COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. Division of Administrative Law Appeals

Department of Public Health,

Petitioner,

v. Docket No. PHET-08-486

James Perry,

Respondent.

Appearance for Petitioner:

Sondra M. Korman, Esq.

Deputy General Counsel
Department of Public Health
250 Washington Street
Boston, MA 02108

Appearance for Respondent:

James Perry, pro se

31 Yorkshire Terrace, Apt. 3
Shrewsbury, MA 01545

Administrative Magistrate:

Kenneth J. Forton, Esq.


SUMMARY OF RECOMMENDED DECISION

The Department of Public Health's decision to deny the Petitioner's initial application for certification as an EMT-Basic was affirmed where the Petitioner had been convicted of operating a vehicle under the influence of alcohol three times in five years, had been found responsible for four moving violations since 2000, and had not participated in any meaningful substance abuse rehabilitation since his release from the House of Correction in 2006.

RECOMMENDED DECISION

On June 16, 2008, the Department of Public Health notified James Perry that it had decided to deny Mr. Perry's initial application for certification as an EMT-Basic. The Department based its denial on Mr. Perry's criminal history and his driving history. On June 25, 2008, Mr. Perry filed a request for an adjudicatory hearing on the Department's decision.

A pre-hearing conference was held August 19, 2008 at the offices of the Division of Administrative Law Appeals, 98 North Washington Street, Boston, Massachusetts. At that time, a full hearing was scheduled for October 16, 2008. One day before the scheduled full hearing, the Department mailed a motion for summary decision to DALA, which I was not aware of until the parties had already appeared for the hearing. DALA received the motion by mail, after the hearing on the merits, on October 16, 2008. I proceeded with the scheduled hearing and informed the parties that I would not entertain the motion because Mr. Perry had no opportunity to file a written response, 801 CMR 1.01(7)(a), and the Department did not file a motion to continue the hearing.

Various documents were entered into evidence. (Exs. 1-7.) Mr. Perry and his girlfriend, Jennifer Bennett, testified on Mr. Perry's behalf. The Department did not call any witnesses. One cassette tape of the hearing was made.

FINDINGS OF FACT

Based upon the testimony and documents presented at the hearing, I make the following findings of fact:

1. James Perry, d.o.b. 9/9/82, resides with his girlfriend, Jennifer Bennett, at 31 Yorkshire Terrace in Shrewsbury, Massachusetts. (Testimony Perry, Bennett.)

2. On May 10, 2008, Mr. Perry completed an EMT-Basic training course at Quinsigamond Community College. He received a grade of "A" in the class. (Testimony Perry; Ex. 7.)

3. On or about May 15, 2008, the Department of Public Health, Office of Emergency Medical Services, received from Mr. Perry an initial application for certification as an EMT-Basic. (Ex. 1.)

4. In the initial application, Mr. Perry checked "yes" to the following question: "Have you ever been convicted of a felony or misdemeanor in the United States or any country or foreign jurisdiction, other than a minor traffic violation for which a fine of less than $1000.00 was assessed (conviction includes a guilty plea or admission to sufficient facts)?" (Ex. 1.)

5. In 2001, Mr. Perry was convicted of operating a motor vehicle under the influence of alcohol. The Court revoked his driver's license and ordered him to participate in a sixteen-week out-patient rehabilitation program, which he did. After the rehabilitation program, Mr. Perry continued to drink alcohol. (Testimony Perry.)

6. On March 4, 2004, Mr. Perry pled guilty in Orleans District Court to operating a motor vehicle under the influence of alcohol (OUI) and a marked lanes violation. He was sentenced to ninety days (suspended) in the House of Correction, two years of probation, and a two-week in-patient alcohol treatment program. After attending the program, Mr. Perry continued to drink alcohol. (Testimony Perry; Ex. 1.)

7. On April 20, 2006, Mr. Perry pled guilty in Barnstable District Court to his third offense for operating a motor vehicle under the influence of alcohol and operating a motor vehicle after his license was suspended for OUI. The Court sentenced him to one year in the Barnstable House of Correction, six months to serve with the balance suspended. He was also placed on probation through May 2, 2008. At the time of his arrest, he refused to take a breathalyzer exam. (Testimony Perry; Ex. 1.)

8. Mr. Perry has not participated in any substance abuse rehabilitation or treatment program since his release from the House of Correction. Mr. Perry has not consumed any alcohol since the day that he was released from the House of Correction, when he celebrated by having a couple of alcoholic drinks. (Testimony Perry.)

9. In addition to his convictions for OUI, Mr. Perry has been found responsible for the following driving violations: speeding on March 24, 2000; failure to stop on August 9, 2000; speeding on September 26, 2000; speeding on April 7, 2001; and speeding on November 16, 2003. Mr. Perry's license has been suspended numerous times and was ultimately revoked for eight years beginning on May 1, 2006. (Ex. 1.)

10. After reviewing Mr. Perry's application for initial certification, the Department denied it on June 16, 2008. The decision was based on Mr. Perry's criminal history and driving history. In making its decision, the Department considered the seriousness of the crimes committed, Mr. Perry's age at the time they were committed, the length of time since the crimes were committed, the actions of the applicant since the last offense and whether they are consistent with holding a position of public trust, whether the offense impairs the responsibilities of an EMT, whether the crime involved violence or abuse of any person, whether the offense involved a minor or a person of diminished capacity, evidence of rehabilitation efforts, and the applicant's prior history with the Department. (Ex. 1.)

11. An EMT's duties include treatment and transport of the sick and injured, often in unsupervised settings. EMTs routinely enter the private homes of patients, some of whom may be unconscious or in extreme physical and/or mental distress. EMTs also have easy access to certain controlled substances. (Ex. 1.)

12. On June 25, 2008, Mr. Perry timely appealed the Department's denial and included two letters of recommendation. (Exs. 2, 3, 4.)

13. The first letter of recommendation was from Mr. Perry's most recent probation officer, Brian T. Kavanaugh, who wrote that Mr. Perry had successfully completed his probation. (Ex. 3.)

14. The second letter was from Ann Dowd, a Certified Registered Nurse Anesthetist at Good Samaritan Medical Center in Brockton, Massachusetts. She wrote the following, in part: "James is applying for our new Hyperbaric Technologist Program which requires him to have a minimum of EMT-B education prior to entering the program. This position does not require any driving and is supervised by staff physicians and nurses. We have found James to be a viable candidate for this program and would like to request that you clear the way for him to take the state EMT-B exam." (Ex. 4.)

15. On July 17, 2008, after reviewing the additional materials that Mr. Perry had submitted, the Department declined to reconsider its decision. At the same time, the Department forwarded the matter to DALA for further proceedings. (Ex. 5.)

16. The Department did, however, offer to send a letter confirming Mr. Perry's completion of the EMT-B course to the Hyperbaric training program. Mr. Perry did not respond to the Department's offer. (Ex. 5.)

CONCLUSION AND RECOMMENDATION

Mr. Perry appeals the Department of Public Health's decision to deny his application for EMT-Basic certification. G.L. c. 111C, § 23, provides that appeals from Department decisions to deny certification be decided by an adjudicatory hearing pursuant to chapter 30A of the General Laws. The requirements for a chapter-30A adjudicatory hearing are listed at G.L. c. 30A, §§ 10, 11. The Department derives its regulatory authority to certify EMTs and control their licensing from G.L. c. 111C, § 9. The Department, through its Office of Emergency Medical Services, certifies EMTs at three skill levels: Basic, Intermediate, and Paramedic. G.L. c. 111C, § 3(b)(3) authorizes the Department to establish minimum standards for the examination and certification of EMS personnel, including EMTs. Those requirements are set forth in 105 CMR 170.800-910. To be considered for initial certification, applicants must also meet eligibility requirements set out at 105 CMR 170.910. Applicants must be at least eighteen years old; abstain from the abuse of drugs which impair professional judgment and/or practice; be free of any physical or mental impairment or disease which could reasonably be expected to impair the ability to be an EMT, or which could reasonably be expected to jeopardize the health and safety of patients; meet the training requirements applicable to the level of certification for which the person is applying; and successfully complete a Department-approved practical skills examination and the written examination specified in 105 CMR 170.941.

The Department may deny an applicant initial certification on the grounds listed in 105 CMR 179.920(A), including "[a]ny actions or omissions which would indicate that the health or safety of the public would be at risk should certification be granted." 105 CMR 170.920(A)(3). The Department considers the following factors in determining whether an applicant with a criminal conviction history is suitable for certification: the seriousness and specific circumstances of the offenses; the age of the applicant at the time of the offense; the length of time elapsed since the offense; whether the offense impairs or impacts on the skills, duties, and responsibilities of an EMT; whether the offense involved violence or abuse of any person; whether the offense involved a minor or a person of diminished capacity; whether the offense involved use or distribution of controlled substances; and other criminal history.

In this case, the Department denied Mr. Perry's application because he has been convicted three times for operating a vehicle under the influence of alcohol: once in 2001, once in 2004, and once in 2006. In addition, Mr. Perry has been cited for speeding on four occasions since 2000 and has a string of license suspensions. After the third OUI conviction his license was revoked, and it appears that it will remain so until 2016. The Department concluded that this conduct would indicate that the health or safety of the public would be at risk if it allowed Mr. Perry to be certified and, accordingly, denied his application. Mr. Perry does not dispute his convictions or his driving record. Instead, his appeal is based on two arguments. First, he argues that he has reformed since his third OUI conviction and subsequent sentence in the House of Correction and that the Department should have taken this into consideration when making its decision. He additionally argues that the Department should not consider his criminal record or driving record because he does not plan to use the EMT-Basic certification to operate as an EMT or drive an emergency rescue vehicle. Rather, he wants the certification because his employer requires it as a prerequisite to applying for the hyperbaric technologist program at Good Samaritan Medical Center in Brockton.

Mr. Perry was convicted for operating a motor vehicle under the influence of alcohol three times in five years. His most recent conviction was only two years ago. He also has four speeding citations and is not authorized to drive until at least 2016. The OUI convictions alone would have been enough for the Department to have made its case. OUI is an extremely serious offense, especially when considered in light of the position to which Mr. Perry aspires. As the Department has noted, EMTs occupy positions involving a high degree of public trust. They have access to patients' homes; they have access to certain controlled substances. EMTs must, therefore, exhibit trustworthiness, honesty, and good judgment in order to be considered. Mr. Perry's recent past does not support this conclusion.

The testimony of Mr. Perry and his girlfriend was aimed at supporting the conclusion that Perry has reformed himself. Notwithstanding his protestations to the contrary, Mr. Perry's testimony shows that he has actually made very little genuine effort at addressing his alcohol problem. After his first conviction, he attended a sixteen-week outpatient alcohol abuse treatment program. While Mr. Perry attended the required classes, he continued to drink alcohol. After his second conviction, he attended a more intense, two-week in-patient alcohol abuse treatment program. Mr. Perry likewise continued to drink after this second attempt at rehabilitation. Finally, Mr. Perry was convicted of OUI for a third time and spent months in the House of Correction, where Mr. Perry claims that an alcohol and drug counselor told him that Alcoholics Anonymous and similar programs would not help Perry because he has a "type-A" personality. I do not find this testimony credible. Then, after his release from jail, Mr. Perry celebrated by having a few alcoholic drinks-not the behavior one would expect of a reformed drunk driver. While there is no evidence to contradict Mr. Perry's assertion that he has not had a drink since the day of his release, the Department must take into account Mr. Perry's entire history, not just the last two years, when deciding whether or not to approve his application. The Department has met its burden of proving that Mr. Perry's criminal and driving histories indicate that the health or safety of the public would be at risk should certification be granted.

Finally, Mr. Perry argues that his driving record, including his OUI convictions, should not be considered by the Department because he does not plan on using his EMT-Basic certification to function as an EMT or drive an EMT vehicle. Rather, he asserts, the certification is needed only to enter a hyperbaric technologist program sponsored by his employer. The evidence, however, is equivocal on this point. While Nurse Ann Dowd asked the Department to "clear the way" for Mr. Perry to take the exam, earlier in the same letter she states that "a minimum of EMT-B education" is required to enter the hyperbaric technologist program. She clearly does not state that Mr. Perry must be certified as an EMT-Basic to participate in the training program. Mr. Perry has completed the required EMT-Basic course and received an "A" grade; thus, it appears that he is qualified for the program. Passing the certification exam would entitle Mr. Perry to fully function as an EMT-Basic. Even if the Department was inclined to grant Mr. Perry's request on the conditions he suggests, the EMT regulations make no provision for any such limited EMT status. Moreover, Mr. Perry's crimes and driving record do not show poor judgment only in his driving; they show poor judgment in general. Not only was it wise to consider Mr. Perry's driving record and convictions, the Department was also required to consider them pursuant to 105 CMR 170.910 and 105 CMR 170.920(A).

For the above-stated reasons, I recommend that the Department of Public Health's denial of Mr. Perry's application for initial certification as an EMT-Basic be affirmed.

DIVISION OF ADMINISTRATIVE LAW APPEALS

/s/ Kenneth J. Forton
Administrative Magistrate


DATED: March 19, 2009