REPORT OF THE HEARING OFFICER TO THE AMBULANCE COMMITTEE OF THE REGIONAL EMERGENCY MEDICAL SERVICES COUNCIL OF NEW YORK CITY, INC.

Transcription

1 REPORT OF THE HEARING OFFICER TO THE AMBULANCE COMMITTEE OF THE REGIONAL EMERGENCY MEDICAL SERVICES COUNCIL OF NEW YORK CITY, INC. ON THE APPLICATION FOR A CERTIFICATE OF NEED FOR NEW AMBULANCE SERVICE REQUESTED BY ROCKAWAY VOLUNTEER AMBULANCE SEARCH AND RESCUE CORPS, INC. June 1, 2016 FRANK J. SCHORN, Esq. Hearing Officer th Street Glendale, New York (917) frank.schorn@gmail.com

2 Page 1 Introduction This report is being respectfully provided to the Ambulance Committee of The Regional Emergency Services Council of New York City, Inc. (hereinafter NYC REMSCO ) following a public hearing on the need for expanded ambulance services requested by Rockaway Volunteer Ambulance Search and Rescue Corps, Inc. 1 The hearing was held on Thursday April 28, 2016 at 475 Riverside Drive, New York, New York. The public hearing was moderated and conducted by the undersigned. Application and Its Scope In October 2015, Rockaway Volunteer Ambulance Search and Rescue Corps., Inc. (hereinafter "Rockaway Volunteer") submitted an application to NYC REMSCO in an effort to allow this organization to operate as an ambulance service within a defined territory in the Rockaway Peninsula, in southern Queens County. Previous efforts have been made to augment with volunteer ambulance service the existing municipal and for-profit ambulance services. According to its submission, the Applicant is financially stable and has sufficient financial resources. 1 The Applicant noted that it has sought permission to operate as Rockaway Volunteer Ambulance Corps. Transcript at page 8.

3 Page 2 Need As the basis for its request, the Applicant has posited that expansion of ambulance service in the Rockaway peninsula would be beneficial in several regards. The Applicant notes that its proposed service would alleviate the lengthy response times of FDNY ambulances: Currently in the Rockaway Peninsula area [t]he high response [times] by FDNY EMS are hurting the community by delaying the care that the sick and the injured need. Application, p. 2. The benefits to the community in the new service have been outlined by the Applicant as several salient components: (1) Reducing ambulance response time (2) Providing additional and extra pre-hospital ambulance care to the community (3) Community members will be trained to become emergency medical technicians and first responders. In its submission to NYC REMSCO the Applicant pointed out that the new ambulance service will also help by training the community in different areas of health such as first aid, CPR, and community events that will increase community involvement to help build trust within the community. Application, p. 2.

4 Page 3 Current Ambulance Operations The Applicant does not operate any ambulances. It provides first aid and medical response at community events, including road races. Transcript at pp. 58, The Applicant noted that the proposed service area is covered exclusively by the NYC Fire Department s ambulance services. The Applicant noted that hospital accessibility is also limited, following the closure of Peninsula Hospital, Transcript at p. 11, leaving only one hospital for the community. Reports from the Applicant note the slow response times to medical and traumatic injuries in the area. Transcript at pp. 8, 11. An incident involving a delayed ambulance response of some 20 minutes resulted in the death of a child. Transcript at p. 12. Rockaway Volunteer s leader cited the need in terms of elemental fairness and justice: [M]y goal here today is to serve the community and to make sure we get the right treatment as everybody else does. Transcript at p. 12. The Applicant cited drownings in the beach-fronted zone and that it took EMS longer to get to that area because it's so distant. Transcript at p. 43.

5 Page 4 Planned Staffing and Expansion into Ambulance Services The Applicant indicates that it would like to establish a service that would serve segments of the Rockaway Peninsula 24/7 ; that is, the service would be in constant operation. According to Ronnie Murchinson, Rockaway Volunteer s organizer, he has already gathered support from 10 to 12 EMTs and paramedics who would join in supporting the volunteer organization. Transcript at p. 16. Some 43 individuals who are Certified First Responders, EMTs and paramedics have provided support to the organization. Transcript at p. 17. See also Part 3 of the Application at %202016%20Rockaway%20VAC%20CON.pdf Population and Demographics The Applicant cites several demographic details as bases for its determination that a need exists for more ambulance service. Chief among the concerns is the isolation of the community. The service area is on a peninsula, serviced by one hospital, connected to other parts of NYC solely by bridges, and distant from the larger portion of Queens County to the north. There are some 210,000 full-time residents of the Rockaway Peninsula, and many times that 7.2 million visitors and tourists largely during the summer months. Application at p. 4. The community was devastated and isolated by Super Storm Sandy in Transcript at pp. 11, 15. Though that event

6 Page 5 is not common, Transcript at p. 26, the risk to the community from future isolation due to weather events is present, if not particularly calculable. The community contains a significant number of low income public housing and poor individuals, Transcript at p. 59, for whom health care access would be a concern. Ambulance Call Volume and Response Times The Applicant was unable to provide precise details either as to call volume or to ambulance response times in its proposed service area. This may be a result of bundled or aggregated statistics from FDNY that fails to explicate local ambulance needs, arrivals or delays. The Applicant noted however, In 2014 the average response times for a city ambulance was 6-8minutes citywide but minutes in the Rockaway-Peninsula according to community residents and also providing that weather and other condition was alright. The Rockaway Volunteer Ambulance Corps (R.V.A.C) plans on helping alongside the NYC Fire Department EMS with reducing the average time it takes an ambulance to get to a sick or injured person in our community. Hospitals Served The Rockaway Volunteer ambulance service would be serving St. John s Episcopal Hospital. Another hospital, Peninsula Hospital, closed several years ago. Further, the ambulance service would transport patients outside the Rockaway Peninsula, if needed, to Jamaica Hospital, North Shore LIJ, Brookdale Hospital, and Coney Island Hospital. Application at p. 5.

7 Page 6 Quality of Service The Applicant cites its financial strength, size and interconnected network of facilities in comparison with that of other ambulance services that have slowed down, shut down or have not been well-funded or sufficiently capitalized. Application at p. 10. The service will staff certified first responders, emergency medical technicians and paramedics. It is anticipated that Rockaway Volunteer will render Basic Life Support (BLS) care consistent with NYS guidelines, as well as offer the administration of CPR, Epi Pen, Albuterol-Nebulizers, Oxygen, Nasal Narcan (naloxone) and AED as required as per Article 30 part Application at p. 4. Rockaway Volunteer will initially staff one ambulance, having a driver and a certified emergency medical technician with at least 2 years experience on each ambulance run. Application at p. 4. The Applicant further notes The [ambulance] squads will follow strictly NYC REMSCO protocols. Each member before volunteering and able to ride on the ambulance will need to complete and pass a NYS CPR & First Responder course. Each member who has interest in driving our fleet will need to go to training and get certified in EVOC/CEVO. RVAC will operate 24 hours a day, 7 days a week, 365 days a year. Application at p. 4.

8 Page 7 Mutual Aid Rockaway Volunteer plans participate in NYC REMSCO's Mutual Aid Mobilization System. Application at p. 5. Once it signs an agreement pledging mutual aid and support, the Applicant could then be mobilized by FDNY or the NYC Office of Emergency Management to respond to disasters, unusual emergencies, multiple casualty incidents, or evacuation in the New York City region. Fiscal Stability The Applicant has provided information that it proposes to support its activities with a mesh of donations, community grants and insurance reimbursements (from those patients whose ambulance visits are covered by insurance). The proposed budget, Application at p. 8, of $50,000 in revenue is balanced by projected costs and expenses of $14,790. Receipts to date are uncertain. Donations to date are not specified. Financing appears to include unspecified grants and financing via credit card. It should be noted that the expenses do not necessarily seem tied with real-world demands. The cost of an ambulance, even used, at $4,500, 2 seems unusually low, as is the budgeted amount of $500 for ambulance supplies and equipment. No provision is made in the submitted budget for ambulance insurance or worker s compensation insurance. The budget, it should be noted, is undated, Application at 2 The Applicant noted that it already has an ambulance, fully stocked, at the ready. Transcript at p. 17.

9 Page 8 p. 8, and was not the subject of very much if any elaboration by the Applicant, though the question was raised at the Public Hearing. Transcript at pp Communications, Organization and Administration Rockaway Volunteer has indicated it will secure MARS radios to communicate with FDNY EMS for mutual aid calls, and will obtain the necessary radio equipment. Application at p. 6. Community Support The Applicant, Rockaway Volunteer, submitted voluminous letters from members of the public in support of its efforts to run an ambulance service. These documents constitute a large part of the Exhibits submitted by Rockaway Volunteer. Application at Part 4. h%202016%20rockaway%20vac%20con.pdf Reallocation of Existing Resources The Applicant indicated that reallocating existing resources would be beneficial to the community in the Rockaways. However, the Applicant indicated that such systemic changes do not appear likely to occur, despite community support for more ambulance service within this community. Application at Part Application, Part 4: ay%20vac%20con.pdf

10 Page 9 A. Application for Determination of Public Need Under Article 30 of New York s Public Health Law, to determine whether a new ambulance service may begin service and operate or for an existing ambulance service to expand, the Applicant for the permission to operate or expand must establish public need for the new or expanded service. The process to determine the public need is largely delegated to local regional emergency service councils. New York City s Regional Emergency Services Council (NYC REMSCO) has for the most part adopted state suggestions for the determination of public need. A document entitled The Process for Determination of Public Need for a New Ambulance Service and/or Expansion of an Existing Ambulance Service is the guidepost for applicants, and it outlines the steps required under NY law and under NYC REMSCO practice for a Certificate of Need to be issued. This document is widely available both on-line 4 and through the offices of the NYC REMSCO. It was provided to the Applicant; the Applicant has demonstrated knowledge of the document, the process and the requirements. Many of the requirements did not generate much if any concern among the individuals in attendance or the undersigned. Therefore we will address selected portions of the process in greater or lesser depth as the circumstances herein require. 4

11 Page 10 B. Public Hearing of April 21, 2016 A public hearing was conducted at 475 Riverside Drive, New York, New York beginning at 5:00 pm on the question of whether there was public need to establish an ambulance service by Rockaway Volunteer. C. Scope of Hearing According to New York State Department of Health, Bureau of Emergency Medical Services, Policy 93-10: EMS Service Operating Authority Approvals 5, page 3, defines Public Need as, The demonstrated absence, reduced availability or an inadequate level of care in ambulance or emergency medical service available to a geographical area which is not readily correctable through reallocation or improvement of existing resources. Among the variables that are to be considered in determining whether public need exists are Geography Population - size, density, projections Level of Care - existing, availability, need for Quality, reliability and response of existing services Type of Service - emergency, non-emergency Special need - air, industrial, facility, special population, community identified need Existing service effectiveness, cost and operational 5

12 Page 11 Other locally defined factors D. Burden of Proof and Submissions In this process, the Applicant bears the burden of proof for the demonstration of public need and is responsible to respond to and/or provide data for all requirements and criteria stated in this policy. The Applicant must complete, submit, and affirm before a Notary Public the required forms, attachments, endorsements, evidence and other supporting and explanatory material the Applicant wishes the Council to consider. E. Competency and Fitness Each Applicant shall attest that its owners, directors and officers have the requisite competency and fitness. Under Section 3005(8) of the New York Public Health Law, competent refers to the level of prior experience and high level of care a proposed operator has demonstrated in one or more of a number of enumerated positions with an ambulance service in the past 10 years. The fitness required under Public Health Law 3005(8) refers to the lack of convictions by the owners, operators and senior management of certain specified crimes. The Applicant asserts that the entity and its key personnel and management meet the competency and fitness requirements. See Application Part Application, Part 2: 016%20Rockaway%20VAC%20CON.pdf

13 Page 12 F. Overview of Hearing Focus on Discerning and Understanding New York State law and local procedures require public hearings to provide input and information on the bona fides of the application for a certificate of need. The public hearing on this application was held on Thursday April 21, 2016 at a public space within the building which houses the NYC REMSCO offices. The hearing was conducted in a spirit of openness, transparency and fairness. The goal was to elicit the key points of the Applicant s proposal, as well as to maximize the opportunity for opponents and members of the community to test and comment on the application. See Transcript at pp The undersigned hearing officer was joined by several members of the NYC REMSCO Ambulance Committee, including James Downey and Martin Grillo. Several staff members of NYC REMSCO were present, including the Co-Executive Directors, Nancy Benedetto and Marie Diglio. The Applicant, Rockaway Volunteer, was represented by team of several individuals, including Ronnie Murchinson, EMT- B, the Applicant s leader. Mr. Murchinson discussed the key elements of his organization s application, as has been previously discussed and examined in this report. Mr. Murchinson was largely direct and clear in his responses, and spoke of the establishment of this organization in an empassioned manner.

14 Page 13 G. Ambulance Need Several concerns were raised about the lack of documented shortfall of ambulance service. The consortium of health care and ambulance providers represented by Mr. Dinerstein spoke at length about whether there was in fact a shortfall of ambulance service. In essence, Mr. Dinerstein pointed out repeatedly that there is no documented evidence of ambulance shortfalls in the Rockaways, at least no evidence backed by statistics and data. Indeed, the reliance on anecdotal evidence, even by the members of the community who testified at the hearing, Transcript at pp , and incidents related by Mr. Murchinson, were not of the sort that can be relied upon as de jure certain evidence of ambulance shortfall. The analysis and the balancing of facts and burdens continues below. Analysis of Establishment of Need The central focus of this process is to determine whether the Applicant has demonstrated whether it has proved the need for expanded ambulance service. While the process requires that need be established, there is no overall determinative encompassing standard for measuring and assessing the need. Rather, a series of factors can be examined, including local factors. The factors are varied, ranging from geography; population size, density and projections; the level of care that

15 Page 14 exists or is sought; the quality, reliability and response of existing services; the type of services to be provided; special needs and local factors. Combined, the evidence that can be assessed should allow the Ambulance Committee to make a holistic determination on the totality of the evidence. No one factor or group of factors is determinative and the Ambulance Committee should be free to give its own weight to the factors discussed herein. This Report, however, will attempt to review the evidence that was presented in a comprehensive manner, giving balance to individualized factors pertinent to the Applicant and the community, as well as to general global concerns of the health care system of today. The overarching question is whether the Applicant has met its burden of proving need. The question of need is paramount here, and must be distinguished from want or desire. 7 Very few people would not want more ambulance services and coverage to be available in their neighborhoods. Ambulances provide the skilled individuals, the technology and the means to save lives that might otherwise perish, shortened or be endangered due to illness, disease or trauma. But need is of a higher order, indicating basic minimum standards without which it would not be possible to proceed. 7 The psychologist Abraham Maslow is known for developing a structure to organize and differentiate between human elemental needs at a basic level, and higher order wants and aspirations at a more advanced and developed level. Maslow s Hierarchy of Needs is often understood to mean that needs must be satisfied before wants. See e.g.

16 Page 15 The issue before the Ambulance Committee is whether without the Applicant s new expansion of a volunteer ambulance service within a large section of the Rockaway peninsula that residents, visitors and others within that community might be missing essential, mandatory and required medical services. Geography, Population size, Density and Projections Rockaway Volunteer s proposal to service the residents and visitors to the Rockaways comes out of a perceived sense of need. Indeed, as noted, the community is vulnerable to the elements. The Atlantic Ocean is within short distance of many of the residents homes. In fact, proximity to the ocean is no doubt a draw to many of those residents, and the Atlantic is the focus of the many visitors who come each summer from throughout our City to cool and relax in the sun, sand and shore. Yet the Atlantic poses threats to those individuals. The Atlantic s undertow and rip-tides take the lives of unprepared or unskilled swimmers every year. The threat of storm surges, hurricanes and other weather anomalies is no longer hypothetical, but, post-sandy, all too real. The Rockaways are geographically unique in New York City vis-à-vis their isolation. The Rockaway communities are low-lying, prone to flooding, and can then be readily isolated from northerly parts of Queens and Brooklyn. Medically Underserved Communities The Applicant proposes that its administration of pre-

17 Page 16 hospital care will alleviate the shortage and shortfall of existing ambulance service. Though the Applicant cites anecdotal incidents and events, these cannot be readily dismissed. Lack of statistics cannot be laid as a deficiency of the Application. Rather New York City does not currently break out its existing medical and ambulance service details in such a particularized way as to view the Rockaways as a slice of Queens. Rather, data for the entire borough is available. This data is not enlightening about the particulars of the isolated Rockaway community. The Applicant, it must be noted and remembered, is not establishing a for-profit service. Rather, it seeks to help in a form of community development, and remedy what the Applicant sees as a need, a shortfall, an exigency as yet unmet. Credence should be given to the members of the community who support this endeavor, such as those who worry about the prospect of delayed ambulance response just when lives hang in the balance. Level of Care That Exists or is Sought The Applicant s level of care is unaddressed, but efforts seem to have been made to gather professionals and train them to an appropriate level. Quality, Reliability and Response of Existing Services - Ambulance Response Time The Applicant presented anecdotal evidence of both an

18 Page 17 overall slow response time within Rockaways as well as its prospects for providing more responsive medical care. Lack of data, as the objectants, such as Mr. Dinerstein, have pointed out, is concerning. On its own, this is not a determinative factor. And the prospect of faster responses is also not by itself determinative. If it were so, all that would be required to satisfy the need requirement would be to have faster response times. However, combined with the geographical isolation, the reallocation of resources from mainland Queens could be very time-costly, which could translate into poorer medical outcomes, possibly even death or permanent injury. Nature of Applicant s Request The Applicant s request for a new service is a modest one. It is limited in scope, and in financial capital. That poses challenges on one hand if the Applicant does not have the financial and operational capital to run and maintain their service in an ongoing manner. The Ambulance Committee should look to this factor. No one wants to see fail a service that has just begun. Are sufficient structures in place to ensure the ongoing nature of this prospective service? Would there be a mutual aid offered by other volunteer services willing to partner with Rockaway Volunteer to help as it opens, develops organizational structures and grows into maturity and sufficiency? The Ambulance Committee should consider the well-meaning

19 Page 18 if overly ambitious proposal, and determine whether the goal set out by the Applicant is indeed attainable. Focus should be given to the financial ability of this organization, as it does not yet seem to have the financial and organizational structures in place to make the project an ongoing and viable enterprise. Summary and Recommendation The Applicant, Rockaway Volunteer, has the burden of proving the need to establish a new ambulance service. As has been discussed, need must be distinguished from the mere desire to expand services. The question of need can only be determined when all circumstances are considered. The Applicant seeks to have NYC REMSCO grant it authority to operate in an area that is physically removed and isolated from much of New York City, a community that can be left at the mercy of storms, oceans and nature s fury, territory five times its current area, while providing only a minimal expansion of ambulance service. Evidence of ambulance delays are anecdotal and not determinative. Yet the overall dynamic tends to show a community that could be at serious risk for extended periods of time in the event of even moderate calamities. Day-to-day care is also fostered by the granting of the Certificate of Need. Community-building and enhancing young people s skills are also likely results if the Ambulance Committee approves the Application. The Rockaway Volunteer ambulance squad s financial and capital plans, however, seem less than fully fleshed out,

20 Page 19 placing the viability of this organization s well-meaning mission at some risk of eventual failure. Yet the author and playwright T.S. Eliot dismisses such fears: Only those who will risk going too far can possibly find out how far one can go. This is not a readily clear decision. I recommend that the Ambulance Committee determine its satisfaction with the financial and organizational status of Rockaway Volunteer. Once that decision is made, it may continue to reach the decision that I propose that there is sufficient community need for enhanced and extended ambulance service. Once both decisions are affirmatively reached, the Ambulance Committee should then grant the requested certificate of need based upon the totality of the evidence and circumstances presented by the Applicant, Rockaway Volunteer. Respectfully Submitted, /s/ Frank J. Schorn Hearing Officer on behalf of The Regional Emergency Medical Services Council of New York City, Inc. Frank J. Schorn, Esq. Attorney at Law th Street Glendale, New York (917) frank.schorn@gmail.com Dated: June 1, 2016