Current Issue: Retaliatory EPL Claims

In 2009, retaliation became the most common charge filed with the EEOC, surpassing racial discrimination for the first time. The EEOC received 33,613 charges of retaliation; retaliation was cited in 36 percent of charges.

Retaliation charges are growing because retaliation is often easier to prove than discrimination. In this case, there might be debate over whether the remark cited rises to the level of discrimination. However, if the reprimands and the termination were the result of the employee's complaint, most would deem those actions as retaliatory.

In order to create an inclusive, fair workplace, employees must feel safe to report discrimination and harassment. Here are some steps to guard your organization against claims of retaliation:

• Enforce a well-written policy that prohibits discrimination and retaliation, including statements, gestures, symbols and threats.
• Provide training for managers on retaliation and the rights of employees who have made claims of discrimination.
• Encourage employees to report wrongdoing, including all types of discrimination.
• Provide a method of reporting where employees have more than one channel to report wrongdoing.
• Take all complaints of retaliation seriously and respond quickly.

Source: www.goglatfelters.com

Past Issue: Spotlight on Driver Safety/Cell Phone Use

In a press release dated January 12, 2010, The National Safety Council announced that it estimates at least 28% of all traffic crashes – or at least 1.6 million crashes each year – are caused by drivers using cell phones and texting. NSC estimates that 1.4 million crashes each year are caused by drivers using cell phones and a minimum of 200,000 additional crashes each year are caused by drivers who are texting.

The estimate of 25% of all crashes -- or 1.4 million crashes -- caused by cell phone use was derived from NHTSA data showing 11% of drivers at any one time are using cell phones and from peer-reviewed research reporting cell phone use increases crash risk by four times. The estimate of an additional minimum 3% of crashes -- or 200,000 crashes -- caused by texting was derived by NHTSA data showing 1% of drivers at any one time are manipulating their device in ways that include texting and from research reporting texting increases crash risk by 8 times still less than the 1.4 million crashes caused by other cell phone use.

Cell phone use is a very risky distraction and texting is even higher risk.  Based on this information from the National Safety Council, it would be advisable for employers to evaluate their current policies on cell phone use. It is also a good time for Safety Committees to promote and/or strengthen driver safety training and awareness programs.

Past Issue: Resident Smoking

According to The National Fire Protection Association, elderly people are more than three times more likely to suffer a smoking-related injury than their younger counterparts. We have seen numerous claims resulting from smoking of residents in an inpatient or residential setting.

Is everyone in your organization clear about your policies on resident smoking?

Facilities should compare their smoking policy with actual resident smoking practices. The record should document the risk factors for burns associated with smoking and the interventions undertaken by the facility to reduce or eliminate the identified hazards: for example, instructing the resident in safe smoking practices, allowing the resident to smoke only when supervised, removing smoking materials from the resident who is unable to comply with facility policy, and/or requesting visitors not to give smoking materials to the resident. The best policy from a risk control perspective, is a no smoking policy.

A policy on resident smoking should address:

• Administrative and authority issues
• Notification of residents/family regarding policy
• Issues relevant to resident smoking or a nonsmoking policy
• Safety concerns, including storage of smoking materials and supervision while smoking
• Cessation assistance or encouragement
• Areas where smoking is or is not allowed. Smoking should never be allowed in the patient’s room or bed.

Past Issue: Confidentiality and Security of Health Information

By now, everyone should be more than familiar with HIPAA (Health Insurance Portability & Accountability Act of 1996) requirements. Unfortunately, many organizations are still struggling with compliance issues.

Basic compliance requirements are as follows:

• Build an organizational awareness of HIPAA
• Assess the organization's privacy practices, information security systems and procedures, and use of electronic transactions
• Develop an action plan for compliance with each rule
• Develop a technical and management infrastructure to implement the plans
• Develop new policies, processes, and procedures to ensure privacy, security and patients' rights
• Build business associate agreements with business partners to support HIPAA objectives
• Update information systems to safeguard protected health information (PHI)
• Train all employees

Recently the U.S. Department of Health and Human Services’ appeal board sustained the termination of a home health agency’s Medicare provider agreement because they failed to safeguard patients’ clinical records against loss and unauthorized use. In this particular case an employee had been keeping clinical patient records in her car and at home, photocopying parts of records, and had even lost some records.

While the shift of medical records from paper to electronic formats has increased the potential for individuals to access, use, and disclose sensitive personal health data, there is still significant risk exposure when paper records are used as evidenced by the case example above.
Your organization should do routine self-assessments of PHI security. The assessment should address at a minimum, routine security and access to records, policies for photocopying and/or faxing of records, integrity of the original record, and release of information. Compliance with policies and procedures should be a part of the ongoing Quality Assurance/Performance Improvement process.

Past Issue: Bed Safety

Between January 1, 1985 and January 1, 2006, the FDA received 691 incidents of patients caught,
trapped, entangled, or strangled in hospital beds. The reports included 413 deaths, 120 nonfatal
injuries, and 158 cases where staff needed to intervene to prevent injuries. Most patients were
frail, elderly or confused.

Organizations who utilize hospital beds on inpatient units, or who provide hospital beds to home
based clients, should make sure there is a good program in place for preventive maintenance
of beds/side rails. In addition, you should also take these precautions:

1. Provide orientation and training to staff about entrapment dangers with bed rails and assessment of patients/residents for entrapment risk.
2. Assess patients/residents for risk of entrapment, including physical, mental, behavioral or medication impairment.
3. Re-evaluate beds for entrapment potential, including "gap" measurement and appropriate sizing of mattresses for bed frames.
4. When possible, keep patients/residents with risk factors for entrapment under more frequent observation.
5. Educate the patient/resident and/or his or her family about the purpose and potential dangers of bed rails.

Additional information can be found at:

www.fda.gov
www.jointcommission.org

Past Issue: Thrift Stores and Recalls

The media has been full of stories recently regarding product recalls, particularly toys. This is a good
time for thrift stores to re-evaluate their procedures for sorting donations and identifying unsafe products.

Way back in 1999, the U.S. Consumer Product Safety Commission conducted a national study of thrift and consignment stores. They visited over 300 thrift stores across the country. Overall, 69% of those stores that were visited had at least one product that was hazardous. The top three hazardous products were drawstrings on children’s outerwear, hair dryers without protection against electrocution, and cribs that did not meet current safety standards.

The current area of specific concern is with toys. An average of 450 products are recalled each
year, and this year 45 have been for children’s toys. If your organization accepts and resells donated
toys, it is important to have very stringent guidelines for evaluating their safety and recall history. You can find specific information on the Mattel and Fisher-Price recalls at:

http://www.cpsc.gov/recentrecalls.html.

Does your organization have a good process in place for evaluating all donated items for potential safety concerns or a history of recalls? Every organization should have a standing policy that identifies those items that are not eligible for re-sale.

This might include items such as:

• Cribs
• Hair Dryers
• Halogen Floor Lamps
• Playpens and Play yards
• Car Seats
• Any item with a recall history

You can find additional information and a “Thrift Store Safety Checklist” at the U.S. Consumer Product Safety Commission website: www.cpsc.gov.

Past Issue: Kitchen Safety

Hospice and home care aides and other staff are often involved in preparing food for clients. This occurs
in both the home based and inpatient settings. Unattended cooking remains the leading cause of U.S.
home fires (National Safety Council, 11/05). Glatfelter Insurance Group and Hospice and Home Care
Insurance Services have also seen claims arising out of this scenario.

The Consumer Product Safety Commission reports that over 50,000 fires occur each year in kitchen
ovens and ranges. It is important for those preparing meals to be alert and attentive while cooking.
Food preparation and kitchen safety should be included in staff training. Some tips to prevent kitchen
fires include:

• Make sure there is a working smoke detector in the home.
• Never leave food unattended while cooking.
• Use thick, dry, flame-resistant potholders when handling lids and pans.
• Never use an oven or range to heat a room.
• Keep oven and range clear and clear of anything that can burn.

Additional tips and information on kitchen and food safety can be found at www.nsc.org and www.foodsafety.gov.