January 2013 - Issue 11

California JPIA Training Academies

Delegation of Claims Handling Authority

Carl Sandstrom, Business Projects Manager

ADAAA Does Not Apply Retroactively

Mitigating Americans with Disabilities Act Claims

Injury and Illness Prevention Program Resources

News: Worthy

California JPIA Training Academies

Academies are multi–day training opportunities that focus on a particular public sector discipline. They present essential training theories and techniques, and provide pragmatic solutions to solving everyday problems. Academies are designed to develop growth in the individual, along with enhancing skills and strategies to meet the daily demands of their agency. A small group setting, combined with well–designed interactive exercises, augments the academy learning experience.

The Executive Committee is sensitive to the cost of professional development for your agency. In response, we have reduced the registration fee to $375 for many of our academies. This fee includes hotel accommodations, breakfast and lunch, and all training materials. 

For additional information or to register for an Academy visit the California JPIA Resource Center. You will need to log in with your username and password.

Parks and Recreation Academy 
February 11 – 13, 2013
Shorebreak Hotel, Huntington Beach
This three–day academy is designed to address the challenges and responsibilities of managers and supervisors while they gain knowledge, techniques, and solutions. With best risk management practices in mind, the Academy proposes strategies for developing new programs, evaluating existing programs, writing grants, ADA requirements, staffing, and providing safe environments in parks and aquatic centers. Additional topics include guidelines for writing and signing contracts and joint use agreements and overseeing special events. In an interactive environment, participants discuss the risks and hazards unique to parks and recreation, and explore innovative, effective, and creative answers to their questions. 

Leadership Academy 
March 19 – 21, 2013
Waterfront Hilton, Huntington Beach
With senior management in mind, the academy offers topics to facilitate growth in the individual. The workshops are practitioner–focused and designed to enhance organizational effectiveness. Assess and explore your personal behavioral preferences and how they may affect your relationships with employees. Attendees are provided with strategies to identify "Problems Lying in Wait," realize the benefits of trust, and enhance the effectiveness of their communication internally and externally.

Human Resources Academy
April 22 – 24, 2013
Embassy Suites, San Luis Obispo
Employees responsible for human resources and employee relations can play a vital role in limiting the agency’s liability in employment and management practices. This three–day academy provides an excellent legal and operational foundation for managing employees. Speakers will address current issues including labor relations, lessons learned in employment practices, essential policies and procedures, effective performance appraisals, workers’ compensation, and emerging challenges of leadership.

Newly Elected Officials Academy
June 2013
Location to be determined
The Newly Elected Officials Academy provides an educational response to the professional education of local government officials. Local governments are increasingly asked to do more, often with fewer resources. The downsizing of the federal and state government has placed more decision making at the local level. Often officials are called on to understand and make decisions on highly complex issues with grave implications to their jurisdictions. Citizen distrust, accountability mandates, and public apathy complicate an already difficult situation. The Academy’s curriculum is designed to help newly elected officials meet the challenges of their role. Attendance at the Newly Elected Officials Academy is offered free of charge to members.

Public Works Academy 
June 11–12 or June 12–13, 2013
Shorebreak Hotel, Huntington Beach
The Public Works Academy is designed to assist newly promoted public works supervisors or those who desire to become supervisors in the future. Participants gain an understanding of potential liabilities, review the contractual transfer of risk, and assess current litigation. The Academy emphasizes both effective supervision and risk management skills, while presenting strategies to successfully transition from employee to supervisor, from worker to manager, and from group member to team leader. Attendance at the Public Works Academy is offered free of charge to members.

Management Academy
September 9 – 11, 2013
The Saguaro, Palm Springs
Designed for the entry–level supervisor, this workshop provides participants with unique approaches to help improve the performance, motivation and commitment of employees in an ever more complex and regulated employment environment. Participants explore their role as a supervisor; understand how values and ethics impact decisions; are shown a decision making process appropriate for public sector supervisors; discuss techniques to provide orientation, training and delegation; learn the four elements of effective performance appraisals and engage in role play reinforcement. Using the Job/Person/Environment Assessment, attendees are presented with the opportunity to explore their perceptions about the behavioral requirements of their jobs, their preferred behavior patterns, and their perceptions about their work environment. 

News: Worthy

Delegation of Claims Handling Authority

by Paul Zeglovitch, Liability Program Manager and Bob May, Risk Management Program Manager

The responsibility for liability claims handling has long rested with the California JPIA and its third party claims administrator, Carl Warren & Company (Carl Warren). But does that responsibility constitute an official designation of authority to "act" on claims? By "act" we mean the sending of government rejection, late claim, and insufficiency letters pursuant to the California Government Code. These notices are an important part of the government claims handling process. 

Rejection letters serve as a formal denial of a government tort claim and set forth a six-month statutory period in which a lawsuit must be filed if the claimant desires to continue pursuit of their claim. Late claim letters notify the claimant that their claim has either been filed past the six-month claiming filing deadline or past the one year mark. Each of these notices carry with them statutory requirements that the claimant must adhere to in order to continue the pursuit of their claim and can sometimes extinguish the claim altogether. Insufficiency letters play an important role in mandating that a claimant provide complete information regarding their claim in order that it may be properly and timely investigated. 

When the formal delegation of authority to "act" on claims has not been delegated to the California JPIA, the administrative process is the responsibility of the members and Carl Warren. Carl Warren requests the specific action letter from the member; member agency staff completes the notice; and the notice must be authorized by the governing board.

This process can slow down the claims cycle and also provide additional administrative work for the member and its governing body. In addition it can serve to lengthen the time requirement for the filing of a lawsuit by the claimant. Finally, having the council or board involved in the routine claims handling process by acting on claims can bring direct scrutiny to them from the claimant. 

California Government Code 935.4 provides for delegation of the authority to act on claims to a designee other than the governing board. Further, California Government Code 6508 addresses the pooling of entities and creation of a new entity (the Authority) that represents their interests. By way of the Joint Powers Agreement between members, the groundwork is laid to allow for members to delegate the entirety of the claims handling process to the Authority. The Authority then extends that delegation to Carl Warren.

The delegation of the claims handling process can be completed by passing a resolution by the member’s governing body. The Authority encourages members to delegate the claims handling process to the California JPIA. We feel strongly that it is beneficial for the expedient handling of claims filed against member agencies. 

For more information about the delegation of the claims handling process, contact your agency’s assigned risk manager

Carl Sandstrom

Pro: Files

Carl Sandstrom, Business Projects Manager

Carl Sandstrom will soon mark his 10th anniversary with the California JPIA. Carl began his career with the Authority in 2003 as Training Coordinator. After a brief stint as Training Coordinator, Carl was promoted to Risk Manager; Senior Management Analyst; Business Projects and Facilities Manager; and now serves as Business Projects Manager.

Many members know Carl as the go-to person with questions about the Authority’s annual retrospective calculation and annual member contribution. "My interaction with the members has evolved over time," reflects Sandstrom, "the progression from Training Coordinator to Business Projects Manager has given me unique insight in assisting members with their cost containment efforts."

Sandstrom specializes in coordinating the Authority’s information technology and communication projects and is working with the risk managers to implement the workers’ compensation root cause analysis program. The root cause analysis program is designed to help agencies develop an effective safety culture that reduces workers’ compensation claims. 

"I appreciate the leadership at the California JPIA. Organizations often speak of teamwork; however few organizations make teamwork a reality." 

Sandstrom holds a Bachelor of Arts in Economics from San Diego State University. He is an active member California Association of Joint Powers Authorities (CAJPA) serving as Vice Chair of its Technology Committee and member of the Accreditation Committee. 

A father of five, Sandstrom enjoys spending time with his family and being an active member of his church. 

The Court Report

ADAAA Does Not Apply Retroactively

(Reprinted from the Society of Human Resource Management website)

The Americans with Disabilities Act Amendments Act (ADAAA) of 2008 does not apply retroactively, the 4th U.S. Circuit Court of Appeals ruled. Under the Americans with Disabilities Act (ADA), prior to amendment by the ADAAA, an employee whose doctor said that he could not lift more than 15 pounds failed to establish the following: 1) he was disabled; 2) his employer retaliated against him; or 3) his employer wrongfully disclosed his medical condition. 

Benjamin Reynolds worked as the manager of service delivery for the Greenbrier Valley Chapter of the American Red Cross. In August 2006, Reynolds’ friend and manager, Walter Lockhart, directed Reynolds to help him move a grand piano from the home of a donor to Lockhart’s home. While moving the piano, Reynolds suffered extreme back and neck pain. Several days later, Reynolds went to the emergency room and was referred to Dr. Dilaawar Mistry. 

Approximately one month later, in September 2006, Dr. Mistry examined Reynolds. Dr. Mistry concluded that Reynolds had a normal range of motion in his neck, shoulders, elbows and wrists. Dr. Mistry provided Reynolds with a doctor’s note stating that he could return to work with a lifting restriction of up to 15 pounds. Dr. Mistry also scheduled Reynolds for an MRI and a follow-up visit, neither of which Reynolds completed.

Following his visit to Dr. Mistry, Reynolds returned to work. Reynolds lifted items weighing more than 15 pounds repeatedly; however, he never refused to lift such items. On two occasions, Reynolds informed Lockhart that he intended to file a workers’ compensation claim. Lockhart responded that the chapter would terminate Reynolds’ employment and fight the claim if he chose to file one. 

In January 2007, Lockhart informed Reynolds that the chapter no longer had funds to pay him, and the chapter terminated Reynolds’ employment. Subsequently, Reynolds filed for workers’ compensation benefits; however, his claim was denied as untimely. Reynolds also filed a charge of discrimination with the U.S. Equal Employment Opportunity Commission (EEOC). The EEOC dismissed the charge, concluding that the chapter was not an employer under the ADA, because it employed fewer than 15 employees.

Reynolds filed suit in the U.S. District Court for the Southern District of West Virginia, alleging disability discrimination and retaliation. The district court held that the chapter was a covered employer under the ADA, but that Reynolds failed to establish his disability discrimination and retaliation claims. The 4th Circuit affirmed the holding of the district court that Reynolds failed to establish his claims under the ADA; however, the court vacated as moot the holding that the chapter was a covered employer under the ADA.

In reaching its holding, the 4th Circuit evaluated whether the ADA Amendments Act of 2008, which became effective on Jan. 1, 2009, was retroactive and concluded that it was not. The court then held that Reynolds’ 15 pound lifting restriction was not a disability under the ADA. The court also held that Reynolds failed to establish that he had "a record of" a disability, because he produced only the single medical report from Dr. Mistry. The court further held that the chapter did not "regard" Reynolds as being disabled, because it regularly asked Reynolds to lift heavy items and Reynolds did so. The court concluded that Reynolds’ retaliation claim failed, because he could not show that the chapter terminated his employment for engaging in a protected activity and because filing a workers’ compensation claim was not a protected activity under the ADA. The 4th Circuit held, also, that Reynolds’ claim that the chapter wrongfully disclosed his medical information failed, because Reynolds had voluntarily told his friend, Lockhart, his medical condition and because Lockhart disclosed that information merely to help Reynolds locate a doctor, not for a "job-related" purpose. Finally, the court vacated as moot the district court’s holding that the chapter was a covered employer under the ADA.

Reynolds v. American National Red Cross, 4th Cir., Nos. 11-2278, 11-2280 (Dec. 7, 2012). 

Professional Pointer: This case serves as a reminder that employers must limit making medical inquiries of their employees and that employers may be liable for disability discrimination claims for employees who were "regarded as" disabled or who had a "record of" being disabled. 

Risk Solutions

Mitigating Americans with Disabilities Act Claims

by Jim Gross, Risk Manager

The Americans with Disabilities Act of 1990 (ADA) is a federal civil rights law. Title II of the Act prohibits disability discrimination by all public entities at the local and state level. 

Valuable lessons were learned in the defense and settlement of a claim in 2012, which cost members in excess of $1,000,000. In response, the Authority has developed an ADA Whitepaper and will be hosting a training workshop in the second quarter of 2013 to share the lessons learned in ADA litigation. The workshop will also be broadcast for those that are unable to attend the workshop in person. 

Public entities must comply with Title II regulations issued by the U.S. Department of Justice. These regulations cover access to all programs, facilities and services offered by the entity. Sidewalks are a "program" under ADA, and must be accessible to disabled persons to the extent technically feasible. Even when there is a proper curb ramp, a person with a mobility impairment may be impeded in traveling if there are broken or obstructed sidewalks. The ADA requires public entities to maintain their sidewalks and to remove barriers to sidewalk accessibility.

Title II applies to public transportation provided by public entities, e.g., wheelchair access and securement on transit buses. It requires paratransit services by public entities that provide fixed route services. It also applies to public housing, housing assistance, and housing referrals. 

The Act contains no provision for government enforcement of access rules. Instead, the act is policed primarily through private lawsuits brought by disabled plaintiffs through their private attorneys. In effect, plaintiff attorneys are the equivalent of private deputy attorneys general.

Alterations include items such as reconstruction, major rehabilitation, widening, resurfacing, e.g., structural overlays and mill and fill, traffic signal installation and upgrades, and projects of similar scale and effect. On the other hand, maintenance activities intended to preserve the system, retard future deterioration, and maintain functional condition of roadways without increasing structural capacity are not considered to be alterations. These activities include surface treatments (nonstructural), joint repair, pavement patching (filling potholes), shoulder repair, signing, striping, minor signal upgrades, and repairs to drainage systems. With alterations, ADA compliance cannot be delayed. Pedestrian upgrades must be made at the same time as alterations. 

All facilities, programs, and services that already existed in 1990 when the ADA was passed were to go through a "self-evaluation" and "transition plan" process. 

The self-evaluation amounts to the entity taking an inventory of its facilities, programs, and services to determine which of them are not in compliance with the ADA and need modification to comply. Public entities were required by the ADA to evaluate their facilities, programs and services by July 26, 1991. An entity can conduct an evaluation itself, but generally the evaluation is done by a professional in the field of ADA compliance. 

A transition plan is a plan outlining the steps necessary to complete structural changes to facilities to achieve program accessibility. Any such structural changes in facilities were to be completed as expeditiously as possible, but in any event, no later than January 26, 1995. The transition plan must identify physical obstacles, describe how the entity will make the facilities accessible, outline a schedule for each year’s modifications effort and indicate the official responsible for implementation of the transition plan. 

ADA compliance may be accomplished through delivery of services at alternate accessible sites if, and only if, the alternate site involves a marginally longer travel distance and travel time.

If funds are not available to accomplish ADA remedial construction, the entity may postpone remedial construction if it would be "unduly burdensome". However, to avail itself of this rare exception, the decision to postpone remedial construction must be made by the head of the agency, e.g., mayor or city manager, and a written statement must state the reasons for the decision. The test for being unduly burdensome is the proportion of the cost for accessibility improvements compared to the agency’s overall budget, not simply the project cost.

The inclusion of penalties and damages is the driving force that facilitates voluntary compliance with the ADA.

Entities are also required to establish an ADA grievance policy by designating an entity employee who has a working knowledge of ADA requirements to coordinate compliance efforts, establish a grievance procedure, and facilitate prompt and fair resolutions of violation complaints. 

It has been nearly 20 years since the deadline for bringing structural ADA violations into compliance. The train of compliance left the station long ago. Public entities that are not yet in compliance are figuratively running down the railroad tracks, hoping to hop on the "compliance train" before an enterprising plaintiff attorney discovers the violation(s). First, members should assess where they stand regarding compliance status. Are they already aboard the compliance train or has it left them standing on the station platform? The best way to assess is to conduct a self-evaluation, and follow that up with a transition plan.

Second, because many ADA lawsuits are "predatory lawsuits", consideration should be given to prioritizing obvious and visible violations. This might include, for example, the inclusion of handicapped parking spaces, disabled parking notice signs, and ensuring accessible paths of travel.

Third, city attorneys and city managers should keep elected officials advised at council meetings that ADA compliance should be considered when deciding whether to take on a major capital improvement. Because of the exposure to costly ADA lawsuits, it might be better to put off some projects, e.g., renovating the city hall building, unless and until sidewalks are brought into ADA compliance.

Should you have any questions regarding compliance with the ADA, please contact your assigned risk manager

Risk Solutions

Injury and Illness Prevention Program Resources

by Jim Gross, Risk Manager

Employers in California are required to have a written Injury and Illness Prevention Program (IIPP) in order to comply with California Code of Regulations, Title 8, Section 3203. An IIPP sets the framework for your agency’s safety program and should outline each employee’s responsibility for safety. If an employer is cited for violation of any of Cal/OSHA’s many safety orders, it must have a compliant IIPP in order to negotiate a lesser seriousness of the citation and resulting fines. The Authority has created an IIPP template to assist members in the development of their own safety program.

The Authority made some recent minor changes to its IIPP template to make it more comprehensive and to simplify access to additional resources that were referenced but not included in the prior version. The Authority’s IIPP template has had a long standing reference to a Code of Safe Practices for supervisors, and for employees. However, the two Codes of Safe Practices were not previously included in the IIPP template. While the Codes of Safe Practices are stand-alone documents, we have updated the IIPP to include them as the last two pages of the IIPP template. 

In order to maintain better control over a Cal/OSHA inspection, hazard specific safety policies should be maintained in a centralized safety manual and should not be included in the IIPP. 

If you have any questions regarding the IIPP or the Codes of Safe Practices, you are encouraged to contact your assigned risk manager. Your assigned risk manager is available to assist in the development of your agency’s IIPP as well as hazard specific safety policies. Risk Managers are also available to attend safety committee meetings and to assist in evaluating your overall safety and risk management program.

The revised IIPP template is available via the Authority’s Resource Center. The template is Word format, so that a member can make agency-specific modifications, as necessary. Members should replace any prior versions with this new version to ensure consistency with agency policy.