Issue: Qualification-Position/Classification; Working out of Class – Failure to Take Action; Ruling Date: June 7, 2001; Ruling #2001-028; Agency: Department of Health; Outcome: Qualified for Hearing

In the matter of Department of Health/ No. 2001-028

June 7, 2001

The grievant has requested a ruling on whether her October 18, 2000 grievance with the Department of Health (DOH) qualifies for a hearing. The grievant claims that the agency review process has been unfair. Additionally, she contends that she is performing the duties of a Dental Assistant C, but has not been compensated for performing those duties. For the reasons discussed below, this grievance qualifies for hearing.

The grievant is employed at DOH. In the latter part of 1999, DOH announced that it would allow employees who were classified as Dental Assistant B to submit completed questionnaires to management, which would be used to determine, on an individual basis, whether reallocation to Dental Assistant C was warranted. The grievant submitted her completed questionnaire in April of 2000.

In the summer of 2000, the grievant was asked to submit data to confirm the figures she included in her April questionnaire responses. The grievant provided additional information but was ultimately informed that she did not meet the criteria for reallocation.

The facts stated in the grievance essentially allege that the agency has misapplied or unfairly applied the reallocation policy. For an allegation of misapplication of policy or unfair application of policy to qualify for a hearing, there must be facts that raise a sufficient question as to whether management violated a mandatory policy provision, or whether the challenged action, in its totality, was so unfair as to amount to a disregard of the intent of the applicable policy. The grievant alleges that management misapplied the reallocation policy by failing to consider (1) the time she spent administering anesthesia and (2) the time she spent engaged in certain other four-hand dental procedures.

In late 1999, DOH began to evaluate employees who were classified as Dental Assistant B (DAB) for possible reallocation to Dental Assistant C (DAC). The criteria upon which reallocation was to be based was derived from the Guidelines for Application of the University Dental Assistant C Class Specification within the Department of Health (DAC Guidelines). From the DAC guidelines, DOH adopted two criteria that were required of a DAB in order to be reallocated. A DAB could be reallocated if she met either of the two criteria. First, a DAB was eligible for reallocation if she spent at least 25% of her time engaged in eligible four-handed dentistry (EFHD), which includes time spent in the following six procedures: endodontic, periodontic, prosthodontic, oral surgery, orthodontic, and pediatric restorative services.¹ Alternatively, a DAB was eligible for reallocation if she provided dental services to at least 5 patients per week who came from high risk patient populations comprised of (1) incarcerated or indigent patients; or (2) patients diagnosed as HIV+, or as having TB, or hepatitis.

DOH provided DABs with a copy of a Dental Assistant Questionnaire (DA Questionnaire) which included a copy of the DAC guidelines. The DA Questionnaires were designed to assist management with determining the percentage of time that DABs were (1) engaged in EFHD, and (2) providing treatment to high-risk patients. DABs were instructed to complete the DA Questionnaires and return them to management. Analysis of the completed DA Questionnaires was generally straightforward and essentially constituted tallying the percentages of time spent in the various categories of EFHD and the average number of high-risk patients seen on a weekly basis. In this case, the grievant was asked by management to submit information to support the percentages she estimated in her DA Questionnaire. She presented supporting documentation, but was nevertheless ultimately deemed ineligible for a reallocation.

While there appears to be little debate over DOH’s conclusion that the grievant did not provide care to a sufficient number of high-risk patients to warrant reallocation, there has been considerable controversy over the percentage of time the grievant spent engaged in EFHD. According to management, the grievant spent, at best, only 22.2 percent of her time performing EFHD. However, management’s analysis of the amount of time she spent engaged in EFHD may have been flawed in two respects. First, the agency’s computations did not include an allowance for the time she spent administering anesthesia, by one estimate 182 total hours over the course of the year. One reason the agency did not credit the grievant with the time she spent administering anesthesia was that there is no separate billable charge for administering anesthesia--the cost of anesthesia is included in the procedure for which anesthesia is required.² Also, the agency questioned the time allowance for each administration of anesthesia--the twenty minutes purportedly necessary to administer anesthesia appeared excessive. Accordingly, questions remain as to whether the grievant should have been credited with the time she spent administering anesthesia.

A second possible flaw with the process management used to evaluate the grievant for reallocation is that a review of the documents indicates that the grievant was not credited for the time she spent engaged in certain EFHD procedures. For instance, while the annual report for the clinic in which the grievant worked shows that the grievant’s clinic provided restorative service # 2162 (a restorative polishing procedure) on 18 occasions, the grievant was not credited for any time engaged in this work.³ Similarly, the annual report indicates that the grievant’s clinic performed the unspecified periodontic procedure (#4999) on 47 occasions. However, the grievant apparently did not receive any credit for this work either. The grievant claims that all but one of these procedures should have been reported as procedure #4346 (a S & C procedure) which typically takes approximately 40 minutes to complete.⁴ It appears that other procedures, including but not limited to procedure #2999 (an unspecified restorative procedure-often a double base) and #7999 (an unspecified oral surgery procedure-often sutures) appear to have been excluded from the agency’s calculations. The agency stated that these procedures were not included because it did not have a time standard to apply to these procedures.

Accordingly, there appears to be sufficient questions of fact remaining to warrant further examination by a hearing officer as to whether the reallocation study of the grievant was properly conducted and whether she is performing the duties of a Dental Assistant C. Therefore, the grievance is qualified for hearing.

For additional information about the actions that the grievant may take as a result of this ruling, please refer to the enclosed sheet. Please note that this determination cannot be construed as a finding that the agency misapplied or unfairly applied applicable policy or procedure. Only a hearing officer can make such a determination, after a full exploration of the facts. Even if the hearing officer finds that the agency misapplied the state’s classification and reallocation policies, the hearing officer may only direct the agency to apply those policies correctly and to compensate the grievant, if appropriate, in accordance with policy.⁵ Further, a hearing officer may not order the agency to classify the grievant’s position at a certain level, award monetary damages, or grant any other form of relief.⁶ A hearing officer also may not substitute his judgment for that of management’s regarding the correct classification level of an employee’s position, nor may this Department.⁷

Neil A.G. McPhie, Esquire
Director

William G. Anderson, Jr.
Employment Relations Consultant