[House Report 117-14]
[From the U.S. Government Publishing Office]
117th Congress } { Rept. 117-14
HOUSE OF REPRESENTATIVES
1st Session } { Part 1
======================================================================
WORKPLACE VIOLENCE PREVENTION FOR HEALTH CARE AND SOCIAL SERVICE
WORKERS ACT
_______
April 5, 2021.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Scott of Virginia, from the Committee on Education and Labor,
submitted the following
R E P O R T
together with
MINORITY VIEWS
[To accompany H.R. 1195]
The Committee on Education and Labor, to whom was referred
the bill (H.R. 1195) to direct the Secretary of Labor to issue
an occupational safety and health standard that requires
covered employers within the health care and social service
industries to develop and implement a comprehensive workplace
violence prevention plan, and for other purposes, having
considered the same, reports favorably thereon with an
amendment and recommends that the bill as amended do pass.
CONTENTS
Page
Purpose and Summary.............................................. 10
Committee Action................................................. 10
Committee Views.................................................. 14
Appendix A....................................................... 33
Section-by-Section Analysis...................................... 41
Explanation of Amendments........................................ 44
Application of Law to the Legislative Branch..................... 44
Unfunded Mandate Statement....................................... 44
Earmark Statement................................................ 44
Roll Call Votes.................................................. 44
Statement of Performance Goals and Objectives.................... 47
Duplication of Federal Programs.................................. 47
Hearings......................................................... 47
Statement of Oversight Findings and Recommendations of the
Committee...................................................... 47
New Budget Authority and CBO Cost Estimate....................... 47
Committee Cost Estimate.......................................... 47
Changes in Existing Law Made by the Bill, as Reported............ 48
Committee Correspondence......................................... 67
Minority Views................................................... 71
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Workplace Violence Prevention for
Health Care and Social Service Workers Act''.
SEC. 2. TABLE OF CONTENTS.
The table of contents for this Act is as follows:
Sec. 1. Short title.
Sec. 2. Table of contents.
TITLE I--WORKPLACE VIOLENCE PREVENTION STANDARD
Sec. 101. Workplace violence prevention standard.
Sec. 102. Scope and application.
Sec. 103. Requirements for workplace violence prevention standard.
Sec. 104. Rules of construction.
Sec. 105. Other definitions.
TITLE II--AMENDMENTS TO THE SOCIAL SECURITY ACT
Sec. 201. Application of the workplace violence prevention standard to
certain facilities receiving Medicare funds.
TITLE I--WORKPLACE VIOLENCE PREVENTION STANDARD
SEC. 101. WORKPLACE VIOLENCE PREVENTION STANDARD.
(a) Interim Final Standard.--
(1) In general.--Not later than 1 year after the date of
enactment of this Act, the Secretary of Labor shall issue an
interim final standard on workplace violence prevention--
(A) to require certain employers in the health care
and social service sectors, and certain employers in
sectors that conduct activities similar to the
activities in the health care and social service
sectors, to develop and implement a comprehensive
workplace violence prevention plan and carry out other
activities or requirements described in section 103 to
protect health care workers, social service workers,
and other personnel from workplace violence; and
(B) that shall, at a minimum, be based on the
Guidelines for Preventing Workplace Violence for
Healthcare and Social Service Workers published by the
Occupational Safety and Health Administration of the
Department of Labor in 2015 and adhere to the
requirements of this title.
(2) Inapplicable provisions of law and executive order.--The
following provisions of law and Executive orders shall not
apply to the issuance of the interim final standard under this
subsection:
(A) The requirements applicable to occupational
safety and health standards under section 6(b) of the
Occupational Safety and Health Act of 1970 (29 U.S.C.
655(b)).
(B) The requirements of chapters 5 and 6 of title 5,
United States Code.
(C) Subchapter I of chapter 35 of title 44, United
States Code (commonly referred to as the ``Paperwork
Reduction Act'').
(D) Executive Order 12866 (58 Fed. Reg. 51735;
relating to regulatory planning and review), as
amended.
(3) Notice and comment.--Notwithstanding paragraph (2)(B),
the Secretary shall, prior to issuing the interim final
standard under this subsection, provide notice in the Federal
Register of the interim final standard and a 30-day period for
public comment.
(4) Effective date of interim standard.--The interim final
standard shall--
(A) take effect on a date that is not later than 30
days after issuance, except that such interim final
standard may include a reasonable phase-in period for
the implementation of required engineering controls
that take effect after such date;
(B) be enforced in the same manner and to the same
extent as any standard promulgated under section 6(b)
of the Occupational Safety and Health Act of 1970 (29
U.S.C. 655(b)); and
(C) be in effect until the final standard described
in subsection (b) becomes effective and enforceable.
(5) Failure to promulgate.--If an interim final standard
described in paragraph (1) is not issued not later than 1 year
of the date of enactment of this Act, the provisions of this
title shall be in effect and enforced in the same manner and to
the same extent as any standard promulgated under section 6(b)
of the Occupational Safety and Health Act (29 U.S.C. 655(b))
until such provisions are superseded in whole by an interim
final standard issued by the Secretary that meets the
requirements of paragraph (1).
(b) Final Standard.--
(1) Proposed standard.--Not later than 2 years after the date
of enactment of this Act, the Secretary of Labor shall,
pursuant to section 6 of the Occupational Safety and Health Act
(29 U.S.C. 655), promulgate a proposed standard on workplace
violence prevention--
(A) for the purposes described in subsection
(a)(1)(A); and
(B) that shall include, at a minimum, requirements
contained in the interim final standard promulgated
under subsection (a).
(2) Final standard.--Not later than 42 months after the date
of enactment of this Act, the Secretary shall issue a final
standard on such proposed standard that shall--
(A) provide no less protection than any workplace
violence standard adopted by a State plan that has been
approved by the Secretary under section 18 of the
Occupational Safety and Health Act of 1970 (29 U.S.C.
667), provided the Secretary finds that the final
standard is feasible on the basis of the best available
evidence; and
(B) be effective and enforceable in the same manner
and to the same extent as any standard promulgated
under section 6(b) of the Occupational Safety and
Health Act of 1970 (29 U.S.C. 655(b)).
SEC. 102. SCOPE AND APPLICATION.
In this title:
(1) Covered facility.--
(A) In general.--The term ``covered facility''
includes the following:
(i) Any hospital, including any specialty
hospital, in-patient or outpatient setting, or
clinic operating within a hospital license, or
any setting that provides outpatient services.
(ii) Any residential treatment facility,
including any nursing home, skilled nursing
facility, hospice facility, and long-term care
facility.
(iii) Any non-residential treatment or
service setting.
(iv) Any medical treatment or social service
setting or clinic at a correctional or
detention facility.
(v) Any community care setting, including a
community-based residential facility, group
home, and mental health clinic.
(vi) Any psychiatric treatment facility.
(vii) Any drug abuse or substance use
disorder treatment center.
(viii) Any independent freestanding emergency
centers.
(ix) Any facility described in clauses (i)
through (viii) operated by a Federal Government
agency and required to comply with occupational
safety and health standards pursuant to section
1960 of title 29, Code of Federal Regulations
(as such section is in effect on the date of
enactment of this Act).
(x) Any other facility the Secretary
determines should be covered under the
standards promulgated under section 101.
(B) Exclusion.--The term ``covered facility'' does
not include an office of a physician, dentist,
podiatrist, or any other health practitioner that is
not physically located within a covered facility
described in clauses (i) through (x) of subparagraph
(A).
(2) Covered services.--
(A) In general.--The term ``covered service''
includes the following services and operations:
(i) Any services and operations provided in
any field work setting, including home health
care, home-based hospice, and home-based social
work.
(ii) Any emergency services and transport,
including such services provided by
firefighters and emergency responders.
(iii) Any services described in clauses (i)
and (ii) performed by a Federal Government
agency and required to comply with occupational
safety and health standards pursuant to section
1960 of title 29, Code of Federal Regulations
(as such section is in effect on the date of
enactment of this Act).
(iv) Any other services and operations the
Secretary determines should be covered under
the standards promulgated under section 101.
(B) Exclusion.--The term ``covered service'' does not
include child day care services.
(3) Covered employer.--
(A) In general.--The term ``covered employer''
includes a person (including a contractor,
subcontractor, a temporary service firm, or an employee
leasing entity) that employs an individual to work at a
covered facility or to perform covered services.
(B) Exclusion.--The term ``covered employer'' does
not include an individual who privately employs, in the
individual's residence, a person to perform covered
services for the individual or a family member of the
individual.
(4) Covered employee.--The term ``covered employee'' includes
an individual employed by a covered employer to work at a
covered facility or to perform covered services.
SEC. 103. REQUIREMENTS FOR WORKPLACE VIOLENCE PREVENTION STANDARD.
Each standard described in section 101 shall include, at a minimum,
the following requirements:
(1) Workplace violence prevention plan.--Not later than 6
months after the date of promulgation of the interim final
standard under section 101(a), a covered employer shall
develop, implement, and maintain an effective written workplace
violence prevention plan (in this section referred to as the
``Plan'') for covered employees at each covered facility and
for covered employees performing a covered service on behalf of
such employer, which meets the following:
(A) Plan development.--Each Plan shall--
(i) be developed and implemented with the
meaningful participation of direct care
employees, other employees, and employee
representatives, for all aspects of the Plan;
(ii) be tailored and specific to conditions
and hazards for the covered facility or the
covered service, including patient-specific
risk factors and risk factors specific to each
work area or unit; and
(iii) be suitable for the size, complexity,
and type of operations at the covered facility
or for the covered service, and remain in
effect at all times.
(B) Plan content.--Each Plan shall include procedures
and methods for the following:
(i) Identification of the individual and the
individual's position responsible for
implementation of the Plan.
(ii) With respect to each work area and unit
at the covered facility or while covered
employees are performing the covered service,
risk assessment and identification of workplace
violence risks and hazards to employees exposed
to such risks and hazards (including
environmental risk factors and patient-specific
risk factors), which shall be--
(I) informed by past violent
incidents specific to such covered
facility or such covered service; and
(II) conducted with, at a minimum--
(aa) direct care employees;
(bb) where applicable, the
representatives of such
employees; and
(cc) the employer.
(iii) Hazard prevention, engineering
controls, or work practice controls to correct
hazards, in a timely manner, applying
industrial hygiene principles of the hierarchy
of controls, which--
(I) may include security and alarm
systems, adequate exit routes,
monitoring systems, barrier protection,
established areas for patients and
clients, lighting, entry procedures,
staffing and working in teams, and
systems to identify and flag clients
with a history of violence; and
(II) shall ensure that employers
correct, in a timely manner, hazards
identified in any violent incident
investigation described in paragraph
(2) and any annual report described in
paragraph (5).
(iv) Reporting, incident response, and post-
incident investigation procedures, including
procedures--
(I) for employees to report workplace
violence risks, hazards, and incidents;
(II) for employers to respond to
reports of workplace violence;
(III) for employers to perform a
post-incident investigation and
debriefing of all reports of workplace
violence with the participation of
employees and their representatives;
(IV) to provide medical care or first
aid to affected employees; and
(V) to provide employees with
information about available trauma and
related counseling.
(v) Procedures for emergency response,
including procedures for threats of mass
casualties and procedures for incidents
involving a firearm or a dangerous weapon.
(vi) Procedures for communicating with and
training the covered employees on workplace
violence hazards, threats, and work practice
controls, the employer's plan, and procedures
for confronting, responding to, and reporting
workplace violence threats, incidents, and
concerns, and employee rights.
(vii) Procedures for--
(I) ensuring the coordination of risk
assessment efforts, Plan development,
and implementation of the Plan with
other employers who have employees who
work at the covered facility or who are
performing the covered service; and
(II) determining which covered
employer or covered employers shall be
responsible for implementing and
complying with the provisions of the
standard applicable to the working
conditions over which such employers
have control.
(viii) Procedures for conducting the annual
evaluation under paragraph (6).
(C) Availability of plan.--Each Plan shall be made
available at all times to the covered employees who are
covered under such Plan.
(2) Violent incident investigation.--
(A) In general.--As soon as practicable after a
workplace violence incident, risk, or hazard of which a
covered employer has knowledge, the employer shall
conduct an investigation of such incident, risk, or
hazard under which the employer shall--
(i) review the circumstances of the incident,
risk, or hazard, and whether any controls or
measures implemented pursuant to the Plan of
the employer were effective; and
(ii) solicit input from involved employees,
their representatives, and supervisors about
the cause of the incident, risk, or hazard, and
whether further corrective measures (including
system-level factors) could have prevented the
incident, risk, or hazard.
(B) Documentation.--A covered employer shall document
the findings, recommendations, and corrective measures
taken for each investigation conducted under this
paragraph.
(3) Training and education.--With respect to the covered
employees covered under a Plan of a covered employer, the
employer shall provide training and education to such employees
who may be exposed to workplace violence hazards and risks,
which meet the following requirements:
(A) Annual training and education shall include
information on the Plan, including identified workplace
violence hazards, work practice control measures,
reporting procedures, record keeping requirements,
response procedures, anti-retaliation policies, and
employee rights.
(B) Additional hazard recognition training shall be
provided for supervisors and managers to ensure they--
(i) can recognize high-risk situations; and
(ii) do not assign employees to situations
that predictably compromise the safety of such
employees.
(C) Additional training shall be provided for each
such covered employee whose job circumstances have
changed, within a reasonable timeframe after such
change.
(D) Applicable training shall be provided under this
paragraph for each new covered employee prior to the
employee's job assignment.
(E) All training shall provide such employees
opportunities to ask questions, give feedback on
training, and request additional instruction,
clarification, or other followup.
(F) All training shall be provided in-person and by
an individual with knowledge of workplace violence
prevention and of the Plan, except that any annual
training described in subparagraph (A) provided to an
employee after the first year such training is provided
to such employee may be conducted by live video if in-
person training is impracticable.
(G) All training shall be appropriate in content and
vocabulary to the language, educational level, and
literacy of such covered employees.
(4) Recordkeeping and access to plan records.--
(A) In general.--Each covered employer shall--
(i) maintain for not less than 5 years--
(I) records related to each Plan of
the employer, including workplace
violence risk and hazard assessments,
and identification, evaluation,
correction, and training procedures;
(II) a violent incident log described
in subparagraph (B) for recording all
workplace violence incidents; and
(III) records of all incident
investigations as required under
paragraph (2)(B); and
(ii)(I) make such records and logs available,
upon request, to covered employees and their
representatives for examination and copying in
accordance with section 1910.1020 of title 29,
Code of Federal Regulations (as such section is
in effect on the date of enactment of this
Act), and in a manner consistent with HIPAA
privacy regulations (defined in section
1180(b)(3) of the Social Security Act (42
U.S.C. 1320d-9(b)(3))) and part 2 of title 42,
Code of Federal Regulations (as such part is in
effect on the date of enactment of this Act);
and
(II) ensure that any such records and logs
that may be copied, transmitted electronically,
or otherwise removed from the employer's
control for purposes of this clause omit any
element of personal identifying information
sufficient to allow identification of any
patient, resident, client, or other individual
alleged to have committed a violent incident
(including the individual's name, address,
electronic mail address, telephone number, or
social security number, or other information
that, alone or in combination with other
publicly available information, reveals such
individual's identity).
(B) Violent incident log description.--Each violent
incident log shall--
(i) be maintained by a covered employer for
each covered facility controlled by the
employer and for each covered service being
performed by a covered employee on behalf of
such employer;
(ii) be based on a template developed by the
Secretary not later than 1 year after the date
of enactment of this Act;
(iii) include, at a minimum, a description
of--
(I) the violent incident (including
environmental risk factors present at
the time of the incident);
(II) the date, time, and location of
the incident, and the names and job
titles of involved employees;
(III) the nature and extent of
injuries to covered employees;
(IV) a classification of the
perpetrator who committed the violence,
including whether the perpetrator was--
(aa) a patient, client,
resident, or customer of a
covered employer;
(bb) a family or friend of a
patient, client, resident, or
customer of a covered employer;
(cc) a stranger;
(dd) a coworker, supervisor,
or manager of a covered
employee;
(ee) a partner, spouse,
parent, or relative of a
covered employee; or
(ff) any other appropriate
classification;
(V) the type of violent incident
(such as type 1 violence, type 2
violence, type 3 violence, or type 4
violence); and
(VI) how the incident was abated;
(iv) not later than 7 days after the employer
learns of such incident, contain a record of
each violent incident, which is updated to
ensure completeness of such record;
(v) be maintained for not less than 5 years;
and
(vi) in the case of a violent incident
involving a privacy concern case, protect the
identity of employees in a manner consistent
with section 1904.29(b) of title 29, Code of
Federal Regulations (as such section is in
effect on the date of enactment of this Act).
(C) Annual summary.--
(i) Covered employers.--Each covered employer
shall prepare and submit to the Secretary an
annual summary of each violent incident log for
the preceding calendar year that shall--
(I) with respect to each covered
facility, and each covered service, for
which such a log has been maintained,
include--
(aa) the total number of
violent incidents;
(bb) the number of recordable
injuries related to such
incidents; and
(cc) the total number of
hours worked by the covered
employees for such preceding
year;
(II) be completed on a form provided
by the Secretary;
(III) be posted for 3 months
beginning February 1 of each year in a
manner consistent with the requirements
of section 1904 of title 29, Code of
Federal Regulations (as such section is
in effect on the date of enactment of
this Act), relating to the posting of
summaries of injury and illness logs;
(IV) be located in a conspicuous
place or places where notices to
employees are customarily posted; and
(V) not be altered, defaced, or
covered by other material.
(ii) Secretary.--Not later than 1 year after
the promulgation of the interim final standard
under section 101(a), the Secretary shall make
available a platform for the electronic
submission of annual summaries required under
this subparagraph.
(5) Annual report.--
(A) Report to secretary.--Not later than February 15
of each year, each covered employer shall report to the
Secretary, on a form provided by the Secretary, the
frequency, quantity, and severity of workplace
violence, and any incident response and post-incident
investigation (including abatement measures) for the
incidents set forth in the annual summary of the
violent incident log described in paragraph (4)(C). The
contents of the report of the Secretary to Congress
shall not disclose any confidential information.
(B) Report to congress.--Not later than 6 months
after February 15 of each year, the Secretary shall
submit to Congress a summary of the reports received
under subparagraph (A).
(6) Annual evaluation.--Each covered employer shall conduct
an annual written evaluation, conducted with the full, active
participation of covered employees and employee
representatives, of--
(A) the implementation and effectiveness of the Plan,
including a review of the violent incident log; and
(B) compliance with training required by each
standard described in section 101, and specified in the
Plan.
(7) Plan updates.--Each covered employer shall incorporate
changes to the Plan, in a manner consistent with paragraph
(1)(A)(i) and based on findings from the most recent annual
evaluation conducted under paragraph (6), as appropriate.
(8) Anti-retaliation.--
(A) Policy.--Each covered employer shall adopt a
policy prohibiting any person (including an agent of
the employer) from the discrimination or retaliation
described in subparagraph (B).
(B) Prohibition.--No covered employer shall
discriminate or retaliate against any employee for--
(i) reporting a workplace violence incident,
threat, or concern to, or seeking assistance or
intervention with respect to such incident,
threat, or concern from, the employer, law
enforcement, local emergency services, or a
local, State, or Federal government agency; or
(ii) exercising any other rights under this
paragraph.
(C) Enforcement.--This paragraph shall be enforced in
the same manner and to the same extent as any standard
promulgated under section 6(b) of the Occupational
Safety and Health Act (29 U.S.C. 655(b)).
SEC. 104. RULES OF CONSTRUCTION.
Notwithstanding section 18 of the Occupational Safety and Health Act
of 1970 (29 U.S.C. 667)--
(1) nothing in this title shall be construed to curtail or
limit authority of the Secretary under any other provision of
the law;
(2) the rights, privileges, or remedies of covered employees
shall be in addition to the rights, privileges, or remedies
provided under any Federal or State law, or any collective
bargaining agreement; and
(3) nothing in this Act shall be construed to limit or
prevent health care workers, social service workers, and other
personnel from reporting violent incidents to appropriate law
enforcement.
SEC. 105. OTHER DEFINITIONS.
In this title:
(1) Workplace violence.--
(A) In general.--The term ``workplace violence''
means any act of violence or threat of violence,
without regard to intent, that occurs at a covered
facility or while a covered employee performs a covered
service.
(B) Exclusions.--The term ``workplace violence'' does
not include lawful acts of self-defense or lawful acts
of defense of others.
(C) Inclusions.--The term ``workplace violence''
includes--
(i) the threat or use of physical force
against a covered employee that results in or
has a high likelihood of resulting in injury,
psychological trauma, or stress, without regard
to whether the covered employee sustains an
injury, psychological trauma, or stress; and
(ii) an incident involving the threat or use
of a firearm or a dangerous weapon, including
the use of common objects as weapons, without
regard to whether the employee sustains an
injury, psychological trauma, or stress.
(2) Type 1 violence.--The term ``type 1 violence''--
(A) means workplace violence directed at a covered
employee at a covered facility or while performing a
covered service by an individual who has no legitimate
business at the covered facility or with respect to
such covered service; and
(B) includes violent acts by any individual who
enters the covered facility or worksite where a covered
service is being performed with the intent to commit a
crime.
(3) Type 2 violence.--The term ``type 2 violence'' means
workplace violence directed at a covered employee by customers,
clients, patients, students, inmates, or any individual for
whom a covered facility provides services or for whom the
employee performs covered services.
(4) Type 3 violence.--The term ``type 3 violence'' means
workplace violence directed at a covered employee by a present
or former employee, supervisor, or manager.
(5) Type 4 violence.--The term ``type 4 violence'' means
workplace violence directed at a covered employee by an
individual who is not an employee, but has or is known to have
had a personal relationship with such employee, or with a
customer, client, patient, student, inmate, or any individual
for whom a covered facility provides services or for whom the
employee performs covered services.
(6) Threat of violence.--The term ``threat of violence''
means a statement or conduct that--
(A) causes an individual to fear for such
individual's safety because there is a reasonable
possibility the individual might be physically injured;
and
(B) serves no legitimate purpose.
(7) Alarm.--The term ``alarm'' means a mechanical,
electrical, or electronic device that does not rely upon an
employee's vocalization in order to alert others.
(8) Dangerous weapon.--The term ``dangerous weapon'' means an
instrument capable of inflicting death or serious bodily
injury, without regard to whether such instrument was designed
for that purpose.
(9) Engineering controls.--
(A) In general.--The term ``engineering controls''
means an aspect of the built space or a device that
removes a hazard from the workplace or creates a
barrier between a covered employee and the hazard.
(B) Inclusions.--For purposes of reducing workplace
violence hazards, the term ``engineering controls''
includes electronic access controls to employee
occupied areas, weapon detectors (installed or
handheld), enclosed workstations with shatter-resistant
glass, deep service counters, separate rooms or areas
for high-risk patients, locks on doors, removing access
to or securing items that could be used as weapons,
furniture affixed to the floor, opaque glass in patient
rooms (which protects privacy, but allows the health
care provider to see where the patient is before
entering the room), closed-circuit television
monitoring and video recording, sight-aids, and
personal alarm devices.
(10) Environmental risk factors.--
(A) In general.--The term ``environmental risk
factors'' means factors in the covered facility or area
in which a covered service is performed that may
contribute to the likelihood or severity of a workplace
violence incident.
(B) Clarification.--Environmental risk factors may be
associated with the specific task being performed or
the work area, such as working in an isolated area,
poor illumination or blocked visibility, and lack of
physical barriers between individuals and persons at
risk of committing workplace violence.
(11) Patient-specific risk factors.--The term ``patient-
specific risk factors'' means factors specific to a patient
that may increase the likelihood or severity of a workplace
violence incident, including--
(A) a patient's treatment and medication status, and
history of violence and use of drugs or alcohol; and
(B) any conditions or disease processes of the
patient that may cause the patient to experience
confusion or disorientation, be non-responsive to
instruction, behave unpredictably, or engage in
disruptive, threatening, or violent behavior.
(12) Secretary.--The term ``Secretary'' means the Secretary
of Labor.
(13) Work practice controls.--
(A) In general.--The term ``work practice controls''
means procedures and rules that are used to effectively
reduce workplace violence hazards.
(B) Inclusions.--The term ``work practice controls''
includes--
(i) assigning and placing sufficient numbers
of staff to reduce patient-specific type 2
violence hazards;
(ii) provision of dedicated and available
safety personnel such as security guards;
(iii) employee training on workplace violence
prevention methods and techniques to de-
escalate and minimize violent behavior; and
(iv) employee training on procedures for
response in the event of a workplace violence
incident and for post-incident response.
TITLE II--AMENDMENTS TO THE SOCIAL SECURITY ACT
SEC. 201. APPLICATION OF THE WORKPLACE VIOLENCE PREVENTION STANDARD TO
CERTAIN FACILITIES RECEIVING MEDICARE FUNDS.
(a) In General.--Section 1866 of the Social Security Act (42 U.S.C.
1395cc) is amended--
(1) in subsection (a)(1)--
(A) in subparagraph (X), by striking ``and'' at the
end;
(B) in subparagraph (Y), by striking the period at
the end and inserting ``; and''; and
(C) by inserting after subparagraph (Y) the following
new subparagraph:
``(Z) in the case of hospitals that are not otherwise subject
to the Occupational Safety and Health Act of 1970 (or a State
occupational safety and health plan that is approved under
18(b) of such Act) and skilled nursing facilities that are not
otherwise subject to such Act (or such a State occupational
safety and health plan), to comply with the Workplace Violence
Prevention Standard (as promulgated under section 101 of the
Workplace Violence Prevention for Health Care and Social
Service Workers Act).''; and
(2) in subsection (b)(4)--
(A) in subparagraph (A), by inserting ``and a
hospital or skilled nursing facility that fails to
comply with the requirement of subsection (a)(1)(Z)
(relating to the Workplace Violence Prevention
Standard)'' after ``Bloodborne Pathogens standard)'';
and
(B) in subparagraph (B)--
(i) by striking ``(a)(1)(U)'' and inserting
``(a)(1)(V)''; and
(ii) by inserting ``(or, in the case of a
failure to comply with the requirement of
subsection (a)(1)(Z), for a violation of the
Workplace Violence Prevention standard referred
to in such subsection by a hospital or skilled
nursing facility, as applicable, that is
subject to the provisions of such Act)'' before
the period at the end.
(b) Effective Date.--The amendments made by subsection (a) shall
apply beginning on the date that is 1 year after the date of issuance
of the interim final standard on workplace violence prevention required
under section 101.
Purpose and Summary
The purpose of H.R. 1195, the Workplace Violence Prevention
for Health Care and Social Service Workers Act, is to direct
the Occupational Safety and Health Administration (OSHA) to
issue, within 42 months of the date of enactment, a federal
workplace violence prevention standard to protect workers in
the health care and social services sectors. H.R. 1195 also
requires hospitals and skilled nursing facilities that receive
Medicare funds and that are operated by state or local
governments in states that are not subject to the jurisdiction
of the Occupational Safety and Health Act of 1970 (OSH Act) or
a state OSHA plan to comply with the workplace violence
prevention standard to be issued by OSHA.
Health care and social service workers are at high risk of
assault by patients, clients, and members of the public. Peer
reviewed studies and Bureau of Labor Statistics (BLS) data show
high injury rates from workplace violence for these workers.\1\
BLS statistics indicate public employees are at even higher
risk, but they are not covered by Federal or state OSHA in 24
states. Furthermore, assaults on health care and social service
workers are underreported because reporting practices are
burdensome; many health care and social service workers
perceive such violence as part of their job; and, they are
often disciplined for reporting assaults.\2\
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\1\Bureau of Labor Statistics, Survey of Occupational Injuries and
Illnesses (2019), https://www.bls.gov/web/osh/cd_r8.htm.
\2\Sentinel Event Alert, Physical and Verbal Violence Against
Health Care Workers 2 (2018), https://www.jointcommission.org/assets/1/
18/SEA_59_Workplace_violence_4_13_18_FINAL.pdf.
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Federal OSHA does not currently have an enforceable
standard that requires employers to adopt or implement a
workplace violence prevention program, and it typically takes
OSHA decades to issue final standards absent congressional
direction. Voluntary efforts alone have proven insufficient
even though OSHA has issued and updated voluntary guidelines
delineating best practices for preventing violence in health
care and social service settings, and OSHA has provided
employers with compliance assistance for over 20 years.
Government statistics show the problem is growing in the health
care and social service sectors.
H.R. 1195 would ensure that health care and social service
workplaces adopt violence prevention plans to prevent or
mitigate violent incidents in the workplace using proven
prevention techniques tailored to the risks in a given
workplace. An OSHA standard would strengthen protections for
workers where employers are failing to take the appropriate
protective measures or have no kind of plan to address the
problem.
Committee Action
115TH CONGRESS
On March 8, 2018, Representative Ro Khanna (D-CA-17)
introduced H.R. 5223, the Health Care Workplace Violence
Prevention Act. The bill would have required OSHA to address
workplace violence in health care facilities by issuing a
workplace violence prevention standard within two years of
enactment that would require certain health care employers to
adopt a comprehensive plan for protecting workers and other
personnel from workplace violence. The bill was referred to the
Committee on Education and the Workforce as well as the
Committees on Energy and Commerce and Ways and Means.
On November 16, 2018, Representative Joe Courtney (D-CT-2)
introduced H.R. 7141, the Workplace Violence Prevention for
Health Care and Social Service Workers Act. The bill directed
OSHA to issue a workplace violence prevention standard that
requires certain employers in the health care and social
service sectors to develop and implement a comprehensive plan
for protecting workers from workplace violence. H.R. 7141
directed OSHA to issue an interim final standard within one
year of enactment, to propose a final standard within two years
of enactment, and to issue a final standard within 42 months of
the date of enactment. The bill notes that OSHA standard
should, at a minimum, be based on the OSHA Guidelines for
Preventing Workplace Violence for Healthcare and Social Service
Workers. The bill was referred to the Committee on Education
and the Workforce as well as the Committees on Energy and
Commerce and Ways and Means.
116TH CONGRESS
On February 19, 2019, Representative Courtney introduced
H.R. 1309, the Workplace Violence Prevention for Health Care
and Social Service Workers Act.
The bill directed OSHA to issue a workplace violence
prevention standard that requires certain employers in the
health care and social service sectors to develop and implement
a comprehensive plan for protecting workers from workplace
violence. H.R. 1309 directed OSHA to issue an interim final
standard within one year of enactment, to propose a final
standard within two years of enactment, and to issue a final
standard within 42 months of the date of enactment. The OSHA
standard should, at a minimum, be based on the OSHA Guidelines
for Preventing Workplace Violence for Healthcare and Social
Service Workers.\3\ The bill was referred to the Committee on
Education and Labor, the Committee on Energy and Commerce, and
the Committee on Ways and Means.
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\3\Occupational Safety and Health Administration, Guidelines for
Preventing Workplace Violence for Health Care and Social Service
Workers, 5, (2016), https://www.osha.gov/Publications/osha3148.pdf.
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On February 27, 2019, the Workforce Protections
Subcommittee of the Committee on Education and Labor held a
legislative hearing entitled ``Caring for the Caregivers:
Protecting Health Care and Social Service Workers from
Workplace Violence'' (2019 WP Subcommittee Hearing). The
hearing assessed the severity of workplace violence, examined
the steps taken by OSHA, and considered the merits of
legislation requiring OSHA to issue a violence prevention
standard compared with continued reliance on voluntary
guidelines. The Subcommittee heard testimony on the hazards of
workplace violence faced by health care and social service
workers, successful strategies for addressing and mitigating
the hazards, and how the provisions outlined in H.R. 1309 would
make workplaces safer. Witnesses included Angelo McClain, PhD,
LICSW, Chief Executive Officer, National Association of Social
Workers; Patricia Moon-Updike, RN, former Psychiatric RN in the
Child and Adolescent Treatment Unit of the Behavioral Health
Division of Milwaukee County, representing the American
Federation of Teachers; Dr. Jane Lipscomb, an expert on
workplace violence; and Manesh K. Rath, a partner at the law
firm Keller and Heckman.
On March 14, 2019, Senator Tammy Baldwin (D-WI) introduced
S. 851, the Workplace Violence Prevention for Health Care and
Social Service Workers Act, which was the Senate companion to
H.R. 1309. S. 851 directed OSHA to issue an occupational safety
and health standard that requires covered employers within the
health care and social service industries to develop and
implement a comprehensive workplace violence prevention plan.
The bill was referred to the Senate Committee on Health,
Education, Labor and Pensions.
On June 11, 2019, the House Committee on Education and
Labor met for a full committee markup of H.R. 1309, the
Workplace Violence Prevention for Health Care and Social
Service Workers Act, and reported it favorably, as amended, to
the House of Representatives by a vote of 26 ayes and 18 nays.
The Committee on Education and Labor considered the
following amendments to H.R. 1309:
(1) An amendment in the nature of a substitute (ANS) was
offered by Representative Courtney. The ANS incorporated the
provisions of H.R. 1309 with the following modifications:
established procedures for determining which
covered employer or employers have responsibility for
implementing and complying with the provisions of the
standard in workplaces with multiple employers;
excluded disclosure of ``a patient's
psychiatric condition'' as part of reviewing ``patient-
specific risk factors'' to better protect the
confidential information of patients;
allowed annual refresher training conducted
by live video conferencing if in-person training is
impracticable; and
made technical corrections to ensure that
congressional intent is clear.
(2) An amendment was offered by Representative Haley
Stevens (D-MI-11) that required OSHA to provide a 30-day public
comment period prior to the issuance of an interim final
standard. The amendment was adopted by a voice vote.
(3) A substitute amendment to the ANS was offered by
Representative Bradley Byrne (R-AL-1). Amongst its provisions,
the amendment required OSHA to issue a final workplace violence
prevention standard; however, it failed to: include any
deadline for issuance of a final standard; require the issuance
of an interim final standard prior to issuance of a final
standard; require that an annual summary of violent incidents
be transmitted to OSHA; include language prohibiting employers
from retaliating against an employee for reporting a workplace
violence incident or for seeking assistance or intervention
from the employer, law enforcement, emergency services, or a
state or local agency; and provide OSHA with authority to
administratively enforce, and order abatement of an employer's
violations of the anti-retaliation standard. In other words, it
effectively removed any of the teeth that the base bill
included. The amendment was rejected by a vote of 20 yeas and
25 nays.
(4) The ANS, as amended, was adopted by voice vote, and the
bill, as amended, was reported favorably to the House by a vote
of 26 ayes and 18 nays.
H.R. 1309 was passed by the House on November 18, 2019 by a
vote of 251 yeas and 158 nays.
117TH CONGRESS
On March 11, 2021, Representative Courtney introduced H.R.
1195, the Workplace Violence Prevention for Health Care and
Social Service Workers Act. It currently has 125 cosponsors:
120 Democrats and 5 Republicans.
The bill directs OSHA to issue a workplace violence
prevention standard that requires certain employers in the
health care and social service sectors to develop and implement
a comprehensive plan for protecting workers from workplace
violence. H.R. 1195 directs OSHA to issue an interim final
standard within one year of enactment, to propose a final
standard within two years of enactment, and to issue a final
standard within 42 months of the date of enactment. The OSHA
standard should, at a minimum, be based on the OSHA Guidelines
for Preventing Workplace Violence for Healthcare and Social
Service Workers (Guidelines.)\4\ The bill was referred to the
Committee on Education and Labor as well as the Committees on
Energy and Commerce and Ways and Means.
---------------------------------------------------------------------------
\4\Occupational Safety and Health Administration, Guidelines for
Preventing Workplace Violence for Health Care and Social Service
Workers, 5 (2016), https://www.osha.gov/Publications/osha3148.pdf.
---------------------------------------------------------------------------
H.R. 1195 is substantially similar to H.R. 1309 as passed
in the House in the 116th Congress. Changes to H.R. 1195, as
introduced, include the removal of a provision added during
floor consideration of H.R. 1309 dealing with compliance
assistance and a provision regarding training for victims of
torture, trafficking, and domestic violence.
On March 11, 2021, the Subcommittee on Workforce
Protections held a hearing entitled ``Clearing the Air: Science
Based Strategies to Protect Workers from COVID-19 Infections''
(2021 WP Subcommittee Hearing). With regard to H.R. 1195, the
Subcommittee heard testimony from Pascaline Muhindura, a nurse
at Research Medical Center, Kansas City, MO, who described the
hazards nurses in her hospital face from workplace violence,
and the former Assistant Secretary for OSHA, Dr. David
Michaels, who discussed the decades it often takes OSHA to
issue a new standard.
On March 24, 2021, the House Committee on Education and
Labor met for a full committee markup of H.R. 1195, the
Workplace Violence Prevention for Health Care and Social
Service Workers Act, and reported it favorably, as amended, to
the House of Representatives by a vote of 27 ayes and 20 nays.
The Committee on Education and Labor considered the
following amendments to H.R. 1195:
(1) An amendment in the nature of a substitute (ANS) was
offered by Representative Courtney. The ANS incorporates the
provisions of H.R. 1195 with the following modifications:
Exempts the Interim Final Standard from
Executive Order 12866, related to regulatory planning
and review; and
Conditions the requirement that OSHA's final
standard is no less protective than a state OSHA plan
standard on the Secretary's finding that a state's
requirements are feasible.
(2) A substitute amendment to the ANS was offered by
Representative Tim Walberg (R-MI-7). Amongst its provisions,
the amendment requires OSHA to issue a final workplace violence
prevention standard, however, it fails to: include any
deadline; precede the final standard with an interim final
standard; require that an annual summary of violent incidents
be transmitted to OSHA; include language prohibiting employers
from retaliating against an employee for reporting a workplace
violence incident or for seeking assistance or intervention
from the employer, law enforcement, emergency services, or a
state or local agency; and order abatement of an employer's
violations of the anti-retaliation standard. As with the
Republican ANS offered in the 116th Congress, it effectively
removes any of the teeth that the base bill included. The
amendment was rejected by a vote of 20 yeas and 27 nays.
(3) The ANS was adopted by voice vote, and the bill, as
amended, was reported favorably to the House by a vote of 27
yeas and 20 nays.
Committee Views
The Committee on Education and Labor (Committee) is
committed to protecting the health and safety of our nation's
workers. According to a 2016 Government Accountability Office
(GAO) report entitled Workplace Safety and Health: Additional
Efforts Needed to Help Protect Health Care Workers from
Workplace Violence, workplace violence is a serious concern for
15 million health care workers in the United States.\5\
Although health care facilities are viewed as a place to get
well, the reality is that day-to-day work in these facilities
exposes many employees to an unacceptably high risk of violent
injury--originating in almost all cases from patients, clients
and residents. Federal injury data shows that the rates of
workplace violence at health care facilities are high and
rising. At state-run nursing and residential care facilities,
the rates of serious injuries are higher than those in steel
foundries, coal mines, hog farms or state prisons. OSHA does
not require employers to have workplace violence prevention
programs, but several states have enacted laws to better
protect health care workers. Following the aforementioned GAO
report and petitions for rulemaking, OSHA started work on an
enforceable violence prevention standard at the end of the
Obama Administration. However, all progress on a workplace
violence prevention standard ceased during the four-year period
between January 2017 and January 2021.
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\5\United States Government Accountability Office, Workplace Safety
and Health: Additional Efforts Needed to Help Protect Health Care
Workers from Workplace Violence (2016), https://www.gao.gov/assets/680/
675858.pdf.
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H.R. 1195, the Workplace Violence Prevention for Health
Care and Social Service Workers Act, was introduced to require
OSHA to issue an interim final standard within one year, to
issue a workplace violence prevention standard within 42 months
of the date of enactment, and to specify the main elements that
must be included in an OSHA standard.
H.R. 1195 has been endorsed by: the AFL-CIO; American
Federation of State; County and Municipal Employees; American
Federation of Government Employees; American Federation of
Teachers; American Industrial Hygiene Association; Alliance for
Retired Americans; American Association for Psychoanalysis in
Clinical Social Work; American College of Emergency Physicians;
American College of Occupational and Environmental Medicine;
American Counseling Association; American Nurses Association;
American Psychiatric Association; American Public Health
Association; American Society of Radiologic Technologists;
American Society of Safety Professionals; Association of
Women's Health; Obstetric and Neonatal Nurses; Coalition of
Labor Union Women; Emergency Nurses Association; International
Association of Fire Fighters; International Association of
Forensic Nurses; International Association of Machinists and
Aerospace Workers; Midstate Council for Occupational Safety and
Health; National Association of Emergency Medical Technicians;
National Association of Social Workers; National Nurses United;
Philadelphia Area Project on Occupational Safety and Health;
Public Citizen; Service Employees International Union; United
Auto Workers; United Steelworkers; and Worksafe.
Health Care and Social Service Workers Are Paying the Price of Inaction
According to the BLS, in 2019, hospital workers were nearly
five times as likely to suffer a serious workplace violence
injury than all other workers, while workers in psychiatric
hospitals are at 34 times greater risk of workplace violence
injuries compared with all other workers.\6\ BLS reports 20,870
health and social service workers had injuries so severe they
lost workdays from injuries due to workplace violence in 2019,
amounting to 70 percent of all workplace violence injuries
across all industries.\7\ The total number of the most severe
workplace violence injuries in the health care and social
service industry, which are those requiring days away from
work, has nearly doubled since 2011 (see Chart 1).\8\
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\6\Bureau of Labor Statistics, Survey of Occupational Injuries and
Illnesses (2019), https://www.bls.gov/web/osh/cd_r8.htm (incidence
rates of violence for nonfatal occupational injuries and illnesses
involving days away from work).
\7\Bureau of Labor Statistics, Survey of Occupational Injuries and
Illnesses (2019), https://www.bls.gov/iif/oshwc/osh/case/cd_r4_2019.htm
(number of nonfatal occupational injuries and illnesses involving days
away from work by industry and selected events or exposures leading to
injury or illness, private industry).
\8\Bureau of Labor Statistics, Survey of Occupational Injuries and
Illnesses (2019), generated from online database of ``Nonfatal cases
involving days away from work: selected characteristics (2011
forward),'' https://www.bls.gov/iif/data.htm. See Appendix A attached
to this Committee Report.
Several categories of health care and social service
workers suffer especially high risk of workplace violence.
While the overall rate of workplace assault-related injuries
for private sector general industry workers was 4.4 per 10,000
in 2019, the workplace violence injury rate per 10,000 for
licensed practical and vocational nurses was 16.4, registered
nurses 14, social workers 16.1, nursing assistants 45.5, and
psychiatric aides 247.2.\9\
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\9\Bureau of Labor Statistics, Survey of Occupational Injuries and
Illnesses (2019), https://www.bls.gov/web/osh/cd_r100.htm (incidence
rates of violence for nonfatal occupational injuries and illnesses
involving days away from work).
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Studies have found between 19-30 percent of hospital
workers report being physically assaulted at work, and 70
percent of psychiatric hospital workers reported being
assaulted during the past year.\10\
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\10\United States Government Accountability Office, Workplace
Safety and Health: Additional Efforts Needed to Help Protect Health
Care Workers from Workplace Violence 12 (2016), https://www.gao.gov/
assets/680/675858.pdf.
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Emergency rooms are also high-risk workplaces. According to
a 2018 survey conducted by American College of Emergency
Physicians, nearly half of emergency physicians polled reported
being physically assaulted, with more than 60 percent of those
occurring within the past year. Nearly 7 in 10 emergency
physicians say emergency department violence has increased
within the past 5 years.\11\
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\11\Letter from American College of Emergency Physicians President
Vidor Friedman to Representative Joe Courtney (Mar. 28, 2019), https://
www.acep.org/globalassets/new-pdfs/advocacy/acep---workplace-violence-
prevention-letter-of-support.pdf.
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The Cleveland Clinic has been forced to take action against
violence in their emergency rooms:
When you visit the Cleveland Clinic emergency
department these days--whether as a patient, family
member or friend--a large sign directs you toward a
metal detector. An officer inspects all bags and then
instructs you to walk through the metal detector. In
some cases, a metal wand is used--even on patients who
come in on stretchers. Cleveland Clinic officials say
they confiscate thousands of weapons like knives,
pepper spray and guns each year. The metal detectors
were installed in response to what CEO Tom Mihaljevic
is calling an epidemic.\12\
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\12\Marlene Harris-Taylor, Facing Escalating Workplace Violence,
Hospital Employees Have Had Enough, National Public Radio (Apr. 8,
2019, 4:26 PM), https://www.npr.org/sections/health-shots/2019/04/08/
709470502/facing-escalating-workplace-violence-hospitals-employees-
have-had-enough.
The problem of workplace violence against health care
workers is getting worse. According to BLS statistics, from
2008 to 2019, the incidence rate for injuries resulting from
workplace violence in psychiatric and substance abuse hospitals
increased by 117 percent. The rate more than doubled in private
hospitals, increased in home health care services by 58
percent, and increased by 55 percent in nursing and residential
care facilities, while the overall rate for private sector
health care and social service workers went up 69 percent over
the same period.\13\
---------------------------------------------------------------------------
\13\U.S. Department of Labor, Bureau of Labor Statistics, Survey of
Occupational Injuries and Illnesses (2008), https://www.bls.gov/iif/
oshwc/osh/case/ostb2090.pdf, (2010), https://www.bls.gov/web/osh/
cd_r8.htm (incidence rates of violence for nonfatal occupational
injuries and illnesses involving days away from work).
---------------------------------------------------------------------------
Pascaline Muhindura, a nurse at Research Medical Center,
Kansas City, MO, testified at the 2021 WP Subcommittee Hearing
that during the COVID-19 pandemic:
The frequency of violent incidents in the workplace
has increased. [National Nurses United's] most recent
survey also found that workplace violence has been
increasing during the pandemic--about 22% of hospital
RNs reported a slight or substantial increase in
workplace violence during the pandemic.\14\
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\14\Clearing the Air: Science Based Strategies to Protect Workers
from COVID-19 Infections, Hearing Before the Subcomm. on Workforce
Protections of the H. Comm. on Educ. and Labor, 117th Cong. (2021)
(Written testimony of Pascaline Muhindura at 6).
The National Nurses United survey attribute the increase in
workplace violence during the COVID pandemic on decreased
staffing levels, changes in patient population, visitor
restrictions (including visitors refusing to adhere to
universal masking policies), increased wait times, and
untreated conditions after loss of insurance, which lead to
agitation, disorientation, or combativeness.\15\
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\15\National Nurses United, Injury to None Preventing Workplace
Violence to Protect Health Care Workers and Their Patients (Feb. 2021).
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Dr. Angelo McClain, Executive Director of the National
Association of Social Workers, testified at the 2019 WP
Subcommittee Hearing that social workers are also seeing
increasing numbers of assaults:
We are seeing more violence as there is more
substance use and more critical kind of situations we
are going into and we know with the opioid crisis,
child welfare removals have gone up 20 percent.
So, it's just working in those environments there's
more opportunity or more tendency to confront violence
situations.\16\
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\16\Caring for our Caregivers: Protecting Health Care and Social
Service Workers from Workplace Violence, YouTube (Mar. 1, 2019),
https://www.youtube.com/watch?v=3B9eMBSBKm0 (question and answer
between Rep. Courtney and McClain at 1:21:37).
Workplace violence against this nation's caregivers not
only causes serious physical injuries and sometimes death, but
it can also lead to post-traumatic stress disorder (PTSD).
Patricia Moon Updike, who testified at the 2019 WP Subcommittee
Hearing, was assaulted by a patient in 2015 while working as a
nurse in the Behavioral Health Division of Milwaukee County in
the Child and Adolescent Treatment Unit. Not only did she
---------------------------------------------------------------------------
suffer serious physical injuries, but also PTSD. She testified:
I woke up after surgery with a large collar around my
neck and I was fortunate. I was in pain. I was bruised
and I was in shock, but my trachea was intact and I was
breathing on my own.
Two days later the nightmares started. I couldn't
sleep. I figured it would pass. However, this was a
different kind of feeling than I had ever experienced
before. As time passed, I became more scared of people
and children being unpredictable.
Since this injury in 2015, I have been diagnosed with
moderate to severe PTSD, moderate anxiety, insomnia,
depressive disorder and social phobia related to this
incident. I suffer from terrible memory problems. I
cannot wear a seat belt properly, it comes too close to
my neck and I have to wear it around my waist. I have
not been to a mall, a concert or a sporting event since
this assault due to my fear of crowds.\17\
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\17\Caring for our Caregivers: Protecting Health Care and Social
Service Workers from Workplace Violence, Hearing Before the Subcomm. on
Workforce Protections of the H. Comm. on Educ. and Labor, 116th Cong.
(2019) (Written testimony of Patricia Moon-Updike at 3) [Hereinafter
Moon-Updike Testimony].
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Workplace Violence is More Severe in State and Local Government Health
Care and Social Service Settings
In 2017, state government health care and social service
workers were almost 9 times more likely to be injured by an
assault than private sector health care workers (128.9 vs. 14.7
per 10,000 workers). Each year, nearly 7 percent of psychiatric
aides employed in state and local government mental health
facilities experienced violence-related injuries causing them
to lose time from work. State psychiatric aides suffered an
extraordinarily high rate of assault-related injuries in 2019--
1,460.1 per 10,000 workers. State mental health and substance
abuse social workers averaged 155 per 10,000 workers over the
past five years; psychiatric technicians are at 429.6 per
10,000 workers; nursing, psychiatric and home health aides at
412.8 per 10,000 workers; health care support occupations at
506.6 per 10,000 workers; and nursing assistants at 132.1 per
10,000 workers.\18\
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\18\Bureau of Labor Statistics, Survey of Occupational Injuries and
Illnesses (2019), generated from online database of ``Nonfatal cases
involving days away from work: selected characteristics (2011
forward),'' https://www.bls.gov/iif/data.htm. See Appendix A attached
to this Committee Report.
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In 24 states, nearly 8 million workers employed by state
and local governments\19\ are not covered by Federal or state
OSHA plans, and thus have no legal right to a safe
workplace.\20\ Under Section 3(b) of the OSH Act, OSHA may not
enforce its standards with respect to state and local
government employers in those 24 states.\21\
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\19\Death on the Job: The Toll of Neglect, AFL-CIO, 23, (2019),
https://aflcio.org/reports/death-job-toll-neglect-2019.
\20\Alabama, Arkansas, Colorado, Delaware, District of Columbia,
Florida, Georgia, Idaho, Kansas, Louisiana, Massachusetts, Mississippi,
Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio,
Oklahoma, Pennsylvania, Rhode Island, South Dakota, Texas, West
Virginia, Wisconsin.
\21\29 U.S.C. Sec. 652 (5) states: ``The term `employer' means a
person engaged in a business affecting commerce who has employees, but
does not include the United States (not including the United States
Postal Service) or any State or political subdivision of a State.''
---------------------------------------------------------------------------
In the 2019 WP Subcommittee Hearing, Patricia Moon-Updike
testified about the predicament that public employees face
without OSHA protections:
There was no state agency responsible for protecting
workers at my facility and that is still the case
today. Workers were and are still getting hurt--and no
one knows about it.
There are no safety protocols in place and the
employer has no incentive to implement them, or even
record assaults. How can health care employees trust
that a self-governing, bottom-line obsessed, patient
satisfaction-oriented facility has the employees' lives
as a priority if not directly being overseen by OSHA to
do so?
All workers deserve workplace safety protection.
State and local public employees do some very difficult
and dangerous jobs, including working in jails and
prisons and caring for forensic patients (persons found
unfit to be tried for a crime or found not guilty due
to mental illness) in state psychiatric hospitals.
These workers face risks that are generally not found
in the private sector. They deserve protection from
OSHA.\22\
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\22\Caring for our Caregivers: Protecting Health Care and Social
Service Workers from Workplace Violence, Hearing Before the Subcomm. on
Workforce Protections of the H. Comm. on Educ. and Labor, 116th Cong.
(2019) (forthcoming Moon-Updike response to a question for the record
from Rep. Alma Adams).
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Episodes of Workplace Violence of all Categories are Underreported and
Workers Fear Retaliation for Reporting
Despite the BLS data showing a high rate of injuries to
health care and social service workers from workplace violence,
studies indicate these numbers are likely to represent a
significant undercount of injuries resulting from assaults.
According to the GAO, estimates of the percentage of injury
cases that are formally reported ranged from 7 to 42 percent.
Only 30 percent of nurses report incidents of workplace
violence after being assaulted.\23\ Among emergency department
nurses, the reporting rate is 35 percent\24\ and among
emergency department physicians, the reporting rate is only 26
percent.\25\ Other reports have found overall underreporting as
high as 88 percent.\26\
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\23\Judith E. Arnetz, et. al., Underreporting of Workplace
Violence: Comparison of Self-Report and Actual Documentation of
Hospital Incidents, 63 Workplace Health and Safety 207 (2015).
\24\Emergency Nurses Association Institute for Emergency Nursing
Research, Emergency Department Violence Surveillance Study, 25 (Nov.
2011).
\25\M. Benham, et al., Violence in the Emergency Department: A
National Survey of Emergency Medicine Residents and Attending
Physicians, 40 Journal of Emergency Medicine 565, 568 (2011).
\26\Judith E. Arnetz, et. al., Underreporting of Workplace
Violence: Comparison of Self-Report and Actual Documentation of
Hospital Incidents, 63 Workplace Health and Safety 208 (2015).
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Underreporting is due in part to thinking that enduring
violence is ``part of the job.''\27\ Moreover, workers often do
not report injuries to employers because the reporting
mechanism is burdensome, management discourages reporting, or
they fear they will be blamed for an altercation involving a
patient or resident. Other reasons include inconvenience, fear
of retaliation, unclear reporting policies, and expectation
that nothing will be done.\28\ Sometimes workers are uncertain
what constitutes violence, because they often believe that
their assailants are not responsible for their actions due to
medical conditions. Some employers discourage reporting if they
believe it will increase workers' compensation insurance
rates.\29\
---------------------------------------------------------------------------
\27\Sentinel Event Alert, Physical and Verbal Violence Against
Health Care Workers, 2 (2018), https://www.jointcommission.org/assets/
1/18/SEA_59_Workplace_violence_4_13_18_FINAL.pdf.
\28\Karen Gabel Speroni, et al., Incidence and Cost of Nurse
Workplace Violence Perpetrated by Hospital Patients or Patient
Visitors, 41 Journal of Emergency Nursing 218, 227 (2014).
\29\Darryl Beard and Michelle Conley, Operation Safe Workplace: A
Multidisciplinary Approach to Workplace Violence 11 (2017), https://
www.jointcommission.org/assets/1/6/Aria_Workplace_Safety.pdf.
---------------------------------------------------------------------------
Ms. Moon-Updike confirmed these problems in her testimony
at the 2019 WP Subcommittee Hearing:
I don't know how many of the general public are aware
that there is a code of silence in the nursing
profession that you don't report. It is highly
underreported the injuries in the nursing profession.
It is, and excuse my vernacular, but it is pretty much
suck it up and take it.\30\
---------------------------------------------------------------------------
\30\Caring for our Caregivers: Protecting Health Care and Social
Service Workers from Workplace Violence, YouTube (Mar. 1, 2019),
https://www.youtube.com/watch?v=3B9eMBSBKm0 (question and answer
between Rep. Jayapal and Moon-Updike at 00:54:46).
Some nurses describe being blamed for altercations.
According to an interview with Michelle Mahon, RN, a Nursing
---------------------------------------------------------------------------
Practice Representative of National Nurses United:
``What happens if they do report it?'' she says. ``In
some cases, unfortunately, they are treated as if they
are the ones who don't know how to do their job. Or
that it's their fault that this happened.''
``There's a lot of focus on de-escalation
techniques,'' Mahon adds. ``Those are helpful tools,
but oftentimes they are used to blame workers.''\31\
---------------------------------------------------------------------------
\31\Marlene Harris-Taylor, Facing Escalating Workplace Violence,
Hospital Employees Have Had Enough, National Public Radio (Apr. 8,
2019), https://www.npr.org/sections/health-shots/2019/04/08/709470502/
facing-escalating-workplace-violence-hospitals-employees-have-had-
enough.
And Ms. Moon-Updike confirmed the problem of retaliation in
---------------------------------------------------------------------------
her testimony:
it is not--it is not very well tolerated to report
when you have been injured because often it falls back
onto you as it was your fault for not being careful
enough or using a protocol.\32\
---------------------------------------------------------------------------
\32\Caring for our Caregivers: Protecting Health Care and Social
Service Workers from Workplace Violence, YouTube (Mar. 1, 2019),
https://www.youtube.com/watch?v=3B9eMBSBKm0 (question and answer
between Rep. Jayapal and Moon-Updike at 00:55:22).
The violent incident log, required under H.R. 1195, would
address the problem of underreporting. As Dr. Jane Lipscomb
stated in response to a Question for the Record following the
---------------------------------------------------------------------------
2019 WP Subcommittee Hearing:
A required violent incident log would reduce the
well-recognized problem of underreporting of incidents
of workplace violence. A more complete reporting and
analysis of incidents of workplace violence would allow
health care organizations to understand the magnitude
of the problem in their workplace and identify risk
factors for violence that could then be prevented by
the implementation of appropriate hazard controls.\33\
---------------------------------------------------------------------------
\33\Caring for our Caregivers: Protecting Health Care and Social
Service Workers from Workplace Violence, Hearing Before the Subcomm. on
Workforce Protections of the H. Comm. on Educ. and Labor, 116th Cong.
(2019) (forthcoming Lipscomb response to a question for the record from
Rep. Alma Adams).
---------------------------------------------------------------------------
Workplace Violence in Health Care and Social Service Settings is
Predictable and Preventable
Health care and social service workers face an elevated
risk of work-related assaults, which results primarily from the
violent behavior of their patients, clients, residents (or
family members accompanying them). While no specific diagnosis
or type of patient predicts specific incidents of future
violence, studies consistently demonstrate that inpatient and
acute psychiatric services, geriatric long-term care settings,
high volume urban emergency departments, and residential and
day social services present the highest risks. A prior history
of violent behavior will also raise the likelihood that a
patient or client will behave violently. Pain, devastating
prognoses, long waiting times, unfamiliar surroundings, altered
mental status associated with dementia, delirium or mind-and
mood-altering medications and drugs, and disease progression
can cause agitation and violent behaviors in patients, clients,
or residents.\34\
---------------------------------------------------------------------------
\34\Occupational Safety and Health Administration, Guidelines for
Preventing Workplace Violence for Health Care and Social Service
Workers, 5 (2016), https://www.osha.gov/Publications/osha3148.pdf.
---------------------------------------------------------------------------
Workplace violence traditionally falls into four types:
Type 1 involves criminal intent, such as an assault in
connection with a robbery; Type 2 involves clients, patients,
or residents; Type 3 involves a coworker; and Type 4 is
perpetrated by someone who knows or has a personal relationship
with an employee at a workplace.\35\ OSHA's Guidelines and a
number of academic studies have identified workplace violence
prevention plans as an effective tool to reduce or mitigate
injuries from workplace violence--especially violence involving
clients, patients or residents. Unlike some forms of violence,
Type 2 violence can be anticipated and managed.
---------------------------------------------------------------------------
\35\Occupational Safety and Health Administration, U.S. Department
of Labor Directive CPL 02-01-058, Enforcement Procedures and Scheduling
for Occupational Exposure to Workplace Violence (2017), https://
www.osha.gov/OshDoc/Directive_pdf/CPL_02-01-058.pdf.
---------------------------------------------------------------------------
A workplace violence prevention plan requires risk
assessment, implementation of controls, training,
recordkeeping, and program evaluation. Controls may include
engineering controls or administrative (work practice)
controls. Engineering controls may include enhanced security
and alarms, panic buttons, better exit routes, and better
lighting. Administrative, or work practice controls, affect the
way employees perform their job responsibilities and may
include such measures as reducing crowding and waiting time,
additional staffing, and implementing emergency response
procedures.
While it is not the role of OSHA to dictate standards of
care in health care settings, the voluntary OSHA Guidelines
recommend the use of Trauma Informed Care (TIC) as a treatment
technique and work practice control that has reduced violence
in psychiatric settings.\36\ TIC is an intervention that
recognizes that a patient or client's history of trauma may
impact their response to services.\37\
---------------------------------------------------------------------------
\36\Id. at 7.
\37\Substance Abuse and Mental Health Services Administration,
Trauma-Informed Care in Behavioral Health Services xix (2014), https://
store.samhsa.gov/system/files/sma14-4816.pdf.
---------------------------------------------------------------------------
Training may also help mitigate or prevent assaults. For
example, training in de-escalation techniques has been shown to
be effective.\38\
---------------------------------------------------------------------------
\38\Judith E. Arnetz, et al., Preventing Patient-to-Worker Violence
in Hospitals: Outcome of a Randomized Controlled Intervention, 59
Journal of Occupational and Environmental Medicine 18 (2017), https://
www.ncbi.nlm.nih.gov/pmc/articles/PMC5214512/pdf/nihms-822608.pdf.
---------------------------------------------------------------------------
The Joint Commission, which accredits health care
institutions, recommends:
After a review of all pertinent data relating to
workplace violence, develop evidence-based initiatives
and interventions (when possible) to prevent and
control workplace violence. Tailor specific
interventions to problems identified at the local
level.\39\
---------------------------------------------------------------------------
\39\Sentinel Event Alert, Physical and Verbal Violence Against
Health Care Workers 5 (2018), https://www.jointcommission.org/assets/1/
18/SEA_59_Workplace_violence_4_13_18_FINAL.pdf.
Many of the Joint Commission's recommended measures are
included in H.R. 1195. These include the implementation of
engineering and administrative controls, worker training and
program evaluation, reporting systems, incident investigations,
and protection against retaliation for reporting incidents.
Studies have shown that the measures in H.R. 1195 would
significantly reduce assaults on health care and social service
workers. Aria-Jefferson Health in Pennsylvania implemented many
of the measures required by this standard and reduced violence-
related injuries by 55 percent over three years.\40\
---------------------------------------------------------------------------
\40\Darryl Beard and Michelle Conley, Operation Safe Workplace: A
Multidisciplinary Approach to Workplace Violence 3 (2017), https://
www.jointcommission.org/assets/1/6/Aria_Workplace_Safety.pdf.
---------------------------------------------------------------------------
A recent randomized controlled trial involving seven
hospitals in the Wayne State system compared 21 health care
facility units that conducted workplace violence prevention
techniques to units in 20 health care facility units that did
not. The study found that six months post-intervention,
incident rate ratios of violent events were significantly lower
(more than a 50 percent reduction) on intervention units
compared with controls. At the 24 month-follow up, the risk for
violence-related injury was significantly lower (more than a 60
percent reduction) on intervention units compared with
controls.\41\ The types of intervention included a combination
of environmental, administrative, and behavioral strategies.
The intervention strategies used across study units were the
exact type of interventions contained in OSHA's Guidelines and
that would be required of employers by the OSHA standard
required by H.R. 1195.
---------------------------------------------------------------------------
\41\Judith E. Arnetz, et al., Preventing Patient-to-Worker Violence
in Hospitals: Outcome of a Randomized Controlled Intervention, 59
Journal of Occupational and Environmental Medicine 18 (2017), https://
www.ncbi.nlm.nih.gov/pmc/articles/PMC5214512/pdf/nihms-822608.pdf.
---------------------------------------------------------------------------
Dr. McClain testified at the 2019 WP Subcommittee Hearing
that H.R. 1309 would also improve safety for social service
workers who work in the field, and it would not require
residents to make changes to their homes:
Measures such as ``buddy systems,'' GPS tracking
systems, escorts and pre-visit assessments to identify
and address potential threats would be required to be
instituted.
We cannot expect clients to make changes to their
home. That is why it is essential that workplaces have
in place effective home visit safety measures such as
those listed above.\42\
---------------------------------------------------------------------------
\42\Caring for our Caregivers: Protecting Health Care and Social
Service Workers from Workplace Violence, Hearing Before the Subcomm. on
Workforce Protections of the H. Comm. on Educ. and Labor, 116th Cong.
(2019) (forthcoming McClain response to a question for the record from
Rep. Alma Adams).
Studies have shown that ensuring the safety of health care
and social service workers also benefits patients and clients.
Dr. Lipscomb testified at the 2019 WP Subcommittee Hearing
---------------------------------------------------------------------------
that:
This bill and an OSHA standard would also protect and
promote patient safety by reducing the risk of violence
from patients and visitors who not only assault
workers, but also other patients. Health care worker
health and safety and patient safety are inextricably
linked. When patient violence is left unchecked,
patients also suffer the consequences of such assaults
both in terms of increased risk of injury and when care
is compromised because health care workers become
injured and can no longer provide high quality
care.\43\
---------------------------------------------------------------------------
\43\Caring for our Caregivers: Protecting Health Care and Social
Service Workers from Workplace Violence, Hearing Before the Subcomm. on
Workforce Protections of the H. Comm. on Educ. and Labor, 116th Cong.
(2019) (forthcoming Lipscomb response to a question for the record from
Rep. Alma Adams).
Patient safety was also enhanced by interventions made to
protect workers from workplace violence that resulted in a 28
percent reduction in the use of patient restraints.\44\
---------------------------------------------------------------------------
\44\Yana Dilman, EB72: Code Green for Workplace Violence, American
Nurse Today (Feb. 2017 Vol. 12 No. 2), https://
www.americannursetoday.com/code-green-prevents-workplace-violence/.
---------------------------------------------------------------------------
And, as Dr. McClain noted in his testimony at the 2019 WP
Subcommittee Hearing:
Further justification for H.R.1309 is the fact that
it is essential that settings that provide social
services be healing environments. When a client harms a
social worker or other professional in these
environments, it is traumatizing for the client, not
just the person they harmed. It disrupts the
therapeutic process and can set back progress by months
if not years. Clients witnessing violence are also
traumatized, which impedes their progress. Through
common sense safety measures, workplaces can reduce or
eliminate this primary and secondary trauma, resulting
in better outcomes not just for clients but also for
the larger community.\45\
---------------------------------------------------------------------------
\45\Caring for our Caregivers: Protecting Health Care and Social
Service Workers from Workplace Violence, Hearing Before the Subcomm. on
Workforce Protections of the H. Comm. on Educ. and Labor, 116th Cong.
(2019) (forthcoming McClain response to a question for the record from
Rep. Alma Adams).
Finally, H.R. 1195 does not require OSHA to issue a ``one-
size-fits-all'' standard that prescribes every step that every
employer must take. In fact, it is just the opposite. The
interim and final standards will be ``program standards,''
which set forth the basic elements of a workplace violence
prevention program. The employer will be required to tailor
their violence prevention plan according to the size and type
of the operation, the specific risks presented, and the types
of interventions that are needed to protect workers.
OSHA Has Developed Authoritative Voluntary Guidelines as Part of a
Program of Compliance Assistance
For over 20 years, OSHA has conducted compliance assistance
activities to assist employers in reducing workplace violence--
including the dissemination of best practices. In 1996, OSHA
first issued its Guidelines which were updated in 2004 and
again in 2015. However, OSHA notes that these voluntary
guidelines are ``advisory in nature and informational in
content.'' Nonetheless, these are frequently cited by industry
and safety professionals because the OSHA Guidelines are:
based on industry best practices and feedback from
stakeholders and provide recommendations for developing
policies and procedures to eliminate or reduce
workplace violence in a range of healthcare and social
service settings . . . and incorporate the latest and
most effective ways to reduce the risk of violence in
the workplace.\46\
---------------------------------------------------------------------------
\46\Occupational Safety and Health Administration, Guidelines for
Preventing Workplace Violence for Health Care and Social Service
Workers 1 (2016), https://www.osha.gov/Publications/osha3148.pdf.
These Guidelines are the foundation for the violence
prevention standard required in H.R. 1195.
OSHA's Efforts to Prevent Workplace Violence Have Been Limited by
Reliance on the General Duty Clause, Instead of a Specific
Standard
When OSHA does not have a standard that specifically
addresses a recognized hazard, it must use the General Duty
Clause (GDC) of the OSH Act to enforce safe working conditions.
The General Duty Clause states that each employer:
shall furnish to each of his employees employment and
a place of employment which are free from recognized
hazards that are causing or are likely to cause death
or serious physical harm to his employees.\47\
---------------------------------------------------------------------------
\47\29 U.S.C. Sec. 654(a)(1).
In general, the GDC is poorly suited to the enforcement of
protections regarding workplace violence because its use is
legally burdensome and faces repeated legal attack by employers
who want to categorize workplace violence as a random,
unpreventable act rather than a recognized hazard that can be
prevented or mitigated. To cite an employer under the general
duty clause, OSHA must have evidence that (1) a condition or
activity in the workplace presents a hazard to an employee, (2)
the condition or activity is recognized as a hazard by the
employer or within the industry, (3) the hazard is causing or
is likely to cause death or serious physical harm, and (4) a
feasible means exists to eliminate or materially reduce the
hazard. General Duty Clause citations are frequently challenged
in court and are only successfully upheld when OSHA can show in
each separate instance that all four prongs can be satisfied.
By comparison, an OSHA standard delineates mandatory compliance
elements. Because of the legal burdens associated with use of
the GDC, only a small number of OSHA inspections regarding
workplace violence result in citations.\48\
---------------------------------------------------------------------------
\48\United States Government Accountability Office, Workplace
Safety and Health: Additional Efforts Needed to Help Protect Health
Care Workers from Workplace Violence (2016), https://www.gao.gov/
assets/680/675858.pdf.
---------------------------------------------------------------------------
OSHA implemented a 3-year National Emphasis Program (NEP)
in 2012 that targeted nursing and residential care facilities
and included workplace violence. Inspections of health care
employers related to workplace violence increased from 11
inspections per year in 2010 to 86 inspections in 2014.\49\
OSHA also issued a workplace violence compliance directive in
2011, which was updated in January 2017,\50\ to assist OSHA
inspectors in inspecting worksites and building a case under
the GDC. From 1991 through October 2014, OSHA issued 18 general
duty clause citations to health care employers for failing to
address workplace violence. These citations were issued in
approximately five percent of the 344 workplace violence
inspections of health care employers that were conducted from
1991 to April 2015. In practice, the GDC is used only after a
worker has been injured or killed; in all 18 of the cases where
OSHA issued citations, health care workers had been injured or
killed by patients, clients, or residents.
---------------------------------------------------------------------------
\49\United States Government Accountability Office, Workplace
Safety and Health: Additional Efforts Needed to Help Protect Health
Care Workers from Workplace Violence (2016), https://www.gao.gov/
assets/680/675858.pdf.
\50\Occupational Safety and Health Administration, U.S. Department
of Labor Directive CPL 02-01-058, Enforcement Procedures and Scheduling
for Occupational Exposure to Workplace Violence (2017), https://
www.osha.gov/OshDoc/Directive_pdf/CPL_02-01-058.pdf.
---------------------------------------------------------------------------
As noted above, the use of the GDC is under constant legal
threat. In the Integra Health Management case, which came
before the Occupational Safety and Health Review Commission
(OSHRC),\51\ a community health worker was stabbed to death by
a client outside of his residence in 2012. OSHA cited Integra
using the General Duty Clause and fined the company $10,500.
Integra appealed the citation on the grounds that the ``hazard
of being assaulted by [a client] with a history of violent
behavior'' is not a recognized hazard and that abatement of
that hazard was not feasible.\52\ The U.S. Chamber of Commerce
argued that OSHA should not be able to use the GDC in
combination with the OSHA Guidelines ``as a substitute for
[its] obligation to enforce the Act principally by promulgating
specific standards under the Act's rulemaking provisions.''\53\
Although OSHRC sustained the citations against Integra,
continued attacks on use of the GDC can be expected until OSHA
adopts a specific violence prevention standard.
---------------------------------------------------------------------------
\51\Integra Health Management, Inc., 2015 OSAHRC LEXIS 46 (No.13-
1124, 2015), https://www.oshrc.gov/assets/1/18/
Integra_Health_Management,_Inc._Docket_13-1124_Combined_post.pdf?8328.
\52\Brief of Respondent at 8, Integra Health Management, Inc., 2015
OSAHRC LEXIS 46 (No.13-1124, 2015), https://www.oshrc.gov/assets/1/6/
RespondentsPost-HearingBrief.pdf.
\53\Brief for Integra Health Management, Inc., as Amicus Curiae
Chamber of Commerce of the United States of America supporting
Respondent, 2015 OSAHRC LEXIS 46 (No.13-1124, 2015), https://
www.oshrc.gov/assets/1/6/Brief_ of_ Amicus_ Brief_ of_
Chamber_of_Commerce_of_ USA_ in_ Support_of_Respondent_Integra_Health_
Management_Redacted.pdf.
---------------------------------------------------------------------------
OSHA's Efforts to Promulgate a Workplace Violence Prevention Standard
Have Been Halting and Inconsistent
Following the issuance of the 2016 GAO study and the
receipt of two petitions for a workplace violence standard, the
Obama Administration added workplace violence to the regulatory
agenda and issued a Request for Information to solicit
information on the content of a potential standard to prevent
workplace violence in health care and social assistance
settings.\54\ OSHA held a stakeholder meeting on January 10,
2017, at which the Assistant Secretary granted the petitions
for rulemaking and announced that the agency would pursue a
workplace violence prevention standard.
---------------------------------------------------------------------------
\54\Request for Information, Prevention of Workplace Violation in
Healthcare and Social Assistance, 81 Fed. Reg. 88147 (Dec. 7, 2016).
---------------------------------------------------------------------------
As former OSHA Assistant Secretary Dr. David Michaels
testified at the 2021 WP Subcommittee hearing:
After reviewing the very extensive and compelling
evidence for the need for a regulation, I granted the
petitions and announced OSHA would immediately commence
the rule-making process.\55\
---------------------------------------------------------------------------
\55\Clearing the Air: Science Based Strategies to Protect Workers
from COVID-19 Infections, Hearing Before the Subcomm. on Workforce
Protections of the H. Comm. on Educ. and Labor, 117th Cong. (2021)
(written testimony of Dr. David Michaels at 13).
The Trump Administration's first Regulatory Agenda, issued
in the Spring of 2017, relegated work on the workplace violence
prevention standard to the ``Long-Term Agenda'' for a year, but
returned it to OSHA's active Regulatory Agenda in May 2018.
Over the past two-and-one-half years, OSHA's sole visible
effort was a statement in the Regulatory Agenda of its the
intent to hold a Small Business Regulatory Enforcement Fairness
Act (SBREFA) panel, the earliest stage of the rulemaking
process. The panel was originally set to meet in January 2019;
OSHA postponed the meeting to March 2019, then to October 2019,
then to January 2020, and finally to December 2020. The panel
was never initiated.
OSHA was also constrained in prioritizing a workplace
violence prevention standard since 2017 due to a presidential
mandate to focus on deregulatory efforts. The Trump
Administration's Executive Order ``Reducing Regulation and
Controlling Regulatory Costs'' required that for every new
regulation an agency adopts, two regulations of the same cost
must be eliminated.\56\ That mandate has been repealed by the
Biden Administration.
---------------------------------------------------------------------------
\56\Exec. Order No. 13,7871, 83 Fed. Reg. 9339 (Jan. 30, 2017).
---------------------------------------------------------------------------
Voluntary Guidelines, Compliance Assistance and Enforcement Through the
OSH Act's General Duty Clause Are Not Sufficient to Protect
Workers
Although OSHA has been conducting compliance assistance
activities for 25 years, as noted above, and revised its
Guidelines in 2015, these activities have not been sufficient
to adequately protect workers. Not only are violence-related
injury rates increasing, but as Dr. Jane Lipscomb testified at
the 2019 WP Subcommittee Hearing:
[V]oluntary guidelines such as those that were first
published by OSHA in 1996 and updated in 2015, do not
protect the vast majority of employees, because they
fail to incentivize employers to act voluntarily to
address this hazard. I can attest to that fact because
the vast majority of health care workers who I have
spoken with report that they do not have a workplace
violence prevention plan or that they have a paper plan
that does little to nothing to protect them from the
ongoing risk of violence.\57\
---------------------------------------------------------------------------
\57\Caring for our Caregivers: Protecting Health Care and Social
Service Workers from Workplace Violence, Hearing Before the Subcomm. on
Workforce Protections of the H. Comm. on Educ. and Labor, 116th Cong.
(2019) (written Testimony of Jane Lipscomb at 1) [Hereinafter Lipscomb
Testimony].
Without a legally enforceable OSHA standard, important
elements such as incident investigations may not happen.
Patricia Moon-Updike described this situation in a post-2019 WP
---------------------------------------------------------------------------
Subcommittee Hearing submission:
I am not aware of any investigation of my assault. I
was only asked for my account of events for Workers
Compensation management purposes. I have no knowledge
of any investigations of incidents of workplace
violence with or without workers' participation or
review of the findings. Wisconsin's Act 10, which
placed limits on public employees' collective
bargaining rights also precluded the union from
participating in an investigation.\58\
---------------------------------------------------------------------------
\58\Caring for our Caregivers: Protecting Health Care and Social
Service Workers from Workplace Violence, Hearing Before the Subcomm. on
Workforce Protections of the H. Comm. on Educ. and Labor, 116th Cong.
(2019) (forthcoming Moon-Updike response to a question for the record
by Rep. Alma Adams).
---------------------------------------------------------------------------
State Legislative and Regulatory Activity
Ten states--California, Connecticut, Illinois, Maine,
Maryland, Nevada, New Jersey, New York, Oregon, and
Washington--have some form of laws or regulations covering
workplace violence in health care. Nevada recently passed a
comprehensive workplace violence law covering health care
workers that will come into full effect in 2021.\59\ None of
the states cover social service workers with the exceptions of
Illinois (covers clinical social workers who work inside a
health care facility) and New York (covers public employees,
including those in health care and social services, but not
private sector employees).\60\ Some laws lack enforcement
mechanisms. Only four of the nine (California, Washington,
Nevada, and New York) have enforcement mechanisms that operate
through their state OSHA programs where workers can file
complaints and receive an inspection. The Illinois Health Care
Violence Prevention Act, which is administered by the Illinois
Department of Public Health, requires health care providers (as
well as the Departments of Corrections and Juvenile Justice) to
develop a workplace violence prevention program modeled on
OSHA's Guidelines, but the law does not address inspections or
consequences for non-compliance.\61\
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\59\Assembly Bill 348, 80th Leg., Reg. Sess. (Nev. 2019), https://
www.leg.state.nv.us/App/NELIS/REL/80th2019/Bill/6646/Text.
\60\N.Y. Comp. Codes R. & Regs. tit. 12 Sec. 800.6 (2006).
\61\H.B. 4100 of the 100th General Assembly [Public Act 100-1051]
(Ill. 2018).
---------------------------------------------------------------------------
H.R. 1195 Provides for Robust Public Input into the Rulemaking Process
Input by workers, employers, and experts on the subject of
workplace violence is of vital importance in order to issue an
effective and feasible OSHA standard. H.R. 1195 requires all of
the federal rulemaking requirements, including full notice and
comment, for the final workplace violence standard that must be
issued within 42 months of the date of enactment.
Given the rising rates of workplace violence and the need
for urgent action to stem injuries to workers, H.R. 1195
requires OSHA to issue an interim final standard within a year,
and the bill as introduced waived OSHA's procedural
requirements for the interim final standard only. H.R. 1309 was
criticized during the 2019 WP Subcommittee Hearing for not
allowing sufficient public input prior to issuance of the
interim final standard. To address that concern, during the
markup of H.R. 1309, the Committee adopted by voice vote an
amendment that would add a 30-day comment period prior to
issuance of the interim final standard. That 30-day comment
period remains in H.R. 1195.
Since there has already been considerable public comment on
a potential workplace violence standard through a 2016 Request
for Information, advancing to an interim final standard would
reflect a solid evidentiary basis supported by industry and
other stakeholder input, as well years of experience applying
the OSHA Guidelines. Dr. Lipscomb noted in her testimony at the
2019 WP Subcommittee Hearing:
OSHA has already had a request for information around
their plan to develop a workplace violence prevention
standard. So there certainly was the opportunity in
there. I was part of both that hearing and public
meeting so there has been input that has already been
provided. And there has been input from stakeholders
all around the country around these other 9 actual laws
and, as I said, experts in health care safety and
patient safety have all written documents that
recommend pretty much the same measures that are
described in this bill.
So, I completely disagree that there hasn't been an
opportunity for stakeholder input. In fact, I think
there is a consensus in the industry on what is
needed.\62\
---------------------------------------------------------------------------
\62\Caring for our Caregivers: Protecting Health Care and Social
Service Workers from Workplace Violence, YouTube (Mar. 1, 2019),
https://www.youtube.com/watch?v=3B9eMBSBKm0 (question and answer
between Chairman Scott and Lipscomb at 01:07:22).
---------------------------------------------------------------------------
Absent Congressionally Mandated Deadlines, OSHA Standards Often Take
Decades to be Issued
Due to the high number and rate of serious injuries caused
by workplace violence and the ready availability of effective
and feasible means to prevent or mitigate these assaults, H.R.
1195 sets deadlines for OSHA to protect workers.
In 2012, GAO issued a report regarding the protracted
length of time it takes OSHA to issue a standard. It found
that:
Between 1981 and 2010, the time it took the
Department of Labor's Occupational Safety and Health
Administration (OSHA) to develop and issue safety and
health standards ranged widely, from 15 months to 19
years, and averaged more than 7 years.\63\
---------------------------------------------------------------------------
\63\United States Government Accountability Office, Workplace
Safety and Health: Multiple Challenges Lengthen OSHA's Standard Setting
(2012), https://www.gao.gov/assets/590/589825.pdf.
In order to issue a standard, OSHA must complete multiple
steps that, depending on resources and competing priorities,
can be quite lengthy. These include:
Request for Information (RFI) and/or an
Advance Notice of Proposed Rulemaking (ANPRM): While
not mandatory, OSHA often issues an RFI and/or an ANPRM
in order to gather information that may be needed for a
proposal, or to decide whether a standard is needed.
Comment periods usually last several months, followed
by OSHA's analysis of the results. OSHA issued an RFI
and held a stakeholder meeting in January 2017 on the
workplace violence standard.
Small Business Regulatory Enforcement
Fairness Act (SBREFA) Panel: The earliest major step in
the regulatory process is a review of the impact of a
regulation on small businesses required by SBREFA.
``Small Entity Representatives'' are chosen to
participate in panels describing the possible impact of
a new OSHA standard. The findings are then compiled
into a report with recommendations that are considered
as the agency develops the regulatory proposal. It
requires six months from initiation of the SBREFA
process to completion of the final report, although
several months to a year are generally needed to
compile the data needed to initiate the process.
Proposed Standard: OSHA must issue a
proposed standard that will undergo up to three months
of review by the Office of Management and Budget's
Office of Intergovernmental and Regulatory Affairs
(OIRA). The proposal contains a draft regulatory text,
suggested alternatives, and a Preliminary Regulatory
Flexibility Analysis (RFA) that explains the costs and
benefits of that rule. The RFA contains an extensive
justification of the economic and technical feasibility
of the standard and the presentation of regulatory
alternatives for consideration. It often takes OSHA
several years to move from SBREFA to a proposed rule.
Hearings and Comment Period: Following the
issuance of the proposal, OSHA usually provides a 60-90
day written comment period, followed by public
hearings, which can last from a few days to several
weeks. Another written comment period, generally 60-90
days, follows the hearings.
Final Standard: Following the completion of
the hearing and public comment periods, OSHA is
required to analyze and respond to each of the comments
on the proposal received during the public comment
periods and hearings, and based on that input, make
appropriate changes in the regulation and develop a
Final Regulatory Flexibility Analysis which is again
submitted to OIRA for a three-month review before the
final standard is issued. It often takes several years
to move from the proposal to the final standard.
While all the above cited requirements would be in effect
for the final standard, in order for health care and social
service workers to receive timely protection against workplace
violence, the interim final standard would require a 30 day
comment period but would suspend these other requirements.
Recent trends show that GAO's assessment from 2012
underestimates the average time it now takes for OSHA to issue
new safety and health standards. Set forth below are recent
OSHA standards and the time required to finalize each standard.
Beryllium (18 years): OSHA issued its final
Beryllium standard in January 2017\64\ after beginning
the most recent rulemaking process in 1999. This was
OSHA's second attempt to update its 1971 beryllium
standard. OSHA first issued a proposal to update its
beryllium standard in 1975, but the standard was never
completed.
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\64\29 C.F.R. Sec. 1910.1024 (2017), 29 C.F.R. Sec. 1926.1124
(2018), and 29 C.F.R. Sec. 1915.1024 (2017).
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Crystalline Silica (19 Years): OSHA issued
its final Silica standard in March 2016\65\ after the
issue was placed on the Regulatory Agenda in 1997. This
was OSHA's second attempt to update its silica
standard. The agency issued its first Advance Notice of
Proposed Rulemaking in 1975 but no proposal was ever
issued.
---------------------------------------------------------------------------
\65\29 C.F.R. Sec. 1910.1053 (2016) and 29 C.F.R. Sec. 1926.1153
(2016).
---------------------------------------------------------------------------
Confined Spaces in Construction (22 years):
In May 2015, OSHA issued a Confined Spaces in
Construction standard\66\ after first committing to
issue this standard in 1993 and issuing a draft
proposed standard in 1994. This was OSHA's second
attempt to regulate confined spaces in the construction
industry. OSHA published an Advanced Notice of Proposed
Rulemaking in 1980, but that action was never
completed.
---------------------------------------------------------------------------
\66\29 C.F.R. Sec. 1926.1200-1213 (2015).
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Walking Working Surfaces (14 years): In
2017, OSHA issued its revised Walking Working Surfaces
standard\67\ after initiating the regulatory process in
2003. This was OSHA's third attempt to update this
rule. OSHA's first proposed rule updating this standard
was issued in 1973 and a second proposed rule was
issued in 1990. Neither of these efforts were
completed.
---------------------------------------------------------------------------
\67\29 C.F.R. Sec. 1910 Parts D and I (2016).
---------------------------------------------------------------------------
Former OSHA Assistant Secretary Dr. David Michaels,
testifying the 2021 WP Subcommittee Hearing, strongly endorsed
H.R. 1195, stating that ``Normally, it takes OSHA a decade or
more to issue a health standard.''\68\
---------------------------------------------------------------------------
\68\Clearing the Air: Science Based Strategies to Protect Workers
from COVID-19 Infections, Hearing Before the Subcomm. on Workforce
Protections of the H. Comm. on Educ. and Labor, 117th Cong. (2021)
(written testimony of Dr. David Michaels at 13).
---------------------------------------------------------------------------
Completion of a Final Standard in 42 Months is Achievable
OSHA should be able to finalize a workplace violence
standard within the 42-month period that is set forth in H.R.
1195. First, OSHA would not be starting from scratch. The main
elements of this standard are contained in OSHA's Guidelines,
which were revised in 2015. These Guidelines form the basis for
many existing workplace violence programs in health care
institutions today. Second, California has adopted a
comprehensive workplace violence standard that contains most of
the same elements contained in H.R. 1195 and should provide
important information about the feasibility, costs, and
benefits of the measures required in H.R. 1195. Third, OSHA
would be building a final rule on the foundation set forth in
the interim final standard, which must be issued within one
year of enactment.
History of Congressionally Directed OSHA Rulemaking
Congress has a long history of requiring OSHA to issue
regulations to protect workers when the agency fails to act in
a timely manner on its own. H.R. 1195 continues Congress'
precedent of requiring OSHA to act promptly when faced with
evidence that our nation's workers face grave dangers and delay
will result in needless injury, illness, and death. For
example:
In 1986, as part of the Superfund Amendments
and Reauthorization Act of 1996 (SARA), Congress
required that OSHA issue an ``interim'' standard for
Hazardous Waste Operations and Emergency Response
within 60 days and a final standard within one year of
SARA's enactment. The standard was issued in 1989.\69\
---------------------------------------------------------------------------
\69\Superfund Amendments and Reauthorization Act of 1986, Pub. L.
No. 99-499, Sec. 126 a-f, 100 Stat. 1690-92.
---------------------------------------------------------------------------
In 1990, as part of the Clean Air Act
Amendments, Congress required OSHA to issue the Process
Safety Management standard within one year. Congress
also included detailed directions on the content of the
standard. The standard was issued in 1992.\70\
---------------------------------------------------------------------------
\70\1990 Clean Air Act Amendments, Pub. L. No. 101-549, Sec. 304,
104 Stat. 2576-77.
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In 1991, Congress ordered OSHA to issue the
final Bloodborne Pathogens Standard by the end of 1991,
and stated that if that deadline was not met, the
previously published proposed standard would take
effect. The standard was issued in 1991.\71\
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\71\Departments of Labor, Health and Human Services and Education
and Related Agencies Appropriations Act, Pub. L. No. 102-170, Sec. 100,
105 Stat. 1113 (1991).
---------------------------------------------------------------------------
In 1992, Congress required OSHA to issue the
Lead in Construction standard and required the new
standard to be ``as protective as'' the U.S. Department
of Housing and Urban Development's worker protection
guidelines for identification and abatement of lead-
based paint in certain housing. OSHA was required to
issue an Interim Final Regulation for lead within 180
days. The standard was issued in 1993.\72\
---------------------------------------------------------------------------
\72\Housing and Community Development Act of 1992, Pub. L. No. 102-
550, Sec. 402, 106 Stat. 3914.
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Finally, in 2000, Congress required OSHA to
issue an update to the Bloodborne Pathogens standard,
requiring safer syringes and sharps, ``without regard
to the procedural requirements applicable to
regulations promulgated under section 6(b) of the OSH
Act (29 U.S.C. 655(b)) or the procedural requirements
of chapter 5 of title 5, United States Code.''\73\ OSHA
was required to issue that standard within six months
of enactment. The standard was issued in 2001.
---------------------------------------------------------------------------
\73\Needlestick Safety and Prevention Act, Pub. L. No. 106-430, 114
Stat. 1901 (2000).
---------------------------------------------------------------------------
H.R. 1195 Provides Protection to Workers Employed by State and Local
Governments in Health Care and Social Service Settings Where
Federal OSHA Provides No Coverage
As noted above, public sector health care and social
service workers are almost nine times more likely to be injured
by an assault than private sector health care workers, and in
24 states these public sector workers lack OSHA protections.
There is precedent for Congress to ensure the enforcement of
OSHA standards affecting public sector health care workers in
those states that do not provide OSHA coverage for public
employees by amending the requirements for providers receiving
Medicare funds.
In 2003, Congress passed the Medicare Prescription Drug
Improvement and Modernization Act, which included a requirement
for public employers in the health care sector that receive
Medicare funds, but are not covered by Federal or state OSHA,
to comply with OSHA's bloodborne pathogens standard.\74\
---------------------------------------------------------------------------
\74\The Medicare Prescription Drug, Improvement, and Modernization
Act, Pub. L. No. 108-173, Sec. 947, 117 Stat. 2066, 2425 (2003).
---------------------------------------------------------------------------
Section 947(a)(2) of that 2003 law states that providers
that violate OSHA's bloodborne pathogens standard are ``not
subject to termination of an agreement under this section,''
but are subject to a civil monetary penalty that is similar to
the amount of civil penalties that may be imposed under the OSH
Act for a violation of the Bloodborne Pathogens standard. The
current maximum penalty for a serious violation of an OSHA
standard is $13,260, although the average OSHA citation for a
serious violation is approximately $3,000.
H.R. 1195 mirrors that 2003 provision by requiring
hospitals and skilled nursing facilities operated by state and
local governments that receive Medicare funds, but are not
covered by Federal OSHA or a state OSHA plan, to comply with
OSHA's workplace violence prevention standard that will be
issued by OSHA as mandated by H.R. 1195.
Section-by-Section Analysis
Title I. Workplace Violence Prevention Standard
Section 101. Workplace violence prevention standard
This section requires OSHA to issue a workplace violence
prevention standard requiring employers within the health care
and social service sectors to develop and implement a plan to
protect their employees from workplace violence. OSHA shall
carry this out in two stages: an interim final standard shall
be issued within one year of enactment, and then a final
standard shall be issued within 42 months of the date of
enactment. The interim final standard shall be based upon the
OSHA Guidelines and the requirements set forth in this bill. A
30-day comment period will be provided before issuance of the
interim final standard.
Section 102. Scope and application
The interim and final standards will cover hospitals,
residential treatment facilities, non-residential treatment
settings, medical treatment or social service settings in
correctional or detention facilities, psychiatric treatment
facilities, substance use disorder treatment centers, community
care settings such as group homes and mental health clinics,
freestanding emergency centers, federal health care facilities
such as those operated by the Veterans Administration and the
Indian Health Service, field work settings such as home care
and home-based hospice, and emergency services and transport
services. The standards would not cover employer-provided
health care facilities.
The interim and final standards cover direct-hire
employees, contracted and subcontracted employees, and
temporary or leased employees employed by a covered employer at
a covered facility or performing covered services on behalf of
a covered employer. However, the interim and final standards
exclude an individual who privately employs persons in the
individual's residence to perform covered services for the
individual or a family member of the individual.
Section 103. Requirements for the workplace violence prevention
standard
The legislation directs OSHA to establish a standard that:
(1) Requires each covered employer to develop and implement
a Workplace Violence Prevention Plan (Plan) tailored to the
relevant hazards in the specific facility.
In preparing a Plan, covered employers, in
conjunction with employees (and their representatives
where applicable), shall identify workplace violence
risks to employees in their particular workplace,
including environmental risk factors, risk factors
specific to the patient population, and past violent
incidents.
Covered employers are responsible for
implementing techniques or interventions that prevent
hazards.
(2) Requires that the Plan include, as appropriate to the
particular work setting, both work practice controls such as
security, staffing, and training on de-escalation techniques,
and engineering controls such as personal alarm devices,
adequate exit routes, surveillance monitoring systems, barrier
protection, entry procedures, and weapons detectors. The Plan
must outline procedures for reporting, responding to, and
investigating incidents, and providing medical care and first
aid to affected employees. The Plan must include procedures for
training of the workforce, coordination with other employers
who have employees who work at the site, and an annual
evaluation of the Plan.
(3) Requires that covered employers investigate each
incident of workplace violence as soon as practicable, document
the findings, and take corrective measures.
(4) Requires that each covered employer provide annual in-
person training and education to employees, although annual
refresher training may be done through live video conference if
in-person training is impracticable. When employees are
reassigned, they must receive additional training.
(5) Requires that employers must record workplace violence
incidents in a Violent Incident Log (Log). An annual summary of
the Log shall be posted in the workplace in the same manner as
the posting of the OSHA Annual Summary of Injuries and
Illnesses, and similarly, the summary of the Log shall be
transmitted to OSHA on an annual basis. Employers shall
maintain records related to the Plan, and employees are
provided the right to examine and make copies of the Plan, the
Log, and related Plan documents, with appropriate protections
for patient and worker privacy. Patient names and personal
identifying information will be excluded from the Log.
(6) Requires each covered employer to report to OSHA on an
annual basis the frequency, quantity, and severity of workplace
violence, and any incident response and post incident
investigation (including abatement measures) for the incidents
set forth in the summary of the Log. OSHA is required to submit
an annual report to Congress summarizing employer reports.
(7) Requires each covered employer to conduct an annual
evaluation, with the participation of covered employees and
their representatives, on the implementation and the
effectiveness of the Plan, including a review of the Log and
the required training. The employer's plan shall be updated
based on the findings of the annual evaluation.
(8) Prohibits retaliation by a covered employer against a
covered employee for reporting a workplace violence incident,
threat, or concern to an employer, law enforcement, local
emergency services, or a government agency. A violation of this
prohibition shall be enforceable as a violation of an OSHA
standard. Covered employers must adopt a policy prohibiting
retaliation.
Section 104. Rules of construction
This section states that nothing in this legislation
curtails or limits the authority of the Secretary of Labor
under any other provision of federal or state law or any
collective bargaining agreement. The rights, privileges, and
remedies of employees provided under this legislation are in
addition to those provided under any other federal or state
law.
Section 105. Key definitions
This section includes key definitions. The term ``workplace
violence'' means: (i) any act of violence or threat of
violence, without regard to intent, and includes the threat or
use of physical force against an employee that results in or
has a high likelihood of resulting in physical injury,
psychological trauma, or stress, without regard to whether an
employee sustains actual physical injury, psychological trauma,
or stress; and (ii) an incident involving the threat or use of
a firearm or a dangerous weapon, including the use of common
objects as weapons, without regard to whether an employee
sustains an actual injury, psychological trauma, or stress.
The terms ``Type 1 violence'' (criminal intent), ``Type 2
violence'' (customer or client initiated), ``Type 3 violence''
(worker on worker) and ``Type 4 violence'' (personal
relationships) are incorporated based on the nomenclature
developed by the National Institute for Occupational Safety and
Health.
The term ``engineering controls'' means: an aspect of the
built space or a device that removes a hazard from the
workplace or creates a barrier between a covered employee and
the hazard. This includes electronic access controls to
employee occupied areas, weapons detectors (installed or
handheld), enclosed workstations with shatter-resistant glass,
deep service counters, separate rooms or areas for high risk
patients, locks on doors, removing access to or securing items
that could be used as weapons, furniture affixed to floors,
opaque glass in patient rooms (which protects privacy, but
allows the health care provider to see where the patent is
before entering the room), closed circuit monitoring and video
recording, sight aids, and personal alarm devices.
The term ``work practice controls'' means: procedures and
rules that are used to effectively reduce workplace violence,
which include (i) assigning and placing sufficient numbers of
staff to reduce patient-specific Type 2 workplace violence
hazards; (ii) provision of dedicated and available safety
personnel, such as security guards; (iii) employee training on
workplace violence prevention methods and techniques to de-
escalate and minimize violent behavior; and (iv) employee
training on procedures for response in the event of a workplace
violence incident and for post-incident response.
Title II. Amendments to the Social Security Act
Section 201. Application of the Workplace Violence Prevention Standard
to certain facilities receiving Medicare funds
This section requires that hospitals and skilled nursing
facilities operated by state or local government agencies,
which are not otherwise subject to the OSH Act or a state
occupational safety and health plan, shall comply with the OSHA
standard required in this Act as a condition of receiving
Medicare funds. A covered facility that fails to comply with
the OSHA standard is subject to a civil monetary penalty in an
amount similar to the amount OSHA may impose under the OSH Act
for a violation of a standard, but such facility is not subject
to termination of an agreement with Medicare for failure to
comply.
Explanation of Amendments
The amendments, including the amendment in the nature of a
substitute, are explained in the descriptive portions of this
report.
Application of Law to the Legislative Branch
H.R. 1195 does not apply to terms and conditions of
employment or to access to public services or accommodations
within the legislative branch.
Unfunded Mandate Statement
Pursuant to Section 423 of the Congressional Budget and
Impoundment Control Act of 1974, Pub. L. No. 93-344 (as amended
by Section 101(a)(2) of the Unfunded Mandates Reform Act of
1995, Pub. L. No. 104-4), the Committee traditionally adopts as
its own the cost estimate prepared by the Director of the
Congressional Budget Office (CBO) pursuant to section 402 of
the Congressional Budget and Impoundment Control Act of 1974.
The Committee reports that because this cost estimate was not
timely submitted to the Committee before the filing of this
report, the Committee is not in a position to make a cost
estimate for H.R. 1195, as amended.
Earmark Statement
In accordance with clause 9 of rule XXI of the Rules of the
House of Representatives, H.R. 1195 does not contain any
congressional earmarks, limited tax benefits, or limited tariff
benefits as described in clauses 9(e), 9(f), and 9(g) of rule
XXI.
Roll Call Votes
In compliance with clause 3(b) of rule XIII of the Rules of
the House of Representatives, the Committee advises that the
following roll call votes occurred during the Committee's
consideration of H.R. 1195:
Statement of Performance Goals and Objectives
Pursuant to clause (3)(c) of rule XIII of the Rules of the
House of Representatives, the goals of H.R. 1195 are to protect
health care and social service workers from workplace violence.
Duplication of Federal Programs
Pursuant to clause 3(c)(5) of rule XIII of the Rules of the
House of Representatives, the Committee states that no
provision of H.R. 1195 establishes or reauthorizes a program of
the Federal Government known to be duplicative of another
federal program, a program that was included in any report from
the Government Accountability Office to Congress pursuant to
section 21 of Public Law 111-139, or a program related to a
program identified in the most recent Catalog of Federal
Domestic Assistance.
Hearings
Pursuant to clause 3(c)(6) of rule XIII of the Rules of the
House of Representatives, on March 11, 2021, the Committee held
a hearing entitled ``Clearing the Air: Science Based Strategies
to Protect Workers from COVID-19 Infections,'' which was used
to consider H.R. 1195. The Committee heard testimony from
Pascaline Muhindura, a nurse at Research Medical Center, Kansas
City, MO, who described the hazards nurses in her hospital face
from workplace violence and how those hazards have increased
during the COVID pandemic. Former Assistant Secretary for OSHA,
Dr. David Michaels, testified on the need for legislation that
would set strict deadlines to issue this important OSHA
standard.
Statement of Oversight and Recommendations of the Committee
In compliance with clause 3(c)(1) of rule XIII and clause
2(b)(1) of rule X of the Rules of the House of Representatives,
the Committee's oversight findings and recommendations are
reflected in the descriptive portions of this report.
New Budget Authority and CBO Cost Estimate
Pursuant to clause 3(c)(2) of rule XIII of the Rules of the
House of Representatives and section 308(a) of the
Congressional Budget and Impoundment Control Act of 1974, and
pursuant to clause 3(c)(3) of rule XIII of the Rules of the
House of Representatives and section 402 of the Congressional
Budget and Impoundment Control Act of 1974, the Committee has
requested but not received a cost estimate for the bill from
the Director of the Congressional Budget Office.
Committee Cost Estimate
Clause 3(d)(1) of rule XIII of the Rules of the House of
Representatives requires an estimate and a comparison of the
costs that would be incurred in carrying out H.R. 1195.
However, clause 3(d)(2)(B) of that rule provides that this
requirement does not apply when the committee has included in
its report a timely submitted cost estimate of the bill
prepared by the Director of the Congressional Budget Office
under section 402 of the Congressional Budget and Impoundment
Control Act of 1974. The Committee reports that because this
cost estimate was not timely submitted to the Committee before
the filing of this report, the Committee is not in a position
to make a cost estimate for H.R. 1195, as amended.
Changes in Exisitng Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, H.R. 1195, as reported, are shown as follows:
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italics, and existing law in which no
change is proposed is shown in roman):
SOCIAL SECURITY ACT
* * * * * * *
TITLE XVIII--HEALTH INSURANCE FOR THE AGED AND DISABLED
* * * * * * *
Part E--Miscellaneous Provisions
* * * * * * *
agreements with providers of services; enrollment processes
Sec. 1866. (a)(1) Any provider of services (except a fund
designated for purposes of section 1814(g) and section 1835(e))
shall be qualified to participate under this title and shall be
eligible for payments under this title if it files with the
Secretary an agreement--
(A)(i) not to charge, except as provided in paragraph
(2), any individual or any other person for items or
services for which such individual is entitled to have
payment made under this title (or for which he would be
so entitled if such provider of services had complied
with the procedural and other requirements under or
pursuant to this title or for which such provider is
paid pursuant to the provisions of section 1814(e)),
and (ii) not to impose any charge that is prohibited
under section 1902(n)(3),
(B) not to charge any individual or any other person
for items or services for which such individual is not
entitled to have payment made under this title because
payment for expenses incurred for such items or
services may not be made by reason of the provisions of
paragraph (1) or (9) of section 1862(a), but only if
(i) such individual was without fault in incurring such
expenses and (ii) the Secretary's determination that
such payment may not be made for such items and
services was made after the third year following the
year in which notice of such payment was sent to such
individual; except that the Secretary may reduce such
three-year period to not less than one year if he finds
such reduction is consistent with the objectives of
this title,
(C) to make adequate provision for return (or other
disposition, in accordance with regulations) of any
moneys incorrectly collected from such individual or
other person,
(D) to promptly notify the Secretary of its
employment of an individual who, at any time during the
year preceding such employment, was employed in a
managerial, accounting, auditing, or similar capacity
(as determined by the Secretary by regulation) by an
agency or organization which serves as a fiscal
intermediary or carrier (for purposes of part A or part
B, or both, of this title) with respect to the
provider,
(E) to release data with respect to patients of such
provider upon request to an organization having a
contract with the Secretary under part B of title XI as
may be necessary (i) to allow such organization to
carry out its functions under such contract, or (ii) to
allow such organization to carry out similar review
functions under any contract the organization may have
with a private or public agency paying for health care
in the same area with respect to patients who authorize
release of such data for such purposes,
(F)(i) in the case of hospitals which provide
inpatient hospital services for which payment may be
made under subsection (b), (c), or (d) of section 1886,
to maintain an agreement with a professional standards
review organization (if there is such an organization
in existence in the area in which the hospital is
located) or with a quality improvement organization
which has a contract with the Secretary under part B of
title XI for the area in which the hospital is located,
under which the organization will perform functions
under that part with respect to the review of the
validity of diagnostic information provided by such
hospital, the completeness, adequacy, and quality of
care provided, the appropriateness of admissions and
discharges, and the appropriateness of care provided
for which additional payments are sought under section
1886(d)(5), with respect to inpatient hospital services
for which payment may be made under part A of this
title (and for purposes of payment under this title,
the cost of such agreement to the hospital shall be
considered a cost incurred by such hospital in
providing inpatient services under part A, and (I)
shall be paid directly by the Secretary to such
organization on behalf of such hospital in accordance
with a rate per review established by the Secretary,
(II) shall be transferred from the Federal Hospital
Insurance Trust Fund, without regard to amounts
appropriated in advance in appropriation Acts, in the
same manner as transfers are made for payment for
services provided directly to beneficiaries, and (III)
shall not be less in the aggregate for a fiscal year
than the aggregate amount expended in fiscal year 1988
for direct and administrative costs (adjusted for
inflation and for any direct or administrative costs
incurred as a result of review functions added with
respect to a subsequent fiscal year) of such reviews),
(ii) in the case of hospitals, critical access
hospitals, rural emergency hospitals, skilled nursing
facilities, and home health agencies, to maintain an
agreement with a quality improvement organization
(which has a contract with the Secretary under part B
of title XI for the area in which the hospital,
facility, or agency is located) to perform the
functions described in paragraph (3)(A),
(G) in the case of hospitals which provide inpatient
hospital services for which payment may be made under
subsection (b) or (d) of section 1886, not to charge
any individual or any other person for inpatient
hospital services for which such individual would be
entitled to have payment made under part A but for a
denial or reduction of payments under section
1886(f)(2),
(H)(i) in the case of hospitals which provide
services for which payment may be made under this title
and in the case of critical access hospitals which
provide critical access hospital services, to have all
items and services (other than physicians' services as
defined in regulations for purposes of section
1862(a)(14), and other than services described by
section 1861(s)(2)(K), certified nurse-midwife
services, qualified psychologist services, and services
of a certified registered nurse anesthetist) (I) that
are furnished to an individual who is a patient of the
hospital, and (II) for which the individual is entitled
to have payment made under this title, furnished by the
hospital or otherwise under arrangements (as defined in
section 1861(w)(1)) made by the hospital,
(ii) in the case of skilled nursing facilities which
provide covered skilled nursing facility services--
(I) that are furnished to an individual who
is a resident of the skilled nursing facility
during a period in which the resident is
provided covered post-hospital extended care
services (or, for services described in section
1861(s)(2)(D), that are furnished to such an
individual without regard to such period), and
(II) for which the individual is entitled to
have payment made under this title,
to have items and services (other than services
described in section 1888(e)(2)(A)(ii)) furnished by
the skilled nursing facility or otherwise under
arrangements (as defined in section 1861(w)(1)) made by
the skilled nursing facility,
(I) in the case of a hospital, critical access
hospital, or rural emergency hospital--
(i) to adopt and enforce a policy to ensure
compliance with the requirements of section
1867 and to meet the requirements of such
section,
(ii) to maintain medical and other records
related to individuals transferred to or from
the hospital, critical access hospital, or
rural emergency hospital for a period of five
years from the date of the transfer, and
(iii) to maintain a list of physicians who
are on call for duty after the initial
examination to provide treatment necessary to
stabilize an individual with an emergency
medical condition,
(J) in the case of hospitals which provide inpatient
hospital services for which payment may be made under
this title, to be a participating provider of medical
care under any health plan contracted for under section
1079 or 1086 of title 10, or under section 613 of title
38, United States Code, in accordance with admission
practices, payment methodology, and amounts as
prescribed under joint regulations issued by the
Secretary and by the Secretaries of Defense and
Transportation, in implementation of sections 1079 and
1086 of title 10, United States Code,
(K) not to charge any individual or any other person
for items or services for which payment under this
title is denied under section 1154(a)(2) by reason of a
determination under section 1154(a)(1)(B),
(L) in the case of hospitals which provide inpatient
hospital services for which payment may be made under
this title, to be a participating provider of medical
care under chapter 17 of title 38, United States Code,
in accordance with such admission practices, and such
payment methodology and amounts, as are prescribed
under joint regulations issued by the Secretary and by
the Secretary of Veterans Affairs in implementation of
such section,
(M) in the case of hospitals, to provide to each
individual who is entitled to benefits under part A (or
to a person acting on the individual's behalf), at or
about the time of the individual's admission as an
inpatient to the hospital, a written statement
(containing such language as the Secretary prescribes
consistent with this paragraph) which explains--
(i) the individual's rights to benefits for
inpatient hospital services and for post-
hospital services under this title,
(ii) the circumstances under which such an
individual will and will not be liable for
charges for continued stay in the hospital,
(iii) the individual's right to appeal
denials of benefits for continued inpatient
hospital services, including the practical
steps to initiate such an appeal, and
(iv) the individual's liability for payment
for services if such a denial of benefits is
upheld on appeal,--and which provides such
additional information as the Secretary may
specify,
(N) in the case of hospitals, critical access
hospitals, and rural emergency hospitals--
(i) to make available to its patients the
directory or directories of participating
physicians (published under section 1842(h)(4))
for the area served by the hospital, critical
access hospital, or rural emergency hospital,
(ii) if hospital personnel (including staff
of any emergency or outpatient department)
refer a patient to a nonparticipating physician
for further medical care on an outpatient
basis, the personnel must inform the patient
that the physician is a nonparticipating
physician and, whenever practicable, must
identify at least one qualified participating
physician who is listed in such a directory and
from whom the patient may receive the necessary
services,
(iii) to post conspicuously in any emergency
department a sign (in a form specified by the
Secretary) specifying rights of individuals
under section 1867 with respect to examination
and treatment for emergency medical conditions
and women in labor, and
(iv) to post conspicuously (in a form
specified by the Secretary) information
indicating whether or not the hospital,
critical access hospital, or rural emergency
hospital participates in the medicaid program
under a State plan approved under title XIX,
(O) to accept as payment in full for services that
are covered under this title and are furnished to any
individual enrolled with a Medicare+Choice organization
under part C, with a PACE provider under section 1894
or 1934, or with an eligible organization with a risk-
sharing contract under section 1876, under section
1876(i)(2)(A) (as in effect before February 1, 1985),
under section 402(a) of the Social Security Amendments
of 1967, or under section 222(a) of the Social Security
Amendments of 1972, which does not have a contract (or,
in the case of a PACE provider, contract or other
agreement) establishing payment amounts for services
furnished to members of the organization or PACE
program eligible individuals enrolled with the PACE
provider, the amounts that would be made as a payment
in full under this title (less any payments under
sections 1886(d)(11) and 1886(h)(3)(D)) if the
individuals were not so enrolled,
(P) in the case of home health agencies which provide
home health services to individuals entitled to
benefits under this title who require catheters,
catheter supplies, ostomy bags, and supplies related to
ostomy car (described in section 1861(m)(5)), to offer
to furnish such supplies to such an individual as part
of their furnishing of home health services,
(Q) in the case of hospitals, skilled nursing
facilities, home health agencies, and hospice programs,
to comply with the requirement of subsection (f)
(relating to maintaining written policies and
procedures respecting advance directives),
(R) to contract only with a health care clearinghouse
(as defined in section 1171) that meets each standard
and implementation specification adopted or established
under part C of title XI on or after the date on which
the health care clearinghouse is required to comply
with the standard or specification,
(S) in the case of a hospital that has a financial
interest (as specified by the Secretary in regulations)
in an entity to which individuals are referred as
described in section 1861(ee)(2)(H)(ii), or in which
such an entity has such a financial interest, or in
which another entity has such a financial interest
(directly or indirectly) with such hospital and such an
entity, to maintain and disclose to the Secretary (in a
form and manner specified by the Secretary) information
on--
(i) the nature of such financial interest,
(ii) the number of individuals who were
discharged from the hospital and who were
identified as requiring home health services,
and
(iii) the percentage of such individuals who
received such services from such provider (or
another such provider),
(T) in the case of hospitals and critical access
hospitals, to furnish to the Secretary such data as the
Secretary determines appropriate pursuant to
subparagraph (E) of section 1886(d)(12) to carry out
such section,
(U) in the case of hospitals which furnish inpatient
hospital services for which payment may be made under
this title, to be a participating provider of medical
care both--
(i) under the contract health services
program funded by the Indian Health Service and
operated by the Indian Health Service, an
Indian tribe, or tribal organization (as those
terms are defined in section 4 of the Indian
Health Care Improvement Act), with respect to
items and services that are covered under such
program and furnished to an individual eligible
for such items and services under such program;
and
(ii) under any program funded by the Indian
Health Service and operated by an urban Indian
organization with respect to the purchase of
items and services for an eligible urban Indian
(as those terms are defined in such section 4),
in accordance with regulations promulgated by the
Secretary regarding admission practices, payment
methodology, and rates of payment (including the
acceptance of no more than such payment rate as payment
in full for such items and services,
(V) in the case of hospitals that are not otherwise
subject to the Occupational Safety and Health Act of
1970 (or a State occupational safety and health plan
that is approved under 18(b) of such Act), to comply
with the Bloodborne Pathogens standard under section
1910.1030 of title 29 of the Code of Federal
Regulations (or as subsequently redesignated),
(W) in the case of a hospital described in
section 1886(d)(1)(B)(v), to report quality
data to the Secretary in accordance with
subsection (k),
(X) maintain and, upon request of the
Secretary, provide access to documentation
relating to written orders or requests for
payment for durable medical equipment,
certifications for home health services, or
referrals for other items or services written
or ordered by the provider under this title, as
specified by the Secretary, [and]
(Y) beginning 12 months after the date of the
enactment of this subparagraph, in the case of a
hospital or critical access hospital, with respect to
each individual who receives observation services as an
outpatient at such hospital or critical access hospital
for more than 24 hours, to provide to such individual
not later than 36 hours after the time such individual
begins receiving such services (or, if sooner, upon
release)--
(i) such oral explanation of the written
notification described in clause (ii), and such
documentation of the provision of such
explanation, as the Secretary determines to be
appropriate;
(ii) a written notification (as specified by
the Secretary pursuant to rulemaking and
containing such language as the Secretary
prescribes consistent with this paragraph)
which--
(I) explains the status of the
individual as an outpatient receiving
observation services and not as an
inpatient of the hospital or critical
access hospital and the reasons for
such status of such individual;
(II) explains the implications of
such status on services furnished by
the hospital or critical access
hospital (including services furnished
on an inpatient basis), such as
implications for cost-sharing
requirements under this title and for
subsequent eligibility for coverage
under this title for services furnished
by a skilled nursing facility;
(III) includes such additional
information as the Secretary determines
appropriate;
(IV) either--
(aa) is signed by such
individual or a person acting
on such individual's behalf to
acknowledge receipt of such
notification; or
(bb) if such individual or
person refuses to provide the
signature described in item
(aa), is signed by the staff
member of the hospital or
critical access hospital who
presented the written
notification and includes the
name and title of such staff
member, a certification that
the notification was presented,
and the date and time the
notification was presented; and
(V) is written and formatted using
plain language and is made available in
appropriate languages as determined by
the Secretary[.]; and
(Z) in the case of hospitals that are not otherwise
subject to the Occupational Safety and Health Act of
1970 (or a State occupational safety and health plan
that is approved under 18(b) of such Act) and skilled
nursing facilities that are not otherwise subject to
such Act (or such a State occupational safety and
health plan), to comply with the Workplace Violence
Prevention Standard (as promulgated under section 101
of the Workplace Violence Prevention for Health Care
and Social Service Workers Act).
In the case of a hospital which has an agreement in effect with
an organization described in subparagraph (F), which
organization's contract with the Secretary under part B of
title XI is terminated on or after October 1, 1984, the
hospital shall not be determined to be out of compliance with
the requirement of such subparagraph during the six month
period beginning on the date of the termination of that
contract.
(2)(A) A provider of services may charge such individual or
other person (i) the amount of any deduction or coinsurance
amount imposed pursuant to section 1813(a)(1), (a)(3), or
(a)(4), section 1833(b), or section 1861(y)(3) with respect to
such items and services (not in excess of the amount
customarily charged for such items and services by such
provider), and (ii) an amount equal to 20 per centum of the
reasonable charges for such items and services (not in excess
of 20 per centum of the amount customarily charged for such
items and services by such provider) for which payment is made
under part B or which are durable medical equipment furnished
as home health services (but in the case of items and services
furnished to individuals with end-stage renal disease, an
amount equal to 20 percent of the estimated amounts for such
items and services calculated on the basis established by the
Secretary). In the case of items and services described in
section 1833(c), clause (ii) of the preceding sentence shall be
applied by substituting for 20 percent the proportion which is
appropriate under such section. A provider of services may not
impose a charge under clause (ii) of the first sentence of this
subparagraph with respect to items and services described in
section 1861(s)(10)(A) and with respect to clinical diagnostic
laboratory tests for which payment is made under part B.
Notwithstanding the first sentence of this subparagraph, a home
health agency may charge such an individual or person, with
respect to covered items subject to payment under section
1834(a), the amount of any deduction imposed under section
1833(b) and 20 percent of the payment basis described in
section 1834(a)(1)(B). In the case of items and services for
which payment is made under part B under the prospective
payment system established under section 1833(t), clause (ii)
of the first sentence shall be applied by substituting for 20
percent of the reasonable charge, the applicable copayment
amount established under section 1833(t)(5). In the case of
services described in section 1833(a)(8) or section 1833(a)(9)
for which payment is made under part B under section 1834(k),
clause (ii) of the first sentence shall be applied by
substituting for 20 percent of the reasonable charge for such
services 20 percent of the lesser of the actual charge or the
applicable fee schedule amount (as defined in such section) for
such services.
(B) Where a provider of services has furnished, at the
request of such individual, items or services which are in
excess of or more expensive than the items or services with
respect to which payment may be made under this title, such
provider of services may also charge such individual or other
person for such more expensive items or services to the extent
that the amount customarily charged by it for the items or
services furnished at such request exceeds the amount
customarily charged by it for the items or services with
respect to which payment may be made under this title.
(C) A provider of services may in accordance with its
customary practice also appropriately charge any such
individual for any whole blood (or equivalent quantities of
packed red blood cells, as defined under regulations) furnished
him with respect to which a deductible is imposed under section
1813(a)(2), except that (i) any excess of such charge over the
cost to such provider for the blood (or equivalent quantities
of packed red blood cells, as so defined) shall be deducted
from any payment to such provider under this title, (ii) no
such charge may be imposed for the cost of administration of
such blood (or equivalent quantities of packed red blood cells,
as so defined), and (iii) such charge may not be made to the
extent such blood (or equivalent quantities of packed red blood
cells, as so defined) has been replaced on behalf of such
individual or arrangements have been made for its replacement
on his behalf. For purposes of subparagraph (C), whole blood
(or equivalent quantities of packed red blood cells, as so
defined) furnished an individual shall be deemed replaced when
the provider of services is given one pint of blood for each
pint of blood (or equivalent quantities of packed red blood
cells, as so defined) furnished such individual with respect to
which a deduction is imposed under section 1813(a)(2).
(D) Where a provider of services customarily furnishes items
or services which are in excess of or more expensive than the
items or services with respect to which payment may be made
under this title, such provider, notwithstanding the preceding
provisions of this paragraph, may not, under the authority of
section 1866(a)(2)(B)(ii), charge any individual or other
person any amount for such items or services in excess of the
amount of the payment which may otherwise be made for such
items or services under this title if the admitting physician
has a direct or indirect financial interest in such provider.
(3)(A) Under the agreement required under paragraph
(1)(F)(ii), the quality improvement organization must perform
functions (other than those covered under an agreement under
paragraph (1)(F)(i)) under the third sentence of section
1154(a)(4)(A) and under section 1154(a)(14) with respect to
services, furnished by the hospital, critical access hospital,
rural emergency hospital, facility, or agency involved, for
which payment may be made under this title.
(B) For purposes of payment under this title, the cost of
such an agreement to the hospital, critical access hospital,
rural emergency hospital, facility, or agency shall be
considered a cost incurred by such hospital, critical access
hospital, rural emergency hospital, facility, or agency in
providing covered services under this title and shall be paid
directly by the Secretary to the quality improvement
organization on behalf of such hospital, critical access
hospital, rural emergency hospital, facility, or agency in
accordance with a schedule established by the Secretary.
(C) Such payments--
(i) shall be transferred in appropriate proportions
from the Federal Hospital Insurance Trust Fund and from
the Federal Supplementary Medical Insurance Trust Fund,
without regard to amounts appropriated in advance in
appropriation Acts, in the same manner as transfers are
made for payment for services provided directly to
beneficiaries, and
(ii) shall not be less in the aggregate for a fiscal
year--
(I) in the case of hospitals, than the amount
specified in paragraph (1)(F)(i)(III), and
(II) in the case of facilities, critical
access hospitals, rural emergency hospitals,
and agencies, than the amounts the Secretary
determines to be sufficient to cover the costs
of such organizations' conducting the
activities described in subparagraph (A) with
respect to such facilities, critical access
hospitals, rural emergency hospitals, or
agencies under part B of title XI.
(b)(1) A provider of services may terminate an agreement with
the Secretary under this section at such time and upon such
notice to the Secretary and the public as may be provided in
regulations, except that notice of more than six months shall
not be required.
(2) The Secretary may refuse to enter into an agreement under
this section or, upon such reasonable notice to the provider
and the public as may be specified in regulations, may refuse
to renew or may terminate such an agreement after the
Secretary--
(A) has determined that the provider fails to comply
substantially with the provisions of the agreement,
with the provisions of this title and regulations
thereunder, or with a corrective action required under
section 1886(f)(2)(B),
(B) has determined that the provider fails
substantially to meet the applicable provisions of
section 1861,
(C) has excluded the provider from participation in a
program under this title pursuant to section 1128 or
section 1128A, or
(D) has ascertained that the provider has been
convicted of a felony under Federal or State law for an
offense which the Secretary determines is detrimental
to the best interests of the program or program
beneficiaries.
(3) A termination of an agreement or a refusal to renew an
agreement under this subsection shall become effective on the
same date and in the same manner as an exclusion from
participation under the programs under this title becomes
effective under section 1128(c).
(4)(A) A hospital that fails to comply with the requirement
of subsection (a)(1)(V) (relating to the Bloodborne Pathogens
standard) and a hospital or skilled nursing facility that fails
to comply with the requirement of subsection (a)(1)(Z)
(relating to the Workplace Violence Prevention Standard) is
subject to a civil money penalty in an amount described in
subparagraph (B), but is not subject to termination of an
agreement under this section.
(B) The amount referred to in subparagraph (A) is an amount
that is similar to the amount of civil penalties that may be
imposed under section 17 of the Occupational Safety and Health
Act of 1970 for a violation of the Bloodborne Pathogens
standard referred to in subsection [(a)(1)(U)] (a)(1)(V) by a
hospital that is subject to the provisions of such Act (or, in
the case of a failure to comply with the requirement of
subsection (a)(1)(Z), for a violation of the Workplace Violence
Prevention standard referred to in such subsection by a
hospital or skilled nursing facility, as applicable, that is
subject to the provisions of such Act).
(C) A civil money penalty under this paragraph shall be
imposed and collected in the same manner as civil money
penalties under subsection (a) of section 1128A are imposed and
collected under that section.
(c)(1) Where the Secretary has terminated or has refused to
renew an agreement under this title with a provider of
services, such provider may not file another agreement under
this title unless the Secretary finds that the reason for the
termination or nonrenewal has been removed and that there is
reasonable assurance that it will not recur.
(2) Where the Secretary has terminated or has refused to
renew an agreement under this title with a provider of
services, the Secretary shall promptly notify each State agency
which administers or supervises the administration of a State
plan approved under title XIX of such termination or
nonrenewal.
(d) If the Secretary finds that there is a substantial
failure to make timely review in accordance with section
1861(k) of long-stay cases in a hospital, he may, in lieu of
terminating his agreement with such hospital, decide that, with
respect to any individual admitted to such hospital after a
subsequent date specified by him, no payment shall be made
under this title for inpatient hospital services (including
inpatient psychiatric hospital services) after the 20th day of
a continuous period of such services. Such decision may be made
effective only after such notice to the hospital and to the
public, as may be prescribed by regulations, and its
effectiveness shall terminate when the Secretary finds that the
reason therefor has been removed and that there is reasonable
assurance that it will not recur. The Secretary shall not make
any such decision except after reasonable notice and
opportunity for hearing to the institution or agency affected
thereby.
(e) For purposes of this section, the term ``provider of
services'' shall include--
(1) a clinic, rehabilitation agency, or public health
agency if, in the case of a clinic or rehabilitation
agency, such clinic or agency meets the requirements of
section 1861(p)(4)(A) (or meets the requirements of
such section through the operation of subsection (g) or
(ll)(2) of section 1861), or if, in the case of a
public health agency, such agency meets the
requirements of section 1861(p)(4)(B) (or meets the
requirements of such section through the operation of
subsection (g) or (ll)(2) of section 1861), but only
with respect to the furnishing of outpatient physical
therapy services (as therein defined), (through the
operation of section 1861(g)) with respect to the
furnishing of outpatient occupational therapy services,
or (through the operation of section 1861(ll)(2)) with
respect to the furnishing of outpatient speech-language
pathology;
(2) a community mental health center (as defined in
section 1861(ff)(3)(B)), but only with respect to the
furnishing of partial hospitalization services (as
described in section 1861(ff)(1)); and
(3) opioid treatment programs (as defined in
paragraph (2) of section 1861(jjj)), but only with
respect to the furnishing of opioid use disorder
treatment services (as defined in paragraph (1) of such
section).
(f)(1) For purposes of subsection (a)(1)(Q) and sections
1819(c)(2)(E), 1833(s), 1855(i), 1876(c)(8), and 1891(a)(6),
the requirement of this subsection is that a provider of
services, Medicare+Choice organization, or prepaid or eligible
organization (as the case may be) maintain written policies and
procedures with respect to all adult individuals receiving
medical care by or through the provider or organization--
(A) to provide written information to each such
individual concerning--
(i) an individual's rights under State law
(whether statutory or as recognized by the
courts of the State) to make decisions
concerning such medical care, including the
right to accept or refuse medical or surgical
treatment and the right to formulate advance
directives (as defined in paragraph (3)), and
(ii) the written policies of the provider or
organization respecting the implementation of
such rights;
(B) to document in a prominent part of the
individual's current medical record whether or not the
individual has executed an advance directive;
(C) not to condition the provision of care or
otherwise discriminate against an individual based on
whether or not the individual has executed an advance
directive;
(D) to ensure compliance with requirements of State
law (whether statutory or as recognized by the courts
of the State) respecting advance directives at
facilities of the provider or organization; and
(E) to provide (individually or with others) for
education for staff and the community on issues
concerning advance directives.
Subparagraph (C) shall not be construed as requiring the
provision of care which conflicts with an advance directive.
(2) The written information described in paragraph (1)(A)
shall be provided to an adult individual--
(A) in the case of a hospital, at the time of the
individual's admission as an inpatient,
(B) in the case of a skilled nursing facility, at the
time of the individual's admission as a resident,
(C) in the case of a home health agency, in advance
of the individual coming under the care of the agency,
(D) in the case of a hospice program, at the time of
initial receipt of hospice care by the individual from
the program, and
(E) in the case of an eligible organization (as
defined in section 1876(b)) or an organization provided
payments under section 1833(a)(1)(A) or a
Medicare+Choice organization, at the time of enrollment
of the individual with the organization.
(3) In this subsection, the term ``advance directive'' means
a written instruction, such as a living will or durable power
of attorney for health care, recognized under State law
(whether statutory or as recognized by the courts of the State)
and relating to the provision of such care when the individual
is incapacitated.
(4) For construction relating to this subsection, see section
7 of the Assisted Suicide Funding Restriction Act of 1997
(relating to clarification respecting assisted suicide,
euthanasia, and mercy killing).
(g) Except as permitted under subsection (a)(2), any person
who knowingly and willfully presents, or causes to be
presented, a bill or request for payment inconsistent with an
arrangement under subsection (a)(1)(H) or in violation of the
requirement for such an arrangement, is subject to a civil
money penalty of not to exceed $2,000. The provisions of
section 1128A (other than subsections (a) and (b)) shall apply
to a civil money penalty under the previous sentence in the
same manner as such provisions apply to a penalty or proceeding
under section 1128A(a).
(h)(1)(A) Except as provided in paragraph (2), an institution
or agency dissatisfied with a determination by the Secretary
that it is not a provider of services or with a determination
described in subsection (b)(2) shall be entitled to a hearing
thereon by the Secretary (after reasonable notice) to the same
extent as is provided in section 205(b), and to judicial review
of the Secretary's final decision after such hearing as is
provided in section 205(g), except that, in so applying such
sections and in applying section 205(l) thereto, any reference
therein to the Commissioner of Social Security or the Social
Security Administration shall be considered a reference to the
Secretary or the Department of Health and Human Services,
respectively.
(B) An institution or agency described in subparagraph (A)
that has filed for a hearing under subparagraph (A) shall have
expedited access to judicial review under this subparagraph in
the same manner as providers of services, suppliers, and
individuals entitled to benefits under part A or enrolled under
part B, or both, may obtain expedited access to judicial review
under the process established under section 1869(b)(2). Nothing
in this subparagraph shall be construed to affect the
application of any remedy imposed under section 1819 during the
pendency of an appeal under this subparagraph.
(C)(i) The Secretary shall develop and implement a process to
expedite proceedings under this subsection in which--
(I) the remedy of termination of participation has
been imposed;
(II) a remedy described in clause (i) or (iii) of
section 1819(h)(2)(B) has been imposed, but only if
such remedy has been imposed on an immediate basis; or
(III) a determination has been made as to a finding
of substandard quality of care that results in the loss
of approval of a skilled nursing facility's nurse aide
training program.
(ii) Under such process under clause (i), priority shall be
provided in cases of termination described in clause (i)(I).
(iii) Nothing in this subparagraph shall be construed to
affect the application of any remedy imposed under section 1819
during the pendency of an appeal under this subparagraph.
(2) An institution or agency is not entitled to separate
notice and opportunity for a hearing under both section 1128
and this section with respect to a determination or
determinations based on the same underlying facts and issues.
(i)(1) If the Secretary determines that a psychiatric
hospital which has an agreement in effect under this section no
longer meets the requirements for a psychiatric hospital under
this title and further finds that the hospital's deficiencies--
(A) immediately jeopardize the health and safety of
its patients, the Secretary shall terminate such
agreement; or
(B) do not immediately jeopardize the health and
safety of its patients, the Secretary may terminate
such agreement, or provide that no payment will be made
under this title with respect to any individual
admitted to such hospital after the effective date of
the finding, or both.
(2) If a psychiatric hospital, found to have deficiencies
described in paragraph (1)(B), has not complied with the
requirements of this title--
(A) within 3 months after the date the hospital is
found to be out of compliance with such requirements,
the Secretary shall provide that no payment will be
made under this title with respect to any individual
admitted to such hospital after the end of such 3-month
period, or
(B) within 6 months after the date the hospital is
found to be out of compliance with such requirements,
no payment may be made under this title with respect to
any individual in the hospital until the Secretary
finds that the hospital is in compliance with the
requirements of this title.
(j) Enrollment Process for Providers of Services and
Suppliers.--
(1) Enrollment process.--
(A) In general.--The Secretary shall
establish by regulation a process for the
enrollment of providers of services and
suppliers under this title. Such process shall
include screening of providers and suppliers in
accordance with paragraph (2), a provisional
period of enhanced oversight in accordance with
paragraph (3), disclosure requirements in
accordance with paragraph (5), the imposition
of temporary enrollment moratoria in accordance
with paragraph (7), and the establishment of
compliance programs in accordance with
paragraph (9).
(B) Deadlines.--The Secretary shall establish
by regulation procedures under which there are
deadlines for actions on applications for
enrollment (and, if applicable, renewal of
enrollment). The Secretary shall monitor the
performance of medicare administrative
contractors in meeting the deadlines
established under this subparagraph.
(C) Consultation before changing provider
enrollment forms.--The Secretary shall consult
with providers of services and suppliers before
making changes in the provider enrollment forms
required of such providers and suppliers to be
eligible to submit claims for which payment may
be made under this title.
(2) Provider screening.--
(A) Procedures.--Not later than 180 days
after the date of enactment of this paragraph,
the Secretary, in consultation with the
Inspector General of the Department of Health
and Human Services, shall establish procedures
under which screening is conducted with respect
to providers of medical or other items or
services and suppliers under the program under
this title, the Medicaid program under title
XIX, and the CHIP program under title XXI.
(B) Level of screening.--The Secretary shall
determine the level of screening conducted
under this paragraph according to the risk of
fraud, waste, and abuse, as determined by the
Secretary, with respect to the category of
provider of medical or other items or services
or supplier. Such screening--
(i) shall include a licensure check,
which may include such checks across
States; and
(ii) may, as the Secretary determines
appropriate based on the risk of fraud,
waste, and abuse described in the
preceding sentence, include--
(I) a criminal background
check;
(II) fingerprinting;
(III) unscheduled and
unannounced site visits,
including preenrollment site
visits;
(IV) database checks
(including such checks across
States); and
(V) such other screening as
the Secretary determines
appropriate.
(C) Application fees.--
(i) Institutional providers.--Except
as provided in clause (ii), the
Secretary shall impose a fee on each
institutional provider of medical or
other items or services or supplier
(such as a hospital or skilled nursing
facility) with respect to which
screening is conducted under this
paragraph in an amount equal to--
(I) for 2010, $500; and
(II) for 2011 and each
subsequent year, the amount
determined under this clause
for the preceding year,
adjusted by the percentage
change in the consumer price
index for all urban consumers
(all items; United States city
average) for the 12-month
period ending with June of the
previous year.
(ii) Hardship exception; waiver for
certain medicaid providers.--The
Secretary may, on a case-by-case basis,
exempt a provider of medical or other
items or services or supplier from the
imposition of an application fee under
this subparagraph if the Secretary
determines that the imposition of the
application fee would result in a
hardship. The Secretary may waive the
application fee under this subparagraph
for providers enrolled in a State
Medicaid program for whom the State
demonstrates that imposition of the fee
would impede beneficiary access to
care.
(iii) Use of funds.--Amounts
collected as a result of the imposition
of a fee under this subparagraph shall
be used by the Secretary for program
integrity efforts, including to cover
the costs of conducting screening under
this paragraph and to carry out this
subsection and section 1128J.
(D) Application and enforcement.--
(i) New providers of services and
suppliers.--The screening under this
paragraph shall apply, in the case of a
provider of medical or other items or
services or supplier who is not
enrolled in the program under this
title, title XIX, or title XXI as of
the date of enactment of this
paragraph, on or after the date that is
1 year after such date of enactment.
(ii) Current providers of services
and suppliers.--The screening under
this paragraph shall apply, in the case
of a provider of medical or other items
or services or supplier who is enrolled
in the program under this title, title
XIX, or title XXI as of such date of
enactment, on or after the date that is
2 years after such date of enactment.
(iii) Revalidation of enrollment.--
Effective beginning on the date that is
180 days after such date of enactment,
the screening under this paragraph
shall apply with respect to the
revalidation of enrollment of a
provider of medical or other items or
services or supplier in the program
under this title, title XIX, or title
XXI.
(iv) Limitation on enrollment and
revalidation of enrollment.--In no case
may a provider of medical or other
items or services or supplier who has
not been screened under this paragraph
be initially enrolled or reenrolled in
the program under this title, title
XIX, or title XXI on or after the date
that is 3 years after such date of
enactment.
(E) Use of information from the department of
treasury concerning tax debts.--In reviewing
the application of a provider of services or
supplier to enroll or reenroll under the
program under this title, the Secretary shall
take into account the information supplied by
the Secretary of the Treasury pursuant to
section 6103(l)(22) of the Internal Revenue
Code of 1986, in determining whether to deny
such application or to apply enhanced oversight
to such provider of services or supplier
pursuant to paragraph (3) if the Secretary
determines such provider of services or
supplier owes such a debt.
(F) Expedited rulemaking.--The Secretary may
promulgate an interim final rule to carry out
this paragraph.
(3) Provisional period of enhanced oversight for new
providers of services and suppliers.--
(A) In general.--The Secretary shall
establish procedures to provide for a
provisional period of not less than 30 days and
not more than 1 year during which new providers
of medical or other items or services and
suppliers, as the Secretary determines
appropriate, including categories of providers
or suppliers, would be subject to enhanced
oversight, such as prepayment review and
payment caps, under the program under this
title, the Medicaid program under title XIX.
and the CHIP program under title XXI.
(B) Implementation.--The Secretary may
establish by program instruction or otherwise
the procedures under this paragraph.
(4) 90-day period of enhanced oversight for initial
claims of dme suppliers.--For periods beginning after
January 1, 2011, if the Secretary determines that there
is a significant risk of fraudulent activity among
suppliers of durable medical equipment, in the case of
a supplier of durable medical equipment who is within a
category or geographic area under title XVIII
identified pursuant to such determination and who is
initially enrolling under such title, the Secretary
shall, notwithstanding sections 1816(c), 1842(c), and
1869(a)(2), withhold payment under such title with
respect to durable medical equipment furnished by such
supplier during the 90-day period beginning on the date
of the first submission of a claim under such title for
durable medical equipment furnished by such supplier.
(5) Increased disclosure requirements.--
(A) Disclosure.--A provider of medical or
other items or services or supplier who submits
an application for enrollment or revalidation
of enrollment in the program under this title,
title XIX, or title XXI on or after the date
that is 1 year after the date of enactment of
this paragraph shall disclose (in a form and
manner and at such time as determined by the
Secretary) any current or previous affiliation
(directly or indirectly) with a provider of
medical or other items or services or supplier
that has uncollected debt, has been or is
subject to a payment suspension under a Federal
health care program (as defined in section
1128B(f)), has been excluded from participation
under the program under this title, the
Medicaid program under title XIX, or the CHIP
program under title XXI, or has had its billing
privileges denied or revoked.
(B) Authority to deny enrollment.--If the
Secretary determines that such previous
affiliation poses an undue risk of fraud,
waste, or abuse, the Secretary may deny such
application. Such a denial shall be subject to
appeal in accordance with paragraph (7).
(6) Authority to adjust payments of providers of
services and suppliers with the same tax identification
number for medicare obligations.--
(A) In general.--Notwithstanding any other
provision of this title, in the case of an
applicable provider of services or supplier,
the Secretary may make any necessary
adjustments to payments to the applicable
provider of services or supplier under the
program under this title in order to satisfy
any amount described in subparagraph (B)(ii)
due from such obligated provider of services or
supplier.
(B) Definitions.--In this paragraph:
(i) In general.--The term
``applicable provider of services or
supplier'' means a provider of services
or supplier that has the same taxpayer
identification number assigned under
section 6109 of the Internal Revenue
Code of 1986 as is assigned to the
obligated provider of services or
supplier under such section, regardless
of whether the applicable provider of
services or supplier is assigned a
different billing number or national
provider identification number under
the program under this title than is
assigned to the obligated provider of
services or supplier.
(ii) Obligated provider of services
or supplier.--The term ``obligated
provider of services or supplier''
means a provider of services or
supplier that owes an amount that is
more than the amount required to be
paid under the program under this title
(as determined by the Secretary).
(7) Temporary moratorium on enrollment of new
providers; nonpayment.--
(A) In general.--The Secretary may impose a
temporary moratorium on the enrollment of new
providers of services and suppliers, including
categories of providers of services and
suppliers, in the program under this title,
under the Medicaid program under title XIX, or
under the CHIP program under title XXI if the
Secretary determines such moratorium is
necessary to prevent or combat fraud, waste, or
abuse under either such program.
(B) Limitation on review.--There shall be no
judicial review under section 1869, section
1878, or otherwise, of a temporary moratorium
imposed under subparagraph (A).
(C) Nonpayment.--
(i) In general.--No payment may be
made under this title or under a
program described in subparagraph (A)
with respect to an item or service
described in clause (ii) furnished on
or after October 1, 2017.
(ii) Item or service described.--An
item or service described in this
clause is an item or service
furnished--
(I) within a geographic area
with respect to which a
temporary moratorium imposed
under subparagraph (A) is in
effect; and
(II) by a provider of
services or supplier that meets
the requirements of clause
(iii).
(iii) Requirements.--For purposes of
clause (ii), the requirements of this
clause are that a provider of services
or supplier--
(I) enrolls under this title
on or after the effective date
of such temporary moratorium;
and
(II) is within a category of
providers of services and
suppliers (as described in
subparagraph (A)) subject to
such temporary moratorium.
(iv) Prohibition on charges for
specified items or services.--In no
case shall a provider of services or
supplier described in clause (ii)(II)
charge an individual or other person
for an item or service described in
clause (ii) furnished on or after
October 1, 2017, to an individual
entitled to benefits under part A or
enrolled under part B or an individual
under a program specified in
subparagraph (A).
(8) Compliance programs.--
(A) In general.--On or after the date of
implementation determined by the Secretary
under subparagraph (C), a provider of medical
or other items or services or supplier within a
particular industry sector or category shall,
as a condition of enrollment in the program
under this title, title XIX, or title XXI,
establish a compliance program that contains
the core elements established under
subparagraph (B) with respect to that provider
or supplier and industry or category.
(B) Establishment of core elements.--The
Secretary, in consultation with the Inspector
General of the Department of Health and Human
Services, shall establish core elements for a
compliance program under subparagraph (A) for
providers or suppliers within a particular
industry or category.
(C) Timeline for implementation.--The
Secretary shall determine the timeline for the
establishment of the core elements under
subparagraph (B) and the date of the
implementation of subparagraph (A) for
providers or suppliers within a particular
industry or category. The Secretary shall, in
determining such date of implementation,
consider the extent to which the adoption of
compliance programs by a provider of medical or
other items or services or supplier is
widespread in a particular industry sector or
with respect to a particular provider or
supplier category.
(9) Hearing rights in cases of denial or non-
renewal.--A provider of services or supplier whose
application to enroll (or, if applicable, to renew
enrollment) under this title is denied may have a
hearing and judicial review of such denial under the
procedures that apply under subsection (h)(1)(A) to a
provider of services that is dissatisfied with a
determination by the Secretary.
(k) Quality Reporting by Cancer Hospitals.--
(1) In general.--For purposes of fiscal year 2014 and
each subsequent fiscal year, a hospital described in
section 1886(d)(1)(B)(v) shall submit data to the
Secretary in accordance with paragraph (2) with respect
to such a fiscal year.
(2) Submission of quality data.--For fiscal year 2014
and each subsequent fiscal year, each hospital
described in such section shall submit to the Secretary
data on quality measures specified under paragraph (3).
Such data shall be submitted in a form and manner, and
at a time, specified by the Secretary for purposes of
this subparagraph.
(3) Quality measures.--
(A) In general.--Subject to subparagraph (B),
any measure specified by the Secretary under
this paragraph must have been endorsed by the
entity with a contract under section 1890(a).
(B) Exception.--In the case of a specified
area or medical topic determined appropriate by
the Secretary for which a feasible and
practical measure has not been endorsed by the
entity with a contract under section 1890(a),
the Secretary may specify a measure that is not
so endorsed as long as due consideration is
given to measures that have been endorsed or
adopted by a consensus organization identified
by the Secretary.
(C) Time frame.--Not later than October 1,
2012, the Secretary shall publish the measures
selected under this paragraph that will be
applicable with respect to fiscal year 2014.
(4) Public availability of data submitted.--The
Secretary shall establish procedures for making data
submitted under paragraph (4) available to the public.
Such procedures shall ensure that a hospital described
in section 1886(d)(1)(B)(v) has the opportunity to
review the data that is to be made public with respect
to the hospital prior to such data being made public.
The Secretary shall report quality measures of process,
structure, outcome, patients' perspective on care,
efficiency, and costs of care that relate to services
furnished in such hospitals on the Internet website of
the Centers for Medicare & Medicaid Services.
* * * * * * *
MINORITY VIEWS
Introduction
The health care and social services industries face a
significant risk of workplace violence. The Bureau of Labor
Statistics (BLS) reported these industries experience the
highest rates of injuries caused by workplace violence. BLS
also reported health care and social service workers in the
private sector experienced workplace violence-related injuries
at an estimated incidence rate of 10.4 per 10,000 full-time
workers in 2018, and are five times more likely to suffer a
workplace violence injury than other workers overall.\1\
Committee Republicans are committed to responsible federal
laws, regulations, and policies to ensure American workers are
kept out of harm's way on the job so they can return home to
their families every day healthy and safe.
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\1\BLS, Injuries, Illnesses, and Fatalities: Fact Sheet Workplace
Violence in Healthcare, 2018 (Apr. 2020), https://www.bls.gov/iif/
oshwc/cfoi/workplace-violence-healthcare-2018.htm.
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However, H.R. 1195, the Workplace Violence Prevention for
Health Care and Social Service Workers Act, is not the right
solution to address workplace violence in the health care and
social services industries. The legislation is overly
prescriptive, limits the Occupational Safety and Health
Administration's (OSHA) ability to draft an effective,
workable, and feasible regulation, and imposes unwarranted
shortcuts in the regulatory process that will deprive the
agency of meaningful, vital stakeholder input. OSHA has
recognized the hazards and risks health care and social service
workers face and is moving forward with the rulemaking process
to address these workplace safety concerns.\2\ H.R. 1195
circumvents that process and will limit the agency's ability to
write an effective and protective rule. Further, H.R. 1195's
requirement that OSHA issue a rushed interim final standard
within one year is particularly ill-timed and will be harmful
to the health care industry, which is currently doing heroic
work on the front lines in response to the COVID-19 pandemic.
---------------------------------------------------------------------------
\2\Off. of Mgmt. & Budget, Off. of Info. & Reg. Affairs, Prevention
of Workplace Violence in Health Care and Social Assistance, Regulatory
Agenda (2020).
---------------------------------------------------------------------------
Committee Republicans believe there is a bipartisan
solution to this issue that would respect the rulemaking
process and provide protection to health care and social
service workers. However, by advancing H.R. 1195, the Committee
majority is short-circuiting the regulatory process and
choosing to push through overly prescriptive mandates without
important and necessary stakeholder input. For these reasons,
and as set forth more fully below, Committee Republicans are
opposed to H.R. 1195.
CONCERNS WITH H.R. 1195
H.R. 1195 Neglects Important Regulatory Steps
H.R. 1195 requires OSHA to circumvent traditional and long-
standing rulemaking procedures under the Occupational Safety
and Health Act of 1970 (OSH Act) and the Administrative
Procedure Act. The bill compels OSHA to complete and issue an
interim final standard within one year of enactment and with
only one inadequate public comment period of 30 days prior to
publication of the interim final standard. As such, H.R. 1195
severely limits the participation of industry, worker
representatives, the scientific community, and the public in
the development of a new, comprehensive standard governing a
complex and highly technical area of workplace safety.
In 2015, then-Assistant Secretary of Occupational Safety
and Heath David Michaels testified before the Committee
outlining the important, necessary steps in developing a safety
and health regulation:
Developing OSHA regulations is a complex and long
process, with extensive public consultation before any
new standards are issued including, depending on the
standard, requests for information, stakeholder
meetings, Small Business Regulatory Enforcement and
Fairness Act (SBREFA) panels, public hearings, and pre-
and post-hearing comment periods. We are required by
law to ensure that our standards are economically and
technically feasible.\3\
---------------------------------------------------------------------------
\3\Protecting America's Workers: An Enforcement Update from the
Occupational Safety and Health Administration: Hearing Before the
Subcomm. on Workforce Protections of the H. Comm. on Educ. & the
Workforce, 114th Cong. 11-12 (2015) (statement of David Michaels,
Assistant Sec'y, Occupational Safety & Health Admin., U.S. Dep't of
Lab.).
H.R. 1195 forces the agency to skip these important steps
by requiring that OSHA complete an interim final standard
within one year. If the agency does not promulgate a standard
within one year, the interim final standard goes into effect.
Either way, the agency would be enforcing an interim final
standard that lacks meaningful and essential public feedback.
The regulatory steps Dr. Michaels outlined are necessary for a
variety of important reasons including compelling the agency to
receive important feedback from stakeholders and the public to
create a protective, workable, and feasible federal safety and
health standard.
One vital step the bill omits is the SBREFA panel. Eric
Hobbs, an attorney with expertise in workplace safety and
health, testified before the Committee in 2018 on the
importance of this panel:
Under the panel review process, small businesses who
would be affected by a proposed regulation are allowed
to review the draft proposal as well as OSHA's draft
impact assessment and provide direct comments on them.
This happens at a stage in the process when there is
still time to make adjustments--unlike when, by
contrast, a proposed regulation has been issued and
there is very little chance to make significant
changes.\4\
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\4\A More Effective and Collaborative OSHA: A View from
Stakeholders: Hearing before the Subcomm. on Workforce Protections of
the H. Comm. on Educ. & the Workforce, 115th Cong. (2018) (written
statement of Eric Hobbs, Shareholder, Ogletree, Deakins, at 4).
Notably, H.R. 1195 does not consider the impact of a
workplace violence standard on small businesses and it does not
require an economic impact test to determine whether it will
have a significant effect on small businesses and if there are
ways to minimize the impact. The regulatory steps to create a
federal safety and health standard are vital to ensure the
scope of the standard is appropriate, as small businesses may
not have the same risk of workplace violence, or the same
challenges, as larger employers. During the Obama
administration, OSHA stated in its 2016 request for information
(RFI) on prevention of workplace violence for health care and
social assistance that the agency would consider the impacts on
small businesses: ``Regardless of the significance of the
impacts, OSHA seeks ways of minimizing the burdens of small
businesses consistent with OSHA's statutory and regulatory
requirements and objectives.''\5\
---------------------------------------------------------------------------
\5\Prevention of Workplace Violence for Healthcare and Social
Assistance, 81 Fed. Reg. 88,147, 88,164 (Dec. 7, 2016) (request for
information).
---------------------------------------------------------------------------
In a 2021 letter to the Committee, the American Hospital
Association expressed concerns about omitting important
regulatory steps:
[B]ecause hospitals have already implemented
specifically tailored policies and programs to address
workplace violence, we do not believe that the OSHA
standards required by H.R. 1195 are warranted, nor do
we support an expedited approach that would deny the
public the opportunity to review and comment on
proposed regulations.\6\
---------------------------------------------------------------------------
\6\Letter from Thomas Nickels, Exec. Vice President, Am. Hosp.
Ass'n, to Rep. Joe Courtney (Mar. 23, 2021) (on file).
H.R. 1195 also discounts the expertise of American workers
who have experienced workplace violence and who could provide
important insights, as well as a variety of experts who have
been researching the issue for years. Mr. Manesh Rath, an
attorney with experience in occupational safety and health law
and administrative law, explained in Committee testimony in
2019 when nearly identical legislation\7\ was considered, that
mitigating workplace violence is a subject area in which
stakeholders have amassed critical knowledge and experience
that would be important to consider during rulemaking:
---------------------------------------------------------------------------
\7\H.R. 1309, 116th Cong. (2019).
Any effort to regulate the issue of workplace
violence in healthcare should be thoughtful rather than
rushed. The process should be inclusive of employers,
employees, the security industry, the insurance
industry, and the scientific and medical professions.
This subcommittee can and should have faith that the
collaborative input of those with experience, training,
and learning in this field will yield a better approach
than the Bill before us today.\8\
---------------------------------------------------------------------------
\8\Caring for Our Caregivers: Protecting Health Care and Social
Service Workers from Workplace Violence: Hearing Before the Subcomm. on
Workforce Protections of the H. Comm. on Educ. & Labor, 116th Cong. 29
(2019) (statement of Manesh Rath, Partner, Keller & Heckman LLP).
---------------------------------------------------------------------------
OSHA is Currently Enforcing Workplace Violence Prevention
Starting in the Obama administration and continuing through
the Trump administration, OSHA has enforced workplace violence
prevention under the general duty clause, section 5(a)(1) of
the OSH Act.\9\ Additionally, in 2017, OSHA issued an
enforcement directive on conducting investigations and
citations related to occupational exposure to workplace
violence.\10\ Allowing OSHA to complete a comprehensive
rulemaking process--rather than requiring a rushed, corner
cutting approach mandated by H.R. 1195--will not leave the
health care and social services industry sectors without proper
enforcement.
---------------------------------------------------------------------------
\9\29 U.S.C. Sec. 654.
\10\OSHA, Dir. No. CPL 02-01-058, Enforcement Procedures and
Scheduling for Occupational Exposure to Workplace Violence (2017).
---------------------------------------------------------------------------
For example, in 2019, the Occupational Safety and Health
Review Commission (OSHRC) upheld penalties issued by OSHA under
the general duty clause against health care facilities for not
adequately addressing workplace violence. Covette Rooney, the
chief administrative law judge of OSHRC, stated in her decision
and order:
There is no specific OSHA standard addressing the
hazard of workplace violence. This does not mean that
employers have no obligation to address the hazard.
Rather, if an employer or its industry recognize that
workplace violence is an actual or potential hazard
that can cause death or serious physical harm, the
Act's general duty clause requires such employers to
act to eliminate or materially reduce this hazard.\11\
---------------------------------------------------------------------------
\11\BHC Northwest Psychiatric Hosp., OSHRC No. 17-0063 (Jan. 22,
2019) (decision and order).
This OSHRC decision, which has been subsequently upheld by
the U.S. Court of Appeals for the District of Columbia
Circuit,\12\ confirms OSHA's authority and intent to enforce
workplace violence protections under the general duty clause,
obviating the purported need to rush a standard through the
regulatory process.
---------------------------------------------------------------------------
\12\BHC Nw. Psychiatric Hosp. v. Sec'y of Lab., 951 F.3d 558 (D.C.
Cir. 2020).
---------------------------------------------------------------------------
H.R. 1195 is Unreasonably and Unnecessarily Prescriptive
H.R. 1195 requires OSHA to base its interim final standard
on the 2015 OSHA ``Guidelines for Preventing Workplace Violence
for Healthcare and Social Service Workers.''\13\ These
guidelines, now outdated, were based on best practices and
feedback from stakeholders at the time. However, the interim
final standard as prescribed by H.R. 1195 will not consider any
data or lessons that have been learned since 2015 that are
contrary to the 2015 guidance. H.R. 1195 thus disadvantages the
very workers it purports to help by ignoring important feedback
and evidence that is currently available. Mr. Rath stated in
his testimony:
---------------------------------------------------------------------------
\13\Workplace Violence Prevention for Health Care and Social
Service Workers Act, H.R. 1195, 117th Cong. Sec. 101(a)(1)(B) (2021).
Before proceeding to rulemaking to develop a legally
binding standard, OSHA should review its experience
with the guidance issued on workplace violence and what
has been learned from citing employers for workplace
violence hazards under the General Duty Clause.\14\
---------------------------------------------------------------------------
\14\Rath statement, supra note 8, at 26.
Moreover, in 2016, OSHA published an RFI on ``Workplace
Violence Prevention for Health Care and Social Assistance,''
but H.R. 1195 does not incorporate information and findings
from the comments received by OSHA responding to the RFI.\15\
The sole purpose of an RFI is to gather data and information to
help determine the appropriate next steps in a rulemaking
process; H.R. 1195 disregards this important step.
---------------------------------------------------------------------------
\15\Prevention of Workplace Violence for Healthcare and Social
Assistance, supra note 5.
---------------------------------------------------------------------------
In considering rulemaking at the federal level, past
experiences should always inform the most effective solution.
In 2016, California issued a regulation titled ``Violence
Prevention in Health Care,'' which went into full effect in
April 2018.\16\ When considering a far-reaching federal
regulation on workplace violence prevention, it would be
irresponsible not to review and study the California policy's
impact on the regulated community. However, H.R. 1195 requires
the final standard provide no less protection than any standard
adopted by a state plan provided that the Secretary of Labor
``finds that the final standard is feasible on the basis of
best available evidence.''\17\ Bottom line, H.R. 1195 requires
OSHA to default to California's standard unless the agency can
show that it is not feasible.
---------------------------------------------------------------------------
\16\Cal. Code of Regs. tit. 8 Sec. 3342.
\17\H.R. 1195, 117th Cong. Sec. 101(b)(2)(A).
---------------------------------------------------------------------------
H.R. 1195 does not take into consideration that
California's standard may not be an effective or workable
approach in California and may be the wrong solution if imposed
nationwide. Mr. Rath noted in testimony before the Committee in
the 117th Congress that California's recent, hastily approved
emergency standard on COVID-19 has notable legal and procedural
deficiencies.\18\ OSHA's 2016 RFI understood the importance of
gathering information on state laws, stating: ``OSHA is also
interested in hearing about healthcare facilities'' experiences
with provisions of state laws that have been shown to be
effective in some way.''\19\
---------------------------------------------------------------------------
\18\Clearing the Air: Science-Based Strategies to Protect Workers
from COVID-19 Infections: Hearing Before the Subcomm. on Workforce
Protections of the H. Comm. on Educ. & Lab., 117th Cong. (2021)
(statement of Manesh Rath, Partner, Keller & Heckman LLP, at 4).
\19\Prevention of Workplace Violence for Healthcare and Social
Assistance, supra note 5, at 88,152.
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H.R. 1195 Lacks Needed Research and Data
Committee Democrats have failed to provide the needed
foundation for the workplace violence prevention standard
required by H.R. 1195. Regulation of workplace violence
prevention in the health care and social services industries
must be grounded in evidence-based research. Currently, there
is no agreed-upon set of policies to prevent workplace
violence, and researchers in the field have pointed to the need
for additional studies.
The Centers for Disease Control and Prevention published
its ``National Occupational Research Agenda for Healthcare and
Social Assistance'' in February 2019. The research agenda was
developed to identify the knowledge and actions most urgently
needed to improve safety in the industry. The 2019 agenda
included an objective to ``investigate the epidemiology of
workplace violence in health care and identify effective
strategies for prevention and mitigation.'' The objective
points to the following concerns regarding needed research on
the topic:
Many existing studies have evaluated workplace
violence risk factors and prevention measures, but most
lack the comprehensive, facility- and work area-
specific perspective that is needed to effectively
prevent workplace violence. Additionally, many of these
studies examine the effects of training programs,
showing little impact on workplace violence incident
and injury rates.\20\
---------------------------------------------------------------------------
\20\Ctrs. for Disease Control & Prevention, National Occupational
Research Agenda for Healthcare and Social Assistance 13 (Feb. 2019).
Even the 2016 report by the Government Accountability
Office (GAO), cited by supporters of H.R. 1195, highlights
there have been a limited number of studies on the
effectiveness of workplace violence prevention, stating:
``Relatively few studies have been conducted on the
effectiveness of workplace violence prevention programs,
limiting what is known about the extent to which such programs
or their components reduce workplace violence.''\21\ Moreover,
the 2016 GAO report did not call on OSHA to promulgate a
standard; instead, it recommended a full assessment of OSHA's
efforts to address workplace violence in health care
facilities:
---------------------------------------------------------------------------
\21\U.S. Gov't Accountability Off., GAO-16-11, Workplace Safety and
Health: Additional Efforts Needed to Help Protect Health Care Workers
from Workplace Violence 1 (Mar. 2016).
[OSHA should a]ssess the results of its efforts to
determine whether additional action, such as
development of a standard may be needed. OSHA has not
fully assessed the results of its efforts to address
workplace violence in health care facilities. Without
assessing these results, OSHA will not be in a position
to know whether its efforts are effective or if
additional action may be needed to address this
hazard.\22\
---------------------------------------------------------------------------
\22\Id.
Following GAO's recommendation, as noted previously, OSHA
issued an RFI to gather more data from the public to better
---------------------------------------------------------------------------
understand how to proceed, stating:
OSHA is interested in hearing from employers and
individuals in facilities that provide healthcare and
social assistance about their experience with the
various components of workplace violence prevention
programs that are currently being implemented by their
facilities.\23\
---------------------------------------------------------------------------
\23\Prevention of Workplace Violence for Healthcare and Social
Assistance, supra note 5, at 88,161.
However, the RFI was only a first step for OSHA in
gathering important information on workplace violence
prevention, and the agency clearly believed additional data was
needed before proceeding. Members of the health care and social
assistance research communities have identified workplace
violence prevention as an area in need of further examination,
yet the Committee majority is pushing through a standard that
lacks meaningful expert input and stakeholder participation.
H.R. 1195 Will Harm Health Care Facilities During the COVID-19 Pandemic
Over the past year, the health care industry has made
heroic efforts on the front lines, responding to the COVID-19
pandemic. Health care facilities have invested significant
resources during the pandemic to prepare and effectively care
for a surge of COVID-19 patients and maintain a safe workplace
for their employees to protect them from the virus. H.R. 1195's
mandate that OSHA issue an interim final rule on workplace
violence in the health care and social services industries
within one year is incredibly ill-timed amidst the ongoing
pandemic and will significantly strain health care facilities
at a time when resources have rightly been prioritized to
respond to the most significant public health threat the United
States has experienced in a century. The impact will especially
be felt by medical facilities in rural areas and other
vulnerable communities with scarce resources, which are already
at risk of closure.\24\
---------------------------------------------------------------------------
\24\U.S. Gov't Accountability Off., GAO-121-93, Rural Hospital
Closures: Affected Residents Had Reduced Access to Health Care Services
(Dec. 2020).
---------------------------------------------------------------------------
When nearly identical legislation was considered in the
116th Congress prior to the COVID-19 pandemic, the
Congressional Budget Office (CBO) estimated that enactment
would result in compliance costs of at least $1.8 billion for
private facilities and $100 million for public facilities over
the first two years the rule prescribed by this legislation
would be in effect.\25\ CBO estimated that in the long term,
combined compliance costs for the private and public sectors
would run at least $805 million annually, and substantial
personnel and capital costs would be imposed by the
requirements for employee education, investigation, engineering
controls, and infrastructure changes. Of the CBO's projected
cost burden of Committee Democrats' legislation, the American
Hospital Association stated:
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\25\CBO, H.R. 1309, Workplace Violence Prevention for Health Care
and Social Service Workers Act (Nov. 19, 2019).
Such costs are unsustainable. A recent report by
Kaufman-Hall forecasts that total hospital revenue in
2021 could be down between $53 billion and $122 billion
from pre-pandemic levels. In addition to lost revenue,
hospitals must absorb increases in many expenses due to
COVID-19. These losses come on top of the historic
financial crisis that hit the hospital field last year,
with an AHA report estimating total losses for the
nation's hospitals and health systems to be at least
$323 billion through 2020.\26\
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\26\Letter from Thomas Nickels, supra note 6.
In addition, on January 21, 2021, President Biden issued an
Executive Order (EO) on ``Protecting Worker Safety and
Health,'' which directed OSHA to consider whether an emergency
temporary standard (ETS) to protect workers from COVID-19 is
necessary.\27\ The agency has already missed the March 15
deadline prescribed by President Biden's EO and has not yet
determined whether an ETS is necessary. If OSHA issues a
sweeping emergency regulation on COVID-19 on top of an interim
final rule on workplace violence within one year, as required
by H.R. 1195, this regulatory onslaught will significantly
burden the health care industry and have a devastating impact
on its ability to respond to the ongoing COVID-19 pandemic.
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\27\Exec. Order No. 13,999, 86 Fed. Reg. 7211 (Jan. 26, 2021).
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H.R. 1195 Inappropriately Imposes a New Government Enforcement Regime
on Employers
It is important to protect employees from retaliation for
reporting a violent incident or injury to their employer. That
is why under section 11(c) of the OSH Act, employees have the
right to pursue complaints alleging retaliation.\28\ However,
H.R. 1195 allows government bureaucrats to unilaterally
investigate what they believe is potential retaliation in the
absence of an actual complaint. Employees are already protected
from retaliation under current law, but H.R. 1195 radically
expands OSHA's authority to investigate alleged retaliation
without the existence of a whistleblower complaint.
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\28\29 U.S.C. Sec. 660(c); OSHA's 2015 ``Guidelines for Preventing
Workplace Violence for Healthcare and Social Service Workers,'' states:
Reprisal or discrimination against an employee for reporting an
incident or injury related to workplace violence, related to this
guidance, to an employer or OSHA would constitute a violation of
Section 11(c) of the Act. In addition, 29 CFR 1904.36 provides that
Section 11(c) of the Act prohibits discrimination against an employee
for reporting a work related fatality, injury or illness.
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H.R. 1195 Creates New Data Privacy Risks and Requires Unnecessary
Annual Reporting to OSHA
Employers use records, such as violence incident logs and
annual summaries, to improve internal management and processes
to protect their workplaces. Additionally, OSHA inspectors have
the right to review the records upon inspection of the
facility.\29\ However, if employers are required to submit
these reports to OSHA annually, as H.R. 1195 mandates, then it
will deter the use of the records for these purposes; the
employer will have no guarantee the records will not be
released either intentionally or unintentionally and used
improperly. In a comment letter to OSHA regarding the proposed
2013 recordkeeping submittal requirement, the Coalition for
Workplace Safety stated:
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\29\29 U.S.C. Sec. 657.
Public disclosure of this information will lead to
underreporting of injuries and illness, creating a
problem that does not currently exist. And, it will
allow those who wish to do so, to mischaracterize and
misuse the information for reasons wholly unrelated to
safety.\30\
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\30\Letter from Coalition for Workplace Safety to David Michaels,
Assistant Sec'y, Occupational Safety & Health Admin., U.S. Dep't of
Labor (Mar. 10, 2014), https://www.regulations.gov/document?D=OSHA-
2013-0023-1411.
It is important that facilities keep accurate records of
incidents, responses to incidents, and annual data, but a
government mandate requiring employers to provide this
information to OSHA annually will not produce greater safety
benefits.
Republican Substitute
Committee Republicans are committed to ensuring that health
care and social service workers are protected from workplace
violence and are supportive of OSHA's efforts to promulgate a
rule on workplace violence prevention. However, Congress should
aid in the rulemaking process and not circumvent it.
To achieve these goals, Representative Tim Walberg (R-MI)
offered a substitute amendment at the Committee markup that
requires the Secretary of Labor to promulgate a final standard
on workplace violence prevention for health care and social
services sectors but allows OSHA to follow the proper
rulemaking procedures and ultimately be responsive to public
comments. The amendment strikes the requirement to publish an
interim final standard within an arbitrary deadline of one
year. Instead, the amendment allows the agency to perform its
due diligence to develop a standard based on meaningful and
robust public comments. The amendment outlines principles of a
workplace violence prevention standard and allows the agency to
be responsive to experts and public concerns to produce the
most protective and feasible standard.
Representative Walberg's amendment also requires that OSHA
conduct an educational campaign on workplace violence
prevention for health care and social services industries while
it is engaged in rulemaking. The campaign will increase
awareness of the issue, assisting with compliance and
supporting wider participation in the rulemaking process. In
addition, when OSHA promulgates the workplace violence
prevention standard, the amendment requires the agency to
conduct an educational campaign for covered employees and
employers on the requirements of the standard.
The amendment removes the annual reporting requirement of
workplace violence data to OSHA, does not allow government-
initiated anti-retaliation investigations that are not based on
a complaint, and maintains the current anti-retaliation
provision in the OSH Act. Unfortunately, Committee Democrats,
by unanimously opposing this commonsense amendment, chose to
prejudge and impose a prescriptive solution without allowing
for meaningful stakeholder input, which will result in a flawed
regulatory approach.
Conclusion
H.R. 1195 will result in a hasty and flawed regulation that
ignores expert and practical input and imposes overly
prescriptive mandates that will eliminate higher quality, more
protective, and practical solutions. H.R 1195 blocks necessary
public input that will produce a superior, feasible workplace
violence prevention standard and imposes onerous requirements
on employers without providing evidence to demonstrate that
this punitive government intervention is needed or will work.
For these reasons, and those outlined above, Committee
Republicans oppose the enactment of H.R. 1195 as reported by
the Committee on Education and Labor.
Virginia Foxx,
Ranking Member.
Joe Wilson.
Glenn ``GT'' Thompson.
Tim Walberg.
Glenn Grothman.
Rick W. Allen.
Jim Banks.
James Comer.
Russ Fulcher.
Fred Keller.
Burgess Owens.
Lisa C. McClain.
Diana Harshbarger.
Scott Fitzgerald.
Madison Cawthorn.
[all]