In the matter of Department of Mental Health, Mental Retardation and Substance Abuse Services Case Number 5166

Hearing Date: May 1, 2001
Decision Issued: May 4, 2001

For administrative reasons relating to the location of the hearing site and due to availability of the participants, this hearing could not be docketed until the 35^th day following appointment of the hearing officer.

On April 18, 2001, grievant requested a postponement of the hearing because grievant had been discharged from her employment on April 12, 2001. Grievant wanted to consolidate her grievance of the discharge with the existing disciplinary grievances. The Hearing Officer ascertained that the reasons for grievant’s discharge were not directly related to the incidents that precipitated the instant hearing. Under such circumstances, it is highly unlikely that the Director of the Department of Employment Dispute Resolution (EDR) would agree to a consolidation of the grievances.

More significantly, the grievance of discharge has not yet proceeded through the three internal resolution steps of the grievance procedure. Therefore, it is possible that the discharge grievance might be satisfactorily resolved before it reaches the hearing stage. For this reason, the request for consolidation is speculative and premature. Finally, docketing of the existing grievances had already been delayed beyond the 30-day period mandated in the grievance procedure.¹ The Hearing Officer concluded for the above reasons that grievant’s request did not present just cause to postpone the hearing.

Grievant
Attorney for Grievant
Assistant Director of Nursing
Representative for Agency
Ten witnesses for Agency
Observer from EDR²

Was grievant’s conduct on August 23, 2000, August 25, 2000 and October 12, 2000 such as to warrant disciplinary action under the Commonwealth of Virginia Standards of Conduct? If so, what was the appropriate level of disciplinary action for the conduct at issue?

The grievant filed timely appeals from a Group II Written Notice and from a Group III Written Notice, both issued on December 19, 2000. The Group III Notice also included a demotion from Nurse Coordinator to RN effective on December 19, 2000. Subsequently, the agency head qualified the grievances for a hearing. Both disciplinary actions were consolidated for the purpose of conducting one hearing of the two grievances.

The Department of Mental Health, Mental Retardation and Substance Abuse Services (Hereinafter referred to as "agency") has employed the grievant as a registered nurse for seven years. Until the time of her demotion, grievant had been the charge nurse of a ward housing 35 patients and having a staff of 12-15 nurses and nurse’s aides. Each ward has a copy of the agency policies regarding operation of the facility. Grievant is familiar with these policies and knows that she is responsible for compliance with the policies.

The agency’s policy on Missing Patients addresses attempted unauthorized absences and states, in pertinent part:

B. Search

1. When staff members note the unauthorized absence of a patient, a brief search of the immediate area will be conducted by ward and/or activities staff to verify the patient is indeed absent.³

E. Attempted Unauthorized Absences

1. If a patient attempts to leave the facility (from a locked ward, from a program or from grounds privileges), but does not leave the SWVMHI grounds, this is considered an attempted AWOP or AFF. [Absence from Facility]

2. Unit staff shall immediately notify the charge nurse, House Supervisor, the Unit Programs Director, or designee, and the Security Office.

3. Documentation shall be made in the patient record about the circumstances of the attempted unauthorized absence.

4. The Confidential Incident Report Form must be completed by the person who discovered, witnessed, or became aware of the attempted unauthorized absence.⁴

The agency’s policy on Accountability for Patients establishes guidelines for nursing staff to maintain accountability for patients and monitor patients’ location at all times. The policy statement is, "Nursing Service employees, under the direction of the Charge Nurse, shall be aware at all times of the whereabouts of each patient assigned to their ward and shall be alert for indications that patients have left the Institute without authorization.⁵

At or before 6:00 p.m. on August 23, 2000, patient L escaped from the ward of which the grievant was in charge. The patient, who is diagnosed with dementia, was found at the kitchen loading dock by kitchen staff and was returned to the ward at approximately 6:40 p.m. The agency concluded that the grievant had failed to comply with the requirements a) that she be aware of the patient’s whereabouts at all times, and b) that she ensure routine monitoring of all patients because the patient was absent from the ward for approximately 40 minutes.

On August 25, 2000, the same patient L was found outside the building during the grievant’s shift. The agency concluded that information provided by grievant was conflicting because she said the patient was on the porch, when he was actually on the sidewalk in front of the porch. The agency also concluded that her documentation of the event was false because she recorded that the patient left the nurses’ station and walked directly outside. In fact, grievant did not actually observe the patient as he exited the building.

The agency also cited the grievant for improper documentation because she documented two entries on one line and failed to properly correct an error. The agency’s policy on Recordkeeping⁶ specifies procedures for acceptable record keeping entries and states, in pertinent part:

4. Correction of Errors
a. Errors must not be erased or obliterated. To correct an error, draw one line through the error, write the word "error" and date of the correction, and the initials of the person making the correction.

5. Late Entries
If a late entry is required, the date column must contain the date the note is written. Title the note, "Late Entry" and indicate in the note the date and/or time covered by the note.

As a result of these two incidents, the agency evaluated the matter for almost four months and, on December 19, 2000, issued a Group II Written Notice to the grievant.

The agency’s policy on Abuse Allegations and Patient-to-Patient Conflicts states, in pertinent part:

Alleged Abuse Inside the Facility
A. Who Should Report Abuse?
Any employee, contract employee, volunteer, consultant, visitor, or other who has knowledge or reason to believe that a patient may have been subjected to abuse or other inappropriate behavior shall report such information IMMEDIATELY to the Facility Director.⁷

The policy goes on to explain in detail the procedure for reporting abuse and ensuring patient safety (by closer observation, physical separation and/or ward changes). The policy also emphasizes that the Director should be contacted even after 5:00 p.m. by calling or paging him at his residence. Even a cursory reading of the policy makes it apparent that every allegation is to be taken seriously and reported promptly.

Abuse is defined in the policy, in pertinent part, as:

C. Coercion, threats or intimidation which are statements or actions that would evoke fear in a reasonable person or that could reasonably be expected to evoke fear in the patient or resident.⁸

At about 7:30 p.m. on October 12, 2000, female patient S reported to the grievant that male patient M wanted to touch her breasts and private parts. Patient S was crying and upset when she came to the grievant. She is moderately retarded and has been a victim of sexual abuse in the past; patient M has a history of being a sexual abuser. Grievant is aware of the history of both patients. Grievant asked Patient S whether Patient M’s statement brought back memories of the sexual abuse she had suffered at the hands of her father. Patient S responded affirmatively. However, when grievant wrote the required interdisciplinary note, she did not note that it was the grievant who had prompted Patient S by asking her a leading question. Rather, grievant wrote her report inferring that Patient S had volunteered this statement without prompting.

Grievant failed to immediately report the event to the Facility Director, the Unit Director or the House Supervisor. Later that evening, the grievant added additional documentation in the interdisciplinary notes but she failed to correctly note the times at which such notes were added. Because of what the agency considered to be false documentation and failure to report the incident pursuant to applicable policy, the agency issued a Group III Written Notice on December 19, 2000 and demoted the grievant to RN.

The General Assembly enacted the Virginia Personnel Act, Va. Code § 2.1-110 et seq., establishing the procedures and policies applicable to employment within the Commonwealth. This comprehensive legislation includes procedures for hiring, promoting, compensating, discharging and training state employees. It also provides for a grievance procedure. The Act balances the need for orderly administration of state employment and personnel practices with the preservation of the employee’s ability to protect his rights and to pursue legitimate grievances. These dual goals reflect a valid governmental interest in and responsibility to its employees and workplace. Murray v. Stokes, 237 Va. 653, 656 (1989).

Code § 2.1-116.05(A) sets forth the Commonwealth’s grievance procedure and provides, in pertinent part:

In disciplinary actions, the agency must show by a preponderance of evidence that the disciplinary action was warranted and appropriate under the circumstances.⁹ The following procedural due process is required before disciplinary action:

Prior to . . . any disciplinary suspension, employees must be given

1. an oral or written notice of the offense,
2. an explanation of the agency’s evidence in support of the charge, and
3. a reasonable opportunity to respond.

To establish procedures on Standards of Conduct and Performance for employees of the Commonwealth of Virginia and pursuant to § 2.1-114.5 of the Code of Virginia, the Department of Personnel and Training promulgated Standards of Conduct Policy No. 1.60 effective September 16, 1993. The Standards of Conduct provide a set of rules governing the professional and personal conduct and acceptable standards for work performance of employees. The Standards serve to establish a fair and objective process for correcting or treating unacceptable conduct or work performance, to distinguish between less serious and more serious actions of misconduct and to provide appropriate corrective action.

Section V.B.3 of the Commonwealth of Virginia’s Department of Personnel and Training Manual Standards of Conduct (SOC) Policy No. 1.60 provides that Group II offenses include acts and behavior which are more severe in nature [than a Group I offense] and are such that an accumulation of two Group II offenses normally should warrant removal. Among the examples of Group II offenses is:

a. Failure to follow a supervisor’s instructions, perform assigned work, or otherwise comply with established written policy.

SOC Policy 1.60 further provides that Group III offenses include acts and behavior of such a serious nature that a first occurrence normally should warrant removal [from employment]. One example of a Group III offense is:

b. Falsifying any records, including, but not limited to vouchers, reports, insurance claims, time records, leave records, or other official state documents.

A preponderance of the evidence supports a conclusion that the grievant failed to properly maintain awareness of patient L’s whereabouts on August 23, 2000 because of the length of time (40 minutes) during which the patient was unaccounted for. She therefore does have culpability for this incident.

With regard to the August 25, 2000 incident, the grievant provided conflicting information. She indicated in the interdisciplinary note at 7:35 p.m. that patient L had been found on the sidewalk; but at 8:00 p.m., grievant told the house supervisor that patient L had been sitting on the porch. However, on this occasion, the grievant was upset because she knew that a second escape by the same patient in two days would reflect adversely on her. Therefore, this slight variance in her accounts of the incident is not sufficiently significant to warrant discipline.

The grievant also stated in the interdisciplinary note that patient L "walked thru exit E doors." The evidence strongly suggests that this is precisely what happened. However, the grievant’s statement is misleading because it infers that she or others witnessed the patient exit through the door. In fact, no one actually saw the patient leave; someone first noticed the patient only after he was already outside the building. It is apparent from reading the entire note written by the grievant that she assumed patient L walked out the door. Her statement that the patient walked out the door was ineptly written, technically inaccurate and therefore false. However, it was not a deliberately false account of the event.

It is also of considerable concern that the same patient escaped twice in two days. Grievant should have been especially alert following the first escape since it was never determined how the patient had escaped on August 23, 2000. Not only should she personally have been more vigilant, but she should have stressed to her staff the importance of accounting for this patient and assuring that all exits were locked at all times. Since the best evidence suggests that the patient simply walked out an unlocked door on August 25, 2000, it is apparent that security was lax.

On both occasions, grievant incorrectly documented two entries on one line and failed to properly correct an error. There was no evidence that the grievant had ever made such errors in the past. There is also no evidence to show that the errors were done to mislead or obfuscate the meaning. Rather, it appears that the grievant proofread her note and then added clarification in several areas. While the grievant knew better than to do this, for a first-time occurrence in seven years, such infractions should warrant no more than written counseling.

In summary, while some of the cited infractions are not so serious as to warrant disciplinary action, the grievant must nonetheless be held accountable for failure to properly account for the patient during a prolonged period of time on August 23, 2000 and for failing to provide increased security two days later when the same patient apparently just walked out an unlocked door. Under these circumstances, the disciplinary action imposed was warranted.

In issuing the Group III Written Notice, the agency contended that the grievant did not comply with the agency policy on Sexual Activity Between Patients.¹⁰ In the instant case, the initial allegation made by the female patient to the grievant was that a male patient had asked to touch her breasts and private parts. Asking such a question of an obviously unwilling recipient is not included in the policy’s definition of "sexual activity" because it did not stimulate sexual arousal. Neither does this question fall within the definition of inappropriate sexual behavior because the definition of inappropriate sexual behavior includes the term sexual activity. As there was no sexual activity (as defined in the policy), there could not have been any inappropriate sexual behavior. Therefore, it is concluded that the agency’s reliance on this policy is misplaced.

However, the statement by a known sexual predator to a sexually abused patient must be viewed as an allegation of abuse that falls within the purview of agency Policy 1017. The grievant failed to properly report this event to the Facility Director. The grievant said that she did not report the incident because it was "only an allegation." Policy 1017 includes Abuse Allegations in its title and makes multiple references throughout to allegations of abuse. The grievant said she understood this policy, therefore, it should have been clear to her that she had an obligation to report this incident, even though she had not witnessed it. Moreover, even when the Unit Director and the RN Coordinator told her the incident must be reported, grievant was initially reluctant to do so.

The grievant’s writing of her interdisciplinary note describing this incident was materially misleading. Her statements infer that the patient volunteered the comment about thoughts of past abuse. In fact, the patient only agreed with the leading statement made by grievant. Given the suggestibility of many patients in this institution, it is all too easy to plant ideas in their minds. While it would have been reasonable to ask the patient what she was thinking about, it was inappropriate to suggest the answer by asking a leading question. By failing to properly describe what occurred in the conversation, grievant falsely documented the incident, thereby potentially and materially misleading those who might later investigate the matter. Accordingly, some form of corrective action is necessary.

From the testimony elicited during the hearing, it appears that only the grievant was disciplined as a consequence of these incidents. However, the agency’s evidence reflects that others share responsibility for what occurred. The aide who had been assigned to check the door security in August did not fulfill his responsibility. Two people who had been assigned to monitor and periodically account for all patients failed to do so for at least 40 minutes. The Nurse Manager B was present when patient S made her allegation of abuse but failed to report the incident to the Facility Manager. However, an agency witness testified that everyone who is aware of abuse is required to report the incident, even if that results in multiple reporting of the same incident. No corrective or disciplinary action was taken with regard to any of these four employees.

There is no question but that the grievant, as charge nurse on the ward, bears primary accountability in these incidents. However, that does not exonerate others who similarly failed to fulfill their own responsibilities. Thus, based on the evidence, it appears that the grievant has been subjected to disparate treatment. This must be taken into account in evaluating mitigating circumstances (discussed below).

In this case, the Group II Written Notice was issued nearly four months after the offense and the Group III Written Notice was issued more than two months after the offense. Section VII.B of the DHRM Standards of Conduct Policy No. 1.60 addresses procedures regarding issuance of Written Notices and states, in pertinent part:

1. Timeliness

Management should issue a Written Notice as soon as possible after an employee’s commission of an offense. [Underscoring added]

The purpose of issuing disciplinary action as soon as possible is to promptly make the offender aware of both the specific offense and the consequences that flow from the offense. Delaying disciplinary action until several months after the fact lessens the impact of the action, and may suggest to the offender that the agency does not view the matter as being important enough to require prompt action. What occurred in each of the three incidents herein is largely undisputed, and the grievant’s failures in handling and documenting the incidents were known within 24 hours of each incident.

The agency’s only explanation for the extraordinarily lengthy delay in the issuance of these two disciplinary actions was that multiple layers of management reviewed the case. It is very common for state agencies to conduct such multilevel reviews and to obtain input from Human Resources before issuing disciplinary action. However, it is typical that such reviews generally require only a few days and rarely more than one or two weeks.

The Standards of Conduct policy provides for the consideration of mitigating circumstances in the implementation of disciplinary actions and states, in pertinent part:

1. conditions that would compel a reduction in the disciplinary action to promote the interests of fairness and objectivity; or
2. an employee’s long service or otherwise satisfactory work performance. ¹¹

The disciplinary action imposed for the August 2000 escapes cited false documentation and two types of technical documentation infractions. Because the Written Notice was not issued until December 2000, the grievant was not given formal notification of these deficiencies until well after the October 2000 incident. The disciplinary action imposed for the October incident cited the grievant for the same type of false documentation that occurred in August 2000. If these errors are viewed so seriously by the agency that disciplinary action is warranted, it is only fair that notice be given to the grievant before a second disciplinary action is imposed for the same type of infraction. If the agency had promptly issued the Group II Written Notice for the August 2000 incidents, it is entirely possible that the grievant might not have committed the same type of documentation infractions in October 2000.

Because the grievant was not promptly disciplined for the deficiencies in her documentation in August, she was not given a reasonable opportunity to correct her errors and avoid them in October. She was therefore prejudiced by the delay in administration of appropriate discipline. Moreover, as noted in the earlier discussion of disparate treatment, the record in this case reflects that only the grievant has been given corrective action, notwithstanding performance failures by at least four other people in connection with these incidents. These are circumstances that, in the interest of fundamental fairness, compel a reduction in the level of discipline imposed for the October 2000 incident.

The decision of the agency is hereby modified.

The Group II Written Notice issued on December 19, 2000 for incidents that occurred in August 2000 is AFFIRMED.

The Group III Written Notice and demotion issued on December 19, 2000 for the incident that occurred in October 2000 are VACATED. This Written Notice shall be removed from the grievant’s personnel file and retained by the agency pursuant to Section VII.B.4.b of the Standards of Conduct.

The agency shall issue a Group II Written Notice with demotion for failure to comply with established written policies pursuant to SWVMHI Policy 1017, with reference to grievant’s failure to immediately report alleged abuse to the Facility Director on October 12, 2000.

The two Group II Written Notices shall remain active pursuant to the guidelines in Section VII.B.2 of the Standards of Conduct.

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.

David J. Latham, Esq.
Hearing Officer