New York State Comptroller Thomas P. DiNapoli's audit finds that residents of many long-term care facilities in the state lack access to ombudsman services

Under the federal Older Americans Act of 1965, to be eligible for certain federal grants, each state is required to establish an Office of the State Long-Term Care Ombudsman. In New York, this office is within the New York State Office for the Aging (NYSOFA) and serves as an advocate and resource for the elderly and persons with disabilities who live in long-term care (LTC) facilities.

Among their duties, ombudsmen identify, investigate and resolve complaints made by or on behalf of residents. There are about 1,500 LTC facilities in the state, housing more than 160,000 residents who have a need for ombudsman services, according to NYSOFA.

Many residents of long-term care facilities in New York state lack regular access to ombudsman services due to a decline in the number of volunteers* and a severe shortage of paid staff, according to an audit released October 3, 2019 by State Comptroller Thomas P. DiNapoli.*

DiNapoli’s auditors found that as of January 2019, only about 600 of the state’s LTC facilities have an assigned volunteer ombudsman, leaving the remaining 900 facilities to be covered by just 50 paid local staff, about half the minimum number recommended in NYSOFA’s guidelines, which are based on information from the Institute of Medicine.

Eleven of NYSOFA’s 15 regional programs fell short of the recommended minimum number of staff for the federal fiscal year (FFY) ended Sept. 30, 2018, and about 30 percent of facilities were not visited by an ombudsman during that period. New York City, the region with the highest number of residents and facilities, was recommended to have 28 staffers, but had only five.

New York’s paid staff per 2,000 beds ranked 39th compared to other states as of Sept. 30, 2017.

According to NYSOFA, the number of facilities associated with at least one complaint increased significantly – by about 84 percent – from 247 in the FFY ended Sept. 30, 2016 to 454 in the FFY ended Sept. 30, 2018. Nearly all complaints – 98 percent – arose from facilities that had been visited prior to the complaint, indicating that an ombudsman’s visit plays a role in a key part of the office’s mission: being accessible to residents who wish to air their concerns.

Although ombudsmen may be volunteers or paid staff, NYSOFA relies heavily on citizen-volunteer ombudsmen to visit the LTC facilities and make contact with their residents. Each regional program has a full-time, paid ombudsman coordinator who recruits, trains and supervises its volunteers. Still, recruitment and retention has been a problem. NYSOFA data show a 37 percent decrease in the number of volunteer ombudsmen during the three-year period ending Sept. 30, 2018. NYSOFA officials suggested that a restructuring of the program that resulted in larger service areas for a reduced number of local offices could have contributed to the decline, and cited other recruitment and retention challenges.

To help retain volunteers. NYSOFA said that some regional programs have begun paying a monthly stipend to some volunteers who work at least four hours per week conducting additional facility visits or entering data.

DiNapoli’s auditors also found issues with ombudsman training. A look at training records for 50 volunteers for one calendar year found that 31, or 62 percent, did not meet the annual training requirements. That included 12 volunteers who missed four of the six annually required in-person training sessions.

Office personnel use an electronic system to maintain all information required by the federal Administration for Community Living (ACL) through that agency’s National Ombudsman Reporting System (NORS). This includes information on complaints received and investigated as well as number of facilities covered by the office, number of staff and volunteers in each region, and related training activities.

Auditors determined that certain data maintained in NYSOFA’s computer system may not be reliable. They found, at the individual entry level, incomplete fields and differences with other supporting information – that may limit the data’s usefulness in analyzing results and trends. For example, a comparison of system complaint data to hard copy complaint documentation showed that 46 of the 66 system records reviewed either differed from the complaint form, had incomplete fields, or had both types of issues.

DiNapoli recommended that NYSOFA:

1. Improve the reliability of system-generated office data;

2 .Take steps to identify and understand reasons for the decline in volunteers and differences in regional program results;

3. Develop and implement strategies to improve access to ombudsman services, including access to volunteer ombudsmen;

4. Strengthen efforts to ensure that volunteer ombudsmen receive required annual training; and

5. Develop a long-term advocacy plan that is informed by reliable data and that identifies key advocacy goals and activities.

* Those interested in volunteering for the Long Term Care Ombudsman Program (LTCOP), please  call (855) 582-6769 or visit the NYS LTCOP website at: ltcombudsman.ny.gov. LTCOP will welcome your assistance.

NYSOFA officials agreed with the audit recommendations and indicated the actions they have taken so far to implement them. Their full response is included in the audit. Read the report, or go to: 

https://www.osc.state.ny.us/audits/allaudits/093020/sga-2020-18s48.pdf

Applying the terms of a settlement agreement settling a disciplinary action

During the course of Plaintiff's disciplinary hearing Plaintiff, represented by counsel, entered into a settlement agreement with the appointing authority [Employer] acting "on its own behalf and on behalf of its present and former ... employees." 

The settlement agreement provided that the Employer would discontinue the disciplinary proceeding and remove a letter of disciplinary charges from the Plaintiff's personnel file while Plaintiff agreed to retire from his employment with the Employer and to release the Employer and its employees "from all claims or causes of action he may have or claim to have . . . including any and all claims in any way arising out of, or related to, his employment with the Employer, or his separation from that employment."

Subsequently Plaintiff commenced an action to recover damages for defamation, alleging that the individuals [Defendants] named in his complaint, also employees of the Employer, had falsely accused him of actions that led to the disciplinary charges that were preferred by the Employer against him.

Defendants move to dismiss the complaint, submitting a copy of the settlement agreement that had been executed by the Plaintiff in connection with the discontinuance of the disciplinary proceeding that had been brought against him. Notwithstanding Plaintiff's argument to the contrary, Supreme Court granted the Defendant's motion "for failure to state a cause of action" and Plaintiff appealed.

The Appellate Division explained that [1] the terms of the release contained in the settlement agreement clearly and unambiguously encompass Plaintiff's action and [2] Plaintiff failed to allege any unlawful or wrongful threat by the Employer that could serve as the basis of a claim of duress, which was the only ground the plaintiff alleged to void the release. Thus, opined the Appellate Division, "the release executed by the [Plaintiff] should be enforced according to its terms."

The Appellate Division noted the following elements with respect to a release or settlement agreement that will be enforced by a court:

1. "A release is a contract, and its construction is governed by contract law;"

2.  "A party may move for judgment dismissing one or more causes of action asserted against him [or her] on the ground that . . . the cause of action may not be maintained because of . . . [a] release";

3 "Where . . . the language of a release is clear and unambiguous, the signing of a release is a jural act 'binding on the parties';"

4.  "Generally, a valid release constitutes a complete bar to an action on a claim which is the subject of the release"; and

5. "Although a defendant has the initial burden of establishing that it has been released from any claims, a signed release shifts the burden ... to the plaintiff to show that there has been fraud, duress or some other fact which will be sufficient to void the release."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_06588.htm

_________________________

The Discipline Book - A concise guide to disciplinary actions involving public officers and employees in New York State. For more information click on http://booklocker.com/books/5215.html

Disciplinary penalty imposed on an individual found guilty of disciplinary charges challenged as being too lenient

Courts frequently are asked to review a penalty imposed by an appointing authority following a disciplinary action. Typically such actions are brought by the employee on the theory that the penalty imposed was too harsh.

In such cases the courts usually apply the so-called Pell Doctrine: was the penalty imposed so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one's sense of fairness [Pell v Board of Education, 34 NY^2d 222].

This case is the mirror image of most Pell Doctrine cases: a complaint that the penalty imposed was too lenient!

The case arose when the School District [District] filed disciplinary charges against a teacher prior to the amendment of §3020-a of the Education Law in 1994 [Chapter 691, Laws of 1994].

An (old) §3020-a hearing panel found a teacher guilty of a number of specifications set out in charges alleging "inappropriate remarks and inappropriate physical contact" with female students by the teacher. The penalty imposed: suspension without pay for one and one-half years. The District  challenged the §3020-a hearing panel's decision by asking the New  York State Commissioner of Education to intervene. The District contended that the penalty should have been "more stringent." The Commissioner sustained the penalty imposed by the panel. The District then asked the courts to impose a harsher penalty -- dismissal.

What standard would the courts apply in determining if the penalty imposed is too lenient? The Appellate Division said it would apply same Pell standard that courts use to determine if a penalty is too harsh.*

Finding it neither arbitrary nor capricious, the Appellate Division sustained the Commissioner's ruling. The Court said that the underlying facts, coupled the absence of charges ever having previously been filed against the teacher during his 21-year career, supported the Commissioner's determination that the penalty imposed was proportionate to the offenses for which the teacher was found guilty.

In contrast, in Hickman v Poughkeepsie City School District, 237 A.D.2d 289, the Appellate Division sustained the dismissal of a school custodian found guilty of excessive absence, habitual lateness, falsification of his time sheets and excessive use of the telephone during his working hours as consistent with the Pell Doctrine.

The decision is posted on the Internet at:

https://www.leagle.com/decision/1997958237ad2d7211189

Click here to Read a FREE excerpt from NYPER's

A Reasonable Disciplinary Penalty Under the Circumstances

Considering Title VII complaints based on the Continuing Violation Doctrine and allegations of Disparate Treatment

Plaintiff-Appellant [Plaintiff] sued his current employer, the New York State Department of Taxation and Finance [NYSTF] pursuant to Title VII of the Civil Rights Act of 1964 alleging that NYSTF discriminated against him on the basis of race and retaliated against him when it failed to promote him on various occasions from 1997 to 2017.

The District Court properly concluded that Plaintiff’s Title VII claims based on acts alleged to have occurred on or before July 15, 2016 were time-barred as Title VII requires individuals aggrieved by acts of discrimination in states like New York that have state or local employment discrimination enforcement mechanisms to file a charge with the Equal Employment Opportunity Commission [EEOC] within 300 days “after the alleged unlawful employment practice occurred.”*

The majority of the alleged discriminatory acts that Plaintiff alleges in his complaint and supporting documents occurred years before this date. Notwithstanding Plaintiff's argument to the contrary, the district court correctly found that the continuing violation doctrine did not revive the claims based on these acts.

The Circuit Court explained that under the continuing violation doctrine, “if a Title VII plaintiff files an EEOC charge that is timely as to any incident of discrimination in furtherance of an ongoing policy of discrimination, all claims of acts of discrimination under that policy will be timely even if they would be untimely standing alone.” However, said the court, the continuing violation doctrine does not apply to discrete unlawful acts, even if the discrete acts were undertaken “pursuant to a general policy that results in other discrete acts occurring within the limitations period.”

Holding that “[A]n employer’s failure to promote is by its very nature a discrete act,” the Circuit Court ruled that the District Court correctly concluded that Plaintiff’s complaint, which focused on multiple failures to promote, alleged only a series of discrete acts of retaliation and discrimination, occurring over the course of more than twenty years and often separated by years. Thus the continuing violation doctrine did not revive Plaintiff's time-barred claims.

Considering Plaintiff's "disparate treatment claims based on the NYSTF’s failure to promote him between June 2, 2016 and May 10, 2017," the Circuit Court indicated that at the pleadings stage, Title VII “requires a plaintiff asserting a discrimination claim to allege two elements: (1) the employer discriminated against him (2) because of his race, color, religion, sex, or national origin.”

Although a plaintiff may adequately plead this second element “by alleging facts that directly show discrimination or facts that indirectly show discrimination by giving rise to a plausible inference of discrimination,” the Circuit Court found that the District Court correctly ruled that Plaintiff failed to make this showing because he made only conclusory allegations that he was denied promotions due to racial animus.

Finally, the Circuit Court held that the District Court did not err in dismissing Plaintiff’s retaliation claim for failure to state a claim, explaining that to establish a prima facie case of retaliation, an employee must show:

(1) participation in a protected activity;

(2) that the defendant knew of the protected activity;

(3) an adverse employment action; and

(4) a causal connection between the protected activity and the adverse employment action.”

The District Court, said the Circuit Court, correctly held that allegations that Plaintiff was passed over for promotions in 2016 and 2017 were too attenuated from the protected activity to plausibly allege a causal connection between the two.

* 42 USC §2000e-5(e)(1) claims falling outside this statute of limitations are time-barred unless they are subject to waiver, estoppel, or equitable tolling, or fall within the continuing violation exception to the 300-day rule.

The decision if posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/a3712f29-09cf-44d6-a607-af2f13c230a6/1/doc/18-2302_so.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/a3712f29-09cf-44d6-a607-af2f13c230a6/1/hilite/

Authority to modify or vacate an arbitration award may be limited by the terms of a collective bargaining agreement

A collective bargaining agreement between the parties provided that if an employee was found guilty of charges involving an assault, the appointing authority had the power to set and impose a penalty.

An employee was charged with assaulting another worker. Found guilty of the charge, the penalty imposed by the appointing authority was dismissal. The union, on behalf of the employee, appealed the appointing authority's determination to the Tripartite Arbitration Board [Board] in accordance with the controlling contract disciplinary grievance procedure.

When the Board denied the grievance but modified the penalty imposed to a suspension rather than termination, the appointing authority filed an Article 75 petition pursuant to §7511 petition seeking to vacate the Board's action. The appointing authority contended that the Board had exceeded its authority when it modified the penalty the appointing authority had imposed.

Supreme Court agreed and vacated that portion of the award that modified the penalty imposed by the appointing authority. The Appellate Division subsequently rejected the union's appeal challenging the lower court's ruling. The Appellate Division said that a court could vacate an arbitrator's award for a limited numbers of reasons, including:

a. the violation of a strong public policy;

b. finding that the award was irrational; or

c. determining that the award clearly exceeded a specific limitation on the arbitrator's powers.

Here the Appellate Division found the limitation described in (c) above controlled as the collective bargaining agreement specifically provided that where the Board sustained the disciplinary charges, the penalty imposed by the Authority must be sustained as well.

Accordingly, the Court ruled that the Board, having sustained the assault charge, had no authority to modify the penalty fixed by the appointing authority -- termination of the employee.

The decision is posted on the Internet at:

https://www.leagle.com/decision/1997660239ad2d4211268

Applying the Principle of “Obey Now, Grieve Later"

Under the “obey now, grieve later” principle, employees are required to follow their supervisor's orders when given, and, if they have an objection, contest the order subsequently through formal grievance procedures.

A New York City public employee was served with disciplinary charges alleging that he had disobeyed a lawful order to report for drug testing and failed to timely provide medical documentation justifying his inability to travel to the clinic for testing.

Here, however, the worker claimed one of the recognized exceptions to the principle, a situation where obeying the order would present an imminent and serious threat to the worker’s health or safety.*

OATH Administrative Law Judge Garcia found that the worker made out an "imminent and serious threat" to the worker’s health or safety defense. The worker presented documentation from a hospital emergency room showing that he had fainted on a subway platform on his way to the clinic and was told by a doctor not to travel for several days.

Judge Garcia recommended that the charges against the employee be dismissed.

Other decisions in which ignoring the principle "work now, grieve later" was a consideration include  Ferreri v. New York State Thruway Authority, 62 N.Y.2d 855 [refusal to obey an order claimed justified as consistent with the advice of union officials], Scazafavo v Erie County Water Authority, 30 AD3d 1034, [refusal to comply with an order to submit to drug testing because the employee did not believe that he was subject to random drug testing] and Tanvikr v NYC Health and Hospital Corporation, 112 AD 3d 436, [employee refused to obey orders to undertake training for a new position after being reassigned].

* Other exceptions include situations in which it is indisputably clear that the order is beyond the power of management.

The OATH decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/19_cases/19-1454.pdf

Perfluoroalkyl compounds (PFAs) have become notorious global contaminants

PFAs were detected in water sources serving more than 7 million Californians, according to a new report* by the Environmental Working Group. EWG describes itself as "dedicated to protecting human health and the environment.” It reports finding PFA contamination in water sources for 74 community drinking water systems -- serving 7.5 million people in California.

Unlike other global contaminants such as lead (Pb) and other metals, PFAs have upended the environmental regulatory world.  Regulatory agencies usually have found that control to parts per billion (ppb) or parts per million (ppm) will protect public health reliably and adequately.  The drinking water standard for Pb, for example, is 15 ppb.  PFAs, however, exhibit potent toxicological effects in the usually-unregulated parts-per-trillion (ppt) range, posing new challenges for environmental monitoring and regulation.

These challenges posed by the disturbing toxicology and environmental dynamics of PFAs have been examined by Dr. Robert A. Michaels in two articles recently published in the Environmental Claims Journal. Michaels (2017; see below) addresses massive PFA contamination of drinking water and other  environmental media in Hoosick Falls, Rensselaer County, New York. This episode of corporate environmental impact has garnered national attention because it adversely affected the health of people and the market value of their homes. Michaels (2018; see below) critiques the New York State Health Department's cancer cluster study in Hoosick Falls. He finds major shortcomings, some particular to the study and others applying to cancer cluster studies generally.

Most notably, standard operating procedure in science requires application of the stringent p ≤0.05 confidence criterion of statistical significance.  The Health Department study, like other cancer cluster studies, used this standard inappropriately to confirm cancer clusters in Hoosick Falls.  Unsurprisingly, it found none related to PFAs.  Use of the p ≤0.05 confidence level is aimed at conservatively protecting the body of scientific knowledge.  As a trade-off, however, it may confuse real cancer clusters with statistical flukes, justifying ignoring them.  Consequently, the standard procedure may fail to protect public health conservatively.

Michaels (2018) and Michaels (2017) both are available for download at no charge via the following URL links:

Michaels (2018):

https://www.researchgate.net/publication/322746891_Protecting_Science_and_Public_Health_in_Communities_-_PFOA_and_Possible_Cancer_Clusters_in_the_Village_of_Hoosick_Falls_Rensselaer_County_New_York

Michaels (2017): 

https://www.researchgate.net/publication/313809847_Lessons_Learned_from_Legacy_Contaminants_of_Emerging_Concern_Perfluoroalkyl_Compounds_PFCs_in_the_Village_of_Hoosick_Falls_Rensselaer_County_New_York

Please direct questions or comments concerning this post, and/or Michaels (2018), and/or Michaels (2017) to Dr. Michaels at ram@ramtrac.com.

* See https://www.cnn.com/2019/09/27/us/pfas-california-contamination-trnd/index.html