COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. Division of Administrative Law Appeals

Chabilal Neergheen, M.D.,

Petitioner

v. Docket No. CR-07-439

State Board of Retirement,

Respondent


Appearance for Petitioner:

Bernard J. Romani III, Esq

Bohnet & Romani, P.A.
23 Elm Street
Westfield, MA 01085

Appearance for Respondent:

Erin C. Nally, Esq.

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

Administrative Magistrate:

Sarah H. Luick, Esq.

SUMMARY OF DECISION

Primary care and attending physician providing direct care to segregated hospital patients with a diagnosis of advanced dementia with severe disruptive behaviors, is entitled to a G.L. c. 32, § 3(2)(g) Group 2 job classification. Patients found to be "mentally ill" within the Group 2 language, as they meet Department of Mental Health criteria for being mentally ill and could be subject to involuntary hospitalization in a psychiatric facility.


DECISION

Pursuant to G.L. c. 32, § 16(4), the Petitioner, Chabilal Neergheen, M.D., is appealing the June 1, 2007 decision of the Respondent, State Board of Retirement, denying his request for a Group 2 job classification in connection with his retirement. (Exs. 1 & 2) The appeal was timely filed. (Ex. 1) A hearing was held November 12, 2008, 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. A, B, C & 1 - 13) The pre-hearing memoranda and post-hearing briefs are marked as Exhibit A for the Petitioner and Exhibit B for the Respondent. Regulations of the Department of Mental Health (DMH) are marked as Exhibit C, and excerpts from the Diagnostic and Statistical Manual of Mental Disorders at edition IV (DSM-IV) are marked as Exhibit D. One tape was used. The Petitioner testified. The record closed December 12, 2008 when briefs were due.

FINDINGS OF FACT

1. Chabilal Neergheen, M.D., is an internist with special training in geriatrics. He is licensed to practice medicine in Massachusetts. (Testimony. Exs. 6 & 12.)

2. Dr. Neergheen worked from January 1, 1995 at the Western Massachusetts Hospital (WMH) in Westfield until he retired effective July 6, 2007. He held the position of Physician Specialist/Medical Director. He was a member of the State Retirement System while doing this work. WMH is licensed under the Department of Public Health (DPH), and Dr. Neergheen was a DPH employee. (Testimony. Exs. 1, 3, 5, 6, 8, 9, 10, 11 & 12.)

3. WMH has five specialized units. South One treats patients with chronic, transitional, and respite care needs. South Two treats patients with neuromuscular conditions. South Three treats patients with respiratory conditions. North Two and North Three treat patients with "advanced dementias with a behavioral component that caused them to be rejected for admission to at least 3 Skilled Nursing Facilities." The patients have devices on their ankles or wrists for monitoring their movements. Both Units are locked and secure at all times. (Testimony. Exs. 7, 12 & 13.)

4. The North Two and North Three patients have an average age of seventy. The etiology of their advanced dementias can include "Alzheimer's Disease, Multi-Infarct dementia, or Subcortial dementia (Huntington's, Parkinson's)." They exhibit "severe disruptive patterns of behavior characterized by physical aggression to self, staff, or other patients." They show "significant poor judgment, short-term memory loss, confusion and disorientation." Each North Two and North Three patient has a specific behavior plan "to accomplish their ADLs and medical/nursing exams/treatments without violence." Behavioral emergencies occur with North Two and North Three patients, Code Green emergencies, involving "a substantial risk of or actual occurrence of serious physical assault or serious self destructive behavior." When patients in these Units become a danger to themselves or to others, they may receive chemical restraints. They are treated "by a multi-disciplinary team consisting of nursing staff, internal medicine specialist, psychiatrist, clinical pharmacist, social worker, nutritionist and recreational therapists," as well as other specialists such as "psychologist, physical therapist, speech/language pathologist, occupational therapist, respiratory therapist, dentist, and optometrist." (Testimony. Exs. 1, 3, 5, 6, 7, 8, 9, 10, 11, 12 & 13.)


5. Criteria for the admission of patients and for their continuing care in North Two and North Three, require an on-going diagnosis of "advanced dementias with a behavioral component that caused them to be rejected for admission to at least 3 Skilled Nursing Facilities." If they reach a point in treatment when they no longer require the level of care in North Two and North Three, they should be transferred to another facility or to another WMH Unit, or to a "more appropriate community setting." The "average length of stay is 704.0 days" in North Two and "981 days" in North Three. (Testimony. Exs. 7 & 12.)

6. Dr. Neergheen worked in only the North Two and North Three Units. He served as the primary care and attending physician for the North Two and North Three patients in his job as Physician Specialist/Medical Director. His role included being part of the multi-disciplinary team, and included evaluating and managing each patient's "multiple medical problems for stability and preventative care." He prescribed numerous medications for the North Two and North Three patients including psychotropic drugs. Dr. Neergheen was involved in the Code Green emergencies and has administered chemical restraints. He spent over fifty percent of his working hours involved in direct caregiving to these patients. (Testimony. Exs. 1, 3, 5, 6, 7, 8, 9, 10, 11, 12 & 13.)

7. Advanced dementia is a condition set forth in DSM-IV, which is published by the American Psychiatric Association, and is used by clinicians and psychiatrists to diagnose psychiatric illnesses. Dr. Neergheen found that all the North Two and North Three advanced dementia patients satisfy the DSM-IV criteria for having a mental illness. (Testimony. Ex. D.)

8. Highlighted in WMH's description of its program for patients in North Two and North Three is the following:
The WMH program serves as a safety net for families and nursing facilities.
It reduces occurrences of Section 12 admissions to psychiatric facilities. (Ex. 7)

9. Regulations of DMH at 104 CMR 29.04(3)(a) address criteria for determining whether persons can be eligible for DMH services:

1. [A] substantial disorder of thought, mood, perception, orientation or memory
which grossly impairs judgment, behavior, capacity to recognize reality or the
ability to meet the ordinary demands of life; and

2. has lasted, or is expected to last, at least one year; and

3. has resulted in functional impairment that substantially interferes with or limits the performance of one or more major life activities, and is expected to do so in the succeeding year; and

4. meets diagnostic criteria specified within the current edition of Diagnostic and Statistical Manual of Mental Disorders, which indicates that the individual has a serious, long term mental illness that is not based on symptoms primarily caused by substance related disorders, mental retardation or organic disorders due to a general medical condition not elsewhere classified. (Ex. C)

10. Dr. Neergheen's Form 30 job description and job title describe a physician
who works in direct contact with and renders caregiving to patients at WMH as a Medical Director of patient care, including as the primary care and attending physician. Dr. Neergheen's performance evaluations and other data generated by the WMH administrative staff described him as involved in this direct physician caregiving to patients in North Two and North Three as a primary job responsibility. WMH administrative staff find the North Two and North Three patients have severe behaviors relating to their advanced dementias and that Dr. Neergheen had to treat such patients. Hospital records of patients he treated in North Two and North Three address behaviors found within the WMH criteria for admission to and continued treatment in the North Two and North Three Units. (Testimony. Exs. 5, 6, 7, 8, 9, 10, 11, 12 & 13.)

11. Dr. Neergheen completed a Group Classification Questionnaire with the State Board of Retirement on April 27, 2007, that was signed-off by his employing agency on the same date, describing his job as attending physician to patients with advanced dementia requiring their care in specialized units at the Hospital due to behaviors that can be violent and dangerous. (Ex. 5.)

12. By letter of June 1, 2007, the State Board of Retirement informed Dr. Neergheen that his job would be classified in Group 1 for retirement purposes. He was provided with his right to appeal this determination. Dr. Neergheen timely appealed that determination by letter of June 11, 2007. In addition, by letter of June 21, 2007, he sought reconsideration by the State Board of Retirement of the Group 1 job classification, providing background information about the work he did at WMH with advanced dementia patients to support a Group 2 job classification. The Board notified Dr. Neergheen by letter of July 27, 2007 that the Board considered his request but voted to keep the job classification as Group 1. (Exs. 1, 2, 3 & 4.)

CONCLUSION AND ORDER

G.L.c.32, § 3(2)(g) at Group 2 includes in pertinent part, "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." This is a general description of employees whose jobs can be classified in Group 2. Otherwise, most of the language in Group 2 lists specific job titles with specific employers. See Gaw v. Contributory Retirement Appeal Board (CRAB)/Reading Retirement Board, 4 Mass. App. Ct. 250, 254-256 (1976). There is no dispute that Dr. Neergheen spent over fifty percent of his time with the North Two and North Three patients providing them with "care, custody, instruction or other supervision." Therefore, the issue in dispute is whether or not the patients in North Two and North Three are included in the phrase "mentally ill or mentally defective." Considering what is meant by these general terms is necessary as they are not described more fully in the Group 2 language, and the phrase is not defined in G.L. c. 32, §1. Id at 253, 257.

Case law supports a determination that DMH in-patients and even DMH clients living in their communities, do come within the reach of this Group 2 language. See Harris v. CRAB/State Bd. of Retirement, Suffolk Superior Court Civil Action NO. 01-3036-6, July 3, 2002, King, J. (pharmacist dispensing medications at DMH out-patient clinic); Gray v. State Bd. of Retirement, CR-04-151 (DALA, May 12, 2006) (no CRAB decision) (psychiatric nurse at a community mental health center working with mentally ill children and adults); Dundas v. State Bd. of Retirement, CR-03-10 (DALA, February 3, 2004) (no CRAB decision) (psychiatrist II at a mental health center providing direct care to severely mentally ill non-residential DMH clients, some with physical disabilities); and, Zilembo v. State Bd. of Retirement, CR-02-907 (DALA, October 7, 2003) (no CRAB decision) (DMH caseworker who met with DMH clients living in the community to administered face-to-face evaluations and to provide services to them).

I do not conclude that the Group 2 language at issue can only cover persons receiving services for their mental illness through DMH. Rather, I conclude that the DPH patients in North Two and North Three who are cared for by Dr. Neergheen as a DPH employee, are mentally ill within the Group 2 language. This is because these patients have conditions that satisfy the DMH criteria at 104 CMR 29.04(3)(a) for being persons who could receive DMH services, and because they could be persons subject to involuntary admissions to a psychiatric facility because of their mental conditions. It may be that most employees of the commonwealth who care for persons who are in-patients receiving treatment for mental illnesses are working in DMH facilities, but that is not a requirement set forth in the Group 2 language where just the general phrase is used of being an employee of the commonwealth caring for mentally ill persons.

The State Board of Retirement contends that the North Two and North Three patients are not mentally ill or mentally defective within the meaning of the Group 2 language, arguing that the common definitions of Alzheimer's Disease, the etiology of the dementias that many of these patients suffer from, do not call it a mental illness. As an example, the Board cites to Taber's Cyclopedic Medical Dictionary, 20th Edition (2001) that describes Alzheimer's Disease as a chronic and progressive degenerative cognitive disorder. (See Ex. B.) But, in making these arguments, the Board failed to present any expert evidence to support its claim that the patients in North Two and North Three do not have mental illnesses. This is in contrast to Dr. Neergheen's testimony that these patients are mentally ill based on his expertise in treating and evaluating these patients for seventeen years, and because their conditions are included in DSM-IV which is used to diagnose mental illnesses. (See Ex. D) The Board's argument also fails to address the significance of the WMH admission criteria for North Two and North Three patients that refers to their potential for having involuntary admissions to psychiatric facilities through G.L. c. 123, § 12 if not admitted to these Units.
Comparing the admission criteria for the North Two and North Three patients against the DMH regulatory criteria in 104 CMR 29.04(3)(a) shows these particular patients are mentally ill. The DMH criteria describes severely disruptive behaviors and calls for the person's condition to be listed within DSM-IV. The North Two and North Three patients satisfy those requirements. The DMH criteria also calls for a disorder to be expected to last at least one year. The lengths of stay for the patients in North Two and North Three satisfy that requirement. Even though WMH is not a licensed DMH facility there is no less treatment of mental illnesses going on in North Two and North Three than there would be if these patients had been involuntarily hospitalized in a psychiatric facility through a Section 12 admission process.

The State Board of Retirement maintains that even if Dr. Neergheen is exposed
to violent and dangerous behaviors from the North Two and North Three patients, it is not a relevant factor for a Group 2 job classification. I agree he is not entitled to a Group 2 job classification if that is all that is involved in his claim, but the fact that North Two and North Three patients with advanced dementia engage in such conduct is relevant evidence to show they do have a mental illness that encompasses the kinds of behaviors that DMH lists in its eligibility criteria for services at 104 CMR 29.04(3)(a). Moreover, the case law that supports the Board's argument that exposure to dangerous persons is not sufficient for the job to be classified in Group 2, deals with the language addressing whether the member had "care, custody, instruction and other supervision," and not whether the persons involved were mentally ill. See Rebell v. Contributory Retirement Appeal Board (CRAB)/State Board of Retirement, 569 N.E. 2d 858 (1991); Tudryn v. State Bd. of Retirement, CR-06-1104 (DALA, April 30, 2008) (no CRAB decision); and, Jacobsen Canastra v. State Bd. of Retirement, CR-05-599 (DALA, October 23, 2007) (no CRAB decision).

The State Board of Retirement finds further support for its denial determination in the case of Miers v. State Bd. of Retirement, CR-06-441 (DALA, August 17, 2007) (No CRAB decision), where a Certified Nursing Assistant at WMH giving direct care to patients was denied a Group 2 job classification. Unlike Dr. Neergheen, she worked only in the South Two Unit where patients were treated for neuromuscular diseases. Ms. Miers argued that many of the patients were regularly treated by psychologists or psychiatrists so she should gain a Group 2 classification for her job. But, those were ancillary medical issues for them and not the reason why they were admitted to South Two. None of the patients in South Two satisfied the admission criteria for North Two and North Three.
By determining that Dr. Neergheen's patients are mentally ill within the Group 2 language, I am not addressing whether all persons who are diagnosed with Alzheimer's Disease or even with dementia necessarily qualify under the Group 2 language as mentally ill or mentally defective. It is enough that the record shows the North Two and North Three patients are mentally ill for Dr. Neergheen to be entitled to a Group 2 job classification.

Therefore, the State Board of Retirement is ordered to reclassify Dr. Neergheen's job in Group 2 and to re-compute his retirement benefits accordingly.

SO ORDERED.


DIVISION OF ADMINISTRATIVE
LAW APPEALS


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

DATED: July 24, 2009