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What Providers Need To Know: Violence Against Homecare Staff

Much thanks to Elizabeth Hogue, our esteemed colleague and well-known health care attorney for this article. Homecare staff who provide services on behalf of private duty providers, hospices, Medicare-certified home health agencies and home medical equipment (HME) companies are extremely vulnerable. Contributing to their vulnerability is the fact that they work alone on territory that may be unfamiliar and over which they have little control. Staff certainly need as much protection as possible.

First, we will review exposure to workplace violence from the Occupational Safety and Health Administration’s (OSHA) point of view. And then explore the liability of home care providers of all types for negligence when employees are injured as a result of violence.

Agency providers may be liable when field staff members are injured as a result of violence. The Occupational Safety and Health Administration (OSHA) may, for example, take action against homecare providers when patients are injured as a result of violence. Likewise, agencies may be liable for negligence. Recent enforcement action taken by OSHA against a private duty agency illustrates the likelihood of liability for such violations by homecare providers of all types.

Agency Providers Learn From Recent OSHA’s RulingProviders

On July 5, 2016, OSHA issued a $98,000 fine for an alleged willful violation of applicable requirements related to exposure to workplace violence, including physical and sexual assault. The citation was based on an investigation that began on February 1, 2016, after a staff member was assaulted by a homecare client. In this case, a staff member who previously took care of the client had warned the Agency about sexual assaults by the client. OSHA concluded that the Agency failed to protect its staff members from life-threatening hazards of workplace violence. According to OSHA, the Agency also failed to provide an effective workplace violence prevention program.

Specifically, OSHA took issue with two types of conduct by the Agency:
• Staff members were exposed to physical assault.
• There was no system in place for staff members to use to report threats and instances of violence to the Agency.

If OSHA’s citation is upheld, OSHA will require the Agency to abate these findings by:
• Developing and implementing a written, comprehensive program to prevent violence in the workplace
• Implementing a hazard assessment of violence in the workplace
• Developing and implementing measures to control violence in the workplace. Example: an option to refuse to provide services to clients in hazardous situations
• Develop and implement a training program on violence in the workplace
• Developing procedures to follow in instances of violence, including making reports and conducting investigations of such instances
• Putting in place a system that allows staff members to report all instances of violence, regardless of severity

Homecare Providers Responsibility to Protect Staff

Homecare staff members provide increasingly important services under circumstances that can be difficult, to say the least. Perhaps the highest obligation of all homecare providers is to protect their staff members. Proposed action by OSHA described above provides a “road map” for providers to follow as they continue to work to address the issue of violence against homecare staff members.

Providers owe their employees a duty of reasonable care. That is, they are responsible to take reasonable precautions to protect their employees from harm. This obligation may be far easier to talk about than to fulfill due to increasingly threatening environments for home care personnel. A key question regarding this obligation is: what is reasonable?

Homecare Providers and Reasonable Precautions

Reasonableness is determined by what other providers are doing across the country. In other words, whether providers are taking reasonable precautions to protect workers will be judged by comparison to what others throughout the country would have done under the same or similar circumstances. This definition of reasonableness poses particular difficulty for home care providers. There is a lack of data or even anecdotal information about how other companies are dealing with a number of key issues in home care, including protecting workers from harm.

Failure of agencies to fulfill their obligation of reasonable care can be in the form of: (1) acts or errors, and (2) omissions. In other words, providers must show that nothing happened to harm workers because of something that the providers did or should have done. Providers will be found to have caused injury to employees if the damage to employees would not have occurred “but for” an act or omission by employers. Courts generally require proof that employees were injured physically, as opposed to only emotionally, in order to compensate them for their injuries.

What Providers can do to Protect Employees From Harm

From a practical point of view, it is important to ask what providers can do to protect their employees from harm. The most important answer to this question is that managers must listen and take action when staff members complain about safety hazards.

One of the strengths of the home care industry has always been that staff members are willing to go beyond the extra mile to care for patients. The perception of many who know the industry well is that workers tend to put up with safety hazards that others would not hesitate to avoid. It becomes essential, therefore, for supervisors to listen carefully to staff members who complain about safety hazards. Assessments by most staff members that they regard situations as unsafe are usually valid since their natural inclination is to continue to provide services to patients in unsafe situations.

It is also extremely important for managers to take action in response to complaints by personnel. There is an old legal adage that “every dog is entitled to one bite.” This means that, as soon as the dog has bitten one person, those responsible for the animal are on notice that the dog is dangerous. They must then take reasonable precautions to prevent further injury or damage. Consequently, once employees register even a single complaint regarding dangers associated with the care of particular patients, employers are likely on notice that further care may involve harm to workers. In view of this “first bite,” so to speak, providers must take appropriate action or face possible liability for injuries to their personnel. What kinds of actions are appropriate?

Defining Appropriate Actions for Providers

The use of so-called “escorts;” including armed, off-duty police officers; may be appropriate. Some home care personnel, however, object to use of escorts. The basis for their concern may be that the presence of escorts interferes with their relationships with patients. They point out that there is an essential inconsistency between the caring and nurturing relationships they wish to foster with patients and their families and the use of escorts. Some workers also express concern about their reputations in the community when escorts are used, especially if they live in the community in which they make home care visits.

Providers may, therefore, decide to implement a policy that staff may not reject escorts when management deems their use is appropriate. Refusal of escorts should be defined as insubordination in such policies and procedures, and appropriate disciplinary action, including termination of employment, should be taken in response to this type of insubordination.

Termination of services to patients is also an appropriate response to concerns regarding the safety of home care staff members.

Home care personnel knock on the doors of thousands of patients each day, unaware of what may be inside their homes. They regularly encounter unfamiliar terrain and unknown risks. These risks are likely to become even greater as the use of home care services continues to expand. Managers and field staff must be prepared to deal with the constant potential for compromised safety.

If you need to develop or implement a comprehensive program to prevent violence in the workplace, Kenyon HomeCare Consulting is here to help! Schedule an appointment to speak with one of our experts or give us a call at 206-721-5091.

For more information about this or other legal issues in homecare, contact Elizabeth as outlined below.

Elizabeth E. Hogue, Esq.

Office: (877) 871-4062

Twitter: @HogueHomecare

ElizabethHogue@ElizabethHogue.net

©2016 Elizabeth E. Hogue, Esq. All rights reserved.

 

Category: Leadership, News

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