MATTHEW W. KEITH,
                  Grievant,

v.                                                      Docket No. 00-17-129

HARRISON COUNTY BOARD OF EDUCATION,
                  Respondent.

D E C I S I O N

      Grievant, Matthew W. Keith, employed by the Harrison County Board of Education (HCBOE) as an Aide/Autism Mentor, filed a level one grievance on January 19, 2000, in which he alleged a violation of W. Va. Code §§18-5-22 and 18-5-22a because he did not receive additional compensation for the dispensation of medication, and providing specialized medical services to students, if necessary. Grievant requested retroactive wages with interest and benefits.
      Susan Collins, Principal of the Harrison Magnet Center, advised Grievant that she lacked authority to grant the grievance at level one. Following an evidentiary hearing, the matter was denied at level two, and Grievant elected to bypass consideration at level three, as is permitted by W. Va. Code §18-29-4(c). Appeal was made to level four on April 20, 2000, and the parties later agreed to submit the matter for decision based upon the lower-level record, supplemented with proposed findings of fact and conclusions of law. The grievance became mature for decision upon the receipt of Grievant's proposals on September 6, 2000. HCBOE elected not to file additional submissions.   (See footnote 1) 
      The facts of this matter are undisputed and may be set forth as the following findings of fact.
Findings of Fact
      1.      Grievant was initially employed by HCBOE as a substitute bus operator in 1983. He became a full-time employee in 1985, but left in 1988 to serve in the military for three years. He returned to HCBOE in 1991 as a regular, full-time bus operator, until April 1999, when he transferred to the Magnet Center as an Aide/Autism Mentor. Grievant held this position until his resignation on March 20, 2000.
      2.      As an Aide/Autism Mentor, Grievant was assigned to work on a one-on-one basis with student S.D.   (See footnote 2)  Grievant used rubber gloves when he applied Micatin/Bacitracin to S.D.'s face during outbreaks of impetigo, and used ointments for diaper rash. He also administered S. D.'s oral medication, Clonidine/Restoril, once daily.
      3.      Another student at the Magnet Center, S. R., is a quadriplegic with a feeding tube attached to his abdominal area. Although the student is not fed at school, if he becomes ill the tube must be vented to prevent the onset of seizures. Ms. Phillips is assigned to work with S. R., and in her absence, Ms. Burnetti, another aide at the Center cares for him. In case both Ms. Phillips and Ms. Burnetti are absent, substitute aides have been trained to care for S. R.
      4.      Grievant has no direct responsibility for S. R., and has not been trained in providing his care.
Discussion
      As this grievance does not involve a disciplinary matter, Grievant has the burden of proving his grievance by a preponderance of the evidence. Procedural Rules of the W. Va. Educ. & State Employees Grievance Bd. 156 C.S.R. 1 §4.19 (1996); Holly v. Logan County Bd. of Educ., Docket No. 96-23-174 (Apr. 30, 1997); Hanshaw v. McDowell County Bd. of Educ. Docket No. 33-88-130 (Aug. 19, 1988). See W. Va. Code §18-29-6. The preponderance standard generally requires proof that a reasonable person would accept as sufficient that a contested fact is more likely true than not. Hammer v. W. Va. Div. of Corrections, Docket No. 94-CORR-1084 (Nov. 30, 1995); Leichliter v. W. Va. Dept. of Health & Human Serv. Docket No. 92-HHR-486 (May 17, 1993). Where the evidence equally supports both sides, the employee has not met his burden of proof. Hammer, supra.
       Grievant argues that the medications he administers orally and topically to S. D., and the possibility that he may need to assist with S. R., entitles him to additional compensation under W. Va. Code §§18-5-22 and 18-5-22a. HCBOE asserts that Grievant is not entitled to the special salary supplement because he was not trained, and is not responsible for S. R., and that the medications administered to S. D. do not constitute specialized health care procedures.

      W. Va. Code §18-5-22 provides in pertinent part:
      Specialized health procedures that require the skill, knowledge and judgment of a licensed health professional, shall be performed only by school nurses, other licensed school health care providers as provided for in this section, or school employees who have been trained and retrained everytwo years who are subject to the supervision and approval by school nurses. After assessing the health status of the individual student, a school nurse, in collaboration with the student's physician, parents and in some instances an individualized education program team, may delegate certain health care procedures to a school employee who shall be trained pursuant to this section, considered competent, have consultation with, and be monitored or supervised by the school nurse: Provided, That nothing herein shall prohibit any school employee from providing specialized health procedures or any other prudent action to aid any person who is in acute physical distress or requires emergency assistance. For the purposes of this section "specialized health procedures" means, but is not limited to, catheterization, suctioning of tracheostomy, naso-gastric tube feeding or gastrostomy tube feeding. "School employee" means "teachers", as defined in section one [§ 18-1-1], article one of this chapter and "aides", as defined in section eight [§ 18A-4-8], article four, chapter eighteen-a of this code.

      Any school employee who elects, or is required by this section, to undergo training or retraining to provide, in the manner specified in this section, the specialized health care procedures for those students for which the selection has been approved by both the principal and the county board, shall receive additional pay of at least one pay grade higher than the highest pay grade for which the employee is paid

      W. Va. Code §18-5-22a provides that:
      All county boards of education shall develop a specific medication administration policy which establishes the procedure to be followed for the administration of medication at each school.

      No school employee shall be required to administer medications: Provided, That nothing herein shall prevent any school employee to elect to administer medication after receiving training as provided herein: Provided, however, That any school employee in the field of special education whose employment commenced on or after the first day of July, one thousand nine hundred eighty-nine, may be required toadminister medications after receiving training as provided herein.

      The Grievance Board has addressed this issue only once prior to the present matter. In Elliot v. Randolph County Board of Education, Docket No. 98-42-305 (Mar. 1, 1999), it was held that administering injections, either with Epipens or hypodermic needles, constituted “specialized health procedures”. This decision was based upon findings that Ms. Elliot had been given specific instruction from the school nurse on administration of medication in a manner which is not within the average individual's knowledge or expertise.       By comparison, Grievant administered only topical ointments and oral medications. Linda Moran, HCBOE School Nurse, testified that she instructed Grievant to wear rubber gloves, but she also opined that he did not perform any procedures that could not be completed by the average mother. Grievant's own testimony establishes that he filed this complaint after he learned that the Transportation Aide who assists S. R. to and from school is paid the additional salary on the basis that she may need to assist the student. Grievant concluded that the potential existed that he too may have to care for S. R. if both Ms. Phillips and Ms. Burnetti were out of the classroom. In fact, Grievant stated that he did offer assistance during one episode; however, he did not elaborate on his actual participation.
      Ms. Moran's testimony was that Grievant was not trained to assist S. R., and was not expected to perform any medical procedures on him, although he could assist by working with the other children, calling for an ambulance, etc. Ms. Moran stated that it washer understanding that Ms. Phillips had provided care to S. R. during the major illness he suffered at school.
      As a certified Emergency Medical Technician, Grievant evidently felt some duty toward student S. R.; however, the evidence establishes that he had no responsibility for the student. Further, the actual duties assigned to, and performed by, Grievant for student S. D. cannot be characterized as “specialized medical procedures”. Although he discussed the medication with the School Nurse, Grievant was not provided training, nor was any required, as the application and dispensing of the medication was simple and well within the ability of an average individual. While not inclusive, the statutory language indicates that the additional compensation is to be awarded for complex medical applications not readily performed by untrained individuals.
      In addition to the foregoing findings of fact and discussion, it is appropriate to make the following formal conclusions of law.

      Conclusions of Law
      1.      As this grievance does not involve a disciplinary matter, Grievant has the burden of proving each element of his grievance by a preponderance of the evidence. Procedural Rules of the W. Va. Educ. & State Employees Grievance Bd. 156 C.S.R. 1 §4.19 (1996); Holly v. Logan County Bd. of Educ., Docket No. 96-23-174 (Apr. 30, 1997); Hanshaw v. McDowell County Bd. of Educ. Docket No. 33-88-130 (Aug. 19, 1988). See W. Va. Code §18-29-6.
      2.      "Any school employee who elects, or is required by this section, to undergo training or retraining to provide, in the manner specified in this section, the specializedhealth care procedures for those students for which the selection has been approved by both the principal and the county board, shall receive additional pay of at least one pay grade higher than the highest pay grade for which the employee is paid . . .". W. Va. Code §18-5-22.
      3.      Grievant failed to establish that he was trained or performed any “specialized health procedures” as part of his assignment which would entitle him to additional compensation.
      Accordingly, the grievance is DENIED.
      Any party may appeal this decision to the Circuit Court of Kanawha County or to the Circuit Court of Harrison County and such appeal must be filed within thirty (30) days of receipt of this decision. W.Va. Code §18-29-7. Neither the West Virginia Education and State Employees Grievance Board nor any of its Administrative Law Judges is a party to such appeal and should not be so named. However, the appealing party is required by W. Va. Code §29A-5-4(b) to serve a copy of the appeal petition upon the Grievance Board. The appealing party must also provide the Board with the civil action number so that the record can be prepared and properly transmitted to the appropriate circuit court.

Date: September 25, 2000 __________________________________
SUE KELLER
SENIOR ADMINISTRATIVE LAW JUDGE



Footnote: 1
      Grievant was represented by John E. Roush, Esq. of WVSSPA, and HCBOE was represented by Basil Legg, Esq.
Footnote: 2
      Consistent with Grievance Board practice, students will be identified only by their initials.