EMS Investigations and Laws

Purpose of Investigations Protect the Citizens of the State of NH Protect the Citizens of the State of NH Determine the holes in the system Determine the holes in the system Location of hole: Location of hole: State level State level Local Level Local Level Provider level Provider level Educationally Educationally Process Process Law, Rule or Policy Law, Rule or Policy If there is a problem with one provider or unit, is this an issue that effects others in the state? Investigations is how the Bureau discovers holes in our system. How can we address a problem if we do not know it exist?

RSA 541-A: A:30 Agency Action Against Licensees. – I. If a timely and sufficient application has been made in accordance with agency rules for renewal of a license for any activity of a continuing nature that does not automatically expire by law, the existing license shall not expire until the agency has taken final action upon the application for renewal. If the agency's final action is unfavorable, the license shall not expire until the last day for seeking judicial review of the agency's action, or a later date fixed by the reviewing court. I. If a timely and sufficient application has been made in accordance with agency rules for renewal of a license for any activity of a continuing nature that does not automatically expire by law, the existing license shall not expire until the agency has taken final action upon the application for renewal. If the agency's final action is unfavorable, the license shall not expire until the last day for seeking judicial review of the agency's action, or a later date fixed by the reviewing court. II. An agency shall not revoke, suspend, modify, annul, withdraw, or amend a license unless the agency first gives notice to the licensee of the facts or conduct upon which the agency intends to base its action, and gives the licensee an opportunity, through an adjudicative proceeding, to show compliance with all lawful requirements for the retention of the license. The Bureau of EMS can do nothing to a license without an opportunity of adjudicative proceeding (Bureau of Hearings)! The only times when there is no adjudicative proceeding is when a licensee voluntarily surrenders their license, as part of a settlement or if the licensee does not request a hearing

A BUREAU OF EMS INVESTIGATION

Investigations Step by Step The Complaint Comes In! The Complaint Comes In! Commissioner Barthelmes Dept. of Safety 33 Hazen Drive Concord NH Commissioner Barthelmes Dept. of Safety 33 Hazen Drive Concord NH 03305

(a) Any person may file a complaint regarding the actions of any unit or provider licensed under RSA 153-A, or any person or entity believed to be in violation of RSA 153-A or Saf-C 5900 provided that the complaint is: (1) Submitted in writing to the commissioner; (2) Typewritten or legibly printed in black ink; and (3) Reported within 15 days of the discovery of the alleged violation. Saf-C Complaints and Investigations Relating to Unit and Provider License. Continued... The 15 days from discovery mean from when the problem discovered not from when it occurred. Also in the proposed rules sent forward we have expanded that to 60 days to allow for more responsibility to be taken at the local level instead of feeling rushed to put forward to the Bureau.

(b) The written complaint shall include: (1) The name of the unit or provider against whom the complaint is filed, hereinafter called the “respondent”; (2) The alleged violation of RSA 153-A or Saf-C 5900; (3) The date of the alleged violation; (4) The complainant’s signature; and (5) The complainant’s printed or typed name, address, and telephone number. (c) Complaints shall be investigated by the director or his/her designee in accordance with RSA 153-A:14. (d) The division shall not investigate any anonymous complaints. Saf-C Complaints and Investigations Relating to Unit and Provider License. Continued......Continued

Investigations Step by Step Complainant Letter

RSA 153-A: A:14 Investigations. – The director shall investigate any complaint regarding the actions of any licensee licensed under this chapter or when the director has reason to believe that any licensed or unlicensed individual or entity is in violation of this chapter or any rules adopted pursuant to this chapter. When the Bureau finds out about criminal activities and there is no official complaint.

Newspaper/websites are a major sources for information of potential investigations when a criminal activity is reported. Local EMT arrested for theft of narcotics Local Emergency Medical Technician, John Doe of Sometown, NH was arrested on Friday, on 12 counts theft of a controlled substance and will be arraigned on Tuesday in a local court.

Investigations Step by Step Preliminary Fact Finding TEMSIS State Licensing/ Transcript Databases Web Searches Request for Records

Analysis of a Complaint Is there an Immediate danger to the public? Is there an Immediate danger to the public? Is this in the purview or the Bureau of EMS? Is this in the purview or the Bureau of EMS? Does it violate RSA 153-A:13 or Saf-C 5900? Does it violate RSA 153-A:13 or Saf-C 5900? Is there any criminal aspect? Is there any criminal aspect? Was there any local investigation or fact finding? Was there any local investigation or fact finding? Are there any documentation that may support the complaint? Are there any documentation that may support the complaint? Do we need a full investigation to obtain more information to make an appropriate decision on the merit of the complaint? Do we need a full investigation to obtain more information to make an appropriate decision on the merit of the complaint?

When there IS an Apparent Immediate Danger?

Saf-C Immediate Suspension. In accordance with RSA 541-A:30, III, if the division determines that public health, safety or welfare requires emergency action, an immediate suspension of a license may be ordered pending an adjudicative hearing, which shall occur not later than 10 working days after the date of the suspension of the license. The adjudicative hearing shall be conducted in accordance with the requirements of Saf-C 200. The Bureau of EMS can immediately suspend a license but there must be a hearing at the Bureau of Hearing within 10 days. If not the suspension is waived.

RSA 541-A: A:30 Agency Action Against Licensees. – III. If the agency finds that public health, safety or welfare requires emergency action and incorporates a finding to that effect in its order, immediate suspension of a license may be ordered pending an adjudicative proceeding. The agency shall commence this adjudicative proceeding not later than 10 working days after the date of the agency order suspending the license. A record of the proceeding shall be made by a certified shorthand court reporter provided by the agency. Unless expressly waived by the licensee, agency failure to commence an adjudicative proceeding within 10 working days shall mean that the suspension order is automatically vacated. The agency shall not again suspend the license for the same conduct which formed the basis of the vacated suspension without granting the licensee prior notice and an opportunity for an adjudicative proceeding. 1.The Bureau can suspend if there is a threat to public safety. 2.Adjudicative proceeding no later than 10 days. The Commissioner’s letter is sent directly to the Bureau of Hearings and a Hearing is set and the date sent to the respondent. 3.Unless waived, if there is no hearing the suspension will be waived. 4.Once suspension is vacated there can not be another suspension without prior notice and another hearing. There can be no second immediate suspension for the same offense.

Investigations Step by Step 541 Immediate Suspension Letter

When there IS NO Apparent Immediate Danger?

RSA 153-A:13 Revocation of License. – I. The commissioner shall deny an application for issuance or renewal of a license, or suspend or revoke a license, when the commissioner finds that the applicant is guilty of any of the following acts or offenses: (a) Negligence or incompetency in performing authorized services. (a) Negligence or incompetency in performing authorized services. (b) Rendering treatment not authorized under this chapter. (c) Fraud in procuring a license. (d) Knowingly making misleading, deceptive, untrue, or fraudulent representations in the practice of his or her profession, or engaging in unethical conduct or practice harmful or detrimental to the public. Proof of actual injury need not be established. (e) The illegal use of drugs. (e) The illegal use of drugs. These are the laws enforceable by the Bureau of EMS

(f) Fraud in representations as to skills or ability. (g) Willful or repeated violations of this chapter or of rules adopted pursuant to this chapter. (g) Willful or repeated violations of this chapter or of rules adopted pursuant to this chapter. (h) Violating a statute of this state, another state, or the United States, without regard to its designation as either a felony or misdemeanor, which relates to the practice of an emergency medical care provider. A certified copy of the record of conviction or plea of guilty is prima facie evidence of a violation. (i) Having a license or registration to practice as an emergency medical care provider revoked or suspended, or having other disciplinary action taken by a licensing or registering authority of another state, territory, country, or the National Registry of Emergency Medical Technicians. A certified copy of the record or order of suspension, revocation, or disciplinary action is prima facie evidence of such action. (i) Having a license or registration to practice as an emergency medical care provider revoked or suspended, or having other disciplinary action taken by a licensing or registering authority of another state, territory, country, or the National Registry of Emergency Medical Technicians. A certified copy of the record or order of suspension, revocation, or disciplinary action is prima facie evidence of such action. RSA 153-A:13 These are the laws enforceable by the Bureau of EMS

RSA 153-A:13 (j) Negligent, unsafe, or illegal operation of an emergency medical service vehicle, or negligent or unsafe use or maintenance of the safety systems of an emergency medical service vehicle. (j) Negligent, unsafe, or illegal operation of an emergency medical service vehicle, or negligent or unsafe use or maintenance of the safety systems of an emergency medical service vehicle. (k) Unauthorized disclosure of information regarding an individual who has received care or the services rendered to an individual. (l) Delivering emergency medical care while drug or alcohol impaired. (l) Delivering emergency medical care while drug or alcohol impaired. II. A determination of mental incompetence by a court of competent jurisdiction automatically suspends a license for the duration of the license, unless the commissioner orders otherwise. III. A denial, suspension, or revocation under this section shall be in accordance with RSA 541-A. These are the laws enforceable by the Bureau of EMS

Common Types of Investigations Secondary to Criminal Secondary to Criminal Armed robbery Armed robbery Sexual assault Sexual assault Violent crimes Violent crimes Drug diversions Drug diversions Licensing Issues Licensing Issues Unlicensed Care Unlicensed Care Fraud in procuring a license Fraud in procuring a license Patient Care Negligence or Incompetency in Care Practicing outside of scope of practice Equipment Vehicles Medical Equipment Disclosure of Information Even within these types of transgressions the degrees of severity varies case to case.

Investigations Step by Step Notice of Investigation

Investigations Step by Step In Depth Fact Finding Web Searches Policy & Procedures TEMSIS State Licensing/ Transcript Databases Interviews Court Records s Historical Reference Photos Supplemental Evidence Videos

Some cases require one report other could require reviewing hundreds.

The Bureau of EMS Licensing Database

The Division of FST&EMS Transcript Database

Investigations Step by Step Request for Records

Investigations Step by Step Interview Request

Investigations Step by Step The respondent and witnesses are allowed legal counsel at their expense!

Investigations Step by Step Report of Investigation A Report of Investigation is a listing of all evidence to prove or disprove an allegation that will include important part of interviews, list of documentations and any other pertinent information. This is sent to the Bureau Chief to review to assist in his determination of the case.

Investigations Step by Step Bureau Chief of EMS Director of FST&EMS Commissioner of the Department of Safety

Investigations Step by Step License Action Letter

Suspension vs. Revocation Suspension up to 1 year per offense Suspension up to 1 year per offense Revocation up to 5 years per offense Revocation up to 5 years per offense

Saf-C Suspension of Unit and Provider License. (f) After notice and an opportunity for a hearing pursuant to Saf-C , the commissioner shall suspend a unit's license for: (1) Negligence or incompetence in the provision of emergency medical care as specified in RSA 153-A:13, I(a); (2) Rendering unauthorized treatment as specified in RSA 153-A:13, I(b); (3) Unethical conduct as specified in RSA 153-A:13, I(d); Any punitive actions are prescribed in the Administrative Rules Saf-C 5900.

Saf-C Suspension of Unit and Provider License. (a) Any suspension of a unit or provider’s license shall be assessed for a period of up to one calendar year. (b) All or any portion of the division’s suspension imposed pursuant to (a) above may be deferred for a period of one year, conditioned upon good behavior and the completion of any requirements ordered as part of the suspension. If any misconduct occurs during the period of deferred time or the unit or provider fails to comply with any requirements ordered, a hearing shall be conducted to determine if the deferred suspension shall be imposed, in addition to any further disciplinary action taken on any misconduct that occurred during the deferred period. Things taken into account: Self Disclosure Licensee History Criminal ramifications Personal responsibility Severity of transgression Extenuating circumstances Historical reference to similar incidents

Probation and Education Requirement Depending on the transgression, instead of a full suspension, some or all of the suspension may be deferred and the Bureau will put the licensee in probation. The Bureau staff will monitor the respondent, medically or professionally during probation and there may be an educational component that will need to be completed prior to the end of probation.

Probation and Education Requirement If the licensee violates any portion of the suspension, the licensee is informed of the violation and the matter is brought before the Bureau of Hearings to decide if the probation has been violated and if the punishment is appropriate for the violation. An Appeal is still allowed in this process.

RSA 153-A: A:22 Administrative Fines. – The commissioner, after notice and hearing, pursuant to rules adopted under RSA 541-A, may impose an administrative fine not to exceed $2,000 for each offense upon any person or entity licensed under this chapter who violates any provision of this chapter or rules adopted under this chapter. Rehearings and appeals from a decision of the director shall be in accordance with RSA 541. Any administrative fine imposed under this section shall not preclude the imposition of further penalties or administrative actions under this chapter. The commissioner shall adopt rules in accordance with RSA 541-A relative to administrative fines which shall be scaled to reflect the scope and severity of the violation. The sums obtained from the levying of administrative fines under this chapter shall be forwarded to the state treasurer to be deposited into the general fund. 153-A:22 Administrative Fines. – The commissioner, after notice and hearing, pursuant to rules adopted under RSA 541-A, may impose an administrative fine not to exceed $2,000 for each offense upon any person or entity licensed under this chapter who violates any provision of this chapter or rules adopted under this chapter. Rehearings and appeals from a decision of the director shall be in accordance with RSA 541. Any administrative fine imposed under this section shall not preclude the imposition of further penalties or administrative actions under this chapter. The commissioner shall adopt rules in accordance with RSA 541-A relative to administrative fines which shall be scaled to reflect the scope and severity of the violation. The sums obtained from the levying of administrative fines under this chapter shall be forwarded to the state treasurer to be deposited into the general fund. Fines are allowed but have never been used by the Bureau of EMS.

(e) A provider’s head of unit shall be notified of any complaint filed pursuant to this section and the results of any investigation. (f) During the course of the investigation, the director or his/her designee shall determine whether the complaint is founded. (g) Complaints shall be founded if they include any number of violations specified in 153-A: 13 or these rules. (h) At the conclusion of the investigation, the commissioner shall notify the complainant and respondent of the findings of the investigation, sent via certified mail. (i) If unfounded, the commissioner shall terminate the investigation and shall notify the complainant and respondent of such finding, sent via certified mail. (j) If founded, the commissioner shall issue a written order, within 10 days and sent via certified mail to the respondent which: (1) Specifies the violation(s) of RSA 153-A and/or Saf-C 5900; and (2) Directs such person(s) to comply with the provisions of RSA 153-A and/or Saf-C Saf-C Complaints and Investigations Relating to Unit and Provider License...Continued Continued...

(k) Investigation information shall be confidential, and shall not be released. (l) Notwithstanding (k) above, investigation information shall be released: (1) To the department of justice in its capacity as legal counsel to the agency; (2) Pursuant to court order directing the division to release such information; (3) During an adjudicative hearing subject to the provisions set forth in RSA 541-A:31 and Saf-C 200; or (m) Notwithstanding (k) above, investigation information shall be released to a provider’s head of unit, in the event that a separate personnel action may be taken if a complaint is determined to be founded. No information shall be released to a head of unit until the division has completed its investigation and notified the complainant and the respondent of its findings. (n) Any person against whom a complaint is determined to be founded, may request a hearing pursuant to RSA 541-A:31 and Saf-C for the purpose of challenging such finding Saf-C Complaints and Investigations Relating to Unit and Provider License...Continued

Investigations Step by Step

Saf-C Right to A Hearing Relating to Unit and Provider Licenses. (a) In accordance with Saf-C , Saf-C , Saf-C and Saf-C , the division shall send a written notice of the right to a hearing, within 10 days of the date of notice and sent via certified mail, to the applicant or licensee prior to taking any adjudicative action pursuant to RSA 541-A:31 and Saf-C 200.

Bureau of Hearings Run under the Administrative Rules Saf-C 200 A Hearings Examiner, a lawyer from the Bureau of Hearings listens to the State’s case and the Respondents case and determines if the actions of the Bureau of EMS was appropriate and legal. The Bureau of EMS must prove it’s case beyond a preponderance of doubt (51%). The Hearings Examiner can uphold, amend or dismiss the Bureau of EMS decision.

Investigation Step by Step Report of Hearings Examiner

Investigations Step by Step The respondent can file an appeal to the State Supreme Court.

RSA 153-A and Saf-C 5900 available on the Bureau of EMS homepage.

Investigations by Years % % % % % % % % % % % % % % % % % % % % % % Year Licensed Cases Individuals % of Criminal Narcotics Licensing Founded Year Licensed Cases Individuals % of Criminal Narcotics Licensing Founded Providers Investigated Licensees Issues Issues Issues Providers Investigated Licensees Issues Issues Issues Totals % % 4 1 Investigations no longer handled only by the Bureau Chief and became more formalized with a member of Field Services tasked with fact finding. 2 Refresher Scandal. 3 “% of Individuals” under Investigation compared total EMS Licensees in NH. 4 Based on closed documented cases. As of 4/4/2014

We have seen increase in self reporting, criminal charges, narcotic issues and the public’s expectation. When they feel that higher level of professionalism is not met they are reaching out the Bureau more frequently. We have seen increase in self reporting, criminal charges, narcotic issues and the public’s expectation. When they feel that higher level of professionalism is not met they are reaching out the Bureau more frequently. Investigations by Years

Key Cases Cases Individuals Individuals Cases & Individuals Cases & Individuals Refresher Scandal

Current Investigation 32 active individual/unit cases open 32 active individual/unit cases open 3 cases in probation 3 cases in probation 12 investigations relate to pending criminal investigations including violent and sexual offenses and drug diversions. 12 investigations relate to pending criminal investigations including violent and sexual offenses and drug diversions. 11 investigations are related to poor or inappropriate patient care. 11 investigations are related to poor or inappropriate patient care. 2 are related to unauthorized disclosure of information. 2 are related to unauthorized disclosure of information. 2 have to do with a lack of documentation of patient care. 2 have to do with a lack of documentation of patient care. 2 having to do with unlicensed unit or providers. 2 having to do with unlicensed unit or providers.

Current Length of Investigations >2 years 3 (1 in probation and 2 waiting for criminal) >1 ½ years1 >1 year8 (2 in probation and 6 waiting for criminal) >6 months 7 (2 waiting for criminal) < 6 months 13 (2 waiting for criminal)

Changes being made already!

Proposed Respondent Letter

To try to avoid a Unit Head being informed before the provider about an investigation we have instituted a policy to send the Head of Unit letter 15 days after the Notice of Investigation is sent to the provider. Proposed Letter to Respondent’s Head of Unit

DRAFT DRAFT

New Proposed Letters Both letters have been sent to the Department of Safety Attorney and are currently being reviewed by the Attorney General’s office for approval Both letters have been sent to the Department of Safety Attorney and are currently being reviewed by the Attorney General’s office for approval

In the Proposed Rules (i) If founded, the division shall publish a public list of units found to have violated RSA 153-A or these rules on the department’s website, although the division is not limited to that method of publication. Such public list shall specify the name of the unit, unit license number, the provision(s) of RSA 153- A and/or these rules that have been violated, the date of the violation, any action resulting in a change in status of the unit license, including any prerequisites to full restoration of unit license privileges, and the date of such action. If the unit timely requests a hearing for the purpose of challenging the finding pursuant to Saf-C (l), the information on the public list shall also include the information “Appeal Pending” through the final disposition of such hearing and of any timely filed appeals thereof. This was added to more in line with the rest of the medical professions in New Hampshire where license action is published. About 30 states also publish license action against Emergency Medical Providers in greater or lesser detail than we will be doing.

DRAFT

Process In review

Thank You! If you have any questions feel free to contact Richard Cloutier 33 Hazen Drive Concord, NH