UHS OF DENVER, INC., d/b/a HIGHLANDS BEHAVIORAL HEALTH SYSTEM,

Some personal identifiers have been redacted for privacy purposes.
United States of America
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
OSHRC Docket No. 19-0550
Appearances:
Alicia A.W. Truman, Esq. & Beau Ellis, Esq, Department of Labor, Office of the Solicitor, Denver,
Colorado
For Complainant
Melanie L. Paul, Esq. & Dion Kohler, Esq., Jackson Lewis P.C., Atlanta, Georgia
For Respondent
Before: Judge Peggy S. Ball – U. S. Administrative Law Judge
DECISION AND ORDER
In this matter, Complainant alleges Respondent failed to adequately protect its employees
from the hazard of workplace violence in an in-patient psychiatric hospital. Although patient-on-
employee violence is a hazard Respondent is responsible for preventing, the parties recognize
workplace violence is an unavoidable aspect of providing care to individuals with psychiatric
disorders. Patients come to Respondent’s facility during difficult times in their lives when they are
incapable of self-regulation and need treatment for their illness. In other words, Respondent is
responsible for managing and maintaining a therapeutic, yet safe, environment with unpredictable
individuals in complicated circumstances.
SECRETARY OF LABOR,
Complainant,
v.
UHS OF DENVER, INC., d/b/a HIGHLANDS
BEHAVIORAL HEALTH SYSTEM,
Respondent.

2
Respondent’s obligation to provide a safe environment, however, is not limited to its
patients. Under the Occupational Safety and Health Act, Respondent is also obliged to ensure its
employees are provided with adequate protections against violence perpetrated by the patients for
whom the employees provide care. As will be discussed further below, providing a therapeutic
environment for mental health patients while simultaneously ensuring a reasonably safe work
environment for employees caring for them is, no doubt, a delicate balance to strike.
Notwithstanding the complex nature of the problem, however, the Court finds Complainant proved
Respondent failed to achieve the appropriate balance between the treatment of its patients and the
safety of its employees. While Respondent argues its clinical approach to patient care is the most
effective way to address patient-on-employee violence, the evidence shows this approach resulted
in a patchwork of ad hoc policies and programs primarily geared towards patient care with
employee safety as an ancillary consideration. While the Court does not doubt Respondent’s desire
to protect its employees, the evidence shows Respondent’s workplace violence protection program
was ill-suited to that purpose.
I. PROCEDURAL HISTORY
Complainant initiated an inspection of Respondent’s workplace on October 2, 2018, in
response to an anonymous complaint about workplace violence and the lack of a workplace
violence prevention plan (WVPP). (Tr. 47). The inspection was conducted by Compliance Safety
and Health Officer (CSHO) Aimee Stark. CSHO Stark visited the UHS Highlands facility three
times over the course of her inspection, during which time she interviewed members of the
management team and approximately twenty-two employees. (Tr. 50-54). At the conclusion of her
inspection, CSHO Stark recommended, and Complainant issued, a Citation and Notification of
Penalty. (Ex. C-1). In the Citation, Complainant alleged Respondent violated the general duty

3
clause, 29 U.S.C. § 654(a)(1), because it failed to adequately protect its employees from the hazard
of workplace violence and proposed a penalty of $11,934. (Tr. 68-69; Ex. C-1). Respondent timely
filed a Notice of Contest.
The parties exchanged multiple motions during the course of litigation; however, only one
warrants discussion at this point.1 Complainant filed a motion to amend the Complaint to (a) add
UHS-Delaware as a party, alleging Respondent and UHS-Delaware were a single entity under the
three-part test described in Loretto-Oswego Residential Health Care Facility, 23 BNA OSHC 1356
(No. 02-1164, 2011); and (2) add two additional means of abatement. As to (a), the Court found
Complainant failed to establish the two entities functioned as a single-employment entity or had
an identity of interest “such that addition of Delaware at this late point in the litigation would not
be unduly prejudicial.” As to (b), the Court found the amendments to the abatement section of the
Citation did not significantly alter the allegations, nor did they add new facts or issues. Thus, the
amendment was granted as to the abatement but not as to the addition of a new party.
Trial in this matter was originally scheduled to commence on June 1, 2020; however, due
to the COVID-19 pandemic, it was rescheduled multiple times. Ultimately, the trial commenced
roughly one year later on June 7, 2021, and lasted for 14 days.2 Both parties timely filed post-trial
briefs for the Court’s consideration. Based on the evidence presented at trial, and the parties’
respective briefs, the Court issues the following Findings of Fact and Conclusions of Law.
II. STIPULATIONS & JURISDICTION
Prior to the first trial date in this matter, the parties filed a set of Joint Stipulated Facts.
While some basic facts regarding the nature of the hospital are included, the most notable
1. Additional motions were filed both prior to and during trial with respect to the admissibility of evidence, including
the failure to provide camera footage and the failure to disclose amendments to expert disclosures; however, to the
extent necessary, those matters will be discussed later in this opinion.
2. The final two days of trial were done over video conference.

4
stipulations include those related to jurisdiction and Complainant’s burden of proof. As to
jurisdiction, the parties agree Respondent is an employer engaged in a business affecting
commerce under Section 3(5) of the Act and that the Commission has jurisdiction over this matter
pursuant to Section 10(c). See 29 U.S.C. §§ 652(5), 659(c).
In addition, the parties also stipulated to required elements of Complainant’s burden of
proof in a general duty clause case. Specifically, the parties stipulated: (1) employees were exposed
to the hazard of workplace violence; (2) Respondent and its industry recognized the hazard of
workplace violence, defined as assaultive or violent behavior of patients toward staff, at the time
of the alleged violation; (3) exposure to patient violence and/or assaults by patients could result in
serious injuries. The only remaining element at issue before the Court is the question of feasibility
of abatement.3 With respect to that particular element, the parties agree “the hazard of workplace
violence . . . cannot be eliminated at Highlands through feasible abatement measures.”
III. FACTUAL BACKGROUND
A. UHS-Highlands Worksite and Operations
Respondent operates a stand-alone behavioral health facility in Littleton, Colorado, which
provides in-patient psychiatric care for adults and adolescents ages 11 years and older. (Tr. 58).
Most patients are admitted to Highlands involuntarily and are treated for conditions such as
depression, anxiety, psychosis, schizophrenia, and suicidal thoughts. (Tr. 3197). The average stay
ranges approximately 7-10 days but can be as long as three months. (Tr. 58). According to the
former Medical Director, Dr. David Weiss, the individuals admitted to Highlands “tend to be pretty
ill” and “are having a break from reality.” (Tr. 3924-3925).
3. As will be discussed in Section IV, proof of this particular element requires a three-part analysis, which is laid out
clearly in Integra Health Management, infra.

5
The Highlands hospital building is a three-floor facility with a locked entrance to restrict
entry into and exit from the facility. (Tr. 397; Ex. R-2). The first floor of the facility contains the
dining room, cafeteria, administrative offices, group therapy rooms, and intake/admissions. (Tr.
397; Ex. R-2). The top two floors are primarily used to house patients. (Id.). There are 86 total
beds in the facility spread between three units: Discovery, Horizon, and Compass. (Tr. 397; Ex.
R-2). The Discovery unit, which is for adolescents, and the Horizon unit, which is for low-acuity4
adults suffering from illnesses such as depression and bipolar disorder, are both located on the
second floor. (Id.). The Compass unit, which is for high-acuity adult patients suffering from
schizophrenia and schizo-affective disorders, is located on the third floor. (Id.). The number of
patients in the hospital at a given time fluctuates due to new patients being admitted or discharged.
Respondent employs approximately 220 staff members to provide care and services to its
patients. (Tr. 58). Those responsible for providing direct care to patients include: doctors,
registered nurses, social workers, therapists, and behavioral health associates (BHAs). Though all
employees who provide direct care at Highlands are exposed to the hazard of patient-on-employee
violence, most of the incidents discussed in this decision include the nurses, BHAs, and individuals
who work in intake/admissions.
According to Respondent, its operations are governed by multiple regulatory and
accreditation organizations, including the State of Colorado and the Federal Government. (Tr.
3136, 3379). Specifically, Respondent is accredited by a body known as the Joint Commission,
licensed by the Center for Medicare and Medicaid Services (CMS), and regulated by the Office of
Behavioral Health for Colorado and the Colorado Department of Public Health and Environment
(CDPHE). (Tr. 3379, 4022, 4023). As such, any abatement determinations must operate within the
4. The term “acuity” refers to the severity of the psychiatric disorder in an individual case but was also used as a metric
to gauge the level of mental illness on a particular unit as a whole. (Tr.3530).

6
boundaries of the accrediting and regulatory frameworks, including EMTALA,5 which requires
Respondent to accept all patients with some very narrow exceptions. (Tr. 3467, 4029-4030).
B. WPV Incidents Occurring at UHS-Highlands
The Court was presented with evidence of multiple incidents of patient-on-employee
violence at UHS-Highlands, each of which relate to some aspect of Complainant’s abatement
proposals. In lieu of reproducing a recap of each incident of workplace violence, the Court
accentuates testimony it finds to be illustrative of the remaining issues central to this Decision.
While the following reflect individual instances of violence, every employee who testified
indicated he or she had been the subject of or observed multiple incidents of patient-on-employee
violence during their tenure which was similar to the incidents exemplified.6
[redacted] was a nurse at Highlands for approximately 8 years, from May 2013 to April
2021. (Tr. 613). While he testified he had been assaulted “a lot” during his tenure, there were two
incidents that occurred proximate to the inspection that bear mentioning. First, in December 2017,
[redacted] testified he was hit in the face by a patient while he was sitting behind the nurse’s
station.7 (Tr. 626-627). Second, in June 2020, [redacted] was attacked by a group of adolescents
in the Discovery unit who had barricaded themselves in a room. (Tr. 660). According to [redacted],
this event was essentially a repeat of an incident which had occurred the week before involving
the same patients.8 (Tr. 660). This time around, [redacted] was repeatedly attacked by the patients
as they came out of the room. While the first two were restrained by other staff members, the third
5. EMTALA is short for Emergency Medical Treatment and Active Labor Act and requires hospitals accepting
Medicare benefits to provide care to individuals regardless of citizenship, legal status, or ability to pay. See 42 U.S.C.
§ 1395dd.
6. Overall numbers and reporting will be discussed below in Section III.C.1.v.
7. Nearly all of the nurses and BHAs testified to an incident involving a patient acting violently towards staff working
behind the nurse’s desk. (Tr. 409, 478, 631, 673, 981, 1247, 2204).
8. As noted by Complainant, even though this event occurred post-inspection, it is nonetheless relevant to show
workplace violence of the sort complained of is ongoing. It is also relevant to show the abatement methods utilized
by Respondent and claimed as effective were, in fact, not. See, e.g., SeaWorld, 748 F.3d 1202.

7
and fourth managed to pull [redacted] to the ground and choke him with his lanyard and,
subsequently, with a carotid choke hold. (Tr. 660-662). [redacted] suffered serious injuries
resulting in two months away from work.
[redacted] worked as a BHA from June 2016 to May 2020. (Tr. 1087-1088). [redacted]
suffered two significant injuries during her time at Highlands. In February 2018, her shoulder was
dislocated while performing a hold on a large, out-of-control patient, who started the confrontation
by reaching over the nurse’s station. (Tr. 1103-1105, 1118). According to [redacted], the patient
had exhibited violent outbursts during the period leading up to the injury, as well as during a
previous stay at Highlands. (Tr. 1099-1100, 1110; Exs. C-44, C-60). Notwithstanding her injury,
[redacted] had to maintain the hold until she could be relieved. In July 2019, [redacted] was kicked
in the head by a patient wearing boots, which managed to get onto the unit even though such
footwear was not allowed by policy. (Tr. 1126). According to [redacted], the patient, who also had
a history of violent behavior, was brought up to the unit by intake even though they were told there
was insufficient staff for another patient on the unit. (Tr. 1125). Due to her injuries, [redacted] was
out of work from July 2019 until April 2020, when she was cleared by her doctor. (Tr. 1128-1129).
Many other nurses and BHAs testified they had been attacked and/or injured while
performing their jobs, including being kicked in the chest, having a dreadlock ripped from their
scalp, being spit on, and bitten. (Tr. 801, 939, 948, 1727-1728). While violent incidents could, and
did, occur at any time of day under different circumstances, the weight of the evidence suggests
many of these incidents occurred in the evening or overnight when staffing levels were at their
lowest. (Tr. 147; Ex. R-57). The evidence also indicates that a significant number of the injuries
occurred when staff had to go “hands-on”, or place patients in holds to restrain them. (Tr. 86-87;
Ex. C-4 at 8).

8
C. Respondent’s Policies and Procedures – Administrative Controls
The following discussion addresses the ways Respondent attempted to address patient
aggression through policy and procedures. These policies and procedures address how incoming
patients are handled during the admissions and intake process, how employees are trained to act
in response to an act of aggression, and how the information about particular acts of aggression is
used for subsequent data collection, communications, treatment, and training.
1. Policies and Procedures to Address Patient Aggression
i. Code Greens
Everyone testified their first response to a patient who is exhibiting signs of aggression is
to engage in what is called Verbal De-escalation. Direct care staff are trained to first attempt to
calm and redirect the patient from the source of their aggravation. (Ex. R-30). In some instances,
however, verbal de-escalation is not possible or successful, and an employee will need assistance
restraining an aggressive patient. In those instances, the employee can call for a Code Green, which
is, for lack of a better term, a distress call to all available members of the hospital staff. Code
Greens could be called in through the use of panic alarms (intake), verbally calling out to other
members of the unit, walkie-talkies when they are available, or the intercom system. (Tr. 3132-
3133).
While all staff members are expected to respond, if possible, there are often limitations on
who can respond. For example, if an employee is engaged in one-on-one care with a patient under
doctor’s orders, that employee cannot respond to a Code Green. (Tr. 95, 708, 3294). The same is
true of staff members doing patient rounds, which have to occur every 15 minutes, and staff
transporting patients around the facility for lunch and other activities. (Tr. 95, 708, 831, 2530,
3294). Even if staff members are designated as Code Green responders for their shift, there is no

9
policy preventing them from being assigned to one-on-one care of a patient or other activities that
would prevent them from responding to a Code Green. (Tr.377, 2350). Thus, the employees
testified there were instances where: (1) calls for a Code Green were not responded to or required
repeated calls; and (2) multiple Code Greens were called simultaneously, and there were not
enough people to respond. (Tr.413, 961, 1149, 2296). This is so even though the staff roster for
each shift has designated responders.
Respondent contends the typical response time to a Code Green is “within seconds”;
however, now-former Director of Risk Management, Amy Petschauer testified she did not track
response times. (Tr. 3495). Further, while many members of management downplayed the number
of Code Greens called for and the average response to those Code Greens, staff members
repeatedly complained of how long it took staff to respond to Code Greens. (Tr. 149, 464). This
gap in perception is due, in no small part, to the fact that most management employees work during
the daytime when both staff and management are available to respond. Comparatively, the evening
and overnight shift employees do not have additional employees or management at their disposal.
ii. Clinical Approaches to Aggressive Behavior
Respondent is adamant that clinical management is the most effective way to materially
reduce the incidence of patient-on-employee violence because the source of the violence is the
patient’s mental illness. While Dr. Lipscomb agreed clinical management is a necessary aspect of
reducing workplace violence, she noted it was not, of itself, sufficient. This is illustrated by
numerous aggression propensity assessment forms and policies introduced by Respondent. Some
of the forms were only partially implemented, implemented for short periods of time, or never
used at all.

10
For example, there were programs such as the Managing Aggressive Patient Protocol, or
MAPP, which was designed to identify aggressive tendencies of a patient prior to being admitted
to Highlands. (Ex. C-13). This form was only in use for a short period of time, because employees
did not find it helpful. (Tr. 714). Further, it appears the MAPP references other plans/programs
that were never implemented. (TR. 591). Other forms, such as the Conduct Expectation for
Aggressive Behaviors, Promoting Patient Safety Review, and Source of Aggression, were
similarly short-lived or introduced but never actually used. (Tr. 715, 1156, 3221; Ex. C-15, R-23).
In response to an act of aggression requiring staff to place a patient in a hold, staff were
required to fill out a Restraint/Seclusion packet. (Tr. 3265; Ex. R-9, C-42, C-46). The packet
contains a treatment plan; however, the treatment plans were basically the same for all patients
and, ultimately, did not change the course of treatment for an individual patient or patient
management as it related to employee safety. (Tr. 419-420; Ex. C-42, C-46). This is illustrated in
the cases of NS and HM, who had multiple documented restraints. (Ex. C-42, C-46 The treatment
plans in their files are largely pro-forma with the exception of the specific event that precipitated
the hold. (Ex. C-42; C-46). There is no indication changes were made to these patients’ treatment
plans to address their “aggressive behaviors.” (Ex. C-42).
As will be discussed later, Respondent is not being cited for implementing programs that
ultimately failed. However, it is noteworthy these attempts to address patient aggression on a
purely individual, clinical level resulted in a patchwork of ad hoc solutions instead of being
addressed by a comprehensive plan to deal with patient-on-employee violence, which is clearly
endemic to the business of running a mental health facility.
iii. Admissions & Intake

11
Respondent contends its clinical approach to addressing patient-on-staff violence starts
with the admissions process. Patients are typically admitted to Highlands on a referral from an
emergency department and usually arrive by ambulance, but some come to the facility as walk-
ins. (Tr. 4025). Once the prospective patient is allowed into the building, they are immediately
separated from their belongings, which are checked with a metal detector, to ensure the prospective
patient is not carrying prohibited items, including anything that could be used as a weapon. (Tr.
3331; Ex. R-34). Staff is also required to perform a “non-invasive body search” for the same
reason. (Ex. R-34).
After the initial screening for contraband is complete, prospective patients meet with intake
staff. (Tr. 3212). This consultation takes place in a consult room just down the hallway from the
main entrance and is recorded on CCTV; though there is no indication these consultations are
monitored in real time. (Tr. 67, 4026). Respondent says staff are required to wear a panic alarm
during intake as a standard precaution for the possibility a prospective patient becomes violent;
however, CSHO Stark was told the intake staff used their personal judgment regarding when to
wear them. (Tr. 65-66; 4027). Intake staff conduct an assessment, which includes legal history,
past hospitalizations, diagnoses, medications, and drug screening (if one has not been done at the
referring emergency department). (Ex. R-7). Part of the reason for this assessment is to determine
whether the patient is at risk of self-harm or harm to others. (Tr. 2894). If a patient was determined
to be at high risk for aggression, a High Risk/High Alert Notification form, which is bright pink in
color, was supposed to be filled out and included in the patient’s file. (See R-5 at Highlands 00624).
Respondent also stated intake staff will contact the unit if the patient has been admitted to
Highlands before. (Tr. 2898). Ultimately, the decision to admit is up to the on-call psychiatrist and

12
is informed by current capacity and the medical needs of the patient, which may not be appropriate
for Highlands.9 (Tr. 4024-4025).
While the policy governing Admissions/Intake appears thorough and designed to prevent
violent behaviors, the reality of the process was much different. Direct care staff were not always
consulted about re-admitting a previous patient, even when the patient had a history of violent
behavior at Highlands. For example, Patient JH was re-admitted to Highlands even though he had
assaulted [redacted], who had pressed charges against JH. (Tr. 637-638). In addition, intake would
sometimes admit a patient to a unit that was either understaffed or, at that particular moment, was
not ready to admit the patient to the unit. In one instance, [redacted] was seriously injured by an
extremely aggressive patient admitted before the unit was prepared to admit him/her. (Tr. 1124).
Even if a patient’s Comprehensive Assessment indicated a history of aggressive/assaultive
behavior, this was not indicated on the High Risk/High Alert Notification form. For example,
Patient JH assaulted an employee in December 2017, but upon being readmitted six months later,
his HR/HA Notification form did not indicate an assault risk. (Tr. 646, C-43 at 11). Patient MG’s
assessment indicated a history of violence and aggression but was assessed as low- to no-risk on
the HR/HA form. (Tr. 1241-1243; Ex. R-5 at Highlands 00624). Both JH and MG ended up
assaulting staff after they had been readmitted. (Ex. C-43 at 12; Ex. R-5 at Highlands 00626).
iv. Debriefing
According to Respondent’s policy, the only time a staff debrief is required is after a patient
has been restrained. (Tr. 163-64). According to Respondent, this is required by CMS regulations
and the State of Colorado. See Resp’t Br. at 32. The staff debriefing can be found in the Restraint
and Seclusion packet, which was included in the numerous redacted patient files submitted into
9. As noted above, this is governed, in part, by EMTALA.

13
evidence. (See, e.g., C-40 to C-49). Respondent contends debriefing also occurs after any incident
of patient-on-staff violence; however, the evidence shows staff debriefs, if they occurred, were
cursory at best. Respondent’s policy also indicates camera review of such incidents should occur
for the purposes of training. (Ex. C-11).
Two of the staff members, Mr. Harriott and [redacted], stated they had not participated in
a debrief after particularly violent encounters even though the documentation indicated a debrief
had occurred. (Tr. 808, 813, 1110). This was the case for many of the staff members who testified.
(Tr. 637, 663, 954, 1279, 1747, 2221-2222). In [redacted]’s case, the debrief indicated a camera
review had occurred, but she testified she was not included in any such review. (Tr. 1120-1123;
Ex. C-26). Further, on two separate occasions, [redacted] asked to see video of the encounters but
was told it was not available to her. (Tr. 1115, 1135). To the extent debriefings did occur, they
were often cursory checks to ensure no one got hurt during the hold. (Tr. 1738). Indeed,
Respondent’s own review of its files indicated staff debriefings did not include all parties involved
in the incident. (Tr. 2410-2411; Ex. C-35 at 2).
It appears management debriefings and camera reviews are, at best, lip service to regulatory
requirements, as opposed to an integral part of a robust workplace violence prevention program.
Nearly every employee who testified indicated the debrief was little more than a check to ensure
there were no injuries rather than a method to evaluate how a situation could have been handled
more safely or identify needed changes in procedure. According to Mark Helferich, this was likely
because there were “not enough staff to entertain those things”. (Tr. 943-944). As for camera
reviews, Mr. Helferich testified he had participated in at least 50 Code Greens and had participated
in only one camera review. (Tr. 954). Lori Ayala, a house supervisor, testified, at least as of

14
February 2020, she had not participated in a camera review as part of the debriefing process. (Tr.
3315).
v. Reporting
Respondent’s reporting system for employee injuries during the relevant period was an
amalgam of multiple, different sources without any consistency as to where information should be
documented, what should be reported, or how the data should be compiled. This lack of
consistency is reflected in both the data and the testimony provided at trial.
Based on CSHO Stark’s review, Respondent’s workplace violence injuries were supposed
to be documented in-house in Employee Accident Reports (EARs) until mid-2018, when it began
using a third-party, called Sedgwick, to record employee injuries. (Tr. 86; Ex. R-35). Using
Sedgwick requires either the employee or their supervisor to call a hotline to report the injury. The
problem, as noted by some of the employees at trial, is aggressive or violent behavior “was so
normalized” it did not occur to them to report injuries, including those not requiring immediate
medical attention. (Tr. 1901, 1977, 2080). Respondent also said it uses the MIDAS system to
record injuries; however, closer review of that system reveals it is a patient-focused system with
no section for employee injuries, except for the “Comments” section, and is entirely dependent on
the individual entering the data. (Tr. 2400). A clear illustration of the inadequacy of the MIDAS
system for recording employee injuries was illustrated by two examples: (1) when [redacted] was
kicked in the head by RM, the report simply coded the patient as “out of control”, but did not
mention the injury; and (2) when one patient managed to punch a BHA, slap a charge nurse, bite
a staff member, and spit in the faces of two others, the MIDAS report indicated “no injury
involved” because the outcome refers to the patient only. (Tr. 2397-2401; Ex. C-51). Thus, there
is no data point to be gleaned from those reports elucidating consequences to staff members in the

15
same manner as records of patient injury in the same report. (See, e.g., Ex. C-43 at 2, C-47 at 1,
C-51).
Exacerbating the problem of inconsistent reporting in multiple sources and formats, CSHO
Stark found employee injuries that were either not recorded or were improperly recorded in
Respondent’s OSHA 300 logs and EARs that were made available to her. (Tr. 87-88). This
included [redacted]’s injuries, neither of which were coded as lost workdays or restricted duty,
notwithstanding both requiring long-term absences and restrictions upon her return. (Tr. 1113-
1114, 1132; Ex. C-7 at 3, C-8).
Given the inconsistencies discussed herein, the Court is skeptical about Respondent’s
claims about the downward trend in injuries found by CSHO Stark. (Tr. 77, 375; Ex. C-4). Those
numbers were based purely on the OSHA 300 logs, which, as shown above, do not reflect all the
injuries that occurred, nor do they accurately reflect the injuries that are reported. Ms. Petschauer
testified injury tracking was the responsibility of the Human Resources Department. (Tr. 3415).
While Respondent’s current Human Resources director, Susan Coulter, testified about tracking
and auditing injury reports, she noted she did not begin at Highlands until May 24, 2019, which
was after the Citation was issued. (Tr. 3866). She has not reviewed or audited the OSHA logs prior
to the beginning of her employment. (Tr. 3887). Thus, prior to Ms. Coulter’s tenure, the data is
questionable at best. This, like other matters discussed herein, highlights another problem with the
lack of a comprehensive WVPP: lack of accurate data, tracking, and, subsequently, trend analysis.
vi. Law Enforcement Intervention
In addition to Code Greens, there have been numerous instances where the violent behavior
of a patient or group of patients exceeded the staff’s ability to handle the situation. In such cases,
the police have been called. Exhibit C-10 shows a summary of the of the police reports filed for a

16
period of three years leading up to the inspection. (Tr. 88-89; Ex. C-10). Some employees testified
management discouraged calling law enforcement; however, it does not appear anyone was
prevented from doing so. That said, at the very least, there appears to be inconsistent
communications and confusion regarding the proper protocol for contacting law enforcement,
which is another indication Respondent’s WVPP is not being properly or clearly communicated.
2. Staffing
A consistent refrain from nearly every employee who testified was a lack of adequate staff
to properly carry out their jobs, provide care, and feel safe. (Tr. 464, 440, 696, 820, 830, 958, 960,
1290, 2097). This sentiment was echoed in numerous communications to management, between
management, and even from a UHS-Delaware Divisional Nursing Director, who audited UHS-
Highlands’ operations and found, “[a]t [the levels provided for in the matrix] it may be difficult
for staff to get breaks, handle multiple admissions and/or manage an acute unit.” (Ex. C-25 at 5).
Complaints about a lack of adequate staff were also included in multiple staff surveys and daily
house supervisor reports. (Tr. 703-705; Ex. C-17, C-20, C-23, C-37). While employee suggestions
and complaints are not, of themselves, sufficient indicators of the need for additional staff, the
following discussion, as well as the legal argument provided later in this opinion, illustrates the
level of staffing provided for by Respondent was insufficient for the same reasons identified by
the UHS-Delaware Divisional Nursing Director.
i. How Staffing Levels are Determined
Respondent sets staffing levels for each unit based on a staffing matrix, which sets the level
of BHAs and nurses according to the number of patients, or census. (Tr. 146; Ex. C-16).
Respondent employs a staffing coordinator, who is responsible for ensuring adequate staffing
levels and creating daily assignment sheets. (Tr. 3529). This position was held by Jesus Gaspar

17
during the period leading up to the inspection until he was replaced by Krystal Garnhart in 2020.10
(Tr. 3525, 4021). According to Ms. Garnhart, she maintained the same procedures Mr. Gaspar
employed during his tenure as staff coordinator. (Tr. 3526). Ms. Garnhart testified she used the
matrix as the baseline for staffing and would adjust staffing levels upward based on additional
factors including acuity, planned admissions, and patients requiring special precautions, such as
one-to-one observation. (Tr. 3529-3530). The house supervisor may further adjust the assignments
based on skill and experience. (Tr. 3229).
The matrix establishes a general standard but does not account for acuity adjustments or
special orders, such as one-to-one observations,11 nor is there a policy or procedure for such
adjustments. (Tr. 697, 1291, 2314). Further, the matrix itself is the same for each of the three
units, notwithstanding the baseline differences in acuity between the different populations. (Tr.
2328; Ex. C-16). Interestingly, the matrix reduces staff down to one nurse and one BHA for each
unit during the overnight shift based on an expectation most patients are asleep. (Ex. C-16). Based
on the testimony of the nurses and BHAs, as well as the statistics regarding confrontations,
however, it appears a substantial number of confrontations occur during the evening and overnight
shifts. (Ex. R-57). Complicating matters staff-wise, Respondent would count staff on restricted
duty or performing one-to-ones as part of the staff count, even though they were not able to perform
the full panoply of duties required to run the unit. (Tr. 146, 664, 720, 1112, 1920).
Further complicating matters, employees would frequently call in sick or would not come
in for various reasons. (Tr. 1142-1143). Respondent said it would send out text blasts and, in some
cases, offer incentives for people to come in during their days off; however, this was not always
10. Mr. Gaspar was not able to testify at trial. Respondent sought to introduce Mr. Gaspar’s deposition testimony in
lieu of his appearance; however, the Court found Respondent failed to make the requisite showing of unavailability.
11. One-to-one observation is a doctor’s order, also called a special precaution, which requires the patient to be
observed, within arms-length, at all times until the expiration of the doctor’s order.

18
successful, and employees would have to work short-staffed or, on some occasions, alone. (Tr.
432-433, 1142-1143).
ii. Impact of Staffing Issues
The impact of being short-staffed was felt acutely by the staff. According to [redacted],
Harriot Helferich, [redacted], Broadbent, Panza, and Graumann, the units were, on occasion,
understaffed even according to the matrix. (Tr. 432-433, 696, 820, 958, 1140, 1290, 2087, 2223).
This was documented in multiple survey comments, and in daily house reports, which noted staff
felt discouraged, unsafe, and unable to complete the tasks expected of them. (Tr. 703, 2318; Ex.
C-17, C-22, C-23, C-37). Also, as previously noted, this was noted by the Divisional Director of
Nursing in March 2018, who observed the matrix levels would negatively impact the nurses’ and
BHAs’ ability to handle the basics of their job, let alone be able to take breaks without leaving
their coworkers alone. (Ex. C-25).
Difficulties described by the Divisional Director of Nursing’s assessment regarding staff
played out at Highlands in different ways. In some instances, there were not enough employees to
respond to Code Greens. (Tr. 830, 1103, 1294). Multiple employees testified they either had to
work on a unit alone during an overnight shift or would be left alone on the unit to perform
observation rounds or other duties while their unit colleague would take groups of patients to meals
or group therapy or had to respond to a Code Green on another unit. (Tr. 698, 1783, 1913, 2008,
2094). The short-staffing problem not only impacted staff’s ability to perform their jobs, but also
was noted to negatively impact patient care, which had an ancillary impact on employee safety.
For example, [redacted] testified group therapy sessions and activities would be cancelled because
staffing was insufficient. (Tr. 1117). Dr. Argumedo testified these activities are instrumental to
clinical management and the failure to engage patients in a meaningful way, especially among the

19
adolescent population, can result in restlessness and acting out in unpredictable ways. (Tr. 1444,
1507). This was noted by staff members at trial. (Tr. 1137).
A particularly illustrative example of the impact on short-staffing was summed up by a
staff nurse, Roseanne Tulley, in an email that was sent to Jill Orr, now-former Assistant/Interim
Director of Nursing, who, in turn, forwarded the report to both the CEO, Amy Alexander, and
Aaron Van Dam, the director of nursing. (Ex. C-33). According to Ms. Tulley, “[S]taff has to
continually open and close doors for bathroom trips. Nurse’s station desk is bombarded with
patient requests. Staff cannot spend even five minutes with a child who needs some processing
and it’s impossible to keep an eye on 20 plus patients safely.” (Ex. C-33). In her estimation,
Respondent needed one staff at the desk, one at the nurse’s station, one in the day room, one in
group sessions, and one-to-two staff members doing five- and ten-minute rounds. (Tr. 2348; Ex.
C-33). Even then, Ms. Tulley noted staffing at her suggested levels was not sufficient for any one-
to-one orders which may be in place. The Court finds this compelling, not so much because Ms.
Tulley’s assessment of how many staff members were needed should be adopted in its entirety,
but as an illustration of the real-life, day-to-day duties staff were called upon to carry out in
addition to the primary charge of providing therapeutic care. Her account was echoed by other
BHAs and nurses, who talked about having to man the desk for mundane tasks, such as providing
telephone access, bathroom breaks, and smoke breaks, all of which needed to be carried out in
addition to doing observation rounds (whether in 5-, 10-, or 15-minute increments), one-on-ones,
medicine dispensing, charting, and other medically required duties. (Tr. 804, 928, 1513-1514).
iii. Respondent’s Attempts to Address Staffing
Respondent attempted to address the issue of short-staffing using multiple stratagems,
including text blasts and bonuses/incentives. Respondent’s most direct attempt to address staffing

20
issues in a concrete way was to implement a position known as a Qualified Safety Responder, or
QSR. (Tr. 1143, 2342). The guiding idea behind the QSR position was to have a BHA who could
float between units and provide assistance as needed. Unfortunately, however, given the problems
with call-outs, the QSR was often used as a fill-in. (Tr. Id.). Thus, the only remaining float
personnel on overnight shift was the house supervisor. (Tr. 2335, 3284). The difference between
daytime and evening/overnight is important because, as noted above, the daytime shifts had
multiple administrators and management personnel available. Those same people were not
available at night. Further, according to Ms. Orr the QSR position was not consistently
implemented, even at night, and was ultimately scrapped due to purported budgetary issues, not
because it was ineffective. (Tr. 2344-2345).
Lori Ayala provided unintentional, yet compelling, testimony with respect to the QSR
position and staffing matrix. In response to a question about the matrix only requiring two
overnight staff, Ms. Ayala stated this would only happen when the census on a unit fell below
eleven, which only happened three times in the last two years. (Tr. 3286). Apparently, the matrix
was changed at some point after the inspection in 2018. (Tr. 3285). Prior to that, a unit could have
up to 17 patients covered by only two staff during the evening/overnight shifts. (Tr. 3285-3286;
Ex. C-16).
3. Staff Communications Regarding Patient Aggression
A consistent refrain from experts, administrators, and staff alike was the importance of
communication among direct care staff relating to patient aggression. The Court has already
addressed how information regarding patient aggression is communicated from intake to the unit,
which includes the comprehensive assessment, High Risk/High Alert Notice, a pre-admission
nurse-to-nurse form, and a safety plan form. (Ex. R-21, R-29). The nurse-to-nurse form provides

21
nurses at Highlands with contact information of the patient’s previous provider to gain a clearer
picture of the patient’s history, and the safety plan form contains therapeutic information provided
by the patient, such as what helps them calm down and what activities they like to do. Equally
essential are communications between shifts about the state of the milieu and aggressive patients.12
Respondent creates a snapshot of the unit using a census board and “Picture of a Safe
Milieu” form. (Tr. 3219, 3966; Ex. R-24). Both contain information about each patient on the unit,
including their doctor, social worker, special precautions, and appropriate interventions. Prior to
and shortly after the inspection in October 2018,13 the primary communications regarding patient
aggression between staff and/or shifts were documented in the shift hand-off report, which
provided the oncoming shift with information about patient aggression issues on the previous shift.
(Ex. R-13).
BHAs and nurses noted several problems with the communications at shift changeover.
Everyone agreed information was exchanged; however, staff noted they only had about 15 minutes
to communicate information about the entire unit in that period of time. (Tr. 142). Specifically,
staff had to convey information about medical issues, medications, interpersonal issues between
patients, suicide precautions, fall risks, as well as incidents of patient aggression towards staff. (Tr.
386, 2231). Further compounding the problem, BHAs typically did not review patient records, the
comprehensive assessment, the previous days’ observation rounds, nor, according to Ms. Orr, were
they required to do so. (Tr. 143, 1099, 1154, 2230, 2360).
12. The term “milieu” was used throughout the trial and in the literature to describe the state of the unit, inclusive of
the physical environment, staffing, and acuity of its patients.
13. The Court notes the timeframe of communications because Respondent points out that it also uses a “situational
awareness communication tool”, which is filled out at the end of the shift and is designed to provide an overview
about each patient’s behavior, as opposed to the general nature of the shift hand-off. See Resp’t Br. at 24. The
situational awareness form, however, was only put into place in February 2019, after the inspection was completed.
(Ex. R-36; Tr. 2943).

22
Another key source of information about the state of the milieu and patient aggression were
the various meetings held by the treatment teams and administrators. While BHAs participated in
meetings at shift changeover, they did not attend treatment meetings or any other meetings directly
or tangentially related to staff safety.14 (Tr. 2230, 3291). Various meetings which were held to
discuss safety included the Daily Nurse’s meeting, treatment plan team meetings, daily flash
meetings, Performance Improvement Committee meetings, and Patient Safety Committee
meetings.
The daily nurse’s meeting was essentially a nurse-specific version of the shift changeover
exchange of information. (Tr. 3915-3916). The treatment plan team meetings included discussions
of each patient and the course of treatment, but it would also include a discussion of any aggressive
behaviors and how to address those behaviors in a clinical way. (Tr. 3228, 3918; Ex. R-28). If
appropriate, a behavioral plan would be developed to address those behaviors and included in the
patient’s chart. (Tr. 2941, 3921; Ex. R-28). Daily Flash meetings, which were typically an
administration affair, took a birds-eye view of the facility as a whole, but also addressed patient
aggression incidents and staffing concerns. (Tr. 3392, 4020).
While the nurse’s, treatment plan, and flash meetings all addressed specific incidents of
aggression from the standpoint of treatment and staffing, the Performance Improvement
Committee (PIC) and the Patient Safety Committee (PSC) used those incidents to address policy
and procedure. The PIC reviewed injuries to determine root causes, whether an injury could have
been prevented, and whether any patterns emerged. (Tr. 3388, 3868). The PSC is comprised of
administration and management (CEO, CMO, CNO, director of nurse management) and was
intended to review big picture issues, including month-to-month and year-to-year trends, major
14. It is unclear whether this was part of a pattern and practice or whether it had as much to do with the amount of
time available for them to conduct such a review. In either case, it illustrates a failure of communication.

23
incidents, errors, restraints, and discharge, amongst other things. (Tr. 3381-3382). Respondent
contends staff members are encouraged to attend these meetings but seldom do so.
According to staff members and management, staff did not attend these meetings, nor were
they expected to. (Tr. 481, 846, 1308, 1926, 2017, 2304). Further, while Respondent held town
hall meetings, which were intended to include staff, they were held during the day, which
prevented the overnight staff from being able to attend. (Tr. 483). Staff also indicated they raised
safety issues and other matters with management but never received follow-up or felt as if their
suggestions were taken seriously. (Tr. 722, 2110). As was the case with staffing, direct care
workers repeatedly identified lack of communication as a problem in the employee surveys from
2016 to 2018. (Ex. C-37). Specifically, employees noted “communication is lacking: across levels
of the organization [and] in team meetings”, staff were “not involved in decision making and not
told of changes”, “my opinion doesn’t matter”, and “safety is not seen as an issue.” (Tr. 2436-
2437; Ex. C-37).
4. Respondent’s Workplace Violence Prevention Program
Complainant argues, although Respondent had a WVPP in place at the time of the
inspection, such plan had multiple shortcomings, including (1) a lack of meaningful review of the
policy since it was created; (2) a lack of clarity regarding which department is responsible for
implementing and providing training on it; (3) a lack of a clear definition of workplace violence,
which leads to difficulties in tracking trends and data; (4) reliance on outdated, inappropriate, or
non-existent forms or documentation of patient aggression; (5) failure to follow through on
program requirements, including camera reviews of violent incidents; and (6) characterizing
patient-based initiatives as elements of employee participation in the plan. Respondent, on the
other hand, argues Complainant has put “form over substance” and lists all the clinical-based

24
interventions it uses to control patient aggression. The problem, as will be shown later in this
decision, is not that Respondent is missing a piece of paper called a Workplace Violence
Prevention Program, or that it utilizes a clinical approach to patient-on-employee violence. Rather,
the problem is Respondent’s WVPP is insufficient in design and, in practice, is a patchwork
amalgam of ad hoc interventions with no clear line of responsibility for its implementation. Thus,
this is a problem of both form and substance. The following are just a few examples of the
program’s elements and their insufficiency to accomplish the goal for which they are designed.
The WVPP states its focus is on Type 2 violence, which is “violence committed by patients
upon staff members.” (Ex. C-11). This is the extent of the definition of workplace violence.15
According to Dr. Jane Libscomb, this definition is inadequate because it does not indicate what
constitutes an act of violence, which, in turn, impacts Respondent’ ability to prevent and track
violent acts. (Tr. 3655; Ex. C-62 at 25). This failure of clarity can be seen in the section on
Management Commitment, which sets goals for reductions in violent incidents and identifies how
“incidents of patient aggression, restraint and seclusion will be reported”, including HPRs
(MIDAS reports) and Employee Accident Reporting. (Ex. C-11). As recounted above, however,
MIDAS reports are patient-based and the Employee Accident Reporting procedure was stopped at
some point in 2018 when Respondent switched over to the Sedgwick reporting line. (Tr. 85). The
plan also calls for camera review of all incidents resulting in restraint or seclusion and a debrief of
all staff involved; however, the evidence shows camera reviews rarely occurred and debriefs were
not consistently conducted with all staff involved.
15. Interestingly, Respondent stipulated the hazard of workplace violence is defined as “violent or assaultive
behavior.” (Jt. Stip. No. 7). While not a complete definition, it nonetheless is more comprehensive than what is
provided in Respondent’s WVPP.

25
With respect to Employee Participation, the WVPP lists a series of purported initiatives,
which, in reality, read like job requirements and have little or nothing to do with how employees
should participate in the process of developing violence prevention initiatives. (Ex. C-11).
Regarding Aggression Analysis and Surveillance, Respondent again refers to HPRs (MIDAS) and
EARs, which are either inadequate for tracking employee injuries or are no longer in use. As an
illustration of this, Ms. Petschauer created a Risk Management Report for the first quarter of 2019
based on an analysis of HPRs, but no information was included regarding employee injuries or
patient aggression toward staff. (Tr. 2414-2415; Ex. C-36). Ultimately, it appears Respondent has
a written WVPP, but neither the document itself nor its implementation appear to be coherent,
comprehensive, or effective to address workplace violence toward workers.
5. Respondent’s Training Program
According to Respondent, all its employees receive training during orientation and
periodically throughout the year at regularly scheduled “competency fairs”, where employees sign
up for refresher training and develop practical skills (HWC was not available to take during the
fair). (Tr. 3119-3220; Ex. R-49). All direct care staff are trained in Verbal De-Escalation and
Handle With Care, which are the two primary programs for dealing with an in-progress act of
aggression. During orientation, employees are provided classroom training in both disciplines.
Employees must take an assessment and be certified in both verbal and physical management of
patients before they can work on one of the units. (Tr. 3109-3111; Ex. R-32). The training itself is
provided by Respondent’s resident master trainer, Mike Carstens. According to Mr. Carstens, the
HWC program is designed to account for differences in size between the patient and the staff
member initiating the hold. (Tr. 3114). Carstens also testified he attempts to respond to all Code
Greens in order to either participate or coach the staff members engaging in a hold. (Tr. 3066-

26
3067). The training includes self-defense techniques and counsels avoidance of a conflict if at all
possible, including retreating to a locked room if engaging in a hold is not feasible. (Tr. 3082-
3083).
Many of the employees took issue with how the training was carried out, the techniques
taught, the lack of buy-in from certain members of the staff, and the lack of follow-up training.
According to multiple employees, the practice methods used in training were not at all like the
real-life violent situations they confronted while on the unit. (Tr. 1160, 2291). Specifically, they
claimed placing holds on Mr. Carstens was not realistic when compared to dealing with the
unpredictable nature of a psychiatric patient having a violent episode. Further, employees
complained they were instructed at least two employees were necessary for every hold but
experienced a number of situations where they had to go “hands-on” without the assistance of
another staff member. (Tr. 1785, 3116). Employees also testified they were aware of staff who
were reluctant or even refused to participate in holds. (Tr. 720, 1920). This included [redacted],
who refused to participate in holds because of her age and the condition of her knees. (Tr. 1920).
She testified Mr. Carstens was aware of this.
Respondent claims it provides refresher training during its training fairs, after debriefs
identifying improper use of HWC technique, and at the request of employees. (Tr. 3061-3062).
Respondent’s own internal communications belie this claim. In an email dated October 2018,
around the time of the inspection at issue in this case, Mr. Carstens noted many members of their
“veteran team” had not re-certified in verbal de-escalation or HWC “maybe since their [new
employee orientation] however many months/years ago that was”. (Ex. C-29; Ex. 2369-2371,
3150-3151). Thus, notwithstanding Respondent’s claims regarding its tracking software for
refresher training, it appears a fair number of employees slipped through the cracks. (Ex. C-25 at

27
4). Further, in response to a purported assessment of one of her holds, [redacted]’s file indicated
she had received refresher training in HWC; however, at trial, [redacted] testified she had not
received any such follow-up training nor had she been told how or why the method she employed
was insufficient.16
As regards the WVPP, Respondent’s training program is patchwork, at best. CSHO Stark
found, and Respondent’s employees confirmed, Respondent does not provide training specific to
the WVPP. (Tr. 137, 845, 988, 1150). Indeed, two of the people responsible for the program’s
implementation, Ms. Orr and Ms. Petschauer, testified they did not know whether the WVPP was
covered during new employee orientation. Thomas Braswell, the director of facilities, apparently
provides training on doing environmental rounds, which are used to identify unsafe objects in the
milieu, and workplace violence coming from outside the facility. (Tr. 3341). As an illustration of
its training, Respondent introduced a presentation entitled, “Preventing Workplace Violence”;
however, upon closer examination of the presentation, there is nothing specific to Respondent’s
worksite as a stand-alone psychiatric facility nor does it specifically address the principal cause of
injury to employees, which is patient-on-staff violence. (Ex. C-12). Further, when Complainant
presented it to staff members at trial, many did not recall having received that particular training.
(Tr. 1151, 1297).
D. Engineering Controls
In addition to policy-based interventions, Complainant identified several physical
implements/interventions it believes Respondent could institute to materially reduce the hazard of
workplace violence. Each of Complainant’s suggestions is essentially a modification to existing
engineering controls.
16. According to [redacted], she was attempting to subdue a patient that was significantly larger than her and which
her training suggested required far more staff members to properly execute a hold. (Tr. 1118_).

28
1. Nurse’s Station
During CSHO Stark’s inspection, she discovered a number of violent incidents occurred
around the nurse’s station, which is located in the center of each unit. (Ex. R-2). According to
Respondent, the station is so designed in order to give nurses and BHAs a clear view of the entire
unit from one location. The station itself is not enclosed, and the counter is approximately four to
five feet above the ground. (Tr. 62-64; Ex. C-4 at 12). Nurses and BHAs enter the station through
a swinging door that does not lock, which means patients can just as easily enter the nurse’s station.
(Tr. 62, 476, 627; Ex. C-4). On many occasions, patients have done just that. (Tr. 981, 3364; Ex.
C-7 at 16). In addition to entering through the doorway, patients have also climbed and jumped
over the counter to attack staff members or grab items such as pens, pencils, and other job-
necessary items to use as weapons. (Tr. 409, 478, 673, 838, 1304, 3364). The Divisional Nursing
Director’s audit noted similar problems with patient access to the nurse’s station, especially when
staff is conducting rounds or engaged in other duties requiring them to be away from the station.
(Ex. C-25 at 6).
Respondent appears to downplay these concerns in two ways. First, Respondent contends
a change to the nurse’s station would not necessarily prevent aggressive actions toward staff once
they leave the nurse’s station, thus calling into question whether the change would be materially
effective. Second, Respondent contends fully enclosing the nurse’s station could have a deleterious
effect on the therapeutic milieu, because it would place a physical barrier between patients and
staff, thereby setting the two parties in opposition to one another. As will be discussed later in this
opinion, the evidence paints a different picture.

29
2. Furniture
Complainant identified incidents of aggression where patients picked up furniture, such as
chairs and desks, and used it as a weapon. (Tr. 410, 667, 1788). Respondent was aware of these
incidents and agreed it would improve staff safety if all furniture was secured; however, it also
noted securing or weighing down all furniture may be impractical for sanitary reasons, such as
cleaning the cafeteria chairs after meals. That said, at some point in 2019, Respondent purchased
weighted furniture and found ways to increase the weight of existing furniture to reduce the
likelihood it would be used to harm staff and other patients. (Tr. 2887).
3. Cameras/Surveillance
At the time of the inspection, Respondent had approximately 100 cameras located
throughout its facility. (Tr. 3346-47; Ex. R-2). The camera feeds can be viewed at nurse’s stations,
intake, and in administrators’ offices. (Tr. 3346, 4026). At the time of the inspection, the cameras
did not possess zoom capability or sound recording; however, since the inspection, Respondent
upgraded the cameras to include zoom capability and added 10 additional cameras. (Tr. 3346-42).
While the cameras have been used incidentally for surveillance, for the most part it appears they
were used for review of violent incidents according to Respondent’s WVPP.
Although there was one instance where an employee saw an encounter developing over the
CCTV system and was capable of responding to a violent incident prior to a Code Green being
called, this appears to have been a singular event. Otherwise, Complainant’s evidence was, more
or less, limited to the staff’s belief that additional surveillance would make them safer.
4. Walkie Talkies and Panic Alarms
At the time of the inspection, each unit had two walkie-talkies, but employees were only
required to carry them when they went off unit for meals, groups, or activities. (Tr. 65, 390). Intake

30
employees were provided with panic alarms, but, as noted above, Respondent did not specifically
mandate their use and they were not made generally available to other staff members. The only
other devices available for hospital-wide staff communication were the telephones behind the
nurse’s stations. Approximately a year or so after the inspection, Respondent made the decision to
increase the number of radios so employees could always carry them. (Tr. 3160, 3358).
E. Expert Testimony Recap
The analysis of any workplace violence case is a complex and nuanced exercise requiring
the input of experts in the industry in question. This is particularly the case here, where the Court
is asked to: (1) consider the effectiveness of actions taken by Respondent to guard against the
hazard of workplace violence in an environment where acts of aggression are endemic, and (2)
based on that determination, consider whether Complainant’s proposed methods of abatement
would be materially effective at reducing the hazard without impacting Respondent’s core mission.
The following is just a brief snapshot of the experts’ respective backgrounds and the
testimony they provided in support of, or contrary to, (1) and (2).
1. Dr. Monica Argumedo
Dr. Argumedo is a board-certified psychiatrist in general psychiatry and forensic
psychiatry. (Ex. C-63). After medical school, Dr. Argumedo completed a four-year residency at
Georgetown University Medical center, during which time she became chief resident and was
responsible for the hospital’s inpatient psychiatry unit, and a forensic psychiatry fellowship at the
Medical College of Wisconsin. (Tr. 1421-1425). After her residency and fellowship, Dr.
Argumedo has served in multiple capacities, including performing competency assessments for
criminal courts and serving as a testifying expert. (Tr. 1427-1428). Dr. Argumedo also worked for
a free-standing psychiatric hospital, acting as service director for its Consultation Liaison Service,

31
as well as its intake department, where she worked on the hospital’s intake procedures. (Tr. 1428-
1431).
Dr. Argumedo’s focus at trial was Respondent’s clinical methodology for managing patient
aggression. Ultimately, Dr. Argumedo concluded Respondent’s clinical focus was insufficient for
the purposes of addressing patient-on-employee violence and found Complainant’s proposed
abatement methods would materially reduce the hazard. Respondent contends Dr. Argumedo’s
discussion and analysis of Respondent’s clinical methodology is an inappropriate area of inquiry
for OSHA. The problem with this argument, however, is Respondent also asserted clinical
management is the principal, if not only, method for mitigating patient-on-employee violence. As
such, it has placed the clinical management of its patients at issue. Respondent cannot be allowed
to use its patient management as both sword and shield.
2. Dr. Jane Lipscomb
Of the three experts providing testimony, Dr. Lipscomb was the most well-versed in the
arena of workplace violence. Dr. Lipscomb has conducted studies, researched, written, and
consulted on this topic for over 30 years. (Ex. C-61). Dr. Lipscomb started her career as a nurse
after receiving a B.S. from Boston College, which she followed shortly thereafter with a Master’s
in occupational health nursing from Boston University/Harvard School of Public Health and a PhD
in epidemiology and occupational health from UC-Berkley. (Ex. C-61). Dr. Lipscomb has served
as a professor, researcher, CDC/NIOSH Senior Scientist, and consultant to various government
agencies. Of note to this case, Dr. Lipscomb has made patient-on-worker violence in behavioral
health facilities a particular focus of her research, noting it is “such a high risk setting within all of
healthcare.” (Tr. 3591). This includes researching the implementation of OSHA’s Guidelines on
Violence Prevention in Mental Health in New York State mental health facilities and consulting

32
the Maryland Department of Health and Mental Hygiene to help them improve their own
workplace violence training in inpatient psychiatric facilities, amongst others. (Tr. 3594, 3599).
Dr. Lipscomb, much like Dr. Argumedo, analyzed Respondent’s methods for preventing
workplace violence; however, rather than focusing on the clinical emphasis of Respondent’s
prevention plan, Dr. Lipscomb was concerned with how Respondent’s methodology compared to
industry studies and guidelines related to violence against healthcare workers. Further, Dr.
Lipscomb discussed the importance of a comprehensive and internally coherent WVPP and
illustrated how Respondent’s plan fell short in multiple areas.
Respondent argues Dr. Lipscomb’s testimony is not persuasive because she did not conduct
or cite a study that unequivocally proves Complainant’s proposed abatement measures, taken
individually, were insufficient to materially reduce the hazard of workplace violence. In some
instances, Respondent argues its own expert, Dr. Marc Cohen, identified studies where some of
the proposals supported by Dr. Lipscomb’s were contraindicated in the research, especially in the
arenas of staffing and how certain abatements may impact the therapeutic milieu. These
reservations are addressed herein.
3. Dr. Marc Cohen
Dr. Marc Cohen received his medical degree from the University of Southern California
School of Medicine. Somewhat similar to Dr. Argumedo, Dr. Cohen completed a four-year
psychiatric residency, followed by an additional year of training in forensic psychiatry. (Tr. 2441).
Dr. Cohen testified he has been recognized as a permanent expert witness in Los Angeles County
and is currently associate clinical professor in the Department of Psychiatry at UCLA School of
Medicine. (Tr. 2446). In addition to serving as a professor, Dr. Cohen trained residents and treated
veterans on an outpatient or partial hospitalization basis at the Veterans Affairs Hospital in Los

33
Angeles, which is one of the UCLA teaching sites. (Tr. 2447). Following that position, Dr. Cohen
worked at Olive View Medical Center, which was another teaching facility through UCLA. During
his tenure at Olive View, Dr. Cohen briefly oversaw a secondary inpatient unit and worked in the
psychiatric emergency room. (Tr. 2451-2452). Ultimately, Dr. Cohen testified his background in
forensic psychiatry uniquely situated him to assess a patient’s violence risk, which is in line with
Respondent’s claims regarding a clinical approach to patient-on-staff violence prevention. (Tr.
2456).
Dr. Cohen’s testimony, for the most part, focused on the engineering and control-based
abatements proposed by Complainant and how they could negatively impact the therapeutic
milieu. He also highlighted studies regarding the potential negative impact of increased staffing
on patient-on-staff violence and the difference between staff perception of safety resulting from a
chosen abatement and the actual impact a chosen abatement has. Dr. Cohen also opined
Respondent’s WVPP exceeded industry standards for such a program.
Although Dr. Cohen clearly has extensive experience with clinical management of
psychiatric conditions and forensic psychiatry, he does not have substantial experience working in
an inpatient psychiatric unit and testified he had virtually no experience performing psychiatric
intake or developing a comprehensive WVPP in the context of an inpatient psychiatric hospital.
Thus, while he was well-suited to providing an analysis of Respondent’s clinical management
program and methodologies for assessing individual violence risk, workplace violence in an
inpatient setting is not an area Dr. Cohen has done research, lectured, or studied outside the
confines of this case. (Tr. 2627, 2641, 2775-2776).

34
IV. LEGAL ANALYSIS
A. Citation 1, Item 1
Complainant alleged a serious violation of the Act in Citation 1, Item 1 as follows:
OSH ACT of 1970 Section 5(a)(1): The employer did not furnish employment and
a place of employment which were free from recognized hazards that were causing
or likely to cause death or serious physical harm to employees in that employees
were exposed to physical threats and assaults by patients:
a) On or about October 2, 2018, and at times prior, the employer, UHS of Denver,
Inc. dba Highlands Behavioral Systems (HBHS), failed to keep the workplace free
of hazards. Employees in direct contact with patients (including BHAs, RNs, Intake
Clinicians and other direct care providers) have suffered serious workplace
violence (WPV) related injuries such as concussions, broken skin, bruising,
scratches, sprains and strains, and injuries to the head and torso while performing
their job duties, including but not limited to providing care to patients and placing
patients in therapeutic holds. The majority of the affected employees are BHAs,
who are responsible for direct patient care. Two-thirds of the documented incidents
occurred during the evening and weekend shifts.
Among other methods, feasible and acceptable means to abate the WPV hazards at
HBHS include implementation of a comprehensive and effective WPV prevention
program which includes engineering and administrative controls, as well as training
to reduce WPV hazards. These controls include:
Engineering Controls:
1. Re-configure the nurses [sic] stations in the units, to include design features
that prevent patients from jumping over, reaching into or over or otherwise entering
into the workstations. Ensure items in the workstations, such as but not limited to
hole punches, staplers, telephones, cords, pens, computers, computer peripherals,
and other items are not accessible by patients, so they cannot be used as weapons.
2. Provide all staff members with a reliable and readily available communication
device, such as a walkie-talkie or panic alarm button, in order to rapidly and reliably
summon assistance to minimize or eliminate employee injury from WPV. In
addition, provide training and procedures on use and limitations of the equipment.
3. Evaluate and subsequently replace or redesign furniture to assure that it cannot
be used as a weapon to injury [sic] staff or other patients.
Administrative Controls

35
4. Ensure that trained security or in-house monitoring staff continuously monitor
security cameras for all units.
5. Develop, integrate, and implement WPV policies and programs into one
written comprehensive WPV Prevention Program (WPVPP). This WVPP must
include: (1) A worksite specific hazard analysis that analyzes the worksite for risks,
including but not limited to, potential weapons, potential for victims to be cut off
from communication, delays in activating emergency alert systems, potential for
physical entrapment of victim. The assessment should also include a records review
and employee surveys to further assess potential risks; (2) the WVPP must address
patient-on-employee violence and describe hazard prevention and control
measures, providing clear written procedures for how employees should respond to
patients making threats, showing aggression, and assaults; (3) The WVPP must also
provide for the participation of direct care staff such as BHAs and RNs, e.g.,
through the committees that discuss WPV incidents; (4) Provide copies of the
WVPP and make it readily available to all staff; (5) Annually review the WVPP
and update as necessary. Solicit employee feedback during the review process; and
(6) Provide bi-annual training on the WVPP to all staff.
6. Designate specific staff with specialized training in security and/or hire trained
security officers to monitor patients for potential aggression on all shifts and to
assist in preventing and responding to violent events occurring in the units. Staff
must have the physical capability to effectively respond to aggressive patients. The
staff designated to monitor and respond to patient aggression should not be given
other assignments such as patients rounds, which would prevent the designated
person from immediately responding to an alarm or other notification of a violent
incident. Conduct periodic drills for psychiatric crisis/patient aggression (currently
known as Code Green) to allow all designated staff to practice and evaluate their
skills in real-life settings.
7. Establish a system to communicate to all affected staff members any incidents
of WPV and/or escalating behavior to ensure that the on-coming staff members are
notified and aware of a patients [sic] previous acts of violence or aggression.
Information sharing should occur during shift changes as well as with other staff
(such as food service employees) who may come into contact with aggressive
patients. Assure that affected staff have dedicated time to review all intake
information on a patient before working with them.
8. Ensure safe staffing levels across all shifts to ensure adequate staff coverage
for behavioral emergencies or other types of codes, one-to-one patient watch levels,
and instances where patients are accompanied off the unit.
Training
9. Ensure all staff members who may come into contact with patients in the
course of their work are trained in all elements of a comprehensive WVPP,
including opportunities for them to be involved in evaluating and improving the

36
program. Training should specifically include: (1) When and how to call for
assistance, including how to use emergency communication systems such as
walkie-talkies, the overhead pager, and/or panic buttons; (2) Uniform and effective
methods for responding to a Code Green or other type of WPV incident; (3) Hands-
on exercises for de-escalation and restraint that include practice drills, and assault
scenario drills to improve staff skills and confidence in responding to Codes,
emphasizing the importance of team restrain. Include training tactics that teach self-
extrication and escape. Assess the frequency needed for this training based on
employees [sic] abilities; (4) How to contribute to a post-incident debriefing and/or
root cause analysis; and (4) Properly wearing/storing badges/communication
devices so they cannot be taken by patients. The hands-on exercises, practice drills
and assault scenario drills should occur at least bi-annually. A staff member is not
considered available to assist with incidents of WPV if they are not able to complete
the training and/or they are not comfortable implementing the appropriate actions
while working with aggressive patients.
10. Conduct an investigation and debriefing after each act of WPV, including near
misses, with the attached and/or injured employee and other involved employees,
including root cause or similar analysis, lessons learned, and corrective actions to
prevent reoccurrence. Maintain accurate records of patient assault on staff. Provide
the attack and/or injured employee and other involved employees with an
opportunity to provide feedback about specific measures that could prevent such
future incidents. Review and evaluate each WPV related incident, both on a case-
by-case basis and to monitor for trends in area with high rates of incidents such as
the acute units.
See Citation and Notification of Penalty at 6-8.
B. General Duty Clause Standard
The general duty clause requires every employer to provide its employees with a workplace
“free from recognized hazards that are causing or are likely to cause death or serious physical
harm.” 29 U.S.C. § 654(a)(1). Typically, in order to prove a violation of Section 5(a)(1) of the Act,
Complainant must show: (1) there was an activity or condition in the employer’s workplace that
constituted a hazard to employees; (2) either the cited employer or its industry recognized that the
condition or activity was hazardous; (3) the hazard was causing or was likely to cause death or
serious physical harm; and (4) there were feasible means to eliminate the hazard or materially
reduce it. Waldon Health Care Ctr., 16 BNA OSHC 1052, 1058 (No. 89-3097, 1993). The
evidence must also show the employer knew, or with the exercise of reasonable diligence, could

37
have known of the hazardous condition. See Otis Elevator Co., 21 BNA OSHC 2204, 2207 (No.
03- 1344, 2007).
As noted above, the parties stipulated to all but the fourth element of a general duty clause
violation: whether there were feasible means to eliminate or materially reduce the hazard. Prior to
addressing the feasibility and efficacy of Complainant’s proposed methods of abatement, however,
Complainant must show “as a threshold matter, that the methods undertaken by the employer to
address the alleged hazard were inadequate.” Integra Health Management, Inc., 2019 WL 1142920
at *12 n.14 (No. 13-1124, 2019); see also Sea World of Florida, LLC v. Perez, 748 F.3d 1202
(D.C. Cir. 2014) (holding adequacy of employer’s precautions against a hazard is measured against
precautions taken by “a reasonably prudent employer familiar with the circumstances of the
industry”). If Respondent’s existing means of abatement are determined to be inadequate as
compared to precautions taken by a reasonably prudent employer, Complainant must then show:
(1) the proposed measures are capable of being put into effect, and (2) those methods would be
effective in materially reducing the incidence of the hazard.” See Integra Health Management,
Inc., 2019 WL 1142920 at *12 (citing Beverly Enters., Inc., 19 BNA OSHC 1161, 1190 (No. 91-
3344, 2000) (consolidated)).
C. Respondent’s Abatement Measures Were Inadequate
Complainant asserts Respondent failed to take reasonably prudent measures to materially
reduce the hazard of patient-on-staff violence. Complainant argues the inadequacy of
Respondent’s attempts to mitigate the hazard are illustrated by the “frequent extent to which
employees continue to be injured as a result of patient aggression.” Compl’t Br. at 55 (citing
SeaWorld, 748 F.3d 1202, 1215 (D.C. Cir. 2014)). As noted above, and as agreed to by the parties,
complete elimination of the hazard of workplace violence is not the appropriate metric under the

38
circumstances; and the standard does not require complete elimination of the hazard. (Jt. Stip. No.
11). Respondent is only required to rid its workplace of preventable hazards. See Nat’l Realty &
Constr. Co. v. OSHRC, 489 F.2d 1257, 1266–67 (D.C. Cir. 1973). Notwithstanding the
unpredictable nature of psychiatric patients under duress, the Court finds Respondent’s method of
abating the hazard of patient-on-staff violence is inadequate.
Respondent contends Complainant failed to prove the inadequacy of its program in two
principal ways: (1) the existence of injuries alone is not sufficient to establish Respondent’s
program is inadequate, and (2) its WVPP contains the requisite building blocks OSHA
recommends for developing an effective WVPP. With respect to (2), Respondent discusses the
WVPP’s component parts, especially as it relates to its clinical management of patients, which it
claims is “the best way to mitigate the hazard of Type 2 workplace violence.” Resp’t Br. at 50. The
Court will address each position in turn.
1. Respondent’s Injury Data
One of the primary problems with Respondent’s argument regarding the incidence of
injuries is Respondent’s failure to consistently collect good data. As discussed at length above, the
way Respondent collected staff injury data was haphazard and inconsistent. At any given point
during the inspection period and afterward, it appears there were multiple potential sources of
employee injury data: Employee Accident Reports, which were discontinued and inconsistently
used; HPR (MIDAS) reports, which are patient-based forms and only incidentally track employee
injuries insofar as that information is entered into the “Comments” section; the Sedgwick hotline,
which, more often than not, requires the employee to make the report; and the OSHA 300 logs,
which should serve as a snapshot of all injuries but failed to include all injury data. (Ex. C-4 at 7
to 9). The result is an incomplete picture of the number and severity of injuries that have occurred

39
at UHS-Highlands. This jigsaw puzzle of data leads to a number of problems, including: injuries
that were not recorded; injuries that were documented but missing information; and, perhaps most
importantly, insufficient data to establish trends and, thus, measure effectiveness of a particular
abatement/intervention. (See, e.g., Ex. C-4 at 6 to 7). As an example, CSHO Stark noted
Respondent provided her with 4 EARs for 2018, only one of which corresponded with an injury
listed on the OSHA 300 log for that year. (Ex. C-4 at 9). Given this inconsistency and considering
CSHO Stark identified 31 EARs filed in 2017, she reasonably concluded the data for 2018 was, at
best, incomplete. (Ex. C-4).
Further, even if the Court accepts as accurate the data as Respondent collected and reported
it (it does not) and as CSHO Stark summarized, there is no adequate foundation on which the Court
could reasonably conclude Respondent’s focus on clinical management of the hazard has been
effective in reducing patient-staff violence. What Respondent characterized as a “slight reduction”
in workplace injuries is a change from 8 recorded injuries in the OSHA 300 log to 7.17 While a
reduction in injuries is certainly a worthy goal and evidence of effectiveness, the number alone is
not particularly convincing when the number of record injuries was reduced by one, but the number
of workdays lost to such injuries multiplied by three over the same time period. (Ex. C-4).
Additionally, though Complainant did not make comparisons to national averages, or its own
internal benchmarks, the Court does not find any such comparison would have been useful given
the unreliability of Respondent’s data and any conclusions derived from it. As noted by the D.C.
Circuit, “‘[H]azardous conduct need not actually have occurred,’ or have occurred at any particular
rate, for an employer to be liable.” BHC NW Psychiatric Hosp. LLC v. Sec’y of Labor, 951 F.3d
17. The Court focused, in particular, on the years 2017 and 2018, because they represent two “complete” years of data
prior to the issuance of the citation. As noted by CSHO Stark, the data from 2019 was incomplete. (Ex. C-4 at 7). The
years before, 2015 and 2016, also show a downward trend; however, the Court is skeptical of the data and any
conclusions derived from it based on the inconsistencies identified by CSHO Stark.

40
558, 565 (D.C. Cir. 2020) (quoting Nat’l Realty, 489 F.2d at 1267). More specifically, the court
held the general duty clause is not concerned with how an employer’s accident rate compares
internally or to the industry as a whole; rather, the key question, as always, is “whether a reasonably
prudent employer familiar with the circumstances of the industry would have protected against the
hazard in the manner specified by the Secretary’s citation.” Id. (citing SeaWorld, 743 F.3d at 1207).
The existence of injuries was not the sole basis supporting the Complainant’s assertion the
Respondent’s workplace prevention program was inadequate as is more fully explicated herein.
2. Respondent’s Existing Program
Respondent repeatedly asserted clinical management of patients is the most effective
method to prevent patient-on-staff violence in an inpatient psychiatric hospital. Included under the
rather broad umbrella of Respondent’s methodology of patient management to curb aggression
are: proper evaluation and diagnosis, clinical care, monitoring patients and managing the milieu,
de-escalation, medication management, and treatment by physicians and other direct care staff.
Resp’t. Br. at 51. Respondent also claims its WVPP exceeds the recommendations in the OSHA
Guidelines for Preventing Workplace Violence for Healthcare and Social Service Workers. (Ex.
C-65). The Court has addressed many of these issues in Section III.C.4, supra.
Dr. Argumedo and Dr. Lipscomb, as well as Respondent’s direct care staff, agreed effective
patient management is vital to addressing workplace violence; however, they also testified patient
management is only one piece of a comprehensive WVPP and identified a number of areas where
patient management alone was insufficient, or, at the very least improperly carried out. For
example, as noted above, treatment plans were generated for patients as part of the mandatory
restraint and seclusion paperwork; however, a review of those treatment plans showed they were
mostly pro-forma, identical for nearly each patient for whom they were completed, and not

41
reviewed by staff. (Tr. 419-420, 686; Ex. C-42). In some instances, multiple treatment plans were
generated for the same patient with no change in the form or documentation within the same file.
(Ex. C-42 at 17, 26). Respondent pointed to its use of individualized safety plans as a clinical-
based method for controlling violent behavior; however, Dr. Argumedo only found one such plan
out of 80 files she reviewed in this case. (Tr. 1489, 1600). She also noted the plans themselves
were not timely implemented nor timely modified when it was apparent the plan did not work. (Tr.
1489, 1499-1502, 1600). In one instance, a behavior plan was not implemented until a patient had
already committed 10 acts of aggression towards staff and, even after its implementation, the only
actual changes were related to medication. (Tr. 1494-1502; Ex. C-49). Consistent with
Complainant’s criticism of Respondent’s program being patient-focused but not designed to
address care staff safety, the behavior plans directed how a patient should manage his/her own
behavior, not how staff should work with the patient. (Tr. 1495).
Dr. Argumedo also identified failures in the admissions process, including numerous
patients whose history indicated a violence risk but whose file indicated no- or low-risk of
violence, a lack of consistency in how forms were filled out and inadequacies in the transmission
of information regarding an incoming patient to direct care staff. (Tr. 1469-1474; Exs. C-13, R-8).
Dr. Argumedo was also critical of how the milieu was managed to the extent that acuity did not
appear to be a consideration in admissions and identifying examples of highly acute patients being
admitted to a unit already housing multiple patients with high acuity and low staffing. (Tr. 1449-
1459).
As argued by Complainant, neither OSHA nor this Court are positioned to second-guess
how patients are managed for the purposes of providing therapeutic care. That said, while
Respondent’s methodologies for patient management might be sufficient for the purposes of

42
providing medical care to its patients, those methods alone are not adequate for addressing the
discrete hazard of patient-on-staff violence. This is best illustrated by the fact that multiple patients
were involved in repeated acts of aggression towards staff and yet their files do not indicate
changes to their therapeutic care or management designed to prevent the repeated acts of violence,
some of which were directed at the same staff member who was the subject of the initial act of
aggression. (Tr. 438, 662-663, 1725-1745, 3302; Ex. C-42, C-46).
In addition to clinical management, Respondent touts its training program, including its
workplace violence power point presentation, which Respondent argues is fundamental to its
clinical approach towards identifying signs of patient aggression which may lead to assaultive
behavior and corresponding methods of early intervention and management to prevent such
behavior. (Ex. C-12). Per the guidelines, Respondent also provides de-escalation and self-
defense/restraint training (HWC) to its employees to deal with an aggressive patient.
Respondent appears to suggest any problem with its training program was not its failure to
comport with the OSHA Guidelines or that its methodologies were inadequate for the task, but
only its employees’ failure to understand certain aspects of their training were related to the WVPP.
Not only does this highlight a key problem with Respondent’s WVPP—namely, the patchwork
nature of its presentation and implementation—but it does not begin to identify the inadequacies
of its program.
First, as explained by Dr. Lipscomb, Respondent’s training cannot be limited to De-
escalation, HWC, and clinical management of its patients; instead, Respondent’s training program
must be comprehensive. Not only should training include the WVPP itself, training which neither
Ms. Orr nor Ms. Petschauer could confirm took place, but it should set a clear standard for how
violence is defined, how it should be reported, when it should be reported, how staff can participate

43
in the process to improve the WVPP consistently with milieu experience, and provide examples
of patient-on-staff violence and how to properly respond. (Tr. 3695, Ex. C-62 at 51). According to
Dr. Lipscomb, simply training staff on de-escalation and HWC is insufficient without generating
an understanding of their context within the entire scheme of workplace violence prevention, and
the Court agrees. (Ex. C-62 at 51). To suggest, as Respondent has, the failure to understand the
context of workplace violence training inures to its employees is to fundamentally misunderstand
an employer’s role to ensure its employees are properly trained.
Second, although Respondent has a program to track training, it appears most of
Respondent’s veteran staff was overdue for HWC and verbal de-escalation training by months if
not years without evidence of adequate effort on Respondent’s part to bring them up to planned
training level. This is particularly problematic because over 60% of staff injuries occurred during
the process of implementing a hold. (Ex. C-4). Along the same lines, Respondent did not present
any evidence showing the power point presentation on the WVPP was presented to its employees,
and many employees who testified did not recall seeing the document at any point during their
tenure at UHS-Highlands.
The WVPP has a substantial problem at its foundation which impacts Respondent’s ability
to identify, track, and respond to workplace violence: the lack of a clear definition of workplace
violence. Respondent’s WVPP targets what is characterizes as “Type 2” violence, which is defined
as “violence committed by patients on staff members”.18 (Ex. C-11 at 1). However, as noted by
Dr. Lipscomb, without an adequate definition of workplace violence, Respondent’s ability to track,
predict, and respond to violent incidents is limited. Interestingly, Respondent’s Power Point
18. Interestingly, though Respondent’s WVPP definition is vague and unhelpful, Respondent stipulated to a much
more nuanced definition of workplace violence, which the parties defined as “violent or assaultive behavior or patients
toward staff”. (Jt. Stip. No.7).

44
presentation, which was purportedly introduced during orientation—though employees dispute
ever having seen it—includes a more comprehensive definition of workplace violence, which
includes physical attacks “resulting in any degree of injury”, verbal or written threats “that express
the intent to cause physical harm”, and stalking, harassment, or intimidation. Short of an attack
resulting in injury that was self-reported by an employee or that warranted management review,
none of these more thoroughly included acts of violence were tracked, nor does it appear actions
were taken to prevent them from occurring or recurring.
An overarching issue in this case is whether Respondent provided adequate staffing.
Respondent contends Complainant failed to show “specific data” to establish understaffing was a
systemic issue or that having more staff would have materially reduced the hazard of patient-on-
staff violence. Respondent also argues Complainant failed to show its staffing levels were below
what is provided at comparable facilities or what would have been adequate given the
circumstances at UHS-Highlands. Although Respondent contends the testimony of its staff
members, alone, is not sufficient to show it was understaffed or that more staff would have
materially reduced the hazard, the Court disagrees. First, the complaints regarding insufficient
staffing were not limited to a couple of dilettantes unhappy with the amount of work they had to
perform as alleged by the Respondent. Staffing inadequacy was a constant refrain in years’ worth
of surveys, shift handoff paperwork, resignation letters, and employee complaints to management.
(Ex. C-22, C-21, C-22, C-33). Nearly every employee who testified before this Court stated they
had worked on shifts, typically evening and overnights, where there were as few as one or two
people on a unit. This resulted in Code Greens that were not responded to or that required multiple
calls for help because too many staff were designated to perform one-to-ones or other tasks which
prevented them from responding to codes; only one or two employees performing holds even

45
though they were trained such holds required at least three to perform; and, as a more extreme
example, situations such as those described by Ms. Graumann, who was required to work a shift
alone on more than one occasion. (Tr. 600). Though these employees could not identify specific
dates,19 it is clear to this Court these were not isolated occurrences but were merely part of the job
as experienced by Respondent’s employees. Respondent attributes many of these hazardous
situations described by its employees to uncontrollable call-outs, where employees canceled or
failed to show up for scheduled shifts, but this merely elucidates the challenges encountered by
the Respondent in the development of its WVPP. It does not illustrate how its WVPP is designed
to address such hazards. Respondent knew it had a problem with call-outs and could have
addressed that specific problem through other means. Additionally, from what the Court can infer,
many of the call-outs were a result of the staffing problem in the first instance. Finally, the fact
that a UHS-Delaware Divisional Nursing Director’s audit found even perfect staffing in
accordance with the matrix would have made it difficult for Respondent’s employees to perform
basic duties on a consistent basis, let alone “handle multiple admissions and/or manage an acute
unit”, identifies the WVPP’s shortcomings both from a staffing perspective as well as a clinical
one.
In summary, Respondent’s attempts to abate the hazard of patient-on-staff violence were
inadequate for several reasons.20 Respondent’s primary response to the hazard of patient-on-staff
violence is to focus on the patient, but this has resulted in a patchwork of policies, some of which
are only tangentially related to the hazard. This is best illustrated by the multitude of forms
19. The Court would not expect employees to remember exact dates during which they were short-staffed. To the
extent Respondent suggests this is a problem of credibility, the Court finds the testimony of these staff members was
truthful in light of the detail provided about the specific incidents attested to, as well as the fact that each employee
appeared to have similar, repeated experiences.
20. Due to the substantial overlap of the issues, some of these matters have been discussed in Section III.C, in this
section, as well as in Section IV.D, which discusses the specific abatements proposed by Complainant.

46
Respondent introduced into evidence to demonstrate its commitment to reducing workplace
violence which were either (1) the same for every patient, thereby undermining its claim such
forms had value as individualized responses to particular patient behaviors, or (2) were left blank.
As noted by Complainant, Respondent introduced several blank forms that purported to exemplify
its methods to manage aggressive patient behavior, including Managing Aggressive Patient
Protocol, Promoting Patient Safety Review, Expectations for Aggressive Behaviors, Picture of a
Safe Milieu, Assaultive/Aggressive Individual Treatment Plan, Safety Plan, and the Situational
Awareness Communication Tool. (Ex. R-20, R-23, R-22, R-24, R-25, R-29, R-36). Without any
testimony as to how these forms were used in any specific case or related to any specific behaviors
encountered in the workplace, or even evidence to establish consistent implementation, it is
impossible for the Court to conclude they effectively served the purpose for which they were
designed. Accordingly, on this, and the other grounds discussed above, the Court finds Respondent
failed to properly address the hazard of patient-on-staff violence.
D. Complainant’s Proposed Abatement Measures
As stated previously, Complainant must show: (1) the proposed measures are capable of
being put into effect, and (2) those methods would be effective in materially reducing the incidence
of the hazard. See Integra Health Management, Inc., 2019 WL 1142920 at *12 (citing Beverly
Enters., Inc., 19 BNA OSHC 1161, 1190 (No. 91-3344, 2000) (consolidated)). For the most part,
Respondent does not seriously challenge whether the proposed abatements are capable of being
put into effect; in fact, Respondent has implemented, or begun to implement, many of these
proposals since the inspection. Instead, the remaining key issue is whether the proposed
abatements would be materially effective at reducing, albeit not eliminating, the hazard.

47
The standard for assessing whether a particular abatement proposal would be materially
effective at reducing the hazard is not necessarily mathematical. In BHC Northwest Psychiatric
Hospital, the D.C. Circuit held:
Contrary to Brooke Glen’s assertions . . . , the Secretary need not quantify the extent
to which that program and its component parts “would have materially reduced the
likelihood” of patient-on-staff violence, Nat’l Realty, 489 F.2d at 1267. Instead, the
Secretary satisfied the General Duty Clause’s test by establishing that a
comprehensive workplace safety program would more effectively and consistently
apply measures designed to reduce patient-on-staff violence than Brooke Glen’s
present system did.
BHC NW Psych., 951 F.3d at 565. In that respect, the courts have found expert testimony, insofar
as it is reliable, is sufficient to establish a particular abatement method would materially reduce
the hazard. See Integra Health Mgmt., 2019 WL 1142920 at *13-14 (finding expert testimony
regarding material reduction of hazard of workplace violence sufficient without requiring expert
to quantify extent of reduction). Effectiveness of a particular abatement proposal can also be
established through successful use of a similar approach elsewhere and compliance with industry
standards. See Pepperidge Farm Inc., 17 BNA OSHC 1993 (No. 89-265, 1997).
Complainant does not attempt to specify a fully evolved violence prevention plan for the
Respondent to implement, but rather leaves discretion in the hands of the Respondent to adapt, try,
and modify suggested abatement measures to address the needs and circumstances of its facility.
It is acceptable for Complainant to propose a process-based approach to abatement. See
Pepperidge Farm Inc., 17 BNA OSHC 1993 (“[W]here actual injury is present and substantial
causation has been shown, the Secretary may require [an employer] to engage in an abatement
process, the goal of which is to determine what action or combination of actions will eliminate or
materially reduce the hazard.”). Complainant asserts the package of abatement measures proposed,
either as a whole or in part, will serve to materially reduce the hazard of workplace violence even
if the Court determines any specific abatement proposals do not meet the two-prong test for

48
feasibility. Accordingly, the Court does not find affirmation of the Citation will rise or fall based
upon Complainant’s ability to prove each and every one of the proposed abatement measures will
result in significant reduction of workplace violence standing alone, but rather considers whether
each is a feasible element of a more effective WVPP under the general duty clause.
1. Nurse’s Stations
As discussed at length above, CSHO Stark discovered and staff testified to multiple acts of
aggression and injury that occurred behind the nurse’s station: patients have climbed/jumped over
the counter to attack staff, patients have reached across the counter to stab or punch staff, and
patients have grabbed the phone and used it as a weapon. Further, the door to the nurse’s station
just swings open and does not lock, which allows patients to enter without having to jump or climb
over the counter. As noted by the Divisional Nursing Director, this allows patients an opportunity
to access items behind the station when staff is away from the desk performing other duties.
Respondent contends, consistently with OSHA and Joint Commission Guidelines, it determined
the nurse’s station configuration is appropriate based on a balance between the need to protect
employees from violent acts and the need to maintain a therapeutic atmosphere for its patients.
Further, Respondent contends there is no scientific study to indicate changing the nursing station’s
configuration would materially reduce the incidence of violence or assault; rather, Respondent
suggests such a barrier would only change the location of the assault.
As regards feasibility, there is no evidence to show changing the configuration of the
nurse’s station is not capable of being put into effect. The Court does not perceive, nor does
Respondent argue, any barrier to modifications such as raising the counter height, installing a lock
on the entrance, or other change to decrease the possibility of a patient accessing the station. In

49
fact, according to Lori Ayala, at the time of the trial, the process was already under way to modify
the nurse’s station to raise the counter height. (Tr. 3293).
The Court also finds modifying the nurse’s station to prevent entry or reaching/jumping
over the counter would materially reduce the hazard of patient-on-staff violence. This conclusion
is based on the testimony of all the experts, as well as a dose of common sense. Both Dr. Argumedo
and Dr. Lipscomb agreed a change to the nurse’s station to limit patient access would have
prevented many of the violent interactions documented by CSHO Stark and testified to by
Respondent’s staff. Even Dr. Cohen acknowledged an enclosed nurse’s station with locking doors
would have prevented some of the assaults. (Tr. 2684-2692). While Respondent spent much of the
trial attacking the concept of an enclosed station because it would have a negative impact on the
therapeutic milieu, this characterization amounts to a straw man. Although enclosure of the station,
including full barrier installation, was considered, it was not part of the recommended abatement
measure; rather, the focus was on a targeted modification which prevented the types of violent acts
presently occurring at the nurse’s station.
Respondent also seems to suggest any such modification would not reduce violent assaults
because a barrier will only slow or delay a patient who is determined to cause harm to staff. Resp’t
Br. at 61. This is not a convincing argument to oppose any of the proposed abatements, because it
seems to suggest there is no way to prevent violent acts in the first instance, which similarly calls
into question the efficacy of Respondent’s methods to prevent violent acts, including clinical
management. The parties have stipulated complete elimination of patient-to-staff violence is not
feasible, but the Court does not accept this as a reason not to take reasonable steps to reduce the
incidence or severity. The Court finds, at a very basic level, a modification to the nurse’s station
would prevent at least some of the type of assaults identified in this case by limiting the opportunity

50
or temptation for such assaults to occur and\or delaying patient activity long enough for staff to
implement other preventative measures.
Finally, as regards this and other proposed methods of abatement, the Court would like to
discuss the Blando study referenced by Dr. Cohen, which suggests a disparity between staff
members’ perception of safety based on abatement measures and the actual impact of those safety
measures. (Ex. R-73). While the study found “elements of the workplace that might make nurses
feel safe might not actually result in a lower risk of assault”, the study itself considered disparate
perceptions of safety between two populations of nurses: those working in emergency departments
and those in psychiatric departments. Ultimately, the key finding was that variances in perceptions
of safety were based on personal experience, noting in particular the perceptions of emergency
room nurses: “[Emergency Department] nurses and psychiatric nurses perceive their safety
differently, which is likely the result of the particular characteristics of the environment where they
work, their background and how each group defines ‘violence’.” (Ex. R-73 at 8). The Court places
little weight on the conclusions derived from this study as it relates to any particular abatement
proposal in that it does not meaningfully assess the basis for differences between perceptions of
nurses and verifiable impact on safety in any meaningful way.
2. Reliable Communications Devices
As with the modification of nurse station configuration proposal, the Court finds this
abatement not only capable of being put into effect, but also likely to materially reduce the
incidence of injury from workplace violence. First, since the inspection, Respondent has purchased
additional radios and made them more readily available to direct care staff, which belies any
argument the proposed abatement is not capable of being put into effect. Second, the Court finds
any argument this would not materially reduce the likelihood of injury from patient attacks is

51
specious, especially under the facts of this case. For example, [redacted] testified she needed to
send a patient to get help when she was in the process of performing a hold on a violent patient.
(Tr. 1148). Likewise, Jennifer Ranus testified she and two other employees needed help controlling
a patient in the exam room but could not get the attention of other staff on the unit even though
they were screaming, resulting in one of the employees being injured. (Tr. 1737-1738). Further,
multiple employees testified there were times they were left alone on a unit and would not be able
to call out to other employees or use the phone at the nurse’s station if they were performing rounds
or other duties. If each employee was equipped with a panic alarm or radio, the employees
discussed in the foregoing scenarios could have more quickly summoned help, which, in at least
one instance, could have prevented, or at least lessened, the possibility of injury.
As with the previous abatement discussion regarding the nurse’s station, Respondent
argues the ability to summon assistance quickly and effectively “would not necessarily prevent a
patient from becoming violent.” Resp’t Br. at 64. For much the same reasons, the Court finds this
argument unavailing. The abatement proposals under consideration are not solely about preventing
an individual from being violent, but also about preventing injury and/or exposure to such hazard.
If an employee is capable of summoning help quickly and effectively, this will reduce the
likelihood of having to engage a violent patient alone, which the evidence shows impacts an
employee’s ability to safely perform a hold. Given the staffing issues identified throughout this
case, it is not unusual for one of Respondent’s employees to be alone, rendering apparent the need
for each employee to have a communications device available to him/her at all times. Accordingly,
the Court finds this method of abatement is feasible under the general duty clause.
3. Replace/Redesign Furniture

52
The OSHA Guidelines recommend securing furniture and other items that could be used
as weapons. Also, like the discussion regarding the nurse’s station, the Guidelines note it is
important to strike a balance between creating an appropriate atmosphere for the services provided
and securing furniture to prevent acts of violence. With respect to this recommendation, the Court
finds the abatement proposal is both capable of being put into effect and likely to reduce the
probability and severity of injury from a patient using furniture as a weapon. Respondent does not
necessarily disagree, because it already adds weight to pre-weighted chairs and replaces and/or
updates its furnishings “as design and industry standards change.” Respondent’s primary issue
with this abatement proposal is that certain pieces of furniture, such as cafeteria chairs, should not
be bolted down due to sanitary reasons, such as the need for frequent floor cleaning. This is
Respondent’s prerogative according to the Guidelines and something that might require situational
planning room by room, but it in no way detracts from a finding of feasibility. The evidence shows
patients have used furniture as projectiles, which could injure staff. Thus, the Court finds this
abatement proposal would be feasible.
4. Continuous Monitoring of Security Cameras
The evidence as to the effectiveness of this abatement proposal was minimal. The Court
does not see any particular barriers to implementing the proposal; however, the answer to that
question is mostly related to staffing. As for effectiveness, the Court finds there is little evidence
to show a dedicated individual or individuals watching security camera footage from 120 different
cameras simultaneously for 24 hours every day would enable Respondent’s staff to respond to acts
of violence more quickly than ensuring each team member has an adequate means to call for
assistance. With the exception of the one instance where Mr. Harriot, who just happened to be
looking at the monitors at the right time, was able to respond quickly to an assault prior to the

53
Code Green being called, there was little to no evidence presented to show the proposed monitor
would be able to (a) identify an imminent assault without the aid of sound, which the cameras do
not have; (b) respond more quickly than employees on the unit from an as-yet-undefined location
where they were watching what would no doubt be an unwieldy bank of monitors; or (c) call for a
Code Green more quickly than the employee engaged with the patient, especially if, as discussed
above, the direct care employees are consistently equipped with a communication device, such as
a walkie-talkie or panic alarm.
The metric for feasibility is whether a particular form of abatement will be “materially
effective” at reducing the hazard. While there may be some minor, potential benefit, the evidence
presented at trial failed to convince the Court this element of Complainant’s comprehensive
approach would provide a material reduction of the hazard when compared to an increase in staff
and on-hand communications devices.
5. Comprehensive WVPP
In addition to the shortcomings identified above in Sections II.C.4 and others, supra, the
Court notes a few additional problems with Respondent’s WVPP to highlight the importance of a
comprehensive program. Dr. Lipscomb took great pains to identify specific aspects of a WVPP
which are essential to both preventing patient-on-staff violence and explain how those specific
elements work together to form a comprehensive approach to patient-on-staff violence.
Respondent contends its program in place at the time of the inspection was based on the OSHA
Guidelines, was comprehensive, and, according to Dr. Cohen, was above the standard of care for
acute psychiatric facilities. For the reasons identified by Dr. Lipscomb in her testimony and expert
report, including the OSHA Guidelines, the Court finds Respondent’s WVPP fell short in
numerous respects and that Complainant’s proposed abatement is feasible.

54
Clearly, the proposed abatement measure is capable of being implemented, as Respondent
technically has a WVPP, albeit one which is inadequately constructed and poorly implemented.
Thus, as with most of the proposed abatement methods, the question is whether Complainant’s
abatement proposal “would more effectively and consistently apply measures designed to reduce
patient-on-staff violence” than Respondent’s WVPP. BHC NW Psych., 951 F.3d at 565. The Court
finds the following factors illustrate that it would.
According to Dr. Lipscomb, management commitment to the WVPP is a foundational
element of the safety program because it supports other program elements, such as risk analysis,
hazard control, training, and evaluation/recordkeeping. (Ex. C-62 at 12). Without management
commitment, Dr. Lipscomb opined the WVPP is just a paper exercise. (Tr. 3633). The most notable
deficiencies in Respondent’s current workplace violence prevention procedures relate to
Respondent’s implementation of its own program elements. Respondent’s WVPP sets a goal to
reduce restraints and seclusion below the UHS benchmark and to reduce employee injuries
resulting from patient aggression by 20%. (Ex. C-11 at 1). The problem, as noted repeatedly above,
is Respondent does not adequately track employee injuries, nor does it consistently define
workplace violence such that there is a benchmark to identify what, exactly, constitutes an act of
violence and how the incidence has been accurately recorded and measured. This failure prevents
any meaningful collection of data to show a reduction in staff injuries resulting from patient
aggression. Further, given the disparate sources of data, Respondent is unable to adequately
comply with the second element of Management Commitment, which is to record, report, and
monitor all acts of patient aggression.
Dr. Lipscomb and the OSHA Guidelines identify Employee Participation as another
fundamental element of a comprehensive WVPP. In particular, Dr. Lipscomb noted the risk of

55
workplace violence is not monolithic and reduction of the risk requires multiple perspectives,
including the viewpoints of the individuals who confront that risk on a daily basis. (Tr. 3643).
Similarly, the Guidelines indicate employees can provide useful input through committees
discussing reports of violent incidents, facility design, and policies and procedures which impact
safety. (Ex. C-65 at 12). The “Employee Participation” section in Respondent’s WVPP includes
none of these elements but is instead predominantly focused on staff obligations with respect to
patients. Respondent’s witnesses testified about the number of committees and meetings it holds
with respect to workplace violence, including the PIC and PSC committees, but direct care staff
were not members of those committees. Instead, they were told they could come to those meetings,
even though the staffing levels on the units likely prevented their ability to do so. Further, though
Respondent distributed employee surveys, there is no indication management entertained, let alone
responded to, its employees’ repeated entreaties regarding staff and communication inadequacies21
In order to assess the effectiveness of the program as a whole, as well as any particular
intervention within the program, Dr. Lipscomb highlighted the importance of methodical hazard
analysis. As noted previously, this requires both a clear definition of workplace violence and the
establishment of a clear and effective policy for reporting and documenting incidents of violence.
(Tr. 3627-3630). The evidence discussed throughout this Decision illustrates Respondent’s WVPP
lacked both or, at the very least, its protocol for reporting and documenting incidents of violence
was poorly implemented. For example, employees testified about injuries and incidents that either
went unreported or unrecorded. The platforms for reporting incidents of workplace violence were
not designed for that purpose, i.e., HPRs (MIDAS) reports. See, e.g., BHC NW. Psych Hosp., 951
F.3d 558 (D.C. Cir. 2020). In that respect, not only is the underlying data questionable, but there
21. Indeed, as noted above, these requests extended beyond the survey responses and started popping up in shift hand-
off reports, which were also disregarded.

56
is a total lack of tracking and trending of workplace violence. Contrary to Ms. Petschauer’s claims,
the only documented reports of trends came from CSHO Stark’s analysis of OSHA 300 logs,
EARs, and MIDAS. (Ex. C-4). Ultimately, Respondent’s WVPP uses the language of the OSHA
Guidelines and Joint Commission’s Sentinel Alert, but its components bear little relationship to
the actual purpose of a comprehensive WVPP.
Dr. Lipscomb’s testimony was not limited to identifying the problems with Respondent’s
WVPP, nor did she rely solely on the OSHA guidelines and industry standards to illustrate the
necessary components of a comprehensive WVPP. Dr. Lipscomb also supported her conclusions
by reference to a comprehensive study,22 which showed implementing the OSHA guidelines was
effective in reducing the risk of patient-on-staff violence by 60% within 24 months of their
implementation. (Tr. 3613; Ex. C-62 at 32, C-68). In addition to this study, Dr. Lipscomb identified
other behavioral health facilities that experienced reductions in staff injuries due to patient assaults
after fully implementing a comprehensive WVPP. (Tr. 3663-3664; Ex. C-62 at 32, C-70).
Respondent did not introduce any persuasive countervailing evidence. Accordingly, the Court
finds Complainant established the implementation of a comprehensive WVPP is feasible.
6. Designated Security Staff
To start, it is important to note what, exactly, Complainant is proposing. Respondent
categorically interprets this abatement proposal to mandate the presence of a uniformed, armed
security force, whose sole responsibility is to respond to acts of patient aggression, without giving
due consideration to other options. While that is one method by which a security staff could be
utilized, another method would be for Respondent to re-institute its QSR program in a sustained
and carefully designed manner. Because the QSR program has been used in the past, it is capable
22. Indeed, it was a randomized clinical trial, which Dr. Lipscomb referred to as the “gold standard”.

57
of being implemented. The fact that Respondent ended the program does not speak to either its
ability to be implemented or its effectiveness, because, as discussed above, it was never truly
implemented as it was designed, and was only ended due to purported budgetary restraints.
Respondent’s objection to the idea of a dedicated security staff is two-fold: (1) Respondent
claims the presence of a uniformed force would have a negative impact on the therapeutic
environment, and (2) Complainant failed to provide competent, scientific evidence regarding the
efficacy of its proposal. The Court finds Respondent’s arguments are unpersuasive and,
consequently, that Complainant established the feasibility of this measure.
First, Respondent’s assertion regarding the presence of uniformed security officers’
negative impact on the therapeutic environment appears to be no more based on persuasive
scientific or practical evidence than Respondent’s assertions regarding their effectiveness (or lack
thereof). Dr. Cohen cited three articles he claims indicate a negative correlation between the
presence of security staff and the therapeutic environment. However, upon a closer review of those
articles, the Court finds Dr. Cohen overstates the conclusions contained therein.23 For example,
the Shannon article indicated some reporters described the presence of security as counter-
therapeutic, whereas others found their presence resulted in a more therapeutic ward. (Ex. R-72 at
323). These differences of opinion appear to be attributable to significant uncontrolled variables
in employment relationships, role function, and training of the security employees being
considered. (Id.). The other articles cited for this proposition do not render any conclusions about
security personnel specifically, but instead discuss the concept of increased staffing generally.
Equally unpersuasive, Respondent’s other witnesses discussed their individual feelings about the
23. It is interesting to note Dr. Cohen testified Olive View, where he works, has a dedicated security force. (Tr. 2722-
2724). While he expressed his personal displeasure at their presence, he could not say how or whether they affected
the patients. Dr. Argumedo also testified security has been present at every facility she has worked in without any
perceptible negative effects. (Tr. 1537).

58
presence of security officers but none of them identified any cognizable basis upon which to find
the use of designated security staff, whether uniformed or otherwise, was ineffective, infeasible,
or even contraindicated for the therapeutic environment. Further, notwithstanding Respondent’s
claims regarding the effectiveness of security personnel, the police are often summoned to UHS-
Highlands to address violent incidents which exceed the ability of Respondent’s staff to control.
Thus, it could be said Respondent already relies on a uniformed security force as an effective
means to address violence at its facility.
Second, Complainant identified multiple foundations to support a finding that the
implementation of a security staff would be effective in materially reducing the hazard of
workplace violence. Both the OSHA Guidelines and the Joint Commission’s Sentinel Alert
identify providing security as a potential method of addressing workplace violence, especially
when properly trained in the “psychological components of handling aggressive and abusive
clients.” (Ex. C-65 at 25, 32, Ex. C-67 at 3, 6). Similarly, as noted by Dr. Lipscomb, a document
entitled “Caring for Our Caregivers, Preventing Workplace Violence: A Road Map for Healthcare
Facilities” identified multiple facilities that had successfully reduced violent injuries to staff by
implementing a security staff with training in de-escalation, security, and mental health. (Ex. C-
66 at 21-23). See Beverly Enters., Inc., 19 BNA OSHC at 1191 (finding abatement measures may
be required even if the practice is not yet industry standard); Gen. Dynamics Corp., Quincy
Shipbuilding Div. v. OSHRC, 599 F.2d 453, 464 (1st Cir. 1979) (same).
This proposal is inextricably linked to the issue of adequate staffing, which the Court
addressed at length in Section III.C.2, supra, and found to be lacking at UHS-Highlands.
Respondent identified Code Green responders on a per shift, per unit basis, but this was mostly lip
service, as those employees were simultaneously assigned duties, such as observation rounds and

59
patient transport, which prevented them from participating in Code Greens or other emergency
response. The Court agrees with Dr. Lipscomb that the QSR position could serve as a solution to
this issue, so long as the designated individuals were not counted in the staffing matrix, which is
targeted to meet other shift requirements, and not assigned duties which prevented them from
immediately responding to a Code Green. (Tr. 3679). The Court finds Complainant established the
implementation of a “dedicated” security staff would materially reduce the hazard and would,
therefore, be feasible under the general duty clause.
7. Communications
Complainant argues, and Respondent does not seriously dispute, an effective
communication program is critical for relaying vital information about incidents of workplace
violence, escalating behavior, and patient history so that staff members can be prepared for and
respond to acts of patient aggression. There is no question such a program is capable of being
implemented, because Respondent has policies regarding the exchange of information from intake
to the unit, between shifts on a particular unit (shift handoff reports), and through
meetings/committees such as the PIC, PSC, and treatment team meetings. Respondent’s difficulty
lies not in the lack of a program requiring vital communications among staff but in the way it has
implemented its system of communicating hazards. The Court has already reviewed these failures
in Section III.C.3, supra. Accordingly, the Court finds Complainant has established this abatement
proposal is feasible.
8. Staffing
As with Complainant’s other proposed abatement methods, the Court has addressed the
issue of staffing at length in Sections III.C.2 and IV.C.6, supra, and incorporates those findings
here. Because this issue is clearly the most contentious of Complainant’s abatement regime, there

60
are a few items on which the Court will focus in more detail in addition to the two prongs of the
feasibility question. Ultimately, however, the Court finds Complainant established the feasibility
of this proposed abatement measure.
There is a wide discrepancy between what Respondent says it does with respect to staffing
and what actually happens. Respondent has a matrix to determine minimum staffing levels and
employs a staffing coordinator, who Respondent asserts works in conjunction with the house
supervisor to adjust staffing levels up or down based on factors such as the census of the unit,
admissions/discharges, and acuity. While this sounds workable, there is no policy establishing
standards or protocol for how these factors will be taken into consideration and what adjustments
should be made. Further, the base levels provided for in the matrix are exactly the same for each
unit, notwithstanding each unit being divergent in the age and acuity of its patients. (Tr. 1506-
1507; Ex. C-16). Another complicating factor is the difference, literally, between night and day.
During the daytime shifts, people like administrators, supervisors, and trainers are all on-site and
capable of filling in when necessary and responding to Code Greens. Those same people are
typically not available during the night shifts, when staffing levels are reduced pursuant to the
matrix. Further complicating matters is the fact that discharges only occur during the daytime
hours, but admissions can occur at any time. While admits are not always predictable, Respondent
lacks any method or plan to address unexpected increases in the census, nor has it found a
consistent way to address call-outs, which appear to be a fairly regular occurrence.
In response to Complainant’s allegations regarding short-staffing, Respondent asserts two
key arguments: (1) complaints by staff are not a sound, scientific basis upon which to conclude
staffing is inadequate; and (2) Complainant has not articulated a metric for defining what
constitutes “adequate staffing”. As regards (1), the Court finds Respondent underestimates the full

61
scope of duties carried out by its staff members when making decisions regarding staff levels.
Further, the Court also finds the testimony and assessments of Respondent’s staff regarding staff
levels to be credible, supported by the evidence, and by the determinations of Drs. Lipscomb and
Argumedo. Staff members are uniquely positioned to understand the specifics of their job, how
staffing levels impact their ability to not only carry out the major duties required of them, but also
the ancillary responsibilities which are overlooked. As documented by Nurse Tulley, nurses and
BHAs are required to facilitate bathroom trips, phone calls, and patient requests for each patient
on the unit in addition to their rounds, charting, and any special orders, such as one-to-ones, but,
according to staff, these are not taken into consideration by the administration in making staffing
decisions. Indeed, these are the types of issues repeatedly identified in years’ worth of surveys,
house reports, staff resignation letters, and audits performed by UHS’s own Divisional Nursing
Director.24
With respect to Respondent’s complaint that Complainant has not articulated a metric for
determining adequate staff levels, the Court finds the problem is not the lack of a hard and fast
number Respondent can utilize to determine if staffing is adequate, but whether Respondent has a
policy that accounts for the frequently encountered variables impacting staff duties, including:
acuity; special doctors’ orders, such as one-to-ones; discharges and admits; and any other factor
impacting staff’s ability to carry out their required duties, day-to-day tasks, and unanticipated
events such as Code Greens. This may also require Respondent to articulate how acuity is defined
and how increases or decreases in acuity can be addressed through staffing adjustments or other
means. At present, Respondent contends it considers these things, but there is no policy articulating
24. For all of Respondent’s complaints about its ability to cross-reference actual dates of staff shortages, it appears
there were at least a handful of these reports identifying this very issue.

62
these considerations, and the evidence—especially the identical base level staffing for units with
different base level acuities—belies that assertion.
In support of its claim Complainant’s proposed abatement is insufficiently specific,
Respondent cites to Mid-South Waffles, wherein the Commission vacated a citation for
Complainant’s failure to prove what a sufficient work rule would be. See Mid-South Waffles, Inc.
d/b/a Waffle House #1283, 2019 WL 990226 (No. 13-1022, 2019). The problem for OSHA in that
case was Respondent had an existing work rule, derived from the fryer’s manual, requiring
cleaning once a day. Id. Complainant proposed cleaning on a “regular and timely basis”, which
the Court found failed to specify the additional steps the employer needed to implement beyond
what it already required. Id. Although here Complainant’s proposed abatement does not specify
how many employees is too much or too many, MSW is hardly an apt comparison. Ultimately,
Respondent is being asked to consider, and put into action, the factors it claims to be considering
but clearly does not. In the cases cited by Respondent, MSW and A.H. Sturgill, the problem was
not merely the lack of specificity, but Complainant’s failure to identify the “specific, additional
steps—beyond those already implemented—[the employer] should have taken” to abate the
hazard. See A.H. Sturgill Roofing, Co, No. 13-0224, 2019 WL 1099857 at *10 (OSHRC, 2019).
Based on the testimony of every employee witness, Respondent never actually took the factors it
claims to have relied upon into consideration and often had staffing levels which did not even meet
the base levels provided for in the matrix. Further, Respondent’s problem is one of proof, as the
individuals who testified they considered such matters were either not involved in staffing
decisions or did not participate in setting staffing levels until after the citation was issued. (Tr.
3398, 3525, 3554, 4059). Consistent with the cases cited by Respondent, Complainant has
identified specific, additional steps as part of the panoply of abatement measures, including the

63
addition of a dedicated security staff or QSR position not otherwise encumbered by duties which
would prevent that person from responding to emergencies.
Finally, with respect to the two-prongs of the feasibility analysis, the Court finds
Complainant established the proposed abatement is capable of being implemented and would be
materially effective at reducing the hazard. First, as discussed by Lori Ayala, Respondent has
already changed the base levels in the matrix following the inspection and Citation and has, in the
past, utilized the position of QSR to address some of the issues identified in the proposed
abatement.25 (Tr. 3221-3222).
Second, Respondent attempts to undermine the question of effectiveness through the
testimony of Dr. Cohen, who referenced a study authored by Vincent S. Staggs, PhD, which found
a correlation between increased staffing levels and assaults by patients against staff. (Tr. 2727; Ex.
R-55, R-75). There are at least a few problems with Respondent’s reliance on this study. First, as
noted by Complainant, the study does not draw any conclusions about causation, i.e., whether
increased staffing levels causes an increase in assaults or whether high levels of assaults resulted
in increased staffing levels. (R-75 at 1165). Further, the author of the study himself notes the study
lacks context to the extent that subsequent studies should include considerations of patient-level
data, which “would allow for control of differences in patient mix, and researchers should consider
studies exploiting natural variations in staffing over time.” (R-75 at 1166). As such, Staggs
recommends it would be helpful for a hospital, such as Respondent, to experiment with staff
adjustments on individual units and compare rates of assault to a control unit. (Id.). Finally, the
Court does not find this study stands for the proposition that Respondent specifically does not need
to add additional staff when it is clear, based on the testimony, its own employees did not have
25. Though the position was ultimately scrapped, it was done for financial reasons, which had nothing to do with its
effectiveness.

64
enough staff to perform the basic duties expected of them. There was nothing in the study to
establish a baseline number of employees per patient, above which further increases resulted in an
identifiable increase in assault. At best, the Staggs study, as admitted by the author, only
challenged the common sense assumption that the problem of violence will be solved simply by
throwing more employees onto a unit.
Based on the foregoing, the Court finds the proposed abatement is feasible.
9. Training on WVPP
Complainant identified five distinct areas of training where it claims Respondent has failed
to implement its WVPP in an effective manner, including: (1) the consistent availability of
working communication devices to enable calls for assistance as needed; (2) uniform Code Green
response; (3) hands-on training and drills to practice HWC and verbal de-escalation; (4) using the
post-incident debriefing process; and (5) wearing/storing badges to prevent them from being taken
by patients. As noted at the beginning of this decision and throughout, Complainant’s biggest
concern is the lack of a comprehensive approach to the WVPP, which has resulted in a patchwork
of policies and procedures without the context of effective assessment regarding the importance
of each to the prevention of workplace violence directed at staff. This is particularly the case in
the arena of training.
Respondent’s staff testified they did not feel the training they received had been consistent
with the experiences they had working at UHS-Highlands. In particular, staff noted the practice
scenarios during training were not comparable to the real-life acts of aggression they faced:
techniques that may work for smaller patients were not as effective for larger, more aggressive
patients, and training focused on team application of holds although staffing shortages too
frequently left employees to engage in single-person restraints. (Tr. 718, 1160, 2015, 2291).

65
Moreover, the individual trainings on HWC and verbal de-escalation were not connected to
training on the WVPP as a whole, including processes for reporting injuries, calling for codes, or
the debriefing process.
Further compounding problems is the lack of follow-up training by Respondent. Though
Respondent claims it provides refresher training on HWC and other issues through its training fair
and in response to requests for additional training and debriefings, the evidence suggests otherwise.
[redacted] testified her file indicated she had received follow-up training on HWC after a violent
encounter, but she had not received such additional training. [redacted] testified he requested, but
did not receive, recertification in HWC when his expired. (Tr. 719). This was the case across the
board, as Mr. Carstens noted many of the veteran staff had not received HWC refresher training
since their orientation, which could have been years in the past. (Tr. 2369-2371; Ex. C-29).
Dr. Lipscomb testified training, both in-class and real-life drills, is part of a successful
comprehensive WVPP and a widely accepted necessary safety measure throughout the industry.
(Tr. 3693; Ex. C-62 at 53). Her testimony was consistent with the Joint Commission’s Sentinel
Alert and the OSHA Road Map. The Sentinel Alert recommends conducting practice drills “that
include response to a full spectrum of violent situations”. (Ex. C-67 at 6). The Road Map refers to
the practices of the Sheppard Pratt System, which treats psychiatric patients in an inpatient setting
like Respondent’s. (Ex. C-66 at 32). According to the Road Map, Sheppard Pratt provides monthly
refresher training and real-time training during incidents. (Tr. C-62 at 53, C-66 at 32).
The Court finds the foregoing establishes the proposed abatement is both capable of being
implemented and likely to be effective at materially reducing the hazard. Respondent has a system
to track training, as well as trainers certified to provide training in HWC and verbal de-escalation
(Carstens). The key to this abatement is to connect the disparate pieces of Respondent’s WVPP

66
and sew them together to provide a comprehensive and contextual system to prevent workplace
violence toward staff.
Respondent’s principal response to this abatement proposal is that it does these things
already and Complainant is simply asking Highlands to “do more” for the sake of doing more;
however, as discussed herein and above, the Court finds otherwise.
10. Investigation and Debriefing
Complainant seeks to require Respondent to expand upon the investigation and debrief
program within its WVPP and to adhere to the requirements already contained therein. As to the
proposed expansion, Complainant proposes Respondent conduct investigations and debriefs after
each act of WPV, including near-misses, and to engage staff in the post-incident investigation and
review process over and above the cursory debrief process it currently implements. With respect
to this abatement proposal, the Court notes Respondent’s WVPP already requires post-
restraint/seclusion debriefings with all staff involved, but in practice Respondent limits its
investigation and review process to management through the PIC, PSC, and other forums.
Respondent also claims it performs debriefs with employees after patient aggression incidents
which don’t involve restraint and seclusion, but there is no documentation of this, and employees
testified their participation in debriefs was limited, if it occurred at all.
With respect to this issue, Respondent, again, does not so much dispute the feasibility of
the concept of debriefing and investigation so much as it takes issue with Complainant’s inclusion
of near misses as part of the debrief process. Specifically, Respondent claims Complainant does
not define a “near miss” and questions whether it would be practical to debrief such incidents
because “it is not predictable when violence or assault would have happened.” Resp’t Br. at 74.
The Court disagrees. Respondent’s own expert, Dr. Cohen, stated Respondent’s program did not

67
include/document near-misses and could be improved by documenting its debriefing process. (Tr.
2779; Ex. R-55 at 14). Further, Dr. Cohen noted the OSHA Guidelines include a similar
recommendation that near misses, which it characterizes “a situation that could potentially have
resulted in death, injury, or illness”, should be investigated, reported, recorded, and monitored.
(Ex. C-65 at 12, 29). Dr. Lipscomb and Dr. Argumedo also testified to the importance and
effectiveness of post-incident debriefings, regardless of whether a restraint or injury occurred.
Consistent with the testimony of all the experts who testified, as well as the OSHA
Guidelines and Roadmap, the Court finds the additional abatement steps identified by
Complainant—namely, the addition of near misses and the inclusion of staff in post-incident
investigation and response—are both capable of being implemented and will materially reduce the
hazard of workplace violence.
E. Economic Feasibility
Respondent contends the Citation should be dismissed because Complainant failed to
present evidence regarding the economic feasibility of the proposed abatement measures. The
Commission and circuit courts have held OSHA must show a proposed abatement is economically
feasible. See Baroid Div. of NL Industries, Inc. v. OSHRC, 660 F.2d 439, 447 (10th Cir. 1981);
Waldon Healthcare Ctr., 16 BNA OSHC 1052 (No. 89-2804, 1993). The D.C. Circuit held an
abatement proposal is infeasible if it “would clearly threaten the economic viability of the
employer.” Nat’l Realty, 489 F.2d 1257, 1266 n.37 (D.C. Cir. 1973). This requires a cost-benefit
analysis of the abatement proposal as it compares to the financial condition of the employer.
The evidence shows Complainant requested “copies of annual budgets and strategic plans
related to the worksite” and sought to depose Respondent’s CFO, which, presumably would
disclose the financial condition of Respondent and, in turn, permit Complainant to perform an

68
analysis of whether its proposed abatements would be economically feasible. Respondent refused
to provide the requested information and refused to permit Complainant to depose its CFO because
“it is not limited in scope to any subject or issue related to employee safety with respect to
Highlands’ direct care staff. The only material issues remaining in this litigation are whether
Respondent’s current means of preventing workplace violence are adequate the feasibility of the
Secretary’s proposed abatement and whether such abatement methods will materially reduce the
hazard of workplace violence.” (Ex. C-72 at 11). Respondent also stated the requested information
does not “seek information related to the costs of the abatements proposed. . . .” In seeking such
information, Complainant was not looking for information about abatement costs, which the
parties could research of their own accord; rather, it was seeking information regarding the
financial condition of Respondent and, presumably, attempting to identify how the costs of the
proposed abatements compared to Respondent’s annual budget. Respondent refused to provide the
requested information relating to its economic circumstances and asserted that was not a relevant
consideration.
Accordingly, the Court finds the lack of production on Respondent’s part would show the
proposed abatements were not infeasible. See N. Landing Line Constr. Co., 19 BNA OSHC 1465,
1473 (No. 96-0721, 2001) (“[D]eficiencies in [the employer’s] response should be taken as
establishing that there was no such evidence, not that the Secretary failed to carry her burden.”
(citing Ocean Elec. Corp. v. Sec'y of Labor, 594 F.2d 396, 403 n. 4 (4th Cir. 1979))); see also
Capeway Roofing Sys., Inc., 20 BNA OSHC 1331, 1342-43 (No. 00-1968, 2003) (“The
Commission has also noted that when one party has evidence but does not present it, it is
reasonable to draw a negative or adverse inference against that party, i.e., that the evidence would
not help that party's case.”) (citations omitted).

69
F. Fair Notice
In its Answer, Respondent alleged the affirmative defense of lack of fair notice. Respondent
did not pursue this defense either at trial or in its post-trial brief, so the Court deems the issue
abandoned. See Georgia-Pacific Corp., 15 BNA OSCH 1127, 1130 (No. 89-2713, 1991).
V. Penalty
Under the Act, the Secretary has the authority to propose a penalty according to Section 17
of the Act. See 29 U.S.C. §§ 659(a), 666. The amount proposed, however, merely becomes
advisory when an employer timely contests the matter. Brennan v. OSHRC, 487 F.2d 438, 441–42
(8th Cir. 1973); Revoli Constr. Co., 19 BNA OSHC 1682, 1686 n. 5 (No. 00-0315, 2001).
Ultimately, it is the province of the Commission to “assess all civil penalties provided in [Section
17]”, which it determines de novo. 29 U.S.C. § 666(j); see also Valdak Corp., 17 BNA OSHC
1135 (No. 93-0239, 1995).
“Regarding penalty, the Act requires that “due consideration” be given to the employer’s
size, the gravity of the violation, the good faith of the employer, and any prior history of
violations.” Briones Util. Co., 26 BNA OSHC 1218, 1222 (No. 10-1372, 2016) (citing 29 U.S.C.
§ 666(j). These factors are not necessarily accorded equal weight. J.A. Jones Constr., 15 BNA
OSHC 2201, 2216 (No. 87-2059, 1993) (citation omitted). Rather, the Commission assigns the
weight that is reasonable under the circumstances. Eric K. Ho, 20 BNA OSHC 1361, 1379 (No.
98-1645, 2003) (Consol.), aff'd sub nom., Chao v. OSHRC, 401 F.3d 355 (5th Cir. 2005). It is the
Secretary’s burden to introduce evidence bearing on the factors and explain how he arrived at the
penalty he proposed. Valdak Corp., 17 BNA OSHC at 1138. The gravity of the violation is the
‘principal factor in a penalty determination. Assessing gravity involves considering: (1) the number
of employees exposed to the hazard; (2) the duration of exposure; (3) whether any precautions

70
have been taken against injury; (4) the degree of probability that an accident would occur; and (5)
the likelihood of injury. See, e.g., Capform, Inc., 19 BNA OSHC 1374, 1378 (No. 99-0322, 2001),
aff’d, 34 F. Appx. 152 (5th Cir. 2002) (unpublished).
Complainant proposed a penalty of $11,934, which includes a 10% reduction based on
Respondent’s size. The Court finds the foregoing findings of facts and conclusions of law provide
more than adequate support for Complainant’s assessments of gravity and size. There was no
evidence justifying further discounts for good faith or citation history. Accordingly, the Court finds
the penalty of $11,934 is appropriate.
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 AFFIRMED as serious, and penalty of $11,934 is ASSESSED.
SO ORDERED
/s/
Peggy S. Ball
Judge, OSHRC
Date: March 1, 2022
Denver, Colorado