THIS CASE IS NOT A FINAL ORDER OF THE REVIEW COMMISSION AS IT IS PENDING
COMMISSION REVIEW
United States of America
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1120 20th Street, N.W., Ninth Floor
Washington, DC 20036-3457
SECRETARY OF LABOR,
Complainant,
v. OSHRC DOCKET NO. 17-0737
UHS OF WESTWOOD PEMBROKE, INC.,
UHS OF DELAWARE, INC.,
Respondents.
Appearances:
Kate O’Scannlain, Solicitor of Labor
Maria S. Fisher, Regional Solicitor
Robin Ackermann, Senior Trial Attorney
Ralph Minichiello, Senior Trial Attorney
U.S. Department of Labor, Office of the Solicitor, Boston, MA
For the Complainant
Melanie L. Paul
Raymond Perez, II
Jackson Lewis P.C., Atlanta, GA
For Respondents
Before: Keith E. Bell, Administrative Law Judge
DECISION AND ORDER
Following its receipt of a complaint about workplace violence, OSHA commenced an
inspection of UHS of Westwood Pembroke, Inc.’s (“Pembroke’s”) facility located at 199 Oak
Street in Pembroke, MA (“Pembroke Hospital”). As a result of this inspection, Pembroke received
a Citation and Notification of Penalty (“Citation”) alleging it violated the Occupational Safety and
Health Act of 1970, 29 U.S.C. §§ 651-678 (the “Act”). The Citation alleges a violation of 29
U.S.C. § 654(a)(1), the provision commonly referred to as the general duty clause, for exposing
employees to the hazard of workplace violence in the form of patient on staff aggression.
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Pembroke timely contested the Citation bringing the matter before the Commission. The
Secretary of Labor (“Secretary”) filed his initial Complaint on April 27, 2017. He moved to amend
his Complaint to add UHS of Delaware, Inc. (“UHS DE”) as a Respondent and to change the
classification of the Citation from “serious” to “repeat.” This request was granted in an October
30, 2017 Order, after which Pembroke and UHS DE together became the Respondents for this
matter.
Subsequently, the Secretary moved again to amend abatement in the Citation and
Complaint. This request was uncontested and was approved in a December 13, 2017 Order. A
hearing was held on July 17-20, 2018 and July 24-25, 2018.
For the reasons discussed, the Citation is affirmed as serious and a $12,675 penalty is
assessed.
I. Jurisdiction
2
Pembroke filed a timely Notice of Contest bringing this matter before the Commission.
(Stip. 4-6.) Pembroke and its corporate parent, UHS DE, are both employers affecting commerce
1 The Joint Exhibit of the parties’ Stipulations indicates that: “Respondent timely filed its Notice of Contest on May
17, 2018.” (Ex. J-1, Sec’y Br. at 1; Tr. 194.) The undersigned accepts the acknowledgment that the Notice of Contest
was timely, but rejects the date listed in the Stipulation. The record reflects that the Secretary issued the Citation on
April 7, 2017, and Pembroke filed a Notice of Contest on April 12, 2017. Pembroke then filed an Answer to the
Secretary’s Complaint on May 17, 2017. (Resp’t Br. at 5.) The record does not reflect a document filed on May 17,
2018.
2 Stipulation 4 is: “The Occupational Safety and Health Review Commission has jurisdiction in this proceeding
pursuant to § 10(c) of the [Act].” Stipulation 5 is: “The Citation and Notification of Penalty underlying this proceeding
was issued on April 7, 2017.”
2
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within the meaning of 29 U.S.C. § 659(c) and both are employers under the Act. (Stip. 1, 10-13.)
Based upon the record, including the parties’ admission to jurisdiction, the undersigned concludes
the Commission has jurisdiction over the parties and the subject matter of this case. (Stip. 1, 4-6.)
II. Background
A. Corporate Structure
Pembroke operated three facilities at the time of the inspection: Pembroke Hospital,
Westwood Lodge, and Lowell Treatment Center. (Tr. 697; Ex. R-38 at 2.) While each facility
was located at a separate address, collectively the sites shared a license and were a single legal
business entity. (Tr. 723-24.) Pembroke is a wholly-owned subsidiary of UHS DE. (Stip. 12.)
UHS DE, in turn, is a wholly-owned subsidiary of Universal Health Services, Inc. (“UHS”). (Stip.
13.) Thus, UHS owns UHS DE and indirectly owns Pembroke. (Stip. 13; Tr. 752-53.)
UHS DE is described as a “management company” for Pembroke. (Tr. 740; Ex. C-27.) At
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the time of the inspection, Pembroke’s CEO and CFO were both employees of UHS DE. (Stip.
10-11; Tr. 598, 693, 757.) UHS DE employees provided oversight for the work of Pembroke’s
CEO and CFO. (Tr. 599, 696, 757-58, 1325, 1327-28.) In addition, Gina Gilmore, a Loss Control
Manager at UHS DE, handled Pembroke’s budget for workers’ compensation claims and visited
the facility every month. (Tr. 549-551.) During these visits, she would meet with Pembroke’s
CEO and attend the facility’s Aggression Reduction Team meetings. (Tr. 553-54.) The Director
3 Stipulation 1 states: “Respondents are employers engaged in a business affecting commerce within the meaning of
Section 3(5) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 6252(5).”
4 As explained by Stipulation 10, “Raymond Robinson, Gary Gilberti, Diane Airosus, and Gina Gilmore were
employed by UHS of Delaware, Inc. during the time of the inspection.” Thomas Hickey was the chief executive
officer (“CEO”) from the start of the inspection until January 21, 2017. (Tr. 692-93; Stip. 11 (“Thomas Hickey was
employed by UHS Delaware, Inc. during a portion of the time of the inspection.”)
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of Nursing, Claire Kent, and the Risk Manager, Stacey Coke Burns, were Pembroke employees
but also reported to individuals employed by UHS DE. (Tr. 369-70, 457, 497-98, 502.)
B. Respondents’ Request for Judicial Notice
In its brief, Respondents assert that the Secretary has pursued general duty clause violations
at “several other [UHS] managed hospitals.” (Resp’t Br. at 3.) Respondents fail to discuss whether
these other citations were issued to UHS DE or entities affiliated with Pembroke. However, in a
footnote elsewhere in the brief, Respondents ask the undersigned to take judicial notice of “other
Citations that have been issue to behavioral hospitals.” (Resp’t Br. at 33.) It requests judicial
notice of three specific cases:
Secretary of Labor v. BHC Northwest Psychiatric Hospital, LLC d/b/a Brooke Glen
Behavioral Hospital, (OSHRC Docket 17-0063), Secretary of Labor v. UHS of
Westwood Pembroke, Inc., d/b/a Lowell Treatment Center (OSHRC Docket 17-
1302 and 17-1304) and UHS of Delaware, Inc. (“UHS DE”) and Premier
Behavioral Health Solutions of Florida, Inc., d/b/a Suncoast Behavioral Health
Center (OSHRC Docket 18-0657).
(Resp’t Br. at 33.) The first matter listed concerns BHC Northwest Psychiatric Hospital (“BHC”).
Respondents do not explain how or if that entity is affiliated with them. Id. The undersigned is
aware that a matter involving BHC has become a final order of the Commission. However, BHC
is appealing the matter and the matter is currently pending before the D.C. Circuit. BHC Nw.
Psychiatric Hosp. LLC d/b/a Brooke Glen Behavioral Hosp., 27 BNA OSHC 1862 (No. 17-0063,
2019) (ALJ), argued, 19-1087 (D.C. Cir. Jan. 9, 2020).
Federal Rule of Evidence 201(b) permits judicial notice of a “fact” that is not subject to
reasonable dispute because it: (1) is generally known within the court’s territorial jurisdiction; or
(2) can be accurately and readily determined from sources whose accuracy cannot reasonably be
questioned. Even though Respondents do not discuss their affiliation with BHC, the undersigned
can and has reviewed the ALJ’s decision, BHC Nw. Psychiatric Hosp. LLC d/b/a Brooke Glen
4
Behavioral Hosp., 27 BNA OSHC 1862 (No. 17-0063, 2019) (ALJ). However, taking judicial
notice of a non-binding decision that is still on appeal is not appropriate.
As for the other two matters highlighted by Respondents, both are active disputes without
final determinations. As such, there are no established facts for which judicial notice is
appropriate. At the hearing, Respondents did not attempt to offer any evidence regarding the
relevance of these matters or how Premier Behavioral Health Solutions of Florida, Inc. is affiliated
with them. As a result, the Secretary was deprived of an opportunity to respond to these claims.
Further, Respondents assert that UHS DE had only a minimal role at Pembroke Hospital and asks
for the entity to be dismissed from this pending matter. (Resp’t Br. at 40.) Asking the undersigned
to now undertake a search of other citations issued to behavioral health centers is not the purpose
of judicial notice and the late request is denied.
The undersigned notes that the Secretary offered evidence of another citation issued against
Pembroke, the same employer cited in the present matter. That citation, which became a final
order on May 27, 2016, is a part of the record before me and has been considered in reaching this
decision. (Exs. C-14 thru C-17.)
C. Nature of the Workplace
Pembroke Hospital is an inpatient psychiatric hospital with six patient care units, serving
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up to 120 patients at a time. (Stip. 2-3; Tr. 290, 373; Ex. R-38 at 1, 8.) Four units focus on adults,
one is for adolescents, and the sixth is for geriatric patients. (Tr. 373.) Nurses and Mental Health
Associates (“MHAs”) work directly with patients in the units. (Tr. 669, 821-824.) Units always
have a registered nurse. (Tr. 380.)
5 Stipulation 2 states: “Pembroke Hospital is an inpatient psychiatric hospital.” Stipulation 3 states: “Pembroke
Hospital has six patient care units with a total of 120 beds.”
5
The MHAs at Pembroke Hospital have many responsibilities, including providing security
and fulfilling housekeeping responsibilities. (Tr. 50-52, 96.) The nurse on the unit could not see
patients from his or her workstation. (Tr. 58.) So, the MHAs functioned as the “eyes and ears of
the nursing staff” and were responsible for monitoring patient behavior, including for signs of
aggression or agitation. (Tr. 50.) MHAs searched patient belongings to identify prohibited items
that could hurt patients or staff. (Tr. 79, 81, 86.) MHAs conducted these searches alone in small
rooms on the unit. (Tr. 79, 81.) MHAs had to make sure certain doors remained locked. They
would open and close bathrooms when requested by patients, which might occur fifty times a shift.
(Tr. 55, 827.) MHAs also accompanied patients off units for certain meetings, fresh air breaks,
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and meals. (Tr. 55-56.) If a patient was unable to leave the unit for meals, an MHA would leave
the unit instead and get the patient’s meal. (Tr. 52.) MHAs also left the units for laundry and
other housekeeping tasks. (Tr. 50-54, 96.) Consequently, while more than one MHA was assigned
to each unit, the staff was often divided between those on the unit and those off the unit. (Tr. 822,
863.)
D. Prior OSHA Inspections of Pembroke
About a year before the inspection leading to the Citation before the undersigned, OSHA
inspected Pembroke Hospital. (Ex. R-38.) That inspection led to the issuance of a letter on
October 2, 2015, which indicates that MHAs were exposed to workplace violence hazards but that
“it is not considered appropriate at this time to invoke the Section 5(a)(1), the general duty clause
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of the [Act].” (Ex. R-37 at 2 (emphasis added).) The letter does not state that OSHA considered
6 Mealtimes themselves were a “very high time for assault” at Pembroke. (Tr. 960; Exs. C-55 at 2, C-58 at 2.)
7 Respondents neglect to note the critical phrase “at this time” when discussing this document. (Resp’t Br. at 21.)
6
workplace violence hazards to be outside of the scope of the general duty clause. (Resp’t Br. at
8
21.) Rather, OSHA exercised its discretion to issue a letter at the end of the investigation. The
letter goes on to outline several methods of feasible abatement for workplace violence hazards
9
Pembroke could adopt, but does not demand any specific action. (Ex. R-37.)
After the letter was issued, OSHA commenced an inspection of Pembroke’s facility in
Lowell, MA (the Lowell Treatment Center). After the inspection, the Secretary issued Pembroke
a citation for a violation of the general duty clause because it exposed employees to workplace
violence in the form of, among other things, patients assaulting staff through punches, kicks, bites,
scratches, and hair pulling. (Exs. C-14, C-15 at 2, R-38 at 2.) While Pembroke initially contested
the citation, it subsequently agreed to accept it as issued and agreed to take several abatement
actions to address the workplace violence hazards at the Lowell Treatment Center. (Ex. C-15.)
E. Current Inspection
In October 2016, OSHA received another complaint about worker safety at Pembroke
Hospital. (Tr. 277; Ex. C-8.) The complaint cites a worker injury following an instance of patient
aggression. (Ex. C-8.) This complaint led OSHA to commence another inspection of Pembroke
Hospital. (Tr. 277.) OSHA Compliance Safety and Health Officer Salvatore Insogna (“CO”) led
the investigation. Id. He first visited the site on October 11, 2016. (Tr. 342.) In addition to the
initial complaint triggering the investigation, OSHA received a second complaint on March 27,
8 There is no evidence that the conditions, particularly those related to the cited hazard, were the same during the two
inspections. For example, the number of staff injuries increased in the year after this letter was sent. (Exs. C-60; C-
68, C-69; R-38 at 3.)
9 After the 2015 inspection, but before the one which led to the present matter, OSHA conducted another inspection
of Pembroke Hospital. That investigation commenced after OSHA received two employee complaints alleging several
hazards related to workplace violence. (Ex. R-38 at 1-2.) Pembroke Hospital participated in the investigation,
including by answering questions and providing responses to various document requests. Id. at 3-5. Ultimately,
OSHA closed this inspection on August 4, 2016, without issuing any citations. Id. at 5.
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2017. (Ex. C-11.) Like the prior complaint, the second one cites employee injuries from
workplace violence in the form of assaults by patients against staff. Id. The CO’s investigation
included a review of documents related to employee injuries and illnesses, and interviews with ten
or more non-management employees. (Tr. 290-92, 297; Ex. C-68.) When the investigation
concluded, the Secretary issued the Citation that is the subject of this litigation.
III. Legal Standard
A. Due Process Claims
Respondents claim that the Citation’s issuance violated due process. (Resp’t Br. at 19.)
The Commission ensures that OSHA provides due process by upholding violations of the general
duty clause only where the employer or its industry recognized the hazard before the citation was
issued. The inquiry is whether the employer or its industry could reasonably foresee an accident
capable of causing death or serious injury. Armstrong Cork Co., 8 BNA OSHC 1070, 1074 (No.
76-2777, 1980), aff'd, 636 F.2d 1207 (3d Cir. 1980) (unpublished). Knowledge of the hazard
provides adequate notice to satisfy the requirement of due process. See e.g., Cape & Vineyard
Div. of New Bedford Gas & Edison Light v. OSHRC, 512 F.2d 1148 (1st Cir. 1975) (finding that
actual knowledge of the hazard provides fair notice); Bethlehem Steel Corp. v. OSHRC, 607 F.2d
871, 875 (3d Cir. 1979) (finding that fair notice is addressed by the requirement that the hazard is
recognized); Babcock & Wilcox Co. v. OSHRC, 622 F.2d 1160, 1164 (3d Cir. 1980) (concluding
that either the employer or its industry must be aware of the hazard).
Respondents raise no challenges to how the Secretary defined the hazard here or
Pembroke’s recognition of both the hazard and its presence at Pembroke Hospital. Indeed, they
stipulated that the “hazard of workplace violence, specifically defined in this case as violence
8
and/or assault by patients against staff, was recognized by [Pembroke].” (Stip. 8.) And they
stipulated that the “hazard of workplace violence, specifically defined in this case as violence
and/or assault by patients against staff is recognized in the industry.” (Stip. 9.)
Even if Pembroke had not stipulated to the definition and recognition of the hazard, the
record still provides ample support for such findings. Patient attacks on employees routinely
occurred at Pembroke Hospital. (Exs. C-8, C-11, C-68.) One employee indicated he was hit or
kicked approximately fifty different times by various patients in his four years working for
Pembroke. (Tr. 56-57.) See Gen. Dynamics Land Sys. Div., Inc., 15 BNA OSHC 1275, 1285 (No.
83-1293, 1991) (accidents put the employer on notice of the hazard), aff’d, 985 F.2d 560 (6th Cir.
1993) (unpublished). Pembroke was aware of these events through accident reports employees
could choose to complete after incidents and through the direct knowledge of supervisors, some
of whom were exposed to the hazard themselves. (Tr. 794, 802; Exs. C-55, C-56.)
Moreover, Pembroke had specific and direct knowledge of the Secretary’s view that the
general duty clause applied to the hazard of workplace violence. On May 19, 2015, Pembroke was
cited for violating the general duty clause because its employees “were exposed to acts of
workplace violence.” (Ex. C-14.) This citation was issued in 2015 and became a final order on
May 27, 2016, months before the commencement of the inspection and issuance of the present
citation. (Exs. C-15 thru C-17.) So, Pembroke accepted responsibility for a violation of the general
duty clause based upon the presence of the hazard of workplace violence before the investigation
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leading to the instant Citation commenced. This establishes direct notice of the applicability of
10 This citation related to the Lowell Treatment Center. After this Pembroke’s acceptance of this citation, another
inspection of Pembroke Hospital concluded without the issuance of any citations. (Ex. R-38 at 5.) However, OSHA
never indicated there were no hazards at Pembroke Hospital or that Pembroke did not have a duty to provide its
employees with a workplace “free from recognized hazards that are causing or are likely to cause death or serious
physical harm.” 29 U.S.C. § 654(a)(1).
9
the general duty clause to workplace violence hazards at Pembroke’s facilities. See Corbesco Inc.
v. Sec'y of Labor, 926 F.2d 422, 428 (5th Cir. 1991) (holding notice is provided through
Commission decisions); Armstrong, 8 BNA OSHC at 1073 (finding that the employer itself
recognized the hazard because it took an abatement action).
Besides Pembroke’s direct knowledge, the Secretary provided other evidence that the
industry was on notice of the hazard. First, there is no dispute that experts familiar with the
industry would take the hazard of workplace violence into account in prescribing a safety program
for a behavioral health hospital. See Nat’l Realty & Constr. Co. v. OSHRC, 489 F.2d 1257, 1266
(D.C. Cir. 1973). Experts for both parties recognized that any risk assessment of a facility like
Pembroke Hospital would include assessing workplace violence and the hazard would be relevant
to any safety program. (Tr. 903, 915-17, 1455.) Second, OSHA published guidance documents
to inform the industry of the hazard and ways to address it. In 2015, it published Preventing
Workplace Violence: A Road Map for Healthcare Facilities (“Road Map”). (Ex. C-102.) The
Road Map describes the problem of workplace violence in healthcare facilities and provides
information on how to identify hazards and respond to risks identified. Id. The Road Map is
related to an earlier OSHA publication, Guidelines for Prevention of Violence in Healthcare
(“Workplace Violence Guidelines”). (Exs. C-97, C-102 at 4.) Neither the Workplace Violence
Guidelines nor the Road Map constitute specific standards. At the same time, the documents do
not suggest that there is some type of immunity from citation for failing to free a workplace of
recognized hazards, as the general duty clause requires. Id. These OSHA publications bolster the
uncontested point that Pembroke and its industry are aware of the hazard.
Perhaps in recognition of its actual awareness of both the hazard and its presence at
Pembroke Hospital, Respondents suggest another due process test. (Resp’t Br. at 20.) They argue
10
the Citation failed to set forth the “specific actions” to be taken so that Respondents can avoid
future citations. Id. Respondents argue they must have notice of the Secretary’s views regarding
appropriate abatement before a citation can be issued. Id. at 20-21, 23.
Respondents attempt to conflate the due process fair notice requirement, which is driven
by Constitutional constraints, with the abatement requirement, which is a statutory interpretation
created by binding precedent. The Constitution precludes depriving “any person of life, liberty,
or property, without due process of law.” U.S. Const. amend V. The Commission sets forth
requirements to ensure that proceedings before the Commission provide due process. For example,
the citation must sufficiently define the hazard and the abatement so that the employer can
reasonably defend itself. The Secretary must make the employer aware of what he alleges are
feasible means of abatement prior to the hearing, but the Commission has not required such
information before the issuance of a citation. See Erickson Air-Crane Inc., No. 07-0645, 2012 WL
762001 (O.S.H.R.C, Mar. 2, 2012). In Erickson, the Secretary proposed various abatement
methods but the ALJ concluded that none of the proposed methods were feasible. Id. at *2-3.
Nonetheless, the ALJ went on to determine that the hazard could be feasibly abated through some
other action. Id. The parties had neither tried nor consented to try whether that action was feasible.
Id. The Commission considered this a due process violation because the pleadings did not put the
employer on notice that the alternative abatement method was at issue. Id. Notice must be given
before the record closes as to what is being considered feasible means of abatement. Id. The
Commission did not hold that the employer must know before the citation’s issuance what
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constitutes feasible means of abatement. Id.
Respondents cite cases where the parties disputed the presence of a hazard, the employer’s
recognition of it, or are otherwise not relevant to the due process issues before me. (Resp’t Br. at
20-21.) Respondents rely on Asamera Oil (U.S.), 9 BNA OSHC 1426 (No. 1426, 1980)
(consolidated), a non-binding ALJ opinion addressing a specific standard, not the general duty
clause, and a non-binding Ninth Circuit decision, Donovan v. Royal Logging Co, 645 F.2d 822
12
(9th Cir. 1981). See Asamera, 9 BNA OSHC at 1427 (affirming the ALJ’s decision but according
it only “the precedential value of an unreviewed judge’s decision”); Integra Health Mgmt., Inc.,
27 BNA OSHC 1838, n.15 (No. 13-1124, 2019) (noting that Royal Logging is “not relevant
precedent” for cases, like the present matter, that cannot be appealed to the Ninth Circuit).
Respondents’ reliance on Davey Tree Expert Co., 11 BNA OSHC 1898 (No. 77-2350, 1984) is
also misplaced. (Resp’t Br. at 24.) Unlike that case, in this matter, Respondents explicitly chose
13
not to contest the Secretary’s definition of the hazard or Pembroke’s recognition of it. (Stips. 7-
9.) Here, Pembroke recognized the hazard of patient on staff violence and knew this hazard was
present in its facility. (Stips. 8-9.)
The recognition requirement relates to “knowledge of the hazard, not recognition of the
11 A.H. Sturgill Roofing, Inc., 27 BNA OSHC 1809 (No. 13-0224, 2019) is also instructive. There, the citation was
somewhat ambiguous about the scope of the proposed abatement. 27 BNA OSHC 1818-19. However, before the
record closed, the Secretary subsequently clarified it. Id. The Commission did not require the Secretary to show that
the employer understood the proposed methods of abatement before the citation was issued. Id. The Commission
was satisfied that during the hearing the Secretary made clear that the measures in the citation were alternative means
of abatement. Id.
12 This case can be appealed to the First and D.C. Circuits. See 29 U.S.C. § 660(a) (“Any person adversely affected
or aggrieved by an order of the Commission ... may obtain ... review ... in any United States court of appeals for the
circuit in which the violation is alleged to have occurred or where the employer has its principal office, or in the Court
of Appeals for the District of Columbia Circuit ....”); Kerns Bros. Tree Serv., 18 BNA OSHC 2064, 2067 (No. 96-
1719, 2000) (Commission generally applies law of circuit where it is probable case will be appealed).
13 Respondents also quote the discussion in Missouri Basin Well Service, 26 BNA OSHC 2314 (No. 13-1817, 2018)
about how the hazard must be defined and attempt to apply the statements more broadly. (Resp’t Br. at 20, 28.) In
this matter, there is no dispute as to how the hazard is defined or Pembroke’s recognition of it.
12
means of abatement.” Kansas City Power & Light Co., 10 BNA OSHC 1417, 1422 (No. 76-5255,
1982), citing Gen. Dynamics Corp., Quincy Shipbuilding Div. v. OSHRC, 599 F.2d 453 (1st Cir.
1979). See also Brock v. L.R. Willson & Sons, Inc., 773 F.2d 1377 (D.C. Cir. 1985) (noting in the
context of a violation of a specific standard that “The constitution does not require that employers
be actually aware that the regulation is applicable to their conduct”). Fair notice challenges to a
general duty clause citation fail when the abatement measures are available to and readily
knowable by the industry. Integra, 27 BNA OSHC 1851 at n.15. Like the abatement measures in
Integra, the abatement measures proposed for Pembroke track the Workplace Violence Guidelines
and Road Map as well as those specified in a letter issued to Pembroke after a previous inspection.
Id. The Secretary set forth specific abatement measures and Respondents were informed of them
in advance of the hearing. The Secretary’s Amended Complaint sets forth his proposed abatement
and there is no allegation that Respondents were not aware of his proposal well before the hearing.
The feasibility of the specific measures discussed herein was tried with the full consent of the
parties. (Jt. Pre-Hr’g Stmt. at 16.) See Beverly Enters., 19 BNA OSHC 1161, 1168-69 (No. 91-
144, 2000) (consolidated) (excusing a lack of precision in the complaint because, “at the time of
the hearing” the Secretary sufficiently specified the alleged hazard).
Respondents then take another tack and argue that because they were not cited after prior
inspections, they lacked fair notice they would be cited in the future. (Resp’t Br. at 21-22.)
Respondents make this argument without citation to precedent. Id. An employer cannot deny the
existence of a hazard or its knowledge of it “by relying on the Secretary's earlier failure to cite the
condition.” Seibel Modern Mfg. & Welding Corp., 15 BNA OSHC 1218, 1244 (No. 88-821, 1991).
Employers must comply with the Act regardless of whether they have been previously informed
that a violation exists. Id.
13
Respondents claim that the Citation, including the Secretary’s proposed abatement,
14
violates the Constitution is rejected.
B. Test to Establish a General Duty Clause Violation
The general duty clause requires every employer to provide its employees with a workplace
“free from recognized hazards that are causing or are likely to cause death or serious physical
15
harm.” 29 U.S.C. § 654(a)(1). As interpreted by the Commission, to establish a violation of this
clause, the Secretary must show: (1) there was an activity or condition in the employer’s workplace
that constituted a hazard to employees; (2) either the cited employer or its industry recognized that
the condition or activity was hazardous; (3) the hazard was causing or was likely to cause death or
serious physical harm; and (4) there were feasible means to eliminate the hazard or materially
reduce it. Waldon Health Care Ctr., 16 BNA OSHC 1052, 1058 (No. 89-3097, 1993). The
evidence must also show the employer knew, or with the exercise of reasonable diligence, could
have known of the hazardous condition. Otis Elevator Co., 21 BNA OSHC 2204, 2207 (No. 03-
1344, 2007).
Despite agreeing that Waldon sets forth the test for finding a violation of the general duty
clause, Respondents, citing National Realty, argue that the Secretary must meet various other
14 Separate from these Constitutional considerations is the requirement for the Secretary to establish feasible means
of abatement. The requirement is not set forth in the text of the general duty clause itself. 29 U.S.C. § 654(a)(1). See
e.g., SeaWorld of Fla. v. Perez, 748 F.3d 1202, 1207 (D.C. Cir. 2014); A.C. Castle Constr. Co., Inc. v. Acosta, 882
F.3d 34, 44 (1st Cir. 2018) (limiting the scope of the fair notice requirement); Mark A. Rothstein, Occupational Safety
and Health Law §§ 6:1, 6:9 (2019 ed.). It arose as a means to interpret the Act so as to avoid the application of strict
liability. See 29 U.S.C. § 651(b) (requiring employers “to assure so far as possible … safe and healthful working
conditions”). Respondents other contentions that the Secretary failed to meet the abatement prong of the test for
establishing a violation of the genera duty clause as developed by the Commission and relevant Circuits are discussed
below.
15 The parties stipulated that this is an applicable principle of law. (Am. Pre-Hr’g Stmt. at 16; Resp’t Br. at 6.)
14
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requirements. (Am. Pre-Hr’g Stmt. at 16; Resp’t Br. at 6, 28-30.) In National Realty, the D.C.
Circuit distinguishes between an unrecognized hazard and one, like the situation at hand, that is
recognized. 489 F.2d at 1266. Hazard recognition does not automatically trigger liability. Id.
The Secretary still must demonstrate “at the hearing” what the employer should have done. Id. at
1266-68. When discussing whether feasible abatement can be found after the hearing, as opposed
to beforehand, the D.C. Circuit notes the concept of preventability. Id. If the conduct resulting in
the hazard is something “conscientious experts, familiar with the industry” would take it into
account when “prescribing a safety program,” then the Secretary can establish a violation. Id. at
1266. In the present matter, the testifying experts agree that workplace violence is something
facilities like Pembroke Hospital must consider when prescribing a safety program. While the
hazard is not entirely preventable, there are steps employers can take to reduce the likelihood of
such incidents and the severity of the ones which occur. See Integra, 27 BNA OSHC 1841 at n.3
(discussing National Reality in the context of a general duty clause violation based on workplace
violence hazards); Armstrong, 8 BNA OSHC at 1074 (noting that the inquiry into foreseeability is
limited to whether the hazard will result in serious injuries or death).
1. Presence of a Hazard
While National Realty analyzes what it means for a workplace to be free of a recognized
hazard, Waldon and more recent cases apply a four-part test to assess general duty clause
violations. Under this framework, the first element the Secretary must prove is that “a condition
or activity in the workplace presented a hazard.” 16 BNA OSHC at 1058. The parties stipulated:
Employees at the worksite were exposed to the hazard of workplace violence, specifically defined
16 National Realty predates Waldon and the development of the Commission’s four-part test for sustaining violations
of the general duty clause. See Integra, 27 BNA OSHC 1841 at n.3.
15
in this case as violence and/or assault by patients against staff, during the six months prior to the
issuance of the citation (October 11, 2016 to April 7, 2017). (Stip. 7; Tr. 203, 923.) At the hearing,
Respondents’ counsel also made plain that they conceded the presence of a hazard to which
employees were exposed. (Tr. 194-95.) The Secretary established that employees at Pembroke
Hospital were exposed to the hazard of violence and/or assault by patients against staff.
2. Recognition and Knowledge of the Hazard
The second element looks at whether the employer or its industry recognized the condition
as a hazard. Again, there is no dispute that Pembroke and the behavioral health industry both
17
recognized the hazard of workplace violence in the context of patient on staff violence. (Stips.
8-9; Resp’t Br. at 1.) As for knowledge of the hazard, establishing this does not require a showing
that the employer was actually aware that it was in violation of the Act. See e.g., Peterson Bros.
Steel Erection Co., 16 BNA OSHC 1196, 1199 (No. 90-2304, 1993), aff’d, 26 F.3d 573 (5th Cir.
1994). Knowledge is established if the record shows the employer knew or should have known of
the conditions constituting a violation. Peacock Eng’g Inc., 26 BNA OSHC 1588, 1592 (No. 11-
2780, 2017).
Here, Pembroke had actual knowledge of the hazard’s on-going presence at its workplace.
It also knew its employees were exposed to both actual and potential incidents of workplace
violence. Pembroke knew patients had the potential to become aggressive towards staff. (Resp’t
Br. at 1.) It trained employees about the fact that patients may be assaultive or even homicidal.
(Exs. C-30, R-32.) And it knew that injuries from violence had occurred. Written employee
accident reports detailing injuries from violence were provided to management. (Ex. C-3.)
17 In addition to the stipulation, Respondents’ counsel also acknowledged at the hearing that both Pembroke Hospital
and the industry as a whole recognized the hazard. (Tr. 924.)
16
Employee injuries were discussed by management at daily meetings. (Tr. 1441-42.) An MHA
explained that she repeatedly communicated safety concerns to multiple supervisors, including
18
discussing a violent incident directly with the Director of Nursing, Claire Kent. (Tr. 853.) Loss
control reports provided to Pembroke’s CEO routinely documented many employee injuries and
noted the link between the injuries and patient aggression. (Exs. C-55 thru C-60.) Supervisors
were also made aware of occurrences of the hazard through verbal reports and by witnessing
assaultive behavior directly. (Tr. 559, 564, 1263, 1268, 1302-3; Exs. C-3, C-55 thru C-60, R-38,
R-39, R-40.)
The Secretary established recognition and knowledge of the hazard of workplace violence
present at Pembroke Hospital.
3. Serious Physical Harm
The third element of the test is also met: the cited hazard was causing or was likely to cause
death or serious physical harm. A hazard is likely to cause death or serious physical harm if the
likely consequence of employee exposure to the hazard would be serious physical harm.
Morrison-Knudsen Co./Yonkers Contracting Co., 16 BNA OSHC 1105, 1122 (No. 88-572, 1993).
19
The Secretary offered expert testimony on this point. (Tr. 919; Exs. C-66, C-99.) Dr. Robert
Welch opined that at the time of the inspection the hazard of workplace violence was causing
serious injury at Pembroke Hospital. (Tr. 923-24, 926.) Before reaching his conclusion, Dr. Welch
18 This MHA (KS) was employed by Pembroke for over two years. (Tr. 792.) She left her position approximately
two weeks before the hearing to work in another type of psychiatric care facility. (Tr. 792-93.) Her demeanor lent
her testimony credibility. Her testimony about safety concerns related to the hazard of workplace violence at
Pembroke was supported by the documentary evidence.
19 Respondents’ expert, Monica Cooke, was offered only as an expert who evaluated the suggested feasible abatement
methods offered by the Secretary. (Tr. 1463.) She was not offered (or accepted) as an expert who assessed whether
the hazard was causing serious physical harm.
17
reviewed the employee accident reports and records of OSHA recordable injuries for the two years
before the Citation. (Tr. 926.) He identified thirty-two injuries attributable to patient violence
over that time. Id. The incidents included episodes of staff being bit, concussed, head butted, spit
at, and suffering hand injuries. Id.
Other record evidence supports Dr. Welch’s conclusions. Pembroke provided training to
new employees about risk management. (Tr. 519; Exs. C-3, C-30.) The training explains that
20
Pembroke’s patients may have the potential for assaultive or even homicidal behavior. (Ex. C-
30 at 19, 22.) Pembroke employees reported suffering physical harm as a result of patient on staff
violence. (Exs. C-3, C-56, C-57, C-58; Tr. 648, 794, 810-11.) The CO reviewed Pembroke
Hospital’s records of OSHA recordable injuries and found that a “very substantial majority were
workplace violence related.” (Tr. 292.) Injuries to employees constitute at least prima facie
evidence that the hazard was likely to cause death or serious injury. See e.g., Usery v. Marquette
Cement Mfg. Co., 568 F.2d 902, 910 (2d Cir. 1977).
Pembroke’s records detail five different employee injuries from violence in one month
21
alone of the inspection period. (Exs. C-3, C-56.) KS worked as an MHA on the adolescent unit
on both the day and evening shifts. (Tr. 793-94.) She described multiple assaults over the nearly
two-year period when she worked for Pembroke Hospital. (Tr. 792-94.) During the inspection
period, on November 12, 2016, KS was injured by a patient. (Exs. C-3, C-74; Tr. 794, 803, 857.)
The incident occurred on the adolescent unit on a Saturday during the evening shift. (Tr. 794,
853.) KS and another staff member tried to calm an agitated patient verbally, consistent with their
20 Respondents risk management training does not appear to label any particular behavior as “workplace violence,”
but discusses “issues inherent” in the patient population and indicates that patients are to be monitored for increases
in “assaultive/homicidal potential ….” (Ex. C-30 at 8-9.)
21 Five employee injury reports all dated in November 2016 refer to injuries from patient aggression. (Exs. C-3, C-60
at 2-3.) In each of these circumstances, the employee required medical attention. (Tr. 563; Ex. C-60 at 3.)
18
22
training. (Tr. 795-96.) Their efforts were not successful, and the patient began throwing
shampoo bottles and other objects. (Tr. 796.) The patient then proceeded to physically assault
KS. Id. KS attempted to restrain the patient, but before she could, the patient was able to grab
KS’s hair. Id. The patient pulled with such force as to lift KS’s head and remove chunks of hair.
(Tr. 796, 1266.) Another employee, JQ, was also punched in the head as he tried to assist with the
restraint. (Tr. 1264-65.)
Following the attack, the patient was put on 1:1 observation. (Tr. 801.) 1:1 observation is
a staffing arrangement to assign a staff member to stay with a single patient. (Tr. 77-78.) This is
typically done as a result of violent or self-injurious behavior and must be approved by a doctor.
Id. However, not long after this arrangement was put into place, the order for 1:1 observation was
removed. KS was concerned by this, particularly because of the severity of the incident and the
23
fact that it was not the first time the patient exhibited violent behavior. (Tr. 797-98.) She
informed the nursing supervisor, Kristin Devane, of her concerns. (Tr. 814-15; Ex. C-3.) The
supervisor did not dispute the concern for violent behavior but indicated there was not enough staff
at the time to have the patient on 1:1 observation. (Tr. 815.)
KS completed her shift and returned to work the next day, which was a Sunday. (Tr. 803-
4.) Near the end of her shift, a physical conflict developed between two groups of patients. The
same patient involved with the attack against KS on the prior day acted as the “ringleader” for one
of the factions. (Tr. 804.) When the staff attempted to intervene to protect the patients, the patients
began to assault staff. (Tr. 804-5.) Patients kicked staff in their heads, their backs, and their legs.
22 AS, a former MHA at Pembroke, explained that employees were trained to verbally de-escalate patients by using
conversation to engage a patient and then attempt to calm them down. (Tr. 89.)
23 For example, about one week before her assault, KS reported to her supervisor that the same patient tried to hit her.
(Tr. 798.) The patient was not placed on 1:1 observation after that incident. (Tr. 799.)
19
Staff members were punched, scratched, and bitten during the incident. (Tr. 805.) The incident
lasted for about two hours before it was appropriately contained. (Tr. 807.)
Besides the assaults on November 12 and 13, 2016, KS described another incident which
occurred on November 3, 2016. The incident involved a dispute over a music player. Many
patients rely on music as a method to calm themselves. Two patients began fighting over an MP3
music player. (Tr. 809.) KS attempted to intervene to restrain the primary aggressor. Id. KS
sustained a tear to the triangular fibrocartilage complex in her wrist. (Tr. 809, 811.) The injury
required emergency treatment and eventual surgery. (Tr. 809-11.) KS still has ongoing numbness
in two fingers. (Tr. 811.) Two additional employees assisted with the restraint and were also
injured. (Tr. 810.) One of these employees was kicked with enough strength to knock her into the
opposite wall. Id. The assault caused her to suffer cranial nerve damage. (Tr. 810-811.)
KS’s experiences at Pembroke Hospital were not unique. Other employees also described
injuries from workplace violence. AS, an MHA, indicated he was hit or kicked approximately 50
24
times during his four-year employment with Pembroke. (Tr. 47, 56-57.) He described one
instance that occurred during the inspection period. He was about to commence the required search
of a newly arrived patient’s belongings. (Tr. 86.) The patient became angry and pushed AS into
a wall. Id. Another nurse recalled multiple assaults, including an incident where a patient nearly
25
tore an employee’s ear off. (Tr. 217-18; Ex. C-60.)
The assaults against staff resulted in multiple employee injuries. (Tr. 805; Exs. C-3, C-68,
24 AS was employed by Pembroke during the inspection and left after the Citation was issued. (Tr. 47.)
25 In addition, a former nurse at the facility, TL, indicated that in her three years at the facility serious staff injuries
from assaults regularly occurred. (Tr. 651-52.) She left before the latest investigation commenced. However, her
testimony is relevant to whether the recognized hazard was capable of causing serious physical harm. Although TL
was terminated, her testimony had multiple indices of credibility. She explained that she had wanted to leave the
position but remained on for financial and family reasons. She was forthright in her testimony, directly answering
questions without a suggestion of malice or ill will toward her former employer.
20
C-69.) Employee injuries included concussions, bruises, scratches, and bites. (Tr. 364, 446, 448,
466-67, 805; Exs. C-3, C-60, C-68, C-69.) Some of the injuries required employees to seek care
in an emergency room and some staff injuries persisted for a long time. (Tr. 805, 810-11; Exs. C-
3, C-60, C-68, C-69.) While some injuries are documented in accident reports, the decision to
complete an accident report was left to the employees themselves. (Tr. 1273-74.) Further, besides
incidents requiring medical attention, there were many more incidents of aggression against
26
employees. (Tr. 563; Exs. C-57, C-58, C-60 at 3, C-61 at 1.) Respondents do not dispute these
accounts of routine assault and injury. The Secretary established that the recognized hazard was
causing serious physical harm at Pembroke.
4. Pembroke’s Abatement Measures Were Inadequate
As to the fourth element, abatement, the parties agree that under Waldon the Secretary must
show there are feasible means to eliminate or materially reduce the hazard. (Resp’t Br. at 6.)
However, they disagree as to what constitutes such a showing and whether the Secretary satisfied
the requirements in this case.
Although the parties cobble together snippets of various cases in an attempt to create
abatement tests suited to their respective positions, the Commission’s decision in Integra sets forth
a straightforward three prong test to determine whether the Secretary established that there are
feasible means to materially reduce a hazard. 27 BNA OSHC at 1849-50. In Integra, which also
involved a violation of the general duty clause due to the hazard of workplace violence, the
Commission explains that the threshold question is whether the abatement actions the employer
26 In October and November 2016, there were seven incidents of aggression for which medical attention was sought
and an additional six incidents of aggression, such as hits or kicks, for which the affected employees declined to seek
medical attention. (Tr. 563; Ex. C-60.) Overall, UHS DE tracked 151 incidents of aggressive behavior for the fourth
quarter of 2016. (Ex. C-61.)
21
took are inadequate. Id. at n.14, quoting U.S. Postal Serv., 21 BNA OSHC 1767, 1774 (No. 04-
0316, 2006). If the Secretary shows that the employer’s abatement is inadequate, then he must
propose abatement measures which can be put into effect, i.e., show that the measures are
“feasible.” Id. at 1849-50. If the measures are feasible, then the Secretary must show the measures
will materially reduce the incidence of the hazard, i.e., the Secretary must show the identified
measures will be effective. Id.
Turning first to the abatement measures in place at the time of the inspection, Pembroke’s
approach to minimizing the hazard centers around training, policies, and procedures. (Resp’t Br.
at 24-27.) Pembroke describes its abatement methods for the hazard to include: (1) staffing, (2)
written policies, (3) management commitment, (4) employee participation, (5) worksite analysis
and hazard identification, (6) hazard prevention and control, (7) training, (8) program evaluation,
(9) medical orders, and (10) procedures and equipment for responding to staff calls for assistance.
(Resp’t Br. at 2, 24-27.) Collectively, these things constitute Pembroke’s Workplace Violence
Prevention Program, which Respondents’ argue appropriately protected staff from patient
aggression. (Resp’t Br. at 27.) Respondents concede that their abatement efforts did not eliminate
the hazard of workplace violence. Id. Still, they argue the measures adequately addressed the
hazard and the Secretary failed to establish otherwise. (Resp’t Br. at 23.)
The Secretary finds fault with Pembroke’s existing measures because of the number of
workplace violence incidents that continued to occur at the facility. (Sec’y Br. at 52.) While
Pembroke cites various policies as part of its Workplace Violence Prevention Program, most are
brief, generic, and focus on patient care rather than protecting staff. For example, the one-page
Management of Assaultive Behavior policy refers to patient arguments with other patients and
visitors, but not arguments with staff. (Ex. R-10.) It calls for patients to be “monitored” for violent
22
behavior and changes related to “assaultive potential” are to be reported to the supervising nurse.
Id. It does not reference to precautions staff should take. Id. Similarly, the one-page Patient
Observation Rounds checklist has a space for nurses to check a box indicating the patient has the
potential for “assaultive or destructive behavior,” but does not specifically refer to staff safety risks
27
or how to address them. (Ex. R-17.)
Further, some of the measures called for by the policies were not consistently or thoroughly
implemented. There was significant disconnect between the stated policies and what occurred in
practice. For example, Pembroke’s Seclusion and/or Restraint Use policy does not require
debriefings if a workplace violence incident did not result in a patient being restrained or
28
secluded. (Ex. R-12 at 2.) Also, the assessments Pembroke did conduct after workplace violence
incidents were often incomplete. (Ex. C-74.) Staffing levels were not considered relevant to the
assessment of injuries. (Tr. 513-14.) Even if an employee cited insufficient staffing as a cause of
an injury, such information was not included in the analysis. (Tr. 559.) Additionally, although
called for by the policies, patient treatment plans were not always updated after a patient had been
restrained or secluded. (Ex. R-13.) The December 2016 Massachusetts Department of Mental
Health (“DMH”) survey, which overlapped the OSHA inspection period, made recommendations
to address shortfalls with Pembroke’s debriefing practices, such as failing to adequately note
29
triggers for violent behavior. Id. at 10-11. So, while Pembroke indicated that it conducted root
cause analyses of injuries, its program was incomplete. (Tr. 852, 854-58; Exs. C-26 at 12, R-12,
27 The form specifies that only nurses should complete this section of the form; not the MHAs who typically perform
the Observation Rounds. (Ex. R-17.)
28 Although Pembroke cites this document as its policy on debriefings, it indicates that Pembroke “shall develop
procedures to ensure debriefing activities occur.” (Ex. R-12 at 2 (emphasis added).)
29 After the December 2016 regulatory visit, Pembroke indicated to the DMH that it corrected, or planned to correct,
these deficiencies. (Exs. C-26, R-13.)
23
R-13.) See Chevron Oil Co., 11 BNA OSHC 1329, 1333 (No. 10799, 1983) (finding employer’s
abatement approach inadequate in part because of the lack of accurate measuring and monitoring
of data collected through inspections).
Dr. Welch testified in support of the Secretary’s view that Respondents failed to adequately
abate the hazard. Dr. Welch practiced medicine as an attending psychiatrist at multiple facilities
during his career and his work experience includes training staff about the management of violence
in psychiatric care facilities and handling behavioral emergencies. (Ex. C-66; Tr. 915.) Also, he
previously served on the Workplace Violence Committee for a healthcare system. (Ex. C-66.)
Before offering his opinion at the hearing, Dr. Welch reviewed and analyzed: employee
statements, an employee survey focusing on safety, notes from employee interviews, OSHA 300
logs, UHS DE loss control reports, staffing grids and 1:1 staffing information, employee accident
reports, photographs of the physical layout of space at Pembroke Hospital, and DMH inspection
reports and corrective action plans for the facility. (Tr. 919-20, 922-23, 1143-44.) Dr. Welch also
reviewed approximately 60 articles from medical, nursing, and hospital security literature. (Tr.
921-922.) Finally, he surveyed other psychiatric facilities in the same geographic area as
Pembroke Hospital to assist with the evaluation of the Secretary’s proposed methods of abatement.
(Tr. 920-21.)
The abatement measures in place at Pembroke Hospital were inadequate because the
Secretary showed: (1) the hazard remains at Pembroke Hospital; (2) staffing was inadequate; (3)
employees lacked sufficient means to summon assistance; and (4) Pembroke failed to properly
implement patient de-escalation plans.
a) Hazard Remains at Pembroke Hospital
Despite clinical attempts to address patient aggression, the hazard of workplace violence
24
remained prevalent at Pembroke Hospital during the inspection period. All the non-management
employees described multiple incidents of workplace violence and Respondents’ records detail
additional injuries. Dr. Welch identified “many, many reports” of Pembroke employees
documenting their injuries resulting from workplace violence. (Tr. 927.) OSHA 300 and 300A
forms for 2016 identified 23 recordable injuries. (Tr. 290-92, Ex. C-68.) From this self-reported
information, the CO compared rates of injury at Pembroke Hospital with national averages for
30
psychiatric hospitals. (Tr. 293.) In comparing injury rates, the CO only considered injuries that
resulted in lost work time, restricted duties or job transfers. (Tr. 291, 293-94.) Pembroke
Hospital’s injury rate was approximately two and a half times the national average for psychiatric
facilities. (Tr. 293-94, 355, 927.)
Respondents point out that the existence of injuries does not establish that its abatement
efforts were inadequate. (Resp’t Br. at 27.) While accurate, the presence of a higher than average
injury rate is relevant to assessing the sufficiency of Pembroke’s program. SeaWorld, 748 F.3d at
1215 (existing safety procedures held inadequate where evidence showed employer’s training and
protocols did not prevent continued injuries). Injuries and incidents are not dispositive, but they
do lend support to the Secretary’s claim that the abatement methods, as implemented, were
inadequate.
b) Staffing was Inadequate
One of Pembroke’s abatement methods was staffing. Both experts agreed that staffing is
a way to reduce the hazard of workplace violence in a behavioral health setting. (Tr. 937-40, 942-
952, 959-60, 966, 980-81, 1510.) Dr. Welch explained that higher staffing levels mitigate violence
30 Because it is based on days away, restricted duties and transfers, the rate of injury is often referred to as the DART
rate. (Sec’y Br. at 7.)
25
and provide a safer working environment. (Tr. 946-47, 952.) He discussed peer reviewed studies
31
that supported his view that adequate staffing reduced the hazard. (Tr. 950-52, 962, 989; Exs.
C-94, C-96, C-98, C-100, C-101.) Understaffing is linked to more assaults while higher staff to
patient ratio resulted in fewer patients escalating to a point where they became violent and fewer
patient emergencies. (Exs. C-96, C-97, C-98, C-100, C-101; Tr. 980-81.) Pembroke employees
working at the site during the inspection period confirmed that, in their experience, insufficient
staffing harmed worker safety. (Tr. 90, 329-31, 325-26, 666, 793.)
Dr. Welch concluded Pembroke’s staffing was inadequate to manage the risk of workplace
violence at Pembroke. (Tr. 939, 1067.) Most shifts at Pembroke had less staff per patient than the
national averages for similar facilities. (Tr. 939, 1046-47.) Pembroke does not dispute this, but
argues it follows the minimum staffing requirements set by the DMH for patient care. (Resp’t Br.
at 13, 26.) The DMH requirements vary with the number of patients (i.e. the census) at the facility.
(Ex. C-20.) Pembroke uses a document referred to as the “grid” to determine when the census
32
reaches a point that additional hours are needed under the DMH requirements. (Ex. C-20; Tr.
371-72, 387-88, 930-33, 1316.) At a minimum, there is one nurse and one MHA for each unit.
(Ex. C-20; Tr. 380.) As the census increases, additional staffing hours may be added. (Tr. 371-
72, 387-88; Ex. C-20.) Each additional patient does not automatically trigger an increase in
staffing. (Ex. C-20.) The grid is focused on minimum staffing levels per patient for their medical
31 Dr. Welch relied on several studies, including, Paul Morrison & Michael Lehane, Staffing Levels and Seclusion
Use, 22 J. of Advanced Nursing 1193-1202 (1995) (hereafter, Lehane Study). The Lehane Study found “a highly
significant difference between the levels of staffing” and the number of violent incidents requiring patient seclusion.
Id. at 1193. Similarly, Vanya Hamrin, et al., A Review of Ecological Factors Affecting Inpatient Psychiatric Unit
Violence: Implications for Relational and Unit Cultural Improvements, Issues in Mental Health Nursing, 30:214-226
(2009), also found that violence is prevented by having adequate staff to patient ratios. (Ex. C-101 at 9.)
32 Because admissions and discharges alter the number of patients, the census is based on the average number of
patients on the unit as counted at least once during a shift.
26
care. (Tr. 931.) In setting the minimum staffing levels, the DMH does not focus on staff safety or
workplace violence. (Tr. 931-33.)
Besides the individuals “on the grid,” other personnel can assist with workplace violence
incidents. (Tr. 475-76.) During the day shift on weekdays, additional support staff and medical
personnel are available to prevent and respond to workplace violence situations. (Tr. 475, 819,
1299.) However, not all personnel can respond to a code or request for assistance. (Tr. 1299.) At
least one person must stay on each unit at all times. (Tr. 375-77, 871; Ex. R-17.) The employee
assigned to conduct patient checks is limited to that task only. Id. Further, the number of
additional potential responders is not the same on all three shifts. On the evening shift, there is a
single “crisis intervention specialist” who can assist units as needed. (Tr. 871, 1233.) The Director
of Nursing explained that “a lot of crises” happen on the evening shift. (Tr. 1437.) The crisis
intervention specialist is not involved in direct care and tries to be “proactive” to identify problems
before they become “huge issues.” (Tr. 473.)
On the night shift, each staff member was responsible for the greatest number of patients.
(Tr. 388; Exs. C-20, C-78.) There is no crisis intervention specialist and fewer other employees
as well. (Tr. 374; Ex. C-78.) For example, by the grid, there only needs to be one nurse per adult
33
unit unless the census for that unit exceeds twenty-three patients. (Ex. C-20.) And, even when
the census reaches a point that more staffing hours are required, the grid typically only requires
four more hours of care, i.e., an additional employee for only half of the eight-hour shift. Id. After
the four hours of care are provided, the employee could be sent home, even if additional admissions
33 The adolescent unit also only has one nurse on the night shift, but its census is capped at eighteen patients. On the
night shift, Pembroke added one “float” position on for the entire hospital. (Tr. 375, 730.) The DMH concluded that
this was insufficient. (Ex. C-47 at 6-7.) During its four-day survey in the spring of 2016 (before the OSHA inspection
commenced, the DMH noted one unit operating with 22 patients but only two employees (one nurse and one MHA).
Id. While there was a float, that employee was also needed in another unit. Id.
27
are anticipated. (Tr. 107-8, 1316.)
As with the night shift, on weekends there were fewer employees at the hospital who could
respond in the event of a workplace violence incident. There was only one doctor for all 90 patients
on weekends. (Tr. 961-62.) There were fewer social workers and case managers as well. (Tr.
960-62.) Patients often were not seen by a psychiatrist, social worker, or case manager until
Monday if they were admitted on the weekend. Id. In fact, 40% of assaults took place on weekends
34
when there was significantly less staff on site. (Tr. 960.)
The Secretary contends that Respondents failed to have sufficient staff to abate the hazard
35
of workplace violence. The evidence reveals that staffing was the overwhelming safety issue for
employees and Dr. Welch agreed with employee concerns. (Tr. 306.) According to Dr. Welch,
the baseline level of staffing at Pembroke Hospital was both inadequate and significantly below
other hospitals he surveyed or worked in. (Tr. 939, 1067-68.) The staff to patient ratios were
inadequate to successfully manage the hazard. (Tr. 1067.) Dr. Welch cited multiple occasions
during the inspection period when Pembroke fell below its own minimum staffing requirements
and employees reported injuries. (Tr. 942.) Studies have found that there is a higher rate of
violence and aggression from patients when each staff member is responsible for a higher number
of patients. (Tr. 943, 946-47; Ex. C-101.) As discussed in more detail below, the Secretary showed
that Respondents’ approach to staffing resulted in an insufficient number of people to
34 Ms. Gilmore’s letters regarding her loss control visits to Pembroke Hospital also note increased episodes of
aggression on weekends. (Ex. C-59.)
35 The Secretary does not specifically allege that staffing was inadequate from a medical perspective. However, he
does argue that the “unmet needs” of patients increases the likelihood of a workplace violence incident. (Sec’y Br.
37-38.) As discussed above, patients were dependent upon staff for meals, bathroom access, medication and other
needs. If there was inadequate staff to respond to such needs, certain patients can become aggressive and angry. (Tr.
946-47; Ex. C-101 at 7-9.) “A recurring theme in the research was that unmet needs trigger aggression or violence.”
(Ex. C-101 at 9.) Pembroke’s training materials on de-escalation also acknowledged this can occur. (Ex. R-32.)
28
accommodate medical orders for 1:1 supervision, to safely address changes in patient acuity, and
to handle new patient admissions. (Sec’y Br. at 51, 54, 61.) Pembroke also failed to maintain
adequate staffing levels for appropriate de-escalation and for therapeutic activities.
(1) Inadequate Staffing for 1:1 Medical Orders
Pembroke argues that one of its methods for addressing the hazard was to allow staff to
seek a higher level of observation for certain patients. (Resp’t Br. at 14, 27.) MHAs and nurses
could request a doctor to order an MHA to be assigned directly to a particular patient. Doctors
could order an MHA to stay within arm’s reach of a single patient. (Tr. 78, 683; Ex. R-11 at 2.)
This level of observation is referred to as a 1:1, meaning one employee for one patient. The
arrangement permits focused de-escalation and prompt notification of co-workers if a patient starts
to become violent. (Tr. 1040-41, 1045, 1125.) While assaultive behavior could support a 1:1
assignment, employee safety was not a specific reason for a patient to be placed on 1:1
36
observation. (Tr. 1191; Ex. R-11 at 2.) Typically, such arrangements were called for because
the patient was injuring themselves. (Tr. 479-80, 1191; Ex. R-11.)
The Secretary agrees with the importance of 1:1 assignments as a method for both reducing
workplace violence incidents and reducing the likelihood such incidents cause serious injuries.
(Tr. 1045-46.) He does not call for more 1:1 assignments or cite issues with Pembroke’s policies
addressing 1:1s. Rather, the Secretary’s concern lies with how Pembroke addressed, or failed to
address, the need for staff to allow the implementation of orders for 1:1s. In particular, there was
not always enough staff to fill a recommendation for 1:1 staffing. (Tr. 233-36, 453-55, 657, 666,
814-15; Ex. C-78.) Nor did placing a patient on 1:1 supervision typically result in additional staff
36 Pembroke’s policy permitted “special precautions” for “Assaultive/Destructive Behavior” as well “other reasons
deemed appropriate by the physician or nursing staff.” (R-11 at 2.)
29
being assigned to the unit. (Tr. 332, 383, 453, 945-46; Ex. C-38.) Often an MHA was re-assigned
from helping a group of patients on the unit to instead focus on a single patient. (Tr. 383, 388-89,
946.) This was particularly the case if more than one patient required 1:1 staffing. (Tr. 332, 383.)
Ms. Kent acknowledged it was not a policy to bring an additional staff member in to cover the first
1:1 ordered on a unit. Id. Typically, it would be covered on the next shift, regardless of when the
doctor first ordered it. Id. If there was a need to place a second patient on 1:1 observation due to
violent behavior, Pembroke generally did not add additional staff. (Tr. 332, 383, 388-89; Ex. C-
47.) Staff reported “tension” between management’s desire to remove a patient from 1:1
observation to improve the staff to patient ratio and the belief of front-line workers that doing so
was premature and could result in assaultive behavior. (Tr. 235-36, 664, 657-58.)
Even with a history of violence, 1:1 observation was not assigned until after a patient was
violent towards others or engaged in serious self-injurious behavior at Pembroke Hospital. The
potential for violence to employees did not result in additional staff. (Tr. 77-78, 799.) The patient
had to demonstrate violence or self-injurious behavior to a sufficient degree before a doctor would
order 1:1 observation. (Tr. 77-78.) If a patient previously assaulted medical professionals or others
before arriving at Pembroke, that was not sufficient. Id. They had to exhibit violent behavior at
Pembroke. Id.
For example, during the inspection period, a patient attempted to punch an MHA in the
face. (Tr. 798.) The incident was reported to supervisors. Id. A week later, the same patient
succeeded in assaulting the MHA. (Tr. 798-99.) Even at that point, the patient was only briefly
placed on 1:1 observation for part of a shift. (Tr. 800-1.) According to the MHA, the 1:1
observation was discontinued not because anyone thought the patient no longer needed it, but
30
37
because there was no female MHA available to fill the role. (Tr. 801-2.) The same patient was
then involved in another violent attack against staff the following day. (Tr. 804-5.)
Pembroke understood the need for additional staff to implement1:1 assignments. In 2016,
before the latest OSHA inspection commenced, the DMH identified several deficiencies in
Pembroke’s approach to staffing. (Ex. C-47.) The DMH found that Pembroke lacked enough staff
38
to allow for emergency coverage. Id. In response to the DMH’s investigation, in December
2016, Pembroke submitted a Plan of Correction to the DMH that called for 1:1 assignments to be
handled by additional staff, rather than by reassigning workers from providing care for all patients
to caring for a single patient. (Tr. 396, 703-4; Exs. C-26, C-38, C-47.) In practice, Pembroke
admits that it failed to adhere to its Plan of Correction. (Tr. 332, 736; Ex. C-38.) On multiple
shifts during the inspection period, placing a second patient on 1:1 observation did not increase
the number of staff members on the unit, despite Pembroke’s commitment in the Plan of
39
Correction. (Exs. C-26, C-38.)
The Secretary argues that Respondents tried to conceal the number of patients on 1:1
40
observation to make their staff to patient ratio appear better than it was in reality. (Sec’y Br. at
31.) Melissa Heron prepared staffing records for production to OSHA. (Tr. 417-19.) The staffing
records initially contained the number of patients, the total number of staff, and how many
employees were assigned a single patient (i.e., how many were assigned to 1:1 observations). (Tr.
37 Per Pembroke’s “Special Precautions Guidelines” there was a preference for the assigned staff member to be of the
same gender, but it was not required other than during certain time, such as for personal hygiene and toileting. (Ex.
R-11.)
38 While DMH findings relate to patient care, not employee safety, they still had the impact of notifying Respondents
that its staffing levels were low.
39 The Secretary does not allege that Pembroke’s approach to 1:1 staffing would still be deficient if it had followed
what was called for by the December 2016 Plan of Correction consistently during the inspection period.
40 The undersigned notes that the DMH review of Pembroke over three days in December 2016 found that
documentation about what level of precaution patients were on was not consistent. (Ex. R-13.)
31
419, 423-24, 887-89; Ex. C-78.) Before turning over the documents, Pembroke removed the
information related to 1:1 assignments. (Tr. 417-19, 889.) By removing this information, it could
appear that there was adequate staff for all patients and that the units were less acute. (Tr. 887-88,
1054-55.) This perception was corrected when before the hearing, Pembroke provided the
removed information to OSHA. (Tr. 417-19, 421-22, 883-84, 887-88; Ex. C-78.) Considering the
41
record as a whole, the Secretary did not establish the editing warranted adverse inferences.
Dr. Welch concluded that Pembroke’s approach to staffing was inadequate and left too few
employees responsible for too many patients and tasks. The approach of not consistently adding
staff when there was a doctor ordered 1:1 observation reduced the effectiveness of Pembroke’s
Special Precaution Guidelines, and left staff more vulnerable to the hazard.
(2) Inadequate Staffing for Acuity
Pembroke argues that it altered staffing based on a unit’s acuity to address the hazard. In
the context of a behavioral health hospital, the “acuity” of a unit refers to the level of activity and
risk. (Tr. 1001-2.) Factors influencing the level of acuity include how many patients, staff, and
visitors are present, and the condition of the patients. (Tr. 1002-3.) The higher the level of acuity
within a unit, the more staff that are needed. (Tr. 576.)
In practice, employees explained that increasing staff for acuity did not consistently
41 The Secretary also cites Pembroke’s coaching of employees only to answer the questions investigators asked and
to not offer information. (Tr. 113, 119, 125; Ex. C-1.) After management provided information about how it expected
employees to act during investigations in writing, employees were specifically directed to destroy the instructions.
(Tr. 125.) Respondents argue that the instructions were perfectly appropriate. The written instructions do not direct
employees to lie or provide misinformation. (Ex. C-1.) AS acknowledged that he did not fear reprisal after speaking
with OSHA. (Tr. 184.) Although the Secretary’s curiosity about why Pembroke would direct employees to destroy
instructions about regulatory investigations is understandable, he did not establish that the coaching practices warrant
adverse inferences.
32
42
occur. (Tr. 132, 307; Ex. C-22.) Dr. Welch evaluated staffing at the facility and agreed with the
43
employees’ view that Pembroke did not sufficiently staff for acuity during the inspection period.
(Tr. 1053-54, 1056, 1058.) Pembroke’s claims about increasing staff for acuity were not supported
by its records. (Tr. 1055-56.) Although Pembroke took steps to ensure that the minimum level of
staffing called for by the grid was met before employees could leave, this requirement did not
extend to situations where a unit’s level of acuity required a higher ratio of staff per patient. (Tr.
454.) Pembroke’s goal was to ensure that the base level of staffing for patient care was met, not
to have enough staff for purposes of abating the hazard of workplace violence.
Even by the grid, the facility was understaffed for parts of shifts on at least three dates
during the inspection period. (Tr. 942; 1443-44.) Injuries from workplace violence incidents were
documented on understaffed shifts. (Tr. 942, 960; Ex. C-78.) In one instance, on November 14,
2016, one adult unit was operating for the evening shift with only one nurse and one MHA. There
had been a series of assaults in the same unit during prior shifts. Just at the start of the night shift,
a patient bit an employee during a restraint. As was always the case on the night shift, there was
no crisis intervention specialist who could move onto the unit if the violent behavior continued
and only one float employee for all the units.
Inadequate staffing harmed preventative actions and responses to violence. Both experts
agreed that when staff is available to attend to patients’ initial signs of agitation, verbal intervention
alone can be effective at preventing physical violence. (Tr. 947, 1512.) The experts also agreed
42 In 2016, UHS DE conducted a staff survey of “safety culture.” Several of the comments cite a need to staff
appropriately for acuity. (Ex. C-22.) Although admissible, less weight is given to these survey results than the
testimony of the current and former employees at the hearing. There is no information about the credibility of the
persons providing the information in the survey and it is not clear what time period the survey responses relate to. Id.
43 The undersigned notes that in contrast to the scope of Dr. Welch’s review of staffing at Pembroke, Ms. Cooke only
reviewed two days of staffing records in depth.
33
that having numerous potential responders in the event of behavioral health emergencies aids
safety. (Tr. 947-48, 1512.) It facilitates addressing the individual whose behavior started the
situation and limits the ability of other patients to take advantage of an employee’s isolation or
distraction during a workplace violence incident. Id. Dr. Welch explained that “at least five
44
people” are required for each behavioral health emergency. (Tr. 947-48, 1000.) He cited an
employee accident report involving a patient who weighed 388 pounds. (Tr. 948.) A situation
involving such a large patient could require as many as eight employees to ensure safety for all.
Id. At times during the inspection period, there were only twelve MHAs for the whole facility.
(Ex. C-78.)
KS, a former MHA at Pembroke, explained that she did not feel safe working at Pembroke
because routinely there was not enough staff to address the unpredictability of patient behavior.
(Tr. 793.) She described one situation during the inspection period that spiraled into a melee. (Tr.
794.) Even after calls for all available staff to respond, there was still not enough support. (Tr.
806, 1482-83.) The situation progressed to a point where some patients started to restrain other
patients for the safety of everyone in the unit. (Tr. 794, 807, 856, 948.) KS noted that the situation
would have been worse had it not occurred near the end of one shift and the start of the next. (Tr.
806.) Because of this coincidence, some people who had arrived early for their shift could assist
with bringing the situation under control. Id. Had the incident occurred mid-shift such resources
would not have been available. Id.
44 Pembroke’s policy Code Greens also contemplates the involvement of multiple employees. (Ex. R-9 at 3.)
34
(3) Inadequate Staffing for Admissions
45
In addition to prior violent incidents, new admissions also impact the acuity of the units.
(Tr. 1057-58; Exs. C-55, C-101 at 9.) When a patient arrived at Pembroke, a nurse would briefly
take vital signs just inside the door to the unit. (Tr. 75.) An MHA would then bring the patient to
46
“a very small room” on the unit. Id. The MHA would continue the admissions process alone in
the room with the patient. (Tr. 75, 81.) There were no cameras in the room and only a very small,
47
high window. (Tr. 88, 512.) The MHA’s assessment included searching the patient and their
belongings for contraband, i.e. items that could harm staff or patients. (Tr. 81, 837, 1181-82; Exs.
R-1, R-8.) AS explained that he did not feel safe to be alone with patients at this point in the
admissions process. (Tr. 81-82.) First, the patient’s condition was not yet well understood. Id.
48
Second, the patient and MHA are in the room alone before the contraband search is completed.
Id. Pembroke’s Contraband and Restricted Articles policy notes numerous types of objects that
could pose a danger to staff. (Ex. R-1.) AS explained that some patients became aggressive during
49
the searches. (Tr. 81-82.) In addition to contraband a patient may come in with, the room used
for the searches also had multiple objects that could be used as projectiles. Id. The location and
size of the room made it difficult to call for help even with a radio. (Tr. 82.) Thus, admissions
45 A UHS DE conducted regular “loss control” visits of Pembroke Hospital and prepared summary letters after the
visits. (Ex. C-55.) The December 12, 2016 letter notes an increase of “aggression episodes on weekends due to large
number of admissions ….” Id. at 2.
46 AS indicated that the room was eight feet by eight feet in one of the units. (Tr. 82.) Some of the other units might
have had slightly bigger rooms. Id.
47 The window is described as about the size of “loaf of French bread.” (Tr. 88.) There were no security cameras on
the units, but a few offices have cameras. (Tr. 512.)
48 Searches were also required after patients returned to the units from appointments off-site. (Ex. R-8.)
49 Per Pembroke’s policy, patients could decline the searches. (Ex. R-8.) According to the policy, the patient was to
“remain in open areas unit assessed” if they declined. Id. The policy does not call for them to be secluded from staff.
Id.
35
were one of the “scarier” parts of the job. Id.
After the MHA completed his or her assessment, the new patient moved to the common
50
room where the existing patients were until it was possible to meet with a physician. (Tr. 91-92,
861-62.) The wait to meet with a physician could take several hours, particularly on weekends,
when only one doctor attended the hospital. (Tr. 861-62.) New patients would often become
agitated or aggressive after being moved into the common room, particularly if in need of
51
medication,. (Tr. 79.)
Admissions impacted acuity in multiple respects. First, arriving patients were typically
distressed and at their sickest. (Tr. 1057.) As they were not fully assessed yet, the practice of
having the new patient enter the common room directly increased risk and acuity. (Tr. 1014.)
Second, Pembroke did not set separate limits for the number of violent patients being admitted.
(Tr. 77.) Often there were multiple admissions of patients with a history of violent behavior during
a single shift. Id. Third, the admission process itself was very time consuming and could occupy
both a nurse and an MHA for long periods. (Tr. 1058.) Admitting a patient typically required
twenty to thirty minutes of time from an MHA and as much as 90 minutes for the nursing tasks.
(Tr. 653-54, 837-38, 1006-7.) In general, according to the Director of Nursing, there were 6.9
admissions per day. (Tr. 1346.) But admissions, both in terms of their number and their timing,
varied significantly. (Tr. 863, 1008, 1382, 1436, 1516). Pembroke’s Director of Admissions
explained that “every day is very different.” (Tr. 1382.) Sometimes there would be as many as
50 It can take up to twenty-four hours before a physician completes his or her complete assessment of the patient. (Tr.
1291; Ex. R-7.) Typically, at Pembroke, a doctor sees a patient within two hours to assess their competency and
conduct a brief assessment. Id. Patients are also seen by a social worker within three days (72 hours). (Tr. 1423; Ex.
R-7.)
51 Ms. Gilmore, the UHS DE Loss Control Manager, also noted that the lack of clinical case management for patients
admitted over the weekends can increase these patients becoming upset. (Ex. C-58 at 2.)
36
seven admissions to a single unit during a shift. (Tr. 863.) Dr. Welch pointed to another shift
during the inspection period with fourteen admissions. (Tr. 1014.) While admitting a patient, the
staff member could not focus on de-escalating potentially violent patients and timely intervening
to address assaultive behavior towards staff. Fourth, admissions could result in staffing levels that
fell below the minimum “floor” required by the grid. (Tr. 455.) Pembroke Hospital had no staff
dedicated to handling the admissions tasks. Moreover, it did not consistently staff in anticipation
of admissions. (Tr. 242-43, 381-82, 455, 878-79; Ex. C-78.) Rather, the shift would often continue
with the same number of employees working despite the number of admissions. (Tr. 878-79.)
Additional staff would only be added for the next shift. Id. Fifth, when there was a high influx of
patients, admission tasks had to be performed hastily and sometimes potential weapons were
overlooked. (Tr. 837.) This could increase the risk of injury from workplace violence. For these
reasons, Dr. Welch concluded that Respondents failed to assign enough staff for admissions and
that this increased both the likelihood and potential severity of workplace violence. (Tr. 962, 1056-
58.) Admissions increased the number of patients for each staff member and created additional
work to assess the newly admitted patients. (Tr. 838-39, 1057-58; Ex. C-55.)
Respondents note that discharges reduce the number of patients. Discharges only occurred
on the day shift when there already was additional staff who could respond to workplace violence
events. In contrast, admissions occurred throughout the twenty-fours and were not evenly
distributed. (Tr. 1382, 1014.) Admissions also did not automatically result in increased staff until
the next shift, while discharges could result in staff being sent home mid-shift. (Tr. 107-8, 1316.)
Staff reductions occurred even when new patients were anticipated but had not yet arrived. (Tr.
107-8, 838-39.) Discharges also impacted the acuity of units. The patients likely to be discharged
are, by definition, the healthiest and most stable. (Tr. 1056-57.) The most stable patients were
37
then replaced with the newly admitted, sicker patients. (Tr. 1005, 1056-57.) The patients arriving
for admission are “acutely decompensated.” (Tr. 1012.) They may not yet be medicated, and Dr.
Welch described it as a “very high-risk time.” Id.
The Secretary established that Pembroke’s approach to admissions was inadequate.
(4) Inadequate Staff to Verbally De-escalate Patients
Pembroke argues that its use of verbal de-escalation, which included a written policy and
training, was adequate. Pembroke’s Management of Aggression policy was a one-page document
described by the risk manager as a review for staff about how to manage assaultive behavior. (Tr.
1186-87; Ex. R-10.) But the document does not provide guidance on how to accomplish this. (Ex.
R-10.) Instead, it notes that patients will be assessed for assault risk and monitored for behavior.
Id. Changes in behavior or events related to the potential for assaultive behavior are to be reported
to the charge nurse, and such reports may alter treatment. Id. Staff did receive other training,
including being taught a technique called Handle with Care, which the Risk Manager indicated
52
was a method to safely intervene with patients at risk of harming themselves or others. (Tr. 747,
1188, 1419-20; Ex. R-32.)
In addition to the Handle with Care training, Respondents allege that Pembroke also
presents a “Workplace Violence Prevention PowerPoint” to employees and indicates that Exhibit
R-32 is this presentation. (Resp’t Br. at 7.) At the hearing, Mr. Quinn described Exhibit R-32, not
as a Workplace Violence Prevention PowerPoint, but as the “Handle With Care with the Verbal
De-escalation PowerPoint.” (Tr. 1235.) He did not refer to it as workplace violence training and
52 Pembroke’s “Seclusion and/or Restraint Use” policy indicates that staff was also to be trained annually in “Handle
with Care” and “Trauma Informed Care.” (Ex. R-12 at 1.) Ms. Kent cited trauma informed care as being part of the
initial training, but it’s unclear if that was also part of the annual re-training. (Tr. 1420-21.)
38
53
his description matches what is listed on the first page of the document. Id. Ms. Burns,
Pembroke’s risk manager, was not asked whether Exhibit 32 constituted Pembroke’s workplace
violence training. (Tr. 497.) She testified that, in general, employees were trained about workplace
violence, but she did not provide such information to staff. (Tr. 1219-20.) When shown Exhibit
C-31, a different collection of PowerPoint slides that uses the phrase “workplace violence,” she
could not confirm whether it was used at Pembroke to train employees. Id. So, the record does
54
not show that employees were trained on, given, or reviewed Exhibit C-31.
Dr. Welch acknowledged that almost all behavioral health hospitals use verbal de-
escalation and that it is an appropriate, albeit incomplete, intervention for certain patients. (Tr.
1010.) He did not raise specific issues with Pembroke’s training but explained that Pembroke’s
approach to handling workplace violence hazards requires enough staff so employees can promptly
55
identify who is escalating and intervene quickly. Id. Pembroke failed to consistently have
enough staff to implement the techniques called for by its Handle With Care Program. Id.
So, as implemented, Pembroke’s approach to verbal de-escalation was not sufficiently
effective at abating the hazard. (Tr. 1010.) Training could not make up for the lack of adequate
53 Exhibit R-32 does not include the term “workplace violence” but does refer to violence and “dangerous behaviors.”
(Ex. R-32.) It states that one of the goals of the training is to “Reduce staff and patient injuries.” Id.
54 Respondents did not introduce Exhibit C-31 (a PowerPoint presentation discussing workplace violence) or raise it
with any witness. The Secretary’s counsel showed Ms. Burns Exhibit C-31 on cross examination. (Tr. 1219-20.) Ms.
Burns did not use the materials herself and was unsure if the other employees who conducted training used them. Id.
55 Dr. Welch also noted that verbal de-escalation can be ineffective. (Tr. 1010-1011.) For example, if the patient is
already violent or if their untreated psychosis precludes rational conversation, verbal de-escalation is ineffective. Id.
Ms. Gilmore, the Loss Control Manager for UHS DE, noted in both her October 25, 2016, and December 12, 2016
letters that while non-clinical staff can recognize escalating situations and had training on verbal de-escalation, at the
time of her visit certain employees “DO NOT know how to defend themselves if attacked.” (Ex. C-55 at 2
(capitalization in original); Ex. C-59 at 2 (same capitalization).)
39
56
staff to handle psychiatric emergencies. (Ex. C-96 at 15.)
(5) Inadequate Staff for Therapeutic Activities
Dr. Welch explained that therapeutic group activities are effective at reducing incidents of
workplace violence. (Tr. 949, 968-69; Ex. C-101.) Regularly scheduled and predictable activities
promote engagement and decrease levels of acuity on the units. (Tr. 820-21, 949-50, 1061-62.)
57
Pembroke recognized the importance of regularly scheduled therapeutic groups. (Exs. C-55, C-
57, C-59, R-32.) Its de-escalation training called for increasing structure as a means to control
crises. (Ex. R-32 at 13.) The Handle With Care training cites schedules and programs as helpful
in avoiding power struggles that can lead to violence. (Ex. R-32 at 22.) Before regulatory visits,
Pembroke instructed employees to check to make sure details about groups were written, that
58
groups occurred, and that schedule changes were noted. (Ex. C-1 at 1-2, 4-5, 7-8.) Pembroke
also agreed with the DMH’s audit findings that the posted information about groups failed to
adequately describe what groups were actually going to occur. (Exs. C-26, R-13, R-29.)
Despite this recognition of the importance of making sure groups occurred, groups were
regularly canceled due to insufficient staff. (Tr. 221.) KS indicated that at least three times a week
a group would be canceled. (Tr. 819.) This most frequently occurred on the evening shift, which
had fewer available employees. Id. Still, even on the day shift, groups were routinely canceled.
56 The Handle with Care program also called for structure and having employees be able to provide calming modalities.
(Ex. R-32.) As discussed below in addition to a lack of adequate staffing, Pembroke also fell short in implementing
these aspects of the program. Id.
57 Ms. Gilmore assessed whether groups were occurring and how they were functioning as part of her routine reviews
of Pembroke Hospital. (Tr. 549; Exs. C-55, C-57, C-59.) Her reports discuss how groups can help patients and how
not having groups as scheduled can trigger aggression. (Ex. C-59 at 2; C-57 at 2.)
58 One witness said that she was not aware of any policies related to when groups would be canceled. (Tr. 228.) The
risk manager indicated that Pembroke had an “activities therapy policy,” as well as policies related “running groups”
and the “staff to patient ratio” for groups. (Tr. 535.) Pembroke did not introduce any of these policies into the record.
40
(Tr. 50, 137.) Groups were canceled because staff was too busy with admissions or because of the
need to respond to emergencies. (Tr. 138, 221, 677-78, 820.) There was not enough staff to
consistently run the groups and handle the other tasks. Id. Groups were an “afterthought,” rather
than an effective means of abatement. (Tr. 677-78; Exs. C-26 at 3, R-13, R-28, R-29.)
c) Inadequate Means to Summon Assistance
Pembroke argues that staff could adequately summon additional assistance when needed
to prevent or end patient on staff violence. Pembroke’s units often only had three employees. (Tr.
380, 1047; Ex. C-20.) There is no debate that this was insufficient to address all workplace
incidents. Staff could verbally announce a “Code Green” to seek assistance in the event of violence
or if they anticipated the need for additional support. (Tr. 57; Ex. R-9.) Typically, at least one or
two times a day, staff would seek assistance through the Code Green process. (Tr. 827.)
Code Greens could also be called over two-way radios (i.e., walkie talkies) if available or
59
by using a phone that could connect to an overhead public address system. (Tr. 57, 59-60.)
Employees were instructed to stay with the patient even when summoning assistance. (Ex. R-9.)
However, if the employee did not have a radio, they would need to access the one phone located
60
in the middle of the unit. (Tr. 59.) There was no phone in the area used for admissions. Id. The
61
number of two-way radios on each unit varied but there were never more than four. (Tr. 60-61,
59 Per Pembroke’s Code Green policy, psychiatric emergencies also “should be announced using walkie talkies and
the overhead paging system.” (Ex. R-9.) Employees described using either a walkie or the phone system. (Tr. 57,
59-60.) Some incidents would require multiple calls for assistance.
60 It is unclear if patients also used these phones. (Ex. R-28.) An audit by the DMH from May 2016 specifically
called for more phones in at least two units. Id.
61 More recently, Pembroke increased the number of radios to six per unit and implemented steps to make sure each
unit had a sufficient number of working radios. (Tr. 456.) The Secretary does not argue that this revised approach
was still deficient. However, the suitability of Pembroke’s abatement program is assessed as of the time in the
Citation.
41
456-57.) Staff who could not access the phone or a radio could verbally request that someone else
commence the Code Green process. (Tr. 59.) There was no equipment or procedures to silently
alert others of the need for assistance.
Employees discussed various issues with the radios. First, there were not enough to permit
every staff member to carry one while working on the units. (Tr. 60-61, 231; Ex. C-78 at 3.)
Second, the radios had reliability issues. (Tr. 60.) Problems included static, faulty batteries, and
radio airwaves shared with maintenance workers. (Tr. 60, 815.) During fresh air breaks for
patients, a single MHA is responsible for seven patients. (Tr. 56.) At such times, staff must rely
on the radio to summon additional assistance. Id. A nurse described multiple occasions when she
attempted to use the radio to call for a Code Green and just heard static or was not able to reach
enough employees. (Tr. 221.) Sometimes staff would have to make multiple calls for help with
both the radios and through the one phone on the unit in order to get enough people to respond to
the situation. (Tr. 806-7.) One nurse described a situation during the inspection period that
continued to escalate as attempts to get assistance were repeatedly made. (Tr. 806, 1482-83.) In
short, there was both difficulty in communicating the need for help and then a lack of people who
could respond. (Tr. 221, 815.)
Dr. Welch concluded that Pembroke lacked an adequate system for employees to summon
assistance. (Tr. 1000.) In addition to the problems with the radios and the limited number of
phones, there was also no way to silently seek assistance. Staff communications over the radios,
verbal calls for assistance, and use of the unit phone could be audible to potential assailants. In
contrast, panic alarms allow for discreet requests, which may help to avoid escalating a patient
further. (Tr. 1049.) The Secretary established that Pembroke’s approach was inadequate.
42
d) Failure to Properly Implement De-Escalation Plans
To help manage patient aggression and thereby reduce incidents of workplace violence,
Pembroke sought information from patients about activities or interventions that successfully
calmed them in the past. (Tr. 512, 1255, 1293; Exs. R-12, R-18, R-32 at 9.) This information was
then used to develop crisis intervention plans for staff to follow in order to limit patient aggression.
(Tr. 512-13.) Staff could augment the information from the patient based on what they observed
during treatment. Id.
The Secretary does not dispute that Pembroke sought information for de-escalation plans
and communicated the findings to staff. His contention is that the facility lacked sufficient
equipment to implement one aspect of the plans. Staff were instructed as part of their verbal de-
escalation training to employ the calming techniques patients identified. (Ex. R-32.) “Listening
to music” is the first option listed in the “helping or comforting strategies” section of the form used
for the de-escalation plans and many of the plans called for its use. (Tr. 830, 1434; Ex. R-18.) Dr.
Welch and employees reported that music was effective for de-escalating aggressive patients. (Tr.
73-74, 666, 830-31, 962-63, 1064, 1245, 1293, 1306.) However, employees discussed situations
where they were unable to allow patients to listen to music because there were too few devices.
(Tr. 74, 667.) The insufficient number of music playing devices also led to conflicts among
62
patients. (Tr. 74-75, 809-10.) The failure to have the equipment necessary to implement the
plans rendered the policy ineffective at abating the hazard. See Chevron, 11 BNA OSHC at 1332-
33 (finding inspection program to be an inadequate method of abatement because of how it was
implemented).
62 About six months before the hearing, Pembroke had implemented a new approach that improved patient access to
music for de-escalation. (Tr. 1255-56.) The Secretary’s arguments are limited to the conditions observed at the time
of the inspection.
43
e) Pembroke’s Abatement was Inadequate
Pembroke’s approach to staffing, summoning assistance, and implementing de-escalation
plans was inadequate. While Pembroke’s training program was not shown to be deficient, staff
63
training alone is insufficient to abate the hazard. Dr. Welch, supported by research, concluded
that to address the hazard, workplace violence programs must include adequate staffing and the
use of engineering controls such as maintaining systems to quickly summon assistance. (Tr. 986,
1000.) Despite the abatement measures implemented by Pembroke, the facility continued to
experience higher than average injuries. Pembroke failed to appropriately implement the safety
measures it had identified to address the hazard. See SeaWorld, 748 F.3d at 1206, 1215 (finding
existing procedures inadequate). The Secretary established that Pembroke’s program was
inadequate. Cf. U.S. Postal, 21 BNA OSHC at 1773-74.
The general duty clause requires employers to “take all feasible steps” to protect against
recognized hazards and implement every abatement measure “whenever it is recognized by safety
experts as feasible, even though it is not of general usage in the industry.” Gen. Dynamics, 599
F.2d at 464. As discussed below, the Secretary identified currently available engineering and
administrative controls that can be feasibly taken and will materially reduce the hazard. See Pelron
Corp., 12 BNA OSHC 1833, 1836 (No. 82-388, 1986) (finding that the Secretary may establish
that an employer's existing safety procedures were inadequate by demonstrating that there were
“specific additional measures” required to abate the hazard).
5. Feasible Means to Abate the Hazard Exist
Despite acknowledging it recognized the hazard and arguing it has taken multiple effective
63 Dr. Welch cited a study that pointedly notes the lack of research supporting the effectiveness of training alone in
reducing workplace violence. (Ex. C-96 at 15.)
44
steps to abate it, Pembroke claims the hazard is too unpredictable to be abated. (Resp’t Br. at 28-
29.) However, its own expert flatly refuted this contention. She explained “there are certainly
methods” to reduce the risk of workplace violence. (Tr. 1508.) Dr. Welch concurred with her that
64
there are feasible means to reduce incidents of workplace violence. (Tr. 934-35.) Unpredictable
events do not remove an employer’s obligation to adhere to the general duty clause and address
recognized hazards with feasible means of abatement. SeaWorld, 748 F.3d at 1207, 1215;
Armstrong, 8 BNA OSHC at 1074 (finding the employer’s contention that it should not be found
in violation of the general duty clause when it could not foresee the sequence of events that led to
injury to be without merit).
Respondents also criticize the nature of the Secretary’s multi-prong abatement. Yet, when
a workplace contains a recognized hazard that is likely to cause death or serious harm, the
employer must take “all feasible steps to eliminate or materially reduce the hazard.” Armstrong,
8 BNA OSHC at 1074, citing Gen. Dynamics, 599 F.2d at 464. Feasible abatement may take the
form of a process rather than a single one-time action. In Pepperidge Farm, Inc., 17 BNA OSHC
1993 (No. 89-265, 1997), the hazard could not be abated with a single action, so it was permissible
for OSHA to require the employer to engage in a process approach to abatement to determine what
action or combination of actions would materially reduce the hazard. 17 BNA OSHC at 2033.
See also Pegasus Tower, 21 BNA OSHC 1190, 1191 (No. 01-0547, 2005) (finding that following
a detailed compliance directive was a feasible means of abatement). Similarly, in Integra Health,
64 Dr. Welch acknowledged the role of patient behavior but argued that individual patient factors should not be over-
emphasized at the expense of other factors, particularly environmental or administrative factors well within the
facility’s control. (Tr. 973, 1010-11.) Peer reviewed literature supports his opinion. (Exs. C-95 at 2-3, C-96 at 16.)
45
65
several actions were found to be feasible methods for reducing workplace violence hazard. 27
BNA OSHC at 1849-51. The Secretary does not have to prescribe an action or series of actions
that address all situations where the hazard arises. Abatement may still be feasible even if it cannot
be used in all situations. See Wheeling-Pittsburgh Steel Corp., 10 BNA OSHC 1242, 1245 (No.
76-4807, 1981) (consolidated).
66
While not a process per se, the Secretary has set forth multiple abatement methods here.
He argues that each method is feasible and will materially reduce the hazard. (Sec’y Br. at n.7.)
The Secretary argues that all these actions should be taken. Id. But, if the undersigned concludes
that one or more of the methods are not feasible, the Secretary argues that each remaining method
is feasible and would materially reduce the hazard. Id.
Several of the proposed abatement actions relate to maintaining appropriate staffing at the
facility:
1. Cease efforts to interfere with the issuance of medical orders that specify
required staffing arrangements.
2. Ensure that staffing is sufficient to allow the issuance and implementation of
medical orders that specify staffing arrangements.
3. Maintain staffing that is adequate to safely address changes in patient acuity
and new patient admissions. For example, do not decrease staffing levels mid-
shift regardless of the timing of patient discharges.
4. Maintain adequate staffing to support therapeutic activity groups and recreation
periods, thereby engaging patients in activities that reduce patient agitation and
incidents of workplace violence.
5. Provide security staff and/or crisis intervention specialists on all three shifts to
65 The abatement methods proposed for the workplace violence hazard in Integra included: creating a written
workplace violence prevention program, creating a system for reporting and tracking safety concerns, providing
employees with a reliable way to summon assistance when needed, and increasing the number of staff for certain types
of assignments. 27 BNA OSHC 1849-50.
66 The Secretary divides his proposed abatement into seven paragraphs, labeled (a) through (g). (Sec’y Br. at 4.) Some
of the paragraphs require more than one action. Id.
46
assist in preventing and responding to violent events.
(Sec’y Br. at 4.) Three actions focus on how and where new patients are admitted.
1. Establish a team of nurses and mental health associates (MHAs) that focuses
primarily on the performance of the tasks associated with the admission and
assessment of new patients. This team should not be staffed by employees who
are assigned to care for already-admitted patients.
2. Dedicate a physical area, apart from all other units of the hospital, to the
admission and assessment of new patients.
3. Do not allow new patients into other units until the tasks associated with
admission, including clinical assessments and the provision of medical orders,
are complete.
Id. The final abatement measures relate to the provision of equipment to summon assistance and
implement patient crisis prevention plans:
1. Provide personal panic alarms for all employees who may work in close
proximity to patients, including but not limited to nurses, MHAs, housekeeping
staff, and case workers. Provide training on this equipment and ensure that the
equipment is maintained in working order at all times.
2. Maintain equipment that is sufficient for the implementation of each patient’s
individual crisis prevention plan.
(Sec’y Br. at 4.)
Pembroke does not allege that any of these steps are technologically or economically
infeasible. Notably, Respondents argue that Pembroke already complies with some of the
abatement methods. Nor does Pembroke allege it lacked the authority or control to implement the
proposed abatement measures. Instead, Respondents argue that the Secretary failed to provide
enough detail about what constituted adequate abatement and therefore it was deprived of the fair
notice of the abatement required. (Resp’t Br. at 21.) In their view, besides showing fair notice of
the hazard, the Secretary should also have to prove the employer knew how to materially abate the
hazard before the citation was issued. (Resp’t Br. at 21-23.)
Discussions of “fair notice” in Commission cases involving alleged violations of the
47
general duty clause typically center on the employer’s notice of an obligation to address a hazard
in the workplace, not on whether the employer had notice about how to abate or materially reduce
a hazard. See e.g., Otis, 21 BNA OSHC at 2206 (discussing fair notice in the context of how the
Secretary defined the hazard); Beverly, 19 BNA OSHC at 1163 (noting that although the complaint
may not have been precise, “at the time of the hearing” the Secretary sufficiently specified the
alleged hazard). Having found above that the Secretary provided sufficient notice of the hazard to
satisfy the Constitution's due process clause, it is time to assess Respondents’ demand that the Act
requires the Secretary to show that employers had fair notice of the required abatement.
The requirement to show feasible means of abatement relates to the Commission’s test for
ensuring that the Act does not impose strict liability. The Commission has not articulated the
abatement test in the manner Respondents seek. Under the Commission’s test, the abatement
prong requires the Secretary to establish the existence of feasible means to eliminate or materially
reduce the hazard. See e.g., Integra, 27 BNA OSHC at 1849 (addressing a violation of the general
duty clause for a workplace violence hazard); Waldon, 16 BNA OSHC at 1062 (affirming a
violation of the general duty clause for a viral exposure risk at a healthcare facility). Showing
feasibility requires the Secretary to put forth abatement methods that are capable of materially
reducing the hazard while also being technologically and economically possible. 27 BNA OSHC
at 1849-51. The Secretary does not have to show that the abatement methods would eliminate the
hazard. Arcadian Corp., 20 BNA OSHC 2001, 2011-13 (No. 93-0628, 2004) (finding two of the
Secretary’s proposed methods of abatement feasible). Nor is he tasked with showing that the
absence of the abatement method was the sole cause of harm. Id. His obligation is to show that
the proposed abatement is capable of being put into place and effective. Acme Energy Servs., 23
BNA OSHC 2121, 2127-29 (No. 10-0108, 2012) (finding the abatement prong met because
48
prescribed action would materially reduce the harm, even though it would not eliminate the
hazard), aff’d, 542 F.App’x 356 (5th Cir. 2013) (unpublished).
Respondents point to no precedent imposing an obligation on the Secretary to establish an
employer’s knowledge of the proposed abatement methods prior to a citation being issued. In
Chevron Oil, the Commission concluded that the Secretary had to show that feasible means to
eliminate the hazard exist. 11 BNA OSHC at 1330. It was not the Secretary’s burden to show that
the employer or its industry recognized the necessity for proposed safety equipment. Id. at 1330-
31. Instead, the Act requires the Secretary to establish recognition of the hazard and that it can be
materially reduced feasibly. Id. See also Kansas City, 10 BNA OSHC at 1422 (“the recognition
element of an employer’s duty under the general duty clause refers to knowledge of the hazard,
not recognition of the means of abatement); Integra, 27 BNA OSHC at 1849, 1851.
In the present matter, the employer had notice of effective methods of abatement before
the Secretary issued the citation. The methodologies proposed here, while tailored for the issues
identified at Pembroke Hospital during the inspection, align with the OSHA Road Map and
Workplace Violence Guidelines. (Exs. C-97, C-102.) The Road Map specifically discusses
administrative controls to address the hazard, including, assessing patients for violence during
admission, ensuring adequate staffing on all units and shifts, and having policies and procedures
that minimize stress for patients. (Ex. C-102 at 18-19.) It also discusses engineering controls such
as panic buttons. Id.
Besides these publications, a letter sent to Pembroke prior to commencement of the
investigation that lead to the instant Citation outlines similar approaches to abatement as those the
Secretary now seeks. (Ex. R-37.) The letter explains that MHAs are exposed to workplace
violence hazards at Pembroke Hospital. Id. But, as noted above, the letter states that OSHA
49
67
elected not to cite the hazard. Still, the letter encourages Pembroke to act and advises that
feasible and acceptable means to reduce the hazards of workplace violence at Pembroke Hospital
include: (1) modifying admissions process, (2) improving responses to crises, (3) making
adjustments to staffing, and (4) providing staff with personal panic alarms:
Carefully review admissions to ensure your staff are equipped to handle acute
patients who have a history of violent behavior. If an admitted patient has a known
history of violent behavior from previous institutions, increase staffing levels for
the unit and inform all workers of the potential of violent behavior.
Conduct a workplace analysis … to find existing or potential hazards for assaults
and workplace violence. This process should involve record analysis, tracking of
injuries, and monitoring trends based on location, shift changes, and staffing levels.
Workplace analysis should include review of personnel ability to respond to unit
crisis on all shifts. Review the staffing on all shifts to ensure that it reflects the
daily acuity of the patient as well [as] patient census and to ensure workers are able
to work without putting themselves at risk for a violent assault.
Change the present grid to increase staffing levels on the acute units and other units
where attacks are occurring. Ensure that extra staff is in place when a patient’s
condition requires a one to one watch and when there has been a history of attacks
in a unit. An increase in staff levels has the potential to decrease injuries in the
workplace. … .
… A silent button that is carried by staff would provide an additional and immediate
way to alert staff, in the event of an escalating situation with a patient and may
reduce response times. Ensure that if purchased, all employees are trained and that
the panic buttons are maintained and tested according to manufacturer instructions.
…
Id. The letter goes on to point Pembroke to the OSHA Workplace Violence Guidelines and
indicates the facility can request a free on-site consultation to identify other feasible measures of
abatement. Id. The letter does not provide an obligation independent of the Act to take the specific
steps identified therein. Id. Pembroke was free to adopt different feasible abatement measures to
67 In the year prior to this letter, Pembroke had thirteen injuries related to aggressive behavior. (Ex. R-37.) After its
issuance, the number of injuries at Pembroke increased. (Tr. 292, 926; Exs. C-60, C-68, C-69.)
50
address recognized hazards in its workplace. See Pepperidge Farm, 17 BNA OSHC at 2032
(employers are free to develop solutions different than what the Secretary proposes to render their
workplace “free” of recognized hazards); Brown & Root, Inc., Power Plant Div., 8 BNA OSHC
2140, 2144 (No. 76-1296, 1980); Chevron, 11 BNA OSHC at 1334, n.16 (emphasizing that the
employer could institute “other equally effective methods as long as its alternative methods
achieve at least as great a reduction of the hazard”).
Although the letter did not obligate Pembroke to approach the hazard the way the Secretary
suggests, it also did not provide immunity from complying with the Act. When employers know
existing safety standards do not adequately address hazards, they must take all feasible steps
necessary to protect employees. Int’l Union, United Auto., Aerospace & Agric. Implement
Workers of Am., et al. v. Brock, 815 F.2d 1570, 1577 (D.C. Cir. 1987). “The question is whether
a precaution is recognized by safety experts as feasible, and not whether the precaution's use has
become customary.” Beverly, 19 BNA OSHC at 1191.
Pembroke did not adopt the suggested measures outlined in the letter. The number of
employee injuries from the hazard increased from 2015 to 2017. (Exs. C-68, C-69.) Dr. Welch
identified thirty-two employee accident reports attributable to patient on staff violence in the
Pembroke records he reviewed. (Tr. 926.) The Secretary showed that Pembroke’s alternative
approach to abating the hazard was inadequate. So, rather than a lack of fair notice, this case
represents a situation of notice of both the presence of a hazard (something Respondents do not
dispute) as well as notice of feasible abatement measures.
The OSHA publications and letter to Pembroke alone do not satisfy the Secretary’s burden
on the abatement prong. The Secretary must show that his proposed abatement will materially
reduce the hazard. To meet that obligation, the Secretary largely relies on the expert testimony of
51
Dr. Welch. Before offering his opinion, Dr. Welch conducted an extensive review of Pembroke
documents and relevant peer reviewed literature. (Tr. 919-23, 1143-44.) He also surveyed how
other similar facilities abated the hazard. Id. Based on his experience and research, he concluded
that each abatement measure outlined in the amended citation was a feasible means by which an
employer could materially reduce the hazard of workplace violence. (Tr. 923-24.) See Arcadian,
20 BNA OSHC at 2011 (“Feasible means of abatement are established if conscientious experts,
familiar with the industry would prescribe those means and methods to eliminate or materially
reduce the recognized hazard”).
Respondents also offered expert testimony on the issue of abatement from Ms. Cooke. Her
testimony was largely based on her experience rather than peer reviewed studies or time spent
reviewing Pembroke Hospital. (Tr. 1458.) Throughout much of her testimony, Ms. Cooke failed
to identify the source material for her expressed beliefs. (Tr. 1458-59.) When asked, Ms. Cooke
did not identify any specific literature she reviewed before evaluating this matter. She said that
she “might’ve (sic)” re-looked at the Workplace Violence Guidelines or the Joint Commission’s
Sentinel Event Alert on Preventing Violence in the Health Care Setting (“Sentinel Alert”). (Tr.
1458; Exs. C-97, C-98.) However, these publications were not identified as documents she
reviewed in her opinion letter. (Tr. 1459.) Similarly, Ms. Cooke indicated that she “attempted”
to look up “some of the research” relied on by Dr. Welch, but does not indicate which studies, if
any, she reviewed either before issuing her opinion letter or before testifying at the hearing. (Tr.
1458.) Ms. Cooke was not sure how much time she spent on her review but “would venture to
68
guess” it was 25-30 hours. (Tr. 1461.)
68 “About six hours” of her time was spent at Pembroke Hospital itself. (Tr. 1474.)
52
Ms. Cooke was offered for only limited purposes. (Tr. 1463.) She offered no opinion on
whether Pembroke could have materially reduced the hazard of workplace violence. (Tr. 1461.)
She was accepted as an expert who evaluated “the suggested feasible abatement methods offered
by the Secretary in this case.” Id. In contrast, Dr. Welch was asked to assess, among other things:
(1) the risk of workplace violence at Pembroke, (2) the recognition of the risk of workplace
violence; (3) what measures would create a material reduction in that risk; and (4) were those
methods identified feasible for Pembroke to implement. (Tr. 902.) While satisfying the minimum
requirements for admissibility, Ms. Cooke’s testimony is given less weight than that of Dr. Welch.
His opinions more fully addressed the contentions at hand and were backed by specifically
identified peer reviewed literature.
a) Staffing
As discussed in the evaluation of the existing methods of abatement in place, staffing at
Pembroke was deficient. Dr. Welch, supported by peer reviewed studies, testified that increasing
staffing could materially reduce the risk from the hazard and that doing so was feasible. (Tr. 903,
937-38, 985; Exs. C-97, C-98, C-101.) Ms. Cooke agreed that examining staffing was relevant to
the cited hazard. (Tr. 1498-99.) She acknowledged that one of the ways to reduce the risk
associated with workplace violence is to both review and have “good staffing.” (Tr. 1510.) She
has advised hospitals that adequate staffing is important to prevent workplace violence. (Tr. 1529.)
The Director of Nursing, Ms. Kent, also recognized the role extra staff can play in diffusing
aggressive events. She explained that the facility experienced more crises on the evening shift and
that adding an additional person was helpful to both prevent and address crises. (Tr. 1437.) The
Secretary established a link between shifts with inadequate staffing and increases in the hazard.
(Exs. C-3, C-78.)
53
The Secretary showed that it was feasible to increase staffing at Pembroke Hospital. Levels
of staffing at Pembroke Hospital were objectively lower than at similar facilities in the region and
nationally. (Tr. 104-5, 937-38.) For example, depending on the shift, Pembroke Hospital had
69
approximately 15-30% fewer nurses than a similar psychiatric facility in the same state. (Tr.
937.) AS, who worked both at Pembroke Hospital and another similar facility with the same sized
units, explained that there was less direct care staff at Pembroke. (Tr. 105.) The other facility had
more nurses per shift and no less than three MHAs per unit. Id. In comparison, Pembroke’s units
typically operated with fewer nurses and MHAs. (Tr. 105-6.) The competitor facilities in the
region surveyed by Dr. Welch maintain higher levels of staffing and Respondents failed to counter
70
his research that implementing the abatement called for by the Secretary was feasible. See Trinity
Indus., 15 BNA OSHC 1481, 1485 (No. 88-2691, 1992) (finding in connection with a violation of
a specific standard that the implementation of a safety measure at other facilities shows the action
was feasible).
The Secretary proposes five methods to address the staffing deficiency. (Sec’y Br. at 4.)
The proposed abatement implicitly acknowledges that there was more than one way to increase
staffing at the facility. Respondents twist this flexibility to argue that the Secretary failed to
establish the specific steps it must take to sufficiently reduce the hazard. In fact, the Secretary
showed that Respondents failed to maintain a sufficient level of staffing: (1) to allow for increased
observation of particular patients; (2) for the acuity of particular units; (3) for anticipated
admissions; (4) to respond to crises, particularly on the evening and overnight shift; and (4) to
69 Pembroke also had more patients per doctor than other facilities surveyed by Dr. Welch. (Tr. 938.)
70 Respondents do not contend that the facility failed to make a profit. Respondents did not introduce any information
regarding the facility’s finances such as budget documents. There is no evidence the facility could not afford any of
the Secretary’s proposed abatement measures. See Capeway Roofing Sys., Inc., 20 BNA OSHC 1331, 1342-43 (No.
00-1968, 2003) (party would have produced evidence if it had been favorable).
54
engage patients in therapeutic group activities. The Secretary established that bringing the facility
into alignment with the baseline staffing at other similar facilities was feasible and would reduce
the hazard by addressing these deficiencies.
(1) Staffing for Medical Orders
The Secretary argues that Pembroke interfered with the issuance of medical orders for
staffing and failed to ensure there was enough staff to implement such medical orders:
Cease efforts to interfere with the issuance of medical orders that specify required
staffing arrangements. Ensure that staffing is sufficient to allow the issuance and
implementation of medical orders that specify staffing arrangements.
As noted above, when a patient is at high risk for assaultive behavior, a doctor can issue a medical
order for direct observation by assigning an MHA to stay at all times within arm’s reach of a
71
patient. (Tr. 378-79, 1190-91.) Pembroke considered such orders to be a “last resort” to handling
patients and were used only temporarily. (Tr. 1191, 1300.) Orders for 1:1 observation are
reviewed by the management team. (Tr. 1191.) The focus of these reviews is to assess whether
72
the patient continues to need the higher level of observation. Id.
Dr. Welch expressed his view that administrators were pressuring staff to remove patients
from 1:1 observation. (Tr. 1037-38.) He explained that interference, by management, with the
medical determination of whether such 1:1 observation is inappropriate and increases the risk of
workplace violence. (Tr. 1038.) His opinion was based on employee statements as well as
71 Sometimes 1:1 observation would be limited to only those times that the patient was awake. (Tr. 379.) Patient
behavior is unpredictable, and patients wake at unexpected times. In such instances, there would be an immediate
need for an employee to observe the patient directly. (Tr. 379-80.) Ms. Devane indicted that in such situations the
supervisor would have the float take over that patient. (Tr. 380.) However, only one person worked as a float on the
overnight shift.
72 A smaller group also assesses the need for such observation at other times, so that orders for 1:1s are reviewed
approximately every eight hours. (Tr. 1191.)
55
testimony about management’s involvement in the decisions about orders for 1:1s. (Tr. 919-24.)
He was surprised that the medical decision to implement a 1:1 required notification of the CEO
and opined that this practice alone could pressure employees to refrain from seeking a 1:1 even
though safety concerns warranted such an arrangement. (Tr. 1004, 1006, 1038.)
An MHA explained her view that 1:1 observation was not consistently put in place when
called for on the grounds of employee safety. She testified that after a patient attacked her, the
73
patient was only briefly placed on 1:1 observation for part of the shift. (Tr. 799-801.) Staff also
described pressure to have just enough staff to meet the minimum requirements. (Tr. 1044.) On
some shifts, there were just three employees for a unit. (Tr. 380.) If one of the MHAs was assigned
to observe a single patient, the other two employees had to handle the remaining patients and tasks.
Id. If a second patient required a 1:1, that could not always be accommodated until the next shift.
Id. The CEO described receiving “heat” about his decisions around the number of staff per patient
but asserted that his determinations about staffing were not over-ridden. (Tr. 732-33.) Still,
Pembroke’s approach of having the least number of employees working as possible made fulfilling
staffing requests difficult, particularly during the overnight shift. (Tr. 801, 1044.) Notably,
Pembroke was not able to consistently implement the Plan of Correction it submitted to the DMH
which called for 1:1 assignments to be handled by adding staff. (Tr. 396, 703-4; Exs. C-38, C-47.)
Compared to other facilities, staff to patient ratios were consistently lower at Pembroke
Hospital than at other stand-alone psychiatric hospitals. (Tr. 1046-47.) On average, Pembroke
74
Hospital had less nursing staff per occupied bed as compared to national averages. (Tr. 1046-
73 Ms. Devane explained that 1:1 observation could be intrusive for patients. (Tr. 1191.) The Secretary does not
dispute this. His contention is limited to situations when 1:1 observation is clinically warranted for assaultive behavior
that creates a risk of violence directed at employees.
74 Pembroke Hospital operated shifts with 15 to 20 percent fewer nurses than other similar psychiatric facilities in the
same state. (Tr. 1047.)
56
47.) Dr. Welch opined that it would be feasible for Pembroke to maintain a higher level of baseline
staff to bring it in line with other similar facilities. Id. Such staffing would permit 1:1s to be put
in place more quickly rather than waiting for the next shift to begin. (Tr. 1044-47.) While Ms.
Cooke indicated staffing was adequate, she did not dispute or counter the evidence relied on by
Dr. Welch in reaching his conclusion that increasing the level of staff would reduce the hazard.
As for the other part of this proposed abatement, the interference with medical orders
concerning staffing arrangements, the record reveals that Pembroke was already abiding by this.
Rather than interference with the issuance of orders for 1:1s, the issue was Pembroke’s ability to
staff the assignments. The Secretary established that having a greater staff to patient ratio would
permit the prompt, appropriate use of 1:1 observation to materially reduce the hazard.
(2) Staffing for Acuity and New Admissions
The Secretary argues that to materially reduce the hazard, Respondents need to maintain
adequate staffing to address changes in patient acuity and new patient admissions:
Maintain staffing that is adequate to safely address changes in patient acuity and
new patient admissions. For example, do not decrease staffing levels mid-shift
regardless of the timing of patient discharges.
(Sec’y Br. at 4.) Dr. Welch, supported by peer reviewed literature, explained the need for
appropriate staffing, particularly to handle admissions, which are a “high risk time for acuity.”
(Tr. 1058.) Increased admissions are associated with workplace violence incidents. (Ex. C-101.)
Respondents agree with the need to staff for acuity and admissions. Still, as discussed,
Pembroke largely only met the minimum number of staffing hours per patient. There’s no debate
that this minimum number was not the appropriate average ratio of staff per patient for all
circumstances. In other words, the DMH’s view is that it is never appropriate to have less than the
ratio of staff per patient called for by the grid. However, no one contends that the level of staffing
57
called for by the grid is always adequate to address the hazard of patient on staff violence. There
is no dispute that to keep workers safe, each unit will routinely require higher staff to patient ratios
to address acuity.
While the staffing records showed 1:1 assignments, there was little evidence of increased
staffing to address overall acuity. Increasing the number of patients on 1:1 observation caused the
remaining employees to be responsible for a higher number of patients. (Tr. 1045.) For example,
on some shifts, there were just three employees for a unit. (Tr. 380.) If one of the MHAs was
assigned to observe a single patient, the other two employees had to handle the remaining patients
and tasks. Id. Ordering 1:1 observation helped to minimize risks associated with a single patient
in acute distress, but it left fewer employees to monitor the rest of the patients for agitation or other
signs of potential violence. (Tr. 871, 1010-11.) Each employee was responsible for more patients,
75
making it more difficult to work on de-escalation. Id.
Maintaining adequate staff for admissions was also a feasible abatement method which the
Secretary showed would reduce the hazard. Respondents’ expert, Ms. Cooke, acknowledged that
new patients “really need a lot of attention and a lot of care.” (Tr. 1467-68.) She described
admissions as “very difficult” and “critical junctures.” Id. In her view, they present “an
opportunity for danger.” (Tr. 1468.) Patients may be harmful to others during the transition into
the facility. Id. Adequate staffing was necessary to address the potential of violence from the
75 Dr. Welch explained that verbal de-escalation requires several people. (Tr. 966, 1010.) It requires enough staff
who can both quickly identify who is escalating and then change tasks so there can be a quick intervention. Id. Even
then, patients may not have sufficient connection with reality for verbal intervention to work. (Tr. 1010-11.) So, a
program needs additional forms of abatement to be effective. (Tr. 1011.) Similarly, Mr. Quinn, the crisis intervention
specialist, indicated that he can spend considerable amounts of time trying to talk to a patient to find reasonable
alternatives to their violent behavior. (Tr. 1250.) However, there are six patient units and typically only one crisis
intervention specialist on one shift for all the units. (Tr. 1250-53.) KS, an MHA, explained that often there were
multiple agitated patients and frequently there were not enough people to de-escalate two or three agitated patients.
(Tr. 871-72.)
58
arriving patient. Admissions also triggered the need for adequate staff to work with the already
admitted patients to minimize risks and respond quickly if assaultive behavior occurred. (Tr. 947,
963, 966, 1010, 1057-58.)
Dr. Welch opined that there were simply not enough employees to prevent workplace
violence incidents and minimize the consequences of such occurrences. (Tr. 963, 1031, 1047-48.)
Pembroke argues it staffed for acuity and admissions but did not offer documentary evidence
showing a pattern of higher staffing levels to accommodate acuity or anticipated admissions. In
contrast to the management witnesses, direct care employees testified that Pembroke did not
consistently staff for admissions or acuity. (Tr. 132, 839, 863, 871-72, 879.) The number of
admissions varied greatly. On at least one shift during the inspection period 14 patients were
admitted. (Tr. 1008.) KS recalled having seven patients admitted to one unit during a shift. (Tr.
863.) Another MHA explained that admissions took a patient to staff ratio that was “already
stretched too thin” to an even lower level. (Tr. 84.)
Records reveal consistently low staffing levels, and even some occasions where the level
of staff did not meet the DMH minimum requirements. (Exs. C-29, C-47, C-78.) The testimony
from direct care providers about the failure to staff appropriately for admissions and acuity is
credited over the management witnesses on this issue. Management employees could have offered
documentary evidence to support their claims, if it was available, but chose not to do so. See
Capeway, 20 BNA OSHC at 1342-43. Dr. Welch explained that Pembroke could feasibly maintain
sufficient staffing to accommodate changes in patient acuity and new patient admissions. He noted
that another similar facility maintains a much higher patient to staff ratio for newly admitted
patients. (Tr. 1117-18.) The higher ratio allows more staff to safely respond to assaultive behavior
as opposed to Pembroke’s approach of having a single employee in an isolated room handle
59
searches and other tasks with the new patients. (Tr. 947, 1031, 1118.) The Secretary showed it is
feasible for Pembroke to maintain staffing that is adequate to safely address changes in patient
acuity and new patient admissions.
As for the second part of this abatement method, ending the practice of sending employees
home mid-shift, employees explained that when the ratio of patients to staff exceeded the minimum
requirement set out in the grid, an employee would be sent home before the end of his or her shift.
(Tr. 109, 329, 838-39.) AS and KS both described instances where staff was sent home, and then
a new admission would leave the unit short staffed for the remainder of the shift. (Tr. 109, 838-
39.) According to AS, the other psychiatric facility he was familiar with did not adjust staffing
76
downward partway through shifts. (Tr. 109.) Pembroke acknowledges that this occurred and
recognizes that the facility “may or may not” be able to add staff after the start of a shift if
admissions increase the census to the point that additional staff is needed either by terms of the
grid or because of acuity. (Tr. 382.) Dr. Welch viewed the practice of mid-shift reductions as
unsafe, particularly given the low baseline level of staffing at Pembroke. (Tr. 1060-61.) The
practice made it more likely that Pembroke would be left unable to respond appropriately to
prevent or mitigate violent situations if admissions or the overall level of acuity changed. Id.
Pembroke had no separate staff focused on admissions, so being understaffed when a new patient
arrived, made it particularly difficult for staff to handle potentially violent patients who may be in
77
acute distress. (Tr. 1059-61.) The Secretary established that ending the practice of sending
76 The other facility was a state-run hospital. (Tr. 103.) It has fewer units, but the unit size is the same as at Pembroke
Hospital. (Tr. 103-4.)
77 Dr. Welch also explained that when staff was tied up with admissions tasks, other patients have “unmet needs.”
(Tr. 1030-31.) The frustration associated with unmet needs is a well-documented pre-cursor to violent acts by patients.
(Tr. 946-47, 962, 1033; Ex. C-101.) KS explained that this occurred at Pembroke Hospital. (Tr. 871-72.) There were
times when the number of agitated patients exceeded the number of caregivers resulting in staff being unable to timely
address patient agitation. Id.
60
employees home mid-shift was one way to increase the number of workers available to address
78
changes in unit acuity and handle new admissions.
(3) Provide security staff and/or crisis intervention specialists
The Secretary proposes security staff “and/or” crisis intervention specialists on all three
shifts. (Sec’y Br. at 4.) Dr. Welch, supported by peer reviewed literature, opined that the presence
of security personnel reduces the rate of assaults. (Tr. 980; Ex. C-96.) Similarly, having
inadequate security is a risk factor for workplace violence. (Tr. 985, 995; Ex. C-97, C-99.)
Pembroke did not have “security” personnel. (Tr. 96.) Instead, all individuals with direct
patient care responsibilities were trained in a de-escalation technique, called Handle with Care.
(Tr. 1189; Exs. R-10, R-32.) Only on the evening shift did Pembroke employ a “crisis intervention
specialist.” (Tr. 1233.) The crisis intervention specialist is not assigned to any particular unit and
does not have direct patient care tasks. (Tr. 964, 1437.) The employee rounds through the units
to identify problems and address them before they escalate. Id. The individual is also responsible
for making sure doors are appropriately locked. (Tr. 964.)
In proposing security or crisis intervention specialists for all shifts, the Secretary does not
insist that Pembroke specifically designate employees as “security”—the proposal permits use of
crisis intervention specialists instead. (Sec’y Br. at 4.) The abatement method calls for there to
be employees without specific direct care tasks focused on safety who could immediately respond
to actual or threatened incidents of violence. The Secretary argues that having such people
available is feasible and would materially reduce the hazard.
Dr. Welch conceded that the crisis intervention specialist on the evening shift was effective.
78 Ending the practice of having employees leave mid-shift was not the only way to maintain sufficient staffing to
manage increases in acuity and/or admissions.
61
(Tr. 1009, 1051.) However, it was only one employee on one shift. The one employee was
responsible for six units, including making sure multiple doors were locked and secured. (Tr.
1009.) Dr. Welch opined that there should have been enough people available on all three shifts
to ensure safety and to prevent and minimize the hazard. (Tr. 1010, 1051-52.) He explained how
abating the hazard required regular rounds focused on security. (Tr. 995.) And, he emphasized
the importance of having staff dedicated to responding to immediate crises. (Tr. 1052, 1087.)
At Pembroke Hospital, MHAs and nurses had numerous patient care tasks, such as
dispensing medications, running groups, housekeeping, and coordinating care. (Tr. 1087.) Many
tasks could not be instantly stopped to permit the person to respond to a call for assistance. Id. In
addition, MHAs were responsible for routinely taking patients off units for fresh air breaks and
meals in the cafeteria. (Tr. 55-56, 863.) When conducting such tasks, MHAs could not leave
patients alone to respond to requests for assistance. (Tr. 863, 949.)
Dr. Welch also explained that some staff did not feel physically capable of managing very
large, violent patients --- particularly on their own. (Tr. 1087.) In his view, Pembroke needed
employees physically capable of assisting with restraining large patients and who were focused on
safety as opposed to other tasks. (Tr. 1087, 1093-94.) The single person in the role of crisis
intervention specialist on one shift was not adequate for the degree of patient aggression and the
number of workplace violence incidents. (Tr. 1051.) Dr. Welch opined that other behavioral
health facilities were able to have staff dedicated primarily to safety and opined that Pembroke
could feasibly do the same. (Tr. 1053.)
While Ms. Cooke had concerns with maintaining a security staff, she acknowledged the
value of having additional staff available to respond to crises and manage situations. (Tr. 1492,
1495-96.) She noted that managing patient behavior is particularly difficult on the evening shift.
62
(Tr. 1496.) However, in her view, having only one person on the evening shift as a crisis
intervention specialist was not problematic. As for the lack of someone in such a role on the night
and day shift, Ms. Cooke cited the float position at night and the availability of other staff during
the day. (Tr. 1478.) However, the float could be assigned patient care tasks, including a 1:1
assignment that would prevent him/her from being available to respond to a crisis. (Tr. 374-75,
379, 1437, 1478.)
Importantly, Ms. Cooke did not dispute Dr. Welch’s opinion that having staff focused on
security was feasible. She did not specifically review the studies relied on by Dr. Welch in
reaching his conclusions. (Tr. 1518.) Also, she admitted awareness of other facilities that had
building security. (Tr. 1493-94.) In particular, she acknowledged being familiar with facilities
that have security respond to a code, such as to “be manpower” and “help restrain” patients or de-
79
escalate situations. (Tr. 1492-93.) Ms. Cooke did not address the two concerns with Pembroke’s
approach cited by Dr. Welch: (1) the lack of anyone assigned only to safety on the day and night
shifts; and (2) the lack of physical capabilities of some of the individuals tasked with controlling
violent patients. Additionally, her testimony failed to rebut the Secretary’s evidence of feasibility
and effectiveness. Altogether, Ms. Cooke’s testimony did not rebut the Secretary’s evidence that
having security staff “and/or” crisis intervention specialists on all three shifts was feasible and
would materially reduce the hazard.
(4) Staffing for Therapeutic Activity Groups and Recreation Periods
The Secretary proposes that Pembroke maintain sufficient staffing for “therapeutic activity
79 Pembroke’s Code Green policy directed employees to contact 911 for “psychiatric emergencies or as deemed
appropriate.” (Ex. R-9 at 3-4.) Ms. Cooke argued that uniformed personnel could increase a patient’s agitation but
did not discuss Pembroke’s policy of contacting outside emergency responders for psychiatric emergencies. (Tr.
1495.)
63
groups and recreation periods.” (Sec’y Br. at 4.) Dr. Welch, supported by peer reviewed literature,
explained that canceling therapeutic activities can increase the level of acuity for the unit. (Tr.
969-70; Ex. C-101.) Boredom and insufficient activities are also precipitants for violence. (Tr.
967-68, Ex. C-101.) Structured organized activities, along with the reliability and predictability
of their occurrence promotes positive engagement and reduces acuity. (Tr. 820-21, 949-50, 1062.)
Conversely, unmet needs can trigger violence. (Tr. 946-47, 949-50, 960, 1030; Ex. C-101 at 9.)
If an MHA can engage some patients in an activity, this frees staff to better intervene with sicker
patients. (Tr. 970.) Dr. Welch, informed by the employee statements, noted that the lack of
activities was particularly detrimental for the adolescent units. Id. Teenagers “tend to be very
stimulus prone” and failing to engage them consistently can lead to adverse consequences such as
agitation. (Tr. 965, 970-71.) Engaging patients in therapeutic group activities and recreation
reduces patient agitation and incidents of workplace violence, making it an effective method to
80
materially reduce the hazard. (Tr. 967-68, Ex. C-101.)
As discussed, therapeutic groups were routinely canceled due to inadequate staffing. (Tr.
819-20.) Dr. Welch explained that increased staffing would allow therapeutic group activities to
occur consistently as scheduled. (Tr. 1062-63.) He noted that another similar facility has a
dedicated staff for conducting therapeutic group activities. (Tr. 1063.) Because the employees
running the groups have no direct care responsibilities, the need to handle admissions or
emergencies did not result in therapeutic activities being canceled. Id. Ms. Cooke recognized that
group activities were regularly canceled but alleged that the number of cancellations was not “an
80 The proposed abatement calls for both group activities and recreation periods. (Sec’y Br. at 4.) MHAs took patients
off the units for fresh air breaks. (Tr. 55-56.) The Secretary failed to show that the few times during the inspection
period when these breaks did not occur materially contributed to the hazard. Pembroke appeared to have sufficiently
implemented the need for fresh air breaks.
64
overabundance.” (Tr. 1503.) She did not refute Dr. Welch’s view that therapeutic groups
materially reduce the hazard. Nor did she address whether Pembroke could maintain a higher staff
to patient ratio to ensure groups more consistently occurred as scheduled. The Secretary
established that it was feasible to maintain a higher level of staffing which would reduce the
frequency with which groups were canceled. The Secretary also established that maintaining
therapeutic group activities would materially reduce the hazard.
b) Change how admissions occur
The next proposed abatement method is to have an admissions area separate from the on-
going care units for admissions and requiring that new patients remain in the separate area until all
clinical assessments are complete. Specifically, the Secretary proposes that Pembroke:
1. Establish a team of nurses and mental health associates (MHAs) that focuses
primarily on the performance of the tasks associated with the admission and
assessment of new patients. This team should not be staffed by employees
who are assigned to care for already-admitted patients.
2. Dedicate a physical area, apart from all other units of the hospital, to the
admission and assessment of new patients.
3. Do not allow new patients into other units until the tasks associated with
admission, including clinical assessments and the provision of medical
orders, are complete.
(Sec’y Br. at 4.) The first method calls for an admissions team focused solely on the tasks
associated with admitting new patients. The Secretary showed there was an overall need for
additional staff at the facility to reduce the cited hazard. (Tr. 1058.) Carefully screening newly
admitted patients was critical to addressing the hazard. The initial assessments looked at the
patients’ history of violent behavior and sought information on how patients could be de-escalated.
(Exs. R-1, R-9.) As part of this assessment, MHAs searched patient belongings to identify
materials that could harm staff. Id. Most of the admissions process took place in a small room
65
with the MHA alone with the patient even before the belongings search was completed. (Tr. 81.)
The room had no phone to commence a Code Green and even with a radio it was difficult to call
for help from the room. (Tr. 82.)
The record reveals that admissions tasks are time consuming and that there is an increased
risk for an employee to experience violence during this time. (Tr. 1006-7, 1011-13.) The overall
level of staffing was often too low to handle the acuity of existing patients and more than a few
admissions. Admissions took time away from existing patients and sometimes introduced an acute
patient into the unit population before he/she had adequate medication. (Tr. 1030-31.)
In those instances where there was enough staff to adequately handle the admissions tasks
and care for existing patients, the Secretary did not adequately explain how precluding employees
who handle admissions from other care responsibilities would materially reduce the hazard. In
other words, the Secretary showed that Pembroke failed to maintain adequate staffing levels but
he did not show how implementing the additional abatement method of precluding admissions
staff from having other care responsibilities would materially reduce the hazard if staffing was
already adequate to handle admissions. Unlike other facilities, Pembroke Hospital does not accept
“walk-ins,” i.e. patients that have not yet been assessed by someone outside of the facility. (Ex.
R-9.) The information obtained during these pre-admissions calls is often incomplete. Still, the
facility had some information about the patients and sometimes the patients were stabilized before
81
their arrival at Pembroke. (Tr. 1468-69; Ex. R-9.) Dr. Welch indicated that admissions could
81 When Ms. Cooke was discussing admissions, she was not always clear about whether she was describing the
situation at Pembroke or her experience at other facilities. (Tr. 1469.) For example, she indicated that at “most” in-
patient facilities she was aware of, or worked act, they would not accept “highly psychiatrically unstable” patients.
(Tr. 1468.) She did not clarify whether that was true of Pembroke. (Tr. 1468-69.) Further, when describing the
threats associated with newly admitted patients, she said that “we mitigate the risk.” (Tr. 1468.) When asked by
counsel whether she meant “Pembroke” when she used the term “we,” Ms. Cooke explained that she meant Pembroke
or was using the term “we” in the sense of the “behavioral health world.” (Tr. 1469.)
66
take as many as twenty-two hours of nursing time per day. (Tr. 1008.) On average, however,
much less time was necessary for admissions at Pembroke. To reach twenty-two hours of nursing
time, there would have to be fifteen admissions, and each would have to take ninety minutes. (Tr.
1008.) While some admissions took the full ninety minutes and sometimes there were many
admissions, the record indicates that in 2016, on average, Pembroke had approximately seven
admissions per day. (Tr. 1436.)
Regarding the admission and assessment of new patients in a dedicated physical area, Dr.
Welch opined that a separate admissions unit would materially reduce the risk of workplace
violence. (Tr. 1028-30.) In his view, the existing spaces on the units used for some of the
admissions tasks were unsafe because they were isolated and small. (Tr. 1031.) Further, patients
went directly from the small rooms into the common area with existing patients. (Tr. 1033.) The
newly admitted patients find themselves in uncertain situations, may be frustrated, and could lack
proper medication. (Tr. 1032-34.) Dr. Welch explained that Pembroke’s approach creates a
“destabilizing situation.” (Tr. 1034.) AS and KS also asserted that a separate unit would be helpful
to abate the hazard. (Tr. 83-84, 861-65.) AS explained that while a separate unit would not change
patient behavior it would eliminate “a big risk factor” in terms of the new patient interacting with
existing patients. (Tr. 164.) Similarly, Ms. Wollner, the Director of Admissions, acknowledged
that a separate admissions unit would reduce the burden on the units. (Tr. 1386-87.)
In terms of technical feasibility, the facility had space apart from the units that could be
used for admissions. (Tr. 93, 1034.) Other similar facilities also had dedicated admissions areas.
(Tr. 104-5.) Dr. Welch discussed other similar facilities at which the assessment, evaluation, and
medication of new patients occur in dedicated areas apart from where existing patients are located.
(Tr. 936, 1027, 1031-32, 1034, 1101.) The Secretary presented evidence that it was
67
technologically feasible to dedicate a physical area apart from the other units to handle assessments
before patients are moved into the treatment units.
However, the Secretary falls short on persuading how moving admissions from the units
to this separate area would materially reduce the hazard if Pembroke was adequately staffed to
handle such admissions and addressed the difficulties with summoning assistance. Again, the
Secretary showed that Pembroke failed to consistently staff in anticipation of admissions and
addressing this deficiency would materially reduce the hazard. Rather than being a separate
abatement method, the proposal to have a separate admissions area appears to be one approach to
handling the inadequate staffing and insufficient means to summon assistance. In other words, if
Pembroke had enough employees on the units and employees could quickly summon assistance,
then a separate admissions unit might not be necessary to further reduce the hazard. See Cerro
Metal Prods. Div. 12 BNA OSHC 1821, 1822-23 (No. 78-5159, 1986) (noting that the abatement
actions must be “necessary and valuable”).
As for Pembroke’s practice of allowing new patients into the units before all assessments
and the provision of medical orders are complete, the evidence reveals that this increased acuity
and created workplace violence risks. The evidence of record also reveals that increasing staff to
appropriately address acuity and 1:1 assignments would materially reduce the risk. The Secretary
established that waiting to integrate new patients into the units was one way to handle the acuity
new admissions bring. However, if the facility had adequate staff and means to summon assistance
it is not clear that segregating the patients would further reduce the hazard. See Cerro, 12 BNA
OSHC at 1822-23.
The Secretary proved that establishing a team of nurses and MHAs focused primarily on
the performance of the tasks associated with the admission and assessment of new patients, was
68
feasible and would materially reduce the hazard. He failed to show that if the other identified
abatement was in place, (1) that the employees on this team could not have any other
responsibilities; (2) that admissions had to occur in an area apart from all other units of Pembroke
Hospital, or (3) that patients had to remain segregated until all of the tasks associated with
admission were complete.
c) Equipment
Finally, the Secretary calls for two types of equipment: personal panic alarms and
equipment to implement patient crisis prevention plans. (Sec’y Br. at 4.)
(1) Personal Panic Alarms
The Secretary proposes that Pembroke provide “personal panic alarms for all employees
who may work in close proximity to patients, including but not limited to nurses, MHAs,
housekeeping staff, and case workers.” Id. Pembroke’s approach to summoning help in the event
of a workplace violence incident was ineffective. JS, a nurse, discussed her experience with
personal panic alarms at two other behavioral health hospitals. (Tr. 241.) She found them to be
an effective way to seek immediate assistance. (Tr. 241-42.) Dr. Welch explained that personal
panic alarms are more effective at summoning assistance than Pembroke’s current approach, and
that providing them would reduce the likelihood of staff members becoming victims of workplace
violence. (Tr. 937, 974-75.) Unlike radios and the overhead paging system, panic alarms allow
for discreet requests during emergencies. (Tr. 1049.) Dr. Welch relied on studies which found
that access to panic alarms correlated with significantly lower rates of assault against staff in a
healthcare setting. (Tr. 972-74, 995, Ex. C-95 at 3-10, C-96.) Workers without access to such
equipment were victims of workplace violence more often. (Ex. C-95 at 10.) Regarding
feasibility, other similar facilities provide personal panic alarms and literature discusses their
69
82
successful use in healthcare settings. (Tr. 974, 1049; Ex. C-95.)
Ms. Cooke argued that there was no evidence to support the efficacy of panic alarms in
reducing risk. (Tr. 1481.) It is unclear if she reviewed the studies Dr. Welch cited in reaching his
conclusion that panic alarms are effective at materially reducing the hazard. (Tr. 1458.) She only
indicated that she “might’ve (sic)” re-looked at the Sentinel Alert. Id. The Sentinel Alert describes
physical and verbal violence against health care workers. (Ex. C-99 at 1-2.) It cites, among other
things, lack of access to emergency communication such as a “call bell” as a contributing factor to
83
violence against healthcare workers. (Ex. C-99 at 3, 6.) Ms. Cooke acknowledged there were
times when panic alarms may be easier, but said they were not “standard.” (Tr. 1485-86, 1521.)
The general duty clause requires employers to “take all feasible steps” to protect against
recognized hazards. Gen. Dynamics, 599 F.2d at 464. Employers must implement abatement
measures safety experts agree are feasible even if they are “not of general usage in the industry.”
599 F.2d at 464. See also Beverly, 19 BNA OSHC at 1191 (finding abatement measures may be
required even if the practice is not yet customary in the industry). Ms. Cooke did not testify that
panic alarms were technologically or economically infeasible and agreed they may be an easier
way to obtain assistance with a violent patient. (Tr. 1483.) No witness testified they were too
expensive or would not work at Pembroke for technological reasons. Ms. Cooke’s testimony does
not refute the evidence establishing that personal panic alarms would materially reduce the hazard
and constitute a feasible means of abatement.
82 One peer reviewed study Dr. Welch relied on, Simha F. Landau, Personnel Exposure to Violence in Hospital
Emergency Wards: A Routine Activity Approach, 34 Aggressive Behavior 88, 91 (2008), described access to an
“emergency button” as a “widely used” and “important physical protective device.” (Ex. C-95.)
83 The Sentinel Alert was issued after the inspection occurred and was not considered as evidence of Respondents’
knowledge of the hazard. (Ex. C-99.) However, it was reviewed by Dr. Welch and possibly by Ms. Cooke to assess
the feasibility of the proposed abatement.
70
The Secretary’s burden is to establish that the abatement in place, a limited number of
unreliable radios, was ineffective and that this issue could be addressed feasibly. Integra, 27 BNA
OSHC at 1849; Armstrong, 8 BNA OSHC at 1073-74 (upholding a violation of the general duty
clause when the employer failed to maintain an abatement measure it implemented). Dr. Welch’s
opinion that personal panic alarms are feasible and effective at reducing the likelihood a worker
would be injured by the hazard was well supported by the testimony of other witnesses and
numerous studies. (Tr. 241, 309-10; Exs. C-95, C-96, C-99.) The Secretary established that
personal panic alarms are a feasible and effective means to abate the hazard by making it easier
for additional people to respond to violent incidents or threats of violence.
(2) Equipment for Crisis Intervention Plans
The final abatement method proposed calls for Pembroke to “maintain equipment that is
sufficient for the implementation of each patient’s crisis prevention plan.” (Sec’y Br. at 4.)
Pembroke asks patients to complete forms about what helps to calm them down and what helps
them to cope with situations. (Tr. 512, 1423, 1432, 1439; Ex. R-18.) Some patients decline to
complete it. (Tr. 512, 1432.) However, staff can add information to the plans even if a patient
does not provide any. (Tr. 512-13, 1249, 1431-32.) The plans assist staff with knowing how to
deescalate a patient who becomes aggressive. (Tr. 512-13, 1432.) Most of the plans call for the
use of music to de-escalate patients. (Tr. 73, 830, 1434.)
Dr. Welch opined that having music playing equipment would significantly reduce the risk
of workplace violence and indicated that the equipment necessary for patients to have access to
music could be affordably obtained. (Tr. 1064.) He explained that patients most often cite music
as a calming technique, and he had seen it work effectively. (Tr. 962.) Dr. Welch asserted that
providing access to calming modalities would decrease the hazard. (Tr. 1064-65.) In his
71
experience, the headsets for playing music could be affordably maintained to allow them to be
given out by request, rather than having waiting lists as was the case at Pembroke during the
inspection period. (Tr. 963.) Employees agreed that providing music worked effectively at
Pembroke to soothe and calm aggressive patients. (Tr. 73-74, 666, 831.) A nurse considered it a
great help in handling patients who were distressed or agitated. (Tr. 666.) Ms. Cooke did not
dispute the evidence regarding the usefulness of crisis prevention plans or providing music when
patients indicate it has helped calm them in the past. Rather, her testimony revealed that she was
unaware of any studies that proposed a specific number of devices based on the patient count. (Tr.
1505-6.) The Secretary established that being able to implement patient crisis prevention plans by
providing music to calm distressed patients would materially reduce the hazard.
As for technical feasibility of implementing the abatement, by the time of the hearing,
Pembroke had improved the ability of caregivers to routinely provide music consistent with de-
escalation plans. Fed. R. Evid. 407 (evidence of subsequent remedial measures may be admitted
to show “the feasibility of precautionary measures”); SeaWorld, 748 F.3d at 1215. Accordingly,
there is no dispute that providing music as part of implementing patient crisis prevention plans
84
was technologically and economically feasible.
IV. Relationship of UHS DE and Pembroke
The Secretary contends that despite being separate corporate entities, UHS DE and
Pembroke should be treated as a single employer of the workers exposed to the hazard. Related
employers are treated as a single entity when “they share a common worksite, have interrelated
84 To the extent that the proposed abatement could be interpreted as requiring other types of equipment, the Secretary
failed to sufficiently identify such equipment or establish how it would materially abate the hazard.
72
and integrated operations, and share a common president, management, supervision, or
85
ownership.” Loretto-Oswego Residential Health Care Facility, 23 BNA OSHC 1356, 1359 (No.
02-1174, 2011) aff’d, 692 F.3d 65 (2d Cir. 2012); C.T. Taylor Co., 20 BNA OSHC 1083, 1086
(No. 94-3241, 2003) (consolidated); Trinity Indus., Inc., 9 BNA OSHC 1515, 1518 (No. 77-3909,
1981). The Secretary fails to satisfy these criteria.
Pembroke and UHS DE have different worksites: UHS DE operates out of Pennsylvania,
while Pembroke operates in Massachusetts. (Tr. 724.) As the First Circuit explained in A.C.
Castle, the common worksite element requires consideration of the location of where the
employees work and are exposed to the hazard. 882 F.3d at 42. The Secretary does not allege that
any UHS DE employees were exposed to the cited hazard. Nor does he allege that employees
were exposed to the hazard of workplace violence at locations other than Pembroke Hospital. The
record is clear that UHS DE and Pembroke have different business addresses and there is no
allegation of workplace hazards at both locations.
With regard to operations, Gary Gilberti, the Senior Vice President in the Behavioral
Health Division for UHS DE, testified that UHS DE and Pembroke were related, but distinct
businesses. (Tr. 724.) Pembroke provides direct patient care, while UHS DE is a management
86
and consulting business. Id. Pembroke primarily develops and sets its own budgets. (Tr. 643-
44, 1326.) See Loretto-Oswego, 23 BNA OSHC at 1359 (finding healthcare facility and
management company were not a single employer). There is no evidence that Pembroke lacked
sufficient capital or other resources to address worker health and safety.
85 The parties agree that this is the appropriate test to assess whether two legal entities functioned as a single employer.
(Am. Pre-Hr’g Stmt. at 16; Resp’t Br. at 6.)
86 Respondents assert that Pembroke set its own budget. (Resp’t Br. at 42.) However, Ms. Gilmore, a UHS DE
employee testified that she handled the workers’ compensation budget for Pembroke Hospital. (Tr. 550; Stip. 10.)
73
As for personnel, Pembroke Hospital’s CEO (Dr. Hickey) was employed by UHS DE. (Tr.
695; Stips. 10-11.) Other UHS DE employees routinely visited the Pembroke Hospital but did not
provide daily oversight of Pembroke Hospital. (Tr. 533-34.) UHS DE had its own management
structure with a separate CEO, chief financial officer, and management group. (Tr. 741.) Dr.
Hickey had no managerial duties for UHS DE. (Tr. 741.) Cf. C.T. Taylor, 20 BNA OSHC at 1085
(finding two entities to be a single employer when both companies were owned and controlled by
the same person and operated from the same office). The Secretary failed to establish that UHS
DE and Pembroke operate as a single entity. Accordingly, the finding of a violation and
assessment of a penalty are against UHS of Westwood Pembroke only. The Secretary’s allegation
against UHS DE is DISMISSED.
V. Repeat Characterization
Respondents argue that if UHS DE and Pembroke are not a single employer, then the
citation cannot be characterized as repeat. (Resp’t Br. at 42.) This misconstrues the record
evidence of Respondents’ own corporate structure. The Secretary does not rely on a citation issued
to UHS DE to support the repeat characterization. Instead, he relies on one issued to Pembroke
itself. (Exs. C-14 thru C-17.)
A violation is repeated if the same employer was previously cited for a substantially similar
violation. Potlach Corp., 7 BNA OSHC 1061, 1063 (No. 16183, 1979); Lake Erie Constr. Co.,
21 BNA OSHC 1285, 1289 (No. 02-0520, 2005) (similarity of hazards is a “principle factor” in
assessing the appropriateness of a repeat characterization). A violation of the general duty clause
may be “found to be repeated on the basis of either a prior section 5(a)(1) or section 5(a)(2)
violation.” 7 BNA OSHC at 1064. When relying on previous general duty citation, the Secretary
must show substantial similarity based on the circumstances surrounding the hazard. GEM Indus.,
74
Inc., 17 BNA OSHC 1861, 1865-66 (No. 93-1122, 1996) (declining to rely on a previous 5(a)(1)
citation to support characterizing a subsequent violation of a specific standard as repeat) aff’d, 149
F.3d 1183 (6th Cir. 1998).
The Secretary argues that the hazard cited in 2016 at Pembroke’s Lowell Treatment Center
and the one cited in 2017 at Pembroke Hospital are substantially similar. (Sec’y Br. at 74.) But,
the Secretary failed to offer enough information about the circumstances surrounding the cited
hazard at Lowell Treatment Center. The limited information in the record reveals only that the
cited workplaces had significant differences related to the hazard. For example, while the
Secretary proposed some similar abatement measures, others were notably different. (Ex. G-14.)
The undersigned finds that while the hazards appear to share some commonality the record does
not establish that the two violations are sufficiently similar to support a repeat characterization.
GEM, 17 BNA OSHC at 1866 (declining to conclude that two violations were substantially similar
even though both involved fall hazards).
The Secretary has met his burden to establish, by a preponderance of the evidence, that
UHS of Westwood Pembroke violated 29 U.S.C. § 654(a)(1) of the Act and such violation was
“serious” rather than “repeat”.
VI. Penalty
“Section 17(j) of the Act, 29 U.S.C. § 666(j), requires that when assessing penalties, the
Commission must give due consideration to four criteria: the size of the employer's business, the
gravity of the violation, the employer’s good faith, and any prior history of violations.” Hern Iron
Works, Inc., 16 BNA OSHC 1619, 1624 (No. 88-1962, 1994). When determining gravity, the
Commission considers the number of exposed employees, the duration of their exposure, whether
precautions could have been taken against injury, and the likelihood of injury. Capform, Inc., 19
75
BNA OSHC 1374, 1378 (No. 99-0322, 2001), aff’d, 34 F.App’x 85 (5th Cir. 2000
(unpublished). Gravity is typically the most important factor for determining the penalty. Id.
When initially issued, the Citation included a proposed penalty of $12,675. In the
Amended Complaint, the Secretary increased the proposed penalty to $25,350. This amount could
only be imposed if the violation was characterized as repeat rather than serious. Under the Act, as
amended by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015,
Public Law 114-74, sec. 701, the maximum penalty for a violation cited in 2017 and characterized
as “serious” was $12,675.00.
Having considered the four factors, the undersigned finds that a penalty of $12,675 is
appropriate. The hazard caused serious injury and was capable of causing death. Many employees
were exposed to the hazard, with several suffering serious injuries. (Ex. C-60.) There is no
evidence that Pembroke is a small employer. While it took some steps to mitigate the hazard, it
failed to implement feasible abatement measures even after they were identified. In terms of
history, it was previously cited for a violation related to workplace violence. (Ex. G-14.) Although
the prior citation is not enough to support a repeat characterization, it is relevant to the evaluation
of Pembroke’s history.
As to good faith, as noted above, employees felt pressure to be less than forthcoming with
investigators. (Ex. C-1; Tr. 883-84, 886-89.) Also, it is worth noting that MHAs were provided
with a “cheat sheet” on how to communicate with regulators and then told to destroy it after
reviewing it. (Tr. 125-26.) However, there is no evidence of actual obstruction. The MHA AS
explained that they were to be direct and honest with surveyors, including OSHA. (Tr. 181-82.)
Further, Respondents had a safety program and, as noted, had taken steps to minimize the hazard.
76
87
On this record, neither an increase nor a decrease for good faith is warranted.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The foregoing constitutes the findings of fact and conclusions of law in accordance with
Rule 52(a) of the Federal Rules of Civil Procedure.
ORDER
Based upon the foregoing findings of fact and conclusions of law, it is ORDERED that:
Citation 1, Item 1 for a violation of section 5(a)(1) of the Act is AFFIRMED as
SERIOUS, and a penalty of $12,675 is ASSESSED against UHS of Westwood
Pembroke.
SO ORDERED.
__/s/_________
Keith E. Bell
Administrative Law Judge, OSHRC
Dated: February 19, 2020
Washington, D.C.
87 Respondents limit their argument on the penalty amount to asserting that if the violation is affirmed it should not be
characterized as repeat. (Resp’t Br. at 43.)
77