CMS Threatens Citations for Workplace Safety Violations
February 1, 2023
EXECUTIVE SUMMARY
CMS is threatening Conditions of Participation penalties for hospitals over workplace safety. The agency is focused on workplace violence.
- CMS is acting partly because OSHA cannot easily address workplace violence.
- Employees must be trained to recognize dangerous situations.
- CMS has penalized healthcare employers for workplace violence in the past.
CMS recently put hospitals on notice about potential penalties regarding workplace safety with a recent memorandum to state survey agency directors. The memorandum focuses on workplace violence.
“CMS believes that healthcare workers have a right to provide care in a safe setting. CMS health and safety requirements do not preclude healthcare workers from taking appropriate action to protect themselves from workplace violence,” according to the memorandum. “However, it is incumbent on the leadership at these healthcare facilities to ensure they provide adequate training, sufficient staffing levels, and ongoing assessment of patients and residents for aggressive behavior and indicators to adapt their care interventions and environment appropriately.”1
The memorandum was issued after CMS assessed the amount of violence in workplaces across all industries, says Christopher E. Brown, JD, partner with Kaufman Dolowich Voluck in Orlando.
“They determined that 73% of all nonfatal workplace injuries occurred with healthcare workers. CMS has made it a point to emphasize both patient and healthcare worker safety within these CMS regulated facilities,” Brown explains. “This memo discusses that the hospitals are expected to implement a patient risk assessment strategy. When you have a patient who comes into the facility, they need to assess whether that patient is going to be a risk to themselves or to others, and they need to have a strategy in place to deal with that risk.”
CMS also is responding to workplace violence partly because OSHA cannot, says Joseph W. Dorr, CIH, CSP, CHSP, assistant vice president with The Graham Company.
OSHA does not have a workplace violence standard indicating it can issue citations under directly, Dorr explains. OSHA can cite employers for violating the General Duty Clause for workplace violence, but that is a broad standard and a difficult bar to clear.
“If there’s a lack of enforcement from OSHA, or maybe I’ll call it a reluctance to get involved, then I can see where CMS will come in,” Dorr says. “I completely understand where CMS is coming from.”
The CMS action also was prompted by research from the Leapfrog Group and other organizations, notes Robert Andrews, JD, CEO of Health Transformation Alliance in Washington, DC. Andrews is a former U.S. congressman and an author of the Affordable Care Act.
“They brought to light that there’s a rather chronic hospital safety problem in the United States. According to Leapfrog’s research, maybe one in five of every admitted patient has some safety encounter,” Andrews explains. “The number of fatalities in the year from the hospital error, I believe, is in the range of a quarter of a million people per year. I think CMS is on the right track to come up with some disincentives.”
The potential for loss of Medicare participation is a big stick to wield over hospitals. Risk managers can use that to their advantage, Andrews says. Often, hospital leaders do not take risk managers seriously enough. This warning from CMS could change that.
“Risk managers should be prepared to discuss with the hospital C-suite just how important their work is. Everyone says they care about patient safety, but how much emphasis do they put on it?” Andrews asks. “Skilled, committed risk management officers are going to be given — and should be given — more weight, more gravity in the decision-making process within provider systems.”
REFERENCE
- Centers for Medicare & Medicaid Services. Workplace violence — hospitals. Nov. 28, 2022.
SOURCES
- Rob Andrews, CEO, Health Transformation Alliance, Washington, DC. Email: [email protected].
- Christopher E. Brown, JD, Partner, Kaufman Dolowich Voluck, Orlando. Phone: (407) 904-0919. Email: [email protected].
- Joseph W. Dorr, MS, CIH, CSP, Assistant Vice President, The Graham Company, Philadelphia. Phone: (215) 701-5250. Email: [email protected].
CMS recently put hospitals on notice about potential penalties regarding workplace safety with a recent memorandum to state survey agency directors. The memorandum focuses on workplace violence.
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