BHC Nw. Psychiatric Hosp., LLC v. Sec'y of Labor, No. 19-1089

• Decision Date: 03 March 2020
• Docket Number: No. 19-1089
• Citation: 951 F.3d 558
• Parties: BHC NORTHWEST PSYCHIATRIC HOSPITAL, LLC, d/b/a Brooke Glen Behavioral Hospital, Petitioner v. SECRETARY OF LABOR, Respondent
• Court: U.S. Court of Appeals — District of Columbia Circuit

951 F.3d 558

BHC NORTHWEST PSYCHIATRIC HOSPITAL, LLC, d/b/a Brooke Glen Behavioral Hospital, Petitioner

v.SECRETARY OF LABOR, Respondent

No. 19-1089

United States Court of Appeals, District of Columbia Circuit.

Argued January 9, 2020

Decided March 3, 2020

Carla J. Gunnin, Atlanta, GA, argued the cause and filed the briefs for petitioner. Tressi L. Cordaro, Reston, VA, entered an appearance.

Anne R. Godoy, Attorney, U.S. Department of Labor, argued the cause for respondent. With her on the brief were Edmund C. Baird, Associate Solicitor, Charles F. James, Counsel, and Jessica Cole, Attorney.

Before: Pillard and Katsas, Circuit Judges, and Sentelle, Senior Circuit Judge.

Pillard, Circuit Judge:

The Occupational Safety and Health Act’s General Duty Clause, enforced by the U.S. Secretary of Labor, requires every employer to provide a workplace "free from recognized hazards that are causing or are likely to cause death or serious physical harm to [its] employees." 29 U.S.C. § 654(a)(1). In this case, the Secretary cited an inpatient psychiatric facility, Brooke Glen Behavioral Hospital, for violating the General Duty Clause by inadequately protecting its employees from the "recognized hazard[ ]" of patient aggression toward staff. Brooke Glen now petitions us for review of the administrative decision affirming the citation, see BHC Nw. Psychiatric Hosp. LLC , OSHRC Docket No. 17-0063, 2019 WL 989734 (Jan. 22, 2019) (ALJ), contending it is not supported by substantial evidence and that the agency failed to provide adequate notice of the workplace safety measures the General Duty Clause requires. To the extent they are preserved, Brooke Glen’s objections fail to overcome our deference to the agency, so we dismiss in part and deny in part the petition for review.

BACKGROUND

Brooke Glen, also known as BHC Northwest Psychiatric Hospital LLC, is a 146-bed facility in Pennsylvania that employs some 200 staff and treats patients who, due to serious psychiatric and behavioral issues, often pose a danger to themselves or others. See id . at *2. Brooke Glen is owned by Universal Health Services, Inc., and managed by UHS of Delaware, Inc. The Secretary cited both Brooke Glen and Arbour-HRI Hospital, a smaller inpatient psychiatric facility in Massachusetts owned and managed by the same corporate entities, for violating the General Duty Clause by inadequately protecting their staff from the risk of patient aggression. Both UHS facilities contested the citations in separate administrative proceedings before the same Administrative Law Judge (ALJ). The ALJ upheld Brooke Glen’s citation but vacated Arbour-HRI’s.

In reviewing the citation of Brooke Glen for violating the General Duty Clause, the ALJ heard testimony from the Secretary’s expert, Dr. Jane Lipscomb, and Brooke Glen’s expert, Monica Cooke, who addressed the effectiveness of various measures for protecting employees from the recognized hazard of death or serious physical harm from patient aggression. See id . at *5. The ALJ qualified both Dr. Lipscomb and Ms. Cooke as experts, but placed less weight on Cooke’s testimony because her examination of Brooke Glen’s workplace violence was limited in time and scope and, in some respects, unsupported by evidence. See id . at *6-7. The ALJ took care to note that Brooke Glen was not cited for inadequately protecting against "the hazard of patient on staff violence" by "fail[ing] to follow clinical care guidelines" or by delivering "inappropriate clinical care." Id . at *11.

Examining Brooke Glen’s workplace violence program, the ALJ concluded that the facility failed to update or implement various written safety policies. For example, Brooke Glen’s staff training was inadequately implemented: The facility had a PowerPoint presentation covering workplace violence, but failed to present evidence of "how or if [the presentation] was made available to employees." Id . at *25. The ALJ found that the facility’s Code 100 system—used to summon help in psychiatric emergencies—relied on phones inadequately distributed throughout the facility and walkie-talkies that staff lacked or that frequently did not work. See id . at *15-17. Brooke Glen’s written policies required "a post-incident debriefing of the people involved" in any incident of patient aggression to better prepare staff to prevent such violence in the future. Id . at *12. The ALJ found, however, that staff "debriefings did not consistently occur" and that, even when they did, "their scope was often so limited" that they did not meaningfully contribute to workplace safety. Id . at *12-13.

Brooke Glen adduced evidence showing that its average patient aggression rate in 2016 was 4.41 incidents over 1,000 patient days, significantly below both its 2014 average rate (11.85 incidents) and the total average rate across all UHS facilities in 2016 (8-10 incidents). The ALJ, however, noted several flaws in Brooke Glen’s incident reporting process that impaired the information’s reliability. First, the ALJ found that staff had no obligation to report "incidents of workplace violence that did not result in an injury requiring first aid," and that staff "could, but were not required to" report incidents in which a patient injured them. Id . at *19. A related reporting system that tracked incidents in which patients were restrained did not capture "the high number of occurrences of patient on staff violence that did not end in a restraint." Id . at *13. As for a third recordkeeping system, MIDAS, the ALJ concluded that not "all direct care employees" used it, and that information entered into MIDAS did not "effectively contribute[ ] to abating patient on staff violence." Id . at *14.

Having concluded that Brooke Glen inadequately implemented its existing workplace safety program, the ALJ considered the measures the Secretary recommended Brooke Glen implement to come into compliance with its obligation to protect its staff from patient-inflicted harms. The ALJ agreed that the Secretary’s principal recommendation—having Brooke Glen complete a self-evaluation and institute a comprehensive workplace violence prevention and response program—would effectively address the gaps in the present system. See id . at *28-29. The ALJ also held that the Secretary’s more targeted recommendations would materially reduce the risk of patient-on-staff aggression: ensuring more consistent reporting of incidents of patient-on-staff aggression together with routine debriefing following those incidents to detect and respond to systemic issues, see id . at *35-37 ; increasing staffing to manage the risk of patient aggression, see id . at *30-33 ; improving procedures for summoning help during violent encounters, see id . at *33-35 ; involving frontline staff on committees tasked with reviewing workplace safety policies, see id . at *37-39 ; and enhancing training regarding patient-on-staff violence and related policies and procedures, see id . at *39. In view of the inadequacies in Brooke Glen’s implementation of its safety program and the clear prospect that the Secretary’s recommended measures would materially reduce the hazard of patient-on-staff violence, the ALJ affirmed the cited General Duty Clause violation. See id. at *43.

As mentioned above, the Secretary had also cited another UHS facility, Arbour-HRI, for violating the General Duty Clause by inadequately protecting against patient-on-staff aggression, but on the same day the ALJ upheld Brooke Glen’s citation, she vacated Arbour-HRI’s. See HRI Hosp., Inc. , OSHRC Docket No. 17-0303, 2019 WL 989735 (Jan. 22, 2019) (ALJ). Based on a hearing with testimony from the same experts who had testified about Brooke Glen, the ALJ concluded that Arbour-HRI had been effectively implementing its policies, including many of the Secretary’s recommended safety measures, and that the balance of the recommended measures would not have meaningfully reduced the hazard of patient-on-staff violence. See id . at *29-30. For example, the ALJ concluded that Arbour-HRI’s workplace violence policies, unlike Brooke Glen’s, were regularly reviewed and updated with input from frontline staff. See id . at *17-19. Arbour-HRI’s training program included the same PowerPoint presentation as Brooke Glen had on file, but, unlike in Brooke Glen’s case, the ALJ described in detail how Arbour-HRI effectively used its training materials. See id . at *9. The ALJ’s findings also reflect that Arbour-HRI’s staff, unlike Brooke Glen’s, reported and discussed every incident of patient-on-staff violence, regardless of severity, see id . at *16, and had ready means to summon help during violent incidents, see id . at *27.

In light of the divergent outcomes, Brooke Glen sought Occupational Safety and Health Review Commission (Commission or OSHRC) review of the ALJ’s decision in its case, but the Commission exercised its discretion to deny review, rendering the ALJ’s decision the final order of the Commission. See 29 C.F.R. §§ 2200.90(f), 2200.91(a). Brooke Glen timely petitioned this court under 29 U.S.C. § 660(a).

ANALYSIS

In reviewing an administrative decision affirming a citation issued under the Occupational Safety and Health Act, we accept the ALJ’s "findings of fact as ‘conclusive’ if they are ‘supported by substantial evidence on the record considered as a whole.’ " Otis Elevator Co. v. Sec’y of Labor , 762 F.3d 116, 120 (D.C. Cir. 2014) (quoting 29 U.S.C. § 660(a) ). The "application of the law to those facts will be overturned only if it is arbitrary, capricious, an abuse of discretion, or contrary to law." Id . at 120-21. Brooke Glen asserts in its petition for review that (1) the ALJ’s affirmance of the General Duty Clause violation is not supported by substantial evidence, and (2) it lacked adequate notice of the additional workplace safety measures the hospital needed to implement to avoid liability. Brooke Glen does not challenge the citation’s penalty of $12,471.00, having stipulated...