EDR Ruling #2001-055

Issue: Compliance; Documents, reconsideration; Ruling Date: May 16, 2001; Ruling #2001-055; Agency: Department of Mental Health, Mental Retardation and Substance Abuse Services; Outcome: Ruling stands; hearing officer in compliance

COMMONWEALTH of VIRGINIA

Department of Employment Dispute Resolution

COMPLIANCE RULING OF DIRECTOR

In the matter of the Department of Mental Health, MentalRetardation and Substance Abuse Services

May 16, 2001 Response to Agency’s Request for Reconsideration of EDR Ruling Dated March 23, 2001 (Ruling #2001-QQ)

EDR Ruling #2001-055

The Department of Mental Health, Mental Retardation, Substance Abuse Services (DMHMRSAS) has requested reconsideration of this Department’s March 23, 2001 compliance ruling, and a clarification of some of the facts recited in that ruling, which the agency asserts are not consistent with the documentation in the grievance record. For the reasons discussed below, the March 23, 2001 ruling will stand.

DISCUSSION

In this case, the grievant had requested in pertinent part that the agency provide him with documentation that would reflect the "wound care practice" of the physician whose review of the grievant’s patient care led to the grievant’s discipline. While the March 23, 2001 ruling did not recite each and every communication between the grievant and the agency on the issue of wound care practice, it did state that during this Department’s investigation:

human resource management responded that although this information was not readily available within its specific division, the information could be obtained through other management channels. Significantly, the agency did not claim that the requested information is irrelevant, privileged, confidential, or that it does not exist; they simply have not made it available to the grievant.

The agency’s reconsideration request states that the above quoted language is erroneous, because it had indeed informed the grievant on two separate occasions (via a November 15, 2000 letter and a November 28, 2000 e-mail) that documents related to the wound care practice of the reviewing physician "did not exist" and were "not available" nor relevant.

This Department reviewed the agency’s November 15^th and November 28^th responses, along with the remainder of the parties’ submissions, prior to our March 23^rd ruling. We believe that the agency’s reliance on these responses is misplaced -- the responses were not directed to the broad category of the reviewing physician’s "wound care practice," as ultimately requested by the grievant and before us at the time of the ruling.¹ Rather, it appears that these responses were directed to the grievant’s previous, more narrowly defined request for documents related to the reviewing physician’s treatment of "diabetic foot ulcers."²

Thus, while the November 15^th and 28^th responses had informed the grievant that documents related to diabetic foot ulcers did not exist, we are unaware of anything in the grievance record now or prior to our March 23^rd ruling which demonstrates that the agency had informed the grievant that documents related to the physician’s general wound care practice did not exist. Indeed, during the investigation for the March 23^rd ruling, our investigator understood the hospital’s human resources officer to state that although the "wound care practice" documentation was not readily available, it could be obtained through management channels. Moreover, the various responses by management to the grievant and this Department’s investigator regarding these related requests ("I am not able to provide information," "no such record," "as far as I know, this information is not available," "Central Office may have this information or it may be possible for the Medical Director to get the information") appeared inconsistent and did not reflect whether or not a reasonable search had been conducted for any general wound care documents.

Granted, there may have been some understandable confusion on the agency’s part resulting from the grievant’s expansion of his document request to general "wound practice" and an unintended failure by the agency to distinguish between that request and the earlier one related to "diabetic foot ulcers." Nevertheless, in light of all the above, we must stand by our March 23^rd conclusion that documents related to the general "wound care practice" of the reviewing physician had not been provided to the grievant, and that the agency had not advised the grievant (nor our investigator) that the requested "wound care practice" documents were irrelevant, privileged, confidential or nonexistent.

Therefore, as previously directed, the agency must conduct a reasonable search for any documents related to the general wound care practice of the reviewing physician, or provide a specific, written explanation as to why such documentation will not be provided. Please refer to our prior ruling for specific guidance. Additional issues concerning the production of documents should be submitted to the hearing officer at his or her appointment.

Neil A. G. McPhie, Esquire
Director

Tracey D. Watkins
Employment Relations Consultant

¹ By copy of a November 28, 2000 e-mail, the grievant notified the agency head of the agency's alleged failure to provide documents related to the reviewing physician's wound care practice.
² More specifically, the grievant's document request originated in an October 30, 2000 e-mail to the facility's human resources officer, essentially requesting information on the number of "diabetic foot ulcers" that the reviewing physician had "personally cared for in the past 12 months" and any supporting documentation. The agency's reconsideration request correctly indicates that the hospital director informed the grievant through a November 15, 2000 letter that "there is no such record." In a November 17, 2000 e-mail to another member of management (a doctor employed by the agency who had been copied on the grievant's October 30th request), the grievant expanded the scope of his October 30th request from documents dealing only with "diabetic foot ulcers" to documents illustrating the reviewing physician's "wound care practice, in general," including any supporting patient records, redacted for patient confidentiality concerns if necessary. In a November 28, 2000 e-mail to this other member of management, the grievant again requested to be provided with any documentation that would show the reviewing physician's personal treatment of patient wounds, including any related patient records. Later that same day, this manager informed the grievant by e-mail that the agency's "Office of Health and Quality Care does not have information on the number of diabetic foot ulcers [that the reviewing physician] has treated, and as far as I know this information is not available, not is relevant to the findings in this case." The manager's e-mail did not address the grievant's broader request for documents related to the reviewing physician's general wound care practice.