[00:00:00] Speaker 03:
And our first case is 24-9519 Cedar Springs Hospital versus OSHA.

[00:00:09] Speaker 03:
And going up first is Mr. Kohler.

[00:00:12] Speaker 03:
Apologize in advance for any name mispronunciations.

[00:00:18] Speaker 03:
That was exactly right.

[00:00:20] Speaker 03:
Kohler's right, OK.

[00:00:23] Speaker 03:
One for one.

[00:00:26] Speaker 06:
Good morning.

[00:00:28] Speaker 06:
Morning.

[00:00:29] Speaker 06:
My name is Dion Kohler.

[00:00:30] Speaker 06:
I'm with the law firm of Jackson Lewis.

[00:00:32] Speaker 06:
I represent the appellate in this case, which is Cedar Springs Hospital.

[00:00:37] Speaker 06:
This is an appeal from a decision of the Occupational Safety and Health Review Commission.

[00:00:43] Speaker 06:
And the primary issue presented in this appeal is whether this court should follow the very recent decision by the 11th Circuit in a case called Suncoast.

[00:00:54] Speaker 06:
And in that case, the 11th Circuit held that the secretary must prove that each proposed abatement is economically feasible in any case arising under the general duty clause.

[00:01:08] Speaker 06:
It is our position that the court should follow that decision for the reasons set forth in that decision.

[00:01:16] Speaker 06:
Application of the Suncoast decision to this case would result in vacating the abatements that we're contesting in this case.

[00:01:25] Speaker 06:
Under the general duty clause, it's the secretary's burden to prove that there is a recognized hazard likely to cause serious physical injury or death and a feasible and effective means of abatement, which would materially reduce the hazard exists.

[00:01:43] Speaker 06:
That's the secretary's burden.

[00:01:46] Speaker 06:
Here we have five proposed abatement measures that are being contested.

[00:01:50] Speaker 06:
We do not contest the others.

[00:01:52] Speaker 06:
The first is requiring specific staff with specialized training and security to be present on all shifts and not be given other patient care duties.

[00:02:03] Speaker 06:
Adding staff to provide adequate staffing, which is not defined.

[00:02:08] Speaker 06:
Requiring Cedar Springs to provide all employees with silent personal panic alarms.

[00:02:14] Speaker 06:
and reconfiguring the nursing stations in each unit to prevent patient access.

[00:02:20] Speaker 06:
And last, debriefing and tracking all near-miss incidents, which is also undefined.

[00:02:30] Speaker 06:
Briefly about Cedar Springs, it's an inpatient psychiatric hospital located in Colorado Springs.

[00:02:36] Speaker 06:
It has eight units, four buildings, and a total of 110 beds.

[00:02:41] Speaker 03:
Before you move on from the

[00:02:45] Speaker 03:
proposed abatements, the secretary proved, which one did it prove was feasible?

[00:02:56] Speaker 03:
Which one did the secretary prove was feasible?

[00:02:58] Speaker 06:
Yeah.

[00:02:58] Speaker 06:
It's our position that the secretary did not prove that any of those five are economically feasible.

[00:03:06] Speaker 03:
And what was it required to do to

[00:03:11] Speaker 03:
satisfy that burden of proof.

[00:03:13] Speaker 06:
There was no evidence put on as to the cost of the abatements, and you can't determine if it's with the impact, the financial impact on the operation without knowing the cost.

[00:03:24] Speaker 06:
There was what we call speculative evidence on staffing, but it was insufficient to carry their burden of proof.

[00:03:33] Speaker 06:
And I'll talk about that in more detail.

[00:03:36] Speaker 02:
Was that disputed?

[00:03:38] Speaker 02:
It's a fairly detailed ALJ report.

[00:03:41] Speaker 02:
Was it disputed?

[00:03:42] Speaker 06:
Well, the ALJ was relying on the Pembroke decision, which we believe the 11th Circuit overturned.

[00:03:49] Speaker 05:
When you say it relied on Pembroke, for what proposition?

[00:03:52] Speaker 06:
For the proposition that it was not required to prove economic feasibility for each abatement, only one abatement measure, which is what Pembroke said.

[00:04:04] Speaker 06:
Pembroke said you get a pass on all the others if you can prove it on one.

[00:04:08] Speaker 06:
The judge did go ahead and

[00:04:10] Speaker 06:
address economic feasibility for every abatement, but it was very short shrift because, one, Pembroke carried the day, and two, he improperly shifted the burden to the employer to show they couldn't do it.

[00:04:25] Speaker 06:
They couldn't afford to do it.

[00:04:27] Speaker 05:
I hate to follow the question, but I don't want to talk over my friend Judge Phillips.

[00:04:31] Speaker 05:
Did you have a question?

[00:04:32] Speaker 05:
Please.

[00:04:34] Speaker 05:
Isn't this whole point about Pembroke academic?

[00:04:40] Speaker 05:
right, whether they needed to or whether they thought they needed to or they didn't, they did decide, the ALJ did decide that all five of these abatement measures that you are contesting were feasible.

[00:04:54] Speaker 05:
So why does it matter whether or not the ALJ academically thought, well, it would have sufficed if I had only found feasibility on one.

[00:05:04] Speaker 05:
In fact, they found feasibility on all of them.

[00:05:07] Speaker 06:
Well, that's true.

[00:05:08] Speaker 06:
But the ALJ did not.

[00:05:11] Speaker 06:
It's our position that ALJ did not rely on sufficient evidence to.

[00:05:17] Speaker 06:
That's a different point.

[00:05:18] Speaker 06:
Yes.

[00:05:19] Speaker 06:
That's a different issue.

[00:05:19] Speaker 05:
I see.

[00:05:23] Speaker 06:
All right.

[00:05:24] Speaker 06:
You seem to be familiar with Cedar Springs Hospital.

[00:05:26] Speaker 06:
I'm not going to spend a lot of time on that.

[00:05:28] Speaker 06:
But it is important that most of the patients are involuntarily committed.

[00:05:33] Speaker 06:
And there is somewhat of a misnomer

[00:05:37] Speaker 06:
misconception that they're all dangerous.

[00:05:39] Speaker 06:
It's a very small part of the patient population, which are assaultive towards others.

[00:05:46] Speaker 06:
The greater risk of assault is self-harm with these patients.

[00:05:51] Speaker 06:
Most are admitted involuntarily.

[00:05:55] Speaker 02:
But there is a hazard of patient on staff violence.

[00:05:58] Speaker 02:
You can see at that point.

[00:05:59] Speaker 06:
We do not contest whether or not there's a hazard.

[00:06:10] Speaker 06:
Judge Lehow in former commissioner of the commission went through in great detail why she thought Pembroke was not a good decision and that why the commission should be required or the secretary should be required to prove that economic feasibility for each proposed abatement measures.

[00:06:36] Speaker 06:
And the key parts of that was

[00:06:39] Speaker 06:
Because there's no regulation of workplace violence, it relieves these proposed abatements are completely unvetted.

[00:06:48] Speaker 06:
They haven't gone through the regulatory process of allowing stakeholders in the industry, patient organizations, and various other entities, state regulatory bodies.

[00:07:00] Speaker 06:
There's lots of regulatory bodies that regulate facilities like Cedar Springs to weigh in and give input into what's effective and what's not effective.

[00:07:09] Speaker 05:
Are you now segueing to your separate argument about the inapplicability of the general duty clause and your argument that the secretary needed to impose regulations after notice and comment?

[00:07:23] Speaker 05:
No, that's really a separate argument.

[00:07:25] Speaker 05:
All right.

[00:07:25] Speaker 05:
So how does this concurrence

[00:07:30] Speaker 05:
relate to the feasibility issue which I thought you were talking about?

[00:07:34] Speaker 06:
Because if you're not going to have a regulation, the abatement should be vetted to make sure they're both economically feasible and would be effective in materially reducing the

[00:07:47] Speaker 05:
Yeah, and they don't question that, right?

[00:07:50] Speaker 06:
Well, they question it as to whether or not it's required for all the abatement measures.

[00:07:56] Speaker 05:
But I thought you just acknowledged that that's academic, since the ALJ found that all five of the abatement measures you're contesting were, in fact, feasible.

[00:08:06] Speaker 05:
I guess I'm just not trying to be argumentative.

[00:08:10] Speaker 05:
I'm just trying to understand why we care about that point, because it just seems academic.

[00:08:17] Speaker 06:
Well, it would be academic if you agree with the administrative law, Judge Helms, that there was sufficient evidence to prove that all of the proposed abatement measures were economic.

[00:08:32] Speaker 05:
So is it a question of harmlessness?

[00:08:35] Speaker 05:
I'm just really trying to understand your argument about why it matters.

[00:08:41] Speaker 05:
So if we decide, let's say,

[00:08:44] Speaker 05:
that the ALJ was incorrect for two of the five abatement measures, that two of the five abatement measures were infeasible, three were feasible, then your argument, I guess, is that, well, we would need to vacate because we don't know whether or not the Secretary would have imposed the same penalty.

[00:09:04] Speaker 05:
There certainly would have been the same violation, but we just don't know the amount of the penalty

[00:09:09] Speaker 05:
that the Secretary would have imposed had the Secretary only found three of the five abatement measures to be feasible.

[00:09:18] Speaker 05:
Is that your argument?

[00:09:19] Speaker 05:
No.

[00:09:20] Speaker 06:
I don't think it affects the abatement.

[00:09:22] Speaker 05:
We don't contest the $13,000 whenever the dollars are changed.

[00:09:28] Speaker 05:
If you fail to, I guess, so if you, if the secretary's wrong in all five, I don't think anybody's going to question, well, we need to vacate the decision.

[00:09:40] Speaker 05:
But if the ALJ found sufficient evidence for some but not all of the five abatement measures that you're contesting, so tell me why, what the significance of that is.

[00:09:53] Speaker 06:
Well, because

[00:09:56] Speaker 06:
We could be cited with a repeat of a willful for a subsequent violation.

[00:10:01] Speaker 06:
And in light of the holding that this company is a joint, that they're joint employers with UHS, they have over 200 facilities around the country.

[00:10:09] Speaker 06:
The stakes are very high.

[00:10:11] Speaker 06:
And one of the problems with this after the fact

[00:10:15] Speaker 06:
coming up with abatements during the investigation by OSHA and then citing the employer is, we don't know what we're supposed to do.

[00:10:22] Speaker 06:
Today, we don't know what adequate staffing is.

[00:10:24] Speaker 06:
It wasn't ever defined.

[00:10:26] Speaker 06:
And how are we supposed to know how many staff to add one, add two, and what kind of staff?

[00:10:32] Speaker 06:
We have all different kinds of staff at the facility.

[00:10:34] Speaker 06:
There is a serious fair notice problem.

[00:10:37] Speaker 06:
about what is it we're supposed to do to comply with the general duty clause in this unique field of workplace violence?

[00:10:46] Speaker 03:
Well, you're cited because there was a finding of, I guess, excessive workplace violence.

[00:10:53] Speaker 03:
So the aim of the abatement is to

[00:10:56] Speaker 03:
reduce the incidence of workplace violence.

[00:10:59] Speaker 03:
It seems to me that that's a bit of a math question.

[00:11:03] Speaker 03:
You implement the abatement and either violence is going to go down or not.

[00:11:11] Speaker 03:
Is your client required to implement all five or seven of the abatements, or can you mix and match, or can you

[00:11:22] Speaker 03:
Try one and see if it works and go back to the commission and say staffing solved our problem therefore.

[00:11:32] Speaker 03:
We're not going to implement the other ones?

[00:11:34] Speaker 03:
Can all that happen?

[00:11:35] Speaker 06:
It's a very good question, because the 11th Circuit addressed that.

[00:11:40] Speaker 06:
Because the secretary in that case argued that these are not mandatory.

[00:11:45] Speaker 06:
You don't have to do them all.

[00:11:46] Speaker 06:
So what's the harm here?

[00:11:49] Speaker 06:
And the court rejected that and said they're exposed to serious liability as a result of coming back and saying, well, you should have tried this, but you didn't

[00:12:00] Speaker 06:
or you should have done this in a different way.

[00:12:02] Speaker 06:
You know, as we cited in our brief and went through just the staffing issue, OSHA has been all over the place in terms, and it's not the staffing issue, the security issue.

[00:12:12] Speaker 06:
OSHA has been all over the place in terms of defining what these security people are supposed to look like, what do they do, whether they can perform other things.

[00:12:21] Speaker 06:
So it's all over the place.

[00:12:23] Speaker 02:
But are you overstating it a little bit?

[00:12:25] Speaker 02:
Because it's pretty simple at its bottom, which is you have X number of patients on staff violence jumping over nursing station guard rails, whatever else.

[00:12:37] Speaker 02:
The problem is identifiable and observed.

[00:12:42] Speaker 02:
And so when

[00:12:45] Speaker 02:
You were given these abatement considerations factors and told they're not exclusive.

[00:12:50] Speaker 02:
You can also use your own judgment to solve this problem.

[00:12:54] Speaker 02:
So long as you solve the problem and you materially reduce the hazard, do you really fear some sort of liability?

[00:13:04] Speaker 02:
Everyone's happy if you solve the problem, aren't they?

[00:13:07] Speaker 06:
Well, it's a problem that can't be eliminated.

[00:13:10] Speaker 06:
It has to be, what's an acceptable level of workplace violence?

[00:13:13] Speaker 06:
Nobody knows the answer.

[00:13:14] Speaker 02:
But we know it's unacceptable, and that's the number that was found in this case.

[00:13:20] Speaker 06:
Well, and it didn't go by pure number.

[00:13:21] Speaker 06:
That was evidence of a recognized hazard, because the dark rates which measure

[00:13:27] Speaker 06:
days away from work and restricted duty that OSHA uses to compare facilities doesn't have a separate category where you can compare our facility to one that's like it.

[00:13:39] Speaker 06:
It's a category with lots of facilities lumped in that are very different, provide different services under different circumstances with a different patient population.

[00:13:47] Speaker 02:
Well, are you saying we're doing as well as we can and we meet the standard already?

[00:13:52] Speaker 02:
No.

[00:13:54] Speaker 02:
OK.

[00:13:55] Speaker 02:
I'm not saying.

[00:13:57] Speaker 02:
So where are we then?

[00:13:59] Speaker 06:
Well, did they prove their case?

[00:14:01] Speaker 06:
And it's our position they did not.

[00:14:04] Speaker 06:
They're certainly free to propose these abatements, but there's standards of what they must prove to bind us to that abatement.

[00:14:12] Speaker 06:
And that didn't happen in this case.

[00:14:14] Speaker 03:
Are we bound by fact-finding here?

[00:14:17] Speaker 06:
No, it's not.

[00:14:18] Speaker 06:
I don't think it's finding a fact.

[00:14:19] Speaker 06:
I think it's a conclusion because to conclude that each abatement is economically feasible, the underlying facts are facts.

[00:14:27] Speaker 03:
Is infeasibility a fact question?

[00:14:29] Speaker 06:
No, I think it's a conclusion of law because it was a conclusion based on expert testimony without proper foundation.

[00:14:37] Speaker 06:
and without proper cost information or information about profitability of the facility.

[00:14:44] Speaker 06:
For example, I do want to make this one point because I'm running out of time.

[00:14:51] Speaker 06:
There was no evidence, the evidence on profitability of the facility was that it could add staff

[00:14:57] Speaker 06:
undetermined number and still be profitable.

[00:14:59] Speaker 06:
But what was missing from that calculation, because there were no experts who gave testimony on economic feasibility, was what is an acceptable profit level in a behavioral health facility?

[00:15:10] Speaker 06:
And that's what has happened in other OSHA cases, where economic feasibility was proved by comparing what is profitability like Beverly Enterprises as an example.

[00:15:21] Speaker 06:
What is an acceptable level of profitability?

[00:15:24] Speaker 06:
Is it 1%?

[00:15:24] Speaker 06:
Is it 10%?

[00:15:26] Speaker 06:
Is it 20%?

[00:15:26] Speaker 06:
And you're saying that would be the correct methodology?

[00:15:30] Speaker 06:
That's right.

[00:15:30] Speaker 06:
You would do proper expert with proper foundational evidence using a proper methodology under Daubert in order to prove that element.

[00:15:41] Speaker 03:
And that wasn't done here?

[00:15:42] Speaker 06:
That wasn't done in this case, on any of the proposed payments.

[00:15:45] Speaker 03:
Thank you.

[00:15:53] Speaker 03:
Let's hear from the government.

[00:15:58] Speaker 01:
Good morning, Your Honors.

[00:15:59] Speaker 01:
My name is Leigh Ann Shriver and I represent the Secretary of Labor.

[00:16:02] Speaker 01:
This case concerns the endangerment of the lives and well-being of workers at an inpatient behavioral health facility where the employer failed to adequately abate the recognized hazard of workplace violence.

[00:16:13] Speaker 01:
I will begin by briefly discussing the general duty clause violation and the evidence supporting that and then I wish to turn to the question of preemption.

[00:16:21] Speaker 01:
which the secretary has briefed for the first time before this court.

[00:16:25] Speaker 01:
The general duty clause requires that employers abate recognized hazards to the extent feasible, and that's an ongoing obligation.

[00:16:35] Speaker 01:
When OSHA issues a general duty clause citation, it includes a list of abatement measures in that citation that demonstrate that there was something the employer could have done to materially reduce that hazard.

[00:16:47] Speaker 01:
But the employer is not bound to use those particular abatement measures, either before the citation or after the citation.

[00:16:54] Speaker 01:
Rather, commission case law is clear that they can choose any abatement measures that reduce the hazard to the extent feasible.

[00:17:03] Speaker 05:
Even if it were not one of the seven abatement items identified in the citation?

[00:17:09] Speaker 01:
Correct, Your Honor.

[00:17:09] Speaker 05:
For example, getting radios, even if they're not silent alarms.

[00:17:13] Speaker 01:
Correct.

[00:17:14] Speaker 01:
If they can show that that adequately abates that hazard and that the use of any other abatement measure would not additionally materially reduce the hazard.

[00:17:26] Speaker 03:
And how do you define success or how will Cedar Springs know that it's succeeded in satisfying the secretary?

[00:17:35] Speaker 01:
Cedar Springs has complied with its obligation under the general duty clause if it has done all of the measures that are feasible for it to do.

[00:17:43] Speaker 01:
if any additional measures that it can do would not materially reduce the hazard or no significant hazard remains.

[00:17:52] Speaker 05:
Are you saying even if Seeker Springs adopted all seven of those abatement matters, abatement components, that you still would not know whether or not they were in compliance if there were other things that

[00:18:09] Speaker 05:
that the Secretary hasn't even identified that they haven't explored, for example, radios or something like that?

[00:18:15] Speaker 05:
Surely not.

[00:18:16] Speaker 01:
That's the nature of the General Duty Clause, Your Honor.

[00:18:18] Speaker 05:
So your argument is that you can give a citation to Cedar Springs and say, these are the seven things you should do.

[00:18:27] Speaker 05:
They do all seven of those things.

[00:18:29] Speaker 05:
But then later, the Secretary comes in and says, you know, you also should have given them not only the sign of arms, but the radios.

[00:18:36] Speaker 05:
And you shouldn't have one security guard on staff

[00:18:39] Speaker 05:
during overtime and in the evenings, but you should have two.

[00:18:42] Speaker 05:
Are you saying that they could still be in violation of the general duty clause if they do literally every single thing that was cited to them?

[00:18:52] Speaker 01:
Your Honor, the purpose of the abatements listed in the citation is to meet the secretary's burden of proof when it's contested, which is to show that there was something the employer could have done to materially reduce the hazard.

[00:19:03] Speaker 01:
Now, it could be that they have to do 20 things in order to do that.

[00:19:09] Speaker 01:
And the secretary here met her burden by showing that these abatement measures were available.

[00:19:15] Speaker 01:
But Cedar Springs has an obligation to keep an eye on its facilities.

[00:19:18] Speaker 04:
So your answer is yes.

[00:19:21] Speaker 04:
OK.

[00:19:21] Speaker 04:
That's what I was looking for.

[00:19:23] Speaker 04:
Your answer is yes.

[00:19:24] Speaker 01:
And that's because of the nature of the general duty clause.

[00:19:27] Speaker 01:
This is an ongoing obligation.

[00:19:28] Speaker 01:
I think it's important to think about the fact that even if the secretary says these seven abatement measures, they put them all in place.

[00:19:34] Speaker 01:
They've adequately abated it.

[00:19:36] Speaker 01:
Three weeks later, something different happens in the facility, and they notice that.

[00:19:40] Speaker 01:
They have an obligation to identify that hazard, implement an abatement that addresses it.

[00:19:45] Speaker 05:
And you do have the burden to show that these abatement components are feasible, correct?

[00:19:52] Speaker 01:
Yes, Your Honor.

[00:19:52] Speaker 05:
Now, I want to ask you how in the world you can do that under your interpretation of the general duty clause.

[00:19:57] Speaker 05:
Let's say providing one security staff would reduce their profit by 25%.

[00:20:05] Speaker 05:
It's a hypothetical.

[00:20:07] Speaker 05:
Second, if they reconfigure all of the nurse's stations in the eight units, then that would reduce their profit by, say, 35 percent.

[00:20:17] Speaker 05:
Okay?

[00:20:17] Speaker 05:
So now we've got a reduction of 60 percent.

[00:20:20] Speaker 05:
And then we reduce the, and we provide a silent alarm to all of the MSH,

[00:20:32] Speaker 05:
the mental specialist, and that reduces their profit margin by, say, 35%.

[00:20:38] Speaker 05:
Now it's 95%.

[00:20:39] Speaker 05:
So they still would be able, theoretically, to maintain a 5%.

[00:20:44] Speaker 05:
And then they decide, oh, well, we have to provide, you know, so the other two components of the evatment measures, that would reduce our profit by 10%.

[00:20:58] Speaker 05:
So now they're operating at a loss.

[00:21:00] Speaker 05:
And then, but they still don't even know, even if they continue to operate at a continuing loss, if that's going to satisfy the secretary, because they still don't know whether or not you're going to say after the fact, no, you really should have provided radios in addition to the solid arms.

[00:21:17] Speaker 05:
You really should have provided to security staff.

[00:21:20] Speaker 05:
We didn't say those seven were sufficient.

[00:21:23] Speaker 05:
That's for you to determine after you do everything.

[00:21:26] Speaker 05:
How in the world did the evidence that you presented through Dr. Lipscomb and Dr. Foreman and all of the other evidence of the other abatement measures at the other psychiatric facilities, how in the world did that actually satisfy feasibility if that is what they were obligated to do?

[00:21:44] Speaker 01:
The secretary's obligation is to show that there is at least one thing that would have been feasible and effective for them to do that could have materially reduced the hazard.

[00:21:55] Speaker 01:
If there's a subsequent case where, let's say this issue comes up again,

[00:21:59] Speaker 01:
We then re-enter the question of, well, is that economically feasible now?

[00:22:04] Speaker 01:
They get a second chance at proving whether or not it's economically feasible in the future.

[00:22:08] Speaker 01:
So as long as we show that one of these measures is economically feasible, that's sufficient to show that they violated the general duty clause.

[00:22:15] Speaker 01:
And I'll note that they do not contest two of these abatement measures.

[00:22:18] Speaker 01:
And this court can affirm the general duty clause violation on the basis of those two uncontested measures.

[00:22:24] Speaker 03:
Doesn't that give some force to their fair notice?

[00:22:28] Speaker 03:
argument that, you know, you're not willing to be pinned down on, you know, and even after the fact you can say, well, you should have done additional abatements, as Judge Bacharach was suggesting.

[00:22:43] Speaker 03:
You know, why isn't that, I mean, they really don't know what they need to do to satisfy the secretary.

[00:22:50] Speaker 03:
You know, like CENCOs recognize the exposure and the vulnerability to the company if there's a moving target.

[00:22:57] Speaker 03:
Why isn't there some force of the notice argument?

[00:23:00] Speaker 01:
Your Honor, courts and the Commission have found that there is not a fair notice problem where the hazard is recognized and a reasonably prudent employer in the industry would have known that they needed to implement the abatement measure.

[00:23:14] Speaker 01:
And here it's clear that Cedar Springs themselves knew that they had to implement many of these abatement measures, including on the staffing issue.

[00:23:21] Speaker 01:
They knew that they needed to be staffing according to patient acuity, and they were not doing so.

[00:23:26] Speaker 01:
They were denying staff requests for additional staff due to patient acuity.

[00:23:32] Speaker 01:
They were in some cases staffing below the grid.

[00:23:34] Speaker 01:
So this employer knew what they were supposed to do.

[00:23:37] Speaker 01:
And as we showed, it was economically feasible for them to do it.

[00:23:40] Speaker 01:
And they did not do so.

[00:23:41] Speaker 03:
So you're saying the legal standard is essentially a reasonably prudent employer?

[00:23:45] Speaker 01:
Yes, Your Honor.

[00:23:47] Speaker 03:
And then after that, it becomes a fact question as to what the appropriate abatement should be?

[00:23:53] Speaker 01:
Yes.

[00:23:54] Speaker 01:
And multiple other courts in the commission have found that there is not a fair notice problem with the general duty clause as applied.

[00:24:02] Speaker 01:
If your honors have no further questions on the general duty clause issue.

[00:24:08] Speaker 05:
When you say that, what if we had a question about feasibility?

[00:24:14] Speaker 01:
Can you elaborate on that question?

[00:24:17] Speaker 05:
I'll just really ask it.

[00:24:18] Speaker 05:
I don't want to interrupt your train of thought, but I did have a question about feasibility.

[00:24:22] Speaker 05:
On the general duty clause?

[00:24:23] Speaker 05:
I don't know if you're going to talk... Well, I'll just ask it.

[00:24:26] Speaker 05:
Yeah.

[00:24:26] Speaker 05:
Okay, rather than waste more time.

[00:24:29] Speaker 05:
You have the burden to show feasibility, right?

[00:24:33] Speaker 05:
And then on page 108 of the ALJ's decision, the ALJ said that, no, it's an affirmative defense to show economic infeasibility.

[00:24:45] Speaker 05:
Isn't that completely inconsistent with your position that the ALJ had recognized that it was the Commission's burden to show feasibility?

[00:24:54] Speaker 01:
Your Honor, the ALJ had first gone through all of the evidence the Secretary had provided with regard to economic feasibility and found that it met the Secretary's burden and then noted that Cedar Springs didn't provide rebuttal evidence and noted in that process.

[00:25:09] Speaker 05:
But that's not what the ALJ said.

[00:25:11] Speaker 05:
The ALJ said it's an affirmative defense that was incumbent on Cedar Springs to raise that.

[00:25:21] Speaker 01:
It is still an affirmative defense before Auschwitz, but I think the ALJ did do the analysis of determining that there is economic feasibility here based on the Secretary's evidence.

[00:25:31] Speaker 05:
Well, yeah, definitely the ALJ found feasibility.

[00:25:35] Speaker 05:
The question is whether or not the ALJ found feasibility under the correct burden.

[00:25:39] Speaker 05:
placing the burden on the right party.

[00:25:42] Speaker 05:
ALJ certainly, you know, can say, okay, these abatement measures were feasible, but you've got a problem if the ALJ made that determination under the wrong standard or placing the burden on the wrong party.

[00:25:55] Speaker 01:
I don't think the ALJ did that, Your Honor.

[00:25:57] Speaker 05:
But how do you reconcile that with page 198?

[00:26:00] Speaker 01:
I think the ALJ acknowledges, because of the nature of Cedar Springs' argument, that they could have raised it as an affirmative defense, or they could have provided rebuttal testimony to the secretaries, as they didn't do either.

[00:26:12] Speaker 05:
Does that make any sense to you?

[00:26:15] Speaker 01:
So usually economic infeasibility as an affirmative defense is used in standards violations where we don't have this second part where the secretary has to affirmatively show feasibility.

[00:26:25] Speaker 01:
So that logic is usually applied in a standards violation and isn't as useful here.

[00:26:31] Speaker 05:
Well, not only is it not useful here, it's internally inconsistent.

[00:26:37] Speaker 05:
You know, if I say you have the burden to show x,

[00:26:43] Speaker 05:
And then I turn to your adversary and say, well, you have the burden to show X. How does that make any sense?

[00:26:53] Speaker 05:
It's the same thing, economic feasibility.

[00:26:56] Speaker 05:
One of you have the burden, and the other one doesn't have the burden.

[00:26:59] Speaker 05:
And the ALJ said, both of you have the person.

[00:27:02] Speaker 01:
I think the ALJ noted that both parties can provide evidence.

[00:27:06] Speaker 01:
And in some cases, employers use an affirmative defense.

[00:27:09] Speaker 01:
I agree that that was not ideally stated, because that's more relevant in standards violation cases.

[00:27:14] Speaker 01:
But I think substantial evidence does support, under the correct burden, the ALJ's determination of economic feasibility here.

[00:27:22] Speaker 01:
And before I turn to the question of preemption, I just want to note that Cedar Springs does mischaracterize both Commissioner Layhouse's concurrence and the Suncoast case is not the case that either of them suggested that the secretary has to prove feasibility and efficacy for all of them, but rather Commissioner Layhouse's concurrence identifies the fact that

[00:27:42] Speaker 01:
It is useful for employers if the commission exercises its discretion to evaluate the feasibility and efficacy of all of these abatement measures, which the ALJ did do here.

[00:27:55] Speaker 01:
If your honors have no further questions, I will turn to the issue of preemption in my remaining time.

[00:28:00] Speaker 01:
As an initial matter, Your Honor, Cedar Springs waived its preemption argument here because it is an affirmative defense and they did not raise it prior to trial.

[00:28:08] Speaker 01:
The commission has long held that this is an affirmative defense.

[00:28:11] Speaker 01:
It is appropriate to view section 4B1 as a statutory exemption under the plain language of the Osh Act because that provision begins, nothing in this act shall apply to clear language of a statutory exemption.

[00:28:23] Speaker 01:
Similarly, it is comparable.

[00:28:26] Speaker 01:
It is an issue of preemption.

[00:28:27] Speaker 01:
We talk about it as preemption colloquially, because it is similar to federal preemption of state law, where one governmental entity taking action can take precedence over another governmental entity's action or ability to enforce its own rules or laws.

[00:28:42] Speaker 01:
And both statutory exemptions and preemption are treated as affirmative defenses.

[00:28:47] Speaker 01:
It's not appropriate to consider this a jurisdictional question, because that issue

[00:28:51] Speaker 01:
The term jurisdictional question, as that is used to mean questions that may not be waived by parties and that the court can raise to respond to, refers to questions of the court's own jurisdiction to hear questions of subject matter jurisdiction.

[00:29:05] Speaker 01:
And this is not that.

[00:29:06] Speaker 01:
No one is contesting that this court does not have authority to hear this question, and rather it's a question of whether the act applies.

[00:29:12] Speaker 03:
The CMS regulation does require adequate staffing.

[00:29:17] Speaker 03:
Why isn't that a direct conflict with the secretary's position?

[00:29:22] Speaker 01:
Yes, Your Honor.

[00:29:23] Speaker 01:
The actual language of the requirement for staffing is that the hospital must have adequate numbers of qualified professional and supportive staff to evaluate patients, formulate written individualized comprehensive treatment plans,

[00:29:36] Speaker 01:
provide active treatment measures, and engage in discharge planning.

[00:29:39] Speaker 03:
These are all patient- That's the CMS?

[00:29:41] Speaker 01:
Yes.

[00:29:42] Speaker 01:
And those are all patient care activities.

[00:29:44] Speaker 01:
Nothing in that says that there must be adequate staffing to ensure that workers are safe from workplace violence.

[00:29:49] Speaker 01:
And it is, at best, tangentially related as a minimal exercise of authority, which the Supreme Court in Chaupy-Malloc Bay found was insufficient to preempt OSHA.

[00:30:02] Speaker 01:
Additionally, CMS does not have the form of statutory authority necessary to preempt OSHA.

[00:30:07] Speaker 01:
Their statutory authority rests on patient care, patient health, and safety.

[00:30:13] Speaker 01:
And the commission has found that workers have to be within the population Congress intended to protect in order for another agency to preempt OSHA.

[00:30:22] Speaker 01:
Additionally, the finding of preemption here would be contrary to the statutory purpose of the OSH Act because

[00:30:29] Speaker 01:
It would leave a patchwork set of regulations governing this industry and would result in a large number of workers in the healthcare industry with no meaningful protections from workplace violence.

[00:30:42] Speaker 01:
I see that I'm almost out of time.

[00:30:44] Speaker 01:
So if the court has no further questions, the secretary asks that this court affirm all of the ALJ's findings with regard to the general duty clause and find that Cedar Springs has waived their preemption argument

[00:30:56] Speaker 01:
or that CMS does not preempt OSHA.

[00:30:59] Speaker 01:
Thank you.

[00:30:59] Speaker 03:
Thank you, counsel.

[00:31:01] Speaker 03:
Mr. Kohler, would you like 60 seconds?

[00:31:10] Speaker 06:
There's so much there, it's hard to cram in 60 seconds.

[00:31:13] Speaker 03:
Give it your best shot.

[00:31:16] Speaker 06:
I will.

[00:31:18] Speaker 06:
I thought that the questioning, the points were made for me for the most part.

[00:31:23] Speaker 06:
It is not adequate.

[00:31:28] Speaker 06:
We're caught in this catch-22 of, OK, do all these things.

[00:31:33] Speaker 06:
We'll come back and inspect you in six months.

[00:31:36] Speaker 06:
And there were some more injuries.

[00:31:38] Speaker 06:
There were some more incidents.

[00:31:40] Speaker 06:
So you could have done this.

[00:31:42] Speaker 06:
You could have had whatever.

[00:31:44] Speaker 03:
Although, to be fair, the...

[00:31:47] Speaker 03:
Umbrella corporation here has a lot of other involuntary Treatment facilities right around the country.

[00:31:54] Speaker 03:
So yes, it's not like there's You know best practices or some some are doing better than others where you might get a clue as to what what works and what doesn't work Well, they they do that and the facilities are very similar in terms of treatment of patients so

[00:32:14] Speaker 06:
That, and I do want to make the point that they do have best practices, but OSHA said they were not adequate.

[00:32:22] Speaker 06:
And some of that was a fault of implementation, which we fixed post-inspection.

[00:32:30] Speaker 06:
Others are just coming up with

[00:32:33] Speaker 06:
after the fact abatements, which are not feasible or materially effective.

[00:32:39] Speaker 06:
They didn't carry their burden of proof on either of those by showing proper comparator evidence of, okay, it was done at these group of hospitals that were studied.

[00:32:49] Speaker 06:
They had five security guards and it resulted in a reduction in

[00:32:54] Speaker 06:
and patient on staff violence of 15%.

[00:32:57] Speaker 06:
There's nothing like that.

[00:32:59] Speaker 06:
It's all speculative.

[00:33:00] Speaker 06:
We don't even know if it would be effective.

[00:33:03] Speaker 06:
We don't know if it would agitate patients further to have security guards in the facility.

[00:33:10] Speaker 06:
These are people who are suffering from serious mental illnesses, including paranoia.

[00:33:16] Speaker 06:
They've had conflicts with law enforcement.

[00:33:18] Speaker 06:
I did want to make one last point, if I may.

[00:33:20] Speaker 03:
Quickly.

[00:33:21] Speaker 06:
And that point is,

[00:33:23] Speaker 06:
Clinical treatment is the most effective means of abatement.

[00:33:28] Speaker 06:
Getting patients properly medicated, properly diagnosed, and properly treated, as CMS says we should do, and the state of Colorado says we're required to do, is the most effective way to mitigate a risk to our staff that a patient will.

[00:33:45] Speaker 03:
I don't think anybody disagrees with that.

[00:33:47] Speaker 03:
Thank you.

[00:33:47] Speaker 03:
Thank you, counsel.

[00:33:48] Speaker 03:
We appreciate your arguments.

[00:33:49] Speaker 03:
Your excuse in the case is submitted.