f

United States of America

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION

1120 20th Street, N.W., Ninth Floor

Washington, DC 20036-3457

 

SECRETARY OF LABOR,

Complainant,

v. OSHRC DOCKET NO. 17-0303

HRI HOSPITAL, INC, D/B/A ARBOUR-HRI 

HOSPITAL,

 

 Respondent.

Appearances:

 Kate O’Scannilain, Solicitor of Labor

 Michael D. Felson, Regional Solicitor

 Paul Spanos, Senior Trial Attorney

 U.S. Department of Labor, Office of the Solicitor, Boston, Massachusetts

 For the Complainant

Carla J. Gunnin

Jackson Lewis P.C., Atlanta, GA

 For Respondent

Before: Covette Rooney, Chief Administrative Law Judge

DECISION AND ORDER

Following a complaint, the Occupational Safety and Health Administration (OSHA) 

commenced an investigation of Arbour-HRI Hospitals Inc.’s (HRI) facility in Brookline, MA. At 

the end of the investigation, HRI received a Citation alleging it violated 29 U.S.C. § 654(a)(1), a 

provision commonly referred to as the general duty clause, for exposing employees to the hazard 

of being physically assaulted by patients. HRI timely contested the Citation and a hearing was 
2

held from November 28, 2017, through November 30, 2017. (Stip. 4.) For the reasons discussed, 

the Citation is vacated, and no penalty is assessed. 

JURISDICTION

The record establishes that Respondent filed a timely notice of contest and that it is an 

employer affecting commerce within the meaning of the Occupational Safety and Health Act of 

1970, 29 U.S.C. § 659(c) (the Act). (Stip. 1, 3, 4, Ans. at 2, 3.) Based upon the record, the 

undersigned concludes that the Commission has jurisdiction over the parties and subject matter in 

this case, and Respondent is covered under the Act. (Stip. 2.) 

BACKGROUND

HRI is a 62-bed inpatient behavioral health hospital located in Brookline, MA. (Tr. 41, 

196; Ans. at 2.) It treats patients with psychiatric disorders and illnesses. (Tr. 41-43, 198.) Patients 

only are referred to HRI if they are unable to be treated in a less restrictive setting, such as an outpatient clinic. (Tr. 198-200, 269.) Some patients have a history of violence or aggression before 

they enter the facility. (Tr. 198, 720, 827; Ex. R-24.) Other patients exhibit these behaviors while 

at the facility even without a known history of violence or aggression. (Tr. 234, 365.) 

After a complaint describing aggressive actions taken by patients against staff was filed 

with OSHA, the agency commenced an investigation of HRI on July 29, 2016. (Tr. 57, 439-40, 

692.) A compliance officer (CO) visited the worksite on August 3, 2016, and one additional time 

before the close of the investigation on January 19, 2017.1 (Tr. 692.) OSHA’s investigation 

included an examination of HRI’s approach to the issue of workplace violence, including 

aggression by patients against staff. (Tr. 693-94.) 

 

1 Neither party identified the exact date of the second site visit. 
3

After the investigation concluded, a Citation was issued to HRI, alleging that nurses and 

mental health workers at HRI: “were exposed to acts of workplace violence while working with 

patients who presented aggressive behavior.” This aggressive behavior allegedly included: “direct 

attacks involving punches, kicks, scratches, being hit with objects such as a soda bottle that was 

bounced off a wall,” “being hit with a drawer that a patient pulled out of dresser,” and being bitten, 

hit and/or kicked by patients. The Citation indicates that HRI failed to adequately protect against 

the hazard of employees being physically assaulted by patients. To abate the hazard, the Citation 

sets out several categories of actions to better protect employees from aggressive behavior and 

mitigate the harm from such incidents.

DISCUSSION

The Citation alleges a violation of the general duty clause, which requires every employer 

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.” 29 

U.S.C. § 654(a)(1). (Jt. Pre-Hr’g Stmt. at 7.) To establish a general duty clause violation, the 

Secretary must show: (1) there was an activity or condition in the employer’s workplace that 

constituted a hazard to employees; (2) either the cited employer or its industry recognized that the 

condition or activity was hazardous; (3) the hazard was causing or was likely to cause death or 

serious physical harm; and (4) there were feasible means to eliminate the hazard or materially 

reduce it. Waldon Health Care Ctr., 16 BNA OSHC 1052, 1058 (No. 89-3097, 1993). (Jt. PreHr’g Stmt. at 7.)

According to the Secretary, (1) physically aggressive patients presented a hazard to 

employees; (2) HRI and the behavioral health industry recognized this hazard; (3) HRI employees 

suffered serious injuries while providing care to aggressive individuals; and (4) there are feasible 

and acceptable means of addressing the hazard of patient on staff violence at the worksite. For the 
4

reasons set forth below, the undersigned finds that the Secretary met his burden with respect to the 

first three elements of the test. However, given the abatement methods already in place at HRI, 

the Secretary failed to establish that the additional steps he proposes would eliminate or materially 

reduce the hazard. See Mo. Basin Well Serv., Inc., 26 BNA OSHC 2314, 2319 (No. 13-1817, 

2018) (finding that in the context of a general duty clause violation when the employer has 

undertaken measures to address the cited hazard the Secretary must show that such measures were 

inadequate); Cerro Metal Prods. Div., Marmon Grp., Inc., 12 BNA OSHC 1821, 1825 (No. 78-

5159, 1986) (vacating a general duty citation when employer took all requisite steps to abate 

known hazard). 

I. Patient on Staff Violence is a Hazard at HRI

Generally, workplace violence refers to violent acts that happen in the workplace, including 

assaults and threats of assault. (Tr. 578.) Workplace violence can involve co-workers, or, as the 

Secretary alleges was the situation at HRI, patients. (Exs. R-2, C-30 at 1.) There is no specific 

OSHA standard addressing the hazard of workplace violence. This does not mean that employers 

have no obligation to address the hazard. Rather, if an employer or its industry recognize that 

workplace violence is an actual or potential hazard that can cause death or serious physical harm, 

the Act’s general duty clause requires such employers to act to eliminate or materially reduce the

hazard. 29 U.S.C. § 654(a)(1); Megawest Fin., Inc., No. 93-2879, 1995 WL 383233, at *6 

(O.S.H.C.A.L.J., May 8, 1995) (finding that the Secretary could assert that workplace violence 

constitutes a general duty clause violation). “[T]here is no requirement that there be a ‘significant 

risk’ of the hazard coming to fruition.” Waldon, 16 BNA OSHC at 1059-60. Instead, when 

determining the existence of a hazard, the inquiry is whether there is a significant risk to employees 

if the hazardous event occurs. Id.; Kelly Springfield Tire. Co., 10 BNA OSHC 1970, 1973 (No. 
5

78-4555, 1982) (focus is on the hazard, not the specific incident that resulted or might have resulted 

in injury). 

HRI does not deny its employees experienced violence and that the hazard of patient on 

staff violence remained at the facility despite its abatement efforts. The CEO explained that the 

facility’s patient population includes individuals who are aggressive and may harm others. (Tr. 

198.) Indeed, to qualify for admission to the facility, patients must be considered at risk of harming 

themselves or others. (Tr. 198-99.) Further, several employees had been injured by patient 

aggression in the past. (Tr. 48, 95; Exs. C-1, C-9, C-10 at 5.) The Secretary presented evidence 

of five specific incidents of patient aggression towards staff from May 11 through August 21, 

2016, and company records refer to additional incidents. (Tr. 136, 440-41, 804; Exs. C-1, C-8, C9, C-10 at 5, C-18 at 3.) One such incident involved a patient attacking an employee with a dresser 

drawer. (Tr. 48-49.) The attack left the employee with a fractured wrist and a damaged tendon in 

his knee. (Tr. 99; Ex. C-1.) The employee promptly reported the incident, consistent with HRI’s 

procedures. (Tr. 48-49; Ex. C-1.) HRI managers were aware of this and other acts of aggression 

against employees. (Tr. 45, 51-52, 584; Exs. C-1, C-9.) Thus, at HRI, “a future violent incident 

was neither freakish nor implausible.” See Megawest, 1995 WL 383233, at *8-9 (finding that the 

hazard of workplace violence existed in the cited employer’s facility); Waldon, 16 BNA OSHC at 

1059-60. The Secretary established that patient on staff violence can occur at this facility and it 

presents a hazard to HRI’s employees. 

II. HRI and the Behavioral Health Industry Recognized the Hazard of Patient on Staff 

Violence

The second prong requires showing either that the employer had actual knowledge a 

condition or activity was hazardous, or that the industry knew the activity or condition was 

hazardous. SeaWorld of Florida, LLC v. Perez, 748 F.3d 1202, 1208-9 (D.C. Cir. 2014); Waldon, 
6

16 BNA OSHC at 1061 (“A hazard is ‘recognized’ within the meaning of the general duty clause 

if the hazard is known either by the employer or its industry”). Actual knowledge of a hazard by 

an employer satisfies this requirement. Puffer’s Hardware, Inc. v. OSHRC, 742 F.2d 12, 18 (1st 

Cir. 1984) (finding that the Secretary showed the hazard was recognized because the employer 

warned employees its elevator was hazardous). An employer may gain actual knowledge from 

prior episodes, employee complaints, or warnings communicated to the employer. Id.; St. Joe 

Minerals Corp. v. OSHRC, 647 F.2d 840, 845 (8th Cir. 1981) (employer had both actual and 

constructive knowledge of the hazard when previously warned by at least one employee); 

Pepperidge Farm, Inc., 17 BNA OSHC 1993, 2004, 2030-31 (No. 89-0265, 1997) (finding 

recognition based on memoranda and warnings from employees). 

HRI provides care for patients with “aggressive or assaultive tendencies” and some patients 

can be violent. (Tr. 41-44, 198-200.) The patient admissions process incorporates probing for 

whether a patient previously exhibited violent behavior or if there was a reason to suspect a 

propensity to violence. (Tr. 212, 453; Exs. R-22, R-24.) Such a history did not preclude admitting 

the patient but might alter the observation level assigned to the patient or result in other 

precautions. (Tr. 315, 452-54; Exs. R-22, R-26.) Those patients perceived to be at a higher risk 

of violence and those who act aggressively receive fewer privileges. (Tr. 303, 315, 454, 457-62, 

740; Ex. R-26.) HRI also was aware that even previously non-violent patients may still act 

aggressively towards staff. (Tr. 437.) 

HRI documented, tracked, and trended incidents of violence against staff. (Tr. 51-52, 207,

210, 584.) For example, at its meeting a few days before the CO visited the facility, the 

Environment of Care Committee discussed the fact that there had been twelve reported employee 

injuries related to actions taken by patients in the second quarter of 2016. (Ex. C-19 at 2; Tr. 440-
7

41.) The incidents include being hit with objects as well as being punched and kicked. (Ex. C-9; 

Tr. 45.) Whenever patient aggression results in an employee injury the affected employee must 

report the incident by completing an Employee Accident Report (EAR). (Tr. 85-86; Ex. C-7.) 

HRI tracks the EARs and has a process to make management aware of such events. (Tr. 50-51, 

53, 350, 584; Exs. C-1; C-9.) And, at the hearing, HRI’s Risk Manager, Marie Kong, 

acknowledged that she recognized patients could potentially harm staff, possibly seriously. (Tr. 

44-45.) She was aware that staff was exposed to being punched, kicked, and attacked with objects. 

(Tr. 45, 139.) 

HRI’s training and written policies also support finding that HRI recognized the hazard of 

patient on staff violence. See SeaWorld, 748 F.3d at 1206 (training manuals, safety lectures and 

incident reports provided “abundant” evidence that employer recognized the hazard); Beverly 

Enters., Inc., 19 BNA OSHC 1161, 1186 (No. 91-3344, 2000) (consolidated) (evidence of 

precautions taken can support a finding of hazard recognition). HRI provided specific training on 

workplace violence and how to manage patient behavior. (Exs. R-2, R-20, C-5; Tr. 704.) The 

behavior management component of HRI’s training program is called Handle With Care. (Exs. 

C-5, R-12; Tr. 757.) This program’s training manual includes training on personal defense, such 

as how to defend yourself when someone tries to punch you or attack you with an object, and how 

to physically restrain a patient. (Ex. C-5; Tr. 758.) In addition to teaching these techniques, HRI 

also had a system for staff to call for additional assistance when they could not manage a patient's 

aggression by themselves. (Ex. C-4.) Asking for assistance to manage a patient’s behavior was 

referred to as calling for a Code Green. (Tr. 66.) The policies related to calling a Code Green 

were supplemented by several other written policies addressing actual violent events as well as the

potential for patient on staff violence. (Tr. 170, 315-16, 410; Exs. C-2, C-6, R-4, R-27, R-29, R-
8

30, R-48, R-49.) See Waldon, 16 BNA OSHC at 1061 (noting that protective measures 

implemented by an employer can be used to support finding that the employer recognized the 

hazard). 

Like HRI, other providers of behavioral health services are also aware of the hazard of 

patient on staff violence. The Secretary’s expert, Dr. Lipscomb, was accepted as an expert in 

workplace violence prevention in healthcare settings, including behavioral health facilities. (Tr. 

578.) She has over fifteen years of field research experience, has been involved with many teams 

focused on reducing workplace violence in the healthcare setting, and published several papers on 

the topic. (Tr. 539-4.) She explained that the industry has long known of the problem of patient 

on staff violence. (Tr. 585.) See ACME Energy Servs., 23 BNA OSHC 2121, 2124 (No. 08-0088, 

2012) (“Industry recognition may be shown through the knowledge or understanding of safety 

experts familiar with the workplace conditions or the hazard in question”), aff’d, 542 F. App’x 356 

(5th Cir. 2013) (unpublished); Waste Mgmt. of Palm Beach, 17 BNA OSHC 1308, 1310 (No. 93-

128, 1995) (expert “familiar with the general workplace condition” established recognition). As 

support for her position, in addition to her own experience, she also pointed out that OSHA, the

Centers for Disease Control (CDC), and the Federal Bureau of Investigation (FBI) each issued 

guidelines on workplace violence. (Tr. 585; Exs. C-27, C-28, C-29.) OSHA’s 1996 Guidelines 

for Preventing Workplace Violence for Healthcare and Social Service Workers (OSHA 

Guidelines) notes that while no diagnosis predicts future violence, inpatient psychiatric patients 

are among the groups that present the highest risk for such episodes. (Ex. C-27 at 9-10.) The 

guidelines from the CDC and FBI also specifically discuss the risk of patient assaults against care 

providers. (Exs. C-28 at 15-17, 29; C-29 at 12-14, 54-56.) 
9

HRI does not refute the Secretary’s position that both it and the industry as a whole 

recognize the hazard of patient on staff violence. See Pegasus Tower, 21 BNA OSHC 1190, 1191 

(No. 01-0547, 2005) (finding that employer recognized the dangers associated with an activity and 

affirming a general duty clause violation). The company's expert, Monica Cooke, was accepted 

as an expert on risk reduction in healthcare settings for workplace violence, specifically patient to 

staff aggression in a behavioral health hospital setting. (Tr. 871.) Ms. Cooke concurred with Dr. 

Lipscomb that behavioral health facilities generally recognize the hazard of patient on staff 

violence in their facilities. (Tr. 892, 917.) And, she also agreed that HRI, in particular, recognized 

the hazard of patient on staff violence at its facility.2 (Tr. 891, 916-17.) For these reasons, the 

Secretary met the second criterion for finding a violation of the general duty clause. 

III. Workplace Violence Was Causing Serious Physical Harm

The third prong of the general duty clause test requires the Secretary to show that the hazard 

was causing or was likely to cause death or serious physical harm. Waldon, 16 BNA OSHC at 

1060. This inquiry does not turn on the likelihood of an accident or injury. Id. Instead, the focus 

is on whether, if an accident occurred, are the results likely to be death or serious harm. Id. 

Ms. Cooke acknowledged that patients at Respondent’s facility could inflict serious harm 

on employees. (Tr. 892.) Beyond this theoretical risk, the Secretary also established that HRI 

employees had been injured by patients in the past. (Tr. 48-49, 94, 220-21, 366, 579; Exs. C-1, C9, C-10, C-19 at 2.) Some of these incidents required medical treatment, including hospitalization 

and long-term follow up care. (Ex. C-19 at 2-3; Tr. 99, 127, 805-6.) One worker suffered a head 

and eye injury that required medical attention. (Tr. 94, 948-49.) Another suffered a head and neck 

 

2 At the hearing, HRI’s counsel also acknowledged that she did not think HRI was “disputing 

there’s a recognized hazard.” (Tr. 918.) 
10

injury that required months of physical therapy. (Tr. 805-6.) The Secretary showed if the hazard 

of patient on staff violence occurs, it can result in serious physical harm or death. See Waldon, 16 

BNA OSHC at 1060.

IV. Abatement

Having found that patient on staff aggression is a recognized hazard at HRI that could lead 

to a serious injury, we turn to whether the Secretary satisfied the abatement prong of the test. See 

Waldon, 16 BNA OSHC at 1062. The Secretary concedes that the hazard of patient on staff 

violence cannot be eliminated but argues that there are feasible means to materially reduce the 

number of incidents and their severity. See Arcadian Corp., 20 BNA OSHC 2007, 2011 (No. 93-

0628, 2004) (finding that the Secretary only has to show that the abatement method would 

materially reduce the hazard, not that it would eliminate the hazard); Morrison-Knudson 

Co./Yonkers Contracting Co., A Joint Venture, 16 BNA OSHC 1105, 1122 (No. 88-572, 1993) 

(same). 

In response, HRI argues it took many precautions that collectively adequately address 

patient aggression towards staff. (Resp’t Br. at 24-44.) And it contends the Secretary failed to 

establish that the additional abatement steps he proposes would be effective in materially reducing 

the hazard. Id. at 50-65. 

A. Feasible Means to Materially Reduce the Hazard Exist

The Secretary does not propose any action or set of actions which HRI can take to eliminate 

the hazard of patient on staff violence. (Sec’y Br. at 43.) Nonetheless, he argues that multiple 

measures can materially reduce violence against staff. Id. at 44. Such a showing would be 

sufficient to find a violation. See Arcadian, 20 BNA OSHC at 2011 (Secretary satisfies the 

abatement requirement by demonstrating feasible actions that can materially reduce a hazard). 
11

Both sides presented expert testimony regarding abating the hazard of patient on staff 

violence. Dr. Lipscomb testified on behalf of the Secretary and argued that steps can be taken to 

materially reduce the cited hazard. She cites a peer-reviewed randomized study led by Judith 

Arnetz, Ph.D. (hereafter, Arnetz Study)3 which concludes that by implementing certain measures 

suggested by OSHA’s Guidelines medical facilities were able to reduce the rate of increase in 

patient on staff violence. (Tr. 585; Exs. C-27, C-30.) In her view, the Arnetz Study was rigorous 

and conducted by well-recognized researchers. (Tr. 562.) It involved forty-one units at seven 

different hospitals being randomly assigned to either intervention or non-intervention groups. (Ex. 

C-30 at 1.) The intervention group implemented various strategies set forth in the OSHA 

Guidelines. (Tr. 608-9; Exs. C-28, C-30.) Each unit did not have to implement the same strategies. 

(Tr. 611-12.) They were given a “menu” of options and could select what they considered to be 

“the most appropriate strategy” based on the unit’s unique features. (Tr. 611.) The Arnetz Study 

concludes that the interventions were effective in decreasing risks of patient to worker violence 

and related injuries. (Tr. 608-12; Exs. C-27, C-30.) Dr. Lipscomb argued that the Arnetz Study 

supported her view that there were feasible steps HRI could take to materially reduce the hazard 

of patient on staff violence. (Tr. 585.)

Respondent replies that the results of the Arnetz Study were published after the inspection 

date and should not be considered. (Resp’t Br. at 3.) However, the Secretary does not rely on the 

Arnetz Study to support finding HRI or the industry recognized the hazard. Rather, the papers 

 

3 The results of the Arnetz Study were published in two related papers, Judith E. Arnetz, Lydia 

Hamblin et al., Preventing Patient to Worker Violence in Hospitals: Outcome of a Randomized 

Controlled Intervention, 59 Am. C. of Occupational and Envtl. Med. 18 (2017), and Lydia E. 

Hamblin, Judith E. Arnetz, et al., Worksite Walkthrough Intervention, 59 Am. C. of Occupational 

and Envtl. Med. 875 (2017). (Tr. 608, 611, 623; Exs. C-30, C-31.) The later paper provided 

further details on the interventions used in the initial study. (Ex. C-31; Tr. 611-12.) 
12

relating to the Arnetz Study were admitted as something Dr. Lipscomb relied on when she assessed 

whether actions can reduce the hazard of patient on staff violence at HRI and what those actions 

should be. (Tr. 563-64; Exs. C-30, C-31.) The interventions reviewed as part of the Arnetz Study 

were based on the OSHA Guidelines first published in 1996 and updated in 2004 and 2015, well 

before the inspection. (Tr. 467, 624; Exs. C-27, C-30, C-31.) And, Respondent did not identify 

information in the Arnetz Study that was unavailable or technologically or economically infeasible 

prior to the issuance of the Citation. (Tr. 566.) 

Besides the timing of the publications, Respondent also points out limitations with applying 

the Arnetz Study to HRI. (Resp’t Br. at 45-47.) First, none of the units in the intervention group 

were standalone facilities focused on providing psychiatric care, like is the case at HRI. (Tr. 620; 

Ex. C-30 at 7.) Second, because the facilities in the intervention group could select from a variety 

of environmental, administrative, and behavioral strategies, the Arnetz Study does not 

conclusively establish the effectiveness of any one intervention. (Tr. 611-12; Ex. C-30 at 7.) Dr. 

Lipscomb agreed with this assessment, conceding that the Arnetz Study did not show there was a 

single “silver bullet” that could be used to address the hazard. (Tr. 623.) Rather, in her view, the 

study shows the need for a comprehensive program that considers a facility’s particular features. 

(Tr. 622-23, 686-87.) Third, Respondent argues that prior to the inspection, it implemented some 

of the intervention strategies noted in the Arnetz Study, particularly safety monitoring, consults 

with psychiatry, de-escalation training, and behavior management classes. (Resp’t Br. at 45-46.) 

So, in Respondent’s view, taking some of the other actions on the available “menu” of 

interventions would not necessarily reduce the hazard further. Id. 

The undersigned accepts the Arnetz Study as something Dr. Lipscomb relied on to 

formulate her opinion but agrees with Respondent that it does not answer whether HRI’s abatement 
13

was sufficient. (Ex. C-30; Tr. 563-66.) Nor does the Arnetz Study establish that the Secretary’s 

proposed methods of abatement would materially reduce the hazard beyond what has been 

accomplished by HRI’s methods. See Beverly, 19 BNA OSHC at 1190 (proposed abatement 

measures must be “capable of being put into effect” and “effective in reducing the incidence of the 

hazard”). However, the Arnetz Study does bear on the threshold issue of whether there are feasible 

means to address the hazard of patient on staff violence. And on that issue, Respondent’s expert, 

Ms. Cooke, appeared to agree that there are many ways to mitigate the risk of patient to staff 

aggression, such as through employee training and by searching for contraband. (Tr. 886-87, 920.) 

Such measures were part of HRI’s program to manage workplace violence. (Exs. R-2, R-6, R-20; 

Tr. 681, 695, 918.) HRI argues that the steps it took were more than adequate to address the 

hazard. (Resp’t Br. at 25-28.) By arguing its approach was effective, HRI implicitly acknowledges 

that providers of behavioral health services can take steps to mitigate the hazard of patient on staff 

violence. Further, as the company has already taken these steps, there is no basis for arguing they

could not be implemented. (Exs. R-2, R-6; Tr. 681, 695.) See SeaWorld, 748 F.3d at 1215 (finding 

that evidence of post-citation methods of abatement taken by employer support finding that the 

proposed means were feasible). While it may not be possible to eliminate patient on staff violence 

at a behavioral health facility, both experts indicate there are ways to reduce such incidents and 

limit their severity. (Tr. 585, 886-87.) 

B. Sufficiency of HRI’s Abatement

Having found there are steps that can be taken to reduce the hazard of patient on staff 

violence, we turn to the adequacy of HRI’s approach. See Mo. Basin, 26 BNA OSHC at 2319; 

U.S. Postal Serv., 21 BNA OSHC 1767, 1773-74 (No. 04-0316, 2006) (Secretary must show that 

the methods the employer used to address the hazard were inadequate). HRI maintains that 
14

everything it does in its day to day operations contributes to reducing patient aggression towards 

staff. (Resp’t Br. at 25; Tr. 54-55, 205.) It contends it has a robust workplace violence prevention 

program and argues that the Secretary failed to show the measures it took were inadequate to 

prevent the hazard of patient on staff violence. (Resp’t Br. at 24-43.) The Secretary disputes this, 

contending that: (1) HRI’s workplace violence training was insufficient, and (2) it lacked adequate 

policies and procedures to materially reduce the hazard of patient on staff violence. (Sec’y Br. at 

48-51.) 

1. Training 

The Secretary argues that HRI’s training was inadequate and asserts that HRI could 

materially reduce the hazard by adopting more effective training. (Sec’y Br. at 50.) HRI does not 

deny that it can train employees on workplace violence prevention strategies and that doing so is 

an effective means of reducing the hazard of patient on staff violence. (Tr. 310, 493.) The 

company has a training program for all staff, including those without direct care responsibilities, 

before they begin work. (Tr. 171, 204, 445; Ex. R-20.) The training includes a presentation 

directly about workplace violence as well as on subjects related to the hazard. (Ex. R-2; Tr. 309-

12, 718, 722.) For example, HRI trains employees about how to identify potentially aggressive 

patients, how to reduce the likelihood a patient will become agitated, and how to de-escalate 

situations if the patient is already agitated. (Tr. 310-11, 314, 325, 441, 682, 718-19, 723-24, 729-

745, 750, 755; Exs. R-12, R-13.) The training includes a full day on de-escalation techniques. (Tr. 

750-56; Exs. R-13, R-20.) Employees are tested at the end of the training and any wrong answers 

are discussed. (Tr. 755.) HRI trains staff on what it refers to as “trauma-informed care.” (Tr. 707-

8; Ex. R-20 at 1.) Under this approach, employees are taught to anticipate that patients may act 

aggressively even if their medical history does not indicate trauma or past aggression. (Tr. 707-
15

8.) HRI teaches employees behavior management techniques, including when and how to restrain 

patients. (Tr. 77, 211, 310, 314, 325, 593, 749, 757; Exs. R-12, R-20.) They are trained to identify 

and remove contraband, including by using metal detectors. (Tr. 742-43, 748; Exs. R-20 at 2, 4, 

R.61.) The training program includes both classroom instruction and hands-on learning. After

receiving instructions from a nurse educator, new employees “shadow” staff before taking on 

direct care responsibilities.4(Tr. 761, 777.) They then must demonstrate competency in topics 

related to workplace safety before they can engage in direct patient care. (Tr. 761-63, 772-78; 

Exs. R-10, R-11.)

In addition to the new employee training, HRI also requires annual re-certification on 

certain topics, such as verbal de-escalation and restraints. (Tr. 756, 758.) Re-training is also 

provided if called for based on an incident or if requested by an employee. (Tr. 722, 756-59.) For 

example, the Restraint Elimination Committee will refer people for additional training if they think 

it is needed based on what they see when reviewing camera footage of an incident. (Tr. 512-15.) 

Every month, HRI tracks how many trainings are offered and reviews training records to make 

sure employees are receiving the necessary training. (Tr. 513-15; Ex. R-57.) 

According to Respondent’s expert, Ms. Cooke, HRI’s staff received several more hours of 

annual training on managing patients than what is typical in the behavioral health industry. (Tr. 

887-90.) Dr. Lipscomb does not refute this. In terms of the training’s substance, Dr. Lipscomb 

agreed that the information provided on de-escalation was good. (Tr. 642.) She acknowledged 

that HRI’s training on de-escalation and patient aggression was “well received by the workers.” 

 

4 Direct care staff includes anyone that provides care to patients, including, mental health workers, 

mental health supervisors, nurses, nurse managers, and social workers. (Tr. 941.) 
16

(Tr. 604-5, 681-82.) She did not suggest that any mental health worker or nurse was not doing his 

or her job adequately. (Tr. 667.) 

Still, Dr. Lipscomb called for “additional” and “more effective training.” (Tr. 604-5.) She 

suggested HRI could correct the alleged deficiency by ensuring that the skills covered in HRI’s 

verbal de-escalation and restraint training were taught in the context of a “larger program” that 

defines patient on staff violence and indicates what the process is for reporting incidents and 

calling codes. Id. Specifically, she argued that HRI’s training did not: (a) define workplace 

violence, (b) explain when to call a code, or (c) include adequate information about incident 

reporting. (Tr. 604-5, 684.) But, as explained below, the Secretary did not show that HRI’s 

program inadequately addressed these topics.

a) Defining Workplace Violence

First, with respect to whether HRI’s training includes a definition of workplace violence, 

HRI produced a collection of slides from a presentation to new employees. (Ex. R-2.) The slides 

expressly define workplace violence as “any physical assault, threatening behavior or verbal abuse 

occurring in the work setting.” (Ex. R-2; Tr. 635.) And they provide various examples of 

workplace violence events, including violence by patients. (Ex. R-2; Tr. 636, 640-74.) The slides 

include information about risk factors for workplace violence, describe the warning signs of 

violence, and suggests precautions employees should take. (Ex. R-2; Tr. 637-40, 642-43.) 

Consistent with HRI’s other training, the slides include a reminder that employees should report 

all incidents of workplace injuries, even if minor. (Tr. 639-40, 643-44; Exs. R-2, R-4, C-6, C-7.) 

The CO acknowledged receiving these slides before the close of her investigation and 

believed they were part of HRI’s orientation program for new employees. (Tr. 698.) Still, she 

noted that employees did not mention whether this presentation in discussions about their training. 
17

Id. But, HRI’s nurse educator explained that the presentation was part of orientation for new 

employees.5 (Tr. 703, 709-10.) He himself was trained by another employee using the slides and 

he now conducts training on workplace violence using the same slides. (Tr. 709-22; Ex. R-2.) His 

account of the training is supported by the agenda for new employee training, which explicitly 

refers to the topic of “workplace violence.” (Ex. R-20; Tr. 709.) 

Dr. Lipscomb did not appear to recall reviewing the presentation and acknowledged that 

she did not ask any of the former employees she spoke to about whether they were trained on the 

workplace violence prevention slides that make-up the exhibit. (Tr. 632-35, 644; Ex. R-2.) She 

agreed that the presentation contained an appropriate definition of workplace violence. (Tr. 635.) 

And she considered the information included in the written training materials on preventing and 

diffusing aggressive behavior contained in the training to be good advice. (Tr. 641-42, 645.) 

Accordingly, the Secretary fails to prove that employees were not trained about what workplace 

violence is. 

b) Training About Calling for Assistance (Code Greens)

The second deficiency alleged by the Secretary relates to teaching employees about when 

to call for assistance. HRI calls its procedure for getting assistance in the event of a psychiatric 

emergency “Code Green.” (Tr. 67, 316; Ex. C-4.) An actual or threatened assault on a staff 

member may trigger a Code Green. (Tr. 319.) The Code Green policy is part of HRI’s workplace 

violence procedures.6 (Tr. 316.) To initiate a Code Green, a staff member uses a telephone 

 

5 The presentation materials are dated August 2016. (Tr. 644; Ex. R-2.)

6 HRI's Code Green policy was effective as of August 2007 and was most recently reviewed in 

December 2016. (Tr. 69; Ex. C-4.) 
18

intercom system to announce a Code Green and identify the location of the emergency within the 

facility. (Tr. 70-71.) Employees can also call out “Code Green” verbally to their co-workers 

instead of using the phone. (Tr. 318.) Various staff, including mental health workers and a social 

worker, are required to respond to the Code Green and perform assigned roles.7(Tr. 70, 277, 317-

19; Ex. C-4.) Code Greens can involve attempts to engage in further verbal de-escalation or 

restraining a patient if necessary. (Tr. 443.) Staff is made aware of any Code Greens even if they 

were not on the unit when it occurred. (Tr. 323, 415.) HRI’s Code Green policy was in effect at 

the time of OSHA’s inspection and is periodically reviewed. (Tr. 69, 419.) 

According to Dr. Lipscomb, a former employee expressed some confusion about when to 

call a Code Green. (Tr. 603, 605.) This employee was attacked by a patient after he responded to 

some loud noises. (Tr. 603.) As part of the post-incident de-briefing, a manager explained to the 

employee that he should have gotten assistance before investigating alone. Id. After this incident, 

in the words of Dr. Lipscomb, the employee “overcompensated” during a subsequent incident and 

called an unnecessary code. Id. 

There is no debate that HRI trains employees on when to call a Code Green and how to do 

it. (Tr. 424, 447, 886; Ex. C-4.) HRI’s Risk Manager acknowledged that knowing when to call a 

Code Green was important. (Tr. 428-29.) She made clear HRI wants employees to call a Code 

Green when there is an emergency and that management would rather have employees err on the 

side of calling a Code Green. Id. She explained the company’s desire for employees to call a 

Code Green early in the process of addressing an aggressive patient before they engage in any 

restraint technique. (Tr. 330.) 

 

7 The nurse manager could re-assign or alter the roles of the staff responding to Code Green 

depending on the nature of the situation. (Tr. 328, 418.) 
19

The Secretary does not identify what in HRI’s policies or procedures was unclear or 

confusing. Like Dr. Lipscomb, Ms. Cooke also reviewed HRI’s training program, including its 

Code Green procedures. (Tr. 873.) She discussed it with current employees, who indicated that 

training was very well done, informative, and helpful on a daily basis. (Tr. 873-74.) As noted 

above, the training included classroom instruction, written policies, shadowing workers, and 

testing. (Tr. 761, 777; Exs. C-4, R-10, R-11, R-20.) At least one member of senior leadership is 

also required to attend the code if it occurs during business hours and HRI tracks all incidents to 

ensure this occurs. (Ex. R-57.) In addition, HRI conducts video reviews of codes and sends 

employees for further training if it identifies deficiencies in how they responded to a code. (Tr. 

510.) The Secretary neglected to sufficiently articulate how training on HRI’s Code Green policy 

could be structured differently so as to materially reduce the hazard.8 See Cerro Metal, 12 BNA 

OSHC at 1825 (finding that the Secretary failed to show there was a “specific, feasible additional 

step” the employer could have taken to improve communication of the work rule). 

c) Training About Incident Reporting

The third area of deficiency in training the Secretary cites relates to incident reporting. 

(Sec’y Br. at 49-50.) HRI trains employees on reporting both staff injuries and patient 

aggression. (Tr. 708-9; Ex. R-20.) It instructs employees to report all incidents, including those 

involving patient aggression towards staff, “right away.” (Tr. 708-9, 715, 722; Ex. R-2 at 8.) 

Accidents must be investigated, and employees are instructed to attempt to remedy any unsafe 

condition or practice. (Exs. C-7, R-2 at 5; Tr. 708, 717, 351.) Employees are also told that reports 

 

8 The Citation also states that a feasible method of abatement for the hazard include ensuring “that 

all staff know which staff members are designated to respond to Code Green incidents on each 

shift.” The Secretary did not establish that employees did not know who was to respond to a Code 

Green. 
20

of violence will be treated seriously and confidentially. (Tr. 717; Ex. R-2 at 5.) The procedures 

for reporting accidents are posted in several places throughout the facility. (Tr. 347-48; Ex. C-6.) 

All nurses and mental health workers must demonstrate competency in understanding incident 

reports before they can begin their regular duties. (Tr. 761, 774, 780; Exs. R-10, R-11.) There is 

no evidence of employees failing to report incidents, or not understanding that they needed to be 

reported.

9

 Thus, the Secretary failed to show that HRI’s training about incident reporting was 

inadequate.

d) Burden Not Met

Ms. Cooke did not agree with Dr. Lipscomb’s view that HRI needed to provide more 

effective training. (Tr. 887-88.) She argued that both the amount and scope of HRI’s training 

went beyond what she typically encounters in behavioral health facilities. (Tr. 888-90.) The 

Secretary does not establish any topic relevant to the hazard on which HRI employees received no 

training. Nor does the Secretary show HRI spent an insufficient amount of time on training. 

Although it may well be true that there are certain actions HRI could take to improve its training, 

the Secretary needed to identify deficiencies in HRI’s approach and show that the suggested 

 

9 As discussed below, HRI did have a “Near Miss Log” that seemed to include actual injuries as 

well as “near miss” incidents. (Tr. 93; Ex. C-8.) The Near Miss Log was not part of HRI’s regular 

incident reporting procedures or tracking system. (Tr. 91-93.) So, its over-inclusive nature does 

not appear to be connected to any deficiencies in HRI’s training program. 
21

changes would materially reduce the hazard.10 See Ala. Power Co., 13 BNA OSHC 1240, 1245 

(No. 84-357, 1987) (Secretary failed to show safety rules were inadequate).

2. Policies and Procedures

In addition to alleging deficient training, the Secretary also argues that HRI’s policies and 

procedures were insufficient. (Sec’y Br. at 45-46, 48-51.) He asserts that HRI needed: (1) a 

comprehensive written workplace violence prevention program that included a workplace violence 

prevention coordinator, incident reporting, incident tracking, and staff involvement; and (2) 

adequate staffing. Id. According to the Secretary, having a comprehensive workplace violence 

prevention program and adequate staffing were necessary and feasible to materially reduce the 

hazard. Id. 

a) Comprehensive Written Workplace Violence Prevention Program

HRI first suggests that the Secretary failed to establish that having any program materially 

reduces the hazard. (Resp’t Br. at 63.) But, Dr. Lipscomb and HRI’s CEO have a different view. 

Dr. Lipscomb explained that a written plan was an important mechanism to ensure everyone in the 

organization had the same understanding and was working toward the same goal of reducing 

workplace violence. (Tr. 606-7.) Her view is supported by her experience in the field as well as 

general guidance documents on workplace violence published by OSHA, the CDC, the FBI, and

 

10 In his brief, the Secretary frames some of the alleged deficiencies slightly differently than how 

Dr. Lipscomb did during the hearing. The Secretary argues that effective training “would include 

training on a comprehensive workplace violence prevention program, incident report procedures 

and the specifics of what qualifies as a ‘psychiatric emergency’ justifying a Code Green.” (Sec’y 

Br. at 50.) To the extent that this formulation implies anything different than what Dr. Lipscomb 

suggested at the hearing, the undersigned finds that the Secretary failed to put forth sufficient 

evidence supporting such a contention. HRI had a workplace violence prevention program that 

included training on incident reporting and calling a Code Green.
22

the American National Standards Institute (ANSI). (Exs. C-27 at 11, C-28 at 23, 27, C-29 at 55.) 

HRI’s CEO agreed with Dr. Lipscomb about the importance of having policies and procedures 

related to workplace violence. She argued that the written policies that make-up HRI’s workplace 

violence prevention program “prevents injuries to patients or to staff.” (Tr. 170.) In her view, the 

company’s policies work together to reduce patient aggression and improve safety. (Tr. 170-71.) 

Thus, the company’s own experience corroborates Dr. Lipscomb’s view that written policies and 

procedures reduce the hazard. 

Although the Secretary showed that a written workplace violence prevention program can 

reduce the hazard, under Commission precedent, the Secretary also needed to show that HRI’s 

approach was inadequate. See Mo. Basin, 26 BNA OSHC at 2319. Cf. Indus. Glass, 15 BNA 

OSHC 1594, 1604 (No. 88-348, 1992) (recognizing that heat can be a hazard but concluding that 

the company’s effective measures to reduce exposure and alleviate its effects precluded finding a 

violation of the general duty clause). And as to that issue, HRI argues it has a comprehensive 

written program to address workplace violence both directly and indirectly. (Tr. 55, 170, 986, Ex. 

C-2.) HRI’s “Workplace Violence” policy states that the facility has “zero tolerance for violence 

of any kind” and goes on to indicate that management is “committed to providing an environment 

free from all forms of violence including ... physical threats or acts of physical assault.” (Tr. 169; 

Ex. C-2 at 1.) Under this policy’s terms, all reports of violence are to be “treated seriously and 

fully investigated.”11 (Ex. C-2 at 1.) The Workplace Violence policy is supplemented by others

addressing: (1) handling psychiatric emergencies (i.e., Code Green); (2) reporting employee 

accidents; (3) identifying and assigning different precaution levels for at-risk patients, such as 

 

11 HRI explained that the document was focused on violence among co-workers even though it 

refers to “non-employees” and “individuals.” (Tr. 64, 160; Ex. C-2.)
23

increasing observation levels and/or limiting privileges; (4) staffing; (5) escorting patients outside 

of the unit; (6) conducting searches of patients, patient areas, and patient possessions for prohibited 

items (contraband); (7) using restraints with patients and debriefing staff after any such incident; 

(8) visitors; and (9) patient responsibilities. (Exs. C-4, C-7, R-22, R-26, R-27, R-29, R-30, R-35, 

R-38, R-48, R-49; Tr. 170-71, 308-9, 315-16, 410, 499.) HRI maintained the various written 

policies that collectively constitute its written workplace violence prevention program in a binder, 

as well as online where they were all accessible to staff through a shared drive.12 (Tr. 54-58, 314-

15, 410, 443-44.) These policies were regularly reviewed and updated.

13

 (Tr. 69, 85, 452, 467, 

472, 485.) According to HRI’s CEO, these policies work together to mitigate the hazard of patient 

on staff violence. (Tr. 169-71.) 

Beyond the written policies and procedures HRI’s workplace violence prevention program 

also included: (1) a management commitment to reducing patient aggression against staff; (2) 

employee participation in addressing safety, including workplace violence; (3) analyzing for things 

that could contribute to the hazard of patient on staff violence; (4) preventing and controlling 

patient aggression when it occurs; (5) maintaining adequate staffing, (6) comprehensive training, 

including on how to prevent the hazard of patient on staff violence and ways minimize harm from 

such incidents if they occur. (Tr. 170-71, 209, 708-22; Exs. R-19, R-20, R-57, R-61; Resp’t Br. at 

25-40, 63-65.) 

 

12 At the time of the initial inspection, this binder was present at the facility but was not provided 

to the CO. (Tr. 54-55, 57-58.) However, HRI subsequently provided it to the CO at her follow up 

visit. (Tr. 693.)

13 The policies list the date the policy was first effective and the date of the most recent review or 

revision. (Tr. 452, 467, 472, 480-81, 485, 741.) 
24

The Secretary argues that the program was inadequate because it: (1) lacked a workplace 

violence coordinator, (2) did not include standardized incident reporting, tracking, and analysis, 

and (3) did not provide for sufficient employee involvement. (Sec’y Br. at 17-20, 50-51.) 

(1) Workplace Violence Prevention Coordinator

HRI does not dispute that management needs to be committed to workplace violence 

prevention and that people must be assigned responsibilities to implement and ensure compliance 

with the policies and procedures. (Resp’t Br. at 64-65.) What it disagrees with is the Secretary’s 

contention that it must have one person with the title of workplace violence coordinator. Id. HRI 

believed that everyone was responsible for addressing workplace violence. (Tr. 54-55, 204-5, 251, 

451.) The risk management group along with the human resources department oversaw the HRI’s 

program. (Tr. 49-50.) Ms. Kong tracked, trended, and reported to the leadership team about 

workplace violence trends. (Tr. 50-51, 207.) The clinical director and physicians also tracked and 

trended incidents. (Tr. 207.) On the units, staff tracked incidents, such as contraband and

altercations. (Tr. 780-81.) Multiple managers had specific responsibilities related to workplace 

violence prevention and intervention when such situations occurred. (Tr. 75, 207, 277, 293; Exs. 

C-2, C-4, C-6.) These managers, including the CEO, reviewed all incident reports, such as those 

related to the hazard of patient on staff violence, in their daily Flash meetings. (Tr. 211-13.) These 

Flash meetings also address incidents of patient aggression, the reasons for any staff injuries, and 

the need for any corrective actions related to thereto. (Tr. 213-14.) Besides those discussions, 

HRI also has three committees tasked with responsibilities related to mitigating the hazard of 

patient on staff violence. (Tr. 100, 104-5, 171.) Notes from these committees indicate that patient 

on staff violence was routinely discussed, mitigating measures were evaluated and various actions 

were taken. (Tr. 440-41; Ex. R-55.) 
25

The Secretary does not allege that HRI needed a full-time position focused solely on 

workplace violence prevention. Dr. Lipscomb only called for someone with “dedicated time” to 

this area. (Tr. 607-8.) The Secretary does not identify any task a workplace violence coordinator 

would perform that was not already being done by HRI employees at the time of the inspection. 

He did not explain how one individual in the role of workplace violence coordinator was superior 

to HRI’s approach of having multiple managers, including the CEO, dedicating time to mitigating 

the hazard and having specific responsibilities for it. See Pelron Corp., 12 BNA OSHC 1833, 

1838 (No. 82-388, 1986) (finding the Secretary failed to prove that addressing the lack of formality 

in the employer’s safety program would materially reduce the hazard). 

(2) Incident Reporting and Tracking

The Citation suggests a feasible method of abatement is for HRI to: “Implement incident 

reporting and prompt investigations to ensure all reports resulting in injury are promptly 

investigated with written findings, recommendations, and a plan for corrective action.” As 

discussed above, HRI already has an incident reporting policy requiring employees to immediately 

report all accidents and injuries to their supervisor, regardless of their severity. (Tr. 84, 348-49, 

722; Exs. C-6, C-7, R-2 at 8.) Unless the employee needs medical attention, the employee must 

complete a written report, the EAR. (Tr. 349-50.) Threats of violence, as well as incidents of 

patient aggression that do not result in a staff injury, are also to be reported. (Tr. 177, 296-301.) 

Management promptly reviews any EARs and they are discussed at the daily Flash meeting. (Tr. 

350.) In addition to discussing the EAR, HRI completes a review of any available video footage 

of the incident. (Tr. 350-51.) HRI uses this camera review and the EARs to facilitate specific 

follow up as well as to track patient on staff violence at the facility over time. (Tr. 385; Exs. C-6, 

C-7, C-9, C-10.) Doing so is part of its workplace violence prevention strategy. (Tr. 385.) 
26

HRI also tracks occurrences related to the hazard of patient on staff violence, such as 

aggressive behavior against other patients and the presence of contraband, even if the occurrences

do not result in actual injuries to staff.14 (Tr. 258-61, 383, 396; Ex. R-55.) Managers 

acknowledged that requiring incident reporting and tracking incidents of violence allows HRI to 

learn and take both corrective and preventative actions. (Tr. 262, 349-51, 385.) 

So, the issue here is not whether reporting and tracking incidents is a feasible means of 

abatement or part of addressing workplace violence.15 The debate is whether the Secretary showed 

that HRI was deficient in implementing this workplace violence prevention strategy. To make this 

showing, the Secretary relies on a document titled HRI Near Miss Log. (Sec’y Br. at 3-5, 12-13; 

Tr. 92; Ex. C-8.) HRI considers a near miss to be an incident that did not result in staff injury but 

had the potential to do so. (Tr. 91.) There is no evidence HRI failed to record any such near miss. 

However, it appears that the HRI Near Miss Log included four incidents involving actual injuries 

as opposed to “near misses.” (Tr. 92-97; Ex. C-8.) 

The Secretary failed to show that this error resulted in any workplace violence risk. The 

HRI Near Miss Log was not the primary record of workplace violence incidents and there is no 

evidence the document was relied on to formulate workplace violence prevention decisions. 

Instead, managers used the more detailed EARs, which provide substantive details and clearly 

indicate when injuries occurred. (Tr. 95-96; Ex. C-1.) There is no evidence of an actual injury for 

which no EAR was prepared. Beyond reviewing the EARs, follow up on employee injuries 

 

14 HRI was concerned about patient access to items that could harm staff. (Tr. 469, 642, 743.) So, 

HRI trained staff about contraband and searches all patients as well as their belongings in the 

admissions area before the patient enters the unit. (Tr. 467-69, 742-43; Exs. R-27, R-61.) 

Additional searches occur on the unit when employees suspect that contraband may be present and 

when ordered by a physician. (Tr. 467, 469-70.) 

15 The Secretary does not allege that HRI violated any OSHA standards related to recordkeeping. 
27

includes reviews of security camera footage if available and employee interviews. (Tr. 215, 351-

52, 510.) Three committees also review incident reports, look for trends, and assess potential 

corrective actions. (Tr. 171-72, 257-62, 284-85, 440-41, 510-19; Exs. R-55, R-57.) Thus, 

although it appears that the HRI Near Miss Log was over-inclusive, HRI had methods to capture 

and review information related to both the potential for patient on staff violence and actual injuries. 

(Tr. 348-52.) 

HRI trains employees on how and when to report incidents. (Tr. 708, 722; Exs. R-20, R2.) It tracks incidents in writing, requires managers to promptly review all incident reports, and 

makes employees aware of incidents that occur. The CEO explained that she participates in the 

reviews of incidents and follows up with the committees to make sure they are aware of trends and 

continuing to review the company’s approach to workplace violence. (Tr. 209-10, 213-14.) She 

also testified that even if an instance of aggressive behavior did not result in any injuries it would 

still be discussed at the daily Flash meeting and the need for corrective action would be considered. 

(Tr. 212-15.) She emphasized the importance of these discussions. (Tr. 214.) Despite some 

discrete errors in its internal tracking, HRI showed that incidents were reported, analyzed, and 

followed up on. (Tr. 215; Ex. C-1.) The Secretary did not identify instances where an incident 

went unreported or where management did not review an instance of patient on staff violence. Nor 

did he establish that HRI failed to examine the causes of such instances or act on the information 

learned. 

(3) Employee Involvement

The Secretary also argues that HRI should include non-management “employees in the 

planning, development, and implementation of workplace violence prevention efforts.” (Sec’y Br. 

at 48-49.) OSHA, the CDC, and ANSI all call for “employee involvement” in workplace violence 
28

prevention programs. (Exs. C-27 at 13, C-28 at 21, 26, C-32 at 18.) Dr. Lipscomb explained that 

“employee involvement” was an important workplace prevention strategy.16 (Tr. 595-96.) She 

was not asked to define “involvement” but indicated that it required the attendance of direct care 

staff and non-management individuals at committee meetings and making minutes of the meetings 

available. (Tr. 596-99.) In his brief, the Secretary argues that to have sufficient employee 

involvement requires HRI to: (1) schedule meetings at convenient times, (2) provide staff coverage 

so employees can participate in meetings, and (3) allow “employees to participate in developing 

the plan and setting the agenda.” (Sec’y Br. at 49.) 

Looking first at HRI’s committees, HRI does not have a committee focused solely on in 

preventing and mitigating workplace violence. (Tr. 104.) Instead, workplace violence is within 

the responsibilities of three standing committees: (1) the Performance Improvement Committee; 

(2) the Restraint Reduction Committee; and (3) the Environment of Care Committee. (Tr. 100, 

104-5.) The Performance Improvement Committee meets monthly to evaluate patient and staff

incidents, look for trends from incidents and EARs, and to consider potential corrective actions. 

(Tr. 257-62, 515-16, 518-20; Ex. R-55.) Members review trends and audits to ensure that staff are 

taking appropriate actions with respect to safety. Id. The Restraint Reduction Committee meets 

monthly to review incidents that involved restraining a patient. (Tr. 151, 500-2, 510-15.) It 

confirms that all such incidents are documented and promptly reviewed by senior leadership as 

HRI’s policies require. Id. This committee also reviews training and makes sure it is completed. 

(Tr. 515.) 

 

16 There is no evidence that individuals not employed by HRI played a regular role in developing 

or implanting workplace violence prevention strategies at HRI. The argument appears to be that 

direct care employees were not sufficiently encouraged to participate in HRI’s workplace violence 

prevention program. (Sec’y Br. at 48-49; Tr. 596-97.) 
29

The third committee with responsibilities for workplace violence is the Environment of 

Care Committee. It meets quarterly and focuses on care, safety, and infection control. (Tr. 395-

97; Exs. C-18, C-19.) As part of its work, committee members conduct monthly Environment of 

Care rounds to look for safety and other issues at the facility. (Tr. 397-98, 403.) Findings from 

these rounds are discussed at committee meetings. (Tr. 405.) Committee members also discuss 

employee injuries, training needs, and various risk areas, such as problems related to contraband. 

(Tr. 395-97, 402, 404-6, 440-41.) The results of camera audits and injury trends are also discussed 

to identify corrective actions and make sure they are implemented. (Tr. 395, 400-2, 404, 444; Exs. 

C-18 at 3, C-19.) For example, the committee discussed moving to “live feed monitors” in the two 

most acute units. (Tr. 402; Ex. C-18.) It determined that this type of monitoring would provide 

additional safety to staff and then this change was made. (Tr. 403.) The committee also discussed 

providing mandatory training to help better manage patient aggression. (Ex. C-19 at 2-3.) 

These three committees are composed of individuals with fewer responsibilities for direct 

patient care.17 (Tr. 106-15, 124, 501.) Still, minutes and the testimony show that supervisors of 

mental health workers and nurse managers, both of which have direct care responsibilities, do 

attend these meetings. (Tr. 108-9, 114, 387-93, 940-42; Exs. C-11, C-12, C-13, C-14, C-15, C-16, 

C-18, C-19, C-20.) 

Further, all direct care staff are invited to attend the Restraint Reduction Committee 

meetings as well as the town hall meetings. (Tr. 125, 388, 673, 939-40.) And HRI takes several 

steps to encourage their attendance at these meetings.

18

 (Tr. 859-60.) Committee meetings are 

 

17 A direct care staff member is a part of the Environment of Care committee, but it is not clear 

how often he attended the meetings. (Tr. 114, 120; Exs. C-18, C-19, C-20.)

18 The Secretary does not argue that HRI should compel employee participation.
30

scheduled at various times to accommodate different shifts and some meetings are held more than 

once. (Tr. 193, 216, 674, 783, 859.) The meeting times are visibly posted and communicated to 

staff in multiple ways. (Tr. 216-17, 783, 859-60.) In addition, HRI indicated it was willing to 

schedule them at different times when staff expressed an interest in coming. (Tr. 216, 885.) 

The town hall meetings are an “open forum to discuss anything that will impact staff,”

including safety and workplace violence. (Tr. 218, 783.) They are held monthly and on an 

emergency basis if needed. (Tr. 125, 215-16, 782-83.) For example, HRI held an emergency town 

hall meeting after the employee was attacked with the dresser drawer. (Tr. 218, 220.) Staff can 

(and do) make comments and ask questions during the town hall meetings. (Tr. 217, 221-22, 783.) 

Employees are paid for their time at town hall meetings. (Tr. 234, 673.) Employees can also 

anonymously provide input about workplace violence through a locked suggestion box anytime or 

in annual safety surveys. (Tr. 191, 193, 215-19, 668, 674; Ex. C-24.) The CEO explained that 

there have been very few suggestions placed in the box. (Tr. 219.) She personally reviewed each 

suggestion and indicated how she followed up on the concerns raised. Id. In addition to these 

avenues, staff can raise safety concerns directly with the CEO and some have done so. (Tr. 217.) 

HRI provided examples of when it made changes because of feedback on safety it received from 

direct care staff. (Tr. 193.) 

Besides open forums for discussions with direct care staff about workplace violence, HRI 

also has a process to inform staff when there is a known potential for aggression and after incidents 

occur. (Tr. 214-15, 323-24, 478-79; Exs. R-22, R-24.) The intake process includes looking for 

aggression and violence towards others. (Tr. 827; Ex. R-24 at 26-27, 29.) Intake forms for patients 

considered potentially aggressive are marked and include a different colored cover sheet, called a 

High Risk Alert Sheet, to make it easier for staff to identify. (Tr. 720-21, 763, 833; Ex. R-24 at 
31

29.) Both the nurse supervisor and charge nurse are required to sign this cover sheet. (Tr. 835.) 

The charge nurse informs the staff on the unit about the risk of aggression and staff also have 

access to the patient’s file, including the High Risk Alert Sheet. (Tr. 720-21.)

Once admitted to the unit, if a patient exhibits aggression or the potential for it, this is 

included in the nursing notes and is part of the shift change meetings.19 (Tr. 129, 747, 765, 767.) 

The nursing notes specifically include a section focused on whether there is any risk of assault. 

(Tr. 769.) Managers discuss issues related to patient aggression and any violence against staff at 

the daily Flash meetings, which are open to mental health workers and all nursing staff. (Tr. 212-

14, 304-5.) If a patient is identified as aggressive, there are several precautions and interventions, 

such as increasing observation, restricting privileges, and requiring additional treatment, that

employees put into place depending on the situation. (Tr. 452-54; Exs. R-22, R-26.) The nursing 

supervisor or charge nurse may place a patient on high-risk status at any time. (Tr. 462; Exs. R22, R-26.) Each unit has a whiteboard which identifies the observation levels, privilege levels,

and precautions for each patient. (Tr. 479, 721-22.) The whiteboard will indicate whether there 

has been any violent behavior. (Tr. 722; Ex. R-61.)

Staff are made aware of any Code Greens that occur and are debriefed after any incident 

that leads to a patient restraint or an employee injury. (Tr. 323, 329, 331, 486-88; Exs. R-30, R38.) This debriefing process includes considering what actions could have been handled 

differently, determining if there are any corrective actions that should be taken, and to learn if there 

 

19 The charge nurse completes a shift report that documents whether there is a risk for assault or 

whether precautions for aggression are needed. (Tr. 769, 771; Ex. R-42.) During a 30-minute 

meeting at the start of each shift, the charge nurse informs the on-coming staff of relevant 

information, including any specific risks related to violence or aggression. (Tr. 721.) While all 

staff is encouraged to attend these meetings, some people coming off shift do not attend. (Tr. 129-

30.) But, even if an employee does not attend the meeting when they are coming off their shift, 

they still have access to the written report. (Tr. 769, 772.) 
32

are ways to reduce the likelihood of such incidents occurring again. (Tr. 214-15, 487-96, 514; Ex. 

R-38.) They are asked whether a specific staff member was the targeted by the patient. (Tr. 73, 

318-19; Ex. R-38.) When that occurs, the staff member is directed not to be involved in the 

restrictive intervention. Id. In addition, when a patient targets an attack at a staff member, 

corrective actions can include re-assigning the person to another unit. (Tr. 321.) Staff are asked 

about whether the response to the code was fast enough, whether there are needs for additional 

training, and what suggestions the employees involved in the code have. (Tr. 494-96; Ex. R-38.) 

If available, camera footage of the incident is reviewed, and staff are asked to provide further input 

after they review the footage. (Tr. 493; Ex. R-38.) Management promptly reviews information 

from the debriefings.20 (Tr. 299-300, 510.) 

If the incident involved a restraint, then the Restraint Reduction Committee will conduct 

its own additional review. (Tr. 510; Exs. R-38, R-57.) This committee confirms that incidents are

reviewed by management the next business day; that the required debriefing of the staff involved 

occurred, and that both the incident and debriefing was appropriately documented. (Tr. 510-15; 

Ex. R-57.) HRI uses the information gathered from the debriefings and other reviews to assess 

what corrective actions are needed, what improvements can be made, whether there is a need for 

additional training, and to determine whether any trends exist in the units. (Tr. 299-300, 490-97, 

514.) 

Dr. Lipscomb argued that HRI’s efforts at involving direct care staff were insufficient. She 

indicated that HRI failed to debrief an employee after an injury and denied a request to schedule a 

meeting at a more convenient time. (Tr. 596, 602, 674.) As support for this assertion, she relied 

on interviews she conducted over the telephone with three former employees after her deposition 

 

20 Incidents related to Code Greens or restraints are reviewed the next business day. (Tr. 299, 510.)
33

and the completion of her expert report. (Tr. 553, 614-17.) Her expert report was not 

supplemented after these interviews. (Tr. 615-17.) At the hearing, HRI timely objected to the 

introduction of the hearsay evidence and Dr. Lipscomb’s failure to update her report. (Tr. 614-

17.) 

As an expert, it was permissible for Dr. Lipscomb to rely on hearsay. Fed. R. Evid. 703. 

Nonetheless, when an opinion is based partially on hearsay this may impact the weight given to 

any such opinion. See Newell P. R., Ltd. v. Rubbermaid Inc., 20 F.3d 15, 20-21 (1st Cir. 1994)

(when the factual underpinning of an expert opinion is weak, it affects the weight and credibility 

of the testimony); Owens v. Republic of Sudan, 864 F.3d 751, 789 (D.C. Cir. 2017) (a party cannot 

use an expert simply as a conduit for introducing hearsay). The Secretary did not explain the 

position of the person or persons who made the statements, what time period the assertions relate 

to, and whether any of the individuals were employed by HRI during the time period referenced 

in the Citation. Given the limited information about the declarants, it is difficult to assess the 

credibility of the statements made to Dr. Lipscomb. See Hamilton Fixture, 16 BNA OSHC 1073, 

1085 (No. 88-1720, 1993) (recognizing that the problem with hearsay is that the objecting party 

has no opportunity to cross-examine the declarant), aff’d, 28 F.3d 1213 (6th Cir. 1994). Thus, Dr. 

Lipscomb’s testimony about insufficient employee involvement does not outweigh the other 

evidence regarding how HRI solicited and responded to employee concerns and suggestions about 

patient on staff violence. 

With respect to whether debriefings occurred, the record includes EARs signed by injured 

employees. (Ex. C-1.) The EARs describe the incidents and each one explicitly indicates that the 

event was discussed with a supervisor. (Ex. C-1; Tr. 817-18.) The Secretary did not present 

evidence of any employee injury that was not reported in a written EAR. One witness felt that her
34

debriefing after she was hit with a soda bottle focused only on her condition, not any “lessons 

learned.” (Tr. 806.) Despite her perception of the debriefing, HRI produced her signed statement 

indicating the debriefing occurred and explained the specific policy change it made after her injury. 

(Tr. 139, 818-19; Ex. C-1.) HRI also presented other evidence about its review and follow up 

process for all EARs. (Tr. 214-15, 349-52; Ex. C-7.) 

As to the scheduling of meetings, the CEO and nurse educator testified about when the 

committee meetings and town hall meetings were scheduled and the steps HRI took to give 

employees opportunities for providing feedback. Meetings are repeated, and employees were paid 

for their time, as discussed previously, infra. (Tr. 193, 783-85.) Thus, the evidence about the 

follow up that occurred after employee injuries and the testimony about the scheduling of meetings 

is credited over the hearsay statements Dr. Lipscomb cites. See Beta Constr. Co., 16 BNA OSHC 

1435, 1442 (No. 91-102, 1993) (assessing credibility in light of the whole record). 

As with some of the Secretary’s other proposed abatement strategies, HRI essentially 

concedes the need for employee input and agrees it is feasible to have employees, including those 

with direct care responsibilities, involved in the planning, development, and implementation of 

workplace violence prevention programs. (Tr. 940; Resp’t Br. at 58-59.) HRI offered evidence 

of multiple actions it takes to encourage all employees to be involved with workplace violence 

prevention efforts. (Tr. 215-16, 673-74, 940.) HRI solicited feedback and when employees 

communicated concerns it followed up on them. (Tr. 161-62, 191, 216.) With respect to 

communication, HRI informs employees about incidents and concerns when new patients arrive, 

during shift changes, through meetings, a newsletter, and internal emails. (Tr. 216-17, 769, 783.) 

Employees can raise safety concerns with management through post-incident debriefings, annual 

surveys, at the monthly town hall meetings, through committees, anonymously through a locked 
35

suggestion box, or directly with managers (including the CEO). (Tr. 161-62, 167, 191-93, 215-

20, 488, 782-83; Exs. C-24, R-38.) HRI encourages feedback through these channels and 

developed action plans as a result of the information conveyed. (Tr. 192-93, 216, 783-84.) 

Agendas and minutes indicate that addressing staff safety was a significant responsibility for three 

committees and the topic was discussed at town halls. (Ex. C-18, C-19, C-20, C-21.) Importantly, 

HRI also has a process to follow up on the safety concerns raised by employees and it showed the 

actions it took to address safety concerns. (Tr. 192-93, 218-19, 222, 783.) The Secretary failed to 

show that HRI’s efforts at employee involvement were inadequate or that his proposed abatement 

would further increase employee participation.

b) Staffing

(1) Staffing for Code Greens

As to adequate staffing, there is no debate that appropriate levels of staffing are critical at 

any behavioral health facility, including HRI. (Tr. 910, 920, 928; Ex. C-28 at 29.) But the parties 

disagree as to whether HRI’s approach to staffing led to adequate coverage for purposes of 

materially reducing the hazard of patient on staff violence.

HRI follows a staffing grid approach that sets forth a minimum patient to staff ratio. (Tr. 

160, 181.) The minimum ratio complies with the requirements and recommendations of a state 

authority, the Massachusetts Department of Mental Health (DMH), which licenses the facility. 

(Tr. 179, 229, 882.) HRI explained the steps it takes to make sure every shift has sufficient staffing 

that at least meets the minimum recommendations set by the DMH. (Tr. 150, 213, 228, 237, 728-

729; Ex. R-31.) These procedures are in writing and preclude any unit from operating without a 
36

Registered Nurse (RN).

21

 (Tr. 150, 180-81, 228; Exs. R-31, R-45.) Staff escort patients eligible 

to leave the unit outside for fresh air breaks, but even in such circumstances HRI maintains a ratio 

of staff members to patients on the unit. (Tr. 482.) The amount and sufficiency of the staff are

reviewed at the morning Flash meeting. (Tr. 213.) 

Ms. Cooke evaluated HRI’s approach to staffing and discussed the issue with five staff 

members. (Tr. 874, 881-82.) In her interviews with staff, the employees did not raise any concerns 

about inadequate staffing. (Tr. 874.) Based on her review and site visit, she concluded that staffing 

at the facility was adequate. (Tr. 920.) 

As support for its claims of inadequate staffing for the hazard, the Secretary relies on (1) a 

staffing report from a single day, (2) various comments made on a 2016 safety survey, (3) the 

testimony of one employee, and (4) Dr. Lipscomb’s opinion. (Sec’y Br. at 10-12, 45-46.) First, 

the Secretary alleges that a staffing report provided to the CO at the start of the investigation shows 

HRI failed to staff an RN on one shift on August 3, 2016. (Sec’y Br. at 10-11; Ex. C-23.) Ms. 

Kong explained that the staffing report the Secretary cites was not a record of who worked the 

shift but was a planning document relating to who was going to work the shift. (Tr. 144, 147, 152, 

187, 195.) Units were never operated without at least one RN and HRI had a protocol for assigning 

staff if there were no volunteers for the shift. (Tr. 144-45, 147, 150, 190.) The former interim 

CEO explained how she confirms the sufficiency of staffing. (Tr. 195.) No one refuted the 

evidence indicating that units always had a least one RN and that the staffing report could not be 

relied alone to determine the number of workers on any given day. (Tr. 181, 195, 228.) Thus, the 

staffing report does not establish that HRI lacked adequate staff. (Tr. 407-8.) 

 

21 The DMH also provides recommended guidelines for staff other than RNs, which HRI follows. 

(Tr. 178-81.)
37

Second, in the survey responses, some employees praised HRI and others were more 

critical. (Ex. C-24.) None of the responses provide much detail. Id. All are brief, and the record 

does not reflect what questions were asked, what time period any of the responses refer to, the 

positions of the responders, or whether each comment is from a different person. (Tr. 162; Ex. C24.) The few responses directly referring to understaffing do not indicate whether the concern 

relates to the hazard of workplace violence or some other concern.22 (Ex. C-24; Tr. 165-67.) The 

survey responses are not sufficiently persuasive as to whether changing HRI’s staffing approach 

would materially reduce the hazard of patient on staff violence at the facility.

23

Third, a current employee explained that there is less staff at night. (Tr. 807.) She indicated 

that not everyone could respond to a Code Green because each unit always had to have a minimum 

number of employees. Id. But she did say that the Code Green responses were inadequate because 

of this or that the amount of staff contributed to the hazard of workplace violence. Further, staff 

had fewer patient related tasks at night and did not leave the units to take patients for fresh air 

breaks during the night shift. (Tr. 803.) In some cases, the employee’s concerns, while framed as 

being about staffing, appeared to relate to other issues. For example, she referred to the difficulty 

of moving a heavy patient who was restrained to a board. (Tr. 812-13.) Her suggested solution 

 

22 Some survey responses called for “better” or “proper” staffing but do not elaborate on what that 

means or whether it relates to the hazard of workplace violence or patient health. (Ex. C-24; Tr. 

166.) Others suggest more experienced staff, but do not indicate that the number of employees is 

inadequate or that more experienced staff will reduce the hazard of workplace violence. (Tr. 165; 

Ex. C024.) 

23 HRI considered the practice of surveying direct care employees and developing an action plan 

after the survey part of its efforts to provide a safe environment and encourage employee feedback. 

(Tr. 191-92.) In finding that the survey responses were not sufficiently persuasive on the issue of 

whether HRI had adequate staffing, the undersigned is not determining that surveys were not 

relevant to whether HRI’s abatement was effective. 
38

for this issue was not more staff, but a different piece of equipment that could be rolled rather than 

carried.24 (Tr. 812, 820.) Thus, although the witness advocated for more staffing, the Secretary 

failed to show how staffing contributed either to the occurrence of workplace violence at HRI or 

the seriousness of any such incident there 

Fourth, as to Dr. Lipscomb testimony, she argued that staff levels should be “safe” and 

criticized strict adherence to a single ratio of patients per staff member, which she referred to as a 

grid-based approach. In her view, grid-based approaches to staffing fail to sufficiently account for 

variability in the risk level. (Tr. 601, 666-67.) While she believed that staffing levels at HRI were 

inadequate, she acknowledged that there was disagreement among HRI employees as to whether 

this was the case. (Tr. 599-600, 669.) 

HRI appears to recognize the limitations of a strict grid approach that only looks at the 

number of patients per staff member. So, it adopted measures to increase staffing beyond the grid 

when necessary. The grid is just the minimum threshold. (Tr. 160, 228, 935.) Staffing needs are 

reviewed during the daily Flash meeting and at other times as well. (Tr. 213, 728-29.) The number 

of staff relative to each patient can be increased under various scenarios, including challenging 

patient behavior.25 (Tr. 181-82, 229-30, 728.) In addition, if a patient refuses to allow a search of 

his or her body a staff member is automatically assigned to continuously monitor just that patient. 

(Tr. 258-59.) Staff other than on-unit nurses and mental health workers are trained to respond to 

situations involving aggressive patients. (Tr. 204, 207, 311.) Supervisors, socials workers, and 

 

24 The witness also described an incident where a patient threw a soda bottle at a wall and the bottle 

hit her. (Tr. 804-5.) Three employees provided immediate assistance and then additional people 

came after the Code Green was initiated. Id. The witness did not indicate that additional staff 

would have prevented or mitigated her injury. Id. 

25 One witness explained that within the first twenty-four to forty hours of treatment, patient needs 

may be higher so they may staff above the grid to address that. (Tr. 181.) 
39

“floats,” which are staff not assigned to any single unit, can be called upon to assist with patient 

aggression. (Tr. 183-84, 207, 229-30, 277, 320.) Additional nurses or mental health workers are

added to shifts when needed. (Tr. 728-29.) Staff, both nurses and mental health workers, can ask 

the charge nurse at any time for additional staffing. (Tr. 182-83.) The former interim CEO was 

not aware of such requests being denied, and the record does not reflect any examples of denied 

requests contributing to the cited hazard.

26

 Id. 

The Secretary alleges that “adequate staff coverage” would be a feasible means of 

abatement but fails to establish how HRI’s staffing was inadequate to address the hazard. The 

Citation itself does not directly call for a higher number of employees. Instead, it indicates that “a 

feasible and acceptable means to abate the hazard” includes:

Ensuring adequate staff for Code Green incidents to ensure that these responses can 

be fully functional, and that the required patient acuity and staffing ratios can be 

maintained on each shift, including when there are multiple admissions during a 

shift, and to ensure continued adequate coverage for remaining patients such as 

those requiring one-to-one care. 

The Secretary did not show that the criteria HRI uses to assess when it is appropriate to go beyond 

the minimum staff to patient ratio called for by the grid was inadequate.

27

 Nor did he show that 

HRI failed to implement increased staffing when needed for staff safety. HRI explained how 

additional staff were available to respond to Code Green incidents or in the event of increased 

admissions. (Tr. 229-30.) While there were fewer workers at night, staff did not need to be off 

the unit for fresh air breaks and they did not have responsibilities related to discharges or certain 

 

26 Also, if a request for an additional worker cannot be immediately fulfilled, other staff such as 

supervisors and doctors will go to the unit to assist until the additional staff arrives. (Tr. 182-83.) 

27 On cross-examination, the Secretary’s counsel questioned Ms. Cooke about a published 

statement from the American Nurses Association (ANA) indicating that there should be “optimal” 

staffing to address workplace violence. (Tr. 921-28.) The Secretary failed to explain how 

implementing optimal staffing would require any different action than HRI’s approach. 
40

patient care tasks during that shift. (Tr. 803.) The Secretary did not refute HRI’s evidence that 

there were multiple employees per shift in each unit and that it has mechanisms in place to increase 

staffing when there is a greater potential for patient on staff violence. (Tr. 214, 229-30.) There is 

no evidence that requests for additional staff were denied or that there were insufficient numbers 

of people to respond to workplace violence incidents. While the Secretary showed that it was 

necessary to have adequate staff, he failed to establish that HRI’s staffing or its system for adding 

additional workers was inadequate for addressing patient on staff violence. 

(2) Security staff

The Citation also calls for HRI to “Employ security staff when necessary to assist in 

responding to violent events.” The Citation does not elaborate on when it would be necessary, nor 

did the Secretary clarify this at the hearing or in his brief. (Sec’y Br. at 46-47.) Further, the 

Secretary failed to make clear what he meant by the term “security staff.” Id. 

HRI had a safety officer but did not employ dedicated security personnel. (Tr. 64, 204.) 

The decision not to have security personnel appears to have been a considered decision. Ms. Cooke 

explained that managing patients through intimidation could be counter-productive and increase, 

rather than reduce, patient aggression. (Tr. 860-61.) She did not agree with having security 

personnel in a behavioral healthcare setting.28 (Tr. 937.) As an alternative, HRI trained staff on 

how to prevent aggressive behavior, de-escalate situations when they occur, and, should the 

preventative efforts fail, safely restrain patients when necessary. (Tr. 593, 938; Exs. R-2, R-12, 

R-30, R-61.) Ms. Cooke argued that HRI’s staff was trained and competent to manage patient 

behaviors, including aggression. (Tr. 938-39.) 

 

28 Dr. Lipscomb also stated that a “police officer who only has that skill set” should not be in a 

therapeutic environment. (Tr. 594.) 
41

One employee indicated that she would feel safer if the facility had a dedicated security 

person because some of the patients are a few inches taller than she is. (Tr. 809-11.) She was not 

asked why a “security” person would be better than HRI’s approach of having mental health 

workers, social workers, and nurses address patient aggression. She acknowledged that all of 

HRI’s direct care staff receive training in verbal de-escalation as well as physical intervention 

techniques and did not suggest that additional security training was necessary for those employees. 

(Tr. 593-94; Ex. R-20.) 

The Citation does not specify whether HRI needed more employees or if it could assign 

existing workers into a security role. As discussed above, the Secretary failed to show that HRI 

lacked adequate staff to address the cited hazard. Similarly, the Secretary did not show that 

workers lacked sufficient training to address patient on staff violence. As the Secretary failed to 

prove that HRI’s existing staffing and training was inadequate, the undersigned does not reach the 

issues of whether dedicated security personnel would materially reduce the hazard.

C. Additional Abatement Proposed by the Secretary

The Secretary also alleges that HRI’s workplace violence prevention program was deficient 

because it failed to: (1) prevent patients from being able to remove dresser drawers; (2) ensure 

patients used cups rather than bottles for drinks; (3) install panic alarms; and (4) have nursing 

stations with sufficient barriers.

29

 

 

29 The Citation sets forth nine main methods of abatement, some of which include multiple actions. 

The Secretary did not address all of the proposed actions listed in the Citation at the hearing or in 

his brief. The undersigned finds that the Secretary failed to establish the need for of any of the 

other methods of abatement discussed in the Citation, but not addressed at the hearing or in the 

briefing. See Peacock Eng’g Inc., 26 BNA OSHC 1588, 1592-93 (No. 11-2780, 2017) (focusing 

only on the method of abatement discussed by the Secretary); Ala. Power, 13 BNA OSHC at 1246.
42

1. Dresser Drawers

As noted above, on May 18, 2016, a patient removed a dresser drawer and hit an employee 

with it, badly injuring him. (Tr. 93; Ex. C-1.) HRI did not know the patient would act aggressively,

nor was it aware of any specific risks related to the furniture in the patient areas. (Tr. 234, 360.) 

After the attack made it apparent that the drawers could be problematic, HRI took various steps to 

address the issue. (Tr. 361-62.) It revised the patient’s treatment and had him transferred to 

another facility. (Tr. 232-34, 355.) It also promptly alerted the staff about the incident at an 

emergency town hall meeting, evaluated why the incident occurred, and assessed approaches to 

reducing the risk of patient on staff violence. (Tr. 220-21, 234, 355-56, 361-62.) As a first step, 

it installed screws in the drawers to make them more difficult to remove and had staff look for the 

issue on their environment of care rounds. (Tr. 131-32, 360-61, 968-69; Ex. C-19 at 2.) Although 

no one was injured by another removed drawer, HRI learned that some patients were able to 

remove the screws holding the drawers in place.30 (Tr. 361-62, 967, 972-73; Ex. C-19 at 3.) So, 

after further research and consideration, HRI eventually replaced all dressers with open storage 

cubicles. (Tr. 130-32, 134-35, 362, 972-73.) 

The Secretary is not proposing HRI take any further action regarding the storage of patient 

belongings or drawers in general. There is no evidence that any other drawers remain a hazard at 

the worksite or that the new storage cubicles might contribute to workplace violence. The 

Secretary’s contention appears to be that HRI responded too slowly to address the use of drawers 

as weapons. (Sec’y Br. at 6.) He argues that Respondent recognized the hazard of the dresser 

 

30 Ms. Kong indicated that there “was an occasion or two” when patients removed the screws. (Tr. 

361.) The notes from the July 29, 2016 Environment of Care Committee meeting are consistent 

with this testimony. (Ex. C-19 at 3.) 
43

drawers before a patient attacked the employee on May 18, 2016, because HRI bolted all dressers 

to the floor. Id. at 5. 

HRI disputes knowing the drawers presented hazard before the attack. (Resp’t Br. at 30.) 

The furniture had been considered safe for use in a psychiatric institution. (Tr. 360.) It bolted the 

dressers to the floor not because it knew the drawers could be used as a weapon but because it did 

not want patients to use the whole dresser to create a barricade. (Tr. 356, 361, 432-33, 630, 961-

62.) The evidence does not show that the dressers in use at HRI were inherently dangerous. A 

patient had never dismantled a drawer to use it as a weapon before. (Tr. 354, 361, 432.) Nor did 

any other patient repeat the behavior, even in the interim period before the dressers were replaced. 

After the attack, HRI knew it was possible for a patient to hit someone with a drawer but the 

likelihood of such a situation was unclear. (Tr. 135, 361-62, 437; Exs. C-1 at 1, C-9 at 1.) The 

patient involved in the incident failed to disclose to HRI a substance he was taking and so his 

behavior was not consistent with his medical history.

31

 (Tr. 232-34, 355, 437; Ex. C-9 at 1.) Still, 

HRI took steps to reduce the possibility of a future incident. (Tr. 962, 966.) It held a town hall 

and provided training on patient aggression and unpredictability. (Tr. 437, 441; Exs. R-2, C-4, C5.) Then it added screws to the drawers and eventually removed the drawers altogether after it 

appeared that the screws were not completely effective at preventing patients from being able to 

remove a drawer. (Tr. 134-35, 361-62, 967-68; Ex. C-22 at 2.) 

Certainly, this incident shows that patient on staff violence had not been fully abated before 

OSHA commenced its investigation. But, the fact that the incident occurred does not establish 

that HRI failed to adopt feasible means of abatement. See Nat’l Realty & Constr. Co., Inc. v. 

 

31 The Secretary does not allege that HRI should have handled the patient’s medical treatment 

differently. (Tr. 231, 234, 354.) 
44

OSHRC, 489 F.2d 1257, 1265-66 (D.C. Cir. 1973) (noting that the general duty clause does not 

impose strict liability). The Secretary did not show that HRI should have known before the attack 

that the dressers presented a hazard or that its initial approach of tightening the screws on the 

drawers would be ineffective. (Tr. 131-32, 354, 361, 432, 961.) Even fully crediting the argument 

that HRI should have addressed the issue with the drawers sooner, it is not clear this would have 

contributed to materially reducing the hazard beyond what HRI’s other abatement measures 

achieved. While taking prompt action is generally preferable, when alleging a violation of the 

general duty clause, the Secretary must show that its proposed abatement will materially reduce 

the hazard. 

2. Refuse patients bottled drinks

The Secretary calls for HRI to have a rule which precludes patients from having beverage 

bottles. (Sec’y Br. at 45.) The Secretary argues that the need for this rule is demonstrated by an 

incident on June 18, 2016, during which a patient threw a soda bottle. (Tr. 103-4, 139, 365, 368-

69; Exs. C-1, C-9.) The bottle hit a wall and then hit an employee, injuring her. (Tr. 103-4, 127, 

368-69, 434; Exs. C-1, C-9.) No patient had used a soda bottle aggressively before this incident 

and Ms. Cooke explained that in her experience with other behavioral health facilities soda bottles 

are permissible. (Tr. 369, 883.) 

HRI argues it abated this hazard before the Citation was issued by instructing staff to pour 

drinks into paper cups and not leave their own soda bottles somewhere accessible to patients. (Tr. 

139, 369; Resp’t Br. at 41.) HRI reviewed videotape of the incident and determined that the 

employee did not fully follow the company’s procedures. (Tr. 366.) In its view, the employee 
45

should have taken additional steps to de-escalate the patient’s aggression.32 (Tr. 366-67, 434, 493.) 

Staff are taught that anything can be a weapon and that de-escalating patient aggression can reduce 

the likelihood a patient will throw an object. (Tr. 141, 170, 177, 203, 369, 752, 790; Exs. C-5, R2 at 6, R-12, R-13.) 

The Secretary argues that despite HRI’s rule precluding soda bottles, the CO photographed 

one in a patient area. (Sec’y Br. at 7.) However, the exhibit the Secretary relies on depicts what 

appears to be a one-liter plastic soda bottle on a desk underneath a raised counter. (Ex. C-25 at 5; 

Tr. 631.) Ms. Kong explained that the location shown in the photograph was the nurses’ station, 

not a patient room or common area. (Tr. 140.) The photograph shows that on top of the counter 

there was a stack of paper cups, but no bottles. (Ex. 25 at 1, 2.) 

The Secretary fails to explain how HRI should provide access to drinks differently. The 

proposed abatement in the Citation does not directly refer to soda bottles. In his brief, the 

Secretary’s states that the proposed abatement is to prevent patients from having soda bottles. 

(Sec’y Br. at 45.) But, HRI already specifically instructed the staff to do this and directed

employees to look for drinks in patient areas during their environment of care rounds.33 (Tr. 139, 

369; Ex. C-19.) It told staff not to leave items lying around and trained employees in ways to 

prevent aggressive episodes that might result in a patient throwing something. (Tr. 790; Exs. C-5, 

R-2, R-12, R-13.) In his brief, the Secretary does not explain how to implement the no access to 

 

32 HRI does not allege its de-escalation procedures alone was sufficient to abate the hazard.

33 A July 29, 2016 committee report indicates: “food and drinks in patient bedrooms is consistently 

an issue.” (Tr. 141-42; Ex. C-19 at 1, 3.) The report does not refer to patients having access to 

any bottles. Id. Nor is there evidence of glass bottles ever being accessible to patients at the 

facility. (Tr. 631.) The report suggests HRI took the issue of drinks seriously—employees were 

looking for drinks in patient areas, reported it, and shared the information when violations of the 

rule were found. (Tr. 141-42; Ex. C-19 at 3.) 
46

soda bottles differently than what HRI has done.

34

 See Postal Serv., 21 BNA OSHC at 1773-74 

(Secretary failed to show the safety vests employer issued were inadequate). 

3. Panic Alarms

The Citation states that “silent emergency alerting buttons that are carried by workers 

throughout their shift to call for help in any location in the event of an escalating situation with a 

patient” would be among the feasible methods of abatement. In his brief, the Secretary argues that 

“mobile” or “stationary” panic buttons would be acceptable options.35 (Sec’y Br. at 26-27.) Dr. 

Lipscomb asserts that panic alarms are reliable, accessible, and facility appropriate method of 

summoning help when a patient is beginning to act aggressively. (Tr. 587-88.) She believed that 

there were documents and guidelines supporting the use of panic alarms in the behavioral health 

setting but admitted she did not reference any such article in her expert report. (Tr. 652.) Further, 

she explained that “one size doesn’t fit all,” so panic alarms are not appropriate for every facility. 

(Tr. 653, 686.)

Ms. Cooke agreed that panic alarms would not be effective in every setting. (Tr. 875-77.) 

She argued that panic alarms can create an additional step before help arrives because the signal 

from the button calls one person and then that person has to put the call out to others before help 

arrives. (Tr. 877.) The Citation seems to anticipate the “two-step” situation Ms. Cooke raises 

concerns about because it calls for staff to monitor the alerting system and location indicators. Ms. 

Cooke also indicated that the current staff she talked with did not view the buttons as necessary to 

 

34 Although a complete ban on drinks might lead to fewer soda bottles at the facility, the Secretary 

neither proposes this or nor showed it would be feasible. HRI explained that such an approach 

would be less therapeutic and violate state treatment requirements. (Tr. 370-72, 857.)

35 Dr. Lipscomb explained that stationary panic alarms are attached in a fixed location while 

personal alarms are something an employee wears and can hit to trigger an alert. (Tr. 588-89.) 
47

allow them to receive help with a patient. (Tr. 877-78.) She agreed with them that an additional 

method of summoning help was unnecessary at HRI given its phone system, walkie-talkies, small 

size, and the number of staff assigned to each unit. (Tr. 877-78, 882.) See Cerro Metal, 12 BNA 

OSHC at 1822-23 (abatement must be capable of being implemented and necessary to reduce the 

hazard). The small size made it possible to verbally ask for help as there was always more than 

one person in each unit of the facility. (Tr. 318, 882.) And when staff was with a patient off the 

units, they had walkie-talkies to summon help. (Tr. 482-83, 877.) A nurse on the unit monitors 

any communication from the walkie-talkie to ensure a response. (Tr. 482.) 

The Secretary alleges HRI’s protocol was deficient because it required employees to locate 

a phone to initiate the process. But, the Secretary failed to establish that employees had difficulty 

locating phones to summon help. (Tr. 431-32.) The Secretary did not provide information about 

the number or locations of phones in each unit. Further, employees could initiate the process in 

other ways if needed: they could say “Code Green” rather than using the phone system, or they 

could ask a co-worker to use the phone on their behalf.36 (Tr. 318.) 

As for mobile panic alarms suggested by the Secretary, the Citation itself notes that such a 

system may not be “functional throughout the facility due to poor signals.” So, if HRI adopted 

this method of abatement, it would have to train staff, as the Citation suggests, to “know the areas 

where the panic buttons are functional and where they are not.” Thus, rather than saying “Code 

Green” to a co-worker, over the phone or by using a walkie talkie, with mobile panic alarms, the 

staff member would still have to determine their location and then consider whether they could 

use the mobile panic alarm or had to summon help another way. The Secretary did not address 

the possibility of signal issues or explain how training staff about signal issues would be superior 

 

36 As discussed above, the record shows that HRI had adequate staff to respond to such requests.
48

to a telephone system not subject to such a limitation. See Kokosing Constr. Co., 17 BNA OSHC 

1869, 1875 n. 19 (No. 92-2596, 1996) (noting that in the context abating a hazard with personal 

protective equipment, “if a proposed abatement method creates additional hazards rather than 

reducing or eliminating the alleged hazard, the citation must be vacated for failure to prove 

feasibility”). 

Turning to stationary panic buttons, HRI already had these in the admissions area and 

outpatient sections of the facility. (Tr. 587; Ex. C-20.) The Secretary contends that adding panic 

buttons to the units would be superior to “shouting” for assistance because loud noises can increase 

agitation and panic buttons do not require explanations about what the problem is. (Sec’y Br. at 

27; Tr. 588.) Ms. Kong indicated she was not aware of staff being unable to utilize the phones to 

initiate a Code Green, so it was not necessary to shout. (Tr. 431-32.) As for being able to request 

assistance without saying why, HRI’s protocol directed employees to say “Code Green” to trigger 

the call for assistance. (Tr. 70-71; Ex. C-4.) An explanation was not necessary to activate the 

assistance process. Id.

Dr. Lipscomb advocated for a “very reliable, very accessible” way of summoning help. 

(Tr. 587.) That conclusion is sound. But, the Secretary failed to present sufficient evidence on 

the next part of the equation—could additional panic buttons and/or mobile alarms summon help 

faster and safer than HRI’s current methods such that it would materially reduce exposure to the

hazard. See Cerro Metal, 12 BNA OSHC at 1822-23 (“the Secretary must not only describe 

specific, feasible measures for reducing the hazard, but must present evidence that knowledgeable 

persons familiar with the industry would regard the steps as necessary”). If a patient became 

agitated or aggressive, an employee could say Code Green to a co-worker or use the phone to 

commence the process. (Tr. 67, 318; Ex. C-4.) When staff take patients off the unit, such as during 
49

fresh air breaks, they are required to have walkie-talkies to call for help if needed.37 (Tr. 483, 877.) 

The Secretary did not show that employees were unable to initiate or respond to Code Greens. Nor 

did he show that the responses were delayed or ineffective because of the reliability of the system 

for summoning assistance.38 To sustain his burden, the Secretary must do more than provide 

another way to address the cited hazard. Postal Serv., 21 BNA OSHC at 1773-74 (finding that the 

Secretary failed to establish that different clothing would be more effective in reducing the hazard 

than what the employer already provided). 

4. Evaluate the design of the nurses’ station

Another abatement method the Secretary suggests is to evaluate the design of the nurses’

work stations. About a year before the inspection, HRI undertook an evaluation of its nurses’ 

stations. It determined that more open nurses’ stations might decrease patient frustration and 

improve monitoring, so it removed barriers and lowered the counter heights. (Tr. 138.) Cheryl 

Grau, who was previously Respondent’s interim CEO, indicated that the stations were redesigned 

so nurses could better observe and monitor the patients. (Tr. 263.) HRI was concerned that higher 

enclosed stations may increase patient frustration by making them feel isolated from staff. (Tr. 

262.) It believed that opening up the nurses’ station would increase safety for both patients and 

staff. (Tr. 263.) For example, before their removal in 2016, patients repeatedly banged on the 

plastic barriers around the nurses’ station causing them to break several times. (Tr. 138-9, 262.) 

 

37 Patients are not permitted to leave the unit if they are aggressive, considered assaultive, or at 

night. (Tr. 768, 803, 858.) 

38Respondent also alleges that there is no evidence that panic alarms reduce or eliminate the hazard 

of patient aggression because they are not activated until after a patient has already started to 

behave aggressively. (Resp’t Br. at 51.) However, the hazard here is patient on staff violence, not 

just aggressive behavior. Dr. Lipscomb explained how summoning help as quickly as possible 

can reduce staff injuries. (Tr. 589.) 
50

Ms. Cooke explained that, in her view, enclosed nurses’ stations can make it more difficult for 

staff to observe, monitor, and assess patients on a regular basis. (Tr. 883.) She advocated for low 

counters that do not create a barrier between staff and patients. Id. 

Despite these benefits of an open design, HRI was also aware that lower counters present 

different challenges because they may make it easier for patients to grab objects from the nurses’ 

station. (Tr. 136, 591.) So, HRI took steps to address the negative aspects of the design by, among 

other things, instructing staff not to leave items on the nurses’ station where patients could access 

them. (Tr. 373.) 

Although the Secretary showed it was technically possible for the nurses’ station to be 

higher and have an additional barrier, the Citation only calls for an evaluation of the nurses’ station. 

The Secretary neither sufficiently described the changes he seeks nor established that changing the 

design would offer superior safety. Dr. Lipscomb was aware of “controversy” about the height of 

nurses’ stations and was not asked to provide a specific minimum height or depth for the counters. 

(Tr. 590, 592.) She also acknowledged the need for patients to access staff and recognized that 

higher counters make this more difficult. (Tr. 590-91.) 

Adverse consequences may render a possible abatement method infeasible. CSA Equip. 

Co. LLC, 24 BNA OSHC 1476, 1478 (No. 12-1287, 2014) (noting that the judge must consider 

whether the proposed abatement method will result in adverse consequences that render it 

infeasible). HRI already undertook an evaluation and had procedures in place to limit access to 

items that could be used as a weapon. The Secretary failed to show that another evaluation was a 

necessary and valuable component to materially reduce the hazard at this facility. See Cerro Metal, 

12 BNA OSHC at 1822-23 (abatement actions must be regarded “as necessary and valuable for a 

sound safety program”); Postal Serv., 21 BNA OSHC at 1774. 
51

D. Secretary fails to meet the abatement prong of his duty

In sum, the Secretary’s proposed abatement methods essentially fall into one of two groups. 

The first group consists of measures HRI has already taken: remove dresser drawers, preclude soda 

bottles, have sufficient staff, involve employees in workplace violence prevention, require incident 

reporting and tracking, train workers about how to prevent and respond to workplace violence, 

limit access to items that could harm staff, have a comprehensive written workplace violence 

prevention program, implement, monitor and assess compliance with that program. For this group, 

the shortcomings the Secretary alleges are either not supported by record evidence or the Secretary 

fails to show that the proposed additional action would materially reduce the hazard beyond what 

HRI already achieved. See Ala. Power, 13 BNA OSHC at 1245 (finding no violation of the general 

duty clause, when the Secretary did not show that employer’s measures were inadequate or that 

additional efforts would have been more effective); Beverly, 19 BNA OSHC at 1190 (Secretary 

must show that the abatement “would be effective in materially reducing the hazard”). 

The second category of proposed measures consists of efforts that the Secretary failed to 

establish would reduce the hazard of patient on staff violence at HRI, e.g., install panic alarms and 

change the height of the nurses’ station. For this employer, the Secretary did not show these steps 

were necessary when evaluated in the context of the precautions already in use. See Cerro Metal, 

12 BNA OSHC at 1822-23 (Secretary must show the actions are necessary and valuable for the 

worksite’s safety program); Pepperidge Farm, 17 BNA OSHC at 1995 (vacating a general duty 

clause violation when the Secretary failed to show that further abatement was required considering 

what was already undertaken). 
52

ORDER

The foregoing Decision constitutes the Findings of Fact and Conclusions of Law in 

accordance with Rule 52(a) of the Federal Rules of Civil Procedure. Based upon the foregoing 

Findings of Fact and Conclusions of Law, it is ORDERED that:

1. Citation 1, Item 1 is VACATED, and no penalty is assessed.

 SO ORDERED.

__/s/Covette Rooney__________________

COVETTE ROONEY

Chief Judge, Occupational Safety and 

Health Review Commission

DATED: January 22, 2019

 Washington, D.C.