Decision  Massai, Denise v. State Board of Retirement (CR-16-6)

Date: 02/16/2018
Organization: Division of Administrative Law Appeals
Docket Number: CR-16-6
  • Petitioner: Denise Massai
  • Respondent: State Board of Retirement
  • Appearance for Petitioner: Denise Massai
  • Appearance for Respondent: Kathryn Doty, Esquire
  • Administrative Magistrate: Judithann Burke

Table of Contents

Case Summary

The Petitioner, Certified Nursing Assistant at the Department of Public Health, is not entitled to Group 2 classification.  She has not proven that her regular and major duties at the Western Massachusetts Hospital required her to “have care, custody, instruction or other supervision of…persons who are mentally ill or mentally defective…” as required by G.L. c. 32, § 3(2)(g).


Pursuant to G.L. c. 32 § 16(4), the Petitioner, Denise Massai, is appealing from the December 24, 2014 decision of the Respondent, State Board of Retirement (SBR), denying her request to be classified in Group 2 for retirement purposes.  (Exhibit 1.) 

The appeal was timely filed on January 3, 2015. (Exhibit 2.) 

I held a hearing on March 27, 2017 in Room 305 at 436 Dwight Street, Springfield, MA.  I admitted four (4) exhibits into evidence.  The Petitioner testified in her own behalf.  The Respondent presented no witnesses.  The hearing was digitally recorded.   The Respondent filed pre-hearing and post-hearing memoranda of law.  (Attachments A and B.)  The Petitioner filed her post-hearing memorandum on June 15, 2017, thereby closing the record.  (Attachment C.)                                                    


            Based upon the testimony and documents submitted at the hearing in the above-entitled matter, I hereby render the following findings of fact:

  1. The Petitioner, Denise Massai, born in 1953, began employment with the Department of Public Health (DPH) on or about September 12, 2004.  She worked as a Certified Nursing Assistant (CNA) at the Western Massachusetts Hospital on the Transitional Care Unit.  (Exhibit 3 and Petitioner Testimony.)
  2. The Transitional Care Unit of the Western Massachusetts Hospital is a locked unit with a mixed patient population.  At times, this unit included Alzheimer’s, dementia, and other mentally and behaviorally challenged patients.  When two Alzheimer’s units in the hospital closed, those patients who were able to ambulate in a wheelchair were reassigned to the Transitional Care Unit.  (Id.)
  3. On or about February 19, 2010, the Petitioner completed a “Group Classification Questionnaire” and requested that her position be classified in Group 2 for retirement purposes.  (Exhibit )
  4. Included with the submission of the Group Classification Questionnaire were a description of the Transitional Care Unit and several Employee Performance Reviews (EPRs).  While the Petitioner is consistently lauded for her devoted and compassionate care-giving, none of the EPRs describe the specific patient population or diagnosis of any patients on the Unit at any given time.  (Id.)
  5. The following is the description of the Transitional Care Unit as set forth in the description of each specific nursing unit at the Western Massachusetts Hospital:


The Transitional Care Program consists of three program areas: (1) intermediate or step down care; (2) end of life care; and (3) respite care.

Intermediate Care: Patients who no longer meet or require the mix and intensity of services provided by specialty care programs are transferred to the intermediate care service.  Here, patients receive the full scope of nursing and medical services provided by the hospital, usually at a reduced level that is adjusted to changing care requirements.  Once here, staff begins accelerated discharge planning with patients and/or family and prepares them for the transition to home or to another health care facility.

End of Life Care: Provides care to patients who are faced with impending death due to terminal disease and who cannot be provided adequate care at home.  The multidisciplinary team provides services on a 24-hour basis.  Patients usually present with multiple and often complex symptoms that affect the body, mind and spirit in a multitude of ways.  Staff provides holistic care that is consistent with the goals of the patient and family to maximize autonomy, dignity, healing and comfort.  The focus of the care is on pain and symptom management. The scope of care includes psycho-social support, pastoral care and volunteer services for both patients and families. 

Respite Care:  This unique service enables family caregivers who provide loved ones with in home care a needed break from their caregiving responsibilities.  Patients may be admitted to the program for a 1-2 week stay quarterly.  While here, staff support patients in daily routines and assist them with self-care; or provide skilled nursing and medical services as the patient may require.  Patients are admitted with a variety of medical diagnoses including mental retardation.  Families are provided with social service assistance and referral help as needed.

The goals of the Transitional Care program are to:  improve quality of life, minimize the effects of the disease process, provide pain and symptom management, to minimize exacerbations of the disease, to provide relief/respite services to patients and their caregivers, and to coordinate care and services with the patient’s family and other health care professionals. This is accomplished by utilizing a team approach, which establishes individual care plans.

Nursing staff, physicians, social worker, nutritionist, pharmacist, pastoral and recreational therapist make up the primary service team. Additional disciplines (physical therapy, speech-language pathology, occupational therapy, respiratory therapist, and psychiatrist) are available as needed.   Dental and eye care services are also available.  Family and friends are encouraged and supported to actively participate in care.


  1. On November 10, 2014, the Petitioner filed for superannuation retirement with a retirement date of November 21, 2014.  (Exhibit 4.)
  2.  On December 23, 2014, the SBR denied the Petitioner’s request to be classified in Group 2 and informed her that she was classified in Group 1 for retirement purposes.  (Exhibit 1.)

     17.  The Petitioner filed a timely appeal on January 7, 2015.  (Exhibit 2).


After a careful review of all of the testimony and documents, I have concluded that the Petitioner is not entitled to prevail in this appeal.  She has not met her burden of proving that her “regular and major duties” required her to have the “care, custody, instruction or other supervision of persons who are mentally ill or mentally defective …” as required in order to be classified in G.L. c. 32, § 3(2)(g), Group 2. 

Indeed, the Petitioner’s primary responsibilities during her employment, and particularly in the final two (2) years, centered around her rendering direct care to the patients on the Transitional Care Unit.  Additionally, the record reflects that she provided this quality care in spades.   However, the record is bereft of specific patient information regarding mental health diagnoses as well as the exact amount of time the Petitioner actually spent caring for mental health patients.  See Margaret Sheehan v. State Board of Retirement, CR-00-1014 (Division of Administrative Law Appeals August 3, 2001; Contributory Retirement Appeal Board affirmed February 4, 2002) (RN V at Chelsea Soldier’s Home who worked with individuals with secondary diagnoses of PTSD, substance abuse, Alzheimer’s Disease, and, violent behavior disorders properly classified in Group 1.  Contributory Retirement Appeal Board affirmed on the grounds that the Petitioner’s work at a Soldier’s Home was “not in the nature of care and custody of the mentally ill.”);  compare LuAnn Nowill v. State Board of Retirement, CR-10-820 (Division of Administrative Law Appeals July 21, 2011; Contributory Retirement Appeal Board affirmed May 17, 2012) (Division of Administrative Law Appeals found that Petitioner, an RN II, a non-supervisory position, was assigned to and worked on the geriatric long-term care locked ward “Alzheimer’s/Dementia unit” for each of her entire shifts, a position which was determined to be within the Group 2 parameters.)

While the Petitioner may have had somewhat frequent face to face contact with residents on and off all units, she did not prove that she spent over fifty per cent (50%) or more of her time providing direct care, custody, instruction or other supervision to mentally ill or mentally defective patients.  She neither quantified the time she actually spent providing any direct care duties to this patient population nor the diagnoses of those residents for whom she did so during any given day.  Further, she did not meet her burden of showing that all of the patients to whom she may have provided direct care from time to time have a primary diagnosis of mental illness or mental retardation.  She was a CNA who was assigned to the Transitional Unit, a unit which served, and still serves,  many purposes and objectives.  Exclusive care of mentally challenged or ill patients is not listed among those objectives.  The Petitioner’s testimony did not refute the assertions expressed in the job description, the EPRs, or other related documents.   

While the Petitioner may have cared for several mentally defective or challenged facility residents, some of whom may have been potentially violent, there is no G.L. c. 32, § 3(2)(g) Group 2 criteria that includes employees who face dangerous situations on a routine basis.  See Joan McCalla v. State Board of Retirement, CR-07-1040 (Division of Administrative Law Appeals, March 11, 2011.)  It is well-settled that exposure to dangerous situations is not a controlling factor in Group 2 eligibility.  See Barbara Whitman v. State Board of Retirement, CR-12-169 (Division of Administrative Law Appeals December 14, 2012; no Contributory Retirement Appeal Board Decision.)

Based on the foregoing, the decision of the SBR denying the Petitioner’s request to be classified in Group 2 is affirmed.

            So ordered.


Division of Administrative Law Appeals,



            Judithann Burke

           Administrative Magistrate


DATED:  February 16, 2018

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