Doug Wolfberg on EMS Legal Issues

As the field of EMS has matured and grown, so, too, has the approach to its legal matters. In addition to the laws and statutes enacted in each state that establish and govern EMS systems, there are many potential areas for litigation that impact all aspects of EMS operations and their providers. Whether questions are raised in regard to medical oversight, delivery of patient care, workplace employment requirements, Good Samaritan law protections, volunteer incentive programs or even the ubiquitous HIPAA mandates, the legal topics impacting EMS can be intricate and need special attention. Some systems are, arguably, hard pressed to operate without full-time legal counsel available to examine the various impacts to both the administration and operation of EMS.

This issue’s column features a conversation with Douglas Wolfberg, Esq., a founding partner of the law firm Page, Wolfberg and Wirth (PWW), which specializes in addressing issues specific to the EMS, ambulance and medical transportation industries. Aside from being a nationally recognized speaker and prolific author on myriad legal and EMS topics, Wolfberg also counsels prehospital organizations on reimbursement, compliance, and corporate and contracting issues.

What are some of the common legal issues that confront EMS providers?

With individual EMS providers, there are a range of cases including:

• Drug Diversion—Misappropriation of controlled substances by providers for their own use, or to sell. These cases have serious implications, not only for the individual (including criminal liability, termination from employment, loss of license or certification, etc.), but also for the ambulance service (loss of license, administrative sanctions) and the service’s medical director and dispensing pharmacy (potential licensure and DEA issues).

• Vehicle Accidents—Vehicle accidents involving ambulances or other EMS vehicles can create both civil and criminal liability. Increasingly, we are seeing providers being cited. Fortunately, most cases are misdemeanors and not felonies, but there have been some instances in which serious criminal charges have been filed. Of course, aside from criminal liability, there is also the potential for significant civil liability against both the ambulance service and the individual vehicle operator.

• Employee Discipline—Cases involving employee disciplinary matters and terminations can be contentious.

• State Disciplinary Actions—Disciplinary cases by state EMS certification or licensure agencies against individual providers seem to be increasing. Some of these recent cases have involved things as simple as a medic “mouthing off” to a medical command physician on the radio (which was recorded, of course) to failure to follow state regulations, protocols and policies on all manner of issues.

What can an EMS provider do to keep himself out of legal trouble?

First of all, training and quality improvement are the magic bullets for liability prevention and risk management. For instance, ambulance-related vehicle accidents are a common risk area. Well-run driver training is essential, as are periodic updates and training refreshers. Becoming familiar with your response area can help avoid response delays, wrong turns and last-minute maneuvers that can create risk. In addition, individual providers can help themselves by doing their “homework”—knowing their system’s protocols and avoiding unjustified protocol deviations can help keep them out of hot water with their employer, medical director and state EMS office.

What do EMS system administrators and managers need to do to keep their agencies out of trouble?

At the ambulance service or EMS agency level, there is a whole different set of challenges. Many of the service issues we see involve financial troubles, such as Medicare audits and fraud or false claim investigations. There are also many employment-related cases, such as discrimination or harassment claims, back pay or overtime claims. The single best thing we recommend for an agency’s or service’s own protection is the implementation of a comprehensive compliance program. This is a thorough process whereby all billing, employment and business practices are reviewed; internal claim audits and reviews are performed; existing contracts, policies, procedures, etc., are assessed; and recommendations are made for the implementation of new or revised policies and procedures for the organization. We also recommend adoption of a formal compliance plan by EMS organizations and ambulance services so they can put this top-down commitment to business ethics and integrity into place within their organizations.

What do individual providers and administrators need to do to protect themselves from personal liability?

First of all, the best thing individual providers and administrators can do to protect themselves is to maintain a personal commitment to ethics, integrity and competence in all that they do. It sounds simple, but we are given a lot of personal choices in our lives and careers, and we can choose either to cut corners and find the easy way out, or to dedicate ourselves to doing a thorough, honest and accurate job. Individual field providers need to do a better job of documentation, for instance. They need to recognize documentation as a critical and integral part of the job, and not merely a “necessary evil,” an afterthought or an interruption of their “real work.” Organizations need to help change that culture so that personnel become more accepting of the fact that documentation is a critical and integral part of the job. Administrators need to make sure they are running tight ships. If you’re a nonprofit organization, for example, make sure that your agency’s bylaws provide indemnification for officers and directors and that the agency has appropriate insurance coverage. Ensure that your organization is compliant in its billing and business affairs by conducting periodic internal claim assessments and billing reviews, using qualified internal personnel (preferably not those already involved in preparing the bills being reviewed) or qualified outside attorneys or consultants.

HIPAA and updated CMS reimbursement levels are among the changes that have impacted EMS in the recent past. What do you feel is the next big legal issue that will impact EMS?

I think it’s under the general heading of “compliance.” I believe that EMS organizations need to focus on improving their business operations much as they did on improving their clinical operations in the past. With increasing regulation and decreasing reimbursement, there is going to be tremendous pressure on ambulance services and EMS organizations to:

• Become more efficient—deliver services as cost-effectively as possible.

• Remain compliant—have an effective, legally sufficient compliance program, appropriate personnel policies and procedures, employment practices, etc.

• Cultivate relationships with local governments. As federal, state and private payer reimbursement shrinks, much of the burden of maintaining quality EMS systems in our communities will fall to local governments. It’s never too early—or too late—to work on cultivating relationships with local governments by reaching out and by being able to demonstrate your worth and value to the community when asking for a subsidy.

• Consider diversifying revenue sources. Many ambulance services over the past five to 10 years have changed or updated their service delivery models to respond to the regulatory and reimbursement changes discussed above. For instance, as medical necessity rules tighten, many organizations have diversified into wheelchair van service to meet the goal of moving patients by the least costly medical transportation alternative that is still clinically appropriate. This is the type of diversification that may be necessary for successful ambulance services to continue to explore. We can’t continue indefinitely to provide Cadillac service on Yugo reimbursement!