STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF NEW HANOVER 01 DHR 1160

Cape Medical Transport, Inc., )

Petitioner, )

)

V. )

) DECISION

North Carolina Department )

of Health and Human Services, )

Division of Facility Services, )

Respondent. )

This matter was heard before Fred G. Morrison Jr., Senior Administrative Law Judge, on December 10, 2001, in Carolina Beach, North Carolina.

APPEARANCES

For Petitioner: Stephen E. Culbreth

Attorney at Law

PO Box 446

Wilmington, NC 28403

For Respondent: M. A. Kelly Chambers

Assistant Attorney General

North Carolina Department of Justice

PO Box 629

Raleigh, NC 27602

ISSUES

Whether Respondent:

1. exceeded its authority and/or jurisdiction,

2. acted erroneously,

3.  acted arbitrarily, and/or capriciously

when Respondent revoked Petitioner’s providers license. Additionally, at hearing Petitioner raised the claim that 10 NCAC 3D.1501 is unconstitutional and informed the undersigned that there is a civil case pending in the General Courts of Justice raising this claim.

APPLICABLE STATUTES AND RULES

Article 7 of N.C. Gen. Stat. § 131E

N.C. Gen. Stat. § 150B-23 Et seq.

10 NCAC 3D .1401(i) & .1501

EXHIBITS

The following exhibits were admitted into evidence:

1. Respondent’s Exhibit #1, Complaint Investigation dated December 20, 2000;

2. Respondent’s Exhibit #2, Notice of Intent to Revoke Ambulance Provider License dated March 5, 2001;

3. Respondent’s Exhibit #3, Memo from Doug Kirk to Drexdal Pratt dated March 15, 2001;

4. Respondent’s Exhibit #4, Revocation Notice dated June 8, 2001;

5. Respondent’s Exhibit #5, copy of 10 NCAC 3D.1501;

6. Respondent’s Exhibit #6, New Hanover County Code, Sections 20-31 though 20-64; and

7. Respondent’s Exhibit #7, City of Wilmington Resolution regarding ambulance service.

STIPULATIONS

The parties entered into the following stipulations:

1. Petitioner does not have a franchise agreement in New Hanover County. (T. p. 6)

2. Petitioner has a franchise agreement in Brunswick County. (T. p. 7)

Based upon the documents filed in this matter, exhibits admitted into evidence, stipulations entered into by the parties and the sworn testimony of the witnesses, the undersigned makes the following:

FINDINGS OF FACT

1. The North Carolina Department of Health and Human Services, Division of Facility Services, Office of Emergency Management Services (“EMS”) is charged with ensuring that the public’s health and safety is met by establishing minimum standards and promulgating rules according to the General Statutes. (T. p. 54)

2. Petitioner provides non-emergency ambulance transport to patients. (T. p. 98) It operates in both New Hanover County and Brunswick County. (T. p. 111) Petitioner’s office is located in Wilmington. (T. p. 111)

3. Keith Harris is a regional manager of the Eastern Office of EMS. (T. p. 14) As regional manager, one of his duties is to investigate complaints which have been brought to the attention of the Office of EMS. (T. p. 15) Mr. Harris has conducted approximately 20 to 25 investigations and has completed both basic and advanced level investigation courses. (T. pp. 15-16)

4. On November 14, 2000, Mr. Harris received a telephone call from Todd Baker, an Office of EMS employee in the Central Office, who stated that Ms. Rachel Odom had called him to report a complaint regarding the Petitioner. (T. pp. 16-17)

5. Mr. Harris contacted Ms. Odom on November 14, 2000. (T. p. 18) Ms. Odom is a certified EMT. (T. p. 38) EMT stands for emergency medical technician. (T. p. 104) One duty of an EMT is to transport patients from their homes to medical facilities, doctor’s appointments and then back home. (T. p. 39) Ms. Odom was employed with the Petitioner as an EMT from approximately July 2000 until approximately early December 2000. (T. pp. 39, 41) Ms. Odom has completed the course work for the next level of pre-hospital care, but has not yet taken the State exam. (T. p. 40) Ms. Odom intends to take the State exam. (T. p. 41)

6. Ms. Odom told Mr. Harris that on Tuesday, November 14, 2000, while she was working for the Petitioner, she transported by herself three dialysis patients by ambulance to Southeastern Dialysis Center in Wilmington. (T. pp. 22-23; Ex. 1, p. 4) No other personnel was on board at the time of the transport. (T. pp. 43, 50) Ms. Odom stated she conducted the transport without any other personnel on board because she was instructed to do so by Mr. Doug Kirk. (T. p. 42) Mr. Kirk is employed by Petitioner as a manager. (T. pp. 26, 33, 90) Ms. Odom testified that Petitioner transported the dialysis patients every Tuesday, Thursday and Saturday. (T. p. 30)

7. After talking with Ms. Odom, Mr. Harris requested that she complete a written statement regarding her complaint. (T. p. 28) Ms. Odom completed a written statement and sent it to Mr. Harris at the Eastern Office of EMS in Greenville. (T. pp. 28, 45; Ex. 1, pp. 31-33)

8. Ms. Odom testified that she contacted the Office of EMS to file a complaint against Petitioner because she was concerned about patient safety. (T. pp. 50-51)

9. The Office of EMS interprets N.C. Gen. Stat. § 131E-158 to require at least two certified personnel to be aboard an ambulance when patients are being transported; anything less is a violation of statute. (T. pp. 23-24) If there is only a driver aboard the ambulance, there is no one else available to attend to a patient if there is a medical incident. (T. pp. 50-51)

10. Previously, on September 18, 2000, as the result of having learned that Petitioner possibly transported a patient by ambulance without sufficient personnel aboard, Mr. Harris went to Petitioner’s office and met with Mr. Kirk. (T. p. 26; Ex. 1, p. 13) During that meeting, Mr. Harris informed Mr. Kirk that N.C. Gen. Stat. § 131E-158 states the minimum staffing requirements for ambulance transportation. (T. pp. 26-27, 99-100)

11. Prior to September 18, 2000, Ms. Pat Well, a regional manager for the Office of EMS, and Jeremy Banks, former employee of the Office of EMS, met with Mr. Kirk and informed him of the minimum staffing requirements for ambulance transportation. (T. pp. 27-28)

12. On Thursday, November 16, 2000, Mr. Harris and another employee went to Southeastern Dialysis Center to observe Petitioner transporting the dialysis patients. Petitioner had already transported the dialysis patients that day, and therefore, Mr. Harris did not observe any transportation by Petitioner. (T. pp. 29-30)

13. On Saturday, November 18, 2000, Mr. Harris returned to Southeastern Dialysis Center. (T. pp. 30-31; Ex. 1, p. 5) Mr. Harris observed Mr. Kirk arrive driving one of Petitioner’s ambulances. Mr. Harris observed Mr. Kirk get out of the driver’s door and go around to the passenger side and assist a lady out of the ambulance. Mr. Harris observed Mr. Kirk help two other people out of the same side door. Mr. Kirk then got in the driver’s side of the ambulance and drove off. (T. p. 31) Mr. Harris saw no one else present in the ambulance. Mr. Harris could see in both the driver and passenger door and he saw both doors open. (T. pp. 31- 32) Nothing was obstructing Mr. Harris’ view. (T. p. 32) Mr. Harris could not see into the back of the ambulance. (T. p. 37)

14. On November 22, 2000, Mr. Harris and Mr. Allen Johnson went to Petitioner’s office. (T. p. 32; Ex. 1, p. 6) Mr. Johnson is a regional specialist with the Office of EMS. Mr. Harris is Mr. Johnson’s supervisor. (T. p. 33) Mr. Harris requested to see Petitioner’s ACRs from October 1, 2000, through November 20, 2000. (T. pp. 33-34; Ex. 1, p. 6) ACR stands for ambulance call report. ACRs contain all patient information and medical care. (T. p. 33) With regard to ACRs for November 18, 2000, Mr. Kirk did not produce any ACRs for November 18, 2000, and stated he did not complete ACRs when he did a free transport. Mr. Kirk admitted during the meeting and later in his testimony at hearing, that he, without anyone else on board the ambulance, gave a courtesy transport to a lady on November 18, 2000. (T. pp. 34, 90-92, 95, 101; Ex. 1, p. 6) In response to Respondent’s First Set of Interrogatories and Request for Production of Documents, Mr. Kirk stated the ACRs for November 18 had been misplaced. (T. p. 103)

15. During the November 22, 2000 meeting at Petitioner’s office, Mr. Harris informed Mr. Kirk of the minimum staffing requirements for transporting patients by ambulance. (T. p. 100; Ex. 1, p. 6)

16. Also, during the November 22 meeting, Mr. Harris asked Mr. Kirk if Petitioner had a franchise agreement in New Hanover County. Mr. Kirk said no. (T. pp. 34-35) Petitioner was on notice from the County that it was required to have a franchise agreement in order to do business in New Hanover County. (Ex. 1, p. 37)

17. The Office of EMS’s long-standing interpretation of 10 NCAC 3D.1501(a)(4) is that a provider must have a franchise agreement in each county where the provider makes pick-ups and deliveries. (T. pp. 65-66, 71) There is no allowance in the Rule .1501(a)(4) for a privilege license to pass as a substitute for a franchise agreement. (T. pp. 70-71) Mr. Pratt testified that in 28 years he has never seen a privilege license pass as a substitute for a franchise agreement. (T. pp. 70-71)

18. New Hanover County has a franchise ordinance in effect which has been adopted by the City of Wilmington. (Ex. 6, Ex. 7) Petitioner has never presented written evidence that New Hanover County was intending to issue it a franchise. (T. p. 72)

19. Mr. Harris completed a written report of his entire complaint investigation. (T. pp. 18-20; Ex. 1)

20. Based on the aforementioned facts and documentation, Mr. Harris concluded that on November 14, 2000, and November 18, 2000, Petitioner transported patients with only one certified person on board. (T. p. 35; Ex. 1, p. 7) Mr. Harris further concluded that Petitioner did not have a franchise agreement in New Hanover County, as required by 10 NCAC 3D.1501. (T. p. 35; Ex. 1, p. 7) Based on the foregoing, he recommended that the complaint investigation be forwarded to Mr. Drexdal Pratt, Section Chief of the Office of EMS, for further review. (T. pp. 35-36, 53; Ex. 1, p. 7) Mr. Harris forwarded the report to Mr. Pratt. (T. pp. 36, 57)

21. Mr. Pratt has 28 years of experience in EMS. He has served as Section Chief for the last two years. One of his duties as Section Chief is to review complaint investigations and issue a final decision regarding the investigations. (T. pp. 55-56) Mr. Pratt received and reviewed the report completed by Mr. Harris. (T. p. 58)

22. Based on his review of the report and the fact that Petitioner had been informed on numerous occasions of the statutory staffing requirements for ambulance transport, Mr. Pratt decided to notify Petitioner of Respondent’s intent to revoke Petitioner’s provider’s license. (T. pp. 58-59, 80-81) Accordingly, on March 5, 2001, Mr. Pratt sent by certified mail a Notice of Intent to Revoke Ambulance Provider License to Mr. Kirk. (T. pp. 59-60, Ex. 2)

23. As outlined in the Notice, Respondent determined that Petitioner transported patients without minimum staffing as required by the General Statutes and routinely transported patients in New Hanover County without a franchise from the county. (T. pp. 60-61; Ex. 2, pp. 1-2)

24. In the Notice, Petitioner was informed of the specific facts supporting the basis for the intent to revoke. (T. pp. 63-64; Ex. 2, p. 3) Petitioner was also informed in the Notice of its opportunity to respond. (T. p. 67)

25. Mr. Pratt received a response from Petitioner. (T. p. 67; Ex. 3) Mr. Pratt reviewed Petitioner’s response. Petitioner’s response only reaffirmed Respondent’s information that Petitioner had transported patients without proper staffing. (T. p. 68; Ex. 3) Specifically, in the first paragraph of Petitioner’s response, Mr. Kirk admitted that on at least one occasion Petitioner transported a patient by ambulance without sufficient staffing. (T. p. 68; Ex. 3)

26. After reviewing Mr. Harris’ report, consulting with Office of EMS staff, and reviewing Petitioner’s response, and due to his concern for patient health and safety, Mr. Pratt decided to revoke Petitioner’s license on the following grounds: (1) Petitioner had violated N.C. Gen. § 131E-158 by transporting patients by ambulance without sufficient personnel, and (2) Petitioner had violated 10 NCAC 3D.1501 by operating in New Hanover County without a franchise. Mr. Pratt testified that either of the grounds would have been sufficient standing alone to justify revocation of Petitioner’s license. (T. p. 79)

27. On June 8, 2001, Mr. Pratt notified Petitioner by certified mail that its provider’s license was revoked. (T. pp. 62, 69-70, 86; Ex. 4) In the Notice, Respondent informed Petitioner of its appeal rights. (T. p. 70; Ex. 4)

28. Normally, the Office of EMS communicates with the provider about any alleged statutory and regulatory violations and the provider corrects any violations and revocation is not necessary. Petitioner continued to violate the minimum staffing requirements after several communications with the Office of EMS and continued to operate in New Hanover County after being informed by the County that it needed a franchise. (T. pp. 58-59, 80, 85; Ex. 1, p. 37)

29. Mr. Pratt testified that the Office of EMS has received reports since March 5, 2001, that Petitioner has transported patients without sufficient staffing. (T. p. 81)

Based upon the foregoing Stipulations and Findings of Fact, the undersigned Administrative Law Judge makes the following:

CONCLUSIONS OF LAW