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HomeMy WebLinkAbout96-516 EleuteriOtto Eleuteri Director Bureau of Personnel Department of Labor & Industry 1401 Labor & Industry Building Harrisburg, PA 17120 Dear Mr. Eleuteri: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL February 29, 1996 .. adjudicates initial claims for disability benefits filed under the Federal Social Security Act and related Federal legislation. Work involves evaluating medical and psychological evidence in conjunction with a physician and, on the basis of this and relevant vocational and other evidence, writing disability decisions with supporting rationale. Employes exercise independent judgment in making decisions based on medical evidence, applicable Federal laws and pertinent Federal and state 96 -516 Re: Department of Labor & Industry; Disability Claims Adjudicators; Public Employee; FIS. This responds to your letter dated January 26, 1996 requesting advice from the State Ethics Commission. Issue: You ask whether Disability Claims Adjudicators (hereinafter "DCA ") with the Department of Labor & Industry (hereinafter "L &I "), are to be considered "public employees" as that term is defined in the Public Official and Employee Ethics Law so as to be required to file Statements of Financial Interests (FIS). Facts: You question whether the activities and functions of DCA's with L &I fall within the purview of the definition of "public employee" as that phrase is defined in the Ethics Law and the regulations of this Commission. In order to review the question presented, we will briefly outline the duties and responsibilities associated with that position as contained in the job description and the classification specifications and the August 23, 1995 memo from Howard Thorkelson which you submitted. The duties and responsibilities, as set forth in these documents are incorporated herein by reference. The DCA 1 classification specification states that an employee in the position of DCA 1: Eleuteri, 96 -516 February 29, 1996 Page 2 regulations and standards. Work is performed under the general supervision of an administrative supervisor and is reviewed upon completion for accuracy and adherence to regulations and standards. The DCA 2 classification specification states that an employee in the position of DCA 2: .. serves in a quality assurance unit reviewing decisions on a sample basis, or adjudicates claims resulting from appeals, or reviews claims to continue or cease benefits to claimants currently receiving benefits. Employes may also serve in a medical services unit assisting in the recruitment of, and maintenance of ongoing relationships with, medical services providers, and to assist in resolving medical relations problems. Work involves reevaluation of medical and other relevant evidence used as a basis of initial decisions to ensure appropriateness of decision and uniform application of adjudication standards and procedures. Work also involves the procurement and evaluation of additional evidence necessary to adjudicate claims at the appellate of continuing disability review levels, and conferences with medical and other consultants to resolve complex problems. Work includes the development of information necessary as the basis for decisions by hearing examiners, Administrative Law Judges and the appeals council. Employes exercise considerable independent judgment in reviewing and writing decisions and in their public contact work, based on medical evidence, applicable Federal laws and pertinent Federal and state regulations and standards. Work is performed under the general supervision of an administrative supervisor and is reviewed through conferences and reports. In his August 23, 1995 memorandum, Mr. Thorkelson notes the following: The DCA participates in the determination of disability as a member of an "adjudicative team." The other member is the agency medical consultant, a physician or psychologist. All claims being processed for disability determination are required to be reviewed by a physician or psychologist or both, and there is no "determination" in the absence of the appropriate form -block signatures of both the adjudicator and the physician or psychologist. This is true of both DCA I's and DCA I I's. Under agency procedure and practice, DCA's may not, independently and alone, authorize consultative examinations, for which agency fiscal obligations are then incurred. It is the role of the adjudicator to request the purchase of consultative examinations. Under agency policy and practice, such requests must be routed through, and approved by, a Disability Adjudication Supervisor as a basis for scheduling to be initiated and fiscal obligations to be incurred for this purpose. In addition, some consultative examination requests (i.e, involving tests or procedures possibly presenting risk to the claimant) require the approval of a physician. You assert that the Thorkelson memo of August 23, 1995 was prepared because prior information may have been misleading. Your Position Management Eleuteri, 96 -516 February 29, 1996 Page 3 Division believes that decision making responsibility and expenditure authorization for consultative examinations do not lie with DCA I's and II's. You also enclosed a technical analysis as to DCA's which sets forth the following commentary as to the amount of independent authority DCA's have to adjudicate and pay claims and second as to their ability to spend agency funds to obtain evidence. Although DCA's adjudicate claims as to disability based upon evidence and other information, no determination is complete without a physician or psychologist review, concurrence and signature on the determination. There is a collaborative relationship with physicians. DCA II's in performing a reconsideration review must obtain physician concurrence just like DCA I's. Unless the physician agrees that the evidence supports the decision of the DCA adjudicator, the physician's decision is overriding. DCA II's are assigned to Medical Services or Quality Assurance which has a primary function of fact - finding as to claimants or physician complaints. The Medical Relations Program Director makes a decision as to such facts. Medical providers are recruited through published announcement and referrals. In Quality Assurance, the DCA II determines whether proper procedures were followed by the adjudicator; any decision to revise the outcome is made by the Quality Assurance Program Director. A DCA may obtain medical evidence for a fee from private providers but only when the claim lacks sufficient evidence from the claimant's own physician. In such cases, the DCA requests the physician to supply medical records for which the Bureau pays $25 to each physician. After a clerical employee reviews the invoice and checks to see if the evidence was received, payment is authorized. In cases where medical evidence is inconclusive, the DCA may request additional consultative examinations, the expenditures for which are approved by the Disability Adjudication Supervisor. If the exam is specialized, the provider is selected by a clerical employee from a list in the Medical Services Unit. A computerized scheduling system automatically rotates vendors to avoid favoritism. Invoices are reviewed and approved by the DCA who ascertains that the services conform to the initial request. The analysis concludes with a view that DCA I's and II's are insulated from possibilities of conflict in that their recommendations must meet set standards subject to scrutiny of supervisors, physicians and quality assurance reviews. Discussion: The question to be answered is whether Disability Claims Adjudicators with L &I are to be considered "public employees." The Ethics Law defines that term as follows: . eection 2. Definitions "Public employee." Any individual employed by the Commonwealth or a political subdivision who is responsible for taking or recommending official action of a nonministerial nature with regard to: (1) contracting or procurement; Eleuterj, 96 -516 February 29, 1996 Page 4 65 P.S. §402. (2) administering or monitoring grants or subsidies; (3) planning or zoning; (4) inspecting, licensing, regulating or auditing any person; or (5) any other activity where the official action has an economic impact of greater than a de minimis nature on the interests of any person. "Public employee" shall not include individ -uals who are employed by the State or any political subdivision thereof in teaching as distinguished from administrative duties. The regulations of the State Ethics Commission similarly define the term public employee as above with the additional following criteria: (ii) The following criteria will be used, in part, to determine whether an individual is within the definition of "public employee ": (A) The individual normally performs his responsibility in the field without onsite supervision. (B) The individual is the immediate supervisor of a person who normally performs his responsibility in the field without onsite supervision. office. (C) The individual is the supervisor of a highest level field (D) The individual has the authority to make final decisions. (E) The individual has the authority to forward or stop recommendations from being sent to the person or body with the authority to make final decisions. (F) The individual prepares or supervises the preparation of final recommendations. (G) The individual makes final technical recommendations. (H) The individual's recommendations or actions are an inherent and recurring part of his position. (I) The individual's recommendations or actions affect organizations other than his own organization. (iii) The term does not include individuals who are employed by the Commonwealth or a political subdivision of the Commonwealth in teaching as distinguished from administrative duties. Eleuteri, 96 -516 February 29, 1996 Page 5 51 Pa. Code §1 1.1. (iv) Persons in the following positions are generally considered public employes: (A) Executive and special directors or assistants reporting directly to the agency head or governing body. (B) Commonwealth bureau directors, division chiefs or heads of equivalent organization elements and other governmental body department heads. (C) Staff attorneys engaged in representing the department, agency or other governmental bodies. (D) Engineers, managers and secretary- treasurers acting as managers, police chiefs, chief clerks, chief purchasing agents, grant and contract managers, administrative officers, housing and building inspectors, investigators, auditors, sewer enforcement officers and zoning officers in all governmental bodies. (E) Court administrators, assistants for fiscal affairs and deputies for the minor judiciary. (F) School superintendents, assistant superintendents, school business managers and principals. (G) Persons who report directly to heads of executive, legislative and independent agencies, boards and commissions except clerical personnel. (v) Persons in the following positions are generally not considered public employes: (A) City clerks, other clerical staff, road masters, secretaries, police officers, maintenance workers, construction workers, equipment operators and recreation directors. (B) Law clerks, court criers, court reporters, probation officers, security guards and writ servers. (C) School teachers and clerks of the schools. The question you present must be reviewed under these provisions of the statute and the regulations of the Commission in Tight of the duties and obligations as described in the job description and /or classification specifications, under which DCA I's and II's operate. The inquiry necessarily focuses on the job itself and not on the individual incumbent in the position, the variable functions of the position, or the manner in which a particular individual occupying a position may carry out those functions. See Phillips v. State Ethics Commission, 79 Pa. Commw. 491, 470 A.2d 659 (1984); and Mummau v. Ranck, 531 Fed. Supp. 402 (E.D. Pa. 1982). Eleuteri, 96 -516 February 29, 1996 Page 6 Also, in reviewing your question, the Commonwealth Court in its ruling in Phillips, supra, at page 661, directs that coverage of the Ethics Act bb construed broadly, rather than narrowly, and conversely, directs that exclusions from the Ethics Law should be narrowly construed. Based upon this directive and reviewing the definition of "public employee" in the statute and the regulations and opinions of this Commission, in light of the job functions and the information available to us, the necessary conclusion is that DCA I's and II's are "public employees" subject to the financial reporting and disclosure requirements of the State Ethics Act. It is clear that in the capacity as a DCA, such persons have the ability to recommend official action with respect to subparagraph (5) within the definition of "public employee" as set forth in the Ethics Law, 65 P.S. §402. Specifically, the DCA's have the authority to adjudicate claims which will have an action greater than a de minimis economic impact on the claimant, notwithstanding that such decisions may be overturned by a physician. DCA's can also cause expenditures to be made for evidence as to a claim. These activities fall within the definition of public employee as contained in the regulations of the Commission in Section 11.1, subparagraph (ii). 51 Pa. Code §11.1. Under these circumstances and given the duties and responsibilities as outlined above, persons employed as DCA's are "public employees" as that term is defined in the Ethics Law. See also, Phillips, supra, where Commonwealth Court upheld a Commission decision that a Claim Settlement Agent in DPW was a public employee who investigated assistance standing vis -a -vis restitution and analyzed information as to assistance claims for which he used discretion and judgment. In rejecting Philips' argument that he was in a low level position, like caseworkers, with little discretion, the Court noted: at 494. The Petitioner's second argument is that the Commission violated its own regulations in holding him to be a public employee. He contends that under the regulation which lists certain positions as generally not considered to be public employees positions, his position must also be excluded because it affords him Tess discretion in his duties than certain of those listed. Specifically, he contends that police officers, detectives and welfare caseworkers are afforded and exercise more discretion than a C.S.A. I and because the regulation generally considers the holders of such positions not to be considered to be a public employee. * * * In light of the liberal, expansive interpretation to be given the Act's coverage provisions and the substantial evidence supportive of the findings underpinning the Commission's conclusion that a C.S.A. I is a public employee position we reject Petitioner's argument. See also, Schmidt, Opinion 93 -008, where the Commission determined that a DPW Vocational Rehabilitation Counselor, who argued that her duties were limited to counseling /placement with no expenditure authorizations or approvals being made, was a public employee. Eleuteri, 96 -516 February 29, 1996 Page 7 Conclusion: Persons employed by L &I as DCA l's and II's are to be considered "public employees." Accordingly, they must file Statements of Financial interests for each year in which they hold the position outlined above and for the year following termination of this service. If they have not already done so, Statements of Financial Interests must be filed within 30 days of this Advice. These Statements of Financial Interests would report information of the prior calendar year. Pursuant to Section 7(111, this Advice is a complete defense in any enforcement proceeding initiated by the Commission, and evidence of good faith conduct in any other civil or criminal proceeding, providing the requestor has disclosed truthfully all the material facts and committed the acts complained of in reliance on the Advice given. This letter is a public record and will be made available as such. Finally, if you disagree with this Advice or if you have any reason to challenge same, you may appeal the Advice to the full Commission. A personal appearance before the Commission will be scheduled and a formal Opinion will be issued by the Commission. Any such appeal must be in writing and must be actually received at the Commission within thirty (30) days of the date of this Advice pursuant to 51 Pa. Code § 13.2(h). The appeal may be received at the Commission by hand delivery, United States mail, delivery service, or by FAX transmission (717-787-0806). Failure to file such an appeal at the Commission within thirty (30) days may result in the dismissal of the appeal. erely, incent . Dopko Chief Counsel