In the matter of Department of Mental Health, Mental Retardation and Substance Abuse Services Case No. 5152

Hearing Date: April 6, 2001
Decision Issued: May 8, 2001

On December 8, 2000, Grievant was issued a Group II Written Notice of disciplinary action with five days suspension for:

On January 4, 2001, Grievant timely filed a grievance to challenge the disciplinary action. The outcome of the Third Resolution Step was not satisfactory to the Grievant and she requested a hearing. On February 23, 2001, the Department of Employment Dispute Resolution assigned this appeal to the Hearing Officer. On April 6, 2001, a hearing was held at the Agency’s regional office. Upon motion of a party, the Hearing Officer found just cause to grant an extension of the 30 day time frame for issuing the decision because of the conflicting schedules of the parties and unavailability of witnesses.

Grievant
Counsel to the Grievant
Director of the Training Center
Counsel to the Agency
Assistant Program Manager
Licensed Practical Nurse
Medical Director
Admissions Clerk
Development Technician
Director of Health Services
Primary Nurse
Medicaid Facilities Inspector
Charge Nurse

Whether Grievant should receive a Group II Written Notice of disciplinary action with suspension.

The burden of proof is on the Agency to show by a preponderance of the evidence that its disciplinary action against the Grievant was warranted and appropriate under the circumstances. Grievance Procedure Manual ("GPM") § 5.8. A preponderance of the evidence is evidence which shows that what is sought to be proved is more probable than not. GPM § 9.

After reviewing the evidence presented and observing the demeanor of each witness, the Hearing Officer makes the following findings of fact:

Grievant is a Registered Nurse with the Department of Mental Health, Mental Retardation, and Substance Abuse Services. She works in the Infirmary at one of the Agency’s residential training centers. One of her duties is to make sure that "medical orders are transcribed and implemented accurately and in a timely manner." (Agency Exhibit 13). She has been working at the Agency’s Facility for several years without any prior disciplinary action being taken against her.

Agency residents live in detached buildings called cottages. There are four cottages within a cluster. Each cluster has one primary nurse devoted to assisting residents in the cluster. Primary nurses work Monday through Friday from approximately 8 a.m. to 5 p.m. When a primary nurse is not able to work due to vacation or illness, a primary nurse from another cluster serves as a backup. Each primary nurse is responsible for obtaining another primary nurse to serve as a backup when necessary. Primary nurses report to the Assistant Program Manager.

The Agency has an Infirmary staffed with nurses who work primarily in the Infirmary and do not visit the cottages when the primary nurses are working on weekdays. Residents who become sufficiently ill leave their cottages and stay at the Infirmary. Infirmary nurses substitute for the primary nurses only when the primary nurses are not working or are not available to assist residents at the cottages.

In the afternoon of November 8, 2000, a resident in cottage 1D was experiencing pain and began injuring himself. The Development Technician and another employee were trying to restrain the resident to calm him down. The resident was not calming down, so the Development Technician called the Assistant Program Manager but she was not at her desk. The Development Technician left a message on her voice mail for her to come to the cottage as soon as possible. Coincidentally, the Assistant Program Manager was on her way to the cottage and entered the building shortly after the Development Technician left a message for her.

The Assistant Program Manager observed that the resident continued to be agitated so she instructed the Development Technician to page the cottage’s primary nurse Vicki. When the primary nurse failed to respond to the page, the Assistant Program Manager instructed the Development Technician to call the Infirmary to obtain permission to give the resident Ativan in pill form. The Licensed Practical Nurse working in the Infirmary gave permission to give the pill to the resident. Immediately after receiving the pill, the resident spit it out and the pill had to be destroyed.

Since the resident would not take Ativan in pill form, it would have to be given to him by injection. The Assistant Program Manger called the Medical Director and told him of the resident’s behavior and said that the resident had blood on his face and arms. The Medical Director wrote a "stat" order for an injection of Ativan. A "stat" order is one that must be carried out immediately. The Medical Director left his office with the order and walked down the hall to the Infirmary. Two of the four Infirmary staff were in the Infirmary when the Medical Director walked in. He showed them the order, but he sensed or felt that they would not attach the appropriate level of urgency to the order so he walked out of the Infirmary into the hallway. In the hallway, he saw the Grievant who was the third member of the Infirmary staff. He handed her the order and explained that the Assistant Program Manager had called him regarding a resident in distress who required a shot of Ativan. While the Grievant was reading the order, the Charge Nurse, the fourth member of the Infirmary staff, walked up to the Medical Director and the Grievant in the hallway and briefly discussed the case with them.

Grievant and the Charge Nurse did not know the physical condition of the resident but believed he may be bleeding and suffering unknown injuries. As a precaution, they decided to take with them an oxygen tank and an emergency medical bag. The emergency medical bag has numerous medical supplies to address many different kinds of medical emergencies. The bag is about the size of carryon airline luggage and when full weighs about 50 pounds. A small hand truck is used to roll the bag. Before leaving the Infirmary, Grievant and the Charge Nurse checked each of the zipper pockets of the emergency medical bag to make sure it contained all of its customary supplies. Charge Nurse went to the Infirmary storage refrigerator to draw the injection into a syringe.

Once Grievant and the Charge Nurse finished packing necessary supplies and secured the injection, they walked through several halls of the main building out to an area adjacent to the building where golf carts are typically parked. Because the cottages are located several hundred yards from the main building, the Agency uses golf carts to transport staff throughout the campus. When Grievant and the Charge Nurse went to the golf cart area, none of the carts were there. They looked around the corner of the building to see if any carts were being recharged but could find none.

In addition to using golf carts, the Agency has several small State cars to transport staff. Grievant and the Charge Nurse went back inside the building and walked through several hallways to obtain the keys to a State vehicle. They then loaded the vehicle and drove to the cottage. The road from the main building to cottage 1D has approximately 5 to 7 speed bumps. Residents and staff sometimes walk in and cross through the roads. Grievant and the Charge Nurse drove carefully but quickly to the cottage. They drove onto the sidewalk and parked at the front door of the cottage. They unloaded their equipment and entered the cottage.

Upon entering the cottage, Grievant and the Charge Nurse observed Agency staff restraining the resident in an open area of the cottage. The Assistant Program Manager asked them to give the injection immediately. They refused and proceeded to unwrap the resident’s bandages to check his injuries. After re-wrapping the injuries, Grievant and the Charge Nurse took the resident back to his room to assure him privacy and gave him the injection of Ativan. They then left the cottage and returned to the Infirmary.

The Agency conducted an investigation to determine whether Grievant and the Charge Nurse had unnecessarily delayed following the Medical Director’s order. The Investigator interviewed relevant witnesses and issued his report with the conclusion that he found insufficient evidence to support allegations of client abuse. Although the Investigator did not find a violation of Departmental Instruction 201 relating to client abuse, the Agency decided to issue Grievant a Group II Written Notice of disciplinary action with five days suspension. The Investigator did not testify at the hearing but the parties agreed to include his report in the record.

The Hearing Officer heard approximately 17.5 hours of testimony regarding the times certain events occurred. At least nine of the eleven witnesses, who testified in this case, stated the time that certain events occurred. To measure the time events occurred, some witnesses relied on clocks in the cottage, clocks in the Medical Director’s office, clocks in the Infirmary, clocks in the admissions office, and watches. None of these time instruments were synchronized. The evidence was so conflicting and was based on so many assumptions that it is not possible for the Hearing Officer to determine the exact time a certain event occurred.

When a certain event occurred, however, is not of primary importance in this appeal. It is the amount of time between events that is essential to resolving this appeal. The Hearing Officer can determine how much time passed between certain events based on the testimony of several witnesses.

The Assistant Program Manager testified that the following events occurred:

Based on the testimony of the Assistant Program Manager, Grievant took 25 minutes to reach the cottage after the Medical Director wrote the order for the injection.

The Medical Director testified that the following events occurred:

Agency employees are often moving through out different parts of the Facility. In order to contact employees working in various areas of the Facility, the agency uses its Admissions Office staff to send pages to an employee’s personal pager or call for an employee using its intercom system. The Agency keeps a record of all requests for pages or intercom messages. Relevant portions of that record include:

In order to meet its burden of proof, the Agency must prove (1) the reasonable amount of time for Grievant to deliver the medication to the cottage³ and (2) Grievant exceeded that reason amount of time.

The Agency contends Grievant should have been able to deliver the medication in no more than seven minutes. This conclusion is based on the testimony of the Assistant Program Manager. She stated that based on her 26 years of experience that it takes a primary nurse no longer than approximately ten minutes to drive from a cottage to the Infirmary, draw the medication, and drive back to the cottage. She estimated the time to drive one way as requiring three minutes. She believes an Infirmary nurse should be able to perform the same task more quickly than a primary nurse should because the Infirmary nurse only has to travel from the Infirmary to the cottage.

The Hearing Officer concludes for several reasons that the reasonable period of time to deliver the medication exceeds seven minutes. First, in the example given by the Assistant Program Manager, the primary nurse had the opportunity to observe the resident before leaving the cottage to obtain the medication. In Grievant’s case, she did not have the opportunity to observe the resident beforehand. Grievant was informed that the resident may have suffered severe injuries. Thus, it was appropriate for the Grievant to take additional time to carry oxygen and an emergency medical bag. The Hearing Officer estimates this additional time at approximately five minutes to locate the bag, check its contents and add additional supplies missing from the bag. Second, in the example given by the Assistant Program Manager, the primary nurse had ready access to a vehicle. In Grievant’s case, she attempted to locate one of the golf carts available for transportation but none were available. She then had to go to another part of the building to obtain the keys to one of the Facility’s state automobiles and load the equipment into the vehicle. The Hearing Officer estimates Grievant required an additional three minutes to obtain the vehicle. Consequently, the Hearing Officer concludes that fifteen minutes is the reasonable period of time for Grievant to have reached the cottage.

According to the Assistant Program Manager, Grievant took 25 minutes to reach the cottage after the Medical Director issued his order for the injection. She contacted the Medical Director at 2:45 p.m. Grievant did not arrive at the cottage until 3:10 p.m., or 25 minutes later.

The Assistant Program Manger’s estimate of time is five minutes too long. The Medical Director testified that it was approximately five minutes from the time he wrote the order until he gave the order to the Grievant. Thus, Grievant was not aware of the order until 2:50 p.m., which is five minutes after the Assistant Program Manager called the Medical Director. The time between 2:50 p.m. and when Grievant arrived at the cottage at 3:10 p.m. is 20 minutes.

The Agency contends Grievant took eighteen minutes longer than necessary to reach the cottage. The Agency issued Grievant a Group II Written Notice with five days suspension based on that assumption.

The Hearing Officer concludes Grievant took only five minutes longer than necessary. Grievant’s failure to timely respond does not rise to the level of a Group II offense. Her behavior constitutes inadequate or unsatisfactory work performance which is a Group I offense. P&PM § 1.60(V)(B)(1).

The Agency has not met its burden of proof to establish a Group II offense. The Agency has several pieces of key information missing. First, the Investigator was not available to testify yet his report contains an important conclusion. The Investigator claims he traced the exact path taken by the Grievant and that it took him only 7 to 7 and a half minutes to reach the cottage. The problem is that the report does not state where and when along the path he began timing. Was it when Grievant was inside the building or at the point when she was at the golf carts, or was it when she reached the State vehicle? Knowing the answer to these questions could be critical to supporting the Agency’s case. Second, the Agency presented insufficient evidence to counter the Grievant’s assertion that it was necessary for her to take the emergency medical bag and oxygen with her. This heavy bag clearly limited the Grievant’s ability to travel quickly.

Grievant argues that she reached the cottage in as timely a manner as possible. Grievant contends the resident received the injection at 3 p.m. as evidenced by the resident’s medical records which were filled out before the Grievant and the Charge Nurse knew or suspected there would be an investigation of the delay. According to the Grievant, she could not have taken as long as the Agency contends to arrive at the cottage.

The Hearing Officer does not believe the injection was given at 3 p.m. for several reasons. First, the Hearing Officer asked Charge Nurse how she determined the time she administered the shot. She answered that she relied on the time shown by her watch and by the clock on the cottage wall. According to the Investigator's report, the clock on the cottage wall was approximately ten minutes fast. It is unlikely that Charge Nurse's watch was also ten minutes fast. If both the Charge Nurse's watch and the cottage clock were ten minutes fast, it is unlikely that the shot was given at 2:50 p.m. given the other time computations. In addition, the Assistant Program Manager testified she was looking at the cottage wall clock when it read 3:01 p.m. and Grievant was not present. If the cottage clock is adjusted for the ten minute variance, this means the Assistant Program Manager did not see Grievant at the cottage at 2:51 p.m. and, thus, she could not have given the injection at 2:50 p.m. Second, at approximately 3:10 p.m. as measured by the Infirmary clock, the Assistant Program Manager called the Infirmary asking when Grievant would arrive.

Grievant argues the Agency was likewise at fault for the delay and, thus, Grievant should not be disciplined. The Hearing Officer agrees that the Agency was at fault for some of the delay in the resident receiving his injection. For example, the Assistant Program Manager supervises the primary nurses but she did not realize that the primary nurse she was repeatedly paging was out on sick leave and could not respond to the pages. The Assistant Program Manager told the Medical Director she had been trying to reach primary nurse Vicki for half of an hour. Had the Assistant Program Manager paid more attention to her staff scheduling, the Agency could have more timely responded to the resident. Grievant, however, has not established a connection between the delay caused by the Agency and her delay. Without this connection, there is no reason to reduce the discipline against Grievant.

For the reasons stated herein, the Agency’s issuance to the Grievant of a Group II Written Notice of disciplinary action with a five day suspension is reduced to a Group I. Because the normal disciplinary action for a Group I offense is issuance of a Written Notice, Grievant’s suspension for five days is rescinded. GPM § 5.9(a)(2). Standards of Conduct, Policy No. 1.60(D)(1)(a). The Agency is directed to provide the Grievant with back pay for the period of suspension less any interim earnings that the employee received during the period of suspension and credit for annual and sick leave that the employee did not otherwise accrue. GPM § 5.9(a)(3). Standards of Conduct, Policy No. 1.60(IX)(B)(2).

As Sections 7.1 through 7.3 of the Grievance Procedure Manual set forth in more detail, this hearing decision is subject to administrative and judicial review. Once the administrative review phase has concluded, the hearing decision becomes final and is subject to judicial review.

Administrative Review – This decision is subject to four types of administrative review, depending upon the nature of the alleged defect of the decision:

1. A request to reconsider a decision or reopen a hearing is made to the hearing officer. This request must state the basis for such request; generally, newly discovered evidence or evidence of incorrect legal conclusions is the basis for such a request.
2. A challenge that the hearing decision is inconsistent with state or agency policy is made to the Director of the Department of Human Resources Management. This request must cite to a particular mandate in state or agency policy. The Director’s authority is limited to ordering the hearing officer to revise the decision to conform it to written policy.
3. A challenge that the hearing decision does not comply with grievance procedure is made to the Director of EDR. This request must state the specific requirement of the grievance procedure with which the decision is not in compliance. The Director’s authority is limited to ordering the hearing officer to revise the decision so that it complies with the grievance procedure.
4. In grievances arising out of the Department of Mental Health, Mental Retardation and Substance Abuse Services which challenge allegations of patient abuse, a challenge that a hearing decision is inconsistent with law may be made to the Director of EDR. The party challenging the hearing decision must cite to the specific error of law in the hearing decision. The Director’s authority is limited to ordering the hearing officer to revise the decision so that it is consistent with law.

A party may make more than one type of request for review. All requests for review must be made in writing, and received by the administrative reviewer, within 10 calendar days of the date of the original hearing decision. (Note: the 10-day period, in which the appeal must occur, begins with the date of issuance of the decision, not receipt of the decision. However, the date the decision is rendered does not count as one of the 10 days; the day following the issuance of the decision is the first of the 10 days). A copy of each appeal must be provided to the other party.

Section 7.2(d) of the Grievance Procedure Manual provides that a hearing officer’s original decision becomes a final hearing decision, with no further possibility of an administrative review, when:

1. The 10 calendar day period for filing requests for administrative review has expired and neither party has filed such a request; or,
2. All timely requests for administrative review have been decided and, if ordered by EDR or HRM, the hearing officer has issued a revised decision.

Within thirty days of a final decision, a party may appeal on the grounds that the determination is contradictory to law by filing a notice of appeal with the clerk of the circuit court in the jurisdiction in which the grievance arose. The agency shall request and receive prior approval of the Director before filing a notice of appeal.

Carl Wilson Schmidt, Esq.
Hearing Officer