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

Are you an employee of a school district on Long Island, and has your employer ordered you to go to a psychiatrist who will determine whether or not you are “fit to work”? If so, and the psychiatrist is a man named Dr. Randall Solomon, then you have a problem. His Education Law §913 examination reports are based upon lies he makes up about employees whom the school district and Superintendent consider not worthy of their continued employment. No valid reason is necessary or given.

The school district Superintendent and the school board are paying Dr. Solomon to do that, i.e., come up with enough so-called “evidence” to find the employee permanently unable to work ever again. For more than 10 years, I have been working on cases where Dr. Solomon wrote a report that became one or more of the disciplinary charges against the employee. I have unraveled his “facts” and won complete exoneration in several cases due to intense research into Solomon’s strategy. See below for two of these cases.

A NYSUT attorney told me about 7 years ago that Solomon is a “hitman” for school districts who do not want to pay an employee any more salary, for any reason, even legally mandated disability. I continue to use this term when I give my opinion about Solomon, as I do in this post. After finding no information on how Solomon was hired to perform a §913 examination, I filed Freedom of Information requests with about 20 school boards across Long Island to obtain his contract. I was told in my FOIL replies that no contract existed. Then I looked at the districts’ procurement process. No information on bids by psychiatrists, Solomon included, was available.

If the employee has been injured in the workplace and applied for or received Workman’s Compensation, school districts bring in Solomon to prevent any monetary outlay to the employee. The fraud is intentional and punitive. This post is for all of those employees who have been in or are about to go into, a §913 examination with Dr. Randall Solomon.

If the doctor is not Randall Solomon, you still have challenges that could undermine your fair evaluation because the exam itself is paid for by the school district, and you have no doctor-patient confidentiality. Your medical records submitted through a NY State HIPAA Form go to all the members of the school board and the Superintendent/Chancellor’s office/City Law Department (in §2568, Part 2).

See Advocatz OPINION: The NY State Employment Medical Exam Scam Part 2: Section 2568

The Beginning

I started working on 3020-a cases in 2003 after being introduced to David Pakter, a teacher reassigned to a “rubber room” at 25 Chapel Street in Brooklyn.  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.

In 2007 I started a blog called NYC Rubber Room Reporter.

More on that case and §2568 in part 2 soon to be posted on this blog.

Statement of NonConfidentiality and Nature of this Examination

You should read Education Law §913.

The particularly disturbing fact about the §913 cases I’ve worked on, especially those with Dr. Solomon, is that the school district pays his fees in full, without a contract. Also, there is no medical record that is confidential, all records are passed out to anyone as if these documents were pages from a lunch menu. These are protected medical records, given to Dr. Solomon pursuant to a completed HIPAA Form. Solomon tells all who come to him for a §913 that:

“… no doctor-patient relationship exists and the results of the examination will not be discussed and treatment will not be rendered. Furthermore, information from the examination may be used in disciplinary and/or other administrative proceedings in the future.”

An employee’s mental fitness to work is a complex assessment that relies on many factors, including the direct examination of the work of the employee, a review of relevant medical and psychiatric records, an understanding of the employee’s perspective regarding the allegations, and a review of the documentation from the school district. Dr. Solomon does not see it that way. It’s his way or the highway.

Although conducted under regulatory and legal statutes, a 913 psychiatric examination is not a legal process. It is a process of psychiatric assessment. The examiner does not evaluate evidence on a legal basis such as “beyond reasonable doubt” or “the preponderance of evidence.” Rather, all the available information must be evaluated in a medical/psychiatric context. Applying any legal standard to this assessment is inappropriate and would substantially raise the likelihood that the psychiatric assessment and recommendations contained therein would be less accurate, reliable, and valid.

Case of Mr. D

Solomon wrote this in one of the cases I worked on: “Mr. D has deficits in fundamental areas of healthy psychological functioning. These deficits involve impairments in judgment, impulse control, insight, empathic understanding, ability to introspect, ability to assume responsibility and ability to understand fundamental aspects of appropriate interpersonal boundaries….His repeated contention that he is a victim of the deliberate and willful attempts by colleagues and students to malign him was additional evidence for a firmly entrenched psychopathology which is dangerous in a school environment….[His] psychopathology and his rigidly entrenched inability to control his behavior indicate that the risk of his returning to the classroom is unacceptably high. No amount of mental health treatment will be able to diminish this risk to an acceptable level. Consequently, Mr. D is permanently unfit to work as an employee in a school district.

Dr. Randall Solomon”

None of what he wrote was in sync with what I saw and what Mr. D’s actual mental status was, according to his therapist. He had never received a bad performance review in 29 years.

I talked about Dr. Solomon with the school board’s attorney and the school district’s Superintendent from about 11:00 am until 3:30 pm on the first day of Mr. D’s Education Law §3020-a disciplinary hearing. At the end of our conversation, the Superintendent told me that a check for $252,000+ (pensionable money to get Mr. D to 30 years) would be given to the charged teacher in three days, with health benefits for 2 months, if he resigned at the end of the extra year. She was clearly interested in keeping her name out of any hearing where she would be held accountable for hiring Dr. Solomon, and pursuing termination of an excellent teacher (Mr. D). All of Solomon’s reports as well as the charges would be expunged from Mr. D’s records. Mr. D accepted. I agreed with his request to not put his name or the name of the school district on any of my websites.

Case of M.S.

Another case, M.S., was interesting because of the opinion of the Arbitrator at the end. I wrote the brief that got M.S. exonerated of all charges. Here are relevant parts of my Post-Hearing Brief:

“M.S. is a tenured elementary school teacher who has been employed by the Massapequa School District since 1987. She received consecutive ‘Satisfactory’ ratings, which stated that her pedagogy is not only “effective,” but throughout her career, she was a “gifted” teacher. She had no issues nor any prior 3020-a disciplinary hearing until May, 2011 when she was directed to meet with Dr. Randall Solomon for a §913 examination. The motivation of the Massapequa Superintendent and school board was to fire M.S. to please a disgruntled parent who was angry with the school district and their putting her son in the wrong class, as M.S. is not a special education teacher. The school principal did not want to be held accountable, so she pinned the ‘wrongdoing’ on M.S.

The important information for what follows is that M.S. had also been in a car accident and was going through a divorce, all of which could serve the purpose of making a claim she was not sane enough to be near children. M.S. was and is a very intelligent, caring, empathic and popular teacher who could never be described by anyone as impaired in any way. Dr. Solomon was hired to prove that claim false. He failed, but it was not easy to prove his false claims. I investigated him before completing the closing argument, and was stunned to find a report he wrote on a Plaintiff who sued him in Federal Court that was almost exactly the same as M.S’s report. Dr. Solomon just changed “he” [Plaintiff] to “she” [M.S.] . Also, by the time the §3020-a started, M.S. was completely healed.

M.S. was ordered by the Superintendent of the Massapequa School District to undergo a §913 psychiatric examination with Dr. Randall Solomon on May 4, 2011. She went to the office of Dr. Randall with her Union Representative T.S., who testified that:

“I was taken aback, actually, because it was more of an interrogation. I have attended other §913’s with other doctors, and so this one was very different than what I was accustomed to. It was almost – I felt confrontational as soon as I walked in, and he was very adamant about that. I couldn’t say anything, and I knew that, and I understand why. It was just the way that he, you know, spoke to both of us initially when we came in, so I – it was very different”…he would be cutting answers off…it was like trying to convince her to see what he was wanting to find….He’s the hatchet man.”

T.S. had been to four §913 exams with Dr. Solomon, and less than ten §913 exams with three different psychiatrists. She testified that “she [M.S.] was consistent and she would repeat, no, this is not – I did not do what they are saying.”

Solomon found M.S. unfit to teach and wrote, “In considering her mental health difficulties which are characterized by the aforementioned deficits in essential areas of judgment, insight, empathic understanding and ability to introspect, the risk that M.S. will continue to violate appropriate teacher-student boundaries is unacceptably high.” He gave her a GAF score of 50, which is so completely ludicrous that we won the case clearly on that error of Solomon.

Dr. Randall justified his finding of “unfit” by saying that he read documents, and then spoke with M.S. for 1 1/2 hours and saw that she had very apparent deficits in important areas of psychological processing and perspective that raised concerns…judgment, insight, ability to engage in a process of introspection in a healthy way, inability to empathically understand the feelings and perspective of others. In addition to that, there was a great deal of inconsistent information that she provided.”

As I have learned in all the Solomon cases I have done since M.S., these are Solomon’s buzzwords. In the 12 reports I have seen, he has never changed the words he uses to describe the person he is hired by the school district to examine. In fact, Dr. Solomon kept repeating “inconsistent” but he never defined what he meant. He testified that:

“The diagnosis that I was able to make, anxiety disorder, not otherwise specified, and mood disorder, not otherwise specified…the accuracy of this diagnosis was not necessary for me to render the opinion that I did.”

Dr. Solomon was paid by the Massapequa School District to create the three reports on M.S. He got paid by the hour, and made $6,000-$10,000 in this matter, but never interviewed parents or children. He wrote the exact same words in a report he did on David Jacobs, who sued him pro se in Federal Court. Unfortunately, Jacobs lost his case. I reached out to talk with him while I was doing the M.S. case, but he never called me back. (Jacobs v Mostow Complaint USDC 2:05-cv-04808 (2005)).

The charges were thrown together without any consideration of Just Cause or due process rights, as may be seen in the facts that: we requested a site visit to the school to see the “storage closet”, and Germano agreed, over the objections by the Superintendent and Principal of M.S.’s school. This “testing room” adjoining M.S.’s classroom was described as a storage closet, yet the site visit on September 24, 2013, at approximately 4:15 PM clarified for the record that this room was not a  ‘storage closet’, and could not be characterized as such; the medical examinations (913) completed by Dr. Randall Solomon clearly had no objective data in them, and GAF scores which were far from truthful.”(HO Germano’s Award).

M.S. was given an examination on her mental status by her own Doctor, Dr. K, who testified that: “…she [Respondent] wanted to return. I thought it likely to be okay….” He added that M.S. was no danger to children, and “…she was a very reasonable caring human being who was entirely appropriate. Appeared to me to have a capacity for empathy. Expressed a desire to return to work. She valued her role as a teacher and was sure convincing to me that she liked what she did and cared about the work that she did…. I thought she had healthy self-esteem and self-respect”  and saw nothing that could or should prevent her from teaching in the classroom.”

When this Dr. was asked whether, in his professional opinion, M.S. was fully fit to function as a teacher and return to school, he said, “I would endorse that, yes.”

M.S.’s Dr. K knew Randy Solomon personally and wrote in his report that Dr. Solomon’s report “did not reflect an objective dispassionate evaluation ..[even a] very hostile stance”….this sounds like a criminal the way he [Solomon] pounds away….saw no psychiatric illness nor narcissistic personality disorder…I personally like Randy. I’m sorry to have to take this kind of position, but I think that this is unconscionable [Dr. Solomon’s reports].

Dr. K’s conclusion was: “Dr. Solomon’s report is a corruption of what an objective psychiatric evaluation should be…looks like a hatchet man to me. You know, this is just not acceptable. This is just not appropriate for someone who is a board-certified psychiatrist. Really, you should be expected to provide an objective thoughtful evaluation. Your patient shouldn’t walk out of the session shaken as M.S was…. I’ve been doing this for over 40 years and this is very, very atypical…If you could diagnose narcissistic personality disorder on the first visit, you are probably dealing with an unrepentant Nazi or something….when you get to 45, 50 [GAF], you are talking about somebody who probably should be in a psychiatric hospital or was discharged too soon. You are talking about someone who is thinking suicide, somebody who has obsessive-compulsive behavior …inconsistent with how Ms. S. presented.”

Notice should be taken that before the §3020-a hearing began, we suggested that Hearing Officer Tom Germano order M.S. to submit to a third psychiatrist, a person chosen by him, to make a determination as to M.S.’s fitness. HO Germano did not follow up with any order to have M.S. evaluated by another doctor.

HO Germano made his ruling, “dismissal of all charges.” Her exoneration was followed by M.S. returning to her former position. He did not find Solomon credible. The principal was later removed from her duties.

Case of D.M.

D.M. fell off of a chair and had other medical issues at the same time that her marriage unraveled. Thus despite her excellent work record, she was picked to be terminated by Dr. Solomon, who made her into a drug addict and alcoholic, unable to be near children.

She wrote:

“NASSAU BOCES offered me an agreement in lieu of the 3020A hearing. After reviewing several times, I felt their requests were way over the top. The only thing that I was told was that the [Medical] Evaluation was routine, because of my injuries, to make sure everything was OK with me even though I had been back to work since September. I was told that this was BOCES policy, when an employee was out several times due to Workman Comp Injuries. Besides my workman Comp injuries, the only other 2 major times I was out was due to infertility treatments (I had nine rounds of Invitro fertilization which resulted in 2 maternity leaves). I was told that the 913 evaluations were due to my time and attendance, which was related to on the job injuries. When I called Bob Dreaper, the Union President at the time, he said it was no big deal and that I should just go.

In addition, I was not made aware that I could have representation, by Human Resources or the Union. (with a narrative attached). I never received an unsatisfactory. Quite the contrary, most of my evaluations were quite detailed and complimentary to my performance since I provided many innovative programs school-wide, not just for the students that were on my caseload.  In addition to my NYS Speech Pathology license and my license for Teacher of Speech and Hearing Handicapped, I also received 2 administration degrees from the College of New Rochelle, in 1999. (2 Administrative degrees; (SDA)School District Administrator, and [ AS) School Administrator Supervisor). The school I was assigned to was for students 3-21, with moderate to severe physical, cognitive, and emotional challenges. Since most of the children were in wheelchairs, our school provided not only education but, more importantly, pragmatic and social skills. Our students were not happy about the Christmas Vacation, or worse, graduation, because it meant, for the most part, they would be stuck at home due to transportation and their medical needs. Then, in February 2016, I was sent to the infamous Dr. Solomon.

Arbitrator James Brown wrote the following about D.M.:

“Since 2007, Respondent has sustained a series of work-related injuries which caused her to miss work and submit workers’ compensation claims. In early 2016, Nassau BOCES arranged for a medical evaluation of Respondent, pursuant to New York Education Law §913, to determine if she was fit for duty. Human Resources Director Nekulak testified that Respondent’s work-related injuries “raised a red flag” because “none of the incidents” involved any disabled students who are generally known to hurt staff members “every day.” Rather, Nekulak noted that Respondent’s injuries involved tripping and falling off chairs.

The “fitness for duty” evaluation of Respondent was conducted by Dr. Randall Solomon, a board-certified psychiatrist  who  described  his  role  as  determining whether an employee “represents a risk  to  the  safety  and  well-being of  both  colleagues, the  staff, and in particular… to children.” Dr. Solomon was told by Nassau BOCES that it was “concerned” about Respondent’s “excessive workers’ compensation claims, and how that may impact on her work performance,” as well as her “mental fitness, primarily based on that.” Respondent similarly expressed to Dr. Solomon her belief that she was being evaluated because of the “number of [her] workers’ compensation claims.”

Dr. Solomon’s June 3, 2016 written report of his February 2016 evaluation stated various diagnoses of Respondent including “malingering” which he defined as “either a fabrication and/or an exaggeration of symptom in order to consciously and willfully obtain a secondary gain.” He found that Respondent was malingering because it “would be very unusual for a person to have these kinds of injuries repeatedly.”

In sum, Dr. Solomon’s written report of his February 2016 evaluation concludes that Respondent is “not mentally fit” to perform her job duties and that returning her to the classroom constituted an “unacceptably high” risk.

After Dr. Solomon issued his June 3, 2016 written report of his February evaluation, Nassau BOCES arranged for him to conduct a second New York Education Law§ 913 evaluation in order to determine whether Respondent had made “any progress” or if there were any “changes” in her condition. At her second evaluation, on October 5, 2016, Respondent was accompanied by her treating psychologist Dr. B.

After his October 2016 evaluation of Respondent, Dr. Solomon concluded that Respondent remained unfit for duty. He also noted new evidence of Respondent’s addiction to narcotics, namely her nondisclosure of narcotics use, after her March 2016 shoulder surgery. According to Dr. Solomon, withholding such information signifies “addictive behavior” because disclosure could be “threatening to the further obtaining” of such narcotics. Dr. Solomon added that Respondent’s addiction “profoundly raised the risk that something is going to happen at work, that interferes with primarily the children receiving a safe and appropriate education.”  He again concluded, in his October 2016 written report, that Respondent is “not mentally fit to continue working as a teacher.”

Around this time, Respondent’s own psychologist disagreed with Dr. Solomon regarding Respondent’s fitness for duty and found that her mental health had “significantly” improved since he began treating her in 2015. As for Respondent’s use of narcotics in 2016, Dr  B noted that her use of opioid medication was “by prescription” after a “very difficult shoulder surgery,” and added: “That’s not a dependence.”

Dr. B explained why Respondent is fit to return to her teaching duties: “I’ve had dependent people in my office and they… never present like her. She’s clear head – clear thinking and she’s – her personality comes through. I’ve had people sleeping on my couch… struggling to either get it or not withdraw from it. And I didn’t have any of that with her.” If Respondent had a “significant problem” with opioids, Dr. B made clear that he would “expect to see shoddy attendance… fatigue, unwillingness to go back to work… secretly living, trying to get more.” Yet, Respondent presented a “very different picture” of a person who was “writing curriculum” and using “her other talents in educational resources to actually produce. People don’t do that when they are opioid addicted.”

Nassau BOCES’ Position. Relying on the findings of licensed psychiatrist Randall Solomon, BOCES contended that Respondent is unfit for duty and added that “Respondent’s refusal to acknowledge any of Dr. Solomon’s findings” shows that she will not likely “take decisive actions to become fit for duty or correct her behavior.”

BOCES argued that “evidence of a teacher being unfit” is sufficient to establish guilt in this Section 3020-a proceeding, and that Dr. Solomon identified “two major issues” to demonstrate Respondent’s lack of fitness. First, Respondent was “prescribed copious amounts of opioid narcotics over a long period of time,” and she also demonstrated a “lack of candor” when talking to him “about her drug use.”

In sum, BOCES argued that termination is the only appropriate penalty “where there is a determination that a teacher is unfit for duty,” and noted that Dr. Solomon, when comparing his February and October 2016 evaluations, “found no improvement” in Respondent’s “use of opioids.” BOCES continued: “Respondent has been unwilling to admit… an issue with her fitness and unwilling to mend herself,” and “never shared an ounce of remorse or concern” regarding her “extensive narcotic history and its effect on children.”[From Betsy Combier: what effect on children is Solomon mentioning?]

HO. Brown: “Respondent asserts that her job performance was both “professional and exemplary,” and maintains that she never took “drugs during the workday” or allowed “her medical issues to interfere with her professional judgment.” Noting that an employer has the burden of proof in these disciplinary proceedings, Respondent submits that BOCES “failed to support the charges by a preponderance of the evidence.

Respondent  also argues  that BOCES ‘improperly’  retained  the services  of Dr. Solomon who never ‘bid for his work.’ Alleging a violation of a local ordinance, Respondent submits that “public money” was improperly “spent without any budgetary line, no bidding and no accountability,” which resulted in two evaluations with no oversight, guidance, or accountability.

Respondent also recites various legal standards applicable to Education Law §3020-a proceedings and submits that BOCES “has not met its burden of establishing just cause to discipline” her, and adds that she “acted in a responsible manner throughout the charged period” and “maintained her high standard of work” for BOCES. Respondent also asserts that no basis existed, in the first place, for her referral to Dr. Solomon: “This case presents a highly intelligent, articulate, innovative, and hardworking teacher who was targeted because of an issue regarding accidents, injuries, and illnesses over which she had no control.” Respondent adds that she is “not a drug addict.”

Based on the totality of the record, there is insufficient evidence to establish that Respondent is guilty of the Charges and Specifications against her. Accordingly, I find that Respondent is not guilty of Charges 1 and 2 which are hereby dismissed.

James Brown”

Case of D.T.

I have posted above what I feel are relevant parts to Solomon’s reports that detail his strategy of harm to employees ordered into a §913 examination. Unbeknownst to the charged employee, Dr. Solomon is known as a “hitman” for school districts who want to get rid of an employee for any reason (or none at all). His well-known strategy is to create false charges of mental incompetency to assist his employer, the school district, fire an employee. He starts his evaluation with the goal of proving termination as the only option, and then works back from there to put all the necessary so-called “evidence” in place. Solomon is hired after an employee has created a situation where they simply have become too expensive to keep.

There is, in every case I have worked on, an overwhelming evidence of bad faith by the school district and Superintendent in filing the charges in the first place. Solomon’s unethical determinations can be seen in the public decisions of prior §3020-a cases such as the two posted above, again just relevant parts. A “desktop definition” of bad faith includes “failure to act in the face of a known duty to act”; and the “conscious disregard” of the duties to be reasonably informed of the business and its risks, and to exercise reasonable oversight.

§3020-a hearings are not supposed to punish educators, but to establish just cause for penalties that will encourage an educator to be better and do better. In Matter Bott v. Board of Educ, 41 N.Y.2d 265 (N.Y. 1977), the court ruled that disciplinary charges against tenured employees are not criminal proceedings and that their primary function is not punitive but to determine the fitness of accused employees to continue to fulfill their professional responsibilities. Only an objective analysis of evidence, if any, of the job-relatedness of a teacher’s alleged misconduct does justice to that purpose; merely proclaiming disastrous effects does not. “[T]he primary purpose of a disciplinary proceeding is not punitive, but rather, to determine a teacher’s fitness to teach and to carry on professional responsibilities” (Appeal of the Bd. of Ed. of the Goshen CSD, 30 Ed Dept Rep 181, 187; Matter of Bott v. Bd. of Ed., 41 NY2d 265 [1977]).”

Tenured teachers at public institutions are entitled to due process protection when their liberty interests are arguably infringed. Liberty interests arise when institutions make charges or allegations against employees that may damage their reputations or impose a “stigma or other disability” preventing them from obtaining other employment. As tenured teachers have a property and liberty right to their jobs, when there is any penalty that reduces the benefits of these rights, there must be Just Cause.

The Law also mandates that there be notice of the charges. 

In no case of §913 examinations are the employees told exactly what the §913 Law says. Please look at the emphasized sentence I bolded in the §913 Law at the top of this post. I repeat it here:

“In order to safeguard the health of children attending the public schools, the board of education or trustees of any school district or a board of cooperative educational services shall be empowered to require any person employed by the board of education or trustees or board of cooperative educational services to submit to a medical examination by a physician or other health care provider of his or her choice or the director of school health services of the board of education or trustees or board of cooperative educational services, in order to determine the physical or mental capacity of such person to perform his or her duties.”

At no time, in any §913 case, does the school board, Superintendent, Principal or Union Representative show this law to the person being ordered to go to the §913 exam. Why? Because they do not want the employee to know that he/she has the right to be examined by their own doctor. School officials want Dr. Solomon, or another doctor of their choice who is paid by them to do what they want.

For instance, in the case of D. T., an excellent teacher of STEM in the Poughkeepsie City School District. She asked for my help when she was ordered into a §913 with a “Dr. Jose Soha” by Timothy Wade, Assistant Superintendent of Administrative Services.  However, Dr. “Soha” did not exist, and the person at the office in Wappinger Falls with a similar name did not do §913 examinations. So I showed D.T. the §913 Law, and suggested she go to a doctor of her choosing for the exam. She did, and the Dr. recommended she remain in her job as she had no issues with her sanity. The Arbitrator, Julie Torrey, withdrew the 913 charges of mental instability based on this recommendation.

In Conclusion

The §913 law has been weaponized. The school districts fire tenured professionals as “unfit” regardless of whether they are actually unfit. This process must stop or be stopped, and “hitman” Dr. Randall Solomon should himself be brought to a panel of doctors who can judge his actions in the past 30 years when hired to do  §913 examinations.

Betsy Combier