result in healthier buildings and healthier citizens.
I am including a link to a short article and video presented by Mr. Matt Freije, an expert in the field. His words state the problem and solution much more succinctly than I am able.
Thank you for taking the time to look into this important issue facing the First State.
Sincerely,
Richard C. Mason
Frankford, DE
Thank you, Richard! I think your message to the officials is well worded. Just replace the URL with this, more direct one:
Matt,
Very well done and timely. Expenses from personnel, education, training, monitoring, sampling and follow- thru are of real concern, specially for those customers that have multiple systems. It will s the single most objection or reservation I face. I really hate getting the government involved because they will make it even more costly. I don’t have the answer but government is not the solution.
You make a good point, Chick. For facilities like your large university customer that are voluntarily implementing a good water management program, regulations are unnecessary and just increase their cost. If all facilities, or even most, would voluntarily manage their water systems to minimize risk, it would save everyone money, including the government agencies. If only.
Thanks for the article I am a survivor and ther was no help in my instance so I will lobby#single family dwellings can be dangerous as well!
True! I hope you have recovered fully. Thank you for commenting, Tawana
As always Matt you comments are thoughtful, organized and on target. Well done.
Thank you, Tim. Much appreciated.
Matt
Great article
I am working with groups in Canada and the US who suffer from MAC, these people truly understand the dangers of inhaling bacteria as it spells the beginning of the end for them. In talking to them in group calls we discuss all the possible areas of concern to include the health of their building water supply.
On our next call we will discuss the groups support on writing to the proper health and government agencies – Excellent idea Matt
Thanks for your work, Tom. And your comments.
Dear Governor Cuomo:
Back in the 90s, I recall being astonished by the complacency and dearth of US regulation when it came to the prevention of Legionnaires’ Disease (the British government had already published a strict, enforceable guideline which held individual stakeholders accountable, some even spending time in prison). However, it would take many more years, outbreaks, and preventable deaths, before the (optional) ASHRAE 188-2015 Standard would eventually be released (and what an anti-climax that was!).
While overregulation is to be avoided, when it comes to issues of life and death, I believe there can be no place for ambiguity. Government does not shy away from mandating and enforcing the wearing of seat-belts. Why not do the same to avoid loss of life due to a preventable, debilitating disease like Legionellosis?
There is no need for Government to reinvent the wheel, however. Simply embracing the existing ASHRAE-188 Standard as a workable, enforceable standard would go a long way to saving many lives in New York. There is a great opportunity here for the Regulators to inspire, through positive leadership, Building-Owners to know what the right thing to do is and to do it. And while there should always be consequences for noncompliance, there is also a great need for positive reinforcement and support. When a regulatory Inspector doles out a violation to a Building- Engineer for taking a water sample incorrectly, it behooves her to simultaneously inform her as to how it should be done. And when it comes to issues of Public Health & Safety, the need for additional regulation should not be viewed as merely another opportunity to generate revenue. Likewise, Government must surely avoid embracing standards that are tainted by commercial/other vested interest.
Good job! I like how you emphasized teamwork between government regulators and building owners.
Matt;
Thank you for this great synopsis. It is unfortunate that all too often what it takes to produce regulatory action is some sentinel outbreak such as occurred in NYC in 2016 which ultimately led to the NY Legionella regulations for healthcare facilities and building cooling towers. It is a very sad commentary that lives must be lost and people must suffer from this horrendous disease in order to get state regulators to focus on this issue. Every year I wait for the next big Legionella outbreak wondering whether that outbreak will precipitate a change in that particular state’s regulations. I think it is important for everyone to continue to raise awareness about this issue and as an attorney I will continue to raise awareness in the risk and liability world to produce needed change.
Thank you, Russ. I think the regulations will come soon. The state health officials I know really care and want to prevent Legionella infections and now they have a standard (ASHRAE 188) to adopt.
As a water treatment personal, I always wonder about the regulations and laws implemented to prevent Legionella by using Oxidizer on daily basis. However we all know that Legionella resides under biofilm and removal of biofilm is more important than maintaing free halogen in the system. Biofilm can be easily removed by surface active agent (bio-dispersant) if we bring the surface tension of water down enough and regulating authority must implement use of proper dose of bio-dispersant which can penetrate biofilm effective by reducing surface tension of water at a level so biofilm can disrupt and biocide can effectively kill bacteria and Legionella.
Thank you for the recommendation, Pragnesh. It seems like regulatory authorities would prefer to require a specific outcome (e.g., Legionella results) rather than dictating the water treatment and other methods for reaching the outcome, but I don’t know. In any case, knowledgeable people like you are needed to get the job done. Thanks again
Matt, Right on track with your video and comments. Great info to keep in mind as head to Baltimore for the NSF Conference.
Thanks Tom!
Thank you for putting this together, Matt; I will certainly communicate to the State of Vermont authorities. I believe the 8 lessons hold true and that first lesson drives the rest – most people are well-intentioned, but often the combination of lack of awareness coupled with budget constraints prevent effective WMPs. Without seeming too self-serving (ASI is an ELITE certified testing lab), I also think a moderate amount of routine Legionella monitoring is an essential part of the WMP to validate that the WMP, as implemented, is effective.
Thanks Paul. I would be interested in knowing the percentage–which I assume no one knows–of facilities implementing a comprehensive WMP that are testing for Legionella to validate it. My perception is that most facilities sincerely trying to reduce Legionella risk with a comprehensive WMP are testing for Legionella to validate their efforts. But I have no idea what the percentage is.
Matt,
Your comments succinctly and diplomatically point out what is wrong with the current uproar in the industry. The fact that so many people from two organizations have come out against the actions of one is an indications that there is a relationship that doesn’t pass the appearance of a conflict of interest. That alone is reason enough to questions the actions.
Thanks David!
Well done, Matt. I think your argument is sound and the need to press forward with regulators is urgent. 188 does provide them the tools to quickly and efficiently apply a standard that can save lives. I will pass this message along.
Thank you, George!
Matt,
Thanks for the great overview on the importance of new state regulations for the implementation of ASHRAE Standard188 in the prevention of Legionnaires’ disease. Having worked with ASHRAE committees for 25 years now in the writing of Standard 188, and Guideline 12 before it, I understand the passion of ASHRAE to incorporate the very best engineering and scientific principles into their standards, along with an equally passionate view toward eliminating, or balancing, financial conflicts of interest. Thus, it is important that we get the State Legionella regulations done, but also important that they be done correctly, and free from financial exploitation. Thus, the widespread implementation of Standard 188 has my full support, and I will certainly be adding my energy and expertise to the fight.
You have already given so much energy and expertise to the fight, Dick! A countless number of people have been spared illness because of your research, conference presentations, committee service, papers, and laboratory services. Thank you!
Matt,
Great article! Thank you for continuing to educate us on the hazards of Legionnaire’s Disease and the drive for minimization . Excellent point with regard to ASHRAE 188 standard that took over 10 years to develop without being pressured or influenced by a specific entity or political position.
Thank you, Bruce!
Legionella, and “enforcement” of ANSI/ASHRAE 188 will not be done at a regulatory level because the barriers owners have in influencing regulation. State regulators still do not grasp the technical nuances that this is not a cooling tower (or hot/cold) water problem; its an all-water problem. Enforcement will be a function of insurance companies carving out language as a separate issue in polices and the plaintiff’s bar dragging the willfully ignorant into court. Until and unless a comprehensive management plan costs less than the consequences of not having one, this will not change.
Thanks for sharing your views, Dane!
Great article! Very informative and concise. As an HVACR and Safety Training Instructor, I agree with the idea of adopting ASHRAE 188 into state and local codes. Until codes are established, response to suggestions will produce minimum results in protecting the public.
However, the key element to this crisis is educating building owners and the public about the enormous problem of an aging water infrastructure and the immediate actions necessary for building owners to protect their water systems.
Hence, better maintenance, more frequent and better water testing for chemicals, bacteria and metals in their water systems. Water chemistry and cleanliness directly affects the ability of biocides to kill bacteria. So it’s important to maintain and renovate existing piping systems inside your facility to deal with the almost unavoidable intrusion of naturally growing bacteria in the municipal water supply. Addressing legionella after the fact is not the answer! Proactive approaches are crucial in prevention of Legionellosis.
The United Association of Plumbers, Pipefitters, Sprinklerfitters and Service Techs, along with the ASSE (American Society of Sanitary Engineering) is taking a proactive approach by administering Water Quality Program courses to its members and contractors so they can be trained in Building Water Management guided by ASHRAE 188, ASHRAE 12-2000, the CDC toolkit, the CMS Mandate and the new ASSE International 12000 certification.
This education and training will help building owners find qualified companies who will be capable of becoming important members of a Water Management Team as recommended by the CDC.
Thank you for your comments, Manuel. I agree a proactive approach is needed. It’s good those organizations are offering and encouraging building water management education.