The Health Care Violence Prevention Act: What Illinois Hospitals Need to Know

by McDermott Will & Emery

McDermott Will & Emery

In Depth

In a rare demonstration of action amidst state legislative gridlock, the Illinois General Assembly passed the Health Care Violence Prevention Act (Public Act 100-1051), and Governor Bruce Rauner signed the Act into law on August 24, 2018. The Act sets forth detailed rights and obligations of health care providers (defined as hospitals, veterans’ homes and retail health care facilities) and health care workers, and is aimed at both ensuring personal safety and providing additional guidance regarding the provision of care to patients who are “committed persons” in custody. The Act has been incorporated by reference into numerous other statutes, including the Hospital Licensing Act (210 Ill. Comp. Stat. 85/et seq.), and as such it will fundamentally affect the way in which hospitals and other health care providers design workplace violence efforts, train staff and care for committed persons.

As highlighted in recent media reports and accreditation organization guidance, violence against health care workers—including verbal and physical assault—occurs in practically all care settings, with the highest number of recorded incidents taking place in certain areas such as psychiatric wards, emergency departments and visitor waiting rooms.1 While all types of health care workers may be victims of such violence, professionals on the “front lines” providing hands-on care are most frequently at risk, including nurses, nurses’ aides, physicians, nurse practitioners and physician assistants.2 A recent American Nurses Association study found that over a three-year survey period, 25 percent of registered nurses and nursing students surveyed reported being physically assaulted by a patient or a patient’s family member, and 9 percent were concerned for their safety at work.3

The Act purports to increase safeguards for staff, and as a result places new obligations on health care providers as defined in the Act. These new measures and their anticipated impact on health care providers, including hospitals, are summarized here.

Health Care Worker Duty to Report

Health care workers who contact law enforcement or who file a report with law enforcement against a patient or individual due to workplace violence must provide notice to the management of their employing health care provider within three days of contacting law enforcement or filing the report. (Section 15(a))

Impact: Health care providers will need to establish, and communicate to employees, the method through which such reports may be made and to whom they should be addressed. At this stage, and until rules implementing the Act are put in place, health care providers should investigate the most reasonable options for such reporting and prepare to roll out the information to their health care workers.

Whistleblower Protections and Bar on Discouraging Reports

Management of health care providers may not discourage a health care worker from exercising his or her right to contact law enforcement or file a report in relation to workplace violence. (Section 15(b))

In addition, Illinois law protecting whistleblowers is deemed to specifically apply to health care providers and their employees with respect to implementing or enforcing compliance with the Act. (Section 25)

Impact: Education of management, on a broad scale and including front-line staff such as charge nurses (who may not otherwise be considered “management” for employment purposes), will be key to ensuring that health care providers are able to remain in compliance with this requirement.

New Obligations for Health Care Providers

The Act establishes new obligations for health care providers that will entail new policies, procedures and practices.

Posted Notice

All health care providers in Illinois must post a notice stating that verbal aggression will not be tolerated and that physical assault will be reported to law enforcement. (Section 15(c))

Impact: Health care providers must prepare and plan to conspicuously post this notice in their facilities. Rules implementing this provision of the Act, once promulgated, may contain more specific requirements such as size of notice and locations where it must be placed. Health care providers are already required to post myriad notices, and one more must now be tracked as part of ongoing compliance efforts.

Post-Incident Services

Health care providers must offer “immediate post-incident services” for health care workers who are directly involved in a workplace violence incident caused by patients or visitors. Such post-incident services include acute treatment and access to psychological evaluation. (Section 15(d))

Impact: Just as the facilities defined as “health care providers” vary widely (from hospitals to veterans’ homes to retail health care facilities), the access to post-incident services they may provide directly will similarly vary. This new obligation will require each health care provider to determine how best and most efficiently to connect affected health care workers with such services. How such services are to be paid for, whether as part of employee health services (where available) or through other means, is not specified in the Act but may be detailed as part of later rulemaking.

Violence Prevention Programs

In what is perhaps the most far-reaching effect of the Act, health care providers must create and implement a workplace violence program that both complies with OSHA requirements and meets the following requirements, many of which have long been cited as part of workplace violence studies and best practices4 :
  • Classifies workplace violence as
    • Type 1 violence, or workplace violence committed by a person who has no legitimate business at the work site, such as individuals who enter a work site solely with the intent of committing a crime
    • Type 2 violence, meaning workplace violence directed at employees by customers, clients, patients, students, inmates, visitors or other individuals accompanying patients
    • Type 3 violence, or workplace violence against an employee by a current or former employee, supervisor or manager
    • Type 4 violence, meaning workplace violence committed in the workplace by someone who does not work there, but who has or has had a personal relationship with an employee
  • Includes management commitment and worker participation, including but not limited to nurses
  • Involves worksite analysis and identification of potential hazards
  • Includes hazard prevention and control
  • Incorporates safety and health training with required hours to be determined by rule (yet to be promulgated)
  • Documents and evaluates the program (further details on what records are required and the type/scope of evaluation are likely to be established in future rulemaking)

(Sections 20(a), (a-5), and (b))

Impact: Until rules implementing the Act are passed, it is not clear how detailed or stringent the workplace violence prevention programs are expected to be. For hospitals and health care providers that regularly provide broad-scope staff training and annual competency efforts, implementation of “one more training session” may not be overly burdensome, but for other health care providers—particularly those with operations in multiple states—ensuring consistent compliance with the Illinois mandate may prove more challenging. Moreover, for all health care providers, ensuring that “worker participation” is sufficient, likely including physicians, could be difficult. Health care providers are well advised to initiate planning for the establishment and implementation of these programs even in this period before rules are issued, in order to have a framework in place that can be refined by the rules and quickly instituted to ensure prompt compliance.

Committed Persons Receiving Care at Health Care Providers

Because of the potential risks in providing care to committed persons, hospitals and medical facilities are now specifically permitted (but not required) to work with the Department of Corrections, or any county or municipality having custody, to establish protocols for receiving committed persons, particularly committed persons who are potentially violent. (Section 30(a))

Similar provisions apply to juveniles in custody that have recently exhibited violence. (Section 30(b))

Impact: These provisions help give hospitals and medical facilities a basis to open a line of communication, or further enhance lines of communication, with agencies that have custody of committed persons, in order to develop procedures and defined protocols to ensure facility, staff and patient safety when caring for committed persons who are potentially or known to be violent. Coupled with the obligations on the agencies described herein, the Act looks to provide safeguards for facility operations and staff beyond that which has been historically available in any consistent framework.

New Obligations for Those Holding Committed Persons in Custody

Notice to Treating Facilities, Escort by Trained Custodians

Bringing committed persons, particularly those who are potentially violent, to a health care provider for care and treatment poses risks to staff, visitors and the facility as a whole. News stories in Illinois have detailed the unfortunate outcome of circumstances where committed persons receiving care assaulted hospital staff. The Act provides that agencies holding committed persons in custody must:

  • Take steps to notify a treating facility of significant concerns regarding the committed person (including medical and mental health information, information on recent violent actions and/or other safety concerns)
  • Provide, to “the greatest extent practicable,” detailed medical records to the facility treating the committed person
  • Provide at least one guard specifically trained in custodial escort and custody of high-risk committed persons to accompany any committed person to the facility
  • Limit visitors with access to the committed person

(Section 30(a))

Impact: Providing notice and information to a treating facility in advance of bringing a committed person in for care is intended to help ensure a safe environment for staff, visitors and other patients, and to provide appropriate care to the committed person. The Act requires custodial agencies to specifically train at least a portion of its staff as custodial escorts and in the custody of high-risk committed persons.

Use of Security Restraints

Committed persons receiving medical care and treatment outside of the Department of Corrections or county/municipal facilities are required to wear “security restraints” in accordance with the custodial agency’s procedures and rules if the custodial agency determines that the restraints are necessary to (1) prevent physical harm to the committed person; (2) address the committed person’s history of disruptive behavior that has placed others in potentially harmful situations or presents a substantial risk of self-inflicted harm or harm to others as evidenced by recent behavior; (3) mitigate a substantial flight risk where there is a well-founded belief that the committed person presents such risk. (Section 30(a))

Impact: Along the same lines as the notice and escort requirements of the Act, this provision articulates with specificity the need for use of “security restraints” for committed persons receiving care at a treating facility, as long as such use is not contraindicated by clinical condition or other law (e.g., Illinois law prohibiting the use of certain restraints on women in custody and also in labor).

* * *

While the granular impact of the Act will be further refined through rulemaking, it is clear that the broad scope and multidisciplinary impact will be significant for health care providers and treating facilities, including hospitals. Hospitals and other facilities would be well-served by planning for compliance with the Act while the rules are in development, to permit a nimble response to the final detailed requirements once they are available.

1J. P. Phillips, Workplace Violence against Health Care Workers in the United States, New Engl. J. Med. (Apr. 28, 2016) at 1663 (hereinafter NEJM); J. Gacki-Smith, et al., Violence Against Nurses Working in US Emergency Departments, J. Nursing Admin. (Jul./Aug. 2009) at 341.
2L. Pompeii, et al., Physical Assault, Physical Threat, and Verbal Abuse Perpetrated Against Hospital Workers by Patients or Visitors in Six U.S. Hospitals, Amer. J. Ind. Med. (Jun. 2015) at 7; See also NEJM at 1663.
3American Nurses Association, Health Risk Appraisal – Key Findings: October 2013-October 2016.
4See NEJM.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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