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Generally, school districts have broad authority to assign duties to their employees. Because most school employees work under collective bargaining agreements, however, there are contractual limitations regarding the duties that districts can unilaterally assign to employees. If an employee believes a certain assignment falls outside the scope of the duties of his or her position, a union may challenge the legality of the assignment. This can interfere with districts’ efforts to accomplish goals, including meeting new governmental mandates.

A dispute involving assignment of duties was recently decided in favor of a school district. The Glen Cove City School District had directed school social workers, psychologists and speech pathologists to assume new duties involving paperwork on Medicaid reimbursement and to deliver services in a way that improved documentation. The Glen Cove Teachers Association challenged this by filing an improper practice charge with the New York State Public Employment Relations Board (PERB), a quasi-judicial body in Albany that is empowered by the Legislature to settle disputes involving New York’s collective bargaining law, commonly known as the Taylor Law.

The union cited a section of the Taylor Law that makes it an improper practice for a public employer to refuse to negotiate regarding employees’ terms and conditions of employment.

PERB has long held that collective bargaining is not required when the district has assigned duties that are part of the essential functions of an employee’s position. In other words, it is a management prerogative for a school district to vary the duties and assignments of employees, as long as the changes do not alter the essential character of their positions. But even duties that fall within the scope of an employee’s position could be subject to mandatory negotiations under certain circumstances. For instance, if an assignment involving the performance of inherent duties lengthens the workday or will result in a significant increase in workload, it could be a mandatory subject of bargaining.

One question in the Glen Cove case involved how much the district was demanding of employees related to paperwork for services for students with disabilities who are Medicaid-eligible. State Medicaid administrators routinely reimburse districts for the costs of providing services such as psychological evaluations, speech therapy and psychological counseling to these students.

In the wake of a federal audit that found $1 billion of improper billings to Medicaid in New York State, the state entered into a settlement and compliance agreement in 2009 in which it pledged to improve state monitoring of Medicaid reimbursements. As a result of the compliance agreement, the state began requiring better documentation of services to Medicaid-eligible students.

In Glen Cove, administrators instructed staff to make changes aimed at ensuring the district was conforming to state requirements regarding Medicaid-related documentation. For instance, employees were required to take contemporaneous session notes. This means that, as soon as practicable after each session, staff members were to record a note for the session, indicating the service provided and the progress achieved by the student. They were also required to use standard medical codes on Medicaid forms and undergo training on a federal code for diagnoses and conditions.

The union argued that these changes, including the training requirements, were improper because they (1) expanded their responsibilities, (2) fell outside the scope of duties inherent in their positions, and (3) improperly increased their workload.

The district contended that (1) the new duties were related to the nature of their positions, (2) the affected staff members had been doing substantially similar work for years prior, and (3) the expanded filing requirements did not significantly increase their workload.

A PERB administrative law judge (ALJ) reviewed all of the employees’ Medicaid-related duties at issue and found in favor of the district in each instance.

First, the ALJ noted that PERB has established that employee training during normal work hours is a managerial prerogative. Therefore, it is not a subject that requires negotiations. Second, she held that the completion of Medicaid reimbursement forms was a task incidental to unit members’ essential role in providing services to disabled students with individualized education plans. Witnesses for both the union and the district testified that staff had been completing some type of Medicaid reimbursement form for many years before the new rules went into effect.

The ALJ also dismissed a claim contesting the requirement that the contemporaneous session notes be recorded. The record revealed that keeping notes was crucial for any professional providing counseling services to children, whether required as part of Medicaid reimbursement or not. The ALJ stated, “The duty of writing session notes … is clearly inherent to the nature of their work … That they must maintain notes more frequently and soon after each session does not change the essential character of the work.” The district was also successful in arguing that the unit members could use their duty periods or in-service time to complete the notes.

Another issue involved the requirements that district staff use standard medical codes on Medicaid forms. Noting that the affected staff had used some sort of identifying system to label what type of service was provided (e.g., 30-minute individual counseling or 45-minute group counseling), the ALJ determined that the task of classifying the provided service was not new and was part of regular job duties.

A final claim by the union involved whether the district was newly requiring staff to hold professional licenses, which they claimed was not prerequisite for their positions. There was a requirement that each employee providing Medicaid-eligible services obtain a National Provider Identification (NPI) number, and the process for obtaining an NPI involves submission of a professional license number. The ALJ reviewed PERB precedent and concluded that if the tasks requiring the license are part of the essential aspects of the position’s basic functions or are incidental tasks, then the use of an employee’s license can be required by the employer without negotiation. Regarding the union’s contention that the district was obligated to cover the cost for unit members to maintain their licenses, the ALJ said that issue should be raised as a demand for impact bargaining. (Impact bargaining is the right to negotiate over the effects of the new requirement if one side believes the proposed change affects one or more subjects within the scope of representation, such as wages, hours, or other terms and conditions of employment.)

The Glen Cove decision is important because it reinforces the broad authority that districts have in assigning duties to their employees. The decision provides guidance to districts that wish to ensure that their directives to employees to complete Medicaid-related duties are within their management prerogative.

Also, this decision may have broader implications for other, non-Medicaid related duties, especially as state mandates increase. Scope of employment claims could arise related to requirements that teachers spend time receiving training in subjects such as the Common Core, creating student learning objectives or preparing curriculums. Of course, the terms contained in districts’ collective bargaining agreements will certainly play a role in the applicability of this decision to other districts and in other specific factual scenarios. The decision is Glen Cove Teachers Ass’n v. Glen Cove City School Dist., 46 PERB ¶ 6601 (2013).

To read a copy of the decision go to PERB-glencove.

Members of the New York State Association of School Attorneys represent school boards and school districts. This article was written by Cheryl Sarles of Ingerman Smith, LLP.


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