Cedar Springs Hospital, Inc. / UHS of Delaware, Inc., dba Cedar Springs Hospital

Read the official release (oshrc.gov)

Plain-English summary

Cedar Springs operated a behavioral health hospital in Colorado Springs where employees were frequently assaulted by patients and suffered serious injuries. The judge found that Cedar Springs and UHS of Delaware functioned as a single employer at the worksite through a common workplace, integrated safety operations, and common management. Their workplace-violence measures were inadequate as implemented, while additional protections such as secure workstations, reliable communication devices, adequate staffing, and a fully implemented prevention program were feasible. The employers also failed to provide required injury and illness records within four hours, despite repeated requests and extended deadlines. A serious General Duty Clause citation and an other-than-serious records citation were affirmed with penalties of $13,494 and $1,928, respectively. The judge also partly granted OSHA's motion for sanctions over destroyed recorded video evidence.

Decision snapshot

• Cited standard(s): 29 U.S.C. § 654(a)(1); 29 C.F.R. § 1904.40(a)
• Outcome: Both citations were affirmed against Cedar Springs and UHS of Delaware, with total penalties of $15,422.
• Key point: Written workplace-violence policies do not satisfy the General Duty Clause when they are not fully implemented and feasible additional protections remain available.

Full text (OSHRC public release)

Cedar Springs Hospital, Inc. UHS of Delaware, Inc., dba Cedar Springs Hospital 20-0887

United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

SECRETARY OF LABOR,

Complainant,

v.

CEDAR SPRINGS HOSPITAL, INC. / UHS OF DELAWARE, INC. dba CEDAR
SPRINGS HOSPITAL, and its successors,

Respondent.

OSHRC Docket No. 20-0887

Appearances:

Alicia Truman, Esq., and Beau Ellis, Esq., Department of Labor,
Office of Solicitor, Denver, Colorado

For Complainant

Melanie L. Paul, Dion Y. Kohler, Jackson Lewis P.C., Atlanta, GA

For Respondent Cedar Springs Hospital, Inc.

Eric J. Neiman, Lewis Brisbois Bisgaard & Smith LLP, Portland, OR

For Respondent UHS of Delaware, Inc.

Before: Judge Christopher D. Helms– U. S. Administrative Law Judge

DECISION AND ORDER

After learning of significant allegations through
the Occupational Safety and Health Administration’s (“OSHA’s”)
Whistleblower Protection Program, Compliance Officer (“CO”) Aimee
Stark opened an investigation of a behavioral health facility located
at 2315 Southgate Road, Colorado Springs, CO (the “Worksite”).
(Ex. R-UHS-8.) The multi-month investigation identified numerous
injuries from the hazard of workplace violence. The Secretary cited
Cedar Springs Hospital, Inc. (“Cedar Springs”) and an affiliate,
UHS of Delaware, Inc. (“UHS-DE” and collectively with Cedar
Springs, “Respondents”) for: (1) failing to provide employment
and a place of employment free from the recognized hazard of
workplace violence under the general duty clause of the Occupational
Safety and Health Act of 1970, 29 U.S.C. §§ 651-678 (the “OSH
Act”), and (2) failing to provide an authorized government
representative records within four business hours as required by 29
C.F.R. § 1904.40(a).

Respondents timely contested the Citation,
bringing the matter before the Occupational Safety and Health Review
Commission (“Commission”). A hearing commenced on February 7,
2022, and concluded on February 17, 2022. All parties filed briefs
after the hearing.

The Citation’s first assertion is that employees
were exposed to physical attacks from aggressive patients in
violation of section 5(a)(1) of the OSH Act, the provision commonly
known as the general duty clause. 29 U.S.C. § 654(a)(1). This
provision requires employers to “furnish to each of his employees
employment and a place of employment which are free from recognized
hazards that are causing or are likely to cause death or serious
physical harm to his employees.” 29 U.S.C. § 654(a)(1). The
Citation alleges that employees suffered serious injuries from
workplace violence, including concussions, sprains, bruising, and
other injuries to the head and torso. The Citation’s second
contention is that Respondents failed to provide the Worksite’s
injury and illness records to an authorized representative within a
reasonable time from the request.

The key issues in dispute are: (1) the
appropriateness of sanctions for Respondents’ failure to preserve
electronically stored information (“ESI”), (2) whether the
Secretary established the alleged violations, and (3) whether Cedar
Springs and UHS-DE should be considered a single-employer for the
cited violations.

For the reasons below, the Secretary’s renewed
Motion for Sanctions for Respondents’ Destruction of Relevant
Recorded Video Evidence is GRANTED in part, and DENIED in part.
Citation 1, Item 1 is AFFIRMED as to Cedar Springs and UHS-DE as a
serious violation of the OSH Act, and a $13,494 penalty is assessed.
Citation 2, Item 1, is AFFIRMED as to Cedar Springs and UHS-DE as an
other-than-serious violation of 29 C.F.R. § 1904.40(a), and a
$1,928 penalty is assessed.

I.Jurisdiction

Cedar Springs and UHS-DE are both employers under
the OSH Act. 1
Each business affects interstate commerce within the meaning of 29
U.S.C. § 659(c). 2
“The Citation and Notification of Penalty underlying this
proceeding was issued on May 15, 2020.” (Stip. 5.) In response,
“Respondents timely filed their Notices of Contest on June 4 and 5,
2020.” (Stip. 6.) The parties agree that the Commission “has
jurisdiction in this proceeding pursuant to § 10(c) of the [OSH
Act].” 3
Based upon the record, including the parties’ stipulations and
acknowledgments, the undersigned concludes that the Commission has
jurisdiction over the parties and the subject matter of these
proceedings.

II.Factual
Background

Overview of Corporate Structure

“Cedar Springs is a wholly owned subsidiary of
Psychiatric Solutions Hospital, Inc.” (Stip. 18.) Psychiatric
Solutions Hospital, Inc., in turn, is itself a wholly owned
subsidiary of Universal Health Services, Inc. (“UHS”), a large
publicly traded company with no direct employees. 4
UHS has other wholly owned subsidiaries, including UHS-DE. (Stips.
1-2, 17-18; Meloni Dep. 17, 25; UHS-DE Br. 12.) Although Cedar
Springs and UHS-DE share the same ultimate corporate parent, each is
a separate corporate entity. 5

Employees of both entities worked at the
Worksite. 6
Cedar Springs’ Chief Executive Officer (“CEO”) and its Chief
Financial Officer (“CFO”) were employed by UHS-DE. (Stips.
21-22.) The CEO directly supervised Cedar Springs’ employees. 7
However, “physicians, nurses, Mental Health Specialists (MHSs),
and other direct care providers on the staff of Cedar Springs
Hospital are not employees of UHS-DE.” (Stip. 51.)

The Worksite

The Worksite is a behavioral health hospital that
treats up to 110 adult, adolescent, and child patients in acute and
residential settings. 8
Most patients are admitted involuntarily while suffering from
serious conditions. (Tr. 2311; CS Br. 10.) Patients arrive through
referrals from other hospitals, by coming in directly and requesting
admission, or are brought in by police. (Tr. 89-90.)

Physical Layout

Buildings

The Worksite has several separate buildings.
(Exs. C-3 at 19-27, C-5, C-9.) New patients often arrive at the
Evergreen building where the Admissions and Referrals Department
(“A&R”) begins the admission process. (Tr. 89-90.) A&R
is open 24 hours daily, and admissions can occur anytime. (Tr. 92.)
There are no patient care units in the Evergreen building. However,
group therapy and outpatient therapy can occur there. (Tr. 89; Ex.
C-9; CS Br. 12.)

Once admitted, a worker brings the patient to a
care unit in one of three buildings: Aspen, Juniper, or Peak House.
In Aspen, there are four patient care units, each with up to 12
patients: (1) Hickory Hall for high-acuity adults, (2) Cottonwood
Cove for high-acuity adolescents, (3) Treehouse for high-acuity
adolescents and children, and (4) Maple for high acuity adolescents
and children. (Tr. 99-100, 2311; Ex. C-2b, C-3 at 30; CS Br. 12-13.)
The Juniper building has three patient care units: (1) Birchwood for
12 lower acuity adults, (2) Ponderosa for 12 lower acuity adults, and
(3) Mountain View Place (“MVP”), a residential unit for up to 24
adolescents. (Tr. 92-96, Ex. C-5; CS Br. 12.) Peak House is for
patients voluntarily seeking chemical dependency treatment. (Tr.
101, 2312; CS Br. 13.) The Worksite includes another building,
referred to as the Commons, which has a school that minors attend
while receiving care. (Tr. 101; Ex. C-5 at 7; CS Br. 13.)

Nurses’ Stations

Each care unit has a nurses’ station. During
the inspection period, MVP’s nurses’ station was open, with no
enclosure or doors. (Tr. 94, 992-93; Ex. C-3 at 24.) The nurses’
stations on the Ponderosa and Birchwood units had partial barriers
extending approximately six feet high. (Tr. 95-97; Ex. C-3 at 27.)
However, there was a half door that patients could reach over and
unlock. (Tr. 96-98; Ex. C-3 at 27). The nurses’ stations on
Hickory, Cottonwood, and Maple had barriers that extended
approximately six feet above the counter, with a sliding Plexiglas
window. (Tr. 100; Ex. C-3 at 30.) Those windows were commonly left
open. (Tr. 1488-89; Ex. C-107.) Even when closed, patients
sometimes could remove the screw that was supposed to keep the window
closed, or the windows would break. (Tr. 1490-91.) On one side,
below the plexiglass, there is a ledge, and further below are desks.
(Tr. 1484; Exs. C-3, C-107.)

Patients sometimes reached into nurses’ stations
to grab pens, pencils, and paperclips. (Tr. 94-95, 276-77, 487, 628,
859, 960, 1487-89, 1851.) Patients were also able to enter the
nurses’ stations. (Tr. 859-60, 864-65, 992-93, 1489, 2323; Exs.
C-54, C-58.) On December 7, 2019, two patients climbed over the
nurses’ station in the Treehouse unit. (Ex. C-57 at 4; Tr. 507-8.)
A few days later, a patient repeatedly climbed up and jumped over
the barrier into Cottonwood’s nurses’ station. (Ex. C-58; Tr.
864-65.) Patients climbed and jumped over the counters and partial
enclosures, including those with the six-foot partial barrier. (Tr.
404, 486-87, 859-62, 864-65, 959, 1487-89, 2323; Exs. C-53, C-54.).
It was not unusual for patients to find ways into the nurses’
station. 9
Patients jumped on the desk, bit, hit, and kicked staff at the
nurses’ stations. (Exs. C-20 at 1-5, 11-12, 23, 26-33, 35-36,
45-46, 48, 51; C-64; Tr. 1850-51.)

The following month, there continued to be
multiple incidents at nurses’ stations. On January 6, 2020, an
MHS’s finger was lacerated, and his knee was hurt when he tried to
address a patient entering the nurses’ station. (Tr. 623-26; Exs.
C-13, C-64 at 27.) In another incident, a patient jumped on an MHS
after climbing over the nurses’ station’s barrier. (Tr. 957-58;
Ex. C-14 at 1, 3.) Other staff were kicked or assaulted when they
tried to escort patients out of, or away from, the nurses’ station.
(Exs. C-19, C-20, C-64 at 1, 61, 73.)

Staffing

Approximately 300 people work at the Worksite in
various capacities. (Tr. 87.) Physicians, nurses, social workers,
teachers, therapists, and MHSs provide direct care for the patients.
(Tr. 87; Ex. C-3 at 11.) MHSs work very closely with the patients.
They manage the care environment, observe patients, accompany them to
meals and recreation, and provide activities. (Tr. 2431-32; Exs.
RCS-7, RCS-29, RCS-32; UHS-DE Br. 26.) MHSs, like nurses, work
eight-hour shifts: 7:00 a.m. to 3:00 p.m., 3:00 p.m. to 11:00 p.m.,
or 11:00 p.m. to 7:00 a.m. (Ex. C-68.)

Staffing Grid

Respondents set the number of staff typically
assigned to each unit based on the number of patients. (Tr. 834-35,
1656, 2375-76; Ex. C-68.) Their staffing grid identifies the number
of MHSs per shift. Id. The number varies with the patient
census and the time of day. Id. The grid calls for fewer
MHSs on the overnight shift. (Tr. 838; Ex. C-68.) The grid does not
set out adjustments for patient acuity, the number of patients on
assault precautions, or planned admissions. (Tr. 394, 839, 1210,
1656; Exs. C-3 at 43, C-68.) It is a strictly mathematical
arrangement based on the patient census at a given time. (Tr. 1630,
1656.) In addition to the MHSs, the grid calls for one nurse per
unit for all shifts, regardless of the census. (Tr. 836-39, 2375-76;
Exs. C-3 at 43, C-68.)

Besides nurses and MHSs, other workers could
sometimes assist during workplace violence incidents. On weekdays,
some therapists and non-direct care staff may be able to stop their
typical duties and assist in an emergency. There were fewer workers
outside of the day shift and on weekends. (Tr. 395-96, 511, 758,
840, 1408-9, 2386, 2375, 2558, 2596; Exs. C-3 at 11, C-43.) During
the evening and overnight shifts and throughout the weekends, staff
was limited to those working in the units and only two or three
others. (Tr. 840, 2375, 2596.) Typically, there were no therapists
or administrative staff overnight. 10
When staff took breaks, there was only one nursing supervisor to
fill in for them. (Tr. 511, 2386-87, 2596-97; Exs. C-43, C-56,
C-57.) On weekends, there was no one in hospital management at the
Worksite. (Tr. 395-96, 758, 2558.) Housekeepers only worked in the
mornings, and maintenance workers were off-site. (Tr. 395-96, 2558.)

How many people were typically available to
respond to emergency requests is unclear. Workers might be engaged
in other tasks or unable to hear the codes from their location. (Tr.
1419; Ex. C-3 at 43.) At times, patient care units operated with
less staff than the levels set out in the staffing grid. (Tr.
394-95, 605-6, 688, 835, 839-40, 1009, 1227, 2375-77, 2453, 2590-91,
2595-96, 2598-99; Exs. C-9, C-33, C-34, C-51, C-52, C-55, C-57, C-68,
C-73.) The grid was a guideline instead of the minimum or maximum
staff level. (Ex. C-68.) The Worksite’s staffing policy required
one nurse per unit, except for MVP. (Tr. 2556; Ex. RCS-47.) For
MVP, a nurse did not have to present full-time. (Ex. RCS-47.) The
policy did not require a specific number of MHSs or other workers.
(Tr. 2556-57; Ex. RCS-47.)

Dawn Wilkosz was a charge nurse during the
investigation. 11
She stated that her units were “very rarely” staffed to the
amount called for by the grid. (Tr. 1512.) Latricia Degenhardt
worked as a day-shift nursing supervisor. 12
It was not unusual for someone to serve simultaneously as the
nursing supervisor and the only nurse for a particular unit. (Tr.
504-5, 2376; Exs. C-52, C-57.) She discussed a shift when only
one-third of the staff the grid called for was working. (Tr. 392-95;
Exs. C-2B at 8, C-33.) The Director of Nursing was dismissive when
repeatedly informed of short-staffed shifts. (Exs. 2b, C-30, C-33.)
Kathleen Nolan, a current employee and supervisor, agreed that there
would be times when the units had fewer staff than the grid’s
lowest ratios. (Tr. 2376-77.)

The Worksite’s staffing records were not always
accurate and could be misleading. For example, new employees were
once counted as being in the units caring for patients while in
training outside the units. (Tr. 458-59; Exs. C-9 at 2, C-30, C-57
at 3.) The records do not identify how many people were available to
respond to violence. (Tr. 458-59, 1212-18; Exs. C-3 at 42, C-9,
C-30, C-57 at 3, C-70 at 1-7.) The Secretary’s expert, Howard
Forman, M.D., was accepted as an expert in the clinical management of
psychiatric patients and had extensive experience working in
psychiatric settings.
(Tr. 1183.; Ex. C-91.) He explained
that the staffing grid is not particularly relevant as a standalone
document. (Tr. 1216-17; Ex. C-92 at 13-16.) Staffing at the
Worksite did not consistently match the grid, and the number of
workers the grid called for was not adequately adjusted for patient
acuity. Id.

Staffing for Acuity

Even when staffed consistent with the grid,
sometimes there was not enough staff to maintain safety. (Tr. 397,
400, 472-73, 488, 790, 988, 1036-37, 1210-18, 1941, 2610; Exs. C-2b,
RCS-41 at 17, Exs. C-37, C-69, C-70, C-92 at 11.) Melissa Drawdy
worked as the charge nurse during the time of OSHA’s investigation.
(Tr. 751.) Based on her Worksite experience, one nurse and one MHS
for a unit with twelve to fourteen patients was inadequate to
maintain staff safety. (Tr. 790.)

The Director of Nursing could increase the grid’s
staffing level for acuity. (Tr. 490; CS Br. 26-32.) Staff could be
added if patients had more significant needs or a higher than
baseline level of aggressive behavior. (Tr. 159-61, 838-39; Ex.
C-68.) However, patients needing more frequent observation or being
placed on assault precautions did not trigger staffing increases
automatically. (Tr. 490, 842, 988.) Managers could not increase
staffing levels directly, and workers had different understandings of
acuity. (Tr. 842, 988, 1629-30, 2313-14, 2372-73; Exs. R-CS 47, R-CS
91.) There was no clear policy regarding when acuity staffing would
be provided. (Tr. 490, 839, 842, 988, 1629-30, 2557, 2372-73; Exs.
RCS-47, RCS-91.) The acuity request form used to get the required
approval from the Director of Nursing’s approval did not specify
when acuity staffing would be provided. 13

In practice, increased staffing for acuity rarely
happened. (Tr. 472-73, 489, 688, 790-91, 988, 1217-18, 1451; Ex.
C-92 at 11, 13-17.) Even approved requests would not necessarily
increase the staff level. (Tr. 393-94, 490, 605-6, 688, 867-67, 988,
1514-15, 2560-61; Exs. C-58, C-69, C-70, C-71.) As an example,
sometimes doctors determined that patients needed direct 1:1
observation, but supervisors were not given enough staff to increase
the total number of workers. (Tr. 489-90, 493-95, 868, 1218-19; Ex.
C-58.) Instead, an MHS would be reassigned from the whole unit to
remain with one patient. This left the other MHS responsible for all
the other patients in the unit. (Tr. 160-61, 397-98, 490, 1514.)

Working alone

It was not unusual for workers to be alone with
patients. (Tr. 472-73, 484-88, 620, 791, 841-42, 962, 1394, 1424,
1452, 1515-16, 2557, 2559, 2561-62, 2596, 2614; Exs. C-9, C-34, C-51,
C-54, C-92 at 13, 15.) For instance, therapists often worked alone
in offices with patients. (Tr. 1413-15, 1425.) Sometimes, a
therapist would run a group session for patients without any
additional staff present. (Tr. 1414-15.) Staff were alone in units
when others responded to codes, took breaks, or assisted with patient
admissions. (Tr. 487-88, 511, 841, 962-63, 1022, 1515-16, 2386; Exs.
C-51, C-79 at 7, C-92 at 15.)

To give an example, new patients had to undergo a
body scan. 14
This was a safety measure and part of patient care. (Tr. 467-68.)
When OSHA’s investigation commenced, the process occurred in the
units after admission with two staff members. (Tr. 2377, 2387, 2871;
Ex. RCS-30.) On the overnight shift, a worker from another unit was
often called over to perform the task since each unit only had one
MHS. (Tr. 2377, 2387-88.) The responding person’s assigned unit
would have only one worker during the scan. (Tr. 2377.)

Aggression or other behaviors sometimes lead to
patients being restricted to the care unit. In such situations, the
MHS would typically accompany the other patients to the gym or
cafeteria while the nurse remained in the unit with the other patient
or patients. (Tr. 485, 487-88, 791, 841-42, 2561-62; Ex. C-9, C-54,
C-92.)

Ms. Nolan indicated that if there were few staff
in a unit, the supervisor would sit directly in that unit. (Tr.
2596.) She did not explain whether there was a policy requiring this
or if it was just her practice. Id. At night, there was only
one supervisor. Id. The supervisor typically provided
coverage in the various units when the nurses went on break and
assisted in admitting new patients. (Tr. 2377, 2386-87; Exs. C-56,
RCS-30.) Thus, even at baseline, the overnight supervisor already
covered units at various points throughout each shift. (Tr. 962,
1515, 2377, 2386-87, 2596-98; Exs. C-43, C-46.) Ms. Degenhardt
corroborated that the nurse supervisor had to provide coverage when
unit nurses took breaks. (Tr. 504-5; Exs. C-43, C-55, C-56.)

Respondents were aware of injuries occurring when
staff were alone in care units. In 2018, the Colorado Department of
Public Health and Environment (“CDPHE”) found that workers were
left alone and injuries were occurring. (Tr. 172; Ex. C-9.) The
staffing levels described in the 2018 CDPHE citation were consistent
with those during the OSHA inspection. (Tr. 172; Exs. C-9, C-36.)

Workers discussed attempting to manage aggressive
patients
by themselves. A therapist was alone
when a patient attacked her. (Tr. 1413-14, 1425-29; Ex. C-65.) She
had no radio or means to call a code. (Tr. 1414, 1432-33.) She
received medical treatment for the bites incurred when she attempted
to restrain the patient single-handedly. 15
In another incident, on
December 8, 2019, a single worker needed to restrain an aggressive
patient when a fight broke out. 16
The following month, an MHS was alone when a patient climbed over
the nurses’ station. (Tr. 961.) The patient jumped on the MHS and
struck him. (Tr. 961, 963.) The MHS needed to initiate a
therapeutic hold by himself to prevent being struck again. Id.

A worker was alone the following month when a
patient started behaving aggressively. (Tr. 1658-61, 2390; Ex.
C-108.) As the worker backed away, the patient followed her down a
hallway and grabbed her. (Ex. C-108.) A housekeeper came to assist,
but the two workers could not stop the aggression. (Tr. 1658-61; Ex.
C-108.) The patient kicked and hit the workers, causing them to fall
to the floor. Id. The two workers struggled with the
patient, unable to stop the aggression until additional workers came
to the unit. 17
Patients congregated and lingered around the incident as there was
initially not enough staff to direct them away. (Tr. 1660-61,
2360-61; Ex. C-108.)

Police & Security

Police were needed to assist with aggression and
elopements. (Tr. 414, 469, 518-19, 760-61, 776, 779, 995; Ex. C-2b.)
They also sometimes brought potential patients to the Worksite.
(Tr. 85, 90, 466, 468, 507, 519, 995, 1206; Ex. C-57 at 3.) Ms.
Degenhardt instructed staff to call the police when a patient, after
attempting to elope, began “bashing” a worker’s head onto the
concrete outside of the care unit. (Tr. 414-15.) She also called
the police in January 2020 regarding an extremely aggressive patient.
She did not believe there was a way to safely attempt to hold him,
even if multiple workers were available. She feared for the unit’s
safety and did not feel she had adequate tools to handle the patient.
(Tr. 518-19; Ex. C-59 at 2.)

While staff felt it was sometimes necessary to
contact the police to facilitate worker safety, senior leadership did
not support calling the police for assistance. (Tr. 416, 557.)
Respondents maintain that staff “were free to contact the police if
they wish to press charges against a patient.” (CS Br. 43.) The
testimony cited in support of this claim relates to contacting police
after an incident, as opposed to calling police to assist during acts
of violence. (CS Br. 43; Tr. 557.) In that context, workers were
not supported in contacting the police for assistance. (Tr. 416-17,
557, 762; Ex. C-2b at 12.) Ms. Degenhardt’s demeanor in making the
statements strengthens this finding. After an incident, there was a
specified waiting period and other steps workers had to take before
it was permissible to press charges. (Tr. 416; Ex. C-2b at 12.)
Witnesses discussed the lack of clarity on the permissibility of
contacting the police. One nurse was unclear whether workers were
permitted or encouraged to call the police. (Tr. 762.) She was
unaware of any written policy on contacting the police. (Tr.
814-15.) Another described a situation where the police were called
but were not permitted to enter because their presence had to be
cleared by management. (Tr. 1041.)

There was no security to contact instead of the
police. Workers perform security-related tasks, such as screening
for contraband and responding to violence, but no one is designated
as being responsible just for security and staff safety. (Tr.
263-64, 277, 360, 417, 618, 714, 1457, 1510, 1676, 2425; Exs. RCS-15,
RCS-30, RCS-31, RCS-72.) Respondents encouraged staff to assess the
contents of patient belongings either during the shift the patient
first arrived at the unit or the following shift. (Tr. 360, 1570.)
However, workers had many competing tasks, and the search occurred
when staff was available. (Tr. 360.) During OSHA’s investigation,
appropriate and timely searches did not consistently occur. (Tr.
361-62, 498, 1312, 1570, 1644; Exs. C-39, C-92 at 12, 22-23, C-94 at
24, 34-36.) Dangerous materials were brought into the units and
remained there either because the initial search was inadequate or
was not completed timely. (Tr. 498, 1644; Exs. C-39, C-92 at 12,
22-23, C-94 at 24, 34-36.)

Dealing with aggression at the Worksite

Workplace Violence Prevention Plan

The Worksite had a Workplace Violence Prevention
Plan (“WVPP”) on its intranet. (Tr. 1822-23; Ex. C-22.) The
Risk Management Director (Cristina Kolln) has responsibility for the
WVPP and said it was in place when the inspection commenced. (Tr.
1817, 1822, 1854; Ex. C-22 at 1, 8; CS Br. 41; UHS-DE Br. 22.) The
Worksite also had an employee handbook that noted workplace violence
but did not specifically discuss patient-on-staff violence. (Tr.
1055, 1105; Ex. C-81 at 55-56.)

Aspects of the WVPP were either not followed or
not implemented. The WVPP calls for the Worksite to report, record,
and monitor events of patient aggression through, among other things,
Healthcare Peer Review (“HPR”) Reports. (Ex. C-22 at 1.) HPR
Reports were created electronically in the Worksite’s MIDAS
database. 18
The information collected focused on patients. (Stip. 38; Tr.
1824-25.) Worker injuries were not entered into it. (Stip. 38; Tr.
1824-25; Ex. C-2a.) The same section of the WVPP also called for
reports and monitoring of events by the Performance Improvement
Committee (“PIC”) and the Patient Safety Council (“PSC”).
(Ex. C-22 at 1-2; UHS-DE Br. 24-25.) However, specific incidents of
patient aggression toward staff were not typically discussed in those
committee meetings. 19
The WVPP also called for an annual evaluation of the Worksite’s
violence prevention plans, but there is no evidence of such reviews
before the Citation. (Tr. 1059, 1854, 1870; Ex. C-22 at 7.) In
multiple respects, Ms. Kolln was unsure what the WVPP required or was
referring to. (Tr. 1854-56.) Other workers did not recall seeing
the WVPP or did not know it was in place. (Tr. 148-49, 695-96, 797,
1452-54.)

Code Greens

Although sometimes there was only one employee in
a unit, additional assistance could be obtained to deal with
aggressive patients. (CS Br. 36-39; Tr. 2793; Ex. C-3 at 42-43.)
Staff could call a Staff Assistance Code to obtain “early
intervention” to deal with an aggressive patient. Id. A
trainer confirmed there was such a code, but no direct care employees
discussed using such codes in practice, and it was not included in
the list of codes in the annual re-training packet for direct care
workers. 20

Rather than staff assistance calls, workers
typically used the Code Green process. (Tr. 121; Ex. C-3 at 42-43.)
These codes were used after verbal de-escalation and other techniques
failed. (Tr. 2794; Ex. C-9 at 1.) To commence a Code Green, workers
are trained to use the one phone in the unit to ask available staff
to come to a specific location to deal with aggression or violence.
(Tr. 142, 2392, 2888; Ex. RCS-5, RCS-18 at 5.) Although not in the
training packet, workers also used radios to commence the process if
they could access them. (Tr. 121, 141-42, 2888.) If staff could not
access a telephone or radio, they could yell, “Code Green.” (Tr.
138, 144.) Sometimes, specific staff were designated as Code Green
responders. (Tr. 1737, 1796.) Typically, an MHS rather than a nurse
was designated. (Tr. 1737-38, 1797, 2388.) Such an assignment did
not preclude assigning the employee tasks that would prevent their
ability to respond to a Code Green promptly. (Tr. 1796-97; Ex. C-3
at 42.) Respondents subsequently revised their process and began
using a De-escalation and Response Team to respond to emergencies.
(Tr. 2847, 2883; Ex. C-94 at 38.)

Communication Devices

Phones were located only at the nurses’
stations, and staff typically did not carry radios in the care units.
(Tr. 101-3, 690-91, 720, 793-94, 1648; Ex. RCS-14.) Staff would
yell for help if they could not reach the unit phone. (Tr. 138, 401,
691, 962-63, 1516, 1649, 2882.)

Therapists did not have radios. (Tr. 1414, 1649.)
Laurie Martin, a therapist, indicated she did not know how to use
the radios available to other staff. (Tr. 1414.) The lack of radios
made it difficult for therapists to respond to codes. The overhead
pages for Code Greens were challenging to hear from therapists’
offices, and they only heard the calls if another staff member
happened to have a radio and was nearby. (Tr. 1419.)

Workers in the A&R unit also lacked consistent
access to radios. (Tr. 1648-49.) The A&R department only had
one radio. (Tr. 137-39.) When a worker had to escort a patient from
A&R to a care unit, they could not always carry a radio. (Tr.
101, 138-39, 1648-49, 1672-73.) Within the A&R department, one
of the two assessment rooms had a panic button that could be used to
request assistance from staff. (Tr. 103.) The button did not alert
the police, and there were no security personnel. There were no
similar buttons in the care units. (Tr. 103, 1507-8, 2392.)

Respondents had a policy on using, storing, and
monitoring the two-way radios. (Tr. 2888‑89; Ex. RCS-14.)
However, the policy was out of date. (Tr. 2889.) Although carrying
a radio when escorting patients off a unit was required, at times,
there were not enough functioning radios for every staff member to
have one when they needed to leave the unit. (Tr. 102, 694, 793-94,
1648.) Radios were often missing, uncharged, or broken. (Tr. 102,
506, 508-9, 694-95, 1630; Exs. C-42, C-57.) Issues with radios
complicated the response to codes. (Tr. 506, 508-9, 694-95, 794;
Exs. C-42, C-57 at 4.) Workers informed supervisors and senior
management of issues with radios and unit phones. (Tr. 506, 509;
Exs. C-42, C-43, C-50, C-57.)

Patient Management

Respondents trained staff to observe patients and
institute various precautions. (Tr. 536, 742, 2436-38, 2440, 2455,
2857; Exs. RCS-7, RCS-8, RCS-21.) An MHS observed each patient at
least once every fifteen minutes. 21
A doctor must order the frequency of the observations. (Tr.
2433-34, 2651.) The MHSs assigned to conduct the observations record
their findings on a form (sometimes called a tracker or check log).
(Tr. 616-19, 705, 2328, 2433; Exs. RCS-7, RCS-32, RCS-40.) The
information recorded was “a very quick view” of what “might be
going on” with the patients. (Tr. 2441.) No completed forms were
part of the record. When assigned to perform these checks, the MHS
remained in one unit and did not respond to Code Greens elsewhere.
(Tr. 121-22, 177-78, 180, 1514, 2373-74; Exs. C-92 at 14; RCS-7 at 1,
RCS-32.) The observation checks were supposed to ensure “we always
know where everybody is.” (Tr. 2329, 2433.) The care team also
can use the checks to assess whether patients were sleeping,
appropriately engaged, or isolating themselves. (Tr. 2329, 2439.)
They were for the patient’s safety. (Tr. 2328, 2433.)

Respondents had a written policy about possible
precautions staff could implement to protect patients. (Tr. 1630,
2341-42, 2434-35, 2439, 2553-54; Exs. RCS-8, RCS-21, RCS-40.) The
Patient Precautions Policy defined assault and other precautions.
(Ex. RCS-8 at 3.) A doctor could order assault precautions after
assaultive behavior, including threats and gestures. (Tr. 839,
2435-36, 2438-39; Ex. RCS-8.) At the investigation’s start, the
policy did not instruct staff about what they should do differently
for the patients on assault precautions compared to those who were
not. (Tr. 839, 842, 2552; Ex. RCS-8.) Assault precautions did not
automatically result in additional staffing. (Tr. 839, 842.) The
policy detailed specific actions to alert staff to other issues even
if they did not have the paper medical file. (Ex. RCS-8.) Colored
armbands and magnets on bedroom doors were used for those on fall,
seizure, or infectious control precautions. (Tr. 2553-55; Ex.
RCS-8.) In contrast, workers were not always aware of assault
precautions. (Tr. 1251-53; Ex. C-92 at 22.)

Respondents trained workers in de-escalation and
restraint techniques and provided certain re-training. (Tr. 2880;
Exs. RCS-17, RCS-18.) During the investigation, workers underwent a
training program called Satori Alternatives for Managing Aggression
(“SAMA”). (Tr. 2885.) SAMA training occurred over two days with
demonstrations and participation. (Tr. 2856-57; Ex. RCS-22.)
Workers were “recertified” on SAMA every six months. (Tr. 2859;
Ex. RCS-18.) SAMA techniques generally require at least two people.
(Tr. 640, 2853.) As part of the training, workers had to
acknowledge, in writing, that “[s]ingle person restraints with
patients are prohibited unless emergency criteria are met
(life-threatening situation or small child).” (Ex. RCS-22 at 39.)
Despite this limitation, workers felt they often had no choice but to
initiate holds alone. (Tr. 623-25, 640-41, 963.)

In 2021, a different de-escalation and restraint
training program from the Crisis Prevention Institute (“CPI”) was
implemented. The CPI approach to restraints precludes solo
restraints and generally requires more people than the SAMA approach.
(Tr. 2853, 2890.) Mr. Mauro indicated that he did not decide to
switch from SAMA to CPI. (Tr. 2844, 2884-85.) He described the
change as a “corporate requirement.” (Tr. 2884-85.)

Many patients exhibit no signs of aggression and
never engage in assaultive behavior. (CS Br. 11.) Still, highly
aggressive patients were receiving treatment during the inspection
period. Id. at 18. Patient 23 was an example of an
assaultive patient. 22
Over four days, the patient needed to be restrained 14 times. (Ex.
C-64.) Several of those restraints occurred after assaults on staff.
(Ex. C-64.) He jumped through the nurse’s station window and hit
and kicked the staff who tried to escort him from the area. (Tr.
925; Ex. C-64 at 1.) The following morning, he choked a staff
member. (Tr. 926; Ex. C-64 at 6.) Later in the day, he punched an
MHS in the chest and body. (Tr. 636-40; Ex. C-64 at 12-15.) In the
evening, he fought again with staff, necessitating another restraint.
(Tr. 649-50; Ex. C-64 at 18-20.) In a subsequent incident, he
climbed up the front of the nurses’ station and entered by forcing
open the window. (Tr. 623-25, 651-52; Ex. C- 64 at 26.) An MHS was
injured as he tried to restrain the patient. (Tr. 623-25, 651-52;
Ex. C- 64 at 27.)

The next day, multiple incidents with Patient 23
continued to result in staff injuries. In the morning, the patient
threw hot chocolate at staff, repeatedly hit an MHS, and kicked a
housekeeper who tried to intervene to stop the assault. (Ex. C-64 at
37-38, 41.) In the afternoon, he hit a worker, and then in the
evening, he punched and head-butted a lead MHS. Id. at 42,
47-50. At night, he climbed over the nurses’ station again and
jumped on the lead MHS. (Tr. 965-68, 975-76; Ex. C-64 at 55.) By
this point, the patient had been moved to a different unit, but the
lead MHS did not observe any other changes to the management of the
patient’s aggression. (Tr. 971.) About an hour after his third
climb into the nurses’ station, he punched a worker. (Ex. C-64 at
56.) His behavior continued into the next day. By about 8:00 a.m.,
he had been restrained four more times. Id. at 61, 63, 66,
73. This included two more incidents at the nurses’ station and
staff assaults. Id.

Like the lead MHS, another MHS involved with
multiple incidents with Patient 23 did not observe any measures to
address the patient’s aggressive behavior adequately. (Tr. 671.)
“Master Treatment Plan Update” forms were completed after each
restraint of Patient 23. (Ex. C-64.) The updates were for patients,
not staff safety, and MHSs did not review them. (Tr. 649, 1434.)
Numerous Master Treatment Plan Updates for Patient 23 were not
finalized until 24 days after the restraints occurred. (Ex. C-64 at
2, 11, 25, 35, 40, 46, 52, 54, 67, 75, 76.) Dr. Gray, the Medical
Director, signed eleven updates, each related to a different
restraint of Patient 23, weeks after the restraints occurred. (Tr.
2656.) He offered various theories but did not know why he signed
them long after the restraints occurred. (Tr. 2653-56.)

Restraint Reduction Initiative

Respondents believe that reducing restraints
reduces the risk of employee injury. (Tr. 229-30, 2525, 2851; Ex.
RCS-41.) The Worksite had a restraint reduction team. The team was
largely non-direct care workers, even though 90% of those injured by
workplace violence were in direct care roles. (Ex. C-3 at 11.)
Before the inspection commenced, the only direct care worker on the
team was a trainer. 23
The Risk Management Director claimed that the restraint reduction
team met at least monthly at the start of OSHA’s investigation.
(Tr. 2787, 2828.) However, the records do not show any meetings
during the inspection period, and only four meetings in 2019. (Tr.
2828; Ex. RCS-41.)

Injury Reporting & Tracking

Respondents had a written procedure for reporting
aggression. 24
The policy called for reporting staff “injuries” as well as
“safety concerns” and “unusual incidents” of “sufficient
significance.” (Ex. RCS-3 at 1-2.) The policy does not elaborate
on what injury means or whether the safety concern must be ongoing to
be reportable. (Ex. RCS-3.) Immediate notification of the
Administrator On Call was required for patient injuries but not
worker injuries. (Tr. 2823-24; Ex. RCS-3 at 2.) The policy does not
refer to the OSH Act, including its injury recording obligations.
(Ex. RCS-3.)

Respondents also had a one-page flyer that
directed injured employees to call a hotline to have their injury
assessed for the need for medical treatment and possibly to answer
questions about the “accident.” (Tr. 2729; Ex. RCS-23.) The
number on the flyer was for Sedgwick, a third-party contractor
Respondents retained. 25

Respondents’ policy indicates that the “Safety
Committee” will review trends and act to decrease or eliminate
safety hazards. (Ex. RCS-3 at 3.) There is no evidence of a “Safety
Committee.” (Tr. 154-55, 1634-35; Ex. C-3 at 34-35, 38.) The
Safety Solutions Team stopped meeting nearly a year before the
inspection commenced, and there was no committee focused on employee
safety and health concerns. (Exs. RCS-84 at 8, C-3 at 34.)

The rate of patient-to-staff aggression is noted
in the minutes of a different committee, the Performance Improvement
Committee (PIC). (Tr. 2802-5; Ex. RCS-84.) This rate is based on
the number of injuries to staff from patient aggression per 1,000
patient days. (Tr. 2802-4.) The Worksite has approximately 2,000
patient days per month. (Tr. 2805.) In 2019, the rate of such
aggression ranged from 1.57 to 7.10. 26
The PIC minutes do not note specific staff injuries or discuss
incidents that led to such injuries. (Ex. RCS-84.) Similarly, the
restraint reduction team’s minutes note patient aggression toward
staff but make no mention of worker injuries. 27

Although not used to track or report worker
injuries, a nurse was supposed to complete a “packet” of forms
after a restraint or seclusion. (Tr. 418-19, 560, 630, 965, 1469,
2603-4; Exs. C-64, C-65, C-66.) The information collected focused on
the patient and their perception of events and triggers. (Tr.
418-19, 1434; Exs. C-3 at 41, C-64, C-65 at 5.) There was a space to
indicate the staff involved in the debriefing, but it was not
consistently completed. (Tr. 651, 927, 966-67, 1471-73; Ex. C-64.)
The same is true for a section requesting information on what
measures would permit better management of future incidents. (Ex.
C-64 at 9, 23, 36, 59, C-66 at 6.) The information was to be used to
update the patient’s Master Treatment Plan, not worker safety.
(Tr. 1433-34; Ex. C-3 at 41.) This documentation typically did not
include worker injuries “because there were so many assaults” and
because employee injuries did not “belong” in the medical file
where the information was ultimately placed. (Tr. 419, 560, 630-31;
Ex. C-2b.) The packets were not aggregated, so reviewing all
reported information about assaultive incidents would require
referring to individual patient records. (Exs. C-2b at 13, C-3 at
48-49, C-94 at 11, 20.) MHSs were not required to view the patient
medical files, and it could take a while for the post-restraint
packet to be added to the file. (Tr. 560, 1253, 1431, 2554; Ex. C-92
at 22.) Likewise, MHSs did not review Master Treatment Plan updates.
(Tr. 649, 2656.) It could take time to complete Master Treatment
Plan updates and insert them into the individual paper medical file.
(Tr. 649, 2656; Ex. C-64.)

Respondents contend that management audits the
incident reports to ensure they are completed. (CS Br. 44 citing
Tr. 321 and Ex. RCS-84.) Neither the PIC meeting minutes nor the
CO’s testimony sufficiently support that contention. The CO
rejected Cedar Springs counsel’s suggestion that incident reports
were audited daily and limited her testimony to expressing her belief
that the reports were audited periodically. (Tr. 321.) Further, the
CO’s testimony was about the restraint and seclusion packets, which
generally did not include worker injuries. (Tr. 560.) The record
does not reflect auditing of the Sedgwick Reports or other reports
made under the Worksite’s incident reporting policy (Exhibit
RCS-3.).

Debriefing & Incident Investigations

Post-incident debriefings occur when patient
behavior leads to them being restrained or put into seclusion. (Tr.
182-83; Ex. C-3 at 44-45.) As noted, the debriefings focus on
patient feedback and patient safety. (Tr. 182-83, 1434; Exs. C-3 at
45-46, C-64, 65, C-66.) They are not about worker injuries. (Tr.
560.) A nurse typically completes a debriefing form within thirty
minutes of the restraint or seclusion. (Tr. 630, 2344.) The
Director of Nursing reviewed them before the debriefing forms were
eventually placed in the patient’s medical file. (Tr. 560, 630-31,
2523.) Ms. Nolan sometimes completes the debriefings rather than
those directly involved. (Tr. 2344.) She might only be able to
gather one person to conduct the debriefing because staff would need
to return to their respective units or have other duties. (Tr. 2344;
Ex. RCS-29 at 4, 19-22.) Workers discussed violent incidents they
were involved in but for which they did not participate in any
post-incident debriefing or investigation. (Tr. 183, 643, 651,
672-73, 966-67, 983, 992, 1420, 1438, 1471-73, 1495, 1507, 1510; Exs.
C-3 at 45.)

The debriefing forms in the record support the
testimony about inconsistent debriefing practices. (Exs. C-64, C-65
at 5, C-66 at 5.) Most of the one-page forms have multiple blanks.
(Exs. C-64 at 5, 9, 15, 25, 36, 39, 59, C-65 at 5, C-66 at 5, C-79 at
5.) Sometimes, the debriefing forms do not identify who participated
in the debriefing. (Ex. C-64 at 5, 9, 23.) When people were listed,
often there was a disconnect between those involved in the restraint
and those who participated in the debriefing. (Ex. C-64 at 15, 23,
59, C-65 at 5, C-66 at 5.) For example, sometimes Ms. Nolan was an
observer or participant but was not involved in the debriefing. 28

Respondents also obtained incident information by
reviewing events captured on the Worksite’s video surveillance
system. The Risk Management Director would be informed of restraints
or seclusions and look for video of the incidents. (Tr. 1834,
1898-99, 1903-6, 2762-63; Ex. C-75.) Workers frequently did not have
an opportunity to review video footage of incidents during which they
were injured by patient aggression or violence. Therapists, nurses,
and MHSs indicated they never saw videos of incidents of workplace
violence they experienced or saw. (Tr. 672-73, 1437, 1476-77, 1507,
1510, 1541-42.) Witnesses discussed violent incidents they believed
were caught on camera but for which they never saw any video footage.
(Tr. 672-73, 682, 771, 972-73, 979-80, 983, 991-92, 1437, 1476-77,
1541-42.) Other documents support the workers’ testimony that
reviewing camera footage of incidents was not consistently done.
(Exs. C-79 at 8; RCS-41 at 5.)

Contraband & Patient Searches

The majority of patients arrive via ambulance and
are brought directly to a care unit. (Tr. 2310-11, 2419-20.) At the
start of OSHA’s investigation, there were no metal detectors in
care units. (Tr. 258-59, 466, 468-69, 715, 1501, 1569, 2310-11,
2428, 2430; Exs. C-38, C-39 at 1.)

The process was different for individuals
voluntarily coming to the A&R department. Upon arrival, the
person would speak with a receptionist and then wait in the lobby
with their possessions. (Tr. 90-91.) There was no search before the
person was brought into the assessment rooms. If the person was
admitted after the assessment, a metal detector wand was supposed to
be used over their clothes and the exterior of their belongings.
(Tr. 91; Ex. RCS-15.) Staff would do a “cursory” search of the
patients and their bags with a metal detecting wand. (Tr. 176, 260,
359, 1204, 1312, 1629.) Neither patients nor their belongings were
thoroughly searched in the A&R department. (Tr. 176, 1204, 1569,
1672-73; Ex. C-39.) One of the A&R workers would then walk the
patients across the grounds to the care unit. (Tr. 91, 896.) Staff
or patients would carry the belongings to the building with the care
units. (Tr. 91, 896, 1204, 2551, 1672-73; Ex. C-39.)

Regardless of how patients were admitted, the
Worksite’s policy was to inventory patient possessions after the
patient got to the care unit. (Tr. 2892; Exs. RCS-30 at 2, RCS-31.)
Workers did not do an immediate inventory but tried to get to it at
some point during the shift. (Tr. 1570, 2321, 2377.) Patients’
belongings were sometimes kept in the nurses’ stations for long
periods before being searched. (Tr. 360, 497-98, 897, 1313, 1377,
1488-89, 1502, 1570, 1629, 1644, 1672, 2320-22, 2377, 2892.) While
most of the nurses’ stations were typically locked, the station in
one unit did not lock. (Tr. 2378.) No one knows the contents of
those belongings kept behind the nurses’ station until they are
searched. (Tr. 2548-49; Ex. C-39.)

Patients themselves were typically searched more
quickly for contraband and weapons. (Tr. 467-68, 715, 2319-20; Ex.
RCS-30 at 2.) At the investigation’s start, patients would undergo
a body scan after arriving in the unit. (Tr. 715, 2319-20, 2871; Ex.
RCS-30 at 2.) Respondents changed their procedures after the
investigation commenced. (Tr. 2425.) The belongings are now secured
before the body scan and entry into the care unit. Id.

OSHA’s Investigation

Respondents raise several unsupported claims about
the CO and the appropriateness of OSHA’s investigation. They
misrepresent the record and make sweeping allegations of “bias”
and “misconduct” without grounding them in any particular legal
theory or appropriate support. (CS Br. 13-14.)

An employee contacted OSHA’s Whistleblower
Office with concerns about hazards at the Worksite. (Tr. 64; Ex.
C-2a.) That office then referred the complaint for further
investigation. Id. Ms. Stark received the referral and held
an opening conference with the Nursing and Risk Management Directors
on November 18, 2019. (Tr. 71-72; Ex. C-3 at 4.) She returned on
subsequent dates to tour the Worksite and to speak with workers.
(Tr. 73-74; Ex. C-3.) She interviewed management, including the CEO,
three directors, and approximately fourteen other workers. 29
Ms. Stark had previously inspected a behavioral health hospital and
had conducted other inspections involving workplace violence
allegations. (Tr. 64.)

OSHA spent months gathering evidence, reviewing
documents, and talking with employees before issuing the Citations.
(Tr. 73-75; Exs. C-2a, C-3, C-4.) Additional information was also
sought via subpoena. (Tr. 81-83; Exs. C-6, C-7, C-8.) The requested
documents included incident reports, information related to
debriefings, intake screenings, behavior plans, and seclusion and
restraint packets. (Tr. 81-82; Exs. C-6, C-7, C-8.) The CO reviewed
the OSHA 300 logs and logs of injuries employees reported via a
hotline. (Tr. 107-19.) She concluded that employees in direct
contact with patients suffered serious workplace violence-related
injuries. (Tr. 106-7, 115-23.) These included a high number of
injuries serious enough to require lengthy days away from work and
restricted duty. (Tr. 110-15; Ex. C-3.) After the site visit,
interviews, and document review, the CO believed there was a
violation of the general duty clause for the hazard of workplace
violence and recommended the citation’s issuance. (Tr. 104-5,
123.)

Some documents were not produced to OSHA within
four hours of the request, some requests were refused, and
Respondents did not preserve some responsive information. (Tr.
198-201; Exs. C-6, C-7.) After multiple requests and a subpoena,
Respondents failed to timely provide all requested illness and injury
records. (Tr. 190-94; Exs. C-3, C-4, C-7.) OSHA also did not
receive video footage of all incidents of patient-to-staff aggression
as demanded in the subpoena. (Tr. 82-85; Exs. C-6, C-8.) Videos
related to several such incidents were destroyed and unavailable
during discovery. (Tr. 82-85.)

Respondents cite no caselaw in support of their
misconduct claims. (CS Br. 13-14.) Further, they mischaracterize
the record when discussing the CO’s interaction with one worker.
Id. at n.8. The transcript contradicts their argument. If
the events counsel described had occurred, that “would be
concerning.” (Tr. 452.) But no witness or document supported
counsel’s theory. There was no finding that the conduct counsel
theorized occurred. (Tr. 428, 457.) Further, there is no contention
that the emails provided to OSHA were protected from disclosure to
the agency. Although the emails were not disclosed in discovery,
Respondents do not assert that they were unresponsive or irrelevant
to the Secretary’s valid discovery requests. Nor do they claim any
privilege protected them from discovery. (Tr. 456-57.) Respondents’
misconduct claims do not withstand scrutiny and are dismissed with
prejudice. There was ample evidence to support the Citations.

Video Surveillance

Factual Background

“At the time of the inspection, Cedar Springs
had surveillance cameras located in the common areas of the facility
and units. No cameras [were] located in bathrooms or patients’
rooms.” (Stip. 46.) The cameras monitor common areas, including
hallways, nurses’ stations, the lobby, group rooms, the gym, and
the cafeteria. (Tr. 103-4, 1414, 1898, 1905-6, 2771; Stip. 46.) The
video is in color but does not include sound. (Tr. 1717; Exs. C-106,
C-106, C-108.) The preserved clips are sufficiently clear to see
various parts of the units and individual faces. (Exs. C-106, C-107,
C-108.)

Video can be watched in real-time, but that was
not often done. (Tr. 104, 1073, 1206, 1898; Ex. C-3 at 42.)
Instead, it is recorded and automatically saved for thirty days so
that it can be reviewed later. (Tr. 1073, 1898-99; Resp. Opp’n to
Sanctions Mot. 3.) At or before thirty days, the Risk Management
Director can save the video before it is deleted. (Tr. 1898-99,
2763-67; Resp. Opp’n to Sanctions Mot. 3.)

Video is routinely reviewed and saved for various
reasons. (Tr. 883-84, 916, 1476-77, 1832, 1834-35, 2762-66, 2771;
Exs. C-14 at 3, C-19, C-20, C-22, C-75; RCS-41 at 4, 6.) Senior
managers conducted camera audits by reviewing videos from different
shifts at least once a week. (Ex. C-75.) Respondents claim these
were a primary focus area to address staff safety. (CS Br. 45 n.
41.) In practice, the audits focused on patient safety, ensuring
workers perform tasks, and confirming overtime was needed. (Tr. 510,
698, 1476-77, 1831-32, 2771; Exs. C-43, C-75.) The audits considered
whether the rounds were timely, whether workers entered rooms and
used a flashlight, and whether they completed the related
documentation. (Ex. C-75 at 2.)

Separate from the audits, video of all restraints
and seclusions was supposed to be reviewed under the Worksite’s
WVPP. (Tr. 883, 1834-35, 1899, 1903, 1906, 2761-62; Exs. C-19, C-20,
C-22 at 3, C-44, C-48, C-75 at 6-7, RCS-41.) During OSHA’s
investigation, management also reviewed camera footage of other
incidents and for other reasons. (Tr. 899, 910-16, 1913-14; Exs.
C-14 at 3, C-19, C-20, C-39 at 2, C-44, C-48.) For instance, camera
footage was reviewed to assess the accuracy of a worker’s claim
about how an injury occurred. (Tr. 913-16; Ex. C-48.) Management
also reviewed video related to an instance when a patient
successfully brought a knife into the care units. (Tr. 899; Ex. C-39
at 2.)

Procedural Background

OSHA commenced its investigation on November 18,
2019. Two days later, on November 20, 2019, it served a subpoena.
(Tr. 83.) The subpoena was consistent with an evidence preservation
letter OSHA sent to Respondents on November 21, 2019. (Sanctions
Mot. 2.) The letter directed Respondents to “not remove,
intentionally alter, destroy, rearrange, or otherwise tamper with any
surveillance video footage or recordings” at the Worksite.
(Sanctions Mot. Ex. 2 at 1-2.) It instructed Respondents to “take
all steps necessary to identify, retain, and preserve all
‘potentially relevant information’” to OSHA’s investigation.
Id. at 2. On January 10, 2020, the CO reiterated OSHA’s
concern that video evidence be maintained during the investigation.
(Sanctions Mot. Ex. 3.) Litigation formally commenced on June
4, 2020, when Cedar Springs submitted its Notices of Contest. 30

During discovery, the Secretary learned of deleted
videos. On December 2, 2021, she moved for Sanctions for the lost
electronically stored information (ESI). The Motion was denied
without prejudice in the undersigned’s Order on Complainant’s
Motion for Sanctions for Respondents’ Destruction of Relevant
Recorded Video Evidence (“Order”).

As the Order permitted, the Secretary renewed her
request for sanctions after the hearing. (Sec’y Br. 130-34.) The
Secretary relies on witness testimony and other records to support
the spoliation claims. In their brief, Respondents refer to the
“claimed destruction” of videos of workplace violence and claim
that any destruction did not prejudice the Secretary. (CS Br. 13, n.
7.) They do not address the records that refer to videos that were
not produced. Id.

Legal Standard

As the Order stated, Respondents had a duty to
preserve video evidence as of November 20, 2019, at the latest.
(Order 3, 6.) See Scalia v. UHS of Fuller, Inc. & UHS of
Delaware , No. 1:19-mc-91541-FDS, Document No. 42 (D. Mass. Jan.
6, 2020) (Magistrate Judith Gail Dein entering an order directing
UHS-DE to preserve “any existing video surveillance footage,”
which U.S. District Court Judge F. Dennis Saylor subsequently
adopted); Phillips Elecs. N. Am. Corp. v. BC Tech. , 773 F.
Supp. 2d 1149, 1167 (D. Utah 2011) (party had a duty to prevent ESI
from being inadvertently or negligently overwritten). The duty to
preserve continues throughout the litigation. A party cannot
continue its otherwise routine procedure of destroying evidence.
Emily Sharp Rains v. Westminster College, et al ., No.
2:20-cv-00520, 2023 WL 2894506, at *1 (D. Utah Apr. 11, 2023);
Peskoff v. Faber , 251 F.R.D. 59, 62 (D.D.C. 2008) (threat of
litigation should have prompted the defendant to “deactivate
network maintenance tools that automatically delete electronically
stored information”).

Federal Rule of Civil Procedure Rule 37(e)
“authorizes and specifies measures a court may employ if
information that should have been preserved is lost, and specifies
the findings necessary to justify these measures.” Advisory
committee’s note to the 2015 amendment. Under Rule 37(e), relief
is available when ESI should have been preserved in anticipation of
litigation and the party failed to take reasonable steps to preserve
it. Rule 37(e) only applies if the ESI cannot be restored or
replaced through additional discovery. The rule then bifurcates the
appropriate response to the loss depending upon whether the party who
failed to take reasonable steps acted with the “intent to deprive”
its opponent of the information’s use in litigation. See Equal
Employment Opportunity Comm’n v. JetStream Ground Servs., Inc. ,
878 F.3d 960, 965-66 (10th Cir. 2017) (relating the requirements of
Rule 37(e)(2) to another context); In re Google Play Store
Antitrust Litig. , No. 21-md-02981-JD, 2023 WL 2673109, at *1-2,
7-10 (N.D. Cal. Mar. 28, 2023) (finding sanctions appropriate when
the party did not take reasonable steps to preserve ESI after
litigation was reasonably anticipated); Integrated Commc’ns &
Tech., Inc. v. Hewlett-Packard Fin. Servs., Co ., No. 16-0386-LTS,
2020 WL 4698535 (D. Mass. Aug. 13, 2020) (applying First Circuit
precedent and imposing sanctions under Rule 37(e)(1) when a party did
not backup emails or take other steps to preserve the information).

The Third Circuit addressed Rule 37(e)’s
applicability and upheld sanctions a judge issued under Rule
37(e)(2). GN Netcom, Inc. v. Plantronics , 930 F.3d 76, 82-83
(3d Cir. 2019) (upholding judge’s decision to impose Rule 37(e)(2)
sanctions short of the requested default). Similarly, in an
unpublished opinion, the D.C. Circuit upheld the rule’s
applicability to ESI destruction. Ball v. George Washington
Univ. , 798 F. App’x 654, 654-56 (D.C. Cir. 2020) (unpublished)
(upholding judge’s decision not to issue sanctions after the
destruction of ESI).

Neither the Commission nor the Tenth Circuit
directly discussed Rule 37(e) in binding precedent. However,
Commission ALJs have. 31
For example, Judge Phillips applied Rule 37(e) and awarded sanctions
for ESI destruction. UHS-DE/Suncoast , 2023 WL 2388069, at
40-43. He imposed curative measures and sanctions for lost video
from patient care units at a behavioral health facility. Id.
at 16-43. The Commission affirmed the ALJ’s decision without
discussing his award of sanctions. 2023 WL 2388069, at *1, 10.

As for the Tenth Circuit, its pre-2015 precedent
largely tracks the provisions of Rule 37(e)(2) in that it requires a
finding of “bad faith” related to the spoliation. The Tenth
Circuit’s post-2015 position on imposing sanctions under Rule 37(e)
is not yet fully crystallized. See Helget v. City of Hays,
Kansas , 844 F.3d 1216, 1226 n.7 (10th Cir. 2017) (noting in a
different context that the 2015 amendment provided guidance on
sanctions for the destruction of electronic evidence); Jetstream,
878 F.3d at 965-66 (relating the requirements of Rule 37(e)(2) to
another context). In particular, the Tenth Circuit has not addressed
a sanction request under Rule 37(e)(1), which does not require a
showing of intent to deprive. While there may not be direct Tenth
Circuit precedent applying Rule 37(e), numerous district courts have
consistently applied the rule to analyze the loss or destruction of
ESI. The undersigned will do so as well.

Rule 37(e) requires a multi-step inquiry. First,
did the party fail to take reasonable steps to preserve the ESI? GN
Netcom , 930 F.3d at, 82-83. Second, can the lost ESI be restored
or replaced? Id. Third, was there prejudice from the loss?
Id. If so, what actions will redress that prejudice? Id.
Fourth, did a party act with the intent to deprive another of the
information’s use in litigation? Id.

Respondents failed to take reasonable steps to
preserve the ESI. Their approach resulted in lost ESI that cannot be
restored or replaced. The loss prejudiced the Secretary.
Respondents also intentionally failed to preserve ESI with an intent
to deprive the Secretary of the ability to use such evidence at the
hearing.

Failure to Take Reasonable Steps

The Secretary showed that Respondents’ process
to preserve the subpoenaed videos of the hazard was neither adequate
nor reasonable. Even without an ongoing OSHA investigation,
Respondents’ policies required reviewing video of restraints and
seclusions. (Tr. 883-84, 1834, 1903, 1906, 2762-63; Exs. C-22 at 3,
C-44, C-75.) The Risk Management Director (Kolln) reviews incident
reports each day. (Tr. 1837-38, 1904-5.) If the reports indicate a
patient was restrained, she looks for and then watches video of the
event. (Tr. 1903, 1906.) Such video reviews are supposed to be
documented. (Ex. C-75 at 6.)

Ms. Kolln’s testimony is consistent with the HPR
incident logs, which make repeated references to reviews of videos
from incidents. 32
The logs set forth several incidents for which video should have
been in Respondents’ possession as of November 20, 2019, or later.
(Exs. C-19 at 24-27; C-20 at 23, 28, 36.) Ms. Kolln confirmed that
there was a video of an incident if that is indicated in the HPR log.
(Tr. 1907-9; Ex. C-20.) However, she could not recall if she saved
the videos referred to in the logs. Id. See Franklin v.
Stephenson , No. 20-cv-0576 MIS-JFR, 2022 WL 6225303, at 8
(D.N.M. Feb. 16, 2022) (noting that even though a party reviewed the
video for a different purpose, the failure to retain the watched
video demonstrated that the party did not take reasonable steps to
preserve the evidence); Mueller v. Swift , No.
15-CV-1974-WJM-KLM, 2017 WL 3058027, at 5 (D. Colo. July 18, 2017)
(awarding sanctions when party was “unjustifiably careless” in
handling ESI).

After OSHA’s investigation commenced, Ms. Kolln
was instructed to retain video of patient-to-staff aggression. (Tr.
1899.) At some point, she stopped doing that and only attempted to
retain video of incidents in which workers were injured. (Tr. 1899,
2821-22.) She could not explain when or why that change occurred.
Id. Under either criterion for saving, i.e ., employees
being injured or not, videos of many events were not produced.
Workers reported injuries from patient aggression on January 3rd,
6th, and 7th. (Tr. 622, 672, 909, 913, 961, 979-80, 1900-2; Exs.
C-13, C-14, C-44, C-64.) Ms. Kolln and the workers involved agreed
that the incidents should have been visible on camera. (Tr. 672-73,
682, 1474, 1476, 1900-3, 1906.) The January 7, 2020 incident report
specifies that camera footage was available. (Ex. C-14 at 3.)

Despite this, Ms. Kolln could not recall if she
reviewed or saved video related to those incidents. (Tr. 1900-2,
1914; Ex. C-44.) Overall, Ms. Kolln could not specify how many
videos she reviewed or tried to locate from when litigation was first
anticipated through the close of discovery. (Tr. 1899-1914.) She
did not keep a list of videos she watched or complete the required
form after her reviews. 33
She did not note any videos she saved after she was instructed to
preserve all videos of incidents involving patient aggression against
staff. (Tr. 1899.) Similarly, she did not document which incidents
she looked for video but did not find any. (Tr. 1899, 1902, 1905-9,
2822.) Without such records, it’s unsurprising that she could not
identify the incidents for which she reviewed camera footage. (Tr.
1905-7, 1914.) See In re Google , 2023 WL 2673109, at *8-9
(failure to check whether employees were appropriately preserving
text messages was evidence of a failure to take reasonable steps).

The amount of video produced is far smaller than
the number of incidents for which the log incident indicates there
was video. (Tr. 112, 1907-9; Ex. C-20.) Most incidents occurred in
areas with cameras, including the nurses’ stations, common areas,
and hallways, suggesting video would be available based on the
numerous cameras and their locations. (Tr. 1900-1, 1905-6, Exs.
C-19, C-20.) Ms. Kolln offered various theories as to why footage
might not be available. However, again, she provided no specifics on
instances where she tried to view footage, but the cameras did not
capture anything. (Tr. 1899-14.) See Graham v. City of Lone
Grove, Okla. , No. 19-CV-000298-JFH, 2022 WL 2276337, at 5 (E.D.
Okla. June 23, 2022) (finding that the failure to check to see if
video was saved constituted failure to take reasonable steps), appeal
dismissed, sub nom. Graham v. Hensley , No. 22-7032, 2022 WL
18107698 (10th Cir. Dec. 16, 2022) (parties settled);
UHS-DE/Suncoast , 2022 WL 2388069, at 22-23, 32-35.
Initially, Ms. Kolln indicated that a camera might not function on
occasion. (Tr. 1901-3.) She later suggested there might be an issue
with a camera two or three times a month. (Tr. 1912-13.) The
incident logs sometimes note that one camera was not working but
others captured the same incident. (Ex. C-19 at 27.) At other
times, multiple cameras recorded aspects of the same event. (Tr.
104, 1485-86, 1558, 2764, 2766; Exs. C-106, C-107; Sec’y Mot. 5.)
Most of the time, a hundred or more cameras are available. (Tr.
1486, 1898, 1913; Exs. C-3 at 21, 42, C-19, C-20; Resp. Opp’n to
Sanctions Mot. 2-3.) Even accepting Ms. Kolln’s uncorroborated
testimony on the frequency of camera unavailability, there remains a
significant mismatch between the number of workplace violence
incidents and the number of incidents for which video was produced. 34

Respondents’ failure to produce even the
simplest list of videos searched for or saved is telling. (Tr.
1903-4, 1906-7.) They chose not to suspend their routine destruction
of ESI after being subpoenaed and after litigation formally
commenced. Respondents knew OSHA was interested in the hazard of
workplace violence. Without ongoing litigation or investigations,
Respondent reviewed video of all incidents resulting in employee
injuries, patient restraints, patient seclusions, and as part of
UHS-DE visits. (Tr. 1686, 1899, 1903, 1906, 2762, 2766-67; Exs. C-22
at 3, RCS-41.) Respondents knew the video system captured and
automatically saved video of workplace violence incidents for thirty
days. (Tr. 1898-99.) Workers would access such videos, review them,
and then could have saved them to permit the Secretary to do the
same. (Tr. 1898-99, 2766-67.) Instead, on multiple occasions after
the subpoena was served and litigation was reasonably anticipated, no
one did so.

Incidents occurred in places the video camera
system covered but for which no video was produced. (Tr. 104, 771,
973, 979-80, 983, 991-92, 1437, 1507, 1541.) The Secretary showed a
significant discrepancy between the number of incidents during the
inspection period for which Respondents claimed to review video and
the number of incidents for which video was provided to the
Secretary. (Exs. C-19, C-20, C-49, C-64, C-66.) Respondents’
records repeatedly refer to videos being reviewed without a
corresponding production of the same evidence for the Secretary’s
review. (Tr. 1908-9; Ex. C-20.)

Respondents were on notice of the litigation and
the relevance of video related to workplace violence at least by
November 20, 2019. (Order 3.) The failure to preserve videos after
litigation was reasonably anticipated of incidents that Respondents
would review in the ordinary course of business was not reasonable.
They failed to intervene and allowed ESI to be destroyed. The
deletion of videos was not accidental or beyond Respondents’
control. See In re Krause , 367 B.R. 740, 766 (Bankr. D. Kan.
2007) (sanctioning debtor who continued routine deletion of emails
and failed to deactivate “wiping” software which routinely
removed information), aff’d , 637 F.3d 1160 (10th Cir. 2011);
Philips Elecs. N. Am. Corp. v. BC Tech ., 773 F. Supp.2d 1149,
1197 (D. Utah 2011) (sanctioning defendant who had a duty to preserve
ESI by preventing it from getting lost, inadvertently overwritten, or
wiped out). They routinely reviewed video surveillance outside of
active litigation and had procedures to save video. (Tr. 913, 915,
1476-77, 1686, 1834, 1899, 1903, 1906, 2762, 2766-67; Exs. C-14 at 3;
C-19, C-20, C-22, C-75, RCS-41 at 4, 6.)

Routine destruction under a company policy can
constitute spoliation. Youngevity, Int’l, et al. v. Smith, No.
3:16-cv-704-BRM-JLB, 2020 WL 7048687 at *2 (S.D. Ca. July 28, 2020)
(“Defendants’ failure to prevent destruction by backing up their
phones’ contents or disabling automatic deletion functions was not
reasonable because they had control over their text messages and
should have taken affirmative steps to prevent their destruction when
they became aware of their potential relevance.”). Once litigation
is reasonably anticipated, parties must suspend policies related to
deleting or destroying files and preserve relevant ESI. See e.g.,
Browder v. City of Albuquerque , 187 F.Supp.3d 1288, 1294-95
(D.N.M. 2016) (noting “a continuing responsibility to ensure” the
preservation of “relevant information” and that this requires
more than “mere notification;” counsel must take “affirmative
steps to monitor compliance, to talk to key employees in an effort to
understand how evidence will be stored, to continually ensure that
the party is preserving relevant evidence.”); Cache La Poudre
Feeds, LLC v. Land O’Lakes, Inc. , 244 F.R.D. 614, 635-36 (D.
Colo. 2007) (in a case decided before Rule 37(e)’s amendment,
finding that the failure to preserve potentially relevant and
responsive ESI by wiping clean computer hard drives and counsel’s
failure to monitor the ESI discovery process properly warranted
monetary sanction).

Respondents did audits and camera reviews
throughout the inspection period. (Tr. 883-84; Exs. C-48, C-75,
RCS-41; CS Br. 40, 56, 71.) They have the sophistication to
understand the obligation to retain evidence before litigation
formally commences. UHS-DE has been involved in several other
proceedings before the Commission, during which the Secretary sought
and used video of workplace violence incidents to establish general
duty clause violations for the hazard of workplace violence. 35

Restoration or Replacement

The Advisory Committee notes to Rule 37 explain
that ESI can be restored or replaced if the ESI is available from a
third party or if there is more than one electronic copy. See
Borum v. Brentwood Vill., LLC , 332 F.R.D. 38, 46 (D.D.C. 2019).
That is not available to the Secretary for this matter.

Respondents note the availability of other
evidence of workplace violence events was provided during discovery
and introduced at the hearing. 36
Written records and availability of certain witnesses are not
equivalent to what was destroyed. For example, the log of HPR
reports indicates that video of multiple incidents was reviewed.
(Ex. C-20.) However, there is little documentation about what the
reviews uncovered. (Tr. 1906-9; Ex. C-20.) The videos may have
captured details not found in the written records or the witnesses’
memories. See Woodward v. Wal-Mart Stores E., LP , 801
F. Supp. 2d 1363, 1373 (M.D. Ga. 2011) (finding that employee
testimony about an event “hardly works” to address the loss of
video); Storey , 2017 WL 2623775, at 5 (discussing the “unique
and irreplaceable nature” of video evidence); BankDirect Cap.
Fin., LLC v. Cap. Premium Fin., Inc. , No. 15 C 10340, 2018 WL
1616725, at 10 (N.D. Ill. Apr. 4, 2018) (“ BankDirect ”)
(proffered substitute for destroyed ESI was less compelling and not
the “evidentiary equivalent” of what was destroyed); Moody v.
CSX Transp., Inc ., 271 F. Supp. 3d 410, 429-30 (W.D.N.Y. 2017);
Abdulahi v. Wal-Mart Stores E., L.P ., 76 F. Supp. 3d 1393,
1396-97 (N.D. Ga. 2014) (other evidence such as emails and testimony
did not remove prejudice caused by the destruction of video).

Prejudice from the ESI Spoliation

Rule 37(e)(1) allows for curative measures when
lost ESI causes prejudice to another party. “An evaluation of
prejudice from the loss of information necessarily includes an
evaluation of the information's importance in the litigation.”
Bush v. Bowling , No. 19-CV-000098-GFK-FHM, 2020 WL 5423986, at
6 (N.D. Okla. Sept. 10, 2020) (finding prejudice from the loss of
video despite its somewhat limited probative value and the
availability of other evidence). In UHS Centennial , the
employer’s destruction of videos warranted sanctions. 2022 WL
4075583, at 3. The judge imposed adverse inferences that the
destroyed video of workplace violence incidents at a behavioral
health facility would have shown: (1) the hazard of workplace
violence was present in the workplace; (2) the employer recognized
the presence of the workplace violence hazard; (3) the employer had
actual knowledge of the workplace violence hazard and was aware its
employees were exposed to it; and (4) such exposure could result in
seriously bodily harm or death.  Id. at *3, 23.

Respondents stipulated to some of the same
findings imposed as adverse inferences in UHS Centennial.
Those stipulations mitigated some of the prejudice the ESI’s
destruction caused. Still, the lack of certain direct evidence
complicated the Secretary’s presentation of this matter. The
destroyed videos relate to disputed elements of the Secretary’s
burden, including: (1) the harm from the hazard, (2) knowledge of the
hazard’s presence, (3) the effectiveness of the Worksite’s
abatement, and (4) the proposed abatement. To illustrate,
Respondents challenge the contention that the calling of codes did
not adequately provide enough staffing for workplace violence
incidents. Citing a manager’s testimony, Respondents claim that
typical response times are measured in seconds. (CS Br. 38.) In
contrast, an employee described the response time to an incident that
led to her injury as “several minutes.” (Tr. 753, 757.) Other
witnesses contradict the claim that a response time was typically
15-20 seconds. (Tr. 807, 2309.) The preserved videos show when more
staff arrived but represent only a fraction of the hazard
occurrences. (Exs. C-106, C-108; Tr. 1553, 1714, 2309.) Ms. Nolan
indicated she responded to every Code Green on her shifts and would
perform debriefings. (Tr. 2343-44.) Video of her responding to
workplace violence incidents would have supported or refuted her
claims about the routine availability of managers to assist with
codes. 37
Respondents also questioned the CO’s testimony that employees had
to call multiple Code Greens before assistance arrived. (Tr. 303-4.)
Again, video from more incidents could have corroborated or refuted
this testimony. (Ex. C-106; Tr. 1549.)

Other questions on cross-examination highlighted
some gaps in memories since the events occurred. (Tr. 717-18, 720,
1531-34, 1537-38.) A former nurse contacted the reporting line after
a patient hit her with a laundry bin on February 12, 2020, months
after OSHA’s investigation commenced. (Tr. 1531-34, 1537-38, 1540;
Ex. C-15.) The witness believed the incident should have been
captured on video. (Tr. 1541.) But, at that time, an opportunity to
review camera footage had never been made available to injured
workers. (Tr. 1541-42.) The witness had difficulty recalling the
exact number of responders and whether the incident was caused by
patient aggression or the patient’s refusal to take medication to
reduce agitation, aggression, and anxiety. (Tr. 1537-40.) Although
Respondents note the witness’ failure to remember this detail, they
do not explain the difference to a worker, if any, between being hit
for no reason versus a patient hitting a worker because the patient
did not want medication. (CS Br. 62-63.) Respondents now seize on
such gaps in memory to attack the former workers’ credibility. Id.
at 47-65. Videos could have addressed such gaps and helped with
credibility assessments.

Respondents recognized the utility of video and
made extensive use of video they selectively preserved. (Tr.
1542-60, 1551-52, 2347-62; CS Br. 64-65, 91, 107-8.) They argue
about what could have occurred off-camera without confirming that
they preserved all available angles of incidents of workplace
violence. (Tr. 1552, 1557-58, 2764.) Respondents had the
opportunity to review evidence that may have corroborated or refuted
testimony but did not give the Secretary the same opportunity.

Respondents also argue the availability of
documents precludes a finding of prejudice. (Resp. to Sec’y
Sanctions Mot. at 2, 13-15; CS Br. 13 n.7.) In fact, the documents
highlight what was lost. For example, Respondents produced records
related to various restraints of Patient 23 between January 6 and 7,
2020. (Ex. C-64; Stip. 55.) The incidents occurred well after
November 2019, met the criteria for when Respondents ordinarily
reviewed video, and happened in areas with cameras. Yet, Respondents
preserved video of only one incident on January 7, 2020. They did
not provide video of the other incidents that occurred on January 6th
and at other times on January 7th. (Ex. C-108; Sec’y Br. 131.)
Respondents do not explain why video of one incident was available
yet others occurring so close in time and in similar areas were not.
The written patient debriefing does not answer whether workers were
adequately protected or the proposed abatement’s effectiveness.
(Sec’y Br. 130-32.) The destroyed ESI could have shown how quickly
staff responded, whether the latch on the window was broken, whether
the patient was threatening before he entered the nurses’ station,
and if the MHS could have called for help sooner. (Tr. 717-18, 720.)

Other examples of the disconnect between documents
and recollections are seen in the Sedgwick Reports compiled by a
contractor after injured workers call a hotline. (Stip. 39; Tr.
116-17, 2728-29; Exs. RCS-23, C-94 at 15.) Often, those reports give
conflicting information about the injury’s cause. Rather than
stating that an injury was caused only by a patient or patients,
often, the Sedgwick Reports incorrectly state that a “fellow
worker” caused the injury when a patient caused it. (Exs. C-3 at
53, C-12, C-14.) Other times, the reports simply state that a
“human” caused the injury, without further clarification. Videos
might have answered questions unaddressed in the written records and
assisted with weighing credibility.

Most of the videos produced related to events in
December 2019 and some did not show an aggressive patient. 38
Video was provided for only four incidents in all of 2020. And none
of that related to the incidents on January 3, January 6, or February
12, 2020. (Tr. 672-73, 682, 1474, 1476; Exs. C-20, C-66.)
Respondents attack the Secretary for not introducing every clip
preserved. (CS Br. 13 n. 7.) While only three clips were introduced
into evidence, the Secretary’s experts reviewed and relied on all
videos produced in their reports. (Exs. C-94 at 22, 30; C-92 at 10.)

T he point of
precluding spoliation of evidence is that one side does not
unilaterally get to decide what to preserve. When one side (a) has
possession, custody, or control of material videos, (b) has the
opportunity to review the video, (c) can preserve video, and (d) only
preserves some of the videos, it deprives the other side of viewing
all relevant evidence. Nation-Wide Check Corp., Inc. v.
Forest Hills Distrib. , 692 F.2d
214, 218 (1st Cir. 1982) (Breyer, J., drawing inferences from the
destruction of documents under common law precedents). Discovery
permits opposing sides to see the evidence and determine its worth.
One side cannot destroy relevant evidence and then claim it
would not have benefitted its opponent.

Certainly, the lost ESI might not have been
helpful to the Secretary. However, it is extremely difficult to
support speculation as to its lack of utility when Respondents failed
to preserve what would be the best evidence of this conclusion.
Paisley Park Enters. v. Boxhill, et al. , 330 F.R.D. 226,
235-36 (D. Minn. 2019) (“Even when the information lost is
cumulative to some extent, the loss of the information still has an
impact because [a party] cannot present the overwhelming quantity of
evidence they otherwise would have to support their case”); Ala.
Aircraft Indus., Inc. v. Boeing, Co., No. 20-11141, 2022 WL
433457, at *16 (11th Cir. Feb. 14, 2022) (party could not
substantiate the argument that the lost ESI was relatively
unimportant when they deleted the information that would support such
a conclusion). See also Food Lion, Inc. v. United Food and Com.
Workers Int’l Union , 103 F.3d 1007, 1012 (D.C. Cir. 1997)
(consolidated) (duty to preserve is broader than the duty to produce
something in discovery).

The ESI destruction prejudiced the Secretary by
forcing the Secretary to rely on less compelling evidence and piece
events together from multiple sources. (Sec’y Br. 130-32.) See
BankDirect, 2016 WL 65869448, 10 (availability of some ESI did
not remove the prejudice caused by the destruction of “unguarded
emails” the party “wrongfully place[d] out of reach”); In
re: Gold King Mine Release in San Juan Cnty., Colo. , No.
1:18-md-02824-WJ, 2022 WL 2230759, at 6-7 (D.N.M. June 21, 2022)
(consolidated) (finding prejudice when spoliated ESI was relevant to
a critical issue about which evidence was conflicting); In re:
Ethicon, Inc., No. 2:12-cv-00497, 2016 WL 5869448, at *4
(S.D.W.Va. Oct. 6, 2016) (prejudice under Rule 37(e) may be found
when the destruction causes a party to “piece together information
from other sources”).

Redress of Prejudice

Sanctions available under Rule 37(e)(1) cannot be
greater than necessary to cure the prejudice. See Kindergartners
Count, Inc. v. Demoulin, et al. ,
209 F.R.D. 466, 468-69 (D. Kan. 2002) (appropriate sanction was to
deem defendant’s defamatory conduct established). Respondents’
disregard for preserving evidence is troubling. Even so, the
destroyed ESI was not so essential as to present an insurmountable
obstacle to Complainant’s ability to prove its case. Further, the
prejudice from the loss was mitigated by Respondents agreeing to
several stipulations. Respondents stipulated that they and their
industry recognize the hazard of workplace violence. (Stips. 9-10.)
They stipulated that the hazard is present at the Worksite, employees
were exposed to it, and it could result in serious staff injuries.
(Stips. 7-8, 11.)

Nonetheless, these stipulations are insufficient
to cure the prejudice. The Secretary is entitled to additional
curative sanctions. The destroyed ESI will be presumed to have
supported finding knowledge of the hazard of workplace violence at
the Worksite and that the hazard caused actual serious harm.

Intent to Deprive / Bad Faith

The Secretary’s Motion and subsequent
post-hearing brief focus on sanctions that can only be imposed after
a finding of an intent to deprive. In support, the Secretary cites
the notice of the need to preserve video, Respondents’ capability
of doing so, and their lack of any reasonable explanation for why
they failed to do so. (Sec’y Br. 131-34.) Rule 37(e) “leaves
judges with discretion to determine how best to assess prejudice in
particular cases.” Fed. R. Civ. Pro. 37 advisory committee note to
the 2015 amendment, Subdivision (e)(1).

Respondents knew the utility of reviewing videos
to assess safety hazards. Indeed, they claimed it was part of their
WVPP. (Ex. C-22.) Video was routinely reviewed for a variety of
reasons, such as patient restraints. (Tr. 698, 883-84, 910-16,
1476-77, 1832, 1834-35, 1913-14, 2762-66, 2771; Exs. C-14 at 3; C-19,
C-20, C-22, C-39, C-48, C-75; RCS-41 at 4, 6.)

Intent is rarely proved by direct evidence. 
See, e.g.,  BankDirect ,
2018 WL 1616725, at 2 (“[A] combination of events, each of
which seems mundane when viewed in isolation, may present a very
different picture when considered together.”); Moody , 271 F.
Supp. 3d at 431-32 (finding intent based on defendants’ actions
that allowed evidence to be overwritten and destroyed);  Ottoson
v. SMBC Leasing & Fin., Inc. , 268 F. Supp. 3d 570,
581-82 (S.D.N.Y. 2017) (considering plaintiff’s conduct
throughout the litigation and during discovery disputes); Ala.
Aircraft Indus., Inc., 319
F.R.D. 730, 746-47 (N.D. Ala. 2017)  (imposing sanctions
under Rule 37(e)(2) where “unexplained, blatantly irresponsible
behavior” led to ESI destruction), aff’d , No. 20-11141,
2022 WL 433457, at 13-16 (11th Cir. Feb. 14, 2022).

There is sufficient circumstantial evidence here
to infer an intent to deprive the Secretary of the best evidence of
the hazard and how Respondents’ abatement program addressed the
hazard. Respondents knew OSHA was investigating workplace violence,
they knew they had video evidence of the hazard, they knew the
Secretary sought this ESI, and they knew they were contesting the
allegations in the Citation. They offer no sound explanation for why
companies with access to counsel and risk managers failed to preserve
relevant information after OSHA’s investigation commenced, after a
subpoena, and after litigation commenced. See Fed. Trade Comm’n
v. Noland , No. CV-20-00047-PHX-DWL, 2021 WL 3857413, at 14 (D.
Ariz. Aug. 30, 2021) (imposing sanctions under Rule 37(e) when a
party destroyed electronic evidence after learning it was under
investigation by a federal agency); BankDirect , 2018 WL
1616725, at 5-7, 9 (rejecting party’s array of excuses for
destroying ESI when litigation was reasonably anticipated).

To impose sanctions under Rule 37(e)(2), a finding
of prejudice is not strictly necessary. In re Google , 2023 WL
2673109 at *9. The finding of intent under subdivision (e)(2)
supports “not only an inference that the lost information was
unfavorable to the party that intentionally destroyed it, but also an
inference that the opposing party was prejudiced by the loss of
information that would have favored its position.” Comm. Notes,
Subdivision (e)(2). Although such a finding is not required, as
addressed, the Secretary was prejudiced by Respondents’ failure to
preserve relevant, discoverable evidence of instances of the hazard
and their response.

Respondents had the requisite state of mind for
Rule 37(e)(2)’s remedies. Still, the harshest sanctions are not
appropriate here. The “remedy should fit the wrong.” Advisory
committee’s notes to 2015 amendment. The
request for a definitive adverse inference establishing that the
Secretary met the abatement prong of the general duty clause test is
rejected. (Sec’y Br. 134.) Instead, the undersigned finds
that the destroyed videos would have been unfavorable to Respondents
on the issues of knowledge, abatement, and gravity. Further, the
destroyed videos would have supported the Secretary’s claims
regarding knowledge, abatement, and gravity. See Envision
Waste Servs., LLC , No. 12-1600, 2018 WL 1735661, at *10 (OSHRC
Apr. 4, 2018) (concluding that the failure
to produce authentic documents corroborated evidence of employer's
non-compliance).

III.OSHA Has
Authority Over the Worksite and Cited Hazard

Scope of Authority

Before turning to the merits, Respondents’
challenge to OSHA’s scope of authority will be considered.
Respondents argue that workplace violence is not within the scope of
the general duty clause or OSHA’s jurisdiction. 39
The Secretary maintains that although Respondents undoubtedly have
an obligation to patient care, they also have an obligation to
protect employees from hazards reasonably likely to cause serious
injury or death. See Safeway, Inc. v. OSHRC , 382 F.3d 1189,
1193-94 (10th Cir. 2004) (worker’s presence at the facility
following his superior’s instructions was sufficient to support the
OSH Act’s applicability).

Workplace violence is a hazard within the meaning
of the OSH Act. It has long been recognized in the healthcare
industry, and “ according to U.S. Bureau of Labor Statistics
data, the incidence of violence-related health care worker injuries
has steadily increased for at least a decade.” (Stips. 10, 54; Ex.
C-94 at 6-10.) Despite their rhetoric, Respondents provide no
support for finding that OSHA lacks jurisdiction over, or
responsibility for, workplace safety at inpatient psychiatric
hospitals or other similar places of employment. Each Respondent
stipulated that the Commission “has jurisdiction” over this
matter, and each acknowledged they are an employer as defined in the
OSH Act. 40
At best, Respondents are arguing against permitting OSHA to cite
medical facilities for hazards that cannot be eliminated.

The OSH Act does not exempt businesses providing
medical care. Applying the general duty clause to such employers,
including for the hazard of workplace violence, has been repeatedly
upheld. BHC Nw. Psychiatric Hosp . v. Sec’y of Labor ,
951 F.3d 558, 566 (D.C. Cir. 2020) (“ BHC ”) (upholding
citation for violation of the OSH Act based on the hazard of
workplace violence at an inpatient psychiatric facility); UHS of
Westwood Pembroke, Inc., UHS of De. , No. 17-0737, 2022 WL 774272,
at 1, 7-12 (OSHRC Mar. 3, 2022) (“UHS-DE/Pembroke ”)
(upholding a violation of the general duty clause for exposing
employees to the hazard of patient on staff aggression at a
behavioral health facility), aff’d , No. 22-1845, 2023 WL
243988 (3d Cir. May 4, 2023); UHS Centennial , 2022 WL 4075583,
at 2-3 (same); Integra Health Mgmt., Inc. , No. 13-1124, 2019
WL 1142920 at 1, 6 n.5 (OSHRC Mar. 4, 2019) (upholding the
applicability of the general duty clause to workplace violence
experienced by employees working with individuals with mental illness
or criminal backgrounds). In Integra , the
Commissioners unanimously upheld the applicability of the general
duty clause to workplace violence experienced by employees working
with individuals with mental illness or criminal backgrounds. 2019
WL 1142920, at 1, 6 n.5. The employer violated the general
duty clause by failing to “adequately address a workplace violence
hazard-specifically, the risk of Integra’s employees being
physically assaulted by a client with a history of violent behavior
during a face-to-face meeting.” 41

Respondents knew the hazard was present at the
Worksite and that they could take steps to reduce it. 42
They acknowledge the Worksite had policies and procedures which,
they argue, aimed to mitigate the serious and “longstanding”
hazard of workplace violence. (CS Br. 7, 21.) Respondents’
challenge to the scope of OSHA’s jurisdiction is rejected.

Other Regulatory Authorities

Respondents next contend that the oversight of
other regulators and an industry credential reduces the Secretary’s
authority over the Worksite. (CS Br. 20-21, 66.) Like other types
of employers, Respondents must comply with laws other than the OSH
Act. “Cedar Springs Hospital is certified as a Medicare and
Medicaid hospital by the Centers for Medicare and Medicaid Services
(“CMS”).” (Stip. 12.) To maintain this certification, the
Worksite must comply with federal regulations concerning “quality
standards in hospitals.” 43
The Worksite is “regulated by Colorado state agencies,”
including the CDPHE. 44
And it is “accredited by The Joint Commission (TJC) per its
standards.” (Stip. 14.)

Even assuming that the Worksite was in complete
compliance with all other regulatory requirements and TJC standards,
it does not mean Respondents did enough to protect workers from
workplace violence. While the TJC or other regulators may not
require the proposed abatement measures, there is no evidence that
Respondents could not adopt them because of other regulatory
requirements. See UHS Centennial , 2022 WL 4075583, at *30-32
(noting that the TJC’s Joint Sentinel Alert is not mandatory but
does identify industry-recognized methods for addressing the complex
hazard of workplace violence); Int’l Union, United Auto.,
Aerospace & Agr. Implement Workers of Am., Gen. Dynamics Land
Sys., Div. v. Sec’y of Labor , 815 F.2d 1570, 1576 (D.C. Cir.
1987) (adherence to specific standards did not absolve employers from
general duty to provide a safe place of employment).

Other workplace violence cases have involved
situations where the entity must comply with regulations besides the
OSH Act and for which an industry credential is important. In each
instance, the existence of other regulators and/or the need to
maintain a credential did not undermine the Secretary’s authority
to cite the employer for the hazard of workplace violence. See
UHS-DE/Pembroke, 2022 WL 774272, at 4 (noting the CEO’s
responsibility to meet TJC and state standards); HRI , 2019 WL
989735, at 21 (discussing state requirements); UHS Centennial ,
2022 WL 4075583, at 23 n.27 (rejecting argument that TJC or Colorado
law precluded proposed abatement measures). See also Integra ,
2019 WL 1142920, at 7 (rejecting the argument that public policy
concerns related to serving people with histories of violent behavior
precluded a general duty clause citation); Waldon , 16 BNA OSHC
at 1058 (finding abatement feasible even though the nursing home was
in a “highly regulated business”).

Rather than distinguish those cases, which involve
similar businesses and hazards, Respondents point to the dissent in
SeaWorld of Fla. LLC v. Perez , 748 F.3d 1202 (D.C. Cir. 2014).
In SeaWorld , the amusement park violated the general duty
clause by exposing trainers to recognized hazards when working
closely with animals during performances. 748 F.3d at 1205. The
majority rejected the dissent’s arguments about policy decisions,
stating, “Congress has vested in the Secretary and the Commission
general authority to protect employees from unhealthy and unsafe work
places.” Id. at 1211. Although the SeaWorld
dissent takes issue with OSHA overseeing employee safety in the
entertainment and sports industries, it does not state or imply that
OSHA lacks jurisdiction over workplace violence in general or
psychiatric care providers. Id. at 1216-22.

Respondents identify no other regulator or
credentialing authority charged with protecting workers as opposed to
those focused primarily on the health and safety of the consumers of
the Worksite’s services. See Shamokin Filler Co., Inc. v. Fed.
Mine Safety & Health Review Comm’n , 772 F.3d 330, 332-33
(3d Cir. 2014) (OSHA is the default agency for worker safety and
health). It does not appear that CDPHE, TJC, or any regulatory
authority besides OSHA assessed the Worksite during the pendency of
OSHA’s investigation. Moreover, there is no evidence that TJC, or
any other regulatory authority besides OSHA, concluded that the
Respondents’ handling of workplace violence was appropriate or that
there were no actions Respondents could take to materially reduce
employee exposure to workplace violence. Respondents cite no portion
of the OSH Act, the implementing regulations, or precedent to support
their contentions that an exemption for their industry is directly or
implicitly in the OSH Act. Likewise, complying with other applicable
regulations and requirements neither conflicts nor precludes
complying with the OSH Act.

Due Process

Respondents assert that the Citation’s issuance
for the hazard of workplace violence at a behavioral health facility
violated the Due Process Clause of the Fourteenth Amendment. (CS Br.
66, 129.) Similar challenges to applying the general duty clause to
workplace violence hazards at behavioral health facilities were
rejected. BHC, 951 F.3d at 566; UHS-DE/Pembroke, 2022
WL 774272, at 18-21, 41-42 (ALJ collecting cases and rejecting
employer’s due process claims related to the Citation and proposed
abatement); UHS-DE/ Suncoast, 2023 WL 2388069, at 107-10 (ALJ
concluding that general duty clause was not unconstitutionally vague
as applied to workplace violence hazard at a behavioral health
facility). See also
I ntegra,  2019 WL
1142920 at * 14, n.15. Rejection of the notice claims is also
appropriate here. See Brennan v. OSHRC ( Santa Fe Trail
Transport Co. ), 505 F.2d 869, 872-73 (10th Cir. 1974)
(distinguishing the Due Process requirements for criminal matters and
rejecting claim that a standard was unconstitutionally vague).

Respondents knew workplace violence was a hazard
to which their employees were exposed and from which they suffered
injuries at this Worksite. 45
They, and their industry, also knew of OSHA’s concern about
workplace violence overall and the hazard’s presence in behavioral
health facilities. See UHS-DE/Pembroke , 2022 WL 774272, at
19 (ALJ found both actual knowledge and that the behavioral health
industry was on notice of the hazard); UHS-DE/Suncoast, 2023
WL 2388069, at 2. Further, there is no dispute that experts
familiar with the industry would consider the hazard when prescribing
a safety program. See Nat’l Realty , 489 F.2d at 1266.  

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, 1152(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). Like the present matter, in BHC ,
the proposed abatement accorded with “well-known industry best
practices” and, in many instances, aligned with the safety measures
the respondents identified but failed to apply consistently. 951
F.3d at 566. See also SeaWorld , 748 F.3d at 1216 (finding
that employer could have anticipated that abatement measures it
applied after incidents would be required); Babcock & Wilcox,
Co. v. Sec’y of Labor , 622 F.2d 1160, 1164-65 (3d Cir. 1980)
(affirming finding of liability when the company failed to take
feasible precautions to reduce the injury risk); A.C. Castle
Constr. Co. v. Sec’y of Labor , 882 F.3d 34, 38, 43-44 (1st Cir.
2018) (rejecting fair notice claims and limiting the doctrine’s
scope). Despite claims to the contrary, the abatement practices used
at the Worksite did not align with OSHA’s “Guidelines for
Preventing Workplace Violence for Healthcare and Social Service
Workers” (“Guidelines”) or the methods identified in
Respondents’ unfollowed policies.

Management was aware of the obligation to protect
workers from workplace violence and informed on how to do so. See
Integra , 2019 WL 1142920 at 14, n.15 (rejecting constitutional
vagueness challenge because the proposed abatement measures were
“available to, and readily knowable by, the industry”);
UHS-DE/Suncoast , 2023 WL 2388069, at 2 (UHS-DE and the other
party acknowledged that they recognized the hazard of workplace
violence, knew it was present at the behavioral health facility, and
knew that measures taken were not effective in materially reducing
the hazard); UHS-DE/Pembroke , 2022 WL 774272, at *7-12
(employer knew the hazard of workplace violence was present at their
behavioral health facility and failed to abate it sufficiently). As
in BHC , Respondents “can hardly object” that they were
“blindsided by the utility of measures” they “already embraced,
at least on paper.” 951 F.3d at 566. See also CF&T
Available Concrete Pumping, Inc. , 15 BNA OSHC 2195, 2198,
n.9 (No. 90-329, 1993) (noting that the “mere existence of a safety
program on paper does not establish that the program was effectively
implemented on the worksite”); Pepperidge Farm , 17 BNA OSHC
1993, 2007-8 (No. 89-265, 1997) (employer failed to implement
abatement it identified). Respondents’ Due Process challenges to
citations for the hazard of workplace violence are rejected.

Role of OSHA Guidance About the Hazard of
Workplace Violence

Respondents then attempt to turn their notice
argument on its head. They acknowledge that the Guidelines and
OSHA’s “Preventing Workplace Violence: A Road Map for Healthcare
Facilities” (“OSHA Road Map”) inform employers about how to
assess their workplaces and develop appropriate ways to minimize the
hazard of workplace violence. (CS Br. 120-23; Exs. C-95, C-96.) The
Guidelines explain the hazard’s risk, discuss appropriate practices
to minimize it, and explain how to get further assistance. (Ex.
C-95.) Rather than acknowledging that these documents support OSHA’s
authority over the hazard, they ask for them to be viewed as a basis
for vacating the Citation. (CS Br. 125.)

The Guidelines and OSHA Road Map specify
employers’ responsibilities under the OSH Act, including the right
for all workers to have “working conditions that do not pose a risk
of serious harm.” (Exs. C-95 at 52, C-96 at 5.) This is not a new
right. It is directly from the OSH Act. With or without the
documents, employers must ensure their workplaces are “free
from recognized hazards that are causing or are likely to cause death
or serious physical harm.” 29 U.S.C. § 654(a)(1). (Exs.
C-95 at 3-46, 52-56, C-96 at 5.) The Guidelines and OSHA Road
Map are not equivalent to OSHA standards for specific hazards. The
documents acknowledge this. (Exs. C-95 at 2, 4; C-96 at 2, 3-4.)
The hazard of workplace violence is complex and varies by workplace.
(Exs. C-95 at 7-8, C-96.) The documents guide employers in how to
develop effective abatement for their particular workplace. They
are tools to assist employers in meeting their OSH Act obligations.
Employers are responsible for assessing the risk and developing
appropriate responses. (Ex. C-95 at 3-46.)

The Secretary is not impermissibly enforcing the
Guidelines or OSHA Road Map. She is attempting to ensure compliance
with section 5(a)(1) of the OSH Act. Such compliance is required
regardless of whether OSHA created guidance materials or offered to
provide other assistance. See UHS Centennial , 2022 WL
4075583, at *30 (although the Guidelines and OSHA Road Map do not
create new legal obligations, employers are “bound by the general
duty clause and by its reasonable and prudent employer standard”).

IV.Expert Testimony

Expert witnesses testified for both sides. Jane
Lipscomb, Ph.D., and Dr. Forman, testified on the Secretary’s
behalf, and Vincent Staggs, Ph.D., testified for Respondents. Each
expert’s written report was admitted to the record. E ach
person satisfied the threshold requirements to be qualified to offer
expert testimony, but their respective areas of expertise differed.
See F&H
Coatings, LLC v. Acosta , 900 F.3d
1214, 1222-23 (10th Cir. 2018) (upholding
the ALJ's finding that the expert was appropriately qualified to
offer expert testimony). For the reasons discussed below, the
opinions of Doctors Forman and Lipscomb were more relevant and
helpful in resolving this matter.

Dr. Forman

Dr.
Forman was accepted as an expert in the evaluation and clinical
management of psychiatric patients. (Tr. 1183.) He has over
fourteen years of experience working as a medical doctor in
psychiatric settings. (Ex. C-91.) He is board-certified in general
psychiatry, forensic psychiatry, and addiction medicine. (Tr.
1152-53, 1168-69; Ex. C-91.) He has extensive experience treating
violent and aggressive p atients
while they are in psychiatric care. (Tr. 1162-64; Ex. C-91.) Dr.
Forman testified before the Commission in UHS-DE/Suncoast .
In that matter, he was qualified as an expert to: (1) testify
regarding the causes and prevention of patient-on-staff violence in a
psychiatric hospital setting, (2) render opinions regarding feasible
means of abatement on the
issue of workplace violence, and (3) testify whether the employers’
workplace violence policies and
procedures were adequate to address patient-to-staff aggression,
including what clinical treatment is appropriate to address
aggression and whether such clinical treatment was provided. 2023 WL
2388069, at *47.

In this matter, Dr. Forman assessed: (1) whether
the Worksite was adequately addressing the hazard of workplace
violence during the time of OSHA’s inspection, (2) whether the
abatement measures proposed are feasible, and (3) whether the
measures can be expected to reduce workplace violence materially.
(Ex. C-92.) He reviewed and offered opinions on Respondents’
abatement and the additional measures proposed. Prior to reaching
his opinions, Dr. Forman reviewed a large volume of material,
including deposition transcripts, patient records, site visit
reports, staff surveys, staffing reports, photographs, employee
interview transcripts, policies and procedures, and available videos.
(Tr. 1175-76; Ex. C-92.)

Dr. Lipscomb

Dr. Lipscomb has worked in workplace violence
prevention in healthcare for over 30 years. (Tr. 1587; Ex. C-93.)
She has researched the topic extensively, published related papers,
and consulted with numerous governmental and private entities about
the cited hazard. (Ex. C-93.) Like Dr. Forman, Dr. Lipscomb
previously testified as an expert in Commission proceedings. She was
accepted as an expert in UHS-DE/Suncoast, 2023 WL 2388069, at
45-48, BHC , 2019 WL 989734, at 4-6, and HRI , 2019 WL
989735, at * 5. See also BHC , 951 F.3d at 561, 564.

Dr. Lipscomb worked for OSHA and the National
Institute for Occupational Safety and Health (NIOSH) to identify
practices to prevent workplace violence in healthcare facilities.
(Tr. 1589-94, 1597; Ex. C-94 at 2-3.) Her work included fifteen
years of field research on workplace violence in four states. (Tr.
1587; Ex. C-94 at 3.) She designed training programs for healthcare
workers on how to mitigate workplace violence. (Tr. 1584-85,
1593-94; Exs. C-93, C-94 at 3.) She has many publications, including
over twenty peer-reviewed publications about workplace violence.
(Tr. 1587-89; Ex. C-94 at 3.) She frequently lectures about
workplace violence in healthcare. (Tr. 1592; Exs. C-93, C-94 at 3.)
She has been trained in research methodologies and has taught
epidemiology for several years. (Tr. 1579, 1582.)

Dr. Lipscomb has long studied the cited hazard and
how to implement effective abatement methods. (Tr. 1587; Exs. C-93,
C-94.) Most of her work and related publications center on the same
type of workplace violence at issue here: patients acting
aggressively against healthcare workers . (Exs. C-93, C-94.)
See also BHC, 2019 WL 989734, at 5, 7-8 (discussing Dr.
Lipscomb’s experience and crediting her findings regarding an
employer’s failure to abate the hazard of workplace violence and
the existence of feasible methods of abatement); UHS Centennial ,
2022 WL 4075583, at 28 (noting the depth of Dr. Lipscomb’s
experience with the hazard of workplace violence in healthcare and
relying heavily on her testimony and report); UHS-DE/Suncoast ,
2023 WL 2388069, at *45, 47-48 (discussing Dr. Lipscomb’s
experience and research on workplace violence).

At the hearing, Dr. Lipscomb was accepted as an
expert in workplace violence in healthcare and behavioral health
settings, including issues regarding the adequacy of workplace
violence prevention programs and other methods for preventing
workplace violence. (Tr. 1598, 1602-3.) Her report and testimony
focused on the adequacy of Respondents’ approach to the hazard and
whether they could take additional feasible steps to materially
reduce the hazard of patient-on-staff violence at their Worksite.
(Tr. 1603-88; Ex. C-94.)

Dr. Staggs

Dr. Staggs’ background is in quantitative
psychology. (Tr. 2094; Ex. RCS-94.) He is not a licensed
psychologist and has not completed any specialized coursework on
workplace violence. (Tr. 2122, 2124-25, 2139-40; Ex. RCS-94.) He
has never worked in or directed an inpatient psychiatric care unit.
(Tr. 2124-25; 2130; Ex. RCS-94.) He has never treated a patient,
been responsible for admission decisions, responded to a psychiatric
emergency, or restrained a patient. (Tr. 2124-26; 2130; Ex. RCS-94.)

Dr. Staggs reviewed 100-500 pages of documents and
looked at the transcripts from other Commission proceedings in which
UHS-DE affiliated entitles were parties. (Tr. 2129, 2293.) He also
discussed the matter with four unaffiliated people with the Worksite
(his sister, his mother-in-law, a friend’s husband, and a nurse in
Florida). (Tr. 2127-28.) He did not speak with any of Respondents’
employees. (Tr. 2126-29.) He reviewed the narrative portion of the
CO’s report but did not read the worker interview statements in
full. (Tr. 2128-29, 2166.) He did not visit the Worksite, watch any
of the available videos, or review any layouts or floorplans for the
Worksite. (Tr. 2126-29.) Dr. Staggs was unfamiliar with how
patients were observed and the Worksite’s assault rate. 46

Dr. Staggs offered no opinion on the efficacy of
Respondents’ existing abatement. (Tr. 2091.) Nor did he offer an
opinion on each aspect of the Secretary’s proposed abatement. (Tr.
2091.) Instead, assessed four aspects of the Secretary’s proposal:
(1) adequate staffing, (2) the use of security, (3) reconfiguring the
nurses’ stations, and (4) the use of reliable communication
devices. Id.

Of these areas, Dr. Staggs was accepted as an expert in staffing
issues. 47
He was not in a position to assess the feasibility and effectiveness
of the Secretary’s other proposed abatement methods. (Tr. 2141,
2147-48, 2154, 2267.) He lacked specialized knowledge, training, or
direct experience working with a dedicated response staff, designing
or working in nurses’ stations, or using a radio or panic alarm in
a healthcare setting. (Tr. 2130-34, 2137-38, 2153.) And he had not
published any articles or studies in those areas. (Tr. 2019-20.)
Accordingly, he was not qualified as an expert on security response
teams, nurses’ stations, or communication devices. (Tr. 2148-55,
2217-18.)

The Opinions of the Secretary’s Experts
Are Entitled to More Weight

Although each person satisfied the threshold
requirements to be qualified to offer expert testimony, their
respective opinions are not entitled to equal weight. See i4i
Ltd. P’ship v. Microsoft Corp ., 598 F.3d 831, 852 (Fed. Cir.
2010) (“When the methodology is sound, and the evidence relied upon
sufficiently related to the case at hand, disputes about the degree
of relevancy or accuracy (above this minimum threshold) may go to the
testimony’s weight, but not its admissibility”), aff’d ,
564 U.S. 91 (2011). The testimony of Doctors Forman and Lipscomb
focused more directly on the Worksite and the feasibility and
effectiveness of the proposed abatement. See BHC , 951 F.3d at
561, 564 (upholding ALJ’s crediting Dr. Lipscomb’s testimony over
another expert’s). They assessed both the existing abatement and
the Secretary’s proposed abatement. Dr. Staggs’ review was more
limited. He reviewed less material, particularly as related to
conditions at this Worksite. The scope of his opinions was more
circumscribed because of his experience and the extent of his review.

V.Analysis

General Duty Clause

The
general duty clause requires every employer to provide 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). F&H ,
900 F.3d at 1224 (affirming citation
for violating the general duty clause). 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. 900 F.2d at
1224; Safeway, Inc. v. OSHRC ,
382 F.3d 1189, 1194-95 (10th Cir. 2004) (affirming a violation of the
general duty clause when the employer was aware of the hazard and the
employer could have eliminated it); Waldon ,
16 BNA OSHC at 1058. The evidence must also show that the employer
knew or, with reasonable diligence, could have known of the hazardous
condition. Otis Elevator Co. ,
21 BNA OSHC 2204, 2207 (No. 03-1344, 2007).

“There
is no existing Section 5(a)(2) OSHA standard for preventing workplace
violence in healthcare.” (Stip. 53.) However, the general duty
clause has repeatedly been found applicable to workplace violence
hazards. BHC ,
951 F.3d at 563-67 (upholding a citation for a general duty clause
violation for a workplace violence hazard at a psychiatric hospital);
Integra ,
2019 WL 1142920, at 4 (finding “allegation of workplace violence …
is a cognizable ‘hazard’ under the Act”); UHS-DE/Pembroke ,
2023 WL 3243988, at 1 (upholding a citation for a general duty
clause violation for workplace violence hazard at a psychiatric
hospital). Non-precedential decisions also concluded that the
general duty clause applied to workplace violence hazards. See
UHS Centennial , 2022 WL 4075583, at
23 n.27 (finding the hazard of workplace violence at a behavioral
health facility to be within the scope of the general duty clause and
affirming the citation); HRI ,
2019 WL 989735, at 2-8 (applying the Waldon
test to assess a citation issued for
workplace violence at a behavioral health facility); Megawest
Fin., Inc., No. 93-2879, 1995 WL
383233, at 6 (OSHRCALJ May 8, 1995) (finding that the Secretary was
“not precluded from asserting that workplace violence constitutes a
general duty clause violation). The inability to eliminate a hazard
does not preclude the Secretary from asserting a general duty clause
violation. See, e.g., Sci.
Applications Int’l Corp. , No.
14-1668, 2020 WL 1941193, at 4 (OSHRC Apr. 16, 2020) (“ SAIC ”)
(general duty clause applicable to drowning hazard that employer
could not eliminate); Arcadian Corp. ,
20 BNA OSHC 2001, 2011 (No. 93-0628, 2004) (“ Arcadian ”)
(Secretary does not have to show that abatement would eliminate the
hazard).

Employee Exposure to the Cited
Hazard

Respondents
stipulated that employees of Cedar Springs and UHS-DE were exposed to
the hazard of workplace violence at the Worksite. (Stips.
7-8.) It was not unusual for workers to be struck by patients. (Tr.
691.) Workers were punched, bitten, kicked, scratched, and had hair
pulled. (Tr. 388-89; Ex. C-2b at 7.) Such assaults frequently
occurred, with many injuries resulting from the violence. 48
This element is established.

Respondents’ Knowledge and Recognition of
the Cited Hazard

Respondents
knew the hazard was present and was injuring Worksite employees.
(Stips. 7-11; Exs. C-2b, C-3 at 12-16, C-12, C-13 at 4-5, C-14 at 3,
C-15 at 3, C-16, C-17, C-43 at 2, C-55, C-57, C-60, C-64, C-65, C-66,
C-73.) Managers witnessed, experienced, and had violent incidents
reported directly to them. Id. Management also received
reports of injuries from workplace violence or reviewed video of such
incidents after they occurred. (Tr. 389, 1835, 1903; Exs. C-2a at
14, C-12, C-20, C-48, RCS-41.) Respondents
recognized the hazard of patient-on-staff violence, as did their
industry, and they had knowledge of its continued presence at the
Worksite. 49

Serious Physical Harm

A hazard is likely to cause death or serious
physical harm if the likely consequence of employee exposure is
serious physical harm. Morrison-Knudsen Co./Yonkers Contracting
Co., 16 BNA OSHC 1105, 1122 (No. 88-572, 1993). “Staff
injuries from patient violence and/or assaults by patients against
staff could result in serious injuries.” (Stip. 11.) See Vanco
Constr. , 11 BNA OSHC 1058, 1060 (No. 79-4945, 1982). The
Secretary established many instances of serious physical harm from
the cited hazard, such as workers being choked, headbutted, hit,
punched, slapped, kicked, and bit. 50
Some incidents resulted in head and eye injuries. (Exs. C-3 at
12-16, C-10, C-11, C-12, C-17, C-20, C-59, C-60.) See Vanco ,
11 BNA OSHC at 1060.

Abatement

The general duty clause requires employers to
“take all feasible steps” to protect workers from recognized
hazards. Gen. Dynamics Corp., Quincy Shipbuilding Div. v. OSHRC,
599 F.2d 453, 464 (1st Cir. 1979). But, before discussing what
additional feasible actions could have been taken to reduce the known
hazard, we must first consider what the employer already did. See
Mo. Basin Well Serv. Inc ., 26 BNA OSHC 2314, 2319 (No. 13-1817,
2018); SeaWorld , 748 F.3d at 1210-15 (distinguishing Pelron
Corp , 12 BNA OSHC 1833 (No. 82-388, 1986) and U.S. Postal
Serv ., No. 04-0316, 2006 WL 6463045, at *8 (OSHRC Nov. 20,
2006)).

Existing Abatement

The Secretary does not dispute that some
mitigation was in place at the time of the inspection. Her position
is that it was inadequate and failed to reduce the hazard to the
extent feasible. Doctors Forman and Lipscomb offered opinions
supporting the Secretary’s position. Both opined that the
Worksite’s abatement was ineffective at addressing the hazard to
the extent feasible. (Exs. C-92, C-94.) Dr. Staggs did not render
an opinion on the existing abatement’s effectiveness. (Tr. 2091.)

This section addresses the Worksite’s high
injury rate. It then turns to Respondents’ existing abatement,
starting with patient management before going on to discuss other
aspects of the existing abatement, including, (1) adequate staffing
to manage the environment (milieu), (2) protective intake processes,
(3) training, (4) incident reporting and debriefing to review and
track violence, (5) Respondents’ restraint reduction initiative,
and (6) the WVPP. (CS Br. 21-47.)

Persistent Occurrence of Injury

Violence resulting in worker injuries occurred
multiple times before and during the investigation. 51
The CO gathered information about injuries from patient aggression
from multiple sources. These included the OSHA logs, injury reports
(called Sedgwick reports), and information from workers. (Tr.
110-14, 116-19; Exs. C-10, C-11, C-12, C-13, C-14, C-15.) Injuries
from the hazard resulted in lengthy days away and workers needing
restrictive duty. (Tr. 110-15, 119-20; Exs. C-3, C-10, C-11.) In
2019, the year the inspection commenced, injuries from workplace
violence accounted for 73% of injuries Respondents recorded on the
Worksite’s OSHA logs. (Ex. C-3 at 8.) Nearly all the injuries
that required days away from work related to workplace violence. Id.
These frequent injuries, while not conclusive, support finding
that the Worksite’s abatement methods were inadequate as
implemented. See SeaWorld , 748 F.3d at 1210-12, 1215
(existing safety procedures found inadequate where evidence showed
training and protocols did not prevent continued incidents of
injuries).

Respondents argue that the incidents were
“unforeseeable.” (CS Br. 75, 77.) The only case Respondents
cite when discussing the role of injuries in assessing the adequacy
of abatement is an Eighth Circuit decision from the early days of the
OSH Act. Id. at 74-76 (discussing  Brennan v. Vy
Lactos Labs., Inc ., 494 F.2d 460 (8th Cir. 1974).  In that
matter, the Eighth Circuit remanded the matter for the Commission to
determine if the employer had actual knowledge of the hazard.  494
F.3d at 464. After remand, the employer withdrew its notice of
contest, and the citation was affirmed.   Vy Lactos Labs.,
Inc. , 1 BNA OSHC 1774 (No. 31, 1974).  Here, the Secretary
showed both actual knowledge and recognition of the hazard.

Respondents’ position is unpersuasive. Not all
workplace violence is unpreventable. While predicting which patient
would act violently was difficult, the unpredictability necessitated
more, not less, effort to implement engineering controls, assess
risk, and have adequate staffing. (Ex. C-94 at 8, 21, 33.)
Respondents know that modifying patient behavior is an uncertain
process. Id. Yet, they skipped implementing known controls
to minimize risk from unpredictable events. Id. Their
abatement resulted in frequent injuries from the hazard and placed
workers at risk of more serious injuries.

Patient Management

Many measures Respondents cite as being part of
their abatement focus on providing medical care. (CS Br. 25-26,
32-33; Sec’y Br. 15-18, 78-82; Exs. C-92 at 11, C-94 at 44.) They
cite clinical processes such as patient observations, communication
among staff, treatment team meetings and medical treatment plan
updates. Id. In terms of observations, workers observed each
patient at least every fifteen minutes to ensure patient safety.
(Tr. 2328-29, 2433.) The extent to which information learned through
the observation rounds was used to improve worker safety is unclear.
MHSs are not required to review prior observation sheets when they
start their shifts. (Tr. 2554.) When conducting observation rounds,
staff did not typically have radios or other reliable communication
devices to call for assistance if they observed aggression or signs a
patient might become aggressive. (Tr. 102-3, 690-91, 793-94, 1648;
Exs. C-2b, C-92 at 11-12, C-94 at 25-26, RCS-32.) While they could
yell for help, doing so could exacerbate the hazard. (Tr. 138, 143,
401, 691, 779, 1516, 1649-50, 2293, 2442.) If observations supported
having more staff, there was no automatic process for adding more
workers to a unit. 52
Further, Respondents did not task people solely with security that
could provide support. (Tr. 1457, 1510, 1735.) Similarly, placing
one or more patients on assault precautions does not automatically
increase staff for the unit. (Tr. 842.) For fall, seizure, and
infectious control precautions, in addition to noting the precautions
in the patient’s file, the patients were also given a colored
armband and a magnet for the frame of the door to their bedroom. 53
No similar actions outside the paper medical file were used for
aggression or assault. (Tr. 2553-54; Exs. RCS-8, C-94 at 16.)

MHSs participated in shift handoff discussions but
typically did not receive information regarding specific incidents of
patient aggression. (Tr. 642-43, 2554.) The written information
completed after a restraint or seclusion was not immediately shared.
It first went to the Risk Manager. (Tr. 559-60, 2523.) The purpose
of that review was not staff safety. (Tr. 2523-24.) The information
collected after workplace violence did not always indicate that an
assault on staff was part of the incident. The information collected
focused on the patients and their medical care. (Tr. 418-19, 559-60;
Exs. C-2b, C-94 at 40-42.) If a patient had two or more restraints
in a short period, they would look differently at how to care for the
patient. (Tr. 2523-24.) Debriefings focused on patients, not
assessing how to prevent or minimize worker injuries. (Tr. 419, 560
630-31; Exs. C-2b, C-94.)

At some point later, the information gathered
about the restraint or seclusion would be placed in a patient’s
medical file. (Tr. 559-60.) MHSs were not required to review these.
(Tr. 560, 630-1, 1431, 2554; Ex. C-92 at 22.) A therapist indicated
she did not always have enough information about the patients she
interacted with. (Tr. 1420-21.)

The effectiveness of staff communication as an
abatement method was also hampered by inconsistent incident
reporting. (Tr. 157, 322, 419.) Workers described not reporting
assaults. (Tr. 418-19, 746-47, 1448-49; Exs. C-2b at 13, C-3 at 37,
39-40, 44, C-94 at 14.) An MHS explained that he did not report
assaults resulting in cuts, scratches, bruising, or what he
considered minor injuries. (Tr. 746-47.) A therapist similarly
explained that she did not report all injuries because of time
constraints. (Tr. 1448-49.)

Patients acting violently or aggressively may be
discussed when determining their medical treatment. (Tr. 726, 2516,
2647, 2769-70, 2772-75.) Worker safety was not the focus of
treatment meetings. Id. Likewise, patient treatment
plans were supposed to be completed after a patient’s behavior
necessitated a restraint or seclusion. These treatment updates were
not designed or intended to be about worker safety. (Tr. 1417-18;
Ex. C-3 at 41, 45-46.)

Workers described incidents for which aggression
towards staff did not result in changes to patient management in ways
that improved staff safety. (Ex. C-92 at 16.) A nursing supervisor
reported to the Director of Nursing about a patient who assaulted at
least ten workers in multiple incidents within a week. (Tr. 515,
517; Ex. C-59.) Her report, covering just two days, describes many
bites, assaults, a punch to the eye area, and other aggressive
behavior. (Ex. C-59.) The nurse did not consider this report out of
the ordinary for the Worksite. (Tr. 517; Exs. C-43, C-59, C-60.) A
single shift could have multiple assaults, including punches, kicks,
and bites. (Tr. 511-12; Ex. C-43.)

Respondents stressed that OSHA is not charged with
regulating patient care. (CS Br. 21.) Perhaps to put the
acknowledged hazard workers routinely faced and suffered injuries
from beyond OSHA’s jurisdiction, many of Respondents’ purported
abatement measures are patient care actions. Too often, Respondents
attempt to have it both ways. They contend the Secretary may not
present any evidence about patient care but then argue their patient
care practices constitute adequate abatement. 54

The Citation is not an attempt to regulate or find
fault with clinical care. (Tr. 28, 653-61, 935.) None of the
proposed abatement measures relate to clinical care. The Secretary
faults not patient care but the handling of the workplace violence
workers experienced. (Stips. 7-8.) The clinical processes
Respondents cite as part of their abatement may impact worker safety
but were not focused on workers or mitigating the cited hazard’s
impact on workers. (Tr. 1121, 1194; Exs. C-92 at 11, 19-24, C-94 at
14-17, 21, 44.)

Respondents’ Other Flawed Methods to
Reduce Workplace Violence

Respondents note their approaches to staffing,
which included unit staff that could be supplemented during an
emergency, as a key aspect of their workplace violence prevention
efforts. (CS Br. 24, 26-32, 36-39.) They also cite measures that
occur before and after violent incidents, such as intake processes,
training, incident reporting, debriefings, and tracking incidents.
Id. at 33-22-23, 34-36, 39-44. And they cite their Restraint
Reduction Initiative and other aspects of their WVPP. Id. at
45-47. As implemented, Respondents’ actions did not adequately
protect workers.

Staffing

Respondents recognized the role Worksite staffing
plays in addressing the hazard. The WVPP discusses staff’s
responsibility to prevent and mitigate workplace violence. (Ex.
C-22.) Staffing levels impacted worker safety, and Respondents took
steps to maintain “adequate” staffing. (CS Br. 28.) The issue
is the efficacy of those steps.

Respondents used a staffing grid that set out
staff ratios for the number of patients. (Tr. 834-35; Ex. C-68.)
Respondents incorrectly assert that the grid sets out a minimum
number of three staff for twelve patients. (CS Br. 57.) Other than
the requirement of one nurse for each acute unit, the Worksite had no
minimum staffing level. (Tr. 159, 838, 1013, 2593-94, 2617; Exs.
C-68; RCS-47.) As stated on the grid, staffing could be further
reduced beyond the lowest ratio “based on the unit acuity and staff
skill mix.” (Ex. C-68.) Cf. HRI , 2019 WL 989735, at *23
(Secretary failed to show that approach to staffing at a behavioral
health facility where the grid was the minimum level of staff and
staffing levels were routinely adjusted upward based on aggression
and other factors). Further, during the overnight shift, the grid
called for only two workers per unit, regardless of the census. (Tr.
159, 838, 2584, 2586-94; Exs. C-68, RCS-47.) Overnight, the staffing
ratio did not increase if more patients were awake or needed assault
precautions. (Tr. 159, 792, 838, 840, 2330-31; Ex. C-3 at 43.)

Staffing was supposed to be monitored and adjusted
based on the number of patients and their acuity. (Ex. RCS-47.) An
additional MHS was supposed to be added to the day shift if the
number of patients exceeded various thresholds. (Exs. C-68, RCS-47.)
In practice, the grid’s ratio was not consistently met or
increased for acuity. (Tr. 480, 688, 839, 1010, 2376; Exs. C-33,
C-34, C-51, C-55, C-69, C-70; CS Br. 26, 30.) There were “more or
less constant staff shortages.” (Tr. 688.)

Respondents set the level of staffing they felt
was necessary and then took “a very lackadaisical approach” to
meeting that level. (Tr. 1227.) Inadequate staffing was discussed
in multiple meetings and written reports. (Tr. 392-93, 475-80, 484,
487-89, 492-95, 845-46, 988-90; Exs. C-33, C-34, C-52, C-54, C-55,
C-61.) The Director of Nursing (Mattson) initially claimed staffing
reports showing significant understaffing were inaccurate. (Tr.
2490-95, 2498-2503, 2506.) She then clarified that there may have
been significantly fewer workers than what the grid called for. (Tr.
2565-78, 2582-94; Exs. C-33, C-55, C-68, RCS-90.) Ms. Degenhardt was
present during the time discussed in the shift reports, and her
reports are contemporaneous with the events described therein. Her
testimony is credited over Ms. Mattson’s. (Tr. 477-81, 492-95,
499-500, 504-5; Exs. C-33, C-34, C-37, C-55, C-57, C-68.)

By limiting every unit to just two workers for the
overnight shift, there was chronic understaffing. (Tr. 479-80; Exs.
C-2b, C-9, C-34, C-37, C-58.) A single callout created a scramble.
(Tr. 159, 688, 1320-21, 1728-29, 2329; Exs. C-3 at 42-44, C-51, C-52,
C-55, C-57; CS Br. 29.) UHS Centennial confronted a similar
situation. There, like here, employees calling out sick resulted in
a struggle to fill the gaps. 2022 WL 4075583, at 10. While
the employer viewed this as an “unforeseen” circumstance, First
Judge Augustine pointed out that the possibility of insufficient
staffing from callouts was a routine concern that Respondent could
have accounted for in its staffing decisions. Id. at 49. As
in UHS Centennial , predicting who would call out might have
been difficult. Still, constantly scheduling only two people per
unit left little room for the routine circumstance of someone being
unable to work or for patient acuity or numbers to increase during a
shift. Id.

The grid was a “paper representation” of who
was at the Worksite. (Tr. 1215-17; Ex. C-70.) It did not set a
minimum number of staff for worker safety or provide a minimum number
of people who could promptly respond to violence. (Tr. 1215-17.)
Sometimes, there was a drastic discrepancy between what the grid
proposed and working conditions. (Tr. 392-93.) In practice,
staffing was not maintained at a level adequate to protect workers.
(Tr. 790, 1209-10, 1218-21, 1226-27, 1654-57, 1659, 1799, 2610; Exs.
C-92 at 11, 13-17, C-94 at 28-33.)

Workers described situations where they felt there
was an insufficient number of workers to maintain safety. (Tr.
392-93, 480, 985-90, 992-95, 1506-8, 1654-55; Exs. C-2b, C-51, C-55,
C-56, C-57, C-69, C-70, C-92 at 12, 15, C-94 at 25, 27-28, 30, 34-35,
RCS-41 at 7.) They had to intervene in violent situations alone or
lacked adequate staff to implement appropriate abatement to prevent
worker injuries.

Working Alone

At times, employees were alone in units or with
multiple patients. (Tr. 172, 363-64, 473, 484-88, 528-29, 578, 791,
841-42, 958, 961-63, 1022, 1394, 1414, 1424, 1515-16, 1659, 1672-73,
2386-87, 2561-62, 2614, 2596; Exs. C-3, C-9, C-52, C-54, C-70, C-92
at 13, 15, C-94 at 27-32; CS Br. 29-30.) Working alone was not the
result of idiosyncratic or discrete events. Id. It routinely
occurred. Id. During the investigation, workers were alone
when they needed to attempt a hold of a violent patient. (Tr. 961,
963, 1484, 1659-61; Exs. C-54, C-65, C-106, C-108.) On December 8,
2019, a nurse had to restrain an aggressive patient by herself. (Tr.
1482-84; Ex. C-106.) There should have been at least two to three
workers doing the restraint instead of her alone. (Tr. 1484.) In
another instance, on January 7, 2020, a staff member was alone when a
patient grabbed her. (Tr. 1658-61; Ex. C-108.) A housekeeper
arrived to assist, but the two workers could not contain the patient.
(Tr. 1800-1; Ex. C-108.)

Verbally calling for assistance does not work if
no one is there to hear it or assist with the violence. (Tr. 963,
1394.) If a unit lacked its one MHS, no one from that unit could
assist with Code Greens or other emergencies elsewhere. (CS Br.
29-30.) The single nurse supervisor might be able to assist, but
that left people working alone when the supervisor covered each
nurse’s break throughout the overnight shift. (Tr. 2596; Exs.
C-43, C-55, C-92 at 15.) It was difficult to arrange the staff to
keep the units safe. (Tr. 472; Exs. C-51, C-52, C-92, C-94.) Often,
each unit was at the “bare minimum,” preventing supervisors from
adding staff when needed to address violence. (Tr. 470-73, 688; Exs.
C-9, C-51, C-52, C-55, C-57, C-68, C-70, C-92, RCS-41 at 7, RCS-47.)
Although the Worksite’s policies permitted adding or moving staff
for acuity, the number of workers scheduled precluded that from
occurring. Id.

Respondents insist that being left alone “was
not considered a dangerous practice in the industry.” (CS Br. 37
citing Tr. 2458.) The cited testimony did not go so far. The
Director of Nursing testified that being alone was “not
necessarily” a “dangerous situation.” (Tr. 2458.) As support,
she gave examples of when a worker was not actually alone because
other workers would still be on the unit, or situations when a worker
was left with one patient “ill and in their bed.” (Tr. 2458.)
Similarly, Dr. Staggs noted he was aware of staff being briefly
alone, such as when one worker took out the trash. (Tr. 2293-94.)

But workers described a wide range of situations
when they were alone with multiple patients for more than the brief
moments Ms. Mattson and Dr. Staggs cite. The Secretary’s concern
is not with 1:1 patient-to-staff ratios or situations when several
workers are in the unit. Her position is that staffing practices
that frequently left workers alone with multiple patients were
inadequate. On occasion, no one was able to respond to calls for
assistance. (Tr. 399-400; Ex. C-2b at 8-10.) An MHS described
needing to intervene alone against a group of patients. He believed
that at least three staff members were needed to manage the situation
appropriately. (Tr. 685-87.) The same MHS believed that staffing
did not change for acuity and that there were “more or less
constant staff shortages.” (Tr. 688.)

Dr. Staggs did not assess whether Respondents’
approach to staffing left employees working alone too frequently.
Dr. Lipscomb confirmed the workers’ views about increased
susceptibility to the hazard when working alone. In her view, there
was consensus that short-staffing or leaving staff alone with an
aggressive patient was inadequate to protect workers from workplace
violence. (Tr. 1664-67; Ex. C-94 at 31-32.) Dr. Forman agreed that
staff were vulnerable when alone. (Ex. C-92 at 11, 13, 15.) The
testimony of Doctors Forman and Lipscomb is credited.

Respondents note that no “laws, regulations or
[Joint Commission] standards” prohibit staff from being left alone
in a unit with patients and argue it is not considered dangerous.
(CS Br. 30.) The absence of a specific standard does not mean there
was no hazard. (Sec’y Br. 107; Tr. 106-7; Ex. C-1.) For this
Worksite, the Secretary showed that working alone made preventing and
mitigating workplace violence more difficult. See BHC , 2019
WL 989734, at *32 (discussing working alone with patients at a
behavioral health facility as a risk factor for workplace violence).
Cf. Brennan v. OSHRC ( Hanovia Lamp Div. of Canred Precision
Indus. ), 502 F.2d 946, 952 (3d Cir. 1974) (remanding decision
vacating a citation alleging a violation of the general duty clause
to address whether employer exposed employee to serious hazard by
permitting him to work alone).

Staff to Implement Abatement

Witnesses described situations where they felt
there were insufficient workers to maintain safety or prevent staff
injuries. (Tr. 392-93, 480, 985-90, 992-95, 1506-8, 1654-55; Exs.
C-2b, C-51, C-55, C-56, C-57, C-69, C-70, C-92 at 12, 15, C-94 at 25,
27-28, 30, 34-35, RCS-41 at 7.)

Restraining patients during aggressive behavior
has led to worker injuries. 55
Respondents’ WVPP and other policies aim to reduce the frequency
of restraints and improve the safety of those that must occur. (CS
Br. 25, 43.) In practice, insufficient staffing made it more
difficult to prevent restraints and perform necessary ones without
worker injury. (Tr. 470-73, 480, 623-25, 985-88, 1424, 1428-29,
1451, 1484, 1506-8; Exs. C-51, C-65.) Restraining a patient with
more people is safer than restraints attempted by one worker. (Tr.
1196-97, 1482-84; Ex. C-9.) There were times when multiple requests
for assistance were necessary because too few staff responded to
initial requests. (Tr. 1518; Ex. C-3 at 44.)

Ms.
Degenhardt observed a patient throwing his body against and kicking a
back door. (Tr. 470; Ex. C-51.) She and
another staff member could not restrain him. (Tr. 470-71.) She
called for more assistance, but it took a while for sufficient help
to respond. (Tr. 470-72.) Five people were needed for the
restraint, which had to continue for some time. (Tr. 471.) Workers
got tired and their arms began to shake. Id. Additional
workers from other units had to “swap” places to relieve those
performing the restraint. Id. With every unit at the “bare
minimum,” ensuring enough staff were available for the rest of the
Worksite was difficult. (Tr. 472-73.) Restraints requiring multiple
workers were not unusual. (Ex. C-64.)

Respondents train workers to have three or four
people to perform a restraint. (Tr. 1484.) There should be one
person on the body, one on the legs, and one talking to the patient.
Id. At times, an additional person is needed for the feet.
Id. Other staff should move patients not involved in the
incident to their rooms or off the unit. (Tr. 1491-92, 1494-95; Ex.
C-107.) At the inspection’s start, it was permissible for one
worker to attempt a restraint. (Tr. 719, 1484.) But such attempts
were supposed to be brief and cease as soon as possible. Id.

Staffing levels precluded consistently
implementing the training. On December 8, 2019, patients were
assaulting each other. (Tr. 1480-83, 1487; Exs. C-106, C-107.) A
nurse had to restrain one of the aggressive patients by herself.
(Tr. 1482-84, 1486; Ex. C-106.) The video shows her struggling to
hold the patient. (Ex. C-106.) The patient elbows the nurse in the
shoulder and head. (Tr. 1483-85; Ex. C-106.) The patient also
attempts to head-butt the nurse. (Tr. 1483-84; Ex. C-106.) The
practices seen in the videos, including the need to attempt a
restraint alone, were not unusual. (Tr. 1494.)

Witnesses described other incidents in which
workers believed staff levels were inadequate for staff safety. In
January 2020, a nurse and an MHS were with patients who became
increasingly aggressive throughout the shift. (Tr. 753-56.)
Patients removed the door from an office and were destroying other
property. (Tr. 756-57.) The nurse had access to a radio and called
a code to try to obtain assistance. (Tr. 757.) It took several
minutes for anyone to arrive because codes were occurring in two
other units simultaneously. (Tr. 757-59.) Even when everyone
available arrived, there was not enough staff to contain the
situation. (Tr. 760, 771-73.) The police were then called to
assist. (Tr. 760-61, 814.) One worker was punched in the face, one
was shoved into a door frame, and others were hit. (Tr. 759-60,
808-10.) A worker was hospitalized and missed fifteen workdays.
(Tr. 762-65, 767.) A nurse involved in the incident believed better
staffing could have controlled the situation before it escalated
beyond their control. (Tr. 760, 772.)

The following month, an MHS was attacked while
trying to stop an assault. (Tr. 684.) The MHS believed the
situation required at least three workers, but he had to intervene
alone. (Tr. 685-87.) In January 2021, another incident requiring
more staff than was present occurred. Patients were assaulting
staff, making weapons, and destroying property. (Tr. 992-93.) A
patient jumped on an MHS’s back and attempted to put him in a
chokehold. (Tr. 994, 998.) The police had to be called to assist
the staff. (Tr. 995, 1040; Ex. C-73.) An MHS involved in the riot
said that staff levels were insufficient to handle the situation
safely. (Tr. 994-95, 999.) He did not believe that staffing levels
improved after the incident. (Tr. 995-96, 1009-10; Ex. C-73.)

At times, staff could not timely perform tasks
related to worker security. Patient care responsibilities conflicted
with workers being able to respond promptly, or in some cases, at
all, to requests to assist with workplace violence. (Tr. 160-61,
179-80, 747-48; Ex. RCS-29 at 22.) At times, the police had to be
called to provide the necessary assistance. (Tr. 85, 414-15, 518-19,
760, 814, 993-95; Ex. C-2b at 12.) Everyone tasked with security was
also tasked with many other responsibilities. (Tr. 417; Exs. RCS-29
at 4, 19-22, RCS-30, RCS-72, C-92 at 1, 17.)

Respondents recognized that having more patients
per worker can impact the number of aggressive episodes. (Ex. RCS-41
at 7.) They identified the number and type of staff needed for the
patient census and then failed to ensure that staffing level was in
place. About two months before the inspection commenced, the CEO was
notified of “significant staff shortage.” (Ex. C-80 at 1.)
UHS-DE’s milieu specialist noted: “short staffing has had a very
negative impact on accountability and oversight. It is imperative we
maintain [] established staffing levels.” Id. at 3. So,
the staffing level OSHA observed was not a brief period of
insufficient staffing. Id. at 1, 3. In fact, at the
inspection’s start, the staffing level was “the best” it had
been “in a long time.” (Ex. C-36 at 1.)

Calling for More Assistance - Code Greens

A Code Green was a way to request available
workers from other units to assist with an aggressive patient or
patients. (Tr. 121, 142; Exs. C-9, RCS-5.) Former workers described
responding to one or more Code Greens per shift. (Tr. 689, 792,
1494; Exs. C-57, C-59.) Frequently, more than one code occurred at
the same time. (Tr. 689, 792-93, 1494, 1518.)

To commence the process, a worker could use a
radio, the unit phone, or by yelling “Code Green.” (Tr. 103,
138, 142, 364, 400-1, 461-62, 690-91, 963, 1516, 1649-50, 2888; Exs.
C-31, RCS-5, RCS-18 at 5.) Not everyone could use a radio to
commence a Code Green. There were not enough functioning radios for
all staff members to carry one. (Tr. 102, 138-39, 400, 506, 508,
691, 793-94, 1414, 1419, 1516, 1648; Exs. C-2b, C-42, C-57.) During
the inspection, a former charge nurse twice reported issues with
radios to senior management. (Tr. 508-59; Exs. C-42, C-57.) She
believed there were not enough radios for the units to be safe. Id.
Typically, staff only had a radio when escorting one or more
patients from the patient care unit to another location. (Tr. 102,
138-39, 506, 690-91, 793-94; Ex. C-57.) While the patient care units
generally had more than one working radio, only one was in the A&R
department. (Tr. 1648-49.) So, A&R staff did not carry a radio
when transporting a new patient to a patient care unit for the first
time. (Tr. 138-39, 1648-49.)

When they could not access a radio, staff could
try the phone at the nurses’ station or yell for help. (Tr. 103,
138, 142, 364, 401, 461-62, 963, 1516, 1649, 2888; Ex. C-31.) Staff
sometimes had difficulty getting to the phone to commence a code.
(Tr. 103, 364, 401, 461-62, 564-65, 1433, 1517; Ex. C-31.) There
were no phones in the offices where the therapist worked. (Tr. 103,
1419, 1650, 1723.) Even when working near the phone, the nature of
the workplace violence incident sometimes precluded using it. (Tr.
103, 461-62, 2392; Ex. C-31.) Workers would have to “yell ‘Help’
as long as possible” and “hope” they would be heard. (Tr. 691,
963.) When working alone, yelling for help has an obvious
limitation, as no one would be there to hear it. (Tr. 1394.)

Besides issues with commencing a Code Green, the
process was also ineffective when there was a lack of staff available
to respond. (Tr. 180; Ex. C-2b at 9.) Staff could not respond when
engaged in the 1:1 care of a patient, conducting body scans (i.e.,
examining a patient for injuries and searching for contraband),
conducting observation rounds, providing medication, or transporting
patients. (Tr. 121-21, 160-61, 747-48, 1797, 2373-74, 2377; Exs. C-3
at 42, C-92 at 14, RCS-7 at 1, RCS-30, RCS-31.) Workers also could
not respond if they were already engaged in the de-escalation of a
patient or if other situations prevented them from leaving their
assigned unit. (Tr. 747-48, 2373-74, 1797-99; Exs. C-3 at 42, RCS-29
at 4, 19-22.) Certain staff, such as therapists, were not required
to respond to Code Greens. (Tr. 1418.) It was common to have codes
called multiple times because of an insufficient response to the
first call. (Tr. 162-63, 399-400, 1482-83, 1494, 1517-18; Ex. C-3 at
44.) Worse, at times, no one was able to respond promptly. (Tr.
162-63, 399-400, 807; Ex. C-2b at 9-10.)

Calling a Code Green had adverse ripple effects.
When patients heard the code or saw staff leaving their unit to
respond, sometimes they would escalate aggressive behavior. (Tr.
142-44, 366, 1518; Exs. C-3 at 44, C-94 at 26.) Those units would
then have less staff to de-escalate the patients or perform other
tasks to prevent or reduce aggression. (Tr. 142, 366, 1495, 1518;
Ex. RCS-29 at 4, 19-22.)

The Commission addressed the importance of
reliable methods to summon assistance for those working at inpatient
behavioral health facilities. In UHS-DE/Pembroke , like at the
Worksite, there were not enough walkie-talkies for employees to
always carry. 2022 WL 774272, at 9-10. Instead, employees had to
use phones, which were in only limited locations, or yell for
assistance. Id. at 9. The Commission upheld the ALJ’s
finding that this approach was not sufficiently effective at abating
the hazard of workplace violence at the behavioral health facility.
Id. at *10.

A similar finding is appropriate here. Doctors
Lipscomb and Forman concluded that the ability to obtain assistance
was inadequate. (Tr. 1648, 1653; Exs. C-92 at 11-12, C-94 at 24-26.)
Sometimes this was because of difficulties in calling the code.
(Tr. 506, 508-9, 694-95, 794; Exs. C-42, C-57 at 4.) At other times
it was because there was not enough staff who could respond promptly.
(Tr. 162-63, 399-400, 1518.) Slower responses increased the
likelihood of injury and could exacerbate injuries. (Tr. 1199-1200;
Exs. C-92 at 11-12; C-94 at 26.)

Respondents’ Staffing Approach Not
Adequate

Respondents argue that the employee witnesses were
biased. The compelling witness testimony was supported by
overwhelming evidence of routine violence and serious injuries from
the hazard. Respondents do not rebut the evidence showing that the
amount of available staffing contributed to or exacerbated injuries.
Further, they destroyed evidence of whether adequate numbers of staff
were available to respond to incidents.

Insufficient staffing was a recurring and
significant problem that exacerbated the hazard. 56
To put it mildly, Respondents’ claims about their ability to
augment staffing were overstated. Typically, non-direct care staff
were only available on one of the three weekday shifts and not on
weekends. With the facility operating 24/7, most of the time, few
non-direct care workers could assist with abating workplace violence
or its precursors.

Respondents recognized that having more patients
per worker can impact the number of aggressive episodes. (Ex. RCS-41
at 7.) Dr. Forman opined that the Worksite’s staffing did not
appropriately account for patient acuity and fell short of what is
required to maintain a safe workplace. 57
Dr. Lipscomb agreed that the Worksite’s staffing was inadequate
for staff safety and led to incidents of workplace violence. (Tr.
1626, 1654, 1656-58, 1664-65; Ex. C-94 at 27-33.) Respondents’
pre-inspection approach to staffing did not adequately abate the
hazard.

Intake Processes, including Identifying and Securing Contraband

Admissions and intake processes are part of the
Worksite’s abatement. (CS Br. 22-25, 36, 68-69, 103-4.) Most
patients are brought directly to a patient care unit after being
referred by a hospital. (Tr. 258-59, 2310-11, 2419.) When a patient
arrived after a hospital referral, they were physically searched in
their rooms by two staff members for contraband and weapons. (Tr.
2319-20.) Their belongings were not scanned with a metal detector or
immediately searched. (Tr. 1501.) At the start of OSHA’s
inspection, such equipment was not in the buildings with the patient
care units. (Tr. 1501; Ex. C-38.) Respondents claim that patient
belongings were placed “in a locked location.” (CS Br. 22.)
However, at the investigation’s start, staff placed patient
belongings under the desk in the nurses’ station. The nurses’
stations could be locked but as noted, some patients were able to
gain access. 58

The belongings remained at the nurses’ station
until staff had time to search and inventory their contents. (Tr.
2892; Ex. C-3 at 29.) The searches were to be conducted either
during the shift the patient arrived on or on the next shift. (Tr.
2321.) It could be many hours before anyone knew if weapons or other
dangerous items were in the belongings. (Exs. C-3 at 29, C-94 at
35.) For example, a nurse discovered bags that had been at the
nurses’ station for two days before they were searched. (Tr.
497-99, 582-83; Ex. C-56.) The belongings contained hazardous
materials, including butane fuel and numerous lighters. (Tr. 497-99;
Ex. C-56.)

The assessment for contraband also had concerning
gaps for patients who first went to the A&R department.
Potential patients kept their belongings until they went into an
assessment room. (Tr. 91.) The belongings were not checked with
metal detectors or searched before the assessment. Id. If
admitted, the patient and their belongings were supposed to be
scanned with a metal detecting wand. (Tr. 91, 176; Exs. C-3 at 29,
C-39.) The wands were not particularly sensitive and would not
detect metal if the patient was wearing baggy clothing or if the wand
did not come extremely close to the person. (Tr. 359, 902-3, 1204,
1672-73, 1963, 2551; Exs. C-3 at 29, C-39.) A&R staff did not
physically search patients or their belongings. (Tr. 91, 176, 260,
359; Exs. C-3 at 29, C-39.) There was no inventory, and no one knew
whether the patients had any contraband not picked up by the metal
detector. (Tr. 899, 2548-49; Exs. C-38, C-39.)

A staff member would transport the patient with
their belongings from A&R to one of the buildings with patient
care units. (Tr. 91, 260, 896.) Initially, there was no policy or
procedure about whether staff or the patient held the belongings when
the patient went outside of the A&R building to a patient care
unit. (Tr. 901-2, 2548, 2551; Exs. C-39, RCS-15.) Sometimes staff
carried the belongings, and sometimes patients did. (Tr. 91, 175,
261, 1204, 1314-15.) Like patients arriving after a referral, the
belongings of patients who entered through A&R were placed at the
nurses’ station to be inventoried later. (Tr. 260, 360, 1502,
2892; Exs. C-38, C-39, C-92 at 13, RCS-72.)

In December 2019, a patient was able to bring a
large butcher knife into the care unit. (Tr. 174, 898, 1496-98; Exs.
C-3 at 28-30, C-39.) The patient’s belongings were not searched in
the A&R department. (Tr. 91, 176, 899, 2548-49; Ex. C-39.)
After admission, the patient carried his belongings to a patient care
unit (Hickory). (Tr. 899; Ex. C-39.) The staff member escorting him
did not have a radio while accompanying the patient across the
Worksite. (Tr. 175, 899; Ex. C-94 at 24.) The patient was able to
keep the knife in his possession until the following day. (Tr.
1496-97.) Additional contraband in the patient’s belongings was
also found after the knife was discovered. (Tr. 1498.) Management
reviewed video of the admissions process and the patient’s entry
into the unit. (Tr. 899; Ex. C-39.) An MHS from the unit staff was
terminated, but no one from the A&R department was. (Tr. 264-65,
360, 1570; Ex. C-3 at 29.) Dr. Lipscomb considered it a matter of
luck that something did not go seriously wrong. (Tr. 175-76, 361,
1672.)

Respondents had policies addressing screening
patients and their belongings for items that presented a safety
concern. (Tr. 260, 2321, 2423, 2425, 2547-51; Exs. C-22, RCS-15,
RCS-72.) At the start of OSHA’s investigation, the policies did
not address several key aspects of the screening process. For
instance, the “Initial Safety Screen of Patients and Securing
Belongings” policy did not address if patients could retain
possession of their belongings after being admitted in the A&R
department. (Tr. 2548, 2551; Ex. RCS-15.) The policy refers to
using a metal detector wand on the patient but does not address
searching or using metal detecting wands over patient belongings.
Id. Similarly, the “Control of Contraband” policy did not
state that any screening of belongings was to occur in the A&R
department. (Ex. RCS-72.) It also did not specify when to screen
belongings after patients arrived on the units. Id.

Respondents recognized the risks associated with
patients bringing dangerous materials into the units. Their training
materials stated (in bold) that inventories would occur upon arrival.
(Tr. 2891-92; Ex. RCS-30 at 2.) In practice, this was not followed.
(Ex. C-3 at 29 “E mployees
stated in interviews that it could be several hours before a
patient ’ s
belongings were inventoried.”.) Dangerous
items were brought into the care units and left unsecured. (Tr.
2892; Exs. C-92 at 12-13; C-94 at 24-25, 35-46.) Possessions
remained at the nurses’ stations for hours when staff had too many
patient care tasks to complete the searches. (Tr. 360, 582-83, 1570,
1629, 2321, 2548; Ex. C-56.)

Doctors Lipscomb and Forman believed the policies and practices in
place at the start of OSHA’s investigation were inadequate for the
hazard. (Tr. 1202-5, 1208, 1313, 1397-98, 1670, 1672-74; Exs. C-22,
C-92 at 12-13, C-94 at 34-36.) Their expert opinions, coupled with
the other evidence, established that Respondents’ approach for
identifying and securing dangerous items was inadequate to protect
staff from the hazard when OSHA’s inspection commenced.

Training

All employees received training in de-escalating
aggressive behavior and responding to behavioral health emergencies.
(CS Br. 33-36.) The Secretary agrees that attempting verbal
de-escalation can be a good approach to some behavior. (Sec’y Br.
81.) The proposed additional abatement does not include a
stand-alone provision on training. Nonetheless, the Secretary
maintains that training, to be effective mitigation, required
adequate resources so workers could implement the actions called for
by the training. Id.

At the time of the inspection, workers were
trained in a program called SAMA. (Ex. C-3 at 40, 46.) The training
instructed workers that restraining a patient alone is generally
prohibited. (Tr. 2889; Ex. RCS-22 at 39.) In practice, workers were
often alone when patients were aggressive toward them. Sometimes,
they were the only staff member around when patients were assaulting
other patients or self-harming. They did not have time to start the
Code Green process or wait for a second staff member before
attempting to restrain a patient. (Tr. 640-41, 963.) Although
permissible, it was typically challenging for one person to maintain
a hold alone successfully. (Tr. 2390; Ex. C-79 at 2.) Even five
people would not be able to restrain certain patients safely. (Tr.
516-19; Ex. C-59.) A former lead MHS discussed an unsuccessful solo
hold attempt. (Tr. 623-25.) He tried to stop a patient from
entering the nurses' station’s window. (Tr. 623.) As he tried to
restrain the patient, the patient broke free, and the worker’s
finger was lacerated. (Tr. 623-24, 626.) The patient was still not
in control and the worker had to initiate a second hold alone. (Tr.
625.) This time, the worker’s knee was injured. Id.

Difficulties with initiating calls for assistance
and receiving adequate and timely responses complicated workers’
ability to perform the techniques taught in a manner that minimized
injury to the worker. Additionally, as Dr. Forman explained,
“nothing is more confusing to staff than training them to do things
one way then not giving them enough teammates to use the training in
real-world situations.” (Ex. C-92 at 14.) He also discussed the
value of having staff with specialized security training. Id. at
17. Dr. Lipscomb also raised concerns with not having staff with
specialized security training. (Ex. C-94 at 16, 36-40.) Considering
the conditions workers confronted, the techniques taught could not be
implemented consistently and were not sufficient.

Post-Incident Debriefing, Incident Reporting, and Reviews of
Workplace Violence Incidents

Promptly after a restraint or seclusion, a nurse
was supposed to complete a debriefing form. (Tr. 182-83, 2344; Exs.
C-57, C-64, C-65, C-66, C-79.) Later, the Risk Management Director
(Kolln) and others were supposed to review video of restraints and
seclusions. (Tr. 1835, 1903; Exs. C-20, C-22, C-79.) There were
notable inconsistencies and gaps in how debriefings occurred. (Ex.
C-3 at 41.) The debriefing process focused on patient feedback and
patient safety. (Tr. 182-83, 1634; Ex. C-94 at 41.) It was not
particularly formal. (Tr. 888; Ex. C-94 at 40-42.) Although the
forms had a section to document staff/patient debriefings, the
information included was often incomplete. ( See Exs. C-64 at
9, 23, 36, 59, C-94 at 41.) It is unclear how the forms kept in the
paper patient medical file were used for staff safety.

In June 2019, Kendra Stea, a UHS-DE Program
Manager/Clinical Trainer, visited the Worksite. (Stip. 42; Tr. 917;
Ex. C-79 at 4.) She advised the Director of Nursing and other senior
leaders that “all incidents should have a staff debriefing as well
as a patient debriefing. By all accounts this was intermittent, or
non-existent.” (Tr. 919, 1242, 1335; Exs. C-79 at 5; RCS-41 at 5.)
The on-site trainers appeared to know how to conduct debriefings,
but there was an issue of “accountability” in ensuring the
practice consistently occurred. (Ex. C-79 at 1, 5.) Ms. Stea
advised the Worksite’s senior management to move from their current
approach “toward 100% camera
review and 100% staff debriefing.” Id.
at 8. This June 2019
recommendation for camera reviews and including staff in such reviews
was not new and had previously been raised as something for the
Worksite to implement. (Tr. 2611, Exs. C-79, RCS-41 at 5-6.) A
month later, debriefings were still a “struggle.” (Tr. 2611-12;
Ex. RCS-41 at 7.) And, by fall, still not much had changed.
Debriefings were still “not adequate.” (Ex. C-80 at 3.)

Frequently, direct care workers were not involved
in the debriefing process, even for workplace violence incidents
during which they were injured. (Tr. 183, 643, 651, 672-73, 682,
966, 980, 983, 992, 1420, 1433, 1438, 1471-73, 1495, 1507, 1510,
2394-97; Exs. C-3 at 45, C-64, C-79 at 5, 8, C-92 at 19, C-94 at
40-42.) Debriefings could occur when the key staff involved were
unavailable. (Tr. 2344; Exs. C-57, C-64, C-92 at 19.) Ms. Nolan
acknowledged that although she would try to gather as many people as
possible, the debriefing might include only one person. (Tr. 2344.)
Routinely, staff were needed back in their assigned units to complete
other tasks after a code. (Tr. 1473, 2344; Ex. RCS-41 at 7.) They
would not participate in any debriefing because they needed to
quickly return to their respective units where, at night, they
typically had left one worker alone while they assisted with the
code. Id.

Despite being involved in numerous restraints of
Patient 23, an MHS did not recall participating in any debriefings
after those events. (Tr. 643, 651, 672.) Similarly, a nurse did not
participate in a debriefing on February 12, 2020, after a patient
injured her. (Tr. 1472.) The debriefing form is consistent with her
testimony, as it does not identify the workers involved with the
restraint. (Tr. 1471-72; Ex. C-66 at 5.) A worker explained that
sometimes there would be discussions about what happened but did not
recall ever discussing measures that could be taken to handle things
differently in the future. (Tr. 735; Ex C-3 at 45-46.)

The input of involved workers was not consistently
captured after incidents and subsequent reviews also left them out.
(Exs. C-79 at 8, C-80 at 3, RCS-41 at 5.) The Worksite had several
committees, but none focused on workplace violence or staff safety.
(Tr. 154-55, 229, 321-22, 1634-35, 1701, 1825-26, 1920, 1983, 2520,
2661; Exs. RCS-3, RCS-84 at 8.) Direct care workers did not
participate in camera reviews. (Tr. 1634; Ex. RCS-41 at 5-6.) They
also did not regularly attend PIC or PSC meetings, where aggregate
data related to restraints and seclusions was reviewed. 59
The data reported at those meetings came from the MIDAS database,
which typically did not note worker injuries. (Tr. 560, 1825; Ex.
C-94 at 19.) Respondents did not effectively analyze systemic risk
factors, such as the number and type of staffing present during
incidents or where they occurred. (Ex. C-94 at 19.) Management
appeared confused about who was responsible for tracking and trending
worker injuries related to patient aggression. Id. (the
Director of Risk Management and Human Resources each indicated that
the other was responsible). The Risk Management Director reviewed
reports to see if patients had to visit an emergency room, but those
reports would not indicate if workers needed medical care from the
incident or because of other workplace violence. (Tr. 2603.)

The incident investigation and analysis involved
limited data collection and analysis. (Ex. C-94 at 19.) The
information gathered focused on assessing the individual patient’s
treatment, not improving worker safety. (Ex. C-3 at 41, 46.) It
amounted to a “paper exercise.” (Tr. 2611; Exs. RCS-41 at 5-6,
C-79.) Little attention was paid to getting feedback in the form of
post-incident debriefings. (Exs. RCS-41 at 5-7, C-79 at 5, C-94 at
17-19.) Worse, the limited data obtained was not effectively used to
reduce the hazard’s incidence or severity. (Exs. C-92 at 18-19;
C-94 at 19.) As Dr. Forman explained, the post-incident
investigation and debriefing at the Worksite was deficient, sometimes
to the point of being “non-existent.” (Exs. C-79, C-92 at 11,
RCS-41 at 5-6.) This denied management and staff the opportunity to
improve future responses. (Ex. C-92 at 11, 18-19.) His assessment,
backed by other record evidence, contradicts Respondents’ claims
that they use debriefing and incident review to abate the hazard
effectively. In short, Respondents’ claims about tracking,
trending, and analyzing data related to workplace violence as a
method to reduce the hazard are significantly over-stated. Their
approach, as implemented, did not adequately address, or contribute
to staff safety. (Tr. 1634, 1684-85; Exs. C-3 at 45, C-64, C-92 at
19, C-94 at 40-41.)

Restraint Reduction Initiative

The impact of Respondents’ restraint reduction
efforts on the hazard is unclear. (Exs. C-3 at 51-52, C-79 at 4;
RCS-41.) Ms. Stea noted issues with how restraint reduction was
implemented at the Worksite: “the current team structure has not
been very effective lately.” (Stip. 42; Ex. C-79 at 4.)
Respondents did not produce any records from meetings during OSHA’s
six-month investigation. (Ex. RCS-41.) The minutes from the
restraint reduction team meetings in 2018 and the first half of 2019
do not refer to staff injuries. (Tr. 2610-12; Ex. RCS-41.)

Dr. Gray, the Medical Director, indicated that
patient restraint and seclusions were discussed in Medical Executive
Committee (“MEC”) meetings. (Tr. 2662; CS Br. 45.) He did not
provide details about the discussions, and no minutes or other
records from MEC meetings related to this issue were introduced into
the record to corroborate his assertion. Restraints and seclusion
were agenda items for the Performance Improvement Committee (PIC).
(Ex. RCS-84.) However, the extent to which the PIC meetings reduced
the hazard’s incidence was not established. The PIC’s meeting
minutes for January 2019 and January 2020 had identical discussions
regarding seclusions and restraints. (Tr. 2834-38; Exs. RCS-84 at 1,
8, 30, 37, C-3 at 35.) The minutes discuss a reduction in restraints
from 2017 to 2018, without discussing the number of restraints in
2019. (Tr. 1827-28, Exs. C-74 at 1, RCS-84 at 1, 30.) Similarly,
the January 2020 meeting minutes for the Governing Board reflect
restraint information from 2018 rather than 2019. (Tr. 1875-76; Ex.
C-76.)

The record suggests difficulties with analyzing
restraints and implementing actions to minimize worker injuries from
the cited hazard. (Tr. 1951-52, 2612; Exs. C-3 at 51-52, C-80 at 2,
RCS-41, RCS-84 at 1, 8, 30, 37.)

Workplace Violence Prevention Plan and Programs

Respondents have a WVPP. (Tr. 145, 1817; Ex.
C-22.) The document is dated April 2019, but the Risk Management
Director (Kolln) could not recall when it was implemented. (Tr.
1817; Ex. C-22.) The Secretary established a rift between what the
WVPP calls for and Worksite practices. This undermined the
abatement’s effectiveness. (Tr. 144-51, 1621-26, 1629-30; Exs. C-3
at 32-54, C-92 at 12, 17, 19.)

First, the WVPP called for “zero tolerance”
for all types of workplace violence, including violence committed by
patients upon staff members. (Ex. C-22 at 1.) Dr. Lipscomb
testified that she did not agree with Respondents’ claim of zero
tolerance and characterized it as “an empty sort of policy
statement.” (Tr. 1755. See also Tr. 146, 696, and 1456.)
Dr. Forman’s report characterized the WVPP “zero tolerance”
position as “ill-defined” and noted Respondents’ “high
tolerance” for workplace violence. (Ex. C-92 at 17.) Workers
agreed. (Tr. 146, 696, 1453-56.) Respondents appear to acknowledge
they did not adhere to “zero tolerance” as the WVPP states. (CS
Br. 94.) Instead, they took a “practical approach” to patient
aggression against staff. Id.

Second, while Respondents claim workers were
trained on the WVPP and could access it, multiple workers did not
know there was a WVPP, what it recommended, or what it required.
(Tr. 148-49, 695-96, 797, 1452-54, 1623-24, 1822; Ex. C-3 at 33; CS
Br. 42, UHS-DE Br. 23.) Workers indicated they did not receive
training specific to the WVPP and did not receive a paper copy of it.
(Tr. 148-49, 695-96, 797, 1452-53.) The binder of information
provided to new employees did not include the WVPP or specify how to
access it. (Tr. 148-49, 695-96, 1056-57, 1452-53, 1822.) The Human
Resources Director (Robert Troudt) did not cover the WVPP in new
employee orientation and was unsure if there was annual training on
it. 60
Similarly, Ms. Kolln did not know if there was training on the WVPP.
(Tr. 1822-23.)

Management did not appear to be well-informed
about the plan. (Ex. C-3 at 32-33.) The WVPP set a goal to reduce
staff injuries from patient aggression by 15% from their 2018 level.
(Ex. C-22 at 1.) Ms. Kolln did not know where the goal came from,
how many injuries a 15% reduction would correspond to, or if the goal
was ever met. (Tr. 1823-24; Ex. C-3 at 33.) Mr. Troudt was
similarly unaware if the goal was met in 2019 or the following year.
(Tr. 1058.)

Responsibility and accountability for the plan was
muddled. (Ex. C-3 at 34.) Ms. Kolln could not recall or explain
multiple aspects of the short document. (Tr. 1823-24, 1854; Exs.
C-22, C-94.) She could not recall participating in any review or
evaluation of the WVPP, even though the document calls for annual
reviews. (Tr. 1854.) Besides Ms. Kolln, the WVPP also specified
that the Director of Human Services was a responsible person for the
plan. (Ex. C-22 at 7.) There was no such position at the Worksite.
(Tr. 1055-56.) There was a similar sounding position (Human
Resources Director), but that person did not have responsibilities to
prevent workplace violence involving patient aggression toward staff.
(Tr. 1054.)

Third, the WVPP’s review and evaluation elements
were not implemented. The WVPP called for “Employee Accident
Reports” to be reviewed to identify injury and illness trends.
(Ex. C-22 at 7.) This was to be done to see whether corrective
action was needed. Id. However, Ms. Kolln was unaware of
such reports being used at the Worksite. (Tr. 1854-55.) Similarly,
the WVPP called for reviewing workers’ compensation claim reports,
OSHA 300 logs, and “Root Cause Analyses conducted for employee
injuries.” 61
But Ms. Kolln either did not receive or did not review such
documents. (Tr. 1855; Ex. C-3 at 45.) She could not confirm the
next two items the WVPP lists (post-incident debriefings and existing
corrective action plans) were part of the review procedure. (Tr.
1855-56.)

The only item on the list she did acknowledge
reviewing for illness and injury trends was the HPR (Healthcare Peer
Review) reports. (Ex. C-22 at 8.) Those reports were generated from
information in the Worksite’s MIDAS database. (Tr. 1824-25.) The
MIDAS system allows workers to input data about incidents and
categorize them. (Tr. 1853.) It is a patient-based system. (Tr.
560, 1825, 1836.) It is not used to record or report worker injuries
and there is no field to enter them. (Tr. 560, 1824-25.) This
undercuts their utility for identifying trends and implementing
corrective action for worker safety.

Fourth, the WVPP calls for more robust monitoring
and assessment of workplace violence than what occurred. The WVPP
tasked two committees (PSC and PIC) with monitoring patient
aggression towards staff. (Ex. C-22 at 1-2.) Specific incidents of
patient aggression to staff were not typically discussed at those
committees' meetings. (Tr. 1825-26.) As the name implies, the
Patient Safety Council (PSC) focused on high-risk incidents involving
patient care. (Tr. 1829-30; Stip. 43.) Its meeting minutes support
this characterization. They do not reflect discussion of specific
incidents of patient-on-staff violence or worker injuries. (Tr.
1831-33; Ex. C-75.) For the PIC, worker injuries were not a priority
or performance improvement area. (Stip. 44; Tr. 1062-64, 1826-28;
Exs. C-3 at 49, C-74 at 1-2.) The committee focused on issues
related to patient care, such as restraints, medication errors, and
falls. (Tr. 1826-27; Ex. C-74.)

There are more gaps between what the WVPP called
for and what occurred at the Worksite concerning the analysis of
aggression. (Tr. 146-51.) The WVPP specifies that “senior
management will ensure that patient aggression events are analyzed
and that trends are identified for the corrective action process.”
(Ex. C-22 at 3-4.) To conduct the trending the WVPP required, Ms.
Kolln reviewed incidents categorized as “patient aggression towards
staff” in the MIDAS database. (Tr. 1835, 1841.) The information
she obtained this way does not indicate whether there was an employee
injury from the aggression. (Tr. 1836, 1846, 1849.) When entering
information into MIDAS, staff can categorize incidents in several
different ways. (Tr. 1841-46; Exs. C-19, C-20.) If an incident
involved an assault by a patient against a worker, it might be
categorized as “patient out of control,” or some other category
rather than “aggression/assault.” (Tr. 1841-46, 1848-49; Exs.
C-19, C-20.) Ms. Kolln did not know why some incidents involving
staff assaults were categorized as “patient out of control”
rather than “aggression/assault.” (Tr. 1845-46.) She did not
know why there were different categories and did not explain why she
only looked at reports specifically categorized as
“aggression/assault patient toward staff” when conducting the
assessment. (Tr. 1835-36, 1841, 1852-53.) The Secretary identified
multiple incidents that involved assaults against staff but were
categorized as “patient out of control.” (Tr. 1838, 1841-45,
1848-49; Exs. C-19, C-20.) Looking at only one of the relevant
categories limited the exercise’s utility as mitigation. 62

Fifth, the WVPP calls for employee participation
and lists actions that purportedly demonstrated such participation.
(Ex. C-22 at 2-3.) Some workers were unaware of the two committees
(PSC & PIC) the WVPP cites as evidence of employee participation
in addressing the hazard. (Tr. 1010.) Direct care staff did not
attend the PIC meetings and were not typically at the PSC meetings
either. (Stips. 43-44; Tr. 154, 301-2.) Moreover, there was not
much participation from direct care in the restraint and seclusion
reduction team’s meetings. (Tr. 2829, 2831-32; Ex. RCS-41.)
Employee participation in preventing and mitigating workplace
violence in behavioral health is a “foundational” and “critical”
element of prevention. (Tr. 1607.) Respondents’ WVPP failed to
encourage employee participation and this aspect of the WVPP was
deficient. (Tr. 150, 1622-24, 1633-35; Ex C-3 at 37-39, 52.)

Sixth, the “Hazard Identification and Control”
section was not fully implemented, and the measures taken focused on
patient rather than staff safety. (Exs. C-22 at 4-6; C-94 at 19-20.)
Management was not conducting adequate hazard analysis and
surveillance related to workplace violence at the time of the
inspection. (Tr. 153, 1629-30.) Respondents had a process to
conduct “environmental rounds.” (CS Br. 36, 68-69.) However, as
executed, these primarily looked for maintenance issues and objects
patients might use for self-harm. (Tr. 1629-30; Ex. C-94 at 19.)

Respondents complain that the Secretary is trying
to enforce their policies. That is a mischaracterization.
Respondents claimed their WVPP was implemented and adhered to OSHA
guidance on how to mitigate workplace violence in healthcare. The
Secretary showed notable confusion about the plan and how its
implementation differed from what is considered appropriate for
mitigating the hazard at facilities like the Worksite. (Exs. C-22,
C-92 at 20, C-94 at 14-20.) Overall, the WVPP was focused more on
patient safety than worker safety. (Tr. 148-49; Exs. C-22, C-94 at
14-20.) “Policies are very important, but the effectiveness of a
policy is going to be largely dependent upon [] the fidelity to it
and the implementation of it.” (Tr. 1250-51; Ex. C-22.) As
implemented, the WVPP was not effective at addressing the hazard at
this Worksite. (Tr. 146-51, 1621-26, 1629-30; Ex. C-92 at 12, 17,
19.) See Nelson Tree Servs., Inc. v. Sec’y of Labor,
60 F.3d 1207, 1211 (6th Cir. 1995) (fact that an employer
“incorporated the relevant” safety measures “into its own
safety manual does not satisfy its obligation” under the General
Duty Clause unless those measures are actually “followed and
enforced.”)

Respondents’ Existing Abatement Was
Inadequate

Respondents took some actions to address the known
hazard of workplace violence. However, the hazard persisted and
remained a frequent cause of serious injuries. Respondents lacked a
comprehensive and implemented approach to workplace violence
abatement. Many things they claim to be part of their abatement
efforts appear to be “re-purposed,” i.e ., they
re-characterized a policy or procedure related to patient care and
argue it is meant to protect staff. Undoubtedly, many things done at
the Worksite are dual-purpose in that they help protect patients and
staff. Still, upon examination, it is apparent that fully
implementing abatement measures to adequately protect staff from the
hazard was not prioritized. The actions taken were “paper
exercises” rather than committed efforts to take feasible measures
to reduce the incidence of the hazard. (Tr. 2611; Exs. C-3, C-92 at
14; C-94 at 14, RCS-41.) See BHC , 951 F.3d at 565 (finding
inadequate abatement when employer had policies “on paper” but
did not fully implement them); Nelson Tree, 60 F.3d at 1211.

Respondents claim they have implemented effective
abatement. But when the Secretary shows that the claimed abatement
is not in place, they contend the Secretary is enforcing policies.
Stripping away the hyperbole, it is plain that Respondents knew the
hazard was present and had identified means to reduce its incidence
at the Worksite. They laid out steps in written policies and
provided certain training. Nonetheless, they failed to ensure
adequate staff and resources to implement the abatement. This
failure undermined the abatement’s effectiveness at protecting
workers from the cited hazard and rendered it inadequate.

As the next section addresses, the Secretary
showed that there were several additional feasible actions
Respondents could have taken to mitigate the hazard further.

Feasibility and Effectiveness of the
Proposed Abatement

When the existing abatement is inadequate, the
Secretary must propose some actions the employer could have taken.
Nat’l Realty, 489 F.2d at 1268. Any measure will not
suffice. The Secretary must establish that her proposed action or
actions will be effective at addressing the hazard. Arcadian ,
20 BNA OSHC at 2011. Further, the Secretary cannot propose measures
fundamentally incompatible with the business such that implementing
them will result in bankruptcy or preclude operations altogether.
Pelron , 12 BNA OSHC at 1834-35 (proposed abatement would have
required the plant to close, so it was not feasible). Simply put, if
there’s a known hazard capable of causing serious injury or death,
but nothing can be done to eliminate or materially reduce it, there
is no OSH Act violation.

The Citation sets out both engineering controls
and administrative controls as feasible and effective means to abate
the hazard of workplace violence. The engineering controls include:
(1) reconfiguring nurse stations to prevent patients from entering
them, and (2) providing communication devices and silent alert
signals to employees who work near patients. Broadly, the proposed
administrative controls to further reduce the hazard are:

(1) develop and implement additional procedures related to
identifying and securing contraband;

(2) implement a comprehensive WVPP that includes conducting
investigations and debriefing after workplace violence;

(3) maintain staffing that is adequate to safely address changes in
patient acuity and patient census; and

(4) designate specific staff with specialized training in security to
monitor patients for potential aggression and respond to calls for
assistance.

(Sec’y Br. 94-122.) In disputing this aspect of the Secretary’s
burden, Respondents argue that: (1) the Citation proposes various
alternative methods of abatement, and they already implemented some
of the measures, (2) the Secretary failed to show the proposed
abatement methods will reduce the hazard, and (3) the Secretary did
not establish the proposed abatement methods are feasible. (CS Br.
77-120.) In some respects, Respondents’ arguments are muddled and
inconsistent. They contend they took actions the Citation proposed
as abatement and then argue that the Secretary did not prove that
those actions were operationally or economically possible. Id. at
67-74, 111-20. Cutting through the discrepancies, it is apparent
that: (1) the Citation proposed multiple actions, not various
alternatives; (2) the proposed methods of abatement will materially
reduce the hazard, and (3) Respondents can implement the proposed
abatement.

Multi-Step vs. Alternatives

Respondents, relying heavily on A.H. Sturgill ,
No. 13-0224, 2019 WL 1099857 (OSHRC Feb. 28, 2019), argue that the
Secretary proposed these actions as alternatives rather than separate
actions to be part of a comprehensive abatement. (CS Br. 98,
117-20, 127, 128.) In its most recent decision addressing the hazard
of workplace violence, the Commission does not rely on A.H.
Sturgill . UHS-DE/Suncoast , 2023 WL 2388069, at 2-3.
Instead, it identifies UHS-DE/Pembroke as the way to assess
the feasibility and effectiveness of a multi-prong proposal to
address the hazard of workplace violence. Id. at 3. When,
as is the case here, the proposed abatement is a multi-component
process rather than a series of options, the Secretary must show that
at least one of the proposed measures was not already implemented and
that the same measure is feasible and effective in addressing the
hazard. UHS-DE/Pembroke , 2022 WL 774272, at 8;
UHS-DE/Suncoast , 2023 WL 2388069, at 3 (upholding citation
when parties agreed on the feasibility and effectiveness of six of
the eight proposed abatement measures for the hazard of workplace
violence). See also BHC , 2019 WL 989734, at *26, 40 (finding
the abatement prong met when the Secretary identified six main
measures to address deficiencies in the employer’s existing program
to address the hazard of workplace violence at a behavioral health
hospital); Pepperidge Farm, 17 BNA OSHC at 2033-34 (holding
that the Secretary may require an employer to engage in an abatement
process, the goal of which is to determine what action or combination
of actions will eliminate or materially reduce the hazard).

The measures proposed here include different types
of controls. Some are more preventative, and some are more focused
on mitigation. (Exs. C-92 at 11; C-94.) Like in UHS-DE/Pembroke
and UHS-DE/Suncoast, they are directed at different root
causes of the hazard. The issue “is not whether each measure can
have a material effect on specific instances of hazards, but instead
whether all measures, working together, would prevent a broader
universe of hazards.” UHS-DE/Pembroke , 2023 WL 3243988, at
2. See also Nat’l Realty , 489 F.2d at 1266-67 (“all
preventable forms and instances of hazardous conduct must … be
entirely excluded from the workplace”). The Secretary’s proposed
multi-action approach to abating workplace violence aligns with the
hazard’s “nature.” 2022 WL 774272, at 8. The hazard “arises
in different contexts and conditions,” necessitating multiple
abatement measures. Id .; 2023 WL 3243988, at 2 (concluding
that the proposed abatement measures for workplace violence were
cumulative with each addressing “distinct aspects” of the
hazard); United States Postal Serv., No. 16-1813, 2023 WL
2263314, at 2 n.2 (OSHRC Feb. 17, 2023) (concluding that the
proposed measures were a comprehensive heat stress safety program
rather than alternatives).

In any event, unlike Sturgill , when the
Citation was issued, Respondents had not yet implemented the proposed
additional feasible measures in the manner the Citation describes.
See 2019 WL 1099857, at *9. Respondents sometimes took
partial measures related to the proposed abatement but had not yet
taken measures that offered the same level of protection as those in
the Citation. See Chevron Oil Co. , 11 BNA OSHC 1329, 1334, n.
16 (No. 10799, 1983) (employer can develop different solutions if the
alternative methods achieve at least as much reduction).

Citing Mid-South Waffles, Inc. , No.
12-1022, 2019 WL 990226 (OSHRC Feb. 15, 2019) and A.H. Sturgill ,
Respondents also contend that the “proposed abatements are not
sufficiently specific.” (CS Br. 126-27.) In Mid-South , two
Commissioners concluded that the only abatement method was a
description of the result the employer had to achieve rather than the
specific additional steps it should have taken. 2019 WL 990226, at
6. The issue in Mid-South and A.H. Sturgill was the
Secretary’s failure to identify the measures beyond those already
implemented. Mid-South , 2019 WL 990226, at 6; Sturgill,
2019 WL 1099857, at 10; UHS-DE/Pembroke , 2022 WL 774272,
at 7-8 (distinguishing Sturgill ) .

Here, Respondents’ abatement was not fully
implemented, and the Secretary proposed the specific additional steps
they could take to move their program from one “on paper” into
one that effectively addressed the hazard to the extent feasible.
She sets out additional effective actions Respondents could have
taken to reduce the hazard to the extent feasible. UHS-DE/Pembroke
and UHS-DE/Suncoast are more apt comparisons than
Mid-South or the other cases Respondents cite.

Overview of Effectiveness & Feasibility

Before getting into the specifics of each
abatement, an overview of the effectiveness and feasibility test
prong may be helpful. The parties agree that there are no feasible
measures to eliminate the hazard. Still, the abatement prong is met
when there is an abatement method that would materially reduce the
hazard. Arcadian , 20 BNA OSHC at 2011. Reliable
expert testimony is sufficient to establish that an abatement method
meets that requirement.   See Integra ,
2019 WL 1142920, at *13-14 (finding that reliable expert testimony is
sufficient to establish that an abatement method would materially
reduce a hazard, even if the expert cannot quantify the reduction).
Respondents note the Secretary’s acknowledgment in discovery
responses (Ex. RCS-118) that she did not quantify the reduction of
the hazard Respondents should expect to see in implementing the
abatement measures. (CS Br. 78). However, the Secretary “need not
quantify” the extent to which her abatement and its components
would have materially reduced the likelihood of patient-on-staff
violence. BHC ,
951 F.3d at 565. Evidence of the successful use of a similar
approach elsewhere can also establish effectiveness.   See
Pepperidge Farm , 17 BNA OSHC at
20 34; Wheeling-Pittsburgh Steel Corp ., 10 BNA OSHC
1242, 1246 n.5 (No. 76-4807, 1981 )
(finding abatement method feasible when it had previously been used
at the cited facility), aff’d ,
688 F.2d 828 (3d Cir. 1982)(table).

After showing the proposed abatement would
effectively mitigate the hazard, the Secretary must then show that
his proposal is feasible, i.e ., capable of being done. Baroid
Div. of NL Indus., Inc. v. Sec’y of Labor , 660 F.2d 439, 447
(10th Cir. 1981). This requirement comes from caselaw interpreting
the OSH Act’s general duty clause. The OSH Act requires each
employer to provide a workplace “free from recognized hazards that
are causing or are likely to cause death or serious physical harm to
his employees.” 29 U.S.C. § 654(a). If multiple abatement
measures would cumulatively reduce a recognized hazard, the employer
must implement every method (or an equally effective method) until no
preventable hazard remains. Nat’l Realty , 489 F.2d at 1266
(Congress intended to require the elimination of recognized and
preventable hazards). In other words, employers must continue to act
until the workplace is “free” of the hazard. Id., Gen.
Dynamics Corp., Quincy Shipbuilding Div. v. OSHRC, 599 F.2d 453,
464 (1st Cir. 1979) (employer must “take all feasible steps”).

However, the requirement to “free” workplaces
of recognized hazards cannot be stretched too far. The OSH Act does
not permit the imposition of strict liability for any instance of the
hazard. Nat’l Realty, 489 F.2d at 1266-67 . The
statute is limited to hazards that are “serious” and
“recognized.” 29 U.S.C. § 654(a). In addition, as interpreted,
the Secretary must also show that employers can do something about
the hazard. Thus, the Secretary cannot propose an abatement measure
that is impossible to implement and still prove a violation of the
OSH Act. The proposed abatement must be something employers can put
into effect. Baroid, 660 F.2d at 446-47; Acme
Energy Servs. v. OSHRC , 542 F. App'x. 356, 367 (5th Cir.
2013) (unpublished) (Secretary only needs to show the abatement
is capable of being done). See also Am. Textile Mfrs. Institute,
Inc. v. Donovan , 452 U.S. 490, 506-9, 518-22, 540-1 (1981)
(equating feasibility with achievability and finding that the
Secretary was not required to undertake cost-benefit analysis);
Brabham-Parker Lumber Co. , 11 BNA OSHC 1201, 1201 (No.
78-6060, 1983) (consolidated) (finding, in the context of a noise
standard, feasible means achievable).

Often, there’s significant overlap between the
evidence of effectiveness and the feasibility evidence. For
instance, the implementation of the abatement elsewhere or post
inspection changes can establish both effectiveness and feasibility.
Puffer’s Hardware, Inc. v. Donovan, 742 F.2d 12, 19 (1st
Cir. 1984) (owners of similar equipment had implemented the proposed
abatement); SeaWorld , 748 F.3d at 1215; Modern Drop Forge,
Co. v. Sec’y of Labor, 683 F.3d 1105, 1114 (7th Cir. 1982).
See also SAIC , 2020 WL 1941193, at 8; UHS-DE/Pembroke ,
2022 WL 774272, at 8-12.

Like other workplace violence matters before the
Commission, the Secretary’s proposals are grounded in the
Guidelines, OSHA Road Map, and the TJC Alert. (Tr. 71, 128, 130,
134, 179, 1608, 1618-19; Exs. C-95, C-94, C-96, C-100.) The
Guidelines were developed based on “industry best practices and
feedback from stakeholders, and provide recommendations for
developing policies and procedures to eliminate or reduce workplace
violence in a range of healthcare ... settings.” (Ex. C-95 at 7) .
BHC , 951 F.3d at 564-66 (Secretary must show that the employer
failed to implement measures that “a reasonably prudent employer
familiar with the circumstances of the industry” would have taken).
The Guidelines include a model WVPP, which is broken down into parts
and addresses its application in various settings. (Ex. C-95 at
12-46.) The Guidelines do not provide universal one size fits all
recommendations. Because of workplace variations, they direct
employers to assess their worksites and implement the recommendations
in the manner most effective for their worksites. Id. at 7,
12-46. See BHC , 951 F.3d at 565 (“the Secretary specified a
thorough self-evaluation” for the employer “to determine what
action or combination of actions will,” in the form of a
comprehensive workplace violence prevention program, “eliminate or
materially reduce the hazard”).

As First Judge Augustine noted, “the Guidelines’
recommendations are informed by an extensive bibliography of
workplace violence studies, including studies by the Center for
Disease Control (CDC), international standards associations, state
departments of health, multiple publications from Dr. Lipscomb, and
the [TJC Alert].” UHS Centennial , 2022 WL 4075583, at *31.
OSHA supplemented the Guidelines with the OSHA Road Map, which
provides concrete examples of how healthcare facilities have applied
the practices the Guidelines called for to reduce the hazard. (Ex.
C-96.) Similarly, the TJC Alert identifies factors associated with
the hazard and provides recommendations. The identified factors
include several with particular relevance to this matter: (1) lack of
emergency communication devices, (2) understaffing, (3) staff working
in isolation; and (4) inadequate security. 63
The TJC Alert’s recommended actions for reducing workplace
violence track the OSHA Guidelines. Like the OSHA Guidelines, they
call for: (1) management commitment; (2) employee participation; (3)
tracking and trending of workplace violence data; (4) identifying
source(s) of the hazard and developing a response; and (5) providing
training on de-escalation, self-defense, and responding to emergency
codes. (Exs. C-94 at 10-12, C-100.)

There is no evidence that Respondents cannot adopt
any of the abatement measures the Secretary identified. See BHC ,
2019 WL 989734 at 26-40 (finding the following to be feasible and
effective methods of abatement at a behavioral health facility:(1)
performing a comprehensive evaluation of workplace violence at the
facility and developing appropriate policies based upon the
evaluation; (2) ensuring that units have appropriate levels of staff
given the acuity of the workplace violence hazard; (3) improving
procedures for summoning assistance when patients become agitated or
violent; (4) improving how incidents of workplace violence are
documented and how employees are debriefed after such incidents; (5)
having a safety committee obtain input about the hazard from
front-line staff; and (6) training); BHC , 951 F.3d at 564-66
(affirming the ALJ’s finding that the Secretary established
feasible means to materially reduce the hazard of workplace
violence); UHS Centennial , 2022 WL 4075583, at 41-57 (finding
employer could have materially reduced the hazard of workplace
violence at a behavioral health facility by (1) implementing a
comprehensive WVPP, (2) using personal communication devices and/or
panic alarms; (3) reconfiguring the nurses’ station: (4)
maintaining staffing that is adequate for census and patient acuity;
and (5) conducting incident investigations and debriefings);
UHS-DE/Pembroke , 2022 WL 774272, at 8-12 (finding that
providing panic alarms and equipment for de-escalation were feasible
and effective means of abatement for the hazard of workplace violence
at a behavioral health facility); UHS-DE/Suncoast , 2023 WL
2388069, at 3 (noting that on review the respondents did not dispute
that the following abatement measures constituted feasible and
effective methods of abating the hazard of workplace violence at a
behavioral health facility: (1) implementation of a comprehensive
WVPP, (2) reconfiguration of the nurses' workstations, (3) revising
intake procedures, (4) creating a law enforcement liaison position,
(5) certain types of staff training, and (6) investigation and
debriefing following each incident of workplace violence). Cf.
HRI, 2019 WL 989735, at *8-23 (Secretary failed to show that
robust and implemented workplace violence prevention program was
inadequate for the particular facility).

Respondents appear to assert that the Secretary
had to establish the exact cost of the abatement and then obtain
Respondents’ financial records to show that they could afford the
measures. (CS Br. 111-16.) Such a test is not directed by the OSH
Act or in the precedent interpreting the general duty clause. As
noted, courts developed the feasibility analysis to ensure strict
liability was not imposed. Nat’l Realty, 489 F.2d at
1266-67 . While there are cases with expert testimony on an
employer’s finances and the abatement’s cost, the Secretary can
meet the feasibility prong without the proposal’s exact cost. BHC,
951 F.3d at 558-566, SeaWorld , 748 F.3d at 1215-16;
UHS-DE/Pembroke , 2022 WL 774272, at 9-12; SAIC , 2020
WL 1941193 at 8-10. Here, the proposed actions have been
“recognized by safety experts as feasible,” and Respondents can
implement them. See Beverly , 19 BNA OSHC at 1191; Nat’l
Realty , 489 F.2d at 1266 n.37 (“The question is whether a
precaution is recognized by safety experts as feasible, not whether
the precaution’s use has become customary”); BHC , 951 F.3d
at 565 (examining whether a reasonably prudent employer familiar with
the industry’s circumstances has protected against the hazard in
the manner the citation specified).

Respondents do not counter the Secretary’s
evidence that the proposed abatement measures could be put into place
without threatening their economic viability. Their citation to
Smith Steel Casting Co. v. Brock , 800 F.2d 1329 (5th Cir.
1986) is of little relevance here. (CS Br. 113-15.) Those
proceedings concerned an air contaminants standard, not the general
duty clause. Smith Steel Casting Co. , 15 BNA OSHC 1001, 1002
(No. 80-2069) (consolidated). The employer challenged the process
used to promulgate the standard. Id. The matter did not
concern assessing whether the abatement proposed is sufficiently
feasible such that requiring it will amount to strict liability under
the OSH Act. See Nat’l Realty , 489 F.2d at 1266-67
(precautions against hazards are not infeasible for purposes of the
general duty clause merely because they are expensive). An
employer’s provision of its net profit in a completely different
context does not bear on whether such evidence is necessary to
establish the feasibility of abatement for violating the general duty
clause. Compare Smith Steel , 15 BNA OSHC at 1009 (finding
Secretary met the required showings to uphold standard’s validity)
with BHC, 951 F.3d at 558-566, SeaWorld , 748 F.3d at
1215-16; UHS-DE/Pembroke , 2022 WL 774272, at 9-12; SAIC ,
2020 WL 1941193, at 8-10.

Respondents try to morph the feasibility
requirement’s test from one focused on “economic viability” to
one about short-term profitability. See Nat’l Realty , 489
F.2d at 1266 n. 37. The Secretary does not deny that there are costs
associated with compliance with the OSH Act. There is no requirement
that the abatement be cost-free. The issue is whether the costs are
so exorbitant that the employer cannot remain in business. Id .
Here, there is no evidence implementing the proposed abatement would
put Respondents out of business or even cause them to become
unprofitable. (Tr. 2003; Exs. C-89, C-90.) Dr. Staggs provided no
testimony on the economic feasibility of any measure or Respondents’
ability to implement the proposals. (Tr. 2303; Ex. RCS-95.)
Further, he did not contend that the existing abatement was
reasonable. In contrast, in Beverly , the employer tried to
rebut the Secretary’s evidence of economic feasibility by
presenting evidence of the abatement’s cost and its ability to pay.
19 BNA OSHC at 1191. The ALJ failed to resolve the dispute between
the Secretary’s expert and the employer’s rebuttal evidence. Id.
at 1192. This led to a remand for further analysis of the
competing evidence. Id . See also Pelron , 12
BNA OSHC at 1835 (Secretary did not show the existing safety program
was inadequate and eliminating the hazard would require the business
to cease). The undersigned is not confronted with competing evidence
of Respondents’ ability to pay.

The lack of pushback on the evidence of
feasibility is unsurprising. Many aspects of the proposed abatement
were, or by the time of the hearing had become, part of Respondents’
written policies and procedures. There is no evidence Respondents
cannot execute the policies they have adopted. When seeking TJC
accreditation or during CDPHE reviews, it does not appear that
Respondents claimed it was economically, technologically, or
operationally infeasible to abide by their written policies and
procedures. (CS Br. 12, 18-20; Stips. 12-16; Tr. 338, 341-42, 1616,
2074, 2676-77, 2905; Ex. C-9.) Other aspects of the proposal, such
as reconfiguring the nurses’ station, increasing staff, and
revising policies, occurred post-Citation without impinging on the
Worksite’s economic viability. See SeaWorld, 748 F.3d at
1215; SAIC , 2020 WL 1941193, at 8-10. (Tr. 1989-90; Exs.
C-89, C-90, C-94 at 23.) As Dr. Forman stated, there is “no
greater proof that something is feasible” than showing it has
already been done. (Ex. C-92 at 23.) The remaining measures were
not novel as similar measures had been adopted elsewhere. See
Modern Drop , 683 F.3d at 1114; Puffer’s , 742 F.2d at 19;
UHS-DE/Suncoast , 2023 WL 2388069, at 3 (noting the measures
the employers conceded could be implemented); UHS-DE/Pembroke,
2022 WL 774272, at 1-2, 9-12 (discussing measures in place and
additional abatement that was feasible and effective abatement for
the workplace violence); UHS Centennial , 2022 WL 4075583, at
13-22, 32-57 (same); BHC , 2019 WL 989734, at *8-40 (same).
Moreover, Respondents can sometimes negotiate higher payments from
Medicare or Medicaid. (Tr. 2910-11.) Their reimbursement rate is
not permanently fixed. 64
The Secretary showed that a reasonable employer would have been
doing more than what Respondents were doing to protect workers.
(Exs. C-92, C-94.)

Respondents seek to add new requirements to the
Secretary’s burden under the OSH Act. In their view, to comply
with past OSH Act interpretations the Secretary had to show that
Respondents would remain highly profitable if they implemented the
proposed abatement. (CS Br. 112-16.) Such a requirement is not in
the OSH Act or relevant precedents. As the Supreme Court explained,
“When Congress passed the [OSH Act] … it chose to place
pre-eminent value on assuring employees a safe and healthful working
environment, limited only by the feasibility of achieving such an
environment.” 452 U.S. at 541. The judicially developed
feasibility requirement needs to be understood in the context of why
the concept was developed. It is a protection against strict
liability. Rendering a business less profitable does not result in
strict liability under the OSH Act. National Realty was
concerned about requiring measures that would eliminate a business.
489 F.2d at 1266 n.37. The Secretary does not have to establish that
her proposed abatement would allow an employer to remain highly
profitable. It is sufficient to show, as the Secretary did here,
that the proposed abatements will not preclude Respondents’
economic viability. See Entergy Corp. v. Riverkeeper, Inc. ,
556 U.S. 208, 223 (2009) (noting that the OSH Act’s failure to
mention cost-benefit analysis led to the Court’s conclusion that
the agency was not required to engage in cost-benefit analysis).

The Commission also recognizes an affirmative
defense of economic infeasibility. That defense requires the
employer to establish that compliance is extremely costly and that it
cannot absorb or pass on the cost. See e.g., Faultless Div.,
Bliss & Laughlin Indus., Inc. , 674 F.2d 1177, 1190 (7th Cir.
1992) (fact that control would be “burdensome” was not enough as
test is whether “the employer’s existence as an entity is
financially imperiled by compliance”). Respondents made no such
showing and do not raise the affirmative defense of economic
infeasibility in their Answer or briefs.

Respondents also assert certain of the proposed
measures create a greater hazard than the measures in place. (CS Br.
88, 101, 117.) The affirmative defense of greater hazard was not
raised in the Answer and is not at issue here. When citing a
violation of the general duty clause, the Secretary has the initial
burden of proving “that an abatement method exists that would
provide protection against the cited hazard.” CSA Equip. Co.,
LLC , No. 12-1287, 2019 WL 1375918, at *9 (OSHRC Mar. 19, 2019).
After that, the burden then shifts to the employer to produce
evidence showing or tending to show” that the Secretary’s methods
“will cause consequences so adverse as to render their use
infeasible.” Id .

Respondents misrepresent the evidence in their
brief. The Secretary showed that compared to the abatement in place,
her proposals would reduce, not increase, the hazard. Dr. Staggs did
not assess Respondents’ existing abatement. He also did not
conclude the Secretary’s proposals would create a greater hazard.
He simply discussed “some” studies suggesting certain types of
security personnel were more likely to use unnecessary physical
intervention. (Tr. 2220-21.) He referred to a study involving
psychiatric units in Germany using people “untrained” in mental
health. (Tr. 2220-21.) He also cited a study where the security
personnel did not have any positive interactions with patients. (Tr.
2277-78.) He did not state that security increased harm to workers.
He did not conclude that a position like the post-inspection Milieu
Specialists who responded to patient emergencies but did not conduct
rounding was problematic. Id. He did not call into question
the discussion of security in the OSHA Road Map and in Dr. Lipscomb’s
testimony. He agreed that Respondents could structure the security
positions so the individuals interact with patients and still have no
care duties. (Tr. 2278.) Dr. Staggs was not an expert in nurses’
stations, and he did not assess the protection offered by the design
in place at the time of the inspection. He pointed to no studies
that suggested the Secretary’s proposal would create a greater
hazard. (Tr. 2282-83, 2885-89, 2292.) Respondents failed to rebut
the Secretary’s evidence.

Assessment of the Effectiveness and
Feasibility of the Proposed Abatement Methods

When a citation
lists a series of steps to abate a hazard, the Secretary needs to
prove that at least one of the measures was not implemented and that
this measure is effective at reducing the hazard and feasible.
UHS-DE/Pembroke , 2022 WL 774272, at *
8. In other words, if any individual abatement proposal satisfies
the requirements, the abatement prong of the test is met. 2022
WL 774272, at * 8; UHS-DE/Suncoast ,
2023 WL 2388069, at *3.

In contrast to these recent on-point decisions, to
argue the Secretary must establish every proposed abatement would
reduce the hazard, Respondents point to Litton Sys., Inc ., 10
BNA OSHC 1179 (No. 76-900, 1981) and the Second Circuit decision’s
Carlyle Compressor Co. v. Sec’y of Labor , 683 F.2d 673 (2d
Cir. 1982). 65
Litton is consistent with UHS - DE/Pembroke and
UHS-DE/Suncoast in stating that the Secretary “must only
show that there was a means of abatement which would
materially reduce the hazard.” 10 BNA OSHC at 1182 (emphasis
added). “ The means of abatement , unlike the hazard
itself, does not have to be recognized by an employer or the
employer’s industry. … The means of abatement must only be
‘feasible.’” Id. (emphasis added, internal citation
omitted). Carlyle is also consistent. There, the Secretary
proposed a single abatement measure, the installation of a barrier
guard. 683 F.2d at 676. The Second Circuit notes that the Secretary
must specify the “particular steps” (plural) an employer must
take to correct the problem. Id. at 677. But it concludes
that showing one action was feasible was sufficient to meet the
burden of proof necessary to establish a general duty clause
violation. Id. at 678.

Some of the Secretary’s proposals were
subsequently implemented at the Worksite and others had been
successfully implemented at similar worksites. Expert testimony
supported each of the actions and the overall package of measures.
See Nat’l Realty , 489 F.2d at 1266 n.37 (recognition by
safety experts as feasible meets the required showing for a violation
of the general duty clause). Respondents did not rebut the
Secretary’s evidence of the feasibility and effectiveness of the
abatement prong. Dr. Staggs acknowledged things could be done to
prevent and mitigate the effects of inpatient violence. (Ex. RCS-95
at 4.) Although he concluded that certain of the Secretary’s
proposals would not be effective at mitigating the hazard, he offered
no opinion on others. (Tr. 2302-3; Ex. RCS-95.) He reached no
conclusions as to any proposal’s feasibility. (Tr. 2303; Ex.
RCS-95.)

Though establishing one feasible method of
abatement that will materially reduce the hazard is sufficient, the
undersigned will discuss each proposal.

Engineering Controls

Re-configuring the Nurses’ Station

This proposal calls for Respondents to:

Re-configure the nurses’ stations in the units to include design
features that prevent patients from jumping over, reaching into,
over, or otherwise entering into the workstations. Ensure items in
the workstations, such as but not limited to hole punchers, staplers,
telephones, cords, pens, computers, computer peripherals, and other
items are not accessible by the patients, so they cannot be used as
weapons.

The
design of the nurses’ stations varied by unit .
(See Section II.B.1.b.) Contrary to Respondents’ position, the
Secretary did not have to establish that the nurses ‘station was
the “most common” location for injuries to show this abatement
method was feasible. (CS Br. 87.) They cite no precedent for this
argument.

What the Secretary did show is that there were
many worker injuries and patients could weaponize many items needed
at the nurses’ station. (Tr. 993, 1643-45; Exs. C-92 at 23, C-94
at 22.) See UHS-DE/Suncoast , 2023 WL 2388069, at *70-71
(patient used scissors from nursing station to stab worker). On
numerous occasions aggressive patients entered or tried to enter the
nurses’ stations. (Tr. 94-95, 628, 859-60, 960, 992-93, 1024-25,
1028-29, 1254, 1489, 1850-52; Exs. C-2b at 10, C-19, C-20, C-92 at
22-23.) Several such incidents resulted in workplace violence. 66
Other evidence, such as incident reports and worker testimony,
indicates that injuries at the nurses’ station were more common
than Respondents claim. (Tr. 1643-45; Exs. C-92 at 21-22; C-94 at
22.) The record and the expert opinions show that the nurses’
stations, as they were previously configured, provided inadequate
protection.

Dr. Gray, the Medical Director, acknowledged he
was not an expert on the topic but noted a “general trend” of
removing nurses’ stations to the extent possible. (Tr. 2635,
2668-69.) In contrast, Dr. Forman concluded that the design of the
nurses’ stations was inadequate in light of the typical patient
acuity. (Tr. 1254; Ex. C-92 at 22-23.) He opined that reconfiguring
the nurses’ station would be feasible and effectively reduce the
hazard. (Tr. 1255-56, 1258; Ex. C-92 at 22-23.) As support, he
discussed other facilities with such abatement and Respondents’
successful post-Citation changes. (Tr. 1255-56; Ex. C-92 at 23.)
See SeaWorld , 748 F.3d at 1215 (extending actions taken with
one animal to all similar work was feasible); Con Agra, Inc. ,
11 BNA OSHC 1141, 1144-45 (No. 79-1146, 1983) (finding extension of
existing abatement feasible). Dr. Forman had experience with fully
enclosed nurses’ stations at inpatient psychiatric facilities.
(Tr. 1256.) He opined that making it more difficult for patients to
access the interior of the nurses’ stations did not negatively
impact the therapeutic environment. (Tr. 1256-57; Ex. C-92 at
22-23.)

Dr. Lipscomb concurred that the nurses’ stations
were inadequate, and that the proposal was feasible and effective.
(Tr. 1643-47; Ex. C-94 at 22-24.) Preventing patients from entering
the nurses’ station increased staff safety and other hospitals had
implemented similar abatement. (Tr. 412-13, 1050, 1489-90, 1643,
1646-47, 2702-4; Ex. C-94 at 23.) See UHS-DE/Suncoast , 2023
WL 2388069, at *95; Pepperidge
Farm , 17 BNA OSHC at 2034 (viewing “successful use of
a similar approach elsewhere” and expert testimony as elements of
an effective abatement method). The CO also asserted that
re-configuring the nurses’ stations would reduce the likelihood of
injuries from direct attacks or when patients gain access to items
kept at the nurses’ station. (Ex. C-3 at 55.)

Dr. Staggs offered no opinion on the proposal’s
economic feasibility, but his report touched on other aspects of
feasibility. (Tr. 2303; Ex. RCS-95 at 9.) Dr. Staggs was not
accepted as an expert who could opine on the feasibility of this
measure. He is not a licensed psychiatrist and has never worked in
or around a nurses’ station. He has not published articles or
studies on nurses’ stations. (Tr. 2119-20.) His expertise lies in
assessing the quantitative data’s quality in various studies. In
that area, he noted three studies on nurses’ stations, whose data
he considered to be of “very low quality.” (Tr. 2227-33,
2288-89.)

More persuasive than the studies Dr. Staggs
discussed, is the expert testimony of Doctors Forman and Lipscomb and
actual experience at this Worksite. (Tr. 1050, 1256-57, 1489-91,
1643-47, 2670; Exs. C-2b at 10, C-92, C-94 at 23.) Workers discussed
their experience with how nurses’ stations that patients could not
enter improved safety. (Tr. 412-13, 1489-90.) A former nurse
explained how enclosed workstations at her current position prevent
patients from getting inside. (Tr. 412-13.) Dr. Staggs agreed he
would take seriously the workers’ assessments on how design changes
for nursing stations affected the Worksite. (Tr. 2289-90.)

The post-Citation changes adopted at the Worksite
were well received by staff. (Tr. 1256-57, 2703-4.) Barriers
extending up to the ceiling were added, and there are full doors
workers can lock. (Tr. 879-81, 1647, 2669-70; Ex. C-94 at 23.) The
new enclosures have been helpful and enclosed nurses’ stations
would have prevented Patient 23 from entering the area as occurred in
January 2020. (Tr. 880-81, 946-47.) The changes provided worker
protection without resulting in patient care problems. (Tr. 880-82,
1050, 1489-90, 1647, 2670, 2702-4; Exs. C-92 at 23, C-94 at 23.)

The post-Citation changes to have more protective
nursing stations could have been implemented before OSHA’s
inspection. Around the fall of 2019, locks were added to the doors
of the area where the doctors worked on the Cottonwood unit. (Tr.
1508-9.) This prevented patients from accessing the area. (Tr.
1510.) The change was made after a patient flipped a worker over
when the doctor attempted to place him in a hold. (Tr. 1509.) See
SeaWorld , 748 F.3d at 1215 (possible to extend abatement
measure); Con Agra, 11 BNA OSHC at 1144-45.

Other behavioral health facilities had more
enclosed nursing stations. 67
Like at this Worksite, UHS-DE/Suncoast involved behavioral
health patients entering the nurses’ stations. 2023 WL 2388069, at
70. Sometimes, this resulted in staff injuries. Id . In one
instance, a psychiatric patient was able to reach into the nurses’
station and get a pair of scissors. Id. at 71. The patient
then stabbed a nurse with the scissors. Id. The Secretary
proposed a similar abatement method. 68
The ALJ rejected the argument that patient care precluded protective
nurses’ stations. Id. at *94. Relying on expert testimony
and the partial implementation of the proposal, the ALJ found
reconfiguring the nurses’ stations to limit entry to be a feasible
and effective means of abatement for the hazard of workplace
violence. 69

Another ALJ reached a similar conclusion for a
behavioral health facility in Colorado. There, “the nurses’
station was a locus for patient aggression,” and the layout did not
offer effective protection. 2022 WL 4075583, at 5, 42. The
Secretary proposed reconfiguring the nurses’ stations as abatement.
Id. at 1, 5, 42. Employees who had been attacked at the
nurses’ station believed a more substantial barrier would have
prevented certain incidents, and the experts agreed. Id. at
43-44. The ALJ found that the proposed abatement was a feasible and
effective means to mitigate workplace violence. Id. at 44.

The record and the expert opinions of Doctors
Forman and Lipscomb showed that re-designing the nursing stations was
feasible and provided material additional protection from the cited
hazard. See 2022 WL 4075583, at 44; 2023 WL 2388069, at
94-95.

Providing Reliable Communication Devices

The next aspect of the proposed abatement relates
to providing reliable communication devices so staff can convey a
need for assistance:

Provide all staff members who work in close proximity with patients
reliable communication devices to rapidly communicate need for
assistance, including but not limited to times when staff members
leave the unit to escort patients. Provide a means to silently
communicate need for assistance without alerting the patient
population. Install the alert signal in a way that is not visible to
patients. In addition, provide training and procedures on the use
and limitations of equipment.

The primary ways of requesting assistance were
accessing the phone in the nurses’ station to use the overhead
paging system or yelling. Workers typically had a radio when going
between the buildings or in areas such as the gym or cafeteria, but
at times there were not enough working devices to permit this. (Tr.
137-44; Ex. C-42.) The proposal is a feasible and effective method
to address the deficiencies in the existing system. (Tr. 140-44; Ex.
C-3 at 55.)

Dr. Staggs reviewed the scientific literature on
workplace violence and claimed no studies showed that a particular
device materially reduces workplace violence. (Tr. 2236.) He then
clarified that one of the studies discussed in his report found that
communication devices such as cell phones and personal duress alarms
were a protective factor against violence. (Tr. 2299-2300.)

Dr. Staggs had no experience with radios or panic
alarms and had not conducted any research on communication devices or
alarms. (Tr. 2137-41.) He offered no opinion on the method’s
feasibility or the suitability of Respondents’ approach at the time
of the inspection. (Tr. 2293, 2302-3.) Like with nurses’
stations, Dr. Staggs’ report goes beyond the areas in which he was
qualified as an expert. (Ex. RCS-95.) For instance, his report
notes that he did not see evidence of insufficiencies in the quantity
or quality of the radios. (Ex. RCS-95; Tr. 2302.) In addition to
being beyond an evaluation of the research of others, he based this
assessment on the post-inspection status of communication devices,
not the situation before Respondents purchased over 100 new devices.
(Tr. 141, 882, 2302, 2555-56; Ex. RCS-43.)

Dr. Lipscomb had a background in workplace
violence prevention in the healthcare setting, and her opinion on the
feasibility and effectiveness of this proposal is credited. (Tr.
1650-51, 1653-54.) She asserted that having a reliable and readily
available communication device will reduce the likelihood of injuries
from attacks. (Tr. 1650-53; Ex. C-94 at 26.) In terms of the need
to silently communicate assistance, witnesses explained that patients
would often escalate in response to audible Code Greens. Sometimes
this was because they realized there would be less staff in their
unit as workers moved to the unit from which the call came. (Tr.
142-43, 1518, 1651.) Respondents also realized there were areas
without ready access to communication devices. A site survey
conducted months before OSHA’s investigation identified a lack of
panic buttons at the Worksite and directed senior management to
“consider panic buttons in areas that do not have phones.” (Tr.
1870-71; Ex. C-78 at 2.) As for feasibility, according to Dr.
Lipscomb, having reliable communication devices with the capability
to ask for help silently was “commonplace” in Respondents’
industry and identified in the OSHA Guidelines and other sources as
an engineering control to address the hazard. (Tr. 1650-54; Exs.
C-94 at 19, 26, 33, C-95 at 10, 25, 32.)

Dr. Forman agreed that this proposal was feasible
and effective. At an adequately staffed Worksite, providing staff
with reliable communication devices would permit faster and more
efficient responses to requests for assistance when dealing with
aggressive patients and violence. (Tr. 1200-1; Ex. C-92 at 11-12.)
The ability to summon help more quickly could lessen the duration and
possibly the intensity of an assault. (Tr. 1200-1; Ex. C-92 at 12.)
Communication devices permit the effective communication of relevant
information needed to respond to an event appropriately. (Tr.
1196-97.) Dr. Forman explained the need for multiple effective
methods of communication. (Tr. 1301-10, 1394.) Other similar
workplaces utilize multiple methods to summon assistance depending on
the situation. (Ex. C-92 at 12.)

Other evidence supports the conclusions of the
Secretary’s experts. Witnesses addressed how having one
communication device for each staff member would improve staff safety
during incidents of workplace violence. (Tr. 137-144, 691, 794,
1516-17.) A former nurse explained how having a button to contact
security immediately was more efficient than the methods of obtaining
assistance at the Worksite. (Tr. 1516-17.) The abatement would
improve reliability and provide more ways to summon assistance,
including silently. (Tr. 142-43.) For example, therapists did not
have radios and did not work from the nurses’ station. (Tr. 1414;
Ex. C-94 at 25.) When confronted with workplace violence, a
therapist described needing to rely on someone else hearing her and
then having that person obtain further assistance. (Tr. 1432-33.)
Several witnesses discussed other healthcare facilities with systems
similar to the proposal for summoning assistance. (Tr. 401-2, 506,
508-9, 691, 693, 1200-1, 1516-17; Exs. C-43, C-92 at 12, C-94 at 26.)

The D.C. Circuit and the Commission found that
providing reliable communication devices was a feasible and effective
abatement method for workplace violence at behavioral health
facilities. In BHC , the D.C. Circuit upheld the ALJ’s
conclusion that the telephones and walkie-talkies used to summon
assistance during incidents of aggression at a behavioral health
hospital were inadequate. 951 F.3d at 564-65. Providing reliable
and readily available means of communication was feasible and
effective abatement for the hazard. 70
Similarly, in UHS-DE/Pembroke , the Commission concluded that
providing personal panic alarms for all employees would be a feasible
and effective means to materially reduce the hazard of workplace
violence. 2022 WL 774272 at *9.

In UHS Centennial , the ALJ found that
“implementing the use of walkie-talkies and/or personal panic
alarms would be feasible and effective” at abating the hazard of
workplace violence at a behavioral health facility. 2022 WL 4075583,
at *42. Employees already had some walkie-talkies at the time of the
inspection and, later, the employer increased the number of devices
such that each person could have one. Id . The OSHA
Guidelines and expert testimony indicated that “the use of
walkie-talkies and/or panic alarms would be effective in reducing the
likelihood or severity of the injury resulting from an act of patient
aggression.” 71

Akin to UHS Centennial , many aspects of the
proposed abatement were implemented after OSHA’s investigation
commenced. (Exs. C-92 at 12; C-94 at 36.) Respondents purchased
more radios for the Worksite. (Tr. 141, 882-83, 2447, 2555-56; Ex.
RCS-43.) The additional radios ensured every MHS working could be
assigned their own radio. 72
Further, there is no evidence that panic buttons could not be
implemented in additional locations beyond the A&R department. 73

The Secretary’s experts opined that this method
was feasible and effective. (Tr. 1200-1, 1301-2, 1650-53; Exs. C-92
at 11-12; C-94 at 25-26.) This type of abatement is widely used
throughout healthcare, including in the context of behavioral health.
(Exs. C-92 at 12; C-94 at 36.) Hence, as was the case in BHC,
UHS-DE/Pembroke , UHS-DE/Suncoast , and UHS Centennial ,
the Secretary showed that ensuring all staff members working closely
with patients have reliable communication devices is a feasible and
effective means of abatement.

Administrative Controls

Improved processes related to identifying and securing contraband

During OSHA’s investigation, incidents laid
plain the Secretary’s concerns with Respondents’ approach to
contraband. The proposed abatement includes several specific actions
to mitigate the hazard by improving methods for identifying and
securing contraband:

Develop and implement a policy in the [A&R] unit to secure
potential patient belongings upon arrival for assessment, such as
providing patients with a locker where they can secure personal
belongings. Minimize the length of time patients spend in common
areas with potential contraband, including weapons. Inspect patient
belongings in a secure area prior to escorting patient to the unit.
Develop and implement procedures for confiscating items in a manner
which reduces or eliminates risk to A&R employees. Consider
implementing a policy where local law enforcement is contacted to
secure contraband such as illegal substances or weapons. Develop a
means for A&R employees to keep their hands free and unobstructed
while escorting patients to the unit.

Dr. Lipscomb opined that this abatement method was
feasible and effective. (Tr. 1670, 1673-74; Ex. C-94 at 36.) Dr.
Forman agreed that modifying how workers screened and secured
patients’ belongings would effectively improve staff safety. (Tr.
1314-15; Ex. C-92 at 13-14.) As he explained, the “front door,”
i.e., upon arrival, is when contraband should be secured. (Ex. C-92
at 12.) He indicated that this is what occurs at the facility where
he works. Id. at 13. The CO noted that securing patient
belongings earlier in the admissions process reduces patient access
to weapons and reduces the risk of injury. (Ex. C-3 at 57-58.) Dr.
Staggs offered no opinion on the proposal’s feasibility or
effectiveness.

In addition to the expert opinions, more robust
procedures at other similar facilities and the changes implemented
after the inspection support finding this method to be feasible and
effective. Witnesses described screening procedures used at other
psychiatric facilities that provided more protection, such as
security personnel screening all belongings and screenings conducted
off-unit. (Tr. 701, 780-81; Ex. C-92 at 12-13, C-94 at 23-26.)

Respondents do not counter the expert opinions and
other evidence of feasibility and effectiveness. Respondents note
regulations impose requirements on handling patient belongings. (CS
Br. 104.) Still, they did not rebut the evidence that implementing
either the proposed abatement or something equally effective could be
done and would improve worker protection from the cited hazard. (Tr.
1400-3.)

There is no requirement compelling patient access
to contraband. Respondents do not contend that their training, which
directed that inventories would occur “upon arrival” was
inappropriate, let alone illegal. (Tr. 2892; Ex. RCS-30 at 2.)
Respondents also do not contend that their post inspection changes to
contraband screening and control violated any other applicable
regulation. After the knife incident, staff no longer returned
belongings to the patients after admission. (Tr. 902-3, 2430.) The
location of the belongings searches for the Hickory unit changed from
the patient’s bedroom to a separate room outside of the unit. (Tr.
2320.) Under the new approach, staff searched patients and their
belongings with the more effective equipment before the patient is
brought to a care unit. (Tr. 902-3, 1314, 1964, 2428, 2430; Exs. C-3
at 29, C-39.) Respondents also equipped the units with metal
detecting wands to use on patient belongings that had not been
processed in the Evergreen building. (Tr. 2428, 2430; Ex. C-39.)

The Secretary showed this abatement method’s
feasibility and effectiveness.

Implementing a Comprehensive WVPP, including conducting
debriefings after workplace violence incidents

The Secretary proposed that Respondents “implement
the Workplace Violence Prevention Program.” Essentially, the
Secretary calls on Respondents to properly implement the procedures
identified in their WVPP and related policies. Briefly, the proposal
calls for addressing several key deficiencies related to: (i) worker
participation and the WVPP’s accessibility, (ii) reviewing and
updating the WVPP, (iii) identifying hazards, and (iv) incident
reporting, investigations, and debriefings. (Tr. 144-57; Ex. C-3 at
55-56, 58-59.)

The Secretary further elaborated on how, as part
of the workplace violence prevention program, incidents of workplace
violence should be investigated and debriefed:

Conduct an investigation and debriefing after each act of workplace
violence, including near misses, with the attacked and/or injured
employee and other involved employees, including root cause or
similar analysis, lessons learned, and corrective actions to prevent
re-occurrence. Maintain accurate records of patient assault on
staff. Provide the attacked and/or injured employee and other
involved employees an opportunity to provide feedback about specific
measures that could prevent such future incidents. Review and
evaluate each workplace violence related incident, both on a
case-by-case basis and to monitor for trends in areas with high rates
of incidents such as the acute units. Thoughtfully review and
evaluate any formal or informal requests for increased staffing based
on unit acuity. Ensure that formal and informal requests are valued,
acknowledged, reviewed and evaluated, and the resultant outcome and
actions are communicated in the most effectual forum.

The Citation numbers these proposals as 3 and 7.
(Ex. C-1.) Item 7 is a more fulsome discussion of Item 3’s
directive to address the deficiencies in the existing policies
concerning incident debriefings. 74

On paper, the Worksite had elements of a workplace
violence prevention program. But Respondents neglected to implement
a “comprehensive and coherent approach to preventing
patient-on-staff violence.” (Tr. 144-45, Ex. C-94 at 14.) See
BHC , 951 F.3d at 565 (finding that a “comprehensively
considered and applied program would materially reduce the hazard”
of workplace violence). Neither individually nor collectively did
the Worksite’s policies and procedures set out a “comprehensive,
population-based approach to patient on staff violence.” (Tr.
144-57; Exs. C-3 at 32-54, C-92, C-94 at 16.)

Dr. Staggs offered no opinion on the WVPP’s
content, communication, or implementation. (Tr. 2302-3; Ex. C-95.)
He did not opine on the feasibility and effectiveness of the proposed
changes. Id. In contrast, Dr. Lipscomb asserted that
implementing this abatement was an effective component of reducing
the hazard. (Tr. 1606-8; Ex. C-94 at 21.) Based on her experience
and as identified in certain studies, implementing a comprehensive
WVPP with a strong management commitment and employee involvement is
effective at materially reducing workplace violence. (Tr. 1609-1615,
1621; Exs. C-94 at 20-21, C-95 at 12-14, C-97, C-98, C-100.) In
terms of feasibility, she noted the ability of other similar
facilities to adopt and implement such plans. (Exs. C-94 at 20-21,
C-96.) The proposal’s feasibility is also reflected by the fact
that it largely calls for Respondents to implement their policies and
procedures.

Worker Participation and Plan Accessibility

The Risk Management Director discussed the value
and need for direct care workers to be involved in abating the
hazard. (Tr. 2786). Respondents recognized this as a critical
component of mitigating the hazard. (CS Br. 42; Exs. C-95 at 12-13;
C-96 at 9-11.) But reality diverged from what Respondents claimed
they were doing to lessen the hazard. (Stips. 43-44; Tr. 149-52,
154-57, 1010, 1456-57, 1504-5; Exs. C-3, C-38, C-69, C-79.) The WVPP
did not incorporate genuine employee participation. (Tr. 1606-7,
1621-24, 1633-34; Exs. C-3, C-94 at 14, 18-19, 21, 43.) Workers were
not consistently aware of the Worksite’s WVPP or how to access it.
(Tr. 155-56; Exs. C-3, C-94 at 20.)

Dr. Lipscomb and the CO addressed how
appropriately incorporating these measures was feasible and would
effectively reduce the hazard. (Tr. 149-50, 1613; Exs. C-3 a 56-57,
C-94, C-98.) Respondents do not claim it would be infeasible or
ineffective to follow their WVPP’s requirement to have employee
participation or improve access to the WVPP. (Tr. 155-56, 1623-24;
CS Br. 93-94.) See HRI , 2019 WL 989735, at *16-20 (behavioral
health services provider recognized the need for employee input in
workplace violence prevention and provided numerous ways to provide
feedback that was then acted upon).

WVPP Review and Updates

Respondents contend it was their policy to review
the WVPP annually, with the reviews focused on the causes of employee
injuries from workplace violence. (Exs. C-22 at 7-8, C-78 at 2.)
They identified this as a means to reduce the hazard at their
Worksite. Id. Yet, this data was neither adequately
collected nor reviewed. In terms of the frequency of review,
Respondents scheduled it for review every two years, as opposed to
the annual review set out in the WVPP itself. (Tr. 1793; Exs. C-3,
C-22 at 1, 7; C-78 at 2; C-94 at 20.) Even so, bi-annual reviews had
not occurred. Id.

Routine review and monitoring assist with
implementing the plan and facilitate incorporating the lessons
learned through assessing past incidents. 75
The issue is how Respondents used the findings to mitigate the
violence workers experienced. Unfortunately, the root cause analyses
for employee injuries and corrective action plans contemplated by the
WVPP were not employed effectively to mitigate the hazard. (Exs.
C-22 at 7-8; C-94 at 20.)

Incorporating program assessment and updating
would reduce the hazard and was feasible. (Ex. C-94 at 20-21.)
Other facilities have done it, and the abatement correlated with
significant reductions in workplace violence related injuries. (Exs.
C-94 at 20-21, C-96.)

Turning to feasibility, besides the evidence of
other facilities, there’s also Respondents’ claims about the
Worksite’s WVPP. Respondents claimed the WVPP was updated in 2020.
(CS Br. n. 103.) The testimony they cite does not clearly support
the contention. (Tr. 1824.) Nevertheless, the parties agree that
the WVPP was reviewed and revised the following year, in 2021. (Ex.
C-94 at 20.) This shows that more frequent reviews and updates were
feasible.

Hazard Assessment

As part of implementing a workplace violence
prevention program, the Secretary proposes Respondents “conduct a
building-specific hazard analysis that analyzes the building as a
whole.” Expert testimony supports the method’s feasibility and
effectiveness. (Ex. C-94 at 19-20.) Assessments will prevent worker
injury and reduce re-occurrence of similar events. (Ex. C-3 at
56-57.)

Post-inspection actions support these conclusions.
In April 2020, after the inspection commenced, a UHS-DE employee,
Eric Wang, sent Ms. Kolln detailed analyses of patient aggression and
other criteria to use during future meetings of the PIC and PSC.
(Ex. C-49.) Mr. Wang directed Ms. Kolln to update and use the data
on a going-forward basis. Id. He explained that analyzing
detailed data should be part of the Worksite’s overall strategy of
“reducing patient aggression and restrictive intervention.” Id.

According to Ms. Kolln, the data provided was the
same information she previously used. (Tr. 2808.) However, there is
no evidence that the type of tracking and trending data Mr. Wang
provided in April 2020 had been discussed during any previous
committee meetings. (Ex. C-3 at 36-37, 51.) Ms. Kolln may have had
access to such information, but there is no evidence it was presented
or discussed in the detail and scope shown in the April 2020 charts
put together by Mr. Wang. (Exs. RCS-84, C-75, C-76.) That tracking
and trending information was far more robust than the information
shared in past meetings.

There is no debate on feasibility. Respondents
were able to implement more robust hazard assessment and analysis
procedures. (Ex. C-49.) Likewise, Mr. Wang’s email supports Dr.
Lipscomb’s testimony on its effectiveness. (Exs. C-49, C-94.) See
BHC , 951 F.3d at 565 (noting employer’s flawed process for
tracking and addressing patient-on-staff violence and upholding the
Secretary’s proposed abatement in the form of a comprehensive
workplace violence prevention program).

Incident Reporting, Debriefings, and
Investigations 76

The proposed abatement requires several changes to
reporting, debriefing, and investigating workplace violence. It
calls for implementing “an effective reporting process” and for
participants in workplace violence incidents to be debriefed. (Exs.
C-1 at 8, C-3 at 56, 58-59.) Debriefings are to include all involved
staff and the review of available camera footage. (Ex. C-3 at 56.)
The findings should be analyzed with appropriate changes implemented.
Id. at 56, 68-59. The results of the debriefings and
investigations are to be used to limit the number and severity of
future workplace violence incidents. Id. at 56-59.

Notably, the proposal aligns with the existing
WVPP and what management previously identified as important. (Tr.
144-45; Exs. C-3 at 56, C-22; C-79 at 8, C-92 at 19, 24, C-94 at 41.)
But Respondents’ protocols were less robust and inconsistently
followed. (Exs. C-22, C-94.) See BHC , 951 F.3d at 565
(Secretary’s proposed program “would more effectively and
consistently apply measures designed to reduce patient-on-staff
violence”). The WVPP in place during the inspection was sparse,
with many topics addressed with brief phrases and bullet points.
( See Ex. C-22 at 3-4.) Insufficient attention was paid to
investigating and analyzing employee injuries from the hazard. (Exs.
C-92 at 18-20, C-94.) Restraint and seclusion data was reviewed.
However, analysis of employee injuries from aggression did not occur
to the same degree. (Ex. C-92 at 18-19.)

To address the shortcomings of how Respondents
investigated incidents and used the findings, the Secretary proposes
revisions to their procedures to “conduct an investigation and
debriefing after each act of workplace violence, including near
misses.” (Ex. C-1.) These investigations should include analysis
and result in “corrective actions to prevent re-occurrence.” Id.
The debriefings should: “provide the attacked and/or injured
employee and other involved employees an opportunity to provide
feedback about specific measures that could prevent such future
incidents.” Id. Each workplace violence related incident
should be reviewed and evaluated “to monitor for trends in areas
with high rates of incidents such as the acute units.” Id.
Respondents should: “maintain accurate records of patient
assault on staff.” Id.

Dr. Forman explained how adequate post-incident
debriefing would enhance worker safety. (Ex. C-92 at 18-19.) He
characterized investigating and debriefing all workplace violence as
“essential.” Id. Dr. Lipscomb agreed, describing an
appropriate debriefing process as “critically important.” Id.
at 42. The proposed process allows informed decisions about the
corrective actions to prevent future staff injuries from workplace
violence. Id. Dr. Staggs did not address the WVPP’s
effectiveness or this method’s feasibility. (Ex. C-95.)

The WVPP states that analyzing aggression events
permits the identification of trends and the implementation of
appropriate corrective action. (Ex. C-22 at 3.) Respondents appear
to acknowledge that post-incident debriefings were inconsistent. (CS
Br. 110.) After the Citation’s issuance, they revised the
debriefing and incident investigation process. Id. at 40.
The changes included conducting video reviews with the staff involved
in the incidents of workplace violence. (Tr. 883-84; Ex. RCS-41.)
The forms also changed to allow for more input from staff and
leadership. (Tr. 888.) The changes improved worker safety. (Tr.
884-88.) In 2021, the Restraint Reduction Initiative also included
improved debriefing as part of its strategies to reduce the number of
restraints or seclusions. (Tr. 2613.) Those changes reduced the
number of restraint and seclusion events, which Respondents maintain
correlates with improving staff safety. (Tr. 888; CS Br. 36.)

Respondents argue that the Secretary’s use of
the phrase “near miss” in this proposal is unduly vague. (CS Br.
125.) However, Respondents used the same term. Workers were
expected to report “near miss” incidents. (Tr. 320-23, 1238-39,
1243; CS Br. 109.) And, they had a program to recognize when a
worker made a “good catch,” which was a “near miss” or
something that “could have been a risk.” (Tr. 323, 1858,
2777-79; Ex. C-22 at 2.) As used in the proposal, the term is not
unduly vague.

Respondents then pivot to assert that a near miss
of an incident is not cognizable under the general duty clause. (CS
Br. 110.) First, the Secretary is not citing Respondents for near
misses. Actual incidents of workplace violence, including those
resulting in serious injuries, occurred routinely. Respondents were
aware of the hazard and knew workers suffered injuries from it at the
Worksite. Second, the Secretary is arguing that to reduce incidents
of the hazard, a feasible and effective component of abatement is to
examine incidents in which serious injuries or death nearly occurred.
Respondents already required documentation of at least four “good
catches” or near misses per month. (Tr. 323, 1858, 2778-79, 2882.)
What the Secretary is proposing is for Respondents to address the
inconsistency in which incidents were reported and investigated.
Reports of serious safety issues resulted in little follow-up or
action. (Tr. 1009-10, 1036-37, 1438; Exs. C-2b, C-30, C-31, C-33,
C-34, C-38, C-42, C-43, C-52, C-53, C-54, C-55, C-56, C-57, C-58,
C-59, C-61, C-62, C-63, C-72.)

The Secretary showed that proposed abatement
methods 3 and 7 would be feasible and effective at materially
reducing the hazard.

Direct Care and Security Staffing

The remaining two proposals related to Worksite
staff:

Maintain staffing that is adequate to safely address changes in
patient acuity and patient census. Staffing levels must allow for
safety of staff during admission of new patients, behavioral health
emergencies, one-on-one patient assignments, staff breaks, and the
accompaniment of patients off-unit. Staffing levels must also allow
for and ensure safety during educational instruction on and off the
unit, therapeutic activity groups, and recreational periods. …

Designate specific staff with specialized training in security and/or
hire trained security specialists to monitor patients for potential
aggression on all shifts and to assist in preventing and responding
to Code Green events occurring in the units. Staff must have skill
necessary to re-frame issues, seeking how to keep the patient and
persons in the surrounding area safe, while responding to aggressive
behaviors. The staff designated to monitor and respond to patient
aggression should not be given other assignments, such as patient
rounds, which would prevent the designated person from immediately
responding to an alarm or other notification of a Code Green.
Conduct Code Green training sessions to allow all designated staff to
practice and evaluate their skills in a variety of environments and
scenarios.

This proposal is not that different from what
Respondents claimed occurred. Consistent with the other proposed
measures, the issue relates more to implementation. See BHC ,
951 F.3d at 565 (“incomplete and inconsistently implemented safety
protocols were inadequate to materially reduce the hazard posed by
patient-on-staff violence”). The proposal provides an approach to
address the gap between what Respondents’ policies and programs
called for, and how the hazard was addressed in practice. See
Gen. Dynamics , 599 F.2d at 464 (employers must “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”); Arcadian , 20 BNA OSHC at 2008 (violation
established when employer failed to free workplace of a recognized
hazard and there are feasible methods to abate or materially reduce
the hazard).

Maintain Sufficient Staffing

The proposed abatement does not provide the number
of workers necessary to protect patients or to address particular
acuity scenarios. The Secretary makes no claims about how many
workers Respondents need to provide medical care. Her argument is
that frequently there was not enough staff to implement abatement and
adequately protect workers from serious workplace violence injuries.
(Sec’y Br. 104-5.)

Dr. Staggs agreed that there are demonstrated
“links between nurse staffing and various adverse events in
hospitals.” (Tr. 2111.) And he concluded that, “adequate
staffing levels are crucial for patient and staff safety.” (Ex.
RCS-109 at 6.) Still, more nursing staff does not necessarily result
in a safer workplace. 77

Dr. Staggs’ research and the other studies he
relied on have the classic chicken or egg, which came first, problem.
He could not draw any conclusions about the direction of causality.
(Tr. 2188-89, 2295; Exs. RCS-109 at 1-2, 6; RCS-113 at 10.)
Facilities treating more violence prone patients tend to have more
staff. (Tr. 2295; Exs. RCS-109 at 5, RCS-113 at 9-10.) And, as
violence increases, facilities may add more staff. (Exs. RCS-109 at
2; RCS-113 at 10.) Besides the missing causal link, he acknowledged
other limitations in the research. The studies did not consider
patient diagnoses. The units studied were not representative of all
U.S. psychiatric units. In addition, the nature of the field
precludes the use of various controls. 78

At the hearing, Dr. Staggs suggested that the
Worksite’s staff level was not an “outlier.” (Tr. 2196.)
Neither this conclusion nor any supporting data are in his report,
and this conclusion is rejected. (Ex. RCS-95.) He did not recall
reviewing any information about the Worksite’s rate of assaults by
patients against staff. (Tr. 2196, 2263.) Such information was
available. (Tr. 1700; Exs. C-3 at 51, C-94 at 14.) Dr. Staggs also
may have had access to benchmarking and research information on
patient assaults and staffing. (Tr. 1700, 1763, 2101-5, 2108, 2190;
Ex. C-94 at 14.) He developed a database that was part of the
National Database of Nursing Quality Indicators (“NDNQI”). (Tr.
1761, 2106, 2114-15, 2123; Ex. RCS-109 at 1.) He did not review the
NDNQI to assess or compare the Worksite to other similar facilities. 79
In any event, employers must “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.

Dr. Staggs did not assess the adequacy of the
Worksite’s staffing. (Tr. 2259-60.) Respondents claimed, without
citation, that there was “no consensus as to what constitutes
adequate staffing in an inpatient psychiatric unit. (CS Br. 109.)
However, Doctors Lipscomb and Forman opined on the adequacy of
Respondents’ approach and this proposal’s effectiveness. They
acknowledged that some research on staffing is equivocal, but
persuasively addressed significant agreement on other aspects of
staffing. There is consensus that if staffing levels necessitate a
worker being left alone with aggressive patients, particularly with
the frequency that occurred at the Worksite, the staffing is not
adequately protective for workers. (Tr. 1667-68; Exs. C-92, C-94 at
28, 31-32.) Likewise, there is agreement that staffing levels need
to change in response to acuity. In practice, often, there were not
enough available on-site workers to prevent and mitigate workplace
violence. (Exs. C-92, C-94.)

Worksite conditions bear out Doctors Lipscomb and
Forman’s position. Understaffing made it more difficult to
adequately protect workers during patient aggression events. 80
It can cause a “cascading” series of workplace violence hazards.
(Ex. C-92 at 14.) Understaffing leads to injuries, which demoralize
staff, which leads to attrition, further exacerbating the root
problem of understaffing. (Tr. 1220-21, 2610; Exs. C-92 at 14,
RCS-41 at 7.)

Workers asserted that maintaining sufficient
staffing would reduce the hazard. A nurse described an event where a
patient placed an MHS in a headlock. (Tr. 1506-7.) Another patient
had to intervene before staff were able to arrive. Id. The
nursing supervisor explained that having more staff would have helped
in this situation. (Tr. 1508.) In another instance, multiple
patients behaved aggressively. (Tr. 753-57, 759-60.) Staff could
not contain the situation, and a nurse was injured. (Tr. 760-65,
767.) Adequate staffing could have prevented her injury. (Tr.
771-72.) In another matter, patient behavior escalated into what a
former lead MHS characterized as a riot and staff injury. (Tr.
985-90, 992-5; Ex. C-2b.) There was not enough staff to handle the
situation, and police had to be called. (Tr. 992-95.)

Post-inspection actions support finding that these
proposals effectively mitigate the hazard. Respondents added several
additional full-time positions. The Milieu Specialists work from
around mid-morning to about 9:30 p.m. every day. (Tr. 850-51, 856.)
They provide support, mentoring and additional help when patient
behavior escalates. (Tr. 572, 851, 1668-69, 1683, 1961, 2515, 2806;
Exs. C-76 at 3, 9, C-94 at 38.) They also fill in as MHSs when there
are fewer staff present than what the staffing grid calls for. 81

Respondents also added an additional float MHS to
the night shift. (Tr. 857.) This person was in addition to the
staff called for by the grid. Id. They added a Milieu
Manager, Program Managers, an Assistant Director of Nursing, and a
person to focus on recruiting and retaining employees. (Tr. 846-47,
850, 936, 1073, 1953-54, 1956, 1963, 2517-18, 2604; Ex. C-94 at 38,
40, 44; CS Br. 32.) The Milieu Managers can do a variety of things,
including filling in or providing extra support to the unit staff.
(Tr. 846-47, 850; Ex. C-94 at 40, 44.) The recruitment and retention
position has helped with having an adequate number of workers. (Tr.
859, 1073-74; Ex. C-94 at 44; CS Br. 31-32.) Management confirmed
that the new positions benefited worker safety. (Tr. 856-57, 1963,
2525.)

The OSHA Guidelines emphasize the importance of
having adequate staffing to materially reduce the hazard of workplace
violence. (Ex. C-95 at 10, 26.) The TJC Alert called on employers
to analyze staffing levels and assign sufficient staff to units.
(Ex. C-100 at 3, 5.) Doctors Lipscomb and Forman agreed. Dr.
Lipscomb determined that this proposal would materially reduce the
hazard of workplace violence and prevent incidents of staff injuries.
(Ex. C-94 at 33.) Dr. Forman explained that appropriate staffing
for patient acuity would yield “faster, better and safer outcomes
for staff.” (Ex. C-92 at 17.)

Respondents contend that they do not know what
sufficient or adequate staffing means. (CS Br. 109, 125.) At the
same time, they claimed that the Worksite’s staffing “can” be
adjusted for acuity and that “one of the primary duties of the
nurse supervisor is to ensure adequate staffing.” (CS Br. 26-28.)
The staffing policy indicated the facility was committed to providing
the appropriate number of personnel during all hours of operation.
(Exs. C-9 at 1; RCS-47.) Management was to ensure that the
appropriate staff were available for the patients served. (Exs. C-9,
RCS-47.) Thus, the issue is not that Respondents do not understand
the Secretary’s proposal. Their policies identified the need to
maintain adequate staffing, including by increasing staff for acuity
and the admission of more patients. (CS Br. 26-30, 68; Exs. C-64,
C-65, C-66.) The proposal is for Respondents to maintain sufficient
staffing in practice. (Exs. C-92, C-94.) See HRI, 2019 WL
989735, at *13 (finding behavioral health hospital’s practice of
“maintaining adequate staffing” was effective abatement for the
hazard of workplace violence).

Respondents also cited having one-on-one
processing with an agitated patient as a potential intervention to
address aggression before it results in actual violence. (CS Br. 34,
Exs. C-64, C-65, C-66.) One-on-one verbal interaction was frequently
used as a measure to address behavior before a patient engaged in
violence. (Tr. 2344; Exs. C-64 at 1, 6. 9, 12, 15, 18, 26, 37, 39,
42, 48, 53, 61, 63, 66, C-65 at 1, C-66 at 1, 5.) The form used for
treatment plans also identified “talking to staff” as a method to
help prevent patients from endangering others. (Exs. C-64 at 2, 11,
25, 35, 40, 52, 54, 75, 76, C-65 at 7.) After violent behavior,
staff or the patients would specify that one-on-one talks with staff
would help address future agitation. (Tr. 2344; Exs. C-64 at 4-5,
34, 70, 77, C-65 at 5.) Doctors also sometimes ordered one-to-one
supervision. But this precaution could only be implemented on the
shift during which it was ordered if there are enough MHSs in other
units to re-assign. (CS Br. 29; Tr. 2370-71; Exs. C-3 at 43, C-58.)

The Secretary is not arguing that one-on-one
discussions or assignments necessarily prevent any particular patient
from engaging in or repeating violent acts. The patient statements
indicating that one-on-one verbal conversations would benefit them if
they were agitated were not offered for the truth of those
assertions. (Tr. 635-36.) The point is that identifying triggers
and addressing agitation through verbal de-escalation was a method
Respondents found reduced workplace violence. (CS Br. 33-36, 39,
71.) Neither this nor many other actions the WVPP called for can be
implemented without adequate staffing. (Ex. C-3 at 57; Sec’y Br.
96-98, 107, 113.)

The Secretary showed that this abatement method
would materially reduce the hazard. See BHC , 2019 WL 989734,
at 33 (concluding that a feasible method of abatement for the hazard
of workplace violence at a behavioral health facility would be for
the employer “to determine the appropriate number of staff each
unit requires based on acuity of the workplace violence hazard”);
UHS Centennial , 2022 WL 4075583, at 37, 44, 46-51 (discussing
how addressing the restraints imposed by insufficient staffing would
mitigate the hazard).

Dedicated Staff for Security

Respondents trained direct care workers in
techniques to handle patient aggression. Too often, there simply
were not enough people available when violence commenced to implement
the actions called for and to minimize the risk of serious worker
injury. Part of the Secretary’s proposal is to have designated
staff who can immediately respond. (Tr. 177-78.) Doing so would
reduce the hazard by preventing injuries and minimizing their
severity. (Tr. 177-80, 253-54.) Trained security would be an
effective deterrent to violent patient behavior. (Tr. 179; Ex. C-3
at 58.)

This proposed method was supported by expert
testimony and its use at other similar worksites. See Pepperidge
Farm , 17 BNA OSHC at 2034. Doctors Forman and Lipscomb detailed
how having dedicated response staff, as described in the proposal,
would decrease employee exposure to the cited hazard and prevent
injuries. (Exs. C-92 at 12-13, 17, C-94 at 37, 39-40.) Dr. Forman
has extensive experience working in medical facilities where specific
individuals were dedicated to security tasks. (Ex. C-92 at 17.)
Unlike staff with multiple roles, security can respond faster to
requests for assistance. (Tr. 177; Exs. C-92 at 17, C-94 at 37.)
When responses are delayed, the risk of injury and the potential for
more severe injury increases. (Ex. C-94 at 37, 40.) This abatement
has a preventative effect in addition to better handling incidents
that arise. (Tr. 1226-28, 1231; Ex. C-92 at 17.) Dr. Forman noted
that the presence of security staff during verbal de-escalation can
make patients realize that violence will not achieve what they think
it will. (Ex. C-92 at 17.) Dr. Lipscomb similarly opined that this
abatement method would materially reduce the likelihood of injury.
(Tr. 1675-77, 1682; Ex. C-94 at 37, 40.) Hiring and training
security staff to work in behavioral health is a “best practice”
in workplace violence prevention. (Ex. C-94 at 38.) See BHC, 951
F.3d at 566 (upholding abatement that aligned with “well-known
industry best practices”). The OSHA Guidelines and TJC Alert cite
using security to reduce the hazard. (Tr. 1679-82, 1732-33; Exs.
C-95 at 10, 14, 26, C-96 at 21-22, C-100 at 3, 5-6.) And the OSHA
Road Map provides examples of its successful implementation at
behavioral health facilities. (Exs. C-94 at 38, C-96.) See UHS
Centennial , 2022 WL 4075583, at *30-32 (discussing the OSHA
Guidelines, OSHA Road Map, and TJC Sentinel Alert).

Former workers explained the effectiveness of this
abatement in addressing the hazard in other facilities where they
worked. (Tr. 417-18, 700-01, 780-81, 1457-58, 1510-12.) See
Pepperidge Farm , 17 BNA OSHC at 2034 (“successful use of a
similar approach elsewhere” and expert testimony supported finding
abatement method was effective and feasible). All the psychiatric
facilities where a former nurse supervisor worked after leaving the
Worksite had security officers, and she found such staff very
helpful. (Tr. 417-18.) Another witness discussed the University of
New Mexico Hospital, which has employees who specialize in security
services respond to codes. (Tr. 780-81.) Similarly, Ms. Wilkosz has
worked at numerous other psychiatric facilities, and all of them had
security. She explained that security comes in as a show of support,
and their presence often causes patients to settle down. (Tr.
1510-12.) Workers also identified adding security as a method to
increase safety in Respondents’ 2020 Safety Survey. (Tr. 1897; Ex.
C-70.) Several workers indicated that based on their experience,
security would increase employee safety. (Tr. 417-18, 781, 789,
1457-58, 1510-12.)

Against this evidence is the testimony of the CEO
and Dr. Staggs. The CEO took a negative view of “security guards”
who “do not do well with de-escalating patients” and those who
respond with a “law enforcement attitude.” (Tr. 2901-2.) He was
not asked about the Secretary’s specific proposal, which calls for
either “designated specific staff with specialized training in
security” or “trained security specialists.” (Tr. 177-78; Ex.
C-1.) He did not claim that workers who had undergone Respondents’
training in de-escalation and other techniques and had to follow
Respondents’ policies would inappropriately respond. Such an
approach is in place at other facilities. (Tr. 817-18, 1164,
1230-32.) For example, a nurse explained that her current in-patient
psychiatric facility has security who are trained in a technique
similar to the SAMA training that the Worksite used. (Tr. 817-18.)
The CEO did not address the widespread use of security in the
relevant industry. (Tr. 417-18, 700, 780, 1139, 1149, 1510-12,
1680-81; Exs. C-92 at 12-13, 17; C-94 at 32-33, 38-39; C-96.)

The Secretary is not calling for personnel without
training on responding appropriately to behavioral health
emergencies. The CEO’s concern rings hollow considering the
frequency with which employees needed to rely on actual law
enforcement to respond to behavioral health emergencies at the
Worksite. The Secretary proposes having trained staff on-site to
contain violence better before actual law enforcement is necessary.
See UHS-DE/Suncoast , 2023 WL 2388069, at *96-99 (having
designated staff to respond to emergencies was preventative rather
than the reactionary approach of calling law enforcement after
situations became dangerous).

Similarly, Dr. Staggs’ testimony did not rebut
or undermine the Secretary’s evidence. He lacked experience with,
or expertise in, working with a dedicated response staff in a
psychiatric setting. He was not accepted as an expert in how to
abate the hazard of workplace violence. Ultimately, the staffing
studies are inconclusive. Some studies drew no conclusions on the
effect of security on assault rates and others noted benefits to
security. (Tr. 2271-7, 2244-46, 2275-76.) Some were of weak design
and were close to being a collection of anecdotes. (Tr. 2287-89.)

Neither Dr. Staggs nor the other record evidence
sufficiently rebutted the opinions of Doctors Lipscomb and Forman.
The record supports the conclusions of the Secretary’s experts and
the CO. Feasibility and effectiveness are also shown by actions
taken after the inspection commenced. There are now rapid response
teams and additional staff. (Tr. 1539; Ex. C-94 at 38.) The
response teams do not have specific patient care duties and are free
to respond to psychiatric emergencies. (Tr. 2714-15; Exs. C-94 at
38; C-66 at 5.) These teams have been a success, according to Dr.
Gray. (Tr. 2714-15.)

The Secretary established that having designated
staff, i.e ., those without other assignments that would
prevent them from immediately responding to aggression, would be an
effective method of reducing the cited hazard.

Additional Evidence of Feasibility

Among other evidence, the Secretary showed the
feasibility of the proposed abatement methods through: (1) the
testimony of conscientious experts, familiar with the industry; (2)
Respondents’ ability to add multiple new staff positions after the
inspection commenced; (3) Respondents’ size and ability to pay for
additional abatement measures; and (4) the successful implementation
of similar abatement methods elsewhere.

Looking first to the experts, Dr. Staggs offered
no opinion on the feasibility of these or any other of the
Secretary’s abatement proposals. Dr. Lipscomb opined that the
proposals were feasible. (Tr. 1577, 1654, 1668-69, 1674-76, 1678-83;
Ex. C-94.) She noted that the OSHA Road Map provides examples of how
other employers in the industry used security. (Tr. 1678-83; Ex.
C-96.) Dr. Forman also opined that the abatements were feasible.
(Tr. 1372; Ex. C-92 at 24.)

By the time of the hearing, Respondents had
revised and clarified their staffing policies. For instance, the
form used to request additional staffing now included guidance on the
conditions that call for adding more staff per patient. (Tr.
2559-60; Ex. RCS-91.) One of the specified factors is an episode of
violence. (Tr. 2559-60.) There is no evidence the changes had any
significant cost or impacted profitability. (Tr. 2003; Exs. C-89,
C-90.)

After the inspection commenced, several new
full-time positions were added. This includes the Milieu Specialists
and overnight MHS float. (Tr. 572, 857, 1539, 1959-60, 2516,
2614-15, 2806-7.) To the extent that these new positions were not
enough for Respondents to implement these proposed abatement methods,
the Worksite’s former CFO discussed how the Worksite could have
afforded to have higher staffing levels, such as having workers who
could assist in preventing and responding to Code Green events. 82
The former CEO, Brandon Askew, indicated that Cedar Springs was
profitable and that it did not have to maintain any minimum profit
level. (Tr. 1989-90, 2003, 2037-40, 2078-79; Exs. C-89, C-90.) The
profitability statistic on Respondents’ “key indicator report”
is the contribution margin. (Tr. 2076-78; Ex. C-90.) Mr. Askew
believed the Worksite should have 19.2% “contribution margin” to
be considered profitable. 83
From May 2019 through May 2020, the Worksite’s margin was 30.3%,
much higher than the profitability threshold Mr. Askew identified.
(Tr. 2046-47; Ex. C-90; Sec’y Br. n.38.) According to Mr. Askew,
Cedar Springs could have added twelve additional around-the-clock MHS
positions and would still have been profitable. (Tr. 2049-51.) The
average cost per full-time employee in 2020 at the Worksite was
$73,798, including benefits. (Tr. 1994-95, 2032-33, 2037-38,
2040-41, 2045, 2062, 2078; Exs. C-89, C-90.) An MHS’s salary would
be lower than that average amount. 84

The post-inspection financial data is consistent
with his testimony. Respondents added several positions after the
inspection commenced and again after the Citation’s issuance. The
Worksite’s contribution margin, a key indicator of profitability,
remained significantly above the margin the CFO identified to remain
profitable. (Tr. 2003, 2038, 2076-78; Exs. C-89, C-90.) Thus, not
only could the Worksite remain profitable, there is also no evidence
the proposed abatements would “clearly threaten” Respondents’
“economic viability.” Nat’l Realty , 489 F.2d at 1266 n.
37.

Other ALJs have also found similar proposals to be
effective abatement for the hazard of workplace violence. In
UHS-DE/Suncoast , no staff was tasked only with
security-related responsibilities. 2023 WL 2388069, at 69, 96. The
proposed abatement included two measures calling for designated staff
to prevent and respond to violence. 85
The ALJ determined that the abatement would be effective mitigation
for workplace violence. Id. at 89, 99. See also BHC ,
2019 WL 989734, at 32-33 (employer added a security mental health
technician without ongoing direct patient care responsibilities to
assist with safety concerns). UHS-DE/Pembroke addressed
another analogous situation. There, the Secretary proposed that the
employer “provide security staff and/or crisis intervention
specialists on all three shifts to assist in preventing and
responding to violent events.” 2022 WL 774272, at 41, 50-52. It
required the behavioral health facility to have “employees without
specific direct care tasks focused on safety who could immediately
respond to actual or threatened incidents of violence.” Id. at
*51. The ALJ concluded that the Secretary established that the
proposed abatement would materially reduce the hazard and was
feasible. 86

In sum, expert testimony and the actions taken at
similar worksites established this proposed method as feasible and
effective mitigation. See Pepperidge Farm , 17 BNA OSHC at
2034. Feasibility and effectiveness are also shown by Respondents’
post-inspection abatement and by their claims that they can implement
their policies.

Feasibility and Effectiveness Established

The Secretary showed there were additional
feasible measures Respondents could have taken to further reduce the
number and severity of incidents of the hazard. Respondents knew
protective workstations, reliable communication devices, and a fully
implemented WVPP were critical means to address the hazard. It is
readily apparent that reliable communication devices and the WVPP
require adequate staffing to effectively reduce the hazard to the
extent feasible. Respondents partially implemented several of the
proposed abatement methods, including maintaining higher staffing
levels, and remained profitable. (Tr. 2003; Exs. C-89, C-90.) As
discussed by Doctors Lipscomb and Forman, and in the Guidelines, OSHA
Road Map, and TJC alert, other similar employers were able to
implement the abatement the Secretary proposes.

Single-Employer

In some circumstances, the OSH Act’s remedial
purposes are best effectuated by treating interrelated entities as a
single-employer. C.T. Taylor Co., Inc ., 20 BNA OSHC 1083,
1086-88 (No. 94-3241, 2003) (finding that in certain circumstances,
the purposes of the OSH Act, including effective enforcement, “are
well served” by holding two separate legal entities responsible for
a violation); Altor, Inc., 23
BNA OSHC 1458, 1463-64 (No. 99-0958, 2011), aff’d,
498 F. App’x 145 (3d Cir. 2012)
(unpublished) . The Commission looks at three factors to
determine whether the entities should be treated as a single-employer
and be responsible for a single violation of the OSH Act.
UHS-DE/Pembroke , 2022 WL 774272, at 2; UHS-DE/Suncoast ,
2023 WL 2388069, at 3-10. First, do the entities share a common
worksite? 2022 WL 774272, at 2; 2023 WL 2388069, at 3. Second,
are the entities interrelated and integrated for safety and health
matters? 2022 WL 774272, at 2; 2023 WL 2388069, at 3. Third, do
the entities share a com mon
president, management, supervision, or ownership? 87
The Secretary bears the burden of establishing a single-employer
relationship. 2022 WL 774272, at 2; 2023 WL 2388069, at 3. See
also Loretto , 23 BNA OSHC at 1358 n.4.

The Commission twice addressed whether UHS-DE
operated as a single-employer with an affiliate. UHS-DE/Pembroke ,
2022 WL 774272, at 2; UHS-DE/Suncoast, 2023 WL 2388069, at
3. Like the present matter, those cases concerned behavioral health
hospitals for which employees of each entity had responsibilities for
the same workplace. 2022 WL 774272, at 3; 2023 WL 2388069, at 4.
UHS-DE and the hospitals were “interrelated and integrated” with
respect to health and safety matters. 2022 WL 774272, at 4-5; 2023
WL 2388069, at 4-9. In terms of common management, like here, the
CEOs of the hospitals were employed by UHS-DE. 2022 WL 774272, at
6; 2023 WL 2388069, at 4-5. In both cases, the Commission found
that all three factors weighed in favor of finding a single-employer
relationship. Id. The same finding is appropriate here.

Common Worksite

“Cedar Springs’ address listed on its federal
corporate tax return is 367 S. Gulph Road, King of Prussia, PA
19406.” (Stip. 20.) The parties stipulated that UHS-DE’s
“corporate address” is at the same location. 88
However, the Worksite is in Colorado. (Stip. 3; Exs. R-UHS 3, R-UHS
6.) “UHS-DE does not own the property where Cedar Springs Hospital
is located.” (Stip. 49.) The Management Agreement between UHS-DE
and Cedar Springs indicates that Cedar Springs “owns” a
behavioral health facility in Colorado. (Ex. C-84.)

Two business addresses do not preclude finding a
common worksite. 2022 WL 774272, at 3; 2023 WL 2388069, at 4. See
also A.C. Castle , 882 F.3d at 42 ( noting
that while a shared headquarters or business address “generally
satisfies the common worksite factor,” it is not “necessary”).
While two entities can “have different principal addresses and
perform their primary work at different locations, the central
inquiry is whether they share a common worksite.” 2022 WL
774272, at *3.

Cedar Springs employed most of the on-site
personnel. (Stip. 51.) Still, UHS-DE approves and employs those who
hold the key supervisory positions of CEO and CFO. ( Stips.
21, 25, 26; Tr. 1917-18, 1979-80; Meloni Dep. 19:10-15, 21:13-24,
22:1-5.)
The CEO was the direct supervisor of multiple people at
the Worksite, including the CFO, the Director of Risk Management, the
Director of Admissions and Referrals, the Human Resources Director,
and the Director of Plant Operations. (Stips. 21, 25; Tr. 1919-20,
1981.) The CFO was often at the Worksite, including in the patient
care units. (Tr. 1984.) He supervised several Cedar Springs’
employees and had hiring and firing authority. (Tr. 1981-82.)
Additional UHS-DE employees were often at the Worksite and involved
in addressing safety. (Stip. 42; Tr. 904, 916-17, 1240, 1859,
1863-64, 1867-68; Exs. C-29, C-45, C-77, C-78, C-79, C-80.)

These and other facts support finding a common
worksite. Advance Specialty Co ., 3 BNA OSHC 2072 (No. 2279,
1976) compels no different conclusion. (UHS Br. 31, 34, 41, 51.)
That case held that mutual access to a shared hazard may be
sufficient to establish a common worksite. 3 BNA OSHC at 2076. In
this matter, the parties stipulated that employees of both entities
were exposed to the cited hazard at the Worksite. (Stips. 7-8). See
UHS-DE/Pembroke , 2023 WL 3243988, at 1 (concluding that mutual
access is not required to find a common worksite but, in any event,
workers from both entities had such access). In short, the common
worksite factor supports finding a single-employer relationship
between UHS-DE and Cedar Springs. See 2022 WL 774272, at 3
(finding the presence of one UHS-DE employee and involvement of
additional UHS-DE employees sufficient to show a common worksite);
2023 WL 2388069, at *4 (finding a common worksite when three UHS-DE
employees worked alongside other hospital employees at the same
location); C.T. Taylor , 20 BNA OSHC at 1087 (finding single
employer relationship when both entities shared an office and had a
presence at the site where the hazard was located).

Interrelation and Integration

Very much akin to the facts of UHS-DE Suncoast
and UHS-DE/Pembroke , Cedar Springs and UHS-DE were
interrelated and integrated when it came to workplace safety,
including in their approach to protecting their employees from the
cited hazard. (Stips. 7-8.) Hence, this factor also favors finding
a single-employer relationship. UHS-DE/Suncoast, 2023 WL
2388069, at 4; UHS-DE/Pembroke , 2022 WL 774272, at 4
(finding UHS-DE and a behavioral health facility had interrelated and
integrated approaches to safety and health matters). See also
C.T. Taylor , 20 BNA OSHC at 1087 (shared inquiries into safety
line demonstrated that two entities “handled safety matters as one
company”).

UHS-DE was involved in the Worksite’s tracking
of worker injuries, including those occurring from workplace
violence. “UHS-DE Loss Control Managers handle Cedar Springs
worker’s compensation claims and track worker’s compensation
expenses.” (Stip. 41.) UHS-DE retains a contractor (Sedgwick) to
handle employee injury reporting for the Worksite and compile OSHA
300 logs. (Stip. 39-40; Tr. 909, 1059-60, 1064-65, 1067; Meloni Dep.
18:19-24, 19:1-3; Exs. C-3 at 47, C-12 thru C-17.) When workers call
the reporting line, they were often asked for their “UHS location.”
(Exs. C-12, C-13, C-14, C-17.) For reported injuries, someone from
UHS-DE works with Cedar Springs employees to obtain more information.
(Tr. 909-13, 1059-60; Exs. C-3 at 45, C-12, C-16, C-44, C-48.)
UHS-DE employees sometimes instructed Cedar Springs employees to take
further steps related to the reported injuries. Id. Sometimes
a UHS-DE employee is the injured worker’s “loss control manager,”
and may call the injured worker directly. (Stip. 42; Tr. 909, 1818;
Exs. C-12, C-16, C-17, C-27.) The injured employees are directed to
speak to the UHS-DE employee when they call. Id.

UHS-DE provides support to maintain the MIDAS
database, which is used to record some incidents of patient-to-staff
aggression. (Stip. 38.) UHS-DE can access data, such as patient
aggression information from MIDAS. (Tr. 1859-61, 2807-8; Ex. C-49.)
Cedar Springs employees also had access to UHS-DE’s data to compare
the Worksite with similar facilities. (CS Br. 73 n. 84; Tr. 905.)

The interrelation and integration are also shown
by: (a) the Management Agreement, (b) the involvement of UHS-DE’s
personnel at the Worksite, and (c) UHS-DE involvement in training.

Management Agreement

“UHS-DE is not a licensed healthcare provider.”
(Stip. 50.) It “performs management services for Cedar Springs
pursuant to a Management Agreement.” (Stip. 28; UHS-DE Br. 1, 12,
14, 35-38.) The agreement tracks the one the Commission addressed in
UHS-DE/Pembroke. (Ex. C-84 at 2-3.) Under it, UHS-DE is
responsible for “(a) the billing system; (b) the collection system;
(c) the disbursement system; (d) the payroll system; (e) the
insurance claim system; (f) the management information system; and
(g) the patient safety improvement system.” (Stip. 31; Ex. C-84 at
2-3.) See UHS-DE/Pembroke, 2 022 WL 774272, at *5
(quoting identical language from the management agreement between
UHS-DE and Pembroke). The agreement also indicates that UHS-DE will
provide Cedar Springs with personnel “necessary for the management”
of the Worksite. (Tr. 1966-68; Exs. C-45; C-84 at 4.)

The management agreement reflects UHS-DE’s
authority over the Worksite’s budget and finances. See 2022
WL 774272, at 5. UHS-DE assists Cedar Springs with preparing its
annual capital and operating budgets. (Tr. 1991-2, 1994-95; Exs.
C-84 at 2, C-89.) It requires Cedar Springs to pay a monthly fee and
takes that fee directly from Cedar Springs’ accounts. 89
The CFO did not know how the fee amount was determined and had no
role in negotiating it. (Stip. 29; Tr. 2002, 2052-53.) “UHS-DE
provides and administers a number of systems for Cedar Springs,”
including ones for payroll and benefits, the billing system, the
collection system, the disbursement system, and the insurance claim
system. 90
UHS-DE “files and certifies Cedar Springs’ federal income tax
returns.” (Stip. 36.) And UHS-DE provides approved vendors, and
orders and purchases some inventory and supplies. (Tr. 1964-65; Ex.
C-84 at 2.) See UHS-DE/Pembroke , 2022 WL 774272, at 5
(finding UHS-DE authority over budget and finances as addressed in a
management agreement persuasive support for a single-employer
relationship).

UHS-DE provides legal services to Cedar Springs,
assisting with the compliance of “all laws, rules, regulations,
interpretive guidelines,” and other requirements. (Ex. C-84 at 3;
Stip. 39; Meloni Dep. 34:9-11, 41:19-20, 55:20-24, 56:1-2; UHS-DE Br.
16, 37-38.) The UHS-DE legal department must review all contracts
when Cedar Springs wants to engage someone or some entity for
products or services. (Stip. 39; Meloni Dep., 55:20-23, 56:1-2.)
UHS-DE administers a hotline to which employees can raise compliance
concerns, including those related to safety. (Tr. 920, 922-23; Ex.
C-72.) Cedar Springs reported the start of OSHA’s investigation to
UHS-DE and UHS-DE was to provide “support” throughout the
process. (Exs. C-36, C-76 at 4-5, C-84 at 3.) The UHS-DE legal
department wanted to know about all OSHA investigations. (Ex. C-36.)

Contrary to UHS-DE’s assertions, the management
agreement supports concluding that the cited entities have integrated
and interrelated operations. See UHS-DE/Pembroke , 2022 WL
774272, at 4-5 (finding that a similar management agreement between
UHS-DE and a behavioral health facility supported finding that the
two entities were a single-employer); UHS-DE/Suncoast , 2023 WL
2388069, at 4-5 (rejecting the employer’s attempt to characterize
UHS-DE’s managerial responsibilities at the facility as “resource
sharing”).

Personnel

UHS-DE employed the CEO, CFO and Chief Operating
Officer in training(“COO”) for the Worksite. 91
The CEO was responsible for ensuring staff safety and preventing
staff injuries. (Tr. 1920-21.) He participated in key Worksite
committees. (Tr. 1920; Exs. C-74, C-75, C-76.) He was responsible
for hiring, firing, and managing Cedar Springs’ staff. (Tr. 834,
1054, 1816, 1920.) See UHS-DE/Pembroke , 2022 WL 774272, at *4
(considering the CEO’s responsibility for hiring, disciplining, and
firing hospital staff to be a key reason for finding the second
element of the single-employer test to be met). He also oversaw
senior department directors such as the directors of Medical,
Nursing, Human Resources, Plant Operations, Performance Improvement
and Risk Management. (Stip. 25; Tr. 834, 1054, 1816, 1920.)

The CFO is responsible for managing the Worksite’s
finances. (Stip. 26; Tr. 1980-81.) He was part of the Board of
Governors and Performance Improvement Committee. (Tr. 1983; Exs.
C-76.) UHS-DE’s Regional Vice President of Operations reviewed the
Worksite’s budgets, and they were approved by UHS-DE’s Vice
President of Operations. (Tr. 1991-92; Ex. C-89.) “UHS-DE has
final approval of Cedar Springs’ budgets,” and “must approve
any capital expenditure over $5,000.00.” (Stip. 33, 34.) It
selects where the Worksite’s revenue is deposited and certifies
Cedar Springs’ federal income tax returns. 92
The CFO received a bonus if Cedar Springs exceeded its predicted
profit for the year. (Tr. 1985, 1997; Ex. C-89.)

The CEO and CFO sit on the Board of Governors.
(Stip. 27; Tr. 852-53, 1920, 1923, 1983-84; Exs. C-76, C-85 at 4.)
See UHS-DE/Suncoast , 2023 WL 2388069, at 5 (CEO’s
involvement with Governing Board weighed in favor of finding
interrelation and integration of operations); UHS-DE/Pembroke ,
2022 WL 774272, at 4 (citing the involvement of UHS-DE employees in
an advisory board that sets policy supported finding of interrelation
and integration). The Board of Governors (also called Governing
Board) is responsible for “planning, management and operational
activities,” including approving changes in Worksite policy. 93

Additional Cedar Springs’ employees, including
the Risk Management Director (Kolln) and the Director of Nursing
(Mattson), report to the CEO and other UHS-DE employees. (Tr. 903-4,
1093, 1095-96, 1830, 1856-59; Meloni Dep. 15:7-14.) Ms. Kolln must
send the monthly reports and provide other metrics to a UHS-DE Risk
Manager. (Tr. 1830, 1857-59, 1874; Ex. C-88.) Ms. Mattson
supervised the medical staff and clinical care team along with the
Medical Director. (Tr. 923-24, 2072; Stip. 25; UHS-DE Br. 21.) Ms.
Mattson attends mandatory monthly nursing calls with the UHS-DE
Divisional Director of Nursing. (Tr. 903-4.)

UHS-DE/Pembroke involved a similar
structure. 2022 WL 774272, at *4. The Commission considered the
Director of Nursing and the Risk Manager reporting to UHS-DE strong
support for finding that UHS-DE manages daily operations. Id .

Other UHS-DE employees visit the Worksite to
assess safety matters:

The following UHS-DE employees conducted site visits of Cedar Springs
Hospital in 2019:

a. John Benich, Senior Loss Control Manager – 4/24/2019;

b. Patrick Wilder, Divisional Director of Clinical Services – 3/20
to 3/21 2019; 4/30 to 5/2/2019; 5/8/2019; 6/27/2019; 7/19/2019;
7/31/2019; 8/19 to 8/22/2019; 10/3/2019; and 12/2 to 12/5/2019;

c. Kendra Stea, Program Manager/Clinical Trainer – 6/4 to 6/6/2019;

d. Mickie Merian, Regional Risk Manager – 5/29 to 5/30/2019;

e. Karl Baratschi, Corporate Risk Management – 8/22/2019; and

f. Glen Matthews, Milieu Specialist – 9/30 to 10/3/2019.

(Stip. 42.) Their
reviews have included making recommendations and advising actions
related to the cited hazard. ( Tr.
916-17, 1859, 1863, 1867-68; Ex. C-29, C-77, C-78, C-79 .)
For example, a UHS-DE Loss Control department employee’s visit was
to include discussions about OSHA and the Worksite’s WVPP. (Tr.
1867-68; Exs. C-29, C-78.)

Training

Cedar Springs’ employees are required to take
certain trainings and follow UHS-DE’s Code of Conduct. (Tr. 908,
1110, 1114-17, 1871, 1933, 2893-94; Exs. C-3 at 49, C-47, C-81, C-82,
C-83, C-86, RCS-18 at 13; Meloni Dep. 14:1-5, 22:6-16, 37:19-24,
38:1-3.) Of particular relevance to assessing interrelation and
integration for this matter, Cedar Springs’ employees were required
to attend UHS-DE’s courses on Preventing Workplace Violence and
Corporate Compliance. (Tr. 1113-17; Exs. C-47, C-48, C-82.) This
training was generic in that it could be applied to any UHS-DE
behavioral health hospital. (Tr. 1115-17; Ex. C-82.) See
UHS-DE/Suncoast , 2023 WL 2388069, at 56-57 (describing
similar generic workplace violence training). Many training and
other materials refer to UHS-DE or UHS. (Tr. 1871-72, 1991; Exs.
C-82, C-89, RCS-17 at 2, RCS-18 at 13, RCS-21 at 4, RCS-22 at 39,
C-83.) See UHS-DE/Suncoast , 2023 WL 2388069, at 4-9 (finding
that using UHS-DE’s policies, forms, and templates, was evidence of
a single-employer relationship).

The Human Resources Director attended multiple
UHS-DE trainings. (Tr. 1105-10; Ex. C-40.) He was instructed to
review and ensure that the Worksite adopted model policies provided
by UHS-DE. (Tr. 906, 1105-10; Ex. C-40.) The policies included ones
related to workplace violence. (Tr. 1109; Ex. C-40; Meloni Dep.
13:13-24.) UHS-DE specifies certain things to include in Cedar
Springs’ restraint and seclusion policy. (Tr. 906; Ex. RCS-22 at
39.) UHS-DE provided nursing admission assessments and daily
progress note forms and instructed Cedar Springs to use them. (Tr.
907-8.) Cedar Springs is required to use a UHS-DE approved incident
report form, adopt UHS-DE’s HPR (Healthcare Peer Review) Policy,
and use UHS-DE’s HPR Dictionary when entering incident reports.
(Tr. 1872-74; Exs. C-83, RCS-18 at 13.) UHS-DE required the Worksite
to have a WVPP and provided a template. (Tr. 1817; Exs. C-27, C-28.)
Once prepared, UHS-DE reviewed the WVPP and provided related
training materials. (Tr. 1818-22; Exs. C-27, C-28.)

The Secretary established that Cedar Springs and
UHS-DE are interrelated and integrated in their overall operations
and in health and safety matters. See 2023 WL 2388069, at *9.

Common Ownership and Management

UHS-DE suggests that there had to be parity where
the employee served as a leader for both Cedar Springs and UHS-DE.
That is not the test. Common management can mean that one entity’s
employee oversees the other entity’s financial, executive, or
operational aspects. UHS-DE/Pembroke , 2022 WL 774272, at
*5-6. The focus is on the relationship between the entities at the
relevant worksite for the citation. Id.; C.T. Taylor , 20 BNA
OSHC at 1087 n.7.

The cited entities are linked through the CEO,
CFO, and other UHS-DE employees. 94
Key oversight committees were either led by or had UHS-DE employees
as members. (Tr. 1701, 1920, 1982-84, 2715.) Both share the same
ultimate corporate parent. See Wal-Mart Stores, Inc. v. Sec’y
of Labor , 406 F.3d 731, 737 (D.C. Cir. 2005) (relying on the fact
that two stores had the same “controlling corporation” to support
a repeat characterization).

UHS-DE was integrally involved in the Worksite’s
day-to-day management, including with safety and core business
functions. See UHS-DE/Pembroke , 2022 WL 774272, at 6
(concluding that similar facts showed that the common management,
supervision, or ownership prong of the single entity test meant there
was a single-employer relationship); UHS-DE/Suncoast, 2023 WL
2388069, at 9-10; C.T. Taylor , 20 BNA OSHC at 1087 (manager
of one company supervising the employees of another supported finding
single-employer relationship). As in UHS-DE/Pembroke , there
was a direct line of management between Cedar Springs and UHS-DE.
The CEO supervised Cedar Springs employees and was, in turn,
supervised by UHS-DE employees. This level of oversight suffices.
See UHS of Westwood Pembroke, Inc., UHS of Delaware, Inc. , v.
Sec’y of Labor , 2023 WL 3243988, at *2 (3d Cir. 2023)
(unpublished) (common management established when CEO worked for
UHS-DE and supervised employees at the worksite).

Single-Employer Established

All three factors support concluding a
single-employer relationship existed between UHS-DE and Cedar Springs
at the Worksite. See 2023 WL 2343988, at *2 (concluding that
UHS-DE and a behavioral health facility had a common worksite,
integrated safety operations and common management).

Citation 2, Item 1 – Failure to Timely
Produce Records

When an authorized government representative asks
for certain workplace safety and health records that employers must
keep, the employer must provide them within four hours. 29 C.F.R.
§ 1904.40(a). Of relevance here is the requirement to produce
records kept under “Part 1904,” such as the OSHA 300 Log, the
annual summary, and the OSHA 301 Incident forms. The OSHA log and
OSHA 301 Incident forms are supposed to be promptly completed after
qualifying events. As the name suggests, the annual summary is
compiled yearly. Employers must timely complete and then maintain
these records for five years. 29 C.F.R. § 1904.33. Employers
are not required to file the documents with OSHA. Instead, they must
promptly produce them upon request from authorized government
representatives. See Dole v. Trinity Indus., Inc. , 904 F.2d
867, 869 n.3, 872-73 (3d Cir. 1990) (employers must make accident and
injury records available for inspection and copying). A
representative of the Secretary inspecting a workplace is an
“authorized government representative” within the standard’s
meaning. 29 C.F.R. § 1904(b)(1)(i).

Respondents contend that there was no failure to
comply with the standard. (CS Br. 130.) The record shows otherwise.

During the inspection, the CO requested OSHA 300
logs and the related documents on multiple occasions. First, on
November 18, 2019, the CO requested the OSHA 300 logs, 300A forms,
and 301 forms for 2015 to 2019. (Tr. 192; Ex. C-3 at 60-63.)
Respondents provided incomplete versions of the 300A forms that day.
(Ex. C-3 at 4.) No OSHA 301 forms were provided then or in the next
two days. OSHA issued a subpoena on November 20, 2019 for updated
300A forms and other documents. (Exs. C-3 at 61, C-6.) Respondents
provided some information on November 21, 2019, December 17, 2019,
and December 27, 2019. (Exs. C-3 at 61-62, C-6.)

The information provided still did not include the
updated 300A forms for three years. (Ex. C-3.) OSHA then delivered
another subpoena on January 8, 2020. (Tr. 192-93; Ex. C-3 at 62.)
Even without a subpoena these documents need to be provided within
four hours. 29 C.F.R. § 1904.40(a). So, by January 8, 2020,
the documents should have already been provided. Still, OSHA
repeatedly agreed to extend the deadline, ultimately granting
Respondents until January 24, 2020. (Tr. 193; Ex. C-3 at 62.)
Respondents failed to comply with this well-extended deadline. Id.
They did not provide documents responsive to the subpoena until
January 28, 2020, days after the extended deadline. (Tr. 193-94;
Exs. C-3 at 47, 62; C-7.) That response was also incomplete. (Tr.
193-94; Exs. C-3 at 62-63, C-6, C-7.) It took multiple additional
requests before the Secretary received the records Respondents are
required to produce within four hours. 29 C.F.R. § 1904.40(a).
(Tr. 193-94; Exs. C-3 at 47, 60-63, C-7, C-8.)

The purpose of the recordkeeping obligations is to
help OSHA assess the workplace. There is no dispute that workers at
the Worksite suffered recordable injuries. These facts show exposure
for this recordkeeping violation. There is no contention that
Respondents lacked knowledge of the requests. They were made in
writing, and some were subject to a formal subpoena. (Tr. 193-94;
Exs. C-3 at 62-63, C-7.) Respondents try to deflect attention by
arguing that the CO revised the requests multiple times. Any
confusion was the result of Respondents’ repeated failure to comply
with the valid requests fully. Further, it was Respondents’
provision of incomplete forms that necessitated the CO’s follow-up.

The obligation 29 C.F.R. § 1904.33 imposes is
straightforward. Requested records had to be provided within four
hours. They were not. The Secretary acknowledges that the violation
was a process violation without risk of employee injury. (Sec’y
Br. 137.) As such, it is appropriately classified as an
other-than-serious violation.

Penalties

“Once a citation is contested, the Commission
has the sole authority to assess penalties.” Valdak Corp .,
17 BNA OSHC 1135, 1138 (No. 93-0239, 1995) (citation omitted), aff'd ,
73 F.3d 1466 (8th Cir. 1996). The maximum statutory penalty for
serious or other than serious violations when the Citation was issued
was $13,494.23. Department of Labor Federal Civil Penalties
Adjustment Act Adjustments for 2020, 85 Fed. Reg. 2292, 2298-99 (Jan
15, 2020) (to be codified at 29 C.F.R. Part 1903). Section 17(j) of
the Act requires the Commission to give due consideration to four
criteria in assessing penalties: the size of the employer's business,
the gravity of the violation, the employer's good faith, and its
prior history of violations. 29 U.S.C. 666(j). Gravity is generally
the primary factor in the penalty assessment. See J. A. Jones
Constr. Co ., 15 BNA OSHC 2201, 2214 (No. 87-2059, 1993).

Starting with Citation 1, Item 1, the Secretary
proposed a serious classification and a penalty of $13,494. (Tr.
106-7, 123, 187-89; Exs. C-1, C-4 at 1, 3.) OSHA assessed the
gravity as high because of the severity and frequency of the injuries
and assaults. (Tr. 123, 187-89; Exs. C-1, C-4 at 3-6, 8-11, 16.)
For Citation 2, Item 1, the Secretary proposed an other-than-serious
classification and a penalty of $1,928. (Tr. 194-6; Exs. C-1 at 10,
C-4 at 19.) The Secretary acknowledged that this violation did not
present a risk of employee injury. (Sec’y Br. 10, 137.)

The Secretary argues that the penalty factors do
not warrant downward adjustments. (Tr. 187-89; Ex. C-4 at 3, 19.)
UHS-DE was previously cited for the hazard of workplace violence. In
those matters, the ALJs found that the violation warranted a high
gravity penalty, and there were no adjustments for the other penalty
factors. See UHS-DE/Suncoast, 2023 WL 2388069, at 1, 177
(ALJ concluded that the violation, coupled with the failure to
preserve video evidence warranted the maximum penalty);
UHS-DE/Pembroke , 2022 WL 774272, at 1, 14. See also BHC ,
2019 WL 989734, at 43 (considering a similar violation to be serious
and high gravity and making no downward adjustments for size, good
faith, or history); UHS Centennial , 2022 WL 4075583, at 58-59
(considering similar violation to be of high gravity and adjusting
only for size).

Over 250 people worked at the Worksite, making an
adjustment for small size inappropriate. (Tr. 188, 195-96, Ex. C-4
at 3, 19.) In addition, discounts are inappropriate for history or
good faith. (Exs. C-3 at 2, C-4 at 3, 19.) Respondents’ safety
and health program for the hazard was not appropriately implemented. 95
Further, Respondents destroyed evidence related to the hazard. Had
the maximum penalty not been warranted for the gravity of Citation 1,
Item 1, this failure to appropriately preserve relevant, discoverable
information after litigation was reasonably anticipated would have
warranted an upward adjustment. It does not appear that the
spoliation impacted Citation 2, Item 1. Therefore, an upward
adjustment for that item has not been made.

Viewing the record as a whole with the greatest
emphasis on gravity, the undersigned assesses the proposed penalties
of $13,494 for Citation 1, Item 1 and $1,928 for Citation 2, Item 2.

ORDER

The foregoing Decision constitutes the Findings of
Fact and Conclusions of Law in accordance with Commission Rule
90(a)(1), 29 C.F.R. § 2200.90(a)(1).

Based upon the foregoing Findings of Fact and
Conclusions of Law, it is ORDERED that:

1. Citation 1, Item 1 is AFFIRMED as serious, and a penalty of
   $13,494 is ASSESSED.

2. Citation 2, Item 1 is AFFIRMED as other than serious, and a
   penalty of $1,928 is ASSESSED.

3. The Secretary’s Motion for Sanctions for Respondents’
   Destruction of Relevant Recorded Video Evidence, is GRANTED in part,
   and DENIED in part.

SO ORDERED.

/s/ Christopher
D. Helms

Christopher D.
Helms

Judge, OSHRC

Dated: December 22, 2023

Denver, Colorado

1
The parties stipulated:

1. Respondent Cedar Springs
   Hospital, Inc. (“Cedar Springs”) is an employer 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. § 652(5).

2. Respondent UHS of
   Delaware, Inc. (“UHS-DE”) is an employer 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. § 652(5).

2
The parties stipulated:

3. Cedar Springs Hospital is
   an in-patient psychiatric hospital located at 2135 Southgate Road,
   Colorado Springs, CO 80906. …

4. UHS-DE has a corporate
   address of 367 S. Gulph Road, King of Prussia, PA 19406.

(Stips. 1-3, 19.) UHS-DE is headquartered in Pennsylvania, and the
Worksite is in Colorado. (Stips. 3, 9.) Three Circuits have
potential jurisdiction over any appeal of this matter: the Third,
Tenth, and D.C. See 29 U.S.C. § 660(a). Generally,
Commission judges apply the law of the circuit where it is probable
a case will be appealed. See, e.g., Kerns Bros. Tree
Serv ., 18 BNA OSHC 2064, 2067 (No. 96-1719, 2000).

3
Stips. 1, 2, 45. Cedar Springs noted a numbering error in the
parties’ joint stipulations that were filed before the hearing
commenced. (CS Br. n.2.) References to stipulation numbers herein
will be consistent with the numbering used during the hearing and in
the Secretary’s Brief. (Tr. 13-16; Sec’y Br. 2-6.) The
undersigned also notes some imprecision in how the stipulations
reference the entities. Cedar Springs Hospital, Inc. is shortened
to Cedar Springs in Stipulation 1. When referring to the Worksite,
as opposed to the corporate entity Cedar Springs Hospital, Inc., the
parties frequently use the term “Cedar Springs Hospital,” as in
Stipulations 3 and 4, but not always. (UHS-DE Br. 1.) Stipulation
45, in full, is “The Occupational Safety and Health Review
Commission has jurisdiction in this proceeding pursuant to § 10(c)
of the Occupational Safety and Health Act (“OSH Act”).

4
Stips. 17-18; Meloni Dep. 17, 25; Statement of Corporate
Affiliation. Stipulation 17 is: “UHS-DE is a wholly owned
subsidiary of Universal Health Services, Inc. (“UHS”).”

5
The parties stipulated: “22. The CEOs of Cedar Springs Hospital
and UHS-DE were and are different individuals. 24. Cedar Springs
Hospital’s CEO is not an officer or director of UHS-DE. … 47.
Cedar Springs Hospital and UHS-DE each have their own articles of
incorporation and bylaws. 48. UHS-DE is a separate corporate entity
from Cedar Springs Hospital.” (Stips. 22, 47-48.)

6
The parties stipulated:

7. Cedar Springs employees at
   the [W]orksite are exposed to the hazard of workplace violence,
   defined in this case as physical threats and assaults by patients
   toward staff.

8. UHS-DE employees at the
   [W]orksite are exposed to the hazard of workplace violence, defined
   in this case as physical threats and assaults by patients toward
   staff. …

9. Cedar Springs’ former
   Chief Executive Officer (“CEO”) and now UHS Regional Vice
   President, David Franklin, has been employed by UHS-DE since
   September 2019.

10. Cedar Springs’ former
    Chief Financial Officer (“CFO”), Brandon Askew, was employed by
    UHS-DE during the time of the OSHA inspection.

7
Stipulation 25 is: “Mr. Franklin was the direct supervisor of
certain Cedar Springs’ employees, including the Director of Risk
Management, the Director of Nursing, the Medical Director, the
Clinical Services Director, the Director of Admissions and
Referrals, the Human Resources Director, and the Director of
Operations.”

8
Tr. 86; Stips. 3-4; Ex. R-UHS-8. Stipulation 4 is: “Cedar Springs
Hospital has eight units with a total of 110 beds.”

9
Tr. 404, 486-87, 507-8, 627, 864-65, 870, 877-78, 992-93, 999,
1487-89, 1851; Exs. C-2b at 10, C-19, C-20, C-53, C-54, C-58, C-60,
C-62, C-63, C-64 at 27-28, C-92 at 23.

10
Tr. 840, 511, 2375, 2558, 2563; Ex. RCS-90. The record does not
indicate how many therapists were typically at the Worksite.
Therapists generally worked one shift during weekdays. (Tr. 395,
Ex. RCS-90.) Some units did not have therapists on the weekends or
had them for only part of the weekend. (Tr. 1409; Ex. RCS-90 at
1-130.) It does not appear that the therapist supervisors worked on
weekends. (Ex. RCS-90 at 1-130.) On the overnight shift, in
addition to the unit staff, there was one nurse supervisor and one
or two staff for the A&R department. The A&R staff were not
nurses or MHSs. (Tr. 397.) The A&R department is in a separate
building with no patient care units. (Tr. 840, 2375.)

11
Tr. 1462. Ms. Wilkosz started working at the Worksite in July 2017.
(Tr. 1462.). She stopped in March 2020, not long before OSHA’s
investigation ended. Id. Charge nurses are Registered
Nurses who oversee a particular unit. (Tr. 836-37, 2322, 2325-26.)

12
Ms. Degenhardt worked at the Worksite from October 2018 through
January 2020. (Tr. 369.) OSHA’s investigation was ongoing when
she stopped working at the Worksite.

13
Tr. 490-91, 842, 2373, 2557, 2559; Ex. RCS-91. No completed forms
are in the record. (Tr. 1657.)

14
Tr. 467-68; Exs. RCS-30, C-3 at 29. Sometimes patients refused the
body scan. (Ex. C-54.) The training form did not discuss how this
was handled. (Ex. RCS-30.)

15
Tr. 1426-29, 1434-35; Exs. C-12, C-65. The witness would have also
been treated more extensively for possible exposure to bloodborne
pathogens, including hepatitis and HIV. (Tr. 1434-36.) However,
she was pregnant at the time of the incident and the typically
prescribed treatment would have likely induced a miscarriage. (Tr.
1436.) The witness elected to undergo medical monitoring rather
than medication. (Tr. 1436-37.)

16
Ex. C-106; Tr. 1482-85. Exhibits C-106, C-107, and C-108 were
admitted under seal.

17
Tr. 2390-91; Ex. C-108. Ms. Nolan testified that she responds to
codes during her shifts. (Tr. 2362.) She was at the Worksite at
the time of this incident but is not seen in the video until after
the patient has been removed. (Tr. 2361; Ex. C-108.)

18
(Stip. 38.) See BHC Nw. Psychiatric Hosp. LLC , No. 17-0063,
2019 WL 989734, at 13-14, 23 (OSHRCALJ Jan. 22, 2019) (discussing
the MIDAS system); UHS-DE, Inc., Premier Behavioral Health
Solutions of Fla., Inc. d/b/a Suncoast Behavioral Health Ct r.,
No. 18-0731, 2023 WL 2388069, at 6 (OSHRC Feb. 28, 2023)
(describing the facility’s use of the MIDAS system)
(“ UHS-DE/Suncoast ”). Stipulation 38 is: “UHS-DE
provides Information Systems support to maintain the MIDAS system,
which is used to record incidents that occurred at Cedar Springs
Hospital, including some incidents of patient-to-staff aggression.”

19
Tr. 1825-33; Exs. C-74, C-75, RCS-84. The Secretary’s Exhibit 74
is the minutes from the PIC’s January 29, 2020 meeting. (Ex.
C-74.) Those same minutes are included in Cedar Springs’ Exhibit
84. (Ex. RCS-84 at 30-38.) Exhibit RCS-84 also includes the
minutes from other minutes from PIC meetings in January 2019, June
2019, and November 2019. (Ex. RCS-84.)

20
Tr. 2847-48; Exs. RCS-18 at 5, RCS-33. Francis Martin Mauro, Jr.,
the trainer, did not indicate Cedar Springs Patient Interaction
training was used. (Tr. 2878-80.) After briefly looking at the
document, he agreed with counsel’s leading question that the
material in the document was “like” the materials he used. (Tr.
2879-80.) He could not remember if the document was provided. (Tr.
2879.) Respondents’ claim that Staff Assistance Codes prevented
physical restraints 75% of the time is not directly supported by the
record. (CS Br. 37 citing Tr. 2333-34.) In context, the witness
appeared to refer to all types of codes, not just Staff Assistance
Codes. (Tr. 2322:9 (specifically limiting the question to a Code
Green); 2333:21 (question not limited to staff assistance codes);
2334:3 (question not limited to staff assistance codes).) Notably,
the minutes discussed by the witness at this point do not include
the frequency or success rate of staff assistance codes. (Exs. C-74
at 1, 8, RCS-84.)

21
Tr. 743, 802, 1331, 2328-29, 2432-333; Ex. RCS-7. Respondents’
brief could be read as suggesting nurses check on patients every
fifteen minutes. (CS Br. 32.) They cite no support for this
contention, and the record does not support that finding.

22
“During discovery Respondents produced the patient file of Patient
23, which was comprised of 652 pages.” (Stip. 55.)

23
Ex. RCS-41; Tr. 2831. Mr. Mauro, the trainer and a former MHS, was
part of the restraint reduction team. But it is unclear if he
worked as an MHS while on that committee. (Tr. 2844, 2846.) During
Dr. Lipscomb’s cross-examination, Cedar Springs’ counsel implied
that two Milieu Specialists were acting as part of the Restraint
Reduction Initiative. (Tr. 1703.) However, the Worksite had no
Milieu Specialists until January 2020, when the inspection was well
underway. (Tr. 572, 856, 1668, 2557; Ex. C-76.)

24
Tr. 2783; Ex. RCS-3. Respondents cite their expert's report in
discussing their processes for reporting and tracking staff
injuries. (CS Br. 44 citing Ex. RCS-95.) As detailed below,
Vincent Staggs, Ph.D., offered no opinion on the efficacy of the
abatement at the time of inspection. (Tr. 2091, 2154-56, Ex. RCS-95
at 1.) Although Dr. Stagg’s report was admitted, the weight given
to aspects of the report is tied to the scope of Dr. Stagg’s
expertise. (Tr. 2156.)

25
Stip. 39; Tr. 116-17, 2728-29; Exs. RCS-23, C-94 at 15. Stipulation
39 is: “UHS-DE contracts with Sedgwick Claims Management Services,
Inc. (“Sedgwick”) on behalf of Cedar Springs and other
behavioral health facilities it manages.”

26
Ex. RCS-84 at 16, 26, 35. In discussing the minutes, Ms. Kolln
thought the restraint and seclusion data for PIC’s January meeting
referred to the total rate for the prior year. (Tr. 2800.)
However, it is unclear if the same is true for the patient-to-staff
aggression rate. (Tr. 2800-1; Ex. RCS-84 at 16, 26, 35.)

27
Ex. RCS-41. Staff injury data was also reported to the Worksite’s
Board of Governors. (Ex. C-76 at 19.) However, Respondents do not
assert that this entity trended or analyzed such information. (CS
Br. 45.)

28
Tr. 2396-98; Ex. C-64 at 9, 23, 59, 70, 72. One debriefing form
specifically indicates that Ms. Nolan observed the restraint but did
not participate in the debriefing because she was unavailable. (Ex.
C-64 at 70.) The rest of the forms for restraints in which Ms.
Nolan was involved do not indicate why she did not participate in
the debriefing. Id. at 9, 23, 59, 72. Note that a duplicate
copy of one form appears on page 71 of Exhibit C-64.

29
Tr. 73-74, 134-35, 146-47, 151-52, 155-56, 159, 161, 201-3, 259,
289, 291, 297-99, 302-3, 319-20, 328, 331, 333-34, 357-59, 365, 425;
Ex. C-3 at 6, 29.

30
“Respondents timely filed their Notices of Contest on June 4 and
5, 2020.” (Stip. 6.)

31
UHS-DE,
Inc., Premier Behavioral Health Solutions of Fla., Inc. d/b/a
Suncoast Behavioral Health Ctr .,
No. 18-0731, 2023 WL 2388069, at 40-43 (OSHRCALJ Apr. 20, 2022)
(“ UHS-DE/Suncoast ”),
aff’d ,
2023 WL 2388069 (OSHRC Feb. 28, 2023); UHS
of Centennial Peaks LLC ,
No. 19-1579, 2022 WL 4075583, at 23 n.27 (OSHRCALJ, Jul. 26, 2022)
(“ UHS
Centennial ”).
UHS-DE was found to be an employer in UHS-DE/Suncoast .
2023 WL 2388069, at *10. UHS
Centennial
was appealed to the Tenth Circuit. However, the parties notified
the Circuit Court of the withdrawal of the petition because they had
reached a settlement agreement. In UHS
of Fuller, Inc., UHS of Delaware ,
No. 20-0032 (OSHRCALJ, Jan. 31, 2023) (“ UHS-DE/Fuller ”),
the ALJ also awarded sanctions for the failure to preserve videos.
A Petition for Discretionary Review was granted, and this case was
directed for review on March 2, 2023, per Commission Rule 92 (29
C.F.R. § 2200.92).

32
Exs. C-19, C-20. The HPR incident logs were compiled from
information entered into the MIDAS database. (Stip. 38; Tr.
1837-39, 1846-48, 1853.) They do not include all reported injuries.
(Tr. 1825, 1836, 1849.) For example, a worker reported an injury
on January 3, 2020, after being kicked and bitten. (Ex. C-44.)
There are no corresponding injuries on the log. (Ex. C-20.) While
the HPR incident logs have a column labeled “injury,” the
information included only relates to whether a patient was injured,
not workers. (Tr. 1825, 1836, 1846, 1849, 1863; Exs. C-19, C-20.)

33
Tr. 1899, 1904-7. According to the report from the PSC’s December
18, 2019 meeting, which Ms. Kolln attended, the review of video of
restraints and seclusions was to be documented on the “S&R
Clinical Review sheet.” (Ex. C-75 at 1, 6.)

34
Tr. 1900-1901, 1903-9, 1913-14; Exs. C-19, C-20, C-44, C-49 at 2-3,
C-75. In September 2020, well after the subpoena was served and
litigation commenced, there was a system outage at the Worksite.
The cameras were not affected by the outage. (Tr. 1912, 2767-68.)
Nor is there evidence it affected any videos retained of past
incidents. (Tr. 2768.) However, the outage did temporarily make it
less convenient for Ms. Kolln to retain videos. (Tr. 2768-69.) Ms.
Kolln did not identify any videos of specific incidents that she was
unable to save during the outage. (Tr. 1910-12, 2768.)

35
Sec’y Br. 134. In each of those matters, the Secretary also
sought sanctions for a failure to preserve. Sanctions against
UHS-DE for the spoliation of video evidence were awarded in
UHS-DE/Suncoast , 2023 WL 2388069, at 40-43, UHS
Centennial , 2022 WL 4075583, at 23 n.27, and UHS-DE/Fuller ,
No. 20-0032. Respondents’ counsel for this matter were also
counsel in other matters where spoliation of ESI related to
workplace violence incidents at behavioral health facilities was
found.

36
CS Br. 13 n. 7. Respondents incorrectly assert that the Secretary
offered video of only one incident. (CS Br. 13 n. 7.)

37
In the video of the incident on January 7, 2020, Ms. Nolan is not
seen until after the violence stopped. (Ex. C-108.) In the video
of an incident on December 8, 2019, the supervisor is not seen in
the video until after a second call for assistance, and one patient
is no longer being restrained. (Tr. 1550-51; Ex. C-106.)

38
Sec’y Mot. 5. According to the Secretary, two of sixteen
incidents for which various video clips were produced did not show
an aggressive patient. (Sec’y Mot. 5.)

39
Cedar Springs titled a section of its brief, “The Unique Nature of
Workplace Violence and The Scope of OSHA’s Jurisdiction” and
raised arguments on this point in other sections of its brief. (CS
Br. 7, 12, 18-21.) UHS-DE joined in this and all other arguments in
Cedar Springs’ brief. (UHS Br. 54.)

40
Stip. 45. In its Answer, Cedar Springs also admitted it was
“employer engaged in a business affecting commerce within the
meaning of Section 3(5) of the Act.”

41
2019 WL 1142920, at 1. See also Waldon Healthcare Ctr. , 16
BNA OSHC 1052, 1059-62 (No. 89-3097, 1993) (finding that the general
duty clause applied to the hazard of virus transmission at nursing
homes)(“ Waldon ”); Beverly Enters., Inc ., 19 BNA
OSHC 1161, 1162 (No. 91-3144, 2000) (consolidated) (finding that the
Secretary met the first three elements of establishing a violation
of the general duty clause for hazards related to lifting and
transferring patients, and remanding for further findings on the
issue of feasibility of abatement); Am. Dental Ass’n v. Martin ,
984 F.2d 823, 827, 830-31 (7th Cir. 1993) (rejecting the contention
that the regulation of medical and dental workplaces was beyond
OSHA’s purview); HRI Hosp., Inc. d/b/a Arbour-HRI Hosp. ,
No. 17-0303, 2019 WL 989735, at 1-7 (OSHRCALJ Jan. 22, 2019) (Chief
Judge Rooney finding the general duty clause applicable to a
provider of psychiatric services) (“ HRI ”). The
Commission has also addressed violations of particular standards at
medical facilities. See, e.g., Metwest, Inc., 22 BNA OSHC
1066, 1072 (No. 04-0594, 2007) (upholding a violation against a
patient service center), aff’d , 560 F.3d 506 (D.C. Cir.
2009) (upholding citations under bloodborne pathogen standard);
Froedtert Mem’l Lutheran Hosp., Inc ., 20 BNA OSHC 1500,
1511 (No. 97-1839, 2004) (affirming violations relating to how the
hospital handles bloodborne pathogens and communicates hazards);
Charles W. Mason, DDS & Assocs., PLLC , 25 BNA OSHC 1792,
1795-96 (No. 10-2313, 2015) (upholding violations related to the
handling of sharps used in medical procedures and hazard
communication); Loretto-Oswego Residential Health Care Facility ,
23 BNA OSHC 1356, 1358 n.2 (No. 02-1164, 2001) (consolidated)
(affirming violations related to, among other things, providing
timely vaccination shots, making medical evaluations following
specific incidents, and training on bloodborne pathogens at a
nursing home) aff’d , 692 F.3d 65 (2d Cir. 2012). See
also Columbia Presbyterian Hosp. , No. 93-298, 1996 WL 18889, at
*1 (OSHRCALJ Jan. 2, 1996) (finding a hospital to be an employer and
subject to the OSH Act); Am. Dental Ctrs. , No. 89-1369, 1990
WL 118162 (OSHRCALJ June 4, 1990) (consolidated) (upholding
violations issued to dental treatment facilities).

42
Stips. 7-10; Ex. C-94 at 6-11 . The
parties stipulated: “9. The hazard of workplace violence as
defined in this case was recognized by Respondents Cedar Springs and
UHS-DE at the time of the alleged violation. 10. The hazard of
workplace violence is recognized in the industry.”

43
“As a CMS-certified hospital, Cedar Springs is subject to Medicare
Conditions of Participation and Conditions for Coverage, which are
federal regulations intended to ensure quality standards in
hospitals.” (Stip. 15.) The undersigned notes that in their
briefs, Cedar Springs and the Secretary appeared to have
inadvertently changed the word “ensure” to “endure.” (CS
Br. 2; Sec’y Br. 6.) The undersigned relied on the stipulation as
stated on the first day of the hearing. (Tr. 12, 15-21.) The
parties also stipulated: “As a CMS-certified hospital, Cedar
Springs is required to annually submit data to CMS regarding, among
other things, its patient days, revenue, number of employees,
salaries and benefits paid, and revenue.” (Stip. 16.)

44
Tr. 172; Ex. C-9. “Cedar Springs Hospital is regulated by
Colorado state agencies, including the Department of Public Health
and Environment and the Office of Behavioral Health.” (Stip. 13.)

45
Stips. 7-10; Tr. 389, 486, 1835, 1903; Exs. C-2a at 14, C-2b, C-12;
C-13 at 4-5; C-14 at 3; C-15 at 3, C-20, C-43 at 2, C-48, C-55,
C-57, C-64, C-65, C-66, C-73.

46
Tr. 2196, 2263, 2275. Such information was available. (Exs.
RCS-84, RCS-7, C-92 at 10, C-94 at 14-15, 28.) The PIC meeting
minutes give various hospital indicators, including the overall rate
of patient-to-staff aggression, the rate of patient-to-staff
aggression with injuries, and the rate of patient-to-staff
aggression without injuries. (Tr. 2801-5; Ex. RCS-84 at 16, 26,
35.)

47
Tr. 2148, 2151-52, 2154. Dr. Staggs was accepted as an expert who
could provide information related to this method of abatement
proposed by the Secretary:

Maintain staffing that is
adequate to safely address changes in patient acuity and patient
census. Staffing levels must allow for safety of staff during
admission of new patients, behavioral health emergencies, one-on-one
patient assignments, staff breaks, and the accompaniment of patients
off-unit. Staffing levels must also allow for and ensure safety
during educational instruction on and off the unit, therapeutic
activity groups, and recreational periods.

48
Tr. 110-14, 388-89; Exs. C-2b at 7, C-3, C-10, C-94 at 5-6. The
parties also reached a stipulation about employees working at
UHS-DE’s offices in Pennsylvania. (Stip. 52.) At that location,
workers were not exposed to the same hazards as at the Worksite:
“The employees of UHS-DE located at the worksite in King of
Prussia, PA, are not exposed at that worksite to the same workplace
hazards as the employees of UHS-DE and Cedar Springs Hospital who
work at Cedar Springs Hospital in Colorado, Springs, CO.” (Stips.
3, 52; Tr. 21.)

49
Stips. 7-11; Ex. C-94 at 6-11. See BHC, 951 F.3d at 563
(behavioral health facility agreed that workplace violence was a
hazard present in its facility); UHS-DE/Pembroke, 2022 WL
774272, at 1-2 (affirming a citation for failure to properly abate
the hazard of workplace violence at a behavioral health facility);
UHS Centennial, 2022 WL 4075583, at 1 (noting that the
hazard of workplace violence is “particularly acute” in the
healthcare industry). As addressed, the Secretary is entitled to an
adverse inference that the destroyed ESI would support finding
knowledge.

50
Tr. 107, 110-14, 119-20, 389, 638-39, 691, 761-65, 994; Exs. C-2a,
C-2b, C-3 at 12-16, C-10, C-11, C-12, C-17, C-19, C-20, C-43, C-57,
C-59, C-60, C-64, C-65, C-66.

51
Stips. 7-8, 11; Exs. C-2a at 14, C-2b at 7, C-3 at 8-16, C-10, C-11,
C-12, C-17, C-19, C-20, C-43, C-48, C-52, C-55, C-57, C-59, C-60,
C-64, C-65, C-66, C-94, C-95 at 5. Cedar Springs alleges that the
Secretary stipulated that “2017 was not relevant.” (CS Br. 33.)
The parties did not reach a stipulation on this point before the
hearing. (Tr. 874-75.) Instead, during the proceedings, the
Secretary sought to admit the CO’s narrative of her investigation,
which included a list of the documents she sought as part of that
investigation. (Ex. C-3.) In context, the Secretary’s counsel
was explaining that as part of OSHA’s investigation, the CO
requested documents from 2017. (Tr. 77-78, 193.) Counsel
acknowledged that when questioning the CO, she did not intend to
focus on Exhibit C-3’s references to 2017 events. (Tr. 78-80.)
On cross-examination, however, Cedar Springs’ counsel repeatedly
brought up injury information from 2017. (Tr. 244-46, 1760,
2605-09.) While 2017 was not the focus of this litigation, the
parties did reference historical and background information from
2017. (CS Br. 46, 55, 62; UHS-DE Br. 18; Sec’y Br. 9, 44, 137.)
The undersigned focused on the core period of the investigation in
reaching this decision.

52
Tr. 839, 2554; Exs. RCS-8, RCS-32. Dr. Staggs discussed studies
that suggest that observation of patients for signs of aggression
may not be helpful. (Tr. 2226, 2276.) He did not know how rounds
were conducted at the Worksite and he did not reach a conclusion as
to whether the observation rounds mitigated or exacerbated the
hazard. (Tr. 2226, 2276-77.)

53
Tr. 2553-54; Ex. RCS-8. Patients with food allergies were given
colored wristbands and signs posted outside the unit and by the
patient’s door. (Exs. RCS-32 at 4, C-94 at 16.)

54
Sec’y Br. 82, n. 21. On January 31, 2022, the undersigned issued
an Order Denying Respondent UHS-DE’s Motion in Limine to Exclude
Any Evidence Pertaining to the Provision of Clinical Care and
Therapeutic Treatment of Psychiatric Patients at the Worksite.
During the hearing, the undersigned sustained Respondents’
objections to testimony that veered into the clinical care of
specific patients.

55
Stip. 11. While Respondents only stipulated that the hazard “could”
cause injuries, as discussed above, the Secretary is entitled to an
adverse inference that the ESI would have shown serious harm.

56
Tr. 394-95, 472-73, 475-80, 492-95, 605-6, 688, 841, 1009-10, 1211,
1227; Exs. 2b, C-33, C-34, C-35, C-43, C-51, C-52, C-55, C-58, C-69,
C-70, C-71, C-73, C-92, C-94, RCS-41 at 7.

57
Tr. 1209-11, 1218; Ex. C-92 at 11, 13-17. This is not the
equivalent of saying the staffing was inadequate for patient care.
Dr. Forman’s position is that staffing levels fell short of what
is needed to maintain a safe workplace for workers. (Ex. C-92 at
11.)

58
See II.B.1.b above and Exhibits C-92 and C-94. Once, a patient got
into the nurses’ station, accessed, and then used a lighter. (Tr.
1489.) It is unclear when this incident occurred.

59
Stip. 43-44; Tr. 1010, 1634, 1830. Stipulations 43 and 44 are: “43.
Direct care staff did not regularly attend the Patient Safety
Council (“PSC”) meetings at Cedar Springs. 44. Direct care
staff did not regularly attend Performance Improvement Committee
(“PIC”) meetings at Cedar Springs.”

60
Tr. 1057. Mr. Troudt said he administered “a competency or an
exam” that addresses workplace violence. (Tr. 2727-28; Ex.
RCS-24.) A blank exam was admitted but no completed versions of the
documents were offered. Mr. Troudt’s testimony that he did not
cover the WVPP is credited. It is corroborated by the workers’
testimony that they were not trained specifically on the WVPP. (Tr.
148-49, 695-96, 797, 1452-53.)

61
Stip. 40; Ex. C-22 at 7-8. Stipulation 40 is: “Sedgwick compiles
OSHA 300 logs for Cedar Springs Hospital and other clients.”

62
Ms. Kolln’s demeanor and testimony on what data she used from
MIDAS to fulfill the WVPP’s requirement were evasive. At one
point, she acknowledged that the only information she pulled were
incidents coded as “aggression/assault patient towards staff.”
(Tr. 1835-36.) That statement is consistent with her deposition
testimony and is credited. (Tr. 1841.) A moment later, she
disputed that view of what information from MIDAS she used. (Tr.
1839-40.) She was hesitant in her response and appeared to reach
her new conclusion only after it was pointed out the flawed approach
to using only one category of information from MIDAS.

63
TJC is a non-profit accrediting and standards-setting body. (Tr.
341, 1374, 1607, 1616; Ex. C-100 at 1). It provides guidance to
improve safety. (Tr. 1616-17.) The TJC Alert “identifies
specific types of sentinel and adverse events and high-risk
conditions, describes their common underlying causes, and recommends
steps to reduce risk and prevent future occurrences.” (Ex. C-100
at 1.) In response to being notified of such events, the TJC
directs that organizations “should consider information in a [TJC
Alert] when designing or redesigning processes and consider
implementing relevant suggestions contained in the alert or
reasonable alternatives.” Id .

64
Tr. 2910-11. “Matters of economic feasibility are properly
considered on a company-wide basis.” W. Point Pepperell, Inc .,
9 BNA OSHC 1784, 1796 (No. 77-4297, 1981) (looking at whole company
rather than a single plat).

65
CS Br. 77-78. In addition, Respondents point to National Realty ,
a case also addressed in UHS-DE/Pembroke. 2022 WL 774272, at
8. National Realty predates Waldon and the
development of the Commission's four-part test for sustaining
violations of the general duty clause. See Integra , 2019 WL
1142920, at 4 n.3. In any event, as shown by UHS-DE/Pembroke
and UHS-DE/Suncoast , nothing in National Realty
requires the Secretary to prove more than one feasible means of
abatement.

66
Exs. C-13, C-19, C-20 at 1-5, 11-12, 23, 26-33, 35-36, 45-46, 58,
51, C-64. In the MIDAS database, workers sometimes coded incidents
occurring at the nurses’ station as occurring in “common areas.”
(Tr. 1848-52; Ex. C-20.) Video evidence could have clarified where
the injuries occurred. For the reasons discussed above the
destroyed evidence is presumed to have been favorable to the
Secretary.

67
Tr. 1255-57; Exs. C-92 at 23, C-94 at 22-24, C-95, C-96. A 2014
article from a publication by TJC also listed enclosed nurses’
stations as an engineering control for the hazard of workplace
violence. (Ex. C-94 at 23, discussing “Engineering Solutions to
Workplace Violence,” The Joint Commission Environment of Care
News, Vol. 17, Issue 3, March 2014.)

68
Specifically, in UHS-DE/Suncoast , the Secretary proposed the
employer:

Reconfigure the nurses'
workstations to include design features that prevent patients from
jumping over, reaching into, or otherwise entering into the
workstations. Ensure items in the workstations, such as but not
limited to scissors, hole punchers, staplers, telephones, cords,
pens, computers, computer peripherals, and other items are not
accessible by the patients, so they cannot be used as weapons. All
scissors at the facility should be replaced with childproof
scissors.

2023 WL 2388069, at *93.

69
2023 WL 2388069 at *3, 70, 92-95. The parties did not challenge the
findings related to this abatement method when appealing to the
Commission.

70
951 F.3d at 563-65. Specifically, part of the Secretary’s
proposed abatement required the employer to:

Provide all affected
employees
with reliable and readily available means of communication that are
effective throughout the facility. Develop a policy to maintain the
effectiveness of the communication devices such as walkie talkies.
Inform all employees of this policy and train
them on the use of the equipment. Enforce the policy as necessary.

BHC , 2019 WL 989734, at 33. The ALJ concluded it was
feasible for the employer to address the issues with summoning help
and found that this abatement method would materially reduce the
hazard. Id. at 35.

71
2022 WL 4075583, at 42. In contrast, in HRI , the ALJ found
that because of the facility’s small size and the number of staff
in each unit, the Secretary failed to show that the hospital’s
phone system, walkie-talkies, fixed panic buttons, and the ability
to ask nearby workers for help were inadequate. 2019 WL 989735, at
27-28. A nurse monitored the walkie-talkie traffic to ensure
responses to calls for assistance. Id . HRI highlights
the inter-relatedness of the Secretary’s proposed abatement. In
this matter, staff were frequently alone or in thinly staffed units.
Staff responding to a call for assistance sometimes had to come
from other buildings. This increased the need for ways to summon
help. (Tr. 137-44, 1648-49, 1651; Ex. C-94 at 24.)

72
Tr. 882-83, 1653-54, 2447; Ex. C-94 at 25-26. The radios
purchased and delivered during the inspection cost $305 each. (Tr.
275; Ex. RCS-43.) They were commercial grade with several features.
(Tr. 2446; Ex. RCS-43; CS Br. 38.) It is unclear if the new radios
had a way to alert others silently. (Exs. RCS-43; C-94 at 26.)

73
Tr. 102-3. See Cong Agra, 11
BNA OSHC at 1145 ; SeaWorld ,
748 F.3d at 1215. Respondents cite staff access to “fixed panic
alarms.” (CS Br. 89.) At the time of the inspection, there were
only two such alarms, and both were in the building without any
patient care units. (Tr. 103, 141, 255-56, 401, 557, 1648; Exs.
C-78, C-94.)

74
Ex. C-3 at 55-59. The proposed abatement actions overlap. Item 7
notes that “formal and informal requests for increased staffing
based on unit acuity” should be “thoughtfully reviewed and
evaluated.” This proposal is congruent with the proposal to
“maintain staffing that is adequate to safely address patient
acuity” (designated #4 in the Citation). Those measures will be
discussed together below.

75
Tr. 156; Exs. C-3 at 56-57, C-94 at 20. Debriefings were also
relevant to patient care and used to change treatment plans. (Ex.
C-3 at 45-46.)

76
This section concerns the proposals labeled 3(c), 3(f) and 7 in the
Citation. (Ex. C-1.)

77
Tr. 2187-89; Exs. RCS-95 at 5-6, RCS-113. The record includes two
articles by Dr. Staggs: “Staffing, RN Mix, and Assault Rates on
Psychiatric Units,” which is Exhibit RCS-113, and “Deviations in
Monthly Staffing and Injurious Assaults Against Staff and Patients
on Psychiatric Units,” which is Exhibit RCS-109. Exhibit RCS-113
looked at the number of RNs (Registered Nurses) versus non-RNs,
i.e., licensed practical nurses. It did not compare the number of
nurses to MHS type staff. (Ex. RCS- 113.)

78
Exs. RCS-109, RCS-113. Dr. Staggs’ report cites various studies
to support the statement that higher staffing levels can be
associated with higher rates of violence. (Ex. RCS-95 at 5-6.)
These studies were not offered for admission by either party. Dr.
Staggs acknowledged that two of the studies cited in his report did
not address staffing levels or the other abatement measures on which
he opined. (Tr. 2244-46.) He acknowledged significant limitations
in the studies he reviewed, conducted, and relied upon. Dr. Staggs
was also unfamiliar with how patients are observed at the Worksite.
(Tr. 2277.)

79
Tr. 2196, 2247. Dr. Lipscomb did not have access to the NDNQI but
believed Dr. Staggs did. (Tr. 1763.)

80
See sections II.B.2 and V.A.4.a.iii.1.

81
Ms. Mattson initially claimed that the milieu specialists started on
October 9, 2019. (Tr. 847.) However, the position was only being
“developed” at that time. (Tr. 2806; Ex. RCS-84 at 26-27.) The
specialists did not start working until several weeks after the
inspection commenced. (Tr. 572, 856, 2515, 2557, 2614-15; Exs. C-76
at 3, C-94 at 38.) Ms. Mattson gave the report summarized in
Exhibit C-76. (Tr. 855.) That report, which indicates that the new
Milieu Specialists were not expected to start until January 2020,
was closer to the event and was corroborated by other evidence.
(Tr. 572, 856, 1017, 1668-69, 2557; Exs. C-76, C-94 at 38.)
Equivocal or contrary testimony on when the additional staff began
working in the units is rejected. Respondents could have produced
evidence of the actual date the Milieu Manager and Milieu
Specialists started in the units. (Tr. 846-47; Ex. RCS-90.)
Capeway Roofing Sys., Inc ., 20
BNA OSHC 1331, 1342-43 (No. 00-1986, 2003) (when one party can
produce evidence but fails to do so, there’s a presumption that
the evidence would not have been favorable to that party),  aff’d ,
291 F.3d 56 (1st Cir. 2004).  In addition, video evidence of
additional events could have clarified when the milieu specialists
were fully in place and the extent to which they responded to
workplace violence events.

82
Respondents can develop solutions different than the Secretary’s
proposal as long as the alternative methods achieve at least as
great a reduction in the hazard. See Chevron Oil Co. , 11 BNA
OSHC 1329, 1334, n. 16 (No. 10799, 1983); Brown & Root, Inc.,
Power Plant Div ., 8 BNA OSHC 2140, 2144 (No. 76-1296, 1980)
(“the employer may use any method that renders its worksite free
of the hazard and is not limited to those methods suggested by the
Secretary”); Pepperidge Farm , 17 BNA OSHC at 2032
(Commission Chair Weisberg concurring and noting that employers are
free to develop solutions different than what the Secretary proposes
to render their workplace “free” of recognized hazards). The
Secretary did not have to prove that Respondents’ post-inspection
measures moved the Worksite into compliance.

83
Tr. 2048-49, 2051. “Contribution margin” is Cedar Springs’
“income from operations” divided by its “net revenue.” (Tr.
2038; Ex. C-90.) In the exhibits, the contribution margin is shown
as a percentage. (Ex. C-90.)

84
Tr. 1994-95, 1989-90, 2028-29, 208; Exs. C-89, C-90. The Secretary
sought judicial notice of the Bureau of Labor Statistics’ average
salary for security guards in the Worksite’s geographic area.
(Sec’y Br. 127-28.) Doing so is unnecessary. The Secretary
showed that Respondents could have hired additional employees to
work round the clock. Respondents had significant capacity to
remain profitable even after adding staff focused on security and
maintaining adequate staffing to address the acuity and number of
patients.

85
The proposed abatement was:

Designate specific staff with
specialized training in security to monitor patients for potential
aggression on all shifts and to assist in preventing and responding
to violent events occurring in the units. Designated staff must
have the physical capability to effectively respond to aggressive
patients. The staff designated to monitor and respond to patient
aggression should not be given other assignments such as patient
rounds, which would prevent the designated person from immediately
responding to an alarm or other notification of a violent incident.
Conduct periodic drills for psychiatric crisis/patient aggression
(currently known as “Code Grey”) to allow all designated staff
to practice and evaluate their skills in real-life settings.

2023 WL 2388069, at *96. Further,

An additional designated
staff member with specialized training in security should be
available at intake on all shifts. This staff member should have
the physical capability to respond to aggressive patients. This
staff person should not be given other assignments such as patient
rounds, which would prevent the person from immediately responding
to an alarm or other notification of a violent incident.

Id .

86
2022 WL 774272, at 52. In UHS Centennial , the ALJ upheld
the violation and found the Secretary’s proposal regarding
ensuring adequate staffing was a feasible and effective method for
reducing the hazard of workplace violence. 2022 WL 4075583, at
49-51. However, he concluded one proposal was “vague” and that
the Secretary did not meet the burden with respect to that measure.
Id. at 46. The proposal, while related to security, was
different than what the Secretary proposes here. Id. In UHS
of Denver, Inc ., No. 19-0550, 2022 WL 17730964 (OSHRC Dec. 8,
2022), the ALJ relied on an inference to support her finding that an
abatement proposal calling for designated security would be
feasible. 2022 WL 17730964, at 1. The Commission found that the
inference should not have been granted. Id . On remand, the
ALJ upheld the citation but concluded that the record lacked
sufficient information on the feasibility of one measure. UHS of
Denver, Inc ., No 19-0550, 2023 WL 4498024, at *16-17 (OSHRCALJ
July 3, 2023) , appeal docketed , No. 23-9579 (10th Cir. Aug.
31, 2023). Unlike the rejected proposals in UHS Centennial
and UHS Denver , here, the Secretary clarified the proposal
and more than adequately supported feasibility.

87
2022 WL 774272, at 2; 2023 WL 2388069, at 3. Respondents cite two
other Commission decisions on single employer, S. Scrap Materials
Co., Inc ., 23 BNA OSHC 1596 (No. 94-3392, 2011) and FreightCar
Am., Inc ., No. 18-0970, 2021 WL 2311871 (OSHRC Mar. 3, 2021).
(UHS-DE Br. 4, 28-30, 34, 46, 51.) Both cases are cited and
distinguished in UHS-DE/Pembroke and UHS-DE/Suncoast .
2022 WL 774272, at 5-6; 2023 WL 2388069, at 4, 8, 10. The same
analysis in those cases is applicable here.

88
Stip. 19; R-UHS 5, R-UHS 6; Tr. 2906-8. The stipulation uses the
term “corporate address,” but UHS-DE’s attorney and its brief
referred to it as the UHS-DE’s “headquarters” or “principal
place of business.” (Tr. 31; UHS Br. 4.)

89
Tr. 2001-2; Exs. C-89, C-90; Stips. 29, 33. “29. UHS-DE charges
Cedar Springs a monthly management fee that is taken directly from
Cedar Springs’ accounts by UHS-DE. … 33. Cedar Springs Hospital
and UHS-DE each has its own budget.” (Stips. 29, 33.)

90
“30.
UHS-DE administers employee benefits for Cedar Springs Hospital. …
31. UHS-DE provides and administers a number of systems for Cedar
Springs, including but not limited to: a. Cedar Springs’ billing
system; b. Cedar Springs collection system; c. Cedar Springs’
disbursement system; d. Cedar Springs payroll system; and e. Cedar
Springs’ insurance claim system.” (Stips. 30-31.)

91
Stip. 21; Tr. 1965-68; UHS-DE Br. 18-19. The COO arrived at the
Worksite in February 2020. (Ex. C-45; UHS-DE Br. 19.)

92
Tr. 2002; Stips. 35, 36; Meloni Dep. 41:19-21. “UHS-DE selects
the bank(s) into which Cedar Springs’ revenue is deposited.”
(Stip. 35.) “UHS-DE files and certifies Cedar Springs’ federal
income tax returns.” (Stip. 36.)

93
Stip. 27; Tr. 1925-26; Exs. C-76, C-85. Stipulation 27 is: “Mr.
Franklin and Mr. Askew were on Cedar Springs’ Board of Governors,
the body responsible for approving changes in hospital policy.”

94
Tr. 1920-21, 1980-81; Ex. C-84 at 4. UHS-DE also “provides
marketing materials for Cedar Springs.” (Stip. 37.)

95
Tr. 189. See V.A.4.a and V.A.b.iii.