a police fitness-for-duty case (not FL)

Koessel v Sublette County Sheriff’s Dept., 717 F.3d 736 (10^th DCA 2013)

Sheriff’s Deputy Koessel suffered a stroke. After returning to work, he had a number of emotional/behavioral problems. He was sent to a neurologist for an FFD. Neurologist recommended a neuropsych eval. A psychologist found him unfit for regular duty, and recommended low-stress work, w/o regular contact with the public. He was subsequently terminated, as the Dept did not have any such positions. He sued the Dept, alleging ADA, contract, and section 1983 violations. Trial court found that his claim that he was able to perform the essential functions of his job (even with reasonable accommodation) failed, because he put forth no evidence contradicting the psychologist’s report. Summary judgment was granted for all 3 claims. He appealed; however, his claim failed because he had not presented evidence. The Dept stated that his impairments interfered with at least 3 essential job functions (1), preserving the peace at public gatherings, neighborhood disputes and family quarrels; (2) conferring with prosecutors and testifying in court; and (3), apprehending suspects. He did submit evidence that his performance on standard psychological tests was unchanged from his performance before his stroke, this evidence was insufficient to support his claim. The Court said, “even accepting this evidence in the light most favorable to Koessel, it only shows he was physically fit for his job, not that he could cope with high stress situations. Koessel introduced no evidence disputing Dr. Enright’s findings that he suffered lingering psychological deficits that would interfere with his ability to perform his job. … A psychologist’s report reaching the opposite conclusion to that of Dr. Enright might have created a sufficiently debatable question to send to a jury. But Koessel produced nothing to contradict Dr. Enright’s report." Further, the court found that he did “not explain or introduce evidence showing that the problems Dr. Enright focused on – fatigue, lightheadedness, and emotional disinhibition – would have been revealed by the psychological test. Thus, there is no support for his argument that the test results conflict with Dr. Enright conclusion.” Finally, the court opined that although he had been able to perform non-stressful duties, he had introduced no evidence that he had performed in emergencies or other tenants, stressful situations.

The court noted that an agency is required to make a reasonable effort to accommodate the disabled employee. The ADA requires at least two forms of accommodation 1-a modification of the particular job performed by the employee or 2- reassignment to another job that can be performed with or without the first type of accommodation. In addition, employees have the burden to request accommodation, unless the employer has foreclosed the interactive process through its policies or explicit actions. In this case, Koessel did not request the first type of accommodation. Although he argued that he was able to perform his duties without modification, “it is not the employer’s responsibility to anticipate the employees needs and affirmatively offer accommodation if the employer is otherwise open to such requests” in regard to reassignment, the court noted that “employers have a duty to reassign, but only when it is reasonable under the circumstances. Typically this means employers are only required to reassign employees to existing vacant positions. A position is vacant when a similarly situated, nondisabled employee would be able to apply for it." The employee bears the burden of identifying a specific vacant position to which he or she could reasonably be assigned. In this case, Koessel did not identify any positions to which he could have been reassigned.

Koessel also argued that the department did not specify exactly how he was unfit for duty or from what disability he suffered, depriving him of a meaningful opportunity to challenge his termination. Under Wyoming state law the employee must be given specific notice and give the employee a real and meaningful opportunity to respond to every charge or allegation that is being brought against them and which will be used as a cause for his termination. The Wyoming Supreme Court has equated this type of notice and hearing with due process. The court opined that the department’s notice that he was “not physically fit”, and was “being terminated for safety reasons and to prevent injury both to himself and to members of the public” was adequate. Further Castle had had an opportunity to receive the report, review it, and discuss it with his Sheriff. The psychological report describe his symptoms in detail and how they could interfere with his duties.

What this means for psychologists, employers, and/or attorneys

---If you are hired as the Plaintiff’s expert, you should address the specific limitations alleged in the original report.

---If you are the defense attorney, you should attempt to foreclose the plaintiff’s opportunity to present evidence addressing your expert’s findings

---In order for officers to understand and possibly dispute the reasons for their termination, a copy of the psychologist’s report may be required (in contrast to common practice – FFD reports are not provided to the employee). Employers would need to provide the report prior to litigation. Since it is likely that the employee has an independent right to a copy of his/her records, outside of litigation, both employer and employee should be informed of this right prior to initiating the evaluation.

--- In order to protect itself from litigation, the employer may wish to explain the result of the unfavorable report to the employee. The employer and psychologist should reach an agreement regarding this process and who will conduct it (if needed), prior to initiating the evaluation.

---It seems as though there might have been a lack of foundation for a finding of emotional disinhibition, when the test results were similar to his pre-employment testing. It also appears that the results were accepted without controversy. Did the plaintiff’s attorney fail to present evidence that would have impeached the psychologists findings? At the very least, that would seem to be a prudent course of action.

Refusing to release records - excuse #13

I'm surprised that I keep learning of new excuses for refusing to release records, but I do. We are now on excuse number 13.

Another attorney contacted me today about an intransigent psychologist who refused to release MMPI-2 scores. He had declined to put them in the report, so they existed only in the computer-generated-interpretation produced by Pearson. His reasoning was that the CGI, including scores, were protected by copyright, so the attorney could not have them.

The problem with the 'copyright' excuse is that the use proposed by the attorney falls into the fair use exception, in copyright law. IOW, there is no copyright protection for what the attorney wants to do with it.

Further, I think that the argument that the scaled scores are protected is unsustainable. That's the basis of the expert's opinion, so that information must be discoverable by the other side.

We are so willing to protect the patient against harmful breaches of confidentiality, yet we could seemingly care less about protecting the patient's right to tell us when TO release records (thereby not harming the patient when by releasing the records to the right person at the right time). Confidentiality literally does not exist without it's flipside sibling - for example, if the practitioner merely protects the records from improper disclosure but does not permit the patient control over when the records ARE released, that's akin to no control whatsoever, because the psychologist makes all the release decisions (none). 

Records cannot be withheld from the patient / evaluee (whatever name you refer to them). Healthcare providers are risking both a license and HIPAA complaint, at the very least. In Florida, there have been six licensing sanctions against forensic mental health provides, just in the last 10 years.

www.FL-forensic.com

Fraser v. Avaya Civil Action No. 10-cv-00800-RPM.

Another HIPAA case. In Fraser v. Avaya, the Court seems to opine on the matter of whether the evaluee can be required to sign away his/her rights in a forensic matter.

If you have read some of my articles (www.fl-forensic.com), you will know that some FMHPs refuse to release records (just had another attorney consult me on that today, in fact!). One of the justifications for doing so is an assertion that they can require the evaluee to sign a form stating that they have no right to access their records. 

In this case, the employer required the evaluee / disability-applicant to waive confidentiality rights (permitting disclosure to persons who had no right to the records), denying benefits when the employee refused to sign.

Among other complaints, the employee alleged violation of HIPAA. In it's opinion, the Court seemed to agree, eventually denying Avaya's motion for summary judgment and remanding for evidentiary hearing(s).

Here's a summary of the opinion:

Fraser applied for disability

 Multiple doctors, including an IME, diagnosed him as disabled

Case manager required him to sign a release form authorizing access of the medical records to “any affiliate or representative of Avaya or persons performing business or legal services on its behalf, ” even though the information would be “used only to evaluate whether or not my medical condition satisfies the requirements of federal, state or local FMLA and disability laws, state Workers’ Compensation and/or Avaya’s welfare benefit plans”.

He refused to sign and Avaya denied his claim.

The Court said “an employee’s application for disability benefits provides a legitimate business reason for an employer to obtain information about the medical diagnosis supporting the application” but that “does not justify requiring the applicant to sign a medical authorization form that would authorize disclosure of confidential medical information to more persons than those necessarily involved in the evaluation of the application”.

The Court also said “Reasonable jurors may conclude that the scope of disclosure stated in Avaya’s preprinted form was unnecessarily broad and that the plaintiff had a reasonable concern about whether his right to medical privacy would be protected”

http://scholar.google.com/scholar?scidkt=4791583976784800839&as_sdt=2&hl=en

JB v. DCF 107 So.3d 1196 (2013).


Here's another interesting case, in the area of child abuse / dependency / child protection / termination of parental rights:

http://scholar.google.com/scholar_case?case=15051245391346990206&hl=en&as_sdt=2,10

This is a case out of 1st DCA, in Tallahassee. In JB, the DCF removed six children from the home, based on allegations of child neglect, including medical neglect. Admittedly, the family had had multiple problems, and they had been involved in prior dependency cases.

What makes many dependency cases interesting, from a psychologist point of view, is that termination of parental rights (section 39.806, F.S.) requires TWO findings:
1. when the child has been adjudicated dependent, and
2a. the child continues to be abused, or
2b. the parents fail to substantially complete the case plan, or
2c. even if the parents completed the case plan, the continuing involvement of the parents threatens the well-being or mental or emotional health of the children

BTW, these cases need to be won at the trial level, because the standard of review is the highly deferential "no one could reasonably find such evidence to be clear and convincing" standard  A.H. v. Fla. Dep't of Children and Family Services, 85 So.3d 1213, 1215 (Fla. 1st DCA 2012).

IOW, based on the above criteria, the psychologist expert must make a risk determination / assessment regarding whether there is a substantial risk of significant harm, and whether termination of parental rights is the least restrictive means of protecting the child.

In this case, the question was whether the three years that had passed, from 2009 to 2012, would be relevant to a risk assessment. The mistake made by the trial court was to rely solely on the then-three-year-old determinations of dependency, without consideration of other evidence.

Further, the 1st DCA reminds us that the burden is on DCF to prove the risk, at the clear and convincing level.

The Court observed that there was numerous evidence of a lack of risk, including residences that were not unclean, unsafe, or unsuitable, a lack of substance abuse, no evidence of behavior that could be considered to present a risk to the children, or any substantial harm to the child in question. The Court also observed that DCF failed to perform its job, including a reunification case plan and proving that termination was the least restrictive means of protecting the child.

Although prior terminations can be considered as evidence, that was not sufficient to establish future risk, because there was no nexus between the past events and predicted future behavior - even if they are poor and their housing unstable.

Prediction of future risk requires an assessment that the future behavior "can be clearly and certainly predicted"  Palmer v. Dep't of Health & Rehabilitative Servs., 547 So.2d 981, 984 (Fla. 5th DCA 1989). One example of this is "if the parent is so afflicted that no reasonable basis exists for improvement" L.B. v. Dep't of Children & Families, 835 So.2d 1189, 1195 (Fla. 1st DCA 2002).

The Opinion does not state whether an expert provided an opinion in this case. An expert opinion is often required, and is sometimes misused by DCF. The reason that it is misused is that experts often make predictions of child abuse that is based more on personal opinion than on science. An additional problem, in the area of child abuse, is that the research is relatively sparse. Termination of parental rights has been called, by Randy Otto, PhD, the 'red headed stepchild' of psychology. It receives little attention or research funding, and experts are often left with little to stand on.

I'm hoping that the new Daubert evidence law will improve the situation. It will depend, in large part, on the willingness of the Courts and defense attorneys to cross examine experts and bring us, kicking and screaming, into the 21st Century.
Bruce Borkosky, Psy.D.
www.FL-forensic.com