Issue: Group II Written Notice (failure to comply with established written policy); Hearing Date: June 5, 2001; Decision Date: June 6, 2001; Agency: Department of Corrections; AHO: David J. Latham, Esquire; Case No.: 5206

DEPARTMENT OF EMPLOYMENT DISPUTE RESOLUTION

DIVISION OF HEARINGS

DECISION OF HEARING OFFICER

In the matter of Department of Corrections Case Number 5206

Hearing Date: June 5, 2001
Decision Issued: June 6, 2001

APPEARANCES

Grievant
Two witnesses for Grievant
Representative for Agency
Nine witnesses for Agency

ISSUES

Did the grievant’s actions on December 21, 2000 warrant disciplinary action under the Standards of Conduct? If so, what was the appropriate level of disciplinary action for the conduct at issue?

FINDINGS OF FACT

The grievant filed a timely appeal from a Group II Written Notice issued on January 26, 2001 for failure to comply with established written policy because he obtained from an outside physician consultant a copy of an inmate’s confidential medical consultation and gave a copy to the inmate. During the second step of the grievance, the Warden offered to reduce the discipline to a Group I Written Notice but the grievant did not accept the offer. The parties did not resolve the grievance at the third resolution step and the agency head subsequently qualified the grievance for a hearing.

The Department of Corrections (hereinafter referred to as agency) has employed the grievant as a rehabilitation counselor for 15 years. His overall performance evaluation met expectations during the most recent performance cycle that ended on November 31, 2000.

There are several institutional operating procedures (IOP) that bear on this case. The policy on Medical Authority and Autonomy defines qualified health care personnel to include physicians, dentists, dental hygienists, mental health professionals, nurses, physician assistants and others who by virtue of education and experience are permitted by law to evaluate and care for patients.¹ Institutional counselors are not included in this definition. Inmates have daily access to request medical assistance and there is an infirmary that provides 24-hour nursing care for inmates who require observation but do not require admission to an acute care hospital.²

The IOP that addresses medical records states, in pertinent part:

The Department of Corrections has also promulgated a procedure that addresses rules of conduct governing employee relationships with inmates. That policy states, in pertinent part:

The grievant participated in training on March 23, 1999 in which the above procedures were discussed. The handout for the class quoted in its entirety the paragraph on confidential information.⁵

As a rehabilitation counselor, grievant’s responsibilities include ensuring that inmates receive counseling services, developing treatment objectives for those who require vocational therapy, preparing classification documents for hearings, facilitating and coordinating treatment programs, facilitating visitation and family contacts, preparing progress reports and conducting individual counseling.⁶ His responsibilities do not include medical care or medical treatment of inmates. The grievant does not have any medical education or training.

On February 22, 1998, grievant received a Group I Written Notice because he gave an inmate a copy of a medical form after being told by management not to do so. On April 4, 1997, an associate warden counseled grievant in writing that he should not permit an inmate to have access to any portion of their institutional record unless grievant first consults with the Records Manager and follows the instructions given.

One of the inmates assigned to grievant had begun experiencing a tremor disorder during the spring of 2000. During April and May 2000, the inmate had passed out on more than one occasion and was taken to the infirmary. The inmate complained of neck pains, blurred vision and headaches. Two physicians examined the patient and performed laboratory tests in an attempt to determine the etiology of his symptoms. From May 24 to July 6, the inmate was kept in the infirmary so that medical staff could observe the symptoms whenever they occurred. A CT scan was performed but the results were negative.

On July 21, the inmate was referred to a neurologist for examination outside the facility. Because the inmate was able to converse normally whenever he experienced tremors in his arm, it could not be concluded that he was experiencing seizures. There is a history of Parkinson’s Disease in the inmate’s family, which suggested that this could be a possible source of the tremors. Nonetheless, the neurologist recommended an anti-seizure medication as a trial to determine whether it would have any effect on the tremors.

On August 9, 2000, the inmate mentioned to grievant that he had still not received the medication recommended by the neurologist. The inmate had already been on sick call, had filed informal complaint forms and emergency grievance forms but the medical department told him that it had not received the neurologist’s consultation report and recommendations. Grievant spoke with his unit manager and with nurses in the infirmary but no one could locate the neurologist’s consultation report that contained the medication recommendation. Grievant then called the neurologist’s office and asked them to fax the consultation report to grievant. He gave a copy to the Medical Administrator’s secretary and within one day, the inmate received his medication.

During the fall of 2000, the inmate continued to complain of head and neck pain and tremors in his arm. Radiology examination revealed weak degenerative changes in the inmate’s cervical spine that probably accounted for the head and neck pain. An electroencephalogram (EEG) in November revealed no evidence of epilepsy. On December 12, 2000, the inmate was again examined by the neurologist who diagnosed a mild left ulnar neuropathy and prescribed a different medication. The inmate’s medical condition, while of significant concern, was not, and is not a life-threatening condition.

On December 21, 2000, the inmate advised grievant that he had not yet received the new medication suggested by the consultant. Grievant called the office of the consultant, spoke with a secretary stating that he was involved in the inmate’s care and requested that the physician’s consultation report be faxed to grievant. Upon receipt of the faxed report, grievant made a photocopy and gave it to the inmate. He did not follow the required procedure to charge the inmate for a copy of the record. This matter was assigned to an investigator on January 4, 2001. Grievant acknowledged to the investigator that he had taken these actions, stating that he did so in an effort to assist the inmate to obtain his medication.

APPLICABLE LAW AND OPINION

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.⁷The 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.⁸

To establish procedures on Standards of Conduct and Performance for employees of the Commonwealth of Virginia and pursuant to §§ 2.1-114.5 and 53.1-10 of the Code of Virginia, the Department of Personnel and Training9 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.

The Department of Corrections (DOC) has promulgated its own Standards of Conduct patterned on the state Standards, but tailored to the unique needs of the Department. Section 5-10.16 of the DOC Standards of Conduct addresses those offenses that include acts and behavior which are more severe in nature and are such that an additional Group II offense should normally warrant removal. One example of a Group II offense is failure to follow a supervisor’s instructions, perform assigned work or otherwise comply with applicable established written policy. ¹⁰

Grievant contends that one of his responsibilities is to assist inmates when they encounter problems. The grievant’s Performance Plan states that conducting individual counseling is a major function of his position. The expectation for that function does not explain what type of counseling is to be conducted. However, it is implicit that most counseling would relate to rehabilitation of the inmate as well as case management, specific treatment objectives and ongoing evaluation of inmate progress. With regard to inmate medical problems, the performance plan neither mentions nor excludes such counseling.

However, it is reasonable to assume that inmates might raise medical issues with their counselors, especially if they perceive that the medical staff is not properly addressing their medical problems. It is also reasonable that a counselor would attempt to provide appropriate advice to the inmate in such a situation. The agency has not disputed the appropriateness of providing counsel to an inmate. The agency’s position is that grievant went beyond giving advice when he actively intervened in the medical process and circumvented normal procedures to obtain the consultation report.

It is undisputed that grievant obtained a confidential medical report relating to an inmate’s condition. The grievant had no right to possess or view that report since such information is confidential between the inmate and his physician. Nonetheless, it can reasonably be argued that the inmate waived his right of confidentiality because he acquiesced in the grievant’s decision to call the neurologist. However, the inmate’s implicit waiver of confidentiality does not give grievant authority to obtain this report by subterfuge. Grievant told the neurologist’s secretary that he was "involved in the inmate’s care." This statement was clearly designed to infer to the doctor’s secretary that grievant was involved in the inmate’s medical care, when in fact, grievant was not involved in the medical care of any inmates. Thus, by misrepresenting his role, grievant managed to obtain a medical report that would not otherwise have been provided to him.

Grievant argues that, at the time he received the faxed consultation report, it was not part of the inmate’s record and that the policies cited above are not applicable. This argument is self-serving and patently transparent. The report was ordered by the correctional facility, was paid for by Department of Corrections and is obviously a part of the inmate’s records. The fact that the report had not been physically placed in the inmate’s record jacket is irrelevant. Grievant also argues that there is no policy that specifically states that a counselor is not permitted to call a medical consultant physician. By the same token, however, there is no policy that states that a counselor’s duties include contacting physician consultants. Moreover, an objective reading of all the referenced procedures and policies makes it abundantly clear that the medical treatment of inmates is the responsibility of medical professionals, not rehabilitation counselors.

Grievant finds it strange that he is being disciplined for the December 21, 2000 incident when he was not disciplined for doing the same thing in August 2000. The agency can only take disciplinary action regarding those offenses of which it becomes aware. The evidence indicates that none of the wardens were aware until January 2001 that grievant had obtained a consultation report from the neurologist in August 2000. Because that event had happened several months earlier, the agency apparently chose to focus its disciplinary action on the most recent occurrence. Merely because discipline was not given for the August occurrence does not change the fact that grievant’s actions violated agency procedures.

Grievant correctly notes that he acted only to help the inmate obtain his medication. That is unchallenged by the agency and the Hearing Officer finds no evidence that would contradict grievant on this point. It appears that grievant was, indeed, acting solely to assist the inmate and that grievant did not disclose the confidential information to anyone else. Grievant acted only with the best of intentions.

Grievant was especially concerned because the institution’s medical personnel did not immediately implement the recommendations of the neurologist consultant. Specifically, medication was not promptly provided to the inmate upon his return from the consultation, and the consultant’s suggestion that an EEG be performed was not immediately acted upon. The primary physicians responsible for the inmate’s care are those employed by the institution. When the opinion of a consultant is sought, such opinions are advisory only. As noted on the consultation report, the consultant only recommended treatment and/or medication. It is up to the institution’s physician to accept or reject the consultant’s recommendations. While deference is usually given to the recommendation of a specialist consultant, the primary care physician must make the final decision about what treatment should be provided and when such treatment should be initiated.

Grievant acknowledged that he has no medical education or training. Accordingly, it is inappropriate for him to intervene in the medical decisions being made about the inmate’s medical treatment. However, it is reasonable for him to inquire, through proper channels, on behalf of the inmate if it appears that paperwork has been misplaced. The institution’s Medical Administrator testified that grievant had, in the past, contacted him in similar situations involving other inmates and that prompt corrective action was taken in each case. Thus, grievant knew that he had available an avenue by which he might have obtained a prompt remedy in this case. Unfortunately, he elected not to speak directly with the Medical Administrator and chose to take unilateral action by directly contacting the neurologist’s office.

The Hearing Officer empathizes with the grievant in his desire to assist an inmate who was seemingly a victim of misplaced paperwork. However, while grievant’s heart may have been in the right place, he took actions that were contrary to procedure and policy. Grievant could have spoken directly with the Medical Administrator, who had been effective in remedying similar problems in the past. Grievant could also have escalated his concerns, in writing through his own chain of command. When the unit manager was unresponsive, grievant could have contacted an assistant or associate warden.

Unfortunately, grievant overstepped his bounds when he directly intervened in the medical process by 1) calling a physician consultant outside the facility, 2) misrepresenting his relationship with the inmate and 3) providing copies of inmate records without contacting the Medical Records manager. Grievant had been previously counseled on one occasion and had also been given a Written Notice in a second similar incident. Therefore, considering his knowledge of policy, prior training and previous warnings, grievant knew, or reasonably should have known, that his actions on December 21, 2000 were contrary to established written policy.

DECISION

The disciplinary action of the agency is affirmed.

The Group II Written Notice issued to the grievant on January 26, 2001 for failure to comply with established written policy is AFFIRMED. This Written Notice shall be retained in the grievant’s personnel file for the period specified in Section 5-10.19.A of the Standards of Conduct.

APPEAL RIGHTS

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.

Judicial Review of Final Hearing 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