On appeal from a Final Agency Decision of the Department of Health and Senior Services, Docket No. 04-C-019.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 6, 2008
Before Judges Carchman, R. B. Coleman and Sabatino.
Petitioner Philip D. D'Ambrosio, an emergency medical technician ("EMT"), appeals a final agency decision by the Department of Health and Senior Services ("the Department") that denied his recertification as an EMT-Basic ("EMT-B") for a period of five years. The Department's sanction was predicated upon a finding by an Administrative Law Judge ("ALJ") that petitioner had purposely altered and forged his name on records to make it appear that he had attended mandatory continuing education classes required for his recertification. Petitioner appeals the sanction and argues that there was an insufficient factual basis to support the allegation that he acted improperly.
Petitioner further alleges, for the first time on appeal, that the Department has no authority to regulate him or other EMT-Bs because the provisions of the Emergency Medical Services Act, N.J.S.A. 26:2K-7 to -53 (the "EMS Act"), and the corresponding Departmental regulations, do not apply to that particular category of EMTs. Rather, petitioner contends that it is the local municipality's exclusive responsibility to regulate EMT-Bs, based on provisions of the New Jersey Highway Traffic Safety Act of 1987, N.J.S.A. 27:5F-13.1 to -43 (the "Traffic Safety Act").
Petitioner has been a volunteer EMT with the Fanwood Rescue Squad for nearly thirty-five years. As a volunteer, petitioner has received an EMT certification from the National Registry of Emergency Medical Technicians ("NREMT"), as well as from the State of New Jersey through the Department's Office of Emergency Medical Services ("OEMS"). The State's certification lasts for three years, and EMTs must complete a cycle of continuing education courses within that three-year period to be recertified for another three years. Prior to 2003, petitioner had never been denied either national or State recertification.
After petitioner's EMT-B State certification expired on December 31, 2003, he was not recertified because OEMS lacked documentation that he had completed the requisite number of continuing education classes. Specifically, according to OEMS records, petitioner did not take required courses seven, eight, nine and twelve.*fn1 To be eligible for recertification, petitioner needed to take those classes within the time frame of his "recertification cycle," which was January 1, 2001 to December 31, 2003. Classes petitioner took prior to January 2001 would not have counted towards his recertification.
The Department's EMT recertification process warrants some description. All of the courses administered must be approved by OEMS. Each class is assigned a course number, which corresponds to the year that the course is offered and whether it is a "core" or an "elective" course. The middle two digits represent the retraining requirement involved (e.g. "07" or "12"). Attendees typically sign their names on a sign-in sheet at the start of each training class. This sheet also contains the date of the course and the course number. It is then collected by the course instructor at the end of class. The instructor signs the sheet and mails it, or a copy of it, to OEMS. OEMS logs the information from the sign-in sheets onto its computer database, keeping track of which EMTs have attended which courses. From this database a computer printout is generated for each EMT detailing the classes he or she has taken and any courses still needed to complete the recertification cycle.
Petitioner's wife, Nancy D'Ambrosio, is also a long-time EMT and a former captain of the Fanwood Rescue Squad. In her capacity as the squad's training officer, and after realizing he had never received his recertification card, Mrs. D'Ambrosio contacted OEMS in February 2004 and inquired about her husband's recertification status. She learned from Jeffrey Egnatovich, a public health representative with OEMS, that its records showed petitioner had not attended the requisite number of classes. Mrs. D'Ambrosio then offered to fax to Egnatovich copies of sign-in sheets for classes that she claimed her husband had attended. As the rescue squad's training officer at the time, Mrs. D'Ambrosio customarily retained copies of class attendance sheets for her records.
Egnatovich received two documents via fax from Mrs. D'Ambrosio. The first was a photocopy of a sign-in sheet with a handwritten date of "11/14/2001," and with a course number, also in handwriting, of "01-07-3007." The second document was a photocopy of what was purported to be a course sign-in sheet with the typed date of "02/12/02," and the typed course number "02-12-0227."
On both of these sheets, petitioner's name was listed last. This placement caught Egnatovich's eye. As Egnatovich entered the computer database to check on petitioner's records, he discovered that course number "01-07-3007" did not exist. Egnatovich then looked more closely at the sign-in sheet for that course on the fax that Mrs. D'Ambrosio had sent him. He perceived that the course number on the fax had been altered, in that the number "1" had been written over the number "0" in both the course number and the course date. Egnatovich then checked the course database and discovered that there was a course numbered "00-07-3007" that had been offered on November 14, 2000, not November 14, 2001. Based on these discrepancies, Egnatovich concluded that the information submitted by Mrs. D'Ambrosio concerning the first sign-in sheet was not accurate.
Suspecting that the second sign-in sheet had also been altered, Egnatovich contacted Saint Barnabas Medical Center's EMS Training Academy and requested a copy of the sign-in sheet for course number 02-12-0227. As the course provider, Saint Barnabas was responsible for maintaining the original sign-in sheets and for transmitting copies to OEMS so that attendees received appropriate course credit. As requested, Saint Barnabas faxed to Egnatovich a photocopy of its original sign-in sheet for the course. Petitioner's name was not on that original. When comparing the original with the fax he had received from petitioner's wife, Egnatovich noticed that the signature of the course instructor, Joel Bunis, appeared "greatly different" on the two documents.
Egnatovich also asked Saint Barnabas to provide the original sign-in sheet for course number 00-07-3007, to compare it with what he received from Mrs. D'Ambrosio. He was informed that the hospital had apparently destroyed that particular record. Egnatovich could not locate in OEMS's own files the original copy of the sign-in sheet from that course.
Egnatovich then contacted Bunis and showed him the sign-in sheet for course number 02-12-0227 that he had received from Mrs. D'Ambrosio. Bunis told him that it was "definitely not" his signature on that faxed sheet. Bunis stated to Egnatovich that he always checked the sign-in sheet at the end of each class he taught. Bunis said that he did so as a routine practice to verify that the number of attendees matched the number of signatures on the list, and thereby "make sure no one either didn't sign in or left before the completion of the course."*fn2
At this point, Egnatovich strongly believed that petitioner and his wife had altered the two sign-in sheets and forged petitioner's name. Egnatovich perceived that they did so to make it appear that petitioner had taken classes that he did not take. Egnatovich requested that petitioner and Mrs. D'Ambrosio come to the OEMS office in Trenton to explain the discrepancies. They agreed to come, although they refused to be interviewed separately.
During the course of her interview with Egnatovich, Mrs. D'Ambrosio stated that she always made a copy of the sign-in sheet at the start of class. She claimed that the sign-in sheets she had faxed to Egnatovich were the genuine copies of the originals. Petitioner, meanwhile, asserted in his own interview, that he had come in late for the two courses in question and that he must have signed the copied sheet, but not the original. However, neither petitioner nor his wife could explain the differing signatures on the relevant documents, or the apparent alterations of the course numbers and dates.
While the Department's investigation was ongoing, petitioner received a notice from OEMS dated April 22, 2004, stating that he had not completed the required courses for recertification. Mrs. D'Ambrosio had already learned this from her conversation in February with Egnatovich. The April letter from OEMS included a computerized printout listing the classes petitioner had taken from 2001 through 2003. The letter stated, in pertinent part:
If you do not earn the required [continuing education] credits prior to your expiration date, you will not be re-certified as an EMT-B. If in the future you wish to renew your certification, you must successfully complete a CORE 12 program and then the EMTB written examination.
Upon receiving this letter, petitioner completed the required courses in June 2004, outside of his three-year recertification cycle.*fn3
Nevertheless, the Department decided that it would not recertify petitioner. Instead, it determined that it would permanently ban him from recertification in the future, based on his apparent falsification of records. After petitioner received notification of the Department's adverse decision in October 2004, he requested a hearing in the Office of Administrative Law ("OAL").
At the OAL hearing, petitioner and his wife both testified in his defense. Mrs. D'Ambrosio*fn4 explained that, since she was the Fanwood Rescue Squad's training officer at the time, it was her responsibility to keep internal records of the EMTs who attended continuing education classes. To do this, she had a routine practice of photocopying the sign-in sheets at the beginning of each training class. She would then return the original and the copy to the sign-in table, so that latecomers could sign both sheets. She explained the instructor would not ordinarily sign the sheet until the end of class, after which he would take the original and later submit it to OEMS. The photocopies were kept in a file cabinet in the Rescue Squad's offices.
Mrs. D'Ambrosio testified that she did not make any changes to the course number or date on the sign-in sheets she had faxed to Egnatovich, and she had no reason to believe that it had been altered. With respect to course number 01-07-3007, she specifically testified that she recalled her husband attending that class, stating, "[to the] [b]est of my recollection I remember him there. I don't remember him missing classes. I remember him coming in late often." She added that he was often late for class because of his employment.
Mrs. D'Ambrosio further testified that it was not unusual for other squad members to not receive credit by OEMS for courses they actually had taken. She often had to submit the squad's own verifying records to OEMS to correct the situation. She said she had never experienced any problem in the past with this procedure. Even so, she offered no explanation for why the sign-in sheets for course number 02-12-0227 from her records and from Saint Barnabas had obviously different instructor signatures.
Petitioner testified that he attended both courses for which he sought credit, and that he signed in on the sheet for each course when he arrived at the relevant class site. He likewise had no explanation for why there were divergent signatures on the two copies of the sign-in sheets for course number 02-12-0227, except that perhaps "somebody put it there for reference purposes, but I don't have knowledge of that."
In his initial decision, the ALJ agreed with the Department that the proofs had established that petitioner had submitted fraudulent documents to support his recertification. However, the ALJ regarded the sanction proposed by the Department as too severe. In particular, the ALJ observed that:
The Department contends that [petitioner's] display of unreliability and dishonesty should preclude him from ever being recertified as an EMT-Basic. Although [petitioner's] rather questionable behavior in this case, undoubtedly warrants disciplinary action, refusal to forever recertify [petitioner] is quite severe. He and his wife have been [EMTs] for a period in excess of 30 years with no evidence of any prior complaints and much evidence of beneficial service to the people of Fanwood. The Department's rather casual approach to its record keeping may have unwittingly given [petitioner] the idea that he could avoid requirements that the Department deemed crucial. I am concerned with [petitioner's] obstinacy and insistence in perpetuating what I believe the Department has proven by a preponderance of ...