A Troubled State, Part 2: What Can We Learn from Iowa`s Experience?

Much of the EMS community was dismayed when a series of highly critical articles written by investigative reporter Clark Kauffman hit the newsstands and Internet. The series touched on a number of key points that should be the focus of legislative and policy activity by proactive EMS organizations, municipal and county leaders, physician groups, hospital administrators, and everyone else concerned about the well-being of sick and injured citizens.

Last month, we visited the deficiencies of the State of Iowa EMS program in regard to EMS as a mandatory or essential public service, and about the lack of state-imposed response performance standards. In this month’s article, we look at two more issues—the lack of personal conduct or “moral” standards for EMS personnel, and the funding and staffing of state EMS offices.

Background Checks in EMS

Anyone applying for a position in law enforcement is subject to a background check conducted by the employing organization according to standards and procedures specified by the state or by the federal law enforcement agency.

This background check involves far more than checking for a criminal record. It includes verification of identity, age, citizenship, education history, employment history, reference checks, court records checks (including civil and criminal checks including dissolution of marriage, bankruptcy and credit-based actions), reference checks (neighbors, given references and additional references based on initial contacts), and verification of military history.

Based on the candidate-provided personal history statement, the background check is designed to test the truthfulness of the applicant. Providing false or incomplete information is grounds for disqualification. Each candidate also undergoes a psychological evaluation. The purpose of this extensive check, which involves 40-120 hours of effort by a trained investigator, plus the cost of psychological testing, is to ensure that the individual is physically, mentally and morally fit to hold a position of great public trust with have access to the persons, property and confidential information of others.

Whoa there! A position of great public trust, who has access to the persons, property and the confidential information of others? That sounds more like an EMT or paramedic or at least as much an EMT or paramedic as a police officer! In fact, EMS personnel generally have more access with less supervision to the persons and property of citizens than do police officers. We routinely enter peoples’ homes (where valuables are kept), remove clothing, perform intimate “touching” and ask very private questions. I’d submit that EMS folks should be of at least the same moral character as the local patrol officer.

Three questions should be considered when discussing background checks for EMS personnel:

• Who should conduct them?
• What should they include?
• What factors should be considered disqualifying?

Some people believe the state EMS office should conduct background checks. I do not. The state has its own duty to investigate applicants for licensure for disqualifying characteristics, such as criminal backgrounds, in those states where a criminal history is disqualifying, although most states rely completely on “self-reporting”–the willingness of an applicant to confess past convictions–as the sole criminal history check. However, most state EMS offices are not empowered to investigate the rest of the background of an applicant,even where the state statute says something about “good moral character.”

The responsibility for the conduct of employees (including “members” regardless of compensation status) rests clearly on the shoulders of the employing EMS organization. That organization, if some citizen is harmed by an employee, may find itself liable for “negligent hiring” of a person who should not be allowed in to contact with vulnerable populations.

While (so far), no EMS organizations have been the subject of reported judgments for negligent hiring, it is unknown how many agencies have settled claims based on theft, sexual assault, misappropriation of prescription drugs, etc. These numbers may begin to increase as plaintiff’s attorneys learn about the vulnerability of EMS agencies to such lawsuits. attorney Chris Messerly published an article in the May 2003 issue of TRIAL, the magazine of the Association of Trial Lawyers of America, that goes a long way toward “teaching” the legal community about issues that can be used to bring lawsuits against EMS agencies.¹ Unlike medical malpractice actions, which are often barred by state immunity statutes, there are few if any statutes that bar negligence actions against the employer.

So why don’t EMS agencies do more thorough background checks on prospective applicants? Well the “pulse and a patch” and “meat in the seat” attitudes are alive and well in many organizations–we don’t care who the person is, if they are willing to work for what we pay and they have a state license, they must be good enough.

Excuses?

Even among organizations that take their workforce more seriously than this, there are many misconceptions.

•  If the applicant has a state license, the state must have already cleared their background! Not so, grasshopper! Some states don’t disqualify people, even those with criminal backgrounds. Heck, there are even states where inmates in state prisons or county detention facilities² are trained as EMTs, and communities where they rely on convicted criminals still incarcerated to provide emergency medical service.³ Some states, like North Carolina, actually perform a criminal records check of applicants for licensure, but the state EMS office may not disclose that information to prospective employers.
• It costs too much to do a complete background check – we just can’t afford it! Correction–you can’t afford not to! What happens when an EMT engages in inappropriate sexual contact with a patient? While the settlements are usually sealed, in the case of Herring v. American Medical Response the plaintiff was awarded $500,000 in non-economic damages, which was tripled under the state’s “vulnerable person statute,” ORS 124.100(2)(b), and which was accompanied by an award of $600,000 in attorney’s fees.⁴ Of equal importance, intentional misconduct by an employee may not be covered by the employer’s liability insurance.⁵
• We don’t have the time, the skill or the expertise to conduct complete background investigations! This is just a variation of the “we can’t afford it” argument. Small organizations may not have the resources to conduct their own background investigations, but there are plenty of private companies, often composed of retired law enforcement investigators, who will handle investigations for an appropriate fee.

Fit for Service?

Once a proper background check is conducted it is up the employing organization to determine what to do with the results. This is the most difficult part of the process. Many EMS agencies need to increase the workforce. On the other hand, every EMS agency needs to protect itself, both fiscally and from the public relations perspective. Executives must balance these competing needs in making hiring decisions.

• Are convictions disqualifying? In most states, a felony conviction is an absolute bar to service as a law enforcement officer. In many states, even misdemeanor convictions serve as a bar. What about offenders whose sentences have been completed, their records expunged, or who have been the subject of a “plea bargain”? What about crimes that are not generally regarded as “involving moral turpitude”? Some agencies disqualify anyone convicted of a criminal offense. Others may not take “income tax fraud” as seriously as they would a violent crime. But if somebody is willing to steal from the government, might they be more likely to steal from a patient? Or the organization?
• Reference checks? There has been an unfortunate trend in many organizations to ignore or under-play reference checks in the employment process. There are several reasons that this has happened. “First generation” personal reference checks will probably not yield derogatory information – after all, who would list someone likely to give them a “bad” reference on their application? But judicious digging, perhaps through several layers of reference, can lead to people who have no vested interest in the applicant, who are more likely to tell the truth. Second, there is an unfortunate unwillingness amongst “human resources professionals” to share background information on employees. This seems to be based on an unreasonable fear of litigation resulting from giving reference information. However, many states afford statutory protection to the reference-checking process, allowing liability only for the knowing or negligent provision of false information. EMS executives should use the informal “chiefs network” to find out if they are considering hiring someone else’s problems!
• Psychological evaluations? Many EMS agencies are frustrated by high turnover, particularly among new employees. Because EMS recruitment and training is focused on “critical emergencies,” newly credentialed employees often have little idea of “what they are getting in to” until they are hired and on the streets – never learning that 85% of what they do will not involve even moderately “exciting” emergencies. Wise EMS agencies utilize available tools to screen out “thrill seekers” and to identify candidates whose work orientations involve compassion and service to others.

There are many facets to the discussion of background investigations in EMS. It is a complex issue. Reliance on the state EMS office to protect your organization, your patients and your community is not enough. Remember, those people you hire could show up at your house, to take care of members of your family in a time of great distress. Make sure that all of your employees are worthy of that level of trust.

The Role of State EMS Offices

Most EMS offices operate under statutory authority that was developed in the early 1970s when modern EMS was just being born. State EMS offices were established, in part, to serve as conduits for federal money that was to flow under the Emergency Medical Services and Systems Act of 1973, which gave birth to modern EMS outside of the then cutting-edge municipalities.⁶ That money, which seeded the development of EMT training programs, funded EMS communication systems, and many other EMS functions, ceased to flow during the federal downsizing of the Reagan era. Many state EMS offices shrank considerably during that period, and many have never recovered.

So what is the current role of the state EMS office? To field EMS providers, the state EMS office is the credentialing agency. To EMS agency leadership, the state EMS office is the regulatory agency, charged with making sure that EMS organizations meet prescribed standards. To state-level “higher-ups” (governors, health commissioners, and mid-level bureaucrats in state hierarchies), the state EMS office is a blurry function that consumes money, generates political heat, and doesn’t have great constitutent support. State EMS offices are easy targets for budget cutters.

State EMS offices live a conflicted existence. On one hand, they are supposed to police the EMS community, protecting the citizens from incompetent EMS providers and mis-behaving EMS agencies. They fulfill these obligations through a typical menu of tasks:

• Administering the state’s EMS statutes and, in many cases, promulgating administrative rules under the authority of that statute. This often includes vague language about developing and improving the state’s EMS system.
• Credentialing and re-credentialing EMS personnel through administrative processes, written examinations, practical examinations and continuing education requirements. Investigating complaints against individual EMS providers is part of this credentialing process.
• Licensing or authorizing EMS agencies and ensuring that agencies meet prescribed standards. This is accomplished through administrative processes, accompanied by inspections and investigation of complaints.
• In some states, accrediting trauma centers falls under the auspices of the state EMS office.

Most of these activities involve the exercise of the general “police powers” of the state – use of the state’s coercive muscle to ensure compliance with legally-prescribed minimum standards. This, however, directly conflicts with the state EMS office’s mandate to build and improve EMS systems in the state. Since OEMS generally has only vague authority, this requires the consensus and cooperation of those already involved in EMS. Therein lies the rub – it is difficult for the EMS office go build “consensus and cooperation” if it is zealously performing its police-power duties. The result is that nearly every state EMS director approaches every decision wondering “Which half of my constituents will I irritate today?”

Another issue that plagues state EMS offices is the issue of state salaries, particularly at lower levels (the state EMS director is usually a fourth or fifth-echelon employee, while the chief law enforcement and fire protection officers of the state are first- or second-level employees). EMS often finds itself as the “EMS Section” of the “Environment and Community Health” branch of the “Division of Public Health” of the state’s “Department of Health and Welfare.” Add to that the often nearly-complete ignorance of EMS issues in the public health and welfare community, and you wind up with a weak, not very well funded organization, that has difficulty attracting and retaining qualified, quality staff.⁷

Other state functions are organized such that the enforcement functions are separated from the advocacy functions. If there is an issue of misconduct in a law enforcement organization, and the agency is unable to police itself, a state investigative bureau (such as Florida’s Department of Law Enforcement or North Carolina’s State Bureau of Investigation) will handle the case, using experienced professional investigators who understand interviewing, the investigative process, and building a case for conviction or acquittal. That agency has no interest in “taking it easy” because it needs the vote of its director at the next “advisory council” meeting! Where advocacy and “system development” is needed, it occurs in a separate department, division, or bureau, where the conflicts that hamper state EMS offices do not occur.

References

1. When Every Second Counts. https://www.rkmc.com/publications/articles/when-every-second-counts. Mr. Messerly, shortly prior to his article, won a multi-million dollar judgment against a well-respected EMS agency.

2. https://www.healthycal.org/archives/7528

3. https://articles.chicagotribune.com/1988-01-06/news/8803200183_1_emt-training-state-prisons-dormitory-style

4. See Herring v. American Medical Response, __ Or. App. ___, https://www.publications.ojd.state.or.us/docs/A144168.pdf.

5. https://cdn.ca9.uscourts.gov/datastore/memoranda/2013/05/15/11-35956.pdf

6. Public Law 93-154. 93rd Congress, S. 2410. November 16, 1973.

7. The author served as Oregon’s state EMS director from 1991 – 1996. During that time it was observed that the state EMS director was paid less than every serving paramedic lieutenant in the municipality where the state EMS office was located. The salary ranges assigned to subordinate staff were even worse.

Skip Kirkwood MS, JD, NREMT-P, EFO, CEMSO, is a 40-year veteran EMS provider, educator, consultant and chief officer. He has served in EMS systems in nine states and in nearly every conceivable EMS system configuration. He has been the chief EMS officer of a volunteer, not-for-profit ambulance service; a fire-based EMS organization, two hospital-operated ambulance services, and a county-government operated EMS system. He is a member of the EMS World editorial advisory board. Since 1995, he has taught Emergency Health Service Law and Policy as part of the Master of Science degree program at the University of Maryland Baltimore County. Skip is uniquely positioned to examine these matters of law and policy for the EMS community.