Best Lawblog Contest for 2017 now being conducted by The Legal Institute

From now until
September 15th, 2017, Lawblog fans can nominate their favorite blogs and bloggers for inclusion in the voting round of 2017. As in previous years, the nomination process is competitive, meaning the more nominations a blog receives, the more likely it is to be included in the public voting stage of the contest.

To access the link to the nomination form, click on:

https://www.theexpertinstitute.com/blog-contest/?utm_source=email&utm_medium=email&utm_content=CTA&utm_campaign=blog-contest-8.14.2017-general

Friday, November 18, 2016

Requiring an educator submit to a medical examination to determine his or her ability to perform the duties of his or her position


Requiring an educator submit to a medical examination to determine his or her ability to perform the duties of his or her position
Decisions of the Commissioner of Education, Decision #16,991

Soon after being relocated to a basement office at new school [School 1], Educator complained of “congestion, chronic sinus headaches, shortness of breath, chest pressure, a sore throat, red burning eyes, dry cough and fatigue.” Educator also claimed that she observed “visible mold and other unknown substances on the walls of her building, in classrooms and offices.” Attributing her discomfort to the location of her office in School 1’s basement, Educator requested an “upstairs office” in School 1.

The School District, instead, provided Educator with an office at a different school and employed a private contractor to perform a visual inspection and air quality testing on the classrooms and offices at School 1.

The contractor reported that there is no set exposure limit for exposure to mold spores, thus indoor testing was conducted and compared to outdoor testing. On both testing dates some indoor mold spores were detected. However, the reports for both testing dates stated that “the presence of a few spores found indoors but not found outdoors should not be a concern.” The reports also recommended that a better ventilation system be installed.

Educator was subsequently counseled regarding her complaints about the condition of the basement classrooms and offices at School 1 and was given a Health Insurance Portability and Accountability Act (“HIPAA”) form to sign, authorizing the release of her medical records.

The superintendent notified Educator that the School Board voted to direct her to submit to a medical examination in accordance with Education Law §913 to determine her “physical and/or mental capacity to continue her duties.” Attached to the notice were two authorizations for release of medical information, one for referenced psychotherapy notes and the other referenced medical records. The letter directed Educator to fill out the release forms “for each prior physician and/or other health care provider who has such records from the last three years.” The records demanded were to be provided to the School District’s doctor who was to “serve as the District’s initial medical inspector for this case.”

Educator returned two releases prepared for two doctors under protest and crossed out the section on the releases that stated that information “may be subject to redisclosure”, changed the date of expiration of the authorization from December 31, 2014 to June 30, 2013 (approximately five months after signing the release), and clarified that the release pertained to “[r]ecords for the past three (3) years.”

The School District did not accept these releases and, “under threat of insubordination,” Educator submitted the forms with only the change of dates retained; June 30, 2013 rather than December 31, 2014.*

Educator filed an appeal with the Commissioner of Education contending that her right to privacy and confidentiality was breached [1] by being ordered to be examined under Education Law §913 and [2] to sign medical releases that authorize the re-disclosure of her medical records. As redress, Educator asked the Commissioner to direct the School District to limit the release of medical records to those of P.P.’s allergist, expunge the Education Law §913 medical examination from her file and to destroy or return to her any medical records provided to the School District.

The School District contended that [1] Educator factual and legal analysis is incorrect, [2] that it acted within its authority under Education Law §913 to require an examination of an employee to determine the employee’s capacity to perform the duties of his or her position, and [3] that the medical authorizations they required Educator to execute are consistent with federal regulations.

The School District also argued that Educator constitutional claims were brought in an inappropriate forum and that Educator failed to meet her burden of establishing a clear legal right to the relief requested.

The Commissioner said that Education Law §913 provides, in pertinent part, that “In order to safeguard the health of children attending the public schools, the board of education or trustees of any school district … shall be empowered to require any person employed by the board of education or trustees … to submit to a medical examination by a physician or other health care provider of his or her choice or the director of school health services of the board of education or trustees … in order to determine the physical or mental capacity of such person to perform his or her duties.”

Noting that in an appeal to the Commissioner the Educator has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which the Educator seeks relief, the Commissioner found that Educator “failed to meet her burden of proof.” The Commissioner said that a board of education has a statutory right to order an employee to submit to a medical examination pursuant to Education Law §913 “in order to determine the employee’s capacity to perform the duties of his or her position.”

The Commissioner said that in light of Educator’s numerous health complaints, which she claimed were caused by the conditions at School 1, her absences and the School District’s need to have an individual in the position at School 1 who can perform the duties of Educator’s position, it was reasonable for the School District to require that Educator submit to a medical examination in order to determine her physical and/or mental capacity and whether it affects her ability to perform her job duties satisfactorily.

As to Educator’s assertion that her right to privacy and confidentiality was breached by being subject to an Education Law §913 medical examination, the Commissioner, citing Patchogue-Medford Congress of Teachers v. Board of Educ. of Patchogue-Medford Union Free School Dist., 70 NY2d 57, said that it is well-settled that “teachers in this State are generally required to submit to an examination to determine their physical and mental fitness to perform their duties,” and that teachers “therefore have a diminished expectation of privacy with respect to State inquiries into their physical fitness to perform as teachers.”

The Commissioner explained that considering this “diminished expectation of privacy,” Educator ongoing health complaints and her belief that they were caused by conditions at School 1, any additional explanation by the School District as to why it was requiring Educator to submit to an Education Law §913 examination was unnecessary. Further, said the Commissioner, P.P., herself, placed her capacity to continue to perform her duties at issue by asserting that she has numerous debilitating health issues and, as a consequence, the School District had reason to suspect that her health issues may affect her ability to perform her duties as principal.

As to the School District’s request for Educator medical records, in Strong v. Board of Educ. of the Uniondale Union Free School Dist., 902 F2d 208, the court held that “Legitimate requests for medical information by those responsible for the health of the community do not rise to an impermissible invasion of privacy.”

Agreeing with Educator’s assertion that a school district does not have “unfettered discretion to compel the production of medical records,” the Commissioner said that the School District’s request for three years of medical records in this case for the purpose of assessing Educator’s physical and mental capacity to perform her duties was not an abuse of its discretion.

The Commissioner, ruling that Educator failed to meet her burden of establishing that School District had improperly required her to be subject to an examination in accordance with Education Law §913 and to sign HIPAA release forms for medical information to be used in conjunction with the medical examination, declined to declare the School District’s actions to be null and void or order the expungement of the records of such actions from her personnel file, “on this record.”

* Educator  was examined by the District’s physician and, according to Educator the physician said that he only needed to see her medical records from her allergist. Educator’s attorney then sent a letter to the School District’s attorney revoking Educator’s consent for the release of medical records except for medical records from her allergist. 

The decision is posted on the Internet at:

Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

A Reasonable Penalty Under The Circumstances at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

Caution:

Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the decisions summarized here. Accordingly, these summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.

THE MATERIAL ON THIS WEBSITE IS FOR INFORMATION ONLY. CHANGES IN LAWS, RULES, REGULATIONS AND NEW COURT AND ADMINISTRATIVE DECISIONS MAY AFFECT THE ACCURACY OF THE INFORMATION PROVIDED IN THIS LAWBLOG. THE MATERIAL PRESENTED IS NOT LEGAL ADVICE AND THE USE OF ANY MATERIAL POSTED ON THIS WEBSITE DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP.

Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material in this blog is presented with the understanding that the publisher is not providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader should seek such advice from a competent professional.

Items published in NYPPL may not be used for commercial purposes without prior written permission to copy and distribute such material. Send your request via e-mail to publications@nycap.rr.com

Copyright© 1987 - 2017 by the Public Employment Law Press.



___________________



N.B. From time to time a political ad or endorsement may appear in the sidebar of this Blog. NYPPL does not have any control over such posting.

_____________________

.