A hospital may held liable for violations of the Rehabilitation Act if its staff members are deemed to be acting as "officials" or "policymakers" of the hospital

This decision addresses whether and when hospital staff members may be considered to be acting as "officials" or "policymakers" of the hospital at which they are employed so that their conduct may be attributed to the hospital and thereby establish a Plaintiff’s right to damages on the ground that the defendant hospital was "deliberately indifferent" to a violation of the federal Rehabilitation Act [RA], 87 Stat. 355.*

Here, said the Second Circuit Court of Appeals, the record contains evidence that the hospital staff involved had knowledge of the deprivation of a patient’s right "to an interpreter, had the power to cure that violation, and failed to cure it."

Accordingly, the court ruled that the federal district court's summary judgment in favor of the defendant hospital was inappropriate.

This, said the court, did not mean that a hospital could absolve itself of liability for damages by failing to empower staff members who have contact with patients to cure potential violations of the RA, such as by failing to empower front line staff to procure, as was necessary in this instance, an interpreter for the hearing impaired. 

Indeed, opined the Circuit Court of Appeals, a hospital might be liable precisely because its policymakers failed to put in place a policy that would reasonably enable a patient to obtain the relief guaranteed by the  RA by complaining to the staff with whom the patient has contact. Were such the case, it could be argued that the “policymaker acted with at least deliberate indifference to the strong likelihood that a violation of federally protected rights will result" from its failing adopt a policy providing for a patient obtaining RA rights to which they were entitled.   

Such an argument, observed the Circuit Court, is especially strong in cases where a regulation expressly addresses a particular need, effectively putting hospital policymakers on notice that they must ensure the hospital’s policies are reasonably capable of meeting that need, specifically citing 45 C.F.R. §84.52(d)(1). 

* 45 C.F.R. §84.52(d)(1) mandates that hospitals subject to its provisions “shall provide appropriate auxiliary aids to persons with impaired sensory, manual, or speaking skills.”

The decision is posted on the Internet at:

https://hr.cch.com/eld/BiondoHealth081919.pdf

A party seeking a stay of arbitration alleging a violation of a term set out in a collective bargaining agreement must show that it has not agreed to arbitrate the issue or some other basis barring arbitration

Under what conditions may a party obtain a stay of a demand for arbitration was the significant issue in the litigation involving an alleged violation of a provision set out in a collective bargaining agreement [CBA] negotiated pursuant to Article 14 of the Civil Service Law, commonly referred to as the Taylor Law?

The CBA between the employer [City] and the employee organization [Union] provided that in the event an employee in relevant collective bargaining unit  was  "necessarily absent" from duty as the result of an occupational injury or disease and who was placed on [disability] leave pursuant to §71 of the Civil Service Law, the employee was to receive full salary for a maximum period of nine months during such absence notwithstanding the limitations set out in §71 with respect to "paid leave" while on such disability leave.*

A member of the Union in the collective bargaining unit [Employee] placed on §71 leave and was granted paid disability leave in accordance with the terms set out in the CBA. About a month later the City had Employee examined by its medical expert [Physician]. Physician found that Employee suffered from a mild impairment and that he was then fit perform sedentary work. The Physician also opined that Employee could perform "full duty" within two weeks.

Newburgh directed Employee to report for "sedentary work." When Employee filed to report for work as directed, City removed him from the payroll.

Employee was again examined by the City's medical expert and, again, the Physician found no disability and, again, the City directed Employee to return to work. Employee, again, failed to report for duty as directed.

Next the Union filed a contract grievance claiming that the City had improperly discontinued Employee's disability leave with pay. When the grievance was denied, Union demanded that the matter be submitted to arbitration. City thereupon obtained a court order from Supreme Court staying the arbitration on the grounds that "the issues raised by [Union] were not arbitrable."

The Appellate Division vacated the stay issued by Supreme Court, permitting the arbitration to go forward.

The court pointed out that a party to a collective bargaining agreement may seek a stay of arbitration on the ground that a valid agreement to arbitrate has not been made or under color of some other reason authorized by §7503 of the Civil Practice Law and Rules. In addition, the Appellate Division explained that a court may stay the arbitration when the particular claim to be arbitrated is not within the scope of the arbitration agreement.

Although City had contended that the matter that the Union sought to have submitted to arbitration was not within the scope of the arbitration agreement, the Appellate Division found that the City had not demonstrated any basis justifying staying the arbitration.

The court held that "[A] challenge to the propriety of the City's withdrawal of its grant of paid [disability] leave to [Employee] pursuant to ... the collective bargaining agreement is a claim within the scope of the arbitration clause" set out in the CBA as the agreement, by its terms, provided that "a claim of violation, misinterpretation or misapplication of the terms of a written collective bargaining agreement" was subject to binding arbitration."

The Appellate Division also observed that "the mere fact that the arbitration may entail the incidental interpretation or application of statutes does not compel a different result."

* §71, sometimes referred to as Workers' Compensation Leave, mandates that employees in the classified service be given a leave of absence without pay for at least one year unless the disability is of such a nature as to permanently incapacitate the individual for the performance of the duties of his position. The employee may use sick and other leave or compensatory time credits in order to be retained on the payroll while on §71 leave.

The decision is posted on the Internet at:

https://www.leagle.com/decision/1996787232ad2d5551237

Challenging the denial of an application for disability retirement benefits when the application is rejected by a "tie vote" by the trustees of the retirement fund

In Guidal v Trustees of the NYC Fire Department Article 1-B Fund, 275 AD2d 458, the Appellate Division demonstrated the difficult test that a claimant faces in attempting to have a court overturn a decision by the trustees of a pension fund denying his application for accidental disability retirement benefits. In Guidal's case the Trustees, by a tie vote, disapproved his application for accidental retirement benefits but approved him for ordinary disability retirement benefits. The court observed that:

"Where the Board of Trustees of the New York City Fire Department, Article 1-B Pension Fund ... denies an application for accidental disability benefits as a consequence of a tie vote, the Board’s determination can be set aside on judicial review only if it can be concluded as a matter of law that the petitioner’s disability was the natural and proximate result of a service-related injury."

In the instant CPLR Article 78 action the Supreme Court annulled the determination of the retirement system's Board of Trustees [Board] which, by a tied vote, denied Petitioner's application for accidental disability retirement benefits and remanded the matter to the Board for its further consideration.

The Board appealed and the Appellate Division unanimously reversed the lower court's ruling "on the law" and dismissed the proceeding.

Citing Meyer v Board of Trustees of N.Y. City Fire Dept., Art. 1-B Pension Fund, 90 NY2d 139, the Appellate Division explained that "[b]ecause the Board of Trustee's denial of [Petitioner's]  application for accident disability retirement was the result of a tie vote, the issue for the reviewing court was whether there was any credible evidence of lack of causation, i.e., evidence that the disability was not the natural and proximate result of the 1996 service-related accident."  

Other elements considered by the Appellate Division in making its ruling was the fact that :

[1] The record included "some credible evidence of lack of causation, namely, the conservative treatment [Petitioner] received after the accident and [Petitioner's] return to full duty for approximately 14 years before seeking further treatment;" and 

[2] The fact that "neither the Medical Board nor petitioner's physician were able to explain why the purported disabling injury did not prevent [Petitioner] from returning to full time duty for 14 years without further complaint."

The State Comptroller is the sole trustee of the New York State Employees’ Retirement System. Presumably the same analysis would be applied in cases where the determination concerning approving an application for accidental or duty-related disability benefits is at issue.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_06151.htm