**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.) 

The 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.  Each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 patients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 “Employees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2034; *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	Investigations76*

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 common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. ... 

19. 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.)

6The 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. ... 

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

22. 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.