Tag Archives: Standard Operating Procedure

FSGB: Salary Determination Per SOP 134D1? What’s that?

July 30, 2021 By in Foreign Service, FSOs, Functional Bureaus, Grievance, Realities of the FS, State Department Tags: , , , , , , ,

 

Via FSGB Case No. 2019-049:
Held – Grievant failed to establish by a preponderance of evidence that the Department of State (“Department” or “agency”) committed a grievable error in its initial determination, or its resolution of, the appeal of grievant’s salary determination. However, grievant did establish by a preponderance of the evidence that the Department erred in not following its own standard operating procedure (“SOP”) regarding the provision of notice of the right to appeal the salary determination and affording her sufficient time to prepare an appeal. The Board ordered the Department to permit grievant to submit supplemental appeal materials to a new Salary Review Committee (“SRC”).
Case Summary – Grievant became a Foreign Service generalist career candidate in 2018. She contended that in determining her starting salary for that position, the Department Office of the Registrar violated published policy and acted arbitrarily and capriciously by declining to credit a number of theatrical stage management jobs she had held as qualifying experience that would have resulted in a higher starting salary. Believing that she had less than 12 hours to appeal, grievant quickly submitted arguments to the SRC for reconsideration of the salary determination, but that body confirmed the starting salary offered by the Office of the Registrar.
Grievant accepted the position, but several months after her start date, she grieved the starting salary. She contended in her grievance that the SRC was unfamiliar with the primarily intellectual nature of stage management jobs and, therefore, wrongly concluded that some, but not all, of her stage management positions did not constitute qualifying experience. She further contended that both the Office of the Registrar and the SRC miscalculated the duration of one or more of the jobs that they found were qualifying, by interpreting her month/year description of these short-term positions as lasting to the beginning of the ending month, rather than through the entire last month. Grievant further contended that she was never given the necessary information about appeal procedures from the decision of the Office of the Registrar. She claims that, in violation of Department SOPs, she was given only a few hours, rather than the required 30 days to prepare and submit her appeal.
The Board concluded that grievant failed to establish by preponderant evidence that either the Office of the Registrar or the SRC had violated published policy or acted arbitrarily or capriciously in determining her starting salary. The Board found, however, that the Department erred by deviating from its SOPs that mandated the provision of 30-days’ notice to career candidates about the appeal procedure from decisions of the Office of the Registrar, which caused grievant to submit a rushed appeal to the SRC. The Board further concluded that the error may have been a substantial factor in the SRC’s decision to confirm her starting salary. The Board, therefore, denied the grievance in part and upheld it in part. As a remedy, the Board ordered the Department to permit grievant to submit supplemental appeal materials to a new SRC within 30 days.
[…]
The September 21 email, containing the salary offer, but none of the other information described in SOP 134D1, and the subsequent email correspondence (which informed the candidate only that “your file is marked to be reviewed”), clearly did not meet the requirements laid out in SOP 134D1. The October 4 email, containing the appointment letter, meets the requirements of the SOP, without explicitly referring to SOP 134D1. This was apparently meant to be the beginning of the review and appeal process, not the end. By not clearly distinguishing for grievant the difference between an informal preview/review process in the Registrar’s Office and the 30-day deadline for a formal appeal to the SRC, the Department committed a procedural error that generated unnecessary fog in an already rushed process. We conclude that grievant was denied a clear and meaningful opportunity to present clarifying information to the SRC. In addition, we conclude that she has established that the procedural error may have been a substantial factor in the action of the SRC. We note that she does not have to prove that the additional material that she proffered in the grievance appeal would have caused the SRC to reconsider her salary.
In cases where the Board finds procedural error that may have been a substantial factor in an agency action, the burden of proof shifts to the agency to show, by preponderant evidence, that the agency, (the SRC in this instance), would have taken the same action had the procedural error not occurred. See C.F.R. 905.1(c). The Department has explained the reasoning of the SRC, but it has not presented a persuasive argument, supported by preponderant evidence, that the outcome would have been the same had grievant been given timely notice of her right to file an appeal to the SRC, i.e., that, had it followed its own SOP, the grievant would have submitted additional documentation and the SRC would have made the same determination with respect to each of grievant’s numerous short-term stage management positions and arrived at the same grade and step level.
The Board therefore finds that the Department has not carried its burden of proving that the SRC would have come to the same result absent the procedural error. Accordingly, the Board grants grievant’s request for a reconstituted SRC to review her initial salary determination after reviewing any additional relevant information that she would like to provide, in conformity with SOP 134 D1.
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High Risk Pregnancy Overseas: State/MED’s SOP Took Precedence Over the FAM? No Shit, Sherlock!

December 12, 2014 By in Govt Documents, Huh? News, Leadership and Management, MEDical, Org Culture, Org Life, Realities of the FS, Regulations, Spouses, State Department, U.S. Missions Tags: , , , , , , , , ,

— Domani Spero
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The Foreign Affairs Manual says that it is the general policy of the Department of State “to  provide all medical program participants with the best medical care possible at post. In a situation where local medical facilities are inadequate to provide required services, travel to locations where such services can be obtained may be authorized.” (see 16 FAM 311).  Elsewhere on the same regs, the FAM says  that “a pregnant patient who is abroad under U.S. Government authorization is strongly encouraged to have her delivery in the United States. The patient may depart from post approximately 45 days prior to the expected date of delivery and is expected to return to post within 45 days after delivery, subject to medical clearance or approval.” (see 16 FAM 315.2 Travel for Obstetrical Care).

A grievance case involving a high risk pregnancy of a Foreign Service spouse was recently decided by the Foreign Service Grievance Board (FSGB).  This is one case where you kind of want to bang your head on the wall. The FAM gets the last word in the Foreign Service, but in this case (and we don’t know how many more), the State Department  ditched the relevant citation on the Foreign Affairs Manual in favor of a longstanding practice on its Standard Operating Procedure (SOP). Specifically, the Department’s Office of Medical Services (MED)  SOP. So basically, MED relied on its interpretation of the regulations contained on its SOP instead of the clear language included in the FAM.

No shit, Sherlock!

Excerpt below from FSGB Case No. 2014-007.

SUMMARY: During grievant’s tour in his spouse became pregnant. She had had five previous pregnancies, none of which resulted in a viable birth. The post medical team (FSMP) and the State Department Office of Medical Services (MED) both agreed that this was a very high-risk pregnancy and that the preferred option was that the spouse return to the U.S. as soon as possible for a special procedure and stay under the care of a single obstetrician specializing in high-risk care for the remainder of her pregnancy. Although MED authorized a 14-day medical evacuation for the procedure, it advised grievant that, under its longstanding practice, it could not authorize further medical evacuation per diem under 16 FAM 317.1(c) prior to the 24th week of gestation. MED instead directed grievant to seek the much lower Separate Maintenance Allowance (SMA).

Grievant claimed that the regulation itself stated only that per diem for complicated obstetrical care could be provided for up to 180 days, and therefore permitted his spouse to receive such per diem beginning in approximately the 10th week of pregnancy, when she returned to the U.S. for treatment. He also claimed that he was entitled to have his airline ticket paid for by the agency as a non-medical attendant when he accompanied his wife back to the U.S., since her condition precluded her from carrying her own bags.

The Board concluded that the agency’s regulation was not ambiguous, and that any clarification meant to be provided by the agency’s longstanding practice was both plainly erroneous and inconsistent with the agency’s own regulations, and arbitrary and capricious. We, therefore, did not accord any deference to the agency’s interpretation of its regulations by virtue of this practice, and relied instead on the language of the regulation itself.

Here is the FAM section on Complicated obstetrical care:

16 FAM 317.1(c):  If the Medical Director or designee or the FSMP [Foreign Service Medical Provider] at post determines that there are medical complications necessitating early departure from post or delayed return to post, per diem at the rates described in 16 FAM 316.1, may be extended, as necessary, from 90 days for up to a total of 180 days.  

More from the Record of Proceeding:

When FSMP contacted MED in Washington, DC, they were given the response that MED does not medevac for obstetrical care until after the 24th week of gestation. The 24th week of gestation is when the medical world deems a fetus viable outside of the womb. Grievant claims both FSMP and the post’s Human Resources (HR) reviewed the FAM and other MED documents to determine how MED handles high risk pregnancies at a hardship post and could not find any reference that limited a high risk pregnancy to the 24 weeks claimed by MED.

Grievant claims he contacted the head of MED and asked for an explanation as to why MED was not following 16 FAM 317.1(c), which allowed for medevac for high risk pregnancies. M/MED/FP responded with the following in an e-mail dated August 27, 2013:

This issue of how early a woman can be medevac’d for delivery comes up regularly. So does the situation of cervical cerclage – up to 80,000 procedures are done in the U.S. per year. While not in the FAM, MED has a long standing internal SOP that the earliest we will medevac a mother for obstetrical delivery is at 24 weeks gestation. 

Grievant claims that his spouse’s pregnancy was high-risk enough to qualify for medical evacuation prior to the 24 weeks’ gestation. Grievant also argues that every medical professional in and in Washington, including MED staff, agreed. Grievant argues that MED’s justification for how they choose which pregnancy to deem OB-medevac-worthy for high risk is ambiguous. Grievant takes issue with MED imposing internal rules that are not published in the FAM. Grievant claims that the alternatives offered by MED were not in accordance with 16 FAM 317.1(c).

What was the official State Department position?

The agency asserts that grievant’s wife was medevac’d to Washington, DC, to receive obstetrical care. MED did not believe there were medical complications necessitating early departure from post or delayed return to post. Thus, the agency claims, 16 FAM 317.1(c) does not apply to her situation.

Did it not matter that the FSO’s wife “had had five previous pregnancies, none of which resulted in a viable birth?”  The Department also made the following argument:

The agency further argues that, in any event, although not compelled by law, the Department’s Office of Medical Services (MED) has a longstanding internal Standard Operating Procedure (SOP) that the earliest MED will authorize a medevac of a pregnant woman for delivery, even in the case of complicated pregnancies, is 24 weeks’ gestational age. This SOP, MED asserts, is based on the medical community’s widely accepted recognition that the gestational age for fetal viability is 24 weeks. 

Ugh!

The ROP states that MED personnel communicating with both grievant and the post FSMP repeatedly relied on the SOP that no medevac would be provided prior to the 24th week of pregnancy as the basis for their guidance. They did not cite grievant’s wife’s particular medical circumstances as the rationale for denying an earlier continuous medevac.

You might remember that the last time MED failed to use common sense, the State Department ended up as a target of a class action lawsuit.

Here is the Board’s view:

It is the Board’s view that 16 FAM 317.1(c) is not ambiguous. It provides for the Medical Director or designee or the FSMP at post to determine if there is a complication requiring early departure or a delayed return, and authorizes up to 180 days’ per diem when such a determination is made. The entire context of the provision is to define what benefits are provided when based upon medical needs, and the provision appears to reflect the individualized medical decision making required in the case of complicated obstetrical care. Although the preceding provision, 16 FAM 317.1(b),8 places a set 45-day limit for per diem both before and after an uncomplicated pregnancy and birth, that limit is also, by all appearances, based on medical analysis of normal pregnancies and deliveries, which lend themselves to such generalizations. Airlines do not allow pregnant women to travel less than 45 days before birth, because of the risks involved. 16 FAM 317.1(b) recognizes and incorporates that medical evaluation under the circumstances of a normal pregnancy. Although not stated explicitly in the record, we assume that the 45 days of per diem permitted after delivery also reflects a medical assessment of recovery times under normal circumstances, which, because they are normal, can be generalized.
[…]
In the Board’s view, the longstanding practice is also arbitrary and capricious and an abuse of discretion. As stated by MED, the rationale for the 24-week practice is that a fetus is generally not considered viable before the 24th week of pregnancy. It is not based on, and does not take into consideration, whether the mother’s need for medical care can be provided safely at post prior to the 24th week, or whether the medical care needed by any fetus of less than 24 weeks to come to full term as a healthy baby can safely be provided at post. It is difficult to see any link at all between the rationale offered by State/MED with the recognition of medical needs established in the regulations.

It is the Board’s conclusion that 16 FAM 317.1(c) is not ambiguous, and that any clarification meant to be provided by the Department’s longstanding practice of requiring the 24-week waiting period in cases of complicated pregnancies is both plainly erroneous and inconsistent with the Department’s own regulations, and arbitrary and capricious. We, therefore, do not accord any deference to the Department’s interpretation of its regulations by virtue of this practice, and rely instead on the regulation itself.

To the extent that the agency is arguing that the SOP is freestanding and applies by its own terms, apart from 16 FAM 317.1(c), again, we conclude that the agency is in error. By the same analysis as outlined above, the SOP conflicts with the provision of the published regulations of the agency. An SOP may not take precedence over a regulation with which it is in conflict.

The Board’s conclusion, based on the record, is that this was a high-risk pregnancy, with risks to both the mother and the fetus, and that the necessary obstetrical care was in the U.S. Under these circumstances, medical evacuation per diem should have been authorized beginning upon the return of grievant’s wife to the U.S., and continuing for 180 days.

Doesn’t it makes you wonder how many high risk pregnant women on USG orders overseas were affected by this longstanding internal Standard Operating Procedure (SOP)?  If planning on getting pregnant overseas, read the redacted ROP below:

 

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