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:
- The Petitioner, Department of Public Health (DPH), through its Office of Emergency Medical Services (OEMS), grants approval for individuals to be designated as EMT Instructor/Coordinators and Examiners. The DPH/OEMS is responsible for certifications of individuals who meet the requisite eligibility and training standards and are otherwise deemed suitable to act as EMTs.
- The Respondent, Jason Stepien, is certified as an Emergency Medical Technician (#E8730350), with an expiration date of April 1, 2019. He is also a Department-approved EMT Instructor/Coordinator (#IC-873035) and a Department-approved Examiner (#XB-873035), both with an expiration date of April 1, 2019. Therefore, he is subject to the applicable statute and DPH regulations.
- The Petitioner received a complaint that the Respondent, as owner, Examiner, and I/C at his business, EMTS, was conducting an EMT initial training course (course registration number 17141) at the Barre Fire Department (BFD) which was not in accordance with his advertisement of the course, was not being held at any of the EMTS’ Department-approved educational sites, and was inconsistent with information that the Respondent had submitted to the DPH about location and timing of the course. (Exhibit 1.)
- More specifically, the complainant stated that the Respondent was conducting an EMT-Basic initial training course at BFD on Tuesday and Thursday evenings. The advertisement for the course had indicated that it was to be held at the Phillipston Fire Department (PFD) on Monday and Wednesday evenings. (Id.)
- The DPH commenced an investigation. (Id.)
- PFD Chief Richard Stevens and State Trooper Peter Stanley, an EMT and training officer of the PFD, were interviewed. Stevens expressed his concern about the course because he knew that the BFD was not a DPH-approved site and the course had already been running for three (3) weeks. (Id.)
- On or around July 25, 2017, the Respondent was interviewed by telephone. During this interview, he stated that the course had not yet started and that he had only held one informational meeting at the BFD on July 18, 201 (Id.)
- The Respondent also stated that on July 20, 2017 he had received a telephone call from another DPH staff member about the complaint. He had informed the DPH staff member that he had not started the course and that he was searching for another location. He stated further that the session held at the BFD was solely an informational meeting about the upcoming course. (Id.)
- During the July 25, 2017 phone interview, the Respondent stated that he had not achieved full enrollment for the course and was waiting for additional students to sign up. He indicated that his plan was to have the course be an “accelerated” course that would begin around August 1, 2017, meet six (6) days a week and conclude with an examination on or around August 31, 2017. (Id.)
- The Respondent was asked to send an email with the list of current students who were signed up for the course so that they could be contacted for verification. The Respondent forwarded a list of five (5) students. (Id.)
- The DPH attempted to contact the five (5) students and reached one (1) of them. The individual stated that one information meeting was held at the BFD and that classes had not yet started. (Id.)
- DPH interviewed BFD Chief Robert Rogowski. The Chief indicated that the course was being held at the BFD on Tuesday and Thursday evenings and was taught by the Respondent. The Chief indicated that he believed the course had been ongoing for approximately three (3) weeks and that an information meeting had been held before the commencement of the course, sometime in June 2017. The Chief also provided the names of two (2) students he knew to be in the class. (Id.)
- On or about July 5, 2017, the Respondent had notified DPH in writing that he was changing the course end date from July 31, 2017 to August 31, 2017. (Id.)
- On or around July 24, 2017, the Respondent sent DPH an email that “my class number 17141 class location is going to change from Phillipston to my ware(sic) site on main st(sic).” (Id.)
- On or around July 25, 2017 the Respondent supplied to DPH the accredited training institution site request checklist on which he had requested the BFD as a training site for EMTS. (Id.)
- On or around July 27, 2017, DPH received a telephone call from the Respondent who admitted that he had provided false information during this first interview. (Id.)
- Specifically, the Respondent stated that he had been holding the course at BFD and that they were three (3) weeks into the course. He admitted that there were fifteen (15) students in the class and that they were working on Chapters 10 and 11 at the time. (Id.)
- In an email to the Respondent on July 27, 2017, DPH memorialized the Respondent’s statements. The Respondent replied that the DPH memorialization of the second interview was “accurate.”
- Based upon the investigation, DPH determined that the Respondent had violated Department regulations, policies, procedures and Administrative Requirements. Pursuant to 105 CMR 170.950(B), EMT training institutions accredited by DPH are required to conduct their courses in accordance with DPH regulations as well as Administrative Requirements. DPH Administrative Requirement 2-200, Accredited Training Institution Roles and Responsibilities is the primary AR applicable in this regard. AR 2-200 requires that “to maintain approval, the accredited training institution shall” comply with Department accreditation standards and “advise OEMS in writing within thirty (30) days of any changes” in program personnel, organizational changes or programmatic changes. [Attachment A(a).]
- Specifically, the Respondent emailed to advise the Department, in writing within thirty (30) days of any programmatic changes (i.e. course locations), and he made false, fraudulent and misleading statements to the Department both verbally and in writing about the schedule and location of the class. (Id.)
- The DPH Notice of Agency Action was issued on August 15, 2017. (Exhibit 1.)
- In an August 18, 2017 email to DPH, the Respondent requested a hearing relative to the Notice of Agency Action, but only as to the proposed revocation of his EMT certification. (Exhibit 2.)
- The Respondent further stated that he was willing to accept the permanent revocation of his I/C and Examiner approval as “punishment for [his] infractions.” (Id.)
- During the November 1, 2017 pre-hearing conference in this matter, the Respondent did not indicate that there are any factual disputes in this case.
- The Respondent has a compliance history. On March 1, 2016, DPH entered into a Settlement Agreement with him in connection with a Notice of Agency Action it had issued to the Respondent on January 11, 2016. (Attachment A(c).)
- In the January 2016 Notice of Action, the DPH proposed to temporarily revoke the Respondent’s I/C and Examiner approvals as well as his EMT certification based upon its findings that the Respondent had made false statements in at least three (3) separate documents submitted to the DPH in connection with his accredited training institution. (Id.)
- Pursuant to the Settlement Agreement, EMTS received provisional accreditation for a minimum period of nine (9) months, during which time he would have no connection to the operation of EMTS. In addition, the Agreement included the temporary revocation of the Respondent’s I/C and Examiner approvals as well as his EMT certification for the same period of time. The Settlement Agreement required the Respondent to complete-and he did complete- and Ethics in EMS course. Finally, by its express terms, the Settlement Agreement became part of the Respondent’s record at the DPH. (Id.)
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