Appeal of P.P. from action of the Board of Education of the City School District of the City of Auburn and Superintendent Constance Evelyn, regarding a personnel matter.

Decision No. 16,991

(November 3, 2016)

Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C., attorneys for respondents, Donald E. Buchmen and  Katherine E. Gavett, Esqs., of counsel

ELIA, Commissioner.--Petitioner appeals certain actions directed by the Board of Education of the City School District of the City of Auburn (“respondent”) and its superintendent Constance Evelyn (“superintendent,” collectively referred to as “respondents”) regarding a medical examination.  The appeal must be dismissed.

Petitioner is a tenured building principal who has been employed by respondent since 1997 and was the building principal at one of the district’s elementary schools between 1999 and 2012.  Beginning in the summer of 2012,[1] petitioner was transferred to the position of Elementary Principal/Cayuga Centers School Director.  Her duties were divided between two positions.  She was required to spend 40 percent of her time performing elementary teacher evaluations and 60 percent of her time as the principal of the Cayuga Centers School, a residential facility for at-risk youth serving students in grades seven through twelve located within respondent’s school district.  The City School District of the City of Auburn (“district”) provides education to the students attending Cayuga Centers School.

Petitioner’s office at Cayuga Centers School was located in the basement of one of its buildings.  Petitioner states that soon after starting the position of Director, she began to experience symptoms which have plagued her since the move to Cayuga Centers School.  Petitioner’s symptoms include “congestion, chronic sinus headaches, shortness of breath, chest pressure, a sore throat, red burning eyes, dry cough and fatigue.” Petitioner also asserts that she observed “visible mold and other unknown substances on the walls of her building, in classrooms and offices.”  Petitioner voiced her concerns to staff at Cayuga Centers School and the district regarding the condition of her office and the basement classrooms at Cayuga Centers School and requested that she be given an above-ground office.  In response, respondents provided petitioner with an office at Auburn High School, rather than an above-ground office at Cayuga Centers School. Respondents also hired a private contractor to perform a visual inspection and air quality testing on the classrooms and offices of Cayuga Centers School on August 28, 2012 and January 29, 2013.  The reports from the contractor state that there is no set exposure limit for exposure to mold spores, thus indoor testing is conducted and compared to outdoor testing.  On both testing dates, some indoor mold spores were detected, however, the reports for both testing dates stated that “the presence of a few spores found indoors but not found outdoors should not be a concern.”  The reports also recommended that a better ventilation system be installed.  Respondents assert that they were working at that time on installing a new ventilation system throughout the buildings at Cayuga Centers School.

On January 8, 2013, petitioner was counseled regarding her complaints about the condition of the basement classrooms and offices of Cayuga Centers School and was given a Health Insurance Portability and Accountability Act (“HIPAA”) form to sign, authorizing the release of her medical records.  Petitioner sought to first meet with her attorney before signing the HIPAA release form.

By letter dated January 23, 2013, the superintendent notified petitioner that on January 22, 2013, respondent voted to direct petitioner to submit to an examination in accordance with Education Law §913 to determine her “physical and/or mental capacity to continue her duties.” Attached to the letter were two authorizations for release of medical information. One release referenced psychotherapy notes and the other referenced medical records.  The January 23, 2013 letter directed petitioner to fill out the release forms “for each prior physician and/or other health care provider who has such records from the last three years.”  These records were to be provided to respondents’ doctor who was to “serve as the District’s initial medical inspector for this case.”

Petitioner returned two releases “by protest” prepared for two doctors and crossed out the section on the releases that stated that information “may be subject to redisclosure”, changed the date of expiration of the authorization from December 31, 2014 to June 30, 2013 (approximately five months after signing the release), and clarified that the release pertained to “[r]ecords for the past three (3) years.”  Respondents did not accept these releases and, under threat of insubordination, petitioner submitted new releases with the only change being the expiration date of June 30, 2013 rather than December 31, 2014.

Petitioner was examined by respondents’ physician on February 6, 2013.  According to petitioner, at the examination respondents’ physician stated that he only needed to see petitioner’s medical records from her allergist.  Thus, the following day, petitioner’s attorney sent a letter to respondents’ attorney revoking petitioner’s consent for the release of medical records except for medical records from her allergist.  The record is unclear as to whether respondents accepted this limited release from petitioner.  This appeal ensued.

Petitioner asserts that her right to privacy and confidentiality have been breached by being ordered to be examined under Education Law §913 and to sign medical releases that authorize the re-disclosure of her medical records. Petitioner requests that I order respondents to limit the release of medical records to petitioner’s allergist only.  Petitioner seeks to have the Education Law §913 medical examination expunged from her file and that any medical records provided to respondents be returned to her or destroyed.

Respondents argue that petitioner’s factual and legal analysis is incorrect, that they acted within their authority under Education Law §913 to require an examination of an employee to determine the employee’s capacity to perform the duties of his or her position, and that the medical authorizations they required petitioner to execute are consistent with federal regulations. Respondents also argue that petitioner asserts constitutional claims in an inappropriate forum and that petitioner has failed to meet her burden of establishing a clear legal right to the relief requested.

I must first address a procedural issue regarding petitioner’s reply.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No. 15,901).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

Education Law §913 provides in part as follows:

In order to safeguard the health of children attending the public schools, the board of education or trustees of any school district or a board of cooperative educational services shall be empowered to require any person employed by the board of education or trustees or board of cooperative educational services to submit to a medical examination by a physician or other health care provider of his or her choice or the director of school health services of the board of education or trustees or board of cooperative educational services, in order to determine the physical or mental capacity of such person to perform his or her duties.

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).

I find that petitioner has failed to meet her burden of proof.  A board of education has a statutory right to order an employee to submit to a medical examination pursuant to Education Law §913 in order to determine the employee’s capacity to perform the duties of his or her position (Matter of Patchogue-Medford Congress of Teachers v. Board of Educ. of Patchogue-Medford Union Free School Dist., 70 NY2d 57, 69; Appeal of D.R., 48 Ed Dept Rep 358, Decision No. 15,885; Appeal of McCall, 33 id. 148, Decision No. 13,005; Appeal of El-Araby, 28 id. 524, Decision No. 12,188).  Soon after beginning her position at Cayuga Centers School, petitioner complained of symptoms that include “congestion, chronic sinus headaches, shortness of breath, chest pressure, a sore throat, red burning eyes, dry cough and fatigue.”  Further, in a January 24, 2013 letter to the superintendent, petitioner references absences which she attributes to an unhealthy work environment. In her affidavit, the superintendent states that “the students at Cayuga Centers School are at high risk ... [S]ome are overcoming substance abuse, others have disciplinary or emotional problems.”  The superintendent proceeds to explain that the special needs of these students require that the assigned principal spend 60 percent of her time there.  Indeed, respondents assert that it is “fundamental” that the assigned principal be present at Cayuga Centers School for the assigned 60 percent due to the “at risk” student population that attends the school. In light of petitioner’s numerous health complaints, which she claims are caused by the conditions at the school, her absences and respondents’ need to have an individual in the position of principal of Cayuga Centers School who can perform the duties, I find that it was reasonable for respondents to require that petitioner be subject to a medical examination in order to determine her physical and/or mental capacity and whether it affects her ability to perform her job duties.

Petitioner also asserts that her right to privacy and confidentiality was breached by being subject to an Education Law §913 medical examination.  Additionally, petitioner questions why she was required to be examined when Education Law §913 states that its purpose is to “safeguard the health and safety of children attending the public schools.”  Although petitioner complained of several negative health effects she was suffering because of the conditions at Cayuga Centers School, the superintendent avers that the school did not receive any other complaints regarding the conditions at Cayuga Centers School and that she visited the school on “numerous occasions” and did not observe the conditions of which petitioner complained. Further, as described above, the superintendent states that “it is paramount that the petitioner spend sixty percent of her time at the Cayuga Centers School.”  Additionally, I note that the January 23, 2013 letter from the superintendent to petitioner directing her to undergo an Education Law §913 examination states that it was being ordered so that the medical inspector(s) could determine her “physical and/or mental capacity to perform her duties.”

It is well-settled that “teachers in this State are generally required to submit to an examination to determine their physical and mental fitness to perform their duties,” and that teachers “therefore have a diminished expectation of privacy with respect to State inquiries into their physical fitness to perform as teachers” (Matter of Patchogue-Medford Congress of Teachers v. Board of Educ. of Patchogue-Medford Union Free School Dist., 70 NY2d 57, 69 [1987]).  In light of this diminished expectation of privacy, petitioner’s ongoing health complaints and her belief that they were caused by conditions at the Cayuga Centers School, additional explanation by respondent as to why it was requiring the Education Law §913 examination was unnecessary.  Petitioner herself placed her capacity to continue to perform her duties at issue by asserting that she has numerous debilitating health issues and, as a consequence, respondents had reason to suspect that her health issues may affect her ability to perform her duties as principal.

Nor do I find it unreasonable that respondents sought three years of petitioner’s medical records as part of the Education Law §913 medical examination.  “Legitimate requests for medical information by those responsible for the health of the community do not rise to an impermissible invasion of privacy” (Strong v. Board of Educ. of the Uniondale Union Free School Dist., 902 F2d 208, 212 [1990]).  In respondent’s January 22, 2013 resolution requiring the Education Law §913 medical examination, respondent directed petitioner to provide:

all relevant medical records from all health care providers with whom she has consulted or from who she has received treatment during the last three years, or such other time period as is deemed appropriate by the District’s school physician and/or medical inspector(s).

In her January 23 letter, The superintendent wrote that it is the usual practice of the district’s assigned doctor “to consult with and review records from an examinee’s prior treating physician(s) and/or other health care provider.”  Contrary to petitioner’s assertion, respondents’ request is unlike the school board’s request in O’Connor v. Pierson, 426 F3d 187 (2005), where the medical records release form had no time or subject matter limitations on the records; the requested release was to both the school physician and the Board of Education itself; and the Board insisted that it had the right to review records from an alcoholism-rehabilitation facility at which O’Connor received treatment more than thirteen years earlier (O’Connor v. Pierson, 201 F3d 187 [2005]).  While it is true as petitioner asserts, that a school district does not have “unfettered discretion to compel the production of medical records” I cannot find that respondents’ request for three years of medical records in this case for the purpose of assessing petitioner’s physical and mental capacity to perform her duties was an abuse of its discretion.

Petitioner’s request that I order that respondents be limited to requesting that petitioner sign an authorization for records of an allergist during a specified period must also be denied.  Petitioner cites no authority for such a limitation and indeed I find none in Education Law §913. To determine the capacity of an employee to perform their duties, a school district may need records from multiple health practitioners and the employee has no right to choose which records to supply.  In this case, respondents requested disclosure of “all relevant records,” and were not required to limit the request to records of a health provider in a particular medical specialty.

Petitioner also objects to the re-disclosure language in the HIPAA release that respondents required her to sign.  The relevant language in the HIPAA release states “[T]he information to be used or disclosed may be subject to re-disclosure, insofar as relevant for employment purposes, by the District Medical Inspector(s), and would then no longer be protected by federal privacy regulations.”  However, the federal regulations governing HIPAA release requirements specifically require that the authorization contain a statement that adequately notifies the individual of the ”potential for information disclosed pursuant to the authorization to be subject to redisclosure by the recipient and no longer protected by this subpart”  (45 CFR §164.508 [c][2][iii]).  In other words, petitioner was required to be put on notice in the HIPAA release form that, once the document(s) responsive to the release have left the control of the health care provider, it is possible the documents(s) may be re-disclosed by the recipient, which would render the documents no longer protected under HIPAA.  No evidence has been proffered that respondents intended to re-disclose petitioner’s health documents or that they in fact were re-disclosed.  Therefore, I find petitioner’s argument that the re-disclosure provision of the HIPAA release form violated her right to privacy without merit.

Petitioner has not met her burden of establishing that respondents improperly required her to be subject to an examination in accordance with Education Law §913 and to sign HIPAA release forms for medical information to be used in conjunction with the medical examination.  Thus, on this record, I will not declare respondents’ actions to be null and void as requested by petitioner, nor will I order the expungement of the records of such actions from her personnel file. 

THE APPEAL IS DISMISSED.

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