The unauthorized removal of inoperative medical equipment may not constitute misconduct

The unauthorized removal of inoperative medical equipment may not constitute misconduct

OATH Index No. 2286/17

A respiratory therapist [RT] was charged with removing a respiratory device from a patient, failing to notify a doctor or clinical team that respiratory device had been removed, and failing to respond when summoned to report to the emergency department to provide respiratory care for a trauma patient.

OATH Administrative Law Judge Astrid B. Gloade credited proof showing the patient broke the device before RT had removed it and recommended dismissal of the charge related to RT removal of the device from the patient. In effect, Judge Gloade found that an unauthorized removal of a patient’s inoperative respiratory machine did not constitute misconduct on the part of RT under the circumstances.

In contrast, the ALJ found that RT's failure to notify the clinical team that of the removal the nonfunctioning device from the patient and RT's failure to respond when summoned by the emergency department constituted misconduct for which RT could be sanctioned in an administrative disciplinary action.

Accordingly, Judge Gloade, recommended that RT be suspended for sixty-days without pay.

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/17_cases/17-2286.pdf

Applying for reimbursement of reasonable counsel fees and litigation expenses associated with being a named respondent in a 42 USC §1983 Civil Rights action pursuant to Public Officers Law §17

Applying for reimbursement of reasonable counsel fees and litigation expenses associated with being a named respondent in a 42 USC §1983 Civil Rights action pursuant to Public Officers Law §17

Rademacher v Schneiderman, 2017 NY Slip Op 08416, Appellate Division, Third Department; decided with Swack v Schneiderman, Appellate Division, Third Department; 2017 NY Slip Op 08421*

In March 2012 an inmate at Attica Correctional Facility, George Williams, brought a 42 USC §1983 action alleging that Matthew Rademacher, a correction officer, and certain other correction officers, violated his civil rights by physically attacking him without justification and the filed false reports and statements that resulted in disciplinary sanctions against him. Williams contended that all the correction officers involved were acting within the scope of their employment at the time.

Rademacher requested, and the respondent in this action, Eric T. Schneiderman, as Attorney General of the State of New York [Law Department], said that the State, pursuant to Public Officers Law §17, would reimburse Rademacher for the reasonable counsel fees and litigation expenses associated with his defense in Williams' 42 USC §1983 action.

In January 2013, Rademacher and two of the other correction officers were indicted on charges of gang assault in the first degree, tampering with physical evidence and ]official misconduct. Ultimately Rademacher, in full satisfaction of the indictment, pleaded guilty to the charge of official misconduct. Pursuant to the plea agreement, Rademacher was sentenced to "a one-year conditional discharge" and he resigned from his position as a correction officer.

The Williams Civil Rights action pursuant to 42 USC §1983, however, had been stayed during the pendency of the criminal action and in May 2015, the Law Department advised Rademacher that in consideration of his guilty plea, the State no longer had a duty to pay for his legal representation in the Williams action pursuant to Public Officers Law §17. 

Rademacher initiated a CPLR Article 78 proceeding in Supreme Court seeking, among other things, an order compelling the Law Department to rescind its determination and pay for his legal defense in the Williams action. Supreme Court granted Rademacher's application and the Law Department appealed.

The Appellate Division initiated its analysis of the case by stating that there was no  question that the State initially had a duty to defend Rademacher in the Williams action §1983 complaint alleged that, while acting within the scope of his employment as a correction officer, [Rademacher] "caused Williams to suffer physical, emotional and psychological injuries by physically attacking him, intentionally and without justification, and thereafter authoring or engineering written statements and reports falsely accusing him of various crimes, offenses and rules violations."

The Law Department, however, argued that the State's duty to defend Rademacher ceased once he pleaded guilty to official misconduct because "the guilty plea established, as a matter of law, that the allegations underlying the civil complaint arose outside the scope of [Rademacher's] employment and were the result of intentional misconduct."

The Appellate Division disagreed, explaining that:

1. "As is the case in the private insurance realm, the state's determination to disclaim financial responsibility for an employee's defense is rational only if it can be determined, as a matter of law, 'that there is no possible factual or legal basis on which [the State] may be obligated to indemnify the employee'";

2. Pursuant to Public Officers Law §17 (3) (a), the State has an obligation to indemnify its employees for any judgment or settlement obtained against them in state or federal court, so long as "the act or omission from which [the] judgment or settlement arose occurred while the employee was acting within the scope of his [or her] public employment or duties" and "the injury or damage [did not] result[] from intentional wrongdoing on the part of the employee." In other words, said the court, the State will not have a duty to indemnify an employee if the act or omission giving rise to the civil judgment or settlement occurred outside the scope of his or her employment or was the product of intentional wrongdoing; and

3. Neither Rademacher's allocution** of his actions in his plea nor the elements of official misconduct preclusively established that the acts alleged in the 42 USC 1983 complaint occurred while Rademacher was acting outside the scope of his employment or that the injuries or damages allegedly sustained by Williams were the result of Rademacher's intentional wrongdoing.

The Appellate Division said that Rademacher, "[i]n allocuting to this crime," did little more than recite the elements of official misconduct, adding only that "he committed the unauthorized act on August 9, 2011 in Wyoming County while employed by the Department of Corrections and Community Supervision."

However, said the court, assuming, as the Law Department contended, that the commission of an unauthorized act for purposes of an official misconduct conviction falls outside the scope of employment and constitutes intentional wrongdoing, Rademacher's plea allocution did not particularize the unauthorized act that he committed or otherwise include admissions to any of the conduct alleged in the civil complaint in the Williams action.

Accordingly, the Appellate Division held that it could not conclude, as a matter of law, "that there is no possible factual or legal basis on which the state may eventually be obligated to indemnify [Rademacher]." This, said the court, is because the state must defend the entire action "[i]f any of the claims against [its employee] arguably arise from covered events."

N.B. In the event a public officer or employee in a defendant in a criminal action, §19.2.(a) of the Public Officers Law provides, in pertinent part, that "it shall be the duty of the state to pay reasonable attorneys' fees and litigation expenses incurred by or on behalf of an employee in his or her defense of a criminal proceeding in a state or federal court arising out of any act which occurred while such employee was acting within the scope of his [or her] public employment or duties upon his [or her] acquittal or upon the dismissal of the criminal charges against him [or her] or reasonable attorneys' fees incurred in connection with an appearance before a grand jury which returns no true bill against the employee where such appearance was required as a result of any act which occurred while such employee was acting within the scope of his [or her] public employment or duties unless such appearance occurs in the normal course of the public employment or duties of such employee.

It should also be noted that although not every employee is a public officer, all public officers are public employees.

* With the exception of the name of the Petitioner in Swack v Schneiderman, the facts and procedural history in the Swack v SchneidermanCPLR Article 78 proceeding are indistinguishable from those in Rademacher v Schneiderman.

** An allocution is a formal statement made to the court by the defendant who has been found guilty prior to being sentenced. An accused who had pleaded guilty to a criminal  charge or who had pleaded nolo contentere is deemed to "having been found guilty" of that criminal charge. However, although  a plea of nolo contendere has the same immediate effect as a guilty plea, it cannot be used against the individual in another cause of action.

TheRademacher decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_08416.htm

The Swack decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_08421.htm

Audits and examination reports issued on January 17, 2018 by NYS Comptroller Thomas P. DiNapoli

Audits and examination reports issued on January 17, 2018 by NYS Comptroller Thomas P. DiNapoli 

Click on text highlighted in color to access the full report

State Education Department: Kennedy Child Study Center: Compliance with the Reimbursable Cost Manual (2017-S-7)Kennedy is a New York City-based not-for-profit organization authorized by SED to provide preschool special education services to children with disabilities who are between the ages of three and five years. During the 2013-14 school year, Kennedy served about 345 students. The New York City Department of Education (DoE) refers students to Kennedy and pays for its services using rates established by SED. The DoE is reimbursed by SED for a portion of its payments to Kennedy. For the three fiscal years ended June 30, 2014, auditors identified $612,781 in reported costs that did not comply with state guidelines for reimbursement.
       
Public Service Commission: Pipeline Safety Oversight (Follow-Up) (2017-F-20)
An initial report issued in March 2016 found Department of Public Service (DPS) staff working under the Public Service Commission did not verify the accuracy of the information on employee/contractor qualifications maintained by individual operators. DPS staff rely on this data during field audits. In addition, DPS had not set up a process to identify instances where operators failed to notify them of specific gas-related incidents as required. In a follow-up, auditors determined DPS officials made significant progress in addressing the issues identified in the initial audit.

New York City Department for the Aging: Congregate Meal Services for the Elderly (2016-N-5)
Auditors found that DFTA officials could not demonstrate that they contracted with optimally located senior centers to ensure the maximum number of eligible senior citizens can take advantage of the congregate meals being offered. DFTA did not perform any analysis to determine whether the costs submitted by sponsors were reasonable.  Auditors also reviewed the sponsors’ administrative costs for four randomly selected senior centers and found that one overstated its February 2016 invoice by $12,006, and may have received $120,570 in overpayments during the fiscal year ended June 30, 2016.

New York State Health Insurance Program: United HealthCare (UHC): Improper Payments for Medical Services Designated By Modifier Code 59 (Follow-Up) (2017-F-23)
An initial audit report released in January 2015, identified 13 claims out of a sample of 245 that were overpaid by $39,345 because a distinct or independent service was not provided as required even though the services were designated as such with modifier 59. Based on statistical sampling techniques, auditors estimated that UHC overpaid between $1.6 million and $5.2 million for services that included modifier 59 during the one-year period ending Aug. 31, 2013. In a follow-up, auditors found UHC officials made significant progress in addressing the issues identified in the initial audit. UHC also recovered $29,856 of the $39,345 in identified overpayments.

State University of New York: Compliance With Payment Card Industry (PCI) Standards (Follow-Up) (2017-F-24)
An initial audit report issued in June 2016 found that although SUNY schools were generally knowledgeable about PCI compliance and the need to protect credit card data from unauthorized access, a range of weaknesses were found. In a follow-up, auditors found SUNY schools and the SUNY System Administration have made significant progress in implementing the recommendations identified in the initial report.

Workers' Compensation Board's refusal to direct a further development of the record based on an earlier decision concerning the matter was an abuse of its discretion under the circumstances

Workers' Compensation Board's refusal to direct a further development of the record based on an earlier decision concerning the matter was an abuse of its discretion under the circumstances
Page v Liberty Cent. Sch. Dist., 2017 NY Slip Op 08921, Appellate Division, Third Department

Angela Pageapplied for and was awarded workers' compensation benefits in 2004 based upon her claim for hypersensitivity reaction to the presence of fungi at her worksite. A Workers' Compensation Law Judge [WCLJ] subsequently determined that Page had a causally-related permanent total disability.

The Workers' Compensation Board reversed the WCLJ's finding of a permanent total disability, crediting the opinion of an impartial specialist selected by the Board to examine Page. The specialist had found that Page "had no continuing causally-related disability."

Page initiated a number of appeals and ultimately the Appellate Division affirmed the Board's decision on procedural grounds, finding that Page's failure to timely appeal a Board decision in 2012 precluded her from challenging the Board's finding of no further causally-related disability.

However, in 2014, a physician, Jeffrey Newton, evaluated Page for the purpose of assessing her "psychological treatment needs in connection with her longstanding multiple chemical sensitivity syndrome." Newton diagnosed Page as suffering from consequential adjustment disorder with anxious and depressed mood. Based upon Newton's opinion, Page requested a hearing to address her claim for benefits based on her alleged consequential psychological injury.

A WCLJ found prima facie evidence for consequential depression and directed the employer to obtain an independent medical examination on this issue. Upon review, however, the Board reversed the WCLJ, finding that further development of the record was not proper inasmuch as its December 2012 decision "established that Page did not have a further causally-related disability, without which there could be no consequential condition." Page appealed  the Board's ruling.

The Appellate Division reversed the Board's determination explaining that as a general rule "...the Board's determination of whether or not to allow further development of the record on a particular issue will not be disturbed absent an abuse of discretion," held that in this instance the Board holding that further development of the record was improper because it had determined in 2012 that [Page] no longer suffered from a causally-related disability and, without a further causally-related disability, there could be no disability from which a consequential condition could arise" constituted an abuse of discretion.

The court said that the record reflects that Page's claim was amended to include multiple chemical sensitivity in 2006. Further, in its 2012 decision the Board noted that, although its medical expert "was of the opinion that multiple chemical sensitivity is not a medically-recognized condition, he credibly testified that he was capable of independently determining, based upon a physical examination, whether [Page] was disabled."

Although the Board ultimately relied its medical expert's physical examination in concluding that Page no longer suffered from a causally-related disability, in so doing the Board made no findings suggesting that Page did not suffer from a causally-related disability from 2004 to 2011.

Accordingly, the Appellate Division concluded that the Board's finding that, as of 2012, Page no longer had a causally-related disability did not preclude Page from raising the issue of a psychological injury consequentially related to her prior established claims of hypersensitivity reaction to fungi and multiple chemical sensitivity.

As the record indicated that Page was diagnosed and treated for psychological injuries during that time and that, with regard to the issue of causation, Page's "psychological condition is clearly causally related to [her] . . . work place originating condition," the Appellate Division concluded that the Board abused its discretion by finding that further development of the record on this issue was improper based upon its 2012 decision.

The court reversed the Board's decision and remanded the matter to a WCLJ for the "further development of the record."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_08921.htm

Administrative due process in disciplinary actions

Administrative due process in disciplinary actions

Jacobson v Blaise, 2018 NY Slip Op 00205, Appellate Division, Third Department

Although this litigation concerned student discipline at a State University of New York campus, a number procedural issues are addressed that are but rarely focused on in considering matters involving administrative due process. The following are among the issues considered:

1. Constitutional due process rights: The New York State Department of Education has said that the student disciplinary process outlined in Education Law §6444(5)(b) "... should not be read to extend to private colleges the constitutional due process rights that apply to public colleges."

2. Presumption of innocence: Throughout the proceedings an accused student enjoys "the right to a presumption that [he or she] is 'not responsible' until a finding of responsibility is made" (Education Law §6444[5][c][ii]).[1]

3. Discovery: Citing Matter of Weber v State Univ. of N.Y., Coll. at Cortland, 150 AD3d 1429, the Appellate Division said there is no "general constitutional right to discovery in . . . administrative proceedings."

4. Cross-examination: The Appellate Division explained that, in general, there is a limited right to cross-examine an adverse witness in an administrative proceeding [see Matter of Weber v State Univ. of N.Y., Coll. at Cortland, supra, at 1432], and citing Winnick v Manning, 460 F2d 545, the Appellate Division noted that "[t]he right to cross[-]examine witnesses generally has not been considered an essential requirement of due process in school disciplinary proceedings."[2]

5. Credibility: The court indicated that it found it troubling that the hearing panel "duty bound to determine who to believe when faced with competing versions of events," resolved this fundamental credibility issue "without having had the opportunity to directly gauge ... [a witnesses]  credibility" and citing Doe v University of Cincinnati, 872 F3d at 404, the Appellate Division opined that when hearsay testimony is involved "there is no doubt that allowing [the accused] to confront and question [the accusing party in] the truth-seeking process and reduced the likelihood of an erroneous deprivation."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_00205.htm

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[1] Another issue, not raised directly in this case, concerns the need of an employee charged with incompetency or  misconduct submitting an answer to §75 disciplinary charges.  

Should an accused fail to file an answer to the charges and specifications may the appointing authority impose the proposed penalty without holding a disciplinary hearing? In the opinion of the author of this summary, Harvey Randall, no. Although Section 75 requires the appointing officer to allow the accused employee at least eight days to file his or her answer to disciplinary charges in writing, this simply provides that, but does not mandate, the employee have at least eight days in which to prepare and submit an answer to the charges. As Section 75 is silent as to when the accused individual is required to file his or her answer, this suggests that the individual may remain mute -- i.e., decline to file an answer to the charges -- without jeopardizing any of his or her Section 75 rights to administrative due process. In other words, the failure of an employee to file a pre-hearing written answer to the disciplinary charges, appear at the disciplinary hearing or his or her even refusing to defend himself or herself against the charges at the hearing, does not excuse the employer of its duty to prove the employee’s incompetence or misconduct, and where the employee fails to appear at the hearing, by holding the hearing in absentia, before making a determination as to guilt and then, if the accused is found guilty, imposing an appropriate disciplinary sanction. 

[2] The opportunity to cross-examine an adverse witness is guaranteed by statute in situations where a public agency is obliged to hold an adjudicatory hearing (see State Administrative Procedure Act §§ 102 [3]; 306 [3]). A hearing is not required under the minimum requirements set by Education Law §6444(5)(b) (see Matter of Doe v Skidmore Coll., 152 AD3d at 934), rendering the protections of the State Administrative Procedure Act inapplicable (see Matter of Gruen v Chase, 215 AD2d at 481; Matter of Mary M. v Clark, 100 AD2d at 43).