Advocatz OPINION: The NY State Employment Medical Exam Scam Part 2: Education Law §2568

Has your employer ordered you to go to a psychiatrist who will determine whether or not you are “fit to work”?

Outside of New York City the fit-to-work examination is called a “Section §913 examination”. See:

Advocatz OPINION: The NY State Employment Medical Exam Scam Part 1: Education Law §913

In New York City, the New York City Department of Education calls these mandated examinations “§2568”, pursuant to Education Law Section 2568:

Background Information

Public health laws give wide-ranging powers to school officials. Often, the only way to balance those powers with what may be fair to the person in need of disability accommodations is through the Court or a legal proceeding. If you have a disability, and if you feel discriminated against or retaliated against because of your disability while on your job, then you can file a Complaint with the Equal Employment Opportunity Commission or EEOC. The EEOC is also a good place to go if you feel harassed, retaliated, or discriminated against because of your race, color, gender/sex, religion, national origin, or age. You can file the initial charge online.

The EEOC and/or your employer has the right to investigate your claim of disability/retaliation/discrimination, and if there are valid reasons for your claim(s), must try to accommodate you so that you can continue working. This is where the roads to right and wrong solutions diverge based on the administration’s personal dislike, perception of valid mental/medical issues precluding any work accommodation, or financial or undue hardship. Negotiating a fair remedy requires two opposite sides having a goal that is fair.

But some school officials do not want to play fair or decide that they do not want to pay your salary for any accommodation you might request. In that situation, the Superintendent will send you a letter directing you to appear at a §2568 (New York City Department of Education – “DOE”) or a §913 examination (Long Island) by a psychiatrist. You must appear, or be put into a §3020-a disciplinary hearing for insubordination if you are tenured or discontinued/fired if you are an employee at will.

All tenured employees have the right to a hearing before an “independent” arbitrator regarding any charges brought against them. I question the word “independent”, due to the manner in which arbitrators are paid – by the employer. However, this due process right supposedly protects an employee from being fired for personal, arbitrary, or political reasons. The charged employee must have a well-informed legal team supporting him/her, and I have written about this for many years. See Teacher Tenure Hearings §3020-a; Labor and Employment Law; and NYSUT Changes To Tenure and the Tenured Teacher Removal Process in §3020-a….What a Scam  (on my blog NYC Rubber Room Reporter, 2016).

You may notice the word “Scam” is used in my 2016 post as well as here. That’s because my focus for 25 years has been the “State Statutes” throughout New York State which so obviously are not complied with and/or are ignored without any consequences. This is what I call a scam. You, the victim, have been misled, and your life, career, and character have been broken and/or destroyed without any valid cause.

The motive behind a demand that you be seen by a psychiatrist either in a §2568 (or §913) examination is to determine your fitness to work in your job. This sounds innocent enough, right? Not if you have done 20+ years of research into these exams. The goal is nefarious (wicked; criminal). The school district wants you fired.

In 2004 I had never heard of the “rubber room” or §2568, §913, §3020-a. A friend of mine had a cable TV show where he had panels of people discussing various topics. He called me and asked if I would talk about what I had learned as a parent about the NYC Department of Education. As the mother of four children in the NYC public schools at that time, and as a PTA President, Executive Board member at my children’s schools, and a parent advocate, I said ok.

When I got to the studio for the panel discussion, another panelist was talking about how he was in a “rubber room”. Before we taped the show, I went over to him and asked him what a “rubber room” was. He told me that ‘his’ reassignment room was a large space in Brooklyn – 25 Chapel Street, 10th floor – where about 50-70 teachers were reassigned outside of their classrooms to wait for a 3020-a arbitration. He could not really explain to me what a 3020-a was, so I made a note to start looking into it. Research wasn’t as easy as it is now, and I could not find much of anything. So, a day later I called my new friend, David Pakter, and he told me to come to 25 Chapel Street and see for myself. So I did.

For some reason, the guards at the door never asked me who I was, and I never signed in until 2007, when I became a Special Representative for the UFT. It may be interesting that my office was sandwiched between Gene Rubin, Director of the UFT medical office, and Special Representative Amy Arundell.

I started visiting the rubber room in Brooklyn 2-3 times a week, and stayed all day until 3pm, when the “school” closed. Yes, there was a principal in the room as well. A very nice guy.

David Pakter is, basically, and foremost, a very kind and generous person who taught the only medical illustration program in NYC (or the world?) for 40 years and was not interested in silencing himself or having anyone at the NYC DOE silence him. He was fearless, and everyone who knew him, including me, admired him for speaking up.

In 2005 David was ordered to go to a §2568 examination, and I reported on that visit and the aftermath:

David Pakter, a NYC Teacher and Whistleblower of the NYC Board of Education’s Corrupt Practices, Sues in Federal Court.

Here are key points from that post:

David was the teacher for the only medical illustration course in New York City, at the High School for Art and Design. He was cited by Mayor Rudy Giuliani as the ‘Teacher of the Year’ in 1997. To understand David’s case, click here to read a letter he wrote to Chancellor Klein on October 2, 2003 about the racial discrimination in New York public schools, and former NYCBOE Counsel Chad Vignola’s response. Chad Vignola was fired by Joel Klein when he allowed Deputy Chancellor Diana Lam to hire her husband for a position in the NYC BOE without getting a clearance from the Conflict of Interest Board. Or so the story goes…(there is always more that the public never hears about).

David explained:
“Sadly, rather than respond to my letter, Chancellor Klein delegated that responsibility to his former General Counsel, Chad Vignola, Esq. who only months after I wrote the Chancellor, was forced to resign in disgrace for his part in the Diana Lam cover up scandal in which Deputy Chancellor Lam attempted to illegally place her husband in a high paying DOE job in a manner contrary to State and City law.

Any person reading Chad Vignola’s letter to me on behalf of Mr. Klein cannot fail to observe that Mr. Vignola fails to address a single issue that was raised in my letter to the Chancellor.”

David was ordered to undergo a psychiatric examination by the New York City Department of Education: “The Medical Office has set up an appointment for me to meet with a Psychologist by the name of Dr. Richard Schuster, Ph.D., Panel Psychologist, at “Comprehensive Rehabilitation Consultants”, at 275 Madison Avenue, New York, NY 10016, on Friday, August 19, 2005.” Although he was informed he would be interviewed by Schuster for about five hours, David, in fact, was asked to spend two full consecutive days at Schuster’s office taking over fifty pages of examinations.

On the second day, July 27, 2005, Schuster administered a version of the 567-question MMPI-2 Minnesota Multiphasic Personality Inventory, which had just been declared an illegal employee Medical Examination in a Unanimous Seventh Circuit panel decision six weeks earlier. (See: Unanimous Seventh Circuit panel, Karraker v. Rent-A-Center, Inc., 2005 U.S. App. LEXIS 11142 ,June 14, 2005). Then on August 16, 2005, he received a letter from the Medical Office, signed by the Medical Director, Dr. Audrey Jacobson, M.D., stating that based on the examinations Schuster had administered, David was “not currently fit for duty”.

David says that Dr. Jacobson signed that letter, which immediately removed him from salary without any probable cause,  effectively ending his employment with the New York City Dept. of Education. He was later informed that Dr. Jacobson had never bothered to read the complete official version of the results of the MMPI Examination administered on her orders, which stated on several different pages, in particular page 3:

“His MMPI-2 clinical and content scales are within normal limits. No clinical symptoms were reported”.

Immediately on being notified of the claim of the Medical Office Director Dr. Audrey Jacobson that Pakter was not “fit for duty”, David attempted to avail himself of the remedy specified in Dr. Jacobson’s letter: that he “may request an independent evaluation by a medical arbitrator.” His NYSUT attorney sent a certified letter to Dr. Jacobson memorializing Pakter’s demand for medical arbitration and the United Federation of Teachers simultaneously filed in a timely manner.

To obtain another opinion on his fitness to teach, David and his NYSUT attorney sought and obtained the services of the handsome and eminent Forensic Psychiatrist, Dr. Alberto M. Goldwaser, M.D., D.F.A.P.A. (pictured at left). After a lengthy and expert evaluation, and also careful study of hundreds of pages of documents including the documents and reports utilized by Dr. Jacobson in making her own evaluation, Dr. Alberto Goldwaser concluded that there was no scientific evidence whatsoever to substantiate the claim of the Medical Office that Pakter was not “fit for duty”.

But David also wanted another opinion from the Medical Office, and asked the UFT for help in getting another evaluation. He finally received notice from the Medical Office that they had arranged an appointment with their “independent medical arbitrator,” Dr. Charles E. Schwartz, M.D., to take place at Montefiore Hospital on Dec. 21, 2005 at 5:15 PM.

Due to a transportation strike, the appointment was delayed until Jan. 11, 2006, with Dr. Schwartz. David was accompanied at the medical arbitration by Dr. Alberto Goldwaser, as well as me. I wore my Press Pass, but David had the secret tape recorder. When we met Dr. Schwartz he told all three of us to go into his office as he did the interview. Once inside his small office, the first thing he asked was whether I was taping him. I said no, because that was the truth. He did not ask David, who was taping him. So we had the entire exam on tape (legal in NY State, a one-party state). See also Law Library of Congress.

Near the end of the two-and-a-half-hour medical arbitration meeting, Dr. Schwartz agreed and concurred with Dr. Goldwaser that there was no scientific evidence to support the claim of Dr. Audrey Jacobson, Director of the Medical Office, that Pakter was not “fit for duty”. He told us that he had been told to declare David bipolar within 10 days, and now he would not get paid…could David pay him $500 for half of his fee? David wrote him a check.

Several weeks later David received a note from Dr. Schwartz that he had “lost” the $500 check, so would David please write another? David did that, because he was happy that Dr. Schartz found him fit to work despite the directive of the medical office. Soon after, David told me that Dr. Schwartz had cashed both checks the same day. I guess he found the first one. We didn’t say anything to him or anyone.

Six months later, David sent me this email:
“The Director of The New York City Dept of Education Medical Office, Dr. Audrey Jacobson, has admitted in a signed letter sent to David Pakter, that her office made a mistake in claiming Mr. Pakter was not “fit for duty” on August 16, 2005.

In a tersely worded letter dated June 5, 2006, DOE Medical Office director, Dr. Jacobson stated:

“The independent medical arbitrator has upheld your appeal, and has declared that the Medical, Leaves & Benefits Office (updated 2024 by Editor BC; see also UFT Leaves of Absence) was incorrect in deeming you unfit for duty as of August 16, 2005. The findings of the medical arbitrator are equally binding on you and the Department of Education. A copy of the arbitrator’s decision has been sent to your physician.”

This is believed to be the first instance in more than a quarter of a century that a New York City teacher, having been found “unfit” by the Department of Education Medical Office, was able to have such a charge overturned.”

In Conclusion

David Pakter, Dr. Alberto Goldwaser and I held the Medical office of the New York City Department of Education accountable for making a false conclusion in a §2568 report, namely that esteemed educator David Pakter was “not fit to work.”

If you are told that you need to attend a §2568 examination, and you want to continue to work in your job, crafting a strategy based on facts and critical thinking will get you where you want to be.

Betsy Combier