Employers of nursing facilities should consider reviewing their compliance with the regulatory obligations enforced by the Occupational Safety & Health Administration (“OSHA”). As described in more detail below, OSHA is currently focusing its enforcement resources on all types of nursing facilities, but with a particular emphasis on skilled nursing facilities.
By way of background, a new leadership team came to OSHA in 2009. There was much talk within the agency at that time of a need for more serious OSHA enforcement. Two years of enforcement under this new OSHA team show that it was much more than just tough talk. OSHA’s 2010 budget funded more than 100 new compliance officers, and OSHA shifted much of its compliance assistance staff into enforcement. As a result, the severity of enforcement actions has increased dramatically. Last year, OSHA nearly tripled its number of significant cases (citations including fines of $100,000 or more), and with only a 6-percent increase in total inspections, OSHA managed to issue 15 percent more citations and increased the number of citations characterized as “Willful” by more than 275 percent.
While no industry has been spared from this new enforcement-first philosophy, a few select industries appear to be facing a unique level of scrutiny by OSHA. Among the targeted industries are manufacturing facilities, chemical plants, and nursing facilities. Nursing facilities, in particular, are getting special attention from OSHA under three different national emphasis programs.
First, OSHA has been inspecting many nursing facilities under its Recordkeeping National Emphasis Program (“Recordkeeping NEP”). OSHA initially launched the Recordkeeping NEP at the end of 2009, selecting inspection targets across a wide array of industries. A senior OSHA official explained that “there are several different goals here. One is just to find out what’s going on. Another is to send a message to companies – via penalties – that injury and illness book-cooking won’t go unpunished.” During these inspections, compliance officers review a host of employee health records, including injury and illness logs, payroll and absenteeism records, incident reports and first aid logs, and workers’ compensation records. They also conduct interviews with various personnel and tour workplaces in search of other non-recordkeeping violations.
Despite OSHA’s public speculation that employers were grossly underreporting workplace injuries and illnesses, the first wave of inspections under the Recordkeeping NEP did not yield the significant enforcement actions that OSHA had expected. OSHA suspended the Recordkeeping NEP, evaluated the data it had been collecting, and decided to refocus the Recordkeeping NEP on a few specific industries, primarily nursing facilities and manufacturers. Since re-launching the Recordkeeping NEP with this focus, OSHA has been finding the serious violations it expected, including a remarkable set of recordkeeping citations against one employer with a penalty exceeding $1.2 million. More than one-third of the inspections conducted under the re-launched Recordkeeping NEP involved nursing facilities.
Second, the nursing facility industry also is receiving a special dose of scrutiny from OSHA under the agency’s 2010 Site-Specific Targeting Program (“SST”). Pursuant to the SST directive, OSHA conducts unannounced comprehensive site inspections of employers’ workplaces in industries reporting high rates of workplace injury and illness. Despite years of improvement in this area and because of the physical demands of caring for immobile patients, nursing homes and skilled nursing and long-term care facilities still rank high among other industries in recordable injuries and illnesses. As a result, under OSHA’s SST, hundreds of nursing facilities were selected for compliance inspections focusing on prevalent hazards facing health care workers, including ergonomic injuries related to handling patients, exposure to blood and airborne pathogens and other potentially infectious materials, tuberculosis, workplace violence, and slips, trips, and falls.
Two very recent examples of SST enforcement actions involving the nursing facility industry include an assisted living facility in Illinois and a rehabilitation and nursing center in Pennsylvania. OSHA cited the assisted living facility for 17 violations, ranging from bloodborne pathogen exposure and hazard communication issues to recordkeeping violations. The enforcement action included a $72,000 civil penalty. OSHA found the Pennsylvania rehabilitation and nursing center in violation of 17 standards, issued a $45,000 fine, and demanded several costly abatement measures.
Finally, there is reason to believe that OSHA may be preparing to launch a third national emphasis program targeting nursing facility employers, a Nursing Home National Emphasis Program (“Nursing Home NEP”). The Nursing Home NEP, also driven by the industry’s high injury and illness rates, could last for at least three years, cover a large number of nursing facilities, and focus, as the SST inspections do, on infectious diseases, physical stresses from lifting patients, and violence in the workplace.
OSHA tends to group nursing facility employers into three categories: (1) skilled nursing facilities (providing in-patient nursing and rehabilitative services to patients who require continuous health care but not hospital services); (2) intermediate care facilities (providing in-patient nursing and rehabilitative services but not on a continuous basis); and (3) nursing and personal care facilities (providing some nursing or health care to patients who do not require the degree of care and treatment that a skilled or intermediate care facility is designed to provide). Inspection data shows that OSHA’s attention to the nursing facility industry has largely focused on skilled nursing facilities. Beginning in 2011, OSHA already has conducted nearly 250 inspections of nursing facility employers, and nearly 150 of those inspections have been at skilled nursing facilities, as compared to 23 inspections at intermediate care facilities and 57 at nursing and personal care facilities. Regardless of the category, one thing has been consistent: OSHA has found violations at 75 percent of the nursing facility workplaces it has inspected.
Accordingly, now is the time for nursing facility employers to ensure that their OSHA records are in order, and to take the necessary measures to minimize or mitigate workplace injuries and illnesses. Among other compliance actions to be taken, nursing facility employers should consider conducting attorney-client privileged recordkeeping audits and mock OSHA inspections, address all findings from previous internal or third-party audits, provide comprehensive safety training to employees, and make sure their written safety programs are compliant and fully implemented in the field.