COMMONWEALTH OF MASSACHUSETTS


Suffolk, ss. Division of Administrative Law Appeals


Elizabeth Hanchett,

Petititioner

v. Docket No. CR-07-659
Dated: February 11, 2010


State Board of Retirement,

Respondent

Appearance for Petitioner:

Thomas D. Downey, Esq.

Pellegrini, Seeley, Ryan & Blakesley, P.C.
1145 Main Street 0 P.O. Box 30009
Springfield, MA 01103

Appearance for Respondent:

Melinda E. Troy, Esq.

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

Administrative Magistrate:

Sarah H. Luick, Esq.

SUMMARY OF DECISION

Petitioner is not entitled to a Group 2 job classification upon retirement from her job at Western Massachusetts Hospital as a nursing assistant I rendering direct patient care primarily in a unit with patients who have intermediate, end of life, and respite care needs. Even with as many as four or five Alzheimer's patients and possibly some mentally retarded respite care patients out of the nineteen total patients in her unit, she has not proven that her regular and major duties are providing direct care to predominately mentally ill or mentally defective persons as required for a Group 2 job classification. The decision of the respondent giving her a Group 1 job classification is affirmed.

DECISION

Pursuant to G.L. c. 32, § 16(4), petitioner, Elizabeth Hanchett, is appealing the August 31, 2007 decision of respondent, State Board of Retirement, denying her request for a Group 2 job classification, and instead giving her a Group 1 job classification for her nursing assistant I position. (Ex. 2.) The appeal was timely filed. (Ex. 1.) A hearing was held November 18, 2009, at the offices of the Division of Administrative Law Appeals (DALA), 98 North Washington Street, 4th Floor, Boston, MA 02114, pursuant to G.L. c. 7, § 4H.

Various documents are in evidence. (Exs. 1 - 7.) Both parties filed pre-hearing memoranda. (Exs. A & B.) One tape was used. Petitioner testified. Both parties made arguments on the record.

FINDINGS OF FACT

1. Elizabeth Hanchett, d.o.b. 8/9/51, began employment at Western Massachusetts Hospital (WMH) in or around 1986 as a nursing assistant I. She primarily worked in unit south I. (Exs. A, B & 7.)

2. The general responsibilities of a nursing assistant I at WMH working in units south I, II and III are to carry out "various direct and indirect patient care services necessary in caring for the personal needs and comfort of adult and geriatric patients." The work is done under the supervision of registered nurses and licensed practical nurses, and the position does not direct any other staff at WMH." The nursing assistant I has to be certified as a certified nurse's aide, able to "communicate effectively," work in a "team setting," "exercise sound judgment," engage in heavy lifting including carrying persons, and be sensitive "to the feelings and problems of persons who are emotionally disturbed, mentally retarded, or physically handicapped." The job requires knowledge of "post mortem procedures," as well as the specific policies and procedures in place for the patients in each of the units where the nursing assistant is working. (Ex. 4.)

3. Specific tasks done by a nursing assistant I working in units south I, II and III
include giving "direct patient care such as taking vital signs, changing simple dressings, performing basic first aid, recording intake and output, giving enemas, [and] applying ice packs and compresses." The nursing assistant I helps the nursing staff with such tasks as "running errands, changing linen, transporting and cleaning equipment, delivering messages, responding to patient call lights, [and] serving and collecting food trays." The nursing assistant I carries out "daily care and the personal or hygiene needs of patients by giving baths, backrubs and feedings, including G/tube and J/tube feedings, grooming, toileting and performing other activities of daily living in order to promote patient wellness." The nursing assistant I watches patient behaviors, takes notes on physical changes and reports on these observations, "transfers and transports patients using unit equipment and proper body mechanics," participates at meetings about a patient's care and treatment, carries out "rehabilitative training to patients such as bowel and bladder training, range of motion exercises, positioning, and good body alignment," and works with others "in a cooperative, confidential and professional manner to facilitate proper communication of patient care." The nursing assistant I also serves "meals, snacks and water to patients," helps patients with walking and exercising, and assists families and visitors of patients. (Ex. 4.)

4. Ms. Hanchett typically worked the 11:00 PM to 7:00 AM shift in unit south I. The patient capacity there was always around nineteen patients. She worked alone and with the nursing staff in meeting direct patient care needs. She would go from bed to bed each shift to cover all nineteen patients. (Testimony.)

5. The patients served at WMH are separated into different units at the facility. In south I are the transitional care patients. Included are patients with intermediate or step down care needs, patients needing end of life care, and patients needing respite care. The intermediate care patients "receive the full scope of nursing and medical services … but usually at a reduced level that is adjusted to changing care requirements … [and] staff begins accelerated discharge planning with patients and/or family and prepares them for the transition to home or to another healthcare facility." The end of life care patients who suffer from terminal illnesses are persons unable to be adequately cared for in their homes. There is a "multi-disciplinary team" that renders around the clock care. The patients typically have "multiple and often complex symptoms that affect the body, mind and spirit in a multitude of ways," and the staff gives them "holistic care" with an emphasis "on pain and symptom management" that "includes psychosocial support, pastoral care and volunteer services for both patients and families." The respite care patients may be admitted for time periods "of 1-2 weeks annually," to provide a break for family members "from their care giving responsibilities." The hospital staff "support patients in daily routines and assist them with self-care; or provide skilled nursing and medical services as the patient may require." These patients have "a variety of medical diagnoses, including mental retardation." (Ex. 5.)

6. The patients in unit south II have "neurological diseases." The average age of these patients is fifty-five. Typically, these patients "are admitted in the middle to the advanced stages of their disease," and need "preventative and restorative care" until the disease advances to the point where the patient needs "total care for most or all of the activities of daily living." The average stay for such a patient is "243 days." The caregiving focuses on disease modification, shortening exacerbations and slowing the progression of the disease, as well as "symptoms control, functional improvement, and improvement in the quality of life" such as "assisting patients to develop satisfying interpersonal relationships, to achieve social integration and to participate in meaningful spiritual and recreational activities." These patients are served "by a team of nursing staff, primary care physician, social worker, nutritionist, pharmacist, physical therapist, occupational therapist, speech and language pathologist, recreational therapist, psychiatrist and pastoral care coordinator." Each patient has a care plan to address a variety of needs. (Ex. 5.)

7. The patients in unit south III are in need of respiratory care such as "management and weaning off of mechanical ventilation and management of artificial airways." These patients typically have had long intensive care unit stays after surgical complications, need "central venous access for IV antibiotics, parenteral nutrition and fluid management," and need to resolve their sepsis. They "have multi-drug resistant organisms such as MRSA and VRE," and need "total care and are deconditioned from their extended illness." These patients receive "physical therapy and occupational therapy as well as intervention from a speech/language pathologist who resolves issues with swallowing difficulties, communication deficits and cognitive impairment." The patients are "at high risk for skin tissue breakdown due to their fragile cardiopulmonary and nutritional status as well as their immobility." They can also have "co-morbid conditions" such as "cardiovascular disease, pulmonary disease, diabetes, renal insufficiency, complications of strokes, neurological and neuromuscular disorders, gastrointestinal conditions and seizure disorders." They require many medications, and various specialists work together as part of a "healthcare team." Various equipment is used such as a "mechanical ventilator" which can expose the patient to "developing ventilator associated pneumonia."
(Ex. 5.)

8. The Alzheimer's disease and related disorders program patients are in units north 2 and north 3. These patients are over fifty and have been diagnosed with "dementia of varied etiology such as Alzheimer's disease, multi-infarct dementia, or sub-cortical dementia (Huntington's, Parkinson's)." Staff work to stabilize "severe behaviors related to cognitive impairment of a non-psychiatric type that cannot be managed in an alternative setting," such as "severe disruptive patterns of behavior characterized by physical aggression to self, staff, or other patients." These patients "also exhibit significant poor judgment, short-term memory loss, confusion and disorientation that cannot be managed safely in another facility." The units are both small settings. A "multi-disciplinary team" cares for these patients including a "psychologist, physical therapist, speech/language pathologist, occupational therapist, respiratory therapist, dentist, and optometrist." Involved with the care plans for these patients is an effort to "promote independence in activities of daily living; maintain independent ambulation without mechanical aides or physical assistance; treat co-morbid medical/psychiatric conditions of a non-acute nature; enhance the patient's participation in social activities; maintain integration of patient in the nuclear family; provide preventative care and promote optimal health status; and discharge the patient to a less restrictive environment." The nurses working with these patients assist them in maintaining independence, giving them free access to the unit, and de-escalating their behaviors using a structured program. (Ex. 5.)

9. Ms. Hanchett received special training to work with Alzheimer's patients as early as 1995. Due to an overflow of patients for the units north 2 and north 3 program, there are usually four or five Alzheimer's patients of the nineteen patients in unit south I. The Alzheimer's patients have trouble sleeping, are disruptive to other patients, and go into other patients' rooms. Special care instructions for such patients are listed on their care charts, and specific information is obtained at the start of the shift from the staff just ending their shift. Often, working with an Alzheimer's patient involves trying to calm the patient, or calling a code for security to come to help control the patient. At times Ms. Hanchett worked as a "floater," covering the work of a nursing assistant I in units other than south I, including working in the units north 2 and north 3. (Ex. 6. Testimony.)

10. On May 14, 2005, Ms. Hanchett was injured at work by an Alzheimer's patient. The patient was sitting at the end of her bed, got up, an alarm went off, Ms. Hanchett arrived, and she was assaulted by the patient. She filed a notice of injury form and lost time from work for which she received workers' compensation. She never felt able to return to her job and stopped working. (Ex. 7. Testimony.)

11. Ms. Hanchett filed for and received superannuation retirement in 2005. In connection with her retirement she filled out the State Board of Retirement's group classification questionnaire and also had her employer sign the form. She referred to her job as a certified nurse's aide at WMH from 1987. She noted that she was receiving workers' compensation for having been hurt by a Alzheimer's patient she was caring for who assaulted her. Ms. Hanchett sought a Group 2 job classification for her position. (Exs. A, B & 3. Testimony.)

12. The State Board of Retirement denied her request by letter of decision of August 31, 2007, and placed her position in Group 1 for retirement purposes. Ms. Hanchett timely appealed this decision, arguing that she provided direct care, custody, and/or supervision to mentally challenged individuals to entitle her to a Group 2 job classification. (Exs. 1 & 2.)

Conclusion

For a Group 2 job classification, the member's last position and duties prior to retirement are examined. Maddocks v. CRAB, 369 Mass. 488, 493-494 (1976).

G.L. c. 32, § 3(2)(g) describes Group 2 to cover "employees of the commonwealth … regardless of any official classification … whose regular and major duties require them to have the care, custody, instruction or other supervision of parolees or persons who are mentally ill, mentally defective,
or defective delinquents."

Ms. Hanchett argues that because included in the patients she cared for were Alzheimer's disease patients, she has shown that she provided "care, custody, instruction or other supervision of … persons who are mentally ill, mentally defective," to entitle her to a Group 2 job classification for her work at WMH. The State Board of Retirement does not dispute that she provided "medical services to individuals with medical conditions," but that the patients she routinely cared for did not have mental illness and were not mentally defective. (Ex. B.) The Board contends that caring on occasion for Alzheimer's patients does not transform her duties from primarily providing direct care to non-mentally ill or non-mentally defective patients at WMH. Ms. Hanchett cites the case of Neergheen v. State Board of Retirement, CR-07-439 (DALA, 2009), where a psychiatrist working at WMH in units north 2 and 3 was found to have been providing direct care to mentally ill patients, i.e., Alzheimer's patients, to entitle him to a Group 2 job classification. The decision found that Alzheimer's disease is a mental illness under Department of Mental Health regulations at 104 CMR 29.04(3)(a)(1) through (4). (Ex. A.) I agree that the Alzheimer's patients Ms. Hanchett worked with were mentally ill or mentally defective as those terms are used in Section 3(2)(g) under Group 2. Even if not all her work was with Alzheimer's patients, Ms. Hanchett contends that a substantial amount of her time was spent giving direct care to Alzheimer's patients.

Ms. Hanchett's claim of working a substantial amount of her time with Alzheimer's patients as sufficient to give her a Group 2 job classification must fail because there is insufficient proof that, as required by Section 3(2)(g), her "regular and major duties" involved working directly with Alzheimer's patients. I do not find that her testimony shows she worked a substantial amount of her time with Alzheimer's patients. They composed at most, five of the nineteen patients in unit south I she routinely cared for. Therefore, she did not spend a majority of her time caring for Alzheimer's patients. The kind of patient who could be cared for in unit south I could also include mentally retarded respite care patients. (See, Exhibit 5.) There is ample case law finding that such persons are covered by the language in Section 3(2)(g) at Group 2 as "mentally ill or mentally defective." See, Green v. State Board of Retirement, CR-06-1121 (DALA, 2008); Cardin v. State Board of Retirement, CR-00-096 (DALA, 2001); Grieve v. State Board of Retirement, CR-98-177 (DALA, 1999). Ms. Hanchett did not make any claim that she provided direct care to any such diagnosed patients, and never testified to a number of mentally retarded patients she routinely cared for as she did for Alzheimer's patients.

Ms. Hanchett has not met her burden of proof to show that a majority of the patients she cared for at any given time were "mentally ill or mentally defective." Wakefield Retirement Board v. CRAB, 352 Mass. 499 (1967). See, Miers v. State Board of Retirement, CR-06-441 (DALA, 2007) where a nursing assistant I in unit south II could not gain a Group 2 job classification because the patients she cared were not "mentally ill or mentally defective."

For these reasons, the decision of the State Board of Retirement is affirmed. So ordered.

DIVISION OF ADMINISTRATIVE LAW APPEALS

//s//
Sarah H. Luick, Esq.
Administrative Magistrate

DATED: February 11, 2010