South Carolina              
Administrative Law Court
Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550

SC Administrative Law Court Decisions

CAPTION:
Medstar Ambulance Service, Inc. vs. SCDHEC

AGENCY:
South Carolina Department of Health and Environmental Control

PARTIES:
Petitioner:
Medstar Ambulance Service, Inc.

Respondent:
South Carolina Department of Health and Environmental Control
 
DOCKET NUMBER:
96-ALJ-07-0498-CC

APPEARANCES:
Brenda Reddix-Smalls, Esq., for Petitioner

Thomas G. Eppink, Esq., for Respondent
 

ORDERS:

ORDER

I. Statement of the Case




Medstar Ambulance Service, Inc. (Medstar) holds license number 145 enabling it to provide an ambulance service. After an investigation, the South Carolina Department of Health and Environmental Control (DHEC) determined that Medstar's license should be revoked and so notified Medstar on November 18, 1996. Medstar protested DHEC's determination by seeking a contested case hearing before the Administrative Law Judge Division (ALJD). Jurisdiction vests with the ALJD under S. C. Code Ann. § 44-61-70 (Supp. 1996) and S. C. Code Ann. § 1-23-600 (Supp. 1996). The hearing in this matter was held on January 10 and 13, 1997, after thirty days notice to the parties.

Under the evidence presented, DHEC has not conducted a covert investigation; the standard of proof for deciding the revocation issue is the preponderance of evidence standard; and the application of that standard demonstrates that Medstar's violations of statutes and regulations are extensive.

1. Medstar violated S. C. Code Regs. 61-7, § 303B since it employed fewer than the required number of Emergency Medical Technicians (EMTs) on a specific date.

2. Medstar violated S. C. Code Regs. 61-7, § 303C since it lacked adequate staffing procedures to assure that an ambulance would be en route with at least one EMT to all calls within ten (10) minutes.

3. Due to Medstar's use of unauthorized signatures for the primary patient attendant on more than fifty (50) patient care forms, Medstar failed to maintain required records and thus violated S.C. Code Regs. 61-7, § 303G and S.C. Code Ann. § 44-61-90.

4. Medstar's failure to maintain required records on dispatch logs violates S.C. Code Regs. 61-7, § 303G and S.C. Code Ann. § 44-61-90.

5. Medstar failed to maintain approved ambulance run report forms and violated S.C. Code Ann. § 44-61-90.

6. Medstar, both in writing and orally, advertised it provided advanced life support services and thus violated S.C. Code Regs. 61-7, § 309.

7. Medstar attended to eight patients by use of an individual not holding a South Carolina EMT certificate with such action constituting a violation of S.C. Code Regs. 61-7, § 802A.

8. On March 8, 1996, Medstar violated S.C. Code Regs. 61-7, § 9A when it left a patient unattended while transporting her from a hospital to a nursing home.

9. On thirty-eight (38) occasions, Medstar violated S.C. Code Ann. § 44-61-50 by the operation of an unpermitted vehicle as an ambulance.

While DHEC failed to prove other allegations, the proven violations are so extensive that revocation is warranted.

II. Issues


1. Have covert activities been undertaken by DHEC and, if so, are such activities proper?

2. What is the standard of proof in deciding whether to revoke an ambulance license?

3. Are sufficient grounds present to warrant revocation of Medstar's license number 145?





III. Analysis


A. Covert Activities of DHEC


1. Positions of Parties:

Medstar argues DHEC conducted a covert investigation of Medstar with no statutory or regulatory authority to engage in that method of investigation. DHEC asserts the investigation was not covert, but was open and known. Further, DHEC argues even if its investigations were covert, authority exists for that method of investigation.





2. Findings of Fact:

I find, by a preponderance of the evidence, the following facts:

1. DHEC contacted third parties seeking information on Medstar's ambulance operations.

2. DHEC made no secret of its contacts with other ambulance providers in seeking information on Medstar.

3. DHEC openly admitted its investigation of Medstar since DHEC notified the Director of Bamberg County E.M.S, Beaufort County E.M.S. Director, Hampton and Jasper Counties E.M.S. Director, Colleton County E.M.S. Director, Orangeburg County E.M.S. Director, Barnwell Rescue Squad, Bamberg Rescue Squad, and Denmark Rescue Squad to report any improper activity of Medstar.

4. On May 3, 1996, Inspector Kaiser did not conceal himself at the Bamberg Hospital but confronted one of Medstar's employees at the hospital and asked to inspect the ambulance.

3. Discussion

Overall, the powers of an administrative agency or official ordinarily include the power of investigation. 73 C.J.S. Public Administrative Law and Procedure § 77 (1983). Here, DHEC is specifically vested with all administrative responsibility for the emergency medical services program. S.C. Code Ann. § 44-61-30 (Supp. 1996). Further, those administrative responsibilities specifically authorize inspecting "each ambulance service (ambulances, equipment, personnel, records, premises, and operational procedures) whenever such inspection is deemed necessary, but in any event, not less frequently than once each year." (emphasis added). S.C. Code Regs. 61-7, § 301C (1976).

These provisions are more than broad enough to allow DHEC to contact third parties for information concerning an ambulance service that DHEC chooses to inspect. Here, DHEC properly obtained information from other providers and properly used that information to complete its duty to inspect. Finally, and most directly responsive to the objection of Medstar, third party contacts are not covert activities.

The term "covert" refers to activities that are covered, protected, or sheltered. Black's Law Dictionary 365 (6th ed. 1990). A covert act is one concealed or not apparent. Id. DHEC made no secret of its contacts with other ambulance providers in seeking information on Medstar. DHEC openly admitted its investigation of Medstar since DHEC notified the directors of many E.M.S services in the state to report any improper activities of Medstar.

Further, Inspector Kaiser did not conceal himself at the Bamberg Hospital but confronted one of Medstar's employees at the hospital and openly sought inspection of the ambulance. Accordingly, DHEC did not conduct covert activities in its investigation of Medstar. Since the evidence demonstrates DHEC's actions were not covert, I do not address the authority of DHEC to conduct covert activities while investigating ambulance services.

4. Conclusions of Law

Based on the foregoing Findings of Fact and Discussion, I conclude the following as a matter of law:

1. The powers of an administrative agency or official ordinarily include the power of investigation. 73 C.J.S. Public Administrative Law and Procedure § 77 (1983).

2. DHEC is vested with all administrative responsibility for the emergency medical services program. S.C. Code Ann. § 44-61-30 (Supp. 1996).

3. Whenever an inspection is deemed necessary, DHEC's administrative responsibilities include inspecting each ambulance service including ambulances, equipment, personnel, records, premises, and operational procedures. S.C. Code Regs. 61-7, § 301C (1976).

4. These statutory and regulatory provisions allow DHEC to contact third parties for information concerning any ambulance service DHEC chooses to inspect. S.C. Code Ann. § 44-61-30 (Supp. 1996); S.C. Code Regs. 61-7, § 301C (1976).

5. DHEC properly obtained information from other providers and properly used that information to complete its duty to inspect.

6. Third party contacts by themselves are not covert activities.

7. "Covert" refers to activities that are covered, protected, or sheltered or an act concealed or not apparent. Black's Law Dictionary 365 (6th ed. 1990).

8. DHEC did not conduct covert activities in its investigation of Medstar.

B. Standard of Proof


1. Positions of Parties:

DHEC seeks to revoke Medstar's license to operate an ambulance service and asserts that the burden of proof is the preponderance of evidence standard. Medstar, on the other hand, asserts DHEC must satisfy the clear and convincing evidence standard.

2. Findings of Fact:

I find, by a preponderance of the evidence, the following facts:

1. DHEC seeks to revoke Medstar's license to transport patients under Ambulance Provider Service License No. 145.

2. Medstar is a corporation.

3. The proposed revocation does not fine anyone.

4. No one forfeits any assets to the State.

5. No one is confined for any period.



6. No individual forfeits a license.

7. No individual is singled out for punishment.

8. No individual is labeled as incompetent, dishonest, or fraudulent.

9. Medstar's license revocation results in the loss of money due to Medstar's inability to operate a business as an ambulance provider.

10. Medstar's chief concern in this matter is its loss of income and business to other competing service providers.



3. Discussion

What standard of proof must be used? The standard is set either by statute, regulation or constitutional duty.

a. Statute Or Regulation

While the Administrative Procedures Act (APA) requires the application of the rules of evidence as employed in civil cases (See S.C. Code Ann. § 1-23-330(1) (1986) and ALJD Rule 25(A)), such instruction does not answer the standard of proof question since neither the APA nor the rules of evidence impose a standard of proof. Anonymous (M-156-90) v. State Bd. of Medical Examiners, ____ S.C. ____, 473 S.E.2d 870 (Ct. App. 1996). However, without a statutory standard, agency regulations may impose a standard of proof. See National Health Corp. v. S.C. Dept. of Health and Envtl. Control 298 S.C. 373, 380 S.E.2d 841 (Ct. App. 1989) (holding that since the APA is silent on the standard of review or burden of proof at the contested case hearing, DHEC regulations are controlling.); See Anonymous supra (implying that agency regulations may be used to establish a standard of proof since the Court stated that, "[t]he Regulations governing the Board are also silent as to the standard of proof.").

In the instant case, DHEC regulations are clear. Absent any contrary provision, (none having been shown here) the standard of proof in a contested case to revoke a license to engage in the business of an ambulance service is the preponderance of evidence standard. S. C. Code Regs. 61-72, § 702B (Supp. 1996) (moving party shall bear the burden of proof to establish the matters propounded by a preponderance of the evidence.) Here, unless the constitution imposes another standard, DHEC, as the moving party, bears the burden of proof and must prove its allegations by a preponderance of the evidence.

b. Procedural Due Process Concerns

Medstar argues the constitution imposes another standard since the regulation infringes Medstar's procedural due process rights to protect its property interest in its license.(1) Medstar asserts the revocation is a quasi-criminal action that, rather than a preponderance standard, requires the use of the higher standard of clear and convincing evidence. I cannot agree.

1. General Framework

Normally, the degree of proof needed to carry the burden of persuasion is a matter typically left to the judiciary. Woodby v. INS, 385 U.S. 276 (1966). However, the legislative branch is not forbidden from addressing the subject since law-making bodies have traditionally approved rules of evidence and standards of proof for use by the judiciary. See, e.g., S.C. Acts 104, (General Assembly issued approval of South Carolina Rules of Evidence); S.C. Code Ann. § 15-33-135 (General Assembly imposed standard of proof of clear and convincing evidence to award punitive damages); Steadman v. Securities and Exchange Comm'n, 450 U.S. 91 (1981) (explaining that Congress routinely prescribes rules of evidence and standards of proof in the federal courts). Far from a prohibition on legislative involvement in standard of proof issues, once the legislative branch expresses its view, any deviation from that standard must be based on well supported "countervailing constitutional constraints." Vance v. Terrazas, 444 U.S. 252 (1980).

2. Application to Medstar

The General Assembly's approval of S.C. Code Regs. 61-72, § 702B (Supp. 1996) expresses a legislative view employing a preponderance of evidence standard. Since the standard of S. C. Code Regs. 61-72, § 702B is a general provision applicable to a variety of DHEC hearings, each case in dispute must demonstrate that the preponderance standard does not violate "countervailing constitutional constraints." Id. Here, Medstar asserts a sufficient basis for finding a constitutional due process requirement for using the clear and convincing standard is that the revocation is quasi-criminal. I disagree.

A quasi-criminal matter is one in which the "penalty" is so punitive as to indicate the General Assembly intended more than a mere civil infraction. Anonymous (M-156-90) v. State Bd. of Medical Examiners, ____ S.C. ____, 473 S.E.2d 870 (Ct. App. 1996). An action is punitive if its object is to discipline or punish. Wise v. S.C. Tax Comm'n, 297 S.C. 239, 376 S.E.2d 262 (1989). Here, the revocation does not, nor is it designed to, discipline or punish. Rather than punishment, the revocation seeks to protect the public by removing improperly operating providers. See Huber v. S.C. State Bd. of Physical Therapy Examiners, 316 S.C. 24, 446 S.E.2d 433 (1994) (holding that the revocation of a medical license is designed not to punish the person but to protect the life, health, and welfare of the people at large).

Even if the matter were "quasi-criminal," which label traditionally invokes the standard of proof of clear and convincing evidence (See Anonymous (M-156-90) v. State Bd. of Medical Examiners, ____ S.C. ____, 473 S.E.2d 870 (Ct. App. 1996), that label is not determinative since the more comprehensive inquiry is what "degree of confidence our society thinks [the fact-finder] should have in the correctness of factual conclusions for a particular type of adjudication." Addington v. Texas, 441 U.S. 418, 423 (1979) (quoting In re Winship, 397 U.S. 358, 370 (1970)). Specifically, when the adjudication involves "particularly important individual interests" such as individual liberty, citizenship, or parental rights, a clear and convincing standard may be appropriate. Herman & MacLean v Huddleston, 459 U.S. 375 (1983). On the other hand, however, a preponderance standard is appropriate where the loss is no "more substantial than mere loss of money." Santosky v. Kramer, 455 U.S. 745, 756 (1982) (quoting Addington, supra, at 424).

Here, no individual forfeits a license. No individual is singled out for punishment. No individual is labeled as incompetent, dishonest, or fraudulent. No one is fined. Rather, Medstar's license revocation impacts Medstar's ability to generate income from operating a business as an ambulance provider.

In fact, the chief concern in this matter is the loss of income by Medstar to other competing service providers. Medstar displayed its concern by the cross examination of James Hooper, an employee of Rural Metro, a competing provider.

Q THE PROBLEM IS, SIR, THAT ONE AMBULANCE COMPANY GETS PAID AND THE OTHER DOESN'T. TWO AMBULANCE COMPANIES DON'T GET PAID FOR A CALL TO THE SAME PLACE, DO THEY?

A THAT'S MY UNDERSTANDING, YES.

Q AND THE PROBLEM IS A PROBLEM OF MONEY BETWEEN TWO COMPETING COMPANIES, IS IT NOT?

A IF YOU WISH TO LOOK AT IT THAT WAY, YES.

Q NO, SIR, I'M ASKING YOU. IS IT A PROBLEM OF MONEY?

A IT WOULD HAVE TO BE THAT.

Tr. p. 157, ln 9 - 17

Further, Medstar's questioning of Vickie Foster, a manager at Rural Metro Ambulance Service, amplified Medstar's concern over the loss of business.

Q OKAY. IT'S POSSIBLE, BUT YOU JUST DON'T RECALL IT?

A THE ONLY THING I RECALL IS WHEN OUR DISPATCH CENTER RECEIVED SOME REQUESTS FOR SERVICE, I INFORMED THEM IF THEY WERE CALLED, THAT THEY WERE TO ADVISE THE CALLER THAT WE WOULD TRANSPORT AND MEET THEIR NEEDS IF THEY WERE A FORMER MEDSTAR CUSTOMER.

Q AND RURAL METRO WOULD BE PAID FOR THOSE SERVICES, IS THAT FAIR TO SAY?

A AS WOULD MEDSTAR.

Q WELL, IF MEDSTAR IS CLOSED DOWN, THEY'RE NOT BEING PAID. IS THAT CORRECT?

A THAT'S CORRECT.

Q BECAUSE YOU ALL ARE NOW GETTING THAT MONEY, WOULDN'T THAT BE CORRECT?

A (WITNESS PAUSING).

Q WOULDN'T THAT BE CORRECT?

A YES, SIR.

Tr. p. 298 ln. 16 through p. 299 ln, 7

Finally, Medstar's concern over the loss of its income covered not only for-profit entities but non-profit organizations as well.

Q AIKEN DOESN'T JUST GO OUT AND DO THE E.M.S. SERVICES FREE. THEY RECEIVE PAYMENTS FOR THAT, IS THAT CORRECT?

A YES.

Q THEY RECEIVE SOME FORM OF PAYMENT, IS THAT RIGHT?

A (WITNESS NODDING HEAD).

Q AND IF YOU ALL DIDN'T -- AIKEN E.M.S. DIDN'T RECEIVE THAT MONEY, THEN SOME OTHER PRIVATE AMBULANCE SERVICE WOULD RECEIVE IT. IS THAT CORRECT?

A I WOULD THINK.

Q SO THEY ARE A COMPETITOR, ISN'T THAT CORRECT?

A (WITNESS PAUSING).

Q YOU ALSO WORK FOR C.S.R.?

A YES, SIR.

Q OR C.R.S.?

A C.S.R.A.

Q YES, AND THEY'RE PRIVATE?

A YES.

Q AND IF MEDSTAR IS NOT THERE, THAT'S LESS COMPETITION FOR C.R.S., ISN'T THAT CORRECT?

A C.S.R.A.

Q WHOEVER THEY ARE, THEY'RE A PRIVATE COMPANY THAT YOU WORK FOR?

A (WITNESS NODDING HEAD).

Tr. p. 418 ln. 8 through p. 419 ln. 5.

Accordingly, concerns over the loss of income do not provide "countervailing constitutional constraints" sufficient to require disregarding the General Assembly's choice of the preponderance of evidence standard. Thus, procedural due process is not offended here and the preponderance of evidence standard must be applied.



4. Conclusions of Law

Based on the foregoing Findings of Fact and Discussion, I conclude the following as a matter of law:

1. Neither the APA nor the rules of evidence impose a standard of proof. Anonymous (M-156-90) v. State Bd. of Medical Examiners, ____ S.C. ____, 473 S.E.2d 870 (Ct. App. 1996).

2. Without a statutory standard, agency regulations may impose a standard of proof. See National Health Corp. v. S.C. Dept. of Health and Envtl. Control 298 S.C. 373, 380 S.E.2d 841 (Ct. App. 1989); See also Anonymous (M-156-90) v. State Bd. of Medical Examiners, ____ S.C. ____, 473 S.E.2d 870 (Ct. App. 1996).

3. The standard of proof in a contested case to revoke a license to engage in the business or service of an ambulance service is the preponderance of evidence standard. S. C. Code Regs. 61-72, § 702B (Supp. 1996).

4. DHEC, as the moving party in this matter, bears the burden of proof and must prove its allegations by a preponderance of the evidence.

5. A property interest protected by procedural due process arises if the complaining party establishes "a legitimate claim of entitlement" Board of Regents v. Roth, 408 U.S. 564 (1972).

6. A legitimate claim of entitlement can arise where a party is statutorily entitled to notice before removal of the public benefit in dispute. See, e.g., Wilson v. Robinson, 668 F.2d 380 (8th Cir. 1981).

7. A claim of entitlement can arise where statutory law requires that just cause exist before allowing the withdrawal of a public benefit. See, e.g., Memphis Light, Gas and Water Div. v. Craft, 436 U.S.1 (1978).

8. Medstar is statutorily entitled to notice before revocation and the revocation must be based upon "reasonable grounds." S.C. Code Ann. § 44-61-70(a) (Supp. 1996).

9. Medstar has a property interest in its license within the scope of the fourteenth amendment.

10. The degree of proof needed to carry the burden of persuasion is a matter typically left to the judiciary. Woodby v. INS, 385 U.S. 276 (1966).

11. The legislative branch is not forbidden from addressing the subject of the standard of proof since law-making bodies have traditionally approved rules of evidence and standards of proof for use by the judiciary. See, e.g., 1995 S.C. Acts 104; Steadman v. Securities and Exchange Comm'n, 450 U.S. 91 (1981).

12. Once the legislative branch expresses its view, any deviation from that standard must be based on well supported "countervailing constitutional constraints." Vance v. Terrazas, 444 U.S. 252 (1980).

13. Unless directed to the contrary, the General Assembly has expressed its view for the preponderance of evidence standard in DHEC hearings S.C. Code Regs. 61-72, § 702B.

14. The standard of S.C. Code Regs. 61-72, § 702B is a general provision applicable to a variety of DHEC hearings and thus requires a determination that the particular case here in dispute does not violate "countervailing constitutional constraints." Vance v. Terrazas, 444 U.S. 252 (1980).

15. The label of "quasi-criminal" traditionally invokes the standard of proof of clear and convincing evidence. See Anonymous (M-156-90) v. State Bd. of Medical Examiners, ____ S.C. ____, 473 S.E.2d 870 (Ct. App. 1996).

16. A quasi-criminal matter is one in which the "penalty" is so punitive as to indicate the General Assembly intended more than a mere civil infraction. Id.

17. An action is punitive if its object is to discipline or punish, Wise v. S.C. Tax Comm'n, 297 S.C. 239, 376 S.E.2d 262 (1989).

18. The revocation of Medstar's license seeks not to punish but to protect the public by removing improperly operating providers. See Huber v. S.C. State Bd. of Physical Therapy Examiners, 316 S.C. 24, 446 S.E.2d 433 (1994).

19. The revocation does not discipline or punish.

20. The revocation of Medstar's license does not have a punitive nature.

21. A label such as "quasi-criminal" is not determinative since the more comprehensive inquiry is what "degree of confidence our society thinks [the fact-finder] should have in the correctness of factual conclusions for a particular type of adjudication." Addington v. Texas, 441 U.S. 418, 423 (1979) (quoting In re Winship, 397 U.S. 358, 370 (1970)).

22. When the adjudication involves "particularly important individual interests" such as individual liberty, citizenship, or parental rights, a clear and convincing standard may be appropriate. Herman & MacLean v Huddleston, 459 U.S. 375 (1983).

23. However, a preponderance standard is appropriate where the loss is no "more substantial than mere loss of money." Santosky v. Kramer, 455 U.S. 745, 756 (1982) (quoting Addington, supra, at 424).

24. Medstar's concerns over the loss of income do not provide "countervailing constitutional constraints" so as to require disregarding the General Assembly's choice of the preponderance of evidence standard.

25. Procedural due process is not offended here and the preponderance of evidence standard must be applied.





C. Factual Dispute of Violations


DHEC seeks revocation of Medstar's license to engage in the business of operating an ambulance service since DHEC has determined "noncompliance with [chapter 61 of Title 44] or the standards or the rules and regulations promulgated pursuant thereto." S.C. Code Ann. § 44-61-70(a) (Supp. 1996). Chapter 61 of Title 44 explains that the revocation must be based upon "reasonable grounds." S.C. Code Ann. § 44-61-70(a) (Supp. 1996). At a minimum, reasonable grounds exist for revocation when "the holder no longer meets the requirements prescribed for operating an ambulance service." S.C. Code Regs. 61-7, § 301D (1976). More comprehensively, revocation is proper "for violation of any rule or regulation prescribed by the Board." S.C. Code Ann. § 44-61-70(b) (Supp. 1996) (emphasis added).

The issue here is whether the facts demonstrate a revocation is warranted. While the parties tried this case on sixteen (16) allegations, the controversy is best examined in three broad areas of alleged non-compliance: violations of licensing procedures, violations of highway safety, and violations of rules for training, certification and personnel requirements.



1. Violations of Licensing Procedures


a. Findings of Fact:

I find, by a preponderance of the evidence, the following facts:

-- Number of EMTs Employed

1. In October of 1996, DHEC received from Medstar a roster of employees showing fourteen (14) names of either drivers or EMTs employed on August 15, 1996.

2. Of the fourteen (14) names on the list, Medstar struck one name leaving thirteen (13) drivers or EMTs on August 15, 1996.

3. As of August 15, 1996, Medstar employed thirteen (13) employees assigned to ambulance duty.

4. While the list identifies seven employees as EMTs, one listed employee, Brian Doyle, was not a current EMT since his EMT certificate expired before August 15, 1996.

5. On August 15, 1996, only six currently licensed EMTs were employed.

6. On August 15, 1996, less than 50% of the personnel assigned to ambulance duty were EMT's.

7. A Richard Peebles worked as an attendant on June 28, 1996.

8. A Gay Peeples worked as an attendant on August 1, 1996.

9. No exhibits show a Peebles employed on August 15, 1996.

10. Payroll records in evidence show no Richard or Gay Peeples in the October payroll.



-- Excessive Response Time

11. On January 24, 1996, Medstar required fifty-one (51) minutes to achieve an "en route" status in responding to a call.

12. The January 24, 1996 trip was not a prearranged trip.

13. The January 24, 1996 patient care form characterized the trip as an emergency.

14. The patient needing assistance was a young boy with emotional problems.

15. The child had climbed out of a second story window.

16. The child's caretaker became terrified and sought assistance from Medstar.

17. The January 24, 1996 run was an emergency run.

-- Training of EMTs

18. Medstar provided training for EMTs each quarter.

19. DHEC did not request from Medstar nor present into evidence individual EMT training records.

20. The evidence does not establish Medstar's EMTs received less than three hours of training per quarter.

-- Record Keeping: Unauthorized Signatures

21. What purports to be the signature of Ezra Thomas as the primary care attendant is found on sixteen patient care reports all dated between June 12, 1996 and June 28, 1996.

22. Medstar did not employ Ezra Thomas after June 5, 1996.

23. For the patient care records in Resp. Exh. 3, Ezra Thomas did not act as the primary care attendant on Medstar ambulance runs after June 5, 1996.

24. Additional documents in excess of fifty (50) also identified in Resp. Exh. 3 show a signature purporting to be that of Ezra Thomas as the primary patient attendant.

25. Ezra Thomas did not sign the documents in Resp. Exh. 3.

26. Susan Eichman, a registered nurse at Bamberg County Hospital, observed Brian Doyle sign the name "Ezra Thomas" on a DHEC patient care form as the primary patient care attendant.

27. At the time of the signing, Susan Eichman knew both Brian Doyle and Ezra Thomas and could identify each.

28. At the time of the signing, Susan Eichman asked Brian Doyle why he signed the form as "Ezra Thomas."

29. Brian Doyle's response is not believable in that he responded "his stepfather had passed away and that in order for him to collect insurance money from his stepfather's estate, he had to legally change his name to Ezra Thomas and that he went by Brian Doyle to his friends, but Ezra Thomas was his legal name."

30. In its ambulance service, Medstar used patient care forms in which the primary patient attendant signed a name other than his own.

31. Medstar did not maintain proper records of ambulance run reports.

-- Record Keeping: EMT Training Records

32. DHEC has no required form for recording EMT training.

33. Medstar conducted and recorded EMT training.

34. DHEC did not request from Medstar nor present into evidence individual EMT training records.

35. Medstar has not failed to maintain proper records of EMT training.

-- Record Keeping: Dispatch Run Reports

36. Thirty-seven (37) of Medstar's dispatch run reports fail to include either the time the call was received, the type of call, or the time the unit went en route.

37. Sometimes, even combining the dispatch reports with information on the patient care forms still result in a failure to include either the time the call was received, the type of call, or the time the unit went en route.

38. Medstar failed to maintain required records on dispatch logs.

-- Record Keeping: Incomplete Ambulance Run Reports

39. Fifteen (15) patient care forms contained omissions.

40. Patient care forms failed to include one or more of the following: the patient's date of birth, the name of the receiving facility, the disposition of the patient, the type of incident involved, the location of the incident, the county code, the treatment procedures, the patient's vital signs, the EMT's signature, the time the call was received, the time the call was dispatched, the time the ambulance departed the base, the time of arrival on the scene, the time of departure from the scene, the time of arrival at the destination, and whether the call was emergent or nonemergent.

41. Medstar failed to maintain required records for patient care forms.

-- Advertisement of Advanced Life Support Qualifications

42. Medstar's license is for an ambulance service qualified at a basic support level.

43. Medstar conspicuously displayed the word "PARAMEDIC" on one ambulance and the words "MEDSTAR AMBULANCE PARAMEDIC UNIT" on another ambulance.

44. Medstar solicited customers from members of the medical community.

45. Members of the medical community have a well understood meaning of the word "paramedic" when that word is displayed on an ambulance.

46. The medical community understands that a "paramedic" is one with skills beyond a basic or intermediate EMT and involves a person skilled at and responsible for airway management, I.V. administration, administration of medications, defibrillation, and cardiac monitoring.

47. The premises of Aiken Memorial Hospital contained a letter written on Medstar's letterhead.

48. Medstar addressed the letter to "Dear Administrator" and Lester Padgett signed as the EMS Director of Medstar.

49. The letter prominently displayed the phrase "24 HOUR SERVICE ALS."

50. The letter states, "Our Paramedics have well over 3 years of hands on experience, so no advance call is too big for us to handle." (Emphasis added). Resp. Exh. No. 5.

51. Also at Aiken Memorial Hospital, a second sheet of information on Medstar letterhead states, "Compare our services" and lists one of Medstar's services as "Advance Life Support." Resp. Exh. No. 5.

52. Brian Doyle told Nico Aguilar, Director of Emergency Services in Barnwell County, that Medstar offered Advanced Life Support services.

53. Medstar, both in writing and orally, advertised it provided advanced life support services.

b. Discussion

S.C. Code Regs. 61-7, § 303 establishes standards the provider must meet to be licensed as a basic life support provider. Several of those standards are the subject of this dispute.

1. Certified EMTs Employed

Fifty per cent (50%) of the personnel assigned to ambulance duty must be currently certified as EMTs with no less than five (5) EMTs associated with the provider. S.C. Code Regs. 61-7, § 303B. The language "currently certified" means the certification must be current as opposed to expired.

In this matter, in October of 1996, DHEC received from Medstar a roster of employees showing fourteen (14) names of either drivers or EMTs employed on August 15, 1996. When originally submitted to DHEC, Medstar struck one name leaving thirteen (13) employees on August 15, 1996. With thirteen personnel assigned to ambulance duty, the fifty percent rule requires seven employees be EMTs. While the list identifies seven employees as EMTs, one listed employees, Brian Doyle, was not a current EMT since his EMT certificate expired before August 15, 1996. Tr. p. 94, ln. 3 - 16; p. 651, In. 10 - 22; and Resp. Exh. No. 1. Thus, since only six currently licensed EMTs were employed, less than 50% of the personnel assigned to ambulance duty were EMTs. Accordingly, Medstar violated S.C. Code Regs. 61-7, § 303B.

I am unpersuaded by Medstar's assertions on this issue. First, testimony attempting to identify other employees as of August 15, 1996 is unpersuasive. Medstar testified two other purported employees, Mr. and Ms. Peeples, were not placed on the list by Medstar since Inspector Spigner of DHEC allegedly already knew those individuals were employees. The fact that Inspector Spigner knew or did not know the Peeples, does not explain why Medstar would not list their names as employees. Inspector Spigner also knew Brian Doyle and yet Medstar lists that name. Rather, the exhibits indicate that a Richard Peebles worked as an attendant on June 28, 1996 and a Gay Peeples worked as an attendant on August 1, 1996. No exhibits, however, show a Peebles employed on August 15, 1996. Further, the only payroll records in evidence show no Richard or Gay Peeples in the October payroll. The most persuasive evidence shows Medstar employed fewer than the required EMTs on August 15, 1996.

Second, Medstar seeks to justify any non-compliance with the regulation on the basis that employees left since DHEC was attempting to "shut Medstar down." The regulation requires a specific number of EMTs. A provider unable to acquire the needed number of EMTs, for whatever reason, violates the regulation if the required number are not employed. Here, the most persuasive evidence demonstrates an insufficient number of EMTs were employed on August 15, 1996.

2. En Route Response Time

Lacking a prearranged transport, a basic life support provider must have staffing procedures to assure that an ambulance is en route with at least one EMT to all calls within ten (10) minutes. S.C. Code Regs. 61-7, § 303C. On January 24, 1996, Medstar required fifty-one (51) minutes before it achieved an "en route" status for a run its records characterize as an emergency run. Resp. Ex. l5.

While Medstar asserts the call was prearranged and not an emergency, the evidence does not support such a view. First, while Medstar's witness testified the patient lived at Grace Residential Care, an entity for which Medstar had a contract to make prearranged transport, the run report identifies the trip as an emergency. Second, the events of the day demonstrate an emergency existed. The patient was a young boy with emotional problems. The boy had climbed out of a second story window with the impact upon the child's caretaker being that "she got terrified or got scared about it." Tr. p. 634 ln. 23. Such facts indicate an emergency. While Medstar may have had a contract for other prearranged trips to Grace Residential Care, the evidence demonstrates the January 24, 1996 run was an emergency run which improperly took fifty-one minutes to achieve an en-route status.

3. Training of EMTs

A provider must present training for its EMTs. Each quarter the provider must provide a minimum of three (3) hours of training in equipment use and patient care for each EMT associated with the provider's service and the provider must keep a training record on each EMT which training record must be available for inspection by the Department. S.C. Code Regs. 61-7, § 303.

Here, DHEC has not proven a violation of this provision. The regulation imposes two requirements: quarterly training and individual EMT training records. While the testimony is conflicting, the evidence does not demonstrate a lack of training during each quarter. Rather, the testimony confirms that some training took place each quarter. The evidence does not allow me to find that each EMT did not receive the required three (3) hours of training. Further, the regulation authorizes DHEC to inspect individual training records. DHEC's witness testified that he did not request individual EMT training records. Tr. p. 468, ln. 21 - 24. Accordingly, DHEC has not established a violation of S.C. Code Regs. 61-7, § 303F.





4. Record Keeping

A basic life support provider must maintain records that include, but are not limited to, approved ambulance run report forms, employee/member rosters, time sheets, call rosters and training records. S.C. Code Ann. § 44-61-90 (Supp. 1995). Further, the regulations require dispatch logs that show at least the time the call was received, the type of call and the time the unit is en route. S.C. Code Regs. 61-7, § 303G. Under both the statute and the regulation, the records must be available for inspection by DHEC at any reasonable time and copies must be furnished to DHEC upon request.

In this dispute, DHEC asserts a veritable flood of violations of Medstar's record keeping duties. DHEC asserts Medstar used erroneous signatures on run reports on at least sixty-three (63) occasions; failed to maintain training records on each EMT; did not maintain dispatch logs for each call run and call received, and, where records were maintained, Medstar failed to complete the type of call and the times involved for the unit responding; and finally, for many run reports, numerous omissions of information occurred such as call times, patient information, locations, and hospital and nursing home codes.

i. Unauthorized Signatures

The issue in the unauthorized signature question is not whether criminal forgery has occurred. Rather, the issue is whether Medstar failed to maintain records sufficient to satisfy the requirements of S.C. Code Regs. 61-7, § 303G and S.C. Code Ann. § 44-61-90.The ambulance service must maintain records that include "approved ambulance run report forms." S. C. Code Ann. § 44-61-90. DHEC has issued forms identified as DHEC Patient Care Forms and those forms are the approved ambulance run report forms authorized by statute. Tr. p. 538, ln. 24 through p. 539, ln. 8. DHEC requires that providers maintain the records identified as DHEC Patient Care forms. Tr. p. 65, ln. 14 - 25.

The patient care form requires the signature of the person who functioned as the patient attendant on the ambulance run. Numerous documents (well in excess of fifty (50)) show a signature purporting to be that of Ezra Thomas as the primary patient attendant. Resp. Exh. No. 3. Determining whether Ezra Thomas signed his name or someone else improperly signed his name is a hotly disputed issue.

Ezra Thomas testified he was not even on the ambulance runs for which his name appears as the primary patient attendant and further that the signature on the form is not his signature. In addition, Ezra Thomas asserts Medstar did not employ him after June 5, 1996 and yet what purports to be his signature is found on sixteen patient care reports all dated after June 5, 1996. To compound the difficulties of determining the signature dispute, Lester Padgett, a former employee of Medstar, identified several run reports dated after June 5, 1996, stated Ezra Thomas was present on those ambulance runs and testified Ezra Thomas signed the patient care form for those runs. Essentially, Medstar asserts that Ezra Thomas, who is suing Medstar for lost income, is biased and cannot be believed. Further, Medstar argues that in any event, no proof exists that anyone at Medstar signed Ezra Thomas' name.

The weight and credibility assigned to the evidence is a matter for the fact-finder. See S.C. Cable Tel. Assn. v. Southern Bell Tel. and Tel. Co., 308 S.C. 216, 417 S.E.2d 586 (1992). The trial judge, who observes a witness, is allowed to judge the witness' demeanor and veracity and evaluate their testimony. See Mann v. Walker, 285 S.C. 194, 328 S.E.2d 659 (Ct. App. 1985); McAlister v. Patterson, 278 S.C. 481, 299 S.E.2d 322 (1982). The testimony and evidence considered in their totality leads me to disagree with Medstar's position.

First, while conflicting testimony exists, I am persuaded that Ezra Thomas' testimony correctly identified patient care reports that contained his name but he did not sign. Thus, the patient care reports do not satisfy Medstar's duty to "maintain records." The signing of the patient care form is a vital part of adequate records in that it identifies the individual primarily responsible for the patient. The signing of someone's name by a person other than the individual acting as the primary patient attendant is a serious breach of Medstar's record keeping duties. Second, what is even more compelling is that, contrary to Medstar's assertion, the evidence directly links Medstar to the unauthorized signing of Ezra Thomas' name and that link is from an individual unrelated to Medstar or a competitor of Medstar.

Susan Eichman, a registered nurse at Bamberg County Hospital, testified that she saw Brian Doyle sign the name "Ezra Thomas" on a DHEC patient care form as the primary patient care attendant. She knew both Brian Doyle and Ezra Thomas and she could identify each person. She testified that she asked Brian Doyle why he signed the form as "Ezra Thomas." She testified that he said "his stepfather had passed away and that in order for him to collect insurance money from his stepfather's estate, he had to legally change his name to Ezra Thomas and that he went by Brian Doyle to his friends, but Ezra Thomas was his legal name." Tr. p. 271, ln. 13 - 22.

Brian Doyle's explanation is not believable. Ms. Eichman's statements, however, are believable since she has no bias in this case, and she was confident of what she saw and heard. She provides a direct link to Medstar's unauthorized signing of Ezra Thomas' name. Accordingly, Medstar failed to maintain required records on documents in excess of fifty (50) patient care forms in violation of S.C. Code Regs. 61-7, § 303G and S.C. Code Ann. § 44-61-90.

ii. EMT Training Records

DHEC asserts Medstar failed to maintain training records on its EMTs. As discussed above, I am not persuaded DHEC has proven this alleged violation. Here, the testimony confirms that DHEC has no required form for recording EMT training. Further, while the testimony is conflicting, the evidence does not demonstrate a total lack of training. Rather, the testimony confirms that training does take place and that Medstar maintains a minimum record of such training. Further, as previously noted, DHEC's witness testified that he did not request individual EMT training records. Tr. p. 468, ln. 21 - 24. Accordingly, DHEC has not established a violation of S. C. Code Regs. 61-7, § 303G.

iii. Incomplete Dispatch Run Reports

The regulations require dispatch logs that show at least the time the call is received, the type of call and the time the unit is en route. S.C. Code Regs. 61-7, § 303G. The testimony demonstrates that in many instances, the dispatch run reports were lacking one or more of these elements. For example, Respondent's Exhibit 10 presents thirty-seven (37) dispatch reports that do not contain one or more of the required elements. Tr. p. 490, ln. 11 - p. 493, ln. 2. Further, while no definitive dispatch and patient care forms were matched, testimony demonstrates that in some instances even when the dispatch reports are combined with the information on the patient care forms, still certain elements are not recorded. Tr. p. 498, ln. 6 - 12; p. 499, ln. 4 - 6; p. 500, ln. 19 - p. 501, ln. 10. Accordingly, Medstar's failure to maintain required records on dispatch logs violates S.C. Code Regs. 61-7, § 303G and S.C. Code Ann. § 44-61-90.

iv. Incomplete Ambulance Run Reports

The ambulance service must maintain records that include "approved ambulance run report forms." S.C. Code Ann. § 44-61-90. DHEC has issued forms identified as DHEC Patient Care Forms and those forms are the approved ambulance run report forms authorized by statute. Tr. p. 538 ln. 24 through p. 539, ln. 8. Accordingly, an ambulance service provider is required to correctly maintain the patient care forms.

Here, the evidence demonstrates fifteen (15) patient care forms in which numerous omissions occur. For example, some omitted items include the patient's date of birth, the name of the receiving facility, the disposition of the patient, the type of incident involved, the location of the incident, the county code, the treatment procedures, the patient's vital signs, the EMT's signature, the time the call was received, the time the call was dispatched, the time the ambulance departed the base, the time of arrival on the scene, the time departing from the scene, the time of arrival at the destination, and whether the call was emergent or nonemergent. Accordingly, Medstar failed to maintain approved ambulance run report forms in violation of S. C. Code Ann. § 44-61-90.

5. Advertisements of Advanced Life Support Qualifications

Ambulance service providers may not advertise that they provide a level of life support above the category for which they are licensed. S.C. Code Regs. 61-7, § 309. DHEC argues Medstar advertises the providing of advanced life support services and that Medstar is only qualified at a basic support level. Medstar does not assert it is licensed at the level of an advanced life support service. Pet. Exh. No. 25, p. 7; Pet Exh. No. 25, Affidavit of Brian Doyle, p. 22. Rather, Medstar simply asserts no proof exists that it advertised itself as a provider of advance life support services. Medstar memorandum p. 15.

Advanced life support services include the treatment of life-threatening medical emergencies through the use of techniques such as endotracheal intubation, administration of drugs or intravenous fluids, cardiac monitoring, and defibrillation. S.C. Code Regs. 61-7, § II, J. In at least two ways, Medstar advertised it provides advanced life support services.

First, conspicuously displaying the word "PARAMEDIC" on one ambulance and the words "MEDSTAR AMBULANCE PARAMEDIC UNIT" on another is tantamount to advertising that Medstar provides advance life support services. Medstar seeks to sell its services to members of the medical community. Tr. p. 586, ln. 13 - 25. That targeted group has a well understood meaning of the word "paramedic" when that word is displayed on an ambulance. Within that group, "paramedic" means "a person who has undergone an extensive course of special training and is certified to provide a wide range of prehospital emergency services (as defibrillation and the intravenous administration of drugs.)" Merriam-Webster's Medical Desk Dictionary, 516 (1993). That meaning was confirmed by Vicki B. Foster, a "paramedic" herself, when she testified the word "paramedic" meant one with skills beyond a basic or intermediate EMT since a paramedic is responsible for "airway management, I.V. administration, administration of medications, defibrillation, cardiac monitoring." Tr. p. 290, ln. 19 - 22. Thus, since advanced life support services include such skills as defibrillation and intravenous administration of drugs (61-7, II, J) and since the medical community understands the word "paramedic" to be equivalent to one employing skills to administer drugs and defibrillation, the use of the word paramedic on an ambulance unit constitutes advertising the ambulance service provides advanced life support services.

Second, and even more compelling, Medstar, both in writing and orally, advertised it provided advanced life support services. A letter written on Medstar's letterhead and found at Aiken Memorial Hospital prominently displays the slogan "24 HOUR SERVICE ALS." The letter is addressed to "Dear Administrator" and is signed by Lester Padgett, the EMS Director at Medstar. Part of the letter states, "Our Paramedics have well over 3 years of hands on experience, so no advance call is too big for us to handle." (emphasis added). Resp. Exh. No. 5. Further, a second sheet of information on Medstar letterhead invites the reader to "[c]ompare our services" and lists one of Medstar's services as "Advance Life Support." Resp. Exh. No. 5. Finally, Nico Aguilar, Director of Emergency Services in Barnwell County, testified Brian Doyle told him that Medstar offered Advanced Life Support services. Accordingly, by use of the word "paramedic" on its ambulances, distribution of written materials, and conversations with other service providers, Medstar advertised that it provided advanced life support services and thus violated S.C. Code Regs. 61-7, § 309.

c. Conclusions of Law:

Based on the foregoing Findings of Fact and Discussion, I conclude the following as a matter of law:

-- General

1. DHEC may pursue revocation if it concludes a provider is in "noncompliance with [chapter 61 of Title 44] or the standards or the rules and regulations promulgated pursuant thereto." S. C. Code Ann. § 44-61-70(a) (Supp. 1996).

2. A revocation must be based upon "reasonable grounds." S.C. Code Ann. § 44-61-70(a) (Supp. 1996).

3. Reasonable grounds exist for revocation when "the holder no longer meets the requirements prescribed for operating an ambulance service." S.C. Code Regs 61-7, § 301D (1976).

4. Reasonable grounds exist for revocation "for violation of any rule or regulation prescribed by the Board." S.C. Code Ann. § 44-61-70(b) (Supp. 1996).

5. In determining if a violation of a rule or regulation occurred, the weight and credibility assigned to the evidence presented at the hearing is within the province of the trier of fact. See S.C. Cable Tel. Assn. v. Southern Bell Tel. and Tel. Co., 308 S.C. 216, 417 S.E.2d 586 (1992).

6. The judge who observes a witness is allowed to judge the witness's demeanor and veracity and evaluate their testimony. See Mann v. Walker, 285 S.C. 194, 328 S.E.2d 659 (Ct. App. 1985); McAlister v. Patterson, 278 S.C. 481, 299 S.E.2d 322 (1982).

7. Reasonable grounds exist here to revoke Medstar's license.

8. While not all of DHEC's allegations were proven, the established violations present a proper basis for revocation.

-- EMTs Employed

9. Fifty per cent (50%) of the personnel assigned to ambulance duty must be currently certified as EMT's with no less than five (5) EMTs associated with the provider. S.C. Code Regs. 61-7, § 303B.

10. The language "currently certified" means the certification must be current as opposed to expired. S.C. Code Regs. 61-7, § 303B.

11. On August 15, 1996, the fifty percent rule required seven employees as EMTs. S.C. Code Reg. 61-7, § 303B.

12. A provider unable to acquire the needed number of EMTs, for whatever reason, violates the regulation if the required number are not employed. S.C. Code Regs. 61-7, § 303B.

13. Medstar violated S.C. Code Regs. 61-7, § 303B since it employed six EMTs.

-- Excessive Response Time

14. Lacking a prearranged transport, a basic life support provider must have staffing procedures to assure that an ambulance is en route with at least one EMT to all calls within ten (10) minutes. S.C. Code Regs. 61-7, § 303C.

15. A Medstar run on January 24, 1996 was an emergency run improperly taking fifty-one minutes to achieve an en-route status in violation of S. C. Code Regs. 61-7, § 303C.

16. On January 24, 1996, Medstar violated S.C. Code Regs. 61-7, § 303C since it lacked staffing procedures to assure that an ambulance would be en route with at least one EMT to all calls within ten (10) minutes.





-- Training of EMTs

17. Each quarter the ambulance service must provide a minimum of three (3) hours of training in equipment use and patient care for each EMT associated with the provider's service. S.C. Code Regs. 61-7, § 303F.

18. The provider must keep a training record on each EMT. S.C. Code Regs. 61-7, § 303F, § 303F.

19. DHEC did not establish a violation of S.C. Code Regs. 61-7, § 303F.

-- Record Keeping: General

20. A basic life support provider must maintain records that include, but are not limited to, approved ambulance run report forms, employee/member rosters, time sheets, call rosters and training records. S.C. Code Ann. § 44-61-90 (Supp. 1996).

21. Dispatch logs must show at least the time the call was received, the type of call and the time the unit is en route. S.C. Code Regs. 61-7, § 303G.

22. Under both the statute and the regulation, the records must be available for inspection by DHEC at any reasonable time and copies must be furnished to DHEC upon request. S.C. Code Ann. §44-61-90 (Supp. 1996); S.C. Code Regs. 61-7, § 303G.

-- Record Keeping: Unauthorized Signatures

23. An ambulance service must maintain records that include approved ambulance run report forms. S.C. Code Ann. § 44-61-90 (Supp. 1996).

24. As authorized by statute, DHEC issues approved ambulance run report forms identified as DHEC Patient Care Forms. S. C. Code Ann. § 44-61-90 (Supp. 1996).

25. The approved ambulance run report requires the signature of the person who functioned as the patient attendant on the ambulance run.

26. DHEC is authorized to require that providers maintain the records identified as DHEC Patient Care forms. S.C. Code Ann. § 44-61-90 (Supp. 1996).

27. The weight and credibility assigned to evidence is a matter for the fact-finder. See S.C. Cable Tel. Assn. v. Southern Bell Tel. and Tel. Co., 308 S.C. 216, 417 S.E.2d 586 (1992).

28. The hearing judge, who observes a witness, is allowed to judge the witness's demeanor and veracity and evaluate their testimony. See Mann v. Walker, 285 S.C. 194, 328 S.E.2d 659 (Ct. App. 1985); McAlister v. Patterson, 278 S.C. 481, 299 S.E.2d 322 (1982).

29. Due to Medstar's use of unauthorized signatures for the primary patient attendant in more than fifty (50) patient care forms, Medstar failed to maintain required records and such actions are in violation of S.C. Code Regs. 61-7, § 303G and S. C. Code Ann. § 44-61-90 (Supp. 1996).







-- Record Keeping: EMT Training

30. The provider must keep training records. S.C. Code Regs. 61-7, § 303G.

31. EMT training records must be available for inspection by DHEC when requested. S.C. Code Regs. 61-7, § 303G.

32. DHEC has not established a violation of S.C. Code Regs. 61-7, § 303G.

-- Record Keeping: Dispatch Logs

33. Dispatch logs must show at least the time the call is received, the type of call and the time the unit is en route. S.C. Code Regs. 61-7, § 303G.

34. Medstar's failure to maintain required records on dispatch logs violates S.C. Code Regs. 61-7, § 303G and S.C. Code Ann. § 44-61-90.

-- Record Keeping: Incomplete Ambulance Run Reports

35. An ambulance service must maintain records that include "approved ambulance run report forms." S.C. Code Ann. § 44-61-90.

36. As authorized by statute, DHEC issues approved ambulance run report forms identified as DHEC Patient Care Forms. S.C. Code Ann. § 44-61-90.

37. The approved ambulance run report requires extensive information including but not limited to the patient's date of birth, the name of the receiving facility, the disposition of the patient, the type of incident involved, the location of the incident, the county code, the treatment procedures, the patient's vital signs, the EMT signatures, the time the call was received, the time the call was dispatched, the time the ambulance departed the base, the time of arrival on the scene, the time departing from the scene, the time of arrival at the destination, and whether the call was emergent or nonemergent. S.C. Code Ann. § 44-61-90.

38. DHEC is authorized to require that providers maintain those records identified as DHEC Patient Care forms. S.C. Code Ann. § 44-61-90.

39. An ambulance service provider is required to correctly maintain the patient care forms. S.C. Code Ann. § 44-61-90.

40. Medstar failed to maintain approved ambulance run report forms and violated S.C. Code Ann. § 44-61-90.

-- Advertisement of Advanced Life Support Qualifications

41. Ambulance service providers may not advertise that they provide a level of life support above the category for which they are licensed. S.C. Code Regs. 61-7, § 309.

42. Advanced life support services include the treatment of life-threatening medical emergencies through the use of techniques such as endotracheal intubation, administration of drugs or intravenous fluids, cardiac monitoring, and defibrillation. S.C. Code Regs. 61-7, § II, J.

43. Within the medical community, "paramedic" means "a person who has undergone an extensive course of special training and is certified to provide a wide range of prehospital emergency services (as defibrillation and the intravenous administration of drugs.)" Merriam-Webster's Medical Desk Dictionary, 516 (1993).

44. Medstar's conspicuously displaying the word "PARAMEDIC" on one ambulance and the words "MEDSTAR AMBULANCE PARAMEDIC UNIT" on another is advertising advance life support services by an entity not licensed for advanced life support services in violation of S.C. Code Regs. 61-7, § 309.

45. Medstar's use of stationary prominently displaying the phrase "24 HOUR SERVICE ALS" is advertising advance life support services in violation of S.C. Code Regs. 61-7, § 309.

46. Medstar's listing of services to include "Advance Life Support" is advertising advance life support services in violation of S.C. Code Regs. 61-7, § 309.

47. Medstar's holding itself out to the Director of Emergency Services in Barnwell County that Medstar is a provider of advance life support services is advertising advance life support services in violation of S.C. Code Regs. 61-7, § 309.

48. Medstar, both in writing and orally, advertised it provided advanced life support services and thus violated S.C. Code Regs. 61-7, § 309.

2. Violations of Highway Safety


a. Findings of Fact:

I find, by a preponderance of the evidence, the following facts:

1. On February 25, 1996, one of Medstar's ambulances proceeded at 75 mph in a 35 mph zone in the town limits of Williston, South Carolina.

2. The ambulance was responding to an emergency in Denmark, South Carolina at Rumph's Residential Care.

3. The ambulance was proceeding with lights and siren.

4. Williston City Police stopped the ambulance but issued no citation.

5. Speeding by an ambulance while proceeding to an emergency is an appropriate response.

6. Under the circumstances, on February 25, 1996, Medstar was operating appropriately.

7. On May 9, 1996, Brian Doyle, while driving a Medstar ambulance, was charged and subsequently convicted of speeding for driving 70 mph in a 55 mph zone in the town limits of Blackville, South Carolina.

8. Medstar was responding to an emergency.

9. Speeding by an ambulance in proceeding to an emergency is an appropriate response.

10. Under the circumstances, on May 9, 1996, Medstar was operating appropriately.

11. On January 23, 24, and 29, 1996, Medstar patient care forms indicate a Medstar ambulance traveled to Bamberg County Hospital for emergency runs.

12. Since the ambulance run reports indicate an emergency, DHEC infers Medstar ran the trips while operating the ambulance's lights and siren.

13. The January 23, 24, and 29, 1996, trips were to pickup and transport non-emergent patients home or to a nursing home.

14. Medstar's employees mistakenly marked the trips as emergencies.

15. No witness saw or heard the Medstar lights and siren on the dates in question.

16. The times to reach the destinations listed in several patient care forms for the disputed dates are inconsistent with an ambulance proceeding in an emergency fashion.

17. On January 23, 24, and 29, 1996 a Medstar ambulance did not travel to Bamberg County Hospital operating the ambulance's lights and siren to pickup and transport non-emergent patients home or to a nursing home.

b. Discussion

DHEC asserts the endangerment to highway safety from the improper operation of Medstar's ambulances is a factor supporting revocation. While such a factor is important, the three instances relied upon by DHEC do not establish that Medstar's operation of its ambulances endangered highway safety.

On February 25, 1996, one of Medstar's ambulances proceeded at 75 mph in a 35 mph zone in the town limits of Williston, South Carolina. However, the ambulance was responding to an emergency in Denmark, South Carolina at Rumph's Residential Care, was proceeding with lights and siren, and, when stopped by Williston City Police, was not issued a citation for any violation. Further, DHEC witness James Kaiser testified that speeding by an ambulance in proceeding to an emergency is an appropriate response. Tr. p. 72, ln.14 - 15.

DHEC asserts that on May 9, 1996, Brian Doyle, while driving a Medstar ambulance, was charged and subsequently convicted of speeding due to driving 70 mph in a 55 mph zone in the town limits of Blackville, South Carolina. The evidence before me, however, establishes that Medstar was responding to an emergency. Pet. Exh. 25, attachment E. Further, the issue here is not whether Medstar was speeding but whether Medstar operated in a manner inappropriate for an ambulance responding to an emergency. Again, the testimony of DHEC witness James Kaiser is that speeding by an ambulance in proceeding to an emergency is an appropriate response. Tr. p. 72, ln.14 - 15.

Finally, DHEC asserts that on January 23, 24, and 29, 1996, a Medstar ambulance traveled to Bamberg County Hospital operating the ambulance's lights and siren to pickup and transport non-emergent patients home or to a nursing home. I do not find DHEC has proven this assertion.

No witness testified to having seen or heard the Medstar lights and siren on the dates in question. Rather, the "proof" consists of patient care forms which show the ambulance proceeded to the hospital as an emergency. Resp. Exh. 16. The assumption is that the ambulance operated with lights and siren since the form is marked as an emergency. However, the evidence demonstrates that Medstar's records are inaccurate on occasion. Further, Brian Doyle testified, and I agree, that the times to reach the destinations listed in several forms in Resp. Exh. 16 are not consistent with proceeding to the hospital in an emergency fashion. Brian Doyle's testimony is that entering the trips as emergencies was a mistake. That position is consistent with the demonstrated inadequate record keeping employed by Medstar. Accordingly, DHEC has not proven this allegation.

c. Conclusions of Law:

Based on the foregoing Findings of Fact and Discussion, I conclude the following as a matter of law:

1. An ambulance responding to an emergency may speed when necessary. S.C. Code Ann. § 56-5-760(B)(3) (Revised 1991).

2. A party who fails to carry the burden of proof on a matter cannot prevail on that matter. Alex Sanders, et al, South Carolina Trial Handbook, § 9:1 Burden of Proof (1994).

3. The issue is not whether a Medstar ambulance was speeding but whether the ambulance was being operated in a manner inappropriate for an ambulance.

4. DHEC has not established that Medstar's operation of its ambulances on January 23, 24 and 29, 1996, February 25, 1996, and May 9, 1996, was inappropriate for an ambulance.



3. Violations of Rules for Training, Certification, and Personnel

a. Findings of Fact:

I find, by a preponderance of the evidence, the following facts:

-- Personnel Attending Patients: Lack of EMT Certification

1. Medstar's officer, Brian Doyle, acted as the primary care attendant and signed as primary care attendant on run 107672 at a time when he did not hold a valid EMT certification.

2. What purports to be Ezra Thomas' signature appears on eight patient care forms identified as Resp. Exh. 1.

3. Ezra Thomas did not sign seven of the patient care forms.

4. No other signature of an EMT appears on the seven forms.

5. A person who was not a certified EMT acted as the primary patient attendant on the seven ambulance runs represented by patient care forms 107631 (May 21, 1996), 107541 (May 10, 1996), 107539 (May 9, 1996), 107507 (March 7, 1996), 461654 (February 1, 1996), 461622 (January 25, 1996), and 461623 (January 25, 1996).

-- Personnel Attending Patients: Lack of Proper Certification

6. Brian Doyle, on September 9, 1996, did not intubate a patient involved in a motor vehicle collision.

7. On that date no intubation of the patient occurred, but some evaluation by several individuals was required before a decision not to intubate was reached.

8. On that date, Brian Doyle had a laryngoscope in one hand and an endotracheal tube in the other hand and was prepared for someone to perform the intubation procedure if it were required.

9. Brian Doyle arrived on the accident scene as a volunteer and not in his capacity as an employee of an ambulance service.

10. Medstar did not dispatch an ambulance to the scene.

11. No evidence suggests Medstar received payment for Brian Doyle's efforts at the accident scene.

12. Brian Doyle was not exercising the duties of an employee of Medstar and was not attempting to exercise the duties and skills of an EMT.

13. On June 23, 1996, an employee of Rural Metro Ambulance Service asserts she overheard Brian Doyle state that he had started an I.V. of normal saline on a patient.

14. Brian Doyle asserts he did not start an I.V., but argues he said his partner, a qualified EMT, started an I.V.

15. No testimony exists of anyone seeing Brian Doyle start an I.V.

16. No documents from the hospital or from Medstar's records substantiate Brian Doyle started an I.V.

17. No persuasive proof establishes Brian Doyle started an I.V.

-- Personnel Attending Patients: Lack of EMT With Patient

18. On March 8, 1996, for an ambulance run identified as 107510, Medstar picked up two patients from the Bamberg County Hospital for transport to Meadowbrook Nursing Home.

19. The crew consisted of only two members.

20. Only two names appear on the patient care form for this trip.

21. Both members of the crew entered the hospital emergency room.

22. The first patient to be attended to by the Medstar crew was Patient No. 1.

23. Patient No. 1 did not walk to the ambulance, but was rather placed on a stretcher.

24. As of March 8, 1996, the evidence does not support a conclusion that Patient No. 1 could walk to a significant degree.

25. Patient No. 1 was at the hospital to have her decubitus ulcers examined.

26. She had at least one decubitus ulcer on the heel and bottom of her foot.

27. Patient No. 1 had decubitus ulcers on both lower extremities.

28. With Patient No. 1 on a stretcher, the crew left the emergency room and loaded her into the Medstar ambulance.

29. Both members of the two-member crew left Patient No. 1 in the ambulance unattended.

30. While Patient No. 1 was unattended, the two crew members returned to the emergency room to begin preparation for loading the second patient.

31. Both members placed the second patient on a stretcher, left the emergency room with the patient, and loaded the second patient into the same Medstar ambulance into which Patient No. 1 had been placed.

32. On March 8, 1996, Patient No. 1 was an injured patient in a state of helplessness to such a degree that she required the services of a basic life support ambulance.

-- Certification: Unpermitted Ambulance

33. Medstar began using a specific vehicle as an ambulance at least as early as March 4, 1996.

34. Medstar did not obtain an ambulance permit for that vehicle until May 8, 1996.

35. Medstar used the vehicle as an ambulance for patient care at least thirty-eight (38) times while the vehicle was unpermitted.

36. An officer of Medstar, Brian Doyle, acknowledged that Medstar placed the vehicle into ambulance service before a permit was obtained.

37. For the vehicle in question, Medstar did not complete or file a self-inspection form with DHEC.

b. Discussion

No one may act or serve in the capacity of attending a patient without first completing an approved Basic Emergency Medical Technician Training Program and holding a South Carolina certificate as an emergency medical technician (EMT). S. C. Code Regs. 61-7, § 802A. Further, during the transportation of patients, an EMT, intermediate EMT, or advanced EMT shall be in the patient compartment at all times. S.C. Code Regs. 61-7, § 9A. Not only are the individuals required to be certified, but also the provider must be licensed and its ambulances properly permitted. S.C. Code Ann. §§ 44-61-40 and 50.

1. Personnel Attending Patients

I. Lack of EMT Certification

In this matter, at least one violation of S. C. Code Regs. 61-7, § 802A is clear. Brian Doyle, an officer of Medstar, admitted that he signed patient care form 107672 as the primary attendant at a time when he did not hold a valid EMT certification. Accordingly, Medstar, through its officer, Brian Doyle, violated S. C. Code Regs. 61-7, § 802A by attending a patient through an individual not holding a South Carolina EMT certificate. Another eight alleged violations, however, present a more difficult determination.

While Ezra Thomas is certified as an EMT, he testified that although his signature appears on nine of the forms submitted as Respondents Exh. 1, he was not the primary patient attendant for eight run reports identified as 107686 (June 13, 1996), 107631 (May 21, 1996), 107541 (May 10, 1996), 107539 (May 9, 1996), 107507 (March 7, 1996), 461654 (February 1, 1996), 461622 (January 25, 1996), and 461623 (January 25, 1996). Tr. pp.123 - 128. On each of these eight forms, no other signature of an EMT appears. Thus, if Ezra Thomas was not the primary patient attendant, a non-EMT attended an additional eight patients in violation of S. C. Code Regs. 61-7, § 802A.

Only one of the eight forms is specifically and directly contradicted by opposing testimony. In patient care form 107686, Ezra Thomas testified he was not on that trip and that the purported signature of Ezra Thomas as the primary care attendant is not his signature. Lester Padgett, however, testified that Ezra Thomas was on that trip and that Ezra Thomas did sign as the primary patient attendant. Even disregarding form 107686, no persuasive evidence leads me to conclude Ezra Thomas was the primary patient attendant on the other seven trips. Accordingly, while Medstar disagrees with Ezra Thomas' testimony, the most persuasive evidence demonstrates that seven of the eight patient care forms identified above did not have Ezra Thomas as the primary patient attendant. Thus, including the form signed by Brian Doyle, eight patients were attended by a non-EMT in violation of S. C. Code Regs. 61-7, § 802A.

ii. Lack of Proper Certification

DHEC asserts a Medstar employee, Brian Doyle, on September 9, 1996, intended to intubate a patient since Mr. Doyle had a laryngoscope in one hand and an endotracheal tube in the other hand. Performing such a procedure by an individual not certified in such a procedure is a violation of S.C. Code Regs. 61-7, §§ 802A, B, and C.

I do not believe any violation occurred. First, Brian Doyle did not intubate the patient. Rather, he had the necessary equipment prepared if the procedure were required. As the events unfolded, no intubation was required but some evaluation was required before concluding the patient needed no intubation. Second, Brian Doyle arrived on the accident scene as a volunteer and not in his capacity as an employee of an ambulance service. No ambulance was dispatched by Medstar and no evidence suggests Medstar received payment for Brian Doyle's efforts at the accident scene. Thus, Brian Doyle was not exercising the duties of an employee of Medstar and was not attempting to exercise the duties and skills of an EMT. Rather, he was a volunteer.



In a second incident involving a charge of inadequate certification for procedures performed, DHEC asserts that on June 23, 1996, an employee of Rural Metro Ambulance Service overheard Brian Doyle state that he had started an I.V. of normal saline on a patient. The starting of an I.V. by one not authorized to perform such a procedure is a violation of S. C. Code Regs. 61-7, §§ 802A, B, and C.

I do not believe DHEC has established a violation involving the I.V. The incident is disputed. Brian Doyle asserts he did not start an I.V., but argues he said his partner, a qualified EMT, started an I.V. No testimony exists of anyone seeing Brian Doyle start an I.V. and no documents from the hospital or from Medstar substantiate an I.V. was started by Brian Doyle on a patient. Accordingly, no persuasive proof establishes Brian Doyle starting an I.V.

2. Lack of EMT In Patient Compartment

During the transportation of patients, an EMT, intermediate EMT, or advanced EMT must be in the patient compartment at all times. S.C. Code Regs. 61-7, § 9A. Medstar violated this provision.

On March 8, 1996, Medstar picked up two patients from the Bamberg County Hospital for transport to Meadowbrook Nursing Home. The crew consisted of only two members since only two names appear on the patient care form for this trip identified as 107510. See Resp. Exh. No 8. Patient No. 1 was the first patient attended by the Medstar crew. Tr. p. 608, ln. 9 - 13. Both members of the crew entered the hospital emergency room to attend Patient No. 1. They placed her on a stretcher, left the emergency room with her, and loaded her into the Medstar ambulance.

Both members of the two-member crew left Patient No. 1 in the ambulance unattended while they returned to the emergency room to begin preparation for loading the second patient. Both members placed the second patient on a stretcher, left the emergency room with the patient, and loaded the second patient into the Medstar ambulance.

Medstar argues the above facts do not violate S.C. Code Regs. 61-7, § 9A since the patient left unattended in the ambulance was being transported only as a wheelchair patient. Such patients, Medstar asserts, can be transported in an ambulance without the need to be attended by an EMT. Under the facts here, I disagree with Medstar's view.

The question is whether the individual is a "patient" within the coverage of the laws and regulations governing ambulance services. If the individual is a "patient," then an EMT is required in the patient compartment during the transportation of patients. S.C. Code Regs. 61-7, § 9A. A patient is an individual who is sick, injured, wounded or otherwise incapacitated or helpless. S.C. Code Ann. § 44-61-20(n) (1976).

Patient No. 1 was an injured patient in a state of helplessness to such a degree that she required the services of a basic life support ambulance. Brian Doyle graphically explained her injury as rotting flesh but, in his view, she was, "other than that," well and competent. Tr. p. 605, ln. 17 - p. 606, ln. 4. Not withstanding Brian Doyle's assessment of the patient's well being, she had just been examined at the hospital for her injury since run report 107510 (Resp. Exh. 8) states she was at the hospital "to have decubitus on both lower extremities examined." Her injury was such that she did not walk to the ambulance; instead, Medstar transported her on a stretcher, albeit somewhat configured as a wheel chair. In fact, on March 8, 1996, the evidence does not support any conclusion that the patient could walk to a significant degree. Brian Doyle testified she had a "decubitus on the bottom of her foot . . . right at the heel." Tr. p. 605, ln. 22 - 25. Further, Medstar transported her on a stretcher rather than walking, either assisted or unassisted, to the ambulance.

Transportation on a stretcher, failure to walk (either assisted or unassisted) to the ambulance, and rotting flesh on both lower extremities are sufficient factors for me to conclude Patient No. 1 was a patient within the meaning of S.C. Code Ann. § 44-61-20(n) (1976). Thus, Patient No. 1 was a patient on March 8, 1996 who was left unattended while being transported to a nursing home. Accordingly, Medstar violated S.C. Code Regs. 61-7, § 9A.

3. Unpermitted Ambulance

A provider of ambulance services must operate with properly permitted vehicles. S.C. Code Ann. § 44-61-50 (Supp. 1996). In this case, Medstar did not obtain a permit on a vehicle until May 8, 1996 but began using the vehicle as an ambulance at least as early as March 4, 1996. The unpermitted vehicle was used at least thirty-eight (38) times for patient care during the unpermitted period. Resp. Exh. 2. An officer of Medstar, Brian Doyle, acknowledged that Medstar placed the vehicle into ambulance service before a permit was obtained. Tr. p. 579, ln. 10 - 11.

Medstar's justification for operating an unpermitted ambulance was a belief that completion of a DHEC self-inspection form would allow operation of the vehicle. While disagreement may exist on whether Medstar requested a self-inspection form, Medstar clearly did not complete or file a self-inspection form. Accordingly, the self-inspection process provides no justification for Medstar operating the vehicle, and that operation violated S.C. Code Ann. § 44-61-50.

c. Conclusions of Law

-- Personnel Attending Patients: Lack of EMT Certification

1. One may not act or serve in the capacity of attending a patient without first completing an approved Basic Emergency Medical Technician Training Program and holding a South Carolina certificate as an emergency medical technician (EMT). S.C. Code Regs. 61-7, § 802A.

2. By acting through its officer, Medstar attended to a patient by use of an individual not holding a South Carolina EMT certificate with such action constituting a violation of S. C. Code Regs. 61-7, § 802A.

3. Medstar's treatment of seven additional patients by a person not holding a South Carolina EMT certificate violated S.C. Code Regs. 61-7, § 802A.

-- Personnel Attending Patients: Lack of Proper Certification

4. Intubating a patient is a procedure requiring an EMT certified beyond the basic life support services. S.C. Code Regs. 61-7, § II, J.; S.C. Code Regs. 61-7, §§ 802A, B, and C; and S.C. Code Regs. §§ 305, 306.

5. Starting an I.V. on a patient is a procedure requiring an EMT certified beyond the basic life support services. S.C. Code Regs. 61-7, § II, J.; S.C. Code Regs. 61-7, §§ 802A, B, and C; S.C. Code Regs. §§ 305, 306.

6. A party who fails to carry the burden of proof on a matter cannot prevail on that matter. Alex Sanders, et al, South Carolina Trial Handbook, § 9:1 Burden of Proof (1994).

7. DHEC has not established that Medstar, through its officer Brian Doyle, attempted to act as an EMT by intubating a patient.

8. DHEC has not established that Medstar, through its officer Brian Doyle, attempted to start an I.V. on a patient.





-- Personnel Attending Patients: Lack of EMT With Patient

9. During the transportation of patients, an EMT, intermediate EMT, or advanced EMT must be in the patient compartment at all times. S.C. Code Regs. § 61-7, 9A.

10. A patient is an individual who is sick, injured, wounded or otherwise incapacitated or helpless. S.C. Code Ann. § 44-61-20(n) (1976).

11. Since on March 8, 1996, Medstar left a patient, Patient No. 1, unattended while transporting her from a hospital to a nursing home, it violated S.C. Code Regs. 61-7, § 9A.

-- Certification: Unpermitted Ambulance

12. A provider of ambulance services must operate with properly permitted vehicles. S.C. Code Ann. § 44-61-50 (Supp. 1996).

13. Medstar's operation of a vehicle as an ambulance on thirty-eight (38) occasions when that vehicle had not been permitted violates S.C. Code Ann. § 44-61-50 (1976).



IV. ORDER


Based upon the foregoing Findings of Fact and Conclusions of Law, the following ORDER is issued:

License number 145 held by Medstar Ambulance Service, Inc. for engaging in the business of providing an ambulance service is revoked effective at noon on the tenth day from the date of this order with such time computed by omitting the date of this order but counting the last day of the period.

IT IS SO ORDERED.



____________________________

RAY N. STEVENS

Administrative Law Judge

This 6th day of May, 1997

Columbia, South Carolina

1. A property interest protected by procedural due process arises if the complaining party establishes "a legitimate claim of entitlement" Board of Regents v. Roth, 408 U.S. 564 (1972). A legitimate claim of entitlement can arise where a party is statutorily entitled to notice prior to removal of the public benefit in dispute. See e.g. Wilson v. Robinson, 668 F.2d 380 (8th Cir. 1981) (ordinance requiring two weeks notice prior to terminating the employment of a deputy created a property interest protected by the fourteenth amendment). Further, a claim of entitlement can arise where statutory law requires that just cause exist before allowing the withdrawal of a public benefit. See e.g. Memphis Light, Gas and Water Div. v. Craft, 436 U.S.1 (1978) (a service that could be terminated only "for cause" gave rise to a claim of entitlement). Here, Medstar is statutorily entitled to notice before revocation and the revocation must be based upon "reasonable grounds." S.C. Code Ann. § 44-61-70(a) (Supp. 1996). Accordingly, Medstar has a property interest in its license within the scope of the fourteenth amendment.


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