Surgical Smoke: A Blueprint for Legislative Success

Staff Safety

By: Dan O'Connor

Published: 7/18/2019

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Two states now protect OR workers from surgical smoke. Could yours be next?


Jennifer Pennock is AORN's senior manager of government affairs, though lately a better title for her might be senior manager of smoke evacuation legislation efforts. There's lots of excitement around smoke evacuation legislation, and rightly so, and Ms. Pennock is right in the thick of the advocacy efforts, lobbying state legislators and other policymakers for mandatory smoke-free OR laws and educating them about the dangers of exposure to surgical smoke.

With new laws in Rhode Island and Colorado requiring hospitals and surgery centers to adopt and implement a policy that prevents human exposure to surgical smoke via the use of a smoke evacuation system for all planned procedures likely to generate surgical smoke, and a similar bill pending in Oregon, perioperative nurse advocates across the country are starting conversations with their legislators with an eye toward advancing similar legislation in their own states.

"After we came back from AORN Global Surgical Conference & Expo, everybody was really excited and wanted smoke-free laws passed in their state yesterday," says Ms. Pennock, only half-joking.

AORN spearheaded the Rhode Island and Colorado efforts, and is also leading the initiative in Oregon. The Rhode Island law went into effect on Jan. 1, 2019, and implementation for facilities reportedly has been smooth. Colorado's law is effective in May 2021, leaving hospitals and ambulatory surgery centers ample time to become compliant. Oregon's surgical smoke evacuation bill had its first hearing in May 2019, with a vote on the bill anticipated for Oregon's 2020 legislative session.

On the regulatory side, California's Division of Occupational Safety and Health (Cal/OSHA) convened a meeting on surgical plume in November 2018 and accepted comments on a proposed draft of regulations in January 2019. A second round of proposed regulations and public comment is expected from Cal/OSHA later this year.

A key lesson Ms. Pennock has learned thus far: legislation mustn't be overly prescriptive. Some rural facilities, for example, might object to the added cost of buying smoke evacuation equipment. Some surgeons might not like certain instruments they consider to be bulky or noisy.

"The language we use is, mandating that they have a policy in place for the evacuation of surgical smoke in hospitals and ASCs. We give hospitals and surgery centers the flexibility to choose the equipment that works for them in the manner that works for them," says Ms. Pennock.

What about my state?

BREATHE EASY Colo. Governor Jared Polis signing the bill that made Colorado the second state in the nation to require facilities to use smoke evacuation devices.

Ms. Pennock knows what you're thinking: What about my state? Her response: Be patient. "A lot of work has to be done over the course of 2-plus years just to get a bill to the governor's desk," she says.

The early pace has 1 state per year going smoke-free: Rhode Island last year, Colorado this year and Oregon likely next year. "It just doesn't happen overnight," says Ms. Pennock. "It's often a multi-year process to get a bill signed into law. You might be surprised by the length of time and the amount of work each law takes. We would love it if we introduced legislation in a couple of other states next year and put a team of lobbyists together and it went off without a hitch, but it's not possible to do it all at once. I'm not quite a one-man shop, but we only have so much bandwidth on the issue."

The key is knowing which states are ripe for legislative opportunities and which lawmakers are receptive to collateral talking points and fact sheets. It's an easy story to tell and sell. "You can't help but be disgusted at the thought," says Ms. Pennock. "Much like cigarette smoke, it's bad for you. You can see it, smell it. Unlike cigarette smoke, it's still in people's workplaces."

The roadblock, says Ms. Pennock, is that the few legislatures that allow carryover of legislation only let it convey from an odd year to even year — you wouldn't have to reintroduce the bill from 2019 to 2020, for example, but you couldn't carry it over to 2021. Also, it's often best to wait to introduce legislation if legislatures have shorter sessions because of an election year, says Ms. Pennock.

It wasn't ideal timing to introduce the Colorado smoke evacuation bill late in the 2018 legislation session, says Ms. Pennock now that she looks back. Officials were focused on addressing budget issues and didn't have enough time to address surgical smoke. "It's not necessarily a problem people are aware of," she says. This year, Ms. Pennock made sure the Colorado bill was introduced early so that it didn't get lost in the shuffle of contentious oil and gas bills, full-day kindergarten bills and background check bills. "It may have been overlooked," she says.

Grassroots advocates

So, yes, be patient. And be proactive. There's much you can do on your own to lay the groundwork for legislation. For example, if you've taken your facility smoke-free in the absence of legislation for mandatory smoke evacuation, Ms. Pennock can hold you out as an example to legislators and perhaps even enlist your help to testify.

"If a facility goes smoke-free, I'm empowered by their stories," says Ms. Pennock. "It helps my lobbying efforts to say, 'Look what this nurse did in her own facility.'"

Don't think you can speak before lawmakers? Think again, says Ms. Pennock. "Once advocates start speaking with legislators and policymakers, they're surprised to see how much they care about the issues that impact them," she says. "With nurses being one of the most trusted professions, when they speak to legislators, they really listen and their experience matters. It's always helpful to have those personal stories to share with legislators — especially those tug-at-your-heartstring stories."

What more can you do to pave the way for legislation? Familiarize yourself with the known dangers of inhaling surgical smoke. Identify a legislator who'd be a good sponsor. "The more grassroots advocates we have, the less that we'll need to do on our end so we can best use our resources and time," says Ms. Pennock. Invite a legislator to an informational meeting at your facility to talk about surgical smoke."You don't want to introduce a bill and introduce yourself at the same time," says Ms. Pennock.

Legislative approach

AORN's legislative approach is not complicated by design. The bills simply require hospitals and ASCs to adopt a policy requiring surgical smoke evacuation in those procedures likely to generate surgical smoke. How a facility decides to implement the policy and what equipment a facility uses is entirely up to the facility, says Ms. Pennock.

"We are finding health committees and legislators are most supportive when they know a bill will accomplish the goal — protecting healthcare workers from surgical smoke exposure — while allowing healthcare facilities the freedom they need to evacuate smoke with their preferred equipment," she says.

AORN's government affairs team recently created a Surgical Smoke Evacuation Legislation Checklist for surgical team members looking to mirror the Rhode Island and Colorado successes in their respective states. The goal of the checklist is to give AORN members and staff key steps they can take to lay the groundwork for successful legislative advocacy. Passing legislation is often a multi-year effort which begins with educating OR staff, legislators, state regulators and facility leadership. Successful legislative efforts also require strong relationships with stakeholder groups such as state hospital and ASC associations. For example, in Colorado, nurses were able to move the Colorado Hospital Association from opposed to supportive by working collaboratively to address hospital association concerns in the bill between legislative sessions.

AORN is looking to connect with advocates in multiple states to lay the groundwork for similar initiatives in 2020. "We've heard from members in more than half of the remaining states say that they want this legislation, and they will do whatever they can to help AORN pass surgical smoke evacuation legislation across the country. As we work together to lay the foundation for legislative success, we are excited about the opportunities that lie ahead," says Ms. Pennock. OSM

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