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Jeffrey Meyerson (#022600)
The Meyerson Law Firm, PLC
2555 East Camelback Road, Suite 140
Phoenix, Arizona 85016
Telephone: (480) 305-0974
Facsimile: (602) 997-0350
E-mail: [email protected]
Attorney for Hellsgate Fire District
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
In the Matter of:
HELLSGATE FIRE DISTRICT dba Rim
Country Fire and Medical Service
Applicant.
Docket No. 2017A-EMS-0006-DHS
(EMS No. 4163)
APPLICANT’S RESPONSE TO
INTERVENOR’S PROPOSED
FACTS, CONCLUSIONS OF LAW
AND CLOSING ARGUMENT
(Assigned to the Honorable Thomas
Shedden)
Hellsgate Fire District dba Rim Country Fire and Medical Service (“Applicant”)
hereby responds to the Proposed Finding of Fact, Conclusions of Law and separate
Closing Argument of R/M Arizona Holdings, Inc. dba Life Line (holder of CON No. 58)
(“Intervenor”).
Intervenor’s combined filing of over 100 pages relies almost exclusively on
incomplete testimony, testimony and evidence that is conveniently taken out of context, or
evidence and testimony that do not exist at all. The filings are replete with self-serving
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inferences and conclusions, many of which are presented as facts and inappropriately
included in Intervenor’s Proposed Facts. Rather than summarily classify Intervenor’s
Proposed Facts as false and misleading, Applicant is compelled to point out and explain
every false and misleading statement included in that filing. Additional and more detailed
arguments will be included in Applicant’s response to Intervenor’s Closing Argument
below or were already included in Applicant’s previously filed Findings of Act and
Conclusions of Law (“Findings of Fact”). Citation will be provided for clarity or where
not already included in the parties’ respective Findings of Fact.
A. CHIEF BATHKE TESTIMONY
1. No experience managing or operating an ambulance transport service is
included on Chief Bathke’s resume. Section 11 Paragraph C.
Misleading. As noted by Intervenor, Chief Bathke’s experience includes
“writing operational plans and putting an ALS system in service; getting the
billing…computerized…through third party companies; making sure that the ambulances
are meeting DHS standards; making sure folks are properly trained.” See Section 11
Paragraph C of Intervenor’s Proposed Facts. Intervenor’s argument that Chief Bathke has
no experience with an ambulance system rings hollow when you read the detailed
involvement he had in most of the necessary aspects of running an ambulance system1.
Additional information is also provided below in Applicant’s response to Intervenor’s
Closing Argument and in Applicant’s Findings of Fact.
2. “HGFD also relies upon a draft Intergovernmental Agreement
(“IGA”), HGFD-25, in support of its Application.”
Misleading. Applicant’s CON application is not dependent on the IGA or
the involvement of any other regional providers2. The IGA showed the local involvement
and support that Hellsgate received from the local fire chiefs throughout the CON process.
3. “HGFD’s first reason supporting its Application is ‘consistency of 1 HGFD Exhibit 27a.
2 Bathke Testimony p.76:4-6.
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service’, defined as a consistent response model, ‘to always know you’ve got that
paramedic unit coming,…” Section 11 Paragraph G of Intervenor’s Proposed Facts.
Mischaracterized. The non-prioritized dispatch system in place in the
proposed service area makes staffing a paramedic on an ambulance more important since
all calls are treated as ALS prior to arrival at the scene3. Chief Bathke was addressing the
staffing issues experienced by Intervenor as evidenced by the fact that Applicant was
forced to send a paramedic in with an Intervenor ambulance on 29% of the 9-1-1
transports from within the Hellsgate Fire District boundaries4.
4. “The second reason offered to support HGFD’s Application was ‘a
higher level of care’, which relates to ‘continuity of care’. Section 11
Paragraph H of Intervenor’s Proposed Facts.
Misleading. It is common sense that an increase in the number of transfers
of care increases the likelihood of miscommunication. Chief Bathke tried to simplify it
for Intervenor’s counsel by likening it to the classic “telephone” children’s game5. The
suggestion was offered for the simple proposition that information gets misinterpreted the
more times it must be passed on.
5. “If HGFD receives a CON, even in its fire district First Responders will
transfer care to ambulance transport employees.” Section 11
Paragraph J of Intervenor’s Proposed Facts.
False. This is simply not supported by any of evidence or testimony from
the hearing. In fact, Chief Bathke testified that the paramedic that is present with the First
Responder vehicle would ride in with the ambulance to improve the continuity of care6.
6. “The next reason for HGFD’s CON Application is ‘better service.’ This
is based upon HGFD’s contention that it will provide faster responses,
3 Id. at 165:21-25.
4 Id. at p.175:6-22.
5 Id. at p.172:15-21.
6 Id. at p. 96:17-24.
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which involves comparing HGFD’s proposed CON response fractiles to
LLA’s existing certificated response fractiles, to then propose HGFD
will be ‘faster’ in three of the four fractiles, as supported by Applicant’s
‘circle maps.’ Section 11 Paragraph L of Intervenor’s Proposed Facts.
Misleading. The “better service” that will be provided by Applicant is
based on far more than simply faster responses. And to be clear, the faster responses
included in its application and shown on the “circle maps” are based on LLA’s response
times, drive time polygons developed and reviewed by Robb Beery, Applicant’s multi-
station model and the availability of at least one additional staffed ambulance compared to
CON 58 in 2015.
7. “All that HGFD’s ‘circle’ maps show is that rate times time equals
distance” Section 11 Paragraph N of Intervenor’s Proposed Facts.
False. The circle maps show that a multiple location staging model with
flexibility to house ambulances where responses are needed results in a better coverage
area than the one station model currently employed by Intervenor. The maps are a simple
way to visually see the better response model. The maps were not meant to suggest that
actual response times would be exactly as stated on those maps7. It is interesting to note
that John Valentine testified that AMR is also evaluating a multi-station model for CON
58 but was waiting until resolution of this CON process8.
8. “Despite acknowledging that the majority of transports in its proposed
service area are in Payson, Chief Bathke contended scattering
ambulance stations throughout its service area would shorten
ambulance responses, apparently offering this as a superior approach
to LLA’s use of one station in Payson.” Section 11 Paragraph O of
Intervenor’s Proposed Facts.
7 Beery Testimony p.611-613.
8 See Valentine Testimony p.1126:12-19.
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Misleading. Intervenor fails to acknowledge that multiple stations do not
mean that at any time, an ambulance must be stationed at each station. The multiple
station approach allows Applicant to be flexible in its distribution of ambulances to best
meet the needs of the CON residents and the call volume and location.
9. Adding the ambulance transports “will place a much greater demand
on HGFD’s resources. Its employees will also travel further distances
to get to calls, as the service area proposed is much larger than HGFD’s
boundaries. Those employees will be on calls (out of service) longer
than they have been historically.” Section 11 Paragraph P of
Intervenor’s Proposed Facts
Irrelevant. Applicant is fully aware of the additional service that goes along
with the proposed CON. Its application and staffing model is designed to handle the
increased demand and longer travel distances. As compared to Intervenor, Applicant will
have at least one additional staffed ambulance to handle demand and won’t have to rely
on Maricopa Ambulances 1.5 times a day to supplement its CON9.
10. “HGFD only looked at its own time on task (as an EMS First
Responder, within its fire district).” Section 11 Paragraph Q of
Intervenor’s Proposed Facts.
Misleading. The testimony from Chief Bathke shows that Applicant
considered historic weather conditions, system demand, and other such factors such as call
volume10
. With respect to “drive times” (as opposed to time on task), it reviewed its own
data because it did not have access to Intervenor’s detailed call data.
11. “The Chief is unaware of how Life Line is dispatched, what additional
information it might receive (beyond what HGFD receives as a First
Responder), which could include information making it appropriate to
9 Valentine Testimony p.1170:16-21; Bathke Testimony p.143:20-22.
10 Bathke Testimony p.366:8 – 367:8.
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send a BLS ambulance in lieu of an ALS ambulance.” Section 11
Paragraph R of Intervenor’s Proposed Facts.
Misleading. This suggestion is in direct contradiction to Chief Staub’s
testimony regarding the nature of the dispatch services provided by the Town of Payson.
It is irresponsible to suggest that Intervenor has information that would allow it to make
priority dispatch decisions without providing any evidence to contradict all of the
evidence suggesting otherwise. The fact is that Intevenor offered no evidence whatsoever
about access to information that would ever justify sending a BLS ambulance to a 9-1-1
call in CON 58.
12. “Chief Bathke backed away from the consensus he had stated to the
Bureau’s findings on HGFD’s proposed rates and charges, saying his
letter voices HGFD’s concurrence, but does not say HGFD agrees. This
called the Chief’s credibility into question.” Section 11 Paragraph U of
Intervenor’s Proposed Facts.
Misleading. Based on the initial Notice of Hearing as well as the Amended
Notice of Hearing, Chief Bathke reasonably believed that the Applicant would have the
opportunity to address the Proposed Rates and Charges and the Findings Letter at the
hearing. How else would the Director have the information to determine whether the
proposed charges or some other charges are appropriate if Applicant is granted a CON.
13. “Chief Bathke was unable to state how many full-time equivalent
employees (FTE) it will take HGFD to operate one ambulance 24/7.”
Section 11 Paragraph X of Intervenor’s Proposed Facts.
Misleading. In his testimony, Chief Bathke referred Intervenor’s counsel to
the actual ARCR filed with the Application and stated that he did not want to give her
incorrect numbers in his answer. He was not evasive and earlier testimony showed that he
was attempting to answer ARCR-based questions in good faith, but was repeatedly stating
that the questions were more appropriate for Dean Taylor11
. 11
Bathke Testimony p.192:10-19.
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14. “No written staffing models were part of HGFD’s Application or stated
to be available during the hearing.” Section 11 Paragraph Y of
Intervenor’s Proposed Facts.
False. The staffing model is included in Applicant’s ARCR. It sets forth
the number of staffed ambulances and the number of required FTEs.
15. “In discussing HGFD’s ARCR, Chief Bathke was unable to state how
many of the included employees would be from HGFD or from an
outside agency.” Section 11 Paragraph Z of Intervenor’s Proposed
Facts.
Misleading. The total number of employees is the same regardless of which
agency an employee comes from. The cost utilized in the ARCR was the highest rate for
the potential area partners (Town of Payson) to ensure costs were not understated. The
actual mix of employees, however, is impossible to know until Applicant is awarded a
CON and starts staffing12
.
16. “Chief Bathke has no idea how many additional employees HGFD will
need to hire to add 3,000 ambulance transports per year to its existing
duties.” Section 11 Paragraph CC of Intervenor’s Proposed Facts.
False. Chief Bathke did not testify that he did not have any idea how many
additional employees Applicant would need. His testimony was that it had its plan in its
ARCR and that when it is awarded its CON, then he will know exactly how many they
will end up hiring13
.
17. “This de minimus staffing does not leave much room for using these
employees on ambulances. HGFD’s eleven full-time employees and
reserve employees fight structure fires, function as EMS First
Responders, staff a seasonal wild land (fire) division, do hazardous
material calls, provide ‘special service’ calls (such as cats in trees and 12
Id. at p.375:12 – 376:23. 13
Id.
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snakes) and otherwise provide ‘all hazard’ service.” Section 11
Paragraph DD of Intervenor’s Proposed Facts.
Misleading. The fire staffing and ambulance staffing are two separate tasks.
While on shift, fire employees and ambulance employees will be dedicated to the service
they are on during that shift. The de minimus staffing model on the fire operations
actually leaves more room to use those employees on ambulances. The additional staffing
proposed by Applicant is set forth in its ARCR and application. The suggestion that the
other services Applicant provides will draw Applicant away from the ambulance services
ignores the fact that the additional staffing will be primarily for ambulance services. The
staffing is sufficient and the time to get fully operational will give Applicant time to staff
appropriately14
.
18. “The Chief acknowledged there is a difference between what First
Responders do versus ambulance employees.” Section 11 Paragraph
GG of Intevernor’s Proposed Findings.
Misleading and irrelevant. First, Intervenor asked this question in a very
confusing manner, likely intentionally, and it predictably takes up 6 pages of the
transcript15
. The point Intevenor’s counsel was trying to make is largely irrelevant. As
testified during the hearing, the ambulance and fire departments in the area share a lot of
employees and most have experience in doing both fire and ambulance transport.
Intervenor introduced no evidence suggesting that Applicant’s paramedics and other staff
are not as qualified as Intervenor’s paramedics and other staff.
19. “Chief Bathke did not know how many, of the 3,000 projected
transports HGFD proposes it will do during its first year of operation
will be IFT or convalescent transports.” Section 11 Paragraph JJ of
Intervenor’s Proposed Facts.
14
See DHS Ex.1. 15
Bathke Testimony p.203:2-209:6.
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False. This is a complete fabrication based on the testimony. In addition,
the ARCR clearly states the breakdown of the transports expected by Applicant16
.
20. “Chief Bathke characterized HGFD’s pro forma ARCR as a ‘worst case
scenario’ (taking all the transports in the event LLA left the area)…”
Section 11 Paragraph KK of Intervenor’s Proposed Facts.
Misleading. As testified to during the hearing, the sole purpose for
Applicant applying for the CON was improving patient care. Applicant believes that two
providers can survive in the area and that competition and choice would help drive
improved service. As a result, Intervenor leaving the area is in fact a “worst case
scenario” for patient care in Applicant’s opinion.
21. Chief Bathke “suggested LLA failed to come to his office for a meeting,
but was unable to provide any specifics regarding when this happened,
who the meeting was supposed to be with, etc. In contrast, LLA’s
representative, Glenn Kasprzyk, had very specific and contrary
information regarding this meeting.” Section 11 Paragraph KK of
Intervenor’s Proposed Facts.
False and irrelevant. The information provided by Mr. Kasprzyk did not
contradict Chief Bathke’s testimony. It is established that Mr. Kasprzyk believes that he
reached out to Chief Bathke in April 2016 and it was either cancelled or never finalized.
Thereafter, he attempted once to facilitate a meeting through Chief Staub. This is hardly a
whole-hearted attempt by Intervenor to reach out to Applicant.
22. “The HGFD governing board has not formally voted to approve HGFD
running an ambulance service operations at the more than $250,000
year loss that BEMS has calculated will occur.” Section 11 Paragraph
PP of Intervenor’s Proposed Facts.
16
See DHS Ex.1.
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False based on updated information. The approval occurred post-hearing on
December 21, 2016 as set forth in DHS’ Proposed Facts. As stated at the hearing,
Applicant does not agree with DHS’ findings regarding its financial results.
23. All financial information set forth in Section 11 Paragraphs QQ
through VV.
Misleading. Intervenor’s counsel provides no context for any of the
financial information she cites in these paragraphs. Testimony showed that Applicant has
added a new station and fire engine17
. Despite the alleged negative financial indicators
pointed out by Intervenor, Applicant remains financially healthy with a strong cash
balance and has not needed to access its $250,000 line of credit to cover the additional
costs associated with the added infrastructure.
24. “Chief Bathke was unable to state the 2010 or 2015 U.S. Census
population figures for Gila County. When asked to agree if it would
make sense, if one wanted to see population growth, to compare 2010 to
2015 instead of looking at earlier time periods (as HFDG did), Chief
Bathke was unwilling to agree. When 2010 is compared to 2015, Gila
County lost population during that five-year period.” Section 11
Paragraph EEE of Intervenor’s Proposed Facts.
Misleading. The “lost population” amounts to less than 300 people over
that five year period. And Chief Bathke would not agree that the five year period was a
good indicator because a five year period is hardly enough time for increases or decreases
in population to show a meaningful population trend, especially where a significant
economic downturn was experienced during the years in question.
25. “While mentioning IFTs out of Banner Payson Hospital as an area of
concern supporting HGFD’s CON Application, Chief Bathke agrees
that a certain number of the Level I trauma patients he mentioned will
17
Bathke Testimony p.464:16-19.
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be transported by air…” Section 11 Paragraph PPP of Intervenor’s
Proposed Facts.
Irrelevant. The evidence and testimony clearly showed that Intervenor had
used Maricopa County ambulances 368 times through August 2016, or 1.5 times a day on
average. While Intervenor would like to suggest that it was simply good mutual aid, its
own testimony shows that it had significant concern regarding the number of IFTs being
provided by Maricopa County ambulances.
26. “HGFD’s identification of incidents where LLA brought an ambulance
from a Maricopa County CON holder into CON No. 58 to assist with
IFTs was not offered as a criticism.” Section 11 Paragraph SSS of
Intervenor’s Proposed Facts.
Misleading. The specific testimony that Intervenor’s counsel referred to in
this section of testimony was not offered as a criticism. At that stage in the hearing, it was
simply an introduction of the evidence. There can be no mistake that the 368 IFTs
provided by Maricopa County ambulances was a strong criticism to Intervenor’s staffing
and lack of resources in CON 58 throughout the hearing process.
B. CHIEF STAUB TESTIMONY
1. “At the City Council meeting where Payson voted to not issue a letter
supporting HGFD’s CON Application, the Mayor observed that the
area does not generate enough calls to support two providers.” Section
12 Paragraph K of Intervenor’s Proposed Facts.
Irrelevant. It is unclear why the Payson Mayor’s thoughts on calls in the
area are offered as “fact” when he certainly was not and is not privy to any information
supporting his statement. The only conclusion that can be drawn is that it is included
exclusively because it supports Intervenor’s case. The Mayor was not a witness at the
hearing nor was he even present at the hearing at any time.
2. “A fairly significant incident occurring on November 5, 2016 (a fire at a
multiunit apartment complex, involving an explosion and nine patients)
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demonstrates the level of cooperation and resources LLA can provide
on short notice.” Section 12 Paragraph L of Intervenor’s Proposed
Facts.
Misleading. As it relates to Applicant’s CON application, this single
incident has little relevance. In that regard, it is important to note that that Intervenor
never stated that Applicant would have been unable to respond appropriately to that
incident through its own ambulances and mutual aid if awarded a CON. It is also of note
that the Town of Payson did not request the additional units from AMR and only required
two ambulances (the first two to show up) for patient transport18
.
3. “Since AMR took ownership of CON 58 at the very end of January
2016, additional resources have been added to the local system,
including at least one brand new ambulance.” Section 12 Paragraph N
of Intervenor’s Proposed Facts.
Misleading. Based exclusively on testimony from Intervenor’s witnesses
and no other evidence, it took Intervenor (or AMR) nine months to add meaningful
resources to the local system.
C. CHIEF MORRIS TESTIMONY
1. “Morris testified to verbal conversations with Banner Payson’s CEO,
whom he stated provided him with documentation of extended delays
(no such documentation was produced at hearing), which conversations
led him to begin exploring amendment of Pine-Strawberry’s CON to
add IFT authority. This occurred in July and August 2015, and did not
include any negative patient outcomes.” Section 13 Paragraph F of
Intervenor’s Proposed Facts.
Misleading. While the conversations between Chief Morris and the Banner
Payson CEO occurred in 2015, the suggested inference by Intervenor’s counsel is that the
18
Staub Testimony p.517:1-2.
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problem may have been solved when Intervenor took over CON 58. This proposition is
not supported by common sense or any data presented at the hearing. Maricopa County
ambulances conducted 214 IFTs from CON 58 in 2015 when the Banner CEO approached
Chief Morris. Through August 2016, the number of IFTs by Maricopa County
ambulances increased to 368. It is nonsensical to believe that the annual number of IFTs
by non-CON 58 ambulances more than doubled but the IFT issues were resolved.
Further, the suggestion that the IFTs did not include any negative patient outcomes is
simply false. The correct characterization of the evidence is that no evidence was offered
about negative patient outcomes.
2. “Chief Morris would not unequivocally state Pine-Strawberry would
enter into a written mutual aid agreement with Life Line”
Irrelevant. It is unclear how this fact has anything to do with Applicant’s
proposed CON.
D. ROBB BEERY TESTIMONY
For a discussion and response to Intervenor’s characterization of Mr. Beery’s
testimony, please see pages 6-8 of Applicant’s Findings of Fact.
E. AARON SAMS TESTIMONY
For a discussion and response to Intervenor’s characterization of Mr. Sam’s
testimony, please see pages 36-40 of Applicant’s Findings of Fact.
F. DEAN TAYLOR TESTIMONY
1. “Bad billing practices, changes in software, new employees, or other
billing changes can significantly decrease collections rates on a short
term basis. However, Taylor did not testify that he knows this is what
happened to CON No.58 after its 2012 ARCR.” Section 16 Paragraph
E of Intervenor’s Proposed Facts.
False. Dean Taylor testified about a change in billing procedures by the
CON 58 provider and then multiple sales of the CON from and after 201219
. 19
Taylor Testimony p. 749:13 – 751:1.
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2. “HGFD’s financial projections (ARCR) evidence the fact that HGFD
will need approximately $1.3 million of readily available cash during its
first six months of operations.” Section 16 Paragraph P of Intervenor’s
Proposed Facts.
Based on false assumptions. There is no suggestion that Intervenor will
immediately go from 0% of ambulance transports to 100% of the ambulance transports
overnight. While for application purposes, Applicant must outline a best guess for its
operational model, practically the amount of funds required in the first six months will be
significantly less than the amount offered by Intervenor during its testimony.
3. “Taylor cannot personally attest to HGFD’s financial condition/status.”
Section 16 Paragraph T of Intervenor’s Proposed Facts.
Misleading. Dean Taylor reviewed all of Applicant’s financials and
available credit and other information to allow him, based on his extensive experience, to
determine that Applicant is in a strong financial position and to prepare Applicant’s
ARCR. Intervenor’s inference that because Dean Taylor does not do Applicant’s
financial reconciliations or audits that the financial information provided to Mr. Taylor
was inaccurate or incomplete is not supported by any evidence or testimony.
G. ITHAN YANOFSKY TESTIMONY
1. “Mr. Yanofsky could not agree with Applicant’s counsel’s suggestion
that there should be Bureau concern if between January 1, 2016 and
August 31, 2016 CON No. 58 used non-CON No. 58 ambulances on
average 1-1/2 times per day. Yanofsky stated more information would
be required before he could opine and confirmed BEMSTS received no
complaints, that he is aware of, about this. He also did not agree this
would indicate a lack of adequate resources.” Section 17 Paragraph G
of Intervenor’s Proposed Facts.
False based on later testimony. At the time, Mr. Yanofsky’s testimony
carried some weight as it related to Applicant’s contention that the non-CON 58 IFTs
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were an issue showing a lack of staffing and resources. However, Intervenor’s own
testimony from John Valentine later confirmed that Intervenor itself recognized and
believed that it was understaffed and underresourced. Intervenor and Intervenor’s counsel
were very slippery on this subject throughout the hearing wanting to play it both ways
with multiple witnesses giving contradictory testimony. It was also misleading that
Intervenor suggested justifiable reasons for the non-CON 58 IFTs repeatedly until finally
admitting that the number of non-CON 58 IFTs was an issue resulting from inadequate
staffing and resources.
H. EDWARD RACHT, M.D. TESTIMONY
As stated in Applicant’s Findings of Fact, Dr. Racht has an impressive resume and
Applicant respects his work; however, his testimony about AMR programs and initiatives
is largely irrelevant since none of the programs and initiatives discussed during his
testimony were currently being implemented in CON 58. Nonetheless, for purposes of
outlining Intervenor’s misuse of Dr. Racht’s testimony, a few specific statements from
Intervenor’s Proposed Facts are included below.
1. “Because AMR is big – for example, delivering just under three babies
a day and transporting 4.4 million patients as of 2015 statistics, it has be
good.” Section 18 Paragraph F of Intervenor’s Proposed Facts.
False and misleading. First, the premise that AMR must be good because it
is big is simply not true. Applicant agrees that Dr. Racht said those words, but not in the
context being used by Intervenor in its Proposed Facts. Second, Dr. Racht was unable to
provide any information than any of the national programs and initiatives were actually
being implemented in CON 58.
2. “Dr. Racht detailed and offered examples of AMR’s efforts and actions
with regard to each of the ‘things that matter’ points of attention.”
Section 18 Paragraph I of Intervenor’s Proposed Facts.
Largely irrevelant. None of AMR’s efforts and actions provided as
examples during the hearing were directly tied to efforts within CON 58. The inference
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that AMR will do the same with CON 58 is irrelevant for purposes of Applicant’s CON
hearing. The statutes or regulations do not instruct the Director to determine what AMR
might do in the future to improve service and patient care in CON 58.
3. “The applicable literature indicates only approximately 10% of what
EMS responds to is an actual life-threatening emergency where patients
require acute intervention. The other 90% are not necessarily in that
time-dependent deterioration position. ‘Responding faster,’ including
with lights and sirens, carries an inherent risk of motor vehicle crashes.
EMS providers must be thoughtful and accountable to that risk. Not
every ambulance needs to immediately and rapidly get to a patient’s
side. If there are two possible choices for a response, and one is able to
arrive at the scene slightly faster than the other, speed may not be the
most important variable in evaluating which response would be ‘better’
for the patient. The medical expertise and resources that the
responding personnel have may be more critical.” Section 18
Paragraph N of Intervenor’s Proposed Facts.
Misleading. While no one can argue with this proposition generally, the
inference that Applicant “responding faster” must mean Applicant is “driving faster” is
not based on any testimony or evidence. Dr. Racht’s testimony that expertise and
resources is more critical is important to note given the testimony and evidence from
Intervenor’s own witnesses that it has had staffing and resource issues in CON 58. With
all other assumptions being equal, responding faster is better especially in a CON without
priority dispatching.
4. “In contrast to Chief Bathke’s testimony that his approach and
perception on management of sepsis is to use oxygen, an IV and patient
monitoring, Dr. Racht testified that if a patient is assessed as potentially
having sepsis, the healthcare system is immediately integrated so the
receiving entity can be prepared to rapidly draw blood cultures, assess
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what is going on with the patient, stabilize the patient and get the
patient the right antibiotics.” Section 18 Paragraph Q of Intervenor’s
Proposed Facts.
False conclusion based on actual testimony. The only thing that is clear
from the testimony is that Chief Bathke gave a more immediate EMS treatment-based
description of treating sepsis and Dr. Racht gave a more general description of the overall
treatment20
. In fact, Dr. Racht specifically stated that he was not criticizing Chief
Bathke’s approach to sepsis21
.
I. DOUG JONES TESTIMONY
1. “One cannot look at a past year, see that on average CON No. 58 looked
to another ambulance service provider X times per day and say the
system was not appropriately resourced. More information is
required.” Section 19 Paragraph J of Intervenor’s Proposed Facts.
Contradicted by later testimony. John Valentine, who is much more
familiar with CON 58’s operations than Mr. Jones contradicted Mr. Jones’ testimony and
stated that he and his team recognized that the IFTs being provided by Maricopa County
ambulances were a problem that required additional staffing and resources.
2. “From reviewing HGFD’s website, for fiscal year 2014/2015, its turnout
time (out of chute time) on average was 1 minute 40 seconds. CON No.
58’s, over the prior year, is in a 40 second range. Section 19 Paragraph
L of Intervenor’s Proposed Facts.
False. HGFD’s turnout times are not found anywhere on its website.
Intervenor had the opportunity to present this information as an exhibit in the hearing but
did not because the information simply does not exist.
20
Bathke Testimony p.415-9-25; Racht Testimony p.886:1 – 887:12. 21
Racht Testimony p.919:4-9.
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J. ALAN MAGUIRE TESTIMONY
Much like Dr. Racht’s testimony, Mr. Maguire did not specifically address
Applicant’s ability to operate the proposed CON. Please see Applicant’s Findings of Fact
pages 33-35 for a further discussion of Mr. Maguire’s testimony.
K. RICHARD BARTUS TESTIMONY
All of Mr. Bartus’ testimony regarding the financial results of operations are based
on assumptions related to CON 58’s 2015 ARCR. Later testimony showed that Intervenor
did not truly start operating CON 58 until March 2016 and that Mr. Bartus had no first-
hand knowledge of how the system was operated in 2015. For more information related
to the financial information offered by Mr. Bartus, please see Applicant’s Findings of Fact
pages 33-40.
L. JOHN VALENTINE TESTIMONY
1. “Use of Maricopa ambulances for IFT calls does not necessarily involve
a long arrival time. Available information (prescheduled appointments,
a cluster of IFTs, significant use of the 911 system, etc.) will cause LLA
to deploy Maricopa County units to standby at the Payson Hospital.
This could mean there would be zero wait time.” Section 23 Paragraph
R of Intervenor’s Proposed Facts.
Misleading. Intervenor used this tactic repeatedly during the hearing.
Intervenor provided zero concrete evidence to refute Applicant’s claims about delay and
resource issues related to the inordinately high number of non-CON 58 IFTs. It suggested
that it had nothing to do with staffing and resource issues throughout both Applicant’s
case in chief and its own until finally John Valentine admitted that it was a problem and
that it needed to be addressed.
2. “The fact of AMR Maricopa (CON No. 136) overlapping CON No. 58 in
the northeast corner of Maricopa County does not address the concern
of HGFD displacing LLA and causing that particular area to be
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underresourced.” Section 23 Paragraph DD of Intervenor’s Proposed
Facts
Ignores previous testimony. Chief Bathke testified that Applicant would
respond into the non-overlapping areas of the proposed CON and CON 58 if Intervenor
determines not to continue service in CON 58. Applicant currently provides the coverage
to areas outside its fire district boundaries and would work with DHS to ensure that those
areas continue to have access to the necessary resources.
3. John Valentine “related the financial difficulties suffered by one such
fire district (Lake Mohave Ranchos)….Another fire district (Bullhead
City) has reduced its availability to do IFTs after a certain time at night
(absent emergencies)….Two additional fire districts likewise have a
lack of resources to take nighttime IFTs…Section 23 Paragraph EE of
Intervenor’s Proposed Facts.
Irrelevant. Mr. Valentine made no attempt to connect the financial and
operational health of any of those fire districts to Applicant. Two examples mentioned by
Mr. Valentine were not even specifically identified. See also summary of Glenn
Kasprzyk testimony Section 24 Paragraph C of Intervenor’s Proposed Facts.
M. INTERVENOR’S CLOSING ARGUMENT
As can be seen from the dozens of statements set forth above, the foundation of
Intervenor’s arguments against Applicant’s proposed CON is based on faulty
assumptions, misleading testimony and conclusions that are not based on any testimony at
all. This list does not include any duplicative testimony offered by Intervenor in its
Proposed Facts.
With those issues as the backdrop, Applicant’s response to Intervenor’s Closing
Argument is set forth below. From Intervenor’s Closing Argument, it appears that
Intervenor did not feel it necessary to address anything other than a few “fit and proper”
and “public necessity” factors. As outlined in Applicant’s Findings of Fact, each of those
factors contain many subparts, and each were adequately addressed in the hearing.
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1. Public Necessity
Intervenor makes blanket assertions about Applicant not meeting the required
standards and supports those assertions with incomplete references to testimony and
conclusory summaries that mischaracterize the actual testimony. It mentions the
numerous analyses necessary for a determination of “public necessity” but only addresses
the ones outlined below.
a. Response Times
It is a little confusing to understand Intervenor’s first argument about Applicant’s
response time fractiles. Intervenor never offered any evidence suggesting that Applicant’s
response time proposals were unrealistic. It only addressed the maps that Applicant’s
used to visually represent the response time ability as it compares to Intervenor. As noted
by Intervenor, the Intervenor’s predecessor met its response time requirements in 2015.
As further shown by testimony, that provider met its response times with two, or a
maximum of three, staffed ambulances. Based on the multi-station model, the availability
of at least one additional ambulance, and Robb Beery’s review and approval of the
response times proposed by Applicant, the response times proposed by Applicant are
reasonable and attainable.
b. Current Demographics and Comparative Size
Intervenor continues its attack claiming that Applicant did not meet the
requirements of A.A.C. R9-25-902(A)(2) because it did not address the current population
demographics or the square mileage of the proposed service area as compared to its
existing fire district. First, Applicant addressed the current population demographics both
through testimony and through its application and ARCR. As for the size comparison,
there is nothing contained in the statutes or regulations that requires Applicant to do a size
comparison and include it in its application. The staffing model proposed by Applicant in
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its ARCR addresses the additional coverage required by the proposed CON boundaries.
Applicant stressed throughout the hearing that it will have an additional ambulance staffed
24/7 (without sacrificing its fire service) compared to the previous CON 58 provider in
2015 (and Intervenor through 2016). The additional resources will have a positive impact
on coverage and response times throughout the proposed CON.
c. Multi-Station Model
Intervenor next argues that a multi-station model will not improve response times.
This ignores the flexibility built into the model. The ambulances will have possible
staging areas at several locations but actual staging will be based on call volume and
location. The inflexibility of the CON process does not reflect the reality and flexibility
available to Applicant and the innovation that Chief Bathke has shown as the Chief of the
Hellsgate Fire District.
Also, Intervenor’s presumption that Intervenor’s witnesses are more
knowledgeable than Chief Bathke and the other witnesses that testified about Applicant’s
proposed response times is also misplaced and unproven by any evidence or testimony,
including the various resumes for witnesses for both sides.
d. Need for IFT Provider/Substandard Performance
A person must suspend any notion of common sense to accept Intervenor’s
argument that the non-CON 58 IFTs did impact patient care, response times, or
demonstrate a lack of resources (both staffing and ambulances). In 2015, Intervenor’s
predecessor relied on Maricopa County ambulances to provide 214 inter-facility transports
from CON 5822
. Through August 2016, Intervenor was on pace to have a Maricopa
County ambulance handle 552 inter-facility transports for the year. As testified to by
Chief Morris, Banner Payson Medical Center approached him in 2015 requesting that he
22
Applicant Ex. 15a.
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amend Pine-Strawberry’s CON to include inter-facility transports so that the hospital
could address long delays in inter-facility transports23
. Applicant recognizes that the
hospital’s request came in 2015; however, it finds it is highly unlikely that any of those
issues have been adequately addressed in light of the fact that Intervenor was on pace to
use Maricopa County ambulances for inter-facility transports more than twice as often in
2016 as its predecessor used them in 2015.
e. Rural and Wilderness Areas
Intervenor next points to the rural and wilderness areas adjacent to the proposed
CON. While there are two specific regions of concern, Chief Bathke testified that
Applicant would respond to those areas if Intervenor determined not to continue service to
CON 58. He further testified that he would work with DHS and seek an amendment to its
CON if appropriate. Intervenor’s suggestion that Chief Bathke might not care about the
adjacent areas rings hollow in light of the fact that Applicant already responds out of its
area for fire and EMS services. The staffing and available resources as set forth in its
ARCR would enable Applicant to respond with the same or better resources, under the
same standard of care, and within the same time frames as Intervenor.
2. Fit and Proper
a. Expertise
Intervenor’s assertion that Applicant did not demonstrate it has the expertise to run
the proposed CON is simply false. Chief Bathke has been involved in ALS/BLS
ambulance services, including day-to-day operations as well as preparing feasibility
studies and operational plans to get ALS ambulance systems up and running. Applicant’s
employees are involved in several public safety activities, including fighting structure
fires, functioning as EMS First Responders, staffing a seasonal wild land (fire) division,
doing hazardous material calls, providing “special service” calls and otherwise providing
“all hazard” service. A vast majority of its full-time employees are certified paramedics.
23
Morris Testimony p.552:8-16..
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Applicant has been and continues to be innovative and willing to work with public
and private partners locally and statewide in the interest of better patient care. HALO
211 is a public-private partnership and a cutting edge program in Arizona. PHI Air
Medical HALO 211 is one of only three in the State of Arizona and is used in more than
50% of the Payson Medical Center helicopter dispatches and is staffed in part by
Applicant’s employees. Contrary to Intervenor’s contentions, Applicant already has
experience in the clinical and operational aspects of a dispatch system that covers more
than its fire district.
In addition, Applicant identified and has had detailed discussions with Pine-
Strawberry Chief Gary Morris about assisting with the management of the ongoing
operations in the CON. Chief Morris has a long history of starting CON operations and
providing management for CONs and his insight will ensure a smooth transition into
ambulance services.
The notion that Applicant subscribes to a “grab and run” philosophy is also wrong.
The testimony at issue was based on the fact that all things being equal, better response
times are better for patient care. Intervenor points out the differences in the answers that
Chief Bathke and Dr. Racht gave to a question about the treatment of sepsis. If you
actually read the testimony, there is no clear distinction between their two answers and
certainly not enough to suggest that Dr. Racht was right and Chief Bathke was wrong. To
suggest otherwise is irresponsible.
b. Management
Intervenor falsely alleges that Applicant has not indicated who will run the day to
day operations of the ambulance service. Chief Bathke testified “I, as the Fire Chief,
oversee and manage all the operations under the auspice of Hellsgate, and I report to our
Fire Board chairman, who has the fiduciary obligations24
.” He indicated that Chief Morris
would be assisting Applicant in the overall management but that Chief Bathke was the
24
Bathke Testimony, p.195:3 – 196:8.
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day-to-day operator. Intervenor’s counsel tried repeatedly to confuse the issue about day-
to-day management in an effort to apparently include the point in her Closing Argument,
but the testimony simply does not support her contentions on behalf of Intervenor. It is
unfortunate that Applicant need spend even one paragraph refuting false statements.
c. Reliance on EMS Advisors
Intervenor follows with another irrelevant attack, this time on EMS Advisors,
Applicant’s consultant in the CON process. Intervenor attempted to suggest that
Applicant should not be awarded a CON because its advisors were involved at some point
in management of Rural/Metro (Intervenor’s predecessor). It is confusing how the former
employment of Applicant’s consultants has anything to do with whether it should be
awarded a CON.
d. Fiscal Competence
Intervenor predictably attacks Applicant’s ability to sustain its ambulance
operations. Chief Bathke testified that Applicant has approximately $800,000 in its
capital reserve and a $250,000 line of credit with no outstanding balance to fund its initial
start up costs as well as its ongoing operations.
Intervenor brings up Applicant’s tax base as a concern when it is actually an area
that shows Applicant’s financial strength. During the economic downturn, there was a
significant decrease in Applicant’s tax base that resulted in its tax revenue being cut in
half. Facing such a difficult situation, Applicant still didn’t draw on its line of credit.
Applicant also decided that it did not need to increase its tax rate when presented with the
opportunity to raise it to $3.50 for five years. Based on building permits, a strong
indicator of tax base, tax revenue is projected to increase in the next 18 to 24 months as
applications for building permits have increased since 2014.
As for the financial evidence offered by Intervenor and its witness Richard Bartus,
it is all based on the DHS recommended rates and charges and the 2015 ARCR for CON
58. Applicant has already stated its fundamental disagreement with the rates and charges.
With respect to the 2015 ARCR, Mr. Bartus admitted that he did not have any knowledge
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of the actual operations that resulted in that filing to know whether those results are
representative of what a healthy provider might accomplish.
e. Integrity.
On a fundamental and objective basis, “integrity” means that the Applicant seeking
to obtain a CON and its key personnel have never (a) been convicted of a felony or a
misdemeanor involving moral turpitude, (b) had a license or certificate of necessity for a
ground ambulance service suspended or revoked by any state or political subdivision, and
(c) operated a ground ambulance service without the required certificate or licensure in
this or any other state25
.
Applicant confirmed the information in its CON application that its management
and key personnel meet these requirements. Chief Bathke signed that statement on behalf
of Applicant. Applicant is a positive influence in the community and has patient care as
its primary motive for applying for the CON. Applicant has the support of many of the
local fire departments as well. As a result of the above and the other evidence and
testimony introduced at the hearing, it is clear that Applicant and its personnel have the
requisite integrity – both personally and professionally - to provide ambulance service to
the proposed service area.
Intervenor’s attempts to attack Chief Bathke’s integrity is based strictly on
circumstances involved in the complex CON process. Intervenor offered no testimony to
suggest that Chief Bathke or any other key employee has had any professional or personal
issues that should be of concern. Intervenor raises the issue of arguing the rates and
charges as an indicator that you can’t trust Chief Bathke’s word. The fact is that Chief
Bathke’s understanding of the hearing process was that he could argue the rates and
charges at the hearing as set forth in the Hearing Notice and Amended Hearing Notice.
Further, pointing to Chief Bathke’s characterization of Intervenor leaving the area as a
25
A.A.C. R9-25-902(A)(2)(g).
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“worst case scenario” is similarly misplaced. That statement is predicated on Chief
Bathke’s desire for improved patient care and his fervent belief that a two provider system
is viable and best for patient care.
N. CONCLUSION
Intervenor’s Proposed Facts and Closing Argument are based on false assumptions
and mischaracterized or non-existent testimony. Intervenor’s Proposed Facts and Closing
Argument must be viewed in light of these issues. Applicant is concerned that
Intervenor’s objection is being evaluated relative to what they have done compared to the
previous provider rather than what should be happening in the CON now. It is not in the
best interest of the public to give Intervenor a “grace period” in light of the remaining
issues existing in CON 58. Applicant has proposed a viable model that more than meets
the needs of the proposed CON. Applicant’s Findings of Fact should be adopted by this
office, and this office is requested to recommend to the Director that Applicant’s CON
should be granted.
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RESPECTFULLY SUBMITTED this 7th day of March, 2017.
By /s/Jeffrey Meyerson
Jeffrey Meyerson
The Meyerson Law Firm, PLC
2555 E. Camelback Road, Ste. 140
Phoenix, Arizona 85016
Attorneys for Applicant
ORIGINAL filed using the OAH
electronic document filing system
https://portal.azoah.com/oedf this
7th day of March, 2017, with
copies provided to all parties on
the approved mailing list this 7th
day of March, 2017, by posting
through the designated OAH
website at
https://portal.azoah.com/oedf/doc
uments/2017A-EMS- 0006-
DHS/index.html.
By: /s/ Jeffrey Meyerson
