[House Hearing, 116 Congress]
[From the U.S. Government Publishing Office]
CARING FOR OUR CAREGIVERS: PROTECTING
HEALTH CARE AND SOCIAL SERVICE WORKERS
FROM WORKPLACE VIOLENCE
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON WORKFORCE PROTECTIONS
COMMITTEE ON EDUCATION
AND LABOR
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTEENTH CONGRESS
FIRST SESSION
__________
HEARING HELD IN WASHINGTON, DC, FEBRUARY 27, 2019
__________
Serial No. 116-6
__________
Printed for the use of the Committee on Education and Labor
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Available via the World Wide Web: www.govinfo.gov
or
Committee address: https://edlabor.house.gov
__________
U.S. GOVERNMENT PUBLISHING OFFICE
35-660 PDF WASHINGTON : 2019
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COMMITTEE ON EDUCATION AND LABOR
ROBERT C. ``BOBBY'' SCOTT, Virginia, Chairman
Susan A. Davis, California Virginia Foxx, North Carolina,
Raul M. Grijalva, Arizona Ranking Member
Joe Courtney, Connecticut David P. Roe, Tennessee
Marcia L. Fudge, Ohio Glenn Thompson, Pennsylvania
Gregorio Kilili Camacho Sablan, Tim Walberg, Michigan
Northern Mariana Islands Brett Guthrie, Kentucky
Frederica S. Wilson, Florida Bradley Byrne, Alabama
Suzanne Bonamici, Oregon Glenn Grothman, Wisconsin
Mark Takano, California Elise M. Stefanik, New York
Alma S. Adams, North Carolina Rick W. Allen, Georgia
Mark DeSaulnier, California Francis Rooney, Florida
Donald Norcross, New Jersey Lloyd Smucker, Pennsylvania
Pramila Jayapal, Washington Jim Banks, Indiana
Joseph D. Morelle, New York Mark Walker, North Carolina
Susan Wild, Pennsylvania James Comer, Kentucky
Josh Harder, California Ben Cline, Virginia
Lucy McBath, Georgia Russ Fulcher, Idaho
Kim Schrier, Washington Van Taylor, Texas
Lauren Underwood, Illinois Steve Watkins, Kansas
Jahana Hayes, Connecticut Ron Wright, Texas
Donna E. Shalala, Florida Daniel Meuser, Pennsylvania
Andy Levin, Michigan* William R. Timmons, IV, South
Ilhan Omar, Minnesota Carolina
David J. Trone, Maryland Dusty Johnson, South Dakota
Haley M. Stevens, Michigan
Susie Lee, Nevada
Lori Trahan, Massachusetts
Joaquin Castro, Texas
* Vice-Chair
Veronique Pluviose, Staff Director
Brandon Renz, Minority Staff Director
------
SUBCOMMITTEE ON WORKFORCE PROTECTIONS
ALMA S. ADAMS, North Carolina, Chairwoman
Mark DeSaulnier, California Bradley Byrne, Alabama,
Mark Takano, California Ranking Member
Pramila Jayapal, Washington Francis Rooney, Florida
Susan Wild, Pennsylvania Mark Walker, North Carolina
Lucy McBath, Georgia Ben Cline, Virginia
Ilhan Omar, Minnesota Ron Wright, Texas
Haley M. Stevens, Michigan
C O N T E N T S
----------
Page
Hearing held on February 27, 2019................................ 1
Statement of Members:
Adams, Hon. Alma S., Chairwoman, Subcommittee on Workforce
Protections................................................ 1
Prepared statement of.................................... 4
Byrne, Hon. Bradley, Ranking Member, Subcommittee on
Workforce Protections...................................... 5
Prepared statement of.................................... 7
Statement of Witnesses:
Moon-Updike, Ms. Patricia, RN, Wisconsin Federation of Nurses
and Health Professionals................................... 9
Prepared statement of.................................... 12
McClain, Dr. Angelo, Coventry, PhD, LICSW, Chief Executive
Officer of the National Association of Social Workers...... 16
Prepared statement of.................................... 18
Rath, Mr. Manesh K., Partner, Keller and Heckman............. 23
Prepared statement of.................................... 25
Lipscomb, Dr. Jane A., PhD, RN, Professor of Nursing and
Medicine, University of Maryland........................... 30
Prepared statement of.................................... 32
Additional Submissions:
Chairwoman Adams:
Prepared statement from the American Federation of State,
County and Municipal Employees (AFSCME)................ 57
Standards Presentation to California Occupational Safety
and Health Standards Board............................. 60
Prepared statement of Emergency Nurses Association in
Support the Workplace Violence for Health Care and
Social Service Workers from Workplace Violence......... 74
Article: Epidemic of Violence Against Health Care Workers
Plagues Hospitals...................................... 77
United States of America Occupational Safety and Health
Review Commission (Secretary's Post-Hearing Brief)..... 89
United States of America Occupational Safety and Health
Review Commission (Brief of Amici Curiae).............. 132
Sentinel Event Alert..................................... 153
Violence Prevention in the Mental Health Setting: The New
York State Experience.................................. 162
Centers for Disease Control and Prevention (CDC):
Violence in the Workplace.............................. 185
Centers for Disease Control and Prevention (CDC):
Violence Occupational Hazards in Hospitals............. 187
Prepared statement from National Nurses United........... 201
Article: Surveys Find Widespread Violence Against Nurses
and Other Hospital Caregivers.......................... 233
Public Employer Workplace Violence Prevention Programs
(12 NYCRR PART 800.6).................................. 238
Occupation Safety and Health Administration (OSHA) Caring
for Our Caregivers..................................... 248
Occupation Safety and Health Administration (OSHA)
Workplace Violence Prevention and Related Goals........ 292
Link: Workplace Safety and Health........................ 301
Link: Occupational Safety and Health Administration
Instruction............................................ 301
Link: Guidelines for Preventing Workplace Violence for
Healthcare and Social Service Workers.................. 301
Courtney, Hon. Joe, a Representative in Congress from the
State of Connecticut:
Link: Workplace Safety and Health........................ 301
Questions submitted for the record by:
Chairwoman Adams
Foxx, Hon. Virginia, a Representative in Congress from
the State of North Carolina............................ 309
Responses to questions submitted for the record by:
Dr. Lipscomb............................................. 310
Dr. McClain.............................................. 312
Ms. Moon-Updike.......................................... 314
Mr. Rath................................................. 316
CARING FOR OUR CAREGIVERS:
PROTECTING HEALTH CARE AND
SOCIAL SERVICE WORKERS FROM
WORKPLACE VIOLENCE
----------
Wednesday, February 27, 2019
House of Representatives
Committee on Education and Labor
Subcommittee on Workforce Protections
Washington, DC.
----------
The subcommittee met, pursuant to notice, at 2:06 p.m., in
room 2175, Rayburn House Office Building, Hon. Alma S. Adams
[chairwoman of the subcommittee] presiding.
Present: Representatives Adams, Jayapal, Wild, McBath,
Omar, Stevens, Byrne, Walker, Cline, and Wright.
Also present: Representatives Courtney, Khanna, Scott, and
Foxx.
Staff present: Tylease Alli, Chief Clerk; Jordan Barab,
Senior Labor Policy Advisor, Nekea Brown, Deputy Clerk; Hana
Brunner, General Counsel Health and Labor; Itzel Hernandez,
Labor Policy Fellow; Carrie Hughes, Director of Health and
Human Services; Eli Hovland, Staff Assistant; Stephanie Lalle,
Deputy Communications Director; Richard Miller, Director of
Labor Policy; Max Moore, Office Aid; Veronique Pluviose, Staff
Director; Banyon Vassar, Deputy Director of Information
Technology; Katelyn Walker, Professional Staff; Cyrus Artz,
Minority Parliamentarian, Marty Boughton, Minority Press
Secretary; Courtney Butcher, Minority Coalitions and Member
Services Coordinator; Akash Chougule, Minority Professional
Staff Member; Rob Green, Minority Director of Workforce Policy;
John Martin, Minority Workforce Policy Counsel; Hannah Matesic,
Minority Legislative Operations Manager; Kelley McNabb,
Minority Communications Director; Alexis Murray, Minority
Professional Staff Member; Ben Ridder, Minority Legislative
Assistant; Heather Wadyka, Minority Staff Assistant; and Lauren
Williams, Minority Professional Staff Member.
Chairwoman ADAMS. The Subcommittee on Workforce Protections
will come to order. I want to thank everyone for being here and
thank our witnesses and all of the other folks who have come as
well. I note that a quorum is present and want to thank the
ranking member for being here as well.
I ask unanimous consent that Mr. Courtney of Connecticut
and Mr. Khanna of California be permitted to participate in
today's hearing with the understanding that their questions
will come only after all members of the Subcommittee on
Workforce Protections on both sides of the aisle who are
present have had opportunity to question the witnesses. Without
objection? So ordered.
The committee is meeting today for this legislative hearing
to hear testimony on Caring for the Caregivers Protecting
Health Care and Social Service Workers from Workplace Violence.
Pursuant to the committee rule 7(c), opening statements are
limited to the chair and the ranking member and this allows us
to hear from our witnesses sooner and it provides all members
with adequate time to ask questions.
So I want to recognize myself now for the purpose of making
an opening statement.
Today, we are here to discuss solutions for protecting our
country's front line caregivers from violence in the workplace.
The people who work in our Nation's hospitals, nursing homes
and other health care institutions, as well as social workers
and other health care providers offer critical assistance to
those in need. They fulfill this role despite inadequate pay,
odd and difficult hours, and as we will discuss, the frequent
threat of violence at the hands of people they serve.
This hearing is an opportunity to assess the steps taken by
the Occupational Safety and Health Administration to address
workplace violence. It is also a forum to discuss relevant
legislation, namely H.R. 1309, the Workplace Violence
Prevention for Health Care and Social Service Workers Act,
which would require OSHA to issue a strong violence prevention
standard.
Workplace violence is a serious concern for 15 million
health care workers in the United States. Although health care
and 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. Last
year, the Bureau of Labor Statistics reported that health care
and social service workers are--were nearly five times as
likely to suffer a serious workplace violence injury than
workers in other sectors.
Public employees are even worse off. In 2017, State
government health care and social service workers were almost
nine times more likely to be injured by an assault than
private-sector health care workers. To make matters worse,
public employees in 24 States, almost 9 million workers, are
not even covered by OSHA and even though they do the exact same
work as private sector employees and face the same hazards.
The injuries to caregivers are just not physical. And as we
will hear today, even when the body recovers from workplace
assaults, these professionals are often plagued with career
ending post-traumatic stress disorders for the rest of their
lives. These violent incidences are not just part of the job.
They are predictable, and they are preventable.
OSHA has not ignored this problem, but it currently lacks
the tools to address it adequately. OSHA first issued guidance
to protect health care and social service workers from
workplace violence over 20 years ago.
The Obama Administration updated that guidance,
prioritizing enforcement of safe working conditions for health
care workers threatened by workplace violence. And for the
first time, the Obama Administration put workplace violence on
the agency's regulatory agenda, starting the long rulemaking
process. But where we are today isn't good enough. Far from it.
First, there is currently no OSHA standard that requires
employers to implement violence prevention plans that would
help reduce injuries to those workers. As a result, inspectors
are forced to use the highly burdensome and time consuming
General Duty Clause in the OSHA Act. And pending litigation may
eliminate even that weak tool from OSHA's limited enforcement
arsenal.
Second, the Trump Administration is unlikely to ever issue
a workplace violence standard. One of President Trump's first
actions was to issue the so called one in, two out Executive
Order that requires agencies issuing a new regulation to
rescind two regulations of equal cost. Shortly after taking
office, the Trump Administration suspended work on the
Workplace Violence Prevention Standard where it languished for
a year.
Currently, OSHA plans to hold a panel with small businesses
to discuss violence prevention at some point in the coming
year. But the agency is many years away from issuing a proposed
standard, much less a final one. Even if the Administration was
committed to moving quickly, it simply takes far too long to
issue an OSHA standard.
The Government Accountability Office estimated
conservatively that it takes OSHA over 7 years to issue a
standard. The reality is much longer. It took OSHA 20 years to
issue its silica and beryllium standard. Front-line caregivers
can't wait that long for a solution.
To ensure that health care and social service workers have
the protection they deserve, Congressman Courtney from
Connecticut, who will be with us today, has introduced the
Workplace Violence Prevention for Health Care and Social
Service Workers Act. This bill would compel OSHA to issue a
standard requiring employers within the health care and social
service sectors to develop and implement a workplace violence
prevention plan.
That plan would identify risks, specify best work practices
and environmental controls, and require training, reporting,
and incident investigations. OSHA's standard would require
employers to maintain a violence incident log and prepare an
annual summary of such incidents.
I would also extend protection--it would also extend
protections to public employees in the 24 States not covered by
OSHA protections by requiring State health care institutions
and social service agencies that receive Medicare funds to
comply with the standard.
Finally, instead of forcing health care and social service
workers to wait years or decades for effective OSHA
protections, this legislation would require OSHA to issue an
interim final standard 1 year after enactment and a final
standard within 42 months of enactment. These are not radical,
impractical, infeasible or unaffordable requirements.
While the Federal Government's efforts have stalled, some
states, such as California, have already adopted violence
prevention standards that protect health care workers without
putting an undue burden on employers.
The measures as H.R. 1309 would require OSHA to include in
a standard are almost exactly the same as what OSHA has been
recommending in its guidance documents. They are also nearly
identical to the Joint Commission recommendations for health
care institutions across the country. The difference is that
these measures would for the first time be enforceable. Health
care and social service workers do important, live-saving work
and the least that we can do is to ensure that they can come
home safe at the end of their workday. We need to ask ourselves
what is the price of inaction?
Today we will hear that price. And we will hear what we can
do to prevent it. I want to thank all of our witnesses for
being with us today and I look forward to your testimony.
I now recognize the distinguished ranking member for the
purpose of making an opening statement.
[The statement of Chairwoman Adams follows:]
Prepared Statement of Hon. Alma S. Adams, Chairwoman, Subcommittee on
Workforce Protections
Today, we are here to discuss solutions for protecting our
country's front-line caregivers from violence in the workplace.
The people who work in our Nation's hospitals, nursing homes and
other health care institutions as well as social workers and other
health care providers offer critical assistance to those in need.
They fulfill this role despite inadequate pay, odd and difficult
hours, and as we'll discuss the frequent threat of violence at the
hands of the people they serve.
This hearing is an opportunity to assess the steps taken by the
Occupational Safety and Health Administration to address workplace
violence.
It is also a forum to discuss relevant legislation, namely: H.R.
1309, the ``Workplace Violence Prevention for Health Care and Social
Service Workers Act,'' which would require OSHA to issue a strong
violence prevention standard.
Workplace violence is a serious concern for 15 million health care
workers in the United States.1
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.
Last year, the Bureau of Labor Statistics reported that health care
and social service workers were nearly five times as likely to suffer a
serious workplace violence injury than workers in other sectors.
Public employees are even worse off.
In 2017, State government health care and social service workers
were almost nine times more likely to be injured by an assault than
private-sector health care workers.
To make matters worse, public employees in 24 States almost 9
million workers are not even covered by OSHA, even though they do the
exact same work as private sector employees and face the same hazards.
The injuries to caregivers are not just physical.
As we will hear today, even when the body recovers from workplace
assaults, these professionals are often plagued with career-ending
post-traumatic stress disorders for the rest of their lives.
These violent incidents are not just part of the job. They are
predictable, and they are preventable.
OSHA has not ignored this problem, but it currently lacks the tools
to address it adequately.
OSHA first issued guidance to protect health care and social
service workers from workplace violence over 20 years ago.
The Obama Administration updated that guidance, prioritizing
enforcement of safe working conditions for health care workers
threatened by workplace violence.
And for the first time, the Obama Administration put workplace
violence on the agency's regulatory agenda, starting the long
rulemaking process.
But where we are today is not good enough. Far from it.
First, there is currently no OSHA standard that requires employers
to implement violence prevention plans that would help reduce injuries
to these workers.
As a result, inspectors are forced to use the highly burdensome and
time-consuming General Duty Clause in the OSHA Act.
And pending litigation may eliminate even that weak tool from
OSHA's limited enforcement arsenal. Second, the Trump Administration is
unlikely to ever issue a workplace violence standard.
One of President Trump's first actions was to issue the so-called
``one-in, two out'' Executive Order that requires agencies issuing a
new regulation to rescind two regulations of equal cost.
Shortly after taking office, the Trump Administration suspended
work on the Workplace Violence prevention standard while it languished
for a year.
Currently, OSHA plans to hold a panel with small businesses to
discuss violence prevention at some point in the coming year, but the
agency is many years away from issuing a proposed standard--much less a
final one.
Even if the administration was committed to moving quickly, it
simply takes far too long to issue an OSHA standard.
The Government Accountability Office estimated, conservatively,
that it takes OSHA over 7 years to issue a standard. The reality is
much longer.
It took OSHA 20 years to issue its silica and beryllium standards.
Front-line caregivers can't wait that long for a solution.
To ensure that health care and social service workers have the
protections they deserve, Congressman Courtney from Connecticut, who
will be with us today, has introduced the ``Workplace Violence
Prevention for Health Care and Social Service Workers Act.''
This bill would compel OSHA to issue a standard requiring employers
within the health care and social service sectors to develop and
implement a workplace violence prevention plan.
That plan would identify risks, specify both work practices and
environmental controls, and require training, reporting, and incident
investigations.
OSHA's standard would require employers to maintain a Violence
Incident Log and prepare an annual summary of such incidents.
It would also extend protections to public employees in the 24
States not covered by OSHA protections by requiring State health care
institutions and social service agencies that receive Medicare funds to
comply with the standard.
Finally, instead of forcing health care and social service workers
to wait years or decades for effective OSHA protections, this
legislation would require OSHA to issue an interim final standard 1
year after enactment, and a final standard within 42 months of
enactment.
These are not radical, impractical, infeasible or unaffordable
requirements.
While the Federal Government's efforts have stalled, some States,
such as California, have already adopted violence prevention standards
that protect health care workers without putting an undue burden on
employers.
The measures that H.R. 1309 would require OSHA to include in a
standard are almost exactly the same as what OSHA has been recommending
in its guidance documents.
They are also nearly identical to the Joint Commission
recommendations for health care institutions across the country.
The difference is that these measures, would, for the first time,
be enforceable. Health care and social service workers do important,
live-saving work.
The least we can do is ensure that they can come home safe at the
end of their workday. We need to ask ourselves: What is the price of
inaction?
Today we will hear that price.
And we will hear what we can do to prevent it.
I want to thank all of our witnesses for being with us today and I
look forward to your testimony. I now yield to the Ranking Member, Mr.
Byrne for his opening statement.
______
Mr. BYRNE. Thank you, Madame Chairwoman and let me say I
want to congratulate you on receiving the gavel on this
subcommittee. I had it last Congress and I know it is in good
hands this Congress. This is not the first time that Ms. Adams
and I have worked together on things. She founded the
Bipartisan Historically Black College and University Caucus and
was gracious enough to ask me to be her co-chair on that. So
here we are again.
Chairwoman ADAMS. That is right.
Mr. BYRNE. It's good. I thank the gentlewoman for yielding.
Allow me to begin this afternoon by saying that protecting the
safety of health care and social service workers is not a
partisan issue. It doesn't take having a liberal or
conservative bent to appreciate the hard work and empathy that
hospital workers and community caregivers demonstrate every
single day on the job. Their dedication to carrying for the
most vulnerable members of our communities is extraordinary and
these workers deserve our gratitude, our respect, and our
commitment to ensuring that they are safe on the job.
For this reason, I want to thank Mr. Courtney for coming
forward with this bill to give us an opportunity to have a
robust discussion about it. And I do appreciate that, Mr.
Courtney, you are a great Member of Congress and a good friend.
The nature of work in these industries requires health care
and social service workers to interact directly with
individuals who are experiencing tremendous stress, trauma, and
grief, which can cause a situation to devolve and put workers
safety at risk. Under the General Duty Clause of the
Occupational Safety and Health Act of 1970, employers are
already required to take definitive steps to protect employees
and provide a safe work environment.
But an acknowledgment of the particular risks facing health
care and social service workers OSHA has taken concrete steps
in the rulemaking process to better understand the
circumstances that exist for these workers and to determine how
to provide these industries with a solution. And I share the
frustration about it not happening fast enough.
We need a solution that protects workers and provides
employers with the necessary flexibility to ensure that their
employees are safe on the job. Therefore, I want to go on
record strongly supporting protections for workers in this
industry in regard to workplace violence. I also commend OSHA
for its rulemaking activities in this area and urge the agency
to move forward expeditiously in this regard.
In December 2016, almost literally as they were walking out
the door, the Obama Administration's OSHA initiated rulemaking
process by issuing a public request for information on
workplace violence in these sectors. The following month, in
January 10, 2017, the agency held a meeting with stakeholders
to discuss the specific challenges facing these workers.
Once the Trump administration assumed leadership, OSHA
doubled down on these rulemaking efforts by scheduling a small
business panel on the rulemaking for early 2019. Meanwhile, the
Trump administration's OSHA continues to provide employers with
the best practices for ensuring a safe work environment and
continues to issue citations to employees who fail--employers
who fail to prevent workplace violence under the General Duty
Clause for the OSHA Act.
These are positive and deliberate steps and by undertaking
this rulemaking process, OSHA is striving to create a
thoroughly researched approach that addresses the risk of
workplace violence and the hospital and home health care
settings fully and effectively.
I am concerned however, that the legislation under
discussion, H.R. 1309, might undermine this ongoing rulemaking
process. Instead of allowing for a collaborative and evidence-
based process, I am concerned we are intentionally or
unintentionally ramming through a regulation with limited input
from affected stakeholders.
The proposed bill was introduced only a week ago and
frankly I think needs further discussion and work. That is OK,
that is what we do in these committees.
H.R. 1309, in an effort to speed up the rulemaking process,
takes some short cuts and doesn't allow OSHA the time or the
ability to adequately conduct additional studies or analyze
public comments. Instead, the bill seeks to impose a mandate
and I am concerned that not enough research has been done on
the critical topic. Protecting workers from instances of
workplace violence is a policy priority that Republicans and
Democrats see eye to eye on.
I would prefer that this committee holds oversight hearings
to allow Committee members to hear directly from individuals
and experts so that we can formulate the best course of action
to keep our caregivers safe. When things go wrong, our
caregivers rise to the occasion. They deserve a thoroughly
vetted and researched solution that protects them in the line
of duty.
It is the responsibility of members of this committee to
approach complex and important matters under our jurisdiction
like the issue before us today with are and dedication to
ensure that we do right by these valued members of our
communities. And I yield back.
[The statement of Mr. Byrne follows:]
Prepared Statement of Hon. Bradley Byrne, Ranking Member, Subcommittee
on Subcommittee on Workforce Protections
Thank you for yielding.
Allow me to begin this afternoon by saying that protecting the
safety of health care and social service workers is not a partisan
issue. It doesn't take having a liberal or conservative bent to
appreciate the hard work and empathy that hospital workers and
community caregivers demonstrate every single day on the job. Their
dedication to caring for the most vulnerable members of our communities
is extraordinary, and these workers deserve our gratitude, our respect,
and our commitment to ensuring that they are safe on the job.
The nature of work in these industries requires health care and
social services workers to interact directly with individuals who are
experiencing tremendous stress, trauma, and grief, which can cause
situations to devolve and put workers' safety at risk.
Under the general duty clause of the Occupational Safety and Health
Act of 1970 (the OSH Act), employers are already required to take
definitive steps to protect employees and provide a safe work
environment. But in acknowledgement of the particular risks facing
health care and social service workers, the Occupational Safety and
Health Administration (OSHA) has taken concrete steps in the rulemaking
process to better understand the circumstances that exist for these
workers, and to determine how to provide these industries with a
solution. We need a solution that protects workers and provides
employers with the necessary flexibility to ensure that their employees
are safe on the job.
Therefore, I want to go on the record strongly supporting
protections for workers in this industry in regards to workplace
violence. I also commend OSHA for its rulemaking activities in this
area and urge the agency to move forward expeditiously in this regard.
In December 2016, almost literally as they were walking out the
door, the Obama Administration's OSHA initiated a rulemaking process by
issuing a public request for information on workplace violence in these
sectors. The following month, on January 10, 2017, the agency held a
meeting with stakeholders to discuss the specific challenges facing
these workers.
Once the Trump administration assumed leadership, OSHA doubled down
on these rulemaking efforts by scheduling a small business panel on the
rulemaking for early 2019. Meanwhile, the Trump administration's OSHA
continues to provide employers with best practices for ensuring a safe
work environment, and continues to issue citations to employers who
fail to prevent workplace violence under the general duty clause of the
OSH Act.
These are positive and deliberate steps, and by undertaking this
rulemaking process, OSHA is striving to create a thoroughly researched
approach that addresses the risks of workplace violence in the hospital
and home health care settings fully and effectively.
I am concerned the legislation under discussion today, H.R. 1309,
might undermine this ongoing rulemaking process. Instead of allowing
for a collaborative and evidence-based process, I am concerned we are
intentionally or unintentionally ramming through a regulation with
limited input from affected stakeholders. The proposed bill was
introduced only a week ago and needs further discussion and work.
H.R. 1309, in an effort to speed up the rulemaking process, takes
unnecessary shortcuts and doesn't allow OSHA the time or the ability to
adequately conduct additional studies or analyze public comments.
Instead, the bill seeks to impose a mandate, and I am concerned not
enough research has been done on this critical topic.
Protecting workers from instances of workplace violence is a policy
priority that Republicans and Democrats see eye-to-eye on.
I would prefer that this committee hold oversight hearings to allow
committee members to hear directly from individuals and experts so that
we can formulate the best course of action to keep our caregivers safe.
When things go wrong, our caregivers rise to the occasion. They
deserve a thoroughly vetted and researched solution that protects them
in the line of duty. It's the responsibility of members of this
committee to approach complex and important matters under our
jurisdiction, like the issue before us today, with care and dedication
to ensure that we do right by these valued members of our communities.
______
Chairwoman ADAMS. Thank you, Mr. Byrne. Thank you, Mr.
Byrne. Before we begin, I ask unanimous consent to insert into
the record a statement from the American Federation of State
County and Municipal Employees and a statement from the
Emergency Nurses Association. Without objection, all of the
members who wish to insert written statements into the record
may do so by submitting them to the committee clerk
electronically in Microsoft Word format by 5 p.m. on February
13, 2019.
I would like to now introduce our witnesses. Our first
witness, Ms. Patricia Moon-Updike from Cudahy? Cudahy,
Wisconsin. Ms. Moon-Updike is a registered nurse and a member
of the Wisconsin Federation of Nurses and Health Professionals,
an affiliate of the American Federation of Nurses.
Our next witness, Dr. Angelo McClain is the Chief Executive
Officer of the National Association of Social workers. Dr.
McClain has been a licensed and practicing social worker for
the past 30 plus years, served for 6 years as Commissioner for
the Massachusetts Department of Children and Families and prior
to that, Dr. McClain was Vice President and Executive Director
of Value Options New Jersey and was Vice President of Network
Management and Regional Operations for the Massachusetts
Behavioral Health Partnerships.
Following Dr. McClain, we will hear from Mr. Manesh Rath.
Mr. Rath is a partner at Keller and Heckman. He is a trial and
appellate attorney specializing in occupational safety and
health and other issues.
Our last witness, Dr. Jane Lipscomb, is a nurse and
epidemiologist, who spent her career as a Professor of Nursing
and Medicine at the University of Maryland researching and
addressing the epidemic of occupational health and safety
hazards facing our Nation's health care and social service work
force. She has also served as an expert witness in numerous
OSHA enhancement enforcement cases.
To the witnesses, we have a few instructions for you. We
appreciate all of you for being here today. We do look forward
to your testimony but let me remind you that we have read your
written statements and they will appear in full in the hearing
record. Pursuant to committee rule 7(d), and the committee
practice, each of you is asked to limit your oral presentation
to a 5 minute summary of your written statement. And let me
remind you as well that pursuant to Title 18 of the U.S. code,
section 1001, it is illegal to knowingly and willfully falsify
any statement, representation, written or in writing A document
or material fact presented to Congress or otherwise concealed
to cover up A material fact.
And so before you begin you testimony, please remember to
press the button on the microphone in front of you so it will
turn on and the members can hear you. And as you begin to
speak, the light in front of you will turn green. After 4
minutes, the light will turn yellow to signal that you have 1
minute remaining. And when the light turns red, your 5 minutes
have expired and we would ask that you would please wrap it up
at that time.
We will let the entire panel make their presentations
before we move to member questions. When answering a question,
please remember to once again turn your microphones on. We are
going to first recognize Ms. Patricia Moon-Updike. Ms. Moon-
Updike.
STATEMENT OF PATRICIA MOON-UPDIKE, WISCONSIN FEDERATION OF
NURSES AND HEALTH PROFESSIONALS
Ms. MOON-UPDIKE. Thank you, Chairwoman Adams, Ranking
Member Byrne and members of the subcommittee for this
opportunity to testify today. My name is Patricia Moon-Updike
and I am a registered nurse and member of the Wisconsin
Federation of Nurses and Health Professionals which is
affiliated with the health care division of the American
Federation of Teachers. I also want to thank Representative
Courtney for developing the legislation. This hearing gives
voice to those who cannot speak for fear of retaliation. During
my career I worked in an ICU, in obstetrics, in the
correctional health services and as a psychiatric nurse. I got
to be what I wanted to be when I grew up.
During--then, on June 24, 2015, it all changed. I was
working in the Behavioral Health Division of Milwaukee County
in the Child and Adolescent Treatment Unit. I was so excited to
be working with these kids. It was close to the end of my
shift, and I was sitting with a new nurse orienting on the
unit. There was a boy, quite large for his age, who was getting
very aggressive in the hallway. This young man, who was very
well known to the staff and management, had a history of
breaking windows and damaging doors in--on that the unit.
He was not assigned to be my patient that day, but the new
nurse that I was orienting felt that he needed to intervene so
I also went to help. The youth was screaming and thrashing.
Along with his assigned nurse, we worked to deescalate the
situation and we needed to get him into the seclusion room.
Someone gave the code for security and we believed that four
security guards would be coming to help but only two of those
security guards arrived.
The patient was bucking and screaming but we got him into
the seclusion room and set him on the mattress on the floor and
someone yelled clear. Everyone stepped back away from him and
then he then spun around on his back and kicked his leg high in
the air striking me in the neck, hitting me with such force in
my throat that my head snapped backward and I heard a bang and
a pop and all the air rushed out of me.
I grabbed my throat. Someone pulled me out of the room and
I remember sitting in a chair not being able to breathe,
holding on to my trachea for dear life and I knew that if I let
it go, it would collapse and I would die right in that hallway.
I was praying to stay conscious.
I was taken to the trauma hospital, which fortunately was
right across the street. I was so scared out of my mind and I
feared that I would not be able to say goodbye to my children.
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.
Excuse me, sorry.
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.
I loved being a nurse. I do not know what to call myself
now. There is a deep loss when you used to make a difference in
the lives of people, in your true calling and passion and now
in that place is extreme sadness and fear.
The assault that happened to me was not random or a freak
event, but a predictable scenario that could have been
prevented had there been a plan in place and more trained staff
to assist. The individual who assaulted me should have been on
a one to one assignment given his previous behavior on that
unit. There should have been four security officers and there
should have been a plan in place to provide more security if
there had been multiple incidents going on simultaneously.
My colleagues spoke to management and pressed for
improvements but our voices were not heard. I know that the
requirements in this legislation can help prevent violence.
Under this bill, the facility that I worked in would be
required by OSHA to develop violence protection program. This
is crucial because currently there is no oversight in that
facility by OSHA or by any State agency.
We can't accept violence as part of the job. Prevention is
possible. When systems are put into place to reduce the risk of
violence when nurses and health care workers are safer, so are
our patients. We need the equipment, personnel and training to
do our job safely. Our parents, our patients and our health
care system cannot afford to lose more good nurses and health
care workers to prevent preventable violence.
Since the assault I have challenged myself to do things to
beat this. I try to still be the person I used to be. I
promised my union that when I was ready, I wanted to help other
health care worker providers and I hope telling my story will
help prevent assaults like this on other health care providers.
With your help it will.
I thank you and I respectfully urge you to support this
legislation.
[The statement of Ms. Moon-Updike follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Chairwoman ADAMS. Thank you very much, Ms. Moon-Updike. Dr.
McClain, you are recognized for 5 minutes.
STATEMENT OF ANGELO MCCLAIN, CHIEF EXECUTIVE OFFICER OF THE
NATIONAL ASSOCIATION OF SOCIAL WORKERS
Dr. MCCLAIN. Thank you, Chairwoman Adams and Ranking Member
Byrne and subcommittee members for the opportunity to speak to
you today and share some of my experiences as a social worker
over the last 30 years.
I want to start by telling a story of my first day on the
job as a social worker. First day, first hour. I was a--it was
8 a.m. in Amarillo, Texas and a coworker came and said go with
me, we have got a case. We drove into the black community and
we knocked on the door and the mother said we do not allow
white people in our home. So the worker turned to me and said I
guess this one is yours. And so I went in to the home.
The door shut immediately behind me. And low and behold
there was the largest butcher knife I have ever seen in my
face--in my life in my face. And the mother said to me if you
get us in trouble I will hunt you down and I will kill you in a
dark alley. And I looked in--deep into her eyes and I knew she
was serious.
And due to my training, I said to her, ma'am, you know,
please put down the knife. I am here to make sure your children
are safe. Luckily her husband came out of the back of that
point and said honey, I think he is here to try to help us.
Fast forward a few years later, I found myself in one of
the largest housing projects in Boston. And I went to visit, I
had this one client I saw every Thursday at 11 a.m. so she knew
I was coming. And when I got there she was sitting outside on
the stoop which is never a good thing. And I said to her why
are you out here?
And she said well, you are going to be taking my children
today. I said why are you saying that? She says you've been
real clear. If A, B, C, and D aren't in place my children had
to go in foster care. Then she starts yelling he is here to
take my kids, he is here to take my kids. And a crowd of about
30 to 50 people gathered around and encircled me and several of
those folks had weapons, one individual in particular had a gun
and he wanted to make sure that I knew he had a gun.
And I thought how did I get myself into this situation and
how do I get myself out of it. So I told them I am here on
official business and I want you to disperse. I am going to
count to three and if you don't disperse, you're going to be in
a heap of trouble. I used the word heap intentionally thinking
that might throw them off. And I counted to three. Luckily they
dispersed and I was able to conduct my business and help that
mother and eventually she became one of my better clients.
I kind of share these stories to let you know that the--to
try to put a face on this and thank you, Patricia, for your
comments. These tragedies that happen to social workers and
health care providers, they are far too common. If you take a--
and I'll share just a half a dozen or so situations I'm aware
of.
In Congressman Courtney's district in Connecticut in 1998,
a social worker was murdered by a client as she was entering
her agency. In 2008 there were two fatalities of a social
worker, Brenda Yeager in New York as she was making a home
visit. She was beaten and suffocated. In Massachusetts in 2008
Diruhi Mattian was murdered while she was doing a home visit.
In 2009, retired Commander Charles Springle, a Navy social
worker was shot and killed along with four other colleagues by
a service member who was seeking counseling services.
In 2011, Stephanie Moulton from Massachusetts was killed by
a client with mental illness as she was working in a group
home. In 2015, Laura Sobel from Vermont who was working for the
Department of Children and Families there, she was murdered
while she as exiting the building in her parking lot.
And just last year, Pamela Knight who worked for the
Illinois Department of Children and Families was murdered in
the line of trying to protect children. And I could go on and
on with these stories.
Believe it or not, social work is among the 10 most
dangerous professions that we have. Social workers and health
care professionals are twice as likely as others to face
violence at work.
In a study in 2003, we learned that 58 percent of social
workers out of about 1,000 respondents reported that they had
experienced violence in the workplace. And 15 percent of them
had been physically assaulted within the past year. Based on
the studies I have looked at, there is about 30 percent of
social workers who have had a physical--have been physically
assaulted at some point in their career. 48 percent of social
workers in a study reported that they had no knowledge of an
agency safety policy. Violence, workplace violence against
social workers is real and it happens frequently.
In 2013, the Bureau of Labor and Statistics reported over
1,000 social workers were injured on the job. And we know the
numbers that we are aware of. One study shows that it was 85
percent under counting in those situations.
There is hope. Some of my work in Massachusetts and some of
the work that Governor Patrick did there, we were able to put
some measures in place. We passed a Social Workers Safety Act
in 2013 which required all agencies to have a violence
prevention plan. Fast forward 6 years later, those things are
in place. And Governor Patrick in 2009 signed into legislation
a Massachusetts Employee Safety and Health Advisory Committee--
Chairwoman ADAMS. Dr. McClain, can you wrap up please?
Dr. MCCLAIN. Yes, I can. Because of OSHA standards didn't
apply to State employees. I think it is essential that the OSHA
standards that we get legislation that would put those
standards in place. Thank you.
[The statement of Dr. McClain follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Chairwoman ADAMS. Thank you, sir. Mr. Rath, you have 5
minutes, sir.
STATEMENT OF MANESH RATH, PARTNER, KELLER AND HECKMAN
Mr. RATH. Good afternoon, Chairwoman Adams, Ranking Member
Byrne, and members of this subcommittee. I am grateful for the
opportunity to participate in this hearing on H.R. 1309,
Protecting Health Care and Social Service Workers from
Workplace Violence. My name is Manesh Rath and I'm a partner at
the law firm Keller and Heckman in Washington, DC.
I work with clients every day to develop a sound and
effective approach to improving workplace safety and health. In
my testimony today, however, I am expressing only my own
understanding of the fields of occupational and safety and
health law and administrative law, and I am not here as a
representative of my firm, its clients, or any other entity.
First, let me say we all share a common goal to improve
workplace safety and health for health care workers.
Furthermore, it should be beyond dispute that employers have an
important role to play in addressing the identifiable and
manageable risks to health care and social service workers.
However, this bill as drafted raises concerns on several
grounds. I'll address two.
First, this bill directs OSHA to proceed straight to
publishing an enforceable interim final rule without the
preliminary step of identifying the causes that are known to be
manageable by an employer and any proven employer
interventions. This would neglect the longstanding principle
that safety and health standards should be based on evidence.
The causes of workplace violence in health care are far from
understood and the remedy remains unclear.
Stakeholders can help us understand whether a standard is
the right approach and if so the proper scope and applicability
of that standard and what management programs should be adopted
that would be most effective.
Before proceeding to rulemaking to develop a legally
binding standard, OSHA should review its experience with its
own guidelines that it has published and try and learn what
experiences it has gained from having issued citations against
employers under its own General Duty Clause of the Occupational
Safety and Health Act. In fact, this was the opinion of the
Government Accountability Office in a report issued to OSHA and
OSHA agreed.
Separately, the Centers for Disease Control issued a
separate report suggesting that more research had to be done
into the causes and preventions associated with workplace
violence. Second, this bill would direct OSHA to adopt and
implement an enforceable, interim final rule without the well
accepted principle of administrative due process that Congress
required the agency to implement under the Occupational and
Safety and Health Act and the Administrative Procedure Act.
Specifically, the idea that when contemplating a rule, an
agency should put out notice to all that the possibility of a
rule is forthcoming and then to allow for comments by affected
stakeholders and to consider those comments before publishing a
final rule. Those are the shared cornerstones of administrative
law and have been so for 72 years.
This bill in fact acknowledges the importance of deriving
experience and insight from stakeholders. No less than six
times in Section 103 of this bill, Section 103 is the section
which provides a minimum standard for OSHA to implement. And no
less than six times in Section 103, the minimum standard, the
standard would require employers to seek input from
stakeholders from employees, unions, and co-located employers.
And yet, by the same hand that drafted Section 103, this bill
would seek to deprive all stakeholders of the opportunity to
assist in collaboratively fashioning perhaps a better standard.
And it's not just employers that this bill would seek to
silence though employers have amassed a considerable experience
through trial and error and through the collaborative process
but also employees would be kept from participating in the
rulemaking process as stakeholders in the comment and hearing
process.
Unions and professional associations that represent those
employees and as well security and technology firms who have
developed perhaps technologies that have been successful or are
further improving on those technologies that could be more
successful in the field of workplace violence.
Insurance carriers have amassed a trove of data that would
benefit the process of developing a better rule and the
scientific and medical communities who perhaps have valuable
insight into the etiology of workplace violence and perhaps
also into if effective interventional modalities.
Any effort to address the issue of workplace violence in
health care should be thoughtful, should be based on data, and
on the expertise of those who have experienced it and those who
study it. This subcommittee can and should have faith that the
collaborative input of those with experience and learning in
this field will yield a better approach than the bill we have
today.
I thank you for the opportunity to appear before you today
and I look forward to addressing any questions you may have.
[The statement of Mr. Rath follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Chairwoman ADAMS. Thank you very much. We are going to have
to recess to take votes. We are watching the clock out here as
well and we will be back immediately after those votes are
taken. Thank you very much.
[Recess]
Chairwoman ADAMS. Good afternoon and thank you for your
patience. The hearing is called back to order. Dr. Lipscomb,
you are recognized for 5 minutes.
STATEMENT OF JANE LIPSCOMB, PROFESSOR OF NURSING AND MEDICINE,
UNIVERSITY OF MARYLAND
Dr. LIPSCOMB. Chairwoman Adams, Ranking Member Byrne and
members of the subcommittee, my name is Jane Lipscomb. Thank
you for this opportunity to present my views on the compelling
need to protect frontline workers under the Workplace Violence
Prevention for Health Care and Social Service Workers Act.
My training is as a nurse and an epidemiologist. I have
spent my career, including the past two decades as a Professor
of Nursing and Medicine at the University of Maryland
researching and addressing the epidemic of occupational health
and safety hazards facing our Nation's health care and social
service work force with a focus on work place violence
prevention.
Of the range of hazards faced by health care and social
service workers, few issues have received less attention than
the hazard of workplace violence. This is despite the fact that
this work force experiences a higher number of non-fatal
assaults than any other work group.
And let me be clear, I am not talking about the random acts
of violence that get much media attention. I am referring to
the systemic acts of violence that occur every day in these
workplaces that are predictable and therefore preventable. The
good news is that we know how to prevent much of this type of
violence.
In the course of my work I have conducted federally funded
research into how to prevent workplace violence in hospitals
and other high risk settings. In addition, I have consulted
with numerous State and Federal agencies on how to advance
workplace violence prevention.
Quite frankly I have had too much firsthand experience
working with victims of workplace violence, or in the case of
workers who were murdered by patients in their care, their
bereaved families.
Fortunately though, the vast majority of assaults on health
care and social service workers are non-fatal. The risk of
workplace violence that I am most concerned about arises from
exposure to individuals, their family members and visitors, who
sometimes are violent, in combination with a lack of
sufficiently strong violence prevention programs.
Patients, especially those in hospitals and residential
settings are often traumatized by the experience, in pain and
may have altered cognition due to their illness or treatment,
including prescription and illicit drugs. They may not intend
to assault their caregiver, but regardless of their intent, an
employee is still injured. And as we heard this morning, often
both physically and emotionally.
While I believe that patient rights and confidentiality are
important and must be respected, health care and social service
institutions also need to recognize that workers in these
facilities have a legal and moral right to come home safely at
the end of the day. My experience and research show that both
concerns can be reconciled and H.R. 1309 does that. I am here
to testify that workplace violence prevention plans, tailored
to the specific risk, workplace, and employee population work.
By contrast, voluntary 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.
Evidence that workplace violence prevention plans are
feasible and work includes research from Wayne State
University, the Veterans Health Administration and others, as
well as my own research.
Here I would also like to emphasize that worker and patient
safety are inextricably linked. When there is an insufficient
number of staff to meet patient needs, they act out not only
toward their caregivers, but also toward other patients. Ask
anyone who has a family member or a friend who has required in
patient mental health services and you will hear that is the
case.
And finally, I would like to address workplace violence
protection afforded under the General Duty Clause. Currently,
when an employer fails to address the problem voluntarily, the
General Duty Clause is the only tool employees have to advance
workplace prevention in their workplace. The General Duty
Clause is a cumbersome and ineffective means of seeking
protection requiring a very high burden of proof in order to
issue such a citation.
In the small number of cases where OSHA has cited an
employer, the employer may contest the citation, requiring the
Department of Labor and the company or employer to expend
resources fighting that citation, rather than investing in
preventing the hazard. Such cases end up in a hearing before an
administrative law judge. In the two cases where an
administrative law judge's decision has upheld the citation,
including in Integra Health Management case, the employer has
appealed the decision to the OSHA Review Commission, resulting
in more costs and delays.
It is my fear that an adverse ruling in either of these
appeals would seriously compromise OSHA's ability to enforce
future workplace violence protections.
Chairwoman ADAMS. Ms. Lipscomb, can you bring your comments
to a close please?
Dr. LIPSCOMB. OK. H.R. 1309 is a relatively modest and
straightforward piece of legislation that would do much to stem
workplace violence among the hardworking and committed work
force for far too long. I urge this subcommittee to act on this
important bill. Thank you so much.
[The statement of Dr. Lipscomb follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Chairwoman ADAMS. And thank you very much. Thank you all
for your testimony. Under committee rule 8 (a), we will now
question witnesses under the 5 minute rule and I want to
recognize myself for 5 minutes.
Ms. Moon-Updike, can you explain to the committee how
passage of this bill and issuance of an OSHA standard could
have prevented what happened to you? You need to--right.
Ms. MOON-UPDIKE. Yes, thank you, Ms. Chairwoman.
Absolutely. This bill provides for increased security. I worked
in a facility where there was not enough security for all the
units that were in that building. If multiple incidents were
going on at one time, that security force was extremely
compromised. And at many times of the day, there were multiple
incidences going on at one time so you couldn't have the amount
that you needed to help with those restraint situations or
crisis calls that were going on throughout the day.
Also, the--when my incident happened, that young man had
been aggressive throughout the entire day. If he had been--if
the staffing was the way that it could have been, he needed to
be on a one to one staffing situation. And if management would
have taken the initiative to do that, my situation wouldn't
have happened at all.
Chairwoman ADAMS. OK. Thank you very much. Mr. Rath, H.R.
1309 requires OSHA to issue an interim final standard on
workplace violence within 1 year but then it gives OSHA an
additional 30 months to issue a final standard. Yet you state
that a safety or health standard should be adopted only after
gathering input from the affected stakeholder community.
So can you tell me where in H.R. 1309 OSHA is kept from
gathering input from affected stakeholders before it issues a
final [standard] or tells OSHA not to adopt and implement a
final rule without the traditional rulemaking procedures as you
claim in your testimony?
Mr. RATH. Thank you for your question. The proposed
standard in Section 102 I believe, and I can point you to it if
you're asking, calls for a suspension of it's in Section 101
(a)(2) where it states that the applicability of other
statutory requirements shall not apply. One of those is Section
6(b) of the Occupational Safety and Health Act and the other is
Chapters 5 and 6 of the Administrative Procedure Act. Those are
fundamental--
Chairwoman ADAMS. Excuse me. But that is for the interim
standard, not the final standard.
Mr. RATH. Ms. Adams, your question was about the final?
Chairwoman ADAMS. The final standard?
Mr. RATH. The problem with waiting until the final standard
to allow stakeholder involvement, is that at that point the
interim final standard, which is enforceable, has already been
put into place and there will be no suspension of enforcement
during that period. So, employers are going to have to expend
resources for workplace practices, for engineering controls.
And to do so, they will do so temporarily only to have to
change those processes again as a final rule is published.
So, it's not--the concern with due process here is not that
stakeholders won't get a chance to participate in the
development of a final rule, it's that by that point, it's
first of all too late. Second of all that the resources will
have already been exhausted during a year during which those
interventional modalities will have been nothing more than
temporary and perhaps misspent especially if developed in the
absence of that stakeholder input in the first place in the
development of the interim final report.
Chairwoman ADAMS. OK. You state that the California
Workplace Violence Standard took only 14 months to issue. Are
you aware of how long on average it takes OSHA to issue a new
standard?
Mr. RATH. There are some standards that haven't taken much
longer than that. And OSHA has a number of standards that it
has been able to effectively implement in less than 2 years.
This proposed bill would take about the same amount of time. It
would take some time for the bill to be enacted and then after
that, OSHA has up to 1 year under the terms of this bill to
implement an interim final rule. And it is conceivable that
OSHA could publish a, publish a standard in that time.
But much more importantly, OSHA has other tools within its
capacity to address the question of workplace violence in
addition to promulgating a rule and those should be explored as
well.
But haste shouldn't be a substitute for gathering evidence
and data from those affected stakeholders. I think that is
really one of the most important parts of what is of concern to
a large number of stakeholders about this proposed ruling.
Chairwoman ADAMS. Thank you, sir. I'm going to now
recognize Dr. Foxx for 5 minutes.
Mrs. FOXX. Thank you for very much, Madame Chairman. Mr.
Rath, thank you for being here. Thanks to all the witnesses for
being here.
The bill being discussed today would require OSHA to issue
an interim final standard without the agency going through the
proper rulemaking process and without the agency gathering
additional data from employers or affected workers. We have
been told as recently as yesterday that the Committee believes
in evidence-based policymaking as I do.
Would data from employers and workers on work force--
workplace violence in the health care and social service
sectors be helpful in crafting an evidence-based policy on this
issue?
Mr. RATH. Thank you for that question, Dr. Foxx. I think
that the gathering of evidence is one of the most important
things that government can do when promulgating a rule. And
indeed, in the Occupational Safety and Health Act, that has
been written into the requirements for rulemaking both for
safety and for health standards and that evidence comes from
all directions.
It's a truly bipartisan process of gathering evidence from
employees, employee groups like unions and professional
associations, the scientific and medical community and as well
employees and I'm--I would be remiss if I didn't also mention
that the insurance carriers have amassed amazing data that it
would be irresponsible to turn our backs on in developing a
rule of this type.
Mrs. FOXX. Thank you, Mr. Rath. What's the purpose of an
agency skipping to an interim final rule rather than going
through the normal process of issuing a proposed rule first
before proceeding?
And if OSHA were to promulgate a workplace violence
standard such as the one mandated in H.R. 1309, would it be
appropriate to skip to an interim final rule? And I know you
have addressed this a little bit earlier but I want to give you
a chance to emphasize it.
Mr. RATH. Well, thank you for your question. I think that I
can think of very few good reasons why a Congress would mandate
that an agency go directly to an enforceable interim final rule
without that process of going through due process rulemaking
including seeking evidence from stakeholders.
The stated reason in the bill seems to be a sense of haste
and a mistrust that the agency will do what it is supposed to
do in going through the rulemaking process.
And yet for 40 years, or more, OSHA has faithfully executed
its mission and examined the question of whether or not a rule
should be promulgated first, as at threshold question. And then
where it has believed that rules should be promulgated as it
has done so on a number of occasions. The books are filled with
OSHA standards but that process should involve the stakeholders
that the act calls upon OSHA to seek the opinions of.
Mrs. FOXX. Thank you. Another question. My friends on the
other side of the aisle are quick to say that OSHA isn't moving
fast enough in issuing the regulation we are discussing at this
hearing. However, we have been waiting almost 16 months for the
Democrats to stop blocking confirmation of the assistance
sectary of OSHA.
If OSHA were to have a confirmed assistant secretary, do
you think that would help them and implement policy including
regulations such as the one being discussed today?
Mr. RATH. Well, that's a great question and thank you for
the question. Without a doubt, and taking nothing away from the
acting assistant secretary of OSHA who is doing an outstanding
job. The assistant secretary responsible for heading the agency
is--plays a significant rule in the development of policy, in
the development of prioritizations and there can be no doubt
that a more successful and effective process for nominating and
putting--installing that person into the position would result
in a more efficient rulemaking process as with every other
function at the agency.
But I don't think it's safe to say that the agency has not
done enough to address this issue. In 2016, it developed a
request for information and the year prior it modified its
guidance document on workplace safety and health care. Then the
following year, it issued the request for information and its
gathered information on that and it has put the question of
workplace violence in health care on the regulatory agenda and
it has called for the convocation of a SBREFA panel as--on its
website as early as next month.
And so I think it is by all accounts appears to be moving
rapidly on the subject of workplace violence in health care.
And I think the best thing we can do is let it take its course
in gathering the evidence and to do this process properly.
Mrs. FOXX. Thank you. I had a fourth question but I will
submit it for the record. Thank you, Madame Chairman.
Chairwoman ADAMS. Thank you. And thank you very much. I'm
going to recognize now the gentlelady from the State of
Washington, Ms. Jayapal.
Ms. JAYAPAL. Thank you, Chairwoman Adams, for holding this
important hearing today on workplace violence. As we have
heard, unfortunately workers across the country face this
terrible situation of workplace violence and for health care
workers, there are serious risks of violence based injury--
nearly 5 times greater than other sectors. These are the people
who care for our loved ones and I particularly want to thank
Ms. Moon-Updike and Dr. McClain.
We cannot simply accept the risk of violence as quote,
``part of the job.'' We are lucky to have such dedicated
workers as the two of you and many others across this country
who take on these roles but we can't expect you to put
yourselves in harm's way every single day simply because we
don't do our job and check that violence.
There are common sense changes that can be implemented and
a great deal of this violence and risk can be managed and
prevented. For example, Aria Jefferson Health in Philadelphia
implemented several different measures that led to a reduction
of violence based injuries by 55 percent over just 3 years.
This could keep our workers safe and save lives.
So let me start, Ms. Moon-Updike, with you, and I want to
thank you so much for your testimony and I'm so sorry that you
have had to go through such a traumatic experience.
You said that you and your colleagues talked to management
after the injury. What did they do in response to your
complaint and do you feel that your voices were heard just when
it is a voluntary issue of management taking up these concerns?
Just turn on your microphone.
Ms. MOON-UPDIKE. I'm sorry.
Ms. JAYAPAL. There you go.
Ms. MOON-UPDIKE. Actually, management had told us that they
were trying their best. And it is often and 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.
And 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.
So when we approached management, it was what didn't you do
properly? Not how can we help you. And often again that is the
common response.
Ms. JAYAPAL. OK.
Ms. MOON-UPDIKE. So often that is why it goes under--
violence goes under reported.
Ms. JAYAPAL. And as so much violence does.
Ms. MOON-UPDIKE. Right.
Ms. JAYAPAL. Thank you so much for that. Dr. Lipscomb, can
you comment on Mr. Rath's testimony that quote, ``The bills
assertion that employer organizations have challenged OSHA's
authority to enforce against workplace violence hazards is
misleading?''
Dr. LIPSCOMB. I think the fact that employers that have
been cited under the General Duty Clause are contesting those
citations in a number of cases is pretty clear evidence of
that.
Ms. JAYAPAL. Thank you. And can you discuss some of your
specific research and the research of others that discusses the
effectiveness of workplace violence prevention programs such as
those recommended by OSHA and its guidance and required by H.R.
1309?
Dr. LIPSCOMB. Certainly. I would say most the research that
has looked at interventions in the last 10 plus years have all
used the OSHA guidelines basically as a template. And
fortunately, there was finally a randomized controlled clinical
trial which was the gold standard in research that was
conducted over a 5-year period of time out of Wayne State
University researchers.
They had 7 different hospitals and they randomly assigned
an intervention based on the OSHA guideline to 20 units and 20
units didn't get the intervention and they found over the
course of 2 years that workplace violence-related injuries were
reduced by 60 percent which was very interesting case. It is
the same number that you just cited from the Aria Jefferson.
Ms. JAYAPAL. Right. And I'm just running out of time so I
am just going to wrap this to say that it sounds like there is
a lot of research out there. So let me just ask you my final
question. Do you think that these findings and the other data
that has been presented by the GAO justify this legislation
requiring OSHA to move rapidly on issuing a workplace violence
standard?
Dr. LIPSCOMB. I definitely do.
Ms. JAYAPAL. Thank you Ms.--Dr. Lipscomb. I yield back,
Madame Chair.
Chairwoman ADAMS. Thank you very much. At this time I want
to recognize the Ranking Member Mr. Byrne.
Mr. BYRNE. Thank you. Mr. Rath, I was listening to what Ms.
Moon-Updike was saying and what would trouble me is if an
employer retaliated against her or other coworkers at that
place of employment.
Under OSHA, isn't there a prohibition on employers
retaliating against an employee that reports workplace violence
or makes any sort of comment about the need for improvement?
Mr. RATH. Thank you for that question, Ranking Member
Byrne. Yes, the Occupational Safety and Health Act under
Section 11(c) prohibits retaliation for any instance where an
employee has exercised their rights under the act and reporting
an instance of an injury or an illness is covered as well under
a separate regulation as well as under that section for the
act.
So there are protections and there is no doubt that the
idea that an employee should be protected from retaliation not
only is but should be a protection that should exist for
employees under that act.
Mr. BYRNE. When OSHA starts a formal rulemaking process,
you know, there are several important and necessary
opportunities for the regulating community to weigh in on the
best approach for a solution that is workable, feasible and
effective. Given that this bill requires OSHA to quickly issue
an interim final standard would there be any opportunity before
the interim final standard for the public including the
employer community to submit comments prior to any of these
being subject to that regulation?
Mr. RATH. Thank you for that question. No, and that I think
is one of the most troubling parts the bill as it's currently
drafted. The bill specifically directs the agency not to seek
any input from any stakeholders and informs the agency that a
bill which is drafted in template in Section 103 or something
at a minimum that looks like that section should be implemented
without any stakeholder involvement.
And that not only includes the comment process but it also
includes hearings that are typical in the rulemaking process
and it includes the small business or the small business panel,
the SBREFA panel process. So there is a number of processes
where stakeholders get to become involved in a rule that this
bill specifically directs social deterrents back upon.
Mr. BYRNE. We know that California was the first State to
issue a workplace violence prevention standard covering health
care workers back in 2016. Given that the legislation before us
today closely mirrors that standard, Mr. Rath, is there--are
there any takeaways from the California experience that this
committee should be aware of?
Mr. RATH. Well, thank you for that question. The problem
first is that there hasn't been enough time to gain experience
on the efficacy of that standard. Second of all, there have
been perhaps eight States that have developed some similar
standard on the subject and it would be better to look at the
best elements of each of those standards rather than modeling a
standard off of just one State.
And then finally, I would say that if there has been any
early feedback, is that rule was too hastily put together
without stakeholder involvement and that there are ways to have
made that rule or this rule for that matter better in
protecting workers from workplace violence and I don't think
that haste is the best way to seek out those better
opportunities.
Mr. BYRNE. I thank one of the things that concerns me as
someone that practiced in this area is that I know that
industry has a direct interest in making sure that there is a
safe workplace. Because there is significant liability, I know
you would agree with that, if industry doesn't do that. So
often times, the real experts on what the best predicts are to
keep workers safe are the employers themselves and so you look
to the employment and the employer community because they are
the ones that have the experience.
You also referenced the insurance companies that have a
whole lot of data. They're the ones that come forward and say
look, we know because we do this all the time. We know what
works and what doesn't work. You add to that the experience of
people like Ms. Moon-Updike and other people like her, all of
that comes in play for the agency to sit down and make a very
thorough, well thought out process.
Isn't that the goal here is to have all these people with
all these points of information and expertise to give that to
the regulating body before they make a decision including
interim final rule?
Mr. RATH. Mr. Byrne, I think that is exactly right. Not
only so, but as well the scientific and medical communities who
understand the science of the causes of workplace violence. But
the employers themselves are not to be neglected. It's possible
and it's probably true that some employers have not done enough
on the question of workplace violence in the health care
industry.
But the leading employers in any sector, in any industry
have come up with the best practices collaboratively through
their industry associations and individually they have come up
with leading practices on the management of workplace safety
and health hazards and that would be true as well for workplace
violence. And to solicit their acquired experience would be I
think a route to making this draft standard better.
Mr. BYRNE. Thank you for your testimony and I yield back.
Chairwoman ADAMS. Thank you very much. I want to recognize
the chair of the Committee on Education and Labor, the
gentleman from Virginia, Mr. Scott.
Mr. SCOTT. Thank you. Thank you, Madame Chair and thank you
for holding this hearing. Let me ask a question of I guess Ms.
Lipscomb. What kind of initiatives can be adopted that would
actually make a difference? What are some examples of those
kinds of actions?
Dr. LIPSCOMB. Well, I think it's pretty clear because the 9
State laws that have been passed including the California law,
all basically say the same thing. They all call for this
process of preparing a workplace violence prevention plan that
involves direct care worker input and a number of processes to
evaluate the risk in your workplace and then design
interventions which are commonsense and specific to the
workplace--
Mr. SCOTT. Like what?
Dr. LIPSCOMB [continuing]. to address those problems.
Mr. SCOTT. Like what?
Dr. LIPSCOMB. There are different types of engineering
devices. We have heard about the need for security from Ms.
Moon-Updike. I have been in a lot of facilities where they have
inadequate means for an individual worker to summon support
when they are being threatened or attacked. There is certainly
the issue of staffing is one that a number of organizations
including the one that your colleague mentioned at Aria
Hospital in Pennsylvania has invoked.
So there are a whole series of interventions that are
outlined in the OSHA guidelines and they have actually even
been adopted in the various publications that have come out
from the Joint Commission.
So I think there is really a consensus in the field that
what is needed is workplace violence prevention plan which is
what is outlined in this bill.
Mr. SCOTT. And you have shown through research that when
you have such a plan, the injuries go down?
Dr. LIPSCOMB. There is research that indicates that, yes.
Mr. SCOTT. Now we have been working mostly on guidance, it
that right?
Dr. LIPSCOMB. Right. So--
Mr. SCOTT. And is guidance enforceable?
Dr. LIPSCOMB. No, guidance is not enforceable.
Mr. SCOTT. Is the interim final rule after 1 year
enforceable?
Dr. LIPSCOMB. My understanding is that it would be, yes.
Mr. SCOTT. Mr. Rath, do you know if the final interim rule
is enforceable?
Mr. RATH. As the bill is drafted, Mr. Scott, the Section
103 standard would be enforceable without any stakeholder
comment but the guidance serves as the baseline or a baseline
for enforceability under Section 5(a)1 of the Act. So there is
enforceability right now and there has been enforcement.
Mr. SCOTT. But the guidance would be enforceable only as it
pertains to an existing regulation.
Mr. RATH. Well, the Section 5(a)1 which is called the
General Duty Clause of the OSHA Act allows for enforceability
if there are generally accepted hazards that are recognized by
the industry and that there are feasible means of abatement
that an employer is not taken.
Mr. SCOTT. OK. Dr. Lipscomb, Mr. Rath just suggested that
the interim rule would be done without input. Is that in the
bill?
Dr. LIPSCOMB. 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 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.
Mr. SCOTT. Thank you and I yield back.
Chairwoman ADAMS. Thank you. I thank the gentleman for
yielding. I want to recognize the gentleman from Virginia, Mr.
Cline.
Mr. CLINE. Thank you, Madame Chair. Mr. Rath, transparency
is a very important issue for me and one that I have worked on
in the State legislature for many years. Another unique step in
the OSHA rulemaking process is that the public can request a
public hearing on a rulemaking and it seems in keeping with
transparency like an important and valuable step in allowing
stakeholders to share any concerns or perspectives on an issue.
How would this step help in promulgating a standard such as
the one we are discussing here today?
Mr. RATH. Thank you for that question. So the
administrative rulemaking process calls for first notice to
everybody about a proposed rule and then people get to file
comments and then there is often a hearing and the hearing--and
the--to answer your question, the hearing serves the valuable
role of allowing the agency as well as stakeholders to question
the authors of those comments and to question various other
critical stakeholders on the sufficiency of their comments to
test the reliability of those comments to further understand
any ambiguities that might have incidentally arisen from those
comments.
And that dedacted process that takes place in those
hearings like any rulemaking in any governmental branch is the
place where people develop a fuller understanding of what is
being proposed and what the comments are about that proposal
and this proposed bill would eliminate that critical rulemaking
step.
Mr. CLINE. Thank you. And I also see that one of the
implications of this bill is that it would allow this
particular rulemaking to skip ahead for lack of a better term,
in line and in front of all other ongoing OSHA rulemaking
efforts.
In your opinion, what are the circumstances under which
OSHA should choose to expedite a rulemaking effort in this
manner and does this issue demand that level of prioritization
above all others?
Mr. RATH. That is a good question. Well, to begin with we
have some guidance on when OSHA should choose to move an issue
to the top of its rulemaking danger and that comes through
emergency temporary standards for example. Where if for toxic
substances or for a new hazard, the agency may implement an
emergency temporary standard but even then rulemaking, the
proper rulemaking process should be observed. It's simply that
this gives us some idea of what constitutes an emergency. And
in this case, we are not dealing with a new hazard. This is
something where OSHA issued its first guidance in 1996.
As to what are the kinds of circumstances here that would
permit us to conclude that this is an emergency or deserves to
go to the top of the list? Well, I think that is precisely the
question that stakeholders should be able to weigh in on and
although there are some statistics that have been reported, I
think that the rulemaking process where stakeholders
participate gets to test the sufficiency of those statistics as
against all other OSHA priorities.
It may be that the collective number of cases reduced by
all of the other elements of the OSHA agenda may or may not
outweigh the urgency dictated by the statistics of the number
of cases in the field of workplace violence and health care.
Mr. CLINE. Thank you.
And finally, as you know, OSHA still lacks an assistant
secretary to lead the agency more than 2 years in the Trump
administration and 16 months after he was nominated to the
post. What role does the assistant secretary have in creating
and prioritizing OSHA's regulatory agenda and how does this
obstruction interfere with that?
Mr. RATH. Well, it's a great question and the assistant
secretary has a significant hand in the development of policy
as well as prioritization of projects. And in the absence of a
secretary, and again, the assistant secretary, the acting
assistant secretary has been doing an excellent job. But in the
absence of an actual assistant secretary, it is difficult for
the agency to move forward on significant initiatives lacking
that guidance from a person who has been empaneled in the
proper procedure.
Mr. CLINE. Thank you. Madame Chair, I yield back.
Chairwoman ADAMS. Thank you very much. Oh, OK. I want to
recognize Mrs. Omar. You are recognized for 5 minutes.
Ms. OMAR. This juggle between committees is an exercise we
have to get used to. Thank you. Dr. Lipscomb, in your
testimony, you acknowledged that health care workers are more
likely to experience non-fatal assaults than any other worker
group. And that to me seems like a scary statistic. And so I
wanted to see if you can maybe tell us a little bit within your
extensive research, have you been able to collect any data on
the rates of violence against workers and in particular, I know
that many of the workers within nursing or within hospitals,
assistant nurses, tend to be immigrants. And so I wanted to see
if you can tell us if you have some data around immigrant
workers and how they might be targeted and might be vulnerable
in the workplace.
Dr. LIPSCOMB. Thank you for that question. I believe the
statistics are that 1 in 6 health care workers are an immigrant
so there are obviously make up a substantial proportion of the
health care work force.
When it comes to the job titles of nursing assistants or
tech or someone who is a personal care assistant in the home,
those are extremely high risk kinds of job occupations and they
are much more likely to have a larger proportion of immigrants
working in the particular roles.
And there is one statistic from the Paraprofessional Health
Institute that indicates that 1 in 4 of the workers that
provide physical care to, you know, all of our elderly and
disabled in the home are immigrants. And I can get you that
reference.
Ms. OMAR. Yes. So with about 25 percent of those workers
being immigrants, the threat of violence and harassment and the
fear of having your status held against you is something that
may for these workers know a little too well.
Dr. LIPSCOMB. Right.
Ms. OMAR. And many of these immigrants might be afraid to
file complaints against discrimination or harassment or
violence they might face in the workplace. So I wonder if you
have any suggestions for us here in Congress to provide
protections for some of these vulnerable workers that a lot of
people don't think about when they're putting protections in
place.
Dr. LIPSCOMB. I think that this bill would go a long way in
protecting all types of workers. I think one of the elements in
the California regulation and it's been incorporated here is,
you know, a focus on training so that workers understand the
risks that they're facing when they go on the job and
importantly, what they can do to minimize these risks and also
encouraging them to report to their supervisor or employer when
there is the risk or when they've been injured. And, you know,
basically make sure that the employer is not going to
discriminate in any way.
I know that Mr. Rath has mentioned the part of the OSHA Act
that deals with discrimination but it's very hard for most
workers even if they know about that opportunity to actually
pursue it and there's a huge backlog of those cases.
So I think this piece of legislation and a subsequent OSHA
regulation would, you know, definitely reduce the risk to all
types of workers.
Ms. OMAR. Thank you. My sister has been a nurse for 18
years and many of my constituents in CD5 in Minnesota, mainly
Minneapolis, are people who are PCA's, nurses, assistant nurses
and people who love taking care of their patients. And so for
us to put the focus on making sure that they themselves are
taken are of so that they can do the work of taking care of our
most vulnerable is an important work.
So I thank the committee for prioritizing this bill and
putting this into effect and for all of you for coming to share
your testimony with us. Thank you. I yield back.
Chairwoman ADAMS. Thank you. The lady yields back. Mr.
Courtney, we are going to recognize you and thank you so much
for this bill and for joining us today. We will recognize you
for 5 minutes.
Mr. COURTNEY. Well, thank you, Madame Chairwoman. And
again, I want to thank you for your leadership. Obviously
moving this bill within 2 months of the new Congress definitely
shows your commitment to responding to what was really I think
a very detailed, thorough document from the Government
Accountability Office which emanated from this subcommittee.
I was back then along with Congressman Miller, Mr. Scott's
predecessor, the ones who requested the GAO report because of
the fact that so much anecdotal constituent input was coming in
about what's happening out there.
My wife is a pediatric nurse practitioner and works in a
specialty clinic that deals with child abuse and again, it's a
very intense, highly charged environment that is there and
which requires help with security guards and safe design of
workplace. So probably every member can talk about a family
member or somebody they know that has been experiencing this
situation.
And again, the GAO report, which took the years to compile,
and again used, you know, tremendous input from experts
reviewed studies were cited throughout their document as well
as obviously the gathering of data. And again, what I think
showed is that we have a situation which is frankly is toxic as
any of the emergency situations which Mr. Rath talked about
where an interim rule was adopted.
Again, I would just note and I would just ask Dr. Lipscomb
just to confirm, I mean, the language in the bill that talks
about not later than 1 year the interim final standard should
be promulgated. There is nothing in that language which
prohibits the gathering of input or data from any stakeholders,
isn't that correct?
Dr. LIPSCOMB. That's correct. And I would also add that
over a period of a couple years, culminating in some online
tools that OSHA produced in 2015, OSHA with a contractor went
across the country to identify best practices in violence
prevention so they have been collecting that information. And
there are great details of these examples of employers really
stepping up to the plate to do above and beyond what is in the
guidelines that is posted on OSHA's website. Another example of
stakeholder input.
Mr. COURTNEY. And again, this is not Terranova, you know,
they have had voluntary guidelines going back to the 1990's
which as you say have been updated. So this is not some, you
know, brand new undertaking.
And again, within that year period for an interim rule,
which I think the data from GAO more than justifies, the fact
of the matter is there is no prohibition in this bill that says
there can't be input from other stakeholders. And again, the
bill then goes on to allow a 42 month period for the final rule
which again will be used for the purpose of getting input for a
final rule.
There is precedent in OSHA for following that exact step by
step process whether its lead-in-construction or hazardous
waste and emergency response which again used an interim rule
to deal with the situation which I think, you know, most people
and the GAO report certainly validates, requires swift action.
But not, you know, precipitous action, I mean, that has
measured data and experience that the voluntarily guidelines as
well as that yearlong period as well as the peer review
information that came in from the GAO, isn't that correct?
Dr. LIPSCOMB. That's correct.
Mr. COURTNEY. Yes, thank you. And I want to again thank Dr.
McClain and Ms. Moon-Updike for coming here and really putting
a human face on this issue. You know, I just thought maybe as a
social worker and somebody who was in the field in a behavior
health setting, I mean, the uptick in violence which again is,
I mean, that trajectory is actually accelerating in terms of
what you are seeing out there, is that correct?
Dr. MCCLAIN. Yes. We are seeing, you know, more violence as
there is, you know, more substance use and more critical, you
know, kind of situations we are going into and we know with the
opioid crisis the removal, child welfare removals have gone up
20 percent.
So it's just, you know, working in those environments
there's more opportunity or more tendency to confront violence
situations.
Mr. COURTNEY. Ms. Moon-Updike, I didn't know if you wanted
to share your experience?
Ms. MOON-UPDIKE. Absolutely. We are also seeing more
violent youth come in to our behavioral health divisions. We
are seeing an increase in homelessness and with mental health
issues so with more violent tendencies.
And if I can also go back to one other thing that was
stated previously. I am from the State of Wisconsin and the
facility that I worked in, there was no OSHA oversight and
there was no stage agency oversight. So this bill would provide
that for us because right now there is none.
Mr. COURTNEY. Great. Well, than you again to all the
witnesses for being here--
Ms. MOON-UPDIKE. Thank you.
Mr. COURTNEY [continuing]. today. I yield back.
Chairwoman ADAMS. I am going to recognize Mr. Khanna from
California.
Mr. KHANNA. Thank you, Chair Adams. I want to thank you for
your leadership and for allowing me to join this hearing of the
Education and Labor Committee. I also want to thank our chair,
Bobby Scott, for championing such an issue. And of course my
colleague, Representative Joe Courtney for introducing this
bill to make the workplace safer for health care and social
workers. Thank you for your leadership.
And then I want to recognize the California Nurses
Association and National Nurses United for leading this effort
in California back in 2014.
You know, I was so surprised to hear, I would go into rooms
with nurses and I would say how many of you have faced violence
at the workplace? And the majority of hands would go up. You
know, we work in Congress and it's not civil but we don't face
violence. I mean, it is a tough job being a health care worker
or a social service worker and it is about time we had
legislation to address this.
I think this legislation goes a long way. It incorporates
some of the law that was a part of California in updating the
OSHA rule and it is a comprehensive solution that will help not
just nurses but also health care workers and social service
workers more generally.
I would now like to ask a few questions to Dr. Lipscomb.
What States have effective models in violence prevention? You
don't have to mention my State of California if you, but you
can. What would you say?
Dr. Lipscomb. So California of course comes to mind and I
think each of these States have learned what previous States
have promulgated and then have improved upon them. So I would
also mention New York State has a very good workplace violence
prevention law. New Jersey, Oregon, Washington State.
We have one in Maryland that doesn't have a lot of teeth
but there are many, many good models out there.
Mr. KHANNA. And could you explain the advantages of passing
this legislation rather than just letting OSHA move forward on
its normal regulatory pace? I know Chair Adams discussed this
earlier but would love your insight.
Dr. Lipscomb. Well, I think what we heard from the
chairwoman is that on average it takes 7 years for a standard
and it can take up to 20. And I think if you think about the
testimony that you heard today from Ms. Moon-Updike and you
multiply that story by tens of thousands of health care workers
all around the country that experience this on a daily basis,
you will realize why we need this mechanism to encourage OSHA
to make this a priority and promulgate an interim final
standard and a final standard in the shortest amount of time
possible.
And again, because the other States have gone through the
process of collecting stakeholder input and a lot of the
voluntary professional organizations are recommending the same
thing, I think that is the difference.
Mr. KHANNA. And I want to thank you, Ms. Moon-Updike, for
being here and overcoming such a tragedy to be active and push
for change. I really admire that.
Dr. Lipscomb, do you think if we had a standard like New
York or a law like Mr. Courtney's that we could have prevented
the type of tragedy that befell Ms. Moon-Updike?
Dr. LIPSCOMB. Yes, I think so based on her account of it.
There are inevitably some incidents that might not be
preventable but I think the vast majority of them are and now
we have one very strong study, methodologically and examples
elsewhere where over a couple years, year period of time there
has been a reduction in the range of like 40 to 60 percent.
Mr. KHANNA. You know, I want to give Ms. Moon-Updike the
last word. I mean, Ms. Moon-Updike, what inspires you to be
here and fight for this and what would you like to see from the
United States Congress?
Ms. MOON-UPDIKE. Thank you for your question, sir. I didn't
know when I would be ready to do this, to help other health
care workers. And about 3 weeks ago at our medical trauma
center in Milwaukee, Wisconsin, we lost a nurse and she was
killed in the place that she worked. And she was raped. She was
beaten and then she was run over with her car in the parking
structure where she worked. And she was left there to freeze on
the ground. And she died.
She was a nurse practitioner in the oncology unit. Her name
was Carly. Sorry. And she was not found for 2 hours. She was
found by a snowplow crew. She was not found by security. And
the administration said when asked why the security cameras did
not find her, the administration said because the campus is too
big for all the areas to be watched and for every--and for
security guards to be--take every employee out. That could have
been me. I almost died the day that I was injured. And she did
die. She was 33 years old. And at that point I was angry.
So I decided that it was time to get off my rear end,
excuse my vernacular again, and do something and make, try to
make sure that didn't happen again and that somebody was
accountable for Carly dying. Because there is a sisterhood and
a brotherhood of nurses and we put ourselves out there to help
people.
We help your mothers, your brothers, your daughter, your
sons, your wives, your husbands. We do that. And who is helping
us? Who was there for her but a plow drier. That's why I am
here.
Mr. KHANNA. Well, I just want to thank you again, Ms. Moon-
Updike for taking such grief and heartbreak and turning it into
a positive purpose. It is citizens like you that give me hope
for our country. Thank you.
Ms. MOON-UPDIKE. Thank you. Thank you.
Chairwoman ADAMS. Thank you very much. I want to remind my
colleagues pursuant to committee practice, materials for
submission to the hearing record must be submitted to the clerk
within 14 days following the last day of the hearing. Materials
must be submitted--must address the matter of the hearing and
only a member of the committee or invited witnesses may submit
materials. Documents are limited to 50 pages. Any pages longer
than that will be incorporated into the record via internet.
I want to thank again all the witnesses for your
participation today and for your testimony and what we have
heard is extremely valuable to us. And members of the committee
may have some additional questions for you. We ask them to
please respond to those in writing and the hearing record will
be held open for 14 days in order to receive those responses.
I remind my colleagues that pursuant to committee practice,
witness questions for the hearing record must be submitted to
the majority committee staff or committee clerk within 7 days.
The questions submitted must address the subject matter of the
hearing. I want to now recognize the--my ranking member for his
closing statement.
Mr. BYRNE. Thank you, Madame Chairman, and thank you all
the witnesses today. Good testimony. I think it helps all of us
understand this better.
Ms. Moon-Updike, I hope the perpetrator of the crime you
just told us about is prosecuted to the fullest extent of the
law. I really hope that whoever did this is caught and we do
with him as the fullest extent that we can do with someone that
commits a crime like that.
Dr. McClain, thank you for pointing out something that we
should all be aware of and that is that the drug crisis in this
country and the mental health crisis in this country is
spiraling out of control and you all are on the front lines and
the victims of what that means.
Mr. Rath, I thank you for reminding us that there are
procedures here that we are here to--that we are supposed to
follow before we put out laws and regulations in this country
and the reasons beyond all of that although it sounds like a
lot of process stuff, the process stuff is important.
And Dr. Lipscomb, thank you for the findings that you have
made over the years. I would like for you to have an input into
this regulation which is why I think we need to get OSHA
moving.
I doubt that this bill is going to become law in this
Congress and I don't want to wait that long so I'm going to
make an offer to Mr. Courtney, my good friend and to Ms. Adams,
the Chairman of the Subcommittee. Maybe we should get the folks
from OSHA to come over here and talk to us about what we can do
between now and the end of this Congress to get OSHA to speed
this process up and get something done here.
And with that, ladies and gentlemen, you will have to
excuse me I have got a five o'clock I have to go get. Thank
you.
Chairwoman ADAMS. Thank you very much. I want to get
unanimous consent to submit to the record the testimony of the
National Nurses United--the United--National Nurses United
which is before the House of Education and Labor Committee
today. All right.
I want to thank the ranking member and everyone who came
out today. And particularly I want to say to all of our
witnesses, thank you first of all for your patience and the
fact that we had to go vote and you are still here. We
appreciate that very much.
I want to now recognize myself for closing statements.
Again thank you. Your testimony has been very valuable and your
expertise as well.
I think I speak for all for the members of the subcommittee
when I say that we learned an enormous amount of valuable
information from you today. I am an educator by training. I
taught 40 years. But I know that education is an ongoing
process and so I am going to--I am continuing to learn and I
have learned from you.
But I think for me in terms of personal reference, my mom
had a care giver. I was a partial caregiver for her. She lived
until she was age 90, passed away a couple of years ago. So I
understand the work that you do. I appreciate the work that you
do.
And as a matter of fact, I worked in a nursing home to work
myself through college so I certainly have a lot of empathy for
the things that we brought today.
We have heard compelling evidence this afternoon that
workplace violence is a serious and life threatening problem
for this Nation's front line health care and social service
workers. This hazards--these hazards are not only predictable
but they are also preventable.
Mr. Courtney, thank you for your leadership with this bill.
I think that we can all agree that going to work shouldn't mean
getting hurt at work.
H.R. 1309 which we have discussed today would provide the
protection that these workers need and that they deserve. And
to clarify again H.R. 1309 allows OSHA to go through its full
rulemaking process including public input before issuing a
final standard.
Now given that, I believe that we all share our witnesses
concerns about the seriousness of these threats and I hope that
we will be able to work together on a bipartisan basis to move
this legislation forward.
And if there is no further business? I don't hear any. All
right. Without objection the committee stands adjourned.
[Additional submissions by Chairwoman Adams follow:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
[Whereupon, at 5:04 p.m., the subcommittee was adjourned.]
[all]