2017A-EMS-0007-DHS VOLUME 16 06-28-2017 IN THE OFFICE OF … · 2017. 7. 26. · [email protected] 13 For the Intervenor: 14 FENNEMORE CRAIG, P.C. 15 By Mr. Todd S. Kartchner

2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3037

1 IN THE OFFICE OF ADMINISTRATIVE HEARINGS

2

3 IN THE MATTER OF: ) )

4 TIMBER MESA FIRE AND MEDICAL ) No. 2017A-EMS-0007-DHS DISTRICT dba LAKESIDE FIRE )

5 DISTRICT, ) )

6 Applicant. ) _____________________________)

7

8 At: Phoenix, Arizona

9 Date: June 28, 2017

10

11

12 REPORTER'S TRANSCRIPT OF PROCEEDINGS

13

14 VOLUME 16

15 (Pages 3037 through 3184)

16

17

18

19

20 COASH & COASH, INC. Court Reporting, Video & Videoconferencing

21 1802 N. 7th Street, Phoenix, AZ 85006 602-258-1440 [email protected]

22

23 Prepared by:

24 Cindy Mahoney, RPR, RMR Certified Court Reporter

25 Certificate No. 50680

COASH & COASH, INC. 602-258-1440 www.coashandcoash.com Phoenix, AZ

2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3038

1 INDEX TO EXAMINATIONS

2 WITNESS PAGE

3 ITHAN YANOFSKY - REBUTTAL

4 CONTINUED EXAMINATION BY ALJ SHEDDEN 3042

5 RECROSS-EXAMINATION BY MR. KARTCHNER 3053 RECROSS-EXAMINATION BY MR. O'MALLEY 3070

6 FURTHER RECROSS-EXAMINATION BY MR. KARTCHNER 3087

7 EXAMINATION BY ALJ SHEDDEN 3092 FURTHER RECROSS-EXAMINATION BY

8 MR. KARTCHNER 3094 FURTHER RECROSS-EXAMINATION BY

9 MR. O'MALLEY 3094 FURTHER RECROSS-EXAMINATION BY

10 MR. KARTCHNER 3099

11 LYNN BROWNE-WAGNER - REBUTTAL

12 DIRECT EXAMINATION BY MR. O'MALLEY 3146

13 CROSS-EXAMINATION BY MS. STAZIO 3168 REDIRECT EXAMINATION BY MR. O'MALLEY 3171

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2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3039

1 INDEX TO EXHIBITS

2 NO. DESCRIPTION OFFERED ADMITTED

3 Exhibit AMH-16 TMFMD merger feasibility study 3157 3157

4 Exhibit TMFMD-197 Résumé of Lynn

5 Browne-Wagner, RN MSN 3172 3172

6 Exhibit TMFMD-198 Timber Mesa Fire and

7 Medical District resolution number

8 2016-07 3172 3172

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2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3040

1 BE IT REMEMBERED that the above-entitled and

2 numbered matter came on to be heard before the Office of

3 Administrative Hearings, 1400 West Washington Street,

4 Hearing Room A, Phoenix, Arizona, commencing at 8:32

5 a.m. on the 28th day of June, 2017.

6 BEFORE: Administrative Law Judge Thomas Shedden

7

8 For the Applicant:

9 GALLAGHER & KENNEDY, P.A. By Mr. Patrick J. McGroder III

10 By Mr. Kevin E. O'Malley 2575 East Camelback Road

11 Phoenix, Arizona 85016 602-530-8000

12 [email protected] [email protected]

13 For the Intervenor:

14 FENNEMORE CRAIG, P.C.

15 By Mr. Todd S. Kartchner By Ms. Victoria A. Stazio

16 2394 East Camelback Road, Suite 600 Phoenix, Arizona 85016

17 602-916-5000 [email protected]

18 [email protected]

19 For the Arizona Department of Health Services, Bureau of Emergency Medical Services and Trauma System:

20 OFFICE OF THE ARIZONA ATTORNEY GENERAL

21 Education and Health Section By Patricia C. LaMagna

22 By Molly Bonsall Assistant Attorneys General

23 1275 West Washington Street Phoenix, Arizona 85007

24 602-542-8328 [email protected]

25 [email protected]


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3041

1 REPORTER'S TRANSCRIPT OF PROCEEDINGS

2 ALJ SHEDDEN: All right. Good morning.

3 We're on the record in the matter of Timber Mesa Fire

4 and Medical District, dba Lakeside Fire District,

5 Applicant, Docket Number 2017A-EMS-0007-DHS. Today is

6 June 28, 2017. It looks like 8:32 a.m.

7 My name is Administrative Law Judge Thomas

8 Shedden. I've been assigned by the Office of

9 Administrative Hearings to preside over this matter.

10 Again, we're in the middle of our hearing -- or

11 toward the end of our hearing. We've had quite a few

12 days of testimony. So I'm just going to give a couple

13 of reminders and see if the parties have any issues they

14 feel we need to address. If not, Mr. Yanofsky is back

15 in the witness chair, and we can pick up with his

16 testimony.

17 Again, I've turned on the recording device, so

18 I'm recording the proceedings as we go forward. Once

19 again, Ms. Mahoney is our court reporter, and she's

20 creating a transcript. So I'll remind her to let us

21 know if we don't live up to the niceties that allow her

22 to do a good job, to let us know so we can do that as we

23 go forward.

24 The only food or drink allowed in the hearing

25 room is water. And if you could get your electronic


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3042

1 devices, that sort of thing, on mute or vibrate, that

2 would probably be a good idea.

3 And finally, there should be some evaluation

4 forms available for folks who want to give our Director

5 feedback on how we're doing at the Office of

6 Administrative Hearings.

7 Let me just ask the parties: Are there any

8 issues you feel we need to address at this point?

9 MR. KARTCHNER: Yes, Your Honor. And I'm

10 not sure if you want to address those now or if you want

11 to wait until Mr. Yanofsky's testimony's done. It's up

12 to you. But we do have some significant issues we need

13 to raise by way of housekeeping.

14 ALJ SHEDDEN: All right. I assume they

15 don't involve his testimony.

16 MR. KARTCHNER: They don't.

17 ALJ SHEDDEN: All right. I'm going to

18 suggest then, why don't we defer on that, and we'll deal

19 with them as needed. All right.

20 MR. KARTCHNER: Thank you, Your Honor.

21 ALJ SHEDDEN: Is there anything else?

22 (No response.)

23 ALJ SHEDDEN: All right. Let me just

24 verify, Mr. Yanofsky, you understand you're still under

25 oath or affirmation today; correct?


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3043

1 THE WITNESS: Correct.

2

3 CONTINUED EXAMINATION

4 BY ALJ SHEDDEN:

5 Q. All right. And where we left off yesterday, I

6 had asked a question you were going to think about, and

7 I'm going to withdraw that question and just go to some

8 other issues and make sure that I'm understanding things

9 as they stand now.

10 One, it's my understanding that Show Low EMS's

11 CON was renewed on January 20, 2017. Is that your

12 understanding?

13 A. I have not checked the last time it was

14 renewed. If the certificate indicates that it's good

15 for about three years, then yes, it's very possible.

16 Q. Okay. Assuming that it was renewed on that

17 date, is it -- the question or perhaps lack of

18 understanding that I have that my question is related to

19 is: When the certificate is renewed, whether it be Show

20 Low EMS or any other CON holder certificate, is it the

21 position of the Bureau that you do not verify that the

22 rates are just, reasonable, and sufficient?

23 A. When an application for renewal is received by

24 the Bureau, there is no activity with the rates. There

25 is no application for an adjustment. And we do not


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3044

1 review the rates at that point in time.

2 Q. So there's an assumption though that the rates

3 are just, reasonable, and sufficient; correct?

4 A. The assumption that the rates are just,

5 reasonable, and sufficient is based on the fact that at

6 some point they were analyzed by the Bureau, and they

7 were found to be so at that point in time with a

8 recommendation either to a judge or to the Director that

9 they be granted as analyzed. Once the decision is

10 issued by the Director, I think there's the assumption

11 that they are just, reasonable, and sufficient based on

12 that decision.

13 Q. And even though the rates are changed in the

14 interim or after that decision is issued?

15 A. Yes. For the simple fact that the rates have

16 changed in the interim based on an automatic adjustment

17 that's required by statute. With the basis that they

18 were just, reasonable, and sufficient when they were

19 analyzed and approved, I think that that presumption

20 continues forward.

21 Q. All right. And so it's reasonable then for me

22 to assume that both for Timber Mesa and for Show Low EMS

23 as we sit here today that the -- that their rates are

24 just, reasonable, and sufficient?

25 A. Yes.


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3045

1 Q. And then we were talking yesterday about backup

2 agreements, and I just want to make sure the record is

3 fully clear on this. That -- a backup agreement is

4 something different than a backup CON; correct?

5 A. Correct. A backup agreement is when two CON

6 holders have agreed that under certain situations,

7 depending upon what the arrangement is -- many of these

8 arrangements are verbal, and so it's hard to say what a

9 standard written backup agreement looks like. But they

10 have agreed that during times when the system is

11 stressed, that one CON holder will be able to provide

12 additional resources to the other.

13 Q. But --

14 A. And a backup CON is a CON -- and I don't think

15 a backup CON is defined anywhere in rule or statute, but

16 generally they're understood that a backup CON is a CON

17 that is not normally called upon for a -- a -- what

18 would be considered standard amount of call volume and

19 that they back up another CON holder for times where

20 they need additional resources much like a backup

21 agreement, but it's a CON that's not relied on

22 continuously.

23 Q. Okay. And then when we were engaged in those

24 discussions or you were testifying about them yesterday,

25 I thought I heard two kind of different examples for the


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3046

1 backup agreements or situations where one CON holder may

2 need help from another CON holder, those being

3 catastrophic events, say a bus accident and/or a

4 mechanical failure. Those were the two examples I

5 heard. And so you would agree you gave those examples;

6 right?

7 A. I would agree I gave those examples. The --

8 the catastrophic or major emergency or catastrophe is

9 more related to the statutory reference allowing

10 ambulance services coming in from outside the state.

11 The more run of the mill, we need additional help is

12 more of a reference to the Arizona Administrative Code

13 citation.

14 Q. All right. And would it be fair to say that

15 another example, though, it doesn't have to be

16 mechanical failure, but just if somebody had three

17 ambulances they were routinely running and a fourth call

18 came in, that would provide a basis to call on somebody

19 else for help; correct?

20 A. Certainly. Correct.

21 Q. Okay. And then I'm going to go back to

22 something that Ms. LaMagna said. She was questioning

23 Chief Cluff, and she was referring to the allegations

24 against Show Low EMS and said something to the effect

25 that she was trying to wrap her head around this and the


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3047

1 fact that it appeared, at least to her, I assume, that

2 Timber Mesa had never made any complaints to the

3 Department about this.

4 So let me ask you first: Is it your

5 understanding that there's only been one complaint

6 against Show Low EMS in 17 years?

7 A. Well, there's been one complaint against Show

8 Low EMS in what you're saying -- 17 years regarding this

9 subject. To my knowledge, within the time frame that

10 we've looked -- and I don't know how far back we did go.

11 I don't remember -- that was the extent of the

12 complaints that we've received.

13 Q. All right. And so my question relates to

14 Timber Mesa. And I guess what I'm trying to wrap my

15 head around is, if there's a situation where members of

16 Timber Mesa's management and command structure are of

17 the opinion that Show Low EMS has been cheating, they've

18 been lying, they've been doing any other number of bad

19 things, and I -- I didn't go back through my notes to

20 get all the verbiage that was used even just yesterday,

21 but how am I supposed to take that with regard to Timber

22 Mesa's fitness and properness to hold a CON?

23 A. Just to clarify, your statement is in regards

24 to Timber Mesa's --

25 Q. Correct.


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3048

1 A. -- to hold a CON?

2 Q. Yes. And the word that jumps out in my mind is

3 integrity.

4 And you would agree that part of the fit and

5 proper analysis is integrity; correct?

6 A. Fit and proper, I think when we look at that

7 definition, includes financial expertise, integrity,

8 things along those lines, yes.

9 Q. If you'd like me to call it up, I can.

10 A. Well, I think that that word is used in there,

11 but let's call it up just to make sure that we're being

12 accurate.

13 Q. All right. What I'm going do is, if folks --

14 I'll let folks know -- well, I'll call it up on the --

15 the legislature's website.

16 All right. And so I've called up on the screen

17 from the legislature's website ARS 36-2201. And before

18 I scroll back down to that definition, I'll be clear,

19 you know, because -- about my question. If -- I'll put

20 it to you this way.

21 If the allegations were true that the Timber

22 Mesa folks are raising here, any or all of them, that

23 would impact certainly an analysis of Show Low EMS's

24 fitness and properness to hold a CON. Am I right about

25 that?


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3049

1 A. The allegations being?

2 Q. Well, allegations of falsifying records?

3 A. Certainly.

4 Q. Okay. And so allegations -- perhaps you

5 weren't here this day -- that some 80 to 90 percent of

6 the time they don't follow incident command structure.

7 A. Well, incident command structure is -- is a

8 organized structure of communication. I don't know if

9 there's necessarily a rule or a statute that relates to

10 that. I think the issues that we heard are ones of --

11 of good or bad communication.

12 Q. Okay.

13 A. There is no requirement that incident command

14 be followed that I'm aware of.

15 Q. Let me ask it this way then.

16 In the time that you've been in the hearing

17 room -- and you were here for a good portion of

18 yesterday's questioning of Mr. Athey; correct? At least

19 the afternoon session?

20 A. The afternoon, yes.

21 Q. All right. The allegations that you heard

22 during that time, would they -- if proven true, would

23 they cause you to have concern about Show Low EMS?

24 A. I think generally if -- if the question is, are

25 there concerns about following rules and statutes and


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3050

1 potential violations of rules and statutes, yes, those

2 would concern me.

3 Q. All right. And so my question though relates

4 to -- put it this way.

5 Regardless of whether they're true or false,

6 Timber Mesa is making these allegations in this setting;

7 correct?

8 A. It appears so, yes.

9 Q. Okay. And so my question relates to the fact

10 that -- again, trying to wrap my head around this -- if

11 the command structure and leadership of Timber Mesa

12 believes that these kind of things have been ongoing,

13 how should I take that with respect to the definition of

14 fit and proper and Timber Mesa's integrity to hold a

15 CON.

16 And so the definition of fit and proper I've

17 now put up on the screen. It's in subsection 21, and

18 I'll just read it into the record.

19 [Reading] Fit and proper means that the

20 Director determines that an applicant for a certificate

21 of necessity or a certificate holder has the expertise,

22 integrity, fiscal competence, and resources to provide

23 ambulance services in the service area.

24 So the question I'm trying to wrap my head

25 around -- or the issue I'm trying to wrap my head around


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3051

1 is one of integrity. And if there have been no

2 complaints from the Timber Mesa folks to the Department

3 about what I take to be very serious allegations, how

4 does that affect their integrity in this proceeding from

5 your perspective?

6 A. Well, I think, again, it's a very good

7 question. I think when we look at that definition, it

8 talks about the -- the competence, the resources, the --

9 the expertise and integrity within the service area that

10 Timber Mesa fire district covers. And I don't think

11 that the issues that they're raising are in regards to

12 the area that they cover that's described within their

13 current CON.

14 I think the issues that we're discussing right

15 now are in regards to the area that they're proposing to

16 cover. And I think to that extent, if we look at the

17 situation historically, I think Timber Mesa fire, which

18 is a fairly new name for the certificate in question --

19 it used to be Lakeside, if I remember correctly -- has

20 had a relationship with Show Low EMS for years.

21 I think that if we look at that relationship at

22 some points in time in the not too distant past, the

23 communication and the relationship that they had was

24 very different. I think that we've heard testimony that

25 both organizations at some point in time had agreements


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3052

1 on how certain transports would be managed and responded

2 to. Those agreements in some way, shape, or form seemed

3 to involve the financial resources. They could have

4 involved vehicles. They could have involved staffing of

5 personnel from what I understand.

6 That relationship and that communication

7 structure seems to have changed. And the way that the

8 system has been working there, although may have been

9 appropriate in the past, seems to have changed. The

10 parties seem to agree that there is a difference in --

11 in how they view the system functioning. I think that's

12 the main reason that we're here today.

13 So I don't know if that was a helpful answer or

14 not, but, you know, when I look at the definition that

15 we've got on the screen under 21, it specifically

16 references they're fit and proper for the service area

17 that they cover. And the issues that they're bringing

18 up, if I understand correctly, are not in the area that

19 they cover.

20 Q. Well, I'm going to tell you, I'm having trouble

21 accepting that reading of the statute for the simple

22 reason that it's referring to an applicant. So if I

23 were to go with your reading and understanding of that,

24 somebody who was making an initial application for a

25 CON, they didn't hold a CON at all, they would -- this


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3053

1 would be -- wouldn't apply to them at all. Am I -- I

2 mean, does that make sense to you?

3 A. Well, that does make sense to me. So we're

4 looking at the proposed service area as opposed to the

5 service area that they currently cover. I don't know

6 when they became aware of these issues. I don't know

7 how long that they've known about these issues.

8 It seems like they believe that the appropriate

9 way to address that was to apply for this area under an

10 amendment and wind up in this hearing today. And so if

11 they didn't understand that there are other avenues

12 available to them to voice their concerns, that's a

13 question that needs to be raised with them. But I think

14 that's why we're here today.

15 ALJ SHEDDEN: All right. With that then,

16 you know, I'll tell folks that obviously this is a legal

17 question or at least seems fairly obvious to me that the

18 Applicant's going to have to show that they are fit and

19 proper. And it was the third day of hearing that

20 Ms. LaMagna asked her question. And I'll be candid,

21 I've been trying to wrap my head around it since that

22 time. And I'll just leave it at that. I don't have any

23 further questions for Mr. Yanofsky.

24 Let me see, Ms. Bonsall, if you do.

25 MS. BONSALL: Just one minute. No, we're


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3054

1 good. Thank you.

2 ALJ SHEDDEN: All right. Mr. Kartchner?

3 MR. KARTCHNER: Thank you, Your Honor.

4

5 RECROSS-EXAMINATION

6 BY MR. KARTCHNER:

7 Q. Mr. Yanofsky, you'll recall that you provided

8 some testimony yesterday regarding the Rural/Metro-Yuma

9 situation?

10 A. Yes.

11 Q. Okay. And I'm going to ask you a couple of

12 follow-up questions about that. If you can recall these

13 off the top of your head, we'll proceed. If you can't,

14 we'll bring up some exhibits to --

15 A. Okay.

16 Q. -- that may help with your responses.

17 To the best of your recollection, Rural/Metro

18 proposed lengthened, longer response time requirements

19 for each of the four response time requirement

20 fractiles. Do you recall that?

21 A. I don't.

22 Q. Okay. Let's go ahead and pull that exhibit up.

23 MR. KARTCHNER: Your Honor, if we could

24 pull up Exhibit 113 and look at page 23 of that exhibit.

25 ALJ SHEDDEN: And I'm sorry, AMH-113?


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3055

1 MR. KARTCHNER: AMH-113.

2 ALJ SHEDDEN: And page?

3 MR. KARTCHNER: 23.

4 ALJ SHEDDEN: All right. AMH-113, page 23

5 is on the screen.

6 BY MR. KARTCHNER:

7 Q. All right. Mr. Yanofsky, if you could just

8 take a look at the current response times at the top and

9 the proposed response times just underneath that.

10 A. Got it.

11 Q. Okay. So just to follow up on my prior

12 question, are we in agreement that Rural/Metro proposed

13 lengthened, longer response time requirements for each

14 of the four response time requirement fractiles?

15 A. Yes.

16 Q. Okay. And is it your understanding that

17 those -- the lengthening of the time requirements was

18 requested due to the fact that their actual response

19 times were exceeding the prior response times?

20 A. I honestly can't recall what their rationale

21 was for making this application, but I believe if we go

22 a little bit further up in this notice or decision, that

23 it will indicate that.

24 Q. All right. Let's -- all right.

25 A. It does not appear so.


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3056

1 Q. Doesn't appear to be in there.

2 And do you have any -- any -- aside what's in

3 the document itself, do you have any understanding as to

4 why they applied for those lengthened times?

5 A. I can't recall.

6 Q. Okay. Would you agree that the service area

7 outside of the urban portion of the City of Yuma would

8 consist of rural or -- and/or wilderness area?

9 A. Yes. Yeah, it could have a suburban component

10 as well, but I would agree that it would likely include

11 those two descriptions.

12 Q. And do you recall yesterday that you were asked

13 some questions as to whether Show Low EMS would likely

14 succeed if they asked for lengthened response times? Do

15 you recall those questions?

16 A. Questions similar to that, yes.

17 Q. Okay. Those questions, however, regardless of

18 how they were responded to, don't address the question

19 as to whether it's in the public's best interest to have

20 longer response times. Would you agree with that?

21 A. I'm sorry. Can you repeat that?

22 Q. Sure.

23 Regardless of what the response was to whether

24 Show Low EMS would likely succeed in getting longer

25 response times, those questions don't answer the


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3057

1 question as to whether it's in the public's best

2 interest to have longer response times. Would you agree

3 with that?

4 A. So if the question is, is it in the public's

5 best interest to allow for longer response times, I

6 think there's a lot of different variables that go into

7 a question like that. I think we have to look at what

8 the expense is of the shorter response times. I think

9 we have to look at what -- the types of calls we're

10 referring to. Are they emergency transports? Are they

11 interfacility transports? So there's a lot that goes

12 into a question of, are shorter response times

13 appropriate for a given system.

14 Q. All right.

15 A. It's a difficult question to answer just as a

16 yes or no.

17 Q. Right.

18 And all I'm saying is, as you sit here today

19 with the limited amount of information you have, would

20 it be fair to say that you're not comfortable making

21 that assessment as to whether longer response times in

22 that area would be in the public's best interest?

23 A. As I sit here right now with the information I

24 have, no.

25 Q. Mr. Yanofsky, do you -- you were asked some


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3058

1 questions about the -- the form for ambulance

2 inspections yesterday. Do you recall those questions?

3 A. Yes.

4 Q. All right. Do you know whether there is a line

5 on that form for markings or signs?

6 A. I think, much like the question I was asked

7 yesterday, I don't remember if there is or not. I don't

8 think that there is for the simple reason I don't think

9 that the markings would be considered a major or minor

10 deficiency. But to straightly answer your question, I

11 really don't remember.

12 Q. I think it was your testimony yesterday -- and

13 please correct me if I'm misstating -- that when you

14 were asked questions about rope rescue and about SWAT

15 issues, that neither of those really had anything to do

16 with the issue of the level or quality of ambulance

17 services that are provided. Would that be accurate?

18 A. Yeah, I think that's an accurate statement.

19 Q. You were -- you were asked some questions

20 yesterday about whether it was reasonable for Timber

21 Mesa to house an ambulance within Show Low EMS's current

22 CON. Do you recall those questions?

23 A. I do not.

24 Q. Okay. And rather than go back over those

25 questions, I'll just -- I'll ask a different question.


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3059

1 And I think that will cover the same ground just the

2 same.

3 A. And if I may, it may just be the way that

4 you're phrasing it in terms of housing an ambulance.

5 Q. It may be.

6 The fact that Timber Mesa's keeping an

7 ambulance within Show Low EMS's current CON and they've

8 indicated that they believe that that's necessary to

9 handle calls that they're covering, does that ring a

10 bell at all?

11 A. It does ring a bell. The only issue I have

12 with that is the way that you're phrasing it is that a

13 CON holder shall not regularly advertise that it offers

14 services or provides ambulance service in another CON

15 holder's CON area. So when I hear house an ambulance in

16 someone else's CON area, that just sounds -- it sounds

17 like the potential for a problem.

18 But generally them operating an ambulance in

19 the Show Low EMS area, I can -- I think I understand the

20 question in that way.

21 Q. All right. Let me -- let me ask this question.

22 Before -- before you would be comfortable

23 offering an opinion about whether such a situation

24 was -- was reasonable, you would certainly want to

25 identify a number of factors about the situation. For


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3060

1 example, whether it was more cost-effective to house an

2 ambulance more -- more closely to the area they're

3 talking about or whether the gas costs from driving from

4 their area would cover it just the same without having

5 to have a separate location. That's just by way of

6 example.

7 Before rendering an opinion on whether you

8 think that's reasonable, you would want more information

9 and -- and would want to be able to identify a number of

10 factors before you felt comfortable offering such an

11 opinion. Would that be fair?

12 A. To respond to calls in which CON area?

13 Q. In Show Low EMS's CON area.

14 A. Okay. So is the question that you're asking

15 me, is it reasonable for Timber Mesa fire district to

16 allocate their resources in a way where they would be

17 ready to respond to calls within the Show Low EMS area?

18 Q. We're -- we're heading down that path. But

19 mine -- mine is a step further, that in order to say

20 that -- in order to, as you sit up there and offer an

21 opinion and be comfortable in that, you would want to be

22 able to identify a number of factors. You would want

23 more information to be able to evaluate whether it's

24 more cost-effective to house an ambulance more closely,

25 whether gas costs would actually be more -- it would be


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3061

1 more cost-effective to keep them in their regular

2 station, whether response times are affected. There's

3 a -- what I'm trying to point out is, there's a number

4 of factors there that I don't think were presented to

5 you.

6 And so simply what I'm saying, in order to

7 render an opinion that you would be comfortable with,

8 that it's reasonable for them to locate an ambulance

9 there, you would want more information and want to be

10 able to go through such factors before you felt

11 comfortable offering such an opinion. Would that be

12 fair?

13 A. Well, my opinion is that the certificates of

14 necessity are granted to specific organizations. Those

15 specific organizations are charged with providing

16 ambulance service within the areas that they are

17 covering, the geographical service area that appears on

18 their certificate of necessity. Although CON holders

19 can operate in silos, they can operate completely

20 independent of the rest of the system, that's not

21 something that we -- we encourage. I don't think it's

22 good for the system overall.

23 I think when you look at an EMS and trauma

24 system, the thing that makes it a system are those

25 synergistic relationships between the various parts.


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3062

1 Without that, you just have silos. Ambulance services

2 can operate within silos. That's their decision. You

3 know, that's what a certificate of necessity allows for.

4 Does it result in the greatest system? No.

5 So I think in response to your question,

6 it's entirely up to Show Low EMS and Timber Mesa fire

7 district -- and I should say Timber Mesa fire district

8 is what your question was geared towards. It's up to

9 Timber Mesa fire district where they believe their

10 resources are best placed.

11 There's a statute that indicates that an

12 ambulance service shall maintain the established

13 sub-operation stations in order to meet their response

14 times effectively. I think there's probably some other

15 citations that would indicate what an ambulance service

16 shall do. And that's entirely up to them as to where

17 they stage that equipment and those resources.

18 You know, how it impacts Show Low EMS or

19 doesn't impact Show Low EMS is completely dependent upon

20 how good the communication is between Timber Mesa fire

21 district and Show Low EMS. Ultimately Timber Mesa fire

22 district is responsible for the calls within the area

23 that they have described on their certificate of

24 necessity. How they believe it's in their best interest

25 to respond to those calls efficiently and effectively is


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3063

1 a decision of theirs.

2 Q. Okay. And I appreciate that answer. My

3 question was a little different though.

4 Yesterday you were being asked a question --

5 basically being asked to sign off whether you thought it

6 was reasonable. So I'm just asking whether, in light of

7 the factors that I raised, that there's a lot of

8 information, a lot of details that go into that, do you

9 feel comfortable rendering an opinion on whether that is

10 in fact reasonable? Or are you simply stating, as you

11 may have just a few moments ago, that those

12 determinations are up to Show Low EMS and Timber Mesa

13 and that you're not offering an opinion on whether

14 that's reasonable or not?

15 A. Those decisions are up to Timber Mesa fire

16 district and also to Show Low EMS --

17 Q. And then --

18 A. -- to the extent that they're complying with

19 the rules and statutes.

20 Q. And then just for my -- my final line of

21 questioning, going off a little bit of what you had

22 started speaking about a moment ago, yesterday you had

23 offered testimony that -- that it was your expectation

24 that a CON holder acts largely independently to cover

25 its area, that the expectation is that it should be able


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3064

1 to cover the calls, the transports within its CON area

2 largely on its own.

3 Then there was some testimony about mutual aid

4 agreements, and then you spoke just a few moments ago

5 that you indicated that you believe that there should be

6 some synergy, that people shouldn't act in a silo. And

7 so I'm just trying to kind of weave through a little bit

8 and kind of determine where you're coming down on some

9 of these positions.

10 So is it -- if -- it sounds to me that you're

11 saying that it -- it is anticipated by the state that --

12 that neighboring agencies or entities do assist each

13 other to cover the -- the bases, to cover the transports

14 within their CON, and that's an expectation on the part

15 of the Department. Is that -- is that accurate?

16 A. It's an expectation, it's encouraged, but

17 ultimately it's not required.

18 Q. Okay. So that -- that's not viewed as a

19 negative if they -- if a CON holder receives assistance

20 from a neighboring entity?

21 A. I think you'd have to ask that neighboring

22 entity.

23 Q. Okay.

24 A. I mean, ultimately the -- the negative is up to

25 all parties involved in that or the positive. And, you


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3065

1 know, we want to encourage good communication and good

2 relationships within the system. Sometimes that is the

3 case and sometimes it's not.

4 Q. Okay. And appreciating what you just said and

5 setting that aside for just a moment, as a general rule,

6 there is an expectation that -- that a CON holder would

7 receive assistance from an neighboring entity?

8 A. There's a hope. And, I mean, when we look at

9 things in terms of a system, Timber Mesa fire district

10 has been rendering aid in the Show Low EMS area for

11 years. They're not required to do so. If they found

12 that it was not in their best interest or they were

13 unable to respond to those calls, there is no

14 certificate of necessity that I can hold them to to say

15 that they need to respond to those calls. If they

16 don't, my expectation is that the next nearest CON

17 holder in that area and the next nearest available

18 ambulance would respond.

19 Where that CON holder is and how far away their

20 ambulance would be, would be the next concern. And as

21 we start to get farther away from where that call is

22 actually taking place, it starts to stretch the

23 resources to the point where, does it look reasonable or

24 not? So, you know, for years that's how it seems to

25 have worked here, and now we're looking at something


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3066

1 different, it appears.

2 Q. Okay. And I guess -- I guess my question was a

3 bit different.

4 A. Okay.

5 Q. And recognizing that there are other things to

6 look at, I'm just talking as a general rule, receiving

7 assistance from our neighboring entity, just by itself

8 without more is not viewed as a negative. Would that be

9 accurate?

10 A. No.

11 Q. Based on some of the questions from opposing

12 counsel yesterday.

13 ALJ SHEDDEN: I'm sorry. Let me just jump

14 back in and make sure I understood your last answer.

15 And I apologize for jumping in. So no, it's not a

16 negative or yes, it is a negative?

17 THE WITNESS: Well, I guess the answer is,

18 it's -- very simply, it can be. We expect relationships

19 to work in a way where those agreements will be in place

20 and relied upon. They don't have to be. I think if we

21 reach a point, much like your question yesterday, at

22 what point does that become an issue? And I think that

23 we've kind of indirectly come back to that same

24 question.

25 ALJ SHEDDEN: All right. And I'll be


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3067

1 clear, you know, quite often throughout the course of a

2 hearing, and this one perhaps no exception, people give

3 answers, yes or no, that can be ambiguous when -- when

4 read in the transcript. And that was my concern here,

5 Mr. Kartchner. So I'll leave it to you to pick up

6 however you'd like.

7 MR. KARTCHNER: And I appreciate that,

8 Your Honor. Thank you for addressing that issue.

9 BY MR. KARTCHNER:

10 Q. So following up on some of the questions from

11 opposing counsel yesterday and just to preface my

12 question, you did indicate yesterday that by and large

13 in addressing service issues, that because of the number

14 of factors that are involved, that really it's -- things

15 are looked at on a case-by-case basis. Would that be a

16 fair repetition of some of your testimony yesterday?

17 A. Yes.

18 Q. Okay. So going into my next question, is

19 there, as far as you're aware from a policy standpoint,

20 from a regulation standpoint, is there a bright-line

21 rule in place that says, if you receive assistance

22 pursuant to an agreement, and that can be limitless,

23 that that's fine; if you receive assistance without an

24 agreement, that's immediately a negative? Is that -- is

25 there a bright-line rule that creates that demarcation?


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3068

1 A. To a degree, yes. I think the bright-line rule

2 is: Should we receive a complaint, we will look into

3 it; should we receive an application, we will process

4 it. I think that's one of the ways or two of the ways

5 that we receive an indication that there is an issue and

6 it needs to be reviewed. What the determination is on a

7 complaint or an application that we receive is looked at

8 on a case-by-case basis.

9 Q. Okay. And because my question was a little

10 different, just taking a step back, what I'm taking from

11 your response -- and please correct me if I'm putting

12 words in your mouth -- is that the only bright-line rule

13 is: If there's a complaint, we'll look at it; but as to

14 the facts of that complaint, that's going to have to be

15 looked at on a case-by-case basis?

16 A. Correct. Because we're dealing with different

17 call volumes; we're dealing with different areas, yes.

18 Q. Okay. And let me provide you with an example,

19 going back to this issue of a bright-line demarcation,

20 to receiving assistance pursuant to an agreement, as

21 much as they want, that that is perceived as a positive,

22 and receiving assistance outside of an agreement in any

23 amount is automatically a negative.

24 So taking that as a potential position and why

25 am I -- why I'm suggesting potentially that that is a


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3069

1 problem is -- let me provide you with an example. Let

2 me suggest a situation in which a neighboring CON holder

3 wants to expand their CON into a neighboring CON. For

4 years they had provided assistance pursuant to an

5 agreement, and then after deciding that they want to

6 expand their CON, they withdraw from that agreement,

7 withdraw from that assistance, and any assistance that's

8 provided going forward is outside an agreement.

9 You could see how that could create potentially

10 a situation for gamesmanship; correct? If there were a

11 bright-line rule in place that anytime you received

12 assistance outside of an agreement, that that was viewed

13 as a negative point?

14 MR. O'MALLEY: Your Honor, I'd object to

15 that question. This is a totally theoretical question

16 as if this is an expert witness. It's not based on the

17 facts that occurred here with the former entities that

18 were merged into Timber Mesa. But it seems to me like

19 this is a theoretical question that you would pose to an

20 expert for an opinion.

21 ALJ SHEDDEN: All right. I'm going to

22 overrule the objection. You can answer, Mr. Yanofsky.

23 THE WITNESS: They are looked at on a

24 case-by-case basis.

25 ///


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3070

1 BY MR. KARTCHNER:

2 Q. Okay. And so you would agree that there is not

3 a clear, bright line that says, if you receive

4 assistance pursuant to an agreement, that's

5 automatically approved; and if you receive assistance

6 without an agreement, that's automatically negative?

7 You would have to look at the situation?

8 A. Agreed.

9 Q. Okay. And in -- in evaluating factors,

10 Mr. Yanofsky, are you aware that Show Low EMS provides

11 as much assistance or more assistance than it receives?

12 MR. O'MALLEY: Object to form, Your Honor.

13 That's vague as to what he's talking about.

14 ALJ SHEDDEN: All right. Do you want to

15 respond to the objection or clarify your question?

16 MR. KARTCHNER: I can clarify. I didn't

17 think it was -- it was that ambiguous.

18 BY MR. KARTCHNER:

19 Q. But do you have any -- as you sit here, do you

20 have any knowledge as to whether Show Low EMS provides

21 more assistance; in other words, is assisting other CON

22 holders or is going outside its area to provide

23 transports? Do you know whether it provides more of

24 those than it receives in terms of help? As you sit

25 here, do you have any knowledge of that?


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3071

1 A. I don't remember testimony or evidence in this

2 hearing that would address that. And my own personal

3 knowledge, I do not.

4 Q. Okay.

5 MR. KARTCHNER: I'll -- I'll go ahead and

6 pass the witness, Your Honor.

7 ALJ SHEDDEN: All right. Mr. O'Malley.

8 MR. O'MALLEY: Thank you, Your Honor.

9

10 RECROSS-EXAMINATION

11 BY MR. O'MALLEY:

12 Q. Let's stay on this line of questioning for a

13 minute and hopefully we can clarify a few things.

14 Mr. Kartchner asked you about the Department's

15 expectation. Do you remember him using that term?

16 A. I think so, yes.

17 Q. And we were talking about how yes and no

18 answers can sometimes be ambiguous.

19 Did I understand your testimony yesterday to be

20 that it is the basic expectation of the Department, of

21 the Bureau, that a CON holder will cover the calls in

22 its own CON absent some catastrophe or unexpected

23 extraordinary event? Is that the expectation?

24 A. Yes. I think when you look at the statutory

25 framework and the rules, that's the expectation.


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3072

1 Q. Okay. And then I may have misunderstood either

2 the question or your answer a minute ago.

3 I think Mr. Kartchner asked you if there is a

4 mutual aid agreement of some kind in place, is it all

5 right with the Department if an unlimited number of

6 calls are handled by a neighboring CON? Do you remember

7 a question to that effect?

8 A. I believe so, yes.

9 Q. So let me give you an example. I just want to

10 make sure I understand the Department's position.

11 Let's say that there are 3,000 calls in SLEMS'

12 CON in a given year. If they entered into an agreement

13 with a neighboring CON holder and had that neighboring

14 CON holder handle half those calls, 1,500 of those

15 calls, and simply manned their own CON to handle 1,500

16 instead of the 3,000, is that okay with the Department?

17 A. Well, the -- the rules and statutes do not

18 allow for the subcontracting of a certificate of

19 necessity. And that's why there's a -- there has to be

20 a point of delineation and -- and what that is, you

21 know, could very well be what you're discussing.

22 With the idea that its certificate cannot be

23 subcontracted or leased to someone else, when you start

24 looking at half of a CON's call volume being responded

25 to through some sort of agreement, I think that those


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3073

1 citations would come into play.

2 Q. You would essentially be making the decision

3 for the Department on how ambulance service is going to

4 take place in that geographical area, essentially like a

5 subcontract, if you got to that volume level; right?

6 A. Similarly, yeah, if you got to that call

7 volume. Then I think there also becomes a muddying of

8 the expenses associated with providing ambulance service

9 in a given area and what those expenses are in relation

10 to the call volume in that area and the -- the services

11 being provided and that if 1,500 transports are taking

12 place in location A, but the expenses are being

13 associated with location B, it becomes very difficult in

14 order to do a rate analysis to say what rates should be

15 appropriate for what area that's being covered.

16 Q. I understand.

17 And I think we covered this yesterday. You

18 understand that Timber Mesa and SLEMS do not have any

19 kind of mutual aid agreement; correct?

20 A. I have not heard testimony that at this point

21 they have any type of agreement in place.

22 Q. And if SLEMS were to make a determination that

23 it couldn't respond to all of its calls on some regular

24 basis, who do you think is responsible for seeking some

25 kind of an agreement with a neighboring CON to cover


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3074

1 SLEMS' shortfall?

2 A. Well, it's a good question. If -- if an

3 ambulance service was unable to meet their call volume,

4 if they were unable to provide service at all, if they

5 were -- were basically discontinuing operations, it's

6 the state's responsibility to ensure an adequate

7 ambulance service be provided to the public in the areas

8 that we're discussing. So ultimately it's the

9 Department of Health Services' responsibility.

10 Q. All right. And you mentioned that under your

11 rules, it is permissible for these entities to form

12 their -- have a discussion and form their own agreement

13 without your involvement; correct?

14 A. Yes. It's -- it's encouraged.

15 Q. Okay. And my question is: If you have a

16 situation where SLEMS feels like I need some help here;

17 I need some mutual aid because I'm not able to cover my

18 calls, wouldn't you think it would be incumbent upon

19 them to reach out to Timber Mesa instead of Timber Mesa

20 sitting over in its own CON reaching out to SLEMS? Does

21 that make sense to you?

22 A. The call volume in the certificate of necessity

23 area that's described on the CON is the responsibility

24 of the CON holder. The CON holder shall provide the

25 ambulance service that they're certificated to do so.


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3075

1 If they're having an issue, the expectation would be

2 that they would communicate that to the appropriate

3 parties and try to come to a resolution. And those

4 appropriate parties can be the Department of Health

5 Services, the certificate of necessity holders that abut

6 or overlap them. Yes.

7 Q. Okay. You know, if there are any calls that go

8 unanswered in a -- in a CON area or, as Mr. Kugler

9 testified, if an ambulance service reaches level zero,

10 is that an indication to you of an unmet need?

11 A. I think it depends upon what's in place. I

12 think that's why we have backup agreements like we're

13 discussing, we have mutual aid agreements like we're

14 discussing, is that that could very well be the case at

15 some points in time. And that's why those things are

16 designed to do that.

17 Q. Exactly. That was really kind of the predicate

18 to my last question.

19 If the CON holder is looking at their data and

20 recognizing on a regular basis they're not able to cover

21 all their calls, or in Mr. Kugler's term, get down to

22 level zero, it could take any number of steps. It could

23 increase its own resources, but it could also initiate

24 some discussion to get a mutual aid type agreement with

25 one of its neighbors. Either one of those things would


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3076

1 be appropriate; right?

2 A. Yeah. Yeah. And I think to more directly

3 answer your question, level zero is an indication of

4 whether or not -- and -- and honestly, I don't know if I

5 was here for Mr. Kugler's testimony where he responded

6 in some way with level zero. So I don't want to imply

7 that I understand what he was referring to. I don't

8 think I was here.

9 But when you use the phrase and he used the

10 phrase "level zero," are you indicating an instance in

11 which the CON holder does not have an ambulance

12 available?

13 Q. That's my understanding of what he meant. And

14 that's my question, yes.

15 A. Okay. Not having an ambulance available is a

16 status. If a call were to come in and they were not

17 able to respond to that call, then that would be a need

18 that was not met by that CON holder, that the

19 expectation would be, would be met in some other way,

20 shape, or form.

21 Q. Mr. Kartchner also asked you a few questions

22 about the housing -- and I think you had a little issue

23 with that, but the housing of an ambulance by Timber

24 Mesa in one of its stations that happens to be over in

25 the SLEMS' CON. Do you remember that question?


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3077

1 A. Yes.

2 Q. Do you remember, Mr. Yanofsky, that when Timber

3 Mesa made a decision in terms of its allocation of its

4 resources that it wanted to place an ambulance over in

5 that fire station in the -- in the SLEMS' area, that it

6 actually alerted the Department and sought and received

7 the approval of the Department for the placement of that

8 ambulance? Do you remember that?

9 A. When you say the approval by the Department,

10 are you referring to a list of base stations that

11 were -- that was submitted or -- I guess my answer is

12 no, I -- I do not recall that.

13 Q. You don't recall that one way or another?

14 A. I don't.

15 Q. Okay. Mr. Kartchner also asked you about your

16 recollection in the Yuma case as to what was the reason

17 why Rural/Metro-Yuma had applied for a change in its

18 fractiles. Do you remember that question?

19 A. Yes.

20 Q. And we tried to scroll through the order and

21 see if we could find what their rationale was for

22 asking.

23 A. Uh-huh.

24 Q. Let me direct your attention back to that

25 Exhibit 113 and go to page 1 and see if this helps


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3078

1 refresh your recollection.

2 If you could, sir, below where the listing is

3 of the current proposed response times, could you take a

4 second and -- and look at that, and then if you wouldn't

5 mind, read the paragraph that -- or the sentence that

6 starts with "during the CON hearing" in the -- in the

7 letter that requested the fractile change?

8 A. Will do. I am refreshed.

9 Q. All right. Would you mind, sir, reading the

10 sentence out loud for the record that starts with

11 "during"?

12 A. Of course.

13 [Reading] During the CON hearing for the -- for

14 the Yuma Fire Department, Rural/Metro testified that

15 awarding the City of Yuma Fire Department a certificate

16 of necessity would remove the central core of

17 high-volume, short-response-time calls from Rural/Metro,

18 resulting in Rural/Metro's inability to continue meeting

19 the response times for their CON service area.

20 Q. And then you don't have to read all the rest of

21 it, but if you look down at the last sentence there at

22 the end of that paragraph, they say, Utilizing the same

23 data, we are requesting that our response times be

24 changed to those proposed above.

25 Do you see that?


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3079

1 A. Yes, I do.

2 Q. Does that help refresh your memory as to why

3 they were asking for changes in their practice?

4 A. Yes, it does.

5 Q. Okay. Math's not my strong suit, but let me

6 see if I can ask you a question that helps clarify the

7 next issue that Mr. Kartchner asked you about, the Yuma

8 situation.

9 And he was asking you whether -- whether

10 shorter response time fractiles are a benefit or a plus.

11 I think you said, yeah, I suppose they would be; right,

12 generally?

13 A. Weighing the cost to the benefit, generally.

14 Q. And are you aware, sir, that in this

15 application, Timber Mesa is actually proposing shorter

16 fractiles for response time than the current holder has?

17 A. I believe so, yes.

18 Q. Okay. But now we get to the math question.

19 Back to Yuma -- the Yuma situation, and we talked a

20 little bit about this yesterday.

21 Keeping in mind the rationale that we talked

22 about from their application for the fractile change,

23 what was happening in Yuma was that after the city got

24 its CON, the mix of transports for Rural/Metro, the

25 private carrier, was now becoming more of the out-county


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3080

1 areas and less of the City of Yuma; correct?

2 A. It appears so, yes.

3 Q. Okay. Now, when Rural/Metro has an ambulance

4 at its station, wherever it might be located in the City

5 of Yuma, when that ambulance gets on the road and it

6 goes from there out to one of the outlying county calls,

7 before or after the CON was granted to the City of Yuma,

8 same distance and should take the same amount of time

9 for that travel. Does of that seem reasonable to you?

10 A. Uh-huh.

11 Q. Okay. I think that was a yes; right?

12 A. Yes.

13 Q. All right. But when we look at fractiles, if,

14 before the city got its CON, you have a high volume of

15 urban calls and a lower volume of rural calls, then --

16 and the rural calls, of course, are going to take longer

17 to get to than the urban calls; right?

18 A. Yes.

19 Q. So now in your, I guess, numerator for

20 Rural/Metro, you're going to have fewer calls and

21 they're going to be longer transport calls against a

22 smaller number of total calls; correct? Are you with

23 me?

24 A. That could certainly be the case, yes.

25 Correct.


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3081

1 Q. Okay. So that it would make sense that you

2 would -- the fractiles would be adjusted or should be

3 adjusted to recognize the mix. The mix has changed, but

4 it doesn't mean the actual response times by Rural/Metro

5 in Yuma to any particular outlying call have gotten any

6 different. Does that make sense to you?

7 A. Yes, it does make sense to me.

8 Q. Thank you.

9 Mr. Kartchner asked you a minute ago about

10 items like rope rescue or, I guess, foam suppression or

11 things like that that we've heard something about in

12 this case, and whether you agree that those really don't

13 have anything to do with ambulance service. Do you

14 remember that question?

15 A. Yes.

16 Q. Well, if they don't have anything to do with

17 ambulance service, as you're sitting here and you've

18 told us a lot about your cost-benefit analysis which all

19 plays into ultimately what are reasonable rates, does it

20 make any sense for a CON holder to spend money on

21 equipment that has nothing to do with ambulance service?

22 A. So it depends on whether or not they look at

23 that as a fringe benefit to their employees. And there

24 are fringe benefits that get paid. There are pieces of

25 equipment, like gym equipment, that are customarily


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3082

1 bought for purposes of the employees using.

2 Generally speaking, those make up a small

3 percentage of the expenses that we usually look at.

4 Some of those I think you can say as an employee benefit

5 can be associated to that. If this would fall into that

6 category or not, I'd really have to think about and

7 consider. But generally speaking, the expenses that we

8 see are related directly to the provision of ambulance

9 service, the employees' expenses that are associated

10 with providing that service.

11 You know, just on its face looking up at the

12 document that was on the screen yesterday, I'd have to

13 give that one some consideration.

14 Q. Because, I mean, I fully understand that any

15 organization in order to develop good morale with the

16 employees wants to provide some fringe benefits and so

17 forth.

18 Where I have disconnect is, I don't understand

19 how buying equipment for a rope rescue that's not

20 involved in ambulance service or foam suppression for a

21 fire scene which, of course, the apparatus might have,

22 is that even -- I don't understand how it could even

23 possibly be called a fringe benefit.

24 A. Well, I don't either. And I don't remember

25 very much about the document that was up there, and I


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3083

1 don't know how it was brought into the hearing. So I'm

2 probably missing more information about that than I

3 should to respond to it. But generally speaking,

4 ambulance services are not looking at foam suppression,

5 and they're not looking at ropes associated with rope

6 rescues.

7 Q. Okay. All right. I want to go back to a

8 couple other questions that started with some of the

9 Judge's questions.

10 Do you recall, sir, that the testimony -- I

11 think it was from both -- really might have been

12 Mr. Ryals. I know it was Mr. Athey yesterday or the day

13 before. I think it was some of the fire folks, maybe

14 even the hospital folks talking about their collective

15 view that the best way to deal with issues in the field

16 where one person thinks the other's not doing the job

17 right, is to deal with it at the street level or the

18 lowest level, crew level, that kind of thing. Do you

19 remember that testimony?

20 A. I don't.

21 Q. Okay. From your experience, would you agree,

22 if that is what those folks testified, that the best way

23 to address a problem and try to get it resolved is to

24 attempt to do that at the street level or the crew

25 supervisor level and so forth? Would you agree with


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3084

1 that?

2 A. I think looking at it from a state perspective,

3 the lowest level within an organizational structure or

4 system that an issue can be addressed, the better,

5 because they're more familiar with what the actual issue

6 is and the different options that are available to them

7 to address it. That's with the assumption that it gets

8 addressed at that level, and if not, that it be raised

9 to a different level in order for it to be further

10 managed.

11 Q. And if at some point the -- the evidence -- I

12 understand what you're saying.

13 If at some point the evidence became apparent

14 that there was a series of related problems that were

15 systemic and ongoing and so forth, then you would expect

16 that it would be taken to another level?

17 A. Yes.

18 Q. And did you happen to take note of the -- of

19 the complaints that -- that were talked about by the

20 fire folks here? There was a series of emails about

21 various complaints. Did you happen to take notice of

22 the time frame of those complaints that were discussed

23 in the case?

24 A. Unfortunately, I did not.

25 Q. Okay. Let -- let me suggest to you that it was


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3085

1 in about a year period before the hearing. Okay?

2 A. Okay.

3 Q. Do you have any idea or knowledge about when

4 Timber Mesa had access to information from SLEMS as to

5 what steps they were taking to address issues or what

6 they were responding to in terms of their response time

7 underlying data or what they were putting into

8 ImageTrend? Do you have any idea when Timber Mesa would

9 have had access to that information?

10 A. I don't.

11 Q. Okay. Is it -- is it normal in the EMS system

12 under your regulatory authority that someone like Timber

13 Mesa would have access to the underlying data of another

14 CON holder as to how they are filling out their

15 ImageTrend data, how they are reporting their response

16 times to your office and so forth, not necessarily a

17 publicly available ARCR, but the underlying data that

18 actually drives those reports?

19 Does a CON holder normally have access to that

20 kind of information from another CON holder?

21 A. I don't believe that the information or the

22 data that you're referring to is publicly available.

23 Q. Okay. Would you agree, sir, that in order --

24 and strike that.

25 The Judge made a comment that some of the


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3086

1 suggestions, allegations in this case about

2 falsification of data are serious. Do you remember

3 that?

4 A. Yes.

5 Q. And I think you agree that they were serious,

6 if true?

7 A. The -- the allegations are addressing a serious

8 matter, yes.

9 Q. Okay. And would you expect that before a CON

10 holder like Timber Mesa would make those kinds of

11 allegations, serious as they are, that it would want to

12 have access to the data that you just described a minute

13 ago is generally not available to a CON holder before

14 making such an allegation? Correct?

15 A. I think that's a valid assumption, yes.

16 Q. Okay. And is this hearing process and the

17 subpoenas that were issued in connection with a CON

18 hearing like this, one of those vehicles -- one of those

19 few vehicles by which someone like Timber Mesa can

20 actually get its hands on the underlying data to see

21 whether or not there may be falsification of data to

22 your department? Is that one of the ways they could do

23 that?

24 A. It appears so, yes. I don't know what other

25 ways that they have available to get that.


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3087

1 Q. And specifically to this case, Mr. Yanofsky, do

2 you recall that Timber Mesa's consultant, Mr. Ryals,

3 actually had approached you and asked you if he could

4 have access to -- this is outside the subpoena

5 process -- if he could simply come to your office and

6 have access to ImageTrend data, for example, on SLEMS in

7 order to conduct an analysis to determine whether their

8 reports were accurate or not? Do you remember him

9 coming and asking you that?

10 A. I remember him either coming and asking me that

11 or asking me that over a phone conversation, yes.

12 Q. And was -- and was your response, No, sir, that

13 information is proprietary to SLEMS, and I can't release

14 that to you?

15 A. That is what my response was, yes, and would

16 be.

17 Q. Thank you.

18 MR. O'MALLEY: I think that's all I have,

19 Your Honor. Thank you.

20 ALJ SHEDDEN: All right. Ms. Bonsall, any

21 additional questions?

22 MS. BONSALL: No, thank you.

23 ALJ SHEDDEN: Mr. Kartchner?

24 MR. KARTCHNER: A few additional

25 questions. Thank you, Your Honor.


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3088

1 FURTHER RECROSS-EXAMINATION

2 BY MR. KARTCHNER:

3 Q. Let's return to our attention, Mr. Yanofsky, to

4 the exhibit that's in front of you, and specifically

5 let's look at the section that opposing counsel glossed

6 over. As they say, sometimes the details are in the

7 ellipsis.

8 So you were asked to read that initial sentence

9 and then skip down to the end, "utilizing the same

10 data," but let's -- let's look at the -- the sentence in

11 between.

12 So it reads, The attached scatter map -- matter

13 map clearly demonstrates that this is exactly what

14 happened, meaning that they experienced longer response

15 times. Over the past year, as shown on the attached

16 response time analysis, Rural/Metro has been unable to

17 meet the CON 65 response times that were established

18 based on the inclusion of the calls in the City of Yuma

19 that are now being served by Yuma Fire Department under

20 CON 133.

21 Do you see that, Mr. Yanofsky?

22 A. So in your paraphrasing you inserted the phrase

23 "higher response times," and I don't see that was within

24 the paragraph that we're looking at. It basically

25 indicates that what predicted happened, but it's --


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3089

1 it -- you use the phrase about higher response times,

2 and I don't see it. I apologize.

3 Q. What I'm -- what I'm saying -- let's look. It

4 said that they're unable to meet the response times,

5 which would indicate; right, that it was taking longer

6 to get out there? So I used the phrase "higher response

7 time." But essentially they're not meeting the response

8 times, meaning they're now being lengthened. Do you see

9 that?

10 It says they're unable to meet the response

11 times. And I guess maybe you and I are interpreting

12 that differently.

13 A. Well, the -- the Yuma Fire CON removed the

14 central call of high-volume, short-response-time calls

15 from Rural/Metro resulted in the inability to continue

16 meeting response times for their CON areas. Those times

17 are the current response times that are appearing on the

18 screen. The attached scatter map clearly demonstrates

19 this is exactly what happened.

20 So basically what they're stating is that

21 the -- the calls that they are responding to have

22 changed in nature to the degree that their response

23 times had to be amended. The times in that central core

24 that are being referred to looks like they're addressing

25 the change because of -- they're addressing the response


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3090

1 time change to the extent that that core is no longer

2 being responded to by them, but that that donut on the

3 outside of that central core is being responded to by

4 them.

5 This could better reflect the response times

6 that they were meeting around or in that donut as

7 opposed to the donut and the central core which could

8 mean that the response times for that donut-shaped area

9 around the central core remained the same, but are being

10 reflected in different response times because of the

11 different area they're covering, or it could reflect the

12 fact that those times to that donut-shaped area have

13 increased, but we can't tell that by this description.

14 Q. Okay. All I'm asking, Mr. Yanofsky, is that

15 they're indicating that they are no longer able to meet

16 their response times; correct?

17 A. Yes.

18 Q. Okay. You were asked a question a few moments

19 ago about whether it was more appropriate to deal with

20 problems at the ground level. Do you recall those

21 questions?

22 A. Yes.

23 Q. All right. Would collecting a series of

24 complaints over longer than a period of years and not

25 disclosing those, merely keeping them internally and not


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3091

1 bringing them to the attention of anyone on the other

2 side and then bringing them up at the hearing, would

3 that be taking care of things at the ground level?

4 MR. O'MALLEY: Objection, Your Honor.

5 That assumes facts not in evidence.

6 MR. KARTCHNER: That is facts in evidence.

7 ALJ SHEDDEN: Well, again, I'm going to

8 let you respond, but your objection is what?

9 MR. O'MALLEY: My objection is the

10 predicate to his question is that Timber Mesa was

11 keeping a log of complaints for years, and there's no

12 evidence to that. And we're almost on the last day of

13 the hearing.

14 ALJ SHEDDEN: One, I'm going to see if the

15 word "log" if you -- I didn't necessarily hear that,

16 but -- and I'll be candid, Mr. O'Malley. I thought some

17 of your descriptions didn't match the testimony I heard

18 from the Timber Mesa witnesses. And I haven't read the

19 transcript, I haven't gone back through that, but I'll

20 leave it at that.

21 Why don't you re-ask your question, and we'll

22 see where we stand on the objection.

23 MR. KARTCHNER: All right.

24 ///

25 ///


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3092

1 BY MR. KARTCHNER:

2 Q. If -- if an entity were to maintain a file of

3 complaints and there was no evidence or indication that

4 these complaints or issues had been raised with the

5 other side, would that be, in your mind, handling

6 something at the ground level?

7 A. I don't know of what communication took place

8 between Timber Mesa fire district and Show Low EMS

9 regarding these issues. If it is the case that they did

10 not communicate their concerns with Show Low EMS

11 regarding these issues, then I don't know how else they

12 addressed them.

13 Q. And then finally, going back to the fire

14 suppression equipment, those exigencies that we were

15 talking about. And you indicated, I believe, that you

16 didn't know all the reasons or purposes for that. Would

17 that be accurate?

18 A. That is accurate, yes.

19 Q. All right. And if that equipment was

20 maintained because there was a contract with NASCAR to

21 be able to provide emergency rescue services at the

22 site, might that be an explanation for maintaining such

23 equipment?

24 A. It could very well be, yes.

25 MR. KARTCHNER: I'll go ahead and pass the


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3093

1 witness, Your Honor.

2 ALJ SHEDDEN: Let me just ask one

3 question, perhaps two.

4

5 EXAMINATION

6 BY ALJ SHEDDEN:

7 Q. Is it your position then that if there's a

8 belief from an entity that somebody else is falsifying

9 records that they're submitting to the Department, that

10 that should be handled at a ground level rather than

11 file a complaint with the Department?

12 A. Well, there's a number of different issues that

13 are being discussed --

14 Q. I'm asking --

15 A. -- and if you're asking me about --

16 Q. Sir, yeah, I'm asking about one issue, one

17 question. So I'll ask you to focus on my question,

18 please.

19 A. Of course.

20 Q. If the allegation is that Show Low EMS has been

21 falsifying response time data and submitting false data

22 to the Department, is it your position that that should

23 be handled at a local level?

24 A. Well, I think first the concerns from one party

25 to another should be raised with that party. If they


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3094

1 get reasonable answers as to whether or not that is the

2 case, then I think they should proceed accordingly. If

3 there is evidence someone has factual evidence or they

4 are of the opinion that falsified information has been

5 submitted to the Bureau of Emergency Medical Services, I

6 believe that based on that opinion or based on the --

7 the facts that they have, that that should certainly be

8 reported to the Bureau of Emergency Medical Services.

9 But how they go about obtaining that opinion or

10 obtaining those facts is where I believe things should

11 happen at the lowest level possible.

12 If they have valid concerns about the quality

13 of the information being submitted to the Bureau, if

14 it's false, if they believe that it's fraudulent, I

15 expect that to be raised with us if that is the case in

16 their opinion --

17 Q. And --

18 A. -- as soon as possible.

19 Q. And so you used the word "valid concerns" -- or

20 the words "valid concerns." So I guess the question --

21 ALJ SHEDDEN: Well, I'm going to leave it

22 at that.

23 Let me see, Mr. Kartchner, do you want to

24 follow up before I go to Mr. O'Malley?

25 MR. KARTCHNER: I do have one follow-up


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3095

1 question along those lines, Your Honor.

2


4 BY MR. KARTCHNER:

5 Q. Were you -- Mr. Yanofsky, were you present for

6 Mr. Ryals' testimony?

7 A. Yes.

8 Q. Okay. And do you recall during his testimony

9 in preparing some of his opinions whether he relied on

10 Show Low Police Department CAD data? Do you recall that

11 testimony?

12 A. I do.

13 Q. Okay. And do you know whether that data, which

14 was 2015, incidentally, was obtained pursuant to a

15 public records request?

16 A. I don't know how he obtained that data.

17 MR. KARTCHNER: I'll go ahead and pass the

18 witness, Your Honor.

19 ALJ SHEDDEN: All right. Mr. O'Malley?

20 MR. O'MALLEY: Yes.

21


23 BY MR. O'MALLEY:

24 Q. Just one question while we still have this

25 exhibit up just to clarify something. This is EMS --


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3096

1 this was SLEMS-113, and we're on the first page. Are

2 you with me, Mr. Yanofsky?

3 A. Yes.

4 Q. Let me see if I can clarify just one last time

5 what this letter and request is talking about. The

6 first sentence of the letter says, Attached is our

7 application to amend certificate of necessity number 65.

8 Specifically we are requesting amendment of our response

9 times.

10 Do you see that?

11 A. Yes.

12 Q. And then it talks about what its current

13 response times are and its proposed response times;

14 correct?

15 A. Correct.

16 Q. And those response times are fractiles;

17 correct?

18 A. Yeah.

19 Q. So what -- what it is saying in the next

20 paragraph is that it is not meeting its response times

21 as defined by the fractiles. Isn't that how you read

22 it? Not that its response times have gotten longer to

23 the area outside the donut you described, but just that

24 overall, it's not meeting the response times, which

25 under your Department regulations are measured in


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3097

1 fractiles; is that right?

2 A. Yes.

3 Q. Okay. Thank you.

4 And to follow up just one quick minute on

5 the -- the last line of questioning from court and

6 counsel. First of all, with response to Mr. Kartchner's

7 question, is there any requirement or duty on someone

8 like Timber Mesa, a neighboring CON holder, to go to the

9 Show Low Police Department and make a public records

10 request to try to determine whether CAD data -- data by

11 the Show Low Police Department may reflect poorly on

12 what SLEMS is doing in terms of its response times?

13 A. Can you repeat that? I apologize.

14 Q. Sure.

15 Does -- is there some requirement on behalf of

16 a CON holder to go to a police department dispatcher and

17 send a public records request to get CAD data in order

18 to do an analysis of whether their neighboring CON

19 holder is or is not falsifying data to the Department?

20 Do you see that as a responsibility of Timber Mesa?

21 A. No.

22 Q. And would you agree, sir, that if -- if SLEMS

23 is in some manner falsifying its response time data to

24 the Department, that's a serious issue; correct?

25 A. Yes.


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3098

1 Q. And would bear on their integrity; true?

2 A. If found to be true, yes.

3 Q. Okay. And would you also agree, sir, that from

4 Timber Mesa's perspective, that it would be reasonable

5 for Timber Mesa before it brought an allegation, a

6 serious allegation about falsifying response time data

7 by a neighboring CON holder to at least have access to

8 all of the necessary data so that their consulting

9 experts can look at that data and analyze that data and

10 see whether or not the anecdotal information they've

11 heard on the street is actually supported or not

12 supported by real data? Does that seem reasonable to

13 you?

14 A. That does seem reasonable. I think one of the

15 things we have to keep in mind is that once a complaint

16 is made to the Bureau, that there's a record of it. And

17 regardless of what the outcome is on that complaint,

18 that complaint is still on record, it's still on file,

19 and it's still something that can be called upon at some

20 point in time.

21 So with that being said, I think when we're

22 dealing with serious allegations and allegations of

23 fraud and data being submitted that is not accurate, I

24 think that it is important that those facts be

25 understood clearly and that, you know, with such


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3099

1 allegations, that there be some substance to them and

2 that they're not just submitted to us.

3 You know, basically anyone has the ability to

4 file a complaint with us on any subject. And that is a

5 record that will remain there for as long as we have to

6 keep them. So I think it's important that there be

7 substance to issues like this because they are fairly

8 important.

9 Q. So if in this case Timber Mesa hired a

10 consultant, Mr. Ryals, and then attempted to get data in

11 an informal fashion, was unsuccessful, and then awaited

12 the subpoena process to get all of the actual data

13 underlying what was submitted to your Department before

14 making such a serious allegation in these proceedings,

15 do you think that that behavior on the part of Timber

16 Mesa reflects negatively on their integrity?

17 A. I don't.

18 Q. Okay.

19 MR. O'MALLEY: That's all the questions I

20 have, Your Honor.

21 ALJ SHEDDEN: Ms. Bonsall?

22 MS. BONSALL: No questions.

23 ALJ SHEDDEN: Mr. Kartchner, any other

24 questions?

25 MR. KARTCHNER: I just wanted to clarify


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3100

1 one or two points, Your Honor.

2


4 BY MR. KARTCHNER:

5 Q. So, Mr. Yanofsky, was your testimony that your

6 expectation would be that as soon as people are aware

7 that there's -- for example, when the Judge was talking

8 to you about allegations of fraud, that you would expect

9 those to be brought to your attention as soon as

10 possible; correct?

11 A. I think I stated something to that effect based

12 on good reason, yeah.

13 Q. And then --

14 A. And if I didn't, I mean, it should be based on

15 good reason. As I said, people can respond to us with

16 any type of issue where we'll wind up making a record of

17 it, but --

18 Q. All right. And then just let me ask this

19 because this is where I'm having a little bit of a

20 disconnect.

21 If a party's asserting that they have notions

22 or allegations of this fraud and are saying they don't

23 want to report it until they have more information, but

24 then on the same -- by the same token, they're

25 suggesting to you that they have no duty to investigate


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3101

1 it, that it's not their -- their problem or their duty

2 to obtain more information, it seems to me that there's

3 a disconnect in terms of either the expectation is that

4 it would be reported and DHS would investigate it or if

5 this person -- or if this party felt they needed more

6 information, that it is incumbent upon them to follow up

7 and determine whether -- that that is in fact a problem.

8 Does that make sense?

9 A. You would have to ask the party why they acted

10 in the way that they did.

11 MR. KARTCHNER: All right. I'll leave it

12 there. Thank you.

13 ALJ SHEDDEN: Well, I'm just going to tell

14 the parties this. One, you're going to have to brief

15 this and provide evidence that these allegations are

16 true because I'll be candid, where -- as I sit here

17 today, I don't see it. You know, again, maybe I've

18 missed it in something. You have the data. I haven't

19 heard about it. I certainly haven't seen proof that

20 it's true.

21 The other thing that perhaps is missing from

22 Mr. Kartchner's last question, he -- he mentioned two

23 things: Report to DHS and let DHS investigate, or I

24 perhaps paraphrased a little bit and wrote in my notes

25 "sit on it and do nothing."


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3102

1 We're in a third choice here. You brought it

2 to a hearing and made serious allegations of fraud. And

3 I'll tell you, you know, what I do remember is it goes

4 beyond record-keeping. I heard testimony that people

5 observed Show Low EMS committing fraud, driving around.

6 I don't know what data is required to prove that, but,

7 you know -- and, you know, I will probably have to go

8 back through the transcript on this, and I anticipate

9 that I'll get proposed findings of fact that very

10 clearly point these things out.

11 But when I hear someone testify that they saw

12 someone not on the scene report that they were on scene,

13 that strikes me as serious, extremely serious. And to

14 say that, gee, we were going to -- we needed more

15 information, okay, maybe so, but here's where we stand

16 on it. Unless anyone else has -- let me just ask.

17 Does anyone else have further questions for

18 Mr. Yanofsky?

19 MR. O'MALLEY: No, Your Honor.

20 MR. KARTCHNER: No.

21 ALJ SHEDDEN: All right. Thank you.

22 You're excused.

23 But from my perspective, again, I can easily

24 tie it to Ms. LaMagna's question or her statement on the

25 third day of hearing, and -- about trying to wrap her


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3103

1 head around why this wasn't reported to anyone else, is

2 what she asked. And the response came, oh, well, we

3 have talked about it with the Show Low EMS folks. And

4 she said, but my client, my client the regulator, it's

5 not been reported to them.

6 So that's what I'm having trouble wrapping my

7 head around. And I believe that that testimony was not

8 completely consistent with other witnesses who said, why

9 would I bring it up to them? They know; they should

10 have acted on it; they didn't do anything with it; there

11 was no point in bringing it up, things along that line.

12 And, you know, the third day of hearing was

13 probably almost a month ago. And I have tried to wrap

14 my head around this for a long time. I've struggled

15 with how to deal with it during the hearing. I knew

16 full well that I was going to suggest to people that

17 this would need to be put in some sort of closing

18 argument, findings of facts.

19 I'm not going to require anyone to do anything,

20 but, you know, it has consumed a fair amount of my time

21 trying to match up, you know, what the word "integrity"

22 means, what -- and coupled with that, the testimony --

23 and I had asked about this -- about how I can square

24 Timber Mesa's purported view that they put patient care

25 first and yet didn't report this to the Department. How


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3104

1 can I square these things?

2 So I'm not going to require anyone to follow

3 anything, but again, it was unclear to me how best to

4 handle the issue other than a belief that it would need

5 to be addressed after the hearing in terms of

6 post-hearing submissions. Given that Mr. Yanofsky is

7 now called back by the Department, I felt it incumbent

8 upon me to raise the issue with him as the Department's

9 representative. So I've done it for better or worse.

10 And I'll say in the course of 12 and a half

11 years as an ALJ, I've made thousands of decisions along

12 the way and fair amount of second guessing that I do on

13 myself in terms of whether that was the right way, the

14 wrong way to go about things. And some of the elements

15 of this particular issue that we're discussing will fall

16 squarely into that category for a long time to come, I

17 suspect.

18 But be that as it may, we have at least the

19 Department's position on it. We have evidence from the

20 parties. We're not done with our hearing yet, but I

21 believe it's going to be one that is going to be to the

22 benefit of all three of the participants in the hearing

23 to address via written closing arguments.

24 Having said that, let me ask, is there any

25 comment or concerns about the issues that I've raised


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3105

1 and the issue we're talking about?

2 MS. STAZIO: Do you prefer a certain

3 sequence?

4 ALJ SHEDDEN: No. No. Chime up.

5 MS. STAZIO: Your Honor, and just briefly,

6 this is -- I think part of the issue that we were

7 attempting to address when we filed our motions prior to

8 Show Low EMS taking the stand and putting on their case

9 is that a lot of -- I mean, it is a serious allegation.

10 And the information that was provided about eyewitness

11 testimony was provided via hearsay evidence through an

12 expert, and there was no detail provided. There was

13 no --

14 ALJ SHEDDEN: Well, let me -- I'm going to

15 jump in for the reason that I'm concerned that, you

16 know, it's going to argument rather than procedure. And

17 the defect, if you will, or the deficiency in your

18 motion, from my point of view, was simply one that you

19 didn't have to present any evidence.

20 And, you know, we could have ended the hearing

21 right there assuming that Mr. Yanofsky wasn't called

22 back by the Department and the evidence would stand as

23 it is. The character of the evidence that's been

24 presented hasn't changed. There's an opportunity for

25 supplemental though. So I apologize for interrupting


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3106

1 but --

2 MS. STAZIO: I apologize, Your Honor. I

3 wasn't attempting to argue. I guess I was just kind of

4 saying that if -- that Show Low EMS was at a

5 disadvantage, and if now in the, I guess what would be

6 the fourth week of the hearing folks come in to provide

7 information that could have been presented first, Show

8 Low EMS may have been in a better place to respond to

9 these allegations.

10 So I guess our point is just that it seems like

11 maybe we're -- we may be addressing the same issue again

12 for several weeks on once more information comes that

13 could have been looked into before had that information

14 been presented.

15 ALJ SHEDDEN: Well, that may well be. We

16 may well be coming back here and realistically it

17 wouldn't be July or August, I suspect, looking at my

18 schedule and considering yours. If we don't finish this

19 week, we don't finish this week. That's, you know, the

20 harsh reality, if you will.

21 Having said that, on the other hand, you know,

22 there's only so many hours in a day and pretty much

23 getting six hours of actual hearing time on the record

24 in a day is really all I'm typically comfortable with

25 anymore because it just puts too much stress on all


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3107

1 parties concerned.

2 So with that in mind, regardless of whether the

3 evidence came in initially or on rebuttal or through

4 some other time, it still takes as much time as it

5 takes.

6 But let me see, Ms. Stazio, do you want to

7 weigh in further?

8 MS. STAZIO: No, Your Honor.

9 ALJ SHEDDEN: Does anyone else want to

10 weigh in?

11 MR. O'MALLEY: The only thing I would say

12 in response to that, Your Honor, is that we think it is

13 an appropriate way to initially in our case in chief

14 have our expert do what experts do, which is interview

15 people and so forth. So in that sense it's hearsay, but

16 hearsay is reliable by experts and so forth.

17 And I would also point out that they decided to

18 go forward and present their evidence, and I think I

19 heard Mr. -- as an example, Mr. Athey yesterday do the

20 same thing Mr. Ryals did, which was say, I talked to a

21 person named Josh Lawyer, and here's what he told me

22 about response times. So they've done the same thing,

23 and it is what it is.

24 ALJ SHEDDEN: Well, and, you know, I'll

25 tell you, ultimately I will be weighing all the


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3108

1 evidence, or at least the points that I think are, I

2 guess, by discounting evidence down to zero, I've

3 weighed it.

4 But, you know, it depends on the issue, how

5 much weight I can give any particular piece of evidence.

6 And, you know, there's some less than helpful guidance

7 perhaps in the case law that, you know, talks about

8 hearsay is reliable if a sensible person would rely on

9 it, something along that line. And, you know,

10 substantial evidence is evidence that a reasonable

11 person would rely on. And so, you know, at least

12 initially I am that -- that reasonable person.

13 And the Director, Dr. Christ, will get the

14 opportunity to decide that either I am or I'm not in

15 this particular case and, you know, further on up the

16 line, if either party wants to pursue the matter after

17 she's issued her Director's decision in the matter.

18 And so at any rate, again, let me just ask: Is

19 there anything else, Mr. O'Malley?


21 ALJ SHEDDEN: Is there anything from the

22 Bureau?

23 MS. LaMAGNA: No, Your Honor.

24 ALJ SHEDDEN: All right. We're at 10:05.

25 Let me ask: That was it from the Bureau for any


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3109

1 additional evidence at this point; correct?

2 MS. LaMAGNA: Yes.

3 ALJ SHEDDEN: All right. So we're going

4 to go to who next?

5 MR. O'MALLEY: Mr. Duncan.

6 ALJ SHEDDEN: All right. Why don't we

7 meet back up at 10:20.


9 (A recess ensued from 10:05 a.m. to 10:22

10 a.m.)

11 ALJ SHEDDEN: All right. We're back on

12 the record. Mr. Duncan is in the witness chair.

13 So let me get you sworn in. If you'd raise

14 your right hand.

15 MR. KARTCHNER: Your Honor?

16 ALJ SHEDDEN: Yes. Oh, I'm sorry. You

17 told me you have a preliminary issue twice, and I skated

18 right past it both times. So go ahead.

19 MR. KARTCHNER: Thank you, Your Honor. We

20 have two issues with regard to exhibits at the moment.

21 Last night at 9:21 p.m. we received an email from

22 opposing counsel indicating that new exhibits had in

23 fact been downloaded to the system. A number of them

24 appear to be things that Mr. Duncan intends to rely on.

25 Some of them are financial documents, some of a


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3110

1 technical nature.

2 Mr. Duncan's presence in the courtroom

3 yesterday would seem to indicate that that wasn't

4 something that he was working on until the last minute.

5 So to disclose those documents to us the evening before,

6 especially when they are -- there are some things that

7 we need our financial expert to review, that's shorthand

8 for simply stating that we are not in a position to be

9 able to cross-examine the witness today. We'd be able

10 to do so on Friday. For purposes of time, we're happy

11 to let direct go ahead and go forward and lodge our

12 objections, if we have any, during that portion, but

13 we're simply not in a position to cross the witness

14 today.

15 The other issue that I would raise is with

16 regard to Mr. Peck's testimony this afternoon. We have

17 received a series of recent disclosures from the

18 hospital, one on Sunday afternoon, one on Monday, and

19 then one yesterday. They are a series it looks like --

20 based on my cursory review, it looks that there are some

21 calls that are being -- that are at issue here. It

22 looks like 52 calls.

23 And essentially, just to give you an idea about

24 what we're doing behind the scenes to address that, Your

25 Honor, be in a position to cross-examine and determine


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3111

1 whether there's validity to some of the claims that are

2 arising from this is -- we are pairing each of those

3 with the appropriate ePCR, which are each roughly seven

4 to eight pages. We pair those together, and then we're

5 preparing a spreadsheet which will have Sunrise reported

6 times, our times, and the hospital times. We're also

7 comparing the narratives to determine whether the

8 narratives are lining up to make sure that is in fact

9 not another call.

10 But in any event, that's -- that's something

11 that -- that we're in the process of reviewing, and just

12 given the -- the timing of that disclosure, we are

13 probably not going to be in a position to cross-examine

14 Mr. Peck this afternoon.

15 In addition, there were also some education

16 attendance records that were proposed, and those are

17 being gone through. There was indication previously on

18 the stand that perhaps some of our personnel were

19 attending but were working for another agency and

20 attended on that behalf and that maybe perhaps that's

21 not being accounted for. That's one of the issues that

22 the -- these documents are being reviewed for.

23 And then finally, one additional issue with

24 regard to Mr. Peck, we had been in communication with

25 Mr. Patton, who is the -- as you'll recall, is the


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3112

1 hospital's attorney. He indicated that we would be able

2 to interview Mr. Peck prior to his return to the stand.

3 And he said he would contact us when that was going to

4 occur. The indication is that Mr. Peck is going to

5 testify this afternoon, and just a few moments ago we --

6 we hadn't heard anything last night. Just a few moments

7 ago, we did receive an email from Mr. Patton that said,

8 you know, maybe you could do it during lunch.

9 That's not going to work for a variety of

10 reasons, but one of the -- one of the things that --

11 that's something else that we want to take care of

12 before we cross-examine Mr. Peck, and so we would keep

13 the court apprised as to when we'd be available. But

14 just given the tasks at hand, we may not even be in a

15 position this week to cross-examine Mr. Peck based on

16 the disclosure of the documents on Sunday, Monday, and

17 Tuesday.

18 ALJ SHEDDEN: All right. Let me make sure

19 then I understand and kind of working not quite

20 backward, but I wrote down really one, two, three, and

21 four. It's three that's a little unclear to me at this

22 point, the records regarding the attendance at the tape

23 and charts you're referring to; correct?

24 MR. KARTCHNER: Correct.

25 ALJ SHEDDEN: And perhaps other hospital


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3113

1 events. But -- and I guess I'm a little unclear how

2 that fits in with Mr. Peck and any late disclosures.

3 MR. KARTCHNER: Well, if he's not going to

4 testify about that, then they're not an issue. But

5 given the fact that the hospital did produce this to us

6 yesterday, our assumption was that Mr. Peck was going to

7 be addressing those documents. And if that's the case,

8 then we do need to go through them and address that

9 issue.

10 ALJ SHEDDEN: And so then the last -- in

11 my numbering scheme, the last three items are all

12 Mr. Peck items, and that's why you broke it into two;

13 correct?

14 MR. KARTCHNER: Correct.

15 ALJ SHEDDEN: And so with regard to

16 Mr. Peck, is your position that there's uncertainty at

17 this point whether you'll be prepared to cross-examine

18 him or not?

19 MR. KARTCHNER: Well, we -- we definitely

20 won't be this afternoon. But as to whether we can

21 within the next two days, that's something that we want

22 to keep the court apprised of. But I wanted to

23 delineate those tasks just so that you were aware of

24 what's going on, and that we are being diligent. We're

25 not simply sitting on our hands.


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3114

1 ALJ SHEDDEN: All right. And before I

2 turn to Mr. O'Malley, I guess the question I would ask

3 regarding Mr. Peck and his proposed testimony is, does

4 it make sense to see if we can head him off at the pass,

5 so to speak, and have him perhaps not come down here

6 today?

7 But I guess the -- the issue would be one of as

8 well, turning to Mr. O'Malley and working just on

9 Mr. Peck and that issue first, do you have any response

10 you'd like to offer?

11 MR. O'MALLEY: Yes, Your Honor. It's my

12 understanding that Mr. Peck has provided these

13 additional records to all parties in the same time

14 frame. And we are trying to get this evidence in by

15 Friday. We've done what we needed to do to try to get

16 ready and review those documents and ask him questions

17 about it, and so we're prepared to go forward.

18 I really -- I think I probably would prefer,

19 Your Honor, to allow Mr. Peck's counsel, Nick Patton, to

20 comment on the suggestions or the issues about this

21 interview because I think he has -- I won't speak for

22 him. I think he has an entirely different view as to

23 whether or not he accommodated opposing counsel with

24 respect to interviews and so forth. And I think he's

25 prepared to talk with you about that.


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3115

1 You know, it does concern me that -- that we're

2 put in a situation where we've all worked hard to get

3 the documents digested and put someone on the stand, and

4 then we're going to wait for days or weeks to finish up

5 that witness. And it kind of, I guess, rolls over a

6 little bit to the -- to the first issue we raised about

7 his inability to cross-examine this witness. You know,

8 you'll recall, Your Honor, that at the beginning of the

9 case, we had some confusion with regard to Mr. Evans

10 having substituted in these 184s or the 106s and so

11 forth and so on. We kind of worked through those.

12 And then I think you'll recall that Mr. Evans

13 changed his exhibits on the fly on the stand, taking

14 into account, I think, Mr. Buldra's criticisms on the

15 174. We just dealt with it and cross-examined him on

16 exhibits we'd never seen until we're sitting here in the

17 courtroom.

18 So, you know, our position is, I'm sure there

19 are some extraordinary circumstances where you would

20 break up direct and cross. I'm not sure that these

21 circumstances are present here. And with respect to one

22 other comment that was made by counsel, which I think

23 was suggesting somehow that this witness and counsel

24 were sandbagging him on any of these exhibits, I'm glad

25 to ask Mr. Duncan under oath and confirm that he's been


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3116

1 working trying to digest the opinions from Mr. Evans,

2 including making revisions to these exhibits last night

3 until I think 7:30-ish or 8:00 until we then were able

4 to make -- take his corrections and revisions and get

5 them put into a final form, at which time at 9:20 at

6 night, I did email them to all parties. We operated

7 diligently in good faith, as we have throughout this

8 hearing. We haven't sandbagged anyone on anything.

9 So that's my thoughts and comments on those. I

10 am concerned about breaking up direct, cross, and

11 redirect over days or weeks.

12 ALJ SHEDDEN: Well, then a couple of

13 things: One, regarding the information from the

14 hospital, but, you know, I recall I believe it was

15 attached to the Show Low EMS motion for directed verdict

16 that Mr. McGroder had requested additional information

17 from the hospital. So that, to me, goes -- you know,

18 the deadlines for exhibits had come and gone and new

19 information being provided.

20 So I'm going to err on the side of

21 over-inclusiveness and err on the side of giving parties

22 enough time. And, you know, with Mr. Evans's documents,

23 I don't recall -- I do recall at least that some of the

24 later ones there was, you know, certainly Show Low EMS's

25 position that he could testify without those documents.


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3117

1 So, you know, there was that.

2 With regard to the changes that he made to the

3 exhibits, you know, I don't recall fully whether there

4 was discussion about those specifically, but I do recall

5 an issue had come up. Mr. McGroder raised an issue, a

6 concern about late disclosures. And I had indicated the

7 cure for that is more time. Give people more time to

8 get ready.

9 So regarding Mr. Duncan's testimony, at least

10 initially, if it's your position then, Mr. O'Malley,

11 that we shouldn't break up direct and cross-examination,

12 then we can defer on this witness. And you say by

13 Friday you'll be ready; correct?

14 MR. O'MALLEY: We will, Your Honor.

15 ALJ SHEDDEN: We could defer and do it all

16 beginning on Friday. Certainly works for me. And/or if

17 it is going to be a situation where now that we believe

18 we can't finish in the days allotted, then at some

19 future session. So do you want to weigh in further,

20 Mr. Kartchner, at this point?

21 MR. KARTCHNER: Not really, Your Honor.

22 Regardless of the reason for getting the documents late,

23 and that may be well that they were being revised until

24 a late time, it doesn't change the fact that we're still

25 disadvantaged and still need the appropriate time to


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3118

1 review, digest, and be prepared to cross him on those

2 issues.

3 ALJ SHEDDEN: And, you know, certainly

4 with regard to Mr. Peck, I guess, you know, the concern

5 I have or a concern is that, you know, there was a

6 subpoena issued in this matter, and so it's hard to see

7 what these documents are that wouldn't have been

8 responsive to that.

9 But let me ask Ms. LaMagna, do you want to

10 weigh in at all from the Bureau?

11 MS. LaMAGNA: No.

12 ALJ SHEDDEN: All right. So it is going

13 to be my intent to allow sufficient time for each party

14 to prepare, and if there's late disclosures and

15 information that comes in late, then, you know, this is

16 an administrative hearing. It's been, I think, the

17 policy of most of the judges here, certainly my policy

18 along with that, to allow people sufficient time so that

19 a complete, full case can be presented.

20 And while in any given hearing that can be

21 perhaps problematic, if you will, overall for the system

22 as a whole, I think it works better because then the

23 agency has all the information and no one hearing is

24 being sent back for lack of complete information.

25 So given -- and there may be a middle ground.


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3119

1 I'll ask Mr. Kartchner, understanding -- let me ask it

2 this way. It's your belief that you can't cross-examine

3 Mr. Duncan at this point, but is it within the realm of

4 possibility that there would at least be a limited

5 cross-examination or perhaps the direct examination

6 would negate the concerns you have?

7 MR. KARTCHNER: I don't think it would

8 negate my concerns. I would still -- both my financial

9 expert and I would like the opportunity to go through

10 the documents to be able to appropriately cross-examine

11 him.

12 ALJ SHEDDEN: All right. Do you want to

13 weigh in further, Mr. O'Malley?

14 MR. O'MALLEY: Yes, Your Honor. Two

15 things, I guess. One, to answer your other question,

16 and maybe a short break would help. I understand

17 Mr. Peck was -- was traveling down to be here after the

18 lunch break, which I would assume means he's in the car

19 somewhere. I guess what I would ask is, could we take

20 five minutes or ten minutes, let me check and see what

21 the status is on that. Also, check with Mr. McGroder

22 and kind of talk for a few minutes about what to do.

23 I understand where you're going, which is to

24 give people sufficient time, but I don't know if we can

25 catch Mr. Peck and -- or not to hold him back. I think


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3120

1 our general sense is it's better to have direct and

2 cross and be done with a witness rather than stretch it

3 out, especially over a long break. But if I could take

4 5 or 10 minutes, let me just check on the status of

5 where these people are.

6 ALJ SHEDDEN: All right. Why don't we

7 take -- well, it's 10:37 now. We'll go to 10:47. If we

8 need more time, let me know.


10 a.m.)

11 ALJ SHEDDEN: All right. We're back. I

12 apologize. I took a little longer than 10 minutes, so I

13 apologize for that.

14 But let me ask, Mr. O'Malley, where do you

15 think we stand?

16 MR. O'MALLEY: First issue is probably a

17 bit more straightforward. We're prepared to just put

18 Mr. Duncan on on Friday morning and just get him all

19 done in one day. I think Mr. Kartchner and I agree on

20 that, so I don't think that's an issue.

21 Mr. Peck's a little more complicated. What I

22 suggested -- first of all, I'm having Mr. McGroder try

23 to reach Mr. Patton, counsel for the hospital, to kind

24 of see where Mr. Peck is in the -- in coming down here.

25 I assume he's somewhere in the Phoenix -- approaching


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3121

1 the Phoenix area because he was going to be on the stand

2 right at the lunch break or shortly after that.

3 What I suggested to Mr. Kartchner -- and I'll

4 let him speak for himself -- was the possibility then

5 that we only have Lynn Browne-Wagner as another witness,

6 and she's scheduled to be here over the lunch hour as

7 well. I expect her to be a pretty short witness, that

8 we would do her and then give opposing counsel and their

9 experts the afternoon to review these hospital records

10 with the hope that we could get Mr. Peck on tomorrow.

11 So I'll leave it to Mr. Kartchner to respond on

12 where they're at on that suggestion.

13 ALJ SHEDDEN: All right. Mr. Kartchner.

14 MR. KARTCHNER: Actually, Ms. Stazio is a

15 little more intimately connected to this particular

16 witness.

17 ALJ SHEDDEN: All right. Go ahead.

18 MS. STAZIO: Your Honor, that's not going

19 to work for Show Low EMS. And there's -- for the same

20 reasons that we talked about before is -- I haven't even

21 been able to review those documents being in this

22 hearing preparing for witnesses. I need to rely on

23 my -- the employees of Show Low EMS to gather these

24 documents, to review these, to explain what they mean to

25 me. There's a lot of documents in there, and I did a


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3122

1 cursory review. And it's not information that I can

2 just glean from the documents. There's other

3 investigation that needs to be done in order for me to

4 have a good understanding so that I may cross a witness

5 to get more information from them than may not appear

6 just on the documents that they present.

7 So it's one thing to have the witness say, this

8 is what the document says, but for me to have an

9 understanding of the background to those documents,

10 there's a lot of investigation that needs to be done and

11 a lot of understanding on my part. And I can tell you,

12 I will not be able to do that by tomorrow.

13 ALJ SHEDDEN: Hang on one minute. I

14 guess, you know, maybe I'm at a little bit of a

15 disadvantage because I don't know what documents

16 Mr. Peck has provided. Maybe I'm going to call up the

17 website and see, maybe they have been filed or uploaded

18 in some way, but -- so I'm assuming then it's 175 to

19 200?

20 MR. O'MALLEY: 189 --

21 MS. STAZIO: 199 to 200.

22 MR. O'MALLEY: 199, I think, Your Honor,

23 perhaps.

24 ALJ SHEDDEN: All right. And so just

25 looking at the screen, I'm seeing -- I didn't yet find


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3123

1 the break on these. This as filed, we're looking at

2 some 139 pages, but seeing a lot of transfer records.

3 Now, there's Ms. Browne's -- Browne-Wagner's CV. So I

4 assume I'm zeroing in on -- well, maybe not.

5 MR. O'MALLEY: I think you now are zeroing

6 in on the hospital records.

7 ALJ SHEDDEN: Okay. So there's not a

8 sheet, but looking at the -- looking at the Bates

9 labeling, starting on PDF page 32, these are the

10 documents. And so let me ask -- well, one, you know, if

11 we waive off Mr. Peck then, we're -- our options of

12 course have been self-inflictedly, I guess, limited, but

13 you will be objecting, Mr. O'Malley, to allowing

14 Mr. Peck to present direct examination, I'll call it, at

15 this point and defer on the cross-examination until Show

16 Low EMS has had time to review these documents and match

17 them up to their run records; correct?

18 MR. O'MALLEY: Yes. We would object, Your

19 Honor. Particularly, as I look at the schedule now on

20 that, that would mean that we would be having this

21 witness testify on direct today -- or tomorrow -- today

22 or tomorrow or sometime and then wait -- it sounded from

23 your comments, Your Honor, like our next available dates

24 are going to be months down the road?

25 ALJ SHEDDEN: Well, I will tell you that


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3124

1 I -- we're typically booking hearings six weeks out.

2 There may be some flexibility to get a further hearing

3 going, but I'm also mindful of the fact that most of you

4 folks have other things you're working on. In fact, I

5 suspect there would be few of you who don't. And so

6 just understanding how difficult it can be to get, you

7 know, two dozen people all available for a block of

8 time, that becomes part of the issue for me.

9 You know, I can certainly start to look, and if

10 there are, you know, isolated hearings set, you know,

11 try and get them reassigned, but, you know, some -- some

12 matters I'm -- I'm stuck with, I guess, would be another

13 way to put it. So -- well, you know, and I guess

14 because I don't know what even the substance of

15 Mr. Peck's testimony is going to be on this and -- and

16 I'm mindful -- you know, in making my -- my ruling here,

17 I'm mindful that Mr. Peck has been called and testified

18 on direct examination already. And so it's hard -- I

19 guess I don't understand what these documents would be

20 that are in the nature of rebuttal. So --

21 MR. O'MALLEY: I can respond to that, Your

22 Honor, if I could.

23 ALJ SHEDDEN: Sure.

24 MR. O'MALLEY: It's my understanding --

25 although Mr. Peck is a witness that Mr. McGroder's


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3125

1 handling, it's my understanding that these documents are

2 transfer logs from the hospital, and they would be

3 relevant to rebut the testimony from Mr. Kugler who did

4 an analysis and testified about what the interfacility

5 transport response times are for Show Low EMS at the

6 hospital. My memory is that he said it was on average

7 24 minutes or something like that. And when we heard

8 that testimony, we checked with the hospital, who said

9 they believe they have records that would bear on the

10 issue.

11 And so this is in the nature of rebuttal to the

12 calculations and testimony of Mr. Kugler. And in my

13 view -- and I'm not going to question how much effort

14 and time is necessary, but to respond to your question,

15 I think the focus is on responding to IFT response time

16 data. And that's what these are intended to address.

17 That's my understanding, Your Honor. It I may not be

18 100 percent, but that's my understanding.

19 ALJ SHEDDEN: Correct me if I'm wrong, but

20 Mr. Kugler's testimony was based on Show Low EMS

21 documentation; correct?

22 MR. O'MALLEY: I believe that it was. I

23 don't remember as I sit here whether he tried to

24 crosscheck that against available information of some

25 type from the hospital or from Sunrise Air, frankly. I


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3126

1 just don't remember all the sources of his information.

2 But it's my understanding that these documents will bear

3 on that relatively specific issue.

4 ALJ SHEDDEN: Well, all right. Do you

5 want to weigh in, Ms. Stazio?

6 MS. STAZIO: Yes, Your Honor. And again,

7 I haven't even had a chance to go through these, but my

8 understanding from what I've been told is that there --

9 that these documents were broken up into two

10 different -- two different ways that they were broken

11 up. The first one was almost supporting documents to

12 the emails that came in through the subpoena, but my

13 understanding is it was only a couple documents have

14 actually been provided to support those emails and that

15 a lot of this stuff is brand new stuff from 2017 that

16 was not provided with the subpoena and doesn't rebut

17 what Mr. Kugler talked about because Mr. Kugler only

18 analyzed the 2016 data, so -- and he didn't make it a

19 comment on the 2017 data.

20 I don't even know how accurate that is. I

21 don't know what else has been provided. I don't even

22 know what Mr. Peck is going to testify to. Is he

23 going -- I mean, he made statements in his prior

24 testimony that, you know, maybe there was

25 doctor-to-doctor talks and, you know, someone may have a


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3127

1 surgery scheduled. I need to look up this so that I can

2 determine what was going on with this patient and what

3 was going on in the background so I can aptly cross

4 someone. The -- I shouldn't just have to rely on these

5 records in and of itself when doing my cross. I should

6 be able to have an opportunity to look further into that

7 information.

8 And again, I will say this was -- this is --

9 seems to be additional information that was not provided

10 with the subpoena.

11 ALJ SHEDDEN: All right. Hang on one

12 second, please. And what is Exhibit 200 then? Do you

13 know, Mr. O'Malley?

14 MR. O'MALLEY: I think that that's a

15 second batch of similar materials. And really, Your

16 Honor, I hesitate to avow on these issues because I

17 haven't looked at them because they're not my witness.

18 ALJ SHEDDEN: No, I understand that. And

19 thank you for that. And, you know, take it for what

20 it's worth.

21 MR. O'MALLEY: I'm trying to be helpful.

22 ALJ SHEDDEN: No, I understand that. I

23 suspect some of the witnesses appreciate seeing the shoe

24 on the other foot on some of this perhaps. But we've

25 got over a hundred pages of what appear to be medical


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3128

1 records to me. And so I'm going to give the extra time

2 for the Show Low EMS to do an adequate review of these

3 records. So, you know, whatever -- whatever that may

4 amount to, I guess what -- we'll have to see.

5 So here's where we stand then from my

6 perspective. Looks like we'll go to Mr. Duncan on

7 Friday morning. You indicated Ms. Browne would be

8 available this afternoon; correct?

9 MR. O'MALLEY: She should be here over the

10 noon hour, so we could put her on right after lunch

11 break, yes.

12 ALJ SHEDDEN: And then maybe back to the

13 question I asked at the end of the day yesterday. And

14 then who else do you see as potential witnesses?

15 MR. O'MALLEY: Well, to respond to today,

16 the people that we were talking about were today.

17 ALJ SHEDDEN: Yes.

18 MR. O'MALLEY: So -- but in terms of the

19 remaining witnesses between now and the end of the week,

20 we would see some rebuttal testimony from Mr. Ryals,

21 Chief Savage, and at least a couple of the -- of the

22 former employees. I think it's Mr. Heisler,

23 Mr. Lambdin, and I don't know where we stand -- after

24 the testimony came out about Josh Lawyer, that's a

25 possibility, but I don't know where we stand exactly on


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3129

1 that.

2 ALJ SHEDDEN: Well, as a practical

3 reality, I question whether we were going to finish this

4 week anyway then, but, you know, that's not a guess that

5 I need to make. But then in terms of trying to fill our

6 time, will Timber Mesa be prepared tomorrow to go

7 forward with some of these other witnesses?

8 MR. O'MALLEY: Yes. Not this afternoon,

9 but tomorrow.

10 ALJ SHEDDEN: Okay. And so between now

11 and the time -- it's Ms. Browne-Wagner, not

12 Wagner-Browne; right? Ms. Browne-Wagner?

13 MR. O'MALLEY: Yes.

14 ALJ SHEDDEN: Between now and the time she

15 arrives, is there anything productive we can do in terms

16 of hearing activities, I'll qualify that with?

17 MR. O'MALLEY: Not that I'm aware of,

18 although I think she told me she was trying to get here

19 over the noon hour. So we could try to shoot for 1:00

20 to get her on the stand so we could get her on and off.

21 MR. KARTCHNER: We have no objection to

22 that, Your Honor.

23 ALJ SHEDDEN: All right. And so then to

24 be clear then, this afternoon we may be limited to her

25 testimony and adjourn when we're done.


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3130

1 I'll just ask you, Mr. O'Malley -- I understand

2 you may need to consult or want to consult with

3 Mr. McGroder, but to let the other parties know where

4 you see us going tomorrow morning. Friday morning we'll

5 have Mr. Duncan, and then it looks like -- and had there

6 been an anticipation that his testimony would take the

7 better part of a day or --

8 MR. O'MALLEY: I would think -- my guess

9 would be the direct would be about -- between an hour

10 and a half, two hours.

11 ALJ SHEDDEN: So then any of the --

12 Mr. Ryals, Chief Savage, the employees would be ready to

13 roll over onto Friday as well.

14 MR. O'MALLEY: Right. Oh, and I also -- I

15 think I might have left off Mr. Buldra. We wanted him

16 on for -- again, it's not real long testimony, but 45

17 minutes or something.

18 ALJ SHEDDEN: All right. And then, you

19 know, I'll -- I'll offer this. You know, if Mr. Peck's

20 testimony was -- and again, we're at a disadvantage,

21 understanding that, you know, off the record when

22 Mr. McGroder said he was going to leave and he wanted to

23 make sure I didn't take it as a sign of disrespect, he

24 indicated he was fading fast yesterday, and he may have

25 been beyond faded, I'll say.


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3131

1 We know he had the health issues, and so the

2 point being that I understand we're at a disadvantage

3 because Mr. Peck is his witness. But, you know, if it's

4 really just one -- one issue with Mr. Kugler's

5 testimony, I'll -- I'll leave it to you folks. If

6 perhaps you want to not rebut that, but that's a choice

7 that Timber Mesa has to make. And if it goes beyond

8 just that one calculation, I understand fully your point

9 that you're operating, Mr. O'Malley, with limited

10 knowledge.

11 So what we can do then is, we'll go on break,

12 we'll reconvene at one. As always is the case, I want

13 to let folks know if you're communicating with a witness

14 who is in this case on her way here, we want her to

15 arrive safely and without speeding tickets or the like,

16 and if it is after one when we can start, it will be

17 after one when we can. But we'll get her testimony this

18 afternoon, tomorrow we'll pick up in an order that

19 Timber Mesa will determine, and Friday, Mr. Duncan and

20 the rest of Timber Mesa's witnesses that we can fit.

21 And we'll have to do further scheduling at that time.

22 I would suggest that folks begin to look at

23 their schedules. I will look on our break to see where

24 we stand. I know these things are difficult to project,

25 but, you know, the question that I need to be asking


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3132

1 myself and that my staff and Director will want to know

2 is, do we need 5 more days of hearing, do we need 3 more

3 days, do we need 10 more days? And better to err on the

4 side of over-inclusiveness so that you're not all coming

5 back for a third time, if you will. On the other hand,

6 recognizing we're in season in Show Low, if we do have

7 to come back for a third time, we'll be in season here

8 in Phoenix where the temperatures will perhaps be in the

9 civilized range.

10 But the goal is to try and finish up. So

11 consult among yourselves. And I understand, again, the

12 difficulty in trying to project, but how many days do

13 you think we're going to need and start looking at your

14 calendars and the calendars of your witnesses to see

15 what's necessary, and I will alert my Director where we

16 stand and see what accommodations can be made to clear

17 any blocks of time that -- so that I'm not the

18 impediment, if you will.

19 With that, let me ask, do folks want to weigh

20 in further or offer any additional comments about

21 scheduling or anything else?


23 ALJ SHEDDEN: All right. We'll reconvene

24 at 1:00 then, assuming we have a witness.



2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3133

1 p.m.)


3 the record. Ms. Browne-Wagner is in the witness chair.

4 I'm Administrative Law Judge Thomas Shedden, and I've

5 been assigned by the Office of Administrative Hearings

6 to preside over this matter. Couple of things; one,

7 I've got my recording device going, so I'm recording the

8 proceedings digitally as we go forward.

9 Ms. Mahoney, our court reporter, is here

10 creating a transcript as we go forward as well. So

11 those two things require that we give audible answers

12 when questions start coming your way. We've also got to

13 avoid interrupting each other, talking over one another,

14 that sort of thing as we move forward as well.

15 The way we're going to go forward -- let me

16 just verify from Timber Mesa who's going to handle the

17 questioning.

18 MR. O'MALLEY: [Indicating.]

19 ALJ SHEDDEN: Okay. You've been called by

20 the Timber Mesa folks, so Mr. O'Malley, the attorney for

21 Timber Mesa, will ask his questions first. Then I'll go

22 over to the assistant attorneys general representing the

23 Department, see if they have questions for you, and then

24 over to the folks from Show Low EMS for questions from

25 their attorneys. And we'll repeat that as many times as


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3134

1 it takes until we've either got all the information you

2 have to offer on the record or we're just spinning our

3 wheels, so to speak.

4 So with that kind of way of background, let me

5 ask you: Do you have any questions about our

6 procedures?

7 THE WITNESS: No.

8 ALJ SHEDDEN: Okay. Let me get you sworn

9 in. So if you'd raise your right hand.

10

11 LYNN BROWNE-WAGNER,

12 called as a witness on behalf of the Applicant,

13 having been first duly sworn by the ALJ to speak the

14 truth and nothing but the truth, was examined and

15 testified as follows:

16

17 ALJ SHEDDEN: All right. As a formality,

18 would you state and spell your name for our record,

19 please.

20 THE WITNESS: My name is Lynn

21 Browne-Wagner, and that's L-y-n-n. And the last name is

22 hyphenated, B-r-o-w-n-e, hyphen, Wagner, W-a-g-n-e-r.

23 ALJ SHEDDEN: All right. Whenever you're

24 ready, Mr. O'Malley.

25 MR. O'MALLEY: Your Honor, just one quick


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3135

1 issue, and you tell me how you want to proceed. But

2 Mr. Patton, the hospital's lawyer, is here now with the

3 witness and, I believe, would like to address an issue

4 or two with respect to Mr. Peck. So as not to tie up

5 other people, if it's all right with you, could we

6 address that housekeeping issue?

7 ALJ SHEDDEN: Sure. Why don't we. So --

8 and go ahead and -- there's not really a lot of room for

9 you to grab a seat, but I guess the question would be

10 and -- how to go forward, I guess, Mr. O'Malley.

11 MR. O'MALLEY: I just think that we had a

12 discussion about Mr. Peck, when he was going to testify,

13 and issues arose regarding whether or not an

14 accommodation was being made to allow Show Low EMS's

15 lawyers to interview Mr. Peck and, maybe as a broader

16 part, of whether or not the hospital has been

17 cooperative and in evenhanded fashion with all parties

18 to the case. I think Mr. Patton wanted to address those

19 issues, Your Honor.

20 ALJ SHEDDEN: All right. And I should

21 always just check in with the other parties. I assume

22 no objection to hearing from Mr. Patton; correct?

23 MS. STAZIO: No.

24 MR. KARTCHNER: No, Your Honor.

25 ALJ SHEDDEN: All right. Go ahead then.


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3136

1 MR. PATTON: Thank you, Judge. If it's

2 okay, I'll just stand here. Or do I find need to find

3 microphone?

4 ALJ SHEDDEN: No, I think you're in good

5 shape. You can hear him all right from there?

6 THE COURT REPORTER: Yes.

7 MR. PATTON: Thank you, Judge. So

8 essentially I just want to clear up the record as far as

9 our -- our cooperation. There has been some discussions

10 and perhaps misunderstanding. However, the hospital has

11 been in the past more than willing to accommodate

12 anybody who wanted to have a meeting with Clint. And I

13 will -- I will clarify that I am here for the hospital

14 with Clint to make sure that Clint is able to provide

15 the information that he needs to without over --

16 over-providing, if that makes sense.

17 So we -- we have been, from the very beginning,

18 as far as -- at least as far as our -- our involvement

19 has been concerned, we have been open to a meeting with

20 any party that wanted it. We have provided that

21 information to any party that wanted it. I did have a

22 conversation with Ms. Stazio on the phone, and, you

23 know, the basic end result of the conversation was,

24 well, based on what she believes I told her or what I

25 told her, they didn't need to meet with Mr. Peck. And


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3137

1 that was fine.

2 Through some subsequent email conversations, it

3 appears that there may have been misunderstandings

4 during those -- during that phone call. And so for

5 whatever that's worth, we have been and are willing to

6 work with whatever parties want to hear from Mr. Peck.

7 And I just want to clear the record that

8 there's -- you know, it appears that there's been some

9 inferences or -- I don't know if outright statements,

10 but that the hospital has been working more so with one

11 party than with another, and I will state that that is

12 true; however, only because the one party wanted the

13 hospital's cooperation and actively sought it as opposed

14 to another party that didn't feel they needed it in

15 their case. That's fine. That's up to them.

16 But I just want to clear the record on that

17 topic, and that's -- that's all I have. I don't have

18 any information. I mean, you know, we're -- we're ready

19 to be done coming down to the heat to do the testimony,

20 so we would just ask that whenever that occurs that it

21 be set in stone so that we don't have to come back

22 again.

23 ALJ SHEDDEN: No, that's understandable.

24 Let me just turn to the parties and see if there's any

25 comment that any of you would like to make.


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3138

1 MS. STAZIO: Your Honor, since the

2 discussion focuses on discussions that I've had, I will

3 let the court know, which is something that I've already

4 had email discussions with Mr. Patton about. And in

5 just a recent email that I see received today, it seems

6 that we had cleared up the issue between the two of us

7 and that he was satisfied with -- I think the -- those

8 were his exact statements maybe, that he was satisfied

9 with the -- any statements or anything that I had made

10 to the court.

11 I don't remember anyone stating on the record

12 at any point that the hospital was working more with one

13 party than another. I believe this is what I told

14 Mr. Patton, is that my understanding of our

15 conversation -- and he remembers it differently -- is

16 that when I talked to him prior to this hearing

17 starting, I was told that Mr. Peck was not going to

18 express any opinions, that he was a neutral party, and

19 he was only going to be discussing the documents that

20 were provided pursuant to the subpoena.

21 However, when we got into the -- and Mr. Patton

22 doesn't remember stating that, which is fine. We

23 disagree on that issue, but I think otherwise we agree.

24 When we got to the hearing, Mr. Peck was asked by

25 counsel for Timber Mesa, we had been in contact with


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3139

1 your counsel and asked you to look into additional

2 things. And then there was additional items provided

3 and presented relating to run reviews.

4 That -- at that point I objected and on the

5 record stated that we didn't have that information. And

6 I probably wasn't very eloquent when I made my

7 objection. I looked through the transcript, and you had

8 said, I'm a little fuzzy on that about the documents,

9 because we didn't know what would be coming in, whether

10 it was testimony or documents. But I made my record

11 that we were not aware that this additional information

12 was being presented or being offered.

13 And I believe Mr. Peck was asked the question,

14 has anyone from Show Low EMS or any attorney reached out

15 to you or Mr. Patton for an interview, and his response

16 was no. So on the record I stated I did, and I did not

17 give any other indication otherwise that we were not

18 provided an interview or etcetera. I think it was very

19 clear on the record why I was objecting, and because we

20 didn't have that additional information.

21 As the court is aware, there was documents that

22 were requested by counsel for Timber Mesa, I think on

23 June 15, which was a couple weeks ago. That was an

24 email that you had referenced this morning, Judge, that

25 was attached to a motion for directed verdict. We


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3140

1 received information or an email from the hospital

2 stating that they had records. They wanted to see what

3 the parties' position was on those. Timber Mesa's

4 counsel said they had no objection.

5 We stated that we -- our objection was based on

6 whether the hospital would allow us to interview some

7 witnesses on -- on these new documents that would be

8 coming in. We did not hear back from the hospital

9 until, I believe it was either Sunday or Monday. We had

10 reached out again to see what the status was, and we

11 received documents from Mr. O'Malley on Sunday night.

12 And then we received additional documents on Monday and

13 again on Tuesday morning.

14 Mr. Patton did state that he would provide an

15 interview to us and that he would get a hold of us, but

16 it was just 10:00 a.m. today that we received an email

17 from him stating Mr. Peck -- that Mr. Peck was going to

18 be on his way and that we'd be able to interview him at

19 the noon hour. However, we were already in the hearing

20 at that point, and then we had the discussion about

21 putting off the examination anyway. So that is the -- I

22 guess the full events from our point of view.

23 ALJ SHEDDEN: All right. Let me just

24 address a couple of points, I guess: One, you know, one

25 time I think I probably caused an attorney a near heart


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3141

1 attack when I said, I have no power to sanction people,

2 and he thought I was referring to him as the last

3 speaker. And, you know, it wasn't that case.

4 But I don't have powers to sanction, and so

5 that really limits these kind of disputes what I can do.

6 So what I focus on is trying to get the evidence or, you

7 know, absorbing the evidence, taking the evidence from

8 you folks and then doing my job writing decisions based

9 on that. That's kind of where I think we stand now.

10 It sounds like, you know, miscommunications

11 happen, of course. And people are busy, particularly, I

12 know, when you're here in a hearing. You know, your

13 other matters, I don't want to say get neglected, of

14 course, but it's tough to give attention to all those

15 matters and even tough if you're sitting here in the

16 hearing room to perhaps give full attention to ancillary

17 items related to this matter.

18 So from my perspective, where we stand is this:

19 My ruling to not take Mr. Peck's testimony today is kind

20 of in two parts, if you will. One, I wanted to give the

21 folks from Show Low EMS sufficient time to review the

22 new documents that were provided over the last couple of

23 days. And not just review those documents, but the

24 position is, of course, that they need to look perhaps

25 through their own records as well. So that's part 1.


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3142

1 Part 2 was the idea, certainly from

2 Mr. O'Malley's perspective, that it would not be a good

3 idea to divide up the testimony, take direct examination

4 today and cross-examination at some future date.

5 So I'm comfortable with that two-part ruling

6 that we will presumably need to get Mr. Peck's testimony

7 at some other date. But to some extent that's in the

8 hands of, at this point, Timber Mesa, who wanted to

9 recall them. But the assumption is that that's going to

10 be the case, that Timber Mesa will want to call or

11 recall Mr. Peck back to the witness stand, and at that

12 point we'll be ready to go and get the evidence as it

13 stands.

14 So from my perspective, you know, the

15 procedural issues are unfortunate, but things happen. I

16 need to focus on evidence and trying to create a fair

17 hearing for folks, and that's what I hope to do or have

18 done by issuing that ruling.

19 In terms of future testimony, you know, it's

20 not ideal, but certainly folks can appear by telephone.

21 And I'll leave it to the attorneys and the hospital and

22 all parties here to perhaps explore whether that is a

23 viable option to assist, whether it be Mr. Peck or

24 perhaps any others from the hospital. Again, you know,

25 understanding it's not ideal, particularly when we're


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3143

1 going to be dealing with a lot of documents, but

2 certainly there's plenty of legal authority out there

3 that allows for people to appear by telephone. And if

4 the parties are in agreement to do so, then, you know, I

5 would be extremely reluctant to say no, that won't work.

6 So I'll throw that out there for future reference for

7 folks if it looks like that's what we're going to come

8 to.

9 But with that, I'll just ask: Does anyone else

10 want to weigh in, including, Mr. Patton, if you want to

11 make further comments?

12 MR. PATTON: Judge, I'll just say, the

13 purpose of the additional documents, we had not

14 intended -- the hospital had not intended to release any

15 further information without a subpoena. And the purpose

16 is because our -- we have been provided exhibits that

17 are showing response times are one thing, and our

18 documents are showing that they're not. And so that was

19 the -- that was the whole reason the hospital even

20 released it. We would not have released it, and that's

21 why they're -- that's why they're perhaps untimely or

22 whatever you want to call it.

23 That's why it's taken so long to release them,

24 is because we feel like it's our obligation to make sure

25 the record is clear as to what is actually -- what is


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3144

1 actually happening, you know. And there's -- I realize

2 there are various explanations for why the exhibits say

3 what they say, but our -- our position is that they're

4 not quite accurate with -- with our records.

5 ALJ SHEDDEN: All right. And, you know,

6 the -- untimely, that is perhaps a loaded expression, as

7 you maybe indicated in the way you said it. But from my

8 perspective, it -- regardless of the timing, you know,

9 to allow sufficient time for, in this case, Show Low EMS

10 to have their attorneys and their personnel go through

11 the documents that have been provided to, A, either

12 effectively cross-examine Mr. Peck; or B, perhaps, you

13 know, come to a conclusion that Mr. Patton's statement

14 regarding what show is correct.

15 But either way, and again, as I indicated this

16 morning, I think far better served to allow enough time

17 for a full, fair hearing rather than here -- we end up

18 back here, whether it's three months, six months, nine

19 months, because the ALJ didn't do that. Better to err

20 on the side of caution.

21 So with that in mind, again, let me just ask:

22 Is there any other comment that anyone would like to

23 make?

24 MR. O'MALLEY: The only other thing, Your

25 Honor, just to fill out that story, it's our


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3145

1 understanding that in addition to pulling together these

2 documents, the hospital needed to do some HIPAA

3 redactions and so forth. So when you look at the

4 timeline, it's understandable that they had to take some

5 due diligence time. And from our perspective, you know,

6 we tried to act diligently to get those documents to all

7 parties as soon as possible, whether this was a Sunday

8 or whatever day it was.

9 ALJ SHEDDEN: You know, I think some of

10 that, at least the part about being Sunday, highlights

11 the -- the amount of effort and work that you folks put

12 into a hearing of this magnitude. And, you know, I'm

13 fully cognizant when I made my comments this morning

14 about six hours a day kind of pushing it on testimony,

15 I'm fully aware that there's a lot more time being spent

16 outside the hearing room as well.

17 And so, believe me, from -- from my

18 perspective, you know, as it kind of came out perhaps in

19 Mr. Kartchner's comments, regardless of the reasoning on

20 some of these issues, you know, the fact is, we are

21 where we are. And, you know, the -- I'll say, you know,

22 of course, over the lunch hour, I had the opportunity to

23 talk to some of my colleagues and our Director, as it

24 is, and, you know, the question comes up, well, what are

25 you going to do if things take more time, but allow more


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3146

1 time? And in this hearing, that is the answer.

2 I am mindful though that perhaps in future

3 hearings maybe it does make sense to say we've got

4 deadlines, and anything that comes after those deadlines

5 is going to be excluded. I'm loath to do that, I guess,

6 but for -- for reasons that I've explained about wanting

7 to create a full record.

8 But, you know, again, thousands of decisions

9 that I'm making and, you know, many of them are subject

10 to review in my own mind, if nobody else's, in terms of

11 right or wrong and how can I improve for the next

12 hearing. And so this -- this is a series of events that

13 will at least cause me to consider on future hearings,

14 whether they be CON matters or other matters, whether

15 hard deadlines should be set and enforced.

16 So -- but again, let me just turn to you folks

17 and see if there's anything else you'd like to add?

18 (No response.)

19 ALJ SHEDDEN: No. All right. And so

20 we're not going to take Mr. Peck's testimony today. We

21 do appreciate you coming down here. You're certainly

22 welcome to stay. You're not required to, but you're all

23 welcome to.

24 So with that, we're ready to move forward.

25 MR. O'MALLEY: And, Your Honor, did we get


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3147

1 the witness's name on the record? I've forgotten.

2 THE WITNESS: Yes.

3 ALJ SHEDDEN: Yes.

4 MR. O'MALLEY: Thank you.

5 ALJ SHEDDEN: And I did swear you in;

6 correct?

7 THE WITNESS: Yes.

8 ALJ SHEDDEN: All right.

9

10 DIRECT EXAMINATION

11 BY MR. O'MALLEY:

12 Q. Good afternoon.

13 A. Good afternoon.

14 Q. Do you mind if I call you Lynn?

15 A. Sure.

16 Q. So, Lynn, what's your position with the Timber

17 Mesa fire district?

18 A. I'm a fire board member. Last year I was the

19 board president. This year I'm a fire board member.

20 Q. And were you involved at the board level with

21 any of the three prior districts that merged to become

22 Timber Mesa in 2014?

23 A. Yes. In 2009, I filled a vacated position on

24 the Show Low fire board. I was invited to fill that

25 position by the chief and assistant chief at that time.


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3148

1 And so I stayed on the Show Low fire board, and then was

2 involved in the merger process.

3 Then when we merged, there were the three

4 boards from Linden, Show Low, and Lakeside Fire, and out

5 of the 15 members, 5 were chosen.

6 Q. Okay. And do you know whether anyone

7 encouraged or selected you to continue on to the Timber

8 Mesa board; and if so, what the circumstances were?

9 A. Some of the encouragement to stay on the board

10 came from Timber Mesa employees who were former

11 paramedic students of mine in training. I was the only

12 person in the three boards that had an EMS background.

13 So the biggest encouragement was to have someone on the

14 board who understood EMS and how that functions and what

15 the needs would be versus fire. And that stipulation.

16 And then in the public meeting, when the board

17 was elected, the public had a say in who they felt

18 should or should not be elected, and several members of

19 the public brought my name up as one who should be on

20 the new board.

21 Q. Very good. Let me explore a little bit with

22 you your background in EMS.

23 Can you tell us a little bit about your

24 education?

25 A. I got my associate's degree in nursing in 1978.


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3149

1 And then I had my bachelor's degree in nursing from ASU

2 in 1990 and then my master's degree in nursing education

3 in 2011.

4 Q. All right. And can you tell me a little bit

5 about your EMS work experience?

6 A. My EMS work experience, part of that is

7 included -- I was an ER nurse at several different

8 hospitals for a total of about 15 years all together

9 starting in 1980. Then I was a flight nurse with, at

10 the time, Air Evac Services from 1984 to late 1990. I

11 was a flight nurse there.

12 In that time of being a flight nurse, I became

13 their education coordinator for Air Evac for training,

14 respiratory therapy, and maternal nurses, neonatal,

15 adult flight nurses, ped nurses, created the first

16 flight paramedic program in the State of Arizona. And

17 then since that time I -- by 1984, '85, I became an

18 education and training through Maricopa Medical Center

19 with pre-hospital paramedic training and education.

20 I've done that since then.

21 My current job at Northland Pioneer College

22 is, I'm the program director for the EMS department and

23 run all the paramedic and EMT training for Northland

24 Pioneer College in Show Low.

25 Q. And how long have you been on staff at


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3150

1 Northland Pioneer College?

2 A. I've been full-time staff since August of 2006.

3 And for five years prior to that, I was -- I would come

4 up and lecture for several different components of

5 classes for about five years before that as part time.

6 Q. Do you know if a few of the folks that are

7 paramedics with Timber Mesa and Show Low EMS?

8 A. Yes. With the exception of 20 in the entire

9 Mountain, I trained the rest of them.

10 Q. Have you -- we just had Mr. Peck in the room a

11 minute ago, and he's testified. He described his job as

12 a pre-hospital coordinator.

13 A. Correct.

14 Q. Have you had experience in that role?

15 A. No, I have not.

16 Q. Okay. The -- in connection with your EMS

17 teaching and your program director position, did you

18 develop a program for improved coordination of EMS, a

19 kind of a five-year program or whatever it was called?

20 Do you remember that?

21 A. Well, if you're talking about through Show Low

22 Fire, as a board member, we had a strategic planning

23 meeting. So I was the one who came up with my

24 determination what the plan needed to be. At that time

25 for Show Low Fire in the future of the White Mountains


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3151

1 was to start with a community paramedic program. We

2 needed to involve nursing in the pre-hospital

3 environment for critical transport, change how we did

4 transportation, who transported what kind of patients.

5 We could add a home health component to that with

6 paramedic nurse personnel. And so the plan was, we

7 needed within five years to change how EMS was delivered

8 in the White Mountains to exist and survive.

9 Q. And how long have you been residing up in the

10 White Mountain area?

11 A. I moved up there full time in August of 2006.

12 Q. And we've heard some testimony about different

13 committees and so forth involving EMS. Have you been

14 involved in any of those EMS committees?

15 A. I'm on the Northern Arizona EMS committee. I'm

16 a member of the National Association of EMS Educators.

17 I'm on the EMS Children's committee. I'm on a

18 Pediatrics Symposium committee for the state. I'm on

19 the advisory board for the international trauma life

20 support programs in Arizona. I just stepped down as the

21 American Heart Association, northern Arizona task force

22 chair. I think that's most of them.

23 Q. And you mentioned a minute ago that at some of

24 the board meetings, there was input from the public; is

25 that right?


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3152

1 A. Correct. We had for -- if you're talking prior

2 to Timber Mesa, at Show Low Fire, we had a strategic

3 planning meeting that met a couple times and invited

4 some of the community leaders, members of the public,

5 people from different areas, county attorney's office,

6 to discuss the future of Show Low Fire and EMS and fire

7 service up in the White Mountain area.

8 Q. As a result of all of the experience that

9 you've been describing in your residence up in Show Low,

10 your service on the boards, your development of the

11 five-year plan, do you feel you have a pretty good grasp

12 on what the needs are up in the White Mountain area,

13 what the citizens are looking for from an EMS

14 standpoint?

15 A. Yes.

16 Q. Did you have an opportunity, Lynn, to review

17 the testimony of Mr. Evans, not all of it, but

18 specifically the testimony where he offered opinions

19 about what he thought would constitute good public

20 policy with respect to Timber Mesa's proposed expansion

21 and, for example, it -- what it ought to do about base

22 rates?

23 A. Right.

24 Q. You reviewed that testimony?

25 A. I reviewed that -- yeah, those sections of his


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3153

1 testimony.

2 Q. And specifically -- and you rely on your own

3 memory, but my memory of the testimony was that he

4 offered the opinion that it would be a good public

5 policy for Timber Mesa to raise its proposed base rates

6 and shift more of the burden from the taxpayers in the

7 District to third-party payers. Do you remember that

8 testimony?

9 A. Yes.

10 Q. First, does that suggestion make any sense to

11 you?

12 A. No.

13 Q. And can you explain to the court why not?

14 A. We're a public government entity as a fire

15 service. We are a service that merged and became a fire

16 and EMS service. So our citizens are paying taxes for

17 both fire and EMS service, but EMS is only really -- as

18 a service, is available in the Lakeside area for

19 transportation.

20 When you look at raising those costs as a --

21 not the tax rate, but the base rate I think you had

22 mentioned, and the cost per transport, based on our

23 demographic and the type of patients we have up there,

24 we're -- it's a burden that's going to be put on that's

25 not -- I don't see that it's appropriate or necessary.


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3154

1 There -- we as a board have agreed on price

2 setting. When the budget comes up, we agree on prices,

3 taxes, base rates. And as a board we feel that there

4 should not be an extra financial burden put on our

5 populace.

6 Q. From your experience in the EMS field -- and

7 let me break it down a little bit.

8 If the base rates were to be proposed to be

9 raised, would that have any impact on Medicare

10 reimbursement, for example?

11 A. Well, even if we raise the base rates, Medicare

12 has a set payment policy fee or reasonable, customary

13 policy. It's not going to change that. Even if we

14 raise them, Medicare will pay what Medicare has set as a

15 price range. So that's not going to -- that's just --

16 we've raised the prices, but we -- no extra money would

17 be received. We'd still receive the same.

18 Q. What would your view be with regard to those

19 patients that -- where reimbursement would come from

20 AHCCCS?

21 A. As a state agency, I can't imagine that we

22 could change a bill. I think the amount mentioned was,

23 like, two and a half times what our base rate is now and

24 send that in to AHCCCS and a state agency and have them

25 agree to pay an increased amount of money when it would


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3155

1 not even match a reasonable and customary fee from

2 anybody else.

3 We're not a private -- a public entity -- I

4 mean, a private entity. We're public. So we're not in

5 a profit business, and we're not looking to put that

6 burden on -- if you raised -- if -- I live in Show Low,

7 so if down in Tucson they raise their fees two and a

8 half times, as was mentioned in the -- and their people

9 didn't pay it, I am paying it. I live in Show Low. I'm

10 not interested statewide in covering in taxes someone

11 else's fees and bills. And I think if we did that in

12 ours, it's a burden statewide that is not appropriate

13 for us to do.

14 Q. And what about the third group of third-party

15 payers, these insurance companies and so forth, would

16 they be receptive to a two and a half time increase in

17 paying that?

18 A. I don't believe so. And when you look at --

19 they have -- if you look at most private insurance, they

20 have -- same thing. Everyone follows Medicare's

21 guidelines, and they have a reasonable and customary

22 amount of money that they think is appropriate and have

23 made arrangements with different agencies for whatever

24 discounts and prices they want to offer.

25 But raising that number is -- who's going to


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3156

1 pay that? If we raise it two and a half times and they

2 don't pay it, so we've created a problem, so now either

3 the private citizen feels they have to pay it or we're

4 writing it off as a bad debt. So why are we doing that?

5 Q. All right. Let me kind of break down the steps

6 a little bit in the -- in the public policy decisions

7 that you did make.

8 A. Correct.

9 Q. First with regard to the merger, can you

10 describe for the court what the public policy decision

11 was, what you were thinking about, what the factors were

12 that led to a decision of your board when you were on

13 the Show Low board and the other two boards to actually

14 create a Timber Mesa District?

15 A. Correct. When the conversations started coming

16 up about mergers -- and there's different types of ways

17 you can merge and different types of administrative

18 boards you can set up. We arranged -- all three

19 agencies arranged to pay for a feasibility study. John

20 Flynn kind of introduced that. And we paid this money

21 for a study, met, reviewed it. Lots of data was

22 gathered about different ways that we could merge and

23 what would benefit our citizens in all three areas the

24 most.

25 So when we met, it was a very public meeting.


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3157

1 The option that was presented was a full merger as we

2 did become a completely new entity, and all three boards

3 fully agreed with that. Looking at the numbers, looking

4 at the future projections, it was going to benefit the

5 community more than us continuing as separate entities.

6 And there was a risk for loss of service and reduction

7 of personnel or loss of money.

8 So when we looked at it, we improved our

9 ability to share resources, to share equipment, improve

10 the budget process and not have to raise base rates or

11 taxes too high for the citizens to get the service that

12 they needed.

13 Q. So I take it you're telling us that you looked

14 both at needs in the community?

15 A. Correct.

16 Q. And then the operational issues and maybe

17 synergies or cost savings?

18 A. Correct.

19 Q. And then also looked at the financial aspects?

20 A. Correct.

21 Q. Okay.

22 MR. O'MALLEY: Just for the record and

23 make sure we're on the same page, could we look at

24 Exhibit 16. It's SLEMS 16, Tiffany.

25 BY MR. O'MALLEY:


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3158

1 Q. Just want to have you identify, is this the

2 feasibility study you were talking about?

3 A. Yes.

4 Q. The June of 2014 study?

5 A. Yes. And originally Pinetop was going to be

6 part of that, and they backed out and Linden came in.

7 MR. O'MALLEY: Your Honor, we offer SLEMS

8 Exhibit 16.

9 ALJ SHEDDEN: Is there any objection on

10 AMH or SLEMS-16?

11 MS. STAZIO: No objection.

12 MS. LaMAGNA: No objection.

13 ALJ SHEDDEN: All right. 16 is admitted.

14 BY MR. O'MALLEY:

15 Q. And, Lynn, as part of that -- of that

16 feasibility study analysis and your review of it, did

17 you identify what you felt were needs in the community

18 that would be well-served by the first step, the merger

19 itself?

20 A. Yes. The concept of merging creating a fire

21 and EMS or medical entity would provide more community

22 services, fill more community needs. We, again,

23 realized that we could provide -- we'd have paramedics

24 pretty well every station, every area on every truck or

25 engine. There would be more ALS and better provided


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3159

1 care in the areas that maybe it had been marginal or not

2 always before for on a fire service. We realized that

3 overall it -- it just gave us more for the community

4 without costing a lot more.

5 Q. And when you say "for the community," are you

6 talking about the whole 205 --

7 A. The whole --

8 Q. -- square miles of what became --

9 A. Right. The whole Timber Mesa community.

10 Q. It was my fault. I interrupted you, but the

11 court reporter can only take one of us at a time. I'm

12 sorry. I thought you were finished.

13 What I was asking was, you're -- when you talk

14 about community, you're now not just looking at it from

15 the Show Low standpoint, but the whole 205-square-mile

16 area that became Timber Mesa fire district?

17 A. Correct.

18 Q. Okay. And then in connection with that whole

19 analysis and the evolving strategy, did the board

20 also -- now becoming the Timber Mesa board, also take a

21 look at whether to seek an expansion of the certificate

22 of necessity to serve the entire district?

23 A. Correct.

24 Q. Okay. And in connection with that, did the

25 board commission a needs assessment?


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3160

1 A. Yes.

2 MR. O'MALLEY: Could we take a look at

3 SLEMS Exhibit 17.

4 BY MR. O'MALLEY:

5 Q. And I just wanted you to identify that that's

6 what you're talking about. Is this the -- scroll up

7 just a little bit.

8 A. Yes.

9 Q. Is this the needs assessment?

10 A. Yes.

11 Q. And what use or for what purpose did the board

12 commission a needs assessment?

13 A. Again, as a fire and medical service, we felt

14 we were only offering the complete medical continuity of

15 care, complete patient management in one area, which

16 would have been the Lakeside area, and that as an agency

17 in a district who was Timber Mesa Fire and Medical, that

18 we needed to look at, is there a need for us to extend

19 in the CON, move out, and what could we do as a public

20 entity to improve our medical care, medical delivery,

21 healthcare to the community that filled our entire

22 district.

23 Q. And when the needs assessment was completed and

24 submitted to the board, did the board take action

25 whether to approve or not approve?


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3161

1 A. Yes. We approved it.

2 Q. In connection with -- with the needs assessment

3 and your decision-making on whether to pursue the CON,

4 did you also receive input from Mr. Buldra, your outside

5 CFO?

6 A. Yes.

7 Q. And did you know that there was a proposed base

8 rate in the -- in the application?

9 A. Yes.

10 Q. And that it was going to remain the same as it

11 had been in the --

12 A. Correct.

13 Q. And as part of what you told us already, did

14 you, as a board member, feel comfortable, based on all

15 the input that you received through feasibility studies

16 and needs assessments, and from your CFO, that you could

17 achieve the level of service that you desired in an

18 expanded area at the same base rate that you've been

19 using in the --

20 A. Yes.

21 Q. In fact, Lynn, did the board actually pass a

22 resolution of freezing the base rate for a three-year

23 period if the CON is granted?

24 A. Yes, we did.

25 Q. Likewise, I think you mentioned that during the


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3162

1 course of this decision-making process, you took a look

2 and considered what impact there might be on tax rates?

3 A. Correct.

4 Q. And what was your conclusion as a board?

5 A. Our tax rate is -- we've set it to remain -- if

6 you're talking about our 2.9997 tax rate. So for the

7 2017/'18, 2018/'19, so in our three-year projection,

8 that rate is staying the same. We're not increasing

9 that tax rate.

10 Q. So are -- are you comfortable yourself

11 individually and the board with the notion that the

12 proposed expansion, if granted, is economically viable

13 with the same base rates that you've had at Lakeside and

14 without a tax increase?

15 A. Yes.

16 Q. In addition, Lynn, did the board, in November

17 of 2016, pass a resolution authorizing a transfer of

18 additional funds from the general fund to create a

19 capital reserve fund for the purpose of financing

20 upgrades and replacement of fire and EMS equipment and

21 buildings and so forth?

22 A. Yes.

23 Q. Okay.

24 MR. O'MALLEY: Can we look at Exhibit 198,

25 please.


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3163

1 BY MR. O'MALLEY:

2 Q. Is this the resolution that we were talking

3 about a minute ago?

4 A. Yes.

5 Q. And that was passed by the board in November?

6 A. Correct.

7 Q. And do you feel that -- that with that funding,

8 the Timber Mesa fire district will be able to stay on

9 the cutting edge of quality equipment and facilities and

10 service for its community?

11 A. Yes.

12 Q. Lynn, also, with respect to the decision to --

13 to make an application for an expanded CON, did you give

14 some consideration or thought and did the board to kind

15 of a fairness notion with regard to the limited scope of

16 an ambulance service down at Lakeside as it impacted the

17 new larger district? Do you know what I mean?

18 A. No.

19 Q. Let me rephrase that. It was a really bad

20 question.

21 As matters now stand, Timber Mesa fire district

22 only provides ambulance service through a CON down in

23 Lakeside; correct?

24 A. Correct.

25 Q. Did it enter into your thoughts and your


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3164

1 decision-making that it would be more equitable or fair

2 to all of your residents to seek to provide that service

3 throughout the district since all district taxpayers are

4 supporting it?

5 A. Absolutely. They're -- they have a tax rate

6 that's for Timber Mesa Fire and Medical. And only about

7 a third of -- you know, a small portion of our district

8 is receiving that medical -- full medical component of

9 continuity of care. There are medical personnel that

10 are on every fire apparatus that arrive on scene. They

11 can start the care, but for continuity of care,

12 follow-through, and a complete healthcare package,

13 there's a good portion -- the larger portion of Timber

14 Mesa that's not receiving it from Timber Mesa Fire and

15 Medical.

16 Q. Okay. And I take it that the board at some

17 point also took formal action to approve the submission

18 of the application --

19 A. Yes.

20 Q. -- for the expanded CON?

21 A. Yes.

22 Q. And do you think, from a public policy

23 standpoint, that your constituents are best served by

24 pursuing and obtaining an expanded CON for the Timber

25 Mesa fire district?


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3165

1 A. Yes.

2 Q. And why is that?

3 A. Because it is Timber Mesa fire district and

4 fire and medical, and part of our mandate is to -- we're

5 determined to provide fire and medical care. And if

6 we're not providing full care in all the district, and

7 you're paying taxes on it -- or a citizen is paying

8 taxes and expecting that care and doesn't get it, then

9 we're not meeting our community needs as a fire and

10 medical district.

11 Q. And based on the testimony you gave us a little

12 bit earlier, do you feel that your citizens will be

13 better served from an EMS standpoint -- setting aside

14 who's paying for it, from an EMS standpoint if this

15 expansion is granted?

16 A. Yes.

17 Q. And why is that?

18 A. Again, it's -- we have the trained people in

19 the fire side of it who are both firefighter

20 paramedics/firefighter EMT who have the capability to

21 provide the training from the beginning of the call to

22 the end of the call, which is delivery to a healthcare

23 facility or ending at the house, and we have the people

24 that are trained and qualified to do that. And it's

25 part of our public community service and needs to do


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3166

1 that.

2 Q. And with your experience, particularly as

3 someone who has spent a good part of your career

4 training paramedics, can you give us your opinion about

5 the quality of care that the Timber Mesa EMTs and

6 paramedics provide to its citizens?

7 A. I guess I have to say that they're well-trained

8 and that, you know, they have the ability, they have the

9 knowledge, and they have the personnel to provide the

10 care that's necessary. They've been trained

11 appropriately.

12 Q. And I take it you have regular board meetings?

13 A. Yes.

14 Q. And does the chief, Chief Savage, generally

15 attend and report to the board on all kinds of

16 activities of the -- to the District?

17 A. Correct. We have multiple reports.

18 Q. And what opinion have you formed of Chief

19 Savage and his managerial style?

20 A. The board just did his evaluation. And we've

21 advanced his contract, and we think he's doing the job

22 that we require him to do. And he's doing it well.

23 Q. One last area.

24 There's been some testimony throughout the case

25 about agreements to cooperate between CON holders, ways


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3167

1 in which adjoining CON holders could coordinate or

2 collaborate and so forth. Have you ever had discussions

3 with Mr. Broome about any kind of a collaborative effort

4 or proposal?

5 A. Mr. Broome had met with me in my office looking

6 for the opportunity to speak to the board, so he made an

7 appointment to come in and talk to the board about

8 proposals of ways that we could work together. In the

9 meeting that he and I had, he just said that he wanted

10 to bring information to the board, talk about there are

11 ways that we could work together or, you know, combine

12 forces, maybe set up different stations, different

13 employees. He just -- and so I arranged -- I told him

14 that we would be happy to have him come to the board.

15 So I arranged the first meeting. He was on the

16 agenda, came to the board. He met in front of the

17 board. Most of the comments were about -- pretty vague

18 and about money that we would lose and money we already

19 lost and that we needed to work together, and they could

20 do that. So there wasn't a direct proposal or exact

21 information as to how that would be.

22 Q. Were --

23 A. Yeah.

24 Q. Based on your meeting with him, were you

25 expecting that he was going to come with some kind of --


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3168

1 A. Yes.

2 Q. -- actual proposal on how you could --

3 A. Because he and I, when we met in the office, we

4 talked about that. And I said we'd be happy to hear any

5 proposal that you have, if you would like to bring us

6 the data of how you would like to work this arrangement.

7 And I think he came to the board one to two months after

8 he and I met in my office.

9 And then he had the same conversation with the

10 board that we had had in the office about there's ways

11 to do this and, you know, we shouldn't -- don't pursue

12 this, and we can come up with a way. And so the board

13 invited him back again because we didn't have a proposal

14 that was brought to us.

15 So we invited him to come back at a future

16 date, which he did, and it was the same information.

17 There was no proposal brought forward with any specific

18 data, information, a plan, options how this could go.

19 Q. Did -- on the other hand -- strike that.

20 On the other hand, did the Timber Mesa District

21 make a proposal to Mr. Broome about how the two

22 adjoining CON holders could collaborate or cooperate or

23 work together to provide better service in the

24 community?

25 A. Yes. When the process had started and we


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3169

1 had -- over the period of time had made an offer on --

2 if Timber Mesa would do the ALS care on-scene to the

3 facility and they can cover -- for our district, and

4 they would be covering -- they can cover BLS side, all

5 the rest of the area, interfacility transports,

6 transports to the Valley. And as far as I know and

7 presented to the board, that that offer was turned down.

8 Q. And is this model where Timber Mesa would have

9 been primary on the 911 ALS calls and Show Low EMS would

10 have been primary on BLS and interfacility transports,

11 is that known as the Tucson model?

12 A. Yes.

13 Q. Okay.

14 MR. O'MALLEY: All right. That's all I

15 have. Thank you, ma'am.

16 ALJ SHEDDEN: All right. Questions from

17 the Bureau?


19 ALJ SHEDDEN: No. All right. From Show

20 Low EMS?

21

22 CROSS-EXAMINATION

23 BY MS. STAZIO:

24 Q. Ms. Browne-Wagner, may I call you Lynn?

25 A. Sure.


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3170

1 Q. Thank you, Lynn.

2 I think I have on -- I saw your résumé, and

3 you're the faculty and the department chair for the

4 EMS -- EMS department at Northland Pioneer College; is

5 that correct?

6 A. Correct.

7 Q. Okay. Does Northland Pioneer College have an

8 agreement with Arrowhead Mobile Healthcare, otherwise

9 known as Show Low EMS, for Show Low EMS to provide

10 on-vehicle field and/or site experience to --

11 A. Yes.

12 Q. -- Northland Pioneer College students?

13 A. Sorry. Yes.

14 Q. And how long has that agreement been in place?

15 A. As far as I know, probably 10 to 12 years,

16 maybe more, 15.

17 Q. Okay. Won't hold you to a date, but for a long

18 time?

19 A. Oh, yeah.

20 Q. And that agreement continues until either party

21 cancels it; true?

22 A. Correct.

23 Q. And that agreement is still intact?

24 A. Yes.

25 Q. And the college is still providing students the


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3171

1 opportunity to ride with Show Low EMS for the vehicle

2 field and site experience; true?

3 A. Yes.

4 Q. Up until present time --

5 A. Yes.

6 Q. -- correct?

7 Lynn, the needs assessment that was presented,

8 I presume -- and I apologize if I -- if you said this

9 and I misheard it or didn't hear it.

10 The needs assessment was presented to the board

11 to approve; is that a fair statement?

12 A. Yes.

13 Q. Okay. And do you know who authored the needs

14 assessment?

15 A. Gosh, I don't remember. I'm sorry.

16 Q. That's okay.

17 MS. STAZIO: Thank you, Lynn. No further

18 questions.

19 ALJ SHEDDEN: All right. Mr. O'Malley,

20 any follow-up questions?

21 MR. O'MALLEY: Yes, Your Honor. Thank

22 you.

23 ///

24 ///

25 ///


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3172

1 REDIRECT EXAMINATION

2 BY MR. O'MALLEY:

3 Q. Lynn, does the Timber Mesa fire district also

4 provide opportunities for Northland students to ride

5 along in their ambulances -- or their ambulances and

6 other apparatus?

7 A. Yes.

8 Q. And then, if this refreshes your memory, on the

9 needs assessment, do you recall that it was John Flynn

10 of PolicyLogic that drafted the needs assessment? Does

11 that ring a bell with you?

12 A. I would say yes, he was involved in both the

13 assessment for the merger and needs assessment, so --

14 but I can't definitely say that, but most likely yes.

15 Q. Do you know who John Flynn is?

16 A. Yes.

17 Q. Have you dealt with him in the past?

18 A. Yes.

19 Q. What's your opinion or assessment of John

20 Flynn's experience and qualifications?

21 A. He is very qualified. He's worked in all

22 levels within the state on fire districts, fire care,

23 EMS care, assessing needs, been involved in mergers

24 throughout the state and the follow-up management after

25 that.


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3173

1 Q. So you would have confidence in a report he

2 would prepare?

3 A. Yes.

4 Q. I think Ms. Stazio asked you a question about

5 Exhibit 197. She noticed something on your résumé.

6 MR. O'MALLEY: Could we take a quick look

7 at that?

8 BY MR. O'MALLEY:

9 Q. Is 197 your résumé, ma'am?

10 A. Yes.

11 MR. O'MALLEY: Your Honor, we'd move

12 Timber Mesa Exhibits 197 and 198 into evidence.

13 ALJ SHEDDEN: Is there any objection to

14 Timber Mesa 197 or Timber Mesa 198?

15 MS. STAZIO: No objection.

16 MS. LaMAGNA: No objection.

17 ALJ SHEDDEN: All right. 197 and 198 are

18 admitted.

19 MR. O'MALLEY: No further questions, Your

20 Honor.

21 ALJ SHEDDEN: All right. Anything from

22 the Bureau?


24 ALJ SHEDDEN: And Show Low EMS?

25 MS. STAZIO: No, Your Honor.


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3174

1 ALJ SHEDDEN: All right. Thank you for

2 your time, and you're excused.

3 Let me just verify, no other witnesses today;

4 correct?

5 MR. O'MALLEY: Correct, Your Honor.

6 ALJ SHEDDEN: Why don't we go off the

7 record for a minute and let Ms. Browne-Wagner move out

8 of the way, and we'll do our housekeeping afterward.

9 Maybe move out of the way is a bad way to put it but --

10 (A discussion was held off the record.)


12 the record. I guess the only -- I'm going to see if you

13 folks have any issues you want to raise, but I'll let

14 folks know that I have taken just a look preliminarily

15 at my schedule. And I'll tell you right now, I have

16 pretty good availability the last two weeks of August

17 and even really starting on August 16 to some degree.

18 So I don't know whether folks have had a chance

19 to look at their calendars, whether folks have come to

20 any sort of guesstimate as to the number of days that

21 might be required, but that's where I stand in terms of

22 further hearing dates.

23 MR. KARTCHNER: Could we get back to you

24 on that tomorrow, Your Honor? I'll have a chance to go

25 back to the office and check our calendars.


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3175

1 ALJ SHEDDEN: Sure. That will work for me

2 certainly.

3 MR. O'MALLEY: Your Honor, I think knowing

4 what your schedule looks like obviously is most

5 important, but that will allow us to kind of corral our

6 people and get back to you tomorrow.

7 ALJ SHEDDEN: All right. Let me ask folks

8 then, is there anything else we need to address today?

9 Mr. McGroder?

10 MR. McGRODER: I think you said we were

11 going to go off the record to do some housekeeping

12 stuff.

13 ALJ SHEDDEN: We're back on so -- but the

14 question was really just of scheduling so -- and perhaps

15 that might be better done off the record typically

16 anyway, but I've been trained to try and get everything

17 on.

18 So the plan is to have folks look at their

19 schedules, and hopefully tomorrow we can cement in some

20 further hearing dates.

21 MR. McGRODER: Is it your plan to -- and

22 I'm sorry I wasn't here this morning. Is it your plan

23 to take any testimony tomorrow?

24 ALJ SHEDDEN: In consulting with

25 Mr. O'Malley, I thought we did have a number of rebuttal


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3176

1 witnesses ready to go. Correct?

2 MR. O'MALLEY: Well, and I guess here's --

3 in terms of the important testimony we want to try to

4 get in, consistent with the rulings you've made based on

5 our respective positions that we want to get a witness

6 on to get them over with, you know, a cross that follows

7 the direct, we set Mr. Duncan for Friday. And I would

8 also suggest we could do Mr. Buldra starting even

9 tomorrow in order to make sure we got him done.

10 I do want to alert, because of the issues that

11 have been raised, I talked to Gabe over the break, and I

12 think he has four exhibits of calculation-type things or

13 whatever that he wants to utilize in his testimony,

14 which I can get to counsel, you know, as soon as I get

15 back to my office. But if they are not going to be

16 ready to cross-examine Mr. Buldra, then I don't want to

17 do the direct. So there's that kind of issue.

18 I could either do him starting him tomorrow

19 afternoon. I'd be a little concerned about trying to

20 get both the financial guys on one day. Maybe it could

21 be done. But I want to make sure that everybody knows

22 where we are, and so maybe we should hear from

23 Mr. Kartchner, Ms. Stazio on whether they would be

24 prepared to do both Buldra and Duncan starting tomorrow

25 afternoon and carrying over, finishing both of them on


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3177

1 Friday.

2 ALJ SHEDDEN: Well, I guess maybe I'm --

3 I'm not sure where we are because my notes show you had

4 Mr. Ryals, Chief Savage. And I didn't write down the

5 employee names, but I made four tick marks, so I don't

6 know if that was four employees or I was just getting

7 carried away as I was ticking things off.

8 MR. O'MALLEY: Well, there's a certain --

9 couple thoughts we had on it. Because of our main

10 concern with these experts, we want to make sure that we

11 leave sufficient time for them to be directly examined

12 and cross-examined and not have it hang over until

13 August. So I want to -- that's kind of a priority for

14 us in terms of scheduling over the next two days.

15 The second aspect of it is, there's a certain

16 sequence or order of witnesses that we think is most

17 appropriate for our case. For example, we would not

18 want to put Mr. Ryals on until he's heard Mr. Peck's

19 testimony with regard to whatever the hospital records

20 show on these interfacility transports because he may

21 have comment -- I assume he will have comments on those.

22 So there's a certain order to all this.

23 And I think our preference would be to try to

24 see -- with -- all parties are in agreement -- try to

25 see if we, at least over these next two days, could get


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3178

1 the two financial experts done. If we can't, then we'll

2 rethink who else we might be able to squeeze in there,

3 but that's kind of our priority. We don't want to

4 leave -- leave -- and get to Friday afternoon and find

5 out we've got a witness that's not -- an expert that's

6 not finished.

7 ALJ SHEDDEN: All right. Let me turn to

8 the Show Low EMS folks. And I guess, what I'm also

9 going to suggest -- not before I hear from you -- I

10 guess the question I would -- if what I'm hearing you

11 say -- and I'm thinking it's perhaps somewhat different

12 than our discussions this morning, and that's fine -- in

13 essence, that really until -- it's Mr. Buldra and/or

14 Mr. Duncan in some order or another and no one before

15 that; correct, from your preference?

16 MR. O'MALLEY: That would be our

17 preference, and to get them both done or not start them.

18 ALJ SHEDDEN: So the suggestion or the

19 thought is, does it make sense to go off the record, let

20 you three parties kind of consult among yourselves. If

21 you can come to some sort of an agreement,

22 understanding, Mr. Kartchner, that there's going to be

23 at least a few documents coming your way and then

24 reconvene.

25 And it sounds like perhaps -- you know, the


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3179

1 getting them done, that is perhaps the troubling aspect.

2 I mean, particularly -- there's only so many hours in

3 two days. And so if we don't start right at 8:30

4 tomorrow, then the hours begin to shrink. And from what

5 I heard you perhaps suggest was maybe starting it at the

6 lunch hour or something like that or after lunch.

7 MR. O'MALLEY: Well, two things, and

8 Mr. McGroder just reminded me. We -- I don't think we

9 have a problem with putting Chief Savage on to get --

10 utilize the available time. But I'd be prepared to put

11 on either Mr. Duncan or Mr. Buldra at 8:30 tomorrow and

12 then use the full two days, or whatever we need, to get

13 the two financial experts on and off, if that is

14 acceptable to the rest of the parties.

15 If we have additional time in there, we'll put

16 Chief Savage on and utilize the time that way. That

17 would be our suggestion.

18 ALJ SHEDDEN: And so, Mr. Kartchner or

19 Ms. Stazio, do you want to respond or do you want to

20 maybe consult with the Timber Mesa lawyers off the

21 record?

22 MR. KARTCHNER: Well, I think we can

23 comment now on one issue. We did talk to Mr. Evans,

24 who's going to be assisting us in the financial

25 analysis, and he had indicated he would be prepared to


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3180

1 address Mr. Duncan and put us in a preparation to

2 properly cross him on Friday.

3 I recognize counsel's concern regarding getting

4 two experts done in a day, and I guess I just need a

5 sense of how long you think they may take. And if we

6 can do one in the morning and one in the afternoon, that

7 may work out. But again, I don't want to lock you in.

8 You have a better sense of the testimony you're trying

9 to elicit than I would.

10 MR. O'MALLEY: My estimate for Mr. Duncan,

11 as I mentioned this morning, would be probably something

12 in the one and a half to two hours, I think, for direct.

13 I think Mr. Buldra would be perhaps a little shorter

14 than that, maybe an hour and 15 minutes, hour and a

15 half.

16 MR. KARTCHNER: And to me, it sounds like

17 we could probably do those both in a day, one in the

18 morning and one in the afternoon.

19 MR. O'MALLEY: I mean, I think -- you

20 know, my sense would be if we could start maybe even in

21 the afternoon tomorrow, then I'm very confident we could

22 get it done.

23 ALJ SHEDDEN: Does that -- and take the

24 chief in the morning, see where we can get --

25 MR. O'MALLEY: Sure.


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3181

1 ALJ SHEDDEN: -- and then go to -- it

2 would be Mr. Buldra first tomorrow afternoon?

3 MR. O'MALLEY: Whichever witness. I mean,

4 I'm fine doing either one. If they have a preference

5 for their prep time, I'm fine doing either one.

6 ALJ SHEDDEN: All right. How does that

7 work then for the Show Low EMS folks?

8 MR. KARTCHNER: Let me -- let me consult

9 with our expert. I mean, if we started late enough in

10 the afternoon that maybe there was some overlap so that

11 he still had an additional evening to prep, that might

12 work out and then alleviate some of the concern that

13 it's not all contained on a day.

14 MR. O'MALLEY: And I would suggest, Your

15 Honor, if we start in the afternoon and we finish my

16 direct of Mr. Buldra, for example, and it's 3:30 and

17 they feel like they need time, you know, to -- 4:00,

18 they need time to prep, that's fine. I just would like

19 to try to use our time in a way to get both experts

20 done.

21 MR. KARTCHNER: I think that makes sense,

22 Your Honor.

23 ALJ SHEDDEN: And, Ms. LaMagna, I assume

24 the Bureau is good with any of this?

25 MS. LaMAGNA: We are.


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3182

1 ALJ SHEDDEN: All right. So we'll meet

2 tomorrow again at 8:30, work on the chief's testimony,

3 see where we get to, and then plan on, presumably,

4 Mr. Buldra in the afternoon; correct?

5 MR. O'MALLEY: And then we'll go, as we

6 planned before, Mr. Duncan on Friday as soon as we're

7 done with Mr. Buldra.

8 ALJ SHEDDEN: All right. Is there

9 anything else we need to address today?

10 MR. McGRODER: Your Honor, just a

11 heads-up, I don't think the chief's going to take all

12 morning. So if it would be convenient for the parties

13 to start maybe a little bit later, say 9 or 9:30. But I

14 just throw that out. I'm certainly not going to be all

15 morning with the chief.

16 ALJ SHEDDEN: All right. Let me ask

17 folks, any thoughts on that?

18 MR. KARTCHNER: I have no objection to

19 starting later in the morning, Your Honor.

20 ALJ SHEDDEN: Well, I've got to tell

21 folks, my preference would be to end earlier on Friday,

22 but that is, of course, not always possible in

23 understanding where we are. Then does 9:30 tomorrow

24 morning work for folks then?

25 MS. LaMAGNA: Yes.


2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3183

1 MR. O'MALLEY: Yes, sir.

2 ALJ SHEDDEN: All right. We'll reconvene

3 tomorrow morning at 9:30.


5 MR. McGRODER: Thank you.

6 (The proceedings adjourned at 2:06 p.m.)

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2017A-EMS-0007-DHS VOLUME 16 06-28-2017 3184

1 STATE OF ARIZONA ) COUNTY OF MARICOPA )

2

3 BE IT KNOWN that the foregoing proceedings were taken before me; that the foregoing pages are a

4 full, true, and accurate record of the proceedings all done to the best of my skill and ability; that the

5 proceedings were taken down by me in shorthand and thereafter reduced to print under my direction.

6 I CERTIFY that I am in no way related to

7 any of the parties hereto; nor am I in any way interested in the outcome hereof.

8 I CERTIFY that I have complied with the

9 ethical obligations set forth in ACJA 7-206(F)(3) and ACJA 7-206(J)(1)(g)(1) and (2). Dated at Phoenix,

10 Arizona, this 24th day of July, 2017.

11

12 ___________________________

13 CINDY MAHONEY Certified Reporter

14 Arizona CR No. 50680

15 I CERTIFY that Coash & Coash, Inc., has

16 complied with the ethical obligations set forth in ACJA 7-206(J)(1)(g)(1) through (6).

17

18

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21

22

23 ______________________________

24 COASH & COASH, INC. Registered Reporting Firm

25 Arizona RRF No. R1036


Documents

2017A-EMS-0007-DHS VOLUME 16 06-28-2017 IN THE OFFICE OF … · 2017. 7. 26. · [email protected] 13 For the Intervenor: 14 FENNEMORE CRAIG, P.C. 15 By Mr. Todd S. Kartchner