BEFORE THE UNITED STATES OF AMERICA 


OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION 


SECRETARY OF LABOR 	 ... 

Complainant, 	 ... OSHRC DOCKET NO. 13-1124 

... v. 

INTEGRA HEALTH MANAGEMENT, INC. ... 	 HON. DENNIS L. PHILLIPS 


ADMINISTRATIVE LAW JUDGE 


... Respondent. 

... ... ... ... ... ... ... ... ... ... ... ... * 

RESPONDENT'S POST-HEARING BRIEF 

Respondent Integra Health Management, Inc. ("Integra"), by and through its undersigned 

counsel, hereby submits its Post-Hearing Brief. 

INTRODUCTION 

Integra is a privately held corporation with the mISSIOn of connecting vulnerable, 

underserviced members of the community ("Members") with medical care and associated 

support services. To accomplish that mission, Integra employs teams of community health 

workers called Service Coordinators, I who work in communities to engage with Members in 

person and via telephone. This case arises out of the tragic killing of Ihlll1llhlll1l a Service 

Coordinator, outside the home of a Member on December 10, 2012. 

Integra's Operations and the Service Coordinator Position 

Integra was founded in 2007. (Tr. 754). The company employs community health 

workers, who seek to assist individuals with chronic health conditions in obtaining access to 

Subsequent to the events at issue in this proceeding, the position of Service Coordinator was 

retitled to Community Coordinator. (Tr. 758). This Brief will use the term Service Coordinator 

in light ofthe fact that this terminology was used throughout the hearing. 

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health care, including preventive care. (Tr. 754-55). Members are referred to Integra by their 

health insurers, based on a review of the individuals' claims histories to identify individuals who 

are not receiving medical and/or preventative care consistent with their health conditions. (Tr. 

755). These are frequently individuals with whom the insurance provider has previously been 

unable to make or maintain contact. (Tr.756). 

When an individual is referred to Integra by an insurer, Integra assigns a Service 

Coordinator to work the Member. (Tr. 757). As explained by Integra's President, Michael 

Yuhas, the assigned Service Coordinator attempts to "locate the individual, introduce ourselves 

in terms of what we are doing, which is really to help them get connected with health care 

services." (Tr.756-57). Prior to assisting a Member, the Service Coordinator seeks to obtain the 

Member's consent to receive assistance from Integra. As Mr. Yuhas testified, "if they don't 

consent, we won't do anything more. If they do, then we will figure out what the barriers are to 

them being connected with their primary care doctor other practitioners and work with them to 

help get appointments set up, make surc they're getting to their appointments, being reminded to 

take the medications they've been prescribed, et cetera." (Tr. 757). 

These services are provided by Integra's Service Coordinators, who, as community health 

workers, are "non-clinically trained people." (Tr. 757). As Mr. Yuhas explained, "we're not 

providing clinical services. We don't really train them or want them to be doing anything 

clinical in nature relative to a condition. We're really just trying to get the individual connected 

with things just like a family member might ... if that person existed, for the people we work 

with." (Tr. 757-58). 

Integra began operating in Florida in May 2012. (Tr. 760). Integra was contracted by 

Amerigroup to provide support services to certain individuals enrolled in that company's health 

2 

plan who could benefit from the community health worker service model provided by Integra. 

(Tr. 756-60, 786). Integra then commenced the process of recruiting, hiring and training a local 

team of Service Coordinators and a supervisor to work with these Members. (Tr. 759-60). At 

the outset, that team included Whitney Ferguson and Laurie Rochelle. (Tr. 837). Ms. Ferguson 

had already been working with Integra as a Service Coordinator prior to relocating to Florida. 

Rochelle, who was hired as the team supervisor, holds a license in mental health counseling and 

had maintained a private counseling practice prior to joining Integra. (Tr. 243-44). As 

additional Members were referred for services, Integra hired additional Service Coordinators in 

the late Summer and Fall of2012. (Tr.843). 

Integra is fully committed to and takes very seriously the training of its community health 

worker employees. Community health workers (CHW) are a critical resource in providing incommunity support to underserved individuals with healthcare needs. In 1978, the World Health 

Organization recognized the use of CHW s as "an important policy to promote primary care." In 

2009, the Department of Labor Bureau of Labor Statistics created a distinct occupation code for 

CHWs. The services defined within CHW occupational code include: 

Assist individuals and communities to adopt healthy behaviors; conduct outreach for medical 

personnel or health organizations to implement programs in the community that promote, 

maintain, and improve individual and community health; May provide information on available 

resources; provide social support and informal counseling; advocate for individuals and 

community health needs, and provide services such as first aid and blood pressure screening; 

may collect data to help identify community health needs. 

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I While the DOL has formally recognized the community health worker as an occupational 

! classification, there exist no national standards for training of such employees. For that reason, 

I 

! the company commissioned the development of a structured online, interactive training program 

referred to throughout this proceeding as the "Neumann training." That program's content was 

initially developed by Dr. Melissa Amott, Integra's Vice President of Community Programs, and 

Dr. Thomas Krajewski, Integra's Medical Director. (Tr. 876-78, 881-83, 1025). The program I 

i was refined in. conjunction with the faculty of Neumann University, and Neumann University 

l now offers the training as a certificate program. (Tr. 883-85). The Neumann training consists of I

j fifteen training modules that are presented in an online format, with interactive discussion 

I features that allow employees to communicate with managers regarding the contents of the I 

i lesson. (Tr. 889-90). 

1 

,~, One of the modules contained in the training program is dedicated to workplace safety. 

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(Tr. 882,913; Exhibit J). Integra mandates that newly hired employees complete this training at 

the outset of their employment, and pays their salary during the time that it takes them to 

complete the training course. (Tr. 893-94). In addition to this formal training program, Integra's 

training also provides for the Service Coordinators to observe face-to-face meetings with 

Members conducted by more senior staff - referred to as "shadowing" at various points during 

the hearing. (Tr. 766-67, 791-93, 961). 

The online, interactive safety instruction offered via the Neumann training is 

supplemented by face-to-face training from Integra management. Service Coordinator safety 

training instructs staff to avoid any situation where real or perceived threats to personal safety 

are present, to advise their supervisor of any real or perceived safety issue, to take another 

Service Coordinator with them if they felt doing so was necessary and generally how to perform 

4 

their job duties safely in the community. Integra conducted a total of three two-day training 

programs in the Fall of 2012 for its new Service Coordinator team in Florida. (Tr. 789-91, 839­

42, 957-59). Those trainings encompassed safety discussions that included role playing 

scenarios and demonstrations (Tr. 875-76, 959), and included written safety-related materials 

distributed in connection with the face-to-face training sessions. (Tr. 956-57; Exhibit F). 

In addition to the face-to-face training sessions, Integra conducted a set of twice-weekly 

telephone calls in which the Service Coordinators were required to participate.2 One of these 

weekly calls was led by the supervisor of the Florida Service Coordinator team, while the other 

was led by Drs. Melissa Arnott and Thomas Krajewski. (Tr. 289-91, 849-50). During their 

weekly calls, Drs. Arnott and Krajewski facilitated discussion related to service challenges 

regarding individual Members, reviewed specific training points, and responded to inquiries 

regarding safety considerations and other workplace issues. (Tr. 766-67,849-50, 1027). 

Integra also employed a practice commonly referred to as the "buddy system," under 

which employees who felt in any way a real or perceived threat in interacting with a Member 

were to take a second Service Coordinator or other Integra employee with them for Member 

visits. (Tr. 231-32, 793-94, 821-22, 847-48). Service Coordinators commonly used a regular 

partner for these purposes, and were instructed to contact a supervisor if they were not readily 

able to arrange for another employee to accompany them in meeting with the Member. (Tr. 793­

94, 821-22, 847-48). Service Coordinators were instructed that, jf they believed a real or 

perceived threat to their personal safety existed with a particular Member, they should not meet 

with that Member or meet when a second Integra employee was present. (Tr. 794-95). The 

company has always directed its Service Coordinators to leave any meeting immediately if they 

2 These weekly telephone calls were referred to throughout the hearing as "rounds." 

5 

felt unsafe. (Tr. 932, 941-42). It is undisputed that no employees were ever disciplined for 

delaying a meeting to ensure a second employee could accompany them, and that no employee 

ever suffered a loss of payor other disciplinary action as a result of not completing a particular 

number of meetings with a Member or otherwise refusing to interact with a particular Member. 

(Tr. 191,313). 

Finally, Integra maintained a written workplace violence policy, which provided in 

relevant part that: 

Violence by an employee or anyone else against an employee, supervisor or member of management will 

not be tolerated. The purpose of this policy is to minimize the potential risk of personal injuries to 

employees at work and to reduce the possibility of damage to company property in the event someone, 

for whatever reason, may be unhappy with a company decision or action by an employee or member of 

management. 

If you receive or overhear any threatening communications from an employee or outside third party, 

report it to your Direct Supervisor at once. Do not engage in either physical or verbal confrontation with a 

potentially violent individual. If you encounter an individual who is threatening immediate harm to an 

employee or visitor to our premises, contact an emergency agency (such as 911) immediately. 

All reports of work-related threats will be kept confidential to the extent possible, investigated and 

documented. Employees are expected to report and participate in an investigation of any suspected or 

actual cases of workplace violence and will not be subjected to disciplinary consequences for such 

reports or cooperation. 

Violations of this policy, including your failure to report or fully cooperate in the company's investigation, 

may result in disciplinary action, up to and including discharge. 

(Exhibit C). 

The Events ofDecember 10, 2012 

was a Service Coordinator hired in late Summer 2012 as part of Integra's 

Florida service team. (Tr. 136). One of the Members .,Mwas assigned to work with was 

an individual who had been diagnosed with schizophrenia and other chronic 

medical issues. When was referred to Integra there was no evidence of prior 

psychiatric hospitalizations or history of a connection with his Primary Care Physician for 

medical care. His history reflected injectable medication compliance and case management 

6 

services for the schizophrenia diagnosis and an unrelated acute medical hospitalization and 

follow-up care related to that condition (Ir. 141). 

At the hearing, OSHA provided evidence of criminal record. Ihe compliance

safety and health officer who conducted the agency's investigation, Jason Prymmer, 

acknowledged, however, that record contained no evidence of any violent activity 

subsequent to the 1990s. (Ir. 225-26). 

conducted three face-to-face meetings with _ during October and 

November 2012. (Tr. 139-40). Although from one of those meetings indicate 

that "uncomfortable. so she asked the member to be respectful or she would not be 

able to work with him", as confirmed by Mr. Prymmer during the hearing, based on a comment 

made by the sole evidence adduced at the hearing on that issue indicated that the comment 

at issue was of a flirtatious, as opposed to a threatening, nature. (Ir. 232-33) . 

traveled to •..,"'U....JLL...... for a fourth face-to-face meeting on December 10, 

2012. (Tr. 119). When_arrived at the house, _emerged armed with a knife and fatally 

stabbed her. (Ir. 83). 

The Citation 

Within days of gw'."death, OSHA opened its investigation.3 At the conclusion of 

the investigation, OSHA issued the citation ("Citation") from which the instant proceeding 

arises. (Exhibit 1). Citation One, Item One of the Citation charges Integra with a violation of 

the general duty clause contained in Section 5 of the Occupational Safety and Health Act of 1970 

(the "Act"). Specifically, Citation One, Item One alleges that Integra failed to keep its 

3 As discussed infra, although Integra reported to Workmens' Compensation, it 

did not also report the fatality to OSHA. of death shortly after it 

occurred as a result of a report from an unknown third-party. (Tr. 81-82). 

7 

workplace free from exposure to "the hazard of being physically assaulted by members with a 

history of violent behavior." Of particular note, the Citation references as having a 

"violent criminal history" in describing the basis for the Citation, yet OSHA's investigator, Mr. 

Prymmer, acknowledged during his testimony that OSHA did not obtain a copy of 

criminal record until after the Citation had been issued. (Tr.223). 

LEGAL STANDARD 

The provision of the Act at issue in this matter is the general duty clause, codified at 29 

U.S.C. § 654. The clause provides that an employer: 

[S]hall furnish to each of his employees employment and a place 

of employment which are free from recognized hazards that are 

causing or are likely to cause death or serious physical harm to his 

employees. 

In construing the general duty clause, the Review Commission and the courts have held 

that in order to establish a violation of the clause, the Secretary has the burden of establishing 

four distinct elements: 

To prove a violation of this provision, known as the "general duty 

clause," the Secretary must show that: (I) a condition or activity in 

the workplace presented a hazard; (2) the employer or its industry 

recognized the hazard; (3) the hazard was likely to cause death or 

serious physical harm; and (4) a feasible means existed to 

eliminate or materially reduce the hazard. 

CSA Equip. Co., LLC, 24 BNA OSHC 1476, 2014 OSAHRC LEXIS 9 at *2 (No. 12-1287, 

2014); see also Fabi Constr. Co. v. Sec'y of Labor, 508 F.3d 1077, 1081 (D.C. Cir. 2007) 

(same), 

ARGUMENT 

I. 	 Intentional Criminal Acts by Integra's Members Do Not Constitute a Recognized 

Workplace Hazard within the Meaning ofthe Act. 

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The hazard upon which the Secretary bases his allegation that Integra violated the general 

duty clause is that of "being physically assaulted" by the Members to whom Integra provides 

assistance. (Exhibit I). By this Citation, the Secretary thus defines as a hazard the potential 

criminal acts of the citizens being served by Integra. Enforcement of the Citation would 

represent an unprecedented expansion of the general duty clause and, moreover, is unsupported 

on the record ofthis case. 

The only precedent that Integra has located involving an alleged "recognized hazard" 

consisting of criminal conduct by a third party is Megawest Financial Inc., 17 BNA OSHC 1337, 

1995 OSAHRC LEXIS 80 (No. 93-2879, 1995). Megawest involved an apartment complex 

managed by the respondent-employer. After a series of incidents in which staff members were 

threatened and physically assaulted by residents, the Secretary issued a citation pursuant to the 

general duty clause. The presiding Administrative Law Judge ("ALJ") denied enforcement of 

the citation on the grounds that potential violent acts by the residents were not a recognized 

hazard for purposes of the general duty clause. Id. at *32. In so holding, the ALJ recognized 

that the nature of the hazard at issue was not consistent with those envisioned at the time of the 

Act's passage: "The hazards that the Act has traditionally dealt with have been hazards that arise 

from some condition inherent in the environment or the processes of the employer's workplace. 

Thus, the Act addresses the hazards of falling, of electrocution, of amputation, of suffocation, of 

overexposure to lead, and to noise." [d. at *24. The ALJ recognized that "'To respect Congress' 

intent, hazards must be defined in a way that apprises the employer of its obligations, and 

identifies conditions or practices over which the employer can reasonably be expected to 

exercise control.'" [d. at *25 (quoting Pelron Corporation, 12 BNA OSHC 1833, 1986 

OSAHRC LEXIS 114 at *10-11 (No. 82-388,1986)). 

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The ALl further noted that "[g]enerally, when an employer addresses safety hazards in 

the workplace, he is dealing with inanimate objects or processes over which he can exercise a 

certain degree of control. A difference regarding employees is that the employer now must 

deal with people, capable of volitional, deliberate acts." Id. at *26-27. This was recognized as 

particularly true of "third parties not in its employ," over which an employer has "even less 

control." Id. at *27. The ALl went on to acknowledge the fundamental difference between 

criminal activity by third parties and types of hazards generally regulated via the general duty 

clause: 

The Secretary now asks employers to anticipate and 

prevent criminal behavior on the part of non-employees. Such 

behavior, while certainly hazardous to its victims, is completely 

different from any other hazards addressed by the Act. The hazard 

of physical assault in the present case arises not from the processes 

or materials of the workplace, but from the anger and frustration of 

people. The anger and frustration may be fueled by drugs, alcohol, 

or mental health problems. But the assaults are intentional acts, 

deliberately committed by reasoning (though, perhaps, irrational) 

beings. 

Violence is, unfortunately, an all too common occurrence 

nowadays. It impacts upon all segments of society and is by no 

means limited to the workplace. While the threat of workplace 

violence is omnipresent, an employer may legitimately fail to 

recognize that the potential for a specific violent incident exists. It 

may reasonably believe that the institution to which society has 

traditionally relegated control of violent criminal conduct, i.e., the 

police, can appropriately handle the conduct. To validly assess an 

employer's actual or constructive knowledge of workplace 

violence, it must be acknowledged that violence occurs when an 

intellect actively seeks to cause it, that violence exists in society 

and may occur unpredictably, and that society empowers the police 

to control the conduct. For these reasons, a high standard of proof 

must be met to show that the employer itself recognized the hazard I

of workplace violence. It is not enough that an employee may fear 

that he or she is subject to violent attacks, even if that fear is 

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communicated to the employer, and even if the employee is one 

whose knowledge can be imputed to the employer. Nor is it 

sufficient that there has been a previous injury from a violent 

incident. 

ld. at *27-29. 

On that basis, the ALJ concluded that the Secretary had failed to establish a recognized 

hazard sufficient to support enforcement of the citation. Integra has been able to locate no 

decisions, in the nearly twenty years since Megawest was decided, in which the Commission or 

an ALJ has directed enforcement of a citation based upon the hazard of potentially criminal acts 

by a third party. 

The reasoning of Megawest applies with equal force in the instant case. As recognized in 

that decision, the violent conduct of a third party is an inherently unpredictable act of a different 

nature than the hazards typically regulated under the general duty clause. Significantly, the ALJ 

presiding in Megawest concluded that such violent acts were not a "recognized hazard" 

notwithstanding the fact that the employees in that case "were often subjected to threats or 

belligerent conduct and, on a few occasions, to physical attack." ld at *7. Those events 

included an incident in which two employees had to be hospitalized following an attack by a 

resident armed with mace, as well as an incident in which an employee was attacked with a 

telephone. Id. at *8-9. Here, in contrast, although there was testimony of a few verbal threats by 

Members, the Secretary did not produce a scintilla of evidence to suggest that any Service 

Coordinator suffered an actual workplace injury prior to the attack on on December 10, 

2012. 

Further, the question of whether a recognized hazard exists is not considered in a 

vacuum, but rather involves consideration of whether the need for a particular type of corrective 

11 

action was known to the industry or to the individual employer. See Cargill, Inc., 8 BNA OSHA 

1745, 1980 WL 10234 at *9 (Nos. 78-4482 & 78-5289, 1980) (framing Secretary's burden as 

one of establishing that "hazard posed by tramp metal in respondent's conveyor system was 

recognized by respondent or respondent's industry to require installation of a tramp metal 

detector"). The Secretary has failed to carry his burden to prove that the methods of abatement 

identified in the Citation were recognized by the community health worker industry as required 

practices under the Act. Indeed, the expert witness offered by the Secretary, Janet Nelson, was 

unable to identify how widely adopted, or how effective, the abatements proposed by the 

Secretary have been. See infra, Part II. 

In sum, the Secretary is seeking by this Citation to classify as a "recognized hazard" a 

group of Americans, who are presently neither confined nor committed, based solely on the 

Secretary's conclusion that such individuals are more predisposed to violent conduct than other 

members of the community. Integra has been unable to identify any instances in which such a 

classification has been accepted by the Commission or by any court. Further, the implicit 

conclusion in the Citation that providing services to individuals with a criminal background or 

mental illness represents a recognized hazard requiring prescreening of such persons raises 

broader questions relating to the delivery of any in-home or in-community services. 

Specifically, the Secretary's suggestion that an employee cannot lawfully be sent to perform job 

duties at the home of a Member absent a predetermination of that individual's historical criminal 

behavior would appear to apply with equal force to any occupation involving entry into a 

person's home for the purpose of delivering a service. The work of a plumber or HVAC 

technician, to name only two examples, involves extended time spent in the homes of individuals 

who, under the Secretary's theory in this case, could pose a danger of violence based on past 

12 

criminal activity or mental illness. The Secretary has never, to Integra's knowledge, asserted 

that employers in those industries are under a duty to conduct background checks or take other 

actions intended to predict or ameliorate potential violent action by customers. 

The Secretary has failed to meet the "high standard of proof" identified in Megawest as 

required to support the conclusion that potential criminal conduct by Members was a 

"recognized hazard" for Integra employees. Absent such a recognized hazard, enforcement of 

Citation One, Item One must be denied. See CSA Equip. Co., LLC, 24 BNA OSHC 1476,2014 

OSAHRC LEXIS 9 at *2 (No. 12-1287,2014). 

II. 	 The Secretary Has Failed to Meet His Burden to Show that the Abatement 


Measures Identified in the Citation Would Be Effective to Abate the Alleged 


Hazard. 


Assuming arguendo that a recognized hazard exists, the Secretary has failed to 

demonstrate that the abatement measures identified in the Citation would effectively abate the 

hazard. The Secretary's burden has been described as that of specifying "the particular steps a 

cited employer should have taken to avoid citation, and to demonstrate the feasibility and likely 

utility of those measures." Nat'l Realty & Constr. Co. v. OSHRC, 489 F.2d 1257, 1268 (1973). 

The Secretary has wholly failed to carry his burden to demonstrate the "likely utility" of 

the proposed abatement measures. The sole witness offered by the Secretary to testify as to the 

efficacy of the abatement measures, Janet Nelson,4 acknowledged that she could not state that 

further training would reduce the Service Coordinators' potential exposure to violence. (Tr.615­

4 It is Integra's position that Ms. Nelson's testimony in this matter should be given little weight 

in light of the evidence adduced at the hearing regarding her background. Specifically, Ms. 

Nelson acknowledged that she had never before been qualified as an expert, that she has not 

undertaken any doctoral studies or served as a faculty member at any institution of higher 

learning, and that her sole publications consist of a two-page newsletter article and self-published 

materials. (Tr. 563-67). 

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16). Likewise, Nelson acknowledged that violent incidents could still occur even if the "buddy 

system" utilized by Integra were codified into a more formalized program. (Tr. 625). 

Perhaps most tellingly, Nelson acknowledged that as to one of the central abatement 

measures proposed by the Secretary, namely implementation of checks to determine the threat 

posed by new Members, she could offer only a "guess" regarding potential effectiveness: 

Q: In your opinion, does a risk - violence risk assessment, uh, 

does that decrease the incidence ofworkplace violence? 

A: I don't know statistics on that, but yes, the more 

information you have on what you're walking into, the 

better off you are. 

Q: (Nodding affirmatively). 

A: So I guess I would say yes. 

(Tr.650). 

Further, Nelson offered no statistical or other evidence as to the potential efficacy of any 

ofthe proposed abatement measures beyond her own conclusory statements.s 

In light of the Secretary's failure to offer evidence showing the potential effectiveness of 

the abatement measures proposed in Citation One, Item One, the Secretary has failed to meet his 

burden of establishing a violation of the general duty clause. See Champlin Petroleum Co. v. 

OSHRC, 593 F .2d 637, 640 (5th Cir. 1979) ("It is the Secretary's burden to show that 

demonstrably feasible measures would materially reduce the likelihood that such injury as that 

which resulted from the cited hazard would have occurred."). 

5 Indeed, the entirety of Nelson's testimony as the central question underlying the need for any 

abatement measures - i.e. the sufficiency or insufficiency of the training actually provided by I 

Integra - was called into question by her admission at the hearing that she was unaware of the 

nature of the face-to-face training provided by Integra in follow-up to the Neumann training 

completed by employees at the time of hire, as well as her acknowledgement that she was 

I

unaware of the topics discussed during weekly telephone conferences at which Service t 

Coordinators could confer with management about problematic cases and receive additional 

instruction. (Tr. 682-83). f 

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III. The General Duty Clause is Unconstitutionally Vague as Applied. 

The general duty clause is unconstitutionally vague as applied in Citation One, Item One. 

The Supreme Court has recognized that "[A] statute which either forbids or requires the doing of 

an act in terms so vague that men of common intelligence must necessarily guess at its meaning 

and differ as to its applications violates the first essential of due process of law." Connally v. 

Gen. Constr. Co., 269 U.S. 385, 391 (1926) .. This is particularly applicable in the context of the 

broad language of the general duty clause, which raises "certain problems of fair notice." 

Donovan v. Royal Logging Co., 645 F.2d 822,831 (9th Cir. 1981). As stated in Donovan, "these 

problems dissipate" only when the clause is read "as applying when a reasonably prudent 

employer in the industry would have known that the proposed method of abatement was required 

under the job conditions where the citation was issued." Id. 

The Secretary's issuance of Citation One, Item One is wholly at odds with the principle 

recognized in Donovan. The record in no way supports a contention that a "reasonably prudent 

employer" in Integra's position would have known that it was required to implement the 

proposed methods of abatement. To the contrary, the Secretary's own expert was unable to even 

identify how many employers in the community health industry use any of the abatement 

measures at issue. Instead, Ms. Nelson repeatedly couched her testimony as describing "best 

practices." (Tr. 616, 642-43, 673, 722, 731). Whether a potential program or policy represents a 

"best practice" in an industry, however, is plainly a different matter entirely than the question of 

whether a reasonably prudent employer would have known the program to be required. Notably, 

the Secretary offered no statistical evidence regarding the extent to which others in the industry 

have adopted the proposed abatement measures, nor did the Secretary introduce any other form 

of evidence from which it could be concluded that the safety programs offered utilized by Integra 

15 

were below the standards utilized in the community health industry. In contrast, Integra's 

Medical Director, Dr. Krajewski, who has more than thirty years' experience as a physician with 

extensive experience in the community health field, testified that the training methods employed 

by Integra in 2012 were "above and beyond" the industry standard. (Tr. 1023-27). In 

elaborating on that point, Dr. Krajewski explained: 

A: Well, because in a community you have that initial training 

period. For example, community mental health worker, 

peer support, specialists who are out there, they typically 

get the training right up front and they get a certificate that 

they've been trained. But there is very little training that 

occurs later on. It might be a once a month meeting - staff 

meeting that they can talk about. Our training that we had 

had weekly plus the on-site training plus the on call 

availability to continue to do training and answer questions 

immediately was no one has that out there at all. 

Q: And you're talking about your particular industry? 

A: Yes. As far as I could tell, no one ­ non one had that out 

there. 

(Tr.1028). 

Finally, the unconstitutionality of the clause as applied in this case is demonstrated by the 

fact that, to Integra's knowledge, the Review Commission has at no time in the past ever issued a 

decision holding an employer to be in violation of the general duty clause based on its failure to 

prevent a criminal act by a third party of the type at issue in this case. Indeed, in the course of its 

investigation OSHA designated this matter as a "novel" case. (Tr.227-28). 

Viewed in their totality, these circumstances dictate that a reasonably prudent employer 

in Integra's position would not have known that the Act required the adoption of the methods of 

abatement identified in Citation One, Item One. Given that fact, the general duty clause, as 

applied in this case, is unconstitutionally vague. 

IV. 	 The Record Does Not Support Classification of Citation One, Item One 

as a Serious Violation. 

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Citation One, Item One has been classified by the Secretary as a serious violation. 

Assuming arguendo that a violation is found, that classification is nevertheless inappropriate in 

light of the applicable standard for classifying violations. 

Section 17(k) of the Act provides that a violation shall be deemed serious "if there is a 

substantial probability that death or serious physical harm could result from a condition which 

exists ... unless the employer did not, and could not with the exercise of reasonable diligence, 

know of the presence of the violation." See 29 U.S.C. § 666(k); see also Landcoast Insulation, 

Inc., 23 BNA OSHC 1168,2010 OSAHRC LEXIS 59 at *14 (No. 09-0625,2010) ("A 'serious' 

violation under § 17(k) of the Act is established if there is a substantial probability of death or 

serious physical harm that could result from the cited condition and the employer knew or should 

have known with the exercise reasonable diligence of the presence of the violation."). 

For the reasons discussed supra, Integra did not know (and could not reasonably be 

expected to know) that it was in violation of the Act. The Review Commission does not appear 

to have ever concluded on facts even remotely analogous to the instant case that an employer's 

failure to prevent violent, criminal acts by third parties constituted a violation of the Act. 

Further, the Secretary presented no evidence at the hearing as to any existing industry standard 

with regard to use of the proposed methods of abatement so as to suggest that Integra was 

operating below industry standards and should have known that its failure to utilize those 

abatement measures would be deemed to be a violation. To the contrary, the evidence presented 

at the hearing revealed that, despite the recognized lack of uniform standards within the 

community health worker industry, Integra had put in place a robust training program involving 

a week-long online training course, multiple in-person training sessions, and weekly telephone 

conferences. (Tr. 766-67, 849-50, 875-76, 889-94, 1027). Additionally, Integra also already had 

17 

in place a version of the "buddy system" included in the Citation as a proposed abatement 

measure.6 (Tr. 231-32, 793-94, 821-22, 847-48). 

In light of the absence of evidence capable of supporting a conclusion that Integra "knew 

or should have known" that it was in violation of the general duty clause, Section l7(k) dictates 

that any potential violation cannot properly be classified as serious. 

v. 	 Integra Does Not Dispute Enforcement of Citation Two, Item One. 

Independent of the issues discussed supra, the Secretary cited Integra for not reporting 

death to OSHA within the time period specified by the Act. Integra does not contest 

Citation Two, Item One. As noted in Mr. Prymmer's testimony, Integra reported 

death to Workmens' Compensation. Due to a misunderstanding of the law, however, a report 

was not also made to OSHA. (Tr. 86, 168). 

PROPOSED FINDINGS OF FACT 

1. The principal service performed by Integra Health Management, Inc. consists of 

community health workers locating difficult-to-engage members of the community and seeking 

to connect them with health care providers and services. 

2. 	 To provide that service, Integra employs Service Coordinators. 

3. Each Member is assigned to a particular Service Coordinator, who undertakes to 

meet the Member, gather information concerning the Member's medical and social service needs 

and personal barriers to accessing such services, and seek the Member's consent to receive 

support and assistance from Integra. 

6 In fact, Mr. Prymmer acknowledged that the "buddy system" was in place at the time of • 

••lideath and that .'oil,. notes reflect that she was aware of its availability. (Tr. 231-32). 

18 

4. Service Coordinators are paid on a salary basis, and their compensation is not tied 

to achieving a particular number of visits or other contacts with Members. 

5. Service Coordinators do not perform clinical services, such as mental health 

counseling, to the Members, but instead seek to facilitate the Members' receipt of medical care 

from third-party clinicians and social services available to them. 

6. Integra began operating in Florida in May 2012. 

7. Integra was contracted by Amerigroup to offer its services to certain individuals 

enrolled in health plans maintained by Amerigroup. 

8. To perform that function, Integra hired a number of individuals as Service 

Coordinators in Summer and Fa112012. 

9. The Service Coordinators hired by Integra for its Florida contract with 

Amerigroup were required to complete an online training course developed by Integra in 

conjunction with Neumann University (the "Neumann training"). 

10. The Neumann training consisted of fifteen modules, and took approximately forty 

hours to complete. Service Coordinators were paid by Integra for time spent completing the 

Neumann training. 

11. Included in the Neumann training was a module specific to workplace safety. 

12. In addition to the online training sessions, Integra management staff traveled to 

Florida to provide in-person training to the Service Coordinators. In addition to accompanying 

newly hired Service Coordinators on meetings with Members, Integra management staff 

conducted a series of three two-day training programs in Fall 2012. Safety training was an 

inherent component of this training, which also included role playing scenarios and 

demonstrations. 

I 

r 

19 I

i 

J 
13. Integra also distributed written safety guidelines and materials in connection with 

the face-to-face training sessions, copies of which were introduced into evidence as Exhibits B, 

E, F, J, K, L, R, V. 

14. As an additional training tool, Integra required its Florida Service Coordinators to 

participate in two weekly telephone conferences, frequently referred to as "rounds." One such 

call was led by the Florida-based supervisor of the Service Coordinators, Laurie Rochelle. The 

second weekly call was led by Dr. Melissa Amott, Integra's Vice President of Community 

Programs, and by Dr. Thomas Krajewski, Integra's Medical Director. During the calls, 

management and the Service Coordinators discussed individual cases as well as wider training 

and safety issues. 

15. Contact between Service Coordinators and Members occurred both over the 

telephone and via in-person meetings. Integra provided Service Coordinators with cell phones 

for communication with Members, management and other Service Coordinators and provided 

24-hour on-call management support to staff. 

16. From the outset of its Florida operation, Integra implemented a practice 

commonly referred to as the "buddy system," under which employees who felt any perceived or 

real threat to their personal safety while interacting with a Member were encouraged to take a 

second Integra employee with them for any onsite member visits. 

17. Service Coordinators were encouraged to find a regular partner for this purpose, 

but were instructed to contact a supervisor if they were not readily able to arrange for another 

employee to accompany them in meeting with the Member. Integra instructed the Service 

Coordinators that that they were to avoid situations with a real or perceived threat to personal [ 

safety existed with a particular Member, or should not meet with that Member unless a second 

20 


i 
Integra employee was present if they felt doing so was necessary or make alternative 

arrangements to meet the Member in a public setting outside ofthe home. The company directed 

the Service Coordinators to leave any meeting immediately ifthey felt a real or perceived threat 

to their personal safety. 

18. Integra also adopted a written workplace violence policy, which provides in relevant part 

that: Violence by an employee or anyone else against an employee, supervisor or member of 

management will not be tolerated .... If you receive or overhear any threatening communications from an 

employee or outside third party, report it to your Direct Supervisor at once. Do not engage in either 

physical or verbal confrontation with a potentially violent individual. If you encounter an individual who is 

threatening immediate harm to an employee or visitor to our premises, contact an emergency agency 

(such as 911) immediately. 

19. No evidence was presented to suggest that any Service Coordinator was ever 

disciplined for delaying a meeting to ensure a second employee could be present, nor was any 

evidence presented to suggest that any Service Coordinator ever suffered a loss of payor other 

disciplinary action as a result of not completing a particular number of meetings with a Member 

or otherwise refusing to interact with a particular Member. 

20. 	 The Citation at issue in the instant case was issued following an investigation 

I b II I, II h 1 1111 triggered by the killing of I h II (,)( hi il,)( h II (, I a Service Coordinator, by 	 who was a Ihllhllhl[(11 11111(l)(hl (lllIhll(11 

Member being served by Integra. 

21. While had a criminal history prior to the date of death, that 

history contained no record of any violent criminal acts in more than twelve years prior to his 

attackon_ 

and November 2012. 

22. conducted three face-to-face meetings with October 

I 

[ 

I 

21 

23. notes of the meetings indicate that a comment by one of

those meetings made her feel "uncomfortable." The sole evidence adduced at the hearing on that 

issue indicated that the comment at issue was of a flirtatious, as opposed to a threatening, nature. 

24. On December 10, 2012, • traveled to home for a fourth face-to-face 

meeting. When 'ved at the house, _ emerged armed with a knife and fatally stabbed 

her. 

PROPOSED CONCLUSIONS OF LAW 

1. The hazard identified in Citation One, Item One, namely "the hazard of being 

physically assaulted by members with a history of violent behavior," was not a recognized 

workplace hazard at Integra capable of supporting the alleged violation of the general duty clause 

at issue in this case. 

2. The Secretary failed to carry his burden of establishing feasible abatement 

measures that would be effective to eliminate or materially reduce the alleged hazard. 

3. The general duty clause is unconstitutionally vague as applied in Citation One, 

Item One, as a reasonably prudent employer in the community health industry would not have 

known that the proposed abatement measures were required for employees in the position of 

Service Coordinator. 

4. Enforcement of Citation One, Item One is properly denied. 

5. The Secretary met his burden of proving the violation alleged in Citation Two, 

Item One 

6. Citation Two, Item One has been properly classified by the Secretary as a nonserious violation, and the $3,500 penalty identified by the Secretary is appropriate. 

22 

Respectfully submitted, 

lsi 

Kevin C. McConnick 


Whiteford, Taylor & Preston, L.L.P. 


7 Saint Paul Street, Suite 1800 


Baltimore, Maryland 21202 


(410) 347-8700 


kmcconnick@wtplaw.com 


Counsel for Respondent 

23 
CERTIFICATE OF SERVICE 


I HEREBY CERTIFY that, pursuant to the instructions provided at the close of the 

hearing in this matter, a copy of the foregoing Post-Hearing Brief was served electronically on 

counsel for the Secretary ofLabor as follows: 

Lydia 1. Chastain, Esq. Chastain.lydia.j@dol.gov 

Rolesia Butler Dancy, Esq. Dancy.rolesia@do1.gov 

Kevin. C. McCormick 

2099810v4 

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