As OSHA Violence Regulation Stalls, States Move to Protect Healthcare Workers
February 1, 2024 11 minutes read
By Gary Evans, Medical Writer
After more than a decade of urgent calls for federal labor officials to adopt a standard to prevent violence against healthcare workers, 600 determined nurses came to the massive, dome-capped Texas State Capitol in Austin in February 2023.
“That means every representative was visited by multiple nurses who live in their district,” says Serena Bumpus, DNP, RN, NEA-BC, chief executive officer of the Texas Nurses Association (TNA). “The majority of our senators were also visited by a nurse. They heard the personal stories of nurses’ experiences with workplace violence. Nurses have been much more vocal coming out of COVID.”
The bipartisan bill that the TNA and the Texas Hospital Association jointly lobbied for was passed into law effective Sept. 1, 2023.1 Under the conditions of the legislation, healthcare facilities have until Sept 1, 2024, to enact the key provisions.
“This law forces accountability for healthcare organizations to pay attention to the rate of workplace violence,” Bumpus says. “They are supposed to have a policy in place to identify their risks and require a mechanism for the employees to report the incidence of violence. The research shows that it is widely underreported.”
There is a familiar litany of reasons for not reporting, including the perception by healthcare workers that nothing will be done about it, they will somehow be blamed for the incident, that a violent patient was under the influence of medications or other drugs, and different definitions of what constitutes violence.
The Texas law defines healthcare violence as “an act or threat of physical force against a healthcare provider or employee that results in, or is likely to result in, physical injury or psychological trauma, and any incident involving the use of a firearm or other dangerous weapon, regardless of whether a healthcare provider or employee is injured by the weapon.”1 The law includes protections for workers who report incidents and allows hospitals to adopt measures that align with their risk assessment and their surrounding community.
“Several facilities, for example, have already implemented metal detectors,” Bumpus says. “That can depend upon the [patient] population and the area the facility is in. Not all hospitals have to do the same thing, but they all must adopt a [violence prevention] plan and follow it.”
Research indicates healthcare violence has increased at a great financial cost and an incalculable toll on healthcare workers and their families. A research report from the American Hospital Association “estimated that proactive and reactive violence response efforts cost U.S. hospitals and health systems approximately $2.7 billion in 2016. This includes $280 million related to preparedness and prevention to address community violence, $852 million in unreimbursed medical care for victims of violence, $1.1 billion in security and training costs to prevent violence within hospitals, and an additional $429 million in medical care, staffing, indemnity, and other costs as a result of violence against hospital employees.”2
Pre-pandemic data from the Bureau of Labor Statistics indicate that the rate of violence against healthcare workers rose steadily in hospitals from 2011 to 2018, when it was about six times higher than the rate faced by employees in general industry.3 Verifying anecdotal accounts of an increase in violence during the pandemic, a Mayo Clinic study found that violent incidents essentially doubled in the emergency department during the pandemic. “Violent incidents increased overall during the pandemic (2.53 incidents per 1,000 visits) compared to the previous year (1.24 incidents per 1,000 patient visits),” the authors reported.4
Given the broad consensus that violent incidents are underreported, it can be concluded, that as bad as the available numbers look, the actual level of violence is considerably worse. For example, cost estimates typically do not include an analysis of the psychological trauma of being attacked, threatened, or bearing witness to such incidents against others.
Double Murder in a Maternity Ward
The primary incident that emboldened the TNA and the Texas Hospital Association (THA) to call for state legislation was the Oct. 22, 2022, murder of a nurse and a social worker in the maternity ward at Methodist Dallas Hospital. They were shot dead by a man who claimed that his girlfriend, who had just given birth, had been unfaithful to him. Nurse Katie Annette Flowers, 63, and social worker Jacqueline Pokuaa, 45, were shot by Nestor Hernandez, 31, who was wounded, arrested, and eventually sentenced to life in prison without parole.
Deadly violence in a newborn unit was an unsettling combination, seeming to redouble the shock and vulnerability of murder in a house of healing. “Our hearts are broken,” Bumpus said at the time. “This is unacceptable.”5
Similarly, the American Nurses Association (ANA), which also cited the stabbing of a nurse in North Carolina during the same period as the Texas attack, said in a statement: “The ANA has for years called for zero tolerance for workplace violence and advocated for workplace violence legislation and policies to protect and safeguard nurses and other employees. Time is up. This must end now.”6
As a result of the Methodist Dallas Shooting, the Texas Legislature also passed a law upgrading the charge for assaulting hospital personnel on hospital grounds from a Class A misdemeanor to a third-degree felony.
The Texas violence prevention law also establishes a grant program to help hospitals enact protective measures. The TNA and the THA have created a toolkit to help state healthcare facilities comply with the new law.7 The measures outlined include establishing a workplace violence prevention committee that must include at least one patient-care physician, registered nurse caregiver, and someone from security staff. “The facility’s governing body must adopt a workplace violence prevention policy to protect healthcare providers and employees from violent behavior and threats of violence occurring at the facility,” according to the toolkit “The policy must require that the facility give ‘significant consideration’ to the plan developed by the workplace violence prevention committee.”
The consequences of failing to adopt a plan or not complying with an existing plan are a work in progress but ultimately call on medical licensing authorities to act if necessary.
“If a facility is out of compliance with the workplace violence prevention law — if they don’t have a plan or a policy in place, or they are not training their employees on the aspects of that — they can receive enforcement actions from their licensing agency, which is usually the [state] department of health and human services,” Bumpus says. “We are still in the rulemaking process right now, so that enforcement could be a fine or could be [some other consequence].”
OSHA Stymied
Other states have enacted or are debating similar legislation in part because hope has waned that a healthcare violence standard will be issued anytime soon by the Occupational Safety and Health Administration (OSHA).
An OSHA draft standard, “Prevention of Workplace Violence in Healthcare and Social Assistance,” is under internal review and discussion. However, it failed to pass muster with the Small Business Advocacy Review (SBAR) panel, which completed its legally required review and issued its report in May 2023.
A host of questions and caveats were raised that must be addressed for the OSHA standard to go forward. The immediacy of gunfire in a hospital corridor gave way to the steady silence of a bog.
“All that I can tell you right now is that we in the midst of reviewing the recommendations of the SBAR,” says OSHA spokeswoman Kimberly Darby. “Our next step in the proposed rulemaking process is to issue a notice of proposed rulemaking; however, we have not determined or projected a date for that process.”
OSHA issued a request for information on developing a healthcare violence prevention standard in 2016.8 Unfortunately, nothing came of it as a new presidential administration came in with a negative view of new regulations.
“OSHA has been talking about [this]…” Bumpus says, interrupting herself to give a specific example. “We’re in the process of cleaning out some of our offices, and I found workplace violence material the TNA was working on that goes back to 2010. We have been working on this for more than a decade with very little headway. It was imperative that we worked out something here in the state because it takes a long time to accomplish things at the federal level.”
According to the OSHA SBAR report, concerns and issues that must be resolved include redundant or overlapping requirements with other oversight groups, as many Small Entity Representatives (SERs) claim to have programs already in place.
“Many SERs expressed concerns about additional regulation, such as that an OSHA WPV [workplace violence] rule would not further reduce workplace violence, could create conflicts with existing requirements, could increase the complexity of workplace violence prevention control plans without a corresponding safety benefit, could necessitate additional staff due to increased recordkeeping and reporting requirements, or could potentially lead to negative patient outcomes,” the report stated.9
SBAR also raised concerns about limited resources to adopt a violence prevention plan, which seems somewhat contrary to the claims of already complying with similar requirements.
“Some SERs raised concerns that, notwithstanding the overlapping regulations, they anticipated that they would incur significant costs under a new OSHA rule because they would need to familiarize themselves with the requirements of the new standard and review their [violence] prevention programs to ensure compliance with OSHA requirements,” the report stated. “While SERs overwhelmingly wanted flexibility, some SERs also reminded the [SBAR] Panel that this kind of approach can sometimes make it difficult for small entities to determine exactly what they need to do to comply with an OSHA standard.”
Others stated their facility rarely had incidents of violence and should not be required to enact unneeded measures. To address these concerns, the SBAR panel recommended that “OSHA consider the unique conditions of each affected sector and better tailor the requirements in the proposed standard to those conditions.”
Thus, it appears OSHA must wordsmith its way out of a host of caveats and concerns to make the standard applicable to a broad swathe of healthcare settings. At any rate, as it stands — and the same thing could have been said 10 years ago — there is no specific OSHA standard requiring violence prevention programs in healthcare facilities. Under OSHA’s General Duty Clause, employers are required to ensure workers can perform their jobs free of “recognized hazards,” but this has proven to be a cumbersome and ineffective enforcement tool — underscoring the need for a specific federal standard.10
Federal Bills
Various federal bills have been introduced only to be stalled at some stage in Congress, including one that would essentially require OSHA to enact a violence prevention standard. A recent review of various federal legislative bills on healthcare violence said the “most promising” may be a bipartisan bill called Safety from Violence for Healthcare Employees (SAVE) Act.
“The bill seeks to establish a new federal ‘criminal offense for knowingly assaulting or intimidating hospital personnel during the performance of their official duties in a manner that interferes with their performance of the duties or limits their ability to perform the duties,’” the authors explained. “As such, the SAVE Act will see to the statutory protection of hospital employees against assault and intimidation along the lines that aircraft and airport workers currently enjoy under federal law. Violators will be fined, imprisoned (for up to 20 years), or both.”11
Additionally, the SAVE Act would authorize the U.S. Attorney General to award grants to hospitals establishing programs to reduce the incidence of violence.
With the fate of these efforts uncertain in the divided political environment, The Joint Commission (TJC) is the only group that has set national violence prevention standards. As a deemed authority for the Centers for Medicare & Medicaid Services (CMS), TJC can assess compliance during its accreditation surveys.
Judith Arnetz, PhD, MPH, PT, a violence prevention researcher at Michigan State, recently published an article calling TJC’s new workplace violence standards a “major step forward” that will improve both safety and quality of care.12
TJC established a broad definition of workplace violence that includes any disruptive or potentially harmful behavior, Arnetz noted.
“Thus, violent behavior is not limited to acts of physical violence, but includes verbal aggression, threats, acts of intimidation, harassment, sexual harassment, bullying, and sabotage,” Arnetz wrote. “This definition encompasses a wide umbrella of potentially harmful violent behaviors that can when monitored over time, give hospitals enhanced awareness of the gamut of violent acts to which their employees are subjected.”
Key elements, such as management support, stakeholder engagement, education and training, and data-driven analysis, are outlined in TJC standards. Although TJC has long emphasized the problem of healthcare violence, Arnetz noted that “the establishment of actual standards represents an important development in that they hold accredited hospitals and critical access hospitals accountable … and provide them with a structure for prevention.”
Effective Jan. 1, 2022, there are four new TJC violence prevention standards. These include two under Environment of Care (EC), one under Human Resources (HR), and one in the Leadership (LD) standard. The following details on the four standards are condensed, but full details are available in a TJC report on the standards.13
- EC.02.01.01: “The hospital manages safety and security risks. (Elements of Performance (EP) 17: The hospital conducts an annual worksite analysis related to its workplace violence prevention program. The hospital takes actions to mitigate or resolve the workplace violence safety and security risks based upon findings from the analysis.”
- EC.04.01.01: “The hospital collects information to monitor conditions in the environment. EP 1: The hospital establishes a process for continually monitoring, internally reporting, and investigating injuries to patients or others within the hospital’s facilities; occupational illnesses and staff injuries; incidents of damage to its property or the property of others; safety and security incidents involving patients, staff, or others within its facilities, including those related to workplace violence.”
- HR.01.05.03: “Staff participate in ongoing education and training. EP 29: As part of its workplace violence prevention program, the hospital provides training, education, and resources (at time of hire, annually, and whenever changes occur regarding the workplace violence prevention program) to leadership, staff, and licensed practitioners. The hospital determines what aspects of training are appropriate for individuals based on their roles and responsibilities.”
- LD.03.01.01: “Leaders create and maintain a culture of safety and quality throughout the hospital. EP 9: The hospital has a workplace violence prevention program led by a designated individual and developed by a multidisciplinary team that includes policies and procedures to prevent and respond to workplace violence; a process to report incidents in order to analyze incidents and trends; a process for follow up and support to victims and witnesses affected by workplace violence, including trauma and psychological counseling, if necessary.”
REFERENCES
- 88th Legislature of the State of Texas. Subtitle H. Health Facility Employees. Chapter 331. Workplace Violence Prevention (S.B. 240). Sept. 1, 2023.
- Van Den Bos J, Creten N, Davenport S, Roberts M. Cost of community violence to hospitals and health systems. July 26, 2017.
- Bureau of Labor Statistics. Workplace violence in healthcare, 2018. April 2020.
- McGuire SS, Gazley B, Majerus AC, et al. Impact of the COVID-19 pandemic on workplace violence at an academic emergency department. Am J Emerg Med 2022;53:285.e1-285.e5.
- Texas Nurses Association. TNA responds to Methodist Hospital shooting. Oct. 22, 2022.
- American Nurses Association. ANA statement on the Methodist Dallas Medical Center shooting. Oct 24, 2022.
- Texas Hospital Association, Texas Nurses Association. Workplace violence toolkit. December 2023.
- Occupational Safety and Health Administration. Prevention of workplace violence in healthcare and social assistance. Fed Reg 81:88147-88167.
- Small Business Advocacy Review Panel. Report of the Small Business Advocacy Review Panel on OSHA’s Potential Standard for Prevention of Workplace Violence in Healthcare and Social Assistance. May 1, 2023.
- U.S. Government Accountability Office. Workplace Safety and Health: Additional Efforts Needed to Help Protect Health Care. April 14, 2016.
- Adashi EY, O’Mahoney DP, Cohen IG. Workplace violence in health care: Protective federal legislation must not be delayed. Am J Med 2023;136:611-612.
- Arentz JE. The Joint Commission’s new and revised workplace violence standards for hospitals: A major step forward toward improved quality and safety. Jt Comm J Qual Patient Saf 2022;48:241-245.
- The Joint Commission. Workplace Violence Prevention Standards. R3 Report. June 18, 2021.
After more than a decade of urgent calls for federal labor officials to adopt a standard to prevent violence against healthcare workers, 600 determined nurses came to the massive, dome-capped Texas State Capitol in Austin in February 2023. The bipartisan bill that the TNA and the Texas Hospital Association jointly lobbied for was passed into law effective Sept. 1, 2023. Under the conditions of the legislation, healthcare facilities have until Sept 1, 2024, to enact the key provisions.
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