How to Handle Yourself During an Investigation

Step-by-step recommendations on what to do, and what NOT to do

 

 
 
 

W. Ann "Winnie" Maggiore, JD, NREMT-P | | Friday, February 24, 2012


I often receive calls from EMTs who are concerned about investigations or potential licensure actions by state or local EMS licensing agencies. They are feeling threatened because they fear that their jobs and their livelihoods are on the line. These EMTs are generally close to a state of panic and are experiencing depression, sleep disturbances and general severe stress. What should you do if you discover you're under investigation? Or that the state or county EMS licensing agency is proposing an action against you?

What Should You Do?
Here's the usual scenario. One day you receive a letter from the state or county licensing agency, informing you that an informal investigation into your actions is taking place. Sometimes there will be some specifics; other times there may be nothing more than a reference to "conduct unbecoming an EMT." What should you do? The licensing agency's job is to protect the public and to enforce the licensing regulations that govern EMS practice. If an infraction is reported, the agency's responsibility is to investigate and to take action if it's warranted. In rare instances, when a licensee has become a "danger to the public" due to impairment or other issues, immediate suspension of a license can take place with a hearing to follow.

First, if you know what the underlying issue is, don't discuss it with anyone other than your legal counsel. If you do, that person may later be subpoenaed to testify regarding what you said. And if you were upset or angry when you said it, it may not be something you would like to hear during an administrative hearing. Don't confront a complaining party or contact a patient who has complained about you. If you're a union member, find out whether the union can provide you any assistance with legal representation. If not, seek legal representation on your own. Your livelihood may, in fact, be at stake. Although getting legal help may be expensive, it may be more expensive in the long run not to get it. Many times when I'm approached by EMTs in serious trouble, I wish they had contacted me earlier when I could have been of greater assistance.

If your issue involves substance abuse, now is the time to own up to the problem and begin seeking help. Many states have "diversion" programs that will assist EMTs with substance abuse problems; often employers also offer assistance.

Educate yourself on the process in your state and the applicable deadlines. It's often confusing and frightening to EMS personnel who have never undergone anything like this before. There's usually a defined process in the state EMS regulations, setting out the stages of a licensing action and the number of days you may have to file documents or request a hearing. You can't afford to miss any of these deadlines, so be sure you know what they are. Get a copy of the regulations (they're usually posted online) and be sure you read and understand them. Look closely at the "definitions" section where key terms are defined.

Step One: Informal Investigation
The first step in the process is usually an informal investigation. Generally, the investigation is the result of a complaint that may have originated with a patient, another EMS provider, your medical director or someone at your service. An informal investigation may take some time to complete; how much time becomes too much time is a difficult question. It's hard to know that you are under investigation and not know what it's about or who the investigators are talking to about you.
At the informal investigation stage, you won't be given more than basic information about what's being looked into. This uncertainty causes most EMTs a great deal of stress. You should be contacted by an investigator and asked to give your side of the story. Providing a statement may or may not be a good idea, depending on the nature of the alleged infraction. In some cases, your side of the story may be enough to stop an investigation in its tracks. However, in other instances, particularly those that may involve criminal activity, it may be best for you to remain silent. If the issue is likely to be one of clinical error, you may have already discussed it with your medical director.

If there were witnesses to the alleged infraction, you will want to note who they were, as well as the time and place of the alleged events. If there's documentation of any kind that supports your defense, it will be important to obtain copies of these documents.

Step Two: Notice of Contemplated Action
If sufficient evidence is found by the investigating agency, a notice of contemplated action is the next step in the process. This is the first part of your due process rights: notice of the claims and evidence against you. At this point, you will find out more about what is being alleged and by whom. The agency will tell you what action they are contemplating against your license, and provide you with an opportunity for a hearing - this is the second part of your due process rights. You will have the opportunity to be heard—through your counsel or on your own. There's generally a short deadline in which you must request a hearing. Do this in writing, and keep a copy of your request. Send it via certified mail so it can't become lost. This is a critical stage in the procedure that can cause errors if the paperwork is not properly done or transmitted.

Step Three: The Hearing
If you've requested a hearing, one will be granted and you will be notified of the time and place. Don't go to the hearing alone. Preferably, have legal counsel or at least a trusted supervisor or your medical director go with you. Whether you speak personally is something you and your counsel can decide. The hearings usually involve a hearing officer who will listen to testimony and review evidence that's presented. You will have the opportunity to present your side of the story in the light most favorable to your defense. You will be allowed to present witnesses and documents.

The hearing is the time for you to present all of the evidence that you believe favors your defense. Hearings require extensive preparation for you and your counsel. You can subpoena witnesses and present documents, and your counsel can make arguments on your behalf. Sometimes exhibits may be used to demonstrate important points. In essence, the hearing is a "mini trial." Although there is no jury, the hearing officer will determine which side has the most compelling case and will fashion a remedy in accordance with the evidence presented. You can assist your counsel by identifying witnesses and other evidence that will show your position in the best light. A well presented case will go a long way to a ruling in your favor.

Step Four: Notice of Final Action
After the hearing, the hearing officer will make a decision whether to uphold the proposed action. If the proposed action is upheld, a Notice of Final Action will be issued. This Notice will tell you exactly what action the agency has decided to take against your license. The action may be as light as an official warning, and may not involve suspension of your license for a period of time. However, serious infractions may result in suspension or revocation of your license. If this is the case, the notice will specify the period of time of suspension or revocation and any other conditions the agency is imposing. You will be notified of your right to appeal the decision and the deadline for filing your request for appeal.

Licensing investigations can be frightening and stressful for EMTs who are targeted. It’s important to seek guidance from legal counsel when your license is placed at issue. Your rights to due process as a licensee provide you with some protection, but you need to know how to exercise those rights. Get help going through the process so that your side of the story can be heard.




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Related Topics: Administration and Leadership, Legal and Ethical, uphold the proposed action, serious infractions, second part of your due process rights, request for appeal, request a hearing, official warning, notice of the claims and evidence against you, notice of final action, notice of contemplated action, licensing agency, legal counsel, informal investigation, ems license suspension, ems license revoked, ems legal advice, due process rights, conduct unbecoming an emt, conduct unbecoming a paramedic, against your license, action they are contemplating against your license

 
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W. Ann "Winnie" Maggiore, JD, NREMT-PWinnie Maggiore is an attorney and paramedic in Albuquerque. She is a shareholder at the law firm of Butt, Thornton & Baehr, PC where she defends physicians, dentists, oral surgeons, nurses, paramedics and other health care providers, as well as law enforcement officers, against lawsuits and administrative enforcement actions. She is an author of many EMS legal publications, a member of the JEMS editorial board, and holds a volunteer faculty position in the Department of Emergency Medicine at the University of New Mexico.

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