COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. Division of Administrative Law Appeals

Deborah Herst Hill,

Petitioner

v. Docket No. CR-07-605

State Board of Retirement,

Respondent


Appearance for Petitioner:

Richard F. Comenzo, Esq.

1896 Beacon Street
Brookline, Ma 02445


Appearance for Respondent:

Emily J. Robbins, Esq.

State Board of Retirement
One Ashburton Place, 12th Floor
Boston, MA 02108-1607

Administrative Magistrate:

Richard C. Heidlage, Esq.

SUMMARY OF DECISION

Petitioner, a clinical nurse employed by the Department of Mental Retardation in one of its Area offices, is not entitled to Group II status. Her regular and major duties do not require her to have care, custody, instruction or other supervision of persons who are mentally ill or mentally defective. Rather, her primary role is to assist Area Service Coordinators in managing the medical care being provided by third-party providers.

DECISION

Pursuant to G.L.c.32, §16(4), the Petitioner, Deborah Herst Hill, is appealing the July 27, 2007 decision of the Respondent, State Board of Retirement (the "Board"), denying her request for classification in Group II pursuant to M.G.L. c. 32, § 3(2)(g). Prior to the hearing, the Respondent filed a Motion to Dismiss on the basis that the appeal was filed more than fifteen days following the Petitioner's receipt of the board's decision and therefore was not timely under M.G.L. c. 32, § 16(4). A hearing was held on May 1, 2009.

The following documents were submitted by the parties and entered as evidence in the record:

1. 7/27/07 letter from Retirement Board notifying Petitioner that the Board had classified Petitioner's position as Group 1;

2. 9/10/07 Notice of Appeal;

3. Group Classification Questionaire with DPA Form 30 attached;

4. MNA Employee Performance Review Form, Evaluation Year 2006/7;

5. 5/20/07 Request for Group 2 Nursing Classification;

6. 4/24/2007 Memo from Susan W. Lerner to SBR;

7. Notice of Receipt of Appeal;

8. 4/7/2009 Memo from Petitioner

9. Time log, weeks ending August 11 and August 18, 2007;

10. 4/6/09 Memo from Susan W. Lerner;

11. Fax cover sheet to Petitioner from Karen Richardson, SBR.

The Petitioner submitted a Pre-Hearing Memorandum which was marked for identification as Exhibit A. The Respondent submitted a Pre-Hearing Memorandum which was marked for identification as Exhibit B.

Petitioner moved to admit four letters which were marked P-3 through P-6 in support of the Petitioner's appeal. These letters were submitted by parties who were not present to testify and I excluded them. Respondent moved to admit the Petitioner's Motion to Continue, marked R-1 for identification. This document was also excluded from the hearing record although it is part of the record on appeal.
At the commencement of the hearing I informed the parties that Exhibit 8, after being identified by the Petitioner and adopted as her testimony, would be treated as the Petitioner's direct testimony. Exhibit 10, after being identified by Ms. Lerner and adopted as her testimony, was treated as her direct testimony. The Petitioner and Susan Lerner testified.


FINDINGS OF FACT

1. The Board's Decision is dated, July 27, 2007 and addressed to the petitioner at 582 South Street, Wrentham, MA 02093. Exhibit 1. By this time, the Petitioner had sold this residence and moved. Petitioner's testimony. Petitioner testified that she did not receive the notice of board action until she received it by fax from Karen Richardson, a Board staff person, sometime in early August.

2. Exhibit 11 is a fax cover sheet from Karen Richardson on behalf of the State Board. The date/time header shows the fax was sent on August 1, 2007. I find that this is the first time petitioner received actual notice of the Board's decision.

3. The Petitioner's appeal was received by the Contributory Retirement Appeal Board on August 16, 2007.

4. At the times relevant to this appeal, the Petitioner was employed by the Department of Mental Retardation (DMR). The Petitioner's position that is the subject of this appeal is RN IV Community Nurse (RN-4 - Community - DMR/Metro Region) in the DMR Metro Boston Region (Region 6). Exhibit 3; Petitioner's testimony.

5. The Introductory Overview on the DMR's website states:

Introductory Overview

Massachusetts has a comprehensive system of specialized services and supports to give individuals with mental retardation and developmental disabilities the opportunities to live the way they choose. The Department of Mental Retardation (DMR) is the state agency that manages and oversees this service system.

Every day, DMR provides these specialized services and supports to approximately 32,000 adults with mental retardation and children with developmental disabilities. The types of specialized services and supports include day supports, employment supports, residential supports, family supports, respite, and transportation. DMR provides these services through facilities and community-based state operated programs and by contracting with 235 private provider agencies.

Emphasis added.

6. The DMR is organized into a Central Office, Regional Offices and Area Offices. The Petitioner reported to Susan W. Lerner who is the Regional Health Care Coordinator for the Metro-Boston Region. Petitioner's testimony. In the relevant time period, the Metro-Boston region was divided into four Area offices. Petitioner was assigned to the clinical team in the Newton South Norfolk Area office. Petitioner's testimony; Exibits 6, 8.

7. Department of Mental Retardation Area Offices are responsible for managing and monitoring the services DMR provides or arranges for individuals served by DMR, and their families who live in the towns covered by the respective Area Office. Functions performed at an Area Office include:
• information and referral
• service coordination/case management
• service planning, prioritization and arrangements
• complaint resolution; and
• citizen and family involvement
The staff located in the Area Offices include: the Area Director, Assistant Area Director, Area Clinical staff, Program Monitors and Service Coordinators. DMR Website; Petitioner's testimony.

8. Newton South Norfolk Area office was staffed by a Director and Assistant Director with administrative support staff, a clinical staff, 35 Service Coordinators and two Service Coordinator supervisors and a Program Monitor. Petitioner's testimony.

9. As a general matter, the DMR does not itself provide services to which eligible persons are entitled. Rather, it arranges for and pays for such services. Petitioner's testimony. The job of the Service Coordinators is to monitor and manage the services provided to eligible individuals in the geographic area served by the Area Office through "service planning, prioritization, coordination, and monitoring a vast array of residential, vocational, and support services . . . ." Petitioner's testimony; Exhibit 8 at p. 3. Depending on the individual, these services may include residential, medical, vocational or other services. Id. The Service Coordinators carry out their responsibilities by preparing and implementing an Individual Service Plan for each eligible person assigned to them and monitoring the clients and providers to ensure that promised services are being provided. Petitioner's testimony.

10. The Clinical Staff in the Newton South Norfolk Area office was made up of a Licensed Social Worker, a Psychologist or Behaviorist, and a Registered Nurse, the Petitioner. The job of the clinical staff was to provide support to the Service Coordinators as requested in a referral from a Service Coordinator. Petitioner's testimony; Exhibit 8 at p. 3. Petitioner described her duties in four general categories, i.e. providing direct health care, support, and education; comprehensive clinical assessments and health plan recommendations; health education and training to individuals, families and staff; and participation in clinical assessments for possible nursing home discharges; Area Office based nursing home planning groups; and administrative duties and meetings. Exhibit 8 at pp. 3 - 9. The direct provision of health care, support and education "was typically in the context of teaching and modeling appropriate technique to the individuals themselves, support staff, or family members." Id. at p. 4.

11. The Form 30 Detailed Statement of Duties and Responsibilities for the Petitioner's position describes the duties of the Petitioner's position as follows:

1. Provides education, consultation, and training to individuals, families, DMR and provider staff to promote health and safety.

2. Performs a full range of duties in monitoring and assessing the health status of individuals, families and population as well as defining a plan of care and providing nurse case management and health education when necessary.

3. Provides direction, guidance or training to other personnel in providing care and treatment to individuals.

4. Participates in development of, or prepares comprehensive clinical assessments and health-related recommendations through chart and medication review, interviews and observation; preparation of a formal written report.

5. Participates in area office risk reviews: special assignments such as quality improvement, evaluation and identification of potential incidents for individuals who may be at risk for rapid status change. Prepare reports as needed/appropriate prior to and post review.

6. Support individuals, families and teams via provision of communication to and coordination among medical and psychiatric providers. May accompany individuals on medical or psychiatric visits. Assists individual and team to implement treatment goals, review interventions, and evaluate outcomes.

7. Develops health care plans for individuals receiving residential supports. Evaluates and advocates for health resources necessary to meet individual, family, and community health needs.

8. Provides individual-specific trainings, e.g., post-operative cataract care; diabetes management/care of the person with a seizure disorder. These trainings occur across a wide variety of community settings.

9. Provides assistance in DPPC investigations and action plan development.

10. Assists in health ISP and residential support planning.

11. Provides written reports regarding health/psychiatric needs of individuals residing in nursing homes, inclusive of PASARR Clinical Reviews.

12. Provides case review, discharge planning needs analysis for individuals leaving acute care, rehabilitation or skilled nursing settings.

13. Assists with home safety assessments.

14. Provides consultation to staff of the Regions QA program regarding health and safety issues.

15. Works with other regional clinicians in treatment plan and training development.

16. Ensures appropriate evaluation and treatment of individuals with Alzheimer's disease.

17. Provides assistance and consultation to agency-based nursing staff.

18. Provides written reports for DMR attorneys, administrative staff and the court as needed/requested.

19. Assist in policy development as needed/requested.

20. Acts as a liaison/advocate during acute care hospitalizations; gathers/provides information through hospital visits, chart reviews, staff and participation in hospital and discharge planning meetings.

21. Provides consultation regarding DNR orders, end-of-life issues

22. Keeps updated on MAP regulations and provides consultation and technical assistance as requested.

23. Performs mortality reviews.

Exhibit 3.

12. Petitioner's supervisor, Susan Lerner, stated that "the role of the RN IV in the community is defined as per the Form 30." Exhibit 6.

13. Petitioner's services were provided to or on behalf of persons with mental retardation (also referred to as developmental disability and more recently termed intellectual disability); autism spectrum disorder; and/or mental health/psychiatric illness (biologically based illnesses such as major depression, anxiety disorders, bipolar illness), including many with behavioral challenges.

14. In performing her duties, Petitioner applied the philosophy that "supporting and optimizing the health and safety of individuals with intellectual and developmental disabilities is best done when closely, actively and directly involved with the individuals themselves and the staff and families, guardians, or friends who care for them and support them." Exhibit 5. Her supervisor, Susan Lerner, testified that ". . . Deborah's professional nursing philosophy and best clinical practices were always focused in the area of "hands on" direct nursing service delivered in an atmosphere of trust built by long hours of face to face communication, interaction, advocacy and concrete modeling and practical instruction, without regard to challenges or risks she may face secondary to health or behavioral status of individual referred . . . ." Exhibit 10 at p. 2.

15. The petitioner testified that she spends more than half of her time "in direct support, consultation, advocacy, and education to those for whom I have received referrals." Exhibit 5. In Exhibit 5 she further states that

In reviewing my actual timesheets over the past year with my clinical supervisor, we determined that - in a typical week - I spend about ten to twelve hours on average in the office (email, phone calls, writing reports, and scheduled meetings). The remainder of my time is spent in travel and in providing direct nursing support and consultation to the individuals supported by the Newton/South Norfolk Area Office on whom I've received referrals.

16. Exhibit 9 is an example of the type of timesheet referred to in Exhibit 5.

17. The Petitioner testified, and I find, that she performed her duties at times by direct contact with and care of persons who are mentally ill or mentally defective. Direct provision of these nursing services was typically in the context of teaching and modeling appropriate techniques to the individuals themselves, support staff, or family members. Exhibit 8 at p. 4.

18. There was no reliable evidence introduced to establish the breakdown between the time the Petitioner spent in direct, hands-on patient care and instruction and other services. Exhibit 9, which was introduced as an example of the type of time sheet used by the Petitioner, and which both she and Ms. Lerner testified was the basis for their estimate that more than 50% of her time was spent in direct patient care, shows only total time for each day and makes no breakdown between direct patient contact/care and other activities on behalf of a service recipient. In Exhibit 5, the Petitioner stated to the Board that "[i]n reviewing my actual timesheets over the past year with my clinical supervisor, we determined that - in a typical week - I spend about ten to twelve hours in average in the office (e-mail, phone calls, writing reports, and scheduled meetings). The remainder of my time is spent in travel and in providing direct nursing support and consultation to the individuals supported by the Newton/South Norfolk Area Office on whom I've received referrals." Exhibit 5 at p. 1. Emphasis added. Ms. Lerner testified that the review of the time breakdown was made with Petitioner only in preparation for the hearing and that there was no contemporaneous record of the time spent in direct, hands-on care. She admitted that one could not tell from the time sheets how much time was actually spent in any particular activity. Lerner Testimony.

DISCUSSION

Timeliness of Appeal

M.G.L. c. 32, § 16(4) provides that a person aggrieved by a decision of a retirement board "may appeal to the contributory retirement appeal board by filing therewith a claim in writing within fifteen days of notification of such action or decision of the retirement board . . . ." I have found that the Petitioner first received notice of the Board's decision by telecopy on August 1, 2007. The appeal was received by the Division on behalf of the Contributory Retirement Appeal Board on August 16, 2007. Exhibit 2. The appeal was therefore timely and the Board's Motion to Dismiss on this grounds is denied.

Merits of the Appeal

The Petitioner is not entitled to Group 2 Status.

M.G.L. c. 32, § 3(2)(g) provides, in relevant part, that

. . . the board shall classify each member in one of the following groups:

Group 2. -- . . . employees of the commonwealth . . . whose regular and major duties require them to have the care, custody, instruction or other supervision of . . . persons who are mentally ill or mentally defective . . . .

The Petitioner has the burden of proof on each element necessary to establish entitlement to a benefit under Chapter 32. See Blanchette v. Contributory Retirement Appeal Bd., 20 Mass.App.Ct. 479, 483, 481 N.E.2d 216, 219 (1985).
In determining whether the Petitioner's "regular and major duties" "require" her "to have the care, custody, instruction or other supervision" of the relevant population, these duties must be considered in the overall context of her employer's, the DMR's, approach to the performance of its mission. I have found, consistent with the DMR's description of its mission as set out in it website, that the DMR "manages and oversees" the Commonwealth's "comprehensive system of specialized services and supports" for individuals with mental retardation and developmental disabilities. Findings of Fact, ¶ 5. The services themselves are provided "through facilities and community-based state operated programs and by contracting with 235 private provider agencies." The Petitioner testified that her job is to support the Area Office Service Coordinators and that their job "is to monitor and manage the services provided to eligible individuals in the geographic area served by the Area Office through 'service planning, prioritization, coordination, and monitoring a vast array of residential, vocational, and support
services . . . .'" Petitioner's testimony; Exhibit 8 at p. 3. In this context, it is clear that the duties and responsibilities defined in the Petitioner's job description (Exhibit 3 and Findings of Fact, ¶ 11) are not focused on "providing" nursing services herself, but rather in providing support to the Area Service Coordinators in managing the nursing care being provided by the DMR's vendors, such as nursing homes, doctors, nurses and other medical professionals being paid by the DMR to provide medical services. The first four duties listed in the Form 30 are illustrative of this point:

1. Provides education, consultation, and training to individuals, families, DMR and provider staff to promote health and safety.

2. Performs a full range of duties in monitoring and assessing the health status of individuals, families and population as well as defining a plan of care and providing nurse case management and health education when necessary.

3. Provides direction, guidance or training to other personnel in providing care and treatment to individuals.

4. Participates in development of, or prepares comprehensive clinical assessments and health-related recommendations through chart and medication review, interviews and observation; preparation of a formal written report.

The focus of these duties is not direct patient nursing care. Rather, it is comprehensive management of that care. Accordingly, Petitioner's "regular and major duties" do not "require" her "to have the care, custody, instruction or other supervision" of persons who are mentally ill or mentally defective.

Even if this were not true, Petitioner has not met her burden of proof to establish that direct "care . . . instruction and other supervision" are her "major" duties. While Petitioner's supervisor, Susan Lerner, testified that Petitioner spent more than 50% of her time in "direct service to individuals in the community" (Exhibit 6), she admitted that this determination was made with Petitioner using time sheets such as Exhibit 9 in preparation for the hearing. She admitted that there was no contemporaneous record of the time spent in direct, hands-on care and that one could not tell from the time sheets how much time was actually spent in such activities. As such, both her testimony and that of the Petitioner as to the time spent in direct care was wholly speculative. There is no other evidence of the amount of time spent on such direct activities and I conclude that the Petitioner has not met her burden of proof on this issue.

For these reasons, the decision of the Respondent Board is affirmed.
SO ORDERED.


DIVISION OF ADMINISTRATIVE
LAW APPEALS

/s/ Richard C. Heidlage
First Administrative Magistrate

DATED: June 18, 2009