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The Questions and The Answers 11-14

11- 'At will employment'

Q:
Does at will employment relieve an employer of due process responsibilities for discipline?

A:
The term "at will" is used to describe an employee's relationship with their employer. An individual employed "at will" can have their employment terminated without the requirement for the employer to demonstrate that employment was terminated "for cause", i.e., the requirement to show that an employee is guilty of misconduct. If an employer must eliminate two staff positions, they may select any two individuals, provided they can show that the employee(s) released under these conditions were not subject to discrimination (such a claim might be made if the two employees released were the only two women, or Black/ Hispanic/ Asian/ethnic Fijian, or native/indigenous/ aboriginal persons, or mentally/ physically challenged, or pro life/choice,or liberal left wing democrats, or members of a religious right wing conspiracy, or - sorry, got carried away). If you believe that terminating an indidivual without evidence that they are guilty of misconduct (violated a policy) or willful misconduct (violated a policy and knew it or should have known it) denies an employee some "right to due process", then yes the employer is relieved of this burden. However, employers must be very careful not to do or say anything that indicates that there is a hidden agenda. Employers often try to use "at
will" status as a smoke screen to get rid of someone who is a pain or who has a history of misconduct that they failed to deal with appropriately.

If "discipline" occurs "for cause", "at will" status is irrelevant. The employer must show that misconduct (preferably willful misconduct) took place. A smart employer gives each employee a copy of the policy manual, and has the employee sign a form that says they have read and understand the policies. After this, virtually all misconduct is willful (if the employee refuses to sign this form, it should be noted on the form that
this is a sufficient basis for termination of employment without any other consideration). The policy says the employee will insure that vehicles are in a high state of operational readiness and available to respond. You work 0700 to 1900, don't bother to check the reserve vehicle until 1700 hours, knew the policy, failed to follow it, the agency's ability to accomplish its mission was compromised, guilty. The manual should specify what actions it may consider when an employee is found to have engaged in willful misconduct (reprimand, suspension, termination), and make it clear that there is no obligation to take these actions in any given order. Just because I don't send a note home to your mother doesn't mean I can't throw you out on your ear.
Lastly, the employer must show that the action taken was not discriminatory (if an action is not consistent with actions taken in other similar cases, or could be shown to be disproportionate to the nature of the infraction, this can lead to a charge of discrimination). Bata bing, bata bong, bata boom- that's about the limit of an employer's "due process responsibility".

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12- Medicare/Medicaid CON.

Q:
Our non-profit service has just taken over the management of an adjoining county's Ambulance Service. CON's are necessary in the state of KY, we employed the staff under our fed tax ID #, hold a management contract. Question - do I bill under my local provider #'s with Medicare and Medicaid, do I turn in the runs under their CON license #? It all seems kind of confusing this way. I requested that they lease the CON under the management contract for a cleaner guideline on billing.

A:

Not being a resident of the State of Kentucky, though I came close in '91, I don't have first hand knowledge of your CON laws. But, I will assume that XYZ County EMS, a county owned service, has both the CON and a Medicare and Medicaid provider number. They have contracted your agency for management, staffing, whatever. Services, however, are still being rendered by that service even if in name only. I would bill under the CON and provider numbers issued to that agency, and if there is a requirement to submit data to the State EMS office or some similar agency, I would submit this to them separately as well. This can be cumbersome, but if the CON is the property of the County, I have my doubts that any government entity at the state level is going to let you lease it, but I could be wrong. I'm also not sure it is necessary at this point. CON laws just make life more complicated and historically don't do much to restrain cost or improve service. I think that there are a few other areas that might get ugly. Stay in touch.

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13- Lack of Leadership?

Q:
We have a chronic problem in the department as to not following policy.
Just before I left on my 1 week vacation there was a list of run reports that were not turned in, nothing new.
I was thumbing through the policy and procedure book and stumbled upon a policy regarding this matter and disciplinary actions that were to result with continued non compliance by ones who continue to loose or just don't write or turn in run reports. I made copies and posted them near the list
of "missing in action" also by the box where they are to be collected after a call and in the Chief, Asst. Chief and all captains boxes. Upon my return, all the messages were taken down and nothing was ever said at the business meeting concerning this problem.
I have brought to attention other situations and the answer I get is: "Why do you think nothing is being done? Just because we don't address these matters does not mean we are not dealing with them." My answer now would be if something were being done or if what was being done was effective then we should see some changes!!!

Question is how does one get the ones in charge to follow policy and procedure and stay compliant with the "rules" stated in such. It appears that it is easier for them to overlook the situation than confront the problem and has lead to a bunch of "misfits" doing "their own thing". Captains and the Chief and Asst. Chief are allowed to change whatever suits them even though policy clearly states otherwise. I'm ready to burn the book!
The problem goes on. I'd like the guru's opinion on this one!

A:

We tackle anything here, even when we are not sure we have the answer. Something about your queries led me to believe that this is a volunteer agency. Possible the number of officers you mention, or the allusion you made to the business meetings where nothing gets done. There was the remark about how officers just change or follow policy on a whim, but this happens in many agencies, paid and volunteer. Finally, the remark you quoted, "Just because we don't address these maters doesn't mean we are not dealing with them". Now that's a jewel, but it sounds like something you would hear from the ex-member turned new full time paid "director" or "chief". They are often the most useless person to be found in many agencies as their goal is to keep down the uproar, keep their job and build on their "public image".

First question. How large a problem is this? Run sheets will, from time to time, get lost or misplaced. While there is always a risk even if one record cannot be found, the potential risk is directly related to the frequency with which the problem arises. Tracking this over a period of several months would be useful data. Of course, posting these data, and sending a copy to the agency's legal advisor and medical director would also be a nice touch. And speaking of the medical director, what is he/she doing about this issue, if he/she knows about it? Most systems have a policy, often dictated by a local or state agency, that a run sheet is part of the patient's medical record and must be given to the receiving hospital. If this practice was required by the medical director and/or the hospital, compliance might increase. Then, my last thought would be, do you have a Quality whatever person and what are they doing? (Sweet FA best I can tell). Why not propose this at the next "business" meeting? And don't offer to do this yourself. You have the same bad attitude I generally display in situations of this nature and everyone will see your offer as an attempt to push your radical views about policy compliance on the agency.

This leads to the next question. Is this a large group of "misfits" or small? This helps to put the matter in perspective. If "management", and I use the term loosely in this case, feels that the problem is wide spread, they may be unwilling to address it for fear of losing a large segment of the staff. Conversely, if they see it as a small problem, then they are not inclined to act. Both positions involve bad logic, if you can use the term logic at all, but neither response is uncommon. I say, just have a contest each month. Most number of missing run sheets by provider, post the names and numbers, on a page that states the agency policy (cc: Medical director and legal advisor). You would be amazed how peer pressure and public scrutiny can stimulate behavioral change. No, its not very touchy feely- so shoot me.

The issue is not really about violation of policy, it is about whether certain providers and the agency is in compliance with a well established practice of documenting care rendered, to protect the interests of all parties. Failure to adhere to this standard demonstrates the lack of professional character that keeps this industry in the second-class status that professional wannabees decry when they demand to be respected just like other health care providers. If this happened in a hospital setting, the nurse would be out on his/her ear. You can't have respectability if you won't accept accountability first.

Now, one final question for you. What do you care? I have made a living, or lack there of, chasing windmills. Sure this is irritating, and there are a few things that can be done to change it, as I have mentioned above. If you get yourself in a position of authority where you can facilitate change, then you may be able to help correct this situation, but then again if you are viewed as a system irritant, without a group to support you, you may not be able to break into those ranks. At the end of the day, what do you hope to achieve? You asked for my opinion on this and here it is. Make sure your own house is in order before you start throwing rocks at anyone else. Then, if you want to irritate people, and that can be pretty satisfying in its own right, bring this up every business meeting under old business. They may get on it just to get
you to shut up. Beyond that, follow your instincts. Burn the book. Have a beer. Oh, feel free to quote me.

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14- Respond and Hold office-Garcia

Q:
I am employed by my Borough for the Borough's EMS. I would like to volunteer and hold office at my town's volunteer ambulance for evenings when I am available. They are two separate organizations, however; they share the same equipment and facilities. According to the Garcia ruling, am I allowed to run with the volunteer organization on my own free time?

Am I also allowed to hold office for the volunteer organization? This is something I want to do but have been told I am
not allowed because of the Garcia Law. Please help!!!!

Garcia is often given more reach than it may be due. First of all, let us clarify that ruling. The short version says that an individual cannot be paid and volunteer in the same capacity for the same jurisdiction. But Garcia dealt with a bus driver who was paid and was simultaneously asked to provide a volunteer function for the same agency. Interpreted literally, if you are not engaged in such activity for the same agency, then this ruling may not apply. However, this has not been the way the ruling has been interpreted.

For EMS and Fire, the ruling has most often been used to argue that one cannot provide the same services for the same jurisdiction at the same time, regardless of whether there was more than one agency involved, though this is not as clear as some suggest. The interpretation you have been given seems to follow that line of thinking, and my gut level is to agree with this interpretation at present. A major issue that arose before Congress was the concern that individuals could be "coerced" to perform in both functions. For example, a volunteer agency has paid staff but then "encourages" them to volunteer. One possible way around this is to have the volunteer agency set up an "associate status" where persons employed in a similar capacity for that jurisdiction but with a separate agency can volunteer duty with that second agency provided they are under no obligation to do so and have no hours commitment. However, these individuals usually cannot hold office, in an effort to further separate the two activities. No
one that I am aware of has used this arrangement and had it challenged, and I think it has merit, but this may be simply due to the fact that the FED has not actually looked at it closely. The risk is, of course, all on the agencies if you, or someone else, were to later pursue a FLSA complaint.

No one will die who isn't already dying while you try to sort this out and I think wecan help in this forum. If this could open doors for others, it would be worth the effort for many agencies, particularly in the rural and semi-rural setting. You could consider developing such a proposal and submitting it to the FLSA folks for prior approval. I hope, in the not to distant future, to be offering a Human Resource manual through this site, and it will detail this arrangement. An interim alternative might simply to offer your services to the volunteer agency in a capacity (training, records review, etc) that is unrelated to your duties as a provider for the Town.

By the way, don't you get enough of EMS as a paid employee (but I admire your dedication to your community)?