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KBEMS responds to comments on proposed regulations FRANKFORT — By law, the Kentucky Board of EMS must respond to comments made at a hearing in April on the proposed administrative regulations. Here are those comments. NOTICE
OF INTENT (1) A Notice of Intent Public Hearing on 202 KAR 7:801 was held on April 25, 2003 at 9:00 a.m. in the KBEMS Board Room located at 2545 Lawrenceburg Road Frankfort, KY 40601 (2) The following people submitted written or oral comments: Name and Title Agency/Organization/Entity/Other Jerry McGraw Himself, KEMTIA, and Steve Burton Director of Public Safety at Rohm & Haas Chemical Plant Mike Swift Volunteer EMS Services In Kentucky as a KBEMS Board Member and as Director of Barren/Metcalf EMS Miles Hughes Himself, “Dozens upon dozens of fellow EMT’s and Paramedics” Maysville Community College/ KCTCS (3) The following people from the promulgating administrative body responded to the written or oral comments: Name and Title Brian Bishop Executive Director KBEMS Charles O’Neal Deputy Executive Director KBEMS Patricia Bausch General Counsel SUMMARY OF COMMENTS AND RESPONSES (1) Subject matter: (202 KAR 7:801) (a) Comment: A concern with Section 1, Subsection 1(B), having knowledge of EMS laws and regulations in the State of Kentucky which sounds all well and good, but exactly how in the world do we go about determining that? We don't put some specific level of knowledge or burden of proof upon the medical director to determine whether they have specific knowledge or how much knowledge they have of the EMS laws and regulations. (b) Response: The provider is responsible for determining the training that is required for their EMS medical director. No change is recommended. (2) Subject matter: (202 KAR 7:801) (a) Comment: Section 2, Subsection B, hold current provider certification in, number one, advanced trauma life support, Section 2, advanced cardiac life support either through the HA or American Health & Safety Institute. The problem is that it is a course specific, even though we've broadened it from HA to American Health & Safety Institute. In this market-driven society in which we live, the fact that we put these two in here specifically by name means that there could be some other services or some other educational institution that comes out with a course that is far superior and far more economical than these two, which, by virtue of mentioning these in our regs, we are basically married to them and that no one else is allowed. They're excluded by name. (b) Response: No response is warranted. No change is recommended. (3) Subject matter: (202 KAR 7:801) (a) Comment: A concern with Section 3, medical directors for BLS Service, Subsection B, hold current certification in advanced trauma life support or basic trauma life support. The problem is with advanced cardiac life support and pediatric advanced life support. Once again, we're asking for credentials on the part of a medical director position that are far and above what that medical director position would be prescribing for a pure basic life support service. Since a basic life support service is not going to be providing any advanced life support, I see no reason why that medical director would have to have advanced cardiac life support. (b) Response: No response is warranted. No change is recommended. (4) Subject matter: (202 KAR 7:801) (a) Comment: A concern in that same section, Section 5 talks about if a service has a problem finding a medical director with all these qualifications that the Board will actually try to locate the needed training for that individual and/or try to locate a medical director then that service would then be responsible for the financial considerations in which that medical director is paid. (b) Response: No response is warranted. No change is recommended. (5) Subject matter: (202 KAR 7:801) (a) Comment: A concern with Section 2, Subsection A, sub--or Part A, establish medical protocols and standing orders for communications in patient care personnel and, (B), serving as liaison with the local medical community. Every set of protocols that Commentor has ever worked under as a paramedic has in there in certain procedures must contact medical control, and for his standing orders and protocols to be superseded by medical control. He routinely transport into a medical facility who one emergency room doctor runs all of his cardiac arrest codes with an ED because he doesn't know when to shock. Also, he had another physician who is an ER physician on the day that he arrived with a patient who asked him, “What's the best drug to paralyze a patient?” and, she said, “If we paralyze them, you know more about intubation than I do, do you mind doing it?” So, these are the individuals that the Commentor takes his medical control direction from that supersede the medical control standing orders in which these are set out by contract. (b) Response: No response is warranted. No change is recommended. (6) Subject matter: (202 KAR 7:801) (a) Comment: Commentor thinks the majority of medical directors in the Commonwealth of Kentucky are volunteers. They're typically not paid, although there are some services that do, in fact, pay their medical director. There is a growing concern among ambulance providers statewide that although requiring additional requirements or requirements that are difficult and costly to obtain and costly to obtain in hours of service that they have to attend the training makes directorship, medical directorship less of an option. And, so, there is a growing concern about the requirements for medical director. The biggest concern is over advanced trauma life support and it has been their recommendation that the provision requiring advanced trauma life support be deleted from being required and made an optional part of training. Also, the Commentor has gotten several comments from inspectors that the advanced trauma life support is a hindrance as far as it's a problem for many providers throughout the state. (b) Response: No response is warranted. No change is recommended. (7) Subject matter: (202 KAR 7:801) (a) Comment: A concern with Page 1, Section 1, Line 20(2)(B)(1) and Page 2, Section 1, Line 8(3)(B)(1). The recommendation is that the requirement for advanced trauma life support be deleted as required and made optional.
(b) Response: No response is warranted. No change is recommended. (8) Subject matter: (202 KAR 7:801) (a) Comment: A concern that we've made a lot of provisions about felony convictions and records as far as this for EMTs, first responders and paramedics, but basically there's nothing in our regulation regarding discipline by the Kentucky Board of Medical Licensure in this state or equivalent boards in other states. There are no exclusions for being medical director if that person has been convicted of a felony. Under these regulations, a person could be a doctor, who has disciplinary problems or even a felon in another state, somehow got admitted to practice in Kentucky and became an EMS medical director. Since this regulation does not provide for action on these issues, KBEMS cannot revoke his or her status as an EMS medical director when it finds out about their past. The doctor could then contest the action by the Kentucky Board of Medical Licensure and he continues to be an EMS medical director for a couple of more years because we did not say that he could not be a convicted felon. That's an area, perhaps a loophole that we need to look at and close perhaps for medical directors. (b) Response: KRS 311A.055(21) provides the only discipline that may imposed by the board against an EMS medical director is denial, suspension, or withdrawal of approval to serve as an EMS medical director. The authority to discipline physicians rests solely with the Kentucky Board of Medical Licensure. No change is recommended. (9) Subject matter: (202 KAR 7:801) (a) Comment: Commentor is disappointed that the Kentucky Board of Emergency Medical Services would put a regulation that is as deficient as this proposed regulation is before the implementing process. This regulation is most noteworthy for what it lacks, for what it does not provide. The fact that a person--and we've had situations where doctors have moved from one state to another after they've been disciplined in a particular state, they've had their license taken away, they've been convicted of crimes, go to another state and get admitted in that state on false information possibly. Under this regulation, a doctor can become a medical director in this state and this Board can't do anything to take it away from them. This regulation, is most significant in what it lacks saying as compared to what it says. Benefits. Analysis. It's going to be extremely detrimental to the Commonwealth of Kentucky and the residents. (b) Response: The authority to discipline physicians rests solely with the Kentucky Board of Medical Licensure. KBEMS may refer to the KBML any issue that it believes warrants their attention. As stated above, KRS 311A.055(21) provides the only discipline that may imposed by KBEMS against an EMS medical director which is denial, suspension, or withdrawal of approval to serve as an EMS medical director. No change is recommended.NOTICE OF INTENT STATEMENT OF CONSIDERATION RELATING TO 202 KAR 7:030 KENTUCKY BOARD OF EMERGENCY MEDICAL SERVICES (1) A Notice of Intent Public Hearing on 202 KAR 7:030 was held on April 25, 2003 at 9:00 a.m. in the KBEMS Board Room located at 2545 Lawrenceburg Road Frankfort, KY 40601 (2) The following people submitted written or oral comments: Name and Title Agency/Organization/Entity/Other Jerry McGraw Himself, KEMTIA, and Steve Burton Director of Public Safety at Rohm & Haas Chemical Plant Mike Swift Volunteer EMS Services In Kentucky as a KBEMS Board Member and as Director of Barren/Metcalf EMS Miles Hughes Himself, and Dozens upon Dozens of fellow EMTs and Paramedics (3) The following people from the promulgating administrative body responded to the written or oral comments: Name and Title Brian Bishop Executive Director KBEMS Charles O’Neal Deputy Executive Director KBEMS Patricia Bausch General Counsel SUMMARY OF COMMENTS AND RESPONSES (1) Subject matter: (202 KAR 7:030) (a) Comment: A concern that this proposed regulation in reference to fees will further deteriorate emergency medical services in the rural parts of the state. In Nicholas County where the commentor works and lives and the three-quarters of Robertson County, which the commentor covers, full-time paramedics’ maximum yearly salary is $18,000 a year and EMT-Bs is $15,600 per year. There are no additional benefits (i.e. sick leave, insurance, and vacation days or retirement). There's only your weekly paycheck. Therefore, we're driving people out of emergency medical services in the rural parts of the state. The commentor and others like him have to go outside the field of emergency medical services just to make enough money to maintain some decent standard of living. If the Board continues to or intends to increase the fees and testing, two things are going to happen. Those who are existing in EMS will tend to leave the field, as they've already started to do, and those that we try to recruit into the field will no longer even consider that. Consider one section of the regulations where the initial testing fee at the end of the class will be $150 in addition to normal certification fees. Add this to the cost of the class, which in rural areas like Nicholas County can reach anywhere from $400 to $650. You then have individuals investing $800, plus their time and any additional expenses there might be, in order to become emergency medical technician basics. Of the members on the Board, 70% live in areas where the median household income is far above the state average. There are paramedics and EMT-Bs who live in areas where the median household income is far below the state average and do not have the money to spend. It's not that they don't want to or can't re-budget. It's just that it's not there. The rural counties have to depend a lot on PRN and volunteer EMT basics and part-time paramedics in order to provide even the most basic service in their areas. If our intent is to further deteriorate the quality of EMS in our section or further cripple rural EMS as what happened in Robertson County, then we should go ahead and implement these fees. Those who cannot afford it will leave the field. Another concern is, in Section 6 or Section 7, Advanced Life Support Medical First Response Providers. Nicholas County Fire Department (NCFD) has access to three paramedics and has considered going advanced life support first responder to supplement an ambulance service that is already stretched thin by trying to cover one and three quarter counties. The NCFD will have to buy that equipment themselves through whatever means. The county fireboard, out of principle will reject an additional assessment fee of $250. Ewing in Fleming County has access to five paramedics on their volunteer fire department staff. They've expressed an intent to explore the possibility of going advanced life support first responder to cover certain areas that are under- serviced as far as EMS. Commentor thinks when they see that they're going to be assessed a $250 fee or tax in order just to provide volunteer help to their areas, than they might reject it. Commentor thinks that's a very unfair assessment to put on people who are going out in the middle of the night on their time at no compensation to try to help people to provide emergency medical services to those people that need it. (b) Response: After extensive review, the identified fees have been determined to be necessary and commensurate with those of other practitioners licensed or certified by the Commonwealth. The decline in state revenues require the board to seek other sources of revenue to assist in funding their operation to fulfill their statutory and regulatory obligations. The Board does agree that a separate fee should be established for re-testing and that fee should be $75.00. No other changes are recommended. (2) Subject matter: (202 KAR 7:030) (a) Comment: A concern by the volunteer community about the fee schedule. EMS in the State of Kentucky was built out of volunteerism. The original program, instructors, and people that worked in the EMT and such was built upon the backs of volunteers. Even the paid services in the Commentor’s location, utilizes and draws from a pool of volunteer firefighters that have received training for its employment purposes. EMTs work with these people on a first responder basis. Commentor has heard that this is the case in Jefferson County, which is one of the larger services in the Commonwealth and they draw upon a pool of people from the volunteer fire departments. A concern is that if fees continue to be placed or raised, particularly on the volunteer segment, then people are simply no longer going to obtain the training and that's going to affect our ability to have a pool of people to hire from. Commentor is not talking just about first responders. This also includes EMTs or even paramedics. It even goes to the point of being, to a certain degree, instructors because, again, in order to have training or put on classes, you have to have instructors and you have to have people here. If there are a lot of fees--the fee schedule in general, if it is so prohibitive, then there will be people that simply will not volunteer and will not work under those circumstances. It will restrict and influence negatively the people that are available for training and for providing an employment pool. There is not any problem with covering costs, but some of these fees, appear at least from the onset, to be above cost. (b) Response: See response to item 1 above. No change is recommended. (3) Subject matter: (202 KAR 7:030) (a) Comment: As Mr. Swift stated, EMS in Kentucky was born on the backs of volunteers. Under the leadership of Tommy Thompson, who was at that point a state employee, approximately 12 individuals were selected who developed emergency medical services today. There are individuals who are in significant influential positions today who take the position that we only want paid ambulance personnel in the state. One of the individuals on this committee and an individual on the committee that drafted these regulations, have apparently made numerous comments in that particular regard. Commentor would suggest that the benefits of this regulation in that regard are counterproductive. The fact is that we cannot provide in this state under current budget constraints the ambulance personnel that are needed throughout the state on a total paid basis. Mr. Charlie O'Neal, the Assistant Executive Director of the Kentucky Board of Emergency Medical Services, related in an e-mail the problems in recruiting based upon the lack of ability to pay emergency medical technicians and paramedics at a competitive price with what they can earn in other areas. This is indicative of the benefits that will be lost if this regulation is adopted in its present format. Approximately four years ago, some of the same individuals involved in the committee to write these regulations wrote some provisions that required considerably more continuing education than is currently provided. We lost approximately 2,000 emergency medical technicians in this state at that time. The General Assembly stepped into that situation and passed a law that restricted the amount of continuing education that could be provided. The Commentor would suggest, and in the volunteer Kentucky of EMS, we have not recovered from that loss. To continue placing burdens upon volunteers as is done through this regulation in the cost will be counterproductive to emergency medical services in this state and to the providing of those services to the citizens of this state. On March 3rd, Henry County had an example of this very situation that will continue to follow if these regulations are passed. On that particular day, a young boy, three years old became ill and an ambulance service was requested. The ambulance did not have sufficient paid EMTs and paramedics to make that response. The boy died. The question that was asked at a Fiscal Court meeting following that event was why were there not enough volunteers to make that run, to support, to back up that paid ambulance service. The Commentor would suggest one step further. Part of the Commentor’s training with the military has been in internal security and defense. Today, we are quite concerned about things called homeland security. The Commentor would suggest that we do not have enough paid paramedics and EMS personnel in this state to respond adequately to a mass disaster or mass casualty situation that might occur as a result of some terrorist activities, which is the very things that we're confronting with homeland security. We would be burdened to try and make those accomplishments. We do not have the paid personnel to do it. The Commentor has been in situations where he has responded, as a volunteer, even on tornado situations. Homeland security is a present pending concern that we all have. We are still in an elevated status on our homeland security alert. We need every volunteer we can get in this state to be available, to be ready to provide the emergency medical services and the response that would be needed in such a mass disaster or mass casualty type situation. These regulations will be counterproductive to that need and will serve a detriment to the Commonwealth of Kentucky if passed. (b) Response: No response is warranted. No change is recommended. NOTICE OF INTENT STATEMENT OF CONSIDERATION RELATING TO 202 KAR 7:201 KENTUCKY BOARD OF EMERGENCY MEDICAL SERVICES (1) A Notice of Intent Public Hearing on 202 KAR 7:201 was held on April 25, 2003 at 9:00 a.m. in the KBEMS Board Room located at 2545 Lawrenceburg Road Frankfort, KY 40601 (2) The following people submitted written or oral comments: Name and Title Agency/Organization/Entity/Other Jerry McGraw Himself, KEMTIA, and Steve Burton Director of Public Safety at Rohm & Haas Chemical Plant Mike Swift Volunteer EMS Services In Kentucky as a KBEMS Board Member and as Director of Barren/Metcalf EMS (3) The following people from the promulgating administrative body responded to the written or oral comments: Name and Title Brian Bishop Executive Director KBEMS Charles O’Neal Deputy Executive Director KBEMS Patricia Bausch General Counsel SUMMARY OF COMMENTS AND RESPONSES (1) Subject matter: (202 KAR 7:201) (a) Comment: A concern that in the regulation it refers to first responder, EMT and paramedic, and it refers to CPR training. To be accurate, it also needs to include AED training, CPR training and AED training, even though that is considered at this time being part of the program. So, that's being a continual process. Also, on Page 4, Section 3, Line 22(4), there's a section about people in the Armed Forces engaged writing a letter requesting an extension of their certification. That’s perhaps a problem, particularly in a current situation where we have people that are involved in a war in Iraq for an extended period of time in combat and/or security and/or rebuilding a country. These people have more important things to do at that particular time than writing a letter to the state asking for an extension of their certification. (b) Response: The Board agrees that AED training should be included as a part of the CPR requirement. We recommend that a new letter (k) be included in Section 2, (2) with the following language, “Use and operation of an AED”. The Board further agrees for persons in the military the process of “writing a letter” may prove impossible to accomplish under certain circumstances. Thus, a change is recommended to delete the requirement that a written request be filed with the board. No other changes are recommended. (2) Subject matter: (202 KAR 7:201) (a) Comment: In reference to Page 5, Section 4, Line 10, do we allow a person reciprocity if they've only completed the National Registry course and never been certified as a first responder, EMT or paramedic? Commentor is not aware of what we do in those situations and does not think the regulation addresses that issue either. (b) Response: The regulation as proposed will allow an individual to apply for reciprocity without holding state certification. This language is proposed to allow those individuals who attain their National Registry certification while serving in the military to have the opportunity to move those skills into the civilian setting. No change is recommended. (3) Subject matter: (202 KAR 7:201) (a) Comment: A concern with Page 6, Section 4, Line 15, both for first responders, EMT and paramedics. What about a pardoned individual or if the offense is an old offense and the person has demonstrated many years of reasonable conduct? What about the type of charge? If someone had a minor charge, for instance, a shoplifting charge when they were 15 years old when they were a juvenile and they've since had no problems, does that automatically exclude someone from certification as a first responder or an EMT or licensed as a paramedic? Perhaps -- and we've talked about this as far as from the Board's standpoint, listing of felonies which would constitute an absolute exclusion from certification and for all other cases have a review board. This could be made up of Board Members that could make a decision. That decision could then be appealed to the entire Board. At least you've got some due process in line where people could have this. (b) Response: As a juvenile record is not a public record, the statute would not extend to juvenile offenses. The remainder of this comment is addressed in KRS 311A.050, (3), (a). No change is recommended. (4) Subject matter: (202 KAR 7:201) (a) Comment: A concern with Page 6, Section 4, Line 18(1). This again goes with first responders, EMTs and paramedics. There's a statement there that “has not been disciplined.” As written and referenced on several occasions in both the first responder, EMT and paramedic regulations, this opens a major problem, particularly where it relates to recertification or relicensing. As written, it will prevent the certification, recertification or licensure and/or relicensure of anyone who has ever been disciplined. This phrase or statement does not say if one has pending disciplinary action. It does say the person has not been disciplined. So, if you have a person who was disciplined ten years ago with a letter of admonishment in their personnel file, as written, this will mean they can no longer be re-certified or re-licensed. This was not the intent of the regulation but this is what was written. The purpose of this meeting is to express concerns and that is a real concern. (b) Response: The Board agrees that an individual should not be automatically excluded from recertification based upon pending or previous disciplinary action unless the person has been specifically excluded from eligibility for recertification, reciprocity, or reinstatement for a specific time period. It is recommended that changes be made to Section 3, (3), (b) to read. “applicant has been subjected to disciplinary action that prevents recertification at the time of application” and Section 4, (1), (k) to read, “has not been subjected to discipline that would prevent reciprocity at the time of application” and Section 6, (2), (a), 3 to read, “has not been subjected to discipline that would prevent reinstatement at the time of application”. No additional changes are recommended. (5) Subject matter: (202 KAR 7:201) (a) Comment: A concern with, Page 8, Section 6, Line 3(1)(f). With so many different agencies and training institutions, the definition of a contact hour is becoming another problem. People want to know what a contact hour is as far as their training. We need to define exactly what constitutes a contact hour. (b) Response: The Board agrees to a change to 202 KAR 7:010 to include a new (18) “Contact hour” that will be defined as “A period of sixty (60) minutes during which a minimum of fifty (50) minutes is utilized for active instructional purposes”. No additional changes are recommended. (6) Subject matter: (202 KAR 7:201) (a) Comment: Further elaboration as it relates to the requiring of a letter for a person who is on active duty in the military, the Commentor thinks that dodging a bullet in Iraq is far more important than writing a letter to this Board and believes that requirement is in contravention of the Soldiers and Sailors Civil Relief Act and would be illegal. Another concern is administrative due process. These regulations are unconstitutional and the disciplinary provisions that relate to recertification in particular. The discipline is phrased in several different ways throughout either this regulation or the regulations relating to EMTs and paramedics as it relates to discipline as to whether not subject to disciplinary action, has not had disciplinary action and such. In that regard, as Mr. Swift pointed out, if it says “has not had disciplinary action,” the Commentor reads this as saying if they've ever had disciplinary action. Is a letter of admonishment, a suspension that was done ten years ago with some retraining, does that mean that effective now, even though that disciplinary action has been completed in previous years, that person can no longer receive a new certification and be renewed to continue their process? Secondly, if a person is in the process of recertifying and where it says not subject to disciplinary action that also is unconstitutional because of the fact it does not provide for administrative due process. The United States Supreme Court has ruled in a number of cases, particularly relating to teacher certification in various states, that certification or license that does provide the availability of employment is a property right that is protected under both the Fifth Amendment to the United States Constitution, and the 14th Amendment applies it to the state level. Therefore, a regulation that would provide that a person simply couldn’t get a renewal because they have a pending disciplinary action without the right to a due process hearing fails under fundamental fairness. A person who has already been disciplined and who has not renewed in their certification without a due process requirements of fundamental fairness and a hearing, notice, etcetera, is unconstitutional and that these regulations would be subject to federal or state injunctive relief to prevent them from being enforced if they are adopted in the method that they currently are. That is a very strong detriment to the benefits of passing these regulations. (b) Response: See response to item 5 above. No change is recommended. NOTICE OF INTENT STATEMENT OF CONSIDERATION RELATING TO 202 KAR 7:301 KENTUCKY BOARD OF EMERGENCY MEDICAL SERVICES (1) A Notice of Intent Public Hearing on 202 KAR 7:301 was held on April 25, 2003 at 9:00 a.m. in the KBEMS Board Room located at 2545 Lawrenceburg Road Frankfort, KY 40601 (2) The following people submitted written or oral comments: Name and Title Agency/Organization/Entity/Other Jerry McGraw Himself, KEMTIA, and Steve Burton Director of Public Safety at Rohm & Haas Chemical Plant Mike Swift Volunteer EMS Services In Kentucky as a KBEMS Board Member and as Director of Barren/Metcalf EMS (3) The following people from the promulgating administrative body responded to the written or oral comments: Name and Title Brian Bishop Executive Director KBEMS Charles O’Neal Deputy Executive Director KBEMS Patricia Bausch General Counsel SUMMARY OF COMMENTS AND RESPONSES (1) Subject matter: (202 KAR 7:301) (a) Comment: A concern that in the regulation it refers to first responder, EMT and paramedic, and it refers to CPR training. To be accurate, it also needs to include AED training, CPR training and AED training, even though that is considered at this time being part of the program. So, that's being a continual process. Also, on Page 4, Section 3, Line 22(4), there's a section about people in the Armed Forces engaged writing a letter requesting an extension of their certification. That’s perhaps a problem, particularly in a current situation where we have people that are involved in a war in Iraq for an extended period of time in combat and/or security and/or rebuilding a country. These people have more important things to do at that particular time than writing a letter to the state asking for an extension of their certification. (b) Response: The Board agrees that AED training should be included as a part of the CPR requirement. We recommend that a new letter (k) be included in Section 2, (2) with the following language, “Use and operation of an AED”. The Board further agrees for persons in the military the process of “writing a letter” may prove impossible to accomplish under certain circumstances. Thus, a change is recommended Board will change the regulation to delete the requirement that a written request be filed with the board. No other changes are recommended. (2) Subject matter: (202 KAR 7:301) (a) Comment: In reference to Page 5, Section 4, Line 10, do we allow a person reciprocity if they've only completed the National Registry course and never been certified as a first responder, EMT or paramedic? Commentor is not aware of what we do in those situations and does not think the regulation addresses that issue either. (b) Response: The regulation as proposed will allow an individual to apply for reciprocity without holding state certification. This language is proposed to allow those individuals who attain their National Registry certification while serving in the military to have the opportunity to move those skills into the civilian setting. No change is recommended. (3) Subject matter: (202 KAR 7:301) (a) Comment: A concern with Page 6, Section 4, Line 15, both for first responders, EMT and paramedics. What about a pardoned individual or if the offense is an old offense and the person has demonstrated many years of reasonable conduct? What about the type of charge? If someone had a minor charge, for instance, a shoplifting charge when they were 15 years old when they were a juvenile and they've since had no problems, does that automatically exclude someone from certification as a first responder or an EMT or licensed as a paramedic? Perhaps -- and we've talked about this as far as from the Board's standpoint, listing of felonies which would constitute an absolute exclusion from certification and for all other cases have a review board. This could be made up of Board Members that could make a decision. That decision could then be appealed to the entire Board. At least you've got some due process in line where people could have this. (b) Response: As a juvenile record is not a public record, the statute would not extend to juvenile offenses. The remainder of this comment is addressed in KRS 311A.050, (3), (a). No change is recommended. (4) Subject matter: (202 KAR 7:301) (a) Comment: A concern with Page 6, Section 4, Line 18(1). This again goes with first responders, EMTs and paramedics. There's a statement there that “has not been disciplined.” As written and referenced on several occasions in both the first responder, EMT and paramedic regs, this opens a major problem, particularly where it relates to recertification or relicensing. As written, it will prevent the certification, recertification or licensure and/or relicensure of anyone who has ever been disciplined. This phrase or statement does not say if one has pending disciplinary action. It does say the person has not been disciplined. So, if you have a person who was disciplined ten years ago with a letter of admonishment in their personnel file, as written, this will mean they can no longer be re-certified or re-licensed. This was not the intent of the regulation but this is what was written. The purpose of this meeting is to express concerns and that is a real concern. (b) Response: The Board agrees that an individual should not be automatically excluded from recertification based upon pending or previous disciplinary action unless the person has been specifically excluded from eligibility for recertification, reciprocity, or reinstatement for a specific time period. It is recommended that changes be made to Section 3, (3), (b) to read. “applicant has been subjected to disciplinary action that prevents recertification at the time of application” and Section 4, (1), (k) to read, “has not been subjected to discipline that would prevent reciprocity at the time of application” and Section 6, (3), (c) to read, “has not been subjected to discipline that would prevent reinstatement at the time of application”. No additional changes are recommended. (5) Subject matter: (202 KAR 7:301) (a) Comment: A concern with, Page 8, Section 6, Line 3(1)(f). With so many different agencies and training institutions, the definition of a contact hour is becoming another problem. People want to know what a contact hour is as far as their training. We need to define exactly what constitutes a contact hour. (b) Response: The Board agrees to a change to 202 KAR 7:010 to include a new (18) “Contact hour” that will be defined as “A period of sixty (60) minutes during which a minimum of fifty (50) minutes is utilized for active instructional purposes”. No additional changes are recommended. (6) Subject matter: (202 KAR 7:301) (a) Comment: Further elaboration as it relates to the requiring of a letter for a person who is on active duty in the military, the Commentor thinks that dodging a bullet in Iraq is far more important than writing a letter to this Board and believes that requirement is in contravention of the Soldiers and Sailors Civil Relief Act and would be illegal. Another concern is administrative due process. These regulations are unconstitutional and the disciplinary provisions that relate to recertification in particular. The discipline is phrased in several different ways throughout either this regulation or the regulations relating to EMTs and paramedics as it relates to discipline as to whether not subject to disciplinary action, has not had disciplinary action and such. In that regard, as Mr. Swift pointed out, if it says “has not had disciplinary action,” the Commentor reads this as saying if they've ever had disciplinary action. Is a letter of admonishment, a suspension that was done ten years ago with some retraining, does that mean that effective now, even though that disciplinary action has been completed in previous years, that person can no longer receive a new certification and be renewed to continue their process? Secondly, if a person is in the process of recertifying and where it says not subject to disciplinary action that also is unconstitutional because of the fact it does not provide for administrative due process. The United States Supreme Court has ruled in a number of cases, particularly relating to teacher certification in various states, that certification or license that does provide the availability of employment is a property right that is protected under both the Fifth Amendment to the United States Constitution, and the 14th Amendment applies it to the state level. Therefore, a regulation that would provide that a person simply couldn’t get a renewal because they have a pending disciplinary action without the right to a due process hearing fails under fundamental fairness. A person who has already been disciplined and who has not renewed in their certification without a due process requirements of fundamental fairness and a hearing, notice, etcetera, is unconstitutional and that these regulations would be subject to federal or state injunctive relief to prevent them from being enforced if they are adopted in the method that they currently are. That is a very strong detriment to the benefits of passing these regulations. (b) Response: See response to item 5 above. No change is recommended. NOTICE OF INTENT STATEMENT OF CONSIDERATION RELATING TO 202 KAR 7:401 KENTUCKY BOARD OF EMERGENCY MEDICAL SERVICES (1) A Notice of Intent Public Hearing on 202 KAR 7:401 was held on April 25, 2003 at 9:00 a.m. in the KBEMS Board Room located at 2545 Lawrenceburg Road Frankfort, KY 40601 (2) The following people submitted written or oral comments: Name and Title Agency/Organization/Entity/Other Jerry McGraw Himself, KEMTIA, and Steve Burton Director of Public Safety at Rohm & Haas Chemical Plant Mike Swift Volunteer EMS Services In Kentucky as a KBEMS Board Member and as Director of Barren/Metcalf EMS (3) The following people from the promulgating administrative body responded to the written or oral comments: Name and Title Brian Bishop Executive Director KBEMS Charles O’Neal Deputy Executive Director KBEMS Patricia Bausch General Counsel SUMMARY OF COMMENTS AND RESPONSES (1) Subject matter: (202 KAR 7:401) (a) Comment: A concern that in the regulation it refers to first responder, EMT and paramedic, and it refers to CPR training. To be accurate, it also needs to include AED training, CPR training and AED training, even though that is considered at this time being part of the program. So, that's being a continual process. Also, on Page 4, Section 3, Line 22(4), there's a section about people in the Armed Forces engaged writing a letter requesting an extension of their certification. That’s perhaps a problem, particularly in a current situation where we have people that are involved in a war in Iraq for an extended period of time in combat and/or security and/or rebuilding a country. These people have more important things to do at that particular time than writing a letter to the state asking for an extension of their certification. (b) Response: The Board agrees that AED training should be included as a part of the CPR requirement. We recommend that a new number 11 be included in Section 3, (1), (c) with the following language, “Use and operation of an AED”. The Board further agrees for persons in the military the process of “writing a letter” may prove impossible to accomplish under certain circumstances. Thus, a change is recommended to delete the requirement that a written request be filed with the board.</ |
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