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The Petitioner’s Agency Action proposing to permanently revoke the Respondent’s Instructor/Coordinator (IC) approval, Examiner Approval and certification as an Emergency Medical Technician (EMT) is upheld and its Motion for Summary Decision is granted. Further, the Respondent conducted an EMT training course that was not approved, not in accordance with the course advertisement and was inconsistent with information he had provided to the Petitioner about the course. He then lied to the Office of Emergency Medical Services (OEMS) on several occasions during the investigation. There are no genuine issues of material fact in this appeal. The Respondent has not proffered any material fact or argument that would support a finding in his favor.
On August 15, 2017, the Petitioner, Department of Public Health/Office of Emergency Medical Services (DPH/OMES), pursuant to G.L. c. 111C, §§ 3 & 6 and 105 CMR 170.700, issued a Notice of Agency Action proposing to permanently revoke the approval of the Respondent, Jason T. Stepien, to function as an EMT Instructor/Coordinator and Examiner as well as permanently revoke his certification as an Emergency Medical Technician (EMT). (Exhibit 1.) The Respondent filed an appeal of the revocation of his EMT certification on August 18, 2017. (Exhibit 2.)
A pre-hearing tele-conference was held on November 1, 2017. During the tele- conference, the Respondent acknowledged that the facts set forth in the Petitioner’s Notice of Action are accurate. He requested that he be able to retain his EMT certification.
The Petitioner filed a Motion for Summary Decision on December 4, 2017. (Attachment A.) The Respondent was given thirty (30) days to file a response. He did not.
Based upon the Petitioner’s Notice of Agency Action and the Respondent’s admissions, I hereby render the following agreed Findings of Fact:
Summary Decision in administrative proceedings is the functional equivalent of summary judgment in civil proceedings. See Jack King and National Refrigeration, Inc. v. Office of the Attorney General, Fair Labor Division, LB-12-367 and LB-12-407 (Division of Administrative Law Appeals, January 29, 2014) citing Caitlin v. Board of Registration of Architects, 414 Mass. 1, 7 (1992) (citing Mass. R. Civ. P. 56 for summary decision in administrative cases), Calnan v. Cambridge Retirement Board, CR-08-589 (Division of Administrative Law Appeals 2012) and Steriti v. Revere Retirement Board, CR-07-683 (Division of Administrative Law Appeals 2009). Summary decision is appropriate when there are no genuine issues of material fact and the case may be decided as a matter of law. King, supra, citing Caitlin, supra at p. 7, 801 CMR 1.01(7)(h) and Mass. R. Civ. P. 56. A fact is “material” only if it might affect the outcome of the case. King, supra, citing Lockridge v. The Univ. of Maine System, 597 F 3d 464, 469 n. 3 (1rst Cir. 2010) citing Anderson v. Liberty Lobby, Inc. 477 U.S. 242
248 (1986). An issue of material fact is “genuine” only if a fact-finder could reasonably resolve the dispute in favor of either party. Id. (citing Santoni v. Potter, 369 f.3d 594, 598 (1rst Cir. 2004).
The moving party must demonstrate the absence of any genuine issues of material fact. 801 CMR 1.01(7)(h), see also Mass. R. Civ. P. 56, Flesner v. Technical Communications Corp., 410 Mass. 805, 808 (1991). King, supra, citing Beatty v. NP Corp, 31 Mass. App. Ct. 606, 607 (1991) (evidence “may be in the form of affidavits, depositions, interrogatories, admission and sworn pleadings”). Inferences from these materials must be drawn in the light most favorable to the opposing party. Beatty, supra at p. 607. However, a magistrate does not make credibility determinations at the summary decision stage. Id. Therefore, if the moving party’s evidence establishes a material fact, the opposing party must in turn “set forth specific facts showing that there is a genuine issue for trial.” Mass. R, Civ. P. 56(e) (“mere allegations or denials” are not sufficient). Absent such “countervailing materials” from the opposing party, summary decision may properly be granted on the basis of the moving party’s undisputed evidence. King, supra, citing Kourouvacilis v. Gen. Motors Corp., 410 Mass. 706, 715 (1991).
The DPH Motion for Summary Decision is allowed both because it is unopposed and because there are not genuine issues of material fact in this case. The Respondent knowingly made omissions of material facts or false statements in applications filed with DPH, in violation of 105 CMR 170.940(M). The Respondent failed to conduct a training program in accordance with the provisions of 105 CMR 170.945 and 170.978 and/or the standards and procedures established in the ARs published separately by DPH, in violation of 105 CMR 170.940(H). He committed gross misconduct in the exercise of his duties, in violation of 105 CMR 170.940(D). He failed to exercise reasonable care, judgment, knowledge or ability in the performance of his duties, in violation of 105 CMR 170.940E. He failed to provide the Department, upon its request, timely and appropriate documentation or information about the accredited training institution’s EMS training program, in violation of 105 CMR 170.957(A)(4). He attempted to maintain accreditation by fraud, misrepresentation or by omitting material facts or submitting false information to the Department both orally and in writing, in violation of 105 CMR 170.957(A)(11).
The Petitioner’s decision was based upon sufficient facts, not arbitrary or capricious, or otherwise unsupported by law. In this case the Respondent does not dispute the existence of the facts asserted herein. Although the charges that the Petitioner brought all concern Respondent’s training program responsibilities, not his work as an EMT, per se, the extent of his irresponsible behavior in connection with training programs calls into question whether he can be trusted to handle the significant responsibilities of an EMT. The Respondent has offered no evidence to demonstrate that despite his mishandling of his training program responsibilities, he can still be trusted to act as an EMT.
Accordingly, the Petitioner’s Motion for Summary is ALLOWED.
Division of Administrative Law Appeals,
DATED: January 26, 2018