With the recent passage of Proposition 11 in California, the initiative sponsored by American Medical Response that ostensibly requires ambulance crews to remain available during breaks, I have given the matter considerable thought ... and I was a little hard on AMR, they were right about one thing.
I was, initially, a vociferous opponent of the measure because of what it might do to the salaries of hardworking EMTs and paramedics. I was frustrated by the advertising, which suggested that an EMS provider, because they worked for a private company and not a fire department, would refuse a 911 call while he or she was on a break. Of course, we know that would never happen (certainly not a second time), but the campaign in favor of the initiative made it seem like that was an impending threat.
Unsurprisingly, Prop 11 passed by a substantial margin. However, quiet reflection on the issue has led me to an epiphany of sorts; the answer was there all along and we all missed it.
The Firefighter Bill of Rights
The advertising for Prop 11 unambiguously demanded that non-fire department first responders, paramedics and EMTs, should be treated and regarded the same as fire department responders, with all of the same duties and responsibilities – that they should be considered equally – and I could not agree more. Private EMS employees do deserve to be treated the same as their fire department counterparts and the time has come to make that happen.
The very next step in that process needs to be changing the Firefighter Bill of Rights (FBOR), which is codified in Government Code sections 3250 – 3262 and establishes specific requirements for administrative investigations and discipline of firefighters. It serves to protect the bravest among us from mistreatment and abuse by employers and licensing agencies. I agree with AMR; private EMS providers should be afforded the exact same protections under the law.
In its present form, FBOR fails to recognize that many of the functions performed by firefighters (e.g., advanced life support, medical aid and emergency transport) are not performed exclusively by firefighters or fire department personnel. As was perfectly illustrated in the Prop11 campaign, when it comes to patient care, private providers do the same work, have the same responsibilities and thus, deserve the same protection.
Unfortunately, throughout California, paramedics and EMTs who are not employed by fire departments, yet who perform the same functions, are not protected by FBOR and, as a result, are subject to substantially disparate treatment when it comes to internal and agency discipline.
For example, when a disciplinary issue arises (on duty or off) for a paramedic or EMT employed by a fire department, the investigation must be completed and discipline (if any) initiated within one year of the date the issue is made known to either the employing or licensing agency. If that does not happen, the provider is no longer subject to discipline for that case (with a few exceptions, of course).
On the other hand, if a paramedic or EMT not employed by a fire department is subject to discipline for the exact same reason, there is no limit to how long the company or licensing agency, in particular, has to complete the investigation and impose discipline, if necessary. Cases involving non-fire department personnel can languish for years.
Furthermore, FBOR carefully describes how to handle these investigations, including the employee’s right to counsel. Private EMTs and paramedics have no such protections. In fact, private employers can specifically prohibit attorneys from representing employees during an investigation.
The same holds true for the California Emergency Medical Services Authority (EMSA), the agency that oversees issuance and discipline for paramedic licenses in the state; and local EMS agencies who have immediate jurisdiction over EMT/BLS certifications across the state.
Get involved in the legislative process to enact equal protection
In a recent case, a paramedic client, employed by a private 911 provider at the time, was accused of misconduct that allegedly occurred early in 2015. EMSA was made aware of the incident and commenced an investigation in the spring of 2015. However, EMSA did not file an accusation requesting that his license be revoked outright until the summer of 2018, more than three years later. When I challenged the EMSA regarding the 3-year lapse for discipline of a non-fire department paramedic (citing FBOR), EMSA told me private paramedics do not enjoy the same protections as fire department paramedics.
In California, paramedics and EMTs who are not employed by fire departments, yet who perform the same essential functions with regard to patient care, are blatantly deprived of their rights to equal protection and the state is not only complicit, but responsible. That needs to change.
The only way that EMTs and paramedics will ever hope to have the protection they deserve under the law is to get involved in the legislative process. Let your state legislators know that this issue is important and as easy to fix as changing a couple of words in a law that already exists.
AMR’s advertising was right; EMTs and paramedics do deserve to be treated the same as their fire department colleagues and counterparts, and that starts with equal protection.
Let’s make that happen.
Does your state investigate paramedics the same, regardless of their employer? Share your experiences in the comments. Do you have an EMS legal question for me? Email me at david.givot@ems1.com and I will consider it for an upcoming EMS1 column. Note: I am only licensed to practice law in California. Any response to hypothetical questions is intended for educational purposes only and is not intended to be, nor should it be considered legal advice
