Saturday, April 01, 2006

Know Your Rights: Principals Beginning to Seek Confirmation of Sick Notes Violates Federal Law

It has happened to us all…You get a bad flu or some other illness that requires that you call in sick. Being extra careful you visit your doctor, receive treatment and obtain a medical excuse note that you promptly give to your payroll secretary when you return.

The days come out of your Cumulative Absence Reserve (CAR) and that’s the end of it. Right?

A disturbing trend has begun to emerge. Principals and other supervisors are verifying the “doctor notes” and in some cases bringing our members up on charges for providing what they believe are false or tampered doctor’s notes.

One case in point. A teacher, from District 75, after 10 years of unblemished and exemplary teaching began to have some “disagreements” with her principal. One day, one of her students struck her causing injury to her hand. While the principal balked at first, the injury in the line of duty forms were completed and the teacher went to her doctor for treatment.

The doctor examined the teacher and determined that three days were needed for recuperation which placed her back at work on a Friday. The teacher asked the doctor for one more day and he consented and adjusted the note accordingly.

When the teacher took the note back to school all seemed o.k. until, about two months later she was summoned into the principals office and questioned about who changed the doctor’s note. She vehemently denied having anything to do with the note and was then sent to the rubber room.

She languished in the rubber room for almost a year when she found out that her doctor had told investigators from special investigations that he had not made any changes to the note. Faced with this information and upon advice from her NYSUT lawyer the teacher agreed to leave her job and pay a $2500 fine. She was subsequently hired in another state.

When I first heard of this case I wondered how this could have happened under the HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT OF 1996 or HIPAA, the federal law that, among other things, protects us from unauthorized disclosure of medical records.

Without a proper release or properly noticed subpoena it is a violation of this federal law for your doctor or health care provider to supply any record or confirm the existence of a medical record to the DOE. This includes visits, diagnosis, or any other medical information.

In the case above the DOE would probably not be in violation of HIPAA but the teacher’s doctor most assuredly would be. When you are treated by a health care provider and you do not wish the DOE to know anything more than the date you should return to school remind your health care provider of her responsibilities under HIPAA. If your principal asks for more information remind him of HIPAA and the laws against disability discrimination.

37 comments:

jameseterno said...

Jeff-

If it is illegal to use these records, why couldn't the teacher make these records inadmissable at the 3020A (the hearing where they try to dismiss tenured teachers and others)?

Also, why can't the teacher sue the DOE?

Anonymous said...

Principals are going back three years looking for "pattens" in absences. If a teacher was satisfactorily rated for the last two years, why are they being allowed to look back to absences in those previous years? Because of the new LIF contract provision, has a new three year disciplinary issue rule developed as well?

Anonymous said...

Wasn't there a rule about going back to previous years and that previous years couldn't be used against you????

Jeff Kaufman said...

There's a real problem about keeping records out since Herkskowitz (the teacher whose records were ruled inadmissible since they were received into evidence in violation of his constitutional rights). The problem is that the DOE shouldn't be able to get those records in the first place.

Anonymous said...

HELP!

Letters are going out to parents giving them the right to have any teacher's or para's certification investigated.

Klein is using NCLB to make our lives an open book. Why should 30 parents have the right to inquire about my certification? If they want this info, can't principals write a general letter stating that the whole staff is certified without making it personal?

17 more years said...

Anonymous-
Teachers' certification records have been online for years- but the SED has just recently begun upgrading and updating the site to bring it current.

As far as teacher absences go- I understand that principals are being told to look at teachers' CARs to make sure they have an adequate number of days banked. How could this possibly be legal?

Anonymous said...

17:

Never, have parents been issued a form to fill in the names of those they want verified for certification which will be sent to the region for official verification and then mailed back to the parent.

Do I get to investigate the parents??

17 more years said...

You're right anonymous, they didn't have to do any paperwork- they just went online to get the information they wanted. While I agree the DOE facilitating this is more insidious, this information was always a matter of public record.

Anonymous said...

It should not be implemented this way because the implications in the long term are deadly for teachers. Long Island teachers are not being subject to this indivual query. If one teacher gets many requests for background info from parents because they don't like the particular teacher, wouldn't this somehow get the region's attention since the form goes directly to the region?

If there is a website, then write a general letter to all parents telling them where to look.

I don't even know this website.

HAVE YOU SEEN THE FORM I AM TALKING ABOUT?

EVERY TEACHER IN MY SCHOOL FINDS IT OFFENSIVE AND INTRUSIVE. WHAT'S NEXT? If ICE does not think this is a big deal, then I will not be able to support them in any election.

Anonymous said...

Dear Anon:

While the law does give parents the right to know our certification history, you are correct that the form did not need to go directly to parents but make it known to them that these forms are available upon request.

I agree that these forms should not go directly to the parents unless the parent, after receiving notification of their right, requests the form.

Parents might want this info on the Jr.H or HS level if they feel that the teacher is teaching out of their license.

When will the NCLB Act check on the qualifications of administrators. I seem to recall that the DOE fired a few that were working for Klein because of phony credentials.

Anonymous said...

To anon 4:18:

You are being just plain stupid. "This" is the biggest deal to you? Of all the things UNITY has done to us, oops, I'm sorry, for us, you take issue with ICE if they don't put "this" on the top of their agenda? You must be the spouse of a teacher and looking to break some chops for some fun. Get a grip!

Anonymous said...

Maybe anon 4:18 is just being facetious.

NYC Educator said...

Why on earth would a teacher agree to leave and pay a fine if the doctor had adjusted the note?

Anonymous said...

Thank you annon 4:18. It's nice to see someone at ICE knows when I compare 17 More Years to the same apathy we get from Randi, it's facetious. I thought only Brownnose knew that word.

However this case should not be taken lightly. It was just reported that the Feds are now declaring that Conneticut teachers with 20 or more years do not fall under what they considered "certified" and now these teachers may have to face another test to keep their jobs. Is NYS next?

Anonymous said...

I meant Annon 7:58.

Anonymous said...

I apologize to anon 9:57: I have difficulty reading into humor, facetiousness and sarcasm. I'll blame it on the wine.

Anonymous said...

I accept your apology, but what's your deal about "the spouse of a teacher breaking chops?" I hope all is well on your homefront.

Yep, Unity has been lousy. But even Unity was in favor of these forms being distrubuted when in fact they don't have to be. When Unity and Ice agree, well than maybe hell is freezing over.

Anonymous said...

I 'm pretty sure NYS has one of the highest qualifications for certification in the country. we've been ahead of most states so I don't think we'll falll anywhere clos to CT or elsewhere.

Anonymous said...

Ct. didn't think so either, that's why they are fighting it.

Again, this is the Feds making the determination. Teachers who started 30 years ago or more did not need certification if they had a NYC license. I know of many teachers who are not state certified but where "grandfathered" in. Let's hope they get to retire before the feds catch up to them. Remember they still might have some years to go due to taking years off for maternity leave.

Anonymous said...

Who's Really Fit To Teach?

`No-Child' Report Questions Teacher Skills

By ROBERT A. FRAHM
Courant Staff Writer

April 4 2006

Thousands of Connecticut teachers, including some award-winning educators, could face new job reviews because they do not meet U.S. government standards as "highly qualified teachers," federal officials say.

The U.S. Department of Education has issued a new monitoring report that throws into question the qualifications of more than 13,000 teachers, about 30 percent of the state's public school teaching force, state officials say.

State education officials have vowed to challenge the report's conclusion that many teachers - especially older elementary teachers and those teaching social studies and special education classes - do not meet the criteria established under the federal No Child Left Behind Act.

The findings, to be outlined at a State Board of Education meeting this week, could mean that even some of the state's most highly regarded teachers would have to undergo job reviews or possibly even take tests or further training to demonstrate their competence.

"It would be a real slap in the face," said Diana Proto Avino, a 24-year veteran elementary teacher from the Pierson School in Clinton. "I would consider it a defamation of my professional character."

Teacher quality is a key element of the No Child Left Behind Act, the centerpiece of President Bush's educational agenda.

The law, which calls for a broad expansion of school testing and a shake-up of schools that fail to make adequate progress, requires states to ensure that all teachers are "highly qualified."

What that means is that all teachers - aside from having at least a bachelor's degree and state certification - must demonstrate knowledge in the academic subjects they teach.

States failing to meet that goal could risk millions of dollars in federal money.

Although the law says schools must comply by the end of this school year, U.S. Secretary of Education Margaret Spellings recently extended the deadline until next year for states making good faith efforts.

Under the law, schools that receive federal Title I money must notify parents whose children are being taught by teachers who do not meet the standard.

Although states are allowed to establish their own methods for determining which teachers are highly qualified, a federal monitoring team that visited the state in January said Connecticut's method falls short in some areas.

State officials must file a reply to the report by April 28.

Across the nation, the federal government has been relatively flexible in allowing states to determine who is qualified to teach, said Jack Jennings, president of the Center on Education Policy in Washington, D.C., an organization that has conducted national surveys on the impact of the No Child Left Behind Act.

"I'm surprised they're being strict with Connecticut," he said.

Federal officials said they have raised similar concerns about teachers' command of academic material in reviews of other states, too.

The No Child Left Behind Act requires teachers "to show that they know their subjects well enough to teach them," said Stephanie Babyak, a spokeswoman for the U.S. Department of Education. "It's not fair to teachers to ask them to teach subjects, like economics, that they do not know - and it's certainly not fair to students."

In the Connecticut report, federal monitors said that elementary teachers who were certified before 1988 - Avino falls in this category - may not have demonstrated competence to teach core academic subjects such as English, reading, math and science.

The state began testing all new teachers, starting in 1988, in subject-matter knowledge.

"To change the rules retroactively and impose new qualifications is just not playing fair," said Avino, who has won a state Celebration of Excellence award and the prestigious Milken Family Foundation National Educator Award. "Shame on the federal government for having this narrow view of what makes a highly qualified teacher."

The federal monitors also said that a broad general test required of the state's social studies teachers may not be adequate to measure competence in four specific areas: history, geography, civics and economics.

Those teachers must establish credentials and demonstrate competence for each subject they teach, the monitors said.

Some educators, however, believe that would be impractical.

"No school will have the funds to hire specialists in economics, geography, political science and history to teach these different courses," said Caryn Stedman, head of the social studies department at the Metropolitan Learning Center, a public magnet school in Bloomfield. "If they enforce this, it means we'd have to eliminate so many of the electives we have."

Stedman herself might not be considered highly qualified under the federal guidelines, she said.

"I teach a course in emerging civil societies, which I wrote, [but] I don't have a degree in political science," she said. "For all intents and purposes, I don't have a history degree either, but I've been a history professor at Central [Connecticut State University] for 11 years." Stedman holds degrees in East Asian studies.

The federal monitors told state education officials that the teachers whose credentials are in question must undergo job reviews by the end of the school year to determine their qualifications.

The report also questioned whether the review procedures - created by individual school districts and approved by the state - are rigorous enough.

State Education Commissioner Betty J. Sternberg said it is possible some teachers might be required to take new tests or even to pass additional courses.

"It's not that we're against trying to make the skills of our teachers better and better," Sternberg said, "but I'm not sure taking a test or taking courses is what a veteran teacher needs."

The federal requirement to demonstrate qualifications in each of the various subjects they teach, such as math, science or history and language arts, could call into question the qualifications of nearly all of the state's special education teachers, state officials say.

"It is only going to exacerbate the shortage [of special education teachers] we already have," Sternberg said.

The additional requirements might also push some teachers to retire early, she said.

In Hartford, elementary teacher Deveria Berry said she is only a year away from retirement after teaching in the city for 34 years. She has won awards, including the national Milken Family Foundation honor, but would not meet the federal standard because she was certified prior to 1988.

"We're constantly being updated and trained," said Berry, who works at the Simpson-Waverly Classical Magnet School. "There's no way we can be considered not highly qualified, so that just seems ridiculous."

A discussion of this story with Courant Staff Writer Robert A. Frahm is scheduled to be shown on New England Cable News each hour today between 9 a.m. and noon.
Copyright 2006, Hartford Courant


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Anonymous said...

I tend to agree that the doctor was probably in violation of his medical confidentiality ethics, and possibly HIPAA, when he discussed the note without authorization.

However before you get too excited I would suggest looking closely at the definition of what consitutes a medical record under the law. It seems to me that these notes might not be covered since they are extra communications at the request of the patient, not records of the doctor's work or anything that would assist in future treatment, billing, etc. The note's limited purpose really has to do with the employer, not the doctor. It may still count as a medical record, of course; I'm just saying you should read the law's definition very carefully.

Also, the doctor could plausibly argue that the patient's original request for him/her to write the note contains implied consent for the doctor to later authenticate the note. Obviously there is not implied consent to elaborate on the details, reveal medical information, etc.

The tricky part here is that 90% of the time an employee would want their doctor to authenticate the note if questioned -- it would usually be a conclusive piece of evidence in favor of the note's legitimacy. Without the doctor's authentication, you end up with a employer's-suspicion-against-employee's-word situation that is impossible to resolve conclusively, and without strong protections for the employee in terms of burden of proof required for action, will probably resolve in favor of the employer. But if the doctor can authenticate a note, the employee should be pretty much cleared.

Also, I would say we're missing the forest for the trees here. The real problem is not the doctor discussing the note with investigators. The real problem is a prosecutorial mentality in the school administration that can't give its teachers any benefit of the doubt, and can't see any punishment smaller than dismissal. Even if a teacher did alter a doctor's note to get an extra day off, they are not making any financial profit from it (the day would still be charged to their CAR), and while dishonesty is certainly reprehensible and should be punished, I don't think it's an infraction requiring dismissal. What I'm getting at is that it seems sad to me that you have to be excited about applying HIPAA to a situation that should be easily resolved without resorting to federal statutes.

Anonymous said...

First, I know I cannot get a doctor's note without having an appointment. Second, it's stupid to alter it because they usually make a copy of it for their records because they don't want to be investigated for fraud.

Principal also use another ploy: When I am home sick, my phone rings at 8am and wakes me from a sound sleep because the school secretary is calling on the principal's behalf. That should be illegal.

Secondly, my principal did not hand out any forms to be filled out by parents and then returned to the region for verification. Instead we just handed out a general letter telling parents they have a right to know our certification history. A website was included.

Anonymous said...

Now that type of letter sounds fair to me! I suppose not every school had to hand out those insidious forms.

How come the Union lets each RIS or LIS handle it differently? Somehow that doesn't seem fair to me. We all pay the same dues.

JeffKaufman said...

To Anonymous with obvious legal training...HIPAA is pretty clear about what constitutes a medical record and what constitutes authorization. Waivers don't cut it. It is important to have your doctor supply dates of treatment notes and nothing further. Each member must be clear that no further disclosures are permitted without specific authorization. We need to make sure that our members are provided with the best legal advise available.

Anonymous said...

Jeff,

For years my doctor would write "treatment of ..." on the doctor's note. Are you saying this is no longer necessary and only the generic "was treated and will be able to return to work on..." should be used instead?

How is the union rectifying this?

Anonymous said...

I don't understand what the union is suppose to be rectifying?

Anonymous said...

It just occurred to me that you guys are grasping at straws to find "an issue".

Anonymous said...

Is the union bringing charges against the DOE for illegally using these records?

NYC Educator said...

Check out how Unity alters the truth to suit its convenience.

(And pardon the shameless self-promotion, please.)

utp snakehead said...

OK here is what I would like to know... what is our union doing about this??

Anonymous said...

This blog is still failing to answer the question...

If this is illegal, why was it held and what steps is the union doing to rectify this?

The person who answered they do not know what the union is supposed to be rectifying and this issue is grasping at straws obviously does not think this is illegal (and is a member of UNITY).

So which is it?

Anonymous said...

from Edwize (Oct. 2005)

In the past, when a teacher had an extended absence due to illness, the BOE (now the DOE) always asked for medical proof. This was called a doctor’s note. If the teacher claimed that the absence was due to an injury, say a broken leg, the Medical Division could ask for an x-ray as proof, in addition to the doctor’s note. The BOE then, and the DOE now, could not snoop around in employees’ medical records on a whim. It is not unreasonable for an employer to request proof of illness when an employee is absent with pay for an extended period of time. You may have learned something new today, but you clearly didn’t understand it.

Comment by hypatiaNYC — October 19, 2005 @ 10:15 pm

JeffKaufman said...

To the Edwise poster:

It is amazing to me how someone can spin your words to answer a question that was not posed just to make it seem that you don't know what you are talking about. HIIPA applies to medical provider records, not the employer's request for a doctor's note. The issue presented comes about when the DOE decides to verify the note with the doctor and the doctor is either intimidated or ignorant about HIIPA. Under ADA supportive medical documentation can only be demanded when there is an issue concerning the ability to do the work not to verify the cause of your absence. A union should look to how it can protect its members not how to find cover when it is not. The UFT could publicize HIIPA and its impact on us rather than allowing principals and investgators to violate our rights.

Anonymous said...

I just posted what Unity was spinning back in October.

I don't agree with it, but they make it sound legal.

Anonymous said...

Hey NYC Educator, why don't you be honest and advise everyone to read the actual posting at www.edwize.org and the response to your comments in a more "inviting" setting rather than your own mouth-piece blog.

Anonymous said...

NYEducator is not afraid to post his name on anything. For the record, I posted it not him.

Anonymous said...

Thanks for clearing that up Anonymous.